ITEMID: 001-57781
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF HERCZEGFALVY v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;No violation of Art. 5-1;No violation of Art. 5-3;No violation of Art. 8;Violation of Art. 5-4;Violation of Art. 8;Violation of Art. 10;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 8. Mr Istvan Herczegfalvy is a Hungarian citizen who has lived in Austria since 1964. He currently resides in Vienna.
9. From 13 May 1972 to 13 May 1977 he served two prison sentences in succession, following convictions pronounced by the Vienna Regional Criminal Court (Landesgericht für Strafsachen) and confirmed in part by the Supreme Court (Oberster Gerichtshof), inter alia for assaults on his wife, clients of his television repair business and public officials.
10. The Inner Vienna District Court (Bezirksgericht Wien Innere Stadt) on 23 December 1975 and the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen), acting as guardianship court (Pflegschaftsgericht), on 3 November 1977 declared the applicant partly incapacitated (beschränkt entmündigt) and appointed an adviser (Beistand) for him. They did so on the basis of a psychiatrist’s report which had been drawn up following numerous complaints by him about prison conditions.
On 9 August 1983 the District Court appointed a new adviser, who has acted as such since then. According to a ruling of the guardianship court of 19 July 1984, his position was equivalent as from 1 July 1984 to that of a curator (Sachwalter) within the meaning of Article 273 (3), sub-paragraph 3, of the Civil Code (see paragraph 54 below).
11. In the meantime, further prosecutions were brought against Mr Herczegfalvy for assaults on warders and fellow prisoners and for serious threats against judges.
On 10 May 1977 the Regional Court ordered that once he had finished serving his sentence on 13 May (see paragraph 9 above) the applicant should remain in detention under Article 180 (2), sub-paragraphs 1 and 3, of the Code of Criminal Procedure (see paragraph 40 below), as there was reason to fear that he might attempt to abscond and might commit other offences. The applicant unsuccessfully appealed to the Review Chamber (Ratskammer) of the Regional Court and to the Vienna Court of Appeal (Oberlandesgericht), whose rulings were given on 18 May and 21 June respectively. The pre-trial detention (Untersuchungshaft) was confirmed by the presiding judge of the Regional Court on 2 November 1977.
12. In accordance with the opinions of several experts, the presiding judge on 9 January 1978 ordered Mr Herczegfalvy’s provisional placement (vorläufige Unterbringung) in an institution for mentally ill offenders (Article 438 of the Code of Criminal Procedure; see paragraph 44 below). The order was confirmed by the Review Chamber on 6 March and the Court of Appeal on 19 April 1978, and the applicant was transferred to the special prison at Mittersteig, Vienna.
13. According to the psychiatrists who examined him, he was suffering from paranoia querulans, which was equivalent to a mental illness and meant that he was not responsible for his acts; he was extremely aggressive and incapable of understanding that his behaviour was unlawful, and there was a risk that attendance at the trial could harm his health.
Following these reports, the public prosecutor’s office amended the indictment on 15 June 1978 and now sought Mr Herczegfalvy’s detention rather than conviction. From that date the detention in issue was based on Article 429 (4) of the Code of Criminal Procedure (see paragraph 44 below). The applicant’s appeal against the amended indictment was dismissed by the Court of Appeal on 30 August 1978.
14. The hearing before the Regional Court took place on 9 and 10 January 1979. It had previously been necessary to adjourn a hearing arranged for 14 December 1976 because the case-file had been lost, to adjourn a hearing of 3 May 1977 because of the applicant’s request for further witnesses to be called, a hearing of 25 October 1977 because the presiding judge was absent, one of 2 November 1977 because fresh evidence had been produced, one of 6 March 1978 because of mistakes in sending out summonses, and one of 5 April 1978 because the applicant had spat in the presiding judge’s face, which had led to the indictment being amended (see paragraph 13 above).
On 10 January 1979 the court found that the charges against Mr Herczegfalvy had been proved and ordered him to be detained under Article 21 (1) of the Criminal Code (see paragraph 45 below), on the grounds that he was dangerous and not criminally responsible for his acts. The court relied on the opinions of three psychiatrists who had each diagnosed paranoia querulans which from 1975 at least had been equivalent to a mental illness.
15. The applicant brought an application for a declaration of nullity (Nichtigkeitsbeschwerde) to the Supreme Court. The Regional Court decided, however, that pending the decision he should remain provisionally detained under Article 429 (4) of the Code of Criminal Procedure, but in prison, on the psychiatrist’s recommendation.
16. On 28 June 1979 the Regional Court, relying on section 50 of the Hospitals Law, ordered that the detention should be continued and that the applicant should be transferred as a matter of urgency to a psychiatric hospital, so that the treatment he required could be carried out. Mr Herczegfalvy stayed there from 29 June to 23 July 1979 and was then returned to the prison.
The Vienna Court of Appeal, to which the applicant had appealed, held on 29 August 1979 that it had no jurisdiction: as Article 429 (4) of the Code of Criminal Procedure was the only provision which could apply, it was for the Review Chamber of the Regional Court to hear the appeal.
17. On 5 September 1979 the Review Chamber upheld the detention in issue. Applying Article 429 (4) of the Code of Criminal Procedure, it ordered Mr Herczegfalvy to be sent to the Vienna psychiatric hospital so that he could receive urgent medical and socio- and psycho-therapeutic treatment there, which was essential inter alia because of the hunger strike he had carried on since 2 August 1979. On 10 September 1979 he was admitted to ward 23 of that hospital, and stayed there until his release on 28 November 1984.
The applicant’s appeal against this decision was dismissed by the Vienna Court of Appeal on 8 October 1979.
18. In the meantime the Supreme Court had on 3 October 1979 varied the judgment of 10 January 1979 in part (see paragraphs 14-15 above), quashed the detention order and remitted the case to the Regional Court.
19. On 4 December 1979 Mr Herczegfalvy requested his release. On 14 December the investigating judge informed him that he continued to be detained in accordance with Article 429 (4) of the Code of Criminal Procedure.
At that judge’s request, the psychiatric hospital submitted a report dated 17 January 1980 expressing the opinion that it was not possible to place the applicant in ordinary pre-trial detention, as his aggressive behaviour was still causing danger to those around him.
Pursuant to Article 429 (4), the Review Chamber and the Court of Appeal extended the detention in question in 1980.
20. After hearings on 20 March and 9 April 1980 the Regional Court, to which the case had been remitted (see paragraph 18 above), found that the charges against Mr Herczegfalvy - which included further serious threats against a judge on 24 December 1979 - had been proved and ordered him to be detained in an institution for mentally ill offenders under Article 21 (1) of the Criminal Code. It based its decision on the judgment of 10 January 1979, the three psychiatric reports on which it had been based (see paragraph 14 above), and the opinions of the authors of the reports, who had appeared at the hearing and stated that despite certain improvements there had been no fundamental change in the situation.
As the applicant had withdrawn his appeal and application for a declaration of nullity in writing on 30 October 1980 and at a hearing on 6 November, the judgment was on the latter date declared binding by a final order (Endverfügung), which set the date of 1 October 1981 for the next judicial review of the detention (Article 25 (3) of the Criminal Code; see paragraph 46 below).
The applicant subsequently challenged the validity of his declarations. He said that he had made them only with a view to his repatriation to Hungary, which was discussed on 6 November 1980 but did not come about.
21. On 8 February 1982 the Regional Court, acting under Article 21 (1) of the Criminal Code, extended Mr Herczegfalvy’s detention, as a psychiatric report produced at the request of that court stated that he was a dangerous person. The court took its decision under Article 25 (3) of the Criminal Code, after an official of the psychiatric hospital had stated to the court that the annual review of the lawfulness of the detention should have taken place on 1 October 1981 at the latest (see paragraph 20 above).
22. On 13 July, 19 September and a date in October 1983 the applicant requested his release, pointing out that the period for carrying out the annual review had expired on 8 February 1983. On receiving the first of these applications, the court consulted a psychiatrist, who submitted a report on 22 October recommending the applicant’s release subject to supervision (see paragraph 33 below).
