ITEMID: 001-79864
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: COLLINS AND AKAZIEBIE v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: Emily Collins (the first applicant), born in 1977, is the mother of Ashley Akaziebie (the second applicant), born in September 2002. They are both Nigerian nationals from Delta State. They are represented before the Court by Mrs Lena Isaksson, a lawyer practising in Umeå.
The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant entered Sweden on 21 July 2002 and applied for asylum or a residence permit. She was not in possession of any travel documents or identity papers. On 20 September 2002 her daughter, the second applicant, was born.
According to the report of the asylum interview, the first applicant explained that she was from Agbor in Delta State and had lived there all her life. She lived together with her parents and three brothers. She went to school for twelve years. She had a husband named Akazi. Her sister had died in 2001, allegedly following childbirth combined with female genital mutilation (“FGM”). According to Nigerian tradition, women were forced to undergo FGM when they gave birth. As the first applicant was pregnant, she was afraid of this inhuman practice. Neither her parents nor her husband could prevent this since it was such a deep-rooted tradition. She claimed that if she had travelled to another part of Nigeria to give birth to her child, she and her child would have been killed in a religious ceremony. Moreover, the first applicant’s husband and parents would not have been able to protect them from FGM. Instead, she had decided to flee the country. She got in touch with a man in Nigeria, who offered to take her to a European country to seek asylum. They travelled to another African country. She did not know which one. From there they went by plane to Europe, and then by train to Sweden. She paid 1,000 dollars to the smuggler.
In written submissions of 12 December 2002 the first applicant’s counsel repeated that the first applicant’s husband could not protect her from FGM. Being a businessman earning more than a thousand dollars per year, he had, however, been able to finance the first applicant’s escape. He was thus happy that she had escaped and given birth to a healthy child.
On 13 June 2003 the Migration Board (Migrationsverket) rejected the applications for asylum, refugee status or a residence permit. Firstly, it noted that FGM was not included as a ground for asylum under the Aliens Act. Secondly, it stated that FGM was prohibited by law in Nigeria and that this prohibition was observed in at least six Nigerian states. Thus, if the applicants returned to one of those states it would be unlikely that they would be forced to undergo FGM.
The applicants appealed against the decision to the then Aliens Appeals Board (Utlänningsnämnden – hereinafter the “Appeals Board”), maintaining their claims and adding that the practice of FGM was deeply rooted in Nigeria and persisted despite the law against it. Moreover, those carrying out the actual “operation” were never prosecuted or punished. Thus, the applicants alleged that they would not be able to obtain any help or protection from the authorities. The first applicant also referred to her relationship with a Swedish citizen.
On 1 March 2004, the Appeals Board dismissed the appeal, endorsing the Migration Board’s reasoning and conclusion in full.
Subsequently, the applicants lodged three so-called “new applications” with the Appeals Board.
The first one was lodged on 5 April 2004. In it the applicants added that women who refused to undergo FGM were stigmatised and excluded from society and their family. Thus, it would also be very difficult for a woman to settle in another part of the country since she would have no support, and the family and tribe to which she belonged would always find her. The Appeals Board rejected the application on 14 April 2004 as it found that the applicants had provided no new information.
The second application was lodged on 21 June 2004 and enclosed a statement by a professor emeritus of African languages, Tore Jansson, and a statement by a regional protection officer from the UNHCR, Brian Gorlick, both confirming that in general FGM was widespread in Nigeria. The Appeals Board turned down the application on 1 July 2004.
The third application was lodged on 14 June 2005. In it the first applicant submitted that in fact she had already been subjected to FGM. She maintained, however, that she would not be able to protect her daughter from suffering the same fate on returning to Nigeria. The Appeals Board rejected the application on 21 June 2005. It considered that the applicants had failed to show that they were in need of protection in Sweden or that it would violate the standards of humanity to deport them to their home country.
On 27 April 2006 the first applicant gave birth to a second daughter. The latter has applied for a residence permit to the Migration Board, before which the case is pending.
On 4 May 2006 the Migration Board, examining the applicants’ cases on its own initiative in accordance with a temporary provision of the Aliens Act, found that the applicants could not be granted residence permits under the temporary wording of Chapter 2, section 5 b of the Aliens Act.
In the applicants’ letter of 7 July 2005 the first applicant submitted that she did not have any contact with her family in Nigeria. Nevertheless, she had heard that the second applicant’s father had been forced to leave the village because he had been harassed and accused of having let the first applicant leave the home and “escape” from FGM. She also claimed that she had had an ultrasound examination when she was six months pregnant and had thus known that she was expecting a girl and naturally wanted to protect her as well.
Following an indication given by the Court on 8 July 2005 under Rule 39 of the Rules of Court, the applicants’ deportation was stayed until further notice.
Having decided to communicate the application on 13 December 2005, the Court requested that the parties submit observations as to the complaint. In addition, it specifically invited the first applicant to reply to the following questions:
“Why did she choose to go to Sweden? How did she manage to leave Nigeria and enter Sweden? What was her itinerary? Who bought her tickets? How much did the tickets and the travel expenses amount to? Can the sponsor thereof not assist the applicants financially or practically if they were to return to Nigeria? Have the applicants made any effort to seek help from the various non-governmental organisations in Nigeria who are engaged in matters concerning women’s rights? In the affirmative, the applicants are invited to substantiate this fact. Why did the applicant mother not submit to the domestic authorities from the very beginning the fact that she had already been subjected to FGM? Finally, she is requested to substantiate her allegation before the Court that she had an ultrasound examination made when she was six months pregnant.”
The first applicant never replied to the above questions.
In her observations of 22 December 2006, she referred to the information already provided. In addition, she explained that it was through a slip of the pen that she had previously stated (in a letter of 27 June 2005 to the Court and the application form of 16 August 2006) that she was born in 1984. She was in fact born in 1977. Moreover, she stated that she had never been married to the second applicant’s father and that he had broken off all contact with the applicants.
