ITEMID: 001-73312
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LEGER v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-1-a;No violation of Art. 3
TEXT: 7. The applicant was born in 1937 and lives in Landas.
8. In July 1964 the applicant was prosecuted for the abduction and murder of Luc Taron, an 11-year-old boy, on 26 and 27 May 1964.
9. On 5 July 1964, while in police custody, the applicant signed a confession which he stood by for the first ten months of the investigation. Later that day he was placed in pre-trial detention. The investigating judge questioned him on several occasions about the reasons for his conduct, which was inconsistent with his confession, but the applicant refused to offer an explanation.
10. On 21 December 1964 a panel of experts in neuropsychiatry submitted a report. The experts submitted that the applicant had not been suffering from mental illness at the time of the events and contended that the physiological and psychological abnormalities observed, coupled with the applicant’s alleged memory loss at the time of the killing, “[made] it impossible to rule out the presence of an epileptic symptom with a twilight state and dimming of consciousness”. They concluded that the applicant was “dangerous” and “liable to a criminal penalty” and that “the organic disorders observed would be amenable to palliative treatment alone and dictate[d] that his social rehabilitation [could] be envisaged only with the utmost caution”.
11. A second report was submitted on 30 April 1965. It concluded that the applicant was “not mentally ill and should not be admitted to a psychiatric hospital. He is fit to stand trial. He must answer for his actions in court. He is a danger to public safety.”
12. On 11 June 1965 the applicant retracted his confession but refused to expand on his muddled and limited explanations. He has protested his innocence ever since.
13. In a judgment of 7 May 1966 the Seine-et-Oise Assize Court found the applicant guilty of abduction and subsequent murder, with mitigating circumstances. The Assize Court held that the offence should not be classified as premeditated murder (assassinat). Although the prosecution had not sought a specific penalty, the applicant was sentenced to life imprisonment, but no minimum term was set (see paragraph 34 below). After the verdict had been read out by the President of the Assize Court, the applicant protested that there had been a miscarriage of justice and gave the name of a person who, according to him, was guilty. An appeal on points of law by the civil party was dismissed on 29 November 1966.
14. The applicant’s wife died in unexplained circumstances in January 1970, after she had written to tell him that she knew he was innocent and that she had received death threats from one of the two real culprits.
15. On 17 June 1971 the applicant, through his lawyer, who had nevertheless entered a guilty plea on his behalf, lodged an initial application for a retrial, which was apparently not examined.
16. On 6 September 1974 the applicant’s lawyer lodged a second application for a retrial with the Minister of Justice. The application gave rise to an investigation, the findings of which were due to be disclosed to the lawyer. However, the lawyer died before the report was submitted and the findings of the investigation were never forwarded to the applicant. Several months later, the applicant was notified orally that the application had been dismissed.
17. On 5 July 1979, on the expiry of a “probationary period” of 15 years (see paragraph 39 below), the applicant became eligible for release.
18. The applicant applied for release on licence on several occasions. In 1984 he received the support of the President of the Ligue des droits de l’Homme (Human Rights League). The civil party subsequently issued death threats against the applicant in the event of his release from prison.
19. His applications for release on licence were transmitted in 1985, 1988, 1990, 1991, 1992, 1993, 1994, 1995 and 1997 to the Minister of Justice, who at the time was empowered to deal with such matters, and were refused, in many cases for his own safety despite “evidence supporting them”, as Mr Toubon, the Minister of Justice from 1995 to 1997, explained in a press article published on 8 June 2000.
20. The applicant also made several applications for a presidential pardon. Some of them did not receive a reply. The last one, submitted in 1998, was refused after an expert medical assessment had concluded that the applicant’s state of health was compatible with detention.
21. On 18 March 1999 a lawyer belonging to the Lille Bar applied for the applicant’s release on licence. The sentence enforcement board gave a positive opinion, but consideration of the application was adjourned pending the submission of a fresh expert report.
22. On 4 October 1999 the experts submitted their report, which read:
“... Previous expert reports
Among the documents consulted, we have considered in particular the expert reports by the following psychiatrists:
Dr Behague, Dr Cenac and Dr Dublineau, of 21 December 1964;
Dr Petit-Dutaillis, Dr Heuyer and Dr Roumajon, of 5 April 1965;
Dr Follin and Dr Roumajon, of 13 December 1984;
Dr Bornstein, of 24 November 1989;
Dr Cayet, of 13 May 1997 ...
Observations
We have studied the committal order by the Indictment Division and a number of expert reports. In their report dated 13 December 1984 Dr Roumajon and Dr Follin observed in Lucien Léger a mental distortion of reality bordering on the process of paranoia. They noted his pride, his taste for publicity and his need for a sense of self-worth. They referred to the substantial administrative file on Lucien Léger, whose time in custodial establishments had been highly eventful. The two experts emphasised that Lucien Léger was very keen to publish his version of events. This, they concluded, was likely to cause a quite considerable scandal. His release risked causing a significant disturbance to public order, and they believed that it could give rise to fears of a publicity stunt.
Dr Boissenin, who had been unable to examine Lucien Léger as the latter had refused, expressed the view in his report of 18 May 1985 based on the file that the prospect of release was risky.
On 13 May 1997 Dr Denis Cayet noted in his report that Lucien Léger’s intellectual faculties had remained intact. He observed that, despite a fairly warm appearance, there were still paranoid character traits centred on distrust, a suspicious and quibbling temperament, a general impression of persecution, difficulty in being self-critical, an underlying inflexibility and an inflated opinion of himself, accompanied by a latent sense of manipulation and provocation. Dr Denis Cayet concluded from this that Lucien Léger had scarcely changed since the assessment by Dr Follin and Dr Roumajon, finding him to be just as combative, prone to look for hidden meaning, and seemingly determined to assert in future, by any possible means, what he considered to be his justification and the expression of the truth.
In Dr Cayet’s opinion, the question of release was very difficult to assess, in view of the disturbance to public order and the media attention that were likely to ensue.
During our examinations, Lucien Léger developed good relations with us. The general impression that emerged seems more balanced than that observed by the previous experts.
One expression struck us in particular: ‘I have continued to develop a structure while in prison.’ That does indeed seem to be the case, but it is impossible to assess whether, as things stand, Lucien Léger would be able to maintain this relative stabilisation on being released, if such a decision were taken.
Lucien Léger appeared to us to be well informed about the current situation. He demonstrated great skill in pleading his own case, without, moreover, displaying excessive passion or exerting pressure on his interlocutors, so much so that questions may be raised as to the intensity of his current desire to be released. In any event, after thirty-five years of imprisonment, such ambivalence is not surprising. The idea of coming out of a system that is organised, restrictive and frustrating yet reassuring by its very monotony, with particular features such as a certain degree of respect on the part of most of the supervising staff, will undoubtedly cause him to wonder, quite naturally, about life as a free man, a life to which he is no longer accustomed: management of time and space, access to treatment, professional responsibility, social skills ...
The version of events he submitted to the three experts is consistent with what he has written and with the version he gave to the previous succession of experts. It is not for us to pass judgment on its credibility. Is it a mythomaniac fabrication? What portion of truth is there in his current version of events? Is it quite simply a defence mechanism? Is it basically a defensive structure verging on the delusional? All these aspects, indeed, may well be interlinked.
In any event, a certain progression can be seen from these various documents. In simplified form, it may be broken down into three phases:
At first, Lucien Léger appeared to have a highly disordered personality, being prone to mythomaniac fabrication and a somewhat naive boastfulness.
Next came the phase of multiple complaints and a defensive organisation bordering on paranoia.
Currently there seems to be evidence of a relative softening of his character armour, although it is impossible to judge the impact of ‘protection afforded by prison’ and his reaction on experiencing the ‘void of release’.
Our overall impression is therefore more qualified.
To sum up, [the applicant] was imprisoned at the age of 27. At the time he appeared to have a disordered personality ... Thirty-five years later, most of his life has been spent in prison. ... Admittedly, a few paranoid personality traits may still be observed, but they are relatively well suppressed. Such traits essentially seem to be a form of character defence against accusations, a psychological survival response in order to ... ‘avoid losing a grip on reality’. He does not show any signs of systematic misjudgment, general over-simplification, deep suspicion, or a sense of current persecution ... at least, as soon as discussion moves away from the case in question. ...
As further evidence against the presence of genuine paranoia, it is noticeable that he has maintained a certain sense of humour, a responsiveness to his surroundings and a degree of nuance.”
The report concluded:
“This assessment therefore focuses entirely on aspects of his personality from a strictly psychiatric and forensic standpoint. And from that standpoint, there do not currently seem to be any formal obstacles to his release.”
