ITEMID: 001-58364
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF NILSEN AND JOHNSEN v. NORWAY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 7. The first applicant, Mr Arnold Nilsen, and the second applicant, Mr Jan Gerhard Johnsen, are Norwegian citizens born in 1928 and 1943 and living in Bergen. The first applicant is a police inspector, who at the material time was Chairman of the Norwegian Police Association (Norsk Politiforbund). The second applicant is a police constable and was at the relevant time Chairman of the Bergen Police Association (Bergen Politilag), a branch of the former association. At the material time they were both working in the Bergen police force.
8. In the 1970s Mr Gunnar Nordhus, then a law student, and Mr Edvard Vogt, then an associate professor of sociology at the University of Bergen, carried out an investigation into the phenomenon of violence in Bergen, a city of some 200,000 inhabitants. They gathered material from the local hospital relating to all patients subjected to violence during the period January 1975-July 1976. Later, they included material from other sources. In 1981 Mr Nordhus and Mr Vogt published a summary of their previous reports in a book entitled Volden og dens ofre. En empirisk undersøkelse (“Violence and its Victims. An Empirical Study”). The book extended to some 280 pages and included a 77-page chapter on police brutality, which it defined as the unlawful use of physical force during the performance of police duties. The authors found, inter alia, that 58 persons had been exposed to police brutality during the aforementioned period, 28 of whom had been medically examined, and that the police in Bergen were responsible for approximately 360 incidents a year of excessive and illegal use of force.
The book gave rise to a heated public debate. This involved in part researchers concerning the methods used and the scientific basis for the conclusions drawn, and in part members of the police and the prosecution.
9. In this connection the Ministry of Justice appointed a Committee (utvalg) of Inquiry consisting of Mr Anders Bratholm, professor of criminal and procedural law, and Mr Hans Stenberg-Nilsen, advocate before the Supreme Court. Their mandate was to verify whether the research of Mr Nordhus and Mr Vogt provided a basis for making any general observations as to the nature and extent of police brutality in Bergen.
Assisted by a statistics expert and an expert on the use of interviews, the Committee interviewed 101 persons, including 29 police officers, 2 public prosecutors, 4 doctors who had taken blood samples at Bergen police station, 5 social workers who dealt especially with young criminals in Bergen, 2 defence lawyers with extensive experience of criminal cases in Bergen, 13 witnesses of police brutality and 27 alleged victims of such misconduct. In a report published in 1982 under the title Politivoldrapporten (“Report on Police Brutality”) Mr Bratholm and Mr Stenberg-Nilsen concluded:
“Since the Committee of Inquiry has been unable to reach a conclusion regarding individual accounts of situations, but has considered all the material as a whole (see remarks on p. 88 with reference to the recommendation of the Reitgjerdet Commission), it will not, on the basis of the descriptions of the situations alone, be able to give any exact figure as to the number of incidents of police violence in Bergen. However, on the basis of all the information concerning police violence in Bergen received from various sources by the Committee, it believes that the nature and the extent of police violence are far more serious than seems to be generally believed. On the strength of the evidence as a whole, the Committee assumes that the real extent hardly differs from the two researchers’ estimates. However, the essential point must be that even the most cautious estimates that can be made on this basis indicate that the extent is alarming.”
10. The conclusions in the 1982 report and its premises were called into question by the Norwegian Police Association, amongst others. The association considered bringing defamation proceedings against Mr Bratholm, Mr Stenberg-Nilsen, Mr Nordhus and Mr Vogt but decided in 1983 to refrain from such action.
11. Newspapers in Bergen, in particular, took a keen interest in the debate following publication of the 1982 report. Prior to that, in 1981, the newspaper Morgenavisen had stated that Mr Nordhus had lied in connection with the collecting of material for his research. Mr Nordhus instituted defamation proceedings against the newspaper but in 1983 the Bergen City Court (byrett) dismissed the action on the ground that the accusation had been justified.
12. Mr Bratholm continued his work on police brutality, eventually as an independent researcher. In the spring of 1986 he published a book entitled Politivold (“Police Brutality”), with the subtitle Omfang – årsak – forebyggelse. En studie i desinformasjon (“Extent – Causes – Prevention. A Study in Misinformation”). He explained his use of the term “misinformation” as meaning the deliberate or negligent dissemination of incorrect information. It related to the “false” – or “misunderstood” – loyalty, leading police officers witnessing the excessive and unlawful use of force to keep quiet or cover the perpetrator by giving false testimony. Taking the 1982 report as its point of departure the book provided additional facts, analyses and conclusions. It also contained strong criticism by Mr Bratholm of the City Court’s judgment in the above-mentioned case brought by Mr Nordhus against Morgenavisen.
13. Following the publication of Mr Bratholm’s book Politivold the second applicant, as Chairman of the Bergen Police Association, was interviewed by the newspaper Dagbladet. The interview was published in an article on 15 May 1986 entitled (all quotations below are translations from Norwegian) “Mr Bratholm out to get the police – An entire service has been denounced by anonymous persons” and read:
“ ‘The mood of officers in the police force has been swinging between despair and anger. An entire service has been denounced by anonymous persons. Many of the officers dread making an appearance in town because there is always someone to believe that there must be something in these allegations.’
This is what the Chairman of the Bergen Police Association, Mr Johnsen, told Dagbladet. He describes Professor Bratholm’s recent report on police brutality in the Bergen police force as ‘pure misinformation intended to harm the police’.
‘Until the contrary has been proved, I would characterise this as a deliberate lie. The allegations come from anonymous sources and are clearly defamatory of the service.’
‘Are you questioning Mr Bratholm’s motives for exposing police brutality?’
‘There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.’
‘Would you suggest that the information be investigated internally?’
‘If there is any truth in it, we will do what we can to remedy the situation. Such a situation is not to our credit, and we are not interested in having such people in the force.’
‘So you do not exclude the possibility that misconduct has occurred?’
‘I discount the possibility that any officers have committed such outrages as described. But I cannot exclude that some of them have in certain instances used force and gone too far.’ ”
14. On 16 May 1986 the first applicant, then Chairman of the Norwegian Police Association, was quoted in an article published by the newspaper Bergens Tidende under the headline “Unworthy of a law professor”. The article read:
“ ‘It is beneath the dignity of a law professor to present something like this. The allegations are completely frivolous since they are based on anonymous sources. They have nothing to do with reality.’
This was stated by Mr Nilsen, Chairman of the Norwegian Police Association, in connection with the allegations made by Professor Bratholm in his book on police brutality.
‘I have spent my whole working life in the Bergen police force, and can safely say that the allegations concerning police brutality bear no relation to reality. They are stories that would have been better suited to a weekly with space to fill than a socalled serious study’, says Mr Nilsen.
Full parity
‘I am puzzled by the motives behind such allegations,’ continues the Chairman of the Police Association. ‘At any rate, it cannot be in the interests of the rule of law and the public good to create such problems for an entire service. I would claim that the quality of the human resources within the police is fully on a par with that found among professors. We would not be able to base a charge against anyone on such flimsy grounds as Professor Bratholm does. Then, at any rate, there would not be any rule of law in this country.’
Would not be tolerated
‘But you are not denying that police brutality does occur?’
‘Of course not, but that is a different question. Here it is a question of systematic use of violence and pure theft. Such conduct would not be tolerated within a police force.’
Mr Nilsen points out that, although he has not studied the book closely, he considers that one cannot leave what has emerged so far unchallenged. The problem is that it is difficult to contest the allegations because it is not an individual, but an entire service, which feels it has been libelled. He does, however, agree with Chief of Police, Mr Oscar Hordnes, who told Bergens Tidende yesterday that there must be good reason for the Prosecutor-General [Riksadvokaten] to examine the matter more closely. The Police Association will also consider seeking a legal opinion on the book.”
15. In the autumn of 1986 Mr Bratholm and Mr Nordhus published a book – Dokumentasjon av politivold og andre overgrep i Bergen-politiet (“Documentation of police brutality and other misconduct in the Bergen police force”) in which Mr Bratholm stated:
“The harassment and persecution to which Mr Nordhus – and in part Mr Vogt – have been subjected in Bergen are reminiscent of the fate of dissidents in east European countries. I doubt that there is anyone among us whose situation is closer to that of these dissidents than Mr Nordhus. It is almost a wonder that he has had the courage and strength to continue his struggle to bring the truth to light.
…
It is impossible to say how many officers in the Bergen police force are involved in the unlawful practice described here; hopefully only a small minority. It is, however, difficult to believe that a great many in the force could be unaware of the conduct of certain colleagues. But their silence is ensured by the pressing demand for ‘loyalty’. This has made it possible for the criminal sub-culture in the Bergen police force – whose activities encompass various kinds of offences – to survive and most likely to flourish.
...
There is reason to believe that many of the actions against Mr Nordhus and Mr Vogt are headed by somebody who is centrally placed – that there is somebody behind the scenes in the Bergen police force who is pulling the strings, plotting strategies and laying plans together with a few highly trusted persons. According to information that has come to light, it may now be possible to identify the key people responsible for some of the misconduct.”