A new Aliens Act (SFS 2005:716), replacing the 1989 Aliens Act, entered into force on 31 March 2006. The Act establishes a new system for examining and determining applications for asylum and residence permits. While the Migration Board continues to carry out the initial examination, an appeal against the Board’s decision is determined by one of the three new migration courts. The Migration Court of Appeal is the court of final instance. It examines appeals against the decisions of the migration courts, provided leave to appeal is granted. Upon the entry into force of the new Act, the Aliens Appeals Board ceased to exist. The Migration Board acts as the alien’s opposing party in proceedings before the courts. The migration courts must, as a rule, hold an oral hearing if the alien so requests.
The provisions mainly applied in the present case were to be found in the 1989 Aliens Act, now repealed. In accordance with the Act, an alien staying in Sweden for more than three months had to, as a rule, have a residence permit (chapter 1, section 4). A residence permit could be issued, inter alia, to an alien who, for humanitarian reasons, was to be allowed to settle in Sweden (chapter 2, section 4). Serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit.
An alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to a residence permit in Sweden (chapter 3, section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself of the protection of that country. This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals (chapter 3, section 2). An “alien otherwise in need of protection” denoted, inter alia, a person who had left the country of his nationality because he had a wellfounded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 3, section 3, subsection 1). By making that a separate ground for granting a residence permit, the legislature had highlighted the importance of such considerations. The correspondence between national legislation and Article 3 of the Convention had been emphasised as a result. From 1 January 1997 the term “alien otherwise in need of protection” also referred to someone who had a well-founded fear of persecution because of his or her sex or homosexuality (chapter 3, section 3, subsection 3).
In enforcing a decision on refusal of entry or expulsion, the risk of torture and other inhuman or degrading treatment or punishment was taken into account. In accordance with a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 8, section 1). In addition, he could not, in principle, be sent to a country where he risked persecution (chapter 8, section 2).
Until 15 November 2005 an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so-called “new application” with the Aliens Appeals Board based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion. A residence permit could then be granted if the alien was entitled to a residence permit under chapter 3, section 4, of the Act or if it would be contrary to the requirements of humanity to enforce the refusal-of-entry or expulsion decision (chapter 2, section 5 b, in its wording before 15 November 2005).
Amendments to chapter 2, section 5 b, of the 1989 Aliens Act entered into force on 15 November 2005, whereby a new legal remedy of a temporary nature was introduced. The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter 2, section 5 b, in its previous wording. Furthermore, the amendments to the 1989 Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined.
In some previous cases the Aliens Appeals Board has been called upon to assess applications in which it was claimed that the asylum-seeker had a well-founded fear of being exposed to female genital mutilation, if expelled to her home country (see, e.g., UN 94/12198 and UN 328/97). According to the Board, forced female genital mutilation falls under the notion of “inhuman or degrading treatment” in chapter 3, section 3, subsection 1, of the 1989 Aliens Act. The Board stated that such a procedure was in conflict with both the United Nations Universal Declaration of Human Rights and Article 3 of the European Convention on Human Rights. From 1 January 1997 forced female genital mutilation was also covered by chapter 3, section 3, subsection 3, of the 1989 Act, by which a well-founded fear of persecution because of one’s sex constitutes a need for protection.
Although there is no federal law in Nigeria against the practice of FGM, several states have prohibited FGM by law, including Cross Rivers, Ogun, Rivers, Bayelsa, Osun, Edo Abia and Delta. In the last-mentioned state, the “Prohibition of Female Circumcision and Genital Mutilation Law” was passed on 21 February 2002 and published in the Delta State of Nigeria Gazette on 14 March 2002. It follows from this law that it is an offence, inter alia, to circumcise or mutilate the genital organ of any female and that it is irrelevant whether or not consent is obtained. It further follows that any person who is convicted of an act prohibited by the law is liable to a fine or imprisonment for not less than six months, or to both.
There are different forms of female genital cutting (FGC) or female circumcision (opponents to these practices use the term female genital mutilation (FGM)). The distinctions and definitions used by the World Health Organisation are the following:
Type I circumcision is defined as a clitoridotomy and perhaps the excision of part or all of the clitoris. A clitoridotomy (also called “hoodectomy” in slang) involves the removal or splitting of the clitoral hood.
Type II circumcision is more extensive than type I, meaning a clitoridectomy and sometimes also the removal of the labia minora. A clitoridectomy means the partial or total removal of the external part of the clitoris.
Type III is regarded as the most severe form of female circumcision, also referred to as infibulation or pharaonic circumcision. Infibulation replaces the vulva with a wall of flesh from the pubis to the anus, except for a pencilsize opening at the inferior portion of the vulva to allow urine and menstrual blood to pass through. After excision, the labia are sewn together, and since the skin is abraded and raw after being cut, the two surfaces will join via the natural healing and scar-formation process to form a smooth surface. The girl’s legs are tied together for around two weeks to prevent her from moving the wound. Infibulation is often carried out by a “gedda”, or matron of the village, without anaesthetic, on girls between the ages of two and six.
According to UNICEF’s “A Statistical Exploration, 2005, Female Genital Mutilation/Cutting”, FGM’s prevalence in Nigeria among women aged 1549 amounted to 19% (figure 1). The prevalence of FGM in Nigeria as to women and daughters (figure 5) showed that women aged 15-49 who had undergone FGM amounted to 19%, whereas women aged 15-49 with at least one daughter who had undergone FGM amounted to 10%.
The US Department of State report on Nigeria, “Country Reports on Human Rights Practices – 2005” (8 March 2006), stated the following, in so far as relevant, as regards women, children and FGM:
“The NDHS [Nigeria Demographic and Health Survey] estimated the FGM rate at approximately 19 percent among the country’s female population, and the incidence has declined steadily in the past 15 years. While practiced in all parts of the country, FGM was much more prevalent in the south. Women from northern states were less likely to undergo the severe type of FGM known as infibulation. The age at which women and girls were subjected to the practice varied from the first week of life until after a woman delivers her first child; however, three-quarters of the NDHS 2003 survey respondents who had undergone FGM had the procedure before their first birthday. According to the survey, the principal perceived ‘benefits’ of FGM include maintaining chastity/virginity before marriage, giving the victim better marriage prospects, providing more sexual pleasure for men (primarily according to male respondents), and aiding safe childbirth.
