ITEMID: 001-67352
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MARAŞLI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1;Not necessary to examine Art. 6-3-b;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1956 and lives in Germany.
5. The applicant wrote an article entitled “Kurdistan: will it become a common colony of Europe?” in “Newroz”, a weekly newspaper published in Istanbul.
6. The article read:
“The Turkish bourgeoisie has being advancing their intention of associating with the European Community since the date of the Treaty of Rome. However, the economic and political problems of Turkey have not been solved since that date. The conditions for association have not been established either.
On the other hand, the founders of the European Union are not keen on taking on board a huge problem with its fifteen million unemployed people and serious economic and social problems.
Considering the still unresolved problems of German unification and the unexpected economic integration of East European countries, the acceptance of Turkey by the Community definitely seems impossible.
However, Europe does not want to keep out Turkey completely. It is keen on keeping Turkey within its hinterland as an investment area and a market. The dilemma of either being part of Europe or outside Europe is a common thread.
Briefly, the structural problem of Turkey and the unwillingness of Europe for association with it intersect. On the one hand, the pressures on Turkey from the various institutions of European association on matters such as “Democracy”, “Human Rights”, “the Kurdish Problem”, etc. reflect the reaction of domestic public opinion in Europe. On the other hand, these pressures are being used as an excuse to keep Turkey out.
The above issue has to be emphasised in order to point out the defects in the sincerity both of the approaches to the solution of the Kurdish problem and the idea that the European institutions are the purest supporters of democracy and human rights.
The customs union seems an acquired right or an opportunity for Turkey. However, it also seems very difficult for Turkey, having regard to her political and economical problems.
The way to the customs union and the European Union will result in important changes for the Kurdish National Movement. In the first instance, Kurdistan, already shared by the colonialist Middle East States, will become a common colony of Europe along with her Turkish part. Accordingly, Kurdistan's political and social problems which originate from her colonial status will be directly addressed to Europe.
It will become easier for Turkey to control Kurdistan by economic means than has been the case with its control through military force and political violence. This means that Kurdistan will become an economic and political environment for Turkey such that she will have neither the need for, nor the possibility to keep, Kurdistan as a classic colony.
One of the direct political effects of this situation will be Europe's insistence on the direct application of its rules to solve the Kurdish problem. Europe is closely interested in both national matters and in the Kurdistan problem and has its own experiences of colonialism.
Another political effect is that most of the Kurdish refugee organisations in Europe are supporting and promoting the European solution. This approach considers the future of the Kurdish community in a Turkish Republic associated with Europe. Kurdish intellectuals in Europe are also supporting this approach and conveying their political message to Kurdistan.
Any possible tension with Europe will have a direct effect on the politics of the subject groups. The improvement of relations or a possible customs union with the European Union will benefit this approach and will have increased political effect or will gain more acceptance from the Turkish Government in consequence.
However, the Kurdish Revolution has already abolished the classical colonial conditions and has stressed the need for a local/national solution.
The dimensions of the problem and the strict militarist bureaucracy of the Turkish political structure prove that Europe is not and will not be the determining factor for either Turkey or Kurdistan.”
7. On 13 February 1995 the public prosecutor at the Istanbul State Security Court accused the applicant of disseminating propaganda against the unity of the Turkish nation and the “indivisible unity of the State”. He requested, inter alia, that the applicant be convicted under section 8 of Law No. 3713. He relied on the terms of the above article in support of his application. During the proceedings an amendment to section 8 entered into force (Law no. 4126) and, in consequence, the public prosecutor pressed for the applicant's conviction on the strength of the new amendment which increased the level of the fine for the offence with which he was charged but reduced the term of imprisonment which could be imposed.
8. In the proceedings before the Istanbul State Security Court the applicant acknowledged that he had drafted the article and asserted that the expression of an opinion could not constitute an offence.
9. On 13 December 1996 the Istanbul State Security Court, composed of three judges including a military judge, found the applicant guilty as charged. It ruled that the impugned article referred to a particular region of Turkey as “Kurdistan” and that the applicant's comments, taken as a whole, amounted to separatist propaganda. The court sentenced the applicant under section 8(1) of Law no. 3713, as amended by Law no. 4126, to one year, eight months and ten days' imprisonment and a fine of 111,111,111 Turkish liras (TRL) (847 euros (EUR)), to be paid in twenty monthly instalments.
10. On 12 June 1997 the Court of Cassation upheld the judgment of the State Security Court. The judgment of the Court of Cassation was deposited with the Registry of the first-instance court on 10 July 1997.
11. The relevant domestic law and practice in force at the material time are outlined in the following judgments: İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, §§ 41-42, 10 October 2000; Mehdi Zana v. Turkey, no. 26982/95, § 21, 6 April 2004; Özel v. Turkey, no. 42739/98, §§ 20-21, 7 November 2002; and Gençel v. Turkey, no. 53431/99, §§ 11-12, 23 October 2003.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103063
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DOWSETT v. THE UNITED KINGDOM (NO. 2)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr James Dowsett, is a British national who was born in 1946. He is currently detained at HMP Highpoint. He was represented before the Court by Mrs N. Mole, a lawyer practising in London with the AIRE Centre.
On 22 March 1989 at Norwich Crown Court the applicant was convicted of the murder of Christopher Nugent and sentenced to life imprisonment. Mr Nugent had been the applicant’s business partner. He was shot and killed at their business premises on 15 December 1987 by Stephen Gray, who left the scene of the crime in a car driven by Gary Runham. The applicant was charged with murder jointly with Runham, Gray and two other men who had allegedly provided money to pay for the killing of Christopher Nugent. The Crown’s case was that the applicant had paid Runham and Gray 20,000 pounds sterling (GBP) to kill Nugent. The applicant’s defence was that he had only hired Runham and Gray to break one of Nugent’s limbs. Runham and Gray pleaded guilty to murder. Gray gave evidence for the prosecution against the applicant concerning the alleged murder conspiracy.
In 1993, following a review of the prosecution’s duty of disclosure, 4,000 “actions” in the criminal investigation, which were contained in the police’s “Holmes” computer system, were disclosed to the applicant. Full disclosure of material gathered in the course of a separate fraud inquiry was also made. Prior to an appeal by the applicant to the Court of Appeal, he was served with a schedule of what material was still being withheld from him; this included a document numbered 580, a letter from Gray’s solicitors to a Suffolk police officer, which discussed a prison transfer and the possibility of the police supporting his early release from prison. Document no. 580 subsequently came into the applicant’s possession, though, in proceedings before this Court (see section 2 below), there was a dispute between the parties as to whether the applicant had received it before the appeal hearing.
Following the dismissal of the applicant’s appeal, an application was introduced with this Court and, in its judgment of 24 June 2003, the Court found that there had been a violation of the applicant’s right to a fair trial. The Court was not persuaded that the Government had shown that document no. 580, relevant to the applicant’s defence, was made available to his counsel in time for use at the appeal. It went on to state that this finding was not, however, essential to its reasoning as, in any event, it was not in dispute that other documents were not disclosed at this time, on the basis, inter alia, of the prosecution’s assessment that public interest immunity was applicable to them. Moreover, a request to the Court to Appeal that it review the undisclosed material was not to be regarded as an adequate safeguard as the Court of Appeal would neither have been assisted by defence counsel’s arguments as to its relevance nor have been able to draw on any first-hand knowledge of the evidence given at trial.
On 16 September 1999 the applicant applied to the Criminal Cases Review Commission to have his case referred back to the Court of Appeal but asked the Commission to defer its report until this Court had given judgment. On 25 July 2005 the Commission informed the applicant of its final decision not to refer his case to the Court of Appeal.
In its examination of the case, the Commission exercised its powers under section 17 of the Criminal Appeal Act 1995 (see relevant domestic law and practice below) to obtain and examine the undisclosed material, including document no. 580. It concluded that, aside from document no. 580, nothing seen by the Commission was thought to be either prima facie disclosable or to impact upon the safety of the applicant’s conviction. In the absence of any further undisclosed information that could have undermined the prosecution case or assisted the applicant’s defence, the Commission confined its consideration to whether or not the non-disclosure of document no. 580, along with this Court’s assessment of that nondisclosure, gave rise to a real possibility that the Court of Appeal would quash the conviction. In the Commission’s view, it did not. Despite the expiry of the tariff period of his life sentence, Gray remained in custody at the time of the Commission’s report; there was nothing in the Prison Service’s files that would have undermined his evidence at trial and the Commission had not uncovered any material that could have been used by the applicant’s defence team to more effectively cross-examine him. There was nothing remarkable in the fact that Gray had been given a degree of protection by the authorities before trial and document no. 580 would not have led to any line of cross-examination that was not already open to the applicant. At paragraphs 7.48 and 7.49 of its report the Commission gave its final conclusion as follows:
“The ECtHR has itself pronounced that the material non-disclosure was a breach of Mr Dowsett’s rights, a factor that has been weighed heavily by the Commission... The Commission can only conclude that Document 580 was a letter showing that Mr Gray was being held in isolation from his co-defendants, that the police were facilitating visits for his wife and that he was hopeful for relatively favourable treatment (compared, at least, to his co-defendants) in terms of his life sentence. In the view of the Commission, this new information, taken in any combination with any other frailties in the prosecution case, is not sufficient to lead the Commission to believe that there is a real possibility that any properly directed jury might reasonably have reached a different decision in Mr Dowsett’s case.”
