ITEMID: 001-61861
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF CHAUVY AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: András Baka
TEXT: 8. The first applicant, Gérard Chauvy, was born in 1952 and lives in Villeurbanne. The second applicant, Francis Esmenard, was born in 1936 and lives in Paris. Both are French nationals. The third applicant, Editions Albin Michel, is a limited company formed under French law that has its registered office in Paris.
9. The first applicant, who is a journalist and writer, is the author of a book entitled Aubrac, Lyon 1943 which was published in 1997 by Editions Albin Michel (the third applicant), a company chaired by the second applicant.
10. In his book, the first applicant reconstructed the chronology of events involving the Resistance movements in Lyons in 1943 and took stock of the various archive materials that were available on that period. One of the principal mysteries surrounding this period is the Caluire meeting, an event of particular significance to the history of the French Resistance and a major episode of the Second World War. On 21 June 1943 Klaus Barbie, the regional head of the Gestapo, arrested the main Resistance leaders at a meeting in Caluire in the Lyons suburbs. Among those arrested were Jean Moulin, General de Gaulle’s representative in France and the leader of the internal Resistance, and Raymond Aubrac, a member of the Resistance movement who managed to escape in the autumn of 1943. The truth about how the Resistance leaders came to be arrested in Caluire has still not been established. A member of the Resistance, René Hardy, who is now dead, was accused of being the “traitor” and put on trial. However, he was not convicted after two separate trials. A majority of the court voted in favour of a conviction in one of the trials, but the rules of criminal procedure in force at the time required a majority of at least two votes for a guilty verdict to be returned.
11. The first applicant recounted this major event “using the Aubracs as a prism”. He claimed that his book put to the test “the official truth as related at length in the media, notably by the Aubracs, and in a film that sings their praises”.
12. The book sparked off a fierce public debate in France and the newspaper Libération organised a round-table conference at which historians were invited to discuss the issue in the presence of Mr and Mrs Aubrac.
13. An unabridged version of the written submissions – known as the “Barbie testament” – which were signed by Klaus Barbie and lodged by Mr Vergès, his lawyer, on 4 July 1990 with the judge investigating Barbie’s treatment of members of the Lyons Resistance was appended to the book. Many of the questions raised by the first applicant were based on a comparison of that document with the “official” version of history. In the conclusion to his book, he said that there was no evidence in the archives to substantiate the accusation of treachery made by Klaus Barbie against Raymond Aubrac, but that their examination had shown that “unreliable accounts [had] been given at times”. He followed this up with two pages of questions that cast doubt on Raymond Aubrac’s innocence.
14. On 14 May 1997 Mr and Mrs Aubrac brought a private prosecution by direct summons in the Seventeenth Division of the Paris tribunal de grande instance. The summons contained fifty extracts from the book (eighteen from Barbie’s written submissions and thirty-two from the first applicant’s own text). The three applicants were summoned in their capacities as author, accomplice and a party liable for defamation under the civil law. Mr and Mrs Aubrac relied on section 31 of the Freedom of Press Act of 29 July 1881 and the Court of Cassation’s judgment of 4 October 1989 in Pierre de Bénouville. The relevant parts of the summons read as follows:
“When ... Klaus Barbie was brought to France in 1983 he chose to defend himself by seeking to discredit those of his victims who had survived and were still able to make accusations against him by accusing them of treachery. He suggested that Raymond and Lucie Aubrac might be among their number. However, when Raymond Aubrac attended Barbie’s trial after being called as a witness by him, neither Barbie, nor his counsel Mr Vergès, asked him the slightest question, made the least remark or produced any document capable of supporting this vile accusation which remained extremely vague.
At the same time, by a judgment of 30 April 1987 followed by a judgment of 10 February 1988 which has become final, Raymond Aubrac secured Mr Vergès’s conviction for defamation after Mr Vergès had chosen to relay and even to back up his client’s insinuations in a film by Mr Claude Bal. ...
The [first applicant’s] book was published in March 1997 with the title ‘Aubrac, Lyon 1943’. A banner wrapped around the cover proclaimed: ‘A legend put to the test of history.’
There cannot, therefore, be any doubt that this book is aimed almost exclusively at the Aubracs and purports to use rigorous historical method to destroy their so-called ‘legend’ as members of the Resistance.”
15. Mr and Mrs Aubrac then set out those of the applicants’ allegations which they considered defamatory and their reasons for so considering them:
“A. The circumstances of Raymond Aubrac’s arrest in March 1943
The first falsehood of which the Aubracs are accused is that Raymond Aubrac was arrested on 13 March 1943 and not on 15 March; this enables Barbie to assert on the basis of this ‘established fact’ that the only way Raymond Aubrac, who had been arrested on 13 March, was able to attend the meeting on 15 March in the rue de l’hôtel de ville in Lyons was under the control of the French police. ...
B. The allegations relating to Raymond Aubrac’s release in May 1943
An order for Raymond Aubrac’s release was made on 10 May 1943. However, in an autobiographical account published in 1984, his wife puts the date of his release at 14 May while Raymond Aubrac himself hesitates between 14 and 15 May in a deposition made on 21 August 1948 in connection with the second Hardy trial.
... For [the first applicant], there can be but one explanation for this discrepancy between the dates: Raymond Aubrac spent four days collaborating with the divine Barbie who compelled the French judicial authorities to release him. This was confirmed by Lucie Aubrac’s assertion that she had warned the public prosecutor not to oppose release, while [the first applicant] feigns surprise at the lack of concrete evidence of the application. ...
C. Escape from L’Antiquaille Hospital
... this entire chapter returns to the alleged statement by Lucie Aubrac that she secured her husband Raymond’s inclusion not only among the four members of the Resistance who were arrested on 15 March 1943, but also among those who were freed on 24 May, with the sole aim of challenging the account of those who took part in that escape and branding them liars. ...
... [The first applicant’s] inability to rank the documents he cites in order of importance is a cause for consternation here. He considers it a near certainty that Aubrac’s wife ‘hid’ her husband following his release by Barbie, but chooses to ignore the fact that [the circumstances of] his release [were] immediately examined by Frenay, head of the ‘Combat’ movement and subsequently, as was to be expected, subjected to close scrutiny at General de Gaulle’s headquarters in London, and, in particular, the remark made by Frenay – despite its inclusion in the record of his interview in London on 30 June 1943 – that ‘there is no doubt that Aubrac is a fellow who is beyond all suspicion’. ...
D. The defamatory allegations about Caluire
...
Although the debate still rages over the extent to which René Hardy was a willing collaborator and the unnecessary risks taken by the leaders of the ‘Combat’ movement in sending Hardy to Caluire to defend the prerogatives of their leader, prior to Barbie in 1989 no one had ever suggested that Raymond and Lucie Aubrac had played the slightest role in Jean Moulin’s arrest on 21 June, or his identification by René Aubry on 25 June after four days of torture, it again being stressed that Hardy did not know Jean Moulin.
... [The first applicant] had no hesitation in asserting (page 130):
‘It is certain that Raymond Aubrac appears no longer to recollect the meeting with Lassagne and Aubry at Lonjaret’s home on 19 June 1943, although in 1948 he fully admitted that such a meeting had taken place.’
In so doing, [the first applicant] lends credence to the notion that on 19 June 1943 Raymond Aubrac knew all about the proposed meeting in Caluire ...
E. The deliberate confusion between Hardy and Aubrac
In two transitional chapters (Chapters XI and XII), [the first applicant], without citing a single piece of documentary evidence, seeks to cause deliberate confusion by recounting the misfortunes of René Hardy (who, once again, no one doubts helped the Germans although it is not known to what extent he did so voluntarily) and Raymond and Lucie Aubrac, whom no one has ever accused of such collaboration, for good reason. ...
... [The first applicant’s] aim is still the same: to lead people to believe that Aubrac is lying and that what he clearly stated at the material time no longer matters, as he does not repeat it in identical terms fifty years on. ...
F. The offences of defamation are made out
Both the publication of the ‘Barbie testament’ and the comments of [the first applicant] in support of that document render [the applicants] liable for defamatory statements in the form of precise allegations, although sometimes in the form of innuendo, against two specific persons, Raymond and Lucie Aubrac, whose honour and reputation have been considerably tarnished by the said allegations.
The most harmful allegations in a book whose entire content is defamatory are as follows:
A. Allegations against Raymond Aubrac
1. Raymond Aubrac was the French officer whom the Germans used to infiltrate the leaders of the Secret Army upon its formation.
2. Raymond Aubrac was a member of the Resistance whom Barbie turned into one of his department’s agents on his arrest in March 1943.