The federal government publicly opposed FGM but took no legal action to curb the practice. Because of the considerable problems that anti-FGM groups faced at the federal level, most refocused their energies on combating the practice at the state and LGA levels. Bayelsa, Edo, Ogun, Cross River, Osun, and Rivers States banned FGM. However, once a state legislature criminalized FGM, NGOs found that they had to convince the LGA authorities that state laws were applicable in their districts. The Ministry of Health, women’s groups, and many NGOs sponsored public awareness projects to educate communities about the health hazards of FGM. They worked to eradicate the practice, but they had limited contact with health care workers on the medical effects of FGM.
On March 21 [2005], Osun State enacted a law aimed at punishing those who encourage FGM. The law makes it a punishable offence to remove any part of a sexual organ from a woman or a girl, except for medical reasons approved by a doctor. According to the provisions of the law, an offender shall be any female who offers herself for FGM; any person who coerces, entices, or induces any female to undergo FGM; and any person who other than for medical reasons performs an operation removing part of a woman or girl’s sexual organs. The law provides a $385 (50 thousand naira) fine or one year’s imprisonment or both for a first offence, with doubled penalties for a second conviction.”
On 13 April 2005, in its “Consideration of Reports submitted by State Parties” under Article 44 of the Convention on the Rights of the Child, the Committee on the Rights of the Child stated the following as regards the practice of FGM in Nigeria:
“56. The Committee welcomes the introduction in parliament of a bill on violence in May 2003, aimed to prohibit forms of violence such as harmful traditional practices and domestic violence, including marital rape. However, it reiterates its concern at the widespread and continuing existence of harmful traditional practices in the State party, most notably the practice of female genital mutilation, as well as scarification and ritual killing of children, which pose very serious threats to children, in particular girl children.
57. The Committee is concerned at the lack of legal prohibition and sufficient interventions on the part of the State party to address harmful traditional practices. The Committee is also concerned at the lack of support services available to protect girls who refuse to undergo FGM and of services to rehabilitate girl victims of the practice.
58. The Committee recommends that the State party, as a matter of urgency, takes all necessary measures to eradicate all traditional practices harmful to the physical and psychological well-being of children, by strengthening awareness-raising programmes. The Committee further recommends the State party to adopt federal legislation prohibiting such practices and encourage further legal changes at the State level, in particular, female genital mutilation, as well as measures to provide support for girls who refuse to undergo FGM, and provide recovery services for victims of this harmful traditional practice.”
In its country report of 2006 on Nigeria, Amnesty International stated that “in some communities, female genital mutilation and forced marriages were still practised”. On a previous webpage www.amnesty.org/ailib/intcam/femgen/fgm), which was last modified on 17 February 2004, Amnesty International estimated that 50% of all women and girls underwent FGM in Nigeria, and that the types practised were clitoridectomy, excision and, in the northwest, some infibulation. Amnesty International further maintained, in so far as relevant:
“FGM is practised throughout the country and among all ethnic and religious groups. No law specifically prohibits FGM. The National Association of Nigerian Nurses and Midwives (NANNM) has been active in the fight against FGM. Nurses and paediatricians have campaigned throughout the country, conducting educational activities at the state and community level. In 1984, a Nigerian National Committee, the National Chapter of the IAC, was set up. The Committee has had support from the Ministries of Health, Education and Information.”
According to a report by EURASIL (European Union Network for Asylum Practitioners) of December 2004, FGM existed in both rural and urban areas of Nigeria and was found among Christians, Muslims and Animists alike. FGM was more predominant in the southern and eastern zones. Women from northern states were less likely to undergo FGM; however, those affected were more likely to undergo the severe type of FGM known as infibulation. In the State of Cross Rivers, in particular, the police were actively implementing the prohibition on FGM. In the rest of the states where FGM was prohibited it was not clear to what extent the police and other authorities were actually enforcing the prohibition. The Nigerian government publicly opposed the practice of FGM. Anti-FGM NGOs were active in combating FGM and the medical profession had also campaigned against the practice.
A Danish Immigration Service report of January 2005, “Report on human rights issues in Nigeria”, following a joint British-Danish fact-finding mission to Abuja and Lagos from 19 October to 2 November 2004, stated the following (pp. 26-27 and 36-38):
“The federal government has warned against harmful traditional practices like FGM and campaigns have been conducted through the Ministry of Health and the media, a draft federal bill outlawing FGM has been before the National Assembly since 2001. According to BAOBAB, one of the most important women’s NGOs in Nigeria, the practice of FGM is quite diverse depending on tradition. However, most women throughout Nigeria have the option to relocate to another location if they do not wish to undergo FGM and government institutions and NGOs afford protection to those women. BAOBAB was of the opinion that FGM in itself is not a genuine reason for applying for asylum abroad. WACOL (Women’s Aid Collective) stated that it is possible for women to seek protection in the shelter run by WACOL in Enugu in the south and that the organisation’s Enugu office assists many adult women seeking protection against FGM. The National Human Rights Commission expressed surprise if someone actually had to leave Nigeria in order to avoid FGM instead of taking up residence elsewhere in Nigeria.”
In addition, the Swedish Ministry for Foreign Affairs’ report on the human rights situation in Nigeria for 2004 states that FGM is, by tradition, commonly practised in most parts of the country but that the problem is most predominant in the southern parts of Nigeria (where Delta State is located). The report estimates that around 60% of Nigerian women have been subjected to FGM. However, it also observes that the issue is now being debated in the country and that information programmes have been developed in order to combat the practice. According to the report, these programmes have had a certain impact, with a reduced number of women being subjected to FGM.


ITEMID: 001-75144
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF AHMET METE v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 6. The applicant was born in 1950 and lives in Aydın.
7. The applicant was arrested in Nusaybin on 8 July 2001 by the Prevention of Terrorism Department of the Nusaybin Security Directorate, on suspicion of aiding and abetting the PKK.
8. On the same day the applicant signed a form whereby his rights as a detainee were explained to him. The form included his right to inform one of his relatives about his detention and his right to request the assistance of a lawyer.
9. According to the custody records (nezaret kayıt defteri), the police informed the husband of the applicant’s sister about his detention. Moreover, it was noted in these records that the applicant did not request the assistance of a lawyer.