The report also stated that the previous experts had already found that there did not appear to be a risk of a further offence involving a child and that only the risk of a surge of paranoia and protest had held them back.
“That eventuality cannot be totally ruled out, although a number of clinical factors suggest that there has been a relaxation of his reactive faculties. In the event of his release on licence, which is not precluded by the findings of the clinical examination, it is ultimately the continuity, consistency and solidity of the reference points with which he is provided that should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration. It would be helpful for him, at least initially, to receive support through psychological counselling.”
The experts reported that the applicant was envisaging receiving such counselling “to reassure everyone and myself, and in case I get depressed”.
23. On 7 February 2000 the judge responsible for the execution of sentences gave the following opinion:
“Mr Léger is supported by the Bernhard family, who have regularly come to see him in the visiting room for about twenty years. Mr and Mrs Bernhard have offered to provide [the applicant] with accommodation. They have already welcomed other people in difficulty into their family. In addition, Mr Bernhard runs a company called ‘Le pain de nos ancêtres’. He will employ the prisoner to carry out administrative duties. [The applicant] will not be able to submit any other plans in view of his age (63) and his isolated family situation (as a widower with no children). The assessment recently conducted by a panel of psychiatric experts concludes that his personality has mellowed and that he has maintained his intellectual faculties and his grasp of reality. There does not appear to be any risk of his committing a further criminal offence involving a child. The findings of the clinical examination do not stand in the way of his release on licence. The solidity of the reference points with which he has been provided should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration. It would be helpful for him initially to receive support through psychological counselling, according to the experts.
I am forwarding the file on [the applicant] because I consider that after almost 35 years in prison it is appropriate to review of his situation and thus assess the purpose of his sentence. Releasing him on licence would enable him to undergo compulsory medical and psychological treatment and to regain his liberty within a clearly defined framework, unlike an individual pardon.”
Following the reform of the post-sentencing system, including the procedure for granting release on licence to long-term prisoners, pursuant to the Law of 15 June 2000, the Minister of Justice refused the application for the applicant’s release and referred his case to the newly established courts.
24. On 16 January 2001 the applicant availed himself of this new judicial procedure. In his application he again stated that friends of his would provide him with accommodation in an outbuilding at their home and with employment in their bakery on his release.
25. On 5 February 2001 the sentence enforcement board issued a unanimous opinion in favour of his release on licence. The applicant’s resettlement and probation officer also expressed an opinion strongly in favour of the application.
26. At the hearing in the Douai Regional Parole Court the advocate-general submitted that the applicant’s application should be refused in view of his “lack of reform” in relation to the acts that had led to his conviction.
27. In a decision of 6 July 2001 the Regional Parole Court, observing that the applicant denied having committed the offence of which he had been convicted, refused his application on the following grounds:
“The extremely serious offence which [the applicant] denies having committed was punished by a sentence of life imprisonment.
The psychiatric experts who examined [the applicant] (in 1965, 1984, 1989 and most recently 1999) could not rule out his potential dangerousness and the risk of his reoffending, the only means of averting such risks being through psychotherapeutic counselling or support, which by its very nature requires acceptance by the subject.
[The applicant’s] position in relation to the offence committed and to the assessment which psychiatrists may make of a person’s mental state rules out any counselling of that kind and precludes a finding that he is making ‘serious efforts to readjust to society’ ... in spite of a coherent resettlement plan in terms of accommodation and employment.”
28. Contending that that decision had required a confession as a new condition for release, the applicant appealed to the National Parole Court. His lawyer observed that the applicant was assured of work and accommodation on his release and that the most recent psychiatric report submitted by a panel of experts on 4 October 1999 had concluded that nothing stood in the way of his release on licence as there no longer appeared to be any risk of his reoffending. Relying on Article 3 of the Convention, the applicant’s lawyer argued that making his client’s release conditional on a confession was tantamount to a slow death sentence.
29. On 12 November 2001 the applicant’s friends attested that their offer of accommodation and employment, which they had repeatedly made over a period of seventeen years, was still valid although their bakery was currently being sold to a private company founded by their children (a separate business registered at their home address).
30. In a judgment of 23 November 2001 the National Parole Court upheld the decision of 6 July 2001 in the following terms:
“... the offers of employment and accommodation referred to by the offender in support of his application as evidence of a social resettlement plan are closely interlinked and are currently in doubt as a result of the bankruptcy order against the person who made the offers. Furthermore, the paranoid tendencies still noted by the most recent expert would require psychological counselling, which the prisoner does not envisage undergoing.”
31. Following a proposal to commute the applicant’s sentence, a fresh psychiatric report on him was completed in May 2004. It concluded:
“... In our view there has been no particularly perceptible change in the offender’s mental state since the psychiatric assessments carried out in 1999. The character and personality traits observed do not make it possible to conclude with absolute certainty that he will not pose a significant danger in the community, in the psychiatric sense of the term.
The forecast cannot be anything but reserved ... as to his ability to readjust. Prospects of change are barely perceptible, seeing that he is increasingly occupied with disparaging the experts’ methods rather than providing evidence to address the question of his plans for the future.”
32. On 25 January 2005 the applicant lodged a further application for release on licence with the Arras Post-sentencing Court (tribunal de l’application des peines). The prison authorities recommended applying a probationary semi-custodial regime. The public prosecutor was opposed to the applicant’s release on licence, contending that such a measure would entail a dual risk for society, that of reoffending and that of psychological decompensation.
33. In a judgment of 1 July 2005, which was upheld on 31 August 2005 by the Post-sentencing Division of the Douai Court of Appeal, the applicant was released on licence with effect from 3 October 2005 until 2 October 2015, on which date the monitoring and supervision arrangements would expire. In addition to the standard requirements which the applicant was to observe (place of residence, contact with the judge responsible for execution of sentences and Prison Service social workers, permission for travel), particular obligations were imposed on him: to submit to medical examinations, treatment or care, including in a hospital environment, and to refrain from contacting the victim’s mother, from distributing any publication or audiovisual work produced or co-produced by himself relating, in whole or in part, to the offence committed, and from making any public comment on the offence. The courts held that the applicant now satisfied the conditions laid down in Article 729 of the CCP and based their decision on three considerations. Firstly, he had a coherent plan in terms of both accommodation (long-standing friends who had already assisted a number of people in difficulty) and voluntary work for the Red Cross, such arrangements being stable and long-term. Furthermore, with regard to his attitude towards the victims, the courts pointed out that the applicant had not made the slightest gesture to them and took refuge behind his alleged innocence, but added: “It nevertheless appears that Mr Léger’s conduct does not, after 41 years of imprisonment, represent an obstacle to his release on licence as it might have done in the past.” Lastly, with regard to the prevention of further offences, they noted that the risk of his reoffending was limited (“a zero risk of reoffending is so rare”) and that the recent expert reports were generally in favour of his release on licence. The first-instance court concluded as follows:
“There is no evidence to suggest that a more positive development may be expected in Mr Léger’s case, and there is cause to fear that even if his personality may have ‘mellowed’ according to the experts’ findings in 1999, it will not truly change. Accordingly, refusing his application for release on licence would amount to his virtually permanent exclusion from society, which does not seem justified in view of his resettlement plan and the limited nature of the risk of his reoffending.”
34. Under the legislation in force on the date of the applicant’s conviction, murder carried the death penalty if it was preceded, accompanied or followed by another serious crime, and was punishable by life imprisonment in all other cases. The death penalty was abolished on 9 October 1981. At the time of the applicant’s conviction life sentences were irreducible; the possibility of parole after a specified minimum term was introduced in a law of 22 November 1978. Article 132-23 of the Criminal Code currently provides for a minimum term of eighteen years in the case of life imprisonment. The term may be increased to a maximum of twenty-two years by a special decision of the Assize Court. Under the Law of 1 February 1994, it is now possible to set a minimum term of up to thirty years, or a whole-life term, where a life sentence is imposed for a certain category of offences, namely the murder, whether premeditated or not, of a minor under fifteen years of age preceded or accompanied by rape, torture or acts of barbarity (Articles 221-3 and 221-4 of the Criminal Code).
35. Parole is the longest established means of relaxing the conditions of sentences. It was introduced by the Law of 14 August 1885. The Law initially entrusted decisions on parole to the Minister for the Interior and subsequently, in 1911, to the Minister of Justice, when the latter was assigned responsibility for the Prison Service. The provisions of the 1885 Law were incorporated into the 1958 Code of Criminal Procedure. The Laws of 17 July 1970 and 29 December 1972 removed the requirement of good conduct in prison, making “serious evidence of readjusting to society” the criterion for release on licence, and empowered the judge responsible for the execution of sentences to decide whether to grant a licence to prisoners serving sentences not exceeding three years (this power was extended to sentences not exceeding five years by the Law of 4 January 1993).