3. Raymond Aubrac lied about the date of his first arrest: it took place on 13, not 15, March 1943 .
4. Raymond Aubrac, who was controlled by the French police, was not in fact arrested on 15 March 1943, when the French police went to one of his homes.
5. Raymond Aubrac was responsible for the ‘mousetraps’ that were set for members of the Resistance movement in Lyons between 13 and 15 March 1943.
6. Raymond Aubrac was not released on 10 May 1943 pursuant to a freely made decision of the investigating judge ..., but because the German authorities had compelled the French judicial authorities to release him.
7. Raymond Aubrac lied about the date of his release following his first arrest in order to hide the fact that for four days, between 10 and 14 May 1943, he had remained at the disposal of Barbie, the head of the Gestapo.
8. After being informed on Saturday 19 June 1943 of the time and venue of the meeting due to take place in Caluire of various Resistance leaders including Jean Moulin, Raymond Aubrac had informed his wife, who was thus able to inform the head of the Gestapo.
9. Raymond Aubrac was released voluntarily by the Germans on 21 October 1943, when English agents took part in an operation to free one of their agents, Jean Biche, and Barbie, who had been informed of the operation, seized the opportunity to allow his agent Raymond Aubrac to escape.
10. In general, Raymond Aubrac’s conduct with regard to the German authorities in Lyons in 1943 was similar to that of René Hardy, whom the Germans were using at that time.
B. Allegations against Lucie Aubrac
1. Lucie Aubrac had concealed the fact that her husband was released on 10 May 1943, not as a result of action she had taken, but by virtue of an order of the investigating judge ... acting on the instructions of Barbie, the head of the Gestapo.
2. It was not Lucie Aubrac who had arranged the operation that had enabled three members of the Resistance, who had been arrested at the same time as Raymond Aubrac, to escape from L’Antiquaille Hospital on 24 May 1943.
3. After being informed by her husband of the time and place of the meeting at Dr Dugoujon’s home in Caluire on 21 June 1943, Lucie Aubrac had communicated the information to Barbie, the regional head of the Gestapo, on Sunday, 20 June.
4. Lucie Aubrac, whose controlling officer was Floreck, Barbie’s deputy, had agreed to act as liaison officer between her husband and ... Barbie to avoid ‘giving her husband away’.
5. Lucie Aubrac could only have gained access to the premises used by the Gestapo if she was a Gestapo agent.
6. It was with the full agreement of the Gestapo, and more specifically Barbie, that Lucie Aubrac was able to arrange her husband’s ‘escape’ in an operation that was organised not by her, but by the Intelligence Service, on 21 October 1943.
Each of these defamatory statements ... must give rise to liability under section 31 of the Act of 29 July 1881.
These defamatory statements, which accuse [the Aubracs] of treachery and of concealing treachery, constitute a direct attack on their status as founding members and organisers of the Freedom (Libération) Resistance network and, in Raymond Aubrac’s case, as the military commander of the Secret Army.
This reference to section 31 of the Act of 29 July 1881 is inescapable since, as the Criminal Division of the Court of Cassation reiterated in a judgment of 4 October 1989 (in Pierre de Bénouville): ‘... By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members.’ ”
16. In a judgment of 2 April 1998, the tribunal de grande instance began by examining the various alleged defamatory statements in the chronological order of the underlying events and by comparing Klaus Barbie’s signed written submissions with the first applicant’s text, as it considered that the very purpose of the first applicant’s book was to
“compare the allegations of these ‘written submissions’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... The entire book thereafter focuses on this (major) charge of treachery”.
17. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac’s initial arrest in March 1943, his release in May 1943, the escape from L’Antiquaille Hospital, the Caluire episode, events post-Caluire and the escape from boulevard des Hirondelles, and concluded:
“Thus ..., without formally corroborating the direct accusations made in ‘Barbie’s written submissions’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies, and – despite the reservations expressed by the author – surreptitiously renders plausible the accusation of treachery and manipulation made in ‘Barbie’s written submissions’ that constitutes the underlying theme of the entire book. ...
The civil parties are therefore right to consider that the entire book, and particularly the passages [reproduced in the judgment], tarnish their honour and reputation.
The publication of the written submissions signed by Klaus Barbie and the quotation in various parts of the text of extracts from them constitutes defamation by reproduction of libellous accusations or allegations, an offence expressly provided for by section 29, first paragraph, of the Freedom of the Press Act.
As for the author’s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac’s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie’s accusations.”
18. The tribunal de grande instance then considered which section of the Freedom of the Press Act was applicable in the case and, referring to the Act of 5 January 1951 and the Court of Cassation’s case-law, stated that the likening of recognised Resistance movements to the Army and Navy also applied to members of those movements. It noted that for Convention purposes “law” included both legislation passed by Parliament and judicial interpretation of that legislation, provided it was sufficiently settled and accessible. It accordingly found that section 31 of the Act of 29 July 1881 was applicable.
19. It went on to explain that the defamatory statements were deemed to have been made in bad faith and that the burden of proof was on the accused to provide sufficient justification to establish that they had acted in good faith. They had to show that there had been a legitimate interest in publication unaccompanied by personal animosity, that a proper investigation had been carried out and that the tone was measured:
“While the work of historians, who must be permitted to go about their work with total liberty if the historical truth is to be established, may on occasion lead them to make critical assessments containing defamatory accusations against the actors – both living and dead – of the events they are studying, it can only be justified if the historian proves that he has complied with his scientific obligations. ...
As soon as they came into the hands of the investigating judge and even though only the specialists knew what they contained, ‘Barbie’s written submissions’ received a degree of publicity that encouraged rumours to spread. There was, therefore, an argument for full publication, provided it was accompanied by an explanation of the historical background and a critical analysis that would enable the reader to form a considered opinion on the weight to be attached to the last statements of the former Nazi officer.”
With that requirement in mind, the tribunal de grande instance found that the characteristic features of the applicant’s book were the excessive importance given to ‘Barbie’s written submissions’, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac’s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L’Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events.
The tribunal de grande instance set out in detail and gave reasons for each of these assertions and concluded:
“... judges are required by the nature of their task not to abdicate when confronted with the scholar (or someone claiming to be such) and to decide the case in law, thereby contributing in their own way to the regulation of relations in society.
Thus, judges cannot, in the name of some higher imperative of historical truth, abandon their duty to protect the right to honour and reputation of those who were thrust into the torment of war and were the unwilling but courageous participants therein.
Immortalised by their contemporaries as illustrious myths, these men and women have not for all that become mere subjects of research, shorn of their personality, deprived of sensibility or divested of their own destinies in the interests of science.
Because he has forgotten this and has failed to comply with the essential rules of historical method, the accused’s [the author of the book’s] plea of good faith must fail.”
20. The tribunal de grande instance therefore found the first two applicants guilty, as principal and accomplice respectively, of the offence under sections 29, first paragraph, and 31, first paragraph, of the Act of 29 July 1881 of public defamation of Mr and Mrs Aubrac in their capacity as members of a recognised Resistance movement.
It sentenced the first applicant, as the principal, to a fine of 100,000 French francs (FRF) and the second, as an accomplice, to a fine of FRF 60,000. It also found them jointly and severally liable with the third applicant to pay Mr and Mrs Aubrac damages of FRF 200,000 each. It dismissed an application for an order for the book’s destruction, but made an order for publication of a statement in five daily newspapers and for each copy of the book to carry a warning in like terms. Lastly, it found the third applicant liable under the civil law.
21. The applicants appealed against that decision.
22. In a judgment of 10 February 1999, the Paris Court of Appeal dismissed objections of nullity that had been made by the applicants and, on the merits, examined the following questions in turn: whether the prosecution was lawful, legitimate and necessary, whether the remarks were defamatory, whether the defendants had acted in good faith and whether section 31 of the Act of 29 July 1881 was applicable.
23. As to whether the remarks were defamatory, the Court of Appeal endorsed the reasoning of the court below and added that there were a number of factors which indicated that the author and publisher had decided to make the Aubracs’ alleged betrayal the subject of their publication; these included the editorial presentation, the general structure of the book, the wraparound banner that juxtaposed ‘legend’ and ‘history’, and the conclusion to the book which was on the same theme.
24. With regard to the question of defamation by innuendo, the Court of Appeal rejected the criticism of the tribunal de grande instance’s reasoning:
“Having thus decided how the book would be balanced: systematic doubt where the Aubracs are concerned and the use of Barbie’s document as a reference – albeit one to be treated with caution – [the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac’s account.
To take the two episodes to which the defence refer: as regards the escape from L’Antiquaille, the author is not merely being irreverent but clearly makes accusations of inaccuracy, contradiction (page 268) and of misrepresenting the truth (page 80): there is no better way of insinuating that someone is lying.”