10. During his interrogation by the police officers at the Nusaybin Security Directorate, the applicant confessed in detail to his involvement in the activities of the PKK. According to the interrogation minutes dated 9 July 2001, drafted by the police and signed by the applicant, he was informed of his right to have access to legal assistance of one or more lawyers at any stage and level of the investigation.
11. On 10 July 2001 the applicant was transferred to the Prevention of Terrorism Department of the İzmir Security Directorate, for further questioning.
12. On 11 July 2001, upon the request of the İzmir Security Directorate, the İzmir Public Prosecutor authorised the applicant’s detention in police custody until 13 July 2001.
13. On 13 July 2001, during his questioning by the İzmir Public Prosecutor at the State Security Court, the applicant described the work that he carried out for the PKK. He confessed that he was working as a courier for the members of the organisation who were in prison. On the same day the applicant was brought before the İzmir Magistrate’s Court. He denied his statement given in Nusaybin Security Directorate, as he alleged that he had signed it under duress. He confirmed his statement given before the public prosecutor. The magistrate’s court ordered his detention on remand.
14. On 14 August 2001 the İzmir Public Prosecutor at the State Security Court filed a bill of indictment charging the applicant with membership of a terrorist organization, the PKK, and with assisting and abetting the said organisation, contrary to Articles 169 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act of 12 April 1991. Before the İzmir State Security Court, the applicant was represented by his lawyer.
15. On 19 September 2002, the court convicted the applicant under Article 168 § 2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. The court held that during his questioning by the police and the public prosecutor, the applicant had described his involvement with the activities of the PKK. Moreover, although in his statements given during the hearings he had claimed that he was not a member of the PKK, he had explained in detail his involvement with the activities of the organisation. Moreover, the other accused had also confirmed the fact that the applicant took new members of the organisation to the east of the country to join the guerrilla fight carried out in the mountains and acted as a courier for PKK members who were in prison.
16. On 4 March 2003 the Court of Cassation upheld the decision of 19 September 2002.
17. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and, if successful, be released.
18. Section 1 of Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons:
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-69167
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF WOLFMEYER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1968 and lives in Bludenz.
5. In May 2000 the Feldkirch Regional Court (Landesgericht) opened criminal proceedings against the applicant on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Criminal Code.
6. On 23 November 2000 the Regional Court, after having held a trial, convicted the applicant under Article 209 of the Criminal Code and sentenced him to six months' imprisonment suspended on probation. It found that, in 1997, he had performed homosexual acts with two adolescents.
7. Upon the applicant's appeal, the Innsbruck Court of Appeal (Oberlandesgericht) requested the Constitutional Court (Verfassungs-gerichtshof) to review the constitutionality of Article 209.
8. On 29 November 2001 the Constitutional Court dismissed this request (see paragraph 22 below).
9. On 20 December 2001 the Innsbruck Court of Appeal filed a new request for review of the constitutionality of Article 209.
10. On 21 June 2002 the Constitutional Court gave a judgment holding that Article 209 of the Criminal Code was unconstitutional (see paragraph 23 below).
11. The amendment repealing Article 209 entered into force on 14 August 2002. While, according to the transitional provisions, Article 209 remained applicable in all cases in which the judgment at first instance had already been given before the entry into force of the amendment, it could no longer be applied in the applicant's case since it had been the case in point (Anlaßfall) before the Constitutional Court.
12. On 17 July 2002 the Innsbruck Court of Appeal, noting that the Constitutional Court had repealed Article 209 as unconstitutional, acquitted the applicant. This decision was served on him on 12 August 2002.
13. On 20 September 2002 the Feldkirch Regional Court dismissed the applicant's request for reimbursement of his defence costs holding that under Article 393a (3) of the Code of Criminal Procedure (Strafprozeßordnung) no right to compensation existed if the accused was not punishable on grounds which occurred after the indictment was filed.
14. On 12 November 2002 the Innsbruck Court of Appeal partly granted the applicant's appeal, awarding him reimbursement of a total amount of 1,839.38 euros (EUR) for costs and expenses. It found that the Regional Court had wrongly applied Article 393a (3) of the Code of Criminal Procedure. The applicant's case had been the case in point before the Constitutional Court leading to the repeal of Article 209 of the Criminal Code. His case had to be treated as if Article 209 had never existed. Consequently, it could not be said that he was acquitted on grounds which occurred after the indictment.
15. The court found that the applicant's defence costs including the costs relating to the proceedings before the Constitutional Court, in which the applicant, as an interested party (mitbeteiligte Partei), had made detailed submissions, had been necessarily incurred. However, the law provided that only a maximum amount of EUR 1,091 was to be reimbursed as contribution to the defence costs. In addition EUR 748,38 were awarded for cash expenses.
16. Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code.
17. Article 209 of the Criminal Code, in the version in force at the material time, read as follows:
“A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.”
18. This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to 19 years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age are not punishable.
19. On 10 July 2002, following the Constitutional Court's judgment of 21 June 2002 (see paragraph 23 below), Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002.
20. In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein.
21. The relevant passage of the Constitutional Court's judgment reads as follows:
“The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of 'decriminalisation'. This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect – in so far as strictly necessary – a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin, in Foregger/Nowakowski (publishers), Wiener Kommentar zum Strafgesetzbuch, 1980, paragraph 1 on Article 209 ...) Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in Article 7 § 1 of the Federal Constitution and Article 2 of the Basic Law those legislating in the criminal sphere cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Criminal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of Article 7 § 1 of the Federal Constitution read in conjunction with Article 2 of the Basic Law.”
22. On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court's request to review the constitutionality of Article 209 of the Criminal Code.
The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age-limit for consensual homosexual relations than for consensual heterosexual or lesbian relations.
23. On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.
The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality (Gleichheitsgrundsatz) as guaranteed by Article 7 § 1 of the Federal Constitution, as a relationship between male adolescents aged between 14 and 19 was first legal, but became punishable as soon as one reached the age of 19 and became legal again when the second one reached the age of 18.
The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned consensual homosexual relations between men aged over 19 and adolescents between 14 and 18. In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-57936
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF SCOLLO v. ITALY
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mr Francesco Salvatore Scollo lives in Rome.
8. On 14 June 1982 he bought a flat that had been let to a Mr V. since 1962. The rent for this flat was subject to control by the public authorities. The lease had been tacitly renewed until Law no. 392 of 27 July 1978 came into force, by which it had been extended until 31 December 1983.