An application to exercise its supervisory jurisdiction (Dienstaufsichtsbeschwerde) was made to the Court of Appeal, which ordered the Regional Court to reach a decision speedily; on 16 February 1984 the latter court ordered a further extension of the detention in issue. Taking into account the opinions of the psychiatric expert and the director of the hospital, filed on 25 January 1984, it considered that there had been no fundamental change in Mr Herczegfalvy’s mental state. He was still suffering from paranoia querulans, and if released would undoubtedly refuse to follow the necessary course of treatment; he would consequently be likely to bring numerous complaints or even carry out the threats he had made, in particular those against the prison staff (see paragraph 33 below).
On 4 April 1984 the Court of Appeal dismissed the applicant’s appeal and confirmed that the requirements for his release under Article 47 (2) of the Criminal Code were not satisfied.
23. Mr Herczegfalvy made further applications for release on 6 June and 23 September 1984. He was conditionally released on 28 November in accordance with the court’s decision of 14 November, itself based on a psychiatric report dated 14 September (see paragraph 34 below). The court found that the applicant’s paranoia had admittedly worsened, but that it was primarily due to his detention (Haftquerulanz); the vexatious complaints and petitions (Rechtsquerulanz) did not constitute a danger within the meaning of Article 21 of the Criminal Code; since being detained the applicant had behaved with genuine aggressiveness on a few occasions only; although the possibility could not be excluded of his becoming aggressive in the event of frustration, his psychiatric history did not permit the conclusion that his abnormal personality would induce him to commit criminal offences; moreover, continued psychiatric treatment or treatment by drugs was not considered necessary by the expert, although it was recommended.
24. On being returned to prison after his stay in the Vienna psychiatric hospital from 29 June to 23 July 1979 (see paragraph 16 above), Mr Herczegfalvy had begun a hunger strike on 2 August 1979 as a protest against his detention and the refusal to give him his files. He collapsed on 28 August and was transferred to a clinic where he received intensive medical care. On 10 September 1979 he was transferred back to the Vienna psychiatric hospital, where he remained until his release on 28 November 1984 (see paragraph 23 above).
25. As the applicant was in an extremely weak state when returned there, the director of the hospital ordered him to be force fed, pursuant to section 8 (3) of the Hospitals Law (see paragraph 51 below). The applicant refused all contact and refused to have any medical examination or treatment, and was also given sedatives against his will (three doses of 30mg each of Taractan IM); on 14 and 15 September 1979 he was attached to a security bed, the net and straps of which he succeeded in cutting through. On 17 September he was given a different neuroleptic (Sordinol IM), as infiltrations had appeared. He stopped refusing food on 27 September 1979, after being allocated a single room and being given some of his files.
26. Mr Herczegfalvy again went on hunger strike from 26 November to 13 December 1979, on which date he allegedly eventually agreed to be fed through a tube (Sondenernährung) once daily. However, he later denied that his consent had been validly given.
27. In view of the deterioration of his physical and mental state, he was injected by force with 90mg of Taractan on 15 January 1980, in order to bring about a state of somnolence (Dämmerschlaf) in which it would be possible to treat him by means of perfusions. Since he had resisted this with violence, the emergency team had had to overpower him. On 18 January he was transferred to the intensive care unit, as he showed symptoms of pneumonia and nephritis; he stayed there until 30 January 1980.
28. He had not made a complete recovery when he left, and he still needed treatment with antibiotics and neuroleptics. On his return to the closed unit he was handcuffed and a belt placed around his ankles because of the danger of aggression and the death threats he was making; the restraints were not removed until 14 February 1980. According to the Government, their position was changed regularly, in order to avoid nervous paralysis, and on 12 February he had agreed to be fed by a woman doctor. The applicant stated, however, that other belts had been put around his thighs and stomach and had been untied for the first time only on 2 February; in order to obtain his files and writing materials with which to write his complaints, he had continued his hunger strike without interruption, and had been artificially fed throughout this period.
29. From 19 February 1980 the applicant calmed down and behaved in a more co-operative manner. Although he continued to insult the staff from time to time, he agreed to communicate with those around him and consented to being fed through a tube by a female doctor twice weekly. On 22 February he was given paper and a ballpoint pen.
30. Following a dispute about his correspondence, Mr Herczegfalvy was forbidden on 27 December 1980 to watch television. As his physical resistance to the forced administration of neuroleptics had frequently been in vain and had even led to injuries (loss of teeth, broken ribs and bruises), he brought a complaint of assault on each occasion that he was given medicaments. These letters, which he claimed had not been communicated to the relevant authorities, filled six binders; they were given to him on his discharge.
31. During this period he continued to refuse, at least in part, to take nourishment other than through a tube, but on 12 November 1982 he stated that he no longer needed to be fed artificially, as a doctor had persuaded him to end his hunger strike by explaining to him that it was endangering his life. Hospital reports had, however, stated that he appeared to be adequately nourished.
32. In an opinion of 5 March 1983 an expert considered that conditional release of the applicant would be possible if certain accompanying psychiatric and social measures were taken. In his view, Mr Herczegfalvy’s behaviour was much improved, so that there was now virtually no danger.
33. After a further series of complaints which were regarded as vexatious, the Regional Court consulted the hospital on 28 July 1983 as to the applicant’s possible release.
On 22 October 1983 an expert noted the progress which the applicant had made and expressed the opinion that troublesome behaviour did not constitute a risk within the meaning of Article 21 of the Criminal Code.
However, in a letter of 25 January 1984, the director of the hospital advised the court not to terminate Mr Herczegfalvy’s detention; as the treatment carried out, based on medication, had only a sedative effect, the possibility could not be excluded that if he were released, he would again become aggressive and dangerous.
The Regional Court thereupon on 16 February 1984 refused to release the applicant (see paragraph 22 above).
34. He eventually recovered his liberty on 28 November 1984, after a further expert report dated 14 September 1984 (see paragraph 23 above).
35. While in detention Mr Herczegfalvy addressed an extremely large number of petitions and complaints to various authorities, relating inter alia to his medical treatment and the proceedings brought by him. As he considered that he did not have the necessary money, he refused on several occasions to put stamps on his letters, or sent them to the Ministry of Justice for that purpose. In order to stem this flow of correspondence, he was deprived from time to time of writing materials, and his unstamped letters were frequently returned to him, with the exception of those addressed to the public authorities, in particular the courts.
36. With respect to the letters written at the psychiatric hospital, the hospital management had agreed with the applicant’s curator that they would be transmitted to him regularly and it would be for him to decide whether it was necessary to send them on; this system would apply to all letters other than those to his lawyer, his adviser and the guardianship court. Mr Herczegfalvy has complained that even those letters were not all sent on.
37. When he left the hospital the applicant was given six binders containing the originals of these letters and also about fifty sealed letters; the postal register showed that the latter had never been sent to their addressees, namely the police, the public prosecutor’s office and the courts.
38. Mr Herczegfalvy also claimed that he had been deprived of reading matter, radio and television for long periods during his detention, in particular from 15 January 1980 to the end of February of that year and from 27 December 1980; from 15 June 1981 there had been no television set in his cell or in the ward. He alleged that these measures had been taken for disciplinary purposes only.
39. According to the Government, these measures were based on section 51 (1) of the Hospitals Law (see paragraph 51 below), had been justified for therapeutic reasons, and had lasted for a short time only on each occasion.
40. Article 180 (1) and (2) of the Code of Criminal Procedure, in the version in force at the time, permits the pre-trial detention of a person (where there are serious reasons for suspecting him of having committed a criminal offence) if there is a danger of absconding, collusion or repetition of offences.
41. The risk of absconding cannot be presumed if the accused is liable to a penalty of not more than five years’ imprisonment, is living in normal conditions and has a permanent address in Austria, unless he has already attempted to abscond (Article 180 (3)).
42. The accused can bring an application for release at any time (Article 194 (2)). Under Articles 194 and 195 the request is examined by the Review Chamber of the Regional Court at a hearing in private, in the presence of the accused or his lawyer. If the accused or the public prosecutor’s office appeals to the Court of Appeal, the hearing also takes place in private, in the presence of a member of the principal public prosecutor’s office, but in the absence of the accused and his lawyer.