The applicant sought judicial review of the Commission’s decision. On 7 June 2007, this was refused by the High Court. Mr Justice Mitting observed:
“[The Commission was plainly entitled to reach the view that it did and so to refuse to refer. For those reasons I would dismiss this application for judicial review; but, before doing so, it is useful by way of a check to analyse what might happen if, contrary to the view that I have expressed, the Commission were to refer this case to the Court of Appeal Criminal Division.
As the Strasbourg court demonstrated in this case and as it has done in other circumstances and in other cases, for example Doorson v The Netherlands [1996] 22 EHRR 330, procedures in an appellate court can cure a defect in a trial at first instance. Thus, for example, as in Doorson, the ability to cross-examine a witness not available at first instance but available on appeal may cure that defect. In this case, as the Strasbourg court held, the opportunity for the Court of Appeal to review, in the light of submissions made by the defence, documents that have been disclosed to the defence cured the defect in disclosure in the court below. It must therefore follow that, on a reference, document D580, available to the defence and to the court, would be open to be considered by the court in circumstances in which its consideration would cure the failure to disclose in the court below. Likewise, in relation to the documents only listed but still not disclosed, two possibilities exist for the defect in the court below to be cured. The Crown might decide that, after the lapse of 20 years, it was no longer necessary to maintain public interest immunity in respect of the documents. Alternatively a special advocate might be appointed to examine them on behalf of the claimant.
In either event, the defect below would potentially at least be curable. Accordingly, the effect of a reference by the Commission in this case, if its judgment is right, would be that an otherwise perfectly safe conviction would not only be upheld but also would be upheld in circumstances in which the claimant’s Article 6 rights would ultimately be fully vindicated by the appeal process. To embark on that course, if the judgment of the Commission is right, would be an academic exercise only. In my view there would be no purpose of justice to be served by requiring the Commission and the Court of Appeal to undertake it.”
Lord Justice Laws added:
“A conviction would not be upheld if and only if the Court of Appeal were to consider it unsafe. Unless the finding by the European Court of Human Rights of a violation of Article 6 necessarily entails the conclusion that the verdict is unsafe, the impact of that finding was for the CCRC to evaluate in the course of their consideration of the section 13(1)(a) question [see relevant domestic law below]. It seems to me that their treatment of it is beyond the reach of sensible challenge in court.
I agree with my Lord [Mr Justice Mitting] that not every criminal case where there has been a finding of violation of Article 6 yields the conclusion that the verdict is unsafe and I adopt with gratitude his summary of the relevant learning. While any breach of Article 6 is plainly a cause of concern, and instances of such breaches in cases where the conviction is nevertheless safe may be few and far between, in this area one would not expect to see a rigid rule with no exceptions but a case by case approach with much emphasis laid on the gravity and effect of a particular violation.”
At its 1020th meeting from 4–6 March 2008 the Committee of Ministers, having taken note of the proceedings before the Criminal Cases Review Commission and the High Court’s judgment, decided to close its examination of the case.
The Criminal Cases Review Commission is regulated by the Criminal Appeal Act 1995. Where a person has been convicted on indictment, section 9(1) gives the Commission the power to refer at any time the conviction to the Court of Appeal. By section 9(2), any such reference is to be treated for all purposes as an appeal by the person concerned against conviction. Section 13 sets the conditions for making references. It provides:
“(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless —
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider—
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”
Section 17 of the Act provides:
“(1) This section applies where the Commission believe that a person serving in a public body has possession or control of a document or other material which may assist the Commission in the exercise of any of their functions.
(2) Where it is reasonable to do so, the Commission may require the person who is the appropriate person in relation to the public body—
(a) to produce the document or other material to the Commission or to give the Commission access to it, and
(b) to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate,
and may direct that person that the document or other material must not be destroyed, damaged or altered before the direction is withdrawn by the Commission.
(3) The documents and other material covered by this section include, in particular, any document or other material obtained or created during any investigation or proceedings relating to—
(a) the case in relation to which the Commission’s function is being or may be exercised, or
(b) any other case which may be in any way connected with that case (whether or not any function of the Commission could be exercised in relation to that other case).
(4) The duty to comply with a requirement under this section is not affected by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by or by virtue of an enactment) which would otherwise prevent the production of the document or other material to the Commission or the giving of access to it to the Commission.”
On 19 January 2000, at the 694th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to bring about a closer union between its members;
Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’);
Noting that under Article 46 of the Convention ... the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights (‘the Court’) in any case to which they are parties and that the Committee of Ministers shall supervise its execution;
Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum);
Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system;
Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court’s judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum;
I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum;
II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of reexamination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where:
(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and
(ii) the judgment of the Court leads to the conclusion that
(a) the impugned domestic decision is on the merits contrary to the Convention, or
(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.
Explanatory memorandum on Recommendation R (2000) 2:
...
Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist.
...”


ITEMID: 001-4811
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BÖLÜKBAS AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals.
They are represented before the Court by Mr Vural Soytekin, a lawyer practising in İstanbul (Turkey).
s, may be summarised as follows.
The applicants, accused of being members of the illegal organisation Dev-Yol (Revolutionary Way), were taken into police custody on various dates between August 1980 and October 1980.
In 1983, the military public prosecutor instituted criminal proceedings against the applicants in the Erzincan Martial Law Court. It was alleged that the applicants were members of an illegal organisation aiming to undermine the constitutional order and to replace it with a Marxist-Leninist regime. The prosecution called for the applicants to be sentenced pursuant to Section 146 of the Turkish Criminal Code, which regulates felonies against the state.
The applicants were released pending trial (Saim Bölükbaş on 25 February 1987, Hasan Salbaş on 3 May 1988, Mesut Uygun on 9 June 1983 and Mustafa Sarıtaş on 26 January 1984).
On 24 August 1988 the Martial Law Court delivered its judgment. It convicted Saim Bölükbaş and Hasan Salbaş as charged and sentenced them to imprisonment. The Court further decided that Mustafa Sarıtaş and Mesut Uygun be acquitted of the charges against them. On 17 December 1990 the decision as to the acquittal of Mesut Uygun became final, as the public prosecutor did not appeal against him.
The public prosecutor challenged the judgment of the first instance court as regards Mustafa Sarıtaş. The other two applicants, Saim Bölükbaş and Hasan Salbaş also appealed against their conviction. Pursuant to the law No. 3953, promulgated on 30 December 1993 the case-file was transferred to a non-military court, namely, the Court of Cassation. On 4 July 1995 the Court of Cassation delivered its decision. It upheld the sentence of Hasan Salbaş. As to the applicants Saim Bölükbaş and Mustafa Sarıtaş, the Court of Cassation ordered that the criminal proceedings be terminated on the ground that the statutory time-limit under Section 102 of the Turkish Criminal Code had expired.
The decision was not officially served on the applicants. However, the applicants’ lawyer obtained a copy of this decision in July 1995.


ITEMID: 001-58041
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1997
DOCNAME: CASE OF H.L.R. v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3 (in case of expulsion to Colombia)
JUDGES: R. Pekkanen
TEXT: 8. H.L.R., who is a Colombian national and was born in 1968, is currently in France subject to a compulsory residence order.
9. On 14 May 1989 the applicant, who was travelling from Colombia to Italy, was arrested while in transit at Roissy Airport in possession of a package containing 580 grammes of cocaine.
According to the record of the interviews that took place on 16 May 1989, whilst he was in police custody H.L.R. supplied information on the instigators of the traffic and on H.B., by whom he had been recruited. That information subsequently enabled Interpol to identify H.B., who appeared in their records under two different names and had been arrested on 21 May 1989 at Frankfurt-on-Main Airport in possession of 552 grammes of cocaine. H.B. was convicted and on 23 January 1990 was sentenced by the Frankfurt-on-Main Regional Court to two years and eight months’ imprisonment; he was deported to Colombia pursuant to an order issued on 12 April 1990 by the Chief Administrative Officer (Landrat) of the district (Landkreis) of Darmstadt-Dieking.
10. In the meantime, on 25 September 1989, the Bobigny Criminal Court had convicted the applicant of an offence under the misuse of drugs legislation and sentenced him to five years’ imprisonment. It also made an order permanently excluding him from French territory.
11. On 24 July 1992 the Paris Court of Appeal upheld both that judgment and the judgment of 22 June 1992 of the same court whereby his application to have the permanent exclusion order cancelled was dismissed.
12. On 31 July 1992 the applicant, arguing in particular that he had assisted the judicial authorities, petitioned the President of the Republic to have the exclusion order rescinded. His petition was dismissed on 20 September 1994.