In the late 1990s the prison authorities were faced with a worrying decline in the number of licences granted, particularly in the case of longer sentences. The powers vested in the Minister of Justice were also strongly contested. In 1999 the Minister of Justice decided to appoint a commission to make proposals for revitalising the parole system. In February 2000 the Study Commission on Parole, chaired by Mr D. Farge, a judge of the Court of Cassation, submitted its report.
36. Law no. 2000-516 of 15 June 2000 on reinforcing the presumption of innocence and victims’ rights included many of the proposals made in the report. It made radical changes to the laws on parole by removing the Minister’s powers and replacing them with an adversarial judicial procedure, and by broadening the conditions for release on licence.
37. The Law of 9 March 2004 on adapting the justice system to trends in crime (which came into force on 1 January 2005) completed the process of transferring post-sentencing powers to the judicial system by establishing the post-sentencing courts as ordinary courts. It lays down provisions on post-sentencing measures based on the principle of adapting sentences to the individual (Article 707 of the Code of Criminal Procedure (CCP)):
“... The execution of sentences shall encourage the integration or reintegration of convicted persons into society and the prevention of recidivism, while respecting the interests of society and the rights of victims. To that end, sentences may be adjusted during the course of their execution to take into account changes in the convicted person’s personality and circumstances. The adaptation of sentences to the individual must, wherever possible, allow the gradual return of offenders to liberty and ensure that they are not released without any form of judicial supervision.”
38. Prior to the Law of 15 June 2000 the competent authority was either the judge responsible for the execution of sentences or the Minister of Justice. In both cases the proceedings did not observe the adversarial principle or due process. Since that date, applications for release on licence falling outside the sphere of competence of the judge responsible for the execution of sentences (persons sentenced to more than ten years’ imprisonment with more than three years remaining to be served) have been examined by judicial bodies: at first instance, the regional parole courts, instituted by the above-mentioned Law (see paragraph 27 above) and subsequently replaced by the post-sentencing courts pursuant to the Law of 9 January 2004 (see paragraph 32 above), and, on appeal, the National Parole Court (see paragraph 28 above), now replaced by the Post-sentencing Division of the Court of Appeal (see paragraph 33 above). Since 1 January 2005, cases have been referred to these courts on an application by the convicted person or on the recommendation of the public prosecutor (Article 712-7 of the CCP). The post-sentencing court gives judgment after obtaining the opinion of a Prison Service representative, following adversarial proceedings in which it hears the public prosecutor’s submissions and the observations of the convicted person and, where appropriate, his or her lawyer (ibid.). An appeal against the post-sentencing court’s judgment may be lodged within a ten-day period (Article 712-11 of the CCP). The Post-sentencing Division of the Court of Appeal comprises, in addition to the president and two other judges, an official from an association for the resettlement of offenders and an official from a victim-support association (Article 712-13 of the CCP). An appeal on points of law may be lodged within five days after the judgment of the appellate division has been served (Article 712-15 of the CCP).
39. As regards temporal conditions, Article 729 § 3 of the CCP provides that life prisoners may not apply to be released on licence until a probationary period has elapsed (fifteen years before the Law of 9 January 2004 and eighteen years since). Whereas it was previously impossible to apply for release on licence before the minimum term in relation to the sentence had expired, there is now an exception to this rule: the Law of 9 January 2004 entitles prisoners to ask for the conditions of their sentence to be relaxed even where a minimum term has been set (Articles 720-4 to 7205 of the CCP) if they have shown “serious evidence of readjusting to society”. Lastly, Article 730 of the CCP provides that the situation of convicted persons is reviewed at least once a year if they satisfy the conditions laid down in Article 729 of the CCP.
40. As regards substantive conditions, Article 729 § 1 of the CCP gives a precise indication of the criteria to be taken into account in examining an application for release on licence:
“Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an educational or vocational training course, or have taken part in a work experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment, or that they have made efforts to compensate their victims.”
41. On 31 December 2001 there were 578 prisoners serving life sentences; during that year, 48 were released on licence. In 2002, out of a total of 554 life prisoners, 40 were released on licence. In 2003 and 2004 the figures were 543 and 538 prisoners and 22 and 15 licences respectively.
42. The relevant passages of the report by the National Assembly commission of inquiry (“France faced with its prisons”, no. 2521, 28 June 2000, p. 122) and the report by the Senate commission of inquiry on detention conditions (“Prisons: a humiliation for the Republic”, no. 449, 28 June 2000 – section on “The lack of prospects for ‘long-term’ prisoners”) read, respectively:
“The abolition of the death penalty in 1981 calls for reflection on how to punish the most heinous crimes and on expectations of prison. Depriving people of their liberty for ever means leaving them to die slowly; opposition in principle to the death penalty implies, on the contrary, that society should envisage in due course the reintegration of those who appeared to have been permanently excluded on account of the atrocity or repetition of their crimes ... Abolition of the death penalty must therefore be translated into a demanding attitude on the part of society towards the prison system. It would be deeply hypocritical to abolish the death penalty without changing conditions of detention, without envisaging reintegration into society and without also accepting the risks to society that such reintegration entails ...”
“France’s prisons house an increasing number of prisoners serving long sentences. They appear to be deprived of all prospects and, in such conditions, form a population that is extremely difficult for prison staff to manage.
The post-sentencing scheme, which is supposed to allow sentences to be adapted to the individual, seems to be experiencing difficulties in its implementation, while there has been a worrying decline in measures to relax the conditions of sentences. ... The current scarcity of such measures accounts for the difficulty in implementing a proper post-sentencing scheme. The commission of inquiry has seen in the Netherlands that offenders have genuine prospects of having their sentences relaxed after a certain period of detention; this encourages them to become fully focused on reintegration.
... While the length of detention is increasing, in particular because sentences are becoming more and more severe, measures to relax the conditions of sentences, notably release on licence, are being used only to a limited extent.
... In enacting the Law on reinforcing the presumption of innocence and victims’ rights, Parliament has decided to carry out a thorough reform of the rules on granting release on licence.
The eligibility criteria for such a measure, which were considered overly restrictive, have been broadened. ... The fact remains that the prison system today appears quite helpless in dealing with long-term prisoners.”
43. Matters relating to long-term imprisonment and conditional release were addressed by the Committee of Ministers as long ago as 1976, when it adopted Resolution (76) 2 on the treatment of long-term prisoners:
“... I. Recommends that the governments of the member states: ...
9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted;
10. grant the prisoner conditional release, subject to the statutory requirements relating to time served, as soon as a favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release;
11. adapt to life sentences the same principles as apply to long-term sentences;
12. ensure that a review, as referred to in 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals; ...”
In its general report the sub-committee responsible for drafting the resolution stated:
“... it is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis.”
Beyond this aspect relating to human dignity, the Committee of Ministers pointed out in Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation that parole was one of the most effective means of reducing overcrowding.
44. Following on from Resolution (73) 5 on standard minimum rules for the treatment of prisoners, Recommendation No. R (87) 3 on the European Prison Rules takes the similar United Nations rules and adapts them for use at European level. A revised version of the rules was adopted by the Committee of Ministers on 11 January 2006 (Recommendation Rec(2006)2). Rules 102 (Objective of the regime for sentenced prisoners) and 107 (Release of sentenced prisoners) read:
“Objective of the regime for sentenced prisoners
102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”
“Release of sentenced prisoners
107.1 Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law-abiding life in the community.
107.2 In the case of those prisoners with longer sentences in particular, steps shall be taken to ensure a gradual return to life in free society.
107.3 This aim may be achieved by a pre-release programme in prison or by partial or conditional release under supervision combined with effective social support.
107.4 Prison authorities shall work closely with services and agencies that supervise and assist released prisoners to enable all sentenced prisoners to re-establish themselves in the community, in particular with regard to family life and employment.
107.5 Representatives of such social services or agencies shall be afforded all necessary access to the prison and to prisoners to allow them to assist with preparations for release and the planning of after-care programmes.”
45. These rules are to be read alongside Recommendation Rec(2003)22 of the Committee of Ministers to member States on conditional release (parole) (adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies) and Recommendation Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners (adopted on 9 October 2003 at the 855th meeting of the Ministers’ Deputies).
46. In their presentations of Recommendations Rec(2003)22 and Rec(2003)23 at the ad hoc Conference of Directors of Prison Administration and Probation Service organised by the Council of Europe (Rome, 25-27 November 2004), Ms S. Snacken and Mr P. Tournier gave an overview of legislation on life imprisonment and conditional release in the member States.