25. The Court of Appeal then examined the applicants’ plea that they had acted in good faith and rejected it.
It did not deny that there could be an interest in analysing major events in the history of the Resistance and found that although some of the expressions used in the book were unpleasant they did not suffice to establish the existence of personal animosity. However, it concluded that the first applicant had failed to act with the necessary rigour for the following reasons:
“Anyone who alleges a specific fact must first seek to verify its accuracy. Although this requirement is general, it is especially justified when the accusation is particularly serious – such as of an act of treachery leading to the death of the main Resistance leader – and when, as a historian, its maker is accustomed to questioning sources.”
The Court of Appeal then proceeded to identify the factors from which it had concluded that that requirement had not been complied with: the first applicant’s failure to consult the file on the investigation that was conducted after the arrests in March 1943, even though it would have enabled him to establish the date of Raymond Aubrac’s arrest and whether he was already in custody when his home was searched; his lack of interest in the testimony of direct witnesses from that period who were still alive when the book was written; and his failure to investigate certain documents. Noting repeated failures by the first applicant to exercise sufficient caution (he had published the Barbie document without subjecting it to genuine critical analysis, had directly accused the civil party of lying and had dismissed the boulevard des Hirondelles operation by members of the Resistance led by Lucie Aubrac as a sham), the Court of Appeal rejected his plea of good faith.
26. As regards the decision to apply section 31 of the Act of 29 July 1881, the Court of Appeal referred to section 28 of the Act of 5 January 1951 and to two judgments of the Court of Cassation and found that the civil parties had been defamed exclusively with regard to their activities as members of the Resistance “since [the first applicant’s] entire thesis conveyed to the reader the notion that they were guilty of treachery”. It rejected an argument regarding the quality of the statute that had been applied in the case before it, noting that it was some forty years old and had been the subject matter of “settled and unambiguous case-law of the highest court for some twenty years”.
27. Finding that the sentences that had been handed down were just and proportionate, the Court of Appeal upheld all the provisions of the judgment of the court below.
28. The applicants appealed to the Court of Cassation, pleading, inter alia, Articles 7 and 10 of the Convention on the basis that the statutory provision that had been applied was neither clear nor precise and that its interpretation by the courts was inaccessible, unforeseeable and too wide. In their final two grounds of appeal, they alleged that the Court of Appeal had failed to give reasons for its decision to hold the applicants civilly and criminally liable for public defamation.
29. In a judgment of 27 June 2000, the Court of Cassation dismissed the appeal, holding, inter alia, that the court below had properly justified its decision. It found that the Court of Appeal had applied the law correctly:
“By virtue of a combination of section 28 of the Act of 5 January 1951 and sections 30 and 31 of the Act of 29 July 1881, firstly, these provisions afford protection against defamation to certain recognised Resistance movements which are likened to the regular Army and, secondly, this protection extends to members of these movements if the defamatory statement concerns their status or actions as members.”
It examined the final two grounds of appeal together and dismissed them, holding:
“The Court of Cassation is satisfied from the wording of the judgment and its examination of the procedural documents that the Court of Appeal has, for reasons which are neither insufficient nor self-contradictory, firstly, correctly analysed the meaning and scope of the impugned statements and thus identified all the constitutive elements of fact and intent of the offence of which it found the accused guilty and, secondly, used its unfettered discretion to analyse the special circumstances and concluded that the accused’s plea of historical criticism in good faith had to be rejected.”
30. Freedom of the Press Act of 29 July 1881 (as worded at the material time)
“It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters.
It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”
“Anyone who by one of the means set out in section 23 makes a statement that is defamatory of a court of first instance or of appeal, the Army, Navy or Air Force, a constitutional body or a public authority shall be liable on conviction to between eight days’ and one year’s imprisonment and a fine of between 300 and 300,000 francs, or to one only of these penalties.”
“Defamation by like means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement shall be punishable by the same penalty.
Defamatory statements about the private lives of the above persons shall be punishable under section 32 below.”
“Anyone who by any of the means set out in sections 23 and 28 makes a statement that is defamatory of private individuals shall be liable on conviction to between five days’ and six months’ imprisonment and a fine of between 150 and 80,000 francs, or to one only of these sentences.
...”
Law no. 51-19 of 5 January 1951
“For the purposes of section 30 of the Act of 29 July 1881, recognised Resistance movements and networks shall be deemed to form part of the Army and Navy.”
Extracts from the Court of Cassation’s case-law
“The originating summons referred only to section 32 of the Act of 29 July 1881, which makes it an offence to make statements that are defamatory of private individuals; the statements which the tribunals of fact found to be defamatory amounted, on the contrary, to offences under sections 30 and 31 of the Act, as the allegations were made against a Resistance group that was likened to the regular Army, or against its leader acting in that capacity and in respect of his functions.”
“When the defamatory accusation is made against the leader of a Resistance group that is likened to the regular Army acting in that capacity and with respect to his functions ..., a charge will lie only under section 31 ...”
“By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-22150
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SCHULTZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Anna Schultz and Marian Schultz, are Polish nationals, a married couple who were born on 20 February 1960 and 18 October 1956 respectively and live in Pątnów.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is a mother of nine children: Em. K., born 1981, Ew. K., born in 1982, Dor. K., born in 1984, Dom. K., born in 1985, M. K., born in 1987, A.K., born in 1988, K. K., born in 1989, U. K., born in 1991 and M. M., born in 1994.
On 24 February 1989 the Konin District Court divested the first applicant of her parental rights in respect of her then six children: Em. K., Ew. K., Dor. K., Dom. K., M. K. and A. K. Later on, M. K. and A. K. were adopted by another family, and for Em. K., Ew. K., Dor. K. and Dom. K. the court established a foster family, the first applicant's parents, the grandparents of the children.
On 20 January 1993 the first applicant's first husband R. K., the father of four of her children: Dom. K., M. K., A. K. and K. K., died.
On 6 February 1993 the Konin District Court restricted the exercise of the applicant's custody rights in respect of the other two children, K. K. and U. K., in such a manner that the court appointed a guardian to monitor the family. In both decisions, given in 1989 and in 1993, the court considered that the mother had been manifestly neglecting her parental duties towards the children and abused alcohol.
In 1994 M. M. was born. Later on, S. Miel. was established to be the father of this child in a judgment of the Konin District Court of 24 April 1995.
In May 1998 Z. S. and F. S., the first applicant's parents, requested the Konin District Court to divest the first applicant of her parental rights and establish them grandparents as a foster family also for K. K., U. K and M. M.
By a decision of 8 May 1998 the court divested the first applicant of her parental rights in respect of K. K., U. K and M. M., decided to place them in public care and appointed guardians for all three children. The court also refused to appoint the grandparents as the foster family.
The court first recalled the decisions of 1989 and 1993 as the background of the case. The case-files of these two sets of the proceedings were before the court. It further noted that even after the decision of 1993 had been given, the first applicant exercised her parental rights in a manner open to criticism - she abused alcohol, was promiscuous and did not take proper care of the children, who were dirty and did not have adequate clothes. The efforts of the guardians, the local social assistance worker and the police to make the applicant comply with her parental obligations had proved successful only for short periods of time, after the talks they had with her.
After S. Miel., the father of M. M., had died on an unspecified date, the applicant began a relationship with another man, S.M. At the beginning she slightly improved her ways towards the children, but later on they started to drink alcohol together, S.M. battered the first applicant and her children, and on several occasions the police intervened.
It further noted that on 6 December 1997 the first applicant left home without leaving any contact address. S.M. and her parents took care of the three children. The grandparents had been unable to take proper care of the older four children, in respect of whom they had been appointed foster parents in 1989. The flat was dirty and they lacked basic personal hygiene habits. The flat was also relatively small and disorderly and the children did not have any table on which to do their homework. Despite the fact that the foster family had an income of 3200 PLN, which could not be considered small, this was not reflected in the quality of material conditions of the children's lives. The grandparents also had a certain tendency to abuse alcohol, and did not deny, when asked by the court, that from time to time they liked to drink. They were unwilling to co-operate with the guardians appointed by the court. In particular the first applicant's mother had tried to hide from the guardians the educational problems she had with the eldest daughter Em., whose behaviour had begun to resemble that of her mother. They also failed to comply with the guardian's suggestions to try to isolate the children from the pathogenic influence of the mother.
Since the three children had been placed in public care, their older siblings, grandparents and mother visited them very often. These children were nervous, seriously retarded in their emotional and intellectual development and wet their beds during the night.
