ITEMID: 001-21998
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SARIC v. DENMARK
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Bosnian citizen, born in 1963. When introducing his application he was serving an eight-year prison sentence in Denmark. Before the Court he is represented by Mr Thomas Rørdam, a lawyer practising in Copenhagen.
On 27 January 1994 the applicant arrived in Denmark together with his family. They were accommodated at the asylum centre Avnstrup, Zealand. The applicant’s arrival caused disturbances at the asylum centre as some of the refugees, coming also from the former Yugoslavia, thought to have recognised the applicant as a perpetrator of violent acts committed in July and August 1993 in the prison camp of Dretelj during the armed conflict in the former Yugoslavia. (The prison camp of Dretelj was situated in the municipality of Čaplinja in the southern part of what is now the Republic of Bosnia and Herzegovina. It appears that this area was Croatian controlled territory at the time of the alleged offences.)
The Danish police authorities were notified by the management of the asylum centre and during the following weeks a number of former prisoners from the prison camp, at that time residing in Denmark, were interrogated by the police.
On 16 February 1994 the applicant was arrested and charged with having illtreated and killed prisoners in the aforementioned prison camp. The applicant denied the charges.
On 17 February 1994 the City Court of Roskilde (Retten i Roskilde) decided to detain the applicant on remand as there were reasons to suspect that he had committed acts amounting to grievous bodily harm (legemsangreb af særlig rå, brutal eller farlig karakter) within in the meaning of Section 245 of the Danish Penal Code under particularly aggravating circumstances (særdeles skærpende omstændigheder) within the meaning of Section 246 of the Penal Code. Furthermore, his detention on remand was based on the fear that he would evade prosecution or impede the investigations if he were at large during the proceedings.
On 28 March 1994 counsel for the applicant requested the Chief of Police of Roskilde (Politimesteren i Roskilde) to identify a number of assumed witnesses to the acts with which the applicant was charged, in order to interrogate them about the general conditions of the prison camp and their knowledge of the applicant’s conduct in the camp. The witnesses included three former prisoners from the camp, Z.F., M.B. and A.S.; two former police officers who served in the camp while the applicant was there, C.J. and V.P., and the director of the camp during the applicant’s stay there, T.S. In addition, the testimony of a person alleged to have been working with the applicant in the kitchen of the camp, F.S., was requested. These witnesses were presumed to reside in specific cities or villages in the former Yugoslavia and, with regard to some of the witnesses, a telephone number was mentioned. However, no precise addresses were submitted.
On 12 April 1994 the Police of Roskilde requested the Danish Embassy in Vienna to contact the Croatian and Bosnian authorities in order to obtain their assistance in identifying and finding the aforementioned persons.
It appears that the Chief of Interpol Zagreb informed the Embassy, on 18 May 1994 by phone and on 4 July 1994 by fax, that it was not possible to identify the named persons since they were citizens of Bosnia and Herzegovina and since the criminal acts had not taken place in Croatia. Furthermore, on 25 August 1994, Interpol Sarajevo informed the Embassy that for the time being they had no opportunity to contact the persons in question.
On 18 August 1994 counsel reminded the police that the aforementioned witnesses be summoned and requested that one more witness, H.P., be identified and interrogated. The letter contains no further information about this person.
Furthermore, on 19 August 1994 counsel requested a lawyer practising in Bosnia to assist in providing the required evidence.
On 15 September 1994 the Police of Roskilde again requested the Embassy in Vienna to provide information about three witnesses, including H.P. and F.S. On the same day a similar request was made to the Bosnian/Herzegovinian Information Office in Copenhagen. It appears that the police never received a reply to any of these requests.
On 19 October 1994 an indictment (amended on 4 November 1994) was served on the applicant charging him with twenty-five counts of grievous bodily harm committed against prisoners in the camp during July and August 1993, on two occasions causing the deaths of the victims.
In a letter dated 25 October 1994 the Bosnian lawyer informed counsel that he had requested the local judicial authorities to interrogate the witnesses in question. However, due to the state of war in the area and lack of judges, the local authorities had not been able to carry out the interrogations required. The Bosnian lawyer had obtained, however, a written statement from T.S., which read, inter alia, as follows:
(Translation)
“I, [T.S.], ... give, at the request of V. Jovanović from Čaplinja, this
Testimony:
In the period between 1 June 1993 and 21 January 1994 I served as a prison camp director in Dretelj, Čaplinja ...
I have known [the applicant] from July 1993 to 20 August 1993. In the beginning of July the military authorities sent him to the camp in Dretelj ... When he arrived to the camp he told me that he was a waiter of profession and that he had been working as such in Neum. As there was no trained staff in the kitchen in Dretelj I sent him to work there and he was there all the time while he was in the camp. Thus, he has not been a guard - or a gaoler in the camp of Dretelj, but worked as a prisoner in the kitchen ...
[The applicant] is married to D. Jovanović from Čaplinja, daughter of I. Jovanović, ... [D]uring the last period I noticed that Moslems from the Stolac area expressed doubts as to his loyalty to the Moslems as he had married a catholic ... and on several occasions there were fights between Moslems from the Čaplinja area and Moslems from the Stolac area...
[The applicant] ... had during his stay in the camp neither opportunity, nor competence to ill-treat ... Moslem prisoners and he has not done so.
In the camp of Dretelj the Moslem prisoners were separated in that one group of Moslems expressed European tendencies and behaved as such, whereas another group from Stolac expressed obvious fundamentalist tendencies and due to this there were more frequent conflicts.
They soon learned that [the applicant] ... had married D. Jovanović, ... [T]his group of Moslems from Stolac, who expressed obvious fundamentalist tendencies, despised him, humiliated him and threatened him with physical harm as he had married the catholic D. Jovanović and had given the children ... Croatian names.
...
He had ... no authorisation from me, as director of the camp, to ... impose disciplinary sanctions and he could not have done so because the camp management would not have allowed it.
The group of prisoners from Stolac and from Bosnia addresses him as prison guard but he has never exercised such function ... he had the same rights and duties as all other prisoners.
...
The following witnesses can testify that [the applicant] ... did not, during his compulsorily detention in [the camp] ... , in any way ill-treat any Moslem... : [H.P.] ... [F.S.] ... [Z.F.] ... [A.S.] ... [M.B.] ... [V.P.] and [C.J.] ... and by these witnesses I have been told that they are willing to give testimony in court in the Republic of Croatia or in Bosnia-Herzegovinia in the case against [the applicant] and I am as director of the camp even willing to go to Denmark and ... under oath give testimony...
I stress that as a prison director I had an organised corps [under my command] which was necessary in order to meet the needs of the camp and, furthermore, I arranged ... a system in order to obtain information so that I would be informed of all events in [the camp]. However, in the period between 1 July and 20 August 1993 I was not informed one single time that [the applicant] was supposed to have ill-treated other prisoners while I had not been present.
To my profound belief this charge is raised against [the applicant] by fundamentalist Moslems from the Stolac area, who have not been able to come to terms with the fact that [the applicant] is married to a Croat and has given his children Croatian names...
I solemnly declare that my statements in this testimony are correct and this ... testimony I am also prepared to give under oath before a court in Denmark.
...”
It is unclear from the material submitted whether this information was mentioned to the prosecution prior to the trial.
On 15 September and 27 October 1994 the applicant’s counsel reminded the police of the request that the aforementioned witnesses be summoned to trial.
On 2 November 1994 the Police of Roskilde urged the Danish Embassy in Vienna to contact the Bosnian authorities and request their assistance in order to find the eight witnesses and to summon them to appear before the High Court of Eastern Denmark (Østre Landsret) on 18 November 1994. At the same time the police requested that three other witnesses, also residing in former Yugoslavia, be summoned on behalf of the prosecution. These three witnesses - two of whom had previously been interrogated by the police while residing in Denmark - appeared at the hearing before the High Court.
On 3 November 1994 the Police of Roskilde, apparently occasioned by a negative reply from the Embassy in Vienna, forwarded their request to the Bosnian authorities for the summoning of the defence’s witnesses through Interpol in Copenhagen.
The case was heard by the High Court of Eastern Denmark from 7 November until 22 November 1994, the Court sitting with three professional judges and a jury. During the hearing the applicant and twenty-five witnesses were heard and written evidence was submitted, including a report prepared by the Medico-Legal Council (Retslægerådet). This report stated that the applicant was probably not insane prior to his arrival in Denmark but that he subsequently developed a psychosis caused by external factors.
