ITEMID: 001-107976
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: OBG LTD. AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The first applicant, OBG Limited, is a limited company registered in England. The second applicant, OBG (Plant and Transport Hire) Limited, is also a limited company registered in England. They are companies in liquidation. They are referred to throughout as “OBG”.
2. The third applicant, Ronald Robinson, is a British national who was born in 1946 and lives in Manchester. The fourth applicant, Ric Traynor, is a British national who was born in 1959 and lives in Manchester. The third and fourth applicants were appointed as liquidators of the first and second applicants in 1992.
3. The four applicants are represented before the Court by Mr J Alderton, a lawyer practising in Leeds with Hammonds LLP, assisted by Mr J. Randall QC and Mr M. Brown, counsel.
4. The United Kingdom Government (“the Government”) were represented by their Agents, Ms H. Upton and Ms J. Neenan of the Foreign and Commonwealth Office.
5. In English law, a debenture is a document creating or acknowledging the terms of a loan. It may be secured by a charge, which is an interest in a company’s property that is created in favour of a creditor. One type of charge is a “floating” charge, which does not attach to any specific assets.
6. In English company law, administrative receivership is the process by which administrative receivers are appointed in respect of a company which is unable to meet its debts under a debenture. Administrative receivers may be appointed by the holders of any debenture which is secured by a charge (see section 29(2) of the Insolvency Act at paragraph 58 below). Thus, administrative receivership is essentially a debt enforcement mechanism for a debenture holder. When administrative receivers are appointed, their primary duty is to the debenture holder, and their function is to ensure that, through the disposal of the company’s assets, they raise enough money to pay the amount due to the debenture holder.
7. Administrative receivership is to be distinguished from two other processes which may apply to a company which is experiencing financial difficulties: liquidation and administration. Liquidation (or winding up) is the process by which an insolvent company is dissolved and its assets sold for the benefit of its creditors. Administration is a process which allows for the appointment of an external manager to run a company and manage its assets. It differs from administrative receivership in that it is done for the benefit of the company and its general creditors, not for a particular debenture holder. It is also different from liquidation in that its goal is to ensure the survival of the company.
8
9. OBG conducted a major utilities construction business in the early 1990s. Its major customer was North West Water Limited (“NWW”), which accounted for at least 75% of its turnover.
10. OBG’s business with NWW was based on a series of contracts, each of which contained a clause (clause 63) which meant that, if OBG went into liquidation, NWW could expel OBG from its sites and employ another contractor to do the work. Under clause 63, if the other contractor did the work more cheaply than OBG, then the savings made by NWW became due to OBG. If the other contractor cost more, then OBG had to pay the excess to NWW.
11. On 6 March 1991, OBG mortgaged its assets and undertakings in favour of the Royal Bank of Scotland PLC (“RBS”), by means of a debenture. The debenture was secured by a floating charge over OBG’s assets and undertakings.
12. In March 1992, a dispute arose between OBG and NWW, in which NWW alleged that it had been overcharged by OBG. As a result, NWW suspended payments to OBG and sought repayment of sums already paid to OBG under the contracts. This suspension of payments meant that OBG was unable to pay the debts which it owed to its sub-contractors, suppliers and other creditors. This included its debts to one of its major sub-contractors, Centriline Limited (“Centriline”), of over GBP 1,000,000.
13. Therefore, to ensure the continued solvency of OBG and Centriline, OBG entered into negotiations with Centriline for a secured loan. Those negotiations were inconclusive and no loan agreement was concluded between OBG and Centriline. However, in the course of the negotiations Centriline’s solicitors, Penningtons, drew up documents arranging for the transfer of the RBS debenture from RBS to Centriline. The documents were only executed by RBS and Centriline.
14. The difficulty with these arrangements was that OBG had owed nothing to RBS under the floating charge in the debenture. Consequently, no secured debt was assigned to Centriline with the debenture. Nonetheless, Centriline was advised by Penningtons that it could attach OBG’s unsecured debts onto the debenture.
15. Pursuant to Penningtons’ advice, on 8 June 1992 Centriline appointed administrative receivers over all of OBG’s assets and undertakings. It did so in order to recover the money which it was owed by OBG.
16. The applicants maintained that, because Centriline could not attach its unsecured debts to the debenture, Centriline had no lawful authority to take over the rights of RBS under the debenture. Therefore, it had no right to appoint administrative receivers to recover the money that it was owed by OBG.
17. The receivers also took legal advice from Penningtons and were told by Penningtons that their appointments were valid. Pursuant to that advice, on 9 June 1992, the receivers took possession of all OBG’s assets and business. The receivers negotiated with NWW for the release of funds owed by NWW to OBG, in order to fund future activity. However, these negotiations were also unsuccessful. Consequently, on 12 June 1992, the receivers instructed OBG’s staff and contractors to cease all work due under the contracts between NWW and OBG. On the same date, the receivers also terminated the majority of the OBG’s contracts with its staff and contractors.
18. The receivers then realised OBG’s assets. They did so by selling its land, plant and equipment; negotiating the settlement of its claims under its contracts with NWW; completing, assigning or abandoning its contracts with other customers; collecting its book debts; and taking the credit balance in its bank account. In so doing, the receivers realised a total amount of GBP 1,087,000.
19. The negotiations with NWW resulted in an agreement that NWW would pay OBG GBP 400,000 in full and final settlement of all claims under the contracts. This agreement was signed in August 1997 by NWW and by the receivers on behalf of OBG, with the concurrence of its liquidators. The entire sum realised by the receivers was used to repay OBG’s debt to Centriline and to pay the fees and expenses of the receivers.
20. Having no further assets with which to pay their remaining creditors, OBG’s directors called a meeting with their creditors on 29 July 1992, at which resolutions were passed to wind up OBG and to appoint liquidators. On that date, it is estimated that OBG owed its creditors, excluding Centriline, approximately GBP 4,000,000.
21. OBG’s sole remaining asset was a claim against Centriline and the receivers for the unlawful appointment of the receivers and the receivers’ subsequent realisation of its assets.
22. Consequently, and with their creditors’ approval, OBG commenced proceedings on 19 October 1995 against Centriline and the receivers, claiming that the appointment of the receivers had been unlawful and seeking damages.
23. However, by this date, Centriline was neither solvent nor trading, and went into liquidation on 24 April 1996. It did not, therefore, take an active part in the proceedings commenced by the applicants. Penningtons were subsequently added as defendants in the proceedings.
24. Prior to the first hearing in the High Court, Penningtons admitted that their advice to the receivers, namely that their appointment had been valid, had been negligent and that Penningtons were accordingly liable to the receivers for any loss resulting from their advice.
25. By order dated 31 January 2001 and a written judgment of 27 April 2001, the High Court declared that the appointment of the receivers was invalid. It ordered the receivers to pay damages to be assessed at a later date.
26. At this stage of proceedings, OBG abandoned a claim it had made for an “account”. This is a claim requiring a party to account to another party for his dealing with property which has been held under a “constructive trust”. (A constructive trust exists, for example, in respect of the assets of a company in receivership.)
27. Instead, OBG claimed damages inter alia for trespass and wrongful interference with its property, and loss and damages suffered as a result of the receivers’ invalid appointment.
28. The basis of OBG’s claim was that, but for the invalid appointment of the receivers, OBG would have obtained orders for administration. OBG further claimed that, if orders for administration had been obtained, it would have survived as a business.
29. Alternatively, OBG claimed there would have been a better realisation of its assets, particularly in relation to the value of its contracts with NWW. This was because it had become apparent, through the disclosure of previously undisclosed documents by NWW, that, in the years after 1992, NWW had made substantial savings when it gave OBG’s work to another contractor. Accordingly, by operation of clause 63 of the contracts between OBG and NWW (see paragraph 9 above), the fact that OBG had gone into receivership meant that the savings made by NWW became due to OBG.
30. In later pleadings OBG also alleged that the receivers had committed the tort of conversion (a tort involving the misappropriation of property: see paragraph 59 below). OBG also alleged that this tort had occurred in respect of both its “chattels” (tangible assets other than freehold land) and its “choses in action” (intangible assets such as contractual rights).
31. In the course of proceedings it was made clear by OBG that its claim for damages was based on the valuation of the business at 9 June 1992 (the date on which the receivers took over). Its claim was not that the receivers were in breach of the duties they would have owed to OBG had they been validly appointed.
32. OBG also pleaded that these torts were committed on 9 June 1992. This had the consequence that the damages which OBG sought were the difference between the value of the business at that date and the amount actually realised by the receivers. OBG did not, however, allege negligence in the way the receivers had realised the assets or allege that there had been any intention on the part of the receivers to cause loss.
33. The High Court gave judgment for OBG on 18 February 2004. The trial judge rejected OBG’s submission that, but for the receivers’ invalid appointment, it would have survived as a business. Instead, he concluded that OBG’s liquidation or insolvency would have occurred even if the receivers had not been appointed.