It further considered that the conduct of the first applicant towards her children was such as to justify the conclusion that she had been consistently neglecting them. This was highlighted by, inter alia, the fact that in December 1997 she had left home - not for the first time - for several months, leaving no contact address and leaving the children under the care of her then partner, who had beaten them in the past. The court observed that the first applicant must have had strong sexual urges, as shown by the number of children she had by different men. She had often and casually taken up new relationships with men and was entirely absorbed by her personal life, to the detriment of the children. This demonstrated that she lacked the responsibility and maturity which were necessary for ensuring a proper care for her children and for ensuring that they were brought up in an atmosphere of love and stability. The court stressed that it had been the first applicant's parents themselves who had requested that she be divested of her parental rights. The first applicant, in the light of her consistent conduct, had not given any guarantees that she would mend her ways. The prior decisions of the courts to divest her of parental rights were proved to be correct, and the same decision in respect of the further three children was called for.
The court further considered the request of the first applicant's parents to appoint them as a foster family. The court referred to the best interest of the three younger children, who, in view of their state needed conscientious professional care. The ageing grandparents were clearly unable to ensure such care for them, as shown by the fact that their care in respect of the older children had already proved inadequate. They limited their role to ensuring basic living conditions, but their educational skills left much to be desired.
The court acknowledged that the first applicant's parents loved their grandchildren, but the emotional state of the younger children and the delays in normal development warranted their placing in public care. This solution was dictated by their best interests: they should be permanently separated from their mother so that she would not have any detrimental influence on their education. Thus, the placing of the children in public care, with a view to a possible adoption, would ensure their normal and healthy development.
The following evidence was relied on: the testimony of the first applicant's parents, her own testimony, the case-files of the previous proceedings, the testimony of the guardian appointed to monitor the family, the reports she had prepared from the monitoring exercise and the report on the children drafted by the staff of the local emergency public care centre in which the three children had been placed.
The court relied on Article 111 and 109 §§ 1 and 2, item 5, of the Family and Custody Code.
The first applicant and her parents appealed against this decision.
On 7 August 1998 the Konin Regional Court upheld the contested decision. The court observed that the lower court, when taking its decision, had primarily had regard to the best interests of the children and had carefully reasoned its decision. It had had regard to the opinion prepared by the local public care centre as to the children's state, which certified that they had been badly neglected. It had also questioned the guardian, who stated, in particular, that the first applicant's parents used to drink occasionally, as they had themselves confirmed before the court. The lower court had further taken into consideration that the first applicant's parents lacked parenting skills as shown by the difficulties they had with the older children: Em. had schooling problems and was very often absent, Dor. was in a school for retarded children and therefore needed special attention, Dom. was neglected, dirty, and also had school problems and was, as a result, ostracised by other pupils.
It was stressed that the placing of the children in a public care did not mean that all contacts with their family would be cut. It remained open to them to visit the children at the children's home, and to take them for holidays, if the family court decided that this was appropriate.
It further examined the first applicant's appeal. It noted that she had stated that she had a new partner whom she wished to marry. This, in the court's opinion, did not amount to a convincing argument that she would mend her ways: in the past it was primarily the applicant's new relationships with her successive partners which had made her focus entirely on her personal life and neglect her mothering obligations. Thus, the fact that she had a new partner did not guarantee in itself that she would take adequate care of her children. It also noted that the new partner, the second applicant, did not himself provide any guarantees in this respect, given that he had allowed her to live with him for four months and had disregarded the fact that she left her children for several months without any information about her whereabouts.
The court concluded that the decision of the lower court, upheld by the Konin Regional Court, was lawful and justified.
The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) of 1964 provides:
Article 109
“1. If the interests of a child are in danger, the court shall issue a relevant order.
2. In particular, the court may:
5 ) decide that the child should be placed in the custody of a public care institution (...)”
Pursuant to Article 111, if parental rights cannot be exercised due to a permanent obstacle, or if parents abuse their rights, or neglect their children in a flagrant manner, the family court shall divest them of their parental rights. If the grounds on which the parental rights had been withdrawn, cease to exist, the court may restore the rights to the parents.
Under Article 112.1 of the Code, the duties and rights connected with carrying out the day-to-day care and educational obligations in respect of the children who have been placed in a public care institution or with a foster family, are carried out by the institution or by the foster family.
According to Article 113 of the Code, the family court shall, if the best interest of the child so requires, prohibit access to the child by parents who have been divested of their parental rights.


ITEMID: 001-96559
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF STOYAN MITEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste
TEXT: 7. On 17 August 1997 the applicant was arrested after neighbours found him beating another elderly individual, who later died from his injuries.
8. In a judgment of 10 December 1998 the Burgas Regional Court found the applicant guilty of premeditated murder and sentenced him to seventeen years’ imprisonment, to be initially served in a high security prison. The applicant appealed against the judgment.
9. In a judgment of 15 November 1999 the Burgas Court of Appeal upheld the lower court’s judgment. The applicant lodged a cassation appeal.
10. Two hearings before the Supreme Court of Cassation were adjourned because of the applicant’s failure to attend them as a result of his deteriorating medical condition.
11. On 21 July 2000 the Supreme Court of Cassation ordered the applicant’s release on bail. The guarantee was deposited on 24 July 2000 and the applicant was released the next day.
12. Subsequently, several more hearings were scheduled, but none were conducted due to the deteriorating medical condition of the applicant.
13. On 14 December 2001 the applicant passed away.
14. In view of the applicant’s death, by a decision of 19 March 2002 the Supreme Court of Cassation quashed the judgment of the Burgas Court of Appeal and discontinued the criminal proceedings against him.
15. The applicant was a pensioner who retired on medical grounds. After a domestic accident in 1993 he became disabled, walked with a stick and limped because his left leg had become shorter than his right by six centimetres. The applicant was apparently a heavy smoker.
16. At the time of his arrest on 17 August 1997 the applicant allegedly sustained an injury to his testicles. On 20 February 1998 his lawyer requested the courts to order that his client be provided with hospital treatment for the aforementioned injury. It is unclear whether the applicant received any such treatment. At the time, he was held at the detention facility of the Burgas Investigation Service.
17. On 21 November 1997 the applicant was transferred to Stara Zagora Prison where he was examined by a doctor. He complained of poor blood circulation in both legs and was found to have angiopathy. It does not appear that he received any specific treatment for this condition. The applicant was also diagnosed with left-sided inguinal hernia and was prohibited physically intensive work.
18. On 11 February 1998 the applicant was examined by the prison doctor, who found that the applicant’s inguinal hernia was progressing and ordered that it be operated on.
19. On 4 March 1998 the applicant was transferred to Sofia Prison Hospital where on 10 March 1998 the operation was performed. The applicant remained hospitalised for at least another ten days, when his stitches were removed. He was discharged on an unspecified day, advised not to lift anything heavy and was given thirty days’ home leave.
20. On an unspecified date before May 1998 the applicant returned to Stara Zagora Prison.
21. Some time prior to July 1998 the applicant developed an infection or complications which affected his urinary tract and he had difficulty urinating. It is unclear whether he received any treatment for this condition and when it cleared up.
22. At around 10:30 a.m. on 28 January 2000 the applicant, while physically exerting himself for an unspecified reason, developed a very severe headache, his mouth became crooked, he started having difficulty speaking and his right limbs became numb. Upon examination, he was found to have very high blood pressure. The applicant was taken to the emergency room of Stara Zagora hospital where various tests were performed, including a CAT scan (computed tomography) of the brain. As a result, it was discovered that he had suffered a stroke and was diagnosed with the following:
“Brain atherosclerosis. Arterial hypertension - 3rd stage. Transient disturbance of the brain’s blood circulation in the left carothic system (stroke). Right-sided hemiparesis.”
23. The applicant returned to the medical ward in Stara Zagora Prison where he was placed under medical supervision and ordered to remain in bed. He was prescribed daily doses of Agapurin, Vasopren and Cinnarizine.
24. As the applicant’s medical condition had stabilised, on 9 February 2000 the prison warden proposed that the applicant be transferred to Sofia Prison Hospital for further treatment and rehabilitation.
25. On 18 February 2000 the applicant was transferred to the neurological ward of Sofia Prison Hospital.
26. At Sofia Prison Hospital the applicant was prescribed a medication regime aimed at improving the blood circulation to his brain. On 23 February 2000 he also started physiotherapy.
27. The applicant’s medical records from his stay at this facility indicate that his medical condition was regularly monitored, but sometimes not every single day. He also appears to have had regular contact with and access to doctors or medical personnel, who addressed, in so far as possible, the complaints or complications he had.
28. On 1 March 2000 a medical commission examined the applicant and concluded that it was not necessary to move him to an outside civil medical facility, as he was showing signs of improvement and the required treatment could be provided adequately at Sofia Prison Hospital.