If no such application is made by the accused, the Review Chamber of its own motion reviews the detention when it has lasted for two months or where three months have passed since the last hearing and the accused has no lawyer (Article 194 (3)).
After the definitive indictment or the fixing of the hearing date for the trial, these review hearings cease. Decisions on the continuation of the detention are now taken by the trial court during the hearing and by the Review Chamber, sitting in private, at other times (Article 194 (4)).
43. Detention on remand is terminated at the latest at the time when a person who has been convicted begins to serve his sentence; the time spent in detention on remand is automatically deducted from the sentence (Article 38 of the Criminal Code).
44. In two cases specified in Articles 429 (4) and 438 of the Code of Criminal Procedure, pre-trial detention may take the form of placement in an institution for mentally ill offenders:
"If one of the reasons for detention specified in Article 180 (2) or (7) exists, or if the person concerned cannot remain at liberty without there being a danger for himself or other persons, or if medical observation of him is necessary, an order shall be made for his provisional detention in an institution for mentally ill offenders or for his admission to a public hospital for mental illnesses ..."
"If there are sufficient reasons for presuming that the conditions in [Article] 21 (2) ... of the Criminal Code are fulfilled, and if reasons for detention (Article 180 (2) and (7)) exist, but the accused cannot without difficulty be detained in the prison of a court, an order shall be made that detention on remand is to take the form of provisional placement in an institution for mentally ill offenders ..."
45. Under Article 21 of the Criminal Code:
"(1) If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (Article 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders, if in view of his person, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.
(2) If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed."
46. The duration of these preventive measures is governed by Article 25 of the Criminal Code, which states that:
"(1) Preventive measures are to be ordered for an indefinite period. They are to be implemented for as long as is required by their purpose ...
(2) The termination of preventive measures shall be decided by the court.
(3) The court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders ... is still necessary.
..."
47. Article 184 of the Code of Criminal Procedure provides that:
"Pre-trial detention is intended to counteract the dangers specified in Article 180 (2). In accordance with the statutory provisions and the regulations based thereon, persons in pre-trial detention may be subjected to restrictions only if they serve the purposes of detention or the maintenance of security or order in the institutions. Prisoners in pre-trial detention are to be treated with calm, seriousness and firmness, in a just manner and with respect for their sense of honour, human dignity and with as little as possible interference with their personality."
48. Articles 187 and 188 of the Code of Criminal Procedure govern the correspondence of prisoners in pre-trial detention:
"(1) Prisoners in pre-trial detention may, without prejudice to Article 45 of this Code and sections 85 and 88 of the Law on Enforcement of Sentences, correspond in writing with all persons who are not likely to prejudice the purpose of the pre-trial detention, and to receive visits from such persons.
(2) Correspondence shall not be subject to any restrictions, unless surveillance is prejudiced by the exceptional volume of the correspondence of a prisoner in pre-trial detention. In such a case the restrictions which are necessary for proper surveillance shall be ordered. Letters which are likely to prejudice the purpose of the detention are to be withheld, unless provided otherwise by sections 88 and 90 (4) of the Law on Enforcement of Sentences, relating to written correspondence with official bodies and legal advisers. Letters from prisoners in pre-trial detention which give rise to suspicion that an offence, not being an offence which can be prosecuted only at the request of a person concerned, is being committed by means of them, are always to be stopped, unless they are addressed to a national general representative body, a national court or another national authority, or to the European Commission of Human Rights.
..."
"Decisions as to which persons prisoners in pre-trial detention may correspond in writing with and which visits they may receive, surveillance of correspondence and visits, and all other orders and decisions relating to contacts between prisoners in pre-trial detention and the outside world (sections 86-100 of the Law on Enforcement of Sentences) are to be taken by the investigating judge, with the exception of surveillance of parcels. Surveillance of correspondence can be waived only in so far as no prejudice of the purpose of detention is to be feared as a result thereof."
49. Unless provided otherwise, the provisions of the Law on Enforcement of Sentences (Strafvollzugsgesetz) applicable to persons in prison also apply by analogy to persons placed in institutions for mentally ill offenders (section 167 (1) of that law). They lay down detailed regulations, for example, with respect to:
- the right to necessary medical treatment (sections 66 et seq.), and compulsory medical treatment and force-feeding (section 69);
- the right of access to information by means of books, magazines, newspapers, radio and television (sections 58 et seq.);
- the right of correspondence, in particular with close relatives and other persons, lawyers, courts and other authorities, representative bodies, the ombudsman, the European Commission of Human Rights and, in the case of a foreign national, his consulate (sections 86 et seq.);
- the right to bring petitions and complaints (sections 119 et seq.). Prisoners may submit petitions concerning their conditions of imprisonment (section 119) and complain of actions of the prison staff which in their opinion infringe their rights (section 120). Complaints are to be addressed to the governor of the prison or, where the complaint is brought against the governor, to the Federal Ministry of Justice (section 121); this remains subject to review by the Administrative Court and the Constitutional Court (Articles 130 and 144 of the Federal Constitution).
Prisoners may submit petitions and requests, other than those relating to their medical treatment, by means of an application to a higher official, but this does not give the right to an administrative decision (section 120 (1), second sentence, and section 122).
50. Section 165 (1) authorises restrictions on the rights of mentally ill offenders only to the extent necessary for the attainment of the purpose of the detention, and prohibits all interferences with their human dignity and with the rights guaranteed them by sections 119 to 122. It also provides that complaints which have obviously been brought solely because of the detainee’s mental or emotional disturbance and which are not based on an infringement of his rights shall be rejected without any formal procedure.
51. Before the establishment of special institutions for mentally ill offenders, they were placed in closed units of public psychiatric hospitals, regulated by the Hospitals Law (Krankenanstaltengesetz). That law provides inter alia:
"(1) The medical service must be organised in such a way that medical assistance is always immediately available in the hospital.
(2) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science.
(3) Special curative treatments including surgical operations may be carried out on a patient only with his consent, but if the patient has not yet reached the age of eighteen or if because he lacks mental maturity or health he cannot assess the necessity or usefulness of the treatment, only with the consent of his legal representative. Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health. The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment."
"Patients who are compulsorily detained ... may be subjected to restrictions with respect to freedom of movement or contact with the outside world."
52. The applicant’s partial legal incapacitation, which was pronounced in 1975 (see paragraph 10 above), was based on sections 1 (2) and 4 of the Incapacitation Regulations (Entmündigungsordnung) of 1916:
"Adults who are unable to look after their own affairs and, because of a mental illness or a handicap, need the assistance of an adviser (Beistand) to look after their affairs appropriately, may be declared partially incapacitated."
"(1) A person who is partially incapacitated shall be treated as a minor over fourteen years (mündiger Minderjähriger) and shall be given an adviser.
...
(3) The adviser shall have the rights and duties of a guardian (Vormund), but the guardianship court may reserve to the adviser the right to dispose over what the incapacitated person acquires by his work."
53. The functions of a guardian are defined in Article 188, first sentence, of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), which reads as follows:
"A guardian must primarily take care of the person of the minor, but also administer his property."
Article 216 (1) states that if care for the person and education of a minor is not the responsibility of a person having parental authority, the guardian shall have responsibility therefor.
54. Under the Law of 1983 on the appointment of curators of handicapped persons (Sachwaltergesetz), persons who have been declared totally or partly legally incapacitated are to be regarded from 1 July 1984 as having the assistance of a curator (Sachwalter), empowered under Article 273 (3), sub-paragraph 3, of the Civil Code to look after all their affairs.
Under Article 282 of the Civil Code a curator has the same rights and obligations as a guardian, but must also care for the person of a handicapped person, in particular his medical and social treatment, unless a court decides otherwise.
55. Any administrative act, including the exercise of direct administrative compulsion against a particular person, may in principle be challenged as to its lawfulness before the Administrative Court (Verwaltungsgerichtshof, Article 130 of the Federal Constitution) and as to its constitutionality before the Constitutional Court (Verfassungsgerichtshof, Article 144).
