ITEMID: 001-5290
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DRIEMAN AND OTHERS v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The application was lodged by four applicants, namely Mr Geert Drieman and Mr Albert Kuiken, both Dutch nationals, Ms Felicity Jane Arnold Crush, a British national, and Mr Kevin Dennis Bell, a national of the United States of America. They were born in 1950, 1948, 1963 and 1962 respectively. They are represented before the Court by Mr Menno T. Kamminga, professor of law.
The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows.
In July 1994 Greenpeace conducted, with two of its vessels MS Solo and MS Sirius, registered in the Netherlands, and fast rubber dinghies stationed on board the ships, a campaign against Norwegian whaling in the exclusive economic zone south-west of Egersund. The first applicant was Director of the Greenpeace Foundation in the Netherlands, and formally in charge as campaign leader on board the Solo as from 14 July 1994. The other three applicants were respectively captain, deckhand and assistantengineer on board that vessel. For a month they followed the movements and catching activities of a whaling ship, the Senet. According to its captain, the campaign had had as a consequence that the hunt was prolonged by a fortnight. The Senet was the only vessel pursuing whales in the area in question on 20 and 23 July 1994, the dates on which the incidents giving rise to the present case occurred.
The Solo arrived in the area where the Senet was hunting in the afternoon of 20 July 1994, just after the Sirius had been put under arrest by the Coastguard (kystvakten). Later in the afternoon a whale was shot from the Senet. While it was lying on deck being cut up, a new whale was observed. The Senet then manned the harpoon gun and followed the whale. This was observed by the applicants on board the Solo. Shortly thereafter, a dinghy was launched from the Solo and positioned in front of the bows of the Senet where it drove in zigzag and otherwise consistently manoeuvred towards the last place where the whale had been seen on the surface.
The Coastguard forced the dinghy away, and the Solo therefore launched another one with the third and fourth applicants on board, together with a camera man from a German television company. The Coastguard seized the second dinghy immediately but the third and fourth applicants were allowed to board the Solo again. They then launched a third dinghy (this time without the cameraman) on the other side of the Solo, unhindered by the Coastguard. The third applicant was navigating and she manoeuvred the dinghy up to the starboard side of the Senet, then alongside until it was positioned across the bows of the ship. The distance to the Senet during these manoeuvres varied from 5-6 to 15-20 metres. The third and fourth applicants kept the dinghy in position in front of the bows and in so doing forced the Senet to change course. The noise of the dinghy's engine was such as to frighten the whale away.
On the morning of 23 July 1994, the second applicant, the Solo's captain, acting on the instructions given by the first applicant as the responsible campaign leader, manoeuvred the Solo in such a way as to force the Senet to change course when chasing a whale which it had observed. Moreover, the Solo's water canons were used in a manner impeding visibility from the Senet and thereby shielding the whale. The intended purpose and effect of these measures was to prevent the Senet from shooting the whale.
Following the above incidents the 4 applicants were arrested and were held in detention on remand for 2 days before being released.
After hearings on 6 and 9 September 1994, the Dalane District Court (herredsrett), by judgments of 20 September 1994, convicted the applicants, under Sections 14 (2) (1) and 53 (1) of the Sea-Water Fisheries Act 1983 (Saltvannsfiskeloven - Act of 3 June 1983 No. 40) and a Royal Decree of 15 July 1994, for having obstructed lawful whaling. It sentenced the first and second applicants to pay a fine of respectively NOK 25,000 and 20,000, or 40 days’ imprisonment in default. Moreover, under Articles 35 (2) and 37 C of the Penal Code, it ordered the confiscation of a dinghy belonging to the first applicant. The third and fourth applicants were each sentenced to pay a fine of NOK 10,000, or 15 days’ imprisonment in default.
The second applicant then appealed on points of law and sentencing, while the other applicants sought to obtain a new trial before the High Court (lagmannsretten), or alternatively to appeal on points of law and sentencing to the Supreme Court (Høyesterett). The first applicant also challenged the confiscation order. The Supreme Court's Appeals Selection Committee (kjæremålsutvalg) refused the request for a new trial but allowed a joint appeal on points of law and sentencing, as well as the appeal against confiscation.
By judgment of 4 March 1996 the Supreme Court upheld the applicants' convictions but limited the sentences to the fines imposed. It also upheld the confiscation of the dinghy.
In upholding the applicants' convictions, the Supreme Court observed that it was satisfied that the measures had a legal basis in Sections 14 and 53 of the Sea-Water Fisheries Act, as extended by the Royal Decree of 15 July 1994. This was not prevented by Article 65 of the 1982 United Nations Convention on the Law of the Sea, which did not contain a general prohibition on whaling. Nor was it prevented by the moratorium in 1982 for all whaling or the moratorium in 1985 to classify minke whale as a threatened species, decided by the International Whaling Commission established under the 1946 International Convention for the Regulation of Whaling. In accordance with Article V no. 3 of the Convention, Norway had protested and exempted itself from these decisions by way of reservation, as the District Court noted, on the ground that there was no scientific basis for upholding a total ban.
The Supreme Court further considered whether the convictions were compatible with Articles 10 and 11 of the Convention. While leaving open whether the acts concerned, in particular those by the first and second applicants, could be regarded as falling within the notions of freedom of expression in Article 10 or freedom of peaceful assembly in Article 11, the Supreme Court found that the conditions for restricting these freedoms under the second paragraphs of these provisions had been fulfilled. Firstly, it was satisfied that the requirement of lawfulness had been fulfilled, as the interference not only had a legal basis but the law in question was also accessible and foreseeable. The Royal Decree of 15 July 1994 had in fact been aimed at the specific campaign conducted by Greenpeace; the matter had attracted media attention and, according to the findings of fact made by the District Court, the applicants had been aware of the amendments in question. Even if they had not, one could have expected them to acquaint themselves beforehand with the relevant legislation, under which the proscribed conduct was illegal even before the decree. Moreover, the measure had been necessary in a democratic society in order to protect the rights of others. Greenpeace had demonstrated against whaling over a long period with a large amount of media attention, but its freedom to demonstrate had not been impaired by the disputed measures which related to 2 isolated incidents where attempts had been made to protect the whalers' lawful exercise of their right to catch whales.
As regards sentencing the Supreme Court recalled that, under Section 53 (3) of the Sea-Water Fisheries Act, prison sentences should not apply to offences committed by foreign vessels in the exclusive economic zone, and that, under Article 73 (3) of the 1982 United Nations Convention on the Law of the Sea, prison sentences should not be imposed for contraventions of fishery legislation. It further observed that Norway had not ratified this Convention. Nonetheless, having regard to the preparatory work for Section 53 (3) of the Sea-Water Fisheries Act, which referred to the provision of the Law of the Sea Convention, the Supreme Court quashed the sentences in so far as they imposed imprisonment in default of the payment of the fines.