29. The applicant’s medical record indicates that on 20 March 2000 he said he had fainted while being led out to see a visitor.
30. It appears that the applicant’s medical condition gradually began to deteriorate. Towards the end of April or the beginning of May 2000 it worsened considerably.
31. On 4 May 2000 another CAT scan of the applicant’s brain was performed, which found evidence of a five millimetre encephalomacic lesion in the internal brain cavity.
32. A medical report by the head of the neurological ward of Sofia Prison Hospital indicated that the applicant’s diagnosis was as follows:
“Generalised and brain atherosclerosis; ischemic (thromboembolic) brain stroke; right-sided hemiparesis; partial aphasia; arterial hypothermia – 3rd stage”.
It also specified that as a result of the lack of specialised rehabilitation and physiotherapy the applicant’s ability to move would continue to deteriorate, as had his speech as a result of the lack of a logopaedic specialist. The doctor concluded the following:
“the patient is unsuitable to remain in [prison] conditions of high or standard level of security. [The applicant] requires constant monitoring of his arterial pressure, neurological status and to be given therapy...”.
33. On 9 May 2000 a medical commission found the applicant’s blood pressure too unstable, and that this precluded his participation in the hearing of that day. In addition, it reasoned that if the applicant’s medical condition did not improve, due to the heightened risk of a second stroke it would be necessary to assess whether to propose that his detention be replaced with another measure to secure his participation in the court proceedings.
34. On 15 May 2000 a medical commission of three doctors from the Hospital of the Ministry of Internal Affairs prepared a report on the applicant’s medical condition. They found that in spite of his initial improvement by following the prescribed treatment, the applicant’s condition was deteriorating. They proposed that the applicant be released from detention for an initial period of three months in order to receive adequate treatment for his condition in a specialised civil medical facility. The report was sent to the warden of Stara Zagora Prison.
35. On 18 May 2000 the warden of Stara Zagora Prison proposed to the Burgas Regional Court that the applicant’s detention be replaced with another measure to secure his participation in the court proceedings. He based his proposal on the findings of the medical commission of 15 May 2000 and the need for the applicant to receive treatment in a specialised rehabilitation centre.
36. On an unspecified date, the Burgas Regional Court apparently refused to replace the applicant’s detention with another measure to secure his participation in the court proceedings. The applicant appealed, but on 2 June 2000 the Supreme Court of Cassation upheld the lower court’s decision. The latter court based its decision on the contradictions it had found in the medical reports prepared since March 2000 regarding the applicant’s medical condition, his ability to move, the course of the treatment required and the place most suitable to obtain it. The court concluded the following:
“it cannot be unequivocally concluded that the applicant’s [medical] condition had deteriorated to such an extent as to exclude the possibility that he might be moved or transported and, accordingly, that [the applicant] might abscond or reoffend”.
37. On 20 June 2000, in spite of the medical restriction, the applicant was taken to court to attend a hearing without an escort or a wheelchair. When he returned at 11.45 a.m. he had very high blood pressure. He was given medication and by 4.30 p.m. his blood pressure had been lowered to a safer level.
38. On 1 July 2000 an interview with the applicant appeared in the national newspaper Sega which detailed his situation in Sofia Prison Hospital. In it the applicant expressed his desire to be released from prison on medical grounds and his fears that this would not happen and that he would die in detention before his case was examined by the courts.
39. Acting on a new petition for release, on 21 July 2000 the Supreme Court of Cassation ordered the applicant’s release on bail. It based its decision on the proposal of the warden of Stara Zagora Prison of 18 May 2000 and the findings of the medical commission of 15 May 2000. The court noted the inability of the applicant to move on his own and thus to abscond or reoffend and also the need for him to receive treatment as an outpatient in a medical facility, which ruled out the imposition of house arrest as an alternative to detention.
40. The applicant was treated at various medical establishments following his release on bail, but with no viable improvement. For example, from 15 to 20 September 2000 he was a patient at the Neurological Clinic of the Military Medical Academy but was discharged
“due to [his] financial constraints [and] with no improvement in the condition”.
41. A report from the same facility of 8 November 2000 found, inter alia, that the applicant had severely damaged psychological and intellectual capacity due to the numerous strokes he had suffered as a result of the ageing of his arteries and his arterial hypertension. Given the damage caused to his brain he could no longer be considered sane and the likelihood that his condition would improve was minimal.
42. On 14 December 2001 the applicant passed away, the cause being “sudden cardiac arrest”.
43. Section 10 of the Execution of Sentences Act, as in force at the relevant time, provided that prisons might also accommodate persons who have been placed in detention.
44. In addition, section 20c of the Act, as in force at the relevant time, provided that such persons received free medical services at State and municipal medical facilities, as well as at those operated by the Ministry of Internal Affairs.
45. Finally, section 22 of the Act, as in force at the relevant time, provided that if medical establishments attached to prisons were not adequate for the provision of a required treatment, then the detained person was to be sent to a civilian medical facility for that treatment.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-68713
LANGUAGEISOCODE: ENG
RESPONDENT: HUN;ROU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MONORY v. ROMANIA AND HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8 by Romania;Not necessary to examine whether Art. 13 violated by Romania;Violation of Art. 6-1 by Hungary;Non-pecuniary damage - financial awards (for Romania);Non-pecuniary damage - financial awards (for Hungary);Costs and expenses partial award - domestic proceedings
TEXT: 8. The applicant was born in 1946 and lives in Nagymaros, Hungary.
9. In 1994 the applicant married Ms C.M., who is a national of both Romania and Hungary. On 16 February 1995 their daughter V. was born. The parents had joint custody in respect of the child, according to Hungarian law. They lived in Nagymaros.
10. In December 1998 they visited the wife’s family in Romania. The applicant returned to Hungary, while C.M. stayed in Romania with V. and promised to return by 30 January 1999.
11. On 4 January 1999 C.M. filed for divorce, custody of V. and maintenance before the Satu Mare District Court in Romania. On 17 January 1999, she informed the applicant by telephone that she had decided to live in Romania and would not allow him to take V. to Hungary, despite him still being her husband and having joint custody of their daughter.
12. In a decision of 8 October 2003, the Satu Mare District Court established the residence of the child with her mother, pending the outcome of the divorce proceedings and required the applicant to pay alimony for his daughter. It also granted the applicant visiting rights to his child. On 19 February 2004 the decision became final.
13. In the meantime, on 20 January 1999 the applicant submitted a request for the return of his daughter to Hungary under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was submitted through the Hungarian Ministry of Justice (“the Hungarian Ministry”) to the Romanian Ministry of Justice (“the Romanian Ministry”). He argued that V. was the victim of international kidnapping and had been retained in Romania unlawfully within the meaning of Article 72 § 1 of the Hungarian Code on Family Law.
14. The Romanian Ministry, acting as the Central Authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Satu Mare District Court. On 8 June 1999 the District Court found no violation of the relevant Articles of the Hague Convention and refused the applicant’s request. It considered that the retention of the child was not unlawful in so far as the applicant did not have exclusive custody rights in respect of his daughter and, thus, Article 3 of the Hague Convention was not applicable. The court considered that, in any case, the return of the child would constitute a great risk for her since she was already integrated into the new environment created by the mother during her stay in Romania.
15. On 5 October 1999 the Hungarian Nagymaros Guardianship Authority, at the applicant’s request, declared that C.M. had not instituted the correct administrative proceedings, as required by the Hungarian Code on Family Law, with respect to their daughter’s lawful removal to, and retention in Romania. It proposed that the child’s residence be established with her father.
16. On 22 October 1999 the Satu Mare County Court dismissed the applicant’s appeal against the decision of 8 June 1999. It recalled that the applicant did not have exclusive custody rights with respect to his daughter. It further considered that the return of the child would deprive the mother of the exercise of her parental rights. Lastly, the county court stated that, as long as the marriage of the parents was still valid, they should have the custody matters resolved by a competent court.
17. The Romanian Ministry appealed on points of law against this decision, alleging that the county court had incorrectly interpreted the applicable law and the facts of the case. They recalled that, according to the Hague Convention, the court should have applied Hungarian law, by which the retention of the child across the border by her mother without the father’s consent was illegal.
18. On 2 February 2000 the Oradea Court of Appeal dismissed the appeal. It recalled that under Hungarian law the parents exercised parental rights jointly. However, due to the concrete family situation, it was normal that the parent living abroad would have to make more effort in order to exercise these rights. Furthermore, it considered that the child had already become integrated into the new environment. It held therefore that it was in the best interests of the child that she remain with her mother.
19. In parallel, on 28 April 1999 the applicant filed for the custody of V. before the Vác District Court in Hungary. On 17 May 1999 the applicant requested the court to proceed with the case as a matter of urgency and to hear witnesses.
