ITEMID: 001-23769
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: GECSE and HERMAN v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mrs Mária Gecse and Mr Péter Hermán are Hungarian nationals who were born in 1954 and 1951, respectively, and live in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 September 1996 the applicants allegedly broke into the house of the first applicant's husband and, using violence, forced him to sign documents agreeing to the dissolution of their marriage.
On 24, 25 and 26 September 1996 the applicants were interrogated.
In December 1996 the Miskolc Public Prosecutor's Office preferred a bill of indictment against the applicants charging them with 'aggravated extortion', punishable by up to eight years' imprisonment under Article 323 § 2 of the Criminal Code.
The Miskolc District Court held hearings on 18 September, 11 November and 16 December 1997, 19 March, 5 May and 11 June 1998. On the latter date, the District Court convicted the applicants of extortion and sentenced them to two years' imprisonment. The execution of the sentence was suspended for four years.
On appeal, on 12 April 1999 the Borsod-Abaúj-Zemplén County Regional Court quashed the first instance decision and remitted the case to the District Court, essentially on the ground of procedural irregularities.
In the resumed proceedings before the District Court, on 29 October 1999 the applicants requested the court to postpone the hearing, which had originally been scheduled for 8 a.m. on 30 November 1999, to 10 a.m. on the same day. They claimed that, as they lived in Budapest, they could not arrive in Miskolc in time by public transport. The hearing was eventually re-scheduled for 7 March 2000.
On 24 February 2000 the Regional Court dismissed the applicants' motion for bias.
The hearings of 7 March and 5 October 2000 were adjourned since the applicants did not appear. Meanwhile, on 25 May 2000 the police unsuccessfully attempted to escort the second applicant to the courtroom.
On 24 November 2000 the Supreme Court rejected the applicants' motion that another court be appointed to hear the case.
On 20 March 2001 the District Court held a hearing. Subsequently it appointed the Budapest Forensic Medical Institute to give an opinion on the first applicant's health.
On 30 March 2001 the court ordered a telephone company to submit some information as evidence.
A further hearing took place on 7 June 2001.
A hearing scheduled for 5 February 2002 had to be postponed, apparently because of the first applicant's illness.
In reaction to the applicants' renewed motion for bias, on 7 October 2002 the Supreme Court appointed the Kazincbarcika District Court to hear the case.
A hearing scheduled by the Kazincbarcika District Court for 17 December 2002 had to be adjourned as the applicants did not appear.
On 3 February 2003 the District Court appointed a medical expert to confirm whether the first applicant's illness was such as to prevent her from appearing at the court hearings. On 31 March 2003 the expert presented his opinion in which he replied in the negative.
A hearing scheduled for 29 May 2003 had to be adjourned as the applicants did not appear.
On 16 September 2003 the second applicant was escorted by the police to the courtroom. Subsequently the court held a hearing and heard that applicant, witnesses and an expert.
On 9 October and 13 November 2003 the court held further hearings and heard the applicants, witnesses and an expert.
On the latter date the court convicted the applicants of 'infringement of personal liberty' and sentenced them to six months' imprisonment. The execution of the sentence was suspended for two years.
On 14 November 2003 both the applicants and the prosecutor appealed. The proceedings are still pending at second instance.
The applicants allege that, during the proceedings, they have not been allowed to leave the country.
On 27 December 1996 an article was published in a daily newspaper on the events of 23 September 1996. The article was based on the results of the investigation and interviews with the applicants and the first applicant's husband.
On 6 March 1997 the applicants filed an action for damages against the newspaper with the Pest Central District Court.
On 2 January 1998 the District Court requested the applicants to complete their action, which they did on 28 January 1998. A further order to complete of 30 January was complied with on 23 February 1998.
On 19 May and 25 September 1998 the court held hearings. On 2 October 1998 it ordered the first applicant to complete the pleadings.
On 28 January and 22 April 1999 the court held hearings. On the latter date it dismissed the action.
On 8 June 1999 the applicants appealed.
On 22 February and 5 October 2000 the Budapest Regional Court held hearings. On the latter date, it dismissed the appeal.
On 21 December 2000 the applicants filed a petition for review.
On 26 February 2001 the Supreme Court appointed a legal-aid lawyer for the applicants. The lawyer, being indisposed, refused the appointment on 13 March. Another lawyer was appointed on 22 March. This lawyer completed the petition on 11 April. On 3 July 2001 the Supreme Court dismissed the applicants' petition for review.
Section 2 § 1 a) of Act no. 28 of 1989 on Travelling Abroad and on Passports (“the 1989 Act”, as in force until 31 August 1998) prohibited from travelling abroad anyone against whom criminal proceedings for a deliberate offence punishable by a sentence exceeding three years' imprisonment were being pursued, and for as long as those proceedings were pending.
As of 1 September 1998, this legislation was replaced by section 16 § 1 a) of Act no. 12 of 1998 on Travelling Abroad (“the 1998 Act”). This provision, as in force until 30 June 2003, prohibited from travelling abroad anyone against whom criminal proceedings for an offence punishable by a sentence of or exceeding five years' imprisonment were being pursued, and until a final decision was taken in those proceedings.
Under section 19 § 1 a) of the same Act, the passport authority shall refuse to issue a travel document to, or withdraw it from, a person, on whom a travel ban under section 16 § 1 has been imposed.
Section 18 § 1 provides that the passport authority may – at the request of a citizen, on whom a travel ban under section 16 § 1 has been imposed – grant leave, on a ground worthy of special appreciation, to travel abroad for a definite period of time. Such leave is subject to approval by the public prosecutor or the trial judge.
From 1 July 2003, the travel ban prescribed by section 16 § 1 a) of Act no. 12 of 1998 was annulled.


ITEMID: 001-23293
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PARTINGTON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger;Nicolas Bratza
TEXT: The applicant, Mr Peter Partington, is a United Kingdom national, who was born in 1965 and living in Oldham. He is represented before the Court by Mr A. M. Kelly, a lawyer practising in Nottingham.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 January 1993, the applicant was convicted of wounding with intent to cause grievous bodily harm and sentenced to three and a half years’ imprisonment. He had attacked his girl friend following consumption of alcohol.
On 7 January 2000, the applicant pleaded guilty to two counts of wounding with intent to cause grievous bodily harm arising out of an incident when, under the influence of alcohol, he stabbed his 11 year old stepson and brother-in-law with a screwdriver.