16. In the spring of 1987 Mr Bratholm published a further book entitled Politiovergrep og personforfølgelse. 220 forklaringer om politivold og andre overgrep i Bergenspolitiet (“Police misconduct and individual harassment. 220 statements concerning police brutality and other forms of misconduct in the Bergen police force”), which to some extent was an update of Mr Bratholm’s and Mr Nordhus’s book of 1986. In the introduction Mr Bratholm stated:
“Although abuse of power by the police does occur, and in some places far more frequently than in others, this does not mean that the majority of Norwegian police officers are guilty of such abuse. All the investigations indicate that a small minority of police officers have committed most of the incidents of abuse and are able to continue because the demands for ‘loyalty’ are so strong within the police.”
17. In early 1988 the Norwegian law journal Lov og Rett published a special volume devoted to the issue of police violence. It included a number of articles by academics, amongst others by Mr Bratholm, criticising an investigation ordered by the Prosecutor-General (see paragraph 18 below).
Mr Bratholm also published a number of other articles on the subject of police brutality.
18. After receiving from Mr Bratholm an unexpurgated version of the book published in autumn 1986 mentioning the informers’ names (which until then had been known to the researchers only), the ProsecutorGeneral ordered an investigation headed by ad hoc prosecutor Mr Erling Lyngtveit and police officers from another district.
In June 1987 the result of the Prosecutor-General’s investigation was made public: 368 cases of alleged police brutality in Bergen had been investigated. Some 500 persons, including 230 police officers, had been interviewed. Charges were brought against one police officer, who was subsequently acquitted. The overall conclusion reached in the investigation was essentially that the various allegations of police brutality were unfounded.
At the close of the investigation, fifteen of the interviewees were charged with having made false accusations against the police. Ten of these persons were later convicted in jury trials before the Gulating High Court (lagmannsrett), which took place during the period from November 1988 to March 1992 and were referred to as the “boomerang cases”.
19. On 2 March 1988 a new statement by the first applicant was printed in Annonseavisen in Bergen in an article carrying the following headlines:
“Dramatic turn in the debate on brutality
Amnesty contacted
The Police Association is preparing legal action”
The article read:
“Not only has Professor Bratholm now issued a demand that a government committee of inquiry should be set up to review what was long ago concluded by the Prosecutor-General, but the Bergen Police Department has now been reported to Amnesty International for violating human rights! A delegation from the international secretariat in London has already been in Bergen. Their report is expected to be ready this spring.
‘I have to admit that I was quite surprised when I was told about this recently. It seems as if gentlemen like Mr Nordhus, Mr Vogt and Mr Bratholm now realise that when one move does not work they try another’, commented Mr Nilsen, Chairman of the Norwegian Police Association.
In [his] view, the matter is about to get out of hand. He describes the reporting of the matter to Amnesty as an insult and feels that with the recent, sharp attacks by Professor Bratholm and others, the limits of what can be called impartial research have long since been exceeded. ‘In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives’, Mr Nilsen said to Annonseavisen.
Just before the weekend Mr Nilsen was in Bergen, where he had talks with the newly appointed board of the Bergen Police Association ... Mr Nilsen says it was natural that the recent sharp attacks by Mr Nordhus, Mr Vogt and Mr Bratholm were one of the topics discussed.
‘I intend to contact our lawyer ... early this week. He has long ago sent a letter to Mr Bratholm in which we demand an apology for the statements he has made. I think you can count on our instituting defamation proceedings in this matter. We cannot put up with a situation where the same accusations continue to be made against the Bergen police despite the fact that the force has been cleared after one of the greatest investigations of our time.’
Extended accusations
‘But Mr Bratholm has no confidence in [prosecutor] Lyngtveit’s competence and desire to have the whole matter investigated?’
‘The fact that Professor Bratholm now calls into question the work carried out by Mr Lyngtveit and instituted by the Attorney-General [Regjeringsadvokaten] is in itself serious and remarkable. Now the charges have been extended to include superior police authorities as well.’
According to Annonseavisen’s sources, Mr Nilsen will very soon contact the Prosecutor-General to hear what the latter intends to do about Mr Bratholm’s extended insinuations.
As regards the fact that Amnesty International is being brought into [the matter], Mr Vogt ... affirms that this is as a result of the organisation’s wish to gain full insight into the situation in the Bergen police force.”
20. In June 1988 the first applicant gave a speech as Chairman of the Norwegian Police Association at its annual general assembly, from which Bergens Tidende quoted in an article dated 7 June 1988 carrying the headline “Mr Bratholm accused of defamation”. The article read, inter alia, as follows:
“... The Norwegian Police Association is serious about its threat to bring defamation proceedings against Professor Bratholm. According to Mr Nilsen, Chairman of the Association, a summons against Mr Bratholm will be issued within the next days requesting that two specific written statements he has made in connection with the police brutality case in Bergen be declared null and void.
...
Refused
‘Professor Bratholm has had an opportunity to apologise for the two specific points which we find to be defamatory of the police as a professional group, but he has refused. Therefore we are instituting proceedings. No compensation will be claimed; we are merely seeking to have the statements declared null and void.’
Critical eyes
Mr Nilsen also mentioned this matter in his opening speech to the national assembly and said, among other things, that society’s power structure had to tolerate critical eyes. However, this presupposed a responsible and reliable attitude on the part of the critics. He strongly denounced unobjective debates on police brutality fostered by powerful forces of high social status.
Dilettantes
‘Mr Bratholm’s status as a professor has lent credibility to the allegations of police brutality, and this has undermined the respect for and confidence in the police. The Norwegian Police Association will not accept the appointment of a new commission to investigate allegations of police brutality; nor will it accept private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public’, said Mr Nilsen.
...
Verbal attacks
Mr Nilsen described verbal attacks on the police as an attempt to undermine the dignity and authority of the police.”
21. In a special edition of the law journal Juristkontakt, published in the autumn of 1988, the police and the prosecution authorities presented their views on the investigation ordered by the Prosecutor-General and the ensuing investigation into the suspected false statements given by Mr Bratholm’s informers.
22. In July 1988 the Norwegian Police Association and its Bergen branch brought defamation proceedings against Mr Bratholm, seeking to have his above-cited statements in “Documentation of police brutality and other misconduct in the Bergen police force” declared null and void (see paragraph 15 above).
23. In May 1989 Mr Bratholm, for his part, instituted defamation proceedings against the applicants, requesting that a number of their statements be declared null and void.
24. In 1992, in view of the European Court of Human Rights’ Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992 (Series A no. 239), the associations withdrew their defamation action against Mr Bratholm. The latter refused to withdraw his case against the applicants.
25. The Oslo City Court heard the case against the applicants from 24 August to 8 September 1992, during which evidence was taken from twenty-three witnesses and extensive documentary evidence was submitted.
In its judgment of 7 October 1992 the City Court observed, inter alia, that it was established that unlawful use of violence had occurred in Bergen and that, although it had emanated from very few police officers, the extent of the violence was problematic. Mr Bratholm had not assailed his opponents’ integrity and had not expressed himself in a manner that could justify the applicants’ attack on him. It found the following statements defamatory under Article 247 of the Penal Code and declared them null and void (død og maktesløs, mortifisert) under Article 253 § 1 (the numbering below follows that appearing in the national courts’ judgments):
(Statements by the second applicant published by Dagbladet on 15 May 1986)
1.1 “He describes Professor Bratholm’s recent report on police brutality in the Bergen police force as ‘pure misinformation intended to harm the police’.”
1.2 “Until the contrary has been proved I would characterise this as a deliberate lie.”
1.3 “There must be other ulterior motives. It appears as if the purpose has been to undermine confidence in the police.”
(Statements by the first applicant published by Annonseavisen and Bergens Tidende on 2 March and 7 June 1988 respectively)
2.2 “In my view, one is faced with a form of skulduggery and private investigation where there is good reason to question the honesty of the motives.”
2.3 “The Norwegian Police Association will not accept ... private investigations on a grand scale made by dilettantes and intended to fabricate allegations of police brutality which are then made public.”
On the other hand, the City Court rejected Mr Bratholm’s claims with respect to the following statements by the first applicant published by Bergens Tidende on 16 May 1986 and 7 June 1988:
2.1 “I am puzzled by the motives behind such allegations. At any rate, it cannot be in the interests of the rule of law and the public good to create such problems for an entire service.”
2.4 “Mr Nilsen described verbal attacks on the police as an attempt to undermine the dignity and authority of the police.”
The City Court ordered the first applicant to pay 25,000 Norwegian kroner (NOK) for non-pecuniary damage to Mr Bratholm but dismissed the latter’s claim for non-pecuniary damage against the second applicant on the ground that it had been submitted out of time. The City Court further ordered that the applicants pay Mr Bratholm respectively NOK 112,365.83 and NOK 168,541.91 for legal costs.
The City Court’s judgment included the following reasons:
“Statement 1.1 ... is an unequivocal allegation that Mr Bratholm’s book contains false allegations of police violence within the Bergen police. The expression ‘misinformation’ may be understood as being a neutral assertion that Mr Bratholm provides false information, or to mean that he should be aware that he [does so], or that he [does it] deliberately. The Court emphasises that the phrase ‘pure misinformation intended to harm the police’ must be read in connection with the rest of the text – particularly statement 1.2 and the last paragraph of the interview – and has come to the conclusion that an ordinary reader would understand the statement as follows:
‘With the intent of harming the police, Mr Bratholm is deliberately imparting false information on police brutality.’
