ITEMID: 001-90342
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SACCOCCIA v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1958. He is currently serving a prison term in the United States.
7. In 1992, in the context of criminal proceedings for large-scale money laundering conducted against the applicant before the United States District Court for the District of Rhode Island (“the Rhode Island District Court”), the Austrian courts were requested under letters rogatory to seize assets which had been found in two safes in Vienna rented by the applicant. On 10 February 1992 the Vienna District Criminal Court ordered the seizure and put the assets, mostly cash and bearer bonds, at the disposal of the Rhode Island District Court as evidence in the criminal proceedings against the applicant, on the condition that the assets were to be returned upon termination of the proceedings.
8. The parties disagree as to whether or not the applicant was the owner of the assets at issue. The applicant claims that the assets stemmed from lawful business activities carried out until 1988, while the Government claim that they stemmed from the money laundering in 1990 and 1991 of which he was convicted (see below) and that he was holding them as a trustee for the drug cartel for which he had worked.
9. In February 1993 the Rhode Island District Court convicted the applicant of money laundering and related charges, finding that he had headed an organisation which had laundered more than a hundred million United States dollars (USD) in 1990 and 1991, and sentenced him to 660 years’ imprisonment. Subsequently, on 30 August 1993, the court issued a preliminary forfeiture order.
10. On 28 June 1995 the United States Court of Appeals, First Circuit, dismissed an appeal by the applicant against his conviction and against the forfeiture order. The reasons, in so far as relevant in the context of the present case, were as follows. As to the applicant’s claim that he was represented at his trial by counsel (H.) who had a conflict of interest, the court noted that the applicant had been informed of his rights but had insisted on being represented by counsel H. Finally, he had executed a written waiver retaining H. as counsel and confirming that he had been fully advised and had considered the possible adverse consequences for his defence. Since counsel H. had only informed the court in vague terms that he feared being charged or called as a witness in the applicant’s case, the District Court was justified in accepting the waiver. In any event, the applicant was represented by a second, conflict-free counsel, D. As to the applicant’s complaint that he had had no hearing in the forfeiture proceedings, the appellate court noted that the applicant, represented by counsel, had waived his right to a jury hearing in the separate forfeiture proceedings on the ground that they purely concerned matters of legal argument. The case had been heard on 26 March 1993 in the presence of the applicant’s counsel. The applicant had not been present since he had to appear before another court. Counsel had requested that the applicant be heard but had refused the court’s offer to have a further hearing in the presence of the applicant before the delivery of the judgment.
11. On 25 March 1996 the United States Supreme Court rejected an appeal on points of law by the applicant.
12. On 7 November 1997 the Rhode Island District Court issued a final forfeiture order relating to a total amount of USD 136 million, including some USD 9 million in respect of the applicant, “being the proceeds of narcotics money laundering for which the following property has been partially substituted”. There followed an enumeration of cash amounts in Swiss francs, United States dollars and Austrian schillings seized in Vienna in 1992 and a list of bearer bonds issued by Austrian banks and, finally a bank account in Vienna.
13. On 9 December 1997 the Rhode Island District Court issued letters rogatory which, so far as relevant, read as follows:
“... the United States District Court for the District of Rhode Island requests enforcement in Austria of the enclosed Final Forfeiture Order against said cash, bonds and other financial instruments. To the extent possible under Austrian law and consistent with any sharing agreement between the United States and Austria, please convert the cash and the proceeds of the bonds and other instruments into United States dollars and transfer those funds by wire into the above referenced United States Customs Service Account. ...”
14. The United States Department of Justice transmitted this request to the Austrian authorities on 18 December 1997. On 23 January 1998 the Austrian Ministry of Justice requested the Vienna Senior Public Prosecutor’s Office to open “exequatur” proceedings to enforce the foreign court’s decision.
15. On 12 March 1998 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), as an interim measure, ordered the confiscation of the applicant’s assets, of a total value of about 80,000,000 Austrian schillings (ATS – approximately 5,800,000 euros), in cash, bearer bonds and a bank account, for the purpose of securing the enforcement of the final forfeiture order of 7 November 1997. It referred to the above request and noted that enforcement proceedings under the Extradition and Legal Assistance Act (Auslieferungs- und Rechtshilfegesetz – “the ELAA”) were pending.
16. The applicant appealed on 26 March 1998, submitting in particular that the Regional Court’s decision amounted to an unlawful interference with his right to property, as it lacked a legal basis. Moreover, an enforcement of the forfeiture order for the benefit of the United States was not admissible in Austria as section 64(7) of the ELAA provided that any fines or forfeited assets obtained by executing a foreign decision fell to the Republic of Austria.
17. Further, the applicant claimed that the final forfeiture order also included “substitute assets”, i.e. assets not connected to or derived from criminal activity. Thus the measure requested did not correspond in any way to forfeiture (Verfall) or withdrawal of enrichment (Abschöpfung der Bereicherung) within the meaning of the Austrian Criminal Code (Strafgesetzbuch). In any event these penalties could not be applied in his case, as the relevant provisions had not been in force at the time he committed the offences. Furthermore, he had been convicted of money laundering in the United States, an offence which had not been punishable under Austrian law at the time of its commission.
18. Relying on section 64(1) of the ELAA, the applicant also argued that the forfeiture proceedings had failed to comply with the requirements of Article 6 of the Convention, since the proceedings had not been public and he had not been heard. Moreover, his defence rights had been violated in the underlying criminal proceedings, his defence lawyer having been caught in a conflict of interests.
19. Lastly, the applicant claimed that there was a lack of reciprocity as decisions of Austrian courts were not enforceable in the United States.
20. Meanwhile, on 12 March 1998, the Vienna Regional Criminal Court had made a formal request to the United States authorities to hear the applicant in connection with the request for execution of the final forfeiture order. On 16 April 1998 the United States Department of Justice transmitted the applicant’s submissions to the Austrian Ministry of Justice.
21. On 22 May 1998 the United States Department of Justice addressed a note to the Austrian Ministry of Justice concerning reciprocity in providing legal assistance in forfeiture proceedings. The applicant denies that this note contains assurances of reciprocity.
22. On 1 August 1998 the Treaty between the Government of the Republic of Austria and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters (“the 1998 Treaty”) entered into force.
23. On 12 October 1998 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal against the Regional Court’s decision of 12 March 1998.
24. The Court of Appeal found that the Regional Court’s decision was based on Article 144a of the Code of Criminal Procedure (Strafprozeßordnung). In this connection, the court noted that pursuant to section 9(1) of the ELAA, the provisions of the Code of Criminal Procedure had to be applied mutatis mutandis unless explicitly provided otherwise.
25. As to the applicant’s assertion that a forfeiture for the benefit of the United States would be contrary to section 64(7) of the ELAA, the court observed that the letters rogatory requested first and foremost that any measures required under Austrian law for the execution of the final forfeiture order be taken. Only as an additional point did they ask for the transfer of the assets, provided that this was admissible under Austrian law or any bilateral treaty. In this connection it referred to Article 17(3) of the 1998 Treaty.
26. As regards the applicant’s assertion that the final forfeiture order covered substitute assets which could not be subject to forfeiture under Austrian law, the court observed that it followed from the judgment concerning the applicant’s conviction that he had led an organisation which had laundered large sums of money derived from drug dealing and had usually received a 10% commission for each amount laundered. Between 1 January 1990 and 2 April 1991 he had transferred more than USD 136 million of drug-related money from the account of a sham company to various foreign bank accounts. Thus, there were good reasons to assume that the applicant’s Austrian assets were monies received for or derived from the commission of a crime and subject to withdrawal of enrichment under Article 20 of the Criminal Code, or monies directly obtained through drug dealing, subject to forfeiture under Article 20b of the Criminal Code, in the version in force since its 1996 amendment. The final forfeiture order made a clear link between the offence of money laundering of which the applicant had been convicted and the forfeiture of all monies obtained thereby.
27. Articles 20 and 20b in the version in force since the 1996 amendment of the Criminal Code were not regarded as penalties under Austrian law, but as measures sui generis. The fact that they had not been in force at the time of the commission of the offences was therefore not material.