Among the aforementioned twenty-five witnesses who were heard by the High Court, there appears to have been witnesses called on the part of the prosecutor as well as the defence. Most of the witnesses were eyewitnesses to the events they gave evidence about. With regard to the two most serious counts of violence committed against E.R. and O.K. and leading to the death of the victims, several witnesses testified that the applicant had actively contributed to the violence committed against E.R, whereas only one witness had personally seen O.K. being ill-treated by the applicant.
With regard to the aforementioned eight witnesses requested by the defence the transcripts from the proceedings in the High Court on 18 November 1994 read as follows:
(Translation)
“...
As regards [Z.F., M.B., A.S., C.J., H.P., V.P., T.S., F.S.] no information has been submitted as to where they are presently residing.
[The applicant’s counsel] requested that the hearing be adjourned for the purpose of obtaining further information as to whether and when these witnesses can be called. He referred in that respect to Section 880 subsection 2, and Section 881 of the Administration of Justice Act (retsplejeloven
The State Prosecutor objected to the principal request as well as to the alternative. He referred to exhibit ... and added that the police subsequent thereto and as late as this morning had been on the line to Interpol in Sarajevo, who merely refers to the state of war. Everything possible has been attempted to reach the witnesses requested by counsel and under these circumstances [it serves no purpose] to adjourn the proceedings. In the opinion of the prosecution the conditions of Section 877, subsection 3, of the Administration of Justice Act are not fulfilled.
...
Having deliberated [the Court] ... made the following
Decision:
It is established that prior to and during the hearing the prosecution has availed itself of all possible means in order to reach the witnesses.
As it must be considered improbable, in the light of the conditions in Bosnia, that an adjournment of the hearing will lead to the completion of the testimonial evidence within a foreseeable period of time, the request for adjournment is denied.
As there exists in the present case quite extraordinary difficulties for the defence in the production of evidence, its request [to read out the documents] is exceptionally granted.
It is decided:
The hearing is not adjourned. It is allowed to read out in court [the aforementioned documents].
...
[The documents] were read out.
...”
The statement by T.S was the one given to the Bosnian lawyer (cf. above).
After the hearing of evidence and the parties’ closing arguments the prosecution declared that it dropped the charges concerning five of the twenty-five counts for which the applicant was accordingly acquitted.
The jury was then asked to consider, primarily, whether the applicant was guilty in the twenty remaining counts charging him with having committed acts, in the prison camp in July and August 1993, amounting to grievous bodily harm within the meaning of Section 245 of the Danish Penal Code under particularly aggravated circumstances within the meaning of Section 246 of the Penal Code and Articles 129 and 130 of the Third Geneva Convention and Articles 146 and 147 of the Fourth Geneva Convention. In the alternative they were asked to consider whether the acts in question amounted to grievous bodily harm within the meaning of Section 245 of the Penal Code and the aforementioned Articles of the Geneva Conventions, only. In addition, the jury was asked whether, pursuant to Section 88, subsection 1, of the Penal Code, the applicant’s sentence ought to exceed the maximum penalty of any of the provisions with which he was charged, with up to the half of the maximum.
The jury answered in the negative to the primary questions as well as to the alternative ones with regard to six counts for which counts the applicant was subsequently acquitted. They answered in the affirmative to the primary questions with regard to three of the counts and in the affirmative to the alternative questions with regard to the remaining eleven counts. The jury also answered in the affirmative to the additional question relating to the applicant’s sentence.
By judgment of 22 November 1994 the applicant was accordingly convicted of fourteen counts in accordance with the jury’s verdict. He was sentenced to eight years’ imprisonment. It was, furthermore, decided that the applicant be committed to a mental hospital until his prison sentence could be executed. Finally, it was decided that he be expelled from Denmark subsequent to having served his prison sentence.
The applicant appealed against the High Court’s judgment to the Supreme Court (Højesteret) which in the circumstances was only competent to determine whether procedural errors had been committed and to determine the sentence. The Supreme Court was on the other hand not empowered to determine the applicant’s guilt.
On 30 November 1994 the applicant’s counsel requested the Prosecutor General to make another attempt to find the eight witnesses in question.
On 23 December 1994 the applicant’s counsel submitted to the Supreme Court, inter alia, that the applicant be acquitted of twelve counts and that the remainder of the High Court’s judgment be quashed and remitted to the High Court. In support of the claim he argued that the High Court had made a procedural error by deciding not to adjourn the case in order to call in the eight witnesses. He invoked Article 6 § 1 and § 3 (d) of the Convention.
It appears from the material submitted that, on 17 January 1995, the Police of Roskilde requested Interpol Copenhagen to establish, through Interpol Sarajevo and Interpol Zagreb, a contact with the eight witnesses. On 6 February 1995 a similar request was made to the Bosnian/Herzegovinian Information Office in Copenhagen. The latter apparently never replied.
On 25 January 1995 Interpol Copenhagen received a fax from Interpol Zagreb reading as follows:
“Regarding your request, please be informed that we are unable to identify the witnesses, based on the given data, therefore we are also unable to contact them.
Furthermore, we know nothing about the information indicated in your message saying that allegedly, the members of the MP of [the] Croatian army served in the prisoners’ camp in Dretelj in summer 1993.
In view of the above, we suggest [y]ou contact the Ministry of the Interior of Bosnia and Herzegovinia through NBC Interpol Sarajevo.
...”
Upon a request from the applicant’s counsel the Chief of Police of Roskilde issued a note, on 10 February 1995, describing the efforts to get in contact with the eight witnesses. It read, inter alia, as follows:
(Translation)
“...
[The eight witnesses] are either former prisoners in the camp [Z.F., M.B., A.S.] or Croatian police officers/police soldiers [C.J., V.P., F.S.] and the director of the camp [T.S.]. According to counsel, [H.P.] is a former prisoner, which piece of information [we] cannot confirm, or deny.
Information in the file concerning the persons in question is very sporadic and scant as they are merely briefly mentioned by their names by a few of the witnesses questioned. [C.J., V.P., T.S., F.S.] must be considered having committed criminal acts of violence in the camp.
...
On the basis of counsel’s letter of 30 November 1994 to the Prosecutor General, to whom I have responded on an earlier occasion, I have again attempted to have the witnesses identified, cf. my enclosed note of 10 January 1995 continued on 17 January 1995, although one will probably have to realise that the prospects of success are limited due to the fact that all the witnesses must be assumed to reside either in Croatia or in a Croatian dominated area of Bosnia.
Counsel has in my opinion no basis whatsoever for his remarks that the witnesses ‘have a good knowledge of the conditions in the camp’ and will be able to ‘contribute with information as to the circumstances surrounding the deaths of [E.R. and O.K]’ as it is completely uncertain what they have observed - if anything at all. The value of testimonies from [C.J., V.P., T.S., F.S.] will in anticipation have to be distrusted as they very well may have participated in the violent acts in question or in other violent acts against the prisoners. It is in that respect notable that the written testimony from ... [T.S.], which counsel had the opportunity to read out [in the High Court] ... appears untrustworthy and invented. The declaration was, it appears, given by [T.S.] at the request of [the applicant’s] mother-in-law.
[The Police of Roskilde] have no knowledge about the former prisoners in the camp [Z.F., M.B., A.S. and possibly H.P.]. It can hardly be ruled out that the said persons held a position in the camp similar to that of [the applicant] (in charge of keeping order) or enjoyed privileges similar to him, for which reason the credibility of their testimonies would be poor. In case of the persons in question being “real” prisoners it is plausible that a testimony from each of them would merely say that they did not observe any violence committed by [the applicant] against the prisoners. The value of such a statement would be very poor as the persons in question had a limited outlook from the buildings ... and a limited possibility of observing [the applicant] who was able to move freely around in the camp.
Thus, counsel has in no way rendered it probable that the requested examination of witnesses is required in order to clarify the matter ... However, as I have already mentioned I have again, through Interpol, requested that the efforts to identify the witnesses be continued.
If the persons in question are identified I find it of the utmost importance that they give evidence in court in Denmark as witness statements obtained in Croatia or Bosnia in the circumstances hardly will have much probative force.
...”
On 13 February 1995 counsel sent a letter to the Prosecutor General reading, inter alia, as follows:
(Translation)
“...
For your information I hereby enclose a copy of a letter of 30 January 1995 from [the aforementioned lawyer practising in Bosnia].
I draw your attention to the fact that the statements made by the witnesses in question are made in court without my presence. Thus, I have not had the opportunity to clarify the factual proposition, which the evidence tends to establish. Had I had that opportunity I would have made sure that [the witnesses] were asked about the deaths of [E.R. and O.K.].
It is, however, evident from the material that it is possible to get in contact with the witnesses whom I have requested being heard.
...”