The Court has no doubt that this is an assertion that constitutes a defamatory allegation. It is both offensive to Mr Bratholm’s sense of honour and liable to harm his reputation. The allegation is not a subjective characterisation, but an assertion about a matter of fact that can be proved by means of evidence. The accusation can thus be declared null and void.
The Court would add that, when read in context, the statement cannot be construed as an accusation that Mr Bratholm himself is making false allegations of police brutality. However, even if the statement must be understood to be an allegation against persons other than Mr Bratholm (of making false accusations of police brutality), this does not alter its character as an allegation aimed at Mr Bratholm. When read in its entirety, the text clearly indicates that it is Mr Bratholm’s book which Mr Johnsen is referring to.
…
When statement [1.2] is read in the context of the rest of the text, which essentially deals with Mr Bratholm’s book, an ordinary reader would understand it as follows:
‘Mr Bratholm is deliberately passing on assertions about police brutality which he knows are lies.’
Whether statement 1.2 can be interpreted in such a way that it also targets the informers is of no significance here either. Nor does the Court doubt that this statement constitutes a defamatory allegation directed at Mr Bratholm which may be declared null and void because its truth can be tested by evidence.
…
[Statement 1.3] must be understood as a clear assertion that Mr Bratholm’s purpose (in writing the book Politivold) has been to undermine confidence in the police. When read in the context of the rest of the text, especially statements 1.1 and 1.2, it must be understood as an assertion that Mr Bratholm for this purpose is passing on allegations of police brutality which he knows to be untrue. The statement also includes an implicit denigration of Mr Bratholm’s purpose as questionable and unworthy. ‘Other motives’ answers the question whether Mr Bratholm’s motives can be doubted, i.e. as opposed to honourable motives such as, for instance, to promote the rule of law.
...
The Court has no doubt that the assertion is an allegation which has both offended Mr Bratholm’s sense of honour and is liable to harm his reputation. The part of the assertion alleging that Mr Bratholm’s intention is to undermine the police can be proved to be true or false. That Mr Bratholm’s intention, with the statement worded as it is, must be understood by the reader as questionable or reprehensible is a subjective value judgment that can hardly be proved true or false. However, this does not in principle mean that statement 1.3 may not be declared null and void.
[Statement 2.2] is not unequivocal as to whom it is directed against. It can be understood as being directed against Mr Bratholm (probably also against others), when seen in the light of the two preceding passages stating that Mr Bratholm (together with Mr Vogt and Mr Nordhus) is trying a new move and that Mr Bratholm (amongst others) is transgressing the limits of neutral research. When read in its context, the statement may also be understood to imply that it is not at all directed against Mr Bratholm, but against Amnesty. Such an interpretation must be based on the fact that the newspaper interviewed Mr Nilsen just because Amnesty had become involved in the matter. As a third possibility, the Court mentions that the statement – especially when read in the context of the caption in the newspaper – may be understood by an ordinary reader to imply that it is first of all directed at Mr Vogt and Mr Nordhus, but also at Mr Bratholm.
The Court has reached the conclusion that when read in context statement [2.2] must be interpreted in any event as an assertion that Mr Bratholm, among others, has questionable motives for his involvement, and that Mr Bratholm is engaged in and/or contributes to what Mr Nilsen describes as skulduggery and private investigation, not impartial research.
The statement in part includes value judgments (‘skulduggery’, ‘private investigation’), which are not liable to be declared null and void. However, the statement also includes an assertion on matters of fact, i.e. that there are dishonest motives and that Mr Bratholm is not neutral.
The statement must obviously be understood to be an assertion that it is Mr Bratholm whose motives are dishonest. This follows from the first and second paragraphs preceding the statement, where Mr Nilsen first mentions that Mr Bratholm (together with Mr Nordhus and Mr Vogt) is trying a new move, and then claims that Mr Bratholm, among others, has exceeded the limits of impartial research.
The Court has no doubt that this assertion constitutes a defamatory allegation against Mr Bratholm. It is both offensive to his sense of honour and liable to harm his reputation. The truth of the allegation can be tested by evidence and it may therefore be declared null and void.
…
Statement 2.3 contains an assertion that allegations of police brutality are being fabricated and then made public. When read in connection with the rest of the text, this must be interpreted by an ordinary reader as an assertion that Mr Bratholm publicises false allegations of police brutality. This assertion can be proved to be true or false, and is in principle liable to be declared null and void.
The statement does not include only the said assertion. When the assertion is also understood to mean that Mr Bratholm is publicising allegations that he should have realised are false it follows that it is also offensive to Mr Bratholm’s sense of honour and liable to harm his reputation. The assertion implies that he, as an expert, is heedlessly publicising false allegations of police brutality. However, when read in context the statement cannot be understood solely in this way.
The statement must be interpreted as an assertion that Mr Bratholm is taking part in a private investigation for the purpose of fabricating allegations of police brutality.
If the assertion is to be interpreted as also being directed at persons other than Mr Bratholm, this does not preclude its being directed at him. Accordingly, statement 2.3 must also be interpreted as a defamatory allegation against Mr Bratholm, the truth of which can be tested by evidence.”
26. The applicants appealed against the City Court’s judgment to the Supreme Court (Høyesterett), challenging the former court’s interpretation of their statements. Without any support in their wording or the context, it had interpreted the statements as calling into question Mr Bratholm’s honesty and motives. In no event could the statements be regarded as unlawful, as they had been expressed in response to his damaging value judgments of the profession. The applicants invoked, inter alia, Article 250 of the Penal Code pursuant to which a court could refrain from imposing a penalty if the injured party had provoked the defendant or retaliated in a reprehensible manner. A crucial factor was that Mr Bratholm’s attacks on the associations which the applicants represented constituted such provocation and retaliation.
In his cross-appeal Mr Bratholm challenged the City Court’s findings with respect to statements 2.1 and 2.4. Moreover, he emphasised, inter alia, that he had not questioned the honesty of the applicants or any other officials. His criticism had been directed against a system and enjoyed special protection under Article 100 of the Constitution.
On 19 November 1992 the Appeals Selection Committee (kjæremålsutvalget) of the Supreme Court granted leave to appeal on points of law.
27. On 5 May 1993 the Supreme Court rejected both appeals, thereby upholding the City Court’s judgment, and ordered each of the applicants to pay NOK 45,000 in additional costs to Mr Bratholm.
On behalf of the court, Mr Justice Schei stated, inter alia:
“In the present case the interest in freedom of expression carries particular weight. The statements sought to be declared null and void were made in a public debate concerning police brutality. Police brutality – and by this I mean the use of illegal physical force by the police against individuals – is a matter of serious public concern. It is of central importance for democracy that a debate concerning such matters may take place as far as possible without a risk of sanctions being imposed on those who participate. It is of particular importance to allow a wide leeway for criticism in matters of public concern (see Article 100 of the Constitution). However, those who act in defence against the criticism, for instance the representatives of the Bergen police, should of course also enjoy this freedom of expression.
...
However, freedom of expression does not go as far as [allowing] every statement in a debate, even if the debate relates to matters of public concern. Freedom of expression must be weighed against the rights of the injured party. The limit between statements which may be permissible and statements which may be declared null and void must in principle be set at statements which relate to the other person’s personal honesty or motives ...
Nor do accusations of lies, improper motives, dishonesty ... serve to promote freedom of expression but, perhaps, rather to suppress or prevent a debate which should have been allowed to take place.
...
[The applicants’] argument that the [impugned] statements cannot be declared null and void because they include subjective value judgments which are not susceptible of proof, is in my view untenable. The statements include, among other things, accusations of deliberate lies, unworthy motives and intent to damage the police. The truth of this type of statement can in principle be proved. The fact that [the applicants] have made no attempt to present such proof is another matter.
In the assessment of whether the [statements] are to be considered unlawful [rettsstridig] the aggrieved party’s own conduct may also be relevant. A person who uses strong language may have to tolerate more than others. I will revert to Mr Bratholm’s conduct. Suffice it to say, in this context, that I cannot see that his strong involvement [in the debate] can be decisive with respect to those statements which clearly question whether he is lying or has acceptable motives.
[The applicants] have submitted that, regardless of whether the statements are unlawful, the request for a null and void order must be refused, in accordance with an application by analogy of Article 250 of the Penal Code. To this I would ... say that [this] provision scarcely has any independent significance any longer – at least as regards provocation. In the case-law, the injured party’s own conduct has become more central in the determination of [whether a statement should be considered unlawful] and in violation of Article 247 of the Penal Code. I fail to see that there can be any room for exemption from penalty if the statement is unlawful. This approach would be the same if Article 250 ... had also been applicable to nullification. For this reason alone, there are no grounds for application by analogy, as pleaded by [the applicants].
I should think that the reasoning I have ... presented is also correct in respect of retaliation. In any event there [was in the present case] no retaliation such as that required ...
...
I agree with the City Court that [the statements in question] fall under Article 247 of the Penal Code. Read in their context, they are directed against Mr Bratholm. In statement 1.2 he is accused of deliberate lies. An accusation of falsehood is also implied in statement 1.1 by the word ‘misinformation’. [Statement] 1.3 implies unworthy motives and suggests malicious intent [underlying Mr Bratholm’s attacks against the police]. This is also implied in statement 1.1. The defamatory nature of the [second applicant’s] statements becomes clearer and is thus reinforced when the statements are read together.