28. Even if one applied the law in force at the time of the commission of the offences, the requirements for withdrawal of enrichment were met. Article 20a(1) of the Criminal Code, in the version in force at that time, provided that an offender who had unjustly enriched himself could be ordered to pay an amount equivalent to the enrichment if the latter exceeded ATS 1 million. Although there had been no offence of money laundering under Austrian law at the time, the facts constituted the offence of receiving stolen property (Hehlerei) under Article 164(1)(4) of the Criminal Code, which made it an offence to assist the perpetrator of an offence (here, the drug dealers) in concealing assets derived from or received for the commission of the offence or to acquire such assets.
29. As to the applicant’s allegation that both the criminal proceedings against him and the proceedings resulting in the final forfeiture order had failed to comply with Article 6 of the Convention, the court referred to the documents of those proceedings contained in its file and noted the following. In the criminal proceedings, the applicant had been present and had been represented by two counsel. It noted that it was the applicant who had insisted on being represented by counsel H. although the latter had voiced concerns, albeit without substantiating them, that he might himself be charged. In any case, the applicant had been represented by a second counsel, who was free from any potential conflict of interests. In the forfeiture proceedings he waived his right to a public hearing before a jury since they only concerned questions of law. On 26 March 1993 the judge had heard the case in the presence of the applicant’s counsel but without the applicant being present. The applicant’s lawyer had requested that the applicant be heard but had refused the court’s offer to hold a further hearing in the presence of the applicant before the delivery of the judgment. In sum, the Vienna Court of Appeal found no indication that the proceedings before the United States courts had failed to comply with Article 6 of the Convention.
30. As regards the alleged lack of reciprocity, the court noted that when the request for enforcement of the final forfeiture order had been made, there had been no bilateral treaty between the United States and the Republic of Austria. Thus, only the provisions of the ELAA had to be applied, section 3(1) of which required reciprocity. The Regional Court had duly investigated the issue in that it had required the United States Department of Justice to submit information as to the possibilities of enforcing an Austrian forfeiture order in the United States. Meanwhile, however, the 1998 Treaty had entered into force. Under Article 20(3) of that Treaty, it applied irrespective of whether the underlying offences were committed before or after its entry into force. Article 17 provided for mutual legal assistance in forfeiture proceedings.
31. On 25 August 1999 the United States central authority, relying on the 1998 Treaty, made a new request for enforcement of the final forfeiture order of 7 November 1997. According to the applicant, this second request for legal assistance was not served on him.
32. The applicant made submissions on 22 December 1998, on 11 March 1999 and on 11 May 2000.
33. On 14 June 2000 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the final forfeiture order of 7 November 1997 and ordered the forfeiture of the applicant’s Austrian assets for the benefit of the United States.
34. Having regard to the 1998 Treaty, the requirement of reciprocity was fulfilled. The submissions by the applicant which disputed this were no longer relevant as they referred to the legal position before the entry into force of the 1998 Treaty. As to the question of the beneficiary of the forfeiture, it noted that Article 17(3) of the 1998 Treaty provided optionally that each State party could hand over forfeited assets to the other party.
35. Referring to the Court of Appeal’s decision of 12 October 1998, it noted that the applicant’s conduct had been punishable under Austrian law. Thus, the forfeiture was not contrary to Article 7 of the Convention. Finally, the court noted that the applicant had been given an opportunity to comment on the request for legal assistance.
36. The applicant appealed on 7 July 2000. He asserted that the 1998 Treaty provided for legal assistance in pending criminal proceedings, but did not contain a legal basis for mutual execution of final decisions. Even assuming that the 1998 Treaty applied in the present case, the enforcement of the final forfeiture order would violate Article 7 of the Convention as the said Treaty had not been in force in 1997 when the forfeiture order was issued. Moreover, money laundering had not been punishable under Austrian law at the time of the commission of the offences. Consequently, his assets could not be subject to forfeiture or withdrawal of enrichment under Austrian law.
37. Furthermore, the applicant repeated his argument that his Austrian assets were substitute assets and claimed that, at the time of the commission of the offences, such assets had not been subject to forfeiture or withdrawal of enrichment under Austrian law.
38. Relying on expert opinions submitted by him, the applicant maintained that the condition of reciprocity required by section 3(1) of the ELAA was not fulfilled, as United States constitutional law did not permit the enforcement of decisions given by foreign criminal courts. He further submitted that the five-year limitation period for enforcement had started running on 30 August 1993, when the preliminary forfeiture order was issued (as it was, despite its name, a final and enforceable decision), and not only on 7 November 1997, when the final forfeiture order was issued.
39. In addition the applicant alleged that the criminal proceedings and the forfeiture proceedings before the United States courts had not complied with the requirements of Article 6 of the Convention. He submitted the same arguments as in the proceedings relating to the preliminary confiscation of his assets. Moreover, he referred in general terms to the fact that the United States still applied the death penalty.
40. The applicant also complained about a number of procedural shortcomings as regards the proceedings in Austria. He alleged in particular that the Regional Court had refused to take into account the aforesaid expert opinions submitted by him, which showed that United States constitutional law excluded any enforcement of decisions of foreign criminal courts. Moreover, he had not been given sufficient opportunity to advance his arguments as, in his view, that would have required his personal presence in court. Finally, he complained that the Regional Court had failed to hold a public oral hearing and requested that such a hearing be held by the appellate court.
41. The Public Prosecutor’s Office also appealed. Its appeal was served on the applicant for comments, which he submitted on 21 September 2000.
42. On 7 October 2000 the Vienna Court of Appeal, sitting in camera, dismissed the applicant’s appeal. Upon the public prosecutor’s appeal, it amended the Regional Court’s decision and ordered the forfeiture to the benefit of the Republic of Austria.
43. The court noted at the outset that, pursuant to its Article 20(3), the 1998 Treaty applied irrespective of whether the underlying offences were committed before or after its entry into force. It dismissed the applicant’s argument that the said Treaty did not provide a basis for the mutual enforcement of decisions. Article 1, paragraphs (1) and (2)(h) of the Treaty, in conjunction with Article 17, governed legal assistance in forfeiture proceedings. As to the alleged lack of reciprocity, it was sufficient to refer to those provisions. It was therefore not necessary to examine questions of United States constitutional law.
44. Moreover, referring to its decision of 12 October 1998, the court reiterated that the facts underlying the applicant’s conviction for money laundering would have been punishable as receiving stolen property under Article 164(1)(4) of the Criminal Code at the time of the commission of the offences. Further, it reiterated that withdrawal of enrichment pursuant to Article 20 of the Criminal Code and forfeiture pursuant to Article 20b, both in the version in force since 1996, were not regarded as penalties, but served the purpose of neutralising proceeds of criminal activities. These measures covered any proceeds of an offence, irrespective of whether they were directly derived from the offence or given for its commission or whether they had already been converted into other assets.
45. With regard to the applicant’s complaint that the proceedings in the United States had not complied with the requirements of Article 6 of the Convention, the court referred to the reasons given in its previous decision of 12 October 1998.
46. The court dismissed the applicant’s plea that the enforcement of the final forfeiture order was time-barred, noting that the United States Supreme Court, on 25 March 1996, had refused leave to appeal against the provisional forfeiture order, whereupon the final forfeiture order had been issued on 7 November 1997. Consequently, the five-year limitation period pursuant to section 59 of the Criminal Code had not expired.
47. As to the applicant’s procedural rights, the court noted that he had been represented by counsel throughout the proceedings and had had the opportunity to submit extensive written pleadings.
48. Finally, the court considered that the public prosecutor’s appeal was well-founded in that section 64(7) of the ELAA provided that forfeited assets fell to the Republic of Austria. Thus, forfeiture to the benefit of the United States under Article 17(3) of the 1998 Treaty was not admissible.
49. The decision was served on the applicant on 30 October 2000.
50. Section 1 of the Extradition and Legal Assistance Act (Auslieferungs- und Rechtshilfegesetz, Federal Law Gazette no. 529/1979) provides that the Act applies where international or bilateral agreements do not provide otherwise.
51. Section 3 carries the heading “reciprocity” and, so far as relevant, provides as follows:
“(1) Foreign requests may be granted only if it is ensured that the requesting State would also grant an equivalent Austrian request.
...
(3) If there are doubts regarding compliance with reciprocity, information shall be obtained from the Federal Minister of Justice.”
52. Section 64 is situated in the chapter on the enforcement of decisions by foreign criminal courts. It regulates the conditions for taking over the enforcement of such decisions.