The letter of 30 January 1995 from the Bosnian lawyer reads inter alia:
(Translation)
“Referring to your request of 19 August 1994 ... the Public Prosecutor of Čapljina has requested the investigation judge at the City Court of Čapljina to hear witnesses, and the witnesses [T.S., M.B., and F.S.] have been heard. I forward the original transcript containing the testimonies.
The investigation judge ... will examine another five witnesses, the testimonies of whom we will subsequently forward to you.
...”
The testimony of T.S. reads, inter alia, as follows:
(Translation)
“...
In [the prison camp of Dretelj] I served as the director of [the camp] from 21 June to 17 December 1993. I knew personally one of the inmates, [the applicant], and I am willing to declare under oath that he did not during the period in question, when he was in [the camp], ill-treat or beat anyone, nor did he kill anyone. He worked in the kitchen as an assistant to the chef and I had as the director the monitoring function over [the camp] and he has, as I said, not beaten or killed anyone, nor has he in any way ill-treated anyone. If such things had happened I would have known as I was monitoring all inmates.
I further declare that no ill-treatment, fights or physical ill-treatment whatsoever took place in this [camp], while I was the director of [the camp].
...”
The testimonies of M.B., F.S., and further testimony given by C.J., read in essence the same in that they maintained that they had not witnessed that the applicant had ill-treated other prisoners.
It appears that these testimonies were given in the City Court of Čapljina on 16 January 1995, - except that of T.S. which was given on 17 January 1995 - before an investigation judge and with a prosecutor being present. Before testifying, each witness were impressed with the duty to speak the truth and were told about the consequences of making false statements.
On 20 March 1995 the police authorities in Denmark received a radiogram from Interpol Sarajevo reading as follows:
“...
Concerning your message, please be advised that ... we were not able to find the mentioned persons and contact ... them.
These persons are in Republic of Croatia and at this territory of our country ... because of consequences of war ... the legal authorities are not yet able to [carry out their] ... functions.
We also mention that these persons were indirectly involved in tragic events in camp “Dretelj” ... [W]e advised you about these details earlier.
We suppose that these persons for that reason avoid to stay at [the] territory of our country.
...”
On 30 March 1995 the applicant’s counsel sent a letter to the Prosecutor General, which reads as follows:
(Translation)
“Referring to your letter of 24 March 1995 I shall hereby address [the note] of 10 February 1995 from the Chief of Police of Roskilde.
Of the eight witnesses I mention in my letter of 23 December 1994 to the Supreme Court there is, through [the Bosnian lawyer], established a contact to four, i.e. [M.B., C.J., T.S. and F.S.]. ... .
In the High Court’s decision concerning the adjournment of the case in order to examine the eight witnesses nothing is said about the relevance of the witnesses for the case. The High Court’s decision is solely reasoned by the difficulties which had been involved - and are presumed to continue to be involved - in getting in contact with the witnesses.
Already at an early stage the applicant wanted the hearing of the eight witnesses, whom he firmly believes can contribute with essential information, not least in order to illuminate the circumstances concerning the deaths of [E.R. and O.K.].
The letters to [the Bosnian lawyer] show that it has been possible to get in contact with, so far, four out of the eight witnesses and, therefore, to my mind a continued effort to call these witnesses cannot be considered futile.
Furthermore, I refer to the possibility of having a court hearing of the witnesses in their home country with the participation of a Danish prosecutor and myself. Such a hearing can clarify whether the witnesses have any relevant information and, if so, what.
The remark made by the police that a number of the witnesses, whom I have requested be heard, possibly had a position in the camp similar to that of [the applicant] or privileges similar to his is in my opinion without substance.
I maintain, therefore, that the efforts to get in contact with the eight witnesses and obtain their testimony be continued.
...”
From a letter of 2 August 1995 from the Chief of Police of Roskilde to the Prosecutor General it appears that the police had not then received any further information about the witnesses.
In reply to a letter from the applicant’s counsel requesting further information relating to the deaths of E.R. and O.K., the Bosnian lawyer replied, on 8 August 1995, inter alia, as follows:
(Translation)
“...
The public prosecutor has informed me that [the applicant] ... was an ordinary prisoner and that, during his stay in [the camp], he had no special authority.
...
As regards the death of [E.R.] it has been established that he died on 5 August 1993 and that he was hit in the head with a wooden club by a person named Bunda, a prisoner who was a Moslem and it has been established that this person had been insane for several years ... This piece of information can be confirmed by the City Court of Čapljina.
In the second half of 1993 the same, Bunda, ... hit [O.K.] and he died also in [the camp] from the strokes.
The accused in both cases, for killing [E.R.] and [O.K.], is the insane man ... Bunda and the case has been investigated by the judicial authorities.
The investigation judge at the City Court of Čapljina has told me that they no longer have the competence to interrogate and supervise the defence for [the applicant] as there has been set up an International Tribunal in the Hague for war crimes committed in former Yugoslavia and as the national courts at the request of the Court in the Hague are obliged to initiate certain investigations.
...”
On 15 August 1995 the Supreme Court upheld the High Court’s judgment. The judgment reads inter alia:
(Translation)
“...
As regards the claim that the High Court’s judgment be quashed and the case remitted to the High Court, [the applicant] has argued that the High Court’s decision of 18 November 1994 not to adjourn the case in order to find and hear [the eight witnesses], amounts to a procedural error pursuant to Section 943 of the Administration of Justice Act and Section 880, subsection 2, of the Act in conjunction with Article 6 § 1 and § 3 (d) of the Convention. [The applicant] claims, furthermore, that the High Court erred by not employing the special standard of proof adopted in the judgment ..., having regard to [the applicant’s] mental state.
...
The Supreme Court’s reasoning:
As the Supreme Court agrees with the reasoning of the High Court, in its decision of 18 November 1994, the Supreme Court finds that no procedural error has been committed by the High Court by proceeding with the case on the basis of the testimonies in their possession, cf. Section 943 of the Administration of Justice Act. Nor has the High Court erred in relation to the standard of proof adopted in judgment ..., which must be considered to express a general principle in criminal procedure that the accused must enjoy the benefit of all reasonable doubt. Thus, [the applicant’s] claim that the judgment be quashed and the case remitted [to the High Court] is rejected.
It is ordered:
The High Court’s judgment is upheld.
...”


ITEMID: 001-85492
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: AYDIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 1. The applicant, Mr Seyithan Aydın, is a Turkish national who was born in 1969 and lives in Izmir. He was represented before the Court by Mr S. Çetinkaya and Mr A. Terece, lawyers practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. At the time of the events giving rise to the present application the applicant was working as a health officer in Batman.
4. On 4 February 1992 he was shot at and seriously injured in an attack by two men in his house in Batman. The three bullets fired by one of the assailants entered the applicant’s stomach and seriously injured him.
5. The applicant was immediately taken to a hospital by his neighbours and their guest, F.C., who was a police officer. The operation to remove the bullets from the applicant’s body was performed in the intensive care unit of the Diyarbakır Hospital since his injuries were life-threatening. He spent twenty days in the hospital.
6. On the same day the police officers prepared a sketch-map of the scene of the incident which described the interior of the house and location of the spent cartridges. They also prepared an incident report in which they noted their findings at the scene of the incident as well as a protocol stating that they had recovered six cartridges and three bullets found at the scene. The police officers took statements from the persons who had taken the applicant to the hospital. The witnesses G.K., E.K. and Ö.F.C. stated that they had heard gunfire and had gone to the applicant’s flat and had found him injured. They then took him to the hospital. Another witness, F.C. stated that the applicant had described the perpetrators and had told him that they were members of an illegal terrorist organisation, the Hizbullah. The witness H.Y. stated he had gone to help the applicant following the assault. He had not seen the assailants.
7. On 6 February 1992 police officers took statements from the applicant at the hospital. The applicant described the assailants and course of events leading to his injuries and asked the officers to bring them to justice. He noted that he had no problem with any person.
8. On 10 February 1992 the bullets as well as their outer casing were examined in the District Criminal Police Laboratory. The experts concluded that the bullets had been fired from a 7.65 mm pistol; however they had not matched with bullets fired from any other weapon which had been used in previous criminal incidents. The experts thus decided that the incident should be classified as attack by an unknown perpetrator and that the bullets and cartridges should be kept in the laboratory.
9. On 19 February 1992 the police superintendent (Başkomiser) sent an investigation report on the incident to the Batman Security Directorate (Bölge Asayiş Şube Müdürlüğü) for transmission to the Batman Public Prosecutor. He noted in the report that the applicant had suffered lifethreatening injuries and that the perpetrators of the attack had not yet been found.
10. On the same day the Batman Public Prosecutor received the investigation report on the incident. However he did not initiate a criminal investigation into the incident but merely sent a reply to the Batman Security Directorate noting that the investigation documents should be sent after the identification of the perpetrators.