13. On 18 December 1992 the Bobigny public prosecutor, who had initially instructed the Prefect of the Dordogne département to enforce the exclusion order on 30 December, the date of the applicant’s release, ordered that his deportation be stayed.
14. After serving his sentence, the applicant was given accommodation, at the home of one of his prison visitors.
15. Notwithstanding that the petition to the President was pending, the Minister of the Interior directed that the applicant’s file be submitted to the Aliens’ Deportation Board for an opinion in accordance with section 23 of the Ordinance of 2 November 1945 as amended (see paragraph 24 below).
16. On 17 February 1994, having been informed of the risks the applicant would run if he were deported to Colombia, the Aliens’ Deportation Board expressed the following opinion:
"The Board is of the opinion that [H.L.R.] should not be deported as his presence in France does not constitute a serious threat to public order and there are in addition good reasons for believing that his integration in the national community is possible."
17. On 26 April 1994 the Minister of the Interior nonetheless issued an order for the applicant’s deportation. He relied on the following reasons:
"Whereas Mr H.L.R., a Colombian national, ..., committed a drugs offence in 1989 by illegally importing nearly 600 grammes of heroin [sic];
Whereas on account of his general behaviour the presence of this foreign national in French territory represents a serious threat to public order;
Having regard to the opinion issued on 17 February 1994 by the Board referred to in section 24 of the Ordinance [no. 45-2658 of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France]."
18. The Prefect of the Dordogne département served the deportation order on the applicant by a letter of 9 May 1994, which the applicant received on 20 May. He stated that the applicant was to be deported to Colombia, unless he was accepted by another country, within one month of the date of receipt of the letter. On 20 June 1994 the Prefect granted the applicant a final extension of one month in which to find a host country.
19. On 30 May 1994 the applicant applied to the Minister of the Interior to have the deportation order rescinded. His application was rejected on 17 June 1994 on the following grounds:
"I regret [to have] to inform you that, at the present time, in spite of the various considerations you cite in your client’s favour, it is impossible for me to grant your application because the acts which gave rise to the order for your client’s deportation occurred recently and were serious. In 1989 he was involved in the trafficking of almost 600 grammes of heroin [sic].
Consequently his presence in France continues to constitute a serious threat to public order."
20. At the same time, by applications lodged with the Bordeaux Administrative Court and registered on 7 and 28 June 1994 the applicant sought judicial review of the deportation order and of the refusal to rescind it.
21. In its judgment of 18 April 1996 served on 17 July 1996, the court joined and then dismissed the applications. It gave the following reasons:
"Under the final paragraph of section 27 bis of the Ordinance of 2 November 1945, `an alien shall not be sent to a country if he shows that he is in danger of losing his life or his liberty there or that he will be exposed there to treatment contrary to Article 3 (art. 3) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950’; by virtue of the provisions of Article 2 (art. 2) of the European Convention on Human Rights, `1. Everyone’s right to life shall be protected by law ...’ and of Article 3 of that Convention (art. 3): `No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’; the impugned deportation order of 26 April 1994 did no more than enjoin [Mr H.L.R.] to leave French territory; it follows that, in any event, the submission that his return to Colombia would infringe the provisions cited above (art. 2, art. 3) is ineffective.
... [Mr H.L.R.] is single, has no children and no family life in France; it follows that the submission that the provisions [of Article 8 (art. 8) of the Convention for the Protection of Human Rights and Fundamental Freedoms] have been infringed cannot be accepted."
22. On 10 September 1996 the applicant appealed against that judgment to the Bordeaux Administrative Court of Appeal. The outcome of the appeal is not known.
23. In the meantime, the Minister of the Interior had issued a compulsory residence order on 12 July 1994 pursuant to section 28 of Ordinance no. 45-2658 of 2 November 1945 as amended (see paragraph 24 below). Considering that it had been established that the applicant was unable to leave France at that time, the Minister ordered him to reside in a designated location "until such time as he [was] in a position to comply with the deportation order against him". That position has remained unchanged.
24. The applicant’s deportation is governed by Ordinance no. 45-2658 of 2 November 1945 "on the conditions of entry and residence [of aliens] in France", as amended by Law no. 93-1027 of 24 August 1993. The relevant provisions, in the wording applicable at the date of the impugned decision, are as follows:
"Subject to the provisions of section 25, deportation may be decided by order of the Minister of the Interior if an alien’s presence on French territory constitutes a serious threat to public order.
The deportation order may at any time be rescinded by the Minister of the Interior. Where the application for an order to be rescinded is made on the expiry of a period of five years from the actual execution of the deportation order, it may be rejected only after the opinion of the board provided for in section 24, before which the applicant may be represented, has been obtained.
..."
"Deportation as provided for in section 23 may be ordered only where the following conditions are satisfied:
(1) The alien must be given advance notice in accordance with the conditions laid down in a decree of the Conseil d’Etat;
(2) The alien shall be summoned to be interviewed by a board convened by the prefect and composed as follows:
the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him, chairman;
a judicial officer (magistrat) designated by the general assembly of the tribunal de grande instance of the administrative capital of the département; and
an administrative court judge.
The head of the aliens’ department at the prefecture shall act as rapporteur; the director of health and social affairs of the département or his representative shall be heard by the board. They shall not attend the board’s deliberations.
The summons, which must be served on the alien at least fifteen days before the board’s meeting, shall inform him that he has the right to be assisted by a lawyer or by any other person of his choice and to be heard with the help of an interpreter.
The alien may request legal aid in accordance with Law no. 91-647 of 10 July 1991 on legal aid. Reference shall be made to this possibility in the summons. A provisional grant of legal aid may be decided by the chairman of the board.
The board’s hearing shall be public. The chairman shall ensure the proper conduct of the proceedings. All orders made by him to that end must be executed immediately. Before the board the alien may put forward all the reasons that militate against his deportation. A report recording the alien’s statements shall be transmitted, together with the board’s opinion, to the Minister of the Interior, who shall give a decision. The board’s opinion shall also be communicated to the person concerned."
"A deportation order made under section 23 may not be issued against the following persons:
(1) a minor alien under 18 years of age;
(2) an alien who proves by any means that he has habitually resided in France since the age of 6 or younger;
(3) an alien who proves by any means that he has habitually resided in France for more than fifteen years or an alien who has lawfully resided in France for more than ten years, unless for the whole of this period he has been in possession of a temporary residence permit bearing the word ‘student’;
(4) an alien, who has been married for at least one year and whose spouse is a French national provided that they have not ceased to live together and that the spouse has kept his or her French nationality;
(5) an alien who is the father or the mother of a French child residing in France provided that he or she exercises parental rights, even only on a partial basis, in respect of the child or actually provides for him or her;
(6) an alien who is in receipt of an industrial accident or occupational disability pension paid by a French institution where his or her permanent disability is at least 20%;
(7) an alien residing lawfully in France by virtue of one of the residence permits provided for in this Ordinance or in the international agreements, who has not been sentenced with final effect to a non-suspended term of imprisonment of one year or more.
However, by way of derogation to (7) above, an alien may be expelled if he has been sentenced with final effect to a non-suspended term of imprisonment for an offence under section 21 of this Ordinance, sections 4 and 8 of Law no. 73-548 of 27 June 1973 on multiple occupation, Articles L-362-3, L-364-2-1, L-364-3 and L-364-5 of the Labour Code or Articles 225-5 to 225-11 of the Criminal Code.
The aliens referred to in sub-paragraphs (1) to (6) may not be the subject of a removal order made under section 22 of this Ordinance.
By way of derogation from the provisions of this section, a deportation order under sections 23 and 24 may be made against an alien falling within one of the categories listed in sub-paragraphs (3), (4), (5) and (6) if he or she has been sentenced with final effect to a non-suspended term of imprisonment of at least five years."
"An alien who is the subject of a deportation order or who has to be removed from France shall be sent to:
(1) the country of which he is a national unless the French Office for the Protection of Refugees and Stateless Persons or the Refugee Appeals Board has granted him refugee status or has not yet ruled on his application for asylum; or
(2) a country which has delivered him a travel document which is currently valid; or
(3) a country which he may lawfully enter.
An alien shall not be sent to a country in which he shows that there is a danger that he will lose his life or liberty or that he will there be exposed to treatment contrary to Article 3 (art. 3) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950."
"An alien subject to a deportation order or required to leave France who proves that it is impossible for him to leave France by showing that he can neither return to his country of origin nor travel to any other country may, by way of derogation from section 35 bis, be ordered to reside in a designated location where he must report to the police and the gendarmerie at regular intervals."
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-82754
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OWSIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 8
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1958 and lives in Wałcz.
5. On 7 March 2003 the applicant was arrested by the police.
6. On 9 March 2003 the Wałcz District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had stolen two “Bosh” cutting tools worth PLN 700 from his neighbours, damaged their door frame and a letter box and uttered threats against his neighbour, Mrs. H.M. The court also referred to the fact that the offences with which the applicant had been charged had been committed within 5 years of his previous conviction. The applicant was also charged with having robbed an individual of PLN 6. However, this charge was subsequently dropped by the prosecutor.
