ITEMID: 001-60532
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF COLOMBANI AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings
JUDGES: Gaukur Jörundsson
TEXT: 8. The first two applicants were born in 1948 and 1960 respectively and live in Paris.
9. In order to consider an application by Morocco for membership of the European Union, the European Commission decided it would need very precise information on the issue of cannabis production in that State and the measures being taken to eradicate it, that being the avowed political aim of the King of Morocco in person. To that end, the Secretariat General of the Commission requested the Observatoire géopolitique des drogues (OGD – Geopolitical Drugs Observatory) to prepare a report on drug production and trafficking in Morocco. Investigations and reports by the OGD, which closed down in 2000, were considered authoritative. The Paris tribunal de grande instance and the Paris public prosecutor’s office were among the subscribers to its publications.
10. The OGD delivered its report to the European Commission in February 1994. The report contained the names of people implicated in drug trafficking in Morocco. However, the Commission asked the Observatory for a revised version of the report, with the names of the drug traffickers deleted in order to make it more suitable for the discussions that were scheduled with the Moroccan authorities. This expurgated version of the initial report was published, notably in a book sold by the OGD entitled Etat des drogues, drogue des Etats (“State of drugs, drugs of States”) and containing a chapter on Morocco. The book was referred to in the newspaper Le Monde on 25 May 1994.
11. After initially remaining confidential, the original version of the report began to circulate. Le Monde learnt of its existence in the autumn of 1995. The report contained twelve chapters with the following titles: (1) “Cannabis in Morocco – the historical background”; (2) “General overview of Er Rif”; (3) “The characteristics of cannabis growing”; (4) “The socio-economic impact and areas of production”; (5) “The increase in the land set aside for cannabis production”; (6) “Morocco – the world’s leading exporter of hashish”; (7) “Drug-trafficking routes”; (8) “The criminal networks”; (9) “The emergence of hard drugs”; (10) “Drug money”; (11) “The ‘war on drugs’ ”; and (12) “Conclusion”. It related how, over a period of ten years, there had been a tenfold increase in the area of land that had historically been used for cannabis production in the region of Er Rif and that current levels of production made “the sharif kingdom a serious contender for the title of the world’s leading exporter of cannabis”.
12. On 3 November 1995 Le Monde published an article by Mr Incyan giving details of the report.
13. The front page of the newspaper carried an introductory article under the main headline: “Morocco, world’s leading exporter of cannabis”, and a sub-heading: “King Hassan II’s entourage implicated by confidential report.” The article, which was relatively short (it ran to some thirty or so lines in two columns), summarised the terms of the OGD’s report. A more detailed article (covering six columns) appeared on page two under the headline: “Moroccan government implicated in cannabis trafficking according to confidential report”, and a sub-heading: “The report, which was commissioned by the European Union from the Geopolitical Drugs Observatory, says Morocco is the world’s leading exporter and the European market’s main supplier. It points to the direct responsibility of the sharif authorities in these lucrative activities”. A summary of the article also appeared in an introductory passage which read: “Drugs – Le Monde has obtained a copy of a confidential report sent to the European Union in 1994 in which the OGD says that ‘in just a few years Morocco has become the world’s leading cannabis exporter and the European market’s main supplier’. The report casts doubt on the sharif authorities’ determination to put an end to the trafficking, despite the ‘war on drugs’ they declared in a blaze of publicity in the autumn of 1992. Corruption guarantees the drug-trafficking rings the protection of officials ‘ranging from the humblest customs officer to the King’s inner circle ...’.”
14. In a letter of 23 November 1995, the King of Morocco made an official request to the French Minister of Foreign Affairs for criminal proceedings to be instituted against Le Monde. The request was forwarded to the Minister of Justice, who referred the matter to the Paris public prosecutor’s office, as required by section 48(5) of the Freedom of the Press Act of 29 July 1881.
15. Mr Colombani, the editor-in-chief of Le Monde, and Mr Incyan, the author of the article, were summoned to appear in the Paris Criminal Court on charges of insulting a foreign head of State.
16. In a judgment of 5 July 1996, the Criminal Court found that the journalist had merely quoted extracts from what was undisputedly a reliable report, without distorting or misinterpreting it or making groundless attacks and, consequently, had pursued a legitimate aim. It accepted that he had acted in good faith and acquitted both him and Mr Colombani.