11. On 27 October 2000 the applicant’s representative filed a petition with the Batman Public Prosecutor’s office and requested information about the ongoing investigation into the incident.
12. On 3 November 2000 the Batman Public Prosecutor sent letters to the Batman Antiterrorist Branch and the Homicide Office attached to the Batman Security Directorate (Cinayet Büro Amirliği) and requested information on the investigation which had been carried out until that date.
13. On the same day a police superintendent sent the investigation documents and a report in which he noted that the perpetrators had not yet been found.
14. The Batman public prosecutor received the documents and sent a further letter to the Batman Security Directorate (Batman Emniyet Müdürlüğü) attached to the Batman Governor’s office requesting information on the investigation which had been carried out until that date.
15. On 6 November 2000 the Batman Security Directorate sent a reply noting that there were no documents in their archives concerning the incident in question. They further noted that the incident had been registered in their records as one of infliction of bodily harm rather than a terrorist act. The investigation into the incident had been followed by the Homicide Office attached to the Batman Security Directorate.
16. On 8 November 2000 the Batman Security Directorate sent a reply to the Batman Public Prosecutor and noted that the investigations were still pending.
17. On 10 November 2000 the Batman Public Prosecutor sent a letter to the Homicide Office attached to the Batman Security Directorate and requested their office to carry out an investigation into the perpetrators of the attack and to inform him of their findings.
18. On the same day, the Batman Public Prosecutor sent a letter to the applicant’s representative and informed him that the investigation was still pending and that the perpetrators could not be identified.
19. On 6 December 2001 police officers from the Anti-terrorist branch of the Istanbul Security Directorate arrested a person, R.D., on suspicion of membership of an illegal organisation, the Hizbullah. In his statements to the police, R.D. gave a detailed account of the activities he had carried out in the Hizbullah and stated, among other things, that he had perpetrated the attack on the applicant together with a certain M.H. and that he had shot the applicant in his flat in Batman.
20. On the same day, police officers took R.D. to the applicant’s flat in Batman. R.D. told them the details of the attack on the applicant.
21. In a letter of 11 December 2001 the Chief Public Prosecutor at the Diyarbakır State Security Court informed the Batman Chief Public Prosecutor that the Istanbul police had caught a member of the Hizbullah and that this person had admitted having been involved in the attack on the applicant.
22. On 12 December 2001 the Batman Public Prosecutor sent an investigation report (fezleke) to the Chief Public Prosecutor’s office at the Diyarbakır State Security Court noting R.D. as an accused who had perpetrated the attack on the applicant.
23. On 7 January 2002 the Batman Public Prosecutor filed a bill of indictment against R.D. charging him under Article 146 § 1 of the Criminal Code, with attempting to undermine the constitutional order. In the bill of indictment the public prosecutor noted that R.D. had perpetrated the armed assault on the applicant on the instructions of another Hizbullah member V.D. The applicant was named as one of the complainants.
24. In its assessment report (tensip zaptı) dated 15 January 2002 the Diyarbakır State Security Court stated that the applicant should be heard as a complainant.
25. On 12 March 2002 the Diyarbakır State Security Court heard oral evidence from R.D. When asked about his involvement in the attack on the applicant, R.D. claimed that he did not know him and he had not been involved in the attack.
26. In a letter of 21 October 2002 the Diyarbakır State Security Court asked the Nusaybin Assize Court to take statements from the applicant.
27. On 20 November 2002 the Nusaybin Assize Court heard the applicant who stated that he did not know who had shot him. He asked the court to bring the perpetrators of the attack to justice.
28. On 15 October 2002 the case file concerning the prosecution of R.D. was joined to the main investigation file (no. 2000/171) concerning the Hizbullah.
29. As a result of dispute over jurisdiction between the Diyarbakır State Security Court and the Assize Court, case file no. 2000/171 was sent to the Court of Cassation.
30. On 18 February 2003 the Court of Cassation decided that all cases concerning the prosecution of members of the Hizbullah should be joined to the main file no. 2000/171 pending before the Diyarbakır Assize Court.
31. On 20 February 2003 the case concerning the trial of R.D. was joined to the main file before the Diyarbakır Assize Court.
32. According to the Government’s submissions dated 29 September 2006, it appears that the criminal proceedings against R.D. and other Hizbullah members are still pending before the Diyarbakır Assize Court.
33. The relevant domestic law and practice are set out in the Yaşa v. Turkey judgment of 2 September 1998 (Reports of Judgments and Decisions 1998VI, §§ 47-55)


ITEMID: 001-107589
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GISZCZAK v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violations of Art. 8;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1970 and lives in Chmielow.
6. The applicant has been serving a thirteen years’ sentence of imprisonment. At the relevant time he was detained in the Tarnowskie Góry Prison and he had already served nearly six years of his sentence.
7. On 21 April 2008 his 11 year-old daughter was hit by a bus and, because of her serious injuries, was admitted to the intensive-care unit. The applicant was informed that she had fallen into a coma and her condition was very serious.
8. On 28 April 2008 he made an application for compassionate leave to visit his dying daughter in the hospital. On 29 April 2009 his mother made an application for compassionate leave on behalf of the applicant. On 30 April 2008 the Penitentiary Judge of the Gliwice Regional Court requested an opinion from the Tarnowskie Góry Prison on the applicant’s prospects for rehabilitation.
9. On 5 May 2008 the Penitentiary Judge received a negative opinion about the applicant. It stated in particular that the applicant was active in the prison subculture, was rude towards the prison officers, had been convicted of a serious crime (incitement to murder) and had a long prison sentence to serve.
10. On 7 May 2008 the Penitentiary Judge of the Gliwice Regional Court refused the leave request because of the poor prospects of the applicant’s rehabilitation. The order was delivered to the applicant on 12 May 2008.
11. The applicant lodged an appeal with the Gliwice Regional Penitentiary Court on the same day.
12. On 16 May 2008 the applicant’s daughter died.
13. On 19 May 2008 the Penitentiary Judge of the Gliwice Regional Court allowed the applicant to attend his daughter’s funeral on 21 May 2008, under police escort.
14. On 20 May 2008 the Director of the Detention Centre informed the applicant orally about the permission. The applicant asked to be able to wear a suit and handcuffs. He also requested that the escorting officers should wear plain clothes. He submits that his request was denied and therefore he decided not to attend the funeral, since he believed his appearance with handcuffs and chains on hands and legs and under an escort of uniformed and armed officers would create a disturbance during the ceremony. He maintains that his sister had been likewise informed by the Director of the Detention Centre that the applicant would have to wear his prison clothes and would have to have joined shackles (hand-cuffs and fetters joined together with chains).
15. The Government submitted that the applicant must have misunderstood the Director as he clearly could have attended the funeral in plain clothes and handcuffed.
16. The written decision was served on the applicant on 26 May 2008, after the funeral had already taken place. The decision only specified that the applicant was allowed to attend his daughter’s funeral under escort. It did not mention whether he would have to wear joined shackles or whether he could wear plain clothes.
17. On 12 June 2008 the Gliwice Regional Penitentiary Court upheld the decision of 7 May 2008 repeating the reasoning given by the Penitentiary Judge.
18. The applicant further states that earlier in 2007 his request for compassionate leave to attend his father’s funeral had been refused.
19. Article 141a § 1 of the Code of Execution of Criminal Sentences reads as follows:
“In cases which are especially important for a convicted person, he or she may be granted permission to leave prison for a period not exceeding five days, if necessary under the escort of prison officers or other responsible persons (osoby godnej zaufania).”
20. Section 35 of the Rules for Execution of Imprisonment (Regulamin wykonywania kary pozbawienia wolnosci) provides that when on leave from prison, the convict shall wear his own clothes.
21. Section 19 § 1 of the Law on Prison Service (Ustawa o służbie więziennej) of 1996 (as applicable at the material time) lists various coercive measures that can be used by prison guards including joined shackles (“prowadnice”).
VIOLATED_ARTICLES: 8


ITEMID: 001-59603
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF EKIN ASSOCIATION v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 14+10;Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 12. In 1987 the applicant association published a book entitled Euskadi at war. There were four versions – Basque, English, Spanish and French – and the book was distributed in numerous countries, including France and Spain. According to the applicant association, this was a collective work containing contributions from a number of academics with specialist knowledge of the Basque Country and giving an account of the historical, cultural, linguistic and socio-political aspects of the Basque cause. It ended with a political article entitled “Euskadi at war, a promise of peace” by the Basque national liberation movement.