“(1) Enforcement or further enforcement of a decision by a foreign court with final and legal effect, in the form of a monetary fine or prison sentence, a preventive measure or a pecuniary measure (vermögensrechtliche Anordnung), is admissible at the request of another State if:
1. the decision of the foreign court was taken in the course of proceedings in compliance with the principles of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) (Federal Law Gazette no. 210/1958);
2. the decision was taken in relation to an act that is punished by a court sentence under Austrian law;
3. the decision was not taken in relation to one of the offences listed in sections 14 and 15;
4. no time-limit has expired under Austrian law regarding enforceability;
5. the person concerned by the decision of the foreign court regarding this offence is not being prosecuted in Austria, has been finally and effectively convicted or acquitted in this matter or has otherwise been released from prosecution.
...
(4) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under Austrian law for a monetary fine, a withdrawal of enrichment or forfeiture apply, and that no corresponding Austrian measure has yet been taken.
...
(7) Fines, forfeited assets or enrichment withdrawn shall fall to the Republic of Austria.”
53. The procedure to be followed in cases concerning the enforcement of foreign decisions is laid down in section 67 of the ELAA. It does not make any provision for the holding of hearings.
54. The Treaty was signed on 23 February 1995 and, following ratification, entered into force on 1 August 1998 (Federal Law Gazette Part III, no. 107/1998).
“(1) The Contracting Parties shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of the Requesting State, and in related forfeiture proceedings.
(2) Assistance shall include:
...
(h) assisting in proceedings related to forfeiture and restitution; ...”
“(1) If the Central Authority of one Contracting Party becomes aware of fruits or instrumentalities of offences which are located in the territory of the other Party and may be forfeitable or otherwise subject to seizure under the laws of that Party, it may so inform the Central Authority of the other Party. If the other Party has jurisdiction in this regard, it may present this information to its authorities for a determination as to whether any action is appropriate. These authorities shall issue their decision and shall, through their Central Authority, report to the other Party on the action taken.
(2) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions.
(3) A Requested State in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law. To the extent permitted by its laws and upon such terms as it deems appropriate, either Party may transfer forfeited assets or the proceeds of their sale to the other Party.”
“(3) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of this Treaty.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60815
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF WITTEK v. GERMANY
IMPORTANCE: 1
CONCLUSION: No violation of P1-1
JUDGES: Ireneu Cabral Barreto
TEXT: 9. The first applicant was born in 1958 and the second applicant in 1948; they both live in Bad Münder (Germany).
10. Under a purchase agreement dated 26 May 1986, the applicants purchased a dwelling house in Leipzig, on the territory of the German Democratic Republic (GDR) for 56,000 East German marks. The house was built on land belonging to the State (volkseigenes Grundstück) over which the applicants obtained a usufruct (dingliches Nutzungsrecht) under Articles 287 et seq. of the Civil Code (Zivilgesetzbuch) of the GDR.
11. On 26 October 1989 the applicants made an official request for permission to leave the GDR, as they believed that they had been discriminated against on political grounds in their work.
The applicants say that they were informed by the District Internal Affairs Department (Abteilung innere Angelegenheiten des Stadtbezirks) in Leipzig that to obtain permission to leave the GDR permanently they would have to transfer (veräussern) their property by sale or gift.
12. On 8 December 1989 the applicants purported to transfer the property to a couple, Mr and Mrs Böllmann, by a notarial deed of gift in which the dwelling house was stated to be worth 120,000 East German marks. In reality, Mr and Mrs Böllmann paid the applicants 55,000 German marks (DEM) into a Swiss bank account.
13. The applicants say that the true value of their house and land would today be approximately DEM 600,000.
14. That figure is disputed by the Government, who say that the applicants had possessed only a usufruct over the land.
15. Following German reunification, the applicants attempted to recover their house and their usufruct over the land, firstly from the purchasers and subsequently in proceedings in the civil and administrative courts of the Federal Republic of Germany (FRG).
16. On 21 March 1991 the applicants applied to the Leipzig Court of First Instance (Kreisgericht) for an order for restitution of their house and rectification of the entry in the land register (Grundbuch).
17. The Leipzig Court of First Instance rejected that application on 26 June 1991.
18. In a judgment of 5 March 1992, the Leipzig District Court (Bezirksgericht) dismissed an appeal by the applicants, holding that they had no right to restitution. It pointed out that no transfer of property had in fact taken place, as both the gift and the sale in the GDR were null and void. However, the applicants were not entitled to rely on that nullity, as they had opted for that form of contract in full knowledge of the facts and the purchasers had not taken advantage of any coercion (Zwangslage) to which the applicants may have been subject at the time. The application for restitution accordingly failed under the principle of good faith and fair dealing (Treu und Glauben).
20. The applicants then lodged an administrative appeal with the Leipzig City Council requesting the restitution of their property. They relied on the Property Act.
21. In a decision of 2 June 1994, the Leipzig City Council turned down their request on the grounds that the conditions set out in section 1(3) of the Property Act (see “Relevant domestic law and practice” below) were not satisfied, as the applicants had not shown that they had acted under duress (Nötigung). Duress linked to a departure from the GDR could only have existed prior to the opening of the border on 9 November 1989. Thereafter, it was clear that all restrictions on leaving the GDR had been lifted.
22. The applicants appealed against that decision to the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung offener Vermögensfragen) of the Land of Saxony, which dismissed their appeal, again on the grounds that the applicants had not acted under duress following the opening of the border on 9 November 1989, and in particular following the Resolution of Property Issues Order (Anordnung zur Regelung von Vermögensfragen – see “Relevant domestic law and practice” below) of 11 November 1989 and its publication on 23 November 1989.
23. In a judgment of 21 December 1995, the Leipzig Administrative Court (Verwaltungsgericht) found against the applicants following a hearing.
It found that they were not entitled to restitution (Rücküber-tragungsanspruch) in the absence of any unfair dealings (unlautere Machenschaften) within the meaning of section 1(3) of the Property Act. The border had been opened on 9 November 1989, with the result that all citizens of the GDR had been free to leave the country, while the Resolution of Property Issues Order of 11 November 1989 stipulated that they were no longer required to transfer their property prior to their departure. However, the deed of transfer was only executed on 8 December 1989. It added that there had not been any deception (Täuschung) within the meaning of section 1(3) of the Property Act.
The Administrative Court also found that even if the previous position had remained unchanged, the conditions set out in section 1(3) of Property Act would not in any event have been satisfied, as the applicants did not own the land but merely had a usufruct over it. Under GDR legislation – the State-Owned Land (Grants of Usufructs) Act of 14 December 1970 (Gesetz über die Verleihung von Nutzungsrechten an einem volkseigenen Grundstück) – persons entitled to a usufruct were required to use the land themselves. Even if the applicants had moved house within the GDR, the land would have reverted to the State and the applicants' only entitlement would have been to compensation. The applicants had been aware of that situation, which is why they had sought to transfer their property.
24. By two decisions of 2 September and 22 October 1996, the Federal Administrative Court (Bundesverwaltungsgericht) declined to examine an application for review by the applicants.
It referred to its leading judgment of 29 February 1996 in which it had stated that instances of unfair dealings between 23 November 1989 (the date of publication of the Resolution of Property Issues Order in the Official Gazette (Gesetzblatt) of the GDR) and 31 January 1990 (when the Travel Order (Reiseverordnung) of the GDR dated 30 November 1988 was revoked) would be rare. The Leipzig Administrative Court had conducted a thorough review of the facts of the case and concluded that there had been no duress or deception within the meaning of section 1(3) of the Property Act.
The Federal Administrative Court also referred to its leading judgment of 29 August 1996, in which it stated that there would not be unfair dealing within the meaning of section 1(3) of the Property Act in cases in which the obligation to transfer property had arisen under the State-Owned Land (Grants of Usufructs) Act of 14 December 1970 of the GDR.
25. In two decisions of 22 January 1997, the Federal Constitutional Court (Bundesverfassungsgericht) declined to hear constitutional appeals by the applicants against either the civil courts' or the administrative courts' decisions.
It referred, inter alia, to its leading judgment of 8 October 1996 in which it had held that it was not unconstitutional for civil rights to be supplanted (verdrängt) by the provisions of the Property Act in cases involving the departure of GDR citizens for the FRG. Accordingly, the Federal Court of Justice's interpretation in the instant case was consistent with that authority.