47. In her presentation on life sentences Ms Snacken stated:
“A majority of Council of Europe Member States make legislative provision for life sentences. The extent to which such sentences can be, and are in fact imposed, varies. Life sentences do not necessarily imply imprisonment for the remainder of natural life. Most countries make provision for a review of life sentences with the possibility of granting release from prison. Some countries impose a very long period of mandatory detention for lifers, e.g. 30 years in Estonia, 26 years in Latvia, 25 years in Poland, Slovakia and Moldova, 20 years in the Czech Republic, Albania, Romania and Turkey, while in others release is possible after 10 years, e.g. in Belgium, or 15 years in France, Germany, Luxembourg and Switzerland ...
Probably the most wide-ranging provisions for the use of life imprisonment are to be found in England and Wales. There, a life sentence is mandatory for murder and a discretionary life imprisonment can be imposed for other serious offences against the person. With mandatory life sentences, a tariff giving the earliest date at which conditional release may be granted is set. ‘Whole life tariffs’ mean that the imprisonment cannot be exhausted during the natural life of the prisoner. This tariff can be reviewed after 25 years. In addition, since 1997, an offender found guilty for the second time of serious sexual or violent crimes automatically receives a life sentence unless there are exceptional reasons for not imposing it (automatic life sentence).
By contrast, five European countries, Croatia, Norway, Portugal, Slovenia and Spain, make no legislative provision for life imprisonment. In Croatia, the most severe sanction is a sentence from 20 to 40 years that may only be imposed exceptionally. Conditional release may be granted after one-half, exceptionally one-third, of the sentence has been served. Three persons were sentenced to exceptionally long-term imprisonment between 1998 and 2001. In Norway, the most severe sanction is a determinate sentence of imprisonment for 21 years. Conditional release is possible after 12 years has been served. In Portugal, the maximum prison sentence is for 25 years, exceptionally for 30 years. Slovenian legislation provides for a maximum of 30 years but such a sentence has never been imposed to date. Prisoners serving more than 15 years may be conditionally released after three-quarters of the sentence has been served. In Spain the maximum sentence is imprisonment for 30 years. In Iceland, the legislation provides for life sentences but no such sentence has been imposed since 1940.”
Ms Snacken observed that there had been an increase in the number of long-term prisoners – those serving sentences of five years or more, according to the definition given in Rec(2003)23 – as a result of changes in crime policies. In western Europe this increase was linked to the growing number of convicted persons and the decreasing number of prisoners being released. These phenomena were combined with tougher policies on certain crimes in respect of which conditional release was granted under very restrictive conditions (for example, sexual, violent or drug-related offences). In central and eastern Europe the considerable number of long-term and life-sentence prisoners was attributable not only to the imposition of long sentences but also to the abolition of the death penalty.
48. As regards conditional release – “one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community” (preamble to Rec(2003)22) – the report by Mr Tournier compared the three models in use in Europe: the discretionary system, the release system and mixed systems in relation to shorter sentences. The discretionary release system was found in most European countries applying the principle of parole, including France. The system was related to the concept of individualisation (or personalisation), since by its very nature it excluded any possibility of automatic release. Mr Tournier observed that the main drawback of the discretionary system was the lack of explicit criteria for granting conditional release, producing the following effects:
“– disparities between decisions where several bodies are involved in deciding on conditional release (which is usually the case except in countries with a small number of inhabitants);
– unreliability of assessments of the likelihood of reoffending where performed without specialist scientific tools;
– uncertainty as to the date of release renders it difficult to make practical arrangements in advance;
– the above factors may undermine confidence in the system and reduce prisoners’ motivation to cooperate in observance of the conditions and requirements of supervision.”
The mandatory release system had existed in Sweden since 1998. Prisoners serving a fixed term of imprisonment had to be conditionally released after two-thirds of the sentence. The focus in this system was on personalisation of supervision (control and assistance measures) and on the conditions to be satisfied by the prisoner after release. The mandatory release system was above all intended to be egalitarian. According to the report, it was far from commanding unanimous approval and might be reconsidered by Parliament.
The mixed system combined the discretionary system for long sentences with the mandatory system for shorter ones. It was fundamentally pragmatic. An example was the system applied in England and Wales.
In any event, Recommendation Rec(2003)22 did not favour any one system over another and simply reaffirmed “the Council of Europe’s unambiguous support for the principle of conditional release – a planned, assisted and supervised reintegration in the community”.
49. On 15 February 2006 the Council of Europe’s Commissioner for Human Rights made public a report (CommDH (2006)2) on the effective respect for human rights in France. Under point (d) (“Need to put in place a rehabilitation policy”) of Part IV, concerning the prison system, the Commissioner noted: “... the public authorities have the specific responsibility of looking to each new prisoner’s future by clearly defining the main function of the prison sentence and adapting it so that every means is employed to guide every new arrival towards successful rehabilitation. This means above all preventing reoffending.”
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-a


ITEMID: 001-5350
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: XUEREB v. MALTA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Maltese national, born in 1952 and living in Naxxar, Malta. He is represented before the Court by Dr P. Galea and Dr M. Sciriha, lawyers practising in Valletta, Malta.
A.
The applicant applied to contest the local council elections in Naxxar which were to be held on 21 January 1994. The applicant stood as an independent candidate.
Following an objection by the Nationalist Party the Magistrates' Court disqualified him from standing in the election. On 14 January 1994 the Court of Appeal set aside this decision. The applicant went on to be elected Mayor of Naxxar.
The applicant was subsequently charged before the Court of Magistrates of, inter alia, failing to send to the Electoral Commissioner within sixty days of the election results a signed statement of his election expenses as required by Schedule Three of Act XV of 1993 on Local Council Elections. Another independent candidate was charged with the same offence. None of the other 200 candidates, all of whom represented the governing or opposition party, was charged although they had failed to submit the required statement.
The applicant appealed to the First Hall of the Civil Court. He stated he was the victim of discrimination since the police had not instituted proceedings against the other 200 non-independent candidates even though they all failed to file declarations on their election expenses. On 17 January 1996 the First Hall of the Civil Court rejected the applicant's application for a constitutional remedy on the grounds that he and the only other independent candidate had committed additional electoral offences. On that account the court ruled that the applicant could not be considered to have been discriminated against with reference either to the Maltese Constitution or to Article 14 of the European Convention on Human Rights taken in conjunction with Article 3 of Protocol No. 1 thereto.
The applicant appealed to the Constitutional Court. On 17 February 1999 the Constitutional Court rejected his appeal. The Constitutional Court ruled that the applicant was not in an analogous situation to the other 200 candidates as, unlike the latter, he had committed further serious offences linked to the conduct of the local election. There was accordingly a justification for the difference in treatment. The Court stated in this connection:
“This Court cannot agree that it is irrelevant that [the applicant and the other independent candidate] were charged with other crimes. These crimes, and the applicant is not contesting his prosecution for them, are crimes relating to [the applicant's and the other independent candidates'] behaviour during the electoral campaign involving either violation of the electoral law provisions or serious offences consequential on such violation. The Commissioner of Police was thus faced in [the applicant's and the other independent candidate's cases], with a situation of violation of a different and much more serious law than the law applicable to the two hundred other candidates. The Commissioner could not, rightly so, consider the applicant and these other candidates in pari conditione nor were they in a situation of like and like.'
... The Court is satisfied that in the present case the determining factor for differential treatment ... was not a quality of the person accused or his political convictions, but the nature and seriousness of the crimes he - and not the other candidates - was charged with.”
By letter dated 12 August 1999 the applicant's lawyer informed the Court that the criminal proceedings instituted against him had not yet been terminated.
B. Relevant domestic law and practice
Local councils in Malta operate within a framework defined by legislation enacted by the Maltese Parliament and derive their regulatory powers from parent legislation. They may make bye laws within their area of competence in exercise of the powers delegated to them by Parliament.


ITEMID: 001-81878
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HENDRIKS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicant, Mr Johannes Joseph Marie Elise Hendriks, is a Dutch national who was born in 1949 and lives in Vaals. He is represented before the Court by Mr J.W. Heemskerk, a lawyer practising in Maastricht.
On 16 March 2004, the applicant was arrested and taken into police custody (inverzekeringstelling) on suspicion of having committed rape, attempted manslaughter and/or intentional infliction of grievous bodily harm in that he – having twisted the victim’s arm behind the latter’s back and constrained the victim – had forcibly inserted a wooden ladle in the victim’s anus, resulting in a perforation of the colon. At the material time and for about twelve years, the victim, the applicant and the latter’s wife had been engaged in a longstanding tripartite relationship.