13. The book was published in the second quarter of 1987. On 29 April 1988 a ministerial order was issued by the French Ministry of the Interior under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, banning the circulation, distribution and sale of the book in France in any of its four versions on the ground that “the circulation in France of this book, which promotes separatism and vindicates recourse to violence, is likely to constitute a threat to public order”. On 6 May 1988, pursuant to the aforementioned order, the département director of the airport and border police refused to allow over two thousand copies of the book to be brought into France.
14. On 1 June 1988 the applicant association lodged an administrative appeal against the ban. When this was implicitly rejected, it appealed to the Pau Administrative Court on 29 November 1988.
15. The Administrative Court held that it did not have jurisdiction and so referred the case to the Conseil d’Etat. By a decision of 9 January 1991 the President of the Judicial Division of the Conseil d’Etat remitted the case to the Pau Administrative Court.
16. In a judgment delivered on 1 June 1993 after a public hearing in the presence of both parties, the Pau Administrative Court rejected the applicant association’s appeal on the following grounds:
“It has been established that the book at issue entitled Euskadi at war was printed in Spain, that four of its five chapters were written by authors of Spanish nationality and that the documentation used for the preparation of the publication was mainly of Spanish origin. Therefore, and notwithstanding the fact that the book was published by the applicant association, which is based in Bayonne, the offending book must be regarded as of foreign origin within the meaning of the aforementioned provisions. Accordingly, the Minister of the Interior was legally entitled to prohibit the book’s circulation, distribution and sale.
In taking the view that the book at issue could pose a threat to public order since it argued, particularly in Chapter 4, that the violence of the Spanish State justified the ETA terrorist organisation’s ‘proportionate counter-offensive’, the Minister of the Interior did not make any obvious error in assessing the evidence.
Under Article 10 of the European Convention on Human Rights, ‘[e]veryone has the right to freedom ...’; it is the task of the administrative courts to assess whether any restriction of the freedom of expression guaranteed by the above-mentioned Article 10 is proportionate to the legitimate aim being pursued and to assess whether the ban on a publication of foreign origin is in keeping with that aim. In the instant case the evidence does not show that the general prohibition of the book at issue was disproportionate to the public-order objectives being pursued ...”
17. The applicant association lodged an appeal against this judgment with the Conseil d’Etat on 20 August 1993. In its further observations, it asked the Conseil d’Etat to find that section 14 of the Law of 29 July 1881, as amended, was incompatible with Articles 10 and 14 of the Convention taken together.
18. On 9 July 1997 the Conseil d’Etat ruled that section 14 of the Law of 1881, as amended, was not incompatible with Articles 10 and 14 of the Convention on the following grounds:
“Under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, ‘the circulation, distribution or sale in France of newspapers or texts written in a foreign language, whether periodicals or not, may be prohibited by a decision of the Minister of the Interior. Newspapers and texts of foreign origin written in French and printed abroad or in France may also be prohibited’. In the absence of any statutory provision establishing the conditions circumscribing the legality of decisions taken on the basis of this provision, any restrictions of the Minister’s power derive from the need to reconcile the general interests for which he is responsible with the respect due to public freedoms, particularly freedom of the press. When an appeal against such a prohibition order is lodged with an administrative court, it is duty-bound to assess whether the banned publication poses such a threat to these general interests that it warrants an infringement of public freedoms. Contrary to the applicant association’s assertions, the power thus exercised by the Minister of the Interior, under the supervision of the courts, is not incompatible with the combined provisions of Articles 10 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms …”
19. On the other hand, the Conseil d’Etat quashed the judgment and the ministerial order of 29 April 1988 on the following grounds:
“By the impugned order, the Minister of the Interior prohibited the circulation, distribution and sale of the collective work Euskadi at war, which must be viewed as a written text of foreign origin within the meaning of the aforementioned section 14 of the Law of 29 July 1881. Having regard to the interests that the Minister is responsible for protecting, in particular public safety and public order, the Court finds that the content of this publication does not provide sufficient legal justification for the serious infringement of press freedom embodied in the impugned decision.
It follows from the above considerations that the Association Ekin has good grounds for maintaining that the Pau Administrative Court was wrong to reject, by means of the impugned judgment, the association’s application to set aside the decision of 29 April 1988, taken on the basis of the aforementioned section 14 of the Law of 29 July 1881, by which the Minister of the Interior prohibited the circulation, distribution, and sale in France of the book entitled Euskadi at war, published by the association ...”
20. In a registered letter with recorded delivery received by the Ministry of the Interior on 2 December 1997, the applicant association presented the Minister with a claim for compensation for the pecuniary and non-pecuniary damage caused by the application of the unlawful order of 29 April 1988 for more than nine years. According to the applicant association, the implementation of this order amounted to tortious conduct on the part of the authority. It estimated the overall losses it had sustained at 831,000 French francs (FRF), including FRF 481,000 resulting from the financial loss deriving directly from the prohibition of sales of the book throughout France. To date it has not had any reply from the Minister of the Interior. Under the rules of French administrative proceedings, this silence counts as a refusal of the applicant association’s claim.
21. The general rules governing the freedom of the press guaranteed by Article 11 of the Declaration of the Rights of Man and the Citizen, which has constitutional status, are mainly based on the Law of 29 July 1881, as amended, which established a “repressive” system, so called because any offences that may have been committed are punished and any damage caused is made good ex post facto. This is the principle laid down by the Law of 29 July 1881, as amended, when it states in section 1 that “anyone may print or sell books and other publications” and in section 5 that “any newspaper or periodical may be published without prior authorisation or the payment of any security ...”.
22. The French rules governing publications do nonetheless include forms of prior intervention which can lead to bans or seizures but are always subject to respect for the principle that they must be proportionate to the facts which prompt them.
Such measures are justified only by the need to protect public order against any unrest caused, or liable to be caused, by the distribution or sale of a publication. The Conseil d’Etat ruled on 25 July 1930 (Abbé de Kervenoael, D.P. 1930, 497) that “the provisions of sections 18 et seq. of the Law of 29 July 1881 do not prevent mayors from taking measures under their general policing powers for the preservation of order and calm” and that “it is therefore their duty to prohibit the distribution on the public highway of written documents likely to cause unrest”.
Nonetheless, as was established in a judgment of the Jurisdiction Disputes Court of 8 April 1935 (L’action française, D.P. 1935, 3, 25, conclusions by Josse, note by Waline), these means may only be deployed if there is no other way of preserving or restoring public order. They must also be proportionate to the disorder and limited in their duration and geographical scope to what is strictly necessary.
Under section 51 of the Law, an investigating judge may order the seizure “of written or printed documents, placards or notices”, under the conditions laid down in the Code of Criminal Procedure and “in the cases contemplated in sections 24 (§§ 1 and 3), 25, 36 and 37 of the Law”. These cases are incitement to or vindication of crimes (section 24), inciting military personnel to disobey orders (section 25), and insulting heads of State and government and foreign diplomats (sections 36 and 37). Section 61 of the Law states: “If there is a conviction, the court may, in the cases contemplated in sections 24 (§§ 1 and 3), 25, 36 and 37, order the confiscation of any written or printed documents, placards or notices seized and, at any event, order the seizure and suppression or destruction of any copies put on sale, distributed or displayed in public. Suppression or destruction may however apply only to certain parts of the seized copies.”
23. In addition, section 62 of the Law of 29 July 1881, as amended, adds that, in cases of sentences passed under sections 23, 24 (§§ 1 and 2), or 25 –penalising incitement to or vindication of crimes – and 27 – penalising the offence of spreading false news – “the suspension of the newspaper or periodical may be ordered in the same judgment for a period not exceeding three months”.
24. Administrative review has also been introduced in respect of certain specific types of publication. The main categories concerned are publications intended for young people or which may pose a threat to young people and publications which are of foreign origin or drafted in a foreign language.
This is chiefly the result of implementing the Law of 16 July 1949, which established the specific rules governing “publications intended for young people” which may be applied to all publications posing a threat to this type of reader. These rules, which stem from a desire to protect young people, are in fact twofold in nature since they relate both to publications “mainly intended for children and adolescents” and to publications “of all types that may pose a threat to young people”.
A system of administrative supervision also operates pursuant to section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, which reads as follows:
“The circulation, distribution or sale in France of newspapers or texts written in a foreign language, whether periodicals or not, may be prohibited by a decision of the Minister of the Interior.
Newspapers and texts of foreign origin written in French and printed abroad or in France may also be prohibited.
When performed knowingly, the sale, distribution or reproduction of banned newspapers or written texts shall be punishable by a one-year prison sentence and a fine of 30,000 francs.
The same applies if the publication of a banned newspaper or written text is resumed under a different title. In this case, however, the fine shall be increased to 60,000 francs.
All copies and reproductions of banned newspapers and written texts and of any which resume publication under a different title shall be liable to administrative seizure.”