34. The trial judge also rejected OBG’s submission that the tort of conversion could apply to intangible assets such as contractual rights, finding that there was no basis in the common law for this approach.
35. The trial judge found, however, that OBG could rely on the tort of interference with contractual relations. This tort applied equally to the receivers’ interference with OBG’s tangible assets and to the receivers’ interference with OBG’s intangible assets (such as the NWW contracts).
36. The trial judge accepted that liquidators would have realised a larger sum than the receivers did, particularly in relation to the value of the contracts with NWW. Approximately GBP 1,067,000 more could have been realised from the contracts than the receivers had achieved. Therefore, he assessed the total damages due to OBG at GBP 1,854,000 plus interest in the sum of GBP 1,180,579. The damages as assessed included both OBG’s tangible assets and its intangible assets, such as its rights under the NWW contracts.
37. The receivers and Penningtons appealed to the Court of Appeal. They conceded that OBG could rely on the tort of trespass in respect of OBG’s land, of which the receivers had taken control. They also conceded that OBG could rely on the tort of conversion in respect OBG’s tangible assets, of which the receivers had taken control. However, the receivers and Penningtons argued that the torts of conversion and wrongful interference with contractual relations did not allow damages to be recovered in respect of intangible assets.
38. On 9 February 2005 the Court of Appeal held unanimously that the tort of conversion did not apply to intangible assets. It was not open to the court to invent such a tort.
39. The Court of Appeal was, however, divided as to whether the tort of wrongful interference with contractual relations allowed damages to be recovered in respect of intangible assets. Lord Justice Peter Gibson and Lord Justice Carnwath found that it did not; Lord Justice Mance found that it did.
40. Lord Justice Peter Gibson considered that the issue was whether the tort of wrongful interference with contractual relations should be extended to cover situations where there was no intention by a third party to procure a breach of a contract or to impede the performance of a contract. He found that there was no authority for extending the tort in this way. To do so would be to change the nature of the tort: it had always required an intention to procure a breach of contract or a breach of duty.
41. For Lord Justice Peter Gibson, the receivers had intended to manage the contractual rights of OBG. There had been an intention to interfere in OBG’s business (though no intention to cause loss or damage). However, this did not amount to an interference with contractual relations in any relevant sense. This conclusion meant OBG’s claim had to be dismissed, a conclusion which he reached “with regret”: the wrongful taking control of intangible assets by an invalidly appointed receiver ought to have had consequences in law. Other claims brought in equity or negligence might have been successful, but OBG’s claim based on tort had to fail.
42. Lord Justice Carnwath agreed with Lord Justice Peter Gibson. He found that it would have been a significant extension of the tort if it were to include cases where the interference was not directed at hindering performance of contractual obligations. There was also no policy reason for extending the tort to cases where negligence could not be established (i.e. to impose strictly liability on the receivers). The unusual facts of OBG’s case made it unsuitable for such an extension.
43. Lord Justice Mance, dissenting on this issue, found that the receivers had directly interfered with OBG’s contracts with NWW. The interference was not intended to cause loss but, in the circumstances, this was not a prerequisite of liability for the tort. The tort of wrongful interference with contractual relations extended to any situation in which a person’s pre-existing legal situation was altered, even if this did not involve any breach or non-performance of an obligation to a third party. The receivers’ intervention had changed significantly the way in which OBG’s rights under the NWW contracts had been ascertained and settled. For Lord Justice Mance, this was sufficient for the purposes of the tort of wrongful interference with OBG’s pre-existing legal position. It was immaterial that the receivers did not realise that they were acting without authority. It was also immaterial that they had no intention to cause harm to OBG. It was appropriate to find that an invalidly appointed receiver was strictly liable for interference with tangible assets and that he or she was also strictly liable for interference with contractual relations.
44. By order dated 21 February 2005, the Court of Appeal reduced the amount of damages owed to the applicants to GBP 244,000 plus interest. (The difference between the damages as assessed by the High Court and those as assessed by the Court of Appeal is explained by the finding by the majority of the Court of Appeal that the law of tort did not provide for damages to the applicants in respect of intangible assets, such as their bank account, sums due under contracts, or other debts.)
45. OBG appealed to the House of Lords. By judgment of 2 May 2007, and by a majority of three to two, the House of Lords upheld the Court of Appeal’s judgment and dismissed the appeal.
46. The five Law Lords hearing the appeal unanimously rejected OBG’s claim based on an interference with contractual relations. Lord Hoffmann, who gave the lead speech, held that there were only two possible causes of action: the tort of procuring a breach of contract or the tort of causing loss by unlawful means. (Lord Nicholls, concurring on this point, observed that there was no “hybrid tort” of interfering with contractual relations.) It was plain and obvious to Lord Hoffmann that the requirements for liability under either of these torts were not satisfied.
47. For the first, the tort of procuring a breach of contract was a tort of “accessory liability” (the principle that a person who procures another to commit a wrong incurs liability as an accessory). The tort required (i) intention to cause a breach of contract and (ii) a breach of contract in fact to take place. In OBG’s case, there had not been any breach or nonperformance of a contract. Therefore, there was no wrong to which accessory liability for procuring a breach of contract could attach.
48. For the second, the tort of causing loss by unlawful means required (i) the use of unlawful means and (ii) an intention to cause loss to the claimant. In OBG’s case the requirements of the tort had not been met either. The receivers had neither used unlawful means nor intended to cause the applicants any loss.
49. Lord Hoffmann added that Lord Justice Mance’s approach (see paragraph 43 above) referred to the tort of causing loss by unlawful means. Lord Hoffmann reiterated, however, that this tort required both the use of unlawful means and an intention to cause loss. Neither of these elements was present in the applicants’ case.
50. Lord Hoffmann disagreed with Lord Justice Peter Gibson’s expression of regret that OBG did not have a remedy in law for the acts of the invalidly appointed receivers. He noted that this was not a case in which an invalid appointment of receivers had caused damage to a solvent company. The trial judge had found that OBG would not have survived as a business and that it had been heading for liquidation or insolvency. The receivers had acted in good faith, believing their appointment to be valid. Furthermore, OBG’s liquidators had concurred in the agreement reached with NWW for the full and final settlement of all claims arising under OBG’s contracts with NWW. Therefore, it could not be said that, as a result of the actions of the receivers, OBG had suffered a loss which it would not otherwise have suffered.
51. As to OBG’s claim in respect of the tort of conversion, the Law Lords were divided three to two. The majority concluded that this claim should also be rejected.
52. Lord Hoffmann, writing for the majority, noted that the tort of conversion was historically a tort against a person’s interest in a chattel (tangible asset). Consistent with its ancient origin, it was a tort of strict liability (i.e. a tort which did not require the claimant to prove that the defendant was at fault). The law had always been very wary of imposing any kind of liability for “pure economic loss” (loss which does not arise directly from physical damage or injury).
53. Moreover, the torts of procuring a breach of contract and causing loss by unlawful means were highly restricted in their application. They were not torts of strict liability: as he had noted, the tort of procuring a breach of contract required proof of an intention to procure a breach of the contract; the tort of causing loss by unlawful means required proof of an intention to cause loss (see paragraphs 47 and 48 above) .
54. Against this background, it would be an extraordinary step suddenly to extend the tort of conversion to impose strict liability for pure economic loss on receivers who had been appointed and had acted in good faith. Such a step would be for Parliament to take.
55. Lords Walker and Brown agreed with Lord Hoffmann. They both added that the facts of OBG’s case made it singularly unsuitable for such a major change in law.
56. Lord Nicholls and Baroness Hale dissented on this point. Lord Nicholls argued that the tort of conversion had been extended in the past to cover not only tangible assets but also certain intangible assets which were embodied or recorded in a document (such as share certificates). He saw no reason why the tort of conversion could not be extended still further to encompass intangible assets which were not so documented. This was a “modest but principled extension” of the doctrine, which fully accorded with the role of the courts in developing the common law and which respected the intentions of Parliament.
57. Baroness Hale found that it made no sense for the receivers to be strictly liable for what was lost on OBG’s tangible assets but not for what was lost on its intangible assets. It would be inconsistent with principle if the tort of conversion were not extended to encompass both tangible and intangible assets.
58. Part III of the Insolvency Act 1986 deals with administrative receivership. An “administrative receiver” is defined at section 29(2)(a) as being:
“a receiver or manager of the whole (or substantially the whole) of a company’s property appointed by or on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge, or by such a charge and one or more other securities.”
Section 34 of the same Act provides that:
“Where the appointment of a person as the receiver or manager of a company’s property under powers contained in an instrument is discovered to be invalid (whether by virtue of the invalidity of the instrument or otherwise), the court may order the person by whom or on whose behalf the appointment was made to indemnify the person appointed against any liability which arises solely by reason of the invalidity of the appointment.”