9. In a registered letter received on 20 January 1983 the applicant informed Mr V. that he intended to terminate the tenancy when the lease expired, that is to say on 31 December 1983, and asked him to move out of the flat by that date.
10. In a writ issued on 24 February 1983 and served on 4 March 1983, Mr Scollo gave Mr V. notice to quit and summoned him to appear before the Rome magistrate (pretore) on 22 March 1983.
On 22 April 1983 the magistrate formally confirmed the notice to quit and set the date of eviction at 30 June 1984. The decision was made enforceable the same day and was served on the tenant at the beginning of October 1983.
11. Subsequently, on an application by Mr V., the magistrate deferred execution until 31 October 1984, pursuant to Law no. 94 of 25 March 1982, which had extended existing leases for a period of two years. Nevertheless, the tenant remained in occupation even after that date.
12. The applicant then began enforcement proceedings, by means of a notice dated 24 November 1984 that was served on Mr V. on 5 December 1984. He required Mr V. to quit the premises within ten days of receiving the notice and informed him that if he did not leave of his own accord, the order for possession would be enforced.
13. In a notice served on 19 December 1984 the bailiff informed Mr V. that he would be evicted on 23 January 1985. When the bailiff went to the flat on that date, however, the tenant refused to leave.
The bailiff arranged to make his next visit to the premises on 13 March 1985, but in the meantime emergency legislation (Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985) came into force. This had been made necessary by an exceptionally severe housing shortage in certain cities, including Rome. Enforcement of evictions was suspended until 30 June 1985. In the instant case, as the applicant had obtained an order for possession before 30 June 1983, he was entitled under Law no. 118 to enforce it from 1 July 1985 onwards.
14. Between then and the entry into force, on 29 October 1986, of Legislative Decree no. 708, of the same date, suspending forcible evictions until 31 March 1987, the bailiff made nine attempts to evict Mr V., who on each occasion refused to leave the flat. Legislative Decree no. 708 (which became Law no. 899 of 23 December 1986) gave the Prefect (prefetto) power to grant police assistance to enforce evictions in the cases provided for.
15. Between 1 April 1987 and 8 February 1988 the bailiff made eight unsuccessful attempts to evict Mr V. In a deed dated 3 November 1987 Mr Scollo made a solemn declaration under sections 2 and 3 of Law no. 899 of 23 December 1986 that he needed to recover his flat in order to live there with his family. He said that his case should accordingly be given priority.
16. On 8 February 1988 a new series of laws came into force suspending forcible evictions until 30 April 1989.
17. Between 1 May 1989 and 15 October 1991 the bailiff made eighteen unsuccessful attempts to persuade the tenant to leave. In the meantime (on 1 and 24 September 1989) the applicant's lawyer wrote two letters to the prefectoral committee which had been set up pursuant to Law no. 61 of 21 February 1989 and had power to grant police assistance, pointing out that his client's case had priority. He cited the fact that the tenant had ceased to pay the full rent and stated that his client needed the flat. He emphasised that Mr Scollo was a diabetic, 71% disabled and unemployed.
The prefectoral committee did not reply, even though a fresh declaration of necessity had been enclosed in the first letter it received. In this second declaration Mr Scollo had stated that he could not immediately occupy a second flat he had been obliged to buy in 1989, on account of the extensive work required to convert the property.
18. On 1 December 1989 the applicant brought proceedings in the magistrate's court, arguing that the suspension of forcible evictions was not applicable to his case, as the tenant had been refusing to pay part of the rent since November 1987. On 12 December the magistrate ordered the parties to appear on 7 February 1990. On that date Mr V. paid the sums due and the case was struck out of the list.
19. On 31 January 1995 Mr Scollo informed the European Court that after a further visit by the bailiff on 5 January 1995 he had recovered his flat on 15 January.
20. On the basis of the Commission's report, Italian legislation on residential property leases may be summarised as follows.
Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of evictions.
The last statutory extension of all current leases, with the exception of certain cases specifically prescribed by the Law, was introduced by Law no. 392 of 27 July 1978 and remained in force until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the dates on which the leases were signed.
It should, however, be noted that, as regards buildings used for purposes other than housing, the statutory extension of current leases prescribed by section 1 (9 bis) of Law no. 118 of 5 April 1985 was declared unconstitutional in a decision (no. 108) handed down by the Constitutional Court on 23 April 1986. In its decision the court held that the statutory restrictions imposed on property rights under Article 42 of the Constitution, with a view to ensuring social justice, made it possible to regard controls imposing restrictions as legitimate, provided that such controls were of an exceptional and temporary nature, but that perpetuating such restrictions was incompatible with the protection of property rights embodied in Article 42 of the Constitution.
In its decision the Constitutional Court also pointed out that the statutory six-month extension of leases prescribed by Law no. 118 should not be considered in isolation but within the context of tenancy provisions as a whole. The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field. Moreover, the statutory extension of leases had the effect of prolonging contracts in which the rent, notwithstanding the increases allowed in accordance with rises in the cost of living, were not even approximately in line with current socio-economic conditions. Further, the Law concerned did not give the lessor the possibility of regaining possession of the property except in cases of absolute necessity.
The Constitutional Court also held that Law no. 118, inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice -, infringed the principle of the equality of citizens before the law embodied in Article 3 of the Constitution.
Numerous provisions have established rules for the postponement, suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the premises they occupy (ordinanze di sfratto).
A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. The provisions set forth therein were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985. It covered the period from 1 December 1984 to 30 June 1985. This legislation also provided for the staggered resumption of forcible evictions on 1 July 1985, 30 September 1985, 30 November 1985 or 31 January 1986, depending on the date on which the judgment recording the end of the lease had become enforceable.