As regards the confiscation of the dinghy belonging to the first applicant, the Supreme Court recalled that this had been used by the third and fourth applicants in connection with the acts leading to their arrest. On two occasions they had, by the manner in which they had manoeuvred the dinghy in front of the Senet, hindered the exercise of lawful whaling. Although a special provision on confiscation was contained in Section 54 of the Sea-Water Fisheries Act, the Supreme Court was satisfied that Article 35 and 37 C of the Penal Code were applicable. The confiscation was also justified in the interests of ensuring the effective enforcement of Section 14 of the Sea-Water Fisheries Act.
According to Section 14 of the Sea-Water Fisheries Act, vessels in a fishing zone must not manoeuvre so as to damage or needlessly endanger catching gear or reduce catching opportunities. This provision applies to all vessels, not only fishing and catching vessels.
Under Section 53, Chapter X, a person who by intent or negligence violates the provisions of the Act may be liable to fines and, in the event of a previous conviction under the Act or aggravating circumstances, up to 6 months' imprisonment. Section 54, Chapter X, authorises the confiscation of, inter alia, vessels used in violating the provisions of the Act. General provisions on confiscation of objects used in the perpetration of crime are contained, inter alia, in Articles 35 of the Penal Code. Under Article 37 C such confiscation may be effected with regard to the possessions of foreigners who are not resident in Norway if it is deemed reasonable.
Pursuant to the Royal Decree of 15 July 1994, Section 14 and Chapter X of the SeaWater and Fisheries Act should apply to sealing and whaling activities and the provisions in, inter alia, Sections 53 and 54 in Chapter X of the Act should, as appropriate, apply to all activities other than fishing.
According to Section 3 of the Sea-Water and Fisheries Act, its provisions do not affect the right of navigation in the exclusive economic zone under the Norwegian Economic Zone Act 1976, and are subject to the limitations which follow from public international law and agreements with other States.
In the proceedings the applicants referred to the following provisions of the Convention on the Law of the Sea, which entered into force in 1994 and which were ratified by Norway in 1996:
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
"1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention."
Article 58
Rights and duties of other States in the exclusive economic zone
"1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and use of airspace and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention."
Article 65
Marine mammals
“Nothing in this Part restricts the right of a coastal State or the competence of an international organisation, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall work in particular through the appropriate international organisations for their conservation, management and study.”
Article 73
Enforcement of laws and regulations of the coastal State
“1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the Flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.”
Article 97
Penal jurisdiction in matters of collision or any other incident of navigation
“1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the Flag State.”


ITEMID: 001-95851
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BOJOLYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 1. The applicant, Mr Murad Bojolyan, is an Armenian national who was born in 1950 and is currently serving a prison sentence in Kentron penitentiary institution in Yerevan. He was represented before the Court by Ms N. Gasparyan and Mr H. Arsenyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was born in 1950 in Istanbul, Turkey. He is Armenian by origin.
4. In 1963 the applicant moved with his family to Armenia. In 1972 he graduated from Yerevan State University, with a degree in history and oriental studies. From 1972 to 1991, the applicant worked in the Academy of Sciences as a historian and oriental specialist. From 1980 to 1991 he also worked for State radio as a presenter and translator into Turkish.
5. In the same period, from 1970 to 1991, the applicant served with the intelligence service of the Transcaucasian military circuit under the codename “Zinde”. He had the rank of chief radio operator and his functions included carrying out appropriate activities on the territory of Turkey in times of war.
6. From 1991 to 1993 the applicant worked as the head of the division for Turkey in the Ministry of Foreign Affairs. In 1991 he also worked as the chief expert in the Committee for Foreign Affairs of the Supreme Soviet of Armenia.
7. In 1996 the applicant was appointed as a Turkish interpreter and chief specialist on Turkey at the President’s Office, where he worked until his dismissal in August 1998 due to a reduction of the staff.
8. From 1993 the applicant wrote analytical articles for a number of Armenian (Azg, Hayastani Hanrapetutyun, Yerkrapah and Hayk) and Turkish (Radical) newspapers. He also worked on a contractual basis for other Turkish media: from 1998 for the Anatolian News Agency (Anadolu Ajansi), and from 1999 for the NTV TV station and the MSNBC web-site. The applicant also cooperated with the British Broadcasting Corporation (BBC). Furthermore, he regularly accompanied Turkish journalists on their visits to Armenia in the capacity of an interpreter.
9. The applicant submits that from summer 2000 he became involved in trade, making regular trips to Turkey, alone or with his wife, re-selling clothes.
10. On 25 January 2002 criminal proceedings were instituted against the applicant, who was suspected of collecting information concerning events, organisations and people in Armenia and Nagorno Karabakh, and communicating it to the Turkish intelligence services.
11. On 26 January 2002 at around 8 p.m. the applicant and his wife, while on their way to Turkey, were arrested at the Armenian-Georgian border and were placed in different rooms in the customs office. Thereafter, they were searched and placed in a police car, where they stayed until early morning.
12. On 27 January 2002 at around 5 a.m. the police car headed for Yerevan. Upon arrival in Yerevan at around 8 a.m. to 9 a.m. the applicant and his wife were placed in different rooms in the Ministry of National Security (ՀՀ ազգային անվտանգության նախարարություն).
13. On the same date from 1.15 p.m. to 5 p.m. the applicant was questioned as a suspect. According to him, the investigators applied psychological pressure and blackmail, forcing him to confess. In particular, they threatened that, if he refused to confess, his wife and his epileptic son would be detained. The applicant submitted that, for this reason, he had no other choice than to confess. Thus, in order to defuse the situation, to have his wife released and to gain some time by fooling the investigators, he decided to make a false confession by making up a story which included fictitious names, districts and undercover flats which never existed. As a basis for his story he used certain real people and circumstances encountered on his regular trips to Turkey.
14. On 28 January 2002 the applicant was formally charged under Article 59 of the then Criminal Code (ՀՀ քրեական օրենսգիրք, 07.03.1961 – “the CC”) with espionage committed to the detriment of Armenia’s sovereignty, territorial integrity, national security and defence. In particular, he was charged with being enrolled in the Turkish National Intelligence Organisation (Milli Istihbarat Teskilati – “the MIT”) in June 2000 and until January 2002 providing information to them on a paid basis concerning Armenia’s and Nagorno Karabakh’s military, economic and political spheres, in particular concerning the Russian troops based in Armenia.