Section 44 provides that:
“(1) The administrative receiver of a company –
is deemed to be the company’s agent, unless and until the company goes into liquidation;
is personally liable on any contract entered into by him in the carrying out of his functions (except in so far as the contract otherwise provides) and on any contract of employment adopted by him in the carrying out of those functions; and
is entitled in respect of that liability to an indemnity out of the assets of the company.
(2) For the purposes of subsection (1) (b) the administrative receiver is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.
(3) This section does not limit any right to indemnity which the administrative receiver would have apart from it, nor limit his liability on contracts entered into or adopted without authority, nor confer any right to indemnity in respect of that liability.”
Section 232 provides:
“The acts of an individual as administrator, administrative receiver, liquidator or provisional liquidator of a company are valid notwithstanding any defect in his appointment, nomination or qualifications.”
59. The tort of conversion is based on the ancient tort of “trover”. Historically, trover was based on the fictitious allegation that the claimant had lost a chattel and that the defendant had found it. The modern tort of conversion holds that anyone who “converts” a chattel (that is, does an act inconsistent with the rights of the owner) is liable for the loss caused, however innocent he may be. Conversion is thus a tort of strict liability.
The Torts (Interference with Goods) Act 1977 defines wrongful interference with goods to include conversion of goods. “Goods” is defined in section 14(1) to include “all chattels personal other than things [choses] in action and money”. The Act thus excludes intangible assets from the tort of conversion.


ITEMID: 001-119968
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF EREMIA v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Positive obligations);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 6. The applicants were born in 1973, 1995 and 1997 respectively and live in Vălcineț.
7. The first applicant was married to A., a police officer based at the Călăraşi police station. The second and third applicants are their daughters. According to the first applicant, following the birth of the second daughter A. would often come home drunk and assault her, sometimes in the presence of their daughters. On 2 July 2010 the first applicant petitioned for divorce, having been assaulted by A. the day before and having witnessed him verbally abuse their teenage daughters. A. subsequently became more violent, regularly assaulting the first applicant and insulting both her and their daughters.
8. On 30 August 2010 the first applicant contacted the local police to report that she had been punched in the head by A. that day. On 18 September 2010 A. was fined by an administrative court the sum of 200 Moldovan lei (MDL, then worth approximately 12.40 euros (EUR)). On 30 September 2010 he was given a formal warning by the authority in charge of the police, the Ministry of Internal Affairs, to stop his violent behaviour.
9. On 5 November 2010 A. came home drunk and assaulted the first applicant. On 6 November 2010 she reported the incident to the local prosecutor’s office.
10. According to the applicants, on 11 November 2010 A. again assaulted the first applicant in the presence of their daughters. He did the same on 12 November 2010, this time almost suffocating the first applicant, following which she lost her voice for a day and a half. On an unknown date the deputy head of the Călăraşi police station invited the applicant to undergo an examination by a forensic physician in order to establish the extent and nature of injuries to her body. The examination took place on 23 November 2010 but no such injuries were found.
11. On 29 November 2010 the applicants applied to the Călăraşi District Court for a protection order. A protection order was made on 9 December 2010, the judge finding that A. had been abusive towards the first applicant by beating her, insulting her, imposing his will upon her, causing her stress and psychological suffering, threatening her and mistreating their pet. Moreover, this violence had often taken place in the presence of their teenage daughters, whose psychological well-being was being adversely affected as a result. A. was ordered to stay away from the house for ninety days and an exclusion zone of 500 m was attached to the order, prohibiting A. from contacting the applicants or committing any acts of violence against them. The applicants notified the local police, prosecutor’s office and social services of the order, which on 12 December 2010 was served on A.
12. On 9 December 2010 the first applicant requested that Judge B.N. from the Călăraşi District Court revoke the six-month waiting period he had insisted the parties observe when the first applicant petitioned for divorce. She based her application on the protection order made that day and submitted that A.’s history of violence prevented any possibility of reconciliation. The first applicant alleged that she was informed by Judge B.N.’s secretary that the judge had refused to treat her divorce as an urgent case. On 12 January 2011 the first applicant complained to the President of the Călăraşi District Court about the judge’s refusal.
13. On 10 December 2010 Călăraşi police opened a case against A. to oversee enforcement of the protection order of 9 December 2010. Between 12 December 2010 and 17 January 2011 the local police visited A. on six occasions to warn him against alcohol abuse, bringing shame upon his family, insulting his relatives and breaching the protection order.
14. On 14 December 2010 A. was cautioned by local police for his violent behaviour and was made to confirm in writing that he had understood the terms of the protection order. It was established that A. had moved out of the family home and was in temporary local authority housing.
15. On 16 December 2010 A. saw the first applicant in the street and followed her, using insulting and threatening language and trying to apprehend her. He continued to harass her in a shop where she had tried to seek refuge.
16. On 19 December 2010, A. entered the family home notwithstanding the terms of the protection order. According to the Government, however, the applicants had given their permission for him to return until 16 January 2011. The applicants maintained that they had not given such permission, A. having assaulted the first applicant, destroyed certain possessions and verbally abused the third applicant on his return. On 23 December 2010 the first applicant reported the incidents of 16 and 19 December 2010 to the police. Most of the complaints to various authorities were then forwarded to the Călăraşi Prosecutor’s Office.
17. On 10 January 2011 the first applicant was invited to give statements at Călăraşi police station regarding her complaints against A. She submitted that she was then pressured by the police into withdrawing her criminal complaint, because if A. had a criminal record and lost his job, this would have a negative impact on their daughters’ educational and career prospects. A meeting with the local prosecutor was fixed for the following day, this time with A. being present. During that meeting the first applicant told the prosecutor that she wanted a divorce but did not want to cause any trouble for her husband.
18. On 12 January 2011 the first applicant was informed that the prosecutor would not be initiating a criminal investigation. On 13 January 2011 A. returned to the family home. He again assaulted and verbally abused the first applicant, simulating strangling her, and threatened to kill both her and her aunt if she did not withdraw her criminal complaint. On 14 January 2011 a medical expert found four haematomas on the first applicant’s neck and one on her clavicle, which could have been sustained in the way the first applicant had described.
19. The Government alleged that on 1 March 2011 A. telephoned the third applicant to wish her a happy birthday. They further submitted that having obtained permission from the first applicant, A. returned to the home to congratulate his daughter in person, spending twenty minutes there in the presence of all three applicants and his father-in-law.
20. The first applicant reported the incident to the Călăraşi District Court on 2 March 2011, informing it that she had rejected a request by A. to visit the family home the day before, but that he had turned up nonetheless, in clear breach of the protection order. She asked the court to extend the duration of the order for a further ninety days. On 14 March 2011 A. was called before the court and served with an extension of the order.
21. On 15 March 2011 the Călăraşi Social Assistance and Family Protection Department informed the first applicant that owing to a clerical error the protection order of 9 December 2010 had never been enforced by the local social services.
22. On 14 April 2011 the Chișinău Court of Appeal upheld A.’s appeal, partly revoking the protection order of 9 December 2010. The appellate court found that the law neither expressly provided for the minimum exclusion zone of 500 m, nor did it expressly prohibit the abuser from harassing or using physical violence against the victim, although these were implied in the general obligation not to make contact. The appellate court therefore decided to remove these terms from the order.
23. On 13 December 2010 the first applicant requested that a criminal investigation be initiated into A.’s acts of violence. On the same day the applicants requested that the second and third applicants be officially recognised as victims of domestic violence for the purposes of the investigation.
24. On 17 January 2011 the applicants’ lawyer complained to the Prosecutor General’s Office that she had not been invited to the meeting on 11 January 2011 at the Călăraşi Prosecutor’s Office (see paragraph 17 above) at which the first applicant had been pressured into withdrawing her criminal complaint in A.’s presence. Also on 17 January 2011 a criminal investigation was finally initiated in respect of A. On 25 January 2011 the applicants again requested that the prosecutor’s office officially recognise the second and third applicants as victims of domestic violence for the purposes of the investigation.
25. On 19 January 2011 the first applicant was invited to a meeting with social workers, who allegedly advised her to attempt reconciliation with A. since she was “neither the first nor the last woman to be beaten up by her husband”. On 20 January 2011 the applicants complained to the Ministry of Labour, Social Protection and Family about the social workers’ attitude.
26. On 17 February 2011 the applicants asked the Călăraşi police to fine A. for breaching the protection order on 16 December 2010, 20 and 22 January and 6 February 2011, her main reason being that A. had contacted the first applicant and pressured her into withdrawing her criminal complaint. In response she was informed that on 24 February 2011 the administrative case file against A. had been sent to the Călăraşi District Court.