20. On 21 May 1999 the District Court, via the Ministry of Justice, notified the defendant in Romania of the action.
21. On 30 August 1999 the applicant requested, by way of an interim measure, that V. be temporarily placed in his care and that the mother’s custody rights be terminated.
22. On 8 September 1999 the District Court held a hearing, dismissed the applicant’s request for interim measures and suspended the case until the proceedings on the Hague Convention issues had been finalised. The District Court noted that the divorce proceedings before the Romanian Satu Mare District Court had also been suspended on an earlier date for the same reason. The applicant appealed against this decision on 16 September 1999.
23. On 21 September 1999 the Pest County Public Prosecutor’s Office interceded in the proceedings for the applicant and endorsed his appeal of 16 September filed against the decision of the Vác District Court. On 30 September 1999 both the applicant’s and the public prosecutor’s appeals were served on the defendant, who received them on 28 December 1999.
24. On 29 October 1999 the applicant requested the District Court to grant him, by way of an interim measure, custody of the child, to terminate the mother’s parental rights and to proceed with the case urgently.
25. On 31 January 2000 the applicant renewed his request for custody of the child. He also filed a motion for bias against the District Court and the presiding judges. He renewed this motion on 21 February 2000.
26. On 29 February 2000 the Pest County Regional Court upheld the dismissal of the applicant’s request for interim measures but instructed the District Court to resume its proceedings. This decision, notified via the Hungarian Ministry, reached the defendant on 29 May 2000.
27. On 19 May 2000 the District Court ordered that a study be made in the homes of both parties in order to ascertain their living conditions. A study was carried out in the applicant’s home on 8 June 2000. The order was served on the defendant on 10 July 2000 and the relevant documents forwarded on 23 January 2001 to the Ministry of Justice with a view to carrying out a similar study in the defendant’s home in Romania.
28. The applicant’s repeated motions for bias were dismissed on 27 September, 26 and 30 October and 11 December 2000.
29. On 5 January 2001 the District Court joined to the proceedings the applicant’s further claim for divorce which had been filed on 3 July 2000. The defendant was notified of this step on 1 March 2001.
30. On 21 and 30 January 2001 respectively, the applicant submitted further documents and requested the court to summon other witnesses.
31. The applicant’s renewed request of 31 January 2001 for an interim measure was dismissed by the District Court on 15 February 2001.
32. On 6 June 2001 the District Court held a hearing and heard four witnesses. The defendant failed to appear. The court therefore requested her to submit her observations on the minutes of the hearing within 15 days and ordered her to submit a written response to the applicant’s claim for custody of the child.
33. On 8 June 2001 a lawyer practising in Hungary informed the court that the defendant had authorised him to represent her in the case. On 2 July 2001 the defendant submitted her counter-claim and motions for evidence.
34. On 5 July and 30 October 2001 the Hungarian Ministry made an enquiry with its Romanian counterpart as to whether the envisaged study of the defendant’s home could be carried out. In their reply of 10 December 2001, the Romanian Ministry stated that the relevant documents had been lost.
35. A hearing was held on 7 November 2001 at which the District Court heard a witness. The defendant’s representative informed the court that the request to carry out a study of the defendant’s living conditions had been served on the defendant by mistake. Consequently, the District Court asked the Hungarian Ministry to send the request again to the Satu Mare District Court.
36. On 8 November 2001 the District Court refused to regulate the applicant’s access rights by way of an interim measure.
37. On 22 and 29 November 2001 the District Court invited the applicant to update the addresses of two of his witnesses who could not be summoned. On the previous day the applicant had appealed against the order of 8 November 2001.
38. On 19 December 2001 the District Court held a hearing and heard witnesses. It also set a statutory three-month time-limit for the parties to reconsider or confirm the continuation of the divorce proceedings.
39. Meanwhile, on 14 November 2001 the witness requested by the Vác District Court was heard by the Satu Mare District Court. The minutes were forwarded to the Hungarian Ministry and their translation was completed on 3 December 2001 and 27 February 2002, respectively.
40. On the applicant’s appeal, the Pest County Regional Court quashed the order of 8 November 2001 and requested the District Court to take a new decision.
41. After the Hungarian Ministry had replaced the lost documents, on 13 February 2002 the Romanian Satu Mare District Court carried out the requested home study. The translation of the resultant documents reached the Hungarian Vác District Court on 21 May 2002.
42. Meanwhile, on 15 February 2002 the District Court regulated the applicant’s access rights. This order was amended by the Regional Court on 2 April 2002.
43. On 26 March 2002 the Pest County Regional Court rejected the applicant’s renewed motion for bias against the Vác District Court and fined him 15,000 Hungarian forints (HUF) for having repeatedly challenged judges without substantiating the requests.
44. On 27 May 2002 the District Court appointed an expert in child psychology. The expert’s examination of V., scheduled for 2 July 2002, was cancelled as the defendant was unwilling to attend because she was unable to meet the travel costs.
45. On 16 July 2002 the District Court dismissed the applicant’s request for an interim measure of 4 July 2002 to order that V. spend her summer vacation in Hungary.
46. The defendant failed to appear with the child at examinations scheduled for 2 July and 11 November 2002, 13 January and 26 February 2003. On 4 December 2002 the District Court imposed a fine of HUF 20,000 on the defendant. On 22 January 2003 the court warned the defendant that she was obliged to appear at the examinations. At a later date, the court amended the instructions for the expert and ordered her to assess who was the most suitable parent to raise the child. The defendant was examined on 14 May 2003.
47. On 26 June 2003 the expert submitted her opinion, finding the mother more suitable to raise V.
48. On 4 July 2003 the District Court, as an interim measure, regulated the applicant’s access rights for the summer of 2003.
49. The District Court held hearings on 12 September and 29 October 2003. In a judgment delivered on the latter date, the court declared the couple’s divorce and divided the matrimonial property. It also granted the defendant custody of V. and ordered the applicant to pay her maintenance of HUF 10,000 per month.
50. On 5 January 2004 the applicant appealed against the judgment. He withdrew the appeal 15 days later. Consequently, on 21 January 2004 the judgment became final.
“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...”
“For the purposes of this Convention –
a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;...”
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures -
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child...”
“The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”
“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”
52. Paragraph 68 of the Explanatory Report on the 1980 Hague Child Abduction Convention drafted by Elisa Pérez-Vera in 1980, interprets Article 3 of the Convention as follows:
“The first source referred to in Article 3 is law, where it is stated that custody ‘may arise ... by operation of law’. That leads us to stress one of the characteristics of this Convention, namely its application to the protection of custody rights which were exercised prior to any decision thereon. This is important, since one cannot forget that, in terms of statistics, the number of cases in which a child is removed prior to a decision on its custody are quite frequent. Moreover, the possibility of the dispossessed parent being able to recover the child in such circumstances, except within the Convention’s framework, is practically non-existent, unless he in his turn resorts to force, a course of action which is always harmful to the child.”
The same Report, in its paragraph 84, comments on Article 5 in the following terms:
“...although nothing is said in this article about the possibility of custody rights being exercised singly or jointly, such a possibility is clearly envisaged... the whole tenor of Article 3 leaves no room for doubt that the Convention seeks to protect joint custody as well. As for knowing when joint custody exists, that is a question which must be decided in each particular case, and in the light of the law of the child’s habitual residence.”
“(1) A court shall - in accordance with Section 1 - enforce the parties’ right to have their disputes determined in fair proceedings and within a reasonable length of time.”
“(1) The task of a law court is to endeavour to find out the truth in accordance with the aim of the present Act. The court shall, therefore, see in its line of duties that the parties exercise their rights properly throughout the procedure and meet the obligations they are bound to meet in the lawsuit. The court is obliged to provide the necessary information to a party who has no counsel and to remind him of his rights and obligations. The court shall consider pleas and declarations submitted by a party not by their formal designation but according to their contents.
(2) The court shall see, in its line of duties, that cases be tried thoroughly and within a reasonable length of time.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109335
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GAGLIANO GIORGI v. ITALY [Extracts]
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible (Article 35-3-b - No significant disadvantage;Continued examination not justified;Case duly considered by a domestic tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Mr Mario Gagliano Giorgi, is an Italian national who was born in 1949 and lives in Milan. The application was lodged with the Court on 31 May 2007. The applicant was represented before the Court by Mr B. Nascimbene and Ms M.S. Mori, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and their co-Agent, Mr N. Lettieri.
2. The facts of the case, as set out by the parties, may be summarised as follows.
3. The applicant was an inspector with the Immigration Bureau of the Milan Police Authority (Questura).
4. By a decree of 5 September 1988, served the following day, the Milan District Court public prosecutor’s office informed the applicant that proceedings had been instituted against him for extortion (Articles 317 and 81 of the Criminal Code) and ordered searches of the applicant’s house, car and office, which were carried out on 6 September 1988.