Section 1 (3) of Law no. 118 stipulated that such suspensions were not applicable if repossession of the premises had been ordered because arrears of rent were owed. Similarly, no suspension could be ordered in the following cases:
(a) where, after conclusion of the contract, the lessor required the property for his own use or for that of his spouse or his children or grandchildren, for residential, commercial or professional purposes, or where a lessor who intended to use the premises for one of the above-mentioned purposes (a) offered the tenant similar accommodation at a rent which he could afford and which was not more than 20% higher than the previous rent and (b) undertook to pay the costs of the tenant's removal (Article 59, first subsection, paragraphs 1, 2, 7 and 8, of Law no. 392 of 27 July 1978 ("Law no. 392")); and
(b) where, inter alia, a lessor urgently needed to regain possession of his flat as accommodation for himself, his children or his ascendants (Article 3, first paragraph, sub-paragraphs 1, 2, 4 and 5, of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 ("Law no. 25")).
A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986.
It covered the period from 29 October 1986 to 31 March 1987 and in sections 2 and 3 provided for the same exceptions as the provisions in the preceding legislation.
Law no. 899 of 23 December 1986 also established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords.
Section 3 (5 bis) of Law no. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsidised housing.
A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It first covered the period from 8 February 1988 to 30 September 1988 and was subsequently extended from the latter date to 31 December 1988.
A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989, and covered the period up to 30 April 1989. In regions suffering from natural disasters the suspension remained in force until 31 December 1989.
With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of forty-eight months from 1 January 1990 and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently.
All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99763
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SOTI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Tamás József Sóti, is a Hungarian national who was born in 1974 and lives in Budapest. He was represented before the Court by Mr P. Sebes, a lawyer practising in Budapest. The respondent Government were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 September 1998 the applicant was sentenced to four months' imprisonment (“first conviction”).
On 19 November 2002 he was sentenced to two years and four months' imprisonment in another case (“second conviction”).
Meanwhile, from 18 April 2001 until 19 November 2002, he had been detained on remand in the context of yet another case. In these proceedings, on 22 December 2004 he was sentenced to three years' imprisonment. His pre-trial detention was credited towards the sentence (“third conviction”).
In respect of the second and third convictions, a cumulative sentence was passed in which the applicant was subjected to altogether three years and seven months' (i.e. 43 months') imprisonment. This decision became final on 22 December 2004. Having regard to the cumulative sentence and to the one relating to the first conviction, he was liable to detention for altogether 47 months. His detention started on 18 April 2001; consequently, it should have been terminated by 18 March 2005. However, he was released only on 23 April 2005.
In dismissing the applicant's ensuing complaint, the prison governor made reference to Decree no. 17/1997. (V.9.) IM. of the Minister of Justice on the Determination of the First and Last Day of Imprisonment. The governor established that the period theoretically corresponding to the cumulative sentence had indeed been served by the applicant by 17 November 2004. However, the decision on the cumulative sentence had become final only on 22 December 2004, and it was only from that day onwards that the applicant's continued detention could be regarded as corresponding to the four-month prison term flowing from the first conviction. The intervening period of one month and five days, although the applicant had spent it in prison, could not be deducted from this term.
Section 339(1) of the Civil Code provides:
“Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. S/he shall be exculpated if s/he proves that s/he proceeded in such a manner as can generally be expected in the given situation.”
Section 349 provides:
“(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage. ...
(3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.”


ITEMID: 001-91353
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MEHMET KOÇ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 3. The applicant was born in 1979 and lives in Diyarbakır. On 27 April 1999 he was arrested. On 24 May 1999 the public prosecutor filed a bill of indictment, charging him under Article 125 of the former Criminal Code. On 13 December 2002 the Diyarbakır State Security Court convicted the applicant as charged. On 7 October 2003 the Court of Cassation quashed that decision. Following the abolition of the State Security Courts in 2004, the Diyarbakır Assize Court took over the case and on 19 April 2007 convicted the applicant. The applicant appealed. On 12 December 2007 the Court of Cassation upheld the judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-59882
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF CERIN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 7. On 10 February 1984 the applicant filed an action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against a private person O. S., the Zagreb City Internal Affairs Office (Gradski sekretarijat za unutrašnje poslove Zagreb) and the Zagreb Union of Municipal Councils (Gradska zajednica općina), for payment of damages regarding his apartment in Zagreb. Subsequently, the applicant altered his claim and named as defendants M. A., the Municipality of Zagreb (Grad Zagreb) and the Republic of Croatia (Republika Hrvatska).
8. Until the date of entry into force of the Convention in respect of Croatia, i.e., 5 November 1997, the Zagreb Municipal Court as the court of first instance held numerous hearings and the relevant authorities examined the applicant’s numerous motions for, inter alia, the removal of the presiding judges.
9. The most recent such motion was filed by the applicant on 7 May 1996 requesting the removal of the presiding judge. He also challenged the Zagreb Municipal Court for bias and requested that his case be dealt by a different court. On 26 September 1996 the Supreme Court (Vrhovni sud Republike Hrvatske) rejected the applicant’s request.
10. The next hearing in the Zagreb Municipal Court scheduled for 9 March 1998 was adjourned at the applicant’s request due to his absence from Zagreb.
11. The next hearing scheduled for 7 September 1998 was adjourned due to the applicant’s illness.
12. At the next hearing on 2 March 1999 it was noted that the applicant had instituted another set of civil proceedings with the Zagreb Municipal Court against the judge presiding in the case in question and the Republic of Croatia. Therefore, the presiding judge requested permission to withdraw. His request was accepted and he was exempted from sitting. The applicant also submitted further specifications on his claim.
13. The case was then transmitted to another judge. At the hearing on 4 December 2000 the applicant’s counsel was invited to submit evidence concerning the specification of the applicant’s claim within 30 days.
14. On 1 March 2001 the applicant’s counsel informed the court that she had ceased to represent the applicant.
15. On 2 and 15 March 2001 the applicant submitted further evidence and again changed his claim. According to the Government, the new claim was not expressed in terms that, if it was to be successful, would make it capable of judicial enforcement.
16. At the hearing on 9 April 2001 the applicant appeared with his new counsel, but without a letter of authority. The court invited the applicant to submit a letter of authority for his new counsel and to formulate his claim so as to make it capable of judicial enforcement in the event of its being successful. It appears that the case is still pending before the Zagreb Municipal Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57465
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF DE CUBBER v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Just satisfaction reserved
TEXT: 7. The applicant is a Belgian citizen born in 1926. He lives in Brussels and is a sales manager.
8. On 4 April 1977, he was arrested by the police at his home and taken to Oudenaarde where he was questioned in connection with a car theft.