27. On 1 April 2011 a prosecutor from the Călăraşi Prosecutor’s Office established that A. had admitted earlier that day to having physically and psychologically abused three members of his family. A. then concluded a plea bargain with the prosecutor asking to be conditionally released from criminal liability. The prosecutor found that there was substantive evidence of A.’s guilt in the form of various medical reports, witness statements, documents relating to his fine and warnings issued by his employer, the Ministry of Internal Affairs. However, given that he had committed a “less serious offence”, did not abuse drugs or alcohol, had three minors to support, was well respected at work and in the community and “did not represent a danger to society”, the prosecutor suspended the investigation for one year subject to the condition that the investigation would be reopened should A. commit another offence during that time.
28. On 13 April 2011 the applicants appealed against the prosecutor’s decision of 1 April 2011. On 18 April 2011 the senior prosecutor rejected that appeal on the grounds that suspending the investigation against A. would afford better protection to the applicants.
“A criminal investigation may be conditionally suspended, with subsequent release from criminal liability, in respect of a person accused of having committed a less serious offence who admits his or her guilt and does not represent a danger to society, if the rehabilitation of that person is possible without criminal punishment.”
“(1) Family violence, that is the intentional action or inaction manifested physically or verbally, committed by a member of a family against another member of that family, and which caused physical suffering leading to light bodily harm or damage to health, or moral suffering, or to pecuniary or non-pecuniary damage, shall be punished by unpaid work for the community during 150 to 180 hours, or a prison term of up to two years.
(2) The same action:
(a) committed against two or more members of the family;
(b) which caused moderate bodily harm or damage to health
- shall be punished by unpaid work for the community during 180 to 240 hours, or a prison term of up to five years.
(3) The same action which:
(a) caused serious bodily harm or damage to health;
(b) provoked the victim’s suicide or an attempt thereof;
(c) caused the victim’s death
- shall be punished by a prison term of five to fifteen years.”
“(1) The intentional failure or avoidance from enforcing a court decision, if it was committed after an administrative sanction, shall be punished by a fine of 200 to 300 conventional units or by unpaid work for the community during 150 to 200 hours, or with a prison term of up to two years...”
30. The relevant provisions of Law no. 45 on the prevention of and combat against domestic violence (1 March 2007, “the Domestic Violence (Combat and Protection) Act 2007”) read as follows:
“(1) The courts shall, within twenty-four hours of receipt of the claim, issue a protection order to assist the victim, by applying the following measures to the aggressor:
(a) an order to temporarily leave the common residence or to stay away from the victim’s residence, without making any determination as to the ownership of jointly owned assets;
(b) an order to stay away from the victim;
(c) a prohibition on contacting the victim, his or her children or other dependants;
(d) an order not to visit the victim’s place of work or residence;
(e) an order to pay maintenance for his or her children pending resolution of the case;
(f) an order to cover the costs incurred and to compensate for any damage caused as a result of his or her violent acts, including medical expenses and the cost of replacing or repairing any destroyed or damaged possessions;
(g) restrictions on the unilateral disposal of jointly owned assets;
(h) an order to undergo special treatment or counselling if the court determines that this is necessary to reduce or eliminate violence;
(i) an interim contact order for the aggressor to see his or her children below the age of majority;
(j) a prohibition on possessing and carrying weapons ...
(3) The protective measures set out in subsection (1) above shall be applied for up to three months and may be discontinued upon the elimination of the threat or danger which caused the adoption of such measures and extended if a further claim is submitted or if the conditions set out in the protection order have not been complied with.”
31. Article 2 of the Law on the Police (no. 416, republished on 31 January 2002) provides that the main tasks of the police include, inter alia, the protection of the life, the rights and dignity of others, prevention of crime and protection of public order. Under Article 21 (8) of the same law, a police officer could be dismissed for committing offences discrediting the police.
32. A summary of the relevant international materials concerning protection from domestic violence, including its discriminatory nature against women, has been made in the case of Opuz v. Turkey (no. 33401/02, §§ 72-86, ECHR 2009).
33. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.
34. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children’s rights are protected during proceedings.
35. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.
36. In its General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/2010/47/GC.2), the Committee on the Elimination of Discrimination against Women found that “States parties have a due diligence obligation to prevent, investigate, prosecute and punish ... acts of gender based violence”.
37. In her report concerning the visit to Moldova from 4 to 11 July 2008 (document A/HRC/11/6/Add.4, 8 May 2009), the United Nations Special Rapporteur on violence against women, its causes and consequences noted, inter alia:
“... patriarchal and discriminatory attitudes are increasing women’s vulnerability to violence and abuse. In this context, domestic violence in particular is widespread, largely condoned by society and does not receive appropriate recognition among officials, society and women themselves, thus resulting in insufficient protective infrastructure for victims of violence. ...
... 19. Moldovan women suffer from all forms of violence. However, domestic violence and trafficking are major areas of concern. The two are intimately connected and are linked to women’s overall subordinate position in society. ...
20. While reliable data and a systematic registering of cases on the nature and extent of the phenomenon is lacking, domestic violence is said to be widespread. According to a Ministry of Labour, Social Protection and Family report: “[...] At present, the frequency of domestic violence, whose victims are women and children, is acquiring alarming proportions. Unfortunately, it is very difficult for the State to control domestic violence since in most of the cases it is reported only when there are severe consequences of the violence, the other cases being considered just family conflicts.
21. Despite this acknowledgement, unless it results in serious injury, domestic violence is not perceived as a problem warranting legal intervention. As a result, it is experienced in silence and receives little recognition among officials, society and women themselves.
22. According to a survey conducted in 2005, 41 per cent of women interviewed reported encountering some form of violence within the family at least once during their lifetime. The survey revealed that psychological violence, followed by physical violence, is the most widely reported form of abuse in the family. Almost a third of the women interviewed indicated having been subjected to multiple forms of violence. The study notes that domestic violence runs across lines of class and education; however, women with a higher level of education or economic status may tend not to disclose incidents of violence. Sexual violence remains the least reported form of violence. This may be due to lack of recognition of sexual abuse within the family as a wrongdoing or the fear among victims that they will be held responsible and become outcasts.
23. The perpetrators of violence against women are often family members, overwhelmingly husbands or former husbands (73.4 per cent), followed by fathers or stepfathers (13.7 per cent) and mothers or stepmothers (7 per cent). Staff at the shelter in Chisinau indicated that husbands of many of the women who seek help at the shelter are either police officers or from the military, which makes it far more difficult for these women to escape the violent environment and seek divorce. ...
29. There are also a number of widely held misconceptions about violence against women which treat the problem as isolated cases concerning a particular group. These misconceptions are: (a) violence against women is a phenomenon that takes place in poor and broken homes; (b) victims of violence are inherently vulnerable women needing special protection; (c) violent men are deviants who use alcohol and drugs or have personality disorders; (d) domestic violence involves all members of the household, including men. It has been my experience that such misunderstandings often result in misguided and partial solutions, such as rehabilitation programmes for abusers, restrictions over women in order to protect them or gender neutral solutions that overlook the causes of gender-based violence.”
VIOLATED_ARTICLES: 14
3
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-96312
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: COSTAS & THOMAS ORPHANOU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants are all relatives of persons who have been missing since the Turkish military operations in northern Cyprus in July and August 1974. Their bodies have never been found.
The applicants applied to the Court between 2004 and 2009 (see annexed table).


ITEMID: 001-58014
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF BOUCHELKIA v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: R. Pekkanen
TEXT: 7. Mr Hadi Bouchelkia was born on 25 February 1970 at Bechloul (Algeria) and came to France in 1972 with his mother and his elder brother under the arrangements for family reunion. His mother and nine brothers and sisters live in France. In 1986 he met a woman of French nationality whom he married on 29 March 1996. They had a daughter born on 22 February 1993, in respect of whom he made a formal declaration of paternity on 3 December 1993.
8. When a minor, the applicant was charged with rape with violence and theft in respect of offences committed on 18 March 1987.
He was taken into custody at Colmar Prison on 23 March 1987 but escaped with a fellow prisoner on 14 April 1987, for which he was sentenced to four months' imprisonment.
9. On 31 May 1988 the Haut-Rhin Juvenile Assize Court found him guilty of the offences of which he was accused. Finding that there were mitigating circumstances, it sentenced him to five years' imprisonment. Mr Bouchelkia was released on 2 May 1990 after obtaining remission of sentence.
10. On 11 June 1990 the Minister of the Interior, to whom the matter had been referred by the Prefecture of Meurthe-et-Moselle on 27 April 1990, made the following order against the applicant:
"Having regard to section 26 of Ordinance no. 45-2658 of 2 November 1945, as amended, concerning the conditions of entry and residence of aliens in France,
Whereas Bouchelkia Hadi or El Hadi born on 25 February 1970 at Bechloul (Algeria) committed a rape on 18 March 1987 while threatening his victim with a weapon,
Whereas on account of his conduct his deportation is an absolute necessity for public safety,
Whereas he has just been released,
Whereas he should, in consequence, be removed from French territory as a matter of extreme urgency,
On a proposal by the Prefect of Meurthe-et-Moselle,
IT IS HEREBY ORDERED AS FOLLOWS
Article 1: the above-named person is enjoined to leave France,
Article 2: the Prefect of Police and the Prefects are instructed to serve and execute this order."