7. On 18 April 2003 the applicant's request to change the preventive measure against him was dismissed.
8. On 19 May 2003 the applicant was indicted before the Wałcz District Court.
9. On 5 June 2003 the Wałcz District Court prolonged the applicant's detention. The court relied on the reasonable suspicion against the applicant, on the fact that he had been previously convicted and on the risk that the applicant might try to influence witnesses given the violent nature of the offences with which he had been charged and the fact that the witnesses were known to the applicant and lived in his neighbourhood. The court also considered that there was a risk that a severe sentence would be imposed on the applicant even though the charge of robbery had been dropped. The Court noted that the applicant was a habitual offender and that there was a risk that he would abscond. The court concluded that only the detention of the applicant would secure the proper conduct of the proceedings and that the conditions for applying police supervision had not been met.
10. A hearing scheduled for 28 August 2003 was cancelled apparently due to the fact that the applicant went on a hunger strike and had to be transferred to a prison hospital.
11. On 5 September 2003 the applicant's detention was further prolonged. The court essentially repeated the reasons given on 5 June 2003 and further found that the applicant's mental and physical health was not incompatible with detention.
12. The applicant appealed against this decision, contending that the court's assessment that he would interfere with the course of the proceedings was unfounded. He pointed out that, for many months after the proceedings against him had been initiated, he had been living next to the main witness, Mrs H.M., seeing her several times a day, and he had not attempted to influence her to withdraw the charges. He further raised complaints about his health and the inadequate medical care in the detention centre.
13. A hearing scheduled for 17 September 2003 was adjourned as some of the witnesses had failed to appear.
14. On 29 September 2003 the Koszalin Regional Court (Sąd Okręgowy) dismissed the applicant's appeal. The court considered that the applicant's argument that since he had not tried to influence witnesses previously he would not do so in the future could not constitute a ground for release. It further dismissed the applicant's complaints about his state of health as unfounded. The court finally observed that the trial had not yet started because of the applicant's decision to go on hunger strike.
15. On 2 December 2003 the trial court held the first hearing in the applicant's case.
16. On 16 January 2004 a further request of the applicant to be released from detention on the grounds of, inter alia, his poor health was dismissed by the Wałcz District Court.
17. On 2 March 2004 the Wałcz District Court prolonged the applicant's detention relying solely on the reasonable suspicion that the applicant had committed the offences and on the violent nature of the offences, which made it probable that he would use force against witnesses.
18. The applicant appealed against this decision.
19. On 29 March 2004 the Koszalin Regional Court granted the appeal, quashed the impugned decision and ordered the applicant's release. It appears that the applicant was released on 31 March 2004. The court gave the following reasons for its decision:
“We can agree with the first-instance court that the main ground for maintaining preventive measures with respect to [the applicant], that is the high probability that the accused had committed the offences with which he had been charged, is still relevant. However, in the opinion of the Regional Court, at the present stage of the proceedings the particular grounds justifying imposition of the most severe preventive measure are no longer relevant. In this case there is no real and justified risk that [the applicant] would attempt to illegally disrupt the proper course of the trial. As it appears from the case file the court had practically finished the taking of evidence and had heard all witnesses called. What remains to be established is the state of health of [the witness, Mrs H.M.]. In those circumstances it is difficult to argue that there is a continuing risk that the applicant would try to influence the witnesses to make false testimonies.
On the other hand, what should be underlined is that the accused Stanisław Owsik has been in pre-trial detention since 7 March 2003, which is over one year. The act of indictment was lodged with the court on 19 May 2003. In spite of the fact that the accused is still in detention, the trial only started on 2 December 2003, that is after half-a-year. It would be a truism to reiterate that detention on remand should not be transformed into the serving of a sentence of imprisonment. Such a situation cannot be accepted because of the guarantees of the accused's rights and the nature of detention on remand, which is a lawful but controversial trespassing on the constitutional rights of an individual.
In the light of the above, the appeal court finds that the appeal should be allowed ...
Incidentally, the Regional Court would observe ex officio that the first-instance courts instead of upholding detention on remand in cases where it is not absolutely necessary, should more often make use of the regulations contained in Article 376 of the Code [listing other preventive measures].”
20. On 18 May 2004 the Wałcz District Court gave a judgment. The court convicted the applicant of the theft of one “Bosh” tool worth PLN 269, destruction of property resulting in damage of PLN 259 and uttering treats. He was sentenced to one year and six months' imprisonment.
21. The applicant lodged an appeal and on 28 September 2004 the Koszalin Regional Court dismissed it. The applicant did not lodge a cassation appeal and the Regional Court's judgment became final.
22. The first page of the applicant's first letter addressed to the Court on 9 March 2004 bears the following stamp: Censored, Wałcz District Court (Ocenzurowano, Sąd Rejonowy w Wałczu), a handwritten date: 11.03.2004 and an illegible signature. One side of the envelope in which the letter was delivered to the Court had been opened and subsequently sealed with adhesive tape.
23. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, socalled “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
24. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. Article 103 § 1 of the 1997 Code provides that convicted persons are entitled to uncensored correspondence with the Court. For a more detailed rendition of the relevant domestic law provisions, see the Court's judgments in Michta v. Poland, no. 13425/02, § 33, 4 May 2006 and Kwiek v. Poland, no. 51895/99, § 23, 30 May 2006.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-97940
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SANTOS HANSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Ms Luciana Santos Hansen, is a Danish national, who was born in Brazil in 1992 and now lives in Nr. Asmindrup, Denmark. She was represented by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Thomas Winkler, of the Ministry of Foreign Affairs and their Co-Agent, Nina Holst-Christen, of the Ministry of Justice.
In 1999 in Brazil, Inge Hansen, a Danish national born in 1960, as single adopter, via a Danish adoption centre, adopted the applicant whose biological father had died and whose biological mother the Brazilian authorities were unable to find. It appears that both biological parents had previously been deprived of custody.
Before the adoption, Inge Hansen had contacted the municipality for guidance on the benefits for which she would be eligible after the adoption, including whether she should try to obtain a copy of the death certificate of the applicant’s biological father during her stay in Brazil in order to fulfil formal criteria. By letter of 17 June 1998 the municipality informed her that she would be entitled to child subsidy and extra child subsidy, but not to a so-called special child subsidy.
Also before the adoption, Inge Hansen had to substantiate that she was able to satisfy the financial conditions for adopting as a single adopter and she declared that she undertook full responsibility to provide for the applicant.
In Denmark, by virtue of sections 2 and 3 of the Child Subsidy Act (Børnetilskudsloven) the applicant, via her adoptive mother, was granted socalled child subsidy and extra child subsidy, together amounting to approximately 100 euros (EUR) per month.
Inge Hansen’s request of 12 January 2001 for the so-called special child subsidy, also amounting to approximately EUR 100 per month, was refused on 16 January 2001 by the municipality because she failed to fulfil section 4, subsection 3(i) – (iii), of the Act which required (i) that paternity of the child had not been established; (ii) that the child only had one surviving parent who provided for the child; or (iii) that the child, after the death of the guardian, had been adopted by the latter’s spouse or by a single person. It stated that single adopters who adopt a foreign child via one of the organisations approved by the Ministry of Justice were not entitled to the special child subsidy under section 4, subsection 3(iii), of the Child Subsidy Act, since the single adopter, when adopting, undertook full responsibility to provide for the child.
On appeal, the decision was upheld on 4 September 2001 by the County Social Board (Det Sociale Nævn i Statsamtet Vestsjælland).
The applicant’s appeal to the Social Appeal Board (Den Sociale Ankestyrelse) was dismissed on 19 October 2001 on the ground that it was not a matter of principle or of general importance as the state of law was sufficiently clear. In that connection it referred to the fact that it had previously determined two cases concerning applications for special child subsidy in respect of children adopted by single adopters.
The applicant brought the County Social Board’s decision of 4 September 2001 before the High Court of Eastern Denmark (Østre Landsret), (“the High Court”), claiming that she was entitled to the special child subsidy by virtue of section 4, subsection 3(i), (ii) or (iii). She also invoked Article 14 of the Convention since in her view she was discriminated against, notably as compared to children of single women who refused to disclose the paternity of their children, or of single women having been artificially inseminated, who were entitled to the special child subsidy under no. (i).
Statistics were submitted showing, inter alia, that in the period from 2001 to 2003, forty-four single adopters were approved in Denmark, and that in thirty-two cases paternity had not been established. Moreover, for several years no Danish children had been adopted by single adopters without there having been a family relationship or other connection between the adopted child and the adopter.