The interest in freedom of expression cannot make these statements lawful. I refer to what I have said about statements which are directed against personal honesty and integrity.
It has been submitted that Mr Bratholm’s own situation must be of central importance in the evaluation of the issue of lawfulness. He has, it is being alleged, made strong and derogatory statements against his opponents in the debate and must accept that an embarrassing light is put on him as well.
I agree that Mr Bratholm voices harsh criticism in his book ‘Police Brutality’. A lot of this criticism is against a system, but a lot of it is also directed against persons.
Mr Bratholm uses a number of derogatory expressions. ‘Misinformation’ has been singled out as one of them. I cannot see, for instance, that the use of that expression carries any significant weight when the lawfulness of the impugned statements is being assessed. Mr Bratholm’s point in using this expression has been, inter alia, to expose a deliberate or negligent denial of the existence of police brutality. Such denial is a prerequisite for the occurrence of police brutality on an appreciable scale.
The word despotism has also been mentioned. In the manner it is used in the preface to Mr Bratholm’s book it is not linked to the Bergen police force ... The fact that the use of words such as ‘despotism’ probably contributed to raising the temperature and the general noise level of the debate may be relevant to the assessment of the lawfulness [of the impugned statements]. Having regard to the entire context, however, I cannot see that Mr Bratholm’s choice of words or manner of presentation of his views either in ‘Police Brutality’ or in connection with the commercialisation of the book can justify calling into question his integrity as was done in the statements under consideration.
It is noted that the appellants have forcefully submitted that their statements were made in their capacity as representatives of the police and that, as such, they must enjoy a particular protection against their statements being declared null and void. I agree that it was natural for Mr Johnsen and Mr Nilsen as representatives to look after the interests of the police officers in the debate. As I have already mentioned, their freedom of expression should be protected to the same extent as the freedom of those who direct the attention towards possible questionable circumstances within the police force. But, as already pointed out, there is a limit also in respect of them. That limit has been overstepped in this case.
Accordingly, I conclude along with the City Court that statements 1.1, 1.2 and 1.3 must be declared null and void.
I will now turn to Mr Nilsen’s statements ...
[Statement 2.2] ... directly assails the honesty of Mr Bratholm’s motives. That this is what is being questioned is reinforced when the statement is read in the context of the whole article ...
I therefore agree with the City Court that statement 2.2 must be declared null and void ...
...
Statement 2.3 is tantamount to an assertion that allegations of police brutality are being fabricated and then made public. In this, there clearly lies a statement to the effect that the published material is being tampered with. The statement appears in close connection with Mr Bratholm and must at any rate be perceived as applying also to him ...
... I therefore conclude that statement 2.3 but not statement 2.4 must be declared null and void ...”
28. In a concurring opinion Mr Justice Bugge stated, inter alia:
“I have reached the same conclusion and I agree on the essential points of the reasoning. However, for my part I have reached this conclusion with considerable doubts as to whether the appellants’ statements were unlawful, having regard to the circumstances in which they were made. The basis for my doubts is as follows:
[Mr Justice Schei] pointed out that in a public debate on ‘matters of public concern’ ... the threshold for what the participants may state without being found liable for defamation should be very high. Even if this is accepted, I agree that it should not legitimise attacks directed against the opponent’s personal integrity, or which devalue or throw suspicion on his motives for participating in the debate.
...
For my part, I find it hard to see how the statements which the City Court ... declared null and void could be said to have been particularly directed against Mr Bratholm as a private individual. But I shall leave that aside, since I consider that in a heated public debate attacking another person’s integrity and motives instead of what the person has stated must be deemed unlawful as such.
What in particular causes a problem for me is that – as I see it – it was Mr Bratholm himself who had called into question the integrity of the police, in particular that of the Bergen Police Department, when the debate on police brutality resumed in 1986. In Chapter 15 of [the book] he states the following about the concept ‘misinformation’:
‘ “Misinformation” can be defined in various ways. One possible definition is untrue information, irrespective of whether the information is provided in good faith. It may, for example, be discovered subsequently that the research was mistaken on some point.
There is little reason to place such a wide construction on the concept of misinformation. It is more practical to understand it as meaning deliberate or negligent dissemination of incorrect information. Misinformation in this sense is a problem that is easier to deal with than when our understanding is broadened only gradually.
...
If I were to base my conclusion on scattered information and impressions, it would be that the misinformation has been rather successful. The police, their organisations and supporters appear to have convinced fairly large parts of public opinion – which is hardly surprising. It is natural to call to mind how successful misinformation concerning the old Greenland police force has been for several decades. In spite of the extremely bad conditions there – and the fact that sound documentation of these conditions was provided by at least some of the Oslo newspapers from time to time, it was the misinformation that prevailed. The many members of the police that knew of the brutality did nothing to bring the circumstances to light.’
I cannot read this in any other way than that Mr Bratholm here indeed himself accuses his opponents in the debate – ‘the police, its organisations and defenders’ – of lack of integrity, of knowingly hiding factual circumstances and of acting on the basis of inappropriate motives.
It is in my view on this basis that the appellants’ statements must be evaluated – and in particular those which were made after the publication of ‘Police Brutality’ in 1986. The appellants’ submission that they, who naturally must have felt offended on behalf of the police, were entitled to reply in the same manner is not as such ill-founded.
In this connection it is in my view also of importance that the appellants expressed themselves on behalf of the police organisations in Bergen and at the national level, respectively. They acted as elected representatives and spokesmen of the members. Very likely, and rightly so, they considered it an organisational duty to react to the attacks which were directed against the working methods of the police. It is not unusual in our society for the representatives of a profession to reply to public attacks in a way which might be lacking the necessary reflection and which might be somewhat inappropriate. The appellants were not familiar with the legislation on defamation either.
Mr Bratholm has maintained that there must be a difference between what wellknown politicians must endure in respect of statements related to their political activities and the protection he enjoys when ‘from his professional standpoint he engages in important matters of public concern’. I do not agree ... and do not understand ... how this can be argued. In my opinion and as a matter of principle, when a scholar – for example in law – embarks on a public debate on matters of public interest he should not enjoy a greater right to protection under the defamation legislation than a politician.
If I nevertheless agree with [Mr Justice Schei’s] conclusions, it is because I accept that there is a need to provide the best possible terms for a debate on ‘matters of public concern’ and that [such a debate] might suffer if statements such as those dealt with in this case are not declared null and void, even if their background is taken into consideration.”
29. On 16 January 1998 the Supreme Court ordered the reopening of seven of the “boomerang cases”. The requests to this effect which had been lodged in 1996 had been rejected by the Gulating High Court. The Supreme Court granted leave to appeal. Pursuant to section 392 of the Criminal Procedure Act the Supreme Court found, in its final decision, that in the special circumstances at hand the correctness of the convictions was doubtful and that weighty considerations warranted a reassessment of the guilt of the convicted persons. In the Supreme Court’s view it was evident that police brutality had existed to a certain extent during the years 1974-86. The reason for the denial by police officers of any knowledge of such incidents had to be sought in “misunderstood loyalty”. It was highly probable that some police officers had given false evidence during the investigations of police brutality in Bergen. On 16 April 1998 the seven convicted persons were acquitted at the request of the prosecution which had found it unnecessary to bring new charges, failing a sufficient general interest.
30. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions of the Penal Code, an order under its Article 253 declaring the defamatory allegation null and void (mortifikasjon) and an order under the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969) to pay compensation to the aggrieved party. Only the latter two were at issue in the present case.
31. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved may be declared null and void by a court. The relevant part of this provision reads:
“1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.”
Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof.
Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy.
In recent years there has been a debate in Norway as to whether one should abolish the remedy of null and void orders, which has existed in Norwegian law since the sixteenth century and which may also be found in the laws of Denmark and Iceland. Because of its being deemed a particularly lenient form of sanction, the Norwegian Association of Editors has expressed a wish to maintain it.
32. Section 3-6 of the Damage Compensation Act 1969 reads:
“A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable.
If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay the compensation. The same applies to any redress imposed under the first subsection, unless the court finds that there are special grounds for dispensation …”
33. Conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Articles 246 and 247 of which provide:
“Article 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months.
Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”
A limitation to the applicability of Article 247 follows from the requirement that the expression must be unlawful (rettsstridig). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
Further limitations to the application of Article 247 are contained in Article 249, the relevant part of which reads:
“1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced.
…”
VIOLATED_ARTICLES: 10


ITEMID: 001-22938
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DAVIDSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Swedish national, born in 1953, who lives in Göteborg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has two daughters, C and A, born in 1981 and 1988 respectively. Since their birth they cohabited with their mother. The applicant and the children’s mother have never lived together and their relationship ended permanently in 1993.
In the period between 1993 and 1995 the children and their mother received support and therapy several times from the social authorities.
In January 1995 C was voluntarily placed at a childcare centre due to the mother’s mental problems and medical drug abuse. Having commenced psychotherapy, the mother found herself also incapable of taking care of A. Thus, on 22 January 1996 A moved in with the applicant.
Shortly thereafter, on 31 January 1996 A was taken into immediate care on a provisional basis by decision of a Social Board (stadsdelsnämnden TuveSäve i Göteborg) pursuant to the section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52, hereinafter “the 1990 Act”) due to inter alia suspicion of incest and physical abuse, as alleged by C to the staff at the child care centre, where she was placed.