That order was served on 9 July 1990 and executed on the same day and the applicant, who was then aged twenty, single and had no children, was deported to Algeria.
11. On 17 July 1990 counsel for Mr Bouchelkia applied to the Strasbourg Administrative Court for an order quashing the deportation measure and, on 31 July 1990, for an order staying its execution.
It was argued in the applications that it had not been established in Mr Bouchelkia's case that it was a matter of extreme urgency or absolute necessity to deport him for reasons of public safety since the order had been made two months after his release from prison and the offences could not be regarded as being of particular gravity for the purposes of the statutory provision. He also relied on Article 8 of the Convention (art. 8).
12. On 16 October 1990 the Court dismissed the application for a stay of execution in the following terms:
"...
None of the grounds relied on by Mr Bouchelkia in support of the application for judicial review of the deportation order made by the Minister of the Interior on 11 June 1990 appears, on the basis of the case file before the court, to justify quashing that order; it follows that the applicant's application for a stay of execution of that order is unfounded;
..."
13. On 31 May 1991, the Conseil d'Etat upheld, in the same terms, the decision dismissing the application.
14. In its judgment of 21 October 1990 dismissing the application, the court gave the following grounds for its decision:
"The submission based on error of law:
Criminal offences committed by an alien cannot, by themselves, justify in law deportation and do not under any circumstances exempt the authority concerned from its obligation to whether the alien's presence in France is liable to constitute a serious threat to public order.
The documents on the case file do not reveal any failure by the Minister of the Interior to have regard to all the factors relating to the applicant's conduct and the various aspects of his situation in determining whether or not his presence in France constituted a serious threat to public order. It follows that this first submission, based on an error of law, must be rejected.
The submission based on Article 8 of the Convention (art. 8)
...:
Under Article 8 (art. 8) of the European Convention referred to above: 'Everyone has the right to respect for his private and family life, his home and his correspondence'.
The applicant relies on Article 8 of the Convention (art. 8) in order to argue that the impugned decision does not comply with the aforementioned provisions; the general principles governing the right to a normal family life do not preclude the Minister of the Interior from exercising the power conferred on him by section 26 of the Ordinance of 2 November 1945, as amended. It follows that there is no alternative but to reject this ground.
The submission based on manifest error:
Section 26 of the Ordinance of 2 November 1945, as amended, provides: 'In cases of extreme urgency and by way of derogation from sections 23 to 25, deportation may be ordered where it constitutes an absolute necessity for the security of the State or public safety.'
The documents on the case file show that Mr El Hadi Bouchelkia was sentenced to five years' imprisonment for rape committed while threatening his victim with a weapon; the fact that the order was made two months after the applicant's release from prison does not, in itself, mean that the question of his deportation is not urgent, regard being had to the gravity of the offences. Thus, the Minister of the Interior could have considered, without committing a manifest error, that Mr Bouchelkia's deportation constituted an absolute necessity for public safety and that it was a matter of extreme urgency.
It follows that the ground based on manifest error must be rejected.
In the light of the foregoing, the application made by Mr Bouchelkia must be rejected."
15. On 23 June 1993 the Conseil d'Etat upheld the judgment in the following terms:
"...
The documents on the case file show that Mr Bouchelkia committed a rape while threatening his victim with a weapon; for that offence he was sentenced to five years' imprisonment. It follows that the Minister was entitled in law to consider that Mr Bouchelkia's deportation constituted an absolute necessity for public safety. As he had recently been released, it was also a matter of extreme urgency at the date of the impugned order.
Regard being had to the seriousness of the offence committed by the applicant, that measure did not amount to an excessive interference in his family life. In these circumstances, the measure was not taken in violation of the aforementioned Article 8 (art. 8).
It does not appear from the documents on the case file that the Minister, in making the impugned order for Mr Bouchelkia's deportation (which states the reasons of fact and law relied on), failed to carry out a full review of the circumstances of the case.
It follows from all the above that Mr Bouchelkia fails in his claim that in the impugned judgment the Strasbourg Administrative Court had wrongly dismissed his application to have the Minister of the Interior's order of 11 June 1990 requiring him to leave France set aside.
..."
16. The applicant made two applications to the Minister of the Interior to have the deportation order of 11 June 1990 rescinded.
17. On 12 December 1991 the Minister of the Interior dismissed the first application, made on 21 October 1991, in these terms:
"...
I note that in its judgment of 31 May 1991 the Conseil d'Etat dismissed the application to quash the Strasbourg Administrative Court's judgment dated 16 October 1990 in which [the] application for a stay of execution of the ministerial deportation order made against [Mr Bouchelkia] was dismissed.
In addition, taking into account the seriousness of the offences committed by the applicant and his conduct whilst in custody, it is impossible for me to grant [his] request. The deportation order of 11 June 1990 must stand.
..."
18. The second application made on 3 November 1995 is currently pending before a board set up in accordance with section 24, as amended, of the Ordinance of 2 November 1945 (see paragraph 22 below).
19. Mr Bouchelkia, who returned to France illegally in 1992, was arrested at Colmar on 6 April 1993 on charges of insulting a police officer, obstructing a police officer in the execution of his duty and illegally entering and staying in France. On 13 April 1993 the Colmar Criminal Court sentenced him to five months' imprisonment and ordered that he be banned from re-entering France for three years. It ordered that he remain in custody.
20. On appeals by the applicant and the prosecution, the Colmar Court of Appeal allowed the applicant's appeal against sentence. In its judgment delivered on 11 August 1993, it gave the following reasons:
"With respect to the sentence
The custodial sentence imposed by the court below is a penalty that is proportionate to the seriousness of the offences when the mitigating circumstances are taken into account, adapted to his character and in accordance with the requirements of protecting public order.
On the other hand, regard being had to the circumstances in which the offences were committed and to the accused's character, the additional order forbidding him to reenter France is an excessively severe penalty.
While this court cannot and does not wish to call into question the appropriateness of the deportation order of 11 June 1990, the accused's application for judicial review of which was dismissed by a judgment of the Conseil d'Etat on 23 June 1993, it observes that the accused arrived in France at the age of 2 and lives here with his mother and nine brothers and sisters, that he attended vocational training courses while imprisoned in connection with the criminal case which ended with the judgment of the Haut-Rhin Juvenile Assize Court, that he spent two years in Algeria where he has no ties or points of reference and that his companion has given birth to a child.
As the accused has made an application to have the deportation order rescinded, it would be inappropriate to take the option open to the court of forbidding him to reenter France."
21. Mr Bouchelkia was arrested on 14 December 1996 and detained with a view to his removal to Algeria under the deportation order of 11 June 1990. He refused to leave and a compulsory residence order was issued against him.
On 20 December 1996 the Strasbourg Criminal Court convicted him of the offence of refusing to comply with a deportation order, but deferred sentence pending the European Court's judgment.
22. In French law deportation is a public-order measure, not a criminal penalty (Constitutional Court decision no. 79-109, Droit constitutionnel 9 January 1980, Recueil Dalloz Sirey 1980, 249; Conseil d'Etat, 20 January 1988, Elfenzi, Actualité juridique Droit administratif 1989, 223; and Criminal Division of the Court of Cassation, 1 February 1995, JurisClasseur périodique 1995, édition générale, II, 22463). It applies to aliens with a residence permit who live in France, but not to those who have entered illegally and against whom only a removal order may be made.
The deportation of aliens is governed by the provisions of the Ordinance of 2 November 1945 concerning the conditions of entry and residence of aliens in France. Section 1 of the Ordinance provides: "all persons who do not have French nationality, whether they have a foreign nationality or are stateless, shall be deemed to be aliens." The basic provisions of the Ordinance have been amended by, inter alia, Law no. 80-9 of 10 January 1980; Law no. 81-82 of 2 February 1981; Law no. 81-973 of 29 October 1981; Law no. 86-1025 of 9 September 1986; Law no. 89-548 of 2 August 1989; Law no. 91-1383 of 31 December 1991; Law no. 93-1027 of 24 August 1993 and Law no. 93-1417 of 30 December 1993.
The Law of 10 January 1980 prescribed six grounds for deportation and substantially altered its role; deportation had been intended to guard against threats to public order, but it was now also used as punishment in certain cases where there had been a breach of the immigration rules.
That Law was rapidly replaced by Law no. 81-973 of 29 October 1981, in which the following two grounds for deportation were retained:
(i) the first, to which the ordinary rules of procedure applied, was where "an alien's presence on French territory constitute[d] a serious threat to public order" (sections 23 to 25);
(ii) the second, for which there was a special procedure, concerned "cases of extreme urgency [and] absolute necessity for the security of the State or public safety" (section 26).