On 19 March 2004, after having heard the applicant, the investigating judge (rechter-commissaris) ordered the applicant’s detention on remand (inbewaringstelling) for a period of ten days. The reasons stated by the investigating judge were:
“It appears from the case-file that there are serious indications against the suspect (there is more than a mere suspicion).
There are weighty reasons of public safety that warrant detention on remand, namely:
detention on remand is necessary because it concerns an act which, according to the legal definition, attracts a prison sentence of twelve years or more whereas in addition this act has seriously rocked the legal order (the act is of an extraordinarily grave nature);”
On 25 March 2004, after having heard the applicant, the Maastricht Regional Court (arrondissementsrechtbank) ordered the applicant’s further detention on remand (gevangenhouding) for a period of thirty days, holding:
“The Regional Court considers that, after examination, it has appeared that the suspicion, indications and ground, which have led to the order for detention on remand (bevel tot bewaring), currently still exist.”
The applicant filed an appeal against the decision of 25 March 2004 with the ‘s-Hertogenbosch Court of Appeal (gerechtshof). The applicant did not challenge the existence of serious indications against him but argued that, given the context in which the facts had occurred, his release would not give rise to any social unrest which would justify keeping him in pre-trial detention. In his opinion, nobody would be shocked if he was released from pre-trial detention, as little publicity had been given to the criminal investigation and his arrest. The public prosecutor argued that the release of a suspect of rape always caused upheaval in society and certainly in this case where the victim had suffered considerable harm. The applicant’s appeal was dismissed on 10 June 2004 by the ‘s-Hertogenbosch Court of Appeal (gerechtshof). It held that the argument raised by the applicant failed to appreciate that his release could get wider publicity in the suspect’s surroundings, thus rocking the legal order.
In the meantime two further prolongations – of thirty days each – of the applicant’s detention on remand were ordered by the Regional Court on 22 April and 19 May 2004, respectively. Both times the Regional Court based its decision on the grounds given in its decision of 25 March 2004.
By judgment of 14 September 2004, following hearings held on 22 June 2004 and 31 August 2004, the Maastricht Regional Court convicted the applicant of rape. On the basis of reports drawn up by a psychiatrist and a psychologist who had examined the applicant, the Regional Court found that the applicant was suffering from an Attention Deficit Hyperactivity Disorder (ADHD), an alcohol addiction and an anti-social personality disorder and concluded that, at the time of the commission of the offence, the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree. In this light, the Regional Court decided to sentence the applicant to twelve months’ imprisonment, of which three months were suspended pending a two years’ probation period, less the time spent in pre-trial detention. In addition, it imposed a special condition (bijzondere voorwaarde) within the meaning of Article 14c of the Criminal Code (Wetboek van Strafrecht) to the effect that the applicant was to comply – during the probationary period – with directives given to him by the local section of the Netherlands probation and social rehabilitation service (reclassering), also if this would entail treatment for substance abuse. It lastly ordered the applicant to pay the victim, who had joined the proceedings as an injured civil party, 3,500 euros in compensation. Although the applicant could have filed an appeal against this judgment, he did not do so.
Article 133 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) defines pre-trial detention (voorlopige hechtenis) as deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming) or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP.
Article 67 of the CCP reads as follows:
“1. An order for pre-trial detention can be issued in case of suspicion of:
(a) an offence which, according to the law, carries a punishment of imprisonment of four years or more;
(b) one of the offences defined in Articles 132, 137c § 2, 137d § 2, 137e § 2, 137g § 2, 285 § 1, 285b, 318, 321, 323a, 326, 326a, 326c, 395 and 417bis and 420quater of the Criminal Code;
(c) one of the offences defined in:
- Article 175 § 2, part b, of the 1994 Road Traffic Act (Wegenverkeerswet);
- Article 30 § 2 of the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag);
- Articles 52, 53 § 1 and 54 of the Military Service (Conscientious Objectors) Act (Wet gewetensbezwaren militaire dienst);
- Article 31 of the Betting and Gaming Act (Wet op de kansspelen);
- Article 11 § 2 of the Opium Act (Opiumwet);
- Article 55 § 2 of the Weapons and Ammunition Act (Wet wapens en munitie);
- Article 46 of the 1995 Securities Transactions (Supervision) Act (Wet toezicht effectenverkeer).
2. The order can further be issued if no permanent address or place of residence of the suspect in the Netherlands can be established and he is suspected of an offence within the jurisdiction of the regional courts and which, according to the law, is punishable by imprisonment.
3. The previous paragraphs are only applied when it appears from the facts or circumstances that there are serious indications against the suspect.”
Article 67a of the CCP reads:
“1. An order based on Article 67 can only be issued:
a. if it is apparent from particular behaviour displayed by the suspect, or from particular circumstances concerning him personally, that there is a serious danger of absconding;
b. if it is apparent from particular circumstances that there is a serious reason of public safety requiring the immediate deprivation of liberty.
2. For the application of the preceding paragraph, only the following can be considered as a serious reason of public safety:
- 1o. if it concerns suspicion of commission of an act which, according to the law, carries a punishment of imprisonment of twelve years or more and the legal order has been seriously rocked by that act;
- 2o. if there is a serious risk the suspect will commit an offence which, according to the law, carries a prison sentence of six years or more or whereby the security of the State or the health or safety of persons may be endangered, or give rise to a general danger to goods;
- 3o. if it concerns suspicion of one of the offences defined in Articles 310, 311, 321, 322, 323a, 326, 326a, 416, 417bis, 420bis or 420quater of the Criminal Code, whereas less than five years have passed since the day on which, on account of one of these offences, the suspect has been irrevocably sentenced to a punishment or measure entailing deprivation of liberty, a measure entailing restriction of liberty or community service, and there is further a serious risk that the suspect will again commit one of those offences;
- 4o. if pre-trial detention is reasonably necessary for discovering the truth otherwise than through statements of the suspect.
3. An order for pre-trial detention shall not be issued if there are serious prospects that, in case of a conviction, no irrevocable custodial sentence or a measure entailing deprivation of liberty will be imposed on the suspect, or that he, by the enforcement of the order, would be deprived of his liberty for a longer period than the duration of the custodial sentence or measure.”
Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP). Pre-trial detention in the form of an order for detention on remand of a suspect may be issued by the investigating judge for a maximum duration of ten days (Articles 63 and 64 of the CCP).
Under Article 65 of the CCP, a subsequent prolongation of pre-trial detention may be ordered by the Regional Court in the form of an order for further detention on remand for a maximum duration of thirty days. In case the trial proceedings have not started within the thirty days’ validity of an order for further detention on remand, the Regional Court can prolong it twice, each time for a maximum of thirty days (Article 66 § of the CCP).
Article 69 § 1 of the CCP reads:
“An order for pre-trial detention may be lifted by the Regional Court. It may do so of its own motion or upon the request of the suspect, or – in so far as it concerns an order for ... further detention on remand – upon a proposal from the investigating judge or a request by the public prosecutor.”
Article 71 of the Code of Criminal Procedure, in so far as relevant, states:
“1. Within a maximum of three days after its execution, the suspect may file an appeal with the Court of Appeal against a decision of the Regional Court ordering further detention on remand ...
2. Within the same time-limit, the suspect may file an appeal against an extension of an order for further detention on remand, but only if no appeal has been filed by him against the order for further detention on remand or against a previous prolongation order ...”
Article 87 §§ 2 and 3 of the CCP, in so far as relevant, provides:
“2. The suspect, who has requested for the first time to suspend (schorsing) or to lift (opheffing) an order for pre-trial detention, may file an appeal with the Court of Appeal against a negative decision on that request. The suspect, who has filed an appeal against a negative decision on a request for suspension, cannot subsequently file an appeal against a negative decision on a request to lift a pre-trial detention order. The suspect, who has filed an appeal against a negative decision on a request to lift a pre-trial detention order, cannot subsequently file an appeal against a negative decision on a request for suspension of pre-trial detention.”
The offence of rape, as defined in Article 242 of the Criminal Code (Wetboek van Strafrecht), attracts a prison sentence not exceeding twelve years or a heavy fine.


ITEMID: 001-84729
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BUSKOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Ms Hana Bušková, is a Czech national who was born in 1955 and lives in Jindřichův Hradec. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 March 1992 V. and T. brought restitution proceedings against the applicant.
The case was dealt with fourth times by the Jindřichův Hradec District Court (okresní soud), five times by the České Budějovice Regional Court (krajský soud) and once by the Supreme Court (Nejvyšší soud). The Regional Court’s last judgment of 21 October 2004 became final on 16 November 2004. The applicant was ordered to surrender three eights of the property to V.