17. The King of Morocco and the public prosecutor’s office appealed against that decision.
18. In a judgment of 6 March 1997, the Paris Court of Appeal, while recognising that “informing the public about matters such as the international drug trade is obviously a legitimate aim for the press”, found that the desire to draw the public’s attention to the involvement of the royal entourage and to “the authorities’ accommodating attitude” that pointed to “tolerance on the part of the King ... was not entirely innocent”, since it was “tainted with malicious intent”. The articles in question contained “accusations of duplicity, artifice and hypocrisy that were insulting to a foreign head of State”. The circumstances taken as a whole excluded good faith on the part of the journalist: he had not established that he had “sought to check the accuracy of the OGD’s comments”; instead, he had simply reproduced its unilateral account of events, thus “propounding a theory that contained serious accusations”, without leaving any room for doubt about the reliability of the source. Nor had he sought to check whether the 1994 report remained valid in November 1995. The Court of Appeal noted that the journalist had not shown that he had “contacted any Moroccan dignitaries, officials, public authorities or services for an explanation for the failure to match words with deeds or even to obtain their observations on the tenor of the OGD’s report”. In addition, he had refrained from mentioning the existence of the White Paper published by the Moroccan authorities in November 1994 on “Morocco’s general policy on the prevention of drug trafficking and the economic development of the northern provinces”.
19. The applicants were therefore found guilty of insulting a foreign head of State and sentenced to fines of 5,000 French francs (FRF) each. They were ordered to pay King Hassan II, who had successfully applied to be joined as a civil party to the proceedings, FRF 1 in damages and FRF 10,000 pursuant to Article 475-1 of the Code of Criminal Procedure. The Court of Appeal also ordered Le Monde to make additional reparation in the form of a report publishing details of the convictions.
20. The applicants appealed on points of law against that judgment.
21. In a judgment of 20 October 1998, the Criminal Division of the Court of Cassation dismissed their appeal, approving the Court of Appeal’s view that “what [made] the article insulting [was] the suspicion with which the King of Morocco’s determination to put an end to drug trafficking in his country [was] viewed, and the charge that pernicious statements had been made to dramatic effect solely in order to preserve the country’s image”, especially as the Court of Appeal had found that the charge of duplicity had been repeated twice and that the insistence on drawing the reader’s attention to the King in person, in an article that portrayed Morocco as the world’s leading hashish exporter and alleged direct responsibility on the part of the Moroccan government and members of the royal family, was tainted with malicious intent.
22. The statutory basis for the offence (délit) of publicly insulting a foreign head of State is section 36 of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”), which, at the material time, read as follows: “It shall be an offence punishable by one year’s imprisonment or a fine of 300,000 francs or both publicly to insult a foreign head of State, a foreign head of government or the minister for foreign affairs of a foreign government.”
23. That provision was amended by the Presumption of Innocence and Victims (Reinforcement of Rights) Act of 15 June 2000, which removed the power to impose a custodial sentence for this offence.
24. The rationale behind making it a criminal offence to insult a foreign head of State is to protect senior foreign political figures from certain forms of attack on their honour or dignity. In that regard, the offence is similar to that established by section 26 of the same Act of insulting the President of the French Republic.
25. Under the case-law, the notion of insulting a foreign head of State is to be construed as meaning abuse, defamatory remarks, or expressions that are insulting or liable to offend the sensibilities of the persons the Act seeks to protect. Thus, the Court of Cassation has ruled: “The actus reus of the offence of insulting a head of State ... is constituted by any expression of contempt or abuse or any accusation that is liable to undermine the honour or dignity of the head of State in his or her private life or in the performance of his or her functions” (Court of Cassation, Criminal Division (“Cass. crim.”), decision of 17 July 1986).
26. The 1881 Act established a specific legal procedure for the offence. Section 48 introduced a special legal rule by providing that a prosecution will only lie at the request of the person at whom the insults are directed. Requests must be sent to the Minister for Foreign Affairs, who then communicates them to the Minister of Justice. Furthermore, unlike the position with criminal defamation, bad faith is not presumed. It is for the prosecution to prove malice. On the other hand, the defence of justification (exceptio veritatis), which is available to a charge of criminal defamation, cannot be pleaded on a charge of insulting a foreign head of State. Lastly, sections 42 and 43 establish a system of different levels of liability, with editors-in-chief and editors being prosecuted as principals, and the authors of the offending articles as accomplices.
27. According to the Government, the French courts have restricted the scope of section 36 by ruling that it is only intended to “prevent abuses of freedom of expression” (Paris Court of Appeal, judgment of 2 October 1997) and have construed the notion of abuse of that freedom narrowly.
28. As to the scope of section 36, they consider that the offence created by that section does not preclude political criticism (Paris Court of Appeal, judgments of 2 October 1997 and 13 March 1998). Section 36 may only be relied on in the event of a personal attack on a foreign head of State. The insult must therefore be directed at the head of State and his or her reputation, not his or her policies (Paris Court of Appeal, judgment of 27 June 1995).