15. On the same date the applicant was remanded in custody by a court order. From 6.15 p.m. to 10.40 p.m. the applicant was questioned again in connection with the above charges. He submitted that he did not wish to have a lawyer. He further admitted his guilt and repented of his actions.
16. In sum, the applicant’s confession statements of 27 and 28 January 2002 contained the following submissions. The applicant had established his first contact with various Turkish journalists during his work at the Ministry of Foreign Affairs, as part of his public relations function. Some of these contacts had later developed into professional cooperation, such as preparation of journalistic materials for the NTV TV and the Anatolian News Agency. In June 2000 the applicant had started to prepare analytical materials concerning Armenia’s political and economic spheres for the MIT officers whom he had met in May 2000 during his trip to Turkey. Later, the communicated materials had also included information of a military nature. To collect the materials in question the applicant had used the Armenian press and his personal knowledge. The information had been communicated in the form of either written reports or the applicant reporting in person and answering questions which interested the MIT officers.
17. On 31 January 2002 the applicant’s wife hired a defence counsel who was admitted to the case on 1 February 2002.
18. On 5 and 12 February 2002 the applicant was questioned again, in the presence of his defence counsel, during which the applicant made further submissions and certain questions relating to his previous statements were clarified.
19. In mid-April 2002 the applicant dispensed with the services of his defence counsel and hired another one.
20. On 4 July 2002 the applicant made a written statement, retracting his confession statements made earlier. In his statement he presented the allegedly true version of events, describing how since 2000 he had started to prepare analytical articles for the MSNBC web-site and how little by little he had become involved in trade with Turkey, thus making more frequent trips to that country. He indicated the names of various people, their relevance and the discussions he had had with them during his trips. The applicant contended that he had never cooperated with any foreign organisation except for mass media. As to his confession statements made earlier, these were a tactical move aimed at having his wife released from detention, securing the safety of his family and preventing any possible violence against himself.
21. On 16 August 2002 the charges against the applicant were modified and stated in greater detail. It was, inter alia, stated that since 1998 he had cooperated with various MIT officers, who mostly operated under the veil of journalistic activities. At the beginning, various means had been used to communicate information, such as letters, faxes and telephone calls, but from 2000 the applicant had established direct contact with the officers of the MIT Istanbul office. The act imputed to the applicant was once again qualified under Article 59 of the CC as espionage committed to the detriment of Armenia’s sovereignty, territorial integrity, national security and defence.
22. On 16 December 2002 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) found the applicant guilty under Article 59 of the CC and sentenced him to ten years in prison with confiscation of all property, concluding that it was substantiated that the applicant had committed high treason and that the act committed by him had been qualified correctly and had features of an offence prescribed by Article 59 of the CC. The District Court found:
“After the dissolution of the USSR, [the applicant], by occupying various high posts in Armenia and by being very fluent in Armenian, Russian and Turkish, was spotted by [the MIT]... Within this period, [the applicant] regularly met and maintained contact with various Turkish journalists, including [O.R.O., N.H., J.B., M.A.B. and S.T.], providing interpretation services or information. According to information received from the Russian Federal Security Service [(FSB)] and the Ministry of National Security of Armenia [(MNS)], these individuals were directly linked with the Turkish intelligence services...”
23. The District Court went on to detail the positions held by the above individuals and their alleged involvement with the Turkish intelligence services. The District Court further found that:
“Having financial problems and being unable to repay his debts, in the spring of 2000 [the applicant] travelled to Istanbul in search of a well-paid job. There he stayed with his cousin [I.] ... [O]n 2 June 2000 [I.] introduced [the applicant] to two MIT officers, [T. and N.]. They told [the applicant] that they needed information concerning ASALA [(Armenian Secret Army for the Liberation of Armenia)], the Kurdish Workers Party, HYD [(Armenian Revolutionary Federation Party)], Armenia’s internal political situation, foreign policy and economic relations, and the Russian troops based in Armenia. [The applicant] told them that he wanted USD 5,000-7,000 for his services. [T. and N.] promised to discuss the issue of remuneration with their superiors. On 6 June 2000 [the applicant], having met again with the above-mentioned MIT officers, asked them to help him first to repay his debts, after which he would cooperate. During their third meeting on 8 June 2000 ... [the applicant] received a down payment of USD 500 from MIT officer [T.] and promised to provide the required information in two months. On 9 June, upon his return to Yerevan, [the applicant] started to single out from media publications the information which interested the Turkish intelligence officers, with the intention of providing it to them later.
On 6 September 2000 [the applicant] travelled to Istanbul and on 11 September 2000 he communicated that information to ... the MIT officers. [He also] answered their questions concerning Armenia’s internal political life, the political parties in Armenia, the contacts that he had with members of these parties, and the activities and location of the Kurdish Intelligentsia Association of Armenia, receiving USD 1,000 from the MIT officers as remuneration for the completed assignment ...
[On 10 January 2001 the applicant] ... met in an undercover flat with MIT officers [T. and N.], who were displeased with the fact that he provided only media publications and demanded that he use his contacts and provide unpublished secret information concerning Armenia’s political and economic life. [The applicant] explained that, in spite of having many contacts with people who had access to confidential information, they would not allow him – and he was not able – to extort secret information. Thereafter, he told them about recent political events in Armenia, newspapers published in Armenia and their editors ... The next day [the applicant] was presented to another MIT officer who introduced himself as [G.] ... [G.] reproached [the applicant] for providing information with a delay of four months and explained that high remuneration was out of the question without him providing secret or military information ... At the meeting of [10 January 2001 T.] demanded that, from that moment, [the applicant] indicate his sources when providing information. On 12 January 2001 [the applicant] ... met with [T. and N.] and received USD 1,000 from [T.] in return for the information provided. [N.] advised [the applicant] to engage in small-scale trade, thereby justifying his frequent trips to Turkey ...
On 16 April 2001, in Istanbul, [the applicant] met with [N. and another officer replacing T.] and told them about the Armenian communities in Georgia and the Krasnodar and Stavropol regions of Russia. Thereafter, [the applicant] presented his notes containing information of a military nature which included information concerning the guarding of the western and southern borders of Armenia by the Russian and Armenian border guards, the commander of the Russian border guards, the three check points at the Armenian-Turkish border, the check point at the Armenian-Iranian border, the presence of border guards in Zvartnots airport, the length of the Armenian-Turkish and Armenian-Iranian borders, high-ranking officials in the Ministry of Defence of Armenia, the strength of the Armenian army and the conscription quota, the bridges in Yerevan, the troops based in Yerevan and other similar information. During a regular meeting held in an undercover flat [the applicant] was asked questions about Russian weapons and material in Armenia. Most of the military-related questions had narrow specialisation and the names of the material were presented in Latin and numerical notes. [The applicant] drew the general layout of Yerevan, indicating the military objectives and bridges in the city, and provided other information. As remuneration [the applicant] received from the MIT officers USD 2,250 and he returned to Armenia.