However, there does not appear to be any example in the case-law of such an application against the acts of a psychiatric hospital of the type of those in issue in the present case.
VIOLATED_ARTICLES: 10
5
8
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 3
5
8
NON_VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-4874
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LIPOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1968. He is a carpenter and is currently detained in the Płock prison.
On 16 May 1996 the applicant was detained on remand. On 17 May 1996 he was transferred to the Bartoszyce Detention Center. Between 12 and 27 June 1996 the applicant was on hunger strike.
On 24 June 1996 the applicant complained to the Governor of the Bartoszyce Detention Center about the ill-treatment by prison officers. In a letter of 31 July 1996 the Deputy Governor of the Bartoszyce Prison informed the applicant that he considered his complaint as unsubstantiated. He pointed out that during the applicant’s hunger strike, which had been prompted by the decision to detain him and by his family problems, he enjoyed constant medical and psychological care.
The applicant alleges that on 25 July 1996 he was assaulted by three prison officers and subsequently spent two days in solitary confinement.
On 16 August 1996 the applicant complained to the District Director of the Prison Service about the assault, the absence of medical examination before his transfer to the solitary confinement, and about his poor health. On 25 October 1996 the District Director rejected the complaint as ill-founded. He admitted that at 8:20 a.m. on 25 July 1996 the applicant had been overpowered, handcuffed and put in solitary confinement. At 11:30 a.m. on the same day the applicant had been examined by a physician who had concluded that he had not have any injuries except for a slight skin excoriation on his hands. The second medical check-up, conducted at 8:10 a.m. on 26 July 1996, had resulted in the doctor’s opinion that the applicant could remain in the solitary confinement. Moreover, an ambulance had been called in the afternoon of 26 July 1996 as the applicant had been complaining about stomach pain, but the medical examination on that occasion had resulted in the conclusion that the applicant’s condition had been normal and analgesics could be prescribed. The Director further noted that together with the Chief Medical Officer of the District Prison Board he had analysed the applicant’s medical file and found that the applicant had always been receiving prescribed medicines. Whenever they had not been available in the prison’s surgery, they had been purchased in the pharmacy outside the prison.
On 10 October 1996 the applicant informed the Bartoszyce District Prosecutor that on 25 July 1996 he had been assaulted by the prison officers. On 14 November 1996 the District Prosecutor decided to discontinue the investigation of the complaint as he concluded that the prison officers had acted lawfully. In particular, the District Prosecutor found that on 25 July 1996 the applicant had been kicking the door of his cell, shouting and threatening with self-mutilation. He had been warned several times that force would be used against him if he had not stopped this behaviour. Since the applicant had continued to behave in this manner, the Prison Governor had authorised the use of force against the applicant, handcuffing him and putting in solitary confinement. That decision had been carried out by three prison officers under the supervision of two senior prison officers. Since the applicant had behaved violently, the officers had used force to overpower him. During his solitary confinement the applicant had been examined on several occasions by physicians who had found no injuries except for a slight skin excoriation on his hands. Further medical examination undertaken after the applicant had complained about stomach pain had resulted in the finding of superficial gastritis. The pain had disappeared after administration of analgesics and a special diet.
On 19 December 1996 the Kętrzyn District Court convicted the applicant of assault and sentenced him to three and a half years’ imprisonment.
On 3 February 1997 the applicant was transferred to the Olsztyn Detention Center.
In a letter of 13 February 1997 the District Director of the Prison Service informed the applicant that his complaints submitted on 20 October 1996 to the Ombudsman were ill-founded. The District Director was of the opinion that the testimony given by the witnesses and medical evidence clearly showed that the alleged assault had not in fact taken place as the prison officers had lawfully responded to the applicant’s violent behaviour. Moreover, he pointed out that in his conversation with the Prison Governor, which had taken place on 27 July 1996, the applicant had not raised any complaints about the alleged assault. The Director also dismissed as unsubstantiated the applicant’s complaints concerning irregularities in the delivery of mail, the failure to give him prescribed medicines and difficulties in contacting his family members.
On 2 April 1997 the applicant was transferred to the Kamińsk Prison.
On 10 April 1997 the Olsztyn District Court convicted the applicant of larceny and sentenced him to four and a half years’ imprisonment.
On 19 April 1997 the Ombudsman informed the applicant that his complaints relating to the alleged irregularities in the mail delivery were unfounded. He pointed out that during the interview with the Penitentiary Judge held on 18 March 1997 the applicant had failed to provide any facts which would make it possible to investigate his allegations. The Ombudsman also observed that the applicant’s allegations concerning the assault by the prison officers had been investigated by the District Prosecutor who had concluded that they were unfounded and discontinued the investigation.

On 28 April 1997 the applicant complained to the District Director of the Prison Service about the inadequate medical treatment and inaccurate diagnosis of his condition at the time of his detention in the Olsztyn Detention Center. In a letter of 27 June 1997 the District Director dismissed the complaint. He pointed out that after the applicant had complained about problems with his kidneys and urinary system he had undergone several medical examinations. In particular, blood and urine tests had been administered. Furthermore, an x-ray of his abdominal cavity had been taken together with an ultrasound of his urinary bladder. The applicant had also had two consultations in the urology clinic. The Director concluded that since the applicant had had access to proper medical care in the Olsztyn Detention Center his complaint was ill-founded.
On 27 August 1997 the applicant complained to the District Director of the Prison Service about the assault by prison officers on 25 July 1996 and about an inaccurate diagnosis given by a psychologist who had examined him. On 13 October 1997 the District Director rejected his complaint. He observed that the incident, which had taken place on 25 July 1996, was investigated by a prosecutor who concluded that the prison officers acted lawfully. Furthermore, the Director informed the applicant that he had been given psychological counselling since he had suffered from personality disorders. The psychologist’s note in the applicant’s medical records merely described his difficulties in adapting to the prison environment and was not used by the prison administration to make any decision concerning his detention.
On 13 November 1997 the Olsztyn District Court pronounced a cumulative judgment in respect of the judgments of 19 December 1996 and 10 April 1997 and reduced the applicant’s sentence to six and a half years’ imprisonment.
On 9 May 1998 the applicant’s mother died. On 18 May 1998 the Penitentiary Judge refused the applicant’s request for a leave to attend her funeral but apparently granted permission for his attendance under police escort.
On 31 July 1998 the applicant got married. He still serves his prison sentence.


ITEMID: 001-72836
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BRATYAKIN v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Afanasiy Semenovich Bratyakin, is a Russian national who was born in 1950 and lives in Kolomna. He is represented before the Court by Mr A. Volkov, a lawyer practising in Kolomna. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 December 1998 the Kolomenskiy Town Court of the Moscow Region convicted the applicant of tax evasion. The applicant was sentenced to five years’ imprisonment. He started serving his sentence that same day.
On 9 April 1999 the Moscow Regional Court, on appeal, upheld in part the first-instance judgment and reduced the applicant’s prison sentence to one year and six months.
On 20 June 1999 the applicant filed a petition with the President of the Moscow Regional Court in which he requested a supervisory review of his case. He alleged that the courts had not determined the specific amount of tax evaded and that they had not therefore established that any criminal offence had been committed. He pleaded not guilty and requested that both the judgment of 11 December 1998 and the decision of the appellate court of 9 April 1999 should be quashed.
On 15 July 1999, following the Amnesty Act of 18 June 1999, the applicant was discharged from serving the remaining term of his sentence and was released from prison.
On 16 November 1999 the Presidium of the Moscow Regional Court, upon its President’s request to uphold the applicant’s petition, quashed the decision of 9 April 1999. In its ruling the Presidium stated, inter alia, that the judgment against the applicant did not specify what constituted the criminal conduct under each particular head of the criminal charge. It also found that the cassation instance had exceeded its jurisdiction when it had reclassified one episode and convicted the applicant of an offence that was not part of the original criminal charge. Furthermore, the Presidium established that the cassation instance had not addressed certain substantive points of the applicant’s appeal. The Presidium remitted the case for a fresh examination by the cassation instance.
On 13 March 2000 the Moscow Regional Court re-examined the case in the light of the finding by the supervisory instance. It remitted the case for reconsideration to the first-instance court.