By judgment of 15 March 2005 the High Court found against the applicant. It noted that only section 4, subsection 3(iii), of the Child Subsidy Act concerned adoption. Moreover, it noted that before 1986 section 4, subsection 3(iii), read as follows “when the child, after the death of the guardian, is adopted by the latter’s spouse or by a single person within the child’s family” and considered that the amendment had been made primarily to ensure that partners, as opposed to spouses, were also encouraged to adopt a child after the guardian had died. More specifically it stated:
“.... although the wording of section 4, subsection 3(iii), of the Act on Child Subsidy may leave some doubt about the correct interpretation, the High Court finds no basis for assuming from the wording of the provision, in which the word ‘spouse’ has been maintained, and on the basis of the comments to the changed wording in 1986 that it was intended that the provision was to include single adopters who, as in this case, have adopted a child without a certain kind of connection existing between the child and the adopter while the parental responsibility holder was alive. Hence, the amendment must be assumed mainly to reflect an updating of the current rules for the purpose of ensuring increased child subsidy also in the situations in which the adopter was not married to the parental responsibility holder, but cohabited with him or her outside marriage. This outcome is supported by the fact that it was presupposed in connection with the bills of 1999 and 2000 concerning a change in the legal position that, as a rule, children adopted by single adopters are not entitled to special child benefits. Accordingly, the provision of paragraph (iii) is deemed not to be applicable.”
The applicant appealed against the judgment to the Supreme Court which, by a judgment of 2 November 2006 and by a majority of three out of five judges, found against the applicant.
The majority stated as follows:
“Having regard to the background and wording of and the reciprocal connection between section 4, subsection 3(i), (ii) and (iii), of the Child Subsidy Act, [those provisions] must be understood in such a way that entitlement to the special child subsidy for a child adopted by a single adopter is regulated solely by no. (iii). The provisions on sole providers under nos. (i) and (ii) do not affect single adopters.
Until 1973 a child adopted by a single adopter had no right to the special child subsidy just because the single adopter was sole provider. When section 4, subsection 3(iii), was inserted in 1973 the right to the special child subsidy for children of sole providers was expanded to include certain single adopters. It was a condition that the child, after the death of the guardian, had been adopted by the latter’s spouse or by a single person within the child’s family. The preparatory notes (Folketingstidende 1972-1973, Tillæg A, sp. 5925-26) stated that the purpose was to give the stepfather or stepmother an incitement to adopt the child instead of placing him or her in foster care. The provision also included other orphans, provided they were adopted by a single family member, for example one of the parent’s siblings or one of the grandparents. At the same time it was emphasised that the new no. (iii) did not include unrelated single adopters.
In 1986 the wording “within the child’s family” was omitted. Thus, in accordance within the wording, the special child subsidy is granted when the child, after the death of the guardian, is adopted by the latter’s spouse or by a single person. It is left unmentioned in the preparatory notes – (Folketingstidende 1985-1986, Tillæg A, sp. 5994) – whether no (iii) hereafter includes all cases in which an orphan is adopted by an unrelated single person, or whether the incitement to single adoption entailed in the provision, continues to be aimed only at single persons with whom the child has a certain connection – a connection which is not necessary family related.
In line with the High Court, we find no reason to assume that the amendment in 1986 intended to include single adopters, who are guardian to an orphan, without there having been some connection between the adopter and the child before the guardian’s death.
It is undisputed that [the applicant’s] biological mother was alive at the time of adoption and that [prior to that time] there had been no connection between [the applicant] and her adoptive mother.
In these circumstances we agree that [the applicant] does not fulfil the requirements set out in section 4, subsection 3(iii), to be granted the special child subsidy.
The question of the connection that the child and the parents must have to Denmark in order to be entitled to child subsidy [in general] is regulated in section 5 of the Child Subsidy Act. The requirements set out in section 4, subsection 3(i) - (iii), do not distinguish between Danish and foreign children. Accordingly, foreign children who are adopted in [Denmark] are entitled to the special child subsidy under the same conditions as Danish children who are adopted by a single person. The fact that, outside family relations and so on, on the whole, by and large, only foreign children are adopted by single persons in [Denmark] cannot in our view lead to the conclusion that the County Social Board’s refusal to grant [the applicant] the special child subsidy is discriminatory in breach of Article 14 of the Convention in conjunction with Article 8 or Article 1 of Protocol No. 1 to the Convention, or of the other invoked conventional provisions.”
The minority stated as follows:
“Section 4, subsection 3(iii), of the Child Subsidy Act was inserted in the legislation by Act no. 36 of 15 July 1973 and Act no. 350 of 4 June 1986 gave it its current wording. In the original provision [it was a condition for obtaining the subsidy] that the child, after the death of the guardian, was adopted by the latter’s spouse or by a single person within the child’s family. The wording “within the child’s family” was omitted at the amendment in 1986. According to the wording, hereafter the criterion is fulfilled, despite the single adopter having had no previous connection with the child, and the preparatory notes give no reason to assume otherwise. In these circumstances, we consider that subsequent to the legal amendment in 1986, it is no longer justified to require a previous connection between the single adopter and the child in order to grant subsidy under no. (iii). The course of events related to the discussion in Parliament as to the proposal of 7 October 1999 to amend the Child Subsidy Act, and the proposal of 1 December 2002 cannot lead to another result.
Thus, we find it unjustified that the County Social Board in its decision of 4 September 2001 refused the special child subsidy by referring to the fact that before the guardian’s death there had [been no connection] between [the applicant] and her adoptive mother.
Under section 4, subsection 3(iii), of the Child Subsidy Act it is furthermore a condition that the guardian has died before the adoption. In that way, the provision attaches weight to the guardian’s death as opposed to no. (ii), which [refers] to the parents’ death. It must be considered a fact that [the applicant’s] biological parents were deprived of custody before the adoption, that her father was dead and that her mother’s whereabouts were unknown. In these circumstances, [the applicant’s] situation before the adoption must be comparable with a situation where the guardian has died.
In conclusion, therefore in our view [the applicant] is entitled to the special child subsidy by virtue of Section 4, subsection 3(iii).”
Danish social law is based on a principle of self-support, which implies that everybody has a duty to support themselves, while any person unable to provide for him or herself is entitled to public assistance.
Under the Child Subsidy Act (see Consolidation Act No. 1115 of 24 November 2008 with amendments) all sole providers are granted ordinary child subsidy for children under the age of 18. For 2009, such child subsidy amounted to DKK 4,696 (equal to approximately 630 Euros, EUR) a year per child.
Additionally, extra child subsidies are granted to sole providers, for 2009 amounting to DKK 4,780. Extra child subsidies are granted for one child only, regardless of the number of children.
Pursuant to the Act on Benefits for Families with Children (lov om børnefamilieydelse), families with children, including sole providers, are granted benefits for families with children under the age of 18. For 2009, those benefits amount to DKK 16,438 per child up to two years old, DKK 13,004 per child between three and six years old, and DKK 10,232 per child between seven and seventeen years old.
These benefits are paid to all sole providers regardless of whether they became sole provider following divorce or termination of cohabitation, or the sole provider adopted a child. The benefits are not dependent on income.
In addition, parents who adopt a foreign child through one of the organisations approved by the Ministry of Justice are entitled to an adoption subsidy under section 10b of the Act on Child Subsidy to cover expenses in connection with the adoption. For 2009, the subsidy amounts to DKK 44,565, equal to approximately EUR 6,000. Also single persons who adopt a foreign child are eligible for this subsidy. This subsidy is not income dependent either.
Moreover, all sole providers can apply for a rent subsidy, which is a financial subsidy contributing to the rent for rented accommodation, and which depends on the household income, the amount of the rent and the size of the dwelling. A sibling subsidy is also granted to parents with more than one child attending day-care institutions. Finally, like other sole providers, single adopters will be eligible for the special provider rates that apply to single parents under the rules on cash assistance and State education grants, if the provider needs assistance for his or her own support.
The Act on Child Subsidy (Børnetilskudsloven, at the relevant time lovbekendtgørelse no. 707 of 25 August 1995 with amendments, now lovbekendtgørelse no. 909 of 3 September 2004) read in so far as relevant:
1. In addition a special child subsidy may be granted by virtue of subsections 2 and 3.
2. ...
3. The special child subsidy amounts to 8,436 Danish Kroner (DKK) annually,
(i) when paternity of the child is not established;
(ii) when the child only has one surviving parent [who provides for the child];
(iii) when the child, after the death of the guardian, is adopted by the latter’s spouse or by a single person.
(iv) – (vi) ...
Until 1973, children adopted by single persons were not entitled to special child subsidy. When section 4, subsection 3(iii), was inserted into the Child Subsidy Act in 1973, the entitlement to special child subsidy for children of sole providers was extended to include children of certain single adopters. Accordingly, special child subsidy could then be granted ‘where, after the death of the parental responsibility holder, the child is adopted by the spouse of the deceased or by a person within the child’s family’. In the explanatory notes to the Bill to amend the Act on Child Subsidy and other Family Allowances, which was adopted on 12 April 1973, the following was stated:
“Under the current rules, a spouse who adopts the child of the other spouse upon the latter’s death will thereby cut off the child from receiving special child subsidy as, under the rules of the Adoption Act (adoptionsloven), the adopter assumes full responsibility for supporting the child. This means that the stepfather or stepmother who wants to give the child special support through an adoption relationship is placed in a more difficult financial position than the person who merely takes the child into foster care.