Continuing his cooperation with the Turkish intelligence service and carrying out their assignments, [the applicant] - before 26 January 2002 - travelled to Istanbul also in July and October 2001, on each occasion providing to the MIT officers information concerning Armenia which interested them and receiving USD 2,250 as remuneration. In July 2001 [the applicant], having received an assignment, wrote down on a blue lined sheet of paper the questions that interested the MIT, which included the military cooperation with Greece, the new weapons provided to Armenia by Russia, their location and quantity, the anti-aircraft defence system, the Kurdish Workers Party, Iran and other issues.
On his last trip to Istanbul ... on 26 January 2002 [the applicant] was arrested and various documents and notes prepared by him for the MIT officers were found in his possession, which included the answers to the assignments previously received from the Turkish intelligence officers as indicated above. This information was collected by [the applicant] from various sources and included data concerning the aid provided to Armenia by Iran, the credit extended to the Nagorno Karabakh Republic from the Armenian budget, the unlawful acts taking place in the Armenian army, the location of the Armenian border-guarding military units, the ammunition and material provided to Armenia by Russia as military aid, the military bases used by Russia, the English delegations that visited the Nagorno Karabakh Republic for purposes of elimination of mines and missiles, the aid provided to Armenia by Greece, the recruitment to the Russian troops based in Armenia, the representatives of the Kurdistan Committee based in Armenia, as well as other information concerning Armenia’s military, political and economic spheres. The following items were also found in [the applicant’s] possession: a map of Armenia and a tape recording of a conversation between [the applicant] and the Kurds secretly made by him at the Yerevan Office of the Armenian-Kurdish Friendship which [the applicant] was intending to transmit to the MIT officers as proof of an actual contact with members of the Kurdish Workers Party.
...
In such circumstances, the commission of high treason by [the applicant] has been substantiated, [and] the act committed by him has been qualified correctly and falls within the scope of Article 59 § 1 of the Criminal Code.”
24. The District Court, as a basis for its findings, first cited in detail the applicant’s confession statements made during the investigation. It further cited five witness statements: one of the witnesses – who had worked with the applicant in the intelligence service before 1981 – characterised him as a well-trained intelligence officer, and four others stated that they had met the applicant at the Yerevan Office of the Armenian-Kurdish Friendship and had known him as a translator. As material evidence, the court cited the above tape recording, the map of Armenia printed in 1988, the blue lined sheet of paper, a notebook containing the telephone numbers of the MIT officers, the information note received from the MNS and prepared on the basis of materials provided by the FSB, and other notes found in the applicant’s possession.
25. As regards the above confession statements, it appears that the applicant unsuccessfully attempted to rebut them in court. He submitted that he had deliberately given self-incriminating statements in order to have his wife released from detention, to gain some time so that the Armenian and Russian intelligence services could intervene and deny the suspicions, and to prevent any possible violence against himself.
26. On an unspecified date, the applicant lodged an appeal. In his appeal, he complained, inter alia, that the judgment was mainly based on his self-incriminating statements which the court wrongly considered as “confession statements”. In reality, he was an analytical journalist and had never cooperated with the Turkish intelligence services. The materials found in his possession were the result of his journalistic activities and were taken from the press. Both the investigating authority and the court had misinterpreted the notion of “other information” contained in Article 60 of the CC by applying it to the materials in question. Thus, he argued that any material taken from the press could be considered as “other information” posing a threat to Armenia’s sovereignty and territorial integrity.
27. On 19 March 2003 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) dismissed the appeal. In addition to the findings of the District Court, the Court of Appeal noted that:
“[After 1991 the applicant] worked in the National Assembly, the Ministry of Foreign Affairs and the President’s Office, he also worked as a reporter and was involved in trade, however, in reality he was an agent connected with intelligence services. Having been spotted by the Turkish intelligence services, from 1998 he cooperated with their agents, the majority of whom operated under the veil of various journalistic agencies and organisations. Upon their instructions, he collected and communicated information concerning Armenia’s and Nagorno Karabakh’s economic and internal political spheres.
For a certain period of time [the applicant] cooperated with the Turkish intelligence services through various means of communication, including letters, faxes and telephone calls, but starting from 2000 he changed the mode of cooperation and established direct contact with the officers of the MIT intelligence office in Istanbul, including [N.,] ... [T. and G.] ... [The applicant] received instructions from them and collected information concerning the type and structure of troops and types of ammunition in [Nagorno Karabakh], the existence and location of troops on the Mrav mountain, the defence system at the Armenian-Turkish border, the existence of radars and military airports, the types and number of military aircraft.
He was also instructed to find out whether Armenia had surface-to-surface missiles and collected information concerning Iranian “Sam-7” type missiles, roads, tunnels and water reservoirs being built in Armenia, the Armenian-Russian joint military bases, their structure, location, anti-aircraft defence units and types of ammunition, the details of the military cooperation between Armenia and Greece, the existence of electronic military bases, the existence of representatives of the Kurdish Workers Party in Armenia and other instructions ...
[The applicant], an employee of the President’s Office, from 1998 established contact with [O.R.O.], who was in Armenia at that time, and accompanied him on his trips to various regions in Armenia and received instructions to provide him with information. As a paid agent of the Turkish intelligence services, he communicated to the MIT various information concerning the economic and military-political situation. [The applicant] was also in contact with a number of other MIT officers ...”
28. On 27 March 2003 the applicant lodged an appeal on points of law. In his appeal, he argued, inter alia, that all the information in question had been collected from the mass media and was thus in the public domain. He further complained that his conviction was based on his self-incriminating statements.
29. On 25 April 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the appeal.
30. On 8 August 2003 the Kentron and Nork-Marash District Court of Yerevan, upon the applicant’s request and pursuant to the requirements of the new Criminal Code enacted on 18 April 2003, modified the applicant’s sentence by annulling the confiscation of his property.
31. The relevant provisions of the Constitution read as follows:
“Everyone has the right to express his opinion. It is prohibited to force anyone to give up or change his opinion. Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and ideas through any information medium regardless of frontiers.”