The pre-sentence report prepared by the Probation Service observed inter alia that the applicant’s tendency to violence stemmed from his habit of excessive drinking and that he was at high risk of further offending. It also noted his genuine remorse for the offences and his intention to work on his alcohol problem.
The trial judge sentenced the applicant to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 in relation to the wounding convictions. In that regard, the judge stated inter alia:
“... the two offences for which you fall to be sentenced ... are so serious that only custodial sentences can be justified. Indeed ... I am obliged to pass an automatic life sentence of imprisonment upon you in respect of each of these offences, unless I am of the opinion that there are exceptional circumstances relating either to the offences or to you...
I have listened carefully to [the applicant counsel’s] submissions, I have carefully read your wife’s letter and I have read the contents of the pre-sentence report and all the conclusions that I have come to... I am not satisfied that there are any exceptional circumstances which should lead me not to impose an automatic life sentence...”
The judge assessed the applicable determinate sentence (which he would have passed but for section 2) at six years, allowing for the mitigation in the applicant’s case and the time already served, and on that basis fixed a tariff of two years seven months.
The applicant did not apply at that time to appeal against sentence. Following developments in domestic case-law concerning the application of section 2 (see below), the applicant made an application for permission to appeal against sentence to the Court of Appeal.
On 24 September 2002, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected the applicant’s application for leave to appeal and his application to call fresh evidence. It noted that the trial judge had not carried out an assessment of the risk posed by the applicant to the public when imposing the sentence of life imprisonment which had been found to be the proper approach in the subsequent Offen case. It went on to review the case in light of the new authority and taking into account a report by a consultant forensic psychiatrist commissioned by the applicant. Noting however the applicant’s “worrying” history of alcohol abuse and violence with a weapon, it found that the applicant represented a continuing risk to the public and that an automatic life sentence was appropriate in the circumstances of his case.
The applicant’s tariff expired on 7 August 2002. His case was considered by the Parole Board on 26 September 2002 and it directed his release, subject to certain licence conditions, as it considered his detention was no longer necessary to protect the public.
On 15 October 2002, the applicant was released.
The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows:
“(1) This section applies where -
(a) a person is convicted of a serious offence committed after the commencement of this section; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) The court shall impose a life sentence, that is to say -
(a) where the person is 21or over, a sentence of imprisonment for life; (b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982,
unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.
(3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.”
Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape.
Sections 3 and 4 of the 1997 Act impose mandatory penalties of seven and three years for a third conviction on class A drug trafficking offences and domestic burglaries, respectively. Both sections oblige the court to impose the fixed sentence when the statutory conditions are fulfilled except:
“ where the court is of the opinion that there are specific circumstances which -
(a) relate to any of the offences or to the offender; and
(b) would make the prescribed custodial sentence unjust in all the circumstances.”
In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act.
The appellants contended that section 2 was incompatible with, inter alia, Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence.
It considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention.


ITEMID: 001-23339
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: DIDIER v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Jean-Louis Didier, is a French national who was born in 1962 and lives in Neuilly-sur-Seine. He was represented before the Court by Mr C. Bremond, of the Paris Bar.
The applicant is head of the arbitrage department of Dynabourse SA, a company, and is in charge of the transactions carried out by Dynabourse Arbitrage, a commercial partnership in which Dynabourse SA has a stake of more than 77%.
In the light of a report drawn up by its inspectors following an inquiry, the Stock Exchange Regulatory Authority (Commission des opérations de bourse) applied to the Financial Markets Board (Conseil des marchés financiers – “the FMB”) to have disciplinary proceedings instituted against the applicant.
On 1 July 1998 the chairman of the FMB notified the applicant of the complaints against him.
On 27 January 1999 the Financial Markets Board, exercising its disciplinary powers, decided to suspend the applicant’s trading licence for six months and fined him 5,000,000 French francs.
On 30 April 1999 the applicant brought an action in the Conseil d’Etat, seeking to have the decision in issue quashed and its execution stayed.
On 3 December 1999 the Conseil d’Etat dismissed the applicant’s action. It held, in particular, that when dealing with a case concerning acts for which disciplinary penalties could be imposed, “the Financial Markets Board must be regarded as determining criminal charges within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms”.
The Conseil d’Etat further held:
“Seeing that an action may be brought in the Conseil d’Etat in respect of a decision by the Financial Markets Board, the fact that proceedings before the Board might not satisfy the requirements of Article 6 § 1 in every respect cannot be taken to constitute an infringement of the right to a fair hearing in all such cases.
However, even though the Financial Markets Board, when exercising its disciplinary powers, is not a court under domestic law, the ground of appeal to the effect that the manner in which it dealt with the case contravened the principle of impartiality set forth in the aforementioned Article 6 § 1 may, having regard to its nature, membership and functions, be validly relied on in support of an action in the Conseil d’Etat in respect of a decision by the Board.
... the rapporteur, who does not initiate the referral process, plays no part in the formulation of complaints. He does not have the power to discontinue proceedings or, conversely, to broaden the scope of a case. The investigative powers he enjoys in assessing the validity of the complaints and of the observations of the person against whom proceedings have been brought do not authorise him to make searches or seizures or to take any other coercive measures during the investigation. In the present case ... it has not been established, or even alleged, that in performing his duties the rapporteur exceeded the powers which were conferred on him by the provisions cited above and which are no different from those available to the Financial Markets Board’s disciplinary panel itself. Consequently, his participation in the deliberations and vote that resulted in the imposition of a penalty on Mr Didier did not give rise to any breach of the principle of impartiality as set forth in Article 6 § 1 of the ... Convention for the Protection of Human Rights and Fundamental Freedoms.”
The relevant provisions of Decree no. 96-872 of 3 October 1996 on the disciplinary panels of the Financial Markets Board are worded as follows:
...
“The decision shall be served on the person concerned and on the Government Commissioner by means of a registered letter with recorded delivery. The Board shall, where appropriate, notify its decision to the referring entity. Persons on whom penalties are imposed and the Minister for Economic Affairs and Finance shall have two months to bring an action in the Conseil d’Etat; in the Minister’s case, that time shall start to run from the date on which the decision is served on the Government Commissioner. ...”
...


ITEMID: 001-78691
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MATTENKLOTT  v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Susanne Mattenklott, is a German national who was born in 1968 and lives in Friedeburg. She was represented before the Court by Mrs A. Wiese, a lawyer practising in München.