It appears reasonable to ensure that the financial position is not impaired, and it is therefore proposed to provide authority for the child to become entitled to special child subsidy as a child of a widow or widower, regardless of the fact that the legal relationship between the child and its original family is severed by the adoption. According to the proposal, the rule will also include other children adopted by a single relative, for example one of the parents’ siblings or one of the grandparents, but will not include unrelated single adopters.”
On 1 July 1987, a Act on Child Subsidies and Advance Payment of Child Support (the ‘Child Subsidy Act’) entered into force, and the words ‘within the child’s family’ were deleted from section 4, subsection 3(iii).
The reason therefor was not explained in the preparatory notes.
In guidelines of 18 December 1986 on child benefits and advance payment of child support issued by the National Social Security Agency (Sikringsstyrelsen) it was stated in clause 1 that the rules on child subsidies, including special child subsidy, substantially corresponded to the rules of the former Act on Child Subsidies and Other Family Allowances. Clause 15 mentioned that it was no longer required, as under the former Act, that the adopter be related to the child. Accordingly, there was no change in the situation entitling a person to special child subsidies, but the amendment meant that it became possible to grant special child benefits also in situations in which the adopter had not been married to the parental responsibility holder, but had cohabited with the latter outside marriage. Subsequent to the amendment it was still a condition that a connection had existed between the child and the adopter.
In clause 15 of the guidelines on child subsidies and advance payment of child support from January 1996, issued by the Ministry of Social Affairs, which applied when Inge Hansen adopted the applicant, and in clause 25 of the subsequent guidelines No. 54 of 17 June 2002 issued by the Ministry of Social Affairs the following was set out:
“It is not a requirement that the adopter is related to the child. The provision is aimed at adoptions where, prior to the parental responsibility holder’s death, there was some form of connection between the child and the adopter.”
“Single adopters who adopt a foreign child through one of the organisations approved by the Ministry of Justice under the Adoption Act do not fall within section 4(3)(iii), as there has not been any connection between the child and the adopter prior to such adoptions.”
This interpretation was confirmed by the legislature in 1999, when a large parliamentary majority rejected an amending bill aiming to insert a new provision into section 4, subsection 3(vii) of the Child Subsidy Act so that special child subsidy would also be granted where the child was adopted under the rules of single-parent adoption without any previous connection existing between the adopter and the child (see Official Report of Parliamentary Proceedings 1999-2000, supplement B, column 111, and Official Report of Parliamentary Proceedings 1999-2000, Proceedings, column 2228).
The legislature’s unwillingness to insert such a provision into the Child Subsidy Act was demonstrated again in connection with the reading of Bill No. B 63 of 1 December 2000 on special child subsidy for children adopted by a sole provider. In connection with the first reading of the Bill, the Minister for Social Affairs stated that such provision would depart from the principle that special child subsidy for sole providers was only paid to sole providers who had been exposed to a social event over which the sole provider had no influence (see Official Report of Parliamentary Proceedings 2000-2001, Proceedings, column 3021). The Bill never passed through the readings and lapsed.
Subsequently, in 2007 a parliamentary majority again rejected a bill concerning equality between single adopters and sole providers regarding entitlement to special child subsidy (see Bill No. 74, Official Report on Parliamentary Proceedings 2006-2007, supplement A, column 4170) and a corresponding bill lapsed in 2008 (see Bill No. 58, Official Report on Parliamentary Proceedings supplement A, column 2759). On the contrary, in connection with an amendment in December 2008, the legislature clarified the existing state of law by inserting the following provision into section 4, subsection 12, of the Child Subsidy Act:
“A child of a single adopter is not entitled to special child benefits unless the single adopter dies, see subsection 2, one or more of the conditions of subsection 3(iii) to (v) are satisfied, or the child has been adopted as a stepchild and one or more of the conditions of subsection 3(ii) to (vi) are satisfied.”
In 1984 an act (no. 216 of 16 May 1984) amended the Adoption Act (now Adoptionsloven, no. 905 of 28 September 2009) and granted the Minister of Justice authority to lay down rules inter alia on the approval of adopters and the processing of adoption cases. The intention of the legislature was to relax a number of the requirements then applicable concerning the age of the candidate adopters, the length of the cohabitation, and so on. As concerns single adopters, the following was stated (see the Official Report on Parliamentary Proceedings 1983-1984, supplement A, column 202-203):
“Under current practice, it has only been possible for single persons to be approved as adopters in a very few exceptional cases. From several quarters, a wish has been put forward for extended access for single persons to become adopters. In view of the fact that there are no doubt single persons who will be just as suited to bring up a child as a married couple, it would be wrong to exclude such single persons from adopting. However, according to the information available, it is doubtful whether it will be possible to allocate foreign children for adoption by unmarried applicants, and hence it may prove meaningless to examine single candidates for the purpose of approval for adoption. It may also be difficult to establish clear criteria for the cases in which single persons should have access to pre-examination. It is the intention to take up these questions for further consideration for the purpose of examining the prospects of improving the access of single persons to become adopters. During those proceedings, particular attempts will be made to seek clarity concerning the attitude of foreign countries to allocating children for adoption by single adopters.”
Single-parent adoption was formally allowed in Denmark on 1 January 1989 by Executive Order no. 783 of 14 December 1988 amending the Executive Order on Adoption (the Adoption Order). The said Order inserted a provision into the Adoption Order according to which a single candidate could be approved as an adopter if, upon an overall assessment, the candidate was found suited to bringing up a child on his or her own.
One of the fundamental requirements for approval as a single adopter is that the candidate can prove having sufficient financial means at his or her disposal to support the child on his or her own. Thus, section 5, subsection 1, of Executive Order no. 1367 of 12 December 2006 on Approval as an Adopter (the ‘Approval Order’) - a provision which also applied when the applicant was approved in 1999 – set out that to be approved as a single adopter, a candidate must satisfy the requirements of sections 6 to 9 of the Approval Order and must generally be considered suited to bringing up a child on his or her own. Pursuant to section 7, subsection l (iii), of the Approval Order, one of the conditions for approval as a single adopter is that the candidate disposes of ‘adequate financial means’. According to Guidelines No. 10109 of 22 December 2006 issued by the Department of Family Affairs (Familiestyrelsen), the requirement of ‘adequate financial means’ is to be understood to mean that the applicant’s personal finances are sufficient to support a family, also following the introduction of an adopted child.
When assessing whether a single candidate satisfies the financial conditions, the authorities will request the candidate to submit information from the tax authorities on income figures and assets for the last two income years and information on any arrears due to the tax or local authorities. Additionally, the candidate will have to provide information on monthly income and expenses and his or her current assets.
If the adoption authorities find that the candidate does not satisfy the financial requirements because his or her personal finances are not sufficient to support the adopted child, the candidate will not be approved.
The Adoption Act sets out the legal effect of adoption as follows:
1) The effects of adoption are to create between the adopter and the adopted child the same legal relationship as that between parents and their child, and the adopted child and its issue shall succeed to the property of the adopter and his or her family, and vice versa, as if the adopted child were the adopter’s own child. At the same time, the legal relationship between the adopted child and its original family will be extinguished.
(2) In the case of stepchild adoption under section 5(a) of this Act, the legal relationship between the adopted child and the spouses or former spouses shall be the same as if the child had been born to the couple or former couple.
3) In respect of the name of the adopted child, the provisions contained in the [Danish] legislation on personal names shall apply.
Adoption does not confer upon the adopted child a right of succession to entailed estates of any nature whatsoever, except where this is specifically provided by legislation.
D. Paternity not established
Under section 8(1) of the Children’s Act (Børneloven), the mother has an absolute duty to disclose who is or may be the father of the child. Married women and women cohabiting with a man who submits a ‘declaration of care and responsibility’ may be exempted from this duty. If the woman does not disclose who is or may be the father of the child, she must be guided on the consequences that this may have for her and the child (see section 8(2) of the Children’s Act). If a woman refuses to disclose who the father may be in cases in which she is obliged to do so, the regional state administration must summon the woman for a meeting at which she must be guided on the consequences that this may have for her and will have, especially later, for the child. The meeting may be attended by various professionals depending on the nature of the case. If the mother continues to refuse to disclose the father’s identity, the regional state administration may bring the case before the courts. The mother has a duty to appear in court and to give evidence subject to liability as a witness and under the rules of the Administration of Justice Act (Retsplejeloven) on the compelling of witnesses to attend. The woman may be sentenced to default fines if she does not want to assist in establishing the facts of the case. If the regional state administration or the court finds that the mother does not know who is or may be the father of the child, the case is dismissed, or it is decided by judgment that paternity cannot be established.
With effect from 1 January 2007, it became possible for single women to receive artificial insemination treatment at public hospitals following an amendment of the Artificial Insemination Act (Lov om kunstig befrugtning).
Artificial insemination of single women was also lawful before 1 January 2007 at private clinics outside the public health system and without the assistance of doctors. Artificial insemination of single women carried out by midwives and others occurred, although to a limited extent.