“No restrictions may be placed on the exercise of the rights and freedoms guaranteed under [Article 24] of the Constitution other than such as are prescribed by law and are necessary in the interests of national security or public safety, for the protection of public order, health or morals, or for the protection of the rights, freedoms, honour and reputation of others.”
32. The relevant provisions of the Code read as follows:
“High treason, that is, a premeditated act committed by an Armenian national to the detriment of Armenia’s sovereignty, territorial integrity or national security and defence, such as joining the enemy, espionage, disclosure of a State or military secret to a foreign country, flight abroad or refusal to return from abroad, assistance to a foreign country in carrying out hostile activities against Armenia, and conspiracy to usurp power, shall be punishable by ten to fifteen years’ imprisonment with confiscation of property and two to five years of exile or without exile, or by the death penalty with confiscation of property...”
“Communication of information constituting a State or military secret, including theft or collection of such information for communication to a foreign country, a foreign organisation or its branch, or communication and collection of other information upon the instructions of a foreign intelligence service to be used to the detriment of Armenia’s interests, if committed by a foreign national or a stateless person, shall be punishable by seven to fifteen years’ imprisonment with confiscation of property and two to five years of exile, or by the death penalty with confiscation of property.”
33. The relevant provisions of the State and Official Secrets Act, as in force at the material time, read as follows:
“The provisions of this Act are binding on the territory of Armenia and outside its borders for public and local self-governing authorities, agencies, institutions and organisations (irrespective of the type of ownership), public officials and citizens, who by their status are under the obligation or have undertaken the obligation to implement the requirements of the Armenian legislation on State and official secrets.”
“A State secret is information related to the spheres of military, foreign relations, economic, scientific/technical, intelligence, counter-intelligence and operational intelligence activities of Armenia which is protected by the State and the dissemination of which may have grave consequences for the security of Armenia.
An official secret is information related to the spheres referred to in the first part of this section which is protected by the State and the dissemination of which may cause other damage to the security of Armenia. As a rule, such information contains data which constitutes a part of a State secret, but in itself does not disclose the State secret.
Information classified as a State or official secret is considered to be the property of Armenia and is kept and protected by the State.”
“The following terms are used in this Act:
1. The media of information constituting a State or official secret (hereafter, information media) are the material objects, including physical fields, in which the information constituting a State or official secret is expressed through images, conventional signs, signals, engineering solutions and processes.
...
3. Encryption of information is the application of restrictions to the dissemination of information constituting a State or official secret and information media.”
“The following types of information may be classified:
1. In the military sphere: (a) the contents of documents concerning strategic and operational plans of the armed forces, preparation and conduct of operations, strategic, operational and mobilisation expansion of troops, their combat capacity and the creation and use of the conscript reserve; (b) the programmes of the military-industrial complex, their contents and implementation results, armament and the course of development of arms technology, their strategic and technical characteristics and combat application capacity; (c) the deployment, significance, level of defence and degree of readiness of units of special importance and regime, their design and construction, and allocation of territory for such units; (d) the deployment, true names, organisational structure, armament capacity and size of the regiments and military units of the armed forces of Armenia and those of allied states located on the territory of Armenia; and (e) the level of defence and safety of the population in times of martial law...”
“Information shall be classified according to the sphere to which it belongs or the authority under whose competence it falls.
...
With the purpose of implementing a common encryption mechanism, a list of classified information shall be drawn up in a procedure prescribed by the Government of Armenia which shall also indicate the public authorities competent to manage each piece of information...”
“Encryption of information is the process of determining the level of secrecy of each separate piece of information and assigning a secrecy label to the relevant information carrier in accordance with a procedure prescribed by the Government of Armenia...”
“Access to a State or official secret may be granted to: (a) citizens of Armenia on a voluntary basis; and (b) foreign nationals or stateless persons in accordance with a procedure prescribed by the Government of Armenia.
In order to have access to a State or official secret citizens must be authorised to do so, upon their written consent, by the competent authorities through entering into a work agreement with public authorities, agencies, institutions or organisations on the basis of favourable results of the security clearance measures taken in their respect...”
34. This decree approved the list of classified information which contained a table comprising such information and the relevant public authorities competent to manage each piece of information. The following information related to the military sphere was, inter alia, included in the list:
“...
(3) information on the size changes, combat staff, strength and operational readiness of troops and information on the military/political and operational situation;
...
(8) information disclosing the deployment, true names, organisational structure, armament capacity and size of troops which is not subject to dissemination in accordance with the international obligations undertaken by Armenia;
...
(12) information disclosing the nature and the organisation or the results of the main types of activity of the Armenian border troops, and the border guard system...”


ITEMID: 001-68534
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HEADLEY AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The first applicant, Mr Prince Charles Headley, is a Jamaican national, who was born in 1970 and is currently detained in Manchester. The second applicant, Akeem Headley, is a Jamaican citizen, born in 1991 who currently lives in Sheffield.
The applicants were represented before the Court by Mr J. Dickinson, a solicitor practising in Sheffield, and Hugh Southey of Counsel. The respondent Government were represented by Ms. E Wilmott, Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant claims that he ran a successful record promoting business in Kingston, Jamaica which, he alleges, drew the attention of gangs, who demanded to become involved. When he refused to continue sharing profits with the gang, on 11 August 1993 the first applicant was shot in the face by gang members and was admitted to hospital suffering with paralysis of the left side of his face. On 12 October 1993 gang members forced their way into his home in the early morning and shot at the applicant and his girlfriend, Sandra Satchell. The first applicant was readmitted to Kingston Hospital at 7-30 a.m. with multiple gun shot wounds, to the right jaw-bone, the left forearm and right arm, to the right “axillary fold”, the tip of the right shoulder and to the right side of his chest. One of the bullets intended for him hit Ms Satchell, who was fatally injured and died, aged 25, on 13 October 1993.
The first applicant alleges that he had to be kept under police protection in hospital, and that at one point gang members attempted to enter the hospital to kill him, in order to destroy evidence relating to Ms Satchell's murder. One of the gang members, a cousin of Ms Satchell, was subsequently convicted of a firearms offence and sentenced to a determinate period of imprisonment. According to the first applicant, he has now been released from prison.
The first applicant did not give evidence at the trial. In January 1994 the first applicant, whose mother is a British citizen, entered the United Kingdom on a six months medical visa, to allow him to gain treatment for his gunshot injuries. This visa was subsequently extended until August 1995.
In 1996 the first applicant visited Jamaica to see his grandfather, who was terminally ill. In 1997 he again travelled to Jamaica, for his grandfather's funeral. He claims that he was shot at by gang members, and had to return to the United Kingdom after a stay of only six days. He has not been back to Jamaica since.