On 24 January 2001 the Kolomenskiy Town Court of the Moscow Region convicted the applicant of tax evasion and sentenced him to one year and six months’ imprisonment. The same judgment discharged the applicant from the punishment by virtue of the Amnesty Act of 26 May 2000.
The applicant lodged an appeal against his conviction on the grounds, inter alia, that he had already been convicted of the same offence in the first set of proceedings.
On 27 February 2001 the Moscow Regional Court upheld the first-instance judgment on appeal. Addressing the applicant’s claim that he had been tried twice for the same offence, the court stated that the first conviction had been quashed and that the reopening of proceedings did not constitute a second trial.
After the judgment became final, the applicant attempted to initiate supervisory review proceedings by filing petitions with the President of the Moscow Regional Court and with the Supreme Court of the Russian Federation. His petitions were rejected on 14 May 2001 and 29 January 2002 respectively.
Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as applicable at the material time, allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-383) was distinct from proceedings in which a case was reviewed in the light of newly-established facts (Articles 384-390). However, similar rules applied to both procedures (Article 388).
Article 356 of the Code of Criminal Procedure provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or, if it was not appealed against, once the time-limit for appeal had expired.
“The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not become final) on appeal] ...”
“The grounds for quashing or varying a judgment on appeal are as follows:
(i) prejudicial or incomplete investigation or pre-trial or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.”
Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator-General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could seek the intervention of those officials to apply for such a review.
Article 373 of the Code of Criminal Procedure set a limitation period of one year during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official. The period ran from the date on which the impugned judgment became enforceable.
Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the appropriate court. The court could examine the case on the merits, was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence.
The Presidium could dismiss or grant the request. If the request was dismissed, the earlier judgment remained operative. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, remit the case for a new investigation, order reconsideration by a court at any instance, uphold a first-instance judgment reversed on appeal, or vary or uphold any of the earlier judgments.
Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for reconsideration.
The Code of Criminal Procedure of 1960, as applicable at the relevant time, provided as follows:
“Criminal prosecution cannot be started, or, if already started, shall be discontinued if...
1) the absence of a criminal act has been established;
2) the absence of corpus delicti has been established;
3) a limitation period applies;
4) a Law providing for amnesty has been enacted and [the person concerned] is thereby absolved from punishment...;
...
If the circumstances indicated in subparagraphs 1, 2, 3 and 4 are discovered at the stage of examination by a court, the court must continue its examination of the case until it is complete and pronounce an acquittal if grounds 1 or 2 apply, or a conviction if grounds 3 or 4 apply and discharge the convicted person from the sentence. ...”
Section 5 of the Amnesty Act of 18 June 1999 absolved all persons convicted for the first time whose sentence did not exceed five years, and who had already served at least one third of their sentence, from serving the remaining term.
Section 1 of the Amnesty Act of 26 May 2000 absolved all persons convicted for the first time and whose sentence did not exceed three years from serving their sentence.


ITEMID: 001-83823
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MAUMOUSSEAU AND WASHINGTON v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa
TEXT: 7. The first applicant, Ms Sophie Maumousseau, is a French national who was born in 1967 and lives in Les Adrets de l'Estérel. She lodged the application in her own name and on behalf of her daughter, Charlotte Washington, the second applicant, who was born on 14 August 2000 in Newburgh, New York State (United States of America), and who has dual French and US nationality.
8. In May 2000 the first applicant married Mr Washington, a United States national, in the State of New York. Their daughter Charlotte was born on 14 August 2000.
9. Following a serious marital crisis, on an unknown date Ms Maumousseau initiated divorce proceedings in the USA, but she was unable to pursue them because, according to her, she could not afford to.
10. On 17 March 2003, together with the second applicant, she went to stay with her parents in France for the holidays with her husband's consent. She finally decided to remain there and did not return to the USA, despite her husband's repeated requests.
11. On a petition from Mr Washington dated 19 June 2003, the Family Court of the State of New York, Dutchess County, in an order of 15 September 2003, awarded temporary custody of Charlotte to her father, decided that she should live with him, and ordered the mother to return Charlotte immediately, requesting all competent bodies in France to assist the petitioner in repatriating the child to the State of New York. A hearing was scheduled for 14 November 2003 for the purposes of examining the father's petition for sole custody of his daughter and of hearing the mother's reasons for her opposition to such a decision.
12. On 26 September 2003 Charlotte's father applied to the United States Central Authority in order to secure the return of his child. In accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the US Central Authority, on 14 October 2003, transmitted to the French Central Authority, the Bureau for International Legal Assistance in civil and commercial matters, a request for Charlotte's return to the United States.
13. On 15 October 2003 that request was forwarded to the Principal Public Prosecutor at the Aix-en-Provence Court of Appeal, on whose initiative the mother was summoned for interview by the gendarmerie. She stated that she refused to return the child to the father.
14. The public prosecutor at the Draguignan tribunal de grande instance, having been authorised by an order of 7 November 2003 on his ex parte application, brought proceedings against the first applicant for the purposes of obtaining an order that the child be returned to her father on the basis of Articles 3 and 12 of the Hague Convention. Mr Washington intervened on a voluntary basis in those proceedings.
15. In a judgment of 15 January 2004 the court dismissed the claims of the public prosecutor and Mr Washington. It took the view that whilst Charlotte's removal had not been in any way wrongful, since it was not disputed by Mr Washington that he had agreed to the child's temporary removal to France, the fact that the child had been prevented from returning to her place of habitual residence, where Mr Washington exercised his rights of custody, was to be considered wrongful within the meaning of Article 3 of the Hague Convention, regardless of the reasons for which the applicant was opposed to her return. As to the risk for Charlotte in the event of her return, the court found as follows:
“In the present case, in the light of the various attestations produced in the proceedings, both by Mr Washington and by [the applicant], there is no evidence of harmful conduct [on the part of the father] towards the child ... .
However, it has been established and is not disputed by Mr Washington that the child Charlotte, who was born on 14 August 2003 [sic] and who is therefore aged only three years and a few months, has lived throughout her infancy mainly in the company of her mother, especially as the latter was not employed while in the United States. Dr P., who was Charlotte's doctor from her birth until 10 March 2003, has moreover certified that the applicant herself brought the child to most of the consultations and did not miss any appointments.
The attestations produced in the proceedings in respect of Charlotte's life in France show that the mother/daughter relationship is extremely sound, as pointed out by Dr T., who reports that the child is not suffering from any psychological disturbance and has adapted well, particularly in her school life, as indicated by the attestation from the headmistress of the nursery school that [she] attends.
The applicant arranged for the child to undergo a psychological examination by Dr V. Concerning the relations that the child had developed emotionally with her parental figures, this clinical psychologist noted the very strong predominance of the mother figure:
The child's psychological, psycho-affective and cognitive development is healthy, and there is an excellent relationship, with sound emotional ties, between Charlotte and her mother, and also between the child and her maternal grandparents. It also appears that she refers to the father figure, that she may mention when prompted by the therapist, without expressing any affect.
Charlotte seems to be developing harmoniously, having found a balanced life with her mother and maternal grandparents, and does not seem to have been affected mentally by her separation from her father or her departure from the United States of America, where she was born. It would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family out of a concern for effective restoration of the father's role.
It transpires from the foregoing that, in view of Charlotte's infancy and her close relationship with her mother, in whose company she has always lived, both in the United States of America and since her arrival in France, her return would place her in an intolerable situation on account of the resulting separation from her mother, but also because of her removal from the environment to which she has adapted and her transfer to a new environment with her father in the State of her habitual residence, no concrete information having been forthcoming in this connection.
In these circumstances, and in accordance with Article 13 (b) of the Hague Convention, it is not appropriate to order Charlotte's return to the United States of America ... on account of a grave risk that she would be placed in an intolerable situation.”
16. On 30 January 2004 the public prosecutor appealed against the decision of the Draguignan tribunal de grande instance.