Warrants of arrest for forgery and uttering forged documents were issued against the applicant on the following day, on 6 May and on 23 September 1977. The first warrant - notice no. 10.971/76 - was issued by Mr. Pilate, an investigating judge at the Oudenaarde criminal court (tribunal correctionnel), and the second and third - notices nos. 3136/77 and 6622/77 - by Mr. Van Kerkhoven, the other investigating judge at the same court.
9. Prior to that, in the capacity of judge (juge assesseur) of the same court sitting either on appeal (judgment of 3 May 1968) or at first instance (judgments of 17 January, 7 March and 28 November 1969), Mr. Pilate had already dealt with criminal proceedings brought against Mr. De Cubber in connection with a number of offences; those proceedings had led variously to an unconditional or conditional discharge (relaxe) (17 January and 7 March 1969, respectively) or to conviction.
More recently, Mr. Pilate had had to examine, in his capacity of investigating judge, a criminal complaint filed by Mr. De Cubber (16 November 1973) and, in his capacity of judge dealing with the attachment of property (juge des saisies), certain civil cases concerning him (1974-1976). In regard to each of these cases, the applicant had applied to the Court of Cassation to have the case removed, on the ground of bias (suspicion légitime; Article 648 of the Judicial Code), from Mr. Pilate or from the Oudenaarde court as a whole; each of these requests had been held inadmissible or unfounded.
10. At the outset Mr. Van Kerkhoven dealt with cases nos. 3136/77 and 6622/77 but he was on several occasions prevented by illness from attending his chambers. He was replaced, initially on an occasional and temporary basis and, as from October 1977, on a permanent basis, by Mr. Pilate, who retained responsibility for case no. 10.971/76.
11. In case no. 6622/77, a single-judge chamber of the Oudenaarde court (Mr. De Wynter) sentenced Mr. De Cubber on 11 May 1978 to one year’s imprisonment and a fine of 4,000 BF. He did not appeal against this decision.
12. After preliminary investigations lasting more than two years, a chamber of the court (the chambre du conseil) ordered the joinder of cases nos. 10.971/76 and 3136/77 and on 11 May 1979 committed Mr. De Cubber for trial. These cases related to several hundred alleged offences committed by fifteen accused, headed by the applicant; there were no less than nineteen persons intervening to claim damages (parties civiles).
For the purpose of the trial, the court, which over the years had nine or ten titular judges, sat as a chamber composed of a president and two judges, including Mr. Pilate. Mr. De Cubber stated that he protested orally against the latter’s presence, but he did not have recourse to any of the legal remedies open to him for this purpose, such as a formal challenge (procédure de récusation; Article 828 of the Judicial Code).
After a hearing which lasted two half-days on 8 and 22 June 1979, the court gave judgment on 29 June 1979. Mr. De Cubber was acquitted on two counts and convicted on the remainder, note being taken of the fact that he was a recidivist. He was accordingly sentenced, in respect of one matter, to five years’ imprisonment and a fine of 60,000 BF and, in respect of another, to one year’s imprisonment and a fine of 8,000 BF; his immediate arrest was ordered.
13. Both the applicant and the public prosecutor’s department appealed. On 4 February 1980, the Ghent Court of Appeal reduced the first sentence to three years’ imprisonment and a fine of 20,000 BF and upheld the second. In addition, it unanimously imposed a third sentence, namely one month’s imprisonment and a fiscal fine (amende fiscale), for offences which the Oudenaarde court had - wrongly, in the Court of Appeal’s view - treated as being linked with others by reason of a single criminal intent.
14. Mr. De Cubber appealed to the Court of Cassation, raising some ten different points of law. One of his grounds, based on Article 292 of the Judicial Code (see paragraph 19 below) and Article 6 para. 1 (art. 6-1) of the Convention, was that Mr. Pilate had been both judge and party in the case since after conducting the preliminary investigation he had acted as one of the trial judges.
The Court of Cassation gave judgment on 15 April 1980 (Pasicrisie 1980, I, pp. 1006-1011). It held that this combination of functions violated neither Article 292 of the Judicial Code nor any other legal provision - such as Article 6 para. 1 (art. 6-1) of the Convention - nor the rights of the defence. On the other hand, the Court of Cassation upheld a plea concerning the confiscation of certain items of evidence and, to this extent, referred the case back to the Antwerp Court of Appeal; the latter court has in the meantime (on 4 November 1981) directed that the items in question be returned. The Court of Cassation also quashed, of its own motion and without referring the case back, the decision under appeal in so far as the appellant had been sentenced to a fiscal fine. The remainder of the appeal was dismissed.
15. Investigating judges, who are appointed by the Crown "from among the judges of the court of first instance" (Article 79 of the Judicial Code), conduct the preparatory judicial investigation (Articles 61 et seq. of the Code of Criminal Procedure). The object of this procedure is to assemble the evidence and to establish any proof against the accused as well as any circumstances that may tell in his favour, so as to provide the chambre du conseil or the chambre des mises en accusation, as the case may be, with the material which it needs to decide whether the accused should be committed for trial. The procedure is secret; it is not conducted in the presence of both parties (non contradictoire) nor is there any legal representation.
The investigating judge also has the status of officer of the criminal investigation police (police judiciaire). In this capacity, he is empowered to inquire into serious and lesser offences (crimes et délits), to assemble evidence and to receive complaints from any person claiming to have been prejudiced by such offences (Articles 8, 9 in fine and 63 of the Code of Criminal Procedure). When so acting, he is placed under the "supervision of the procureur général (State prosecutor)" (Article 279 of the Code of Criminal Procedure and Article 148 of the Judicial Code), although this does not include a power to give directions. "In all cases where the suspected offender is deemed to have been caught in the act", the investigating judge may take "directly" and in person "any action which the procureur du Roi (public prosecutor) is empowered to take" (Article 59 of the Code of Criminal Procedure).
16. Save in the latter category of case, the investigating judge can take action only after the matter has been referred to him either by means of a formal request from the procureur du Roi for the opening of an inquiry (Articles 47, 54, 60, 61, 64 and 138 of the Code of Criminal Procedure) or by means of a criminal complaint coupled with a claim for damages (constitution de partie civile; Articles 63 and 70).
