The applicant was born in 1963 and lives in Vienna. Between 1987 and 1995 he lived together with J.W. On 9 April 1993 J.W. gave birth to a daughter, M., of whom the applicant is the father.

In March 1995 the couple split up and J.W. went to live with her daughter in Linz. The applicant stayed in Linz during the summer and autumn of 1995 and then returned to Vienna.

On 25 December 1996 the applicant, while visiting his daughter, threatened and injured J.W., who subsequently refused him access to M.

On 3 July 1997 the applicant applied to the Linz-Land District Court (Bezirksgericht) seeking visiting rights in respect of his daughter. On 19 August 1997 the district court heard evidence from the applicant and J.W. On 24 October 1997 a visit took place. On 26 February 1998 the applicant and J.W. concluded a visiting agreement, under the terms of which visits were to take place on the premises of a youth centre in the presence of J.W.

On 26 June 1998, at J.W.'s request and with the approval of the Youth Welfare Office (Jugendwohlfahrtsträger) attached to the Linz–Land District Administrative Authority (Bezirkshauptmannschaft), the Linz-Land District Court withdrew the applicant's visiting rights. It noted that, at the first arranged visit on 9 March 1998, the applicant had insulted J.W. and told M. that her mother was an evil witch and a whore. M. had subsequently suffered from anxiety, sleep disturbances, gastro-intestinal problems and pneumonia. The court further noted that even before the visiting agreement had been concluded, the arrangements for and exercise of the applicant's visiting rights had been complicated by the applicant's constant aggression towards J.W. The court found that the repeated threats against her mother were seriously jeopardising M.'s mental development. Accordingly, the applicant's visiting rights were not in the best interest of the child; on the contrary, they were harmful to her mental and physical well-being.

On 14 January 1999 the Linz Regional Court (Landesgericht) upheld this decision.

In June 1999 J.W. started cohabiting with her new partner, A.F. They married in September 1999.

Another contact visit between the applicant and his daughter took place during Christmas 2000.

On 26 June and 4 July 2001 the applicant again lodged applications for visiting rights with the Linz-Land District Court. He further stated that he objected to the possible adoption of M. by A.F.

On 16 July 2001 the Linz-Land District Court rejected the applications. It noted that the applicant's visiting rights had been withdrawn and that the applicant had not submitted any arguments to suggest that the circumstances upon which that decision had been based had changed. The decision became final.

On 27 July 2001 A.F. instituted proceedings with the Linz-Land District Court seeking to adopt M. He requested that the court overrule the applicant's refusal to give the required consent.

The district court summoned the applicant to a hearing scheduled for 2 October 2001. In written submissions of 13 September 2001 the applicant informed the court that he had not changed his attitude towards the adoption request and still objected to adoption. A hearing was therefore not necessary. He added that the letter should be regarded as his submissions in the case. In further submissions to the Linz Court of Appeal, the applicant filed a motion accusing judge V., the competent judge of the Linz-Land District Court, of bias, and reiterated his request for visiting rights.

The district court subsequently informed the applicant that a hearing in the adoption proceedings was necessary and that any unexcused absence was punishable by a pecuniary penalty (Ordnungsstrafe). On 23 September 2001 the applicant informed the court that he was unable to attend the hearing scheduled for 2 October 2001, as he was attending lectures at Vienna University. He further referred to his motion accusing judge V. of bias, and submitted that his case would not be given objective consideration. He could, however, agree to another date under different circumstances.

On 12 October 2001 the President (Vorsteher) of the Linz-Land District Court dismissed the applicant's motion accusing judge V. of bias. On 7 January 2002 the Linz Regional Court upheld this decision. It noted that the applicant had referred to a statement made by judge V. during a hearing in August 1997 in the proceedings concerning the withdrawal of his access rights in respect of M. However, the applicant had not complained at the time of any alleged bias on the part of the judge. The motion had therefore been submitted out of time. On 14 May 2002 the President of the Linz-Land District Court rejected a further motion by the applicant accusing judge V. of bias, for the same reasons.

Meanwhile, on 12 March 2002, the applicant gave evidence to the Josefstadt District Court in Vienna under letters rogatory. At the hearing he argued that he had developed a close relationship with his daughter in her first two years. He had not lost interest in his daughter and still wished to obtain visiting rights. However, J.W. had sought to prevent any contact. In further written submissions to the court he argued that he did not know A.F., who had no family ties with his daughter. His daughter's alleged psychological problems had been caused by her mother, who herself had similar problems.