17. In parallel to the French proceedings, by an order of 24 February 2004 delivered on 8 March 2004, the Family Court of the State of New York, ruling on the merits of the father's petition, in the absence of the mother – who had failed to appear despite having been served notice of the hearing –, awarded the father sole custody of the child, ordered that the child be returned and held that the court retained jurisdiction to reconsider the child's best interests as well as the court's directions in the case if requested by either party.
18. In a judgment of 13 May 2004, served on 1 June 2004, the Aix-en-Provence Court of Appeal set aside the judgment of 15 January 2004 and ordered Charlotte's prompt return to the place of her habitual residence in the United States of America. The judgment gave the following reasons:
“... [the first applicant] requested the benefit of the exception provided for in Article 13 (b) of the Hague Convention ...
It is not for the Court to assess the educative and affective capacities of each parent but to ascertain whether the parent who retains the child has adduced evidence to show that if returned the child would be exposed to real and immediate physical or psychological harm and would be placed in an intolerable situation before a decision on the merits is taken by the court of the place of habitual residence, it being understood that, in accordance with Article 19 of the Hague Convention, a decision under that Convention concerning the return of the child will not be a determination on the merits of any custody issue.
Ms Maumousseau has argued that the child should not be returned to the United States of America on child protection grounds, on account of the violent and alcoholic behaviour of Mr Washington who, she has also alleged, took drugs.
The attestations produced by Ms Maumousseau, issued by her parents, Mr and Mrs Louis, Mrs Musard, Mrs Bernard, Mrs Degeneve and Mrs Buckley, mainly relate to her own allegations, which she had imparted to them, about her husband's behaviour towards her. None of them provide evidence of any harmful attitude on the part of Mr Washington towards his daughter. He has himself produced various affidavits from work colleagues, friends of the couple and neighbours, testifying that he is a caring father, is not an alcoholic and does not take drugs. He has also produced the results of tests dated 9 March 2004 showing the absence of any trace of drugs.
The domestic incident report of 4 September 2002 from New York State, the medical certificates of 18 March 2003 and 20 November 2003 issued by Dr Broglio, that of 3 December 2003 by Dr Page, and the complaint for violence filed on 4 December 2003, do not relate to Charlotte Washington at all.
The only document concerning Charlotte is a child protection report filed on 2 October 2001 by the social services of Dutchess County, which noted a lack of supervision imputable to the child's mother following a fall by the child in the fire-escape stairwell. This incident shows that the New York State services are protective of the child's interests.
Ms Maumousseau has not shown that the child's return would be harmful for her on account of the father's behaviour. In fact, she had herself written to him on 4 May 2003 requesting that he send various belongings and objects for Charlotte and adding: “we hope you will come and see us soon and live with us”.
Ms Maumousseau argues that the child's return would place her daughter in an intolerable psychological situation on account of being separated from her mother after having adapted to her new life.
Charlotte, now three and a half years old, has been living with her mother and maternal grandparents for the past year. She has settled well in the village life, has been attending nursery school since 3 September 2003 and takes gymnastics lessons.
The headmistress of the nursery school describes her as a well-behaved child who works well, plays with all her classmates, speaks fluent French, understands everything she is told and makes herself understood, has adapted perfectly to school, and shows much self-fulfilment and contentment.
Dr Torres Chavanier, a psychiatrist, certified on 9 December 2003 that she was a smiling and lively child with a very satisfactory psychomotor and intellectual development for her age and that she showed no signs of psychological disorder. He also pointed out that the mother-child relationship was very sound.
Mr Veschi, a clinical psychologist, certified that he had seen the child at the request of Ms Maumousseau and had drawn up an examination report dated 10 December 2003.
He noted the child's very strong emotional relationship with her mother and maternal grandparents, a very strong predominance of the mother figure reflected in her imaginative creations and in symbolic games, and her reference to the father figure without expressing any affect.
He concluded his report by stating that the child was in good psychological, psycho-affective and cognitive health, which was apparently developing harmoniously, that she seemed to have found a balanced life with her mother and maternal grandparents, and did not seem to have been affected mentally by her separation from her father or her departure from the United States of America, where she was born. He added that '[i]t would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family out of a concern for effective restoration of the father's role'.
The harm referred to in Article 13 (b) of the Hague Convention cannot be constituted solely by separation from the parent who acted unlawfully and created the risk.
The observations of the psychiatrist, psychologist and headmistress show that the child has the capacity to adapt to new circumstances.
Mr Washington has been employed by the company Verizon Communications, as a consultant since 1988, and as a video specialist since December 1999. In 2002 his monthly salary amount to 4,500 euros.
He has been a tenant in the same residence since June 2000, i.e. before Charlotte was born, renting a two-room apartment for a monthly rent of 1,009 dollars that he pays regularly.
His employer wrote to him on 18 February 2004 that he agreed to adapt his working hours so that he could work only two days a week when necessary, as the nature of his work allowed him to work outside the company's premises, whether at home or elsewhere.
Ms Maria Nagy, a graduate of a nursing school and a neighbour of Mr Washington, informed him in a letter of 6 February 2004 that she agreed to look after Charlotte, day or night, as required.
The head of the nursery section of a children's day care and learning centre in Wappingers Falls confirmed by a letter of 20 February 2004 that Charlotte had been admitted to it.
The affidavits and photographs produced by Mr Washington further show that he has the support of his family and friends.
The environment that Mr Washington would provide on his daughter's return, being the environment in which she lived from 14 August 2000 until her removal on 17 March 2003, does not indicate a risk of any harm that would place the child in an intolerable situation.
Ms Maumousseau alleged that there was a risk that she would no longer be allowed to travel freely to the United States.
She produced the form for entry into the United States that has to be filled in by non-immigrant visitors without a visa, showing that entry into the country may be refused to a person who has prevented a US citizen from exercising his or her custody rights.
A permanent resident card, valid from 21 June 2003 to 10 October 2013, was granted to Mrs Washington née Maumousseau on 3 October 2003, further to her application of 21 August 2000.
As a result, the US authorities cannot prevent her from returning to the United States where the family's habitual residence is located and where she will be able to assert her rights in the context of adversarial proceedings. The decisions concerning the exercise of parental authority are essentially temporary and may be modified to take the child's interest into account. The judge of the Dutchess County Family Court, New York State, moreover stipulates in his order of 24 February 2004 that 'the court reserves the right and retains jurisdiction to decide on the child's interest and will consider any new measures that may be taken by the two parties in accordance with this decree [sic]'.
Having regard to all of the foregoing elements, which are sufficient for adjudication without it being necessary to order any investigation, Mrs Washington née Maumousseau has not shown that there is a grave risk that Charlotte's return would expose her to physical or psychological harm or place her in an intolerable situation.
Consequently, it is appropriate to set aside the judgment appealed against and to order the child's prompt return to the place of her habitual residence, in accordance with Article 12 of the Hague Convention of 25 October 1980.”
19. The first applicant appealed against this judgment to the Court of Cassation claiming a violation of Article 13 (b) of the Hague Convention and of Article 8 of the European Convention on Human Rights, and a failure to take into account the child's “best interests” as guaranteed by Article 3 § 1 of the New York Convention on the Rights of the Child (the “New York Convention”).
20. On 8 June 2004 the first applicant was interviewed by the police with a view to the voluntary return of the child, who had been taken into hiding. On 2 and 9 July 2004 the mother was questioned by the public prosecutor for the same purpose. On those latter occasions she took note of the fact that she was committing a criminal offence by keeping her daughter in the current situation and refused to enforce the judgment of 13 May 2004.
21. On 23 September 2004 the public prosecutor of Draguignan, assisted by four police officers, entered Charlotte's nursery school seeking to enforce the judgment of the Court of Appeal. It can be seen from the various press articles in the file that the first applicant, the child's grandparents and school staff physically opposed the police intervention by forming a protective barrier around the child, helped by the prompt arrival of several villagers and the village mayor himself. Faced with this resistance, in the course of which blows and insults were apparently exchanged, the public prosecutor provisionally discontinued the enforcement of the decision. The operation attracted widespread media attention, nationally as well as locally. The then Minister of Justice announced that he would request the General Inspectorate of Judicial Services to study the means of intervention best adapted to this type of dispute; however, no such report has ever been filed or published.