27. During the reunification process in 1990, the two German governments began negotiations on the many property issues arising and subsequently issued the Joint Statement of the Federal Republic of Germany and the German Democratic Republic on the Resolution of Outstanding Property Issues (Gemeinsame Erklärung der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Regelung offener Vermögensfragen), which became an integral part of the German Unification Treaty (Einigungsvertrag) of 31 August 1990. The negotiations covered both the questions of restitution of property that had been expropriated in the GDR to its owners and the transfer of property by citizens of the GDR on leaving the country.
In the statement, the two governments said that in seeking solutions to the contentious property issues, they needed to find a socially acceptable balance (sozial verträglicher Ausgleich) between the competing interests, while taking into account the need for legal certainty and clarity and to protect the right of property.
28. The Resolution of Outstanding Property Issues Act of 23 September 1990, also known as the Property Act, entered into force on 29 September 1990 and was also a part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the reunified Germany after the reunification of the two German States on 3 October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, in order to achieve permanent legal order in Germany.
29. Section 1(3) of the Property Act provides:
“This Act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings, such as abuse of power, corruption, duress or deception by the purchaser, the State authorities or third parties.”
30. The Property Act established the principle of a right to restitution for citizens of the GDR who had been forced to transfer their property in order to leave the country legally, save where restitution was precluded, as for instance if the purchasers had acted in good faith (redlicher Erwerb) (section 4(2) of the Act). In such cases, the former owners had a right to compensation under the Resolution of Outstanding Property Issues (Compensation) Act of 27 September 1994 (Gesetz über die Entschädigung nach dem Gesetz zur Regelung offener Vermögensfragen).
31. However, the rule set out in section 4(2) of the Property Act does not apply in principle if the transfer was made after the transitional date of 18 October 1989 (when Mr Erich Honecker, President of the Council of State (Staatsratsvorsitzender) of the GDR, resigned) and without the parties' agreement (however, see below for the decisions of the Federal Court of Justice on this point).
32. The legislature deliberately chose to give the administrative courts jurisdiction for the interpretation of the Property Act in litigation concerning the transfer of property by citizens wishing to leave the GDR, in order to avoid direct confrontation between former owners and new owners in the civil courts. To that end, it set up offices for the resolution of outstanding property issues which were responsible for deciding the disputes by carrying out investigations of their own motion (Amtsermittlungsgrundsatz), while also having regard to the general interest.
35. In two further leading judgments of 14 January and 12 May 2000 (Fifth Civil Division, nos. 439/98 and 47/99), the Federal Court of Justice held that the Property Act could apply to legal transactions entered into after the transitional date of 18 October 1989 if the factors vitiating consent would have resulted in the transfer being null and void in the light of the new situation obtaining in the GDR, both on the facts and in law.


ITEMID: 001-58893
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF WLOCH v. POLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (abuse of process);No violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. Investigations concerning the applicant's suspected involvement in illicit foreign adoptions began on an unspecified date in 1993.
10. On 19 September 1994 the Cracow Regional Prosecutor charged the applicant with trading in children and incitement to give false testimony. On 20 September 1994 the Cracow Regional Prosecutor remanded the applicant in custody.
11. On 29 September 1994 the applicant was served with written grounds for the decision of 19 September 1994
12. The applicant lodged an appeal against this decision. He argued, inter alia, that the acts which he had been charged with committing could not possibly amount to the crime of trading in children. He further argued that in view of the fact that a significant number of witnesses had already been questioned by the prosecuting authorities, there was no likelihood that his remaining at liberty would in any manner jeopardise progress in the proceedings.
13. On 4 October 1994 the Cracow Regional Court examined the appeals against the detention order lodged with the court by the applicant and by his lawyers, Mr W.P. and Mr M.G. The applicant was not present, whereas the public prosecutor, Ms I.K.-B., attended the court session. The court allowed the lawyers to make oral interventions and then ordered them to leave the courtroom. Subsequently, the prosecutor addressed the court, arguing that the detention should be upheld. She argued that the legal qualification of the offence concerned was correct, relying on Article 35 of the United Nations Convention on the Rights of the Child.
14. By decision of the same date, the court dismissed the applicant's appeal against the decision to remand him in custody. It first acknowledged that the case was without precedent and raised difficult questions of fact and law. The court stated that in examining the decision under appeal, it had limited itself to assessing, from the point of view of provisions governing ordering and maintenance of detention on remand, in particular Article 209 of the Code of Criminal Procedure, the relevance and sufficiency of the evidence gathered against the applicant for ordering detention on remand. However, it stressed that it had refrained from examining closely the substantive-law issues involved in the case. The court further categorically observed that the evidence gathered so far did not justify a suspicion that the applicant had tried to exert undue pressure on policemen involved in the proceedings. However, the evidence in the case file did support a reasonable suspicion that he had committed an offence punishable under Article IX § 2 of the transitional provisions of the Criminal Code, which covered abduction of and trading in children for any purpose and in any form, including, in the court's opinion, situations in which offenders were motivated solely by profit. The court further considered that this provision should be interpreted in the light of the United Nations Convention on the Rights of the Child, which had been ratified by Poland in 1991. The court disagreed with the applicant's argument that he had been acting exclusively in his capacity as a lawyer, having regard to the fact that it transpired from the evidence that in his activities undertaken in connection with the adoption cases he had largely overstepped the limits of what would normally be expected from a lawyer in such cases. In particular, the applicant had been acting as a representative before the courts, but had also been actively seeking children for adoption. He had also been taking de facto and legal steps in order to create artificial situations, which would comply with the requirements of laws governing adoption. The court further agreed with the prosecutor's conclusion that in many cases the applicant's remuneration was improperly high, which seemed to contravene Article 21 of the United Nations Convention on the Rights of the Child. This, in the court's view, indicated that the applicant had been motivated solely by profit.
15. The court further considered that the assessment of the evidence as a whole warranted a conclusion that the legal requirements for detention on remand had been complied with. Firstly, the voluminous evidence showed that the suspicions against the applicant were well-founded. Secondly, the complexity of the case and the need to take further timeconsuming measures, such as questioning further witnesses and examining numerous documents, argued in favour of the applicant's continued detention in order to safeguard the proper conduct of the proceedings. The court finally considered that there was a risk that the applicant's release would jeopardise the proceedings, having regard in particular to the nature of the charges against him which had included fabricating false evidence for the purposes of adoption proceedings in order to mislead the courts.
16. On 28 October 1994 the Regional Prosecutor examined the applicant's request for release submitted to the Minister of Justice on 22 September 1994 and refused to allow it.
17. On 2 November 1994 the applicant asked to be released, or to have his detention replaced by a more lenient preventive measure.
18. On 14 November 1994 the Cracow Regional Prosecutor declined to entertain the applicant's request for release. The prosecutor considered that, in the light of the applicant's medical records and those of his wife, there were not sufficient grounds to accept his argument that he should be released as there were no indications that his continued detention entailed any danger to life or limb, or any particular hardship for him or for his family.
19. On 23 November 1994 the Cracow Regional Prosecutor ordered that a medical expert opinion be prepared by two psychiatrists and one psychologist in order to establish whether the applicant's health was compatible with his detention and whether he could be held criminally responsible.
20. On 2 December 1994 the Cracow Appellate Prosecutor dismissed the applicant's appeal against the decision of 14 November 1994 of the Regional Prosecutor. The Appellate Prosecutor considered that the assessment of the applicant's and his wife's medical records by the Regional Prosecutor had been correct. He further emphasised that the question whether the facts relied on by the prosecuting authorities to justify the applicant's detention could be considered as falling under Article IX of the transitional provisions of the Criminal Code had already been examined by the Regional Prosecutor in his decision of 29 September 1994 and by the Regional Court in its decision of 4 October 1994. Although it was true that the court had regarded this legal qualification as “controversial”, it had accepted the prosecutor's arguments that the applicant's detention was justified.
21. On 5 December 1994 the Cracow Regional Prosecutor assigned a further expert, a neuropsychology specialist, to examine the applicant in order to complete the medical data gathered in preparing the expert report ordered by the decision of 23 November 1994.
22. On 5 December 1994 the applicant asked to be interrogated by the Regional Prosecutor.
23. On 12 December 1994 the Cracow Regional Prosecutor requested the Cracow Regional Court to prolong the applicant's detention until 28 February 1995.