29. The French courts have also held that accusations concerning the conduct of the members of a reigning sovereign’s family, even if excessive in tone, do not amount to an attack on the person of the head of State. They have likewise accepted that the intentionally insulting and sarcastic tone inherent in the satirical form used by the makers of a television programme did not violate the right of foreign public figures to respect for their private life (Paris Court of Appeal, judgment of 11 March 1991). Only particularly virulent attacks, demonstrating a deliberate intention to cause harm, could come within section 36 (Paris Court of Appeal, judgment of 27 June 1995).
30. As regards the intention to cause harm, the French courts have consistently held that no presumption of an intention to insult arises. It is necessary to prove that the maker of the offending remarks intended the insult (Paris Court of Appeal, judgment of 13 March 1998). The defendant is entitled to present his defence in public in adversarial proceedings, without having to go through the complex process of seeking leave to tender evidence (Cass. crim., judgment of 22 June 1999).
31. The Government said that in that respect the rules governing the offence of insulting a head of State contained more safeguards than those governing ordinary criminal defamation, for which bad faith was presumed. In determining whether there was an intention to cause harm, the courts would consider whether the journalists had made proper, objective inquiries (Paris Court of Appeal, judgment of 13 March 1998) and whether there was evidence supporting the allegations (Paris Court of Appeal, judgment of 2 October 1997). The absence of a defence of justification, which was available to a charge of criminal defamation, was therefore compensated for by the manifestly liberal approach adopted by the courts when determining whether an intention to cause harm existed (Cass Crim., judgment of 22 June 1999).
32. The applicants have produced to the Court a judgment of the Seventeenth Division (Press Division) of the Paris tribunal de grande instance dated 25 April 2001 in criminal proceedings instituted at the request of three African heads of State, Presidents Idriss Deby, Omar Bongo and Denis Sassou Nguesso, on charges of publicly insulting a foreign head of State through the publication by Les Arènes of a book entitled Noir Silence. Qui arrêtera la Françafrique ? (“Black silence. Who will stop Francafrica?”).
33. The tribunal de grande instance held: “The offence established by section 36 of the Press Act and the manner in which that provision is applied in the courts does not satisfy all the requirements set out in Article 10 of the European Convention.” It so found for three reasons. Firstly, section 36 had established in favour of foreign heads of State “a special set of rules that rel[ied] on a particularly wide definition of the actus reus and exclude[d] any defence based on evidence that the allegations [we]re true, to the point where commentators agree[d] that foreign heads of State enjoy[ed] a higher degree of protection in France than the French head of State himself or the head of the French government”.
34. Secondly, the tribunal de grande instance noted that the term “insult” was not defined in the Act and was an elusive expression that was not easily construed. In support of that statement, the tribunal de grande instance referred to the definition of “insult” in the case-law: “Any offensive or disparaging expression, or defamatory or abusive insinuation, which is liable to harm the honour, dignity or personal sensibility of the head of State in the performance of his or her functions or in his or her private life.” It reasoned that such a general definition introduced “a wide subjective margin of appreciation into the definition of the statutory element of the offence” that prevented journalists and writers from determining the extent of the prohibition with sufficient certainty in advance. Even more significantly, the tribunal de grande instance considered that the distinction legal commentators had sought to draw between acceptable criticism (that is to say criticism of the foreign head of State’s political acts) and unlawful insults (that is to say insults directed at the foreign head of State personally) was difficult to apply in practice, for, as the relevant case-law showed, the courts considered that “insults proffered at political events necessarily affect[ed] the person [concerned]”.
35. Thirdly, the tribunal de grande instance found that the offence was not “necessary in a democratic society”, as any head of State – or anyone else – whose honour or character was undermined or who found himself insulted had a sufficient remedy through criminal proceedings for criminal defamation or proffering insults under the 1881 Act.
36. Lastly, with reference to Article 6 of the Convention, it noted that defendants to a charge under the 1881 Act were impeded in their defence by the vagueness of the word “insult”; likewise, their inability to adduce evidence of the truth of their allegations deprived them of equality of arms.
37. It is not possible to determine from the case file whether an appeal was lodged against that judgment, or the outcome of any such appeal.
38. On 12 March 2001 a senator introduced a bill proposing the repeal of the offence of insulting foreign heads of State. Again, it is unclear from the case file whether that recent proposal will be implemented.
VIOLATED_ARTICLES: 10


ITEMID: 001-22741
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BALCI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Habip Balcı, is a Turkish national, who was born in 1967 and lives in Kastamonu.
The facts of the case, as submitted by the parties, may be summarised as follows.
In June 1994 a search was carried out in the applicant’s room in the military premises where some religious books were found, including the Koran and the Great Islam Catechism (Risale-i Nur Külliyatı).