The first applicant claims he set up a business in the United Kingdom importing clothing from continental Europe. He has been married twice in the United Kingdom. On the basis of his first marriage in June 1995 he was granted, on 17 April 1996, leave to remain for twelve months. The marriage broke down – although it produced a daughter (born 9 June 1996), with whom he still has some contact – and he did not apply for indefinite leave to remain.
The first applicant claims that in 1996 he started a relationship with the C. The couple had a child together, R, born on 10 December 1997. Although they were married on 24 February 2003, it does not appear that their relationship was continuous in the meantime.
On 27 May 1998 the applicant was joined from Jamaica by his son Akeem, the second applicant, who was born on 2 November 1991, and is the younger son of Ms Satchell. His older brother still lives in Jamaica.
Upon arriving in the United Kingdom the second applicant was given six months' extended leave to remain. The first applicant claims that the second applicant lived with him until he was imprisoned. However, it is not clear who else was living with the first applicant at the time. At the time of his arrest in January 1999 the first applicant said he was living with a girlfriend by the name of “Angela Smith”.
The first applicant appears to have remained in prison from the time of this arrest in January 1999 until the time of his trial in January 2000. On 31 January 2000 the first appellant was convicted of conspiracy to import a Class A drug and sentenced to seven years' imprisonment and a GBP 9,000 confiscation order. He had made several trips to and from Amsterdam, one of them in the company of a woman who was arrested when re-entering the United Kingdom with 247 grams of cocaine hidden in her vagina. The first applicant had three previous convictions, namely two counts of assault on a police officer, for which he was sentenced in September 1997 to two months' and four months' imprisonment, and one offence of affray, for which he was sentenced in February 1998 to four months' imprisonment.
It is not clear whom the second applicant lived with while the first applicant was in prison. On 22 September 1999 a person by the name of Maria Smith made an application for indefinite leave to remain on behalf of the second applicant. In that application she described herself as the second applicant's “stepmother”. On 9 June 2000, Sheffield City Council recorded in a social work assessment that the second applicant was living with a “family friend”. However, it is accepted by the Government that by the time of this application to the court, in November 2003, the second applicant was living with C and R.
The trial judge did not recommend that the applicant be deported, but the Secretary of State nonetheless, because of the drugs conviction, made a deportation order against him on 13 February 2002. The first applicant appealed against this decision and claimed asylum, on the basis that he would risk violence from gang members if returned to Jamaica. On 13 December 2002 the Secretary of State decided to refuse asylum and to refuse to revoke the deportation order. On 2 June 2003 the decision was made to give directions for the first applicant's removal. The first applicant appealed against these decisions under Part 4 of the Immigration and Asylum Act 1999 (see below). His appeals were dealt with jointly and refused by an adjudicator on 25 September 2003, after a hearing at which the first applicant represented himself. The first applicant did not seek permission to appeal that decision to the Immigration Appeal Tribunal.
On 2 February 2004 the Government set directions for the removal of the first applicant on 12 April 2004. The first applicant was nominally released from imprisonment on 12 February 2004 but was immediately detained by the immigration authorities pending deportation. However, the deportation was stayed pending the outcome of this application and on 11 June 2004 the first applicant was granted bail on condition that he stay with C.
Around this time the first applicant discovered that C was in a relationship with another man. It was alleged that he made violent threats against this other man and on 16 June 2004 he was remanded back into custody on charges of possessing an illegal firearm and making unlawful threats. These charges were subsequently dismissed. However, C has since indicated that she no longer wishes to have contact with the first applicant.
When the first applicant returned to prison, in June 2004, the second applicant moved in with C's brother, S, S's partner and their daughter. He has lived there ever since. S has indicated that the second applicant can stay there “forever – or as long as he wants”.
The Government have not yet made any decision as to whether or not they intend to remove the second applicant.
The applicants have submitted various reports in relation to the second applicant. A letter from the head teacher of his junior school states that he has slight learning difficulties and would find it difficult to adjust to any further changes in his life. In September 2003 the second applicant started at secondary school. A letter from his current head teacher, dated 19 February 2004, states that the second applicant has behaved aggressively at school. However, according to S's witness statement, dated 31 July 2004, the second applicant's behaviour at school “stabilised” after he moved in with S's family in June 2004.
Two reports were prepared in connection with the present application by Ms Andrea Pecherek, a chartered psychologist. The first report appears to have been based on various false assumptions, such as that the second applicant lived as part of a “nuclear family” with the first applicant and C for four years (between 1996 and 2000).
The second report, dated 16 October 2004, contains the following conclusions: (1) there were two consistent factors in the second applicant's life: his father and his black British identity; (2) it is in the second applicant's interests to maintain both; (3) the second applicant's sense of security and family has been maintained by living with S and his partner – “an extremely positive solution to what could have been an extremely negative situation”.
Part 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) provided that anyone who was the subject of an immigration decision, such as a decision to make or refuse a deportation order or a decision to set removal directions, should have a right of appeal to an adjudicator if they alleged that that decision was in breach of their rights under either the European Convention on Human Rights (“the Convention”) or the Geneva Convention relating to the Status of Refugees.
The appeal provisions in Part 4 of the 1999 Act were later repealed by the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Sections 82 and 83 of the 2002 Act brought in new appeal provisions, which did not, however, have effect in relation to any events which took place before 1 April 2003. For all such events the appeal provisions under Part 4 of the 1999 Act continued to have effect.
Section 101 (1) of the 2002 Act provides as follows:
“A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law.”
Paragraph 1 (4A) of Schedule 2 to the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (as amended) provides as follows:
“Section 101 (1) of the 2002 Act shall apply to a party to an appeal to an adjudicator under Part 4 of the 1999 Act which is determined on or after 9th June 2003, as it applies to a party to an appeal to an adjudicator under section 82 or 83.”
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must have regard to all relevant case law from this Court.
In the case of R v IAT ex p AC ((2003) EWHC 389 Admin), the High Court held that, in determining appeals relating to Article 8 of the Convention, adjudicators and tribunals were obliged to consider the rights under Article 8 of the appellant's family as well as the appellant himself.