It appears that A was fetched by the social authorities from her school. She was temporarily placed at an institution specialising in child psychiatry.
The decision about immediate care on a provisional basis was confirmed by the County Administrative Court (Länsrätten i Göteborgs- och Bohus Län) on 9 February 1996.
On 27 February 1996 the Social Board revoked its decision as the applicant and A’s mother had agreed that A should remain temporarily at the children’s institution. An investigation was carried out concerning C’s allegation which resulted in a decision not to pursue the case, taken it appears, shortly thereafter.
On 22 March 1996 the Social Board decided to take A into immediate care on a provisional basis pursuant to section 6 of the 1990 Act.
The decision was confirmed by the County Administrative Court on the 3 April 1996.
On 10 May 1996, by request of the Social Board, the County Administrative Court pronounced judgment ordering that A be taken into public care pursuant to sections 1 and 2 of the 1990 Act. Before the court the applicant, A’s mother and 5 witnesses were heard, including two psychiatrists. In addition a psychiatric statement on A was submitted. It was not in dispute that A’s mother could not provide the care needed.
In its judgment the court held:
“A is a child with special needs. According to the psychiatric statement A is mentally unhealthy, she has already been damaged and she is in need of care. The Social Board has claimed that it is likely that the need for care is caused by the applicant having beaten A. The court finds that this cannot be considered established with the certainty needed. However, it is a fact that A suffered great lack of care while living with her mother. Having shared custody, both parents are responsible therefore. Both parents consider that A can live with [the applicant] and that consequently, intervention [under the 1990 Act] is not needed. However, it follows from the psychiatric statement that the applicant and A’s mother remained passive in spite of serious warning signals concerning A, including inter alia A’s statement expressed during the spring of 1995 that she did not wish to live any longer. The parents have not taken any measures at all as regards A’s unhealthy state of mind. In addition to this passivity, the applicant appears to lack understanding for A’s need for security, stimulation and care. One example thereof is [the applicant’s] reaction at this hearing to all the information gathered on A’s need for care, provided by doctors’ statements and witnesses. In [the applicant’s] opinion A’s main problems are caused by the public care she has been subjected to. Thus, he insists that only he should assess whether A needs special care and only after she has been placed with him. This statement and the information otherwise submitted before the court support the impression that A, deprived of proper care, obviously risks severe damage to her health and development, not only [in relation to] her mother but also if placed with her father. Since [the applicant] and A’s mother cannot consent to the current care plan and have not shown that the needed care can be provided in some other way, A must be taken into care pursuant to the 1990 Act.”
On appeal, the judgment was upheld on 23 August 1996 by the Administrative Court of Appeal (Kammarrätten i Göteborg) after an oral hearing where the applicant was heard as well as several witnesses.
Leave to appeal was refused by the Supreme Administrative Court (Regeringsrätten) on 6 December 1996.
On 7 January 1997 A, who until then had been placed in a children’s home, was placed with foster parents. The applicant maintained access to A three times per week. In the meantime the applicant requested that the care order be revoked. The Social Board refused this on 20 December 1996.
The applicant appealed to the County Administrative Court, claiming that the care order be revoked or in the alternative that A be transferred back to the children’s home until a foster family closer to his home in Göteborg could be found. Before the court one of the psychiatrists heard before the County Administrative Court was re-heard and an additional witness on the applicant’s behalf was heard. A’s counsel recommended that the care order be maintained. By judgment of 24 February 1997 the County Administrative Court found against the applicant stating inter alia:
“[the applicant] maintains that the conditions for public care according to the 1990 Act are not fulfilled. Moreover, he finds no reasons to take any special measures or make any changes as regards A. On the one hand he accepts that A may be a child with special needs; on the other hand he maintains that it is up to him to assess whether A needs any supportive measures and only after she has been placed with him. As a result of this inflexibility on the part of the applicant the situation is virtually unchanged since the [the court’s judgment of 10 May 1996]. Indeed, as the statement from the children’s home shows, A appears to feel better. According to [the applicant] the reason for this is that A is no longer under the influence of her mother and that she regularly sees him and his family. [According to the court] another explanation could be the beneficial influence of the children’s home. No matter how one assesses it, the case offers no indication that care pursuant to the 1990 Act is no longer needed. The care, which concerns a child with special needs, has lasted for only a short period. The damage inflicted on A has already been proven. In conclusion, the court finds that the care order cannot yet be revoked.
As to the placement of A, no objections as such have been submitted regarding the foster family. The foster family is considered qualified. The question remains whether the placement of A at a home situated [approximately 30 kilometres] from the city Alingsås contravenes the principle of proximity, which entails that the child should be placed at a home which is not too far from the child’s home-environment. Taking into consideration that there are good public connections between Göteborg and Alingsås and that [the applicant] is always fetched from and brought to the railwaystation by the foster family, the court finds that the placement of A is not in breach of the principle of proximity. No other reasons have been submitted in favour of returning A to the children’s home.”
On appeal, on 11 June 1997 the judgment was confirmed by the Administrative Appeal Court, which held an oral hearing and heard the applicant, A’s mother and three witnesses. It referred to the County Administrative Court’s reasoning and added insofar as relevant the following:
“A’s mental damage has not been healed to such an extent that care according to the 1990 Act is no longer needed. As regards [the applicant] there is no indication that he has gained any better insight as to A’s needs or that his circumstances have changed to such an extent that he is capable of taking care of A with the certainty needed, more particularly when her special needs are taken into consideration. “
Leave to appeal was refused by the Supreme Administrative Court on 20 October 1997.
On 7 July 1998 the Social Board ordered the determination of the care pursuant to section 21 of the 1990 Act.
Normally, measures taken by the social authorities as regards children shall be based on an agreement with the young person concerned and his or her custodian. Such measures are governed by the provisions of the Social Services Act (Socialtjänstlagen, 1980:620).
However, if the custodian or the young person - if he or she is above fifteen years of age - does not consent to the necessary care, compulsory public care may be ordered under the 1990 Act (section 1 § 2). Care is to be provided, inter alia, if there is a clear risk of impairment of the health or development of a person under eighteen years of age due to ill-treatment, improper exploitation, lack of care or any other condition in the home (section 2).
The Social Board may decide to take a child into care immediately on a provisional basis if later court proceedings concerning compulsory care cannot be awaited on account of the risk to the child’s health or development or of the risk that the continuing examination will be obstructed (section 6). Such a decision shall be submitted to the County Administrative Court for approval (section 7).
An order committing a child to care on a permanent basis is issued by the County Administrative Court on application by the Social Board. The application shall include a description of the circumstances concerning the child, measures previously taken and the care that the Social Board intends to arrange (section 4).
Once public care has been ordered, it is executed by the Social Board, which decides on the details of the care. In particular, the board shall decide on how the care is to be arranged and where the child is to live (section 11). The council shall ensure that the child’s need of contact with parents and other custodians is met to the utmost possible extent. The council may decide on how this access is to be arranged (section 14).
When public care is no longer necessary, the Social Board shall order the termination of the care (section 21).
Decisions taken by the Social Board as to, inter alia, the continuation of the care and the parents’ access may be appealed against to the County Administrative Court (section 41). The court’s decisions and judgments may be appealed against to the Administrative Court of Appeal and the Supreme Administrative Court (section 33 of the Administrative Procedure Act (Förvaltningsprocesslagen, 1971:291)).


ITEMID: 001-57838
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF RUIZ-MATEOS v. SPAIN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed
JUDGES: C. Russo;D. Ruiz-Jarabo Colomer;John Freeland;N. Valticos;R. Pekkanen
TEXT: 8. Mr José María Ruiz-Mateos, a businessman, Mr Zoilo Ruiz-Mateos, Mr Rafael Ruiz-Mateos, Mr Isidoro Ruiz-Mateos, Mr Alfonso Ruiz-Mateos and Mrs María Dolores Ruiz-Mateos are brothers and sister. They are all of Spanish nationality. In 1983 they held 100% of the shares in RUMASA S.A., the parent company of the RUMASA group, which comprised several hundred undertakings. RUMASA S.A.’s holding in these undertakings varied from one to the other.
9. By a legislative decree of 23 February 1983 the Government ordered the expropriation in the public interest of all the shares in the companies comprising the RUMASA group, including those of the parent company (Article 1). The State, which was the beneficiary of this measure, was to take immediate possession of the expropriated property through the intermediary of the Directorate General for National Assets (Article 2).
The legislative decree was confirmed on 2 March 1983 by the Chamber of Deputies. It gave rise to an appeal to the Constitutional Court (recurso de inconstitucionalidad, Article 161 para. 1 (a) of the Constitution, see paragraph 26 below), as a group of deputies contested its constitutional validity. The Constitutional Court dismissed the deputies’ appeal by a judgment of 2 December 1983, adopted with the President’s casting vote; in a dissenting opinion, six members of the court expressed the view that the expropriation procedure followed was contrary to the Constitution.
10. In the meantime Law no. 7/1983 of 29 June 1983, published a day later in the Official State Gazette (Boletín Oficial del Estado), had replaced the legislative decree. Articles 1 and 2 thereof ordered the immediate expropriation and transfer of possession of the companies concerned in similar terms to those of the legislative decree (see paragraph 9 above). The aim of these measures was to protect the public interest because, in order to finance the group’s companies, its banks had taken risks considered to be disproportionate in relation to their solvency, thereby jeopardising "the stability of the banking system and the interests of the depositors, employees and third parties".