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50 (c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant was a member of the Nurculuk sect. He was aiding a lieutenant who was discharged from the army in his extreme religious activities. The applicant was involved in disseminating the ideology of the sect. He had an antisocial character and adopted extreme right wing ideology.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-115012
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BUTT v. NORWAY
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Pakistan);Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The first and second applicants, who are sister and brother, were born in Pakistan in 1985 and 1986 respectively and live in Oslo.
6. In 1989 the applicants arrived in Norway with their mother and were in view of the children’s particular situation granted a residence permit on 28 February 1992 on the ground of strong humanitarian considerations (section 8(2) of the former 1988 Immigration Act, see paragraph 45 below).
7. During the summer of 1992 the mother returned with the children to Pakistan, where the children first lived with their grandparents and then with their father and his wife. There they stayed until the turn of the year 19951996, when the mother resettled in Norway with the children. In the meantime, on 2 August 1995 the Directorate of Immigration had granted them a settlement permit, while being ignorant about their stay in Pakistan from 1992.
8. In 1996 the applicants’ father applied for family reunification. His application, which was refused, prompted an investigation by the immigration authorities which revealed that for most of the period from 1992 to early 1996 the applicants and their mother had lived in Pakistan. The authorities further observed that the applicants had strong attachment to Pakistan since they had lived and gone to school in that country from 1992 to early 1996 and because their father still lived there. On 23 January 1999 the Directorate of Immigration decided to withdraw the applicants’ and their mothers’ settlement permit, on the ground that the permit had been granted on the basis of false information provided by the mother about her and the children’s residence in Norway. It was also decided to refuse them further residence in Norway.
9. On 23 August 1999 the Ministry of Justice upheld the Directorate’s decision. Several successive requests for reconsideration were rejected. In May 2001 the children were apprehended with a view to being deported to Pakistan. However, the police decided not to do so, based on their information that they had no contact with the mother or with the family in Pakistan. The police considered that it would be inappropriate to expel them without their mother who had disappeared around the turn of the year 20002001. The applicants had no contacts with their mother until she was hospitalised in Norway in 2004. During this period they lived with an uncle and aunt in Oslo.
10. On 24 November 2003 the second applicant was convicted for unprovoked aggravated physical assault, having hit another person with his fist causing a fracture to the victim’s nose and a two centimetres scar on his eyelid that had to be stitched. For this and certain other offences (withdrawal of 4,600 Norwegian Krone (NOK) from cash points by using another person’s credit card; driving a stolen moped and the possession of 0.2 gram of hashish) he was sentenced to seventy-five days’ imprisonment.
11. In the light of these offences, the Immigration Appeals Board decided on 31 May 2005 to expel him indefinitely, with reference to section 29(1)(c) of the 1988 Immigration Act, as he had been convicted for an offence that was punishable by more than three months’ imprisonment.
12. In June 2005 the applicants sought to challenge the validity of the decision of 23 August 1999 and, as regards the second applicant, that of 31 May 2005. By a judgment of 13 October 2005 the Oslo City Court upheld their action.
13. In September 2005 the mother was expelled to Pakistan, in compliance with the immigration authorities’ decision (see paragraph 8 above). She died in August 2007.
14. On 13 October 2006 the Borgarting High Court found against the applicants. It was observed that when the settlement permit was revoked in 1999, the applicants had in reality resided unlawfully in Norway for three years. At that time they had close relatives in Pakistan, including their father, with whom they had lived for periods a few years before. Nor did the High Court find that the decision of 13 October 2005 regarding the second applicant was disproportionate.
15. On 16 January 2007 the Appeals Leave Committee of the Supreme Court refused the applicants leave to appeal.
16. On 7 January 2008 the applicants lodged a previous application (no. 565/08) under the Convention, complaining that their deportation to Pakistan would constitute a violation of Articles 3 and 8 of the Convention. They also requested an interim measure to stay their deportation under Rule 39 of the Rules of Court. On 8 January 2008 the request was refused. The applicants did not pursue their application. On 6 February 2008, a Committee of three judges decided to strike it out of the Court’s list of cases (Article 37 § 1 of the Convention).
17. In the meantime, on 31 August 2007 the Immigration Appeals Board, in two separate decisions, rejected the applicants’ requests for modification of the decision of 23 August 1999 revoking their settlement (and residence) permit and, as regards the second applicant, the Board’s decision of 31 May 2005 to expel him indefinitely from Norway. The Board observed that such modification was not warranted either by strong humanitarian considerations or a strong attachment to Norway (section 8 (2) of the former 1988 Immigration Act).