, may be summarised as follows.
In 2003, the applicant lived with her German husband, a pilot in the German army, in New Mexico (United States of America, hereafter United States). After a period of tension in their marriage, the husband returned to Germany in December 2003. While the applicant stayed in the United States, she had an affair with G., a US citizen with whom she temporarily shared a flat. The affair ended in February 2004. In April 2004, the applicant gave birth to her daughter N. Subsequently, G. was registered in N.’s birth certificate as her legitimate father. The applicant later disputed G.’s parenthood, alleging that she was coerced to agree to that registration. This allegation led G. to subject himself to a DNA-test. The test confirmed his fatherhood, but was held in secret. According to the applicant, it is however possible that it was not G.’s DNA material which had been submitted to the test.
In September 2004, the applicant returned to Germany with N. because the applicant’s father was seriously ill. They now live together with her husband with whom the applicant reconciled. In the applicant’s submission, her husband could possibly be the father of N. instead of G. The German authorities issued a German birth certificate for N. in which the applicant’s husband was registered as the legitimate father.
Before the applicant left with N. for Germany in September 2004, G. had instituted civil proceedings before the San Juan District Court in order to obtain a declaratory decision that he was N.’s father and in order to obtain the right to custody and access to N. The applicant participated in the San Juan District Court’s hearing on 22 November 2004 by means of a telephone conference. However, the applicant did not attend a court-ordered DNA-test in Germany in January 2005. She announced that neither she nor her husband would participate in such a test. On 28 January 2005, the San Juan District Court issued an interim order, confirming G.’s parenthood on account of the US birth register and a written acknowledgement signed by the applicant that G. was N.’s father. Until further orders were made, the San Juan District Court also provisionally granted G. the right to custody (primäres Sorgerecht) for N. and excluded the applicant’s visiting rights.
In January 2005, G. also instituted proceedings for interim measures in Germany in order to achieve N.’s return to the United States. The Celle District Court (Familiengericht) asked G. for a certificate of wrongness (Widerrechtlichkeitsbescheinigung) pursuant to Article 15 of the Hague Convention on Civil Aspects of International Child Abduction (hereafter: the Hague Convention), which was issued by the San Juan District Court on 22 April 2005. In that certificate, the San Juan District Court stated that: “(...) Petitioner, [G.], had rights of custody under the law of New Mexico, including rights to make all decisions concerning the Child’s care, custody and control jointly and equally with the respondent. (...) Petitioner was exercising such rights at the time Respondent removed Child to Germany. Accordingly, it is the determination of this Court that respondent violated petitioner’s custody rights by taking the Child to Germany, by keeping her there and by refusing to allow petitioner to see her, and that Respondent’s removal of the Child was ‘wrongful’ under Article 3 of the Hague Convention. (...)”
On 3 June 2005, the Celle District Court refused G.’s motion and stated that it could not follow the San Juan District Court’s opinion as expressed in the above certificate. It found that, in accordance with Article 12 read in conjunction with Article 3 of the Hague Convention, the immediate return of a child only had to be ordered when the right to custody of a parent had been violated through the removal of the child. The Celle District Court did not find it decisive whether or not the San Juan District Court’s decision of 22 April 2005, granting G. the provisional right to custody, applied retroactively to the day of N.’s birth. Nor found the court it decisive whether or not the San Juan District Court’s declaratory decision of January 2005 (stating that G. was the biological father) applied retroactively to the day of N.’s birth. Even assuming that G. had the right to custody on that day, he nevertheless had not exercised it. The Celle District Court came to this conclusion because G. had neither lived any longer with the applicant in a shared flat, nor had he been her partner upon N.’s birth. Moreover, he had seen N. only on rare occasions, he had not paid alimony and he had constantly been away because of his profession as a pilot. The Celle District Court considered a testimony of a third person which G. had submitted, according to which he had seen N. only twice in five months. Moreover, the Celle District Court stated that it had been the applicant who had cared for N. The applicant had also paid alimony and otherwise depended on welfare benefits.
On 27 February 2006, on appeal by G., the Celle Court of Appeal ordered the applicant to return N. to New Mexico, or, should she fail to do so, to hand her over in order to ensure her immediate return. The Celle Court of Appeal also ruled that the execution of the order should not take place until G. had deposited an irrevocable order to pay 600 $ of alimony on a monthly basis to the applicant for the period of four months. The alimony for the first two months should be deposited and handed out to the applicant upon her arrival in the United States. Moreover, the Celle Court of Appeal ordered G. to rent an apartment in the United States for the applicant and N. for the period of two months. In the event that the applicant should refuse to comply with the order to return N., the Court of Appeal authorised the court’s bailiff to return the child to the United States. The bailiff was authorised to use force if necessary in order to overcome any resistance by the applicant, to search her apartment and to ensure the child’s removal.
The Celle Court of Appeal considered that the applicant, when returning to Germany, had violated G.’s co-existing right to custody. In accordance with the Hague Convention, N. had to be returned to the place where she was before she had unlawfully been removed. The Celle Court of Appeal had no doubt whatsoever that G. was the legitimate father of N., because otherwise the applicant and her husband would have attended the DNA-test in Germany in order to rebut G.’s submissions in the proceedings before the San Juan District Court. In order to determine whether or not the applicant had wrongfully removed N. in 2004, the Celle Court of Appeal found that the legal situation in New Mexico had been decisive, irrespective of the fact that under German law the applicant would have had sole custody. As the San Juan District Court had issued the certificate of wrongness on 22 April 2005, the removal had to be regarded as having violated G.’s right to custody. Contrary to the Celle District Court’s ruling, the actual lack of exercising the right to custody was not an obstacle as the Celle Court of Appeal considered that there was a legal presumption under the Hague Convention that the right of custody was exercised. The applicant had failed to rebut that presumption. The Celle Court of Appeal stated that it was sufficient for the purposes of the Hague Convention that G. occasionally had had access to N. in the past in order to exercise his right to custody. The court found that G. did have access even though the particular extent of the access was disputed between the parties. The Celle Court of Appeal decided not to apply Article 13 § 1 (b) of the Hague Convention, according to which the courts may refrain from the order of removal if there exists a serious danger that the child will suffer from physical and psychological damages. It found that the provision had to be narrowly interpreted, given that N.’s removal had been unlawful. The danger that N. suffered physical and psychological damages could in any case be averted if the applicant returned to the United States together with N. Therefore, the Celle Court of Appeal had ordered that G. had to pay alimony for four months and the rent for an apartment for the applicant and N. for two months while the custody proceedings were pending. As far as the applicant feared that she would be arrested for child abduction upon her arrival in the United States, such fears were as such not sufficient for Article 13 § 1 (b) of the Hague Convention to apply, unless N. would be left on her own while the applicant was in prison. Although the Celle Court of Appeal had initially pointed to that danger in view of G.’s attempt to institute criminal proceedings against the applicant, such danger no longer existed. The Celle Court of Appeal pointed out that several US governmental bodies had given assurances that the applicant would not be subjected to criminal proceedings. Moreover, the Celle Court of Appeal noted that G. had meanwhile withdrawn his motion to institute criminal proceedings against the applicant. Lastly, the Celle Court of Appeal did not see any indications that the San Juan District Court, when deciding upon the right to custody in the main proceedings, would fail to take into account N.’s interests.