If a court includes several investigating judges, it is for the presiding judge to allocate cases amongst them. In principle, cases are assigned to them in turn, from week to week; however, this is not an inflexible rule and the presiding judge may depart therefrom, for example if the matter is urgent or if a new case has some connection with one that has already been allocated.
17. In order to facilitate the ascertainment of the truth, the investigating judge is invested with wide powers; according to the case-law of the Court of Cassation, he may "take any steps which are not forbidden by law or incompatible with the standing of his office" (judgment of 2 May 1960, Pasicrisie 1960, I, p. 1020). He can, inter alia, summon the accused to appear or issue a warrant for his detention, production before a court or arrest (Articles 91 et seq. of the Code of Criminal Procedure); question the accused, hear witnesses (Articles 71 to 86 and 92 of the same Code), confront witnesses with each other (Article 942 of the Judicial Code), visit the scene of the crime (Article 62 of the Code of Criminal Procedure), visit and search premises (Articles 87 and 88 of the same Code), take possession of evidence (Article 89), and so on. The investigating judge has to report to the chambre du conseil on the cases with which he is dealing (Article 127); he takes, by means of an order, decisions on the expediency of measures requested by the public prosecutor’s department, such orders being subject to an appeal to the chambre des mises en accusation of the Court of Appeal.
18. When the investigation is completed, the investigating judge transmits the case-file to the procureur du Roi, who will return it to him with his submissions (Article 61, first paragraph).
It is then for the chambre du conseil, which is composed of a single judge belonging to the court of first instance (Acts of 25 October 1919, 26 July 1927 and 18 August 1928), to decide - unless it considers it should order further inquiries - whether to discharge the accused (non-lieu; Article 128 of the Code of Criminal Procedure), to commit him for trial before a district court (tribunal de police; Article 129) or a criminal court (tribunal correctionnel; Article 130) or to send the papers to the procureur général attached to the Court of Appeal (Article 133), depending upon the circumstances.
Unlike his French counterpart, the Belgian investigating judge is thus never empowered to refer a case to the trial court himself. Before taking its decision, the chambre du conseil - which sits in camera - will hear the investigating judge’s report. This report will take the form of an oral account of the state of the investigations; the investigating judge will express no opinion therein as to the accused’s guilt, it being for the public prosecutor’s department to deliver concluding submissions calling for one decision or another.
19. Article 292 of the 1967 Judicial Code prohibits "the concurrent exercise of different judicial functions ... except where otherwise provided by law"; it lays down that "any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function" shall be null and void.
This rule applies to investigating judges, amongst others. Article 127 specifies that "proceedings before an assize court shall be null and void if the presiding judge or another judge sitting is a judicial officer who has acted in the case as investigating judge ...".
Neither can an investigating judge sit as an appeal-court judge, for otherwise he would have "to review on appeal, and thus as last-instance trial judge, the legality of investigation measures ... which [he] had taken or ordered at first instance" (Court of Cassation, 18 March 1981, Pasicrisie 1981, I, p. 770, and Revue de droit pénal et de criminologie, 1981, pp. 703-719).
20. On the other hand, under the third paragraph of Article 79 of the Judicial Code, as amended by an Act of 30 June 1976, "investigating judges may continue to sit, in accordance with their seniority, to try cases brought before a court of first instance". According to the drafting history and decided case-law on this provision, it is immaterial that the cases are ones previously investigated by the judges in question: they would in that event be exercising, not "some other judicial function" within the meaning of Article 292, but rather the same function of judge on the court of first instance; it would be only their assignment that had changed (Parliamentary Documents, House of Representatives, no. 59/49 of 1 June 1967; Court of Cassation, 8 February 1977, Pasicrisie 1977, I, p. 622-623; Court of Cassation judgment of 15 April 1980 in the present case, see paragraph 14 above).
In the case of Blaise, the Court of Cassation confirmed this line of authority in its judgment of 4 April 1984, which followed the submissions presented by the public prosecutor’s department. After dismissing various arguments grounded on general principles of law, the Court of Cassation rejected the argument put forward by the appellant on the basis of Article 6 para. 1 (art. 6-1) of the Convention:
"However, as regards the application of Article 6 para. 1 (art. 6-1) ..., when a case requires a determination of civil rights and obligations or of a criminal charge, the authority hearing the case at first instance and the procedure followed by that authority do not necessarily have to satisfy the conditions laid down by the above-mentioned provision, provided that the party concerned or the accused is able to lodge an appeal against the decision affecting him taken by that authority with a court which does offer all the guarantees stipulated by Article 6 para. 1 (art. 6-1) and has competence to review all questions of fact and of law. In the present case, the appellant does not maintain that the court of appeal which convicted him did not offer those guarantees ...
In any event, the principles and the rule relied on in the ground of appeal do not have the scope therein suggested;
From the sole fact that a trial judge inquired into the case as an investigating judge it cannot be inferred that the accused’s right to an impartial court has been violated. It cannot legitimately be feared that the said judge does not offer the guarantees of impartiality to which every accused is entitled.
The investigating judge is not a party adverse to the accused, but a judge of the court of first instance with the responsibility of assembling in an impartial manner evidence in favour of as well as against the accused.
... ."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85310
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SASSNE SARI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1968 and lives in Bag.
5. In 2000 the applicant divorced her husband. The ex-spouses had an agreement about the placement of their son with the applicant. However, on 20 August 2002 the ex-husband took the son with him on a trip and did not return him to the applicant. Despite several enforcement fines imposed on the father, the applicant’s custody was restored only on 27 March 2006.
6. Meanwhile, on 11 October 2002 the father introduced an action requesting custody of the child.
7. On 20 April 2005 the District Court, after having held several hearings and obtained the opinion of an expert, adopted a decision, changing the child’s placement and granting custody to the father. On appeal, on 1 September 2005 the Regional Court quashed this decision.
8. In the resumed proceedings, on 23 June 2006 the District Court, after having held several hearings and obtained the opinion of an expert, again found for the father.
9. On 8 February 2007 the Regional Court upheld this decision and ordered the applicant to surrender the child to the father. This decision was served on the applicant’s lawyer on 12 March 2007.
VIOLATED_ARTICLES: 6