That Law also prescribed the categories of aliens who could not be deported under the ordinary procedure and who were protected because of their age, the length of time they had spent in France, their family ties there, the services they had rendered and the fact that they had no criminal record.
The provisions relating to the definition of the protected categories, the substantive conditions and the safeguards provided under the ordinary procedure were alternately amended and restored by subsequent legislation.
In 1990 it was a prerequisite to instituting the ordinary procedure governed by sections 23 to 25 of the Ordinance of 2 November 1945 that "the alien's presence on French territory constitute[d] a serious threat to public order". Recourse to the special procedure used in the instant case required extreme urgency and an "absolute necessity for the security of the State or public safety".
23. This procedure may properly be described as adversarial and applies where "the alien proves that he entered France legally and that he is the lawful holder of a residence permit" (section 24).
An aliens deportation board for the département must be consulted. Such boards are composed of the president of the tribunal de grande instance of the administrative capital of the département or a judge delegated by him, who acts as chairman, a judicial officer (magistrat) appointed by the general assembly of the tribunal de grande instance of the administrative capital of the département and an administrative court judge. Its hearings are held in public. In 1990 the Minister of the Interior had less discretion. Since Law no. 93-1027 of 24 August 1993, the board's opinion is no longer binding on the Minister.
24. Deportation orders made to preserve public order are intended to guard against - and not to punish - breaches of public order. With the sole exception of minors, no category of aliens is protected.
Under the special procedure none of the safeguards contained in the ordinary procedure are available. Thus, aliens are not informed in advance that their deportation is being considered, do not receive any special notification, are not given an opportunity to make representations and do not appear before the board; the board does not hold a meeting, not even in the alien's absence. No formal steps have to be taken before the deportation order is issued and the order does not have to contain reasons.
25. The condition relating to absolute necessity for the security of the State or public safety was introduced by the Law of 29 October 1981. It was replaced in the Law of 6 September 1986 by a requirement of "a particularly serious threat to public safety", but was reintroduced in the Law of 2 August 1989. According to the Minister of National Solidarity, who was jointly responsible for drafting the bill which became the 1981 Law, this type of deportation was only to apply to three categories of aliens: terrorists, spies and drug traffickers. Neither the Minister of the Interior nor the Conseil d'Etat have adopted that position; they have interpreted the condition much more widely. In practice section 26 also covers cases concerning violent and anti-social behaviour by an alien over a long period since the age of ten (Conseil d'Etat, 23 December 1987, Tahraoui, Recueil des arrêts du Conseil d'Etat ("Rec.") p. 430) and rape and indecent assault with violence or taking the victim by surprise (Conseil d'Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163, and Conseil d'Etat, 23 June 1993, Bouchelkia, Droit administratif 1993, no. 412).
26. To the extreme urgency requirement, laid down as from 1945, a requirement of "absolute necessity for the security of the State and public safety" was added in 1981. Extreme urgency is in practice relied on to ensure that aliens who have been convicted by the criminal courts and are serving their sentence can be deported as soon as they are released. Its substance is assessed on a case-by-case basis by the Minister, subject to review by the administrative court.
For a long time the Conseil d'Etat ruled that the question whether there was any urgency itself came within the unfettered discretion of the Minister. From 1970 it interpreted the requirement so as to limit its application solely to cases where the deportation was to take place within a very short time (Conseil d'Etat, 16 January 1970, Mihoubi Tayeb, Rec. p. 25). It later found that the urgency requirement had been satisfied where the alien was due to be released shortly (Conseil d'Etat, 13 November 1985, Ministry of the Interior v. Barrutiabengoa Zabarte, Rec. p. 321), then held that it was lawful to use the procedure against an alien who had been released from prison several months before the deportation order was made (Conseil d'Etat, 24 June 1988, Hamade, Rec., tables, p. 933, and 8 April 1994, Zehar, Dalloz 1994), or who had obtained early release seven months before the issue of a deportation order (Conseil d'Etat, 3 February 1995, Kaouche, requête no. 145404, Droit administratif, May 1995, p. 10). It also accepted that the Minister could use the extreme urgency procedure where, in connection with a deportation initially commenced under the ordinary procedure, the board had expressed an opinion against deportation. The Conseil d'Etat held that practice to be lawful "provided that the requirements of section 26 were satisfied at the time the order was made" (Conseil d'Etat, 24 May 1993, Igartúa Amondaraín, Rec. p. 163).
27. A deportation order issued by the Minister of the Interior remains in force indefinitely. Since 1986 such orders embody authority to execute and may be enforced without further order, using force if necessary.
28. In general, deportation is carried out without delay; however, the effects of the deportation order are not exhausted as a result of its execution.
Thus, deported aliens are precluded from returning to French territory for so long as the order has not been rescinded. If they do return, they are liable to the penalties applicable to cases of avoiding or attempting to avoid the execution of a deportation order and returning to France without leave to enter.
Furthermore, according to a circular issued by the Minister of the Interior on 8 February 1994 concerning the application of the Laws of 24 August and 30 December 1993, although the celebration of the marriage of an alien on French territory is not subject to any condition regarding the lawfulness of his stay, a prefect who is informed that the alien wishing to get married is in breach of the immigration rules may, before the wedding, make an order for his removal under section 22 of the Ordinance of 1945 and, after the ceremony, decide to expel him pursuant to that provision. The Conseil d'Etat has held that an order for removal could lawfully be made against an alien who was about to marry a French national (Conseil d'Etat, Judicial Division, 26 July 1991, Lazaar, requête no. 121849).
29. As deportation orders are not subject to any special regime, an application for judicial review may be made to the administrative court having territorial jurisdiction under the ordinary rules. Such applications have no suspensive effect and may therefore be accompanied by an application for a stay of execution even where the order has been enforced and the alien is outside France.
On 31 July 1996 (requête no. 149765), the Conseil d'Etat set aside a deportation order made against an Algerian who was born in France and had always lived there, on the grounds that:
"... his close relatives live in France and some of them have French nationality. When the deportation order was made against him, he was the father of a child of French nationality and was married to a French national. In the circumstances of the case, although it has been shown that he has committed offences for which he has been sentenced to several terms of imprisonment (the most recent being a twelve-year sentence for armed robbery, burglary committed at night or with accomplices and theft) the impugned decision has nonetheless, regard being had to the applicant's conduct subsequent to his convictions for those offences and to the fact that he has no ties with any country other than France, interfered with the applicant's rights to respect for his private and family life in a way that was disproportionate to the aims with which it was taken."
30. The alien concerned may, at any time, and as often as he chooses, apply for the deportation order to be rescinded.
Where the application is submitted less than five years "after the final execution of the deportation order", the Minister of the Interior is not subject to any specific procedural requirements in reaching his decision. If the application is submitted "after a period of five years ..., it may be rejected only after the opinion of the deportation board for the département has been sought; the alien may be represented before the board". Consultation is required even where the deportation order was made under the procedure for cases of extreme urgency. Since the Law of 24 August 1993 came into force, the board's opinion is no longer binding on the Minister.
The Conseil d'Etat had considered that a deportation order was executed on the date the alien left French territory and that, in consequence, even if he subsequently returned to France illegally, the five-year period ran from that date (Conseil d'Etat, 18 November 1988, Higoun, Rec. p. 415). However, section 28 bis, added to the Ordinance of 1945 by the Law of 24 August 1993, now prevents a deportation order being rescinded if the alien has not left France or if he has returned there illegally: "An application ... for the rescission of a deportation order ... submitted after the expiry of the time-limit for making an application for judicial review cannot be granted unless the foreign national resides outside France."
An application to which there has been no response within four months is deemed to have been rejected by the Minister of the Interior. Where the Minister of the Interior decides not to enforce a deportation order whilst at the same time refusing to rescind it, a compulsory residence order is made against the alien. If the alien continues to disturb public order, he may be deported. That constitutes a new decision, separable from the deportation order and in respect of which an application for judicial review may be made to the administrative court. In considering the application, the court examines the conduct of the alien during the period when his presence in France was tolerated. In reviewing the lawfulness of the measure the court therefore examines the position at the date of its judgment. However, a ground of appeal on the basis that the alien had mended his ways after the date of the order is ineffective (Conseil d'Etat, 27 November 1985, Hamza, Rec. p. 712).
The fact that a deportation order has been rescinded does not constitute leave to enter. If leave is sought, it may lawfully be refused.