11. Between the publication of the legislative decree and that of Law no. 7/1983, Mr José María Ruiz-Mateos had, on 8 April 1983, both on his own behalf and on that of the other applicants and RUMASA S.A., instituted summary proceedings for the restitution of the expropriated property (interdicto de recobrar). On 11 April the Madrid First-Instance Court (juzgado de primera instancia) no. 18 - composed of a single judge - declared the application inadmissible on procedural grounds. The first applicant had failed to adduce evidence establishing that he had been divested of the assets as alleged and showing that prior to the impugned measure the assets in question had been in his possession.
12. On 9 May 1983 Mr José María Ruiz-Mateos lodged a further application concerning 50% of the RUMASA S.A. shares. The other five applicants followed suit on 27 May with regard to the remaining shares, each claiming 10%. The two cases were allotted respectively to Madrid First-Instance Courts nos. 18, which reopened the file, and 21.
13. The Counsel for the State (Abogado del Estado), representing the Government, obtained, on 4 and 5 July respectively, a stay of three months in each of the two sets of proceedings to enable him to consult his superiors. The applicants’ appeals against those decisions were dismissed on 16 and 18 July.
On 21 September the Counsel for the State applied for the joinder of the two sets of proceedings. Court no. 18 acceded to this request on 22 November, having received the consent of Mr José María Ruiz-Mateos on 18 November. On 27 March 1984 Court no. 21 ordered that the file of the proceedings before it be transmitted to Court no. 18, the other five applicants having given their agreement on 23 March. Court no. 18 received the file on 9 May.
14. On 21 March 1984 the first applicant had requested Court no. 18 to refer to the Constitutional Court a question on the conformity of Articles 1 and 2 of Law no. 7/1983 (see paragraph 10 above) with Articles 14, 24 and 33 of the Constitution (cuestión de inconstitucionalidad, see paragraphs 25, 26 and 27 below). The court held hearings on 18 June and 17 September 1984. On 19 September the judge invited the parties to submit observations on this matter within ten days (Article 35 of Institutional Law no. 2/1979 on the Constitutional Court, "Institutional Law no. 2/1979", see paragraph 27 below). On 29 September the Counsel for the State replied that the question was not material to summary proceedings for the examination of an action to recover possession. On 1 October the Attorney General’s department also expressed its opposition to the motion. On the same date in support of their claims the applicants submitted two memorials, respectively eighty-five and thirty-seven pages long.
15. By a decision (auto) of 5 October 1984 Court no. 18 referred to the Constitutional Court the question of the conformity of the above-mentioned articles of Law no. 7/1983 with Article 24 para. 1 of the Constitution inasmuch as it had not been open to the applicants either to invoke in the courts their right of property in respect of the assets expropriated by legislative action or to challenge the necessity of seizing them. In the opinion of the first-instance court, the decision on the merits of the dispute depended on the validity of the provisions in issue.
16. The Constitutional Court found the question admissible on 17 October 1984; it then gave notice of the question to the Chamber of Deputies, the Senate, the Government and the Attorney General (Fiscal General del Estado), who were each entitled to file observations within the same fifteen-day period (Article 37 para. 2 of Institutional Law no. 2/1979, see paragraph 27 below).
The Constitutional Court received the observations of the Attorney General’s department and of the Counsel for the State on 5 and 6 November respectively; on 12 November the Speaker of the Chamber of Deputies indicated that the Chamber did not intend to submit observations.
17. On 27 January 1986 Mr José María Ruiz-Mateos complained of the delay in the proceedings; he relied in this connection on Article 24 para. 2 of the Constitution (see paragraph 25 below) and Article 6 para. 1 of the Convention (art. 6-1). The Constitutional Court joined the application (recurso de queja) to the file on 30 January, but did not pursue the matter because the applicant lacked locus standi.
On 7 February he again applied to the Constitutional Court, alleging that the decision of 30 January infringed Article 24 of the Constitution. He also maintained that he had locus standi in respect of the constitutional proceedings by virtue of his status as a party in the main proceedings. On 21 February the Constitutional Court confirmed its earlier decision.
18. Following the election to the Constitutional Court of six new members, on 26 March 1986 Mr José María Ruiz-Mateos challenged two of these judges for lack of impartiality. He claimed that one of them was well-known to be a friend of the Prime Minister and the other had already been involved in the case as adviser to the Minister of Justice and had, among other things, participated in preparing the speech to Parliament on the expropriation of RUMASA.
On 10 April the Constitutional Court dismissed the challenge on the ground that the applicant lacked locus standi.
19. By a judgment of 19 December 1986, it held that Articles 1 and 2 of Law no. 7/1983 were compatible with Article 24 of the Constitution. It found that legislative expropriation - even by means of a special statute concerning a specific case - was not contrary to the Constitution. Although this admittedly meant that the persons concerned suffered restrictions on the judicial protection of their rights, as they could not challenge in the courts the necessity of the seizure of their assets, it was always open to them to contest the measure in the administrative courts and to ask those courts to refer a question to the Constitutional Court on the constitutional conformity of such action. In addition an appeal (amparo), founded on the right to equality before the law, lay against the final decision of the administrative courts. Finally, the law in issue had in no way deprived the persons concerned of their right to appropriate compensation, a right which they could assert before the Provincial Expropriation Board (jurado provincial d’expropiación) - the competent administrative body -, and then in the administrative courts.
Two judges expressed the view, in a dissenting opinion, that the expropriation procedure used had deprived the applicants of their right of access to the courts.
20. This judgment was communicated to Court no. 18 on 22 December 1986. The following day that court dismissed the action for restitution.
21. On 27 December 1986 the applicants appealed to the Audiencia provincial of Madrid, which declared the appeal admissible on 5 February 1987.
The examination of the appeal began on 26 June 1988. The court communicated the file to each of the parties in turn, each party having ten days to study it. The hearing was initially set down for 21 October, but was adjourned at the request of the applicants’ lawyer, who was unable to attend. As soon as the hearing opened on 28 November, the applicants sought a stay of the proceedings until the European Commission and Court of Human Rights had had an opportunity to rule on their application to Strasbourg. In the alternative, they requested the Audiencia provincial to refer to the Constitutional Court a new question concerning the compatibility of Articles 1 and 2 of Law no. 7/1983 with Articles 14 and 33 para. 3 of the Constitution (see paragraph 25 below).
The court ordered an adjournment so as to allow the applicants to submit documents in support of their first request. On 19 December 1988 they supplied a translation of the correspondence from the Secretariat of the Commission. After a further hearing on 13 February 1989, the court refused to stay the proceedings. On 7 July 1989 it overruled the applicants’ objection to this decision.
22. On 14 February 1989 it had invited the parties and the Attorney General’s department to give their views on whether the above-mentioned question as to constitutional conformity should be submitted to the Constitutional Court (Article 35 para. 2 of Institutional Law no. 2/1979, see paragraphs 21 above and 27 below). After having received their comments, the Audiencia provincial referred the question to the Constitutional Court on 9 July 1989.
The latter court declared it admissible on 31 October 1989, then communicated it to the institutions of the State listed in Article 37 para. 2 of Institutional Law no. 2/1979 (see paragraph 27 below). The Speaker of the Chamber of Deputies replied on 17 November that the Chamber did not intend to submit observations; on the same day and the following day respectively, Counsel for the State and the Attorney General’s department filed their submissions.
23. By a judgment of 15 January 1991 the Constitutional Court found the contested articles of Law no. 7/1983 to be compatible with Articles 14 and 33 para. 3 of the Constitution. Two judges expressed a dissenting opinion.
24. The Audiencia provincial was notified of this on 25 January 1991 and set down a hearing for 22 February. On that occasion the applicants made a further application for the proceedings to be stayed. The court dismissed their appeal by a judgment of 25 February.
On 6 March the applicants lodged an application for the interpretation of that judgment; their application was dismissed on 11 March 1991.
25. The relevant Articles of the 1978 Constitution are worded as follows:
"Spaniards shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance."
"1. Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his legitimate rights and interests, and in no case may he be denied that protection.
2. Likewise, all persons have the right of access to the ordinary courts as predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence pertinent to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to the presumption of innocence.
..."
"1. Private property rights ... are recognised.
2. ...
3. No-one may be deprived of his property and rights, except on justified grounds of public interest against proper compensation and in accordance with the provisions of the law."
26. The jurisdiction of the Constitutional Court is defined as follows:
"The Constitutional Court has jurisdiction over the whole of Spanish territory and is competent to hear:
(a) appeals against alleged unconstitutionality of laws and regulations having the force of law ...;
(b) individual appeals for protection (recurso de amparo) against violation of the rights and liberties referred to in Article 53 para. 2 of the Constitution, in the circumstances and manner laid down by law;
(c) conflicts of jurisdiction between the State and the Autonomous Communities or between the Autonomous Communities themselves.
..."
Only the rights guaranteed under Articles 14 to 29 of the Constitution may be the subject of an amparo appeal, which is not therefore available in respect of the right to property secured under Article 33.