24. In reply to the applicant's letter of 5 December 1994, the Regional Prosecutor informed him on 16 December 1994 that, in view of the fact that the expert report had to be prepared, he could not have been interrogated before the submission of the prosecutor's request of 12 December 1994 to the court for prolongation of the detention. It was further stated that the relevant legal provisions did not provide for a prosecutor's request for prolongation of detention on remand to be served on an accused. The applicant was also informed that, in view of the fact that the evidence gathered in the investigations justified a conclusion that new developments were to be expected as regards further persons who would ultimately be charged in the case, his lawyer had been refused access to the case file in order to safeguard the proper conduct of the proceedings.
25. In a letter of 16 December 1994 the applicant complained again that he had not been questioned in the investigations since the day of his arrest.
26. On 19 December 1994 the Cracow Regional Court, at the request of the Cracow Regional Prosecutor, prolonged the applicant's detention for three months.
27. In a letter of 21 December 1994 to the Regional Prosecutor the applicant complained that the proceedings concerning the extension of his pre-trial detention were not adversarial, contrary to the requirements of Article 5 of the Convention as neither he nor his lawyer had been allowed access to the case file. He also complained that he was not allowed to participate in religious services in prison and requested permission to obtain new books and newspapers from his family.
28. In a reply of 10 January 1995 the Regional Prosecutor stated that the applicant had not been questioned because further evidence had to be gathered in order to ensure that his questioning be effective.
29. On 11 January 1995 the Cracow Court of Appeal examined the applicant's appeal against the decision of 19 December 1994. The court stated that the acts with which the applicant had been charged could not reasonably be qualified as trading in children within the meaning of Article IX of the transitional provisions of the Criminal Code. This was so because, in the assessment of what could constitute an offence of “trading in children”, regard had necessarily to be had to the fact that adoption was in a child's best interests, whereas the notion of trading in human beings inherently involved acts to the detriment of its victims. Whereas it was true, the court continued, that adoption did, to a certain extent, limit the liberty of the person to be adopted, its purpose was to improve the child's living conditions and to enhance its prospects of well-being. Therefore, the adoption in itself had to be perceived as beneficial for the child. In the case under examination, it had not been established by the investigating authorities that the acts with which the applicant had been charged had caused any harm to any children or to other persons. The court attached particular importance to the fact that Article IX of the transitional provisions of the Criminal Code, which penalised trading in human beings, was to be replaced, following a proposal of a committee charged with drafting a new code, by a separate offence of organising adoptions for commercial purposes. This indicated, the court emphasised, that it was impossible to charge the applicant with the offence laid down by Article IX of the transitional provisions, as the offence of trading in human beings was considered by a unanimous opinion of eminent legal scholars, members of the drafting committee, to constitute an offence separate from that of organising adoptions for commercial purposes. The court concluded that the fact that the applicant had acted as a lawyer in many adoption proceedings, and had received fees for doing so, was of itself not sufficient to found a reasonable suspicion that an offence punishable under Article IX had been committed. The applicant was released on the same day.
30. On 30 January 1995 the Cracow Regional Prosecutor decided to separate the proceedings concerning another lawyer, B.S., charged, together with the applicant, with trading in children, from the applicant's case.
31. On 23 March 1995 the applicant was to be questioned by the Cracow Regional Prosecutor. He maintained his earlier submissions and refused to testify, pleading that his defence counsel were absent. He also refused to comment on the documents collected as evidence during a search of his home on 20 September 1994.
32. On 12 April 1995 the applicant was due to be questioned in the presence of one of his defence counsel, Mr M.G. The applicant refused to give evidence, invoking his professional obligation not to reveal information gathered when representing clients.
33. On 8 May 1995 the United States District Court for the western district of Pennsylvania, upon letters rogatory from the Cracow Regional Prosecutor, ordered that certain witnesses be questioned in connection with the proceedings against the applicant. The court had regard to information submitted by the prosecutor to the effect that the Polish Criminal Code forbade Polish citizens to intervene in adoption proceedings for commercial motives and for profit. The witnesses were to be heard in order to obtain information concerning how the adoptive parents had obtained knowledge of the possibility of adopting Polish children, how they had proceeded to obtain the final judicial decisions on the adoption and what had been the applicant's role.
34. By letters of 2 June, 25 July and 14 September 1995 the Cracow Regional Prosecutor requested the Department of International Judicial Assistance of the Ministry of Justice to take steps with a view to expediting execution of letters rogatory addressed to the judicial authorities of the states of New York, Illinois and New Jersey.
35. On 17 June 1995 the applicant complained to the Minister of Justice about the manner in which the proceedings were being conducted. He complained in particular that, despite the considerations set out in the Court of Appeal's decision of 11 January 1995 to release him, the criminal proceedings were still being pursued. He further submitted that his private telephone was being tapped. He complained about a press campaign against him which, in his view, was inspired by Mr A.S., the President of the Supreme Court and at the same time a candidate in the national presidential election. He finally complained about the letters rogatory submitted to the American authorities on the ground that they erroneously stated that organising adoptions for commercial purposes was a criminal offence punishable under Polish law.
36. In reply, in a letter of 4 July 1995, the Cracow Appellate Prosecutor informed the applicant that an examination of the case files, comprising forty-six volumes, had shown that his complaints were ill-founded. The fact that the Court of Appeal had ruled that the applicant's detention should not be continued had no bearing on the issue of his criminal responsibility. As regards the complaint that his phone was being tapped, the prosecutor's office had not issued any authorisation to that effect. If the applicant had any information indicating that his phone was being tapped illegally, it was open to him to request the institution of criminal investigations in this respect. In so far as the applicant complained that the criminal proceedings against him had been instituted for political motives, this complaint did not call for any comment, in particular in the light of the evidence gathered in the investigations and in view of A.S.'s public statements. As regards the letters rogatory, their legal basis was to be found in Chapter XII of the Code of Criminal Procedure. The complaint that in the applicant's case they amounted to an “abuse of law” was unfounded.
37. In a letter of 12 August 1995 to the Minister of Justice the applicant alleged that the reply of 4 July 1995 had failed to address his complaints adequately. He emphasised that in the light of the Cracow Court of Appeal's decision of 11 January 1995 the legal qualification of the charges against him was untenable. He further insisted that the prosecutor was well aware of the phone-tapping and that his allegations on the subject were well-founded. He further stressed that he had in fact requested that an analysis be made, in the light of the material gathered by the police using informal methods of obtaining evidence, of the extent to which the manner of conducting his case had really been influenced by A.S., the President of the Supreme Court, who had made “protection of the Polish family” one of the crucial slogans of his presidential campaign. He finally reiterated that in the letters rogatory the Polish authorities had misled the American court as to the legal qualification of the charges against him, in that they had stated that the organising of adoptions amounted to a criminal offence.
38. By letter of 22 September 1995, the Department of International Judicial Assistance informed the prosecuting authorities that its request had been forwarded to the Polish embassy in Washington on 7 September 1995. On 17 October 1995 the Regional Prosecutor received the evidence collected in pursuance of letters rogatory by the judicial authorities of Pennsylvania.
39. On 13 November 1995 the Regional Prosecutor again requested the Ministry of Justice to intervene in order to expedite the execution of the letters rogatory. On 23 November 1995 the Ministry of Justice forwarded this request to the Polish embassy in Washington. On 8 January 1996 the Ministry of Justice transmitted certain evidence collected in New Jersey to the Cracow Regional Public Prosecutor.
40. By letters of 23 February, 21 March and 5 July 1996 the Cracow Regional Public Prosecutor submitted to the Ministry of Justice fresh requests for intervention in order to have letters rogatory carried out. The prosecutor stressed that the investigations could only be completed after collecting the necessary evidence from abroad, and asked for information as to a possible date of execution of the letters rogatory. In reply, by letters of 4 March and 19 July 1996, the Ministry of Justice once again requested the Polish Embassy in Washington to take the necessary steps to expedite their execution.
41. In a letter of 9 April 1996 the applicant requested the Minister of Justice to supervise the conduct of the case. He complained that his passport had been invalidated and that the relevant proceedings were pending before the Supreme Administrative Court. He further submitted that he had not had any access to the investigation files. He complained that the case had been pending since at least the beginning of 1993 without any decision on the merits having been rendered, and that, as a result of these proceedings, his reputation had suffered badly.
42. On 27 May 1996 the Cracow Regional Prosecutor requested the New York courts to take further evidence from three witnesses.