18. As regards the first applicant the Board had regard to the fact that she had not had a residence permit since 23 August 1999 and that any links established after this date ought to carry little weight. Furthermore, all of the first applicant’s closest family lived in Pakistan and her brother, the second applicant, had been ordered to leave Norway indefinitely.
19. As regards the second applicant the Board quoted from its decision of 31 May 2005 and maintained its previous view:
“As to the [second applicant’s] attachment to Norway, the Board has attached particular weight to the fact that during the period from 1992 to 1995, when he had a residence permit in Norway, he had essentially lived in Pakistan. By the Ministry of Justice’s decision of 23 August 1999 his settlement permit was finally revoked. He does not have a residence permit and is obliged to leave the country. In practice, links that are established during unlawful residence carry little weight. Reference is also made to the fact that [the second applicant’s] mother and sister do not hold a residence permit and are obliged to leave the country. In addition, the applicant has close family in his home country. He therefore ought to be seen as having relatively strong attachment to his home country.
The Board cannot see that the [second applicant’s] current situation has been significantly changed since the situation considered in the decision of 31 May 2005.”
20. In respect of both applicants the Board also referred to the reasoning and conclusions in earlier decisions and judgments and emphasised that its conclusions in the present decisions ought to be viewed in the context of those.
21. In September 2007 the applicants challenged that decision before the courts. In this connection they both requested an interlocutory injunction to stop their deportation. These requests were rejected by the City Court on 5 October 2007 and the High Court on 15 November 2007.
22. By a judgment of 4 February 2008, the Oslo City Court quashed the Immigration Appeals Board’s decision of 31 August 2007, disagreeing with the Board’s assessment that the applicants lacked special attachment to Norway.
23. The City Court observed that the applicants, respectively twenty-one and twenty-two years old, had lived in Norway for sixteen and a half years during major parts of their childhood and the entirety of their adolescence. The question was what weight should be attached to their residence in Norway since they had been obliged to leave the country in 1999.
24. It had not been possible for the applicants to obtain the necessary travel documents before they reached the age of majority in 2003 and 2004, respectively. In such a situation the unlawful character of their sojourn had to be disregarded. There was little reason to emphasise their mother’s lack of cooperation in leaving the country. Nor could the applicants be said to have escaped implementation of the deportation, either before May 2001 or thereafter, as it had been decided on 3 May 2001 not to implement the deportation. With the exception of May 2001, no active steps had been taken to implement the decision to expel the applicants and no attempts had been made to this effect pending the judicial proceedings, until the autumn of 2007. Therefore, the applicants’ residence in Norway since 1999 ought to carry a not insignificant weight in the assessment of whether they had special attachment to Norway.
25. The City Court further observed that in Norway the applicants had close relatives – uncles and aunts – and had lived with these since 2001. The applicants had gone to school in Norway, had friends and acquaintances there and were mastering the Norwegian language, both oral and written. Whilst the Immigration Appeals Board had found that the applicants had relatively strong links to Pakistan, the City Court found that these had almost ceased. They had not had contact with their father since 1996 and did not wish to have any contact with him. Their mother had died and it was uncertain whether they had other relatives in the country. They were able to speak Urdu and to understand the language in oral form but could not read or write it.
26. In view of the applicants’ longstanding residence in and attachment to Norway and their little or no connection to Pakistan, the City Court considered that they had special ties to Norway. Accordingly, the Immigration Appeals Board’s decisions of 31 August 2007 were to be quashed. In making a new assessment the Board ought to take as a premise that the applicants had strong attachment to Norway and that it was empowered under the Immigration Act to grant them a residence permit.
27. The State appealed to the Borgarting High Court, which overturned the City Court’s ruling by a judgment of 14 November 2008 and upheld the Immigration Appeals Board’s refusal of 31 August 2007 as being lawful.
28. The High Court found it clear that the refusal to grant residence permits constituted an interference with the applicants’ rights under paragraph 1 of Article 8 of the Convention. In considering whether the interference was justified under paragraph 2, the central question was whether the measure was “necessary in a democratic society”. The High Court had regard to the consideration that where family life has been created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, §§ 38 and 39, ECHR 2006I) and Darren Omoregie and Others v. Norway, no. 265/07, § 57, 31 July 2008).
29. In balancing the competing interests the High Court considered it important when the applicants had become aware that their sojourn in Norway was unauthorised. It was clear that at the latest when they had been apprehended in early May 2001 they had understood that they did not possess a residence permit. Their explanation that they had been unaware until then of their residence status was reliable. At that time they had been sixteen and fifteen years, respectively.