25. Case-law has fleshed out the conditions for the application of this rule. It has both defined the concept of “foreign origin” and established the grounds on which publications can be banned, wherever they are not laid down by statute.
26. The test used by the administrative courts to determine whether a publication is of foreign origin is made up of a number of strands woven together into the theory of “convergent evidence”. According to the submissions of Mr Genevois, the Government Commissioner in the case of the Minister of the Interior v. S.A. Librairie François Maspero (Conseil d’Etat (“CE”), Ass., 30 June 1980, A.J. 1980, p. 242), the Conseil d’Etat takes account of both material and intellectual factors: “The material factors are those relating to the conditions in which the text was printed. Even if it was printed abroad, a book written in French by a French author can be considered to be of foreign origin only if it is established that foreign assistance made possible or helped to make possible its production or publication ... The intellectual factors relate to the inspiration and the content of the book. It was on the basis of such factors that [the Conseil d’Etat] held that a publication which presented itself either as the French edition of a foreign publication or as the French edition of the texts and articles contained in that publication should be regarded as being of foreign origin within the meaning of section 14 even though the publishers were French (CE, Ass., 2 November 1973, S.A. Librairie François Maspero, p. 611).”
27. The Conseil d’Etat has regarded all the following factors as indications of a publication’s foreign origin: the author’s nationality and place of residence (CE, 18 July 1973, Monus, p. 527), the fact that the publication was a translation (CE, 19 February 1958, Sté les Editions de la terre du feu, p. 114), the nationality of the publisher and the country in which the text was published (CE, Ass., 2 November 1973, cited above), the country in which it was published or printed (CE, Sect., 9 July 1982, Alata, p. 281), the fact that foreign assistance was provided (CE, Sect., 4 June 1954, Barbier, p. 345), or foreign documentation and inspiration.
28. None of these factors suffices alone. For instance the fact that the author is a foreign national is not enough in itself for section 14 to be applicable. The status of the publication is decided on by considering all of these indications taken together.
29. Although the law did not indicate the grounds on which it should be applied, the case-law of the Conseil d’Etat has established the rule that section 14 can be applied only for certain reasons relating to the public interest and public order. Initially, the administrative courts did not carry out any review of the assessment of the facts warranting the measure nor, a fortiori, did they consider the proportionality of the measure. They checked whether the reasons given by the authorities to justify the use of section 14 were legitimate by ensuring that they duly came within the Law’s scope (see, for example, CE, 4 June 1954, Joudoux and Riaux, A.J. 1954, p. 360, and CE, 17 December 1958, Société Olympia Press, D.J., p. 175, concl. Braibant).
30. The main grounds which the Conseil d’Etat has considered to be “among those which can justify in law a measure taken under” section 14 of the Law of 1881, as amended, are as follows: the protection of public order (see, for example, CE, Ass., 2 November 1973, cited above), the immoral nature of the publication concerned (see, for example, CE, 17 December 1958, cited above), and the need to combat racist ideology, in particular the revival of national-socialist ideology (CE, 17 April 1985, Sté les Editions des Archers, p. 100).
31. Applications for judicial review of decisions taken by the Minister of the Interior under section 14 of the Law of 1881 may be made to the administrative courts and subsequent appeals lie to the administrative courts of appeal set up by the Law of 31 December 1987. The Minister’s decisions can also be quashed by the Conseil d’Etat which acted as the appellate court in such cases before the 1987 reform. On the other hand, stays of execution of bans on publications are not granted by the administrative courts since they consider that the damage caused by the application of such bans is not irreparable and accordingly is not of a nature to justify a stay of execution (CE, 28 April 1978, Sieur Alata and Société des éditions du Seuil, ADJA, July-August 1978, p. 398).
32. The administrative courts begin by carrying out a review of the “outward legality” of the measures taken under section 14, in other words they consider whether the authorities have respected the rules of jurisdiction, procedure and form. In so doing they pay particular attention to the grounds for the measure, which must comply with the Law of 11 July 1979, and verify that the rights of the defence, as set out in section 8 of the decree of 28 November 1983, have been respected. This decree, which applies to the authors of publications covered by section 14 of the Law of 1881, as amended, and to those whose writings are covered by the law on publications intended for, or posing a threat to, young people, provides that, “save in exceptional or emergency situations and subject to the requirements of public order”, such decisions “may legally be taken only once the party concerned has been given the opportunity to submit written observations. Anyone concerned ... must be heard, if he or she so requests, by the official responsible for the case or, failing that, a person authorised to record his or her oral observations. Such persons may be assisted or represented by a lawyer of their choice”.
33. Secondly, the administrative courts also review the “internal legality” of the measures concerned, the scope of which changed on promulgation of the legislative decree of 6 May 1939. The Conseil d’Etat has always made sure that the authorities have had good grounds to describe the publication as being “of foreign origin”, that they have made no legal error in the application of the law, that they have not based themselves on factually inaccurate evidence and that they have not abused their powers. However, in their earlier decisions, the administrative courts did not review the assessment of the threat posed to public order or the public interest by the publication at issue.
34. A major development in the case-law on this matter has occurred since.
35. Initially, in its Judicial Assembly judgment of 2 November 1973 (S.A. Librairie François Maspero, cited above), the Conseil d’Etat decided to broaden its review of the legality of ministerial decisions taken under section 14 of the Law by extending it to cover manifest errors of judgment, that is by checking that a serious error of judgment had not led to a manifest disproportion with the facts that had prompted them.
36. Then, when the applicant association brought the instant case before it, the Conseil d’Etat decided to depart from its previous case-law and broaden the scope of its review. The effect of the Conseil d’Etat’s ruling of 9 July 1997 is that the administrative courts must conduct a “full” review of the grounds for the decision. In its judgment the Conseil d’Etat held that it is the administrative courts’ duty to “consider whether the banned publication is likely to cause such damage [to the general interests for which the Minister is responsible] as to warrant an infringement of public freedoms”.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58911
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF LAINO v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 6. On 15 March 1990 the applicant petitioned the Naples District Court for judicial separation from his wife, Mrs R. He also requested the court to determine the arrangements for custody of the children and use of the family home.
7. On 22 March 1990 the presiding judge of the court set down for 12 July 1990 the hearing on the attempt that had been made to reach a settlement. After finding that the attempt had failed, the presiding judge provisionally awarded custody of the children (born in 1984 and 1988) and use of the house to Mrs R., granted the father access twice a week (from 4 p.m. to 6 p.m. on Thursdays and from 10 a.m. to 1 p.m. on Sundays) and ordered him to pay Mrs R. maintenance of 600,000 Italian lire (ITL) a month. Lastly, he asked the parties to appear before the examining judge on 11 October 1990.
8. Three hearings (on 11 October 1990 and 7 March and 10 October 1991) were adjourned at the applicant’s request on the ground that the parties were trying to settle their dispute out of court.
The preparation of the case for trial was not resumed until 13 February 1992. After a hearing, evidence was heard from four witnesses on 22 April 1993. A hearing on 25 November 1993 was adjourned by the court of its own motion to 15 December 1994.
9. On that date, as the respondent had requested, the judge responsible for preparing the case for trial ordered the case file to be sent to the District Court at Nola (province of Naples), which now had territorial jurisdiction to try the case.
The date set for the hearing before that court was not until 8 May 1997. On that day, however, the proceedings were adjourned by the court of its own motion to 10 July 1997 because the judge preparing the case for trial was absent. The parties filed their pleadings on 13 November 1997 and the hearing before the relevant division was held on 8 May 1998.
10. In a judgment of 27 May 1998, the text of which was deposited with the registry on that day, the court pronounced the couple judicially separated, confirmed the provisional measures regarding custody of the children and use of the family home and increased the maintenance to ITL 800,000 a month.
11. Neither of the parties appealed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4511
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SARUMI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant is a Nigerian national, born in 1958. He is currently being detained in an Immigration Deportation Centre awaiting removal to Nigeria.
The facts of the case as set out by the applicant and as deduced from the case file can be summarised as follows:
The applicant arrived in London on 12 September 1984 and was given leave to enter the United Kingdom for one month as a visitor. He was subsequently granted leave to extend his stay until 31 July 1985 to pursue a course of studies. Further leave to remain beyond that date was refused on 10 December 1985 and he was warned on 21 February 1986 that he was liable to be deported. A deportation order was signed on 29 May 1986. The applicant alleges that he never received notice of that order and that it only came to his attention in February 1995 when his solicitor contacted the Home Office about his status in the United Kingdom.
On 27 May 1995 the applicant came to the notice of the Home Office when he was arrested on suspicion of having submitted a fraudulent social security claim. A deportation order was served on the applicant on 8 June 1995. The applicant's appeal against the order was rejected as being out of time.