43. By a letter of 16 September 1996, served on the Cracow Regional Prosecutor on 15 October 1996, the United States Department of Justice asked the Polish authorities whether the last witness from the district of New York was still to be questioned. In reply, they were informed on 31 October 1996 that the Cracow Regional Prosecutor was still awaiting the evidence from the witnesses from the districts of New York and New Jersey.
44. On 7 March 1997 the Cracow Regional Prosecutor asked the United States consulate in Cracow for assistance and intervention in order to accelerate the collection of evidence upon his letter rogatory of 26 May 1994.
45. On 7 April 1997 the Cracow Regional Prosecutor again asked the Ministry of Justice to intervene. The prosecuting authorities stressed that they were awaiting the testimony of nine witnesses from New York and two witnesses from New Jersey. They stressed that the length of the investigation was due exclusively to the delay in executing the letters rogatory.
46. In a letter received on 15 April 1997 the Cracow Regional Prosecutor obtained the testimony of one further witness. In that letter the United States Department of Justice asked for more detailed information concerning the whereabouts of witnesses to be questioned. By letter of 28 May 1997, the Cracow Regional Prosecutor once again submitted the information requested.
47. On 20 November 1997 the Cracow Regional Prosecutor once again requested that the Ministry of Justice take appropriate steps for the evidence to be collected by the United States authorities. On 10 December 1997 the Polish Ministry of Justice informed the Cracow Regional Prosecutor that no further evidence in the case had been submitted by the United States authorities.
48. By a letter of 3 February 1998 served on the Cracow Regional Prosecutor on 23 February 1998, the United States Department of Justice informed the Polish authorities that further steps had been taken in order to gather the evidence requested.
49. By a letter of 9 June 1998 the Ministry of Justice reiterated its request, submitted to the United States Department of Justice, for prompt execution of the letters rogatory. In reply, on 8 October 1998 the Cracow Regional Prosecutor was supplied with further evidence, the testimony of one witness, D.L.
50. On 25 August 1998 the investigations were prolonged until 31 December 1998. By a decision of 30 December 1998 the Minister of Justice again prolonged the investigations, until 30 June 1999. He stressed that the process of collecting evidence following letters rogatory submitted to the United States judicial authorities had not been completed. The same reason was invoked by him in his decision to prolong the investigations further until 30 June 2000.
51. On 8 December 1998 witness B.B. was questioned by the Cracow Regional Prosecutor.
52. On 4 February 1999 the Regional Prosecutor refused the applicant access to the case file, considering that this would jeopardise the proper course of proceedings in which evidence was still being gathered.
53. By a letter of 22 March 1999 the Ministry of Justice again asked the United States Department of Justice for the execution of outstanding letters rogatory without further delay.
54. By a letter of 23 March 1999 the Cracow Regional Prosecutor once again requested the Ministry of Justice to take appropriate steps in order for the execution of the letters rogatory to be completed. On 19 April and 9 June 1999 the Ministry of Justice resubmitted this request to the United States Department of Justice.
55. On 23 July 1999 the Cracow Regional Prosecutor received a letter from the United States Department of Justice, informing him that the United States judicial authorities, in cooperation with the FBI, had taken the necessary steps to discover the place of residence of three further witnesses, and that in the near future the prosecution should receive further information.
56. By a letter of 22 July 1999, served on the Cracow Regional Prosecutor on 24 August 1999, the United States Department of Justice assured the Polish authorities that further evidence should be taken in the near future.
57. By a letter of 5 January 2000 the Ministry of Justice once again asked the United States Department of Justice to accelerate the execution of the letters rogatory.
58. On 25 January 2000 the applicant requested the Cracow Regional Prosecutor to grant him access to the case file. On 4 February 2000 this request was refused.
59. On 28 April 2000 the applicant was summoned to appear before the Cracow Regional Prosecutor on 12 May 2000. The prosecutor informed the applicant that on this date additional charges under the new Criminal Code were to be brought against him, and that afterwards he would be granted access to the case file.
60. By a letter of the same date the applicant requested the Cracow Regional Prosecutor to set a later date for his examination. Furthermore, he informed the Cracow Regional Prosecutor that on account of his earlier professional commitments he would not be able to read the case file until after 29 May 2000.
61. Subsequently, the Cracow Regional Prosecutor fixed 18 May 2000 as the date for questioning the applicant. On that day the applicant was charged with twenty-six counts of trading in children, eleven counts of incitement to give false testimony and of forgery. On the basis of the evidence gathered abroad following letters rogatory, the Cracow Regional Prosecutor calculated that the applicant's financial profits gained from trading in children between 1988 and 1993 were not less than 260,517 United States dollars and 25,000 French francs. During this period the applicant had paid to biological parents a sum of not less than 23,146 zlotys.
62. The proceedings are still pending.
63. Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1969 (the “old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament (Sejm) on 6 June 1997, which entered into force on 1 September 1998. Likewise, the 1969 Criminal Code was replaced by a new Code adopted on 6 June 1997, which also entered into force on 1 September 1998.
64. The old Code of Criminal Procedure was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning the ordering of detention on remand was postponed until 4 August 1996. According to these provisions, detention on remand was to be ordered by a judge, whereas before it was ordered by a prosecutor.
65. The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”), entered into force on 1 January 1996.
66. The Polish Code of Criminal Procedure of 1969, applicable at the relevant time, listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
67
68. Article 217 § 1 (2) and (4) of the Code of Criminal Procedure, as applicable at the material time, provided that detention on remand could be ordered if, inter alia, there was a reasonable risk that the accused would attempt to abscond, to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means, or if the accused had been charged with an offence which created a serious danger to society.
69. At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his or her detention and thus possibly obtain release. Under Article 221 § 2 of the Code of Criminal Procedure of 1969 he could appeal to a court against a detention order made by a prosecutor. Under Article 222 §§ 2 (1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor's request. Finally, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
70. Under all the relevant provisions of the Code of Criminal Procedure of 1969 read together, a detainee was entitled to appeal against any decision prolonging his or her detention on remand, regardless of whether it had been made at the investigative or the judicial stage of the proceedings.
71. The imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in proceedings held in camera. The presence of the parties at court sessions other than hearings, including sessions held in proceedings concerning review of detention on remand, was regulated in Articles 87 and 88 of the Code of Criminal Procedure, the relevant parts of which provide:
“The court pronounces its decisions at a hearing if the law so provides; and otherwise, at a court session held in camera. ...”
“A court session in camera may be attended by a prosecutor ...; other parties may attend if the law so provides.”
72. According to Article 249 of the 1997 Code of Criminal Procedure, before deciding on the application of preventive measures, the court must hear the person charged. The lawyer of the detainee should be allowed to attend the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.
73. Under the provisions of the new Code, the court has to inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to order or to prolong detention on remand is to be considered.
74. Article IX of the transitional provisions of the 1969 Criminal Code provided that a person who delivered, enticed or abducted other persons for prostitution purposes, even with the person's consent, committed an offence punishable by a prison sentence of not less than three years. Under paragraph 2 of this provision the same sentence could be imposed on a person who engaged in trading in women or children.
75. On 25 June 1990 the then Deputy Minister of Justice, A.S., sent a letter to the presidents of regional courts stating that in 1989 there had been a rapid growth of cases in which courts ruled on adoptions of Polish children of which the adoptive parents were foreigners. As a result, approximately one thousand children had left the country for good. This data should be considered as disturbing, the more so as it had been mainly small children that had been adopted. Public opinion was alarmed by the growing numbers of foreign adoptions. It was true that Polish law laid down the same requirements for adoptions, regardless of the nationality of the future adoptive parents, and that the children's welfare was a consideration of paramount importance for all adoption cases. However, the notion of a child's welfare should also include protection of its national identity. Hence, foreign adoptions should take place only in exceptional cases and the courts should first examine whether the child could not find adoptive parents in Poland. The presidents of the courts were invited to consider whether in cases in which the same persons were repeatedly acting as intermediaries in connection with the adoption proceedings, it was not advisable to inform the prosecution authorities accordingly. The presidents were finally requested to supervise closely this category of cases and to take measures in order to eliminate the climate favouring foreign adoptions.
76. Under Article 2 of the transitional provisions of the new Criminal Code, the transitional provisions to the 1969 Code were repealed.