30. The applicants had further stated that their mother had gone under ground at around the turn of the year 2000-2001, and that she had stayed in hiding until the summer of 2005, without theirs having any contact with her or being aware of her whereabouts. However, in 2003 the police had found her handbag with her passport at her brother’s home. The High Court found it hardly probable that the applicants had no contacts with their mother and had no knowledge of her whereabouts from 2001 until the summer of 2005. The authorities’ omission to implement “the refusal of residence” (“oppholdsnektelsen”) ought to be seen in the light of the fact that the police had been unable to get hold of their mother.
31. Nonetheless, there was reason to assume that during the years after 2001 the police did not in practice expect the applicants to leave the country on their own and that they would not be deported without their mother. In any event, the applicants could reasonably perceive the situation in this manner. Shortly after their arrest in May 2001 the applicants had been released because their mother could not be found and it was deemed unfortunate to deport them without her. It had further been clear that the applicants had not possessed Pakistani passports and that the police had done nothing to arrange for them to obtain such passports. Until passing the age of majority in 2003 and 2004, respectively, the applicants had been dependent on the assistance of the Norwegian authorities to obtain passports.
32. The reason why the applicants had not been deported together with their mother when she was expelled on 3 September 2005 was that the main hearing in the applicants’ case had been scheduled for 19 September 2005 and that the immigration authorities had found it correct to give them the opportunity to attend the hearing.
33. Since the applicants could reasonably perceive the authorities to mean that they were not expected to travel to Pakistan on their own, it was difficult to ascribe any responsibility to the applicants for not having taken any steps to leave the country while the mother had gone into hiding from the police. However, after reaching the age of majority, the applicants’ choice to stay in Norway had been something for which they ought to bear the risk and responsibility.
34. There were generally speaking strong immigration policy considerations in favour of identifying children with the conduct of their parents. If it were to be otherwise, there would be a great risk that parents exploited the situation of their children to secure a residence permit for themselves and for the children. However, in the present case there had been no such risk as the applicants had reached the age of majority and their mother was dead.
35. The applicants had developed a strong personal and social attachment to Norway. They had received the essential part of their education and upbringing there, they mastered the language to the full and their education had been adapted to the Norwegian job market. The applicants had until 2005 lived with their uncle and aunt (their mother’s brother and sister) with family in Oslo. They were therefore presumed to have close emotional links to this part of the family. This was also where they had their friends and social network. The first applicant had completed high school and education as a lawyer’s secretary and was currently working in a media monitoring bureau. The second applicant had been pursuing high school as a private candidate.
36. As regards the applicants’ links to Pakistan, these had since their mother’s death in 2007 first and foremost related to their father. They had not seen him after they had returned to Norway in 1996 at the age of eleven and ten, respectively. An uncle (a brother of their late mother) living in the same area of Lahore as the father had met the applicants when visiting his siblings in Oslo the year before. Moreover, the deceased mother had left a house in a well-off area of Lahore, in the vicinity of where the uncle lived. The father occupied parts of the house and let out the remainder. According to Pakistani inheritance rules, the applicants and the father were entitled to three quarter and one quarter, respectively, of the house. Moreover, the applicants had stated that they were unable to write in Urdu and were speaking a “childish” Urdu. They both mastered English well, which was an official language in Pakistan. Thus, in the High Court’s view, the applicants still had certain links to their country of origin, though they might encounter social and professional difficulties upon return.
37. It also observed that in the experience of the Immigration Appeals Board, it was rare that one was confronted with cases where the duration of the unlawful stay had been nearly as long as in the present case. One could therefore question whether general immigration policy considerations, which normally carried weight in cases of unlawful residence, would be sufficiently weighty to regard the refusal of residence as being “necessary in a democratic society”.
38. The High Court, nonetheless, with doubt, arrived at the conclusion that the refusal of residence had not been unlawful as being contrary to Article 8 of the Convention. It attached decisive weight to the fact that the applicants’ strong attachment to Norway had been established during unlawful residence, that they still had links to their home place in Pakistan and that they as adults had relatively good possibilities for settling in Pakistan. The special circumstances pointed to above regarding the background to the applicants’ continuing residence in Norway for so many years could not be regarded as “exceptional circumstances” in the sense that this criterion had been applied by the European Court in its case-law. No new circumstances had occurred between the two decisions of 31 May 2005 and 31 August 2007 (see paragraphs 11 and 17 above) that could warrant a different conclusion than that reached by the High Court in its judgment of 13 October 2006 (see paragraph 14 above).
39. On 25 February 2009 the Appeals Leave Committee of the Supreme Court refused the applicants leave to appeal finding that such leave was not warranted by the importance of the decision for other cases or by other considerations.
40. On 27 December 2007 an article published by the newspaper Dagbladet, which included an interview with the applicants, stated that they lived at an undisclosed address.