"If a judicial body considers, in the course of proceedings, that a regulation with the status of law which is applicable in those proceedings and upon the validity of which the judgment depends may be contrary to the Constitution, it may bring the matter before the Constitutional Court in the circumstances, manner and subject to the consequences to be laid down by law; such consequences shall in no case be suspensive."
"1. The judgments of the Constitutional Court shall be published in the Official State Gazette, together with any dissenting opinions. They have the force of res judicata with effect from the day following their publication, and no appeal may be brought against them. Those which declare the unconstitutionality of a law or of a rule with the force of law, and all those which do not merely recognise an individual right, shall be fully binding on all persons.
2. Unless the judgment rules otherwise, that part of the law not affected by unconstitutionality shall remain in force."
27. Chapter III of the Institutional Law on the Constitutional Court is entitled "On questions of constitutionality submitted by judges and courts" and is worded as follows:
"1. When a judge or court, ex proprio motu or at the request of a party, decides that a provision having the status of law which applies in the case in issue and on the validity of which his or its decision depends might be contrary to the Constitution, he or it shall refer the matter to the Constitutional Court, in accordance with the provisions of the present law.
2. Judges or courts shall not refer such a question until the case is ready to be tried and they must do so within the time-limits laid down for ruling on the case. They must specify which law or provision having the status of law is alleged to be unconstitutional and which article of the Constitution is considered to have been breached. They must also state the precise reasons why the outcome of the proceedings depends on the validity of the contested provision. Before taking a final decision on whether to refer the question to the Constitutional Court, the judge or court must first hear the views of the parties to the proceedings and the Attorney General’s department in order to give them the opportunity, within a single and non-extendable ten-day time-limit, to submit any observations they may wish to make concerning the pertinence of the question. The judge shall then announce his decision, without taking any further steps, within three days. No appeal shall lie against this decision. However, the question as to constitutionality may be raised again in subsequent proceedings until the judgment has become final."
"A question as to constitutionality referred to the Constitutional Court by a judge or court must be accompanied by a certified copy of the main file and, in so far as there are any, the observations provided for in the preceding article."
"1. On receipt of the file the Constitutional Court shall follow the procedure laid down in paragraph 2 of the present article. However, the Court may declare the question inadmissible, in a decision stating its reasons, after hearing only the Attorney General, when the procedural requirements are not satisfied or when the question is manifestly ill-founded.
2. The Constitutional Court shall give notice of the question to the Chamber of Deputies and the Senate via their respective Speakers, to the Attorney General and via the Ministry of Justice to the Government. If the question raises an issue concerning a law or another provision having the status of law adopted by an Autonomous Community, notice thereof shall also be given to its legislative and executive authorities. All these authorities may appear before the court and submit observations on the question referred within a single and non-extendable fifteen-day time-limit. When this time-limit has expired, the court shall give judgment within fifteen days, except when it considers a longer period, which may not exceed thirty days, to be necessary, in which case it must state the reasons for its decision."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59125
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PLATAKOU v. GREECE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected;Violation of Art. 6-1;Not necessary to examine Art. 14+6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: András Baka
TEXT: 8. On 18 December 1990, by decision no. 108562/1990 of the Ministers of Culture and Finance, the Greek State expropriated 162.64 sq. m. of land belonging to the applicant, and a three-storey building standing on it, in order to house the Sparta Museum.
9. By decision no. 37/1993 of 30 April 1993, the Sparta Court of First Instance assessed provisional compensation in the sum of 30,000,000 drachmas (GRD). At the hearing, the Greek State maintained that the building was in very poor condition and described it as a “ruin”. The applicant had sought GRD 120,000,000 [Note by the Registry: Before the Court, the applicant produced an expert report dated 24 February 1993 from the Ministry of Culture describing her building as “a typical example of turn-of-the-century bourgeois architecture” and certifying it to be in very good condition. She also produced a report by a valuer dated 2 April 1993 in which the property (the land and the building) was valued at GRD 117,088,000 and a certificate from the Sparta Town Council, which in 1990 had decided to purchase the building with a view to installing part of its services there. The mayor noted that “despite its high cost, the building in question had been chosen because of its central location and its special architectural and aesthetic interest”. That purchase did not take place as the expropriation was ordered shortly afterwards. The final document produced by the applicant was a valuer's report dated 25 June 1999 in which the valuer certified under oath before the Sparta District Court that the then current value of the property was GRD 147,522,400.].
10. On 16 June 1993 the applicant applied to the Nafplion Court of Appeal for an order assessing the final unit amount for compensation. She continued to maintain that the true value of her property was GRD 120,000,000. Her application was lodged with the registry of the Court of Appeal on 4 October 1993. The case was set down for hearing on 15 December 1993.
11. On 8 October 1993 S.I., a court bailiff (δικαστικός επιμελητής) at Athens Court of First Instance was instructed by the applicant's lawyer to serve the application on the applicant's opponents, namely the Greek State and the Archaeological Resources and Expropriations Office (Ταμείo Αρχαιoλoγικώv Πόρωv και Απαλλoτριώσεωv). Although the time-limit for serving the application expired six months after the date of the decision of the Sparta Court of First Instance (that is to say on 31 October 1993), S.I. did not serve it until 12 November 1993, as he mistook it for a notice of appeal requiring service at least thirty days before the date of the hearing.
12. Meanwhile, the applicant's opponents had also applied to the Nafplion Court of Appeal for an order assessing the final unit amount for compensation. Their application, dated 30 August 1993, was lodged with the registry of the Court of Appeal on 9 September 1993 and served on the applicant on 4 March 1994. The hearing was fixed for 6 April 1994.
13. On 15 December 1993 the applicant's opponents appeared before the Court of Appeal and applied for an adjournment of the applicant's application so that both applications could be heard together on 6 April 1994.
14. On 29 June 1994, by judgment no. 357/1994, the Court of Appeal declared both applications inadmissible as being out of time. As regards the Greek State's application, however, it observed that for the purposes of the six-months' limitation period time did not run during the judicial vacation, that is to say from 1 July 1993 to 15 September 1993.
15. On 18 July 1994 the applicant sought an order from the Nafplion Court of Appeal “restoring matters to their previous position” (αίτηση επαvαφoράς τωv πραγμάτωv στηv πρoηγoύμεvη κατάσταση). She argued in particular that the mistake by the court bailiff that had caused him to serve her application out of time constituted an act of force majeure for which she was not responsible.
16. On 21 July 1994 the applicant applied to the Court of Cassation for an order restoring matters to their previous position and an order quashing the Court of Appeal's judgment no. 357/1994. She argued, inter alia, that the error of the bailiff, who thought he was dealing with an appeal, was clear from the wording of the affidavits of service, which stated that the document served was a notice of appeal against the Court of First Instance's decision no. 37/1993.
17. On 29 July 1994 the applicant applied to the Sparta Court of First Instance for a review (αvαψηλάφηση) of its decision no. 37/1993. In support of her application, she referred to a document dated 24 February 1993 from the Ministry of Culture which indicated that the building was in very good condition. The applicant said that her opponents had been aware of the existence of the document before the hearing but had concealed it from the court. By decision no. 191/1994 of 30 December 1994, the application for a review was declared inadmissible on the ground that no appeal lay from a decision assessing the provisional amount for compensation. On 2 February 1995 the applicant lodged an appeal against decision no. 191/1994, but it was dismissed by the Nafplion Court of Appeal on 14 July 1995 (judgment no. 490/1995). The applicant did not appeal to the Court of Cassation against that judgment.
18. On 16 November 1995 the Nafplion Court of Appeal stayed the application for an order restoring matters to their previous position until the Court of Cassation had decided the applicant's appeal.
19. On 14 February 1996 the applicant lodged written submissions with the Court of Cassation. She produced, inter alia, a sworn affidavit (έvoρκη βεβαίωση) dated 3 October 1995 by S.I. admitting that he had made a mistake regarding the nature of the document he had been asked to serve. The applicant also contended that the rule applied by the Court of Appeal in the instant case that time ceased to run against the State during the period of the judicial vacation had contravened the principle of equality of arms. She said that, had that rule been applied to her application, it would not have been deemed to have been lodged outside the statutory time-limit. In that connection, the applicant relied on Articles 6 § 1 and 14 of the Convention.
20. In its judgment no. 929/1996 of 18 June 1996 the Court of Cassation said that the application for restoration of matters to the previous position had to be declared inadmissible, since the applicant had omitted to state in her notice of appeal the evidence on which she relied in support of her allegation that the bailiff, S.I., had made a mistake. It added that as the application made by the applicant's opponents had also been declared inadmissible as being out of time, the applicant had not been prejudiced by the application of the rule that time ceased to run during the judicial vacation. It therefore dismissed her appeal on points of law. However, it made no mention in the operative provisions of the judgment to the application appended to the applicant's appeal for the restoration of matters to the previous position.
21. After her appeal to the Court of Cassation had been dismissed, the applicant resumed the proceedings she had commenced on 18 July 1994 in the Nafplion Court of Appeal. The hearing was fixed for 4 December 1996.
22. On 6 February 1997, in judgment no. 94/1997, the Court of Appeal dismissed the applicant's application for an order restoring matters to the previous position on the ground that that application had already been dismissed in substance by judgment no. 929/1996 of the Court of Cassation. The applicant did not appeal to the Court of Cassation against that judgment.