On 12 January 2005 she filed an appeal on points of law (dovolání) which seems to be still pending before the Supreme Court.
On 22 March 2004 the applicant filed an action for termination and distribution of the joint ownership of the property.
In a judgment of 25 March 2005 the District Court assigned the whole property to the applicant who was ordered to pay CZK 1,687,500 (EUR 63,212) to V. in compensation for the latter’s share.
Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.
On 27 April 2007 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention.
Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.


ITEMID: 001-95138
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GANDRUD v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Aron Gandrud, is a Norwegian national who was born in 1970 and lives in Espeland, near Bergen. He is represented before the Court by A. Kayser, a lawyer practising in Bergen.
In 1993 the applicant married Ms S.M.L., a national of the United States of America (USA) who was born in 1968. Together the couple got two sons, A. and T., who were born respectively in November 1995 and August 1997. Since the couple separated in 1997 the relation between the applicant and S.M.L. has been characterised by tense conflict, lack of cooperation and mutual distrust which they had sought to have solved by US and Norwegian courts. This involved disputes about such matters as parental responsibilities, daily care and access with respect to the children and prohibition on the parents to travel with the children abroad.
In July 1998 the Bergen City Court concluded that, in view of the high level of conflict, S.M.L. should be the sole holder of parental responsibilities. It decided that the children should live permanently with her and granted the applicant certain access rights. In November 1999, while an appeal was pending before the Gulating High Court, the parties concluded a judicial settlement agreement according to which the parents should share the parental responsibilities, the mother should continue to assume the daily care and the father should have certain access rights.
Both the applicant and S.M.L. had a difficult upbringing. At the age of 12 the applicant moved from his mother to live with his father. S.M.L. started abusing drugs at the age of 13.
In 1998 the applicant met and started cohabiting with Ms K.B. and together they got two children, born respectively in December 1999 and July 2001. He has access to them twice a week. In May 2003 the applicant married Ms H., a marriage that was turbulent and lasted only for a few months. Since 2004 he has been living with Ms M. and her five boys from two earlier relationships. The boys have had access to their respective fathers.
Since 1997 the applicant has been occupied full time at home, except for periods when he worked in a support home for mentally disabled persons. He has also worked with computer programming.
In 2000 S.M.L. met Mr L. and they married the same year. They got two children, Z. (born in November 2000) and C. (born in July 2005). L. was educated as engineer and was formerly employed in the off shore oil industry. Because of his back problems and S.M.L.’s drugs abuse, he stayed at home as from 2005. They lived together with their two common children and with the applicant’s and S.M.L.’s two children.
S.M.L.’s drugs abuse had involved most types of narcotic substances from hashish to heroin. She had been off drugs for shorter and longer periods, notably for several years before Z. was born in 2000. As from March 2003 her drugs abuse resumed, involving injections of heroin. In November 2003 S.M.L. was hospitalised for detoxification but left after five days. After six to seven weeks she continued to intoxicate herself. In April 2004 she was again hospitalised for detoxification, for a period of 10 to 12 days. From September to December 2004 S.M.L. was again hospitalised for the same reason. In the spring of 2004 the police caught S.M.L. in possessing drugs and she was imposed a fine. When she was absent from home it was L. who looked after the children, including A. and T. when they were not with the applicant.
At some time during the winter or spring of 2005 S.M.L. found it necessary because of her drugs abuse problem and pregnancy with C. to transfer the daily care of T. and A. to the applicant. The boys then moved to the home of the applicant and M. and her five children. According to the applicant this happened in January 2005; according to S.M.L. it occurred in March 2005.
S.M.L. had several relapses with drugs abuse, the latest in May/June 2005. In June 2005 she was compulsorily committed to a detoxification centre for six to seven weeks until she gave birth to C. so that she should avoid taking drugs during the last part of her pregnancy. Thereafter she stayed at home under supervision by the child welfare services, involving two home visits per week by those services and her giving several urine samples per week to them for monitoring.
Both A. and T. had special care needs. A. was alert, somewhat serious and pensive, and had over the years experienced difficulties at school in terms of adaptation and social relations with other children. He had been seriously burdened by the parental conflict, disruption in contacts with key persons, his mother’s drugs abuse problem and the negative focusing by one parent on the other. He was struggling with concentration and performance at school. He had a need for security, stability and freedom from involvement in the parental conflict. As from October 2005 A. received regular counselling from a psychologist.
T. was a multi handicapped child, who had a brain damage and was diagnosed as suffering from the Lennox-Gastaut Syndrome (one of the most serious forms of epilepsy) and who since the age of one had had epileptic fits. He also suffered from serious mental disability, had great deficiencies in his functional and cognitive development and his mental faculties corresponded to those of a child less than one year of age. He was totally unable to assess the consequences of his acts and therefore had to be followed constantly. At times T. had been attached or tied and equipped with a helmet in order not to cause injury to himself or to others. The support apparatus had provided S.M.L.’s home with a sprinkle bed so that T. needed not be secured or attached. He went to a specialised school and spent forty days and nights every six months at a support centre with specialised personnel.
In August 2005 S.M.L. wished to resume the daily care for T. and A. A returned to S.M.L. but T. continued to live with the applicant. On 6 September 2005 the applicant collected A. at his school and objected to them moving back to S.M.L.. From the same date until 20 and 25 October 2005, respectively, the applicant kept A. and T. from going to school and refused S.M.L. to have access to them.
In the meantime, on 29 August 2005, the applicant made a request to the Bergen City Court for an interlocutory injunction to the effect that A. and T. should live permanently with him and that S.M.L. should be granted a right of access under supervision. On 27 September 2005 S.M.L. requested an interim decision for the daily care and the parental responsibilities in respect of the children to be granted solely to her and for the applicant to be accorded access rights. On 19 October 2005 the City Court held a preparatory meeting without the parties succeeding in reaching an agreement on temporary arrangements. On 24 October 2005 the applicant claimed the daily care and joint parental responsibilities and suggested that S.M.L. be granted access rights. After several writs had been submitted, S.M.L. filed a new request for an interim decision on 28 October 2005.
On 17 November 2005 the City Court issued an interim order that S.M.L. should assume the daily care until a decision had been taken in the main proceedings and that, until such time, the applicant should not have access to A. and T.
The City Court held an oral hearing from 5 to 7 December 2005, during which both parties represented by a lawyer and twenty-one witnesses were heard. By a judgment of 22 December 2005 the City Court, sitting with one professional judge and two expert lay judges (both psychologists) ordered that S.M.L. should be the sole holder of parental responsibilities and should assume the daily care in respect of A. and T. It granted the applicant access rights at the ordinary level.
By way of introductory note, the City Court remarked that both parties appeared genuinely fond of their children and wishing them well. As a starting point, both parents seemed able to care for the children in a satisfactory manner.
The City Court further found it established that on the whole both children had had regular contacts with both parents after their separation except for certain periods when the mother and the father had denied one another access to the children. The children were also well attached to the applicant even though it was mainly the mother who, except for a period in 2005, had assumed the daily care for them since the break-up of the parents’ relationship in 1997. The children were familiar with both parents’ housing environment, their new partners and step brothers and step sisters. A risk of change of environment could therefore not be a decisive consideration.
It was difficult to predict who of the parents would contribute to giving the children the greatest possibility to have contact with both parents. Each of them had at periods refused the other to have access to the children. The level of conflict between the parents had made it difficult for them to communicate and cooperate. The conflict, which could be attributed to both parties, had had damaging effects on A., for which they both were responsible, according to Psychologist G.’s witness statement. Both parents were responsible for reducing the level of conflict.
The City Court considered that S.M.L. was just as able as the applicant to take care of T.’s special needs resulting from his brain damage and epilepsy. It attached weight to the fact that the children for most of their lives had lived with their mother, expect for a longer period in 2005 when they had lived with their father according to an agreement between the parents.
The City Court observed inter alia that witnesses of the child welfare services and the Sudmanske Family and Child Centre had stated that there was no suspicion that S.M.L. currently abused drugs and that it was considered that she was able to assume the care in a satisfactory manner. The City Court found established that her urine samples had proven negative and she had not abused drugs for the last six months. At present it did not appear that S.M.L. had a drug abuse problem that could have a decisive effect on her ability to assume the care. There was however uncertainty as to whether she in future would manage to refrain from taking drugs. Until the summer of 2006 the child welfare services would continue to supervise the conditions in her home.
The City Court noted that A. had clearly stated to the presiding judge a wish to live with his mother together with T. Since A. was 10 years old his opinion should carry great weight. T., on the other hand, had a brain damage and it had therefore not been possible to hear his views.