On 17 September 2002 the Linz-Land District Court heard evidence from A.F., M. and J.W. On 16 October 2002 the court, with the approval of the Youth Welfare Office attached to the Linz-Land District Administrative Authority, overruled the applicant's refusal to give consent and granted A.F. permission to adopt M. It noted that A.F. had developed a close relationship with M., who had said she was in favour of the adoption as she regarded A.F. as her father. The adoption would secure M.'s position within the family and also act as a material safeguard, as A.F. was able to support her financially. With regard to the applicant, the court found that his allegedly close relationship with M. did not correspond to reality. The last contact visit, during Christmas 2000, had been disappointing for the child, as the applicant had taken no initiatives, had not complied with the child's wishes for a special Christmas present and, during dinner, had not spoken with the child for three quarters of an hour. In the past the applicant had repeatedly tried to interfere in the relationship between M. and her mother, causing M. to develop physical and psychological problems. He had not made any effort to prove his feelings for M. in practice. Furthermore, he had not made maintenance payments for the past five years. The court therefore considered that the applicant's objection to the adoption was unjustified.

The applicant appealed against this decision. He complained that the lack of a public oral hearing in the presence of his daughter, A.F. and J.W. was contrary to Article 6 of the Convention. He had not been able to put questions to A.F. and J.W. or challenge the criticism made of him in several reports by the social-welfare authorities. In particular, no evidence had been heard from him concerning the accusation that he had told M. that her mother was an evil witch and a whore. He further complained that the court had not instructed him to request an opinion from an expert in child psychology. He was of Turkish origin, and adoption in these circumstances was tantamount to a denial of half of the child's genetic background. Furthermore, without an expert opinion there was nothing to substantiate the courts' findings that he had caused M.'s physical and psychological problems. The court should also have instructed him to request that evidence be heard from the social workers who had submitted negative reports about him. Instead, it had based its findings on their written submissions. Finally, the applicant contended that there were not sufficient reasons for M.'s adoption. A.F. could instead request joint custody with the child's mother and undertake to make maintenance payments on a contractual basis. The applicant's visiting rights had been withdrawn only temporarily and he had not failed to make efforts to keep in contact with M. He had been paying maintenance for M. for the past two years.

On 25 February 2003 the Linz Regional Court dismissed the applicant's appeal. It found that, even in the absence of an oral hearing in the presence of all the parties, which in the proceedings at issue was not obligatory, the applicant had been given a proper hearing for the purposes of Article 6 of the Convention. In that regard it noted in particular that the Linz-Land District Court had made several attempts to hear evidence from the applicant; this had eventually been possible only by issuing letters rogatory to another court. The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings, that his personal appearance before the district court was not necessary and that the letter to that effect should be regarded as his personal statement. Moreover, the applicant had had sufficient opportunity to comment in written submissions, namely in the appeal proceedings, on the accusations made against him. The court further considered that it had not been necessary to seek an expert opinion or to hear evidence from the social workers concerned. In this regard it noted that the regional court had already confirmed the applicant's aggressive behaviour and its consequences in its decision of 14 January 1999, and had rejected the applicant's arguments to the contrary. Nor had the applicant, in his present appeal, been able satisfactorily to show that his conduct had not been the reason for the child's problems. The district court had given sufficient and extensive reasons why the adoption should be authorised, namely by referring to the applicant's conduct. Finally, the regional court noted that the fact that A.F. was in a better financial position than the applicant had not been a reason for granting the adoption. Accordingly, it did not go into the applicant's arguments regarding the maintenance payments. It refused the applicant leave to lodge an ordinary appeal with the Supreme Court (Oberster Gerichtshof). This decision was served on the applicant's counsel on 18 April 2003.

Article 179a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides that adoption requires a written contract between the person seeking the adoption and the person to be adopted in addition to authorisation by a court.

Pursuant to Article 181 § 1, the court may not authorise an adoption if the parents of a minor child have not given their consent to the adoption.

Article 181 § 3 provides that, at the request of one of the parties, the court may overrule the refusal of consent by the parent of a minor child, where the person concerned has not given justifiable reasons for his or her refusal.

Article 5 of the European Convention on Adoption of 1967, which is binding on several of the Council of Europe's Member States, including Austria, provides as follows:

“1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:

(a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect;

(b) the consent of the spouse of the adopter.

The competent authority shall not:

a) dispense with the consent of any person mentioned in paragraph 1 of this article, or

b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law.

If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.”

In its White Paper on principles concerning the establishment and legal consequences of parentage of 15 January 2002, the Council of Europe's Committee of Experts on Family Law states as follows:

Principle 15:

“1. An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn:  the consent of the mother  the consent of the father.

States may also require the consent of the child considered by the internal law as having sufficient understanding.

The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent cannot be obtained, in particular if the whereabouts of the mother or of the father or of both is unknown and they cannot be found or are dead.

The competent authority may overrule the refusal to consent of any person mentioned in paragraph 1 only on exceptional grounds determined by law.”


Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings

The applicant was born in 1938 and lives in the Tula Region.