77. Under Article 253 § 1 of the new Code, a person who trades in human beings, even with their consent, commits an offence punishable by a prison sentence of not less than three years. According to paragraph 2 of the same Article, a person who, with a view to obtaining profit, organises adoptions of children in a manner contrary to the law commits an offence punishable by a prison sentence of between three months and five years.
78. On 30 September 1994 the journal Rzeczpospolita published an article written by a renowned specialist in criminal law, entitled “Is it really trading in children?”. The author expressed strong doubts as to whether the offence punishable by Article IX of the transitional provisions of the 1969 Criminal Code could be applied in a context other than trading in human beings for the purposes of prostitution. It was emphasised that in view of the historical background to this provision, dating back to international treaties of 1910 concluded for the purposes of combating international networks deriving profits from prostitution, it could not be applied to situations concerning adoptions of children in which no allegations were made of there being any links or intentions related to organising prostitution.
79. On 29 November 1995 the Supreme Court replied in the negative to a legal question put to it by the Warsaw Court of Appeal, in the context of criminal proceedings concerning charges made under Article IX of the transitional provisions of the 1969 Criminal Code (namely, whether an intention to coerce a victim of the offence of trading in children into practising prostitution was a constituent element of this offence).
80. On 3 November 1999 the Warsaw Regional Court, in the same criminal proceedings in which five accused had been charged with an offence punishable under Article IX of the transitional provisions of the 1969 Criminal Code, discontinued the proceedings against them. The court recalled that in view of the fact that this Article had ceased to be in force, the prosecuting authorities had amended the charges by qualifying the acts which the applicants had been charged with committing as an offence punishable under Article 253 § 2 of the new Code. The court considered that this qualification could not be upheld. There were no grounds for accepting that the notion of “trading in children” also included the acts in question, which could only be regarded as organising illicit adoptions. It was only under the new Criminal Code, in force from 1 September 1998, that organising illicit adoptions had become a criminal offence. Consequently, the court had to discontinue the proceedings pursuant to Article 17 § 1, item 1, of the new Code, which provided that criminal proceedings had to be discontinued if the charges against the accused had not been made out.
81. On 4 February 2000 the Warsaw Court of Appeal, following the prosecutor's appeal against this decision, amended it in part, considering that the proceedings against the accused concerning the charges of trading in children should have been discontinued on the ground that the acts with which they had been charged had not amounted to a criminal offence punishable at the time of their commission. The court recalled that the accused had been indicted with trading in children on the basis that they had, with a view to profit, visited hospitals, orphanages and hostels for single mothers, trying to persuade the biological parents to place their children for adoption, in certain cases for money. Their actions had further been described as taking children away from their biological parents and taking further care of them, followed by taking steps to institute adoption proceedings. The accused had allegedly also arranged transfers of children to foreign citizens and made payments to the biological parents. The court considered that these acts could be qualified neither as trading in children within the meaning of the repealed Article IX of the transitional provisions of the old Code, nor as trading in human beings within the meaning of Article 253 § 1 of the new Criminal Code. Such acts could only be construed, regard being had to their nature, as organising foreign adoptions, in certain cases for commercial motives. As a result, these acts at the time of their commission, that is, from 1990 to 1993, had not constituted criminal offences, given that it was only under the 1997 Criminal Code, which had entered into force on 1 September 1998, that they could have been qualified as falling within the ambit of Article 253 § 2 of that Code, penalising the organisation of adoptions for commercial motives. Consequently, the proceedings should have been discontinued on the ground that the acts concerned had not coincided with the constituent elements of the offence of trading in children as defined by the Polish law at the material time, and not on the ground that the charges against the accused had not been made out.
82. On 30 April 1991 Poland ratified the United Nations Convention on the Rights of the Child which, in its relevant provisions, reads:
“1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. ...”
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.”
83. Chapter 50 of the 1969 Code of Criminal Procedure, as applicable at the material time, provided in Article 487 § 4 for compensation for damage arising out of manifestly unjustified detention on remand and for arrest and detention up to forty-eight hours. The regional court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the regional court could be appealed to the court of appeal.
84. According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the last decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention under Article 487 of the Code could not be lodged until the criminal proceedings against the person concerned had been terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. i Pr.inter alia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7).
85. Chapter 58 of the 1997 Code of Criminal Procedure provides for a request for compensation for, inter alia, unjustified detention. Article 552 § 4 of the current Code is an equivalent of Article 487 § 4 of the 1969 Code.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
6
NON_VIOLATED_PARAGRAPHS: 5-1
6-1


ITEMID: 001-23574
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HANSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicants, Ms Ann-Louise and Rebecca Hansson are Swedish nationals, who were born in 1964 and 1993 respectively. They live in Värnamo, Sweden. They were represented before the Court by Mrs Siv Westerberg, a lawyer practising in Gothenburg.
By a County Administrative Court (Länsrätten i Jönköpings Län) judgment of 26 June 1997, R was taken into public care pursuant to the Act with Special Provisions on the Care of Young Persons (lagen med särskilda bestämmelser om vård av unga, 1990:52 - hereafter the 1990 Act). A, the Social Board (socialnämnden) and five witnesses were heard, among the latter a consultant specialised in child and youth psychiatry. The court found it established that A was very suspicious and in conflict with many persons; that A involved R in her conflicts; that A did not set any boundaries to R; that consequently R’s behaviour had become socially unacceptable; that there was a palpable risk of impairment of the health and development of R due to lack of proper care; that A had failed to provide proper care; and that A refused to receive assistance from the social authorities.
On appeal, the judgment was confirmed by the Administrative Court of Appeal (Kammarätten i Jönköping) on 28 August 1997. The Supreme Administrative Court (Regeringsrätten) refused leave to appeal on 9 January 1998.
On 14 August 1997 both applicants were placed at a care centre called Elisabethgården, specialising in treating and taking care of mothers and their children. On 4 May 1999 A was discharged from the centre, on demand of the staff, who found her behaviour obstructive. On 12 May 1999 the Social Board decided to place R with a foster family. Moreover, the Board exceptionally ordered a temporary prohibition on contact between A and R and the concealment of the foster family’s identity. On appeal to the County Administrative Court, A requested that the orders to take R into public care and to place her with a foster family be revoked. She consented to care continuing on a voluntarily basis entailing placement of both of them at a centre. Also, she requested that the prohibition on contact between her and R be revoked.
A stated among other things that she would be more motivated to undergo treatment if the care continued on a voluntarily basis. She admitted having had conflicts at Elisabethgården but found that this could be imputed mainly to her disagreements with the superintendent on therapy issues. The disputes that she had had with other persons there were in her opinion irrelevant. Also, recently she had commenced seeing a psychologist.
The Social Board, a social worker and the superintendent of Elisabethgården, all stated among other things that A lacked insight in R’s need for care; that A exhibited an increasingly aggressive, harassing and even hateful behaviour towards others, which had resulted in Elisabethgården discharging her; that A constantly involved R in her conflicts to the detriment of R’s mental health; and that in their opinion the foster family would not be able to stand the strain that contact with A unavoidably would entail.
A teacher, who had seen R and A approximately once a month from the summer of 1997 until the end of 1998 stated inter alia that in her opinion A and R’s relationship was very close, and that they were very dependent on each other.
A clergyman, who regularly had met A and R during their stay at Elisabethgården, stated inter alia that in the beginning they were very deviant, vociferous and restless. However, they had developed in a positive direction.
By judgment of 2 July 1999 the County Administrative Court found against A, stating as follows:
It is undisputed in the present case that [R] is in need of care. Firstly [A] has requested that the care order be revoked in order that care continues on a voluntarily basis by placing her and [R] at a treatment centre. The care centre Elisabethgården has stated that it does no longer wish to receive [A]. Accordingly, continuing care at Elisabethgården is excluded. No elements have been brought to light in the present case, which could indicate that treatment at another care centre would have any prospect of success.
The Social Board has assessed that now only the placement of [R] with a foster family can provide the needed care. [A] cannot accept such a placement. Against this background, there are no possibilities left to continue care on a voluntary basis; consequently [the court] refuses to revoke the care order.
Secondly, A has claimed that the court revokes the decision to place [R] with a foster family. Such a claim entails that public care continues at Elisabethgården or at another appropriate treatment centre, placing mother and daughter together. As stated before, however, continuing care at Elisabethgården is no longer an option, and care at another treatment centre does not appear to be a realistic alternative. In these circumstances in the Social Board’s opinion the needed care can only be provided by a foster family. The court shares this view. Accordingly, it lacks reasons to revoke the Social Board’s decision as to the replacement [of R].