31. Article 21-27 of the Civil Code, which is relevant in this case, provides:
"Subject to the provisions of Articles 21-7, 21-8 [concerning aliens born in France of foreign parents] and 22-1 [concerning the minor children of parents who have acquired French nationality], no one may acquire French nationality or be restored to that nationality if either (i) he has been convicted of a serious crime [crime] or other major offence [délit] harmful to the fundamental interests of the nation or of an act of terrorism or (ii) whatever the nature of the offence, if he has been sentenced to a term of imprisonment, not suspended, of at least six months.
(Law no. 93-1417 of 30 December 1993) The same shall apply to a person who is the subject of a deportation order which has not been expressly set aside or rescinded or to a ban on re-entering French territory that has not expired.
(Law no. 93-1027 of 24 August 1993) The same shall apply to persons whose stay in France is unlawful under the laws and treaties relating to the residence of aliens in France."
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-80696
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KONTROVA v. SLOVAKIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Positive obligations;Article 2-1 - Life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1974 and lives in Michalovce.
7. The applicant was married. The marriage produced two children: a daughter who was born in 1997 and a son who was born in 2001.
8. On 2 November 2002 the applicant filed a criminal complaint against her husband with the Michalovce District Police Department (Obvodné oddelenie Policajného zboru). She accused him of having assaulted and beaten her with an electric cable the previous day. She submitted a medical report by a trauma specialist indicating that her injuries would incapacitate her from work for up to seven days. The applicant also stated that there was a long history of physical and psychological abuse by her husband.
9. At an unspecified time between 15 and 18 November 2002 the applicant and her husband went to the District Police Station. They sought to withdraw the applicant's criminal complaint. A police officer, Mr H., advised them that, in order to avoid a prosecution, they would have to produce a medical report showing that after the incident on 1 November 2002 the applicant had not been incapacitated from work for more than six days. The applicant produced such a report on 21 November 2002.
10. On 26 November 2002 officer H. decided that the above matter was to be dealt with under the Minor Offences Act (Law no. 372/1990 Coll.) and, under section 60(3)(a) of that Act, decided to take no further action (odloženie veci).
11. During the night of 26 to 27 December 2002 a relative of the applicant called the emergency service of the District Police Department to report that the applicant's husband had a shotgun and was threatening to kill himself and the children. The applicant herself made a similar phone call later that night. The phone calls were received by a police officer, Mr B., who instructed a police officer, Mr P.Š., to arrange for a police patrol to visit the premises. The patrol found the applicant in the village of Tušická Nová Ves. The applicant's husband had left the scene prior to their arrival. The policemen took the applicant to her parents' home and invited her to come to the police station the following morning so that a formal record of the incident could be drawn up.
12. In the morning of 27 December 2002 the applicant, accompanied by her brother, went to the Trhovište District Police Station, where she spoke to a police officer, Mr M.Š.
13. In the morning of 31 December 2002 the applicant and her brother went to the Michalovce District Police Station, where she talked to officer H. She enquired about her criminal complaint of 2 November 2002 and also mentioned the incident of the night of 26 to 27 December 2002.
14. On 31 December 2002 between 11 a.m. and 11.15 a.m. the applicant's husband shot their two children and himself dead.
15. On 31 January 2003 the Košice Branch of the Police Inspection Service (Úrad inšpekčnej služby Policajného zboru – “the Inspection Service”) charged officer M.Š. with abuse of public authority (Article 158 § 1 (c) of the Criminal Code) on the ground that on 27 December 2002 he had failed to accept and duly register the applicant's criminal complaint and to commence criminal proceedings against the applicant's husband immediately.
16. On 3 February 2003 the Inspection Service charged officer P.Š. with dereliction of duty (Article 159 § 1 and 2 (b) of the Criminal Code) on the ground that on the night of 26 to 27 December 2002 he had failed to take appropriate action in response to the emergency calls from the applicant and her relative, in particular, to launch a criminal investigation, to keep a proper record of the emergency calls and to advise the next shift of the situation and of the fact that the applicant would be visiting the police station the following morning to file a formal criminal complaint.
17. On 7 February 2003 the Inspection Service charged officer H. with abuse of public authority (Article 158 § 1 (a) of the Criminal Code) for altering records pertaining to the applicant's criminal complaint of 2 November 2002 and arbitrarily treating it as a minor offence calling for no further action.
18. On 12 February 2003 the Inspection Service commenced criminal proceedings against an unknown police officer for abuse of public authority (Article 158 § 1 (a) of the Criminal Code) in connection with an allegation that on 31 December 2002 he had wrongfully refused to register a criminal complaint from the applicant concerning the incident of the night of 26 to 27 December 2002. These proceedings later resulted in charges against officer H. On the same day the Inspection Service charged officer B. with abuse of public authority (Article 158 § 1 (a) of the Criminal Code) on the ground that on the night of 26 to 27 December 2002 he had failed to take appropriate action in connection with the allegations that the applicant's husband had threatened violence. He was accused, inter alia, of having omitted to carry out a search in the register of firearms and firearms licence holders.
19. On 30 April 2003 the Prešov District Military Prosecutor (Vojenský obvodný prokurátor) discontinued the proceedings that had been commenced on 12 February 2003 and had subsequently led to the charges against officer H. After examining documentary evidence and testimony by the applicant, the accused and witnesses, the prosecutor found that the purpose of the applicant's conversation with officer H. on the morning of 31 December 2002 had not been to lodge a new formal criminal complaint against her husband. She had merely sought information about the state of the proceedings further to her criminal complaint of 2 November 2002 and there was no suspicion that officer H. had committed any criminal offence.
20. On 28 July 2003 the Košice Regional Investigation Office (Krajský úrad vyšetrovania) discontinued the criminal proceedings instituted against officer H. on 7 February 2003. Observing that he had acted in good faith and in accordance with the applicant's express wishes, the investigator decided that the actions of officer H. had not involved the element of social gravity that was requisite in order to constitute a criminal offence. The investigator also observed that officer H. had already been discharged from the police and that therefore no disciplinary proceedings could be brought against him. The applicant challenged this decision by means of a complaint which the District Military Prosecutor declared inadmissible on 15 August 2003, finding under Article 142 § 1 of the Code of Criminal Procedure (CCP) that she had no right to make it.
21. On 4 August 2003 the District Military Prosecutor summoned officers B., P.Š. and M.Š. for trial in the Michalovce District Court (Okresný súd) on a charge of negligent dereliction of duty (Article 159 §§ 1 and 2 (b) of the Criminal Code) in connection with the above events. The summons set out in detail the internal regulations of the Ministry of the Interior the officers were alleged to have breached.
22. On 20 October 2003, following a hearing on the same day in which the applicant took part through the intermediary of her lawyer, the District Court dismissed the summons. It found that the criminal offence of dereliction of duty presupposed a complete or enduring failure to discharge the duty. Merely impeding the discharge of the duty was not enough. It found that in the present case the officers' actions did not amount to such a failure to discharge their duty and that the connection between their actions and the tragedy of 31 December 2002 was not sufficiently direct.
The applicant appeared in the District Court as a witness and was not served with a copy of the judgment.
23. On 21 January 2004 the Košice Regional Court (Krajský súd) dismissed an appeal by the District Military Prosecutor against the judgment of 20 October 2003. No further appeal was available.
The applicant was neither officially informed about the appellate proceedings nor served with a copy of the Regional Court's judgment.
24. The Prosecutor General, however, challenged the Regional Court's decision of 21 January 2004 by lodging a complaint in the interests of the law (sťažnosť pre porušenie zákona) in the Supreme Court (Najvyšší súd).
25. On 29 September 2004 the Supreme Court quashed both the Regional Court's decision of 21 January 2004 and the District Court's judgment of 20 October 2003. The Supreme Court found that the lower courts had assessed the evidence illogically, that they had failed to take account of all the relevant facts and that they had drawn incorrect conclusions. The Supreme Court found that it was clear that the accused officers had acted in dereliction of their duties. It concluded that there was a direct causal link between their unlawful actions and the fatal consequence. The Supreme Court remitted the case to the District Court for reconsideration and pointed out that, pursuant to Article 270 § 4 of the CCP, the latter was bound by its above legal views.
26. On 14 March 2006 the District Court held a hearing in which the applicant took part in the capacity of a witness. Following the hearing, on the same day, the District Court found officers B., P.Š. and M.Š. guilty as charged and sentenced them to, respectively, six, four and four months' imprisonment. All sentences were suspended for 12 months. It was found that the accused had negligently breached the applicable service regulations and had thereby caused the death of the applicant's children. When determining the sentence, the District Court took into account inter alia the fact that the accused had thus far been leading honest lives, their work appraisals were positive and officers B. and M.Š. had already been discharged from service in the police. All the accused and the public prosecution service appealed. Officer B. later withdrew his appeal.
27. On 26 September 2006 the Regional Court heard and dismissed the outstanding appeals. It found that the District Court had adequately established and correctly assessed the facts and had drawn accurate legal conclusions both as regards the guilt and the sentences. No ordinary remedy was available against the Regional Court's judgment.