On 10 August 2006, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, together with N.’s constitutional complaint which had been lodged by the curator ad litem. On 22 September 2006, the Celle Court of Appeal dismissed a motion by the applicant’s husband and ordered that N. should be returned to the United States not later than 31 October 2006.
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“For the purposes of this Convention -
(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ...”
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”


ITEMID: 001-72789
LANGUAGEISOCODE: ENG
RESPONDENT: ALB;BGR;HRV;CZE;DNK;EST;HUN;IRL;ISL;ITA;LTU;LVA;NLD;POL;PRT;ROU;SVK;SVN;TUR;GBR;UKR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HUSSEIN v. ALBANIA, BULGARIA, CROATIA, CZECH REPUBLIC, DENMARK, ESTONIA, HUNGARY, ICELAND, IRELAND, ITALY, LATVIA, LITHUANIA, THE NETHERLANDS, POLAND, PORTUGAL, ROMANIA, SLOVAKIA, SLOVENIA, TURKEY, UKRAINE AND THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Saddam Hussein, is an Iraqi national who was born in 28 April 1937. He is the former President of Iraq and is currently detained in Iraq.
On 20 March 2003 coalition forces, led by a US General, invaded Iraq. While the greater part of the forces and support came from the United States (“US”) and the United Kingdom (“UK”), it will be assumed for current purposes that the coalition forces included support from each of the respondent States during the relevant period. The coalition forces were composed of Divisions, each with military responsibility for a particular zone of Iraq. The US divisions controlled the North and Central zones (the latter including the Baghdad and Tikrit regions) and the two multi-national divisions, one commanded by the UK and the other by Poland, were charged with the south zone and south central zone, respectively.
In early April US forces captured Baghdad. On 16 April 2003 a US General issued a “Freedom Message” announcing the creation of the Coalition Provisional Authority (CPA), a civilian administration that would exercise powers of government temporarily in Iraq. On 13 May 2003 the US Secretary for Defence appointed Ambassador Bremer as Administrator of the CPA. On 13 July 2003 the Iraqi Governing Council (“IGC”) was formed: the Administrator of the CPA could veto all decisions of the IGC. The CPA was to co-ordinate with the ICG on all matter involving the temporary governance of Iraq.
On 13 December 2003 the applicant was captured near Tikrit by US soldiers (the 4th Infantry Division and members of Task Force 121) during an operation called “Operation Red Dawn”.
On 8 June 2004 the UN Security Council adopted Resolution 1546 (2004) whereby it endorsed the formation of a sovereign interim Government of Iraq which would assume, by 30 June 2004, full responsibility and authority for governing Iraq; it welcomed the end of the occupation and the cessation of the CPA (also by 30 June 2004) when Iraq would reassert its full sovereignty; and it noted that, pending the assumption of full security responsibility by the Iraqi security forces, the presence of the multinational force in Iraq was at the request of the incoming Interim Government of Iraq (Articles 1, 2, 8 and 9 of the Resolution).
Two days earlier than foreseen, on 28 June 2004 all CPA authority was transferred to the new Iraqi Interim Government.
On 30 June 2004 the applicant was transferred by US troops to the Iraqi Government for trial.


ITEMID: 001-114485
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF J.M. v. DENMARK
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born on 30 November 1991. On 13 September 2007, at the age of fifteen, the applicant was arrested in Qaqortoq, Greenland, charged with rape and homicide under section 216, subsection 2, and section 237 of the Danish Penal Code (Straffeloven) committed on 26 May 2007 against an eighty-five year-old lady, who lived in Aalborg, Denmark, where the applicant at the relevant time attended a youth school institution. The case received massive media coverage, both before and after the police investigation that led to the applicant being charged.
6. The applicant was brought before Qaqortoq County Court (Qaqortoq Kredsret) and pleaded guilty to both charges. He was ordered to be held in pre-trial detention for four weeks. A request by the lay representative (bisidder) that the applicant be placed in an institution in Greenland during the investigation was disregarded.
7. After a week, the applicant was transferred to Denmark and brought before the City Court in Aalborg (Retten i Aalborg) which on 20 September 2007, by virtue of section 762, subsection 2(i), of the Administration of Justice Act (Retsplejeloven), extended the detention on remand until 11 October 2007 and until his placement in an appropriate home or institution could be secured as set out in section 765, subsections 1 and 2(iii) of the Administration of Justice Act. It further decided that the applicant should undergo a forensic psychiatric examination. The latter was formally requested by the public prosecutor on 23 October 2007 and commenced at the Forensic Psychiatric Department at Aarhus University Hospital on 21 November 2007.
8. On 21 September 2007 the applicant was transferred to a closed young offender institution. On 10 October 2007 he was transferred to a secure residential institution called “Grenen” for young people aged between 12 and 17 who had committed a crime or otherwise displayed dangerous conduct. One of the objects of that particular institution was that the young people placed there were given such care, upbringing and help with development that they would be able to function in society later on. The young people had a well-structured daily routine with education, workshops and leisure-time activities, and with limit-setting adults with strong contact skills to support them.
9. The applicant’s detention in the institution was extended by four weeks by the City Court in Aalborg on 11 October, 8 November and 6 December 2007.
10. In a letter of 21 December 2007 the prosecution informed the applicant’s counsel that the investigation was by and large complete and awaited only a report from the forensic psychiatric examination.