The applicant instituted civil proceedings in Moscow, some 300 kilometres from his place of residence. He sued the Russian Ministry of Finance and the Russian Ministry of Defence in connection with military operations in Chechnya in 1995. He claimed, in particular, that his property, including his flat, had been destroyed during an attack by federal forces on the centre of Grozny in January 1995 and sought compensation for pecuniary damage. The applicant submitted that the damage had been inflicted as a result of the use by the State of hazardous devices (источник повышенной опасности), namely weapons and military equipment, and that he was therefore entitled to compensation under the relevant provision of law without having to prove that the defendant had been at fault. The applicant also stated that he had endured mental suffering when forced to live in the zone of active military action, and claimed compensation for non-pecuniary damage on that account.

On 14 December 2000 the Basmanny District Court of Moscow (“the District Court”) examined the applicant's claims. It acknowledged that the applicant's property had been destroyed as a result of an attack in 1995, but noted that the applicant had failed to prove that his possessions had been damaged by Russian federal troops rather than by rebel fighters, as both parties to the conflict had used weaponry and ammunition of the same standard. The court also noted that under Articles 1069–1071 and 1100 of the Civil Code of Russia the State was only liable in damages for the unlawful acts of its agents. It further held that the military operations in Chechnya had been launched by presidential and governmental decrees which had been held to be constitutional by the Constitutional Court of Russia and were still in force. Accordingly, the court concluded that the actions of the Russian federal troops in Chechnya were lawful and dismissed the applicant's claim for compensation for pecuniary and non-pecuniary damage.

On the same date the applicant lodged a preliminary notice of appeal (предварительная кассационная жалоба) in which he requested the appellate court to quash the judgment and remit his case for fresh consideration. He also expressed his intention to adduce detailed arguments after acquainting himself with the text of the transcript of the first-instance hearing and obtaining a full copy of the judgment. Thereafter the applicant left for his place of residence.

In a letter of 20 December 2000 the District Court informed the applicant that he could obtain a full copy of the judgment of 14 December 2000 and access to his case file at the court registry.

On 21 December 2000 the applicant applied in writing to the District Court for a copy of the transcript of the hearing on 14 December 2000, and a document that had been adduced by the defendants at the hearing. According to the applicant, he never received a response to his request.

On 17 January 2001 the applicant sent another request to the District Court, which also remained unanswered.

In a letter of 14 February 2001 the District Court forwarded a copy of the judgment of 14 December 2000 to the applicant and notified him that a hearing of his appeal was scheduled for 28 February 2001. The applicant received this letter on 21 February 2001.

On 27 February 2001 the applicant prepared detailed appeal submissions (кассационная жалоба), in which he claimed that the first-instance court that the defendants had not adduced any evidence capable of refuting his arguments and that therefore the judgment of 14 December 2000 was unfounded and should be quashed. He further reiterated that his property had been destroyed during an attack in January 1995, and that under national law he was entitled to compensation for pecuniary damage. He also stated that he had endured mental suffering when forced to live in the zone of active military action, and therefore had the right to compensation for non-pecuniary damage. The applicant further argued that once the District Court had established that his property had, in fact, been destroyed, it should have indicated who was liable to compensate him for that damage. He claimed in this respect that since the military operations in Chechnya had been launched by the Russian State, it was the State which should compensate him for his losses. The applicant also insisted that during the military operations the State had used hazardous devices, namely heavy artillery and other indiscriminate weapons, and that under national law he was absolved of any obligation to prove that the damage had been caused by the defendants' fault.

At the end of his appeal submissions the applicant provided a list of the documents lodged, namely, three copies of his detailed appeal submissions of 27 February 2001, a copy of the preliminary notice of appeal dated 14 December 2000, a copy of the District Court's judgment of 14 December 2000, a motion to exempt the applicant from payment of the court fee, a copy of a certificate indicating the inflation rate in Russia for 1995-2000 and a copy of the summons for the appeal hearing as well as the envelope in which it had been sent marked with the date of receipt.

According to the applicant, a few hours before the court hearing on 28 February 2001, he attempted to file his detailed appeal submissions and to gain access to his case file at the registry of the Moscow City Court (“the City Court”), but was not allowed to do so. He then attempted to lodge his detailed appeal submissions at the hearing, but the presiding judge refused.

The Government referred to information provided by the Supreme Court of Russia that the applicant's appeal of 27 February 2001 had been accepted and examined by the City Court. They did not indicate the date on which the applicant's appeal had been received and registered by the City Court's registry.

By a decision of 28 February 2001 the City Court upheld the judgment of 14 December 2000. The applicant attended the hearing and presented his arguments. The City Court held that the conclusions of the court below were correct and well-founded, since the applicant had not adduced any evidence that the actions of the Russian federal troops within the territory of Chechnya were unlawful or that the alleged damage had been caused by them rather than by rebel fighters. It went on to address the applicant's argument that the weapons used were hazardous devices and that the damage should therefore be compensated irrespective of the question of fault. The City