41. On 4 January 2008 the police arrested the applicants at an apartment in Y Street, belonging to their maternal uncle and aunt in Oslo. The City Court ordered the applicants’ detention for a period of two weeks. Before the City Court the first applicant said that she had all the time lived at the apartment of her maternal uncle in X Street. She had occasionally gone to the flat in Y Street where her aunt lived in order to fetch things. According to information contained in the City Court’s order of the same date to detain the second applicant for two weeks, he had first cohabited with a girlfriend in a studio outside Oslo from May to October 2006. Before and after, he had lived at his uncle and aunt’s apartment in X Street.
42. During his ensuing detention, the police sought to have him detained on account of a separate matter, namely on suspicion of threats committed against his girlfriend. An indictment was issued on 7 January 2008. The second applicant denied the accusations in the main. The police dropped the charges concerning threats on 23 January 2008. No further information has been submitted in respect of these criminal proceedings.
43. According to the applicants during the summer of 2009 they took refuge in Holmlia Church, Oslo.
44. On 29 June 2010 the Immigration Appeals Board decided to stay the implementation of the applicants’ deportation to Pakistan.
45. The disputed decisions taken by the Immigration Appeals Board on 31 August 2007 in the present case relied notably on section 8, second subparagraph, of the 1988 Immigration Act (subsequently replaced by a new Immigration Act in 2008, which entered into force on 1 January 2010). Section 8 read:
“Any foreign national has on application the right to a work permit or a residence permit in accordance with the following rules:
1) Subsistence and housing must be ensured in accordance with further rules laid down in regulations issued by the King.
2) The conditions for work and residence permits laid down in regulations pursuant to section 5, second paragraph, must be fulfilled.
3) There must not be circumstances which would constitute a ground pursuant to other provisions of this Act for refusing the foreign national leave to enter the realm, to reside or to work there.
Even if these requirements are not fulfilled a work or a residence permit may be granted if warranted by strong humanitarian considerations, or if a foreign national has a special attachment to Norway. The King may issue regulations containing further rules.”
VIOLATED_ARTICLES: 8


ITEMID: 001-79713
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GĘBURA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1954 and lives in Starachowice.
6. The applicant was serving a prison sentence in Tarnów Mościce Prison following three separate convictions. The overall term of his imprisonment was due to come to an end on 6 January 2002.
7. Pursuant to the provisions of the Criminal Code applicable to re-offenders, the applicant became eligible for conditional release after having served three-quarters of the overall term of his imprisonment, namely on 6 January 1999. After that date, the applicant requested a court on several occasions to grant him conditional release. However, his requests were denied on grounds of insufficient progress in his rehabilitation. On 20 March 2000 the prison governor requested the Tarnów Regional Court (Sąd Okręgowy) to order the applicant's release (warunkowe przedterminowe zwolnienie) in view of his satisfactory rehabilitation. The Tarnów Regional Prosecutor objected to that request.
8. On 22 March 2000 the Tarnów Regional Court gave a decision ordering the applicant's conditional release for a three-year probationary period. It placed the applicant under the court officer's supervision and imposed certain other obligations on him.
9. The Tarnów Regional Prosecutor appealed against that decision. The Regional Court did not amend its decision and transmitted the prosecutor's appeal to the Cracow Court of Appeal (Sąd Apelacyjny).
10. The hearing before the Court of Appeal was scheduled for 12 April 2000 at 8.45 a.m. On that day the Cracow Court of Appeal upheld the decision of the Regional Court. No further appeal lay against the decision of the Court of Appeal. In the applicant's submission, the Court of Appeal's decision was delivered at 9 a.m.
11. Later on 12 April 2000, a certified copy of the Court of Appeal's decision was sent to the Tarnów Regional Court, which received it on 13 April 2000. On the same day the Tarnów Regional Court ordered the governor of the Tarnów Mościce Prison to release the applicant and served him with a copy of the Court of Appeal's decision. The governor received these documents on 14 April 2000.
12. According to the official release certificate, the applicant was released on 14 April 2000. The applicant submitted that he had been released on that date at 4 p.m.
13. Article 41 § 1 of the Polish Constitution provides as follows:
“Inviolability and liberty of the person shall be afforded to everyone. Any deprivation or limitation of liberty may be imposed only in accordance with the principles and procedures laid down by statute.”
14. Article 77 § 1 of the 1997 Criminal Code reads as follows:
“The court may conditionally release a person serving a prison sentence from serving the remainder of that sentence only when his/her behaviour, characteristics, personal circumstances and way of life prior to the commission of the offence, the circumstances in which the offence was committed and his/her behaviour following the commission of the offence and while serving a sentence, would justify a conclusion that, following [conditional] release, the person would abide by the law and, in particular, would not re-offend.”