11. The applicant’s detention was extended for four weeks on 3 January 2008.
12. On 22 January 2008 the forensic psychiatric report (retspsykiatrisk erklæring) was submitted. It concluded that the applicant was covered by Article 16, subsection 2, of the Penal Code concerning mentally ill persons and recommended that a judgment be passed to place the applicant in an appropriate institution for patients with a far-reaching mental handicap.
13. On 31 January 2008 the applicant’s detention was extended, inter alia, in order for the Medico-Legal Council (Retslægerådet) to be heard on the forensic psychiatric report.
14. The City Court in Aalborg extended the applicant’s detention by four weeks on 28 February, 27 March, 24 April, 22 May, 19 June, 17 July and 14 August 2008. On the latter two dates the domestic courts added that the conditions for extending the detention were fulfilled, also under section 768a of the Administration of Justice Act, which entered into force on 1 July 2008 (see below).
15. In the meantime, on 14 March 2008 the report from the MedicoLegal Council was submitted, which concluded that the applicant was considered to fall within section 16, subsection 2, of the Penal Code. Moreover, if the applicant were convicted, a sentence of placement in an institution for persons with extensive mental disabilities as provided by section 68, second sentence, was recommended as the most expedient measure to prevent further similar offences.
16. As a standard practice regarding persons falling within section 16, subsection 2, of the Penal Code, on 4 April 2008 the public prosecutor requested an opinion from the Joint Council for the Mentally Disabled (Samrådet for udviklingshæmmede) of Aalborg Municipality on the basis of the forensic psychiatric report and the recommendation of the Medico-Legal Council.
17. On 21 April 2008, an opinion was received from the Joint Council for the Mentally Disabled, which found that the documentation for considering the applicant to fall within section 16, subsection 2 of the Penal Code was inadequate. It therefore urged a further examination of the case before a decision was made. Accordingly, a new forensic psychiatric report was requested.
18. Originally, the trial was scheduled to commence on 11 September 2008, but it had to be re-scheduled for 13 and 14 November 2008 pending the completion of the second forensic psychiatric report. On the former date, for the first time the applicant objected to an extension of the pre-trial detention. He referred to the fact that section 768a of the Administration of Justice Act, which had entered into force on 1 July 2008, specifically limited pre-trial detention of persons under eighteen years to a period not exceeding eight months.
19. By decision of 11 September 2008, still by virtue of section 762, subsection 2(i), of the Administration of Justice Act, the City Court in Aalborg extended the applicant’s pre-trial detention until 9 October 2008 and stated:
[The applicant] is charged with rape and homicide committed on 26 May 2007. The pre-trial detention is thus justified by a charge of a very serious crime which has also been admitted to by [the applicant], and according to the information available it must be concluded that the reason why the case has not yet come to trial is the need to clarify the most expedient sanction, both in consideration of society and in consideration of [the applicant] himself. Although the length of the pre-trial detention exceeds the period stated as the maximum period in section 768a of the Administration of Justice Act, the court therefore finds that such very particular circumstances (helt særlige omstændigheder) apply as to provide a reason for deviating from the maximum period in section 768a, and the request for extension is therefore allowed.
20. On appeal on 19 September 2008 the High Court of Western Denmark (Vestre Landsret), henceforth the High Court, upheld the decision.
21. The applicant did not apply for leave to appeal against the decision to the Supreme Court (Højesteret).
22. On 9 October 2008 the City Court in Aalborg extended the applicant’s detention in the closed youth institution by four weeks.
23. On 6 November 2008 the City Court in Aalborg extended the applicant’s detention by another four weeks. It noted that the second forensic psychiatric report had been submitted on 3 November 2008 and that it was of significant importance to hear the Medico-Legal Council in this respect. It repeated that such very particular circumstances applied as to provide a reason for deviating from the maximum period in section 768a of the Administration of Justice and that an extension could not be considered in breach of Article 5 § 3 of the Convention. Accordingly, the trial had to be rescheduled anew.
24. The applicant appealed against the decision to the High Court, which on 14 November 2008 upheld the decision. Leave to appeal to the Supreme Court was refused on 19 December 2008 by the Leave-toAppeal Board (Procesbevillingsnævnet).
25. In the meantime, on 10 December 2008 the second report from the Medico Legal Council was submitted. It concluded that the applicant’s case did not fall under section 16, subsection 2, of the Penal Code, as found in its first report, but under Section 69 of the Penal Code in that his actions had been conditioned by deficient development, reduction or disturbance of mental functions which, from a medical point of view, on the one hand could suggest a sentence to structured, controlled socio-psychiatric treatment, and on the other hand could not rule out ordinary imprisonment. The Medico-Legal Council was unable to point to any other measures under section 68, second sentence, of the Penal Code that were more expedient than ordinary punishment. The Medico-Legal Council did find it relevant though, from a purely medical point of view, to order the applicant to undergo a structured, supervised socio-pedagogical measure as provided for by section 74a of the Penal Code. If such sanction was not feasible, the imposition of ordinary punishment was recommended.
26. Moreover, in the meantime, on 4 and 17 December 2008, and subsequently on 13 January 2009 the City Court in Aalborg extended the applicant’s detention, stating expressly that an extension would not be contrary to Article 5 § 3 of the Convention. The trial had been scheduled to take place on 27 January 2009, and if necessary also on 2 and 4 February 2009.
27. By judgment of 27 January 2009 the City Court in Aalborg convicted the applicant in accordance with the indictment and his own confession. It was established as a fact that the applicant had gained access to the victim’s apartment because he wanted access to a telephone. Having raped the victim, he killed her by inflicting several blows, kicks and knife lesions to the head, neck and body. Thereafter he had left the scene of the crime, walked to town and called the youth school institution to be collected. He did not talk to anybody about the crime until he had been arrested. The applicant was sentenced to eight years’ imprisonment. The City Court refuted the applicant’s complaint about the length of the detention and the length of the trial and stated that even though the proceedings had taken more than sixteen months from the applicant’s deprivation of liberty, their length could not lead to a reduction of the sentence as the completion of the two mental status examinations of the applicant- and the submission of the case to the Medico-Legal Council had been of vital significance for determining the sanction to be imposed. Moreover, it found that the public prosecutor had conducted the proceedings with due diligence.