On 12 March 1997 the applicant was detained at a London police station. He requested political asylum the same day. He was interviewed by Immigration Officers on 12 March and on 8 and 18 April 1997 about the grounds for his asylum request. At the interview conducted on 18 April 1997 the applicant alleged for the first time that in 1984 he had become caught up in a plot to overthrow the military regime in Nigeria when serving as an officer in the Nigerian Defence Academy. The plot was uncovered and he had to flee Nigeria since he feared for his life. The Secretary of State refused his request on 23 April 1997, finding that the applicant had given contradictory accounts of his reasons for leaving Nigeria which called into question the credibility of his claim. For the Secretary of State it was significant that the applicant had not made a request for political asylum until March 1997 although he had arrived in the United Kingdom in 1984.
On 30 September 1997 a Special Adjudicator rejected the applicant's appeal against the decision of the Secretary of State, being of the view that the applicant was not a truthful and reliable witness and had not substantiated his account of the events relied on in his asylum request.
In a letter dated 24 October 1997 the applicant made fresh representations to the Secretary of State claiming that he feared persecution on religious grounds if he were deported to Nigeria. The Secretary of State informed the applicant by letter dated 29 October 1997 that he had not adduced any new elements which would lead him to reconsider his earlier decision. On 8 November 1997 the applicant was removed to Nigeria but was returned to the United Kingdom the following day. It would appear that the Nigerian immigration authorities refused the applicant entry since he claimed to be a Ghanaian national on arrival. On being returned to the United Kingdom the applicant made a further request for political asylum on the grounds that he had a well-founded fear of religious persecution if deported to Nigeria. His request was refused and he appealed to the Special Adjudicator who rejected his appeal following a hearing held on 10 February 1998. The Special Adjudicator found that the applicant had not substantiated his fear of religious persecution and questioned the truthfulness of the factual basis of his claim. The Special Adjudicator concluded that the claim was frivolous and lay outside the scope of the Geneva Convention.
The applicant sought judicial review of the decision to remove him to Nigeria on the grounds that the United Kingdom authorities had procured a travel document for him from the Nigerian High Commission without his consent. On 17 August 1998 his application was refused.
Since arriving in the United Kingdom the applicant has formed a relationship with a Nigerian woman, who, according to Home Office records, is an overstayer with no claim to remain in the United Kingdom. Two children have been born in the United Kingdom from that relationship, one in 1988 and the other in 1992.


ITEMID: 001-84329
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GLESMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1;No violation of Art. 8
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1948 and lives in Berlin.
6. She is the mother of a daughter S., born in wedlock on 19 September 1990.
7. On 9 December 1996 the applicant filed a petition to be divorced from the child’s father. In February 1997 she requested to be granted sole parental authority.
8. On 19 June 1997, during a hearing before the Pankow-Weissensee District Court (Amtsgericht) in proceedings relating to divorce and parental authority, both parents declared their consent to the child’s temporary placement in a foster family. This measure was originally planned for a short period of time during which a court-appointed expert was to prepare his opinion on custody rights and aimed at preventing the child’s welfare being jeopardised by serious tensions arising from her parents’ divorce proceedings. According to the applicant’s submissions, which are contested by the Government, she gave her consent only under the threat that the child would otherwise be permanently placed in a children’s home.
9. On 25 June 1997 S. was placed in the care of a foster family. According to the applicant’s submissions, which are contested by the Government, the applicant was not informed about the foster parents’ place of residence for almost two years and was thus prevented from exercising access rights.
10. On 3 July 1997 the District Court ordered the preparation of an expert opinion on the questions of parental authority and access rights.
11. On 9 February 1998 the expert E. submitted her expert opinion. She considered that the child S. suffered from a serious emotional disorder which had been caused by family tensions and that S. should be offered psychotherapy in order to overcome her traumata. The decision on custody and access rights should be suspended until the child had stabilised.
12. In August 1997 a scheduled visiting contact with the applicant failed because of the child’s objections. On 11 September 1997 the District Court suggested that visiting contacts with both parents should be suspended during the child’s examination or should only take place with the expert’s collaboration. By letter of 23 October 1997 the applicant’s counsel supported the proposal that both parents’ access should be suspended in order to prevent the father from negatively influencing the child.
13. On 9 July 1998 the applicant consented to the child’s remaining with the foster family for the duration of the necessary psychotherapy, which she estimated at one year.
14. On 29 October 1998, during the hearing on the parents’ divorce, both parents’ counsels unanimously declared that they presently did not lodge any motions regarding parental authority. The divorce was decreed on that same day.
15. On 28 January 1999 staff members of the Youth Welfare Office, of the Child and Youth Psychiatric Service and the expert E. discussed the child’s therapy requirements. In the course of the discussion the Child and Youth Psychiatric Service, whose recommendation was necessary for instigating therapeutic measures, convinced the expert that S. was not in need of psychotherapy.
16. On 10 February 1999 the applicant filed a motion with the Pankow-Weissensee District Court with the aim to be granted regular access rights to her daughter. She declared that she presently did not wish to have the child’s placement with the foster family terminated.
17. On 23 March 1999 the Child and Youth Psychiatric Service submitted its report. They considered that psychotherapy was currently not necessary, as the child’s psychological situation had considerably improved and stabilised. It was proposed to instigate contacts between the child and her parents under psychotherapeutic or pedagogical guidance.
18. On 21 April 1999 the Youth Office, the applicant and S.’s father agreed on three initial visiting contacts under the supervision of a family assistant.
19. By letter dated 23 July 1999 the applicant urged the District Court to promote the proceedings.
20. On 9 September 1999 the District Court held a hearing in the presence of the applicant, the child’s father and their counsels. The parties agreed that a supplementary expert opinion should be commissioned as to how visiting contacts could be instigated and the child’s return prepared. The District Court judge emphasised that visiting contacts should take place at least once per month in order to avoid further alienation.
21. On 10 September 1999 the District Court ordered the parents to advance the costs for the expert opinion. On 26 October 1999 the applicant advanced her share of the costs. On 9 February 2000 the District Court, following the applicant’s enquiry, informed her that the father had failed to advance his share of the costs. On 6 March 2000 the applicant advanced the father’s share of the costs.
22. On 6 March 2000 the District Court ordered the psychological expert H. to prepare an expert opinion on how parental authority, the child’s residence and access to the child should be regulated.
23. On 28 June 2000 the applicant urgently requested the District Court to be granted parental authority and the right to decide on the child’s residence with the aim to return the child to the applicant’s household.
24. On 29 June 2000 the District Court informed the applicant that the outcome of the expert examination should be awaited.
25. On 24 August 2000 the expert informed the court that the termination of the expert opinion had been delayed by an attempt to return the child to the applicant and announced that he would submit his opinion by mid-September at the latest.
26. On 23 October 2000 the District Court received H.’s expert opinion. Having on several occasions heard and examined both parents, the child S., the foster family and the Youth Office, the expert found that S. felt at ease within the foster family, where she was well taken care of and encouraged. The expert further noted that both parents were in principle able to raise the child. However, the child’s relationship with her mother was seriously disrupted. An attempt gradually to return the child to the applicant had failed. Having initially agreed to visits, the child had been deeply disturbed by an overnight stay and expressed the wish not to visit her mother again. The expert concluded that the child’s fears could be handled once she could rest assured to permanently remain in the foster family. The expert suggested that the child should remain in the foster family, that the Youth Office should be granted the right to decide about the child’s place of residence and that visiting rights with the parents should be limited to one visit per month in order to allow the child to stabilise. The expert further stressed that S. was in need of psychotherapy.
27. On 15 January 2001 the applicant requested to be granted parental authority and that the child be returned to her.
28. On 22 January 2001 the child’s father opposed the applicant’s request and proposed to leave the child with the foster family.
29. On 26 January 2001 the District Court held a hearing in the presence of the applicant, the child’s father, a representative of the Youth Office, the child S. and the foster parents. All parties to the proceedings agreed that the child should be offered therapy without further delay. During the time of therapy, which was estimated at fifteen months, S. should stay with the foster family and the parents should be granted access at least once per month. The parties further agreed that no decisions should presently be taken on the pending motions on parental authority and the determination of the child’s place of residence.
30. On 26 March, 25 April and 9 July 2001 the applicant informed the District Court that visiting contacts had failed due to the child’s resistance and the foster parents’ lack of cooperation. On 10 July 2001 the applicant requested the court to give a decision on her motions.
31. On 16 July 2001 the court informed the applicant that it did not serve the child’s best interests to interfere with the current process of consolidation and asked the applicant if she requested the court to give a decision.