The City Court further noted that from 6 September 2005 the applicant had kept the children back from school and their mother for 1½ month. It found it particularly unfortunate that he in this way had interfered with their right and duty to receive education. The City Court did not accept his explanation that he did not want the children to be used as a weapon in the parental conflict; his conduct suggested that he was unable to put his children’s interests before his own interests.
Considering the case as a whole, and having regard to the best interests of the children, the City Court held that they should live permanently with S.M.L. In addition to the applicant’s above-mentioned conduct in September 2005, the City Court attached decisive weight to A.’s wish to live with his mother and to the fact that, with the exception of a period in 2005, for most of the time since the couple’s separation in 1997 she had assumed the care for the children.
As regards the applicant’s access to the children, the City Court found no special reasons pertaining to the applicant suggesting that he should not have access to them. After conversations with A., witness expert, Psychologist G. had stated that access to the other parent would not be negative for him provided that he had a foreseeable and secure care environment. A. had also said to the presiding judge that he wished to have access to his father.
Against this background, the City Court granted the applicant access to A. and T. at the ordinary level from Friday night to Monday morning every other week-end, two weeks every summer, every other Christmas and Easter, every other autumn and winter holiday. It found no grounds for making supervision a condition for access.
Finally, the City Court held that it would be in the children’s best interests that S.M.L. be the sole holder of parental responsibilities. In this connection it placed weight on the parents’ inability to communicate and cooperate due to the very tense and deadlocked conflict between them. Such cooperation was absolutely necessary especially in relation to the medical treatment and school education of T., who suffered from severe brain damage. It also had regard to the fact that the applicant as late as August 2005 had changed T.’s school without the mother’s agreement and had kept both children away from school for a longer period in the autumn of 2005.
Following the City Court’s judgment, the applicant’s access to A. and T. was implemented accordingly until June 2006. In view of two reports of concern, one made by A.’s school on 1 June 2006 and another by T.’s school on 2 June 2006, S.M.L. and her lawyer asked for a meeting with the applicant and requested an explanation. The applicant responded that he did not wish to have any such meeting before the appeal hearing, whereupon S.M.L. denied him access. No access took place until the High Court’s judgment. The precise contents of these reports of concern have not been disclosed to the European Court. According to the applicant’s appeal submissions to the Supreme Court, S.M.L.’s refusal to let him have access to A. and T. after June 2006 was essentially due to his alleged failure to follow-up adequately an episode concerning damage to one of A.’s teeth during his stay at the applicant’s home. A little corner of the tooth had broken off and this the applicant had incidentally mentioned to S.M.L. once he met her in the local grocery.
The applicant appealed against the above judgment to Gulating High Court. After holding an oral hearing from 19 to 22 September 2006, the High Court, sitting with three professional judges and two expert lay judges (one psychologist and one psychologist specialist), by a judgment of 5 October 2006 upheld the City Court’s judgment with regard to daily care and parental responsibilities and reduced the applicant’s access rights (applying the relevant provisions of the Child Act 1981 (barneloven)). The High Court saw no reason to hear anew A.’s views on where he should live and on access while noting that neither of the parties had wished it to do so.
In its reasoning, the High Court pointed out that an assessment ought to be made of the best interests of the children in light of the case as a whole. This assessment ought to take into account such factors as who of the parents would be most able to provide the best physical and psychological care for the children, including their following-up in the short term and long term, draw limits, shield them against the parental conflict and contribute to the best possible parental contact. Regard should also be had to any risk of change of environment and the need to ensure stable conditions of upbringing. Since both children had special care needs, especially T. who would need public support measures, it would be of particular importance who of the parties was able to understand the children’s needs, to cover those needs and to do so in cooperation with the public services.
Since in the present there was a judicial settlement agreement of 1 November 1999, whereby S.M.L. should assume the daily care, the parents would jointly assume parental responsibilities and the applicant would have access rights basically at an ordinary level, the question was whether concrete and demonstrable reasons for departing from this arrangement.
Since they were born, the children had mainly lived with S.M.L., apart from a period in 2005.
The High Court found that there were no decisive reasons for altering the children’s place of residence. Since S.M.L. had got her drugs abuse problem under control, her willingness and ability to provide the children with the best possible care and follow-up did not leave much to be desired. She had cooperated well with the social support apparatus and did all she could in order to provide the best possible conditions for the children’s upbringing. An additional positive factor was her husband.
As regards the applicant, the High Court had doubts about his abilities to assume the care for the children. There was no doubt that he was very fond of his children and wished to give them the best he could, both emotionally and materially. But it was clear that his cooperation with public institutions had not been of the best and that this had led him to act in a somewhat rash manner. In this connection the High Court referred to the fact that, without having conferred with S.M.L. and without having sought professional advice, he had changed school for T. because of his disagreement with the school. This had been especially unfortunate for T., who due to his handicap had special needs for stability and security. Thereafter, he had kept both children away from school.
The applicant’s cohabitation with M. and her children was a positive factor. M. appeared to be a caring person both able and willing to contribute positively to the applicant’s children. However, in view of the historical background, it would be premature to say anything about how stable this relationship was.
Both parties had refused one another access to the children and were in this respect on an equal footing. In conferring the daily care of the children to S.M.L., the High Court presupposed that she would actively contribute to the access arrangements being implemented in the best possible manner for the children. In the interest of the children she ought to comment on their access with the applicant in a positive manner in their presence. The level of access fixed below would make it difficult for her to refuse access at her own whim. This was so especially for as long as the applicant was cohabiting with M., who in the worst case scenario would represent a safety valve for the children’s welfare.
What militated particularly against S.M.L. being a care person for the children was her very negative attitude towards the applicant, both in her conduct vis-à-vis him and the way she had commented on him vis-à-vis the children. She had in addition contacted persons closely related to the applicant and had made very derogatory remarks about him. Her conduct in this regard could not be justified by her negative experiences of the applicant.
The High Court further had regard to A.’s wishes and found no reason for separating the brothers who had a close contact. As regards housing conditions, family and social network, there was no information permitting to distinguish between the parents.
In light of the above considerations, the High Court upheld the City Court’s conclusion that the children should live permanently with their mother.
As regards parental responsibilities the High Court observed that it seemed unlikely that the parents’ ability and willingness to cooperate would improve. Both children, especially T., had particular needs and the parent assuming the daily care would to a large extent have to cooperate with different instances of support.
As to the further question regarding the applicant’s access to the children, the High Court unanimously agreed that the arrangement under the 1999 judicial settlement agreement and the City Court’s judgment ought to be amended.
With respect to T., the High Court observed that support measures by the child welfare services had been granted involving him spending every fourth week in a support centre. In view of his need for stability and foreseeability, it would be a burden to him if he were to have access to the applicant at the ordinary level. Because of T.’s mental condition, it could be questioned to what extent he was able to understand and enjoy this. Moreover, the parents were unable to cooperate about T. and to agree on how he should be treated. When staying with the applicant, T. would experience a different regime from that of S.M.L. and the support centre. This he would perceive as being very negative. Therefore the High Court considered that the applicant’s access should be reduced to one Sunday from noon to 6 p.m. every four weeks. Since he would stay every four weeks at the support centre, the applicant’s access should take place on the Sunday two weeks after so that he would spend every other week-end at S.M.L.’s home.
With respect to A., the High Court was divided (five votes to one). The majority considered that in view of A.’s particular need for stability and foreseeability after the long standing parental conflict, his access to the applicant would be so damaging that it ought to be restricted. In this connection the High Court referred to the applicant’s having been unable to care for A.’s needs in an adequate manner. It decided that he should have access to A. from Saturday 10 a.m. to Sunday 6 p.m. every four weeks.
The minority (one of the professional judges) did not consider A.’s access to the applicant as being negative for A. S.M.L.’s negative focussing on the applicant made it necessary to enable A. to get the opportunity to know his own father. That the applicant currently lived with M and her five children would also be an asset for A., who in addition would get the opportunity to know his two half-siblings whom the applicant had got with Ms K.B. and to whom the applicant had access every other week-end. As to the argument that A. had been tired after spending week-ends with the applicant, the minority considered that access should end on Sunday at 6 p.m. but should continue to start on Friday after school and otherwise follow the ordinary arrangement provided for by law.
On 6 December 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal. In so far as the appeal concerned the application of the law on the issue of daily care, the Committee found it obvious that the appeal had no prospects of success. As for the remainder, the Committee did not consider that a different conclusion could be reached without hearing oral evidence anew on a potentially decisive point or that hearing the appeal was warranted by the general interest or other special reasons.


ITEMID: 001-4541
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ERDAGÖZ ET ERDAGÖZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicants, born in 1955 and 1975 respectively, are Turkish nationals who are living in Kars. The first applicant is the father (M.E.) of the second applicant (D.E.).