28. On appeal, on 4 June 2009 the High Court upheld the judgment in its entirety and stated, among other things: “For the reasons stated by the District Court and because the length of the proceedings cannot be attributed to ‘periods of inactivity’ of any importance for sentencing purposes in view of the nature of the case, [the High Court] agrees that the length of the proceedings has not been attributed importance as a mitigating factor. Accordingly, and in view of the very significant gravity of the offences, including the particular ruthlessness exhibited by [the applicant], the fact that the offences were committed in the victim’s own home, and the fact that the victim was a defenceless eighty-five year-old woman, the High Court upholds the sentence of eight years’ imprisonment despite the fact that [the applicant] was only fifteen years old at the time of the offence, see section 82, subsection 1(i), of the Penal Code”. On the same day, the High Court decided that the applicant should remain in alternative detention until the enforcement of the sentence could commence.
29. It appears that the applicant did not submit a request to the LeavetoAppeal Board for leave to appeal against the High Court judgment to the Supreme Court.
30. The rules on detention on remand are laid down in part 70 of the Administration of Justice Act (Retsplejeloven), which reads in so far as relevant:
1. A person charged (en sigtet) may be detained on remand when there is a reasonable suspicion that he has committed an offence which is subject to public prosecution, provided that under the law the offence may result in imprisonment for one year and six months or more, and
(i) according to information received concerning the suspect’s situation, there are specific reasons for assuming that he will evade prosecution or execution of judgment, or
(ii) according to information received concerning the suspect’s situation, there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or
2. A person charged may also be detained on remand when there are strong reasons for suspecting that he has committed:
(i) an offence which is subject to public prosecution which, under the law, may result in imprisonment for six years or more, and it is deemed necessary for law enforcement reasons, according to the information obtained on the gravity of the offence, that the person is not at large (hensynet til retshåndhævelsen); or
(ii) an offence in violation of section 119(1), section 123, section 134a, section 192a(2), section 218(1), section 222, section 224 or section 225 read with section 218(1) or section 222, section 235(1), sections 244-246, section 250 or section 252 of the Penal Code or violation of section 232 of the Penal Code committed against a child of less than 15 years, in case the offence may be expected, due to the particulars of the seriousness of the circumstances, to be punished with a non-suspended sentence of imprisonment for at least sixty days and due regard for enforcement of the law is found to require that the accused shall not be at large.”
3. Detention on remand may not be imposed if the offence can be expected to result in a fine or imprisonment for a period not exceeding thirty days, or if the deprivation of liberty would be disproportionate to the inconvenience so caused to the life of the person charged, the importance of the case and the legal consequence to be expected if the person charged is found guilty.
1. The court shall decide, upon request from the prosecution, if an accused person shall be detained on remand. A request for continued remand detention shall be submitted to the court in writing and the request shall state the detention provision(s) relied on by the prosecutor, the factual circumstances on which the request is based and the most significant investigative steps expected to be taken.
...
4. ... If detention on remand is continued beyond the time limits set out in section 768a, subsections 1 and 2, the [court] must state in its decision necessitate continued detention on remand ...
1. Where the conditions to apply detention on remand are met, but if the purpose of detention on remand may be obtained by less radical measures, the court decides on such measures in lieu thereof subject to the consent of the person charged.
2. The court may thus decide that the person charged shall
...
(iii) be placed in an appropriate home or institution
...
1. Except for situations where the person charged is not present in Denmark, the court order must state a period for the pre-trial detention or the measure. The period must be as short as possible and may not exceed four weeks. The period may be extended but not by more than four weeks at a time. The extension is made by court order unless the defendant accepts the extension. Until judgment is rendered in the first instance, the rules of section 764 apply correspondingly to court hearings and court orders about extension of periods. A defendant who is held in pre-trial detention or is subject to another custodial measure does not, however, have to be brought in person before the court if he waives this or the court finds that such attendance will involve undue difficulties.
Detention on remand or measures in lieu hereof, shall if necessary be terminated by a court order if prosecution is dropped or the conditions for instituting proceedings no longer exist. If the court order finds that the necessary speed has not been used to proceed with the matter and that detention on remand or other measures are not reasonable, the court shall terminate it.
1. Unless the court finds that there are special circumstances to the contrary, the maximum period of detention on remand must not be extended for a continuous period of
(i) six months, when the accused is charged with an offence that cannot carry a sentence of imprisonment for six years or
(ii) one year when the accused is charged with an offence that may carry a sentence of imprisonment for six years or more.
2. Unless the court finds that there are very special circumstances to the contrary, the maximum period of the detention on remand of a juvenile (less than 18 years old) must not be extended for a continuous period of
(i) four months, when the accused is charged with an offence that cannot carry a sentence of imprisonment for six years or
(ii) eight months when the accused is charged with an offence that may carry a sentence of imprisonment for six years or more.
3. The periods mentioned in subsections 1 and 2 comprise the period until the beginning of the trial at first instance.
31. Section 768a was inserted into the Administration of Justice Act by act no. 493 of 17 June 2008 and entered into force on 1 July 2008 with the aim of reducing lengthy criminal charges and detention on remand. The reasons for the proposal were explained in the general remarks to the Act, inter alia by a reference to a specific Committee Report, 1492/2007, pp. 136-38:
“The Committee notes that detention on remand is a particularly serious interference in criminal procedure, and that this especially is the case for persons under 18 years of age. The strain that flows from detention on remand - in the view of the Committee - caused not only by the uncertainty that follows from the charge and the imprisonment, but also uncertainty with respect to the length of the detention and the consequent questions, inter alia, whether the detainee can resume his work or his education after the detention ends, relationships with family and friends, etc. The strain must normally be presumed to grow concurrently with the length of the interference and especially for this reason the length of detention should be limited as far as possible. Against this background, the Committee finds that there is a need for further measures to reduce the length of detention on remand. Considering the serious character of the interference, the Committee further notes that it must be incumbent on the police, the prosecution authorities and the courts that, in the organisation of their work, they pay special attention to expediting these cases in order for detention on remand to be of the shortest possible duration.”
32. As appears from the wording of section 768a, deviation from pre-trial detention periods of defendants under the age of eighteen is only possible if the court finds that “very special circumstances” apply. As explained in more detail in the preparatory notes (see the Official Report on Parliamentary Proceedings 2007-2008 (2nd sitting), Addendum A, p. 2952 (Bill No. L 78)), it depends on a specific assessment of all the circumstances of each case whether there is a basis for deviating from the maximum periods of pre-trial detention, as concerns both charged persons under and over the age of eighteen. When assessing this, the court must start from the reason for detention applied, that is, the reasons for pre-trial detention under section 762, subsection 1(i) (danger of absconding), section 762, subsection 1(ii) (danger of reoffending), or section 762, subsection 2 (public interest) of the Administration of Justice Act. The preparatory notes set out:
In case of pre-trial detention pursuant to the said provisions, the requirement of particular circumstances implies that a total assessment must be made on the basis of a strict assessment, both of the circumstances mentioned in section 768 (that is, particularly whether the investigation is being conducted with the requisite expedition) and of the necessity of continuing the detention pursuant to the detention reason applied.