Article 78 §§ 1-3 of the Criminal Code prescribes the minimum prison term, depending on the type of sentence and offender, which must be served before a convicted person may apply for conditional release. However, the decision to grant conditional release is left to the discretion of the court, which must be satisfied that the conditions laid down in Article 77 § 1 of the Criminal Code are met.
15. When conditional release is granted, a convicted person should be released on completion of the necessary administrative formalities as specified in the Ordinance (Zarządzenie) of the Minister of Justice of 27 August 1998 on Administrative Acts concerning Execution of Pre-Trial Detention and Sentences and Coercive Measures resulting in Deprivation of Liberty.
Paragraph 3 of that Ordinance states, in so far as relevant:
“All administrative formalities shall be carried out without delay (niezwłocznie) ... This concern in particular (...) transmission of information and official notifications ... and releasing.”
Paragraph 104.2 of the Ordinance provides that the convicted person should be released upon receipt of a copy of the enforceable decision granting him or her the conditional release. The release should be effected on the day of the receipt of the relevant documents by the prison (§ 104.3 of the Ordinance).
The Ordinance does not prescribe any specific time-frame for the execution of the decisions granting conditional release.
16. The relevant domestic law and practice concerning the State's liability for torts committed by its officials are set out in paragraphs 34-37 of the Court's judgment in the case of Krasuski v. Poland, no. 61444/00, ECHR 2005–V (extracts).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-91527
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: PETERKE AND LEMBCKE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Klaus Dieter Peterke, is a German national who was born in 1935 and lives in Potsdam.
He is represented before the Court by Mr K. H. Christoph, a lawyer practising in Berlin. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, an engineer by profession, contributed to the compulsory general pension scheme and the optional supplementary pension scheme of the former German Democratic Republic.
On 23 August 1995 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) issued a declaratory decision on the applicant’s contribution periods (Versicherungsverlauf) and the basis for the calculation of his pension.
On 13 March 1996 the Insurance Fund rejected the applicant’s objection.
On 15 April 1996 the applicant lodged a claim with the Berlin Social Court.
In decisions of 22 April and 17 July 1996 the Insurance Fund granted the applicant a pension, the amount of which was based on the impugned decision of 23 August 1995.
On 13 October 1997 the Berlin Social Court rejected the applicant’s claim against the Insurance Fund’s decisions as unfounded.
On 14 February 1998 the applicant lodged an appeal with the Berlin Social Court of Appeal arguing that he was entitled to a higher pension.
On 19 March 1998 the applicant moreover lodged a constitutional complaint with the Federal Constitutional Court making the same complaints.
On 24 March 1998 the applicant requested the Berlin Social Court of Appeal to stay the proceedings in view of the constitutional complaint, or alternatively to suspend them.
On 29 April 1998 the applicant repeated his motion for a suspension of the proceedings. He also announced that he would file further observations if it was rejected.
On 12 June 1998 the Berlin Social Court of Appeal rejected this motion.
In a letter dated 4 January 1999 the applicant again pointed out that he requested the proceedings to be stayed or suspended. He also announced that further submissions would be made on decisions of principle rendered by the Federal Constitutional Court in the meantime.
In a letter of 19 October 2000 the applicant again referred to his previous motions aimed at having the proceedings stayed or suspended.
In January 2001 the Berlin Social Court of Appeal requested the applicant to give further particulars of his claims and to indicate whether, as announced in the letter of 29 April 1998, further submissions would be made.
In March and April 2001 it reminded the applicant to submit his further observations.
In May 2001 and February 2002 the applicant filed further submissions and also requested the Berlin Social Court of Appeal to seek a preliminary ruling from the Federal Constitutional Court.
On 6 August 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
On 30 January 2003 the applicant lodged the present application. In his first letter to the Court he complained about the decision of the Federal Constitutional Court and the unfairness of the proceedings.
In May 2003 and again in October 2003 the Berlin Social Court of Appeal requested the applicant to state his position regarding a friendly settlement.
On 21 January 2004 the applicant reiterated his request to stay the proceedings in view of the application he had lodged with the Court.
On 30 December 2004 the Berlin Social Court of Appeal scheduled the hearing for 26 January 2005.
The applicant then twice filed a motion for the hearing to be cancelled and the proceedings stayed on account of the fact that his complaint was still pending before the Court. He submitted that failure to do so would amount to an “abuse of rights” with regard to him. The Berlin Social Court of Appeal rejected both requests (decisions of 19 and 24 January 2005).
On 26 January 2005 it dismissed the applicant’s appeal. It also refused leave to appeal on points of law.
On 16 January 2006 the Federal Social Court rejected as inadmissible the applicant’s appeal against the refusal to grant leave to appeal.