One of the consequences of the amendment of 1 January 2007 was that the single women who were artificially inseminated at public hospitals in the subsequent period were also able to obtain special child subsidy under the Act on Child Subsidy. In December 2008, however, the Child Subsidy Act was amended so that children conceived by artificial insemination of single women carried out on 1 January 2009 or later were no longer entitled to special child benefits despite the fact that paternity could not be established. In that connection, the legislature emphasised that single women who were artificially inseminated have themselves chosen to support a child on their own and must have considered, before making such choice, whether they possessed the human and financial resources required to support a child on their own. The outcome of the December 2008 amendment was that the legal position of children of single adopters and children conceived by artificial insemination of single women was the same in respect of entitlement to special child subsidy.


ITEMID: 001-82241
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BULGAKOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of Art. 14+8
TEXT: 8. The applicant was born in 1974 and lives in the city of Simferopol, the Autonomous Republic of Crimea (Ukraine).
9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. The full name of the applicant, a Ukrainian citizen of Russian origin, is, in Cyrillic, “Дмитрий Владимирович Булгаков” (Dmitriy Vladimirovich Bulgakov). Dmitriy is the first, or given, name; Bulgakov is the surname, while Vladimirovich is the “patronymic” (otchestvo in Russian, po-bat'kovi in Ukrainian) - in other words, a second given name, derived from the father's given name and the appropriate gender suffix.
11. The applicant was born on the territory of former Soviet Belorussia. His birth certificate was issued in the Russian language. On 21 September 1990, by then living on the territory of former Soviet Ukraine, the applicant received his first Soviet passport (паспорт гражданина СССР), issued in Russian and Ukrainian. According to the applicant, in the Ukrainian version, his name and patronymic were transliterated from Russian as “Дмітрій Владіміровіч” (Dmitriy Vladimirovich). According to the Government, the applicant's name and patronymic could not appear in the Ukrainian version other than in its Ukrainian form – “Дмитро Володимирович” (Dmytro Volodymyrovych), since the rules at that time knew no exceptions. (However, neither party could submit any document to prove their assertions, because no archives or copies of that passport exist any longer).
12. In 1993 the applicant lost his passport and, given a lack of new Ukrainian passport forms, he was issued with a special temporary identity certificate drafted in Russian.
13. In December 1997 the applicant applied for and received a Ukrainian citizen's internal passport (паспорт громадянина України) from the Directorate General of the Ukrainian Ministry of the Interior in the Crimea (Головне управлiння Мiнiстерства внутрiшнiх справ в АР Крим, “the Directorate”). Page 2 of this document is drawn up in Ukrainian, and the applicant's given name and patronymic appear in their Ukrainian form “Дмитро Володимирович” (Dmytro Volodymyrovych). However, on page 3 of the passport, which is in Russian, his whole name is written in its original Russian form.
14. In June 1998 the applicant applied to the Directorate for a Ukrainian citizen's passport for travel abroad (паспорт громадянина України для виїзду за кордон; an “external passport”). It appears from the case file that, when submitting his application, the applicant was obliged to complete and sign a form on which he gave his given name as Dmytro. This “Ukrainianised” form of his given name (“ДМИТРО / DMYTRO”) appears on the first page of the passport, which is in Ukrainian and English; there is no mention of the patronymic. The applicant challenged this “Ukrainianisation” by means of an internal appeal, submitted to the management of the Directorate's local branch, which dismissed it.
15. In July 1998 the applicant appealed to the Kievskiy District Court, Simferopol. He submitted that there had been a violation of his right to the integrity of his given name, and asked the court to order the authorities to issue him with a new passport and to pay him 1,700 hryvnas for non-pecuniary damage.
16. After adversarial proceedings, the court dismissed the appeal in a judgment of 16 August 1999. The judgment noted that the disputed spelling complied with the relevant regulations, which stated that all entries on the first page of an external passport were to be in Ukrainian and English. The court also noted that all of the principal entries in such a passport were to follow the model of the corresponding entries in the internal passport issued to the same person. On the first page of his internal passport, the applicant's given name had been entered as Dmytro; accordingly, this spelling was also to be used in the external passport. In addition, the court pointed out that the applicant himself had written his given name as Dmytro on the passport application form; consequently, his objections were unfounded.
17. The applicant appealed to the Crimea Supreme Court. He vehemently denied that he had used the form Dmytro on the application form. In his opinion, this was a manifestly erroneous finding by the court of first instance, since he had, without question, indicated that his given name was Dmitriy and not Dmytro.
18. In a judgment of 2 February 2000, the Crimea Supreme Court dismissed the appeal and upheld the findings of the court of first instance.
19. The applicant subsequently made several applications to the prosecution service and the President of the Crimea Supreme Court for supervisory review of the final decision, all of which were dismissed.
20. In April 2000 the applicant submitted an internal appeal to the head of the Directorate's local branch. He challenged the fact that his given name and patronymic had been translated into Ukrainian; in particular, he alleged that, even on the Ukrainian page of the passport, these ought to have appeared in their original form merely transliterated into the Ukrainian alphabet, not replaced by their Ukrainian equivalents. Consequently, according to the applicant, his name ought to have been written on page 2 of the passport as “Дмiтрiй Владiмiровiч” (Dmitriy Vladimirovich), since the Cyrillic grapheme 'И' reads as [i] in Russian but as [y] in Ukrainian. The appeal was dismissed.
21. In June 2000 the applicant lodged an application with the Kievskiy District Court of First Instance, Simferopol, for an order requiring the authorities to issue him with a new passport in which his given name and patronymic would be written in their original form on both the Russian and Ukrainian pages. In his submissions he emphasised, inter alia, that he belonged to the Russian minority and that consequently, under section 12 of the National Minorities Act, he was entitled to use the original, Russian form of his name. According to the applicant, when entering his given name and patronymic on page 2 of the passport, the authorities would have been entitled to transliterate them into the Ukrainian alphabet, but they had not been entitled to replace them with Ukrainian equivalents.
22. After adversarial proceedings, the Court of First Instance dismissed the appeal as unfounded. The judgment noted that the disputed passport had been drawn up in compliance with the Passports of Ukrainian Citizens Order, which stated that the holder's personal data were to appear “in Ukrainian and in Russian”. Finally, the court pointed out that page 3 of the passport had been drawn up in Russian, and that all the elements of the applicant's name appeared on it in their original form; accordingly, there had been no violation of the applicant's fundamental rights.
23. The applicant appealed against this judgment to the Crimea Supreme Court which, in a judgment of 30 August 2000, also dismissed his appeal. In the Supreme Court's opinion, the provision by which the holder's personal data were to appear “in Ukrainian and in Russian” indeed meant that the given name, patronymic and surname were “to comply with the requirements of the Ukrainian language, in application of the rules governing literary translation”. Like the Court of First Instance, the Supreme Court added that there had been no violation of the right to the integrity of one's name in the present case, since all the entries on page 3 of the passport had been in Russian.
24. As with his external passport, the applicant made several applications to the prosecution service and the President of the Crimea Supreme Court for a supervisory review of the final decision. These appeals were all dismissed.
25. The relevant parts of Article 10 of the Constitution provide:
“The official language in Ukraine is Ukrainian.
The State ensures the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory of Ukraine.
In Ukraine, the free development, use and protection of Russian, and other languages of the national minorities of Ukraine, is guaranteed...”
26. Section 12 of the Law provides:
“Every Ukrainian citizen is entitled to have a surname, given name and patronymic [corresponding to his or her national origin].
Citizens are entitled, in accordance with the rules in force, to revert to their [original] surname, given name and patronymic.
Citizens whose ethnic tradition does not involve the use of a 'patronymic' [po-bat'kovi] are entitled to indicate only their surname and given name in [the] documents; their birth certificate [may] indicate the surnames of the father and of the mother.”
27. Ukrainian citizens normally have two passports, each of which has a distinct function. The internal passport (also called the “Ukrainian citizen's passport”) is the basic identity document, proving the holder's identity in all administrative and socio-economic relations throughout the country. In contrast, the external passport is a travel document for use abroad.
28. The relevant provisions of Parliamentary Order no. 2503-XII of 26 June 1992 concerning the passports of Ukrainian citizens (Положення “Про паспорт громадянина України”) read as follows:
“... 4. All the entries contained in the passport and all the information concerning its holder shall be made in Ukrainian and Russian....”
“...16. An exchange of passports shall be conducted in case of:
A change (replacement) [зміни (переміни)] of surname, given name or patronymic...”
[Annex]
Description of the Ukrainian citizen's passport
“... On the upper section of page 2 of the passport, [there is] a space for the holder's identity photograph.... Lower down, the surname, given name and patronymic... [are] in Ukrainian...
On page 3 of the passport – the surname, given name and patronymic ... [are] in Russian...”
29. According to Article 15 of Rule no. 231 of 31 March 1995 on the preparation and issue of Ukrainian citizens' passports for travel abroad and travel documents for children, their temporary seizure and confiscation (Правила оформлення і видачі паспортів громадянина України для виїзду за кордон і проїзних документів дитини, їх тимчасового затримання та вилучення), external passports are to be drawn up in Ukrainian and English.