The strict attention to the necessity of continuing the detention also implies that the court must pay special attention to the proportionality requirement under section 762(3) of the Administration of Justice Act and, particularly in connection with the detention reason stipulated in subsection (l)(i) (danger of absconding), to the possibility of using alternatives to detention as prescribed in section 765. Concerning the application of alternatives, it should be noted in that connection that the court, the public prosecutor as well as defence counsel should be aware at all times of the need to try to apply alternative detention in cases where that would be an adequate measure.
...
In all cases, the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in serious criminal cases, that is, in cases of aggravated offences against the person and other cases of particular public interest in which the expected sanction will be several years of imprisonment. Thus, following an overall assessment, the court must make a critical assessment of the necessity of continued pre-trial detention in light of the length of the detention so far.
...
In the assessment of the question of continuation of the detention in case of the most aggravated offences, for example in cases of homicide, the most aggravated drugs offences, etc., the nature of the actual aggravated offence will naturally be included in the assessment of whether detention may be continued in excess of the periods stated. Particularly in cases where prosecution has been instituted, and where there is a rather strong suspicion, the criminal nature of a very serious offence may, in addition to the specific reason for detention, be included as an essential factor resulting in a finding that particular circumstances exist in accordance with the provision proposed.
33. Particularly concerning continued pre-trial detention of charged persons under the age of 18 in excess of the maximum periods, the preparatory notes stated the following:
Whether pre-trial detention of young people under the age of 18 may occur in excess of the normal periods stated in subsection (2) must normally depend on an assessment corresponding to the one to be made when determining whether there is any basis for deviating from the periods stated in subsection (1), see above. However, the condition for deviating from the periods stated in subsection (2) is qualified, as exceptional circumstances must apply. This pertains to both the circumstances referred to in section 768 of the Administration of Justice Act (that is, particularly whether the investigation is being conducted with the requisite expedition) and to the necessity of continued pre-trial detention in accordance with the reason for detention applied, see above for details. Also the nature of the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in very serious criminal cases (that is, in cases of severely aggravated offences against the person and other cases of particular public interest in which the expected sanction will be several years of imprisonment).
34. The Penal Code contains various provisions on the significance of the perpetrator’s mental status at the time of the offence, inter alia:
(1) Persons who, at the time of the act, were irresponsible on account of mental illness or a state of affairs comparable to mental illness, or who are severely mentally defective, are not punishable. Provided that the perpetrator was temporarily in a condition of mental illness or a state of affairs comparable to mental illness on account of the consumption of alcohol or other intoxicants, he may in particular circumstances be punished.
(2) Persons who, at the time of the act, were slightly mentally defective are not punishable, except in particular circumstances. The same shall apply to persons in a state of affairs comparable to mental deficiency.
Where an accused is acquitted in accordance with section 16 of this Act, the court may decide on the use of other measures which it considers to be expedient for the prevention of further offences. If less extreme measures such as supervision, decisions on place of residence or work, addiction treatment, psychiatric treatment and so on are considered insufficient, the court may decide that the person in question must be taken to a hospital for the mentally ill or to an institution for severe mental defectives, or that he must be put into care suitable for the mentally deficient, or that he must be taken to a suitable home or to an institution where he can receive special nursing or care. Safe custody is possible under the conditions stated in section 70 of this Act.
Where the offender was, at the time that the punishable act was committed, in a condition resultant upon inadequate development or an impairment or disturbance of his mental abilities, although not of the character referred to in section 16 of this Act, the court may, if considered expedient, decide upon the use of measures such as those referred to in the second sentence of Section 68 above, in lieu of punishment.
35. The Administration of Justice Act contains the following provision on mental status examinations of the perpetrator:
1. The defendant must be subjected to a mental status examination when this is found to be of importance for the decision of the case. If he does not explicitly consent to the examination, it can only take place pursuant to a court order. If the defendant is being detained, he cannot be examined without a decision of the court.
36. Mental status reports are prepared by consultants in psychiatry. The cases of forensic psychiatry that are submitted to the Medico-Legal Council (Retslægerådet) for an opinion concern the question of whether, at the time of the offence, the defendant was mentally ill or in a comparable state as stated in section 16 of the Penal Code and questions of determination of the most/more expedient measure, see sections 68 and 69 of the Penal Code. Approximately half of all mental status reports are submitted to the MedicoLegal Council. Cases not submitted to the MedicoLegal Council typically concern less serious crimes and where the examination gives no basis for recommending a special psychiatric measure. The detailed rules for the organisation and work routines of the Medico-Legal Council are laid down in the Rules of Procedure of the Council. Rule 7(1) of the Rules of Procedure provides that:
If the written material submitted to the Council is deemed not to provide a sufficient basis for the Council’s assessment of the case, the Council shall inform the submitting authority of what further information will be of importance for such assessment. At the same time, the Council shall state whether it is deemed most expedient that such information is provided: ...
through examination of the person in question by one or more of the Council members or experts at the request of the Council.
37. In cases where it is concluded, on the basis of the mental status examination of the perpetrator, that the perpetrator is slightly retarded (‘mentally disabled’), it is standard practice for the public prosecutor of the North Jutland Police, who conducted the criminal proceedings against the applicant before Aalborg District Court, to request an opinion from the Joint Council for the Mentally Disabled (Samrådet for Udviklingshæmmede) of Aalborg Municipality. The Joint Council for the Mentally Disabled, which includes a forensic psychiatrist and a psychologist as well as a representative of the Danish Prison and Probation Service, assesses the conclusion of the mental status report on the perpetrator’s mental status and recommends the sanction which should be imposed on the perpetrator, including the type of institution in which the perpetrator should be placed.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-5973
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: JIMENEZ ALONSO ET JIMENEZ MERINO v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants [Mr Alejandro Jiménez Alonso and Pilar Jiménez Merino] are two Spanish nationals, born in 1948 and 1983 respectively. They live in Lamadrid (Santander Province). The first applicant is the father of the second applicant. They were represented before the Court by Mr S. Rodriguez-Monsalve Garrigón, of the Vallodolid Bar.