22. In the meantime, on 28 May 2004, the first applicant had applied to the Draguignan Youth Court seeking a measure of “educational assistance” for her daughter. In a decision of 2 August 2004 the Youth Court ordered a measure of investigation and educational guidance and prescribed a psychiatric examination as follows:
“It appears that Charlotte, who is almost four years old, is embroiled in a relentless conflict between her parents, before the courts and in the media, and this must be upsetting or disturbing for her. Charlotte may also feel and apprehend fear about the prospect of being separated for good from her father or mother. These conditions may particularly give rise to anxiety, suffering and worry for a little girl.”
23. In an educational assistance order of 27 September 2004 the Draguignan Youth Court decided on the placement of the second applicant for a period of six months in specialist family care with the ADSEA for the département of Var, with a right of access for both parents, on the following grounds:
“It transpires from the interim report issued by the department responsible for the investigation and educational guidance, from the representations of the parents and the child's ad hoc administrator, from the submissions of the parties and the public prosecutor, from the press articles in the case file, from correspondence and from judicial decisions, that the conflict between the parents reached a climax on 23 September 2004 in Les Adrets, inevitably causing this little girl psychological distress, fear, anxiety, terrors and confusion.
Charlotte was at the heart of a situation of severe and active physical and mental violence and witnessed serious clashes between adults of which she was the subject.
These circumstances have entail for this child a strong emotional condition that endangers her health and security.
The idea, for Charlotte, of being constantly reminded that she risks being permanently separated from her father or mother must inevitably have been strengthened on that occasion ...
Charlotte is living today in semi-clandestine conditions, deprived of contact with her father, the subject of concern among members of her family, and a hostage in the conflict between her parents, as enshrined in various decisions.
In order to give her some respite, some time to catch her breath and get on with her childhood, to distance her from the competition of which she is the target, with the risk of a psychological breakdown, it is appropriate to order that she be placed for a period of six months in specialist family care with the ADSEA for the département of Var.”
24. In a judgment of 3 December 2004 the Aix-en-Provence Court of Appeal endorsed the child's temporary placement in care but, when ruling on the merits, ordered that she be removed from care and returned to her father in accordance with the US court's decision and its own decision of 13 May 2004.
25. On 4 December 2004 Charlotte left France for the USA.
26. In a judgment of 21 March 2005 the Youth Court ordered the discontinuance of the educational assistance measure:
“The conflict over this child must have placed Charlotte in a situation of uncertainty, anxiety and suffering.
The present outcome of this conflict, namely Charlotte's separation from her mother, must have been very psychologically harmful for this four-year-old child who until then had benefited from the warm and orderly environment provided by the mother.
A whole sphere of her past life has thus disappeared – left behind in a few hours on the plane.
This wrench will take a long time to heal.
In this sense, Charlotte remains in a situation of danger in terms of her health, within the meaning of Article 375 of the Civil Code.
The fact that Charlotte lives with her father in the USA nevertheless precludes the continuation of any measure of support for the girl or her parents.
On that ground alone it is ordered that the educational assistance measure be discontinued.”
27. In a judgment of 14 June 2005 the Court of Cassation dismissed an appeal by the first applicant in spite of the advocate-general's submissions to the contrary. The judgment is reasoned as follows:
“It is apparent from Article 13 (b) of the Hague Convention of 25 October 1980 that an exception to the child's prompt return may be allowed only if there is a grave risk of harm or of an intolerable situation. Under Article 3 § 1 of the New York Convention on the Rights of the Child – a provision which is directly applicable in the French courts – the best interests of the child must be a primary consideration in the assessment of the relevant circumstances.
Without having to deal with a mere argument, the Court of Appeal noted, in its discretion, after referring to the conditions of the child's life with her mother, that there was no evidence that the father had displayed a dangerous attitude towards his daughter, that it had been established that he was neither an alcoholic nor a drug addict, that the child's psychological condition was satisfactory, and that her father would offer her favourable living conditions in the United States, with the assistance of a nursing school graduate. These findings show that the child's best interests were taken into consideration by the Court of Appeal, which rightly concluded, without laying itself open to the complaints in the present appeal, that it was appropriate to order the child's prompt return in accordance with the Hague Convention.”
28. In parallel to the various sets of proceedings mentioned above, the first applicant initiated divorce proceedings in France on 6 November 2003, when she filed a petition for divorce, on the grounds of fault, with the Draguignan family-affairs judge. In a decision of 24 November 2003, a hearing for an attempt at reconciliation was scheduled for 8 June 2004. At that hearing, Mr Washington claimed that the French family-affairs judge should decline jurisdiction in favour of the Family Court of the State of New York.
29. In a decision of 15 June 2004 the judge upheld the objection to jurisdiction. In a judgment of 24 February 2005 the Aix-en-Provence Court of Appeal set aside that decision and held that the French court had jurisdiction to rule on the divorce.
30. On 30 March 2005 the first applicant filed an updated petition for divorce. In a decision of 31 March 2005, a hearing for an attempt at reconciliation was scheduled for 30 June 2005. In connection with that hearing, Mr Washington filed pleadings seeking an order that he be examined before the Family Court of the State of New York, and in the alternative the postponement of the hearing so that he would be able to attend. The proceedings were adjourned until a hearing of 2 August 2005. Mr. Washington failed to appear and did not give reasons for this. The reconciliation hearing was thus held in his absence.
31. In a non-reconciliation decision of 16 August 2005, and after pointing out that a decision on the child's return given in the context of the Hague Convention did not determine the merits of any custody issue (Article 19), the family-affairs judge ruled that parental authority would be exercised jointly by both parents, that the child would habitually reside in France at her mother's house, and that the father would have rights of visiting and staying contact for one half of the school summer holidays every year, and every other year, alternately with the mother, for the whole of the Christmas holidays. The decision states as follows:
“The petitioner's claims, in the light of the evidence concerning the living conditions offered to the child, as noted by the judges of the Aix-en-Provence Court of Appeal, do not appear to be contrary to the child's interests. They must therefore be granted as to their principle.”
32. In a judgment of 24 April 2007 the Draguignan tribunal de grande instance granted the parties' divorce and held that the second applicant should live with her mother, with her father being granted a right of contact.
33. The Government indicated that subsequent to the enforcement of the decision concerning the child's return, the French Central Authority had received requests from the first applicant's lawyer for the purpose of transmitting to the US Central Authority a request for Charlotte's return on the basis of the non-reconciliation decision holding that the child should live with her mother. No action had been taken in response to these requests on the ground that Article 3 of the Hague Convention was not applicable as the child's habitual residence had been in the United States at the time of the French decision. Lastly, during the public hearing before the Court, the Government explained that on 24 November 2005 the first applicant had summoned Mr Washington to appear before the Draguignan Criminal Court, for the offence of failing to hand over a child to the person having custody, in breach of the decision of 16 August 2005, and that the court, having found that it was not established that the summons had been served on its addressee, had invited her to serve a new summons for a hearing on 7 September 2007.
34. Following the orders of 15 September 2003 and 24 February 2004 (see paragraphs 11 and 17 above), the Family Court of the State of New York made a new order (“order to show cause”) on 11 October 2005 in which the first applicant was summoned to a hearing scheduled for 28 November 2005 for the purpose of submitting the reasons why an order should not be made, upon a petition from Mr Washington, to the effect that her visits to Charlotte would be restricted to the courthouse under the supervision of the child's paternal grandmother and an officer of the court and that she would have to surrender the child's French passport prior to the first visit and refrain from applying for a new one. She was moreover ordered to post with the court a bond in the amount of 50,000 dollars which would be subject to forfeiture in the event she removed the child from the country.
35. On 18 November 2005 the first applicant received a letter from the French Ministry of Foreign Affairs which stated as follows:
“In your interview of 14 October 2005 you expressed your fear that you would not be given leave to enter the United States and thus would not be able to visit your daughter Charlotte, since, on the United States immigration questionnaire that you would have to complete, you would be asked expressly if you had committed a wrongful child abduction.
The Ministry of Foreign Affairs is not in a position to give you an assurance that the United States authorities would allow you to enter their country.