Finally, as to revocation of the prohibition on contact and the concealment of [R’s] whereabouts it must be emphasised that the provisions authorising the imposition of such measures must be interpreted restrictively. Having regard to the statements submitted on [A’s] intriguingly and aggressively behaviour, to the detriment of the intended and needed treatment of [R], the court finds that the Social Board had justified cause for its decision temporarily to prohibit contact. Moreover, taking into account the information submitted as to the risk that [A] may go underground with her daughter, and to the foster family’s prospects of handling contact with [A], the court finds that the Social Board had justified cause for its decision to conceal [R’s] whereabouts. It is definitely appreciated that [A] now is in touch with a psychologist, but it has not been established that she has made such progress, that could result in considerations of revoking the said restrictions. [A’s] appeal is to be refused in its entirety.
The judgment was upheld on appeal on 9 September 1999 by the Administrative Court of Appeal. Leave to appeal was refused on 1 December 1999 by the Supreme Administrative Court.
According to the 1990 Act the social authorities are under an obligation to review regularly whether public care is still necessary. By decision e.g. of 10 November 1999 they upheld public care and the temporary prohibition on contact, which on appeal was confirmed by the County Administrative Court on 10 December 1999.
A appealed to the Administrative Court of Appeal, before which A invoked two statements of 21 December 1999 and 2 January 2000, respectively, from a psychiatrist, GL, who found it established that A did not suffer from any serious mental disorder, and that further examination was necessary in order that he assess whether she suffered from a slight mental illness or disorder. Also she invoked an opinion by a professor, BE, who gave his view on the social authorities’ handling of the case.
A was heard before the court and explained inter alia that allegedly the foster family was maltreating R. Her daughter had lost weight, and e.g. when in July 1999 A had found the foster family’s residence, she had paid R a visit, during which she found out that R had bruises all over because she had been beaten up by the foster parent’s two boys.
The Social Board invoked inter alia a psychiatric statement of 20 March 2000 on R, in which a consultant, TG, and a psychiatrist, ACS, stated that R’s mental state had improved; that she had expressed a wish to remain with the foster family; and that she objected to live with her mother. They found that R had been gravely deviant during several different periods in her upbringing, and they recommended that the placement with the foster family be prolonged in order that R’s commencing positive development continued. Moreover, they recommended that access be established between mother and daughter, however, in a foreseeable, safe, and clear setting.
As regards A, the Social Board invoked a statement procured by a psychologist, PM, and a consultant UL, who found that A did not exhibit any clear signs of a serious mental illness, rather her difficulties concerned a personality disorder, most likely of a paranoid sort.
Other statements on A were submitted, among others by two psychiatrists, IP and AB.
By judgment of 9 May 2000 the Administrative Court of Appeal refused to revoke the care order on the following grounds:
“...Having regard to the statement by Elisabethgården, and several psychiatrists, IP, AB, and UL, the court finds that [A] does have weaknesses; some form of personality disorder, which influences her behaviour towards other people and her ability to provide [R] with a favourable development. [A] lacks insight in her own need for help, and as long as she does not appear at summoned and necessary examinations, and commence treatment, she cannot appropriately take responsibility for the care of [R]. The statements submitted by GL and BE do not alter this assessment. [R] has a need for special care, which [A] cannot [presently] provide her”
However, the Administrative Court of Appeal revoked the prohibition on contact and ordered that access be initiated and progressively increased, commencing as from 20 May 2000 with two hours every third Saturday. It further noted that according to Section 11 of the 1990 Act it is at the social authorities’ discretion to decide where access is going to take place, the exact time, and who are to be present. A’s request for leave to appeal against the judgment was refused by the Supreme Administrative Court on 27 July 2000.
The social authorities decided that access should take place in the foster family’s home and be subject to surveillance. On 14 June 2000 the social authorities increased A’s access to three hours every third Thursday. The change of weekday was explained by lack of staff resources and the fact that the social authority office was closed during weekends. A brought this decision before the County Administrative Court, and claimed that the court intervened by an interim measure. The court refused this on 18 July 2000. A appealed to the Administrative Court of Appeal, which by decision of 31 July 2000 found for A and maintained that access take place on Saturdays as set out in its judgment of 9 May 2000.
Moreover, A initiated proceedings before the County Administrative Court claiming inter alia access every weekend from Friday to Sunday at a place a her discretion and without any surveillance. By judgment of 9 August 2000 the County Administrative Court granted access four hours every second Saturday. The exact time, place and whom to be present remained at the social authorities’ discretion. The judgment was upheld on appeal by the Administrative Court of Appeal on 26 September 2000. Leave to appeal was refused by the Supreme Administrative Court on 26 January 2001.
In the period between July 1999 and October 2001, A initiated more than twenty sets of various court proceedings claiming e.g. the care order revoked, change of foster family, access increased, and change as to the time and place of access.
It emerges from a judgment of 23 May 2001 by the County Administrative Court that access had functioned well since August 2000; that A had access four hours every second Saturday under surveillance; and that it took place by turns at the foster family’s home in Älmhult and at A’s home in Bredaryd. Also, in accordance with a recommendation from a psychiatrist, the social authorities had made several attempts to unite the foster family and A, but this had failed due to A’s resistance. As to one of A’s claim, that access took place every weekend from Friday 6 p.m. until Sunday 6 p.m., and during all school holidays, she submitted among other things that Älmhult was not accessible by public transportation. The court found against her on all points, and stated inter alia that it was not for the court to decide on her transport. On appeal, A abstained from submitting that Älmhult was not accessible by public transportation. By judgment of 8 October 2001 the Administrative Court of Appeal increased access to six hours every second Saturday. On 16 October 2001 the applicant A requested that the Supreme Administrative Court grant her leave to appeal against the judgment. It appears that leave to appeal was refused.
The decisions disputed in the present case were taken under the Act containing Special Provisions on the Care of Young Persons 1990 (lagen 1990:52 med särskilda bestämmelser om vård av unga – “the 1990 Act”).
Compulsory public care may be ordered under the 1990 Act (Section 1 § 2) and is to be provided, inter alia, if there is a clear risk of impairment of the health or development of a person under eighteen years of age due to illtreatment, improper exploitation, lack of care or any other condition in the home (Section 2).
The Social Board may decide to take a child into care immediately on a provisional basis if later court proceedings concerning compulsory care cannot be awaited on account of the risk to the child’s health or development or of the risk that the continuing examination will be obstructed (Section 6). Such a decision shall be submitted to the County Administrative Court for approval (Section 7).
An order committing a child to care on a permanent basis is issued by the County Administrative Court on application by the Social Board. The application shall include a description of the circumstances concerning the child, measures previously taken and the care that the Social Board intends to arrange (Section 4).
Once public care has been ordered, it is executed by the Social Board, which decides on the details of the care. In particular, the board shall decide on how the care is to be arranged and where the child is to live (Section 11).
The council shall ensure that the child’s need of contact with parents and other custodians is met to the utmost possible extent. The council may decide on how this access is to be arranged pursuant to Section 14 of the 1990 Act, which provides:
“The Social Council is responsible for accommodating as far as possible the young person’s needs of contact with his parents or other person who has custody of him.
If it is necessary in order to achieve the purposes of care measures taken under this Act, the Social Council may
1. decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him, or
2. decide that the young person’s place of residence may not be disclosed to the parent or custodian.
The Social Council shall reconsider at least once every three months whether such decision as referred to in the second paragraph continues to be needed.”
When public care is no longer necessary, the Social Board shall order the termination of the care (Section 21).
Decisions taken by the Social Board as to, inter alia, the continuation of the care and the parents’ access may be appealed against to the County Administrative Court (Section 41). The County Administrative Court may review a decision by the Social Council in so far as its subject-matter is covered by Section 14 of the 1990 Act (or Section 16 of the 1980 Act; see Yearbook of the Supreme Administrative Court, Regeringsrättens Årsbok 1984, 2/38).
The court’s decisions and judgments may be appealed against to the Administrative Court of Appeal and the Supreme Administrative Court (Section 33 of the Administrative Procedure Act (Förvaltningsprocesslagen, 1971:291)).