During the school year 1996-97 the second applicant, Pilar Jiménez Merino, then aged 13-14, was in the eighth year of compulsory primary and secondary education (Enseñanza General Obligatoria) in a state school of Treceño, a village situated in a rural area of the Cantabria region. The first applicant, her father, was a teacher at the school and her personal tutor during that school year.
In May 1997, towards the end of the school year, the Natural Sciences teacher held classes on human sexuality as part of the “Vital Functions” syllabus. As a teaching aid, the teacher distributed to the pupils a 42-page booklet from a publication edited in 1994 by the Department of Education of the Autonomous Government of the Canary Islands.
The booklet in question comprised the following chapters:
“Concept of sexuality”;
“We are sexual beings”;
“Body awareness and sexual development”;
“Fertilisation, pregnancy and childbirth”;
“Contraception and abortion”;
“Sexually transmitted diseases and Aids”.
Those chapters included comprehension questions and basic terminology.
The first applicant, who considered that the contents of the booklet went well beyond the scope of Natural Sciences and contained actual guidelines on sexuality which were contrary to his moral and religious convictions, informed the headmaster of the school that his daughter would not be attending the sex education classes. He referred, in his capacity as parent, to his constitutional right to choose his daughter’s moral education. The second applicant did not attend the classes in question and refused to answer the questions when she sat the final examination in the subject. Consequently, she failed the examination and had to repeat the school year. The first applicant then lodged an administrative application with the Ministry of Education and Culture. In a decision of 22 July 1997, the provincial director of the Ministry rejected the application. On 12 December 1997 the applicant lodged a special appeal for protection of fundamental rights with the High Court of Justice (Administrative Division) of Cantabria. He complained, inter alia, of the lack of consultation with parents regarding the content of the sex education classes; of the clearly moral component of the course; of an infringement of his right to freedom of choice of education guaranteed by Article 27 § 3 of the Constitution; of an infringement of the principle of non-discrimination proclaimed by Article 14; and an infringement of the right to freedom of religion and thought laid down in Article 16 of the Constitution.
In a judgment delivered on 23 March 1997, after a hearing in which both parties had made submissions, the Cantabria High Court of Justice dismissed the appeal. It held that the Ministry’s decision had been in conformity with the fundamental rights enshrined in the Constitution. Referring to various applicable international provisions, such as Protocol No. 1 to the European Convention on Human Rights, the UNESCO Convention of 14 December 1960 against Discrimination in Education, the 1989 Convention on the Rights of the Child and the case-law of the Constitutional Court, the court held, inter alia,:
“... The right of parents to provide their children with an education in accordance with their convictions presupposes, in a pluralist society, the right to choose, that right being linked to the freedom to establish schools so that parents can choose one adapted to their beliefs and ideas. However, that does not presuppose, nor can it presuppose, the right to impose one’s personal convictions on others or to request different treatment in accordance with such convictions.
... The enunciation of respect for personal convictions, in the form of the right to freely choose a school, derives from and is based on certain legal provisions and statements of the Constitutional Court and the Supreme Court.
... Section 4 of Institutional Act 8/1985 of 3 July on the right to education states:
“parents or guardians shall be entitled, in accordance with the legal provisions:
(a) to provide their children ... with an education in conformity with the aims laid down in the Constitution and the present Act.
(b) to choose a different school from those set up by the public authorities.
(c) to provide ... their children with religious and moral education in conformity with their own convictions.”
There is, accordingly, a clear legal link between the right to choose a different school from those set up by the public authorities and the right to an education in conformity with one’s own convictions.
...
In conclusion, the right of parents to educate their children in accordance with their own moral, religious and ideological convictions is not an absolute right, but must be determined in relation to the rights which the Constitution guarantees to other partners in the educational community, so that it is not fair to attempt to impose a difference of treatment or positive discrimination on the basis of one’s own ideas, or to choose or predetermine, on the basis of one’s particular ideas, the contents of a school curriculum in a state establishment, since the right to a particular type of education is ensured by means of the right to establish [private] schools; the latter can offer a special curriculum, unlike the position in state schools in a pluralist State, and parents have the right to choose the type of education which they wish their children to receive.”
The first applicant lodged an amparo appeal against that judgment with the Constitutional Court. He relied on Article 27 § 3 (right of parents to choose their children’s religious and moral education), 14 (principle of non-discrimination) and 24 (right to a fair trial) of the Constitution. In a decision of 11 March 1999, the Constitutional Court declared the appeal inadmissible on the ground that it was manifestly ill-founded, for the following reasons:
“Article 27 of the Spanish Constitution recognises rights in favour of all those who participate in the education system, which presupposes that, in the event of dispute, a balance has to be struck between the different interests in issue. In the instant case, the trial court adequately weighed the various conflicting interests while stressing that state education was involved. In the context of that type of education, ideological neutrality has to be preserved, as the court affirmed ... . In the instant case, neutrality was preserved, with the result that the trial court’s decision was neither arbitrary nor absurd and thus cannot be reviewed in amparo proceedings. .... Nor has there been an infringement of the principle of equality laid down in Article 14 since no relevant term of comparison has been submitted in support of the appeal.”
“1. Everyone has a right to education. The freedom of teaching is hereby recognised.
2. The purpose of education is the full development of the human personality in a manner consistent with the democratic principles of coexistence and fundamental rights and freedoms.
3. The public authorities shall guarantee the right of parents to provide their children with a religious and moral education in accordance with their own convictions.
...
6. Natural and legal persons shall have the right to set up teaching institutions in a manner consistent with constitutional principles.
...
9. The public authorities shall assist teaching institutions satisfying the conditions established by law.
...”
“... The Constitution confers on all Spaniards a right to education. It guarantees freedom of teaching ... and of setting up schools, and the right to receive religious and moral instruction in accordance with personal convictions. It recognises the right of parents, teachers and pupils to participate in the supervision and management of publicly funded schools.
...”
“The Spanish education system, established in accordance with the principles and values of the Constitution and founded on the respect of the rights and liberties recognised by the Constitution and by Law 8/1985 of 3 July on the right to education, shall be geared towards the achievement of the following aims set forth in the above-mentioned Act...”
In accordance with the above-mentioned constitutional and legislative provisions, there is a wide network of State-subsidised private schools in Spain, which coexist with the state school system.