28. On 26 February 2003 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). She formally directed her complaint against the District Police Department, maintaining that its officers' failure to act had led to a violation of her right to protection of her personal integrity (Article 16 § 1 of the Constitution), her right to protection from unjustified interference with her private life (Article 19 § 2 of the Constitution) and her right to legal protection (Article 46 § 1 of the Constitution). She asserted that the police had been well aware of the situation that had preceded the tragedy of 31 December 2002 and, in breach of their positive obligations, had failed to take the necessary action. She claimed that responsibility for this failure lay with the District Police Department. She also maintained that the criminal proceedings which were currently pending could not afford her complete redress for the damage she had sustained.
29. On 2 July 2003 a three-judge bench of the Constitutional Court declared the complaint inadmissible. It observed that the Constitutional Court only had jurisdiction if the matter concerned did not fall within the jurisdiction of another authority. Its power to award just satisfaction in respect of non-pecuniary damage could only be exercised if the Constitutional Court had substantive jurisdiction over the matter. In the present case the primary issue was whether the officers who had dealt with the applicant's case had complied with the applicable regulations. That issue fell within the jurisdiction of the ordinary courts and was being examined in the criminal proceedings which were currently under way and in which the applicant could claim standing to intervene as an aggrieved party. A ruling on that issue could nevertheless also be sought before the civil courts. To that end, the bench observed that the applicant's range of options was not limited to actions of the type specifically provided for by statute. The bench concluded that, in these circumstances, the applicant's complaint was premature and the Constitutional Court had no jurisdiction to entertain it.
30. The presiding judge, however, did not share the majority view and gave a dissenting opinion. According to him, in view of its primary purpose, namely to uphold constitutionality, the Constitutional Court was free to examine complaints under the legal provisions which it considered to be the most relevant. The present case was to be examined primarily from the standpoint of the right to life and, in particular, the positive obligations inherent in that right. Contrary to the bench's finding, and in breach of the positive obligations in question, there were no remedies available to the applicant under civil or criminal law permitting her to claim and obtain adequate and sufficient redress for her alleged nonpecuniary damage. He pointed out that not even the bench had clearly identified the remedies available to the applicant for that purpose. Finally, the presiding judge said that the principle that the Constitutional Court's jurisdiction was subsidiary, which was set out in Article 127 of the Constitution, was to be interpreted with a degree of flexibility in the light of the circumstances of each particular case. In his view, the Constitutional Court was the only authority to which the applicant could have made her claim for compensation for nonpecuniary damage in the present case. It therefore should not have been precluded from examining the case by the possible existence of other remedies which in any event were not complete.
31. On 26 February 2004 the applicant, who was represented by a lawyer, lodged a fresh complaint against the District Police Department with the Constitutional Court. She reiterated the arguments she had submitted in the first complaint and added that the criminal proceedings had ended without producing any positive results in respect of her complaints. She maintained that she had no remedy before any other authority as regards the non-pecuniary damage she had suffered. She concluded that the Constitutional Court was therefore called upon to deal with the merits of her case. She alleged a violation of her children's right to life (Article 15 §§ 1 and 2 of the Constitution and Article 2 § 1 of the Convention). She further alleged a violation of her right to protection of her personal integrity and privacy (Article 16 § 1 of the Constitution), her right to protection from unjustified interference with her private and family life (Article 19 § 2 of the Constitution), her right to legal protection (Article 46 § 1 of the Constitution), her right to security of person (Article 5 of the Convention) and her right to respect for her private and family life (Article 8 of the Convention).
32. On 8 September 2004 the Constitutional Court declared the complaint of 26 February 2004 inadmissible, holding that it had no jurisdiction to entertain it. In this context the Constitutional Court held that the principal questions of whether there had been any illegal action causing damage to the applicant and who was responsible for it fell to be determined by the ordinary courts. More specifically, the question of whether a crime had been committed in connection with the events complained of was to be determined in criminal proceedings. The Constitutional Court noted that in the criminal proceedings in the present case the applicant had failed to claim standing as an aggrieved party, which would have given her a series of procedural rights enabling her to influence their outcome. The fact that the criminal courts had sole jurisdiction in the matter meant that the Constitutional Court had power to intervene only if the criminal courts had acted manifestly arbitrarily. The applicant had, however, put forward no arguments to that effect. The Constitutional Court further held that, in any event, in so far as the complaint pertained to the District Police Department's failure to take action in November and December 2002, it had been submitted outside the statutory two-month time-limit. Furthermore, the applicant had no right of petition, either of her own or on behalf of her late children, in respect of the alleged violation of their right to life. Finally, part of the second complaint was in any event inadmissible as it raised issues that were res judicata by virtue of the decision of 2 July 2003.
33. The law concerning protection of personal integrity under Articles 11 et seq. of the Civil Code is summarised in the decision of 13 June 2006 in the present case. In addition, the following judicial decisions are of relevance.
34. In an action in the Nitra District Court (file no. 10C 142/2002) a mother claimed, among other things, financial compensation for non-pecuniary damage in connection with the death of her daughter. She relied on the previous conviction for manslaughter of a car driver who had run over her daughter.
In a judgment of 15 May 2006 the District Court accepted that the plaintiff had suffered damage of a non-pecuniary nature and awarded her 200,000 Slovakian korunas by way of compensation.
35. In an action in the Poprad District Court (file no. 9C 688/2002) Mrs M. brought claims for protection of personal integrity against the State, in the person of the police, in connection with the death of her husband. She relied on a penal order (trestný rozkaz) of that court of 18 October 2000 in which a police officer had been found guilty of manslaughter under Article 224 §§ 1 and 2 of the Criminal Code on the ground that, while questioning the applicant's husband at a police station, he had failed to secure his service gun in an appropriate manner. He had thereby enabled the applicant's husband to grab the gun and shoot himself dead.
Mrs M. claimed, inter alia, financial compensation for the non-pecuniary damage suffered by herself and her late husband. She later withdrew the claim while at the same time submitting a similar claim in the name of her and her husband's daughter, Miss M.
In a judgment of 31 May 2006 the District Court allowed the withdrawal of the claim by Mrs M. and discontinued the proceedings in respect of that claim. At the same time, it dismissed the claim in the name of Miss M. The reasons for dismissing her claim were multiple. The State was not the defendant to be sued in the present case, the police having their own legal personality and the capacity to be sued. The claim was statute-barred. And finally, at the time of the tragedy Miss M. had only been 10 months old and had mainly not been living with her father. She therefore could not have suffered any trauma. The action is still pending on appeal.
36. Pursuant to Article 2 §§ 3 and 4, the public prosecution service is obliged to prosecute all criminal offences of which it learns, unless a statute or an international treaty provides otherwise. Authorities involved in prosecution, that is to say the police, investigators, public prosecution service and courts, are obliged to act on their own initiative.
37. If a criminal complaint does not contain information excluding the possibility that a criminal offence was committed, and if there are no special circumstances, the police or investigator, as the case may be, are obliged to commence criminal prosecution immediately (Article 160 § 1).
38. The concept of a criminal attempt is defined in Article 8. Conduct which is dangerous for society, which immediately leads to the completion of a criminal offence and which the culprit carries out with the intention to commit a criminal offence is considered a criminal attempt provided that the offence itself has not been completed. A criminal attempt is liable to the same punishment as the completed offence to which it leads.
39. The Act governs the organisation and powers of the police. Pursuant to section 2(1)(a), (b) and (d) the police serve, inter alia, to protect fundamental rights and freedoms, life, health, personal safety and property, to investigate criminal offences, to identify culprits and to examine criminal complaints and other applications for a criminal prosecution to be opened.
40. Pursuant to section 9, a police officer on duty – and also, unless there are special circumstances, off duty – is obliged to intervene if a criminal offence is being committed and if there is an imminent danger to life, limb or property.
VIOLATED_ARTICLES: 13
2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-99663
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GEDA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Ms Éva Mária Geda, is a Hungarian national who was born in 1954 and lives in Kazár. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 November 2001 criminal proceedings were instituted against the applicant and other defendants on charges of smuggling persons. On 11 July 2003 the Salgótarján District Public Prosecutor's Office preferred a bill of indictment. Hearings took place on 27 November 2003, 24 February and 23 November 2004, 29 March and 28 September 2005.
On 6 October 2005 the Salgótarján District Court convicted the applicant of complicity in 27 counts of smuggling persons and 27 counts of violating personal liberty. The District Court appreciated the length of the time which had elapsed from the commission of the crimes as a significant mitigating factor. Because of this, it sentenced the applicant to only two years' imprisonment, suspended for a probationary period of five years, and to the confiscation of property in the amount of 150,000 Hungarian forints.
On 8 May 2006 the Nógrád County Regional Court upheld this judgment. Also appreciating the protraction of the proceedings, the Regional Court reduced the probationary period to three years.