5. On 9 September 1988 the applicant’s computer was seized.
6. On 20 March 1989 the investigating judge at the Milan District Court ordered new searches, which were carried out the following day. Also on 20 March 1989, the judge issued a warrant for the applicant’s arrest on charges of extortion (Articles 317 and 81 of the Criminal Code) and forgery (Article 479 of the same Code). The applicant was accused of having forced or pressured aliens in need of residence papers to pay him sums of money in order to obtain their papers from the Immigration Bureau, and of having altered the record of statements by a foreign national who had denounced this practice. The judge also ordered the arrest of six other people implicated in the same dealings.
7. On 21 March 1989 the Prefect (Questore) of Milan suspended the applicant from duty.
...
11. On 21 June 1989, in response to the applicant’s third request, the judge ordered his release on the ground that the prosecutor’s office had collected enough evidence so that there was no longer any risk of his concealing evidence.
12. On 25 January 1990 the judge ordered that the applicant be committed for trial before the Milan District Court (RG no. 185/90). Seven other people were also committed for trial.
13. Six hearings were held between 8 and 23 May 1990, at which the facts were examined and statements heard. In a judgment of 25 May 1990, deposited with the registry on 22 June 1990, the court found the applicant guilty of extortion and forgery, sentenced him to four years and six months’ imprisonment and banned him from public office for life.
14. On 26 May 1990 the applicant challenged that judgment before the Milan Court of Appeal (RG no. 4630/90), calling for a new investigation and hearings, his acquittal or the reclassification of the offence as bribery.
15. On 5 July 1990, before the Monza District Court, the applicant elected the municipality of San Zenone al Lambro (Milan), care of Ms V.S., as his address for service in the proceedings before the Milan Court of Appeal.
...
18. In a judgment of 29 November 1993, deposited with the registry on 22 December 1993, the Court of Appeal upheld the applicant’s conviction on some of the extortion charges against him and reduced his total sentence to three years and eight months for extortion and forgery.
19. On 24 December 1993 the applicant appealed on points of law, requesting as his primary submission that the judgment of the Court of Appeal be set aside because the summons to a hearing on 18 May 1993 had been served on him at his lawyer’s address and not the address he had elected on 5 July 1990. In the alternative, he again requested the reclassification of the offences as bribery.
20. In a judgment of 29 September 1994, deposited with the registry on 1 December 1994, the Court of Cassation set aside the Court of Appeal’s judgment and referred the case back to another section of that court, inter alia, because the summons had been served at the wrong address.
21. In the meantime, on 10 March 1994 the Questore of Milan reversed the decision to suspend the applicant from duty. The applicant was transferred to the Questura in Turin.
22. The hearing of the parties’ submissions before the Milan Court of Appeal (RG no. 2637/94) was scheduled for 29 January 1996. On an unspecified date the Court of Appeal decided to try the applicant in absentia.
23. In a judgment of 1 March 1996, deposited with the registry on 30 April 1996, the Court of Appeal, after it had reclassified the charges as bribery, declared the prosecution time-barred. It sentenced the applicant to one year’s imprisonment for forgery, suspended the sentence and debarred him from public office for one year as an ancillary penalty.
24. On an unspecified date before July 1996, the applicant lodged a new appeal on points of law. He pointed out that in serving the summons at his elected address, care of Ms V.S., the registry of the court had wrongly addressed the registered letter to Ms V.S. and not to the applicant.
25. In a judgment of 7 October 1997, deposited with the registry on 18 October 1997, the Court of Cassation allowed the applicant’s appeal and sent the case back to another section of the Court of Appeal.
26. On an unspecified date the registry of the Court of Appeal served a summons to attend a hearing on 26 March 1998 (RG no. 4288/97) on one of the applicant’s lawyers.
27. On that same date the Court of Appeal declared the summons null and void and ordered the police to serve a summons to a hearing on 11 June 1998 at the address of Ms V.S. and at the Questura in Turin, where the applicant had started to work in the meantime.
28. Following the hearing on 11 June 1998, in a judgment delivered that same day and deposited with the registry on 24 June 1998, the Court of Appeal declared the bribery charge time-barred and upheld the applicant’s one-year suspended prison sentence for forgery and, as an ancillary penalty, debarred him from public office for one year.
29. On 2 October 1998 the applicant again appealed on points of law. He alleged that the summons to the hearing of 11 June 1998, served care of Ms V.S., had not correctly indicated the competent judicial authority, and that the summons served at the Questura where he worked was not valid because it had been given to his hierarchical superior.
30. In a judgment of 14 April 1999, deposited with the registry on 29 April 1999, the Court of Cassation dismissed the applicant’s appeal on the ground that, according to that court’s case-law, when a summons was served on the addressee’s hierarchical superior, it was assumed that the addressee had been notified and that the summons was therefore valid.
31. On 12 October 1999 the applicant lodged application no. 52228/99 with the Court, concerning the fairness of the criminal proceedings against him.
32. On 8 November 2002 the Court declared the application manifestly ill-founded, in conformity with Article 28 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
33. On 16 October 2001 the applicant applied to the Brescia Court of Appeal under the “Pinto Act”, claiming 60,000,000 Italian lira (30,987 euros (EUR)) for the pecuniary and non-pecuniary damage allegedly sustained because of the length of the principal proceedings.
34. In a decision deposited on 21 February 2002, the Court of Appeal found that there had been a breach of Article 6 § 1 of the Convention only in respect of the period from the judgment of the Milan District Court (22 June 1990) to the delivery of the first judgment on appeal (29 November 1993). It considered, in view of the number of courts that had examined the case, that there had been no undue delays in the other phases of the proceedings. It awarded no compensation, considering that the applicant had not demonstrated that he had suffered any pecuniary or non-pecuniary damage and that, in any event, having been convicted at the end of the main proceedings, he could not have sustained any non-pecuniary damage related to their duration.
35. On 24 April 2002 the applicant appealed on points of law. In a judgment deposited on 24 October 2003, the Court of Cassation quashed the impugned decision, holding that the unfavourable outcome of the proceedings did not, in itself, preclude the existence of non-pecuniary damage related to their duration, and also that an allegation of damage caused as a result of the excessive length of proceedings had to be substantiated. The case was remitted to the Brescia Court of Appeal.
36. On 20 April 2004 the applicant applied to that court, arguing, inter alia, that subsequent to the judgment of 24 October 2003 the Plenary Court of Cassation had delivered four judgments (nos. 1338, 1339, 1340 and 1341 of 2004) ruling that it was not necessary to demonstrate the existence of non-pecuniary damage.
37. In a decision of 7 July 2004, deposited on 21 July 2004, the Court of Appeal rejected the appeal, on the grounds that the principles arising from the judgments of the Plenary Court of Cassation were not directly applicable in retrial proceedings and that the applicant had not substantiated his claim of non-pecuniary damage as he should have done. It also found that it had been in his interest to prolong the criminal proceedings so that the offences with which he was charged would become time-barred.
38. On 15 November 2004 the applicant appealed on points of law. In a judgment deposited on 6 December 2006, the Court of Cassation dismissed the appeal and ordered the applicant to pay EUR 3,000 in costs and expenses.
...
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103738
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TONER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Ciaran Toner, is an Irish national who was born in 1979 and lives in Belfast. He was represented by McCann & McCann, a firm of solicitors based in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office.
2. By application to the Chief Electoral Officer for Northern Ireland dated 31 January 2007, the applicant sought inclusion in the electoral register for Northern Ireland. The applicant was at the time of the application a serving prisoner, detained in HM Prison Maghaberry. The application was made in view of the pending elections to the Northern Ireland Assembly, to be held on 7 March 2007. The deadline for registration in order to vote in the elections of 7 March 2007 was 11 January 2007. At the date of this deadline the applicant was serving sentences of imprisonment totalling five years imposed in June and December 2005.
3. By letter dated 12 February 2007, the application was refused. The Chief Electoral Officer concluded that by virtue of sections 3 and 4 of the Representation of the People Act 1983 (as amended) the applicant was legally incapable of voting as a result of his status as a convicted person currently detained (see paragraphs 11-13 below).
4. The applicant, together with another serving prisoner, lodged an application for judicial review of the decision of the Chief Electoral Officer. He sought various forms of relief, including a declaration that the disqualification on convicted prisoners voting contained in sections 3 and 4 of the 1983 Act did not apply to the forthcoming or any future election to the Northern Ireland Assembly; a declaration that he was entitled to vote in the forthcoming and any future election to the Northern Ireland Assembly; damages for a breach of his rights under the Convention; and a declaration that Article 4 of the Northern Ireland Assembly (Elections) Order 2001 (see paragraph 14 below) was not compatible with Article 3 of Protocol No. 1 and should not be applied to the forthcoming or any future election to the Northern Ireland Assembly.