A.
The facts of the case, as presented by the applicants, may be summarised as follows.
On 17 January 1995 D.E. was arrested by policemen and taken to the Kars Security Directorate. He was charged with disseminating illegal propaganda for the PKK.
He was placed in custody to be questioned by policemen. He alleged that he was hosed with pressurised water, that electric shocks were administered to his body and was prevented from sleeping. He was subsequently requested to give information and to admit the charges.
On the same day policemen from the Kars Security Directorate searched the applicants’ house with the consent of M.E.’s wife and on the orders of the principal public prosecutor at the Erzincan State Security Court.
On 18 January 1995 a doctor at the Kars State Hospital examined D.E. A medical report was prepared, which stated that he bore no trace of illtreatment and that he was fit. He was then released.
On 30 May 1995 the principal public prosecutor at the Erzincan State Security Court issued a decision of non-prosecution in relation to D.E. The public prosecutor considered that he had not been involved in the PKK and that his acts did not constitute the offence of illegal propaganda.
On 21 September 1995 the applicants filed a petition with the Kars public prosecutor’s office. They complained that the policemen had unlawfully searched their house. D.E. further complained that the policemen had tortured him during his detention in custody.
On 11 June 1996 the Kars public prosecutor issued a decision of non-prosecution in relation to the policemen at the Kars Security Directorate. He considered that there was insufficient evidence on which to institute criminal proceedings against the policemen.
On 23 July 1996 the applicants filed an objection with the Ardahan Assize Court against the Kars public prosecutor’s decision of 11 June 1996.
On 27 August 1996 the Ardahan Assize Court dismissed the applicants’ objection. The court stated, inter alia, that
“...the complainants Mehmet Erdagöz and Devrim Erdagöz complained that the latter had been tortured during his detention in police custody. However, the medical reports of 18 and 19 January 1995, prepared by Dr. Ömer Topçu from the Kars State Hospital, stated that Devrim Erdagöz bore no trace of ill-treatment and that he was fit.
In his petition of 21 September 1995 Mehmet Erdagöz further complained that his house had been searched by use of force... It has been understood that the house search report of 18 January 1995 bore the signature of his wife Mrs Güleser Erdagöz who had consented to the search of her house. It follows that the decision of non-prosecution is lawful and the objection should be rejected....”


ITEMID: 001-113430
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF PETKOVA AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 4. The applicant, Ms Tsvetana Stoycheva Petkova, was born in 1932 and lives in Plovdiv. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
5. The applicant and her two sisters inherited their mother’s estate after her death in 1972. In 1991, following the adoption of the Agricultural Land Act (see paragraph 28 below), the applicant sought, on behalf of all heirs, restitution of a plot of land measuring 6,500 square metres.
6. In a decision of 2 December 1994 the Plovdiv agricultural land commission found that the land, which had in the meantime been included in the urban territory of Plovdiv, had been built upon and could not be subject to restitution. As no appeal was lodged against that decision, it became final shortly afterwards.
7. Nevertheless, in 1995 the land commission advised the applicant to seek from the municipality and submit additional documents, whereupon it would re-examine the possibility for partial restitution “in actual boundaries” and, if appropriate, modify its decision of 2 December 1994. After some delays, which in their submissions to the Court the parties imputed to each other, the applicant submitted the additional documents in 2000. However, in a letter dated 8 November 2000 she was informed that the decision of 2 December 1994 could no longer be modified as the twoyear statutory time-limit during which it had been possible to do so had expired.
8. The applicant brought an action seeking nullification of the decision of 2 December 1994. On 6 July 2001 the Plovdiv District Court dismissed the action. The applicant did not appeal against that judgment.
9. The parties have not informed the Court of the relevant developments afterwards. At the time of her latest communication to the Court in June 2011 the applicant had not yet received the compensation in lieu of restitution she was entitled to under domestic law.
10. The first applicant, Ms Radka Yovcheva Ivanova, a Bulgarian national who was born in 1910, passed away on 2 December 2006. She was inherited by the second and third applicants, Ms Maria Zhekova Mincheva and Mr Atanas Zhekov Tanev, Bulgarian nationals who were born in 1932 and 1929 respectively and who stated that they wished to continue the application in her stead. On 17 January 2011 Mr Tanev passed away too. On 30 October 2011 his heirs, Ms Margarita Ganeva Slavova and Ms Rumyana Atanasova Taneva, informed the Court that they wished to continue the application in his stead. The second applicant, Ms Mincheva, as well as Mr Tanev’s heirs, live in Stara Zagora.
11. In 1991 and 1992 the applicants requested the restoration of their title to agricultural land formerly owned by an ancestor of theirs. In two decisions dated 23 March 1994 and 3 May 1995 the Radnevo agricultural land commission found that the applicants should receive compensation in lieu of restitution for 34,000 square metres of land in the area around Radnevo and the village of Golyama Detelina.
12. In two further decisions dated 19 April 2000 and 18 April 2001 the land commission determined the value of the compensation that the applicants were to receive.
13. However, following appeals lodged by the applicants, by judgments dated 16 April 2001 and 17 December 2002 the Radnevo District Court found the last two decisions to be null and void on the ground that the land commission had committed material breaches of the relevant procedural rules.
14. On 10 May 2002 the applicants filed those judgments with the land commission and demanded that it adopt new decisions concerning their compensation.
15. On 28 March 2005 and 6 April 2005 the Radnevo Agriculture and Forestry Department (former land commission) adopted new decisions concerning the applicants’ compensation. However, on an appeal by the applicants, by judgments dated 8 February and 1 March 2006 the Radnevo District Court found these decisions null and void.
16. On 14 May 2007 the Agriculture and Forestry Department allotted municipally-owned land to the second and third applicants in compensation for their plots in Golyama Detelina. The second applicant, Ms Mincheva, lodged an appeal, arguing that the land was not of good quality. In a judgment of 7 January 2008 the Radnevo District Court quashed the impugned decision and remitted the case for fresh consideration, finding that the decision had been based on the previous decisions of 19 April 2000 and 6 April 2005 (see paragraphs 12 and 15 above), which had already been found to be null and void.
17. In a letter dated 15 December 2010 the Agriculture and Forestry Department (now called Agriculture Department) stated that it had not adopted any new decision concerning the applicants’ restitution claims “because [it] had not received a court decision [...] of 7 January 2008”.
18. In its submissions on the case of February 2011 the Government admitted that no compensation had yet been provided to the applicants and their heirs.
19. The applicant, Mr Dimitar Ognyanov Yankov, is a Bulgarian national who was born in 1942 and lives in the village of Herakovo. He was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practicing in Sofia.
20. The applicant’s grandfather, who passed away in 1952, owned agricultural land, which was expropriated after 1945. The applicant is entitled to one ninth of his grandfather’s inheritance.
21. In February 1992 the applicant and the remaining heirs requested the restitution of nine plots of land in the village of Hrabarsko totalling 23,600 square metres.
22. In a decision of 11 July 1996 the Bozhurishte agricultural land commission found that the claimants were entitled to compensation in the form of other land or compensation bonds.
23. In another decision of 16 February 2007 the Bozhurishte Agriculture and Forestry Department (the former agricultural land commission) allotted to the heirs of the applicant’s grandfather a plot of 14,870 square metres as partial compensation for the nine plots. At the time of the applicant’s latest communication to the Court in June 2011 he had not yet received compensation for the remaining land.
24. On an unspecified date the heirs of the applicant’s grandfather requested the restitution of other land in the village of Herakovo.
25. Apparently, the Bozhurishte land commission refused restitution and the heirs of the applicant’s grandfather appealed to a court.
26. In a final judgment of 10 March 1998 the Slivnitsa District Court held that the heirs of the applicant’s grandfather were entitled to the restitution through a “land redistribution plan” of several plots of land totalling 36,100 square metres of land. On 15 July 1998 the judgment of 10 March 1998 was amended to include an additional 15,950 square metres of land.
27. On unspecified dates the applicant and the remaining heirs of his grandfather were allotted land totalling 33,300 square metres. At the time of the applicant’s latest communication to the Court in June 2011 he and the remaining heirs had not yet been allotted the remainder of their land, measuring 18,750 square metres, or compensation in lieu thereof.
28. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи) was enacted in 1991. Its provisions concerning the restitution of agricultural land, the possibility of compensation in lieu of restitution, and the relevant procedures have been summarised in the Court’s judgments in the cases of Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-88 and 92-92, 7 January 2010) and Vasilev and Doycheva v. Bulgaria (no. 14966/04, §§ 19-23, 31 May 2012).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1