Samaroo and Sezek v Secretary of State for the Home Department ([2002] INLR 55) concerned a Guyanan national, who was given permission to visit the United Kingdom for six months in June 1988. Three months later he married a British citizen and was given indefinite leave to remain. In 1991 a son was born to their marriage. In 1994 Mr Samaroo was convicted of being knowingly concerned with the importation of 4 kg of cocaine worth GBP 450,000 and was sentenced to 13 years imprisonment. While in prison he behaved as a model prisoner and it was accepted by the Secretary of State that he was unlikely to re-offend. Nonetheless the Secretary of State made an order that he be deported, relying in particular on the importance of deportation as a deterrent to actual and prospective drug traffickers. Mr Samaroo appealed against this decision. In finding against him the Court of Appeal held that the Secretary of State had been entitled to attach importance to his general policy of deporting those convicted of importation of class A drugs in order to protect those resident in the United Kingdom from the harmful effect of drugs and, by deterring others, in the interests of preventing crime and disorder.


ITEMID: 001-58182
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF GALLO v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Alcide Gallo is a caretaker employed by the Student Welfare Centre (“the centre”) in Trieste, where he lives.
8. On 28 August 1986 he instituted proceedings against the centre in the Friuli-Venezia Giulia Regional Administrative Court (“the RAC”) seeking judicial review of a disciplinary penalty imposed on him by decision of the chairman of the centre's board of governors on 12 August 1986. The latter, having obtained the advice of the disciplinary board, had suspended the applicant for one month, on the ground that he had failed in his duty of diligence and perturbed “the continuity and regularity of the service” by taking sick-leave which was considered to be unjustified.
The applicant forfeited all but a fraction of his salary.
9. In a judgment of 9 April 1987, the text of which was deposited with the registry on 28 May 1987, the RAC gave judgment in the applicant's favour.
10. The centre appealed on 5 October 1987. In a judgment of 12 June 1992, the text of which was deposited with the registry on 8 January 1993, the Consiglio di Stato reversed the lower court's judgment and dismissed Mr Gallo's application.


ITEMID: 001-22377
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KLEUVER v. NORWAY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The first applicant is a Dutch national, born in 1964 and living in The Hague, the Netherlands. The second applicant is her son born on 11 November 1990. The applicants are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo.
The first applicant’s father died when she was at the age of 11. Thereafter her mother remarried. According to her doctor the first applicant was treated several times by a psychiatrist as she was very depressive, especially in the years 1987, 1988 and 1989. As part of the treatment she was from time to time provided with medication. The first applicant had a sister and a stepbrother. The latter, who died in 1989, was according to the first applicant shot dead by the police while in police custody in Belgium. Following her brother’s death the first applicant became further psychologically imbalanced and went on sick leave for two weeks. Her mother attempted suicide (by taking pills) and had alcohol problems.
At the time of the events described below the first applicant had no previous criminal record and had been in gainful employment as a secretary since the age of 18. She had a partner with whom she did not cohabit.
On 27 February 1990, the first applicant explains that she bought on a street in The Hague a Citroen 2CV from a person who she knew just as “John”. She had the car registered and drove towards Scandinavia in the evening of the same day. The week beforehand, she had deliberately tried to become pregnant and when she left she was aware that she had succeeded in this. She was pregnant with the second applicant.
On 1 March 1990, the Norwegian Police stopped her having been notified by the Danish customs authorities that she had given them peculiar information concerning her travel destination, etc. The first applicant was arrested after the police had found 4.951 Kg of amphetamine in the Citroen 2CV that she had driven from the Netherlands to Norway. The drug had a particularly high degree of purity; some 63-71 weight per cent, with a street value assessed at NOK 5,000,000. The first applicant stated to the police that she had neither knowledge of Norway nor any acquaintances in the country, she was in possession of a limited amount of money upon arrest and had no credit card, to her employer in the Netherlands she had said that she had to go on a holiday with her mother who had been to hospital after taking an overdose.
On 3 March 1990 she was remanded in custody at Bredtvedt National Prison. On 31 May 1990 she was transferred to Drammen District Prison, as she had made an attempt to flee, assisted by two persons visiting her from the Netherlands who had left a filing tool under the prison fence. On 4 July 1990 she was transferred back to Bredtvedt Prison.
After a hearing on 10 and 11 September 1990, the Eidsivating High Court (lagmannsrett) jury answered the charges in the negative, whereupon the judges sitting in the case unanimously set aside the first applicant’s acquittal by the jury as obviously erroneous and ordered a retrial.
In order to facilitate the applicant’s particular situation and to co-ordinate future measures vis-à-vis the mother and child, several discussions were held between representatives from the child care authorities, the relevant hospital, the prosecution, the police and her lawyer, who throughout the first applicant’s stay in Norway, until she unilaterally decided to send the second applicant to his grandmother in the Netherlands, were in close co-operation with one another. To this end also a meeting was held at Bredtvedt Prison between all the persons concerned, including the first applicant and her lawyer. She was able to communicate fluently in English. After the first applicant’s attempted flight, security became an issue and different options were considered.
Between 14 August and 8 November 1990, the first applicant went eight times to Aker Hospital in Oslo for prenatal checks, including ultra sound examinations. Most times she was accompanied by uniformed police officers and was obliged to wear handcuffs during her transportation and while in the waiting room with other patients. She felt humiliated vis-à-vis other patients because of the presence of uniformed police and the use of handcuffs. The handcuffs were removed before the actual medical examinations and, with one exception, before she entered the examination room. Some times the first applicant was accompanied by plain-clothed police officers from the anti-drugs squad who did not apply handcuffs, as they felt they had sufficient knowledge of her and her case to keep her under constant surveillance without applying handcuffs. The first applicant found it unacceptable that she could not always be accompanied by the latter police officers. On one occasion, when the applicant had an ultra sound examination, two male police officers followed her into the examination room, as it was on the ground floor with windows whereby one could leave the building. One of the officers then assisted as an interpreter at the request of the midwife who did not master English. He inter alia explained to the first applicant what could be seen on the screen during the examination. The examination was limited to a plain ultra sound examination. Only at a later time did the first applicant complain about the police officers’ presence in the room during the ultra sound examination.
On 11 November 1990 the first applicant gave birth to the second applicant at Ullevål Hospital in Oslo, one of the best-equipped hospitals in the country. During her hospitalisation, which lasted some nine days, she was guarded by two police officers. At that time there had already been one incident in Norway where a female detainee had fled in connection with giving birth at a hospital. There were other incidents were a detainee had fled when taken to hospital for medical reasons. On one such occasion, at the least, the detainee had been armed.
Shortly before the first applicant gave birth, the two uniformed police officers followed her at a close distance as she and the female deputy director of the prison, serving as her support person, walked up and down the corridor. While the first applicant gave birth, the two officers sat outside the delivery room. The door to the room was closed and a folding screen was positioned between the first applicant’s bed and the door. At the first applicant’s request, the deputy director attended the birth as her support person. The latter was a psychologist specialised in social psychology who had spent much time talking to and assisting the first applicant during her detention. In retrospect it had been observed that, on the whole, the efforts made by the prison staff in order to accommodate the first applicant’s wishes and needs had almost been at the expense of those made vis-à-vis other prisoners. The first applicant’s mother came to visit and assist her daughter the day after the second applicant was born.