The technical arrangements for the issue of passports are set out in ministerial orders or instructions. In particular, in accordance with the Minister of the Interior's instruction no. 316 of 17 August 1994 on the passports of Ukrainian citizens, the passport holder must sign both the passport application form and the passport itself, thus confirming the accuracy of the information appearing in them.
30. A Regulation concerning the procedure for examining applications for a change of surname, given name or patronymic from citizens of Ukraine was approved by the Decision of the Cabinet of Ministers of Ukraine on 27 March 1993.
31. According to that Regulation, any citizen of Ukraine who has reached the age of sixteen can apply for a full or partial change of name to the civil status registration department responsible for the district in which the individual resides. The applicant must pay a fee and provide a birth certificate and photograph and, if he or she is married and has children, the marriage certificate and the birth certificates of the children.
32. The civil status registration department verifies the documents and their archived records and sends the file to the local police department. Within a month, the latter shall make the necessary checks of the person's identity in order to prevent abuse of the procedure by people fleeing from justice, avoiding the payment of child maintenance, or pursuing other fraudulent purposes. The case file is then returned to the civil status registration department together with an opinion on the question of the proposed change of name. In case of police objections or if the applicant is under criminal investigation, on trial or convicted, the civil status department will refuse the application. This refusal can be challenged in the courts.
33. The whole procedure should normally take three months, unless there is a need to restore some lost archive documents concerning the civil status of the applicant.
34. If the application for a change of name is granted, the individual must change the official documents, like the passport, within a month.
35. The Council of Europe's Framework Convention for the Protection of National Minorities was opened for signature on 1 February 1995 and entered into force in respect of Ukraine on 1 May 1998. Article 11 § 1 of that Convention provides as follows:
“The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname (patronymic) and first names in the minority language and the right to the official recognition of them, according to modalities provided for in their legal system.”
Paragraph 68 of the explanatory report to the Framework Convention states:
“In view of the practical implications of this obligation, the provision is worded in such a way as to enable Parties to apply it in the light of their own particular circumstances. For example, Parties may use the alphabet of their official language to write the name(s) of a person belonging to a national minority in its phonetic form. Persons who have been forced to give up their original name(s), or whose name(s) has (have) been changed by force, should be entitled to revert to it (them), subject of course to exceptions in the case of abuse of rights and changes of name(s) for fraudulent purposes. It is understood that the legal systems of the Parties will, in this respect, meet international principles concerning the protection of national minorities.”
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-5646
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: YONGHONG v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, [Mr Chen Yonghong], was born in 1954 and is a Chinese national with Taiwanese nationality. When the application was lodged, he was being held in a prison at Coloane in Macao. He is represented before the Court by Mr J.L. da Cruz Vilaça, Mr L.M. Pais Antunes and Mr R. Oliveira, of the Lisbon Bar.
The facts of the case, as presented by the parties, may be summarised as follows.
The applicant was arrested by the Macanese police on 27 May 1999 under an international arrest warrant issued by the Nanjing (People’s Republic of China) State Security Department on suspicion of fraud, within the meaning of Articles 152 and 266 of the Chinese Criminal Code.
On 1 July 1999 the Chinese Ministry of Foreign Affairs lodged a formal request with the Portuguese Embassy in Peking for the applicant’s extradition. The request was forwarded to the Governor of Macao, who, on 9 July 1999 and in accordance with the relevant domestic legislation, gave leave for the extradition proceedings to continue. The case file was therefore lodged for consideration by Macao Higher Court of Justice (Tribunal Superior de Justiça).
In a judgment of 20 August 1999, the Higher Court of Justice authorised the applicant’s extradition. It relied essentially on the fact that the offence of which the applicant was accused was punishable not by death, but at most by life imprisonment. The Chinese Ministry of Foreign Affairs had given an assurance that that penalty would not be imposed on the applicant.
On 6 September 1999 the applicant appealed against that decision to the full court of the Higher Court of Justice relying in particular on the fact that Article 266 of the Chinese Criminal Code also contained a cross-reference to Article 264 of that Code, which provided that the death penalty could be imposed for the offences concerned. He also maintained that the assurances given by the Chinese Ministry of Foreign Affairs could not be regarded as credible as they were not binding on the Chinese courts.
In a decision of 3 November 1999, the Higher Court of Justice, sitting as a full court, dismissed the appeal and upheld the impugned judgment.
By virtue of Article 292 of the Portuguese Constitution and the joint declaration made by Portugal and China on 13 April 1987, Macao is considered a Chinese territory under Portuguese administration until the date appointed for the transfer of sovereignty to China (20 December 1999).
Under the terms of Article 2 of the Basic Law of Macao (which was adopted by the Portuguese Parliament, on the proposal of the Macanese legislative assembly, on 17 February 1976, and amended on 14 September 1979, 10 May 1990 and 29 July 1996), Macao is deemed to be a “juristic person of domestic public law”. For the time being and until 20 December 1999, the Portuguese Constitution is applicable to Macao by virtue of the Basic Law. However, laws of the Portuguese Republic are applicable in Macao only if they have been published in the territory’s official gazette.
The Governor has primary responsibility for the administration of Macao. He is accountable to the President of the Portuguese Republic.
The territory has its own judicial organisation. An appeal used to lie against decisions of the Macao Higher Court of Justice, either to the Supreme Court or, in constitutional cases, to the Constitutional Court of Portugal. However, by Decree no. 118–A/99 of 20 March 1999, the President of the Republic decided, in accordance with the Basic Law, that the Macanese courts would have exclusive jurisdiction for the entire territory from 1 June 1999.
The extradition rules applicable in Macao are to be found in Legislative-Decree no. 437/75 of 16 August 1975, which provides for an initial administrative phase after which the Government may give leave for the extradition proceedings to continue. Thereafter it is for the courts to determine whether the request for extradition is lawful.
The applicant alleges that his extradition to China would entail a violation of Article 1 of Protocol No. 6 and of Articles 3 and 6 of the Convention.


ITEMID: 001-70881
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TAMBOVTSEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant was born in 1939 and lives in the town of Novogrodovka, the Donetsk Region.
5. On 15 March 2001 the Novogrodovka City Court (hereafter “the City Court”) awarded the applicant UAH 4,791.40 against the “Novogrodovskaya” coal mine (a State-owned enterprise, hereafter “the Coal Mine”) in salary arrears. The judgment became final and was sent to the Novogrodovka City Bailiffs’ Service (hereafter “the Bailiffs’ Service”) for compulsory enforcement.
6. In June 2001 the applicant instituted proceedings in the City Court against the Bailiffs’ Service in respect of its alleged inactivity. On 23 August 2001 the City Court rejected this complaint, stating, inter alia, that no fault was attributable to the bailiffs, who had undertaken all necessary measures to secure the execution of the judgment of 15 March 2001 and that the non-enforcement of this judgment was caused by the Coal Mine’s lack of funds. The City Court also indicated that the enforcement proceedings were further impeded by a bankruptcy case pending against the Coal Mine before the Donetsk Regional Court of Arbitration, which on 14 May 2001 prohibited the Bailiffs’ Service from performing any activity that involved the forced sale of the Coal Mine’s assets. On 5 November 2001 the Donetsk Regional Court of Appeal upheld the judgment of the City Court. On 18 February 2002 the Supreme Court rejected the applicant’s cassation appeal.
7. On 25 February 2003 the Ministry of Fuel and Energy ordered the merger of the Coal Mine with several others into the Selydivvugilia State Company.
8. In a letter of 21 July 2003, the Bailiffs’ Service informed the applicant about the following impediments to the execution of the judgment given in his favour:
the ruling of the Donetsk Regional Court of Arbitration of 14 May 2001, prohibiting the Bailiffs’ Service from performing any activity that involved the forced sale of the Coal Mine’s assets;
the ruling of the Donetsk Regional Commercial Court of 23 February 2002, barring any attachment or sale of the Coal Mine’s property (both bans above were lifted on 2 April 2003, when the Donetsk Regional Commercial Court terminated the bankruptcy proceedings against the Coal Mine);
the moratorium on the forced sale of the property of State-owned enterprises introduced by the 2001 Law.
9. On 1 September 2003, following the transfer of the Coal Mine’s funds to the Selydivvugilia State Company, the Bailiffs’ Service suspended the enforcement proceedings pending the replacement of the debtor in the applicant’s case. On 24 October 2003 the Bailiffs’ Service applied to the City Court for a direction to that effect. On 31 October 2003 the City Court ordered that the debtor in the case be replaced by the Selydivvugilia State Company. On 19 November 2003 the enforcement case was transmitted to the Selidvivske City Bailiffs’ Service.
10. The sum awarded to the applicant by the judgment of 15 March 2001 was paid to him in two instalments in February and May 2004.
11. Some of the relevant domestic law is set out in the judgments of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19), of 30 November 2004 in the case of Dubenko v. Ukraine (74221/01 §§ 2229), and of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 18 and 22).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1