5. In the context of the judicial review proceedings, counsel for the Government submitted that even if, in light of this Court’s judgment in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005IX, the Government pursued the option of permitting some prisoners to vote depending on the length of their sentence, they were unlikely to propose that prisoners serving sentences as long as the applicant’s should become entitled to vote while detained. It was further pointed out that the applicant had failed to submit his application to be enrolled on the electoral register by the deadline for participation in the elections of 7 March 2007.
6. On 2 March 2007, the High Court of Justice of Northern Ireland dismissed the application for judicial review. Gillen J considered that the judgment in Hirst, cited above, gave a margin of appreciation to the United Kingdom in deciding how to ensure respect for the rights guaranteed by Article 3 of Protocol No. 1. Accordingly, he concluded:
“9(iv). I consider that the [Strasbourg] court has deliberately left the method of compliance in the hands of the Contracting States subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of 14/12/06 which makes up its response to the Hirst decision. The consequence of this is that not only is Mr Sweeney [Deputy Director, Rights and International Relations in the Political Directorate at the Northern Ireland Office] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote. I reject the argument of Mr Larkin [for the applicants] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate.”
7. He added:
“Notwithstanding their knowledge since November 2006 that an election was to be in the near future, these proceedings were not launched until 15 February 2007 at a time when the granting of the relief sought would have caused potentially the maximum confusion, disruption and waste of public money already incurred. This is particularly pertinent in the context of both applicants having failed even to apply to register to vote in time. These factors alone should extinguish any smouldering sense of injustice harboured by these applicants at this time.”
8. The applicant was released from prison on 11 April 2007.
9. The Court of Appeal dismissed the applicant’s appeal on 6 June 2007.
10. On 23 October 2007 the House of Lords refused leave to appeal.
11. Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides:
“(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”
12. The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)).
13. Section 4 of the 1983 Act provides:
“(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–
(a) is resident in the constituency or that part of it;
(b) is not subject to any legal incapacity to vote (age apart);
...
(3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
...”
14. The Northern Ireland Assembly (Elections) Order 2001 (“the 2001 Order”) provides as follows:
“4. A person is entitled to vote at an Assembly election in a constituency if on the day of the poll he would be entitled to vote as an elector at a local election in a district electoral area wholly or partly comprised in that constituency.”
15. Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:
“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
...”
16. Section 4 of the Act provides:
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
...”
17. Finally, section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:
“Subsection (1) does not apply to an act if–
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”
18. In Smith v. Scott 2007 SLT 137, the Registration Appeal Court in Scotland considered the refusal of the Electoral Registration Officer for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act, in anticipation of elections to the Scottish Parliament. The Secretary of State conceded in the proceedings that in light of the judgment of this Court in Hirst, cited above, section 3(1) of the 1983 Act was incompatible with Article 3 of Protocol No. 1 to the Convention and that the appellant’s rights under that Article had been violated. He also accepted that for the purposes of Article 3 of Protocol No. 1 the Scottish Parliament was a legislature.
19. The Registration Appeal Court handed down its judgment on 24 January 2007. It declined to “read down” the electoral legislation pursuant to section 3 of the Human Rights Act (see paragraph 15 above) in order to allow serving prisoners to vote. However, it made a declaration of incompatibility in respect of section 3(1) of the 1983 Act (see paragraph 16 above).
20. Further details of legal challenges brought by serving prisoners in the various jurisdictions of the United Kingdom are set out in the Court’s judgment in Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, §§ 27-40, 23 November 2010.


ITEMID: 001-68206
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NAUMOV v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Stefan Naumov, is an Albanian citizen, who was born in 1945 and lives in Tirana (Albania).
The applicant, a Bulgarian national, was the Bulgarian Ambassador to the Republic of Albania from 1990 to 1997.
In 1996 the Ministry of Foreign Affairs of Bulgaria initiated legal proceedings against the applicant as a consequence of which he was suspended from office by a ministerial order.
On 10 February 1997 the Supreme Court of Bulgaria annulled the ministerial order suspending the applicant from office. On an unspecified date the applicant withdrew from politics.
In 1997 the applicant and his family applied to the President of the Republic of Albania for Albanian citizenship. On 17 April 1997 the President of the Republic granted them Albanian citizenship.
On 20 September 2001 the newly elected President of the Republic ex officio declared null and void the president's decree of 17 April 1997, thereby revoking the applicant's Albanian citizenship as having been obtained through forged documents. According to the decree the applicant had filed forged documents indicating that no criminal proceedings were pending against him in Bulgaria.
On 2 October 2001 at about 9 a.m. several police officers, some of them armed, took the applicant and his wife to a police station in Tirana for official notification of the decree.
After some hours of waiting, a copy of the president's decree of 20 September 2001 was served on the applicant, revoking his Albanian citizenship.
Moreover, the Deputy Chief of the Tirana Police Department verbally ordered the applicant to leave Albanian territory by 5 October 2001 (that is to say, within three days) pursuant to a deportation order dated 29 September 2001 or face forcible exile.
On 2 October 2001 the Ministry of Internal Affairs issued a press release to the effect that the applicant had been ordered to leave the territory by 5 October 2001 as his Albanian citizenship, obtained through forged documents, had been revoked.
On 4 October 2001 the police, without apparent reason, prohibited the applicant and his family from leaving the apartment. The situation was resolved by the intervention of a Member of Parliament.
On 5 October 2001 the applicant received a letter from the Police Department reminding him to leave Albanian territory by midnight that day.
On 2 October 2001 the applicant lodged an action with the Tirana District Court claiming that the president's decree of 20 September 2001 should be annulled as unconstitutional. Moreover, he requested, by way of an interim measure, that execution of the deportation order be stayed.
On 4 October 2001 the District Court declined jurisdiction to deal with the applicant's claim and indicated the Constitutional Court as the competent authority.
On 31 October 2001, following the applicant's complaint, the Constitutional Court decided to dismiss his appeal as being outside its jurisdiction.
On 20 December 2001 the Supreme Court (Civil Chamber) quashed the District Court's decision of 4 October 2001 and sent the case for a retrial before the District Court as the authority competent to deal with the applicant's complaint.
On 23 December 2002, after one year of inactivity, the District Court, in retrial proceedings, decided to annul the president's decree of 20 September 2001 as unsubstantiated, thereby confirming the applicant's Albanian citizenship.
On 5 October 2001 the applicant lodged an action with the Tirana District Court claiming that the deportation order of 29 September 2001 and the police order of 5 October 2001 were null and void.
According to the applicant's submissions, the first-instance court proceedings had lasted two years and six months, and fourteen hearings had been fixed. The court's hearings had been adjourned on several occasions as a result of the unjustified absence of the Police Department and Ministry of Internal Affairs' legal advisers. The latter had been absent from thirteen consecutive court hearings without giving any reasons.
On 25 March 2002 the District Court suspended its examination of the applicant's complaint since the courts had decided on the validity of the president's decree.
On 7 February 2003 the court resumed the proceedings. In one year it fixed four hearings and, in the absence of the authorities' representatives, continued the proceedings in the applicant's presence alone.
On 20 March 2003, in the absence of the authorities' representatives, the District Court declared null and void the deportation order and the police order of 5 October 2001 as incompatible with the legal criteria.
1. Article 92 of the Albanian Constitution provides that the President of the Republic has the power to grant and revoke Albanian citizenship in accordance with the law.
2. The relevant part of Law no. 8389 of 5 August 1998 on the acquisition and revocation of Albanian citizenship reads as follows:
Section 9
Acquisition of citizenship by naturalization
“A foreigner who has submitted an application for acquisition of Albanian citizenship by naturalization shall acquire it if he fulfils the following requirements:
He has reached the age of eighteen; he has lawfully resided in the territory of the Republic of Albania for not less than five consecutive years; he has a dwelling and sufficient income; he has never been sentenced in his state or in the Republic of Albania or in any third state for a criminal offence for which the law provides for a prison sentence of not less than three years. Exemption from this rule is made only if it is proved that the sentence was given for political reasons; he has at least elementary knowledge of the Albanian language; and his acceptance as an Albanian citizen does not affect the security and defence of the Republic of Albania...”
Section 13
Revocation of decision granting citizenship
“The decision granting Albanian citizenship may be revoked if it is proved that the alien or stateless person has intentionally supported his application for acquisition of Albanian citizenship with incorrect data or falsified documents...”