On 19 November 1990 the first applicant was released from the hospital and transferred back to the prison. It was not deemed suitable that the son stay with his mother in Bredtvedt prison, which did not have the necessary facilities. This institution was considered unsuitable for keeping small children, in view of inter alia its architectural disposition, the outdoor areas, the sanitary conditions and the composition of the prison population. The latter comprised all categories of detainees, including mentally unstable persons held in security detention. A number of detainees were struggling with poor mental health, infectious diseases, consumption of intoxicating substances as well as deviant behaviour.
The second applicant was instead placed in the Aline Child Care Centre offering high quality services for the mother and the newborn. The Centre was situated in Oslo at a relatively close distance to the Bredtvedt prison. Arrangements were put in place to enable the baby to be fed with his mother’s milk. Until 17 December 1990 the first applicant was transported 5 times a week to visit the boy at the Centre for 1 1/2 hour each time. On a few occasions, she was accompanied by police officers. Some times, as was the case during the prenatal checks, the officers wore uniform and applied handcuffs on the first applicant until she received her son. On other occasions her guardians were plain cloth police officers from the anti-drug squad who did not apply handcuffs on her. Thereafter, for a month, the boy was brought to the prison for 2 ½ hours a day on weekdays and 4 ½ hours a day on weekends.
From 22 to 25 January 1991, the second applicant was hospitalised at Ullevål Hospital because of a lung virus. Its paediatric ward was located on the ground floor. The first applicant was able to visit him once for a duration of 20 minutes, on which occasion she was wearing so-called transport cuffs – that was a chain attached to a foot and the opposite arm. Under these conditions she was permitted to be alone with the baby in a separate room while being observed by the police only through a screen. However, she could hold her baby, but was allegedly unable to nurse him and put him back in bed. Afterwards the mother received her son in the prison every day.
On her return to the prison after the above-mentioned visits, the applicant was regularly body searched, although some prison guards omitted to do this. The searches were carried out in accordance with standard practice. In a separate room she had to undress completely before a female prison officer, who, without any physical contact with her, inspected her hair, ears, mouth, arm pits and the crotch and made her squat and swing to and fro to ensure that she would not bring any unauthorised items into the prison.
After 17 December 1990, such searches were occasionally also carried out after the boy had visited his mother in prison. The Aline Child Care Centre had on 28 December 1990 received information suggesting that the son showed signs of nervousness, and it was thought that it might be due to drug abuse by his mother
Because she had refused 3 times to allow a body search, the first applicant was placed in an isolation cell only equipped with a mattress, for a duration of a couple of hours and once for some 24 hours. She made a complaint in writing. As of 3 January 1991 she was no longer searched after her son’s visits as she accepted to give urine samples enabling the prison administration to verify possible drug abuse. The tests proved negative.
On 5 February 1991, after a retrial, the High Court convicted the applicant and sentenced her to 6 years’ imprisonment, from which the 342 days already spent in custody were to be deducted. This was deemed to be a relatively lenient sentence for such a serious drug offence, the reasons being her pregnancy, the birth in detention on remand and the fact that it would be an extra burden for her to serve a long prison sentence in a foreign country, with language difficulties and the absence of close relatives.
On 10 February 1991, at the initiative of the first applicant, the second applicant left Norway with his maternal grandmother, who then assumed the care for the second applicant in the Netherlands. This was before her conviction and sentence had gained legal force and before the Norwegian authorities had taken a stance on where the first applicant should serve her sentence. The prosecution, for its part, had in a letter of 7 February 1991 to the prison authorities expressed the view that, since she was a Dutch national without any links to Norway, the service of the sentence should not be postponed; otherwise she would have to remain in detention on remand. Although there was no general agreement about the serving of sentences between the Netherlands and Norway, the prosecution was not opposed to the first applicant serving the sentence in her home country.
The first applicant was allowed to call (free of charge) her mother and son for 20 minutes a week, in accordance with the applicable rules. On 25 May 1991 she sought to have the time extended. Her request was rejected by the Prison Director on 4 June 1991, which decision was upheld by the Prison Board on 14 October 1991, as there were no extraordinary circumstances to warrant an extension of the time offered. As of 30 October 1991, she was granted an extra call per week at her own expense.
As of 21 February 1992, the first applicant was transferred to a wing with a more lenient regime, on a contractual basis of good behaviour. Thereafter, there was no time restriction on her use of the telephone.
On 5 June 1992 the first applicant requested a pardon from the Ministry of Justice, which request was rejected. It was observed that the condition of her health and the interests of the mother and child in being reunited could not outweigh the interest of avoiding giving an undesirable signal with respect to the use of pregnant women as drug couriers. Her subsequent appeal against this refusal was successful, having regard to her depressive and psychotic mental state and concerns about the child’s future care and development. The first applicant was released on 17 July 1992 and returned to the Netherlands where she reunited with her son. In the meantime, she had several times been visited in the prison by her son and mother who had come from the Netherlands.
Prior to being pardoned, the first applicant had already brought proceedings against the State seeking a declaration (fastsettelsessøksmål) of a violation of Articles 3 and 8 of the Convention, as well as compensation. Her claim was rejected by the Oslo City Court (byrett) in February 1993 and dismissed by the Eidsivating High Court in September 1993, which decision was upheld by the Appeals Selection Committee of the Supreme Court in October 1994. She then sought compensation under a different procedure, requesting an executory judgment (fullbyrdelsessøksmål). By judgment of 17 January 1997, the High Court upheld the City Court’s above-mentioned judgment, as did the Supreme Court in a judgment on 2 July 1998.
Before the Supreme Court, the first applicant unsuccessfully challenged the participation of one of its judges, Mr Justice Pedersen. The judge in question, who normally served as President of Eidsivating High Court, had as a temporary (konstituert) judge occupied a seat in the Supreme Court from 1 May to 6 July 1998, vacated by a judge who had retired, and had replaced another judge on sabbatical leave from 17 August to 31 December 1998. On each occasion, the Supreme Court had first inquired of him whether he might be willing to take on the assignment and, after he had given an affirmative answer, the King, sitting in Government Cabinet, had taken the decision to appoint him as a replacement judge for the period in question. At the material time Mr Pedersen had not applied for any vacant seat in the Supreme Court.