32. On 30 July 2001 the applicant confirmed that she requested that a decision be given on her motions.
33. On 3 September 2001 the District Court judge heard the child S. who declared that she felt at ease with the foster family and wished to remain there. S. further stated that the monthly contacts with her mother were not good since she did not feel at ease with her, while the monthly contacts with her father were good.
34. On 21 September 2001 the applicant requested the District Court to appoint a curator ad litem to represent the child. On 25 October 2001 the District Court appointed a curator ad litem and requested the Youth Office to report on the development of psychotherapy.
35. On 9 February 2002 the child’s curator informed the court that she would need another six weeks to prepare her submissions.
36. On 5 March 2002 the applicant requested that a court decision be given immediately. On 15 March 2002 the District Court judge informed the applicant that he awaited the curator’s submissions.
37. On 25 March 2002 the applicant informed the District Court that psychotherapy had been terminated and complained about the conduct of the proceedings.
38. On 25 March 2002 the child’s curator submitted her statement to the court. She reported that S. wished to live with the foster family and was seriously opposed to contacts with her parents. The curator recommended that this wish be respected.
39. On 28 June 2002 the court requested the Youth Office to report on the child’s present life circumstances and on the discontinuation of therapy.
40. On 21 October 2002 the Youth Office submitted a report by the psychologist L. dated 30 August 2002. According to the Youth Office, it had not been able to submit the report earlier as the applicant had not given her authorisation for release of medical information.
41. In her comments, L. reported that her attempts to build up contacts with S. had failed due to the child’s resistance to any such efforts. She had discontinued psychotherapy on 5 March 2002 as a continuation of her efforts would be harmful for the child’s development. The expert further noted that S. suffered from a trauma caused by the life circumstances in her family of origin and that she tried to distance herself from her parents. The expert further expressed the opinion that the proceedings had been burdened by a number of shortcomings. Under the present circumstances, the parents had to cope with the fact that it was in the child’s best interest to remain with the foster family. However, it was essential for both the parents and the child that visiting contact were not discontinued completely.
42. On 13 December 2002 the Youth Office recommended that S. should stay with the foster family until reaching majority and that no contacts should be instigated against the child’s wishes.
43. On 6 January 2003 the District Court proposed that the parents should abstain from making use of access rights for one year and that contact should be carefully re-established afterwards.
44. On 15 January 2003 the applicant rejected this proposal and submitted that recent visiting contacts between herself and her daughter had developed in a more positive way.
45. On 24 April 2003 the Pankow-Weissensee District Court, following a hearing attended by the parents, the child’s curator ad litem, two representatives of the Youth Office and the foster parents, withdrew parental authority from the parents and transferred it to the Youth Office. Furthermore, visiting contacts between the child and her parents were suspended for one year.
46. The District Court considered that the applicant was unable to accept the child’s wishes and her present life circumstances within the foster family. She was, in particular, unable to accept that a parent-child relationship had developed between the child and her foster parents. Accordingly, she was unable to try to alleviate the conflict constantly arising from this situation. Taking into account the fact that the child was deeply rooted within the foster family, it would be potentially harmful for the child’s well-being to remove her from there, as requested by the applicant.
47. The District Court further considered that S.’s father had shown great understanding with regard to the child’s needs and that he had given his consent to the child’s remaining with the foster family. However, transferring sole parental authority to the father would distort the situation of conflict the child was exposed to and could jeopardise her psychological well-being. It followed that parental authority had to be withdrawn from both parents and transferred to the Youth Office.
48. Finally, the District Court considered that, taking into account the child’s serious objections, the applicant’s tendency to massively interfere with the child’s life in the foster family and the need to stabilise and strengthen the child, access rights would very probably jeopardise the child’s well-being and had to be suspended for one year.
49. This decision was served on the applicant’s counsel on 9 July 2003. On 8 August 2003 the applicant lodged an appeal with the Berlin Court of Appeal (Kammergericht). She emphasised that the child’s placement in the foster family had been devised as a temporary measure and considered the measures taken by the District Court to be disproportionate.
50. On 13 November 2003 the child’s curator submitted her comments. She considered that the child’s persistent wish not to see her parents should be respected.
51. On 9 January 2004 the child’s father submitted his comments. He considered that the child should remain with the foster family, but requested to be granted monthly access rights.
52. On 12 January 2004 the Court of Appeal held a hearing in the presence of S., her curator ad litem, her parents, the foster parents and a Youth Office representative.
53. Following the hearing, the Court of Appeal quashed the District Court’s decision, transferred sole parental authority to the child’s father and granted the applicant visiting rights once per month for five and a half hours each.
54. Referring to the opinion submitted by the court-appointed expert H. and to the comments submitted by the therapist L., the Court of Appeal considered that the relationship between the child and the applicant had to be regarded as problematic. The applicant’s wish to remove the child from the foster family would cause the child serious psychological damage. All parties heard in the proceedings had confirmed that the child found a sense of security and stability in the foster family, where she had been living for six and a half years. The child had consistently expressed the wish to live with the foster family as a full family member.
55. The Court of Appeal conceded that the alienation between the applicant and her daughter had to a substantial degree been caused by the period of time which had elapsed since her placement in the foster family, which was originally planned as a short-time measure. The proceedings could and should have been conducted in a considerably more stringent way. However, the decision had to be taken in accordance with the child’s welfare, which was not defined by earlier shortcomings of the proceedings. The child’s welfare required to assure her that she could remain with the foster family without having to fear that her stable life situation would change for reasons which she could not understand.
56. The Court of Appeal noted, however, that the prerequisites of section 1666 of the Civil Code had not been met, as the child’s father was able and willing to accept the child’s wishes and to co-operate with both the Youth-Office and the foster family. Accordingly, sole parental authority was to be awarded to him.
57. The Court of Appeal finally found that there were no reasons to suspend the applicant’s access rights. While the child S., when heard by the Court of Appeal, had confirmed that she did not have any interest in meeting her mother, she had also declared that she was ready to visit her once per month if the court proceedings and permanent hearings would come to an end. The Court of Appeal considered monthly visits of five and a half hours each necessary and sufficient to give the applicant and her child the possibility to get closer again. It also stated that the child was free to visit her mother at any other time if she should wish to do so.
58. On 1 March 2004 the applicant lodged a complaint against the Court of Appeal’s decision, in which she gave a full account of the proceedings before the civil courts and alleged that the impugned decision was disproportionate and violated her right to the enjoyment of her family life under Article 6 of the Basic Law.
59. On 8 March 2004 the Federal Constitutional Court’s Registry requested the applicant’s counsel to submit a copy of the District Court’s decision dated 24 April 2003. On 22 March 2004 the applicant’s counsel submitted the requested document.
60. On 12 October 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication pursuant to the relevant provisions of that court’s Rules of Procedure without giving any further reasons.
61. On 2 July 2002 the Reinickendorf-Berlin District Council (Bezirksamt) ordered the applicant to contribute a specific amount to the costs incurred by the accommodation of her daughter in the foster family from 25 June 1997 until 31 December 1998.
62. On 4 June 2004 the Berlin Administrative Court (Verwaltungsgericht) rejected the applicant’s complaint. On 19 September 2005 the Berlin-Brandenburg Administrative Court of Appeal (Oberverwaltungsgericht) refused to grant the applicant leave to appeal.
63. If parents holding joint custody separate permanently, either parent may apply to be awarded full parental authority pursuant to section 1671 of the Civil Code. The family courts will follow this request if the other parent gives his or her consent or if it is to be expected that withdrawal of parental authority from one parent and transferral to the other best serves the child’s interests.
64. Pursuant to Section 1632 § 1 of the Civil Code parental authority comprehends the right to order anybody – who unlawfully deprives the parents or one parent of their child – to have their child returned.
65. According to section 1684, a child is entitled to have access to its parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered (section 1684 § 4).
66. Section 1666 provides that in cases of a danger to the child’s welfare the court shall order the necessary measures. Pursuant to section 1666a § 1 measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities. The right of personal custody may only be withdrawn in its entirety if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger.
67. Section 50 § 1 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) determines that in proceedings concerning a minor child, the Family Court may appoint a curator ad litem (Verfahrenspfleger) for that child to assist him or her if this should be necessary for the protection of his or her interests.
68. Pursuant to section 50 § 2, the appointment of a curator ad litem is usually necessary where the child’s interests conflict substantially with those of his legal representative, where the subject-matter of the proceedings concerns measures to be taken to avert a risk to the child’s well-being involving a separation of the child from his or her family or the withdrawal of full parental authority or where the subject matter concerns the child’s removal from the foster carer, spouse, partner or person entitled to access.
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1