I am able to inform you, however, that a representative of the United States Embassy in France, who was asked about this matter on the telephone, indicated that as you would be coming from a State which is a co-signatory with the United States of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, you should not be prevented from entering US territory.”
36. On 23 November 2005 the first applicant's representative in the United States requested an adjournment of her court appearance until 19 December 2005 and filed an “affirmation in support of request for adjournment” stating that she had been informed of the court's objection to her contacting her daughter before that appearance.
37. At the hearing of 19 December 2005 representations were heard from the parties. The first applicant requested the court, among other things, to dismiss the father's application and to register the non-reconciliation decision of 16 August 2005 of the Draguignan tribunal de grande instance granting her custody of Charlotte.
38. In a decision of 3 February 2006, delivered on 8 February, the judge of the Family Court of the State of New York granted Mr Washington's application to restrict the mother's right of visitation. The court found first that the State of New York alone had the authority and jurisdiction to rule on issues of custody relating to the child, that it would not relinquish jurisdiction, that no French law or ruling could change the domestic law and that it would not recognise the orders of any other court which purported to exercise jurisdiction which was not in conformity with the applicable laws of New York State and international treaties which governed such issues. As regards the non-reconciliation decision of 16 August 2005 granting custody of Charlotte to the mother, it refused to recognise it as binding on that court. The court found that the father's request was justified by the mother's conduct and by the attitude of the French courts and authorities, which had for many months aided the mother in her appropriate actions. Observing that immediately after the child had returned to the United States a French court had determined that the mother should have custody, the judge was of the opinion that if the child were to return to France the likelihood for the father of having that most recent ruling overturned would be remote. The judge concluded as follows:
“Based on the foregoing, this Court will not consider granting the mother unsupervised visitation and will conduct no further hearings on the issues of custody and visitation unless and until all of the following things have taken place:
1. The mother must apply to the appropriate French courts and obtain the following results:
a. An order which vacates any orders which purport to grant custody of this child to the mother.
b. An order which unequivocally and irrevocably acknowledges that New York alone has exclusive subject matter jurisdiction over the issue of custody of this child so long as the father continues to be a resident of New York State.
c. An order registering and recognizing the New York order, granting the father full custody of the subject child, as the only valid order relating to the custody of this child.
d. ...
2. ...
3. Before any unsupervised visitation is granted, the mother must post a cash or surety bond in the amount of $25,000.00 ...
4. Any time the mother is exercising any form of visitation with the child, she must surrender her passport to the child's law guardian ...
5. ..., all visitation with the child shall be supervised and shall be confined to the area of Dutchess County, New York, unless prior court approval has been granted.
I realize these may seem like harsh conditions and restrictions. However, these conditions and restrictions are born of the extremely inappropriate conduct of the mother and the clear attitude and intentions of the French courts and authorities to favor the mother, ignoring applicable laws and international protocols relating to the issues involved in this case.
The mother shall have the right to apply to this court for a relaxation of the conditions outlined above upon notice to this court that the French order purporting to grant her custody of the child has been vacated and the order of this court has been registered and recognized in France as the only valid order ...”
39. The order was followed by the usual indications about the possibility of lodging an appeal before the Appellate Division, Second Department, no later than thirty days after receipt of the order. The first applicant did not exercise her right of appeal.
40. Lastly, there is evidence that on 15 January 2007 the French Central Authority sent a letter to counsel for the first applicant, beginning as follows:
“Dear Madam,
I have been informed by my counterpart in the United States that Mr Washington does not accept the offer of mediation that was made to him, since he cannot be certain of the mother's intentions, and this perhaps explains why you decided, at the same time as he was approached about a friendly settlement, to reactivate the criminal proceedings, of which I have been informed by the public prosecutor of Aix-en-Provence.
The terms of the US judgment being unequivocal, it seems pointless to bring any proceedings in the United States with a view to extending the contact between Charlotte and her mother before securing a change in the French decision concerning parental authority.
It is up to your client to lodge an application for that purpose with the family-affairs judge. The French Central Authority is quite prepared to confer once again with the US Central Authority in order to ascertain what assistance could be provided to Ms Maumousseau should she wish to bring proceedings in the United States for an extension of her access rights, as and when such proceedings are justified by new developments. ...”
41. Article 388-1 of the French Civil Code provides:
“In all proceedings relating to him, a minor capable of discernment may, without prejudice to the provisions as to his intervention or consent, be heard by the court or, when his interests so require, a person appointed by the court for that purpose.
A minor shall be granted a hearing if he so requests. If a minor refuses a hearing, the court shall assess the merits of the refusal. He may be heard alone, with a lawyer or with a person of his choosing.
Where that choice does not appear to be consonant with the child's interests, the court may appoint another person.
The hearing of a minor does not confer on him the status of a party to the proceedings.
The court shall ensure that the minor has been informed of his right to be heard and to be assisted by a lawyer.”
42. The Court of Cassation was consistent in its case-law concerning the application of Article 13 of the Hague Convention until the above-cited judgment of 14 June 2005 (see paragraph 27 above). In a judgment of 12 July 1994, the first Civil Division of the Court of Cassation gave the following reasons for its decision:
“The harm or intolerable situation, within the meaning of [Article 13 (b) of the Convention of 25 October 1980], results as much from the further change in the removed child's current environment as from the environment that he will discover or rediscover in the State of his habitual residence.
Furthermore, after observing, in the light of the expert's report, that Fareed's separation from his mother, taking into account the child's tender age and the circumstances in which he had come to live exclusively with her for over a year, 'would be experienced by the child as the loss of a loved one', the Court of Appeal, exercising its power of discretion, held that for the time being his return to the United States of America would expose him to a grave risk of psychological harm. It therefore justified its decision in accordance with the law.”
In a judgment of 22 June 1999 the same Division dismissed an appeal on points of law as follows:
“The Court of Appeal, which rightly found, based on its own reasoning and that of the court below, that a grave risk of harm or of an intolerable situation – circumstances that under Article 13 (b) of the Hague Convention justify the retention of children who have been removed – might be entailed by a further change in the children's environment, decided in its discretion that separating a three-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age.” (Court of Cassation, First Civil Division, 22 June 1999).
43 The relevant provisions read as follows:
“The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:”
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) to discover the whereabouts of a child who has been wrongfully removed or retained;
(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) to exchange, where desirable, information relating to the social background of the child;
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith ...”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
The Hague Convention was adopted on 24 October 1980 by the Fourteenth Session of the Hague Conference on Private International Law (the “Conference”), an intergovernmental organisation, in Plenary Session. In 1982 the Conference produced and published a final Explanatory Report on the Hague Convention to which the Court refers. The report was drafted by Mrs Élisa Pérez-Vera, Reporter to the organisation's First Commission, which had been responsible for preparing the Hague Convention; it is available on the Internet at http://hcch.e-vision.nl/upload/expl28.pdf. Paragraph 34 of the report reads as follows:
“... it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child's habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.”
44 The relevant provisions of the Convention on the Rights of the Child read as follows:
“... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...”
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
“1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.”
45. In its “General Comment No. 5 (2003)”, on States Parties' obligations to develop general measures of implementation of the 1989 Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations body that monitors its implementation, encouraged States Parties to ratify the Hague Convention for the purposes of implementing the above-mentioned Article 11.
“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
46. The Committee on the Rights of the Child, in its Concluding Observations of 30 June 2004 concerning France, in the context of the second periodic report submitted by that State (CRC/C/15/Add.240), indicated that it was concerned about “inconsistencies in legislation as well as the fact that in practice, the interpretation of the legislation, and determination of which child is 'capable of discernment', may leave possibilities of denying a child this right or make it subject to the child's own request and may give rise to discrimination” (§§ 21 and 22 of its Observations). In its “General Comment No. 7 (2005)” on implementing child rights in early childhood, the Committee stated that Article 12 of the Convention on the Rights of the Child applied both to younger and to older children, early childhood being defined as the period below the age of eight years.
47. Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe on a European Charter on the Rights of the Child states the following as the first of a number of general principles:
“a. Children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs; ...”
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1