23. The relevant Article of the 1975 Constitution provides:
“1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest.
2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, in the circumstances and manner laid down by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional assessment of compensation. In cases in which an application is made for immediate final assessment of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application. ...
4. Compensation shall in all cases be assessed by the civil courts. A court may even make a provisional assessment of compensation after the person entitled has been heard or his attendance requested and, at its discretion, require such person to furnish an appropriate guarantee before receiving the compensation, in accordance with law.
Until either final or provisional compensation has been paid, all the rights of the owner shall remain intact, occupation of the property being prohibited.”
The assessed compensation must be paid within a year and a half of publication of the provisional assessment order. If immediate final assessment is sought, the final compensation must be paid within a year and a half of publication of the final assessment by the court.
24. A party to proceedings may apply for an order restoring matters to the previous position if it has been unable to comply with a time-limit as a result of an act of force majeure (Article 152 of the Code of Civil Procedure). Article 154 of the Code lays down that applications for orders restoring matters to the previous position are made to the court before which the main proceedings are pending and, if there is only one set of proceedings, to the court which has jurisdiction to determine whether the procedural step for which the time-limit was imposed has been taken in time.
25. The Code of Civil Procedure (Articles 118 to 120 and Article 566) lays down that that notices of appeal on points of law must state the court to which the appeal is made, the names and addresses of the parties, the purpose of the appeal, the judgment appealed against, the grounds of appeal and whether the appeal is against all or part of the impugned decision. The notice of appeal must also be duly dated and signed. Applications for an order restoring matters to the previous position must state the reasons why the applicant has failed to comply with the time-limit and the evidence on which it intends to rely in support of its allegations (Article 155 of the Code of Civil Procedure).
26. Article 11 of Decree no. 26/6 of 10 July 1944 provides that time shall not run against the State during the judicial vacation, that is to say from 1 July to 15 September.
27. Section 25 of Law no. 2318/1995 lays down that court bailiffs are civil servants (δημόσιoι λειτoυργoί ή υπάλληλoι) who act as State representatives in the performance of their duties.
28. Under Article 18 § 10 of Legislative Decree no. 797/1971, no appeal lies against a decision assessing the provisional unit amount of compensation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57992
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF C. v. BELGIUM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of Art. 14+8
TEXT: 6. The applicant, a Moroccan citizen born in 1955, is currently resident in Morocco.
7. In 1966 he came to live in Belgium with his parents, his brother and his three sisters, who were all Moroccan nationals. Between 1988 and 1991 the sisters adopted Belgian nationality. Two of them later left Belgium for Luxembourg. The applicant's father died in Morocco in 1989.
8. Mr C. lived in Brussels with his family in a house which they owned. After leaving school he trained as a mechanic. From 1984 onwards he worked for the family business as a taxi driver.
9. On 17 October 1985, in Morocco, he married a Moroccan woman who came to live with him in Belgium. Mrs C. gave birth to a son on 10 August 1986. On an unknown date Mr C. divorced his wife in Morocco. She then went back to live there. On 10 July 1991 the Kenitra Court of First Instance (Morocco) took formal note of the fact that Mrs C. had waived her right to custody of the child, who returned to Belgium after his father's release (see paragraph 13 below) and lived with his paternal grandmother. Since May 1992 he has apparently been living with one of his aunts in the Grand Duchy of Luxembourg.
10. On 6 April 1988 the Brussels Criminal Court convicted the applicant of criminal damage and sentenced him to two months' imprisonment, suspended for three years, and a fine of sixty times 400 Belgian francs (BEF).
11. Following the seizure of 17.2 kilograms of cannabis, the same court sentenced Mr C. on 14 December 1988 to seven years' imprisonment and a fine of sixty times BEF 1,000 for unlawful possession of drugs and conspiracy. On 30 June 1989 the Brussels Court of Appeal reduced the term of imprisonment to five years. On 28 July 1988, in the course of the judicial investigation, a deputy police superintendent at Ixelles had drawn up the following report on the applicant:
"[Mr C.] is of good conduct in the district. He has notbrought himself to his neighbours' attention through anyimmoral behaviour. His main social contacts are with personsof Moroccan origin. He is known as a taxi driver and works for ... company, whose registered office is in Ixelles ...His average monthly net salary is BEF 25,000. He apparentlyhas no other source of income. He lives in the house whichhis parents own. He occupies one room and pays no rent. Asregards dependants, he was formerly married to [R. S.] andhad a son from that union. The above persons no longer livein Belgium but in Morocco. He has to pay BEF 2,000 per monthto his wife in maintenance. He is hard-working and gives hisemployer complete satisfaction."
12. According to a questionnaire filled in by the authorities at Forest Prison on 24 June 1988, the applicant is said to have claimed to be able to speak Arabic, French and Spanish.
13. Mr C. was released on parole on 23 May 1991. His son, who had been living with his mother while Mr C. was in prison, joined him in Belgium in July 1991 (see paragraph 9 above).
14. A royal order of 25 February 1991, which was served in March 1991, required the applicant to leave Belgium, on the following grounds:
" Whereas [Mr C.] has been found guilty of causing criminaldamage, for which he was sentenced on 6 April 1988, in ajudgment which has become final, to 2 months' imprisonmentand a fine of 400 francs, the term of imprisonment beingsuspended for 3 years; Whereas he has been found guilty, as principal or jointprincipal, of possessing and dealing in prohibited drugs,namely 17.2 kilos of cannabis, aggravated by the fact thatthis offence also constituted participation in the principalor secondary activities of a criminal organisation, for whichoffences he was sentenced on 30 June 1989, in a judgmentwhich has become final, to 5 years' imprisonment and a fineof 1,000 francs; Whereas, accordingly, by his personal conduct, he hasseriously prejudiced public order;"
In reaching the above decision the Minister of Justice had declined to follow the advice of the Aliens' Office, which had suggested that Mr C. should not be deported but served with a warning.
15. On 13 September 1990 the Advisory Board on Aliens had expressed the opinion that deportation was warranted, on the following grounds in particular:
"[Mr C.] was married to a compatriot but is now divorced. Achild was born of this marriage in 1986 and lived for a timewith his mother in Morocco. He is apparently now with her inthe Netherlands ... There is nothing to suggest that the serious threat posed byMr C.'s behaviour has been removed. Were the deportation of an alien to be held to constituteinterference with the exercise of his right to respect forhis private and family life, within the meaning of Article 8of the European Convention for the Protection of Human Rightsand Fundamental Freedoms (art. 8), such interference would belegitimate in the present case, being in accordance with thelaw and, in the applicant's case, in view of the seriousnessof the threat posed by his presence in Belgium, necessary inthe interests of public safety and the prevention of disorderand crime."
16. On 21 May 1991 the applicant asked the Conseil d'Etat to quash the deportation order, but on 7 October 1992 the Conseil d'Etat dismissed this application on the following grounds:
"The applicant's first ground of appeal is that there hasbeen a breach of the Minister of Justice's circular of8 October 1990 and Article 8 of the Convention for theProtection of Human Rights and Fundamental Freedoms (art. 8),in that the Minister and the Advisory Board on Aliens failedto take account of the fact that he had been living inBelgium since 1966, that his mother and sisters also livedthere, and that he no longer had any links with Morocco,whose language he did not speak.
The Minister undertook in his circular not to deport an alienwho had been settled in the country for more than ten yearsunless he had been sentenced to a term of imprisonment offive years or more. He reserved the power to deport thealien in certain circumstances. The Minister examined thecircumstances in this case and had valid grounds to concludethat, in view of the seriousness of the facts, the applicantshould be deported, particularly in the light of the familycircumstances described by the Advisory Board on Aliens. Inso doing, he was not in breach of either his own circular orArticle 8 of the Convention (art. 8).
In his second ground of appeal, the applicant alleges thebreach of Article 6 of the Constitution, of the Minister ofJustice's circular of 8 October 1990, of section 62 of theAct of 15 December 1980 on the entry, residence, settlementand expulsion of aliens and of Articles 8 and 14 of theConvention for the Protection of Human Rights and FundamentalFreedoms (art. 8, art. 14), in that the Minister unreasonablydeclined to follow the advice of his department not to deportthe applicant.
The Minister's attention was drawn to the arguments of theAliens Office and the Advisory Board on Aliens. He did notexceed his powers in deciding that, in view of theseriousness of the facts, the applicant should be deported onthe ground that the protection of public order had to prevailover his personal and family interests."
On 11 September 1991 the Conseil d'Etat had declared inadmissible an application by the applicant for a stay of execution, on the ground that he had failed to appear in court.
17. After his release on parole on 23 May 1991 (see paragraph 13 above) Mr C. had thirty days in which to leave Belgium; this time-limit was later extended to 25 September 1991. He complied with the order on an unknown date.
18. The Act of 15 December 1980 "on the entry, residence, settlement and expulsion of aliens", which has since been amended several times, governs the administrative status of aliens. Under section 20, second paragraph, an alien who has been granted a settlement permit may be deported "where he has seriously prejudiced public order or national security". Before such a deportation the Minister of Justice must seek the opinion of the Advisory Board on Aliens, which is composed of a judge, a lawyer and a member of an association for the protection of aliens' interests. Deportation orders are signed by the King and are subject to judicial review by the Conseil d'Etat (section 69).
NON_VIOLATED_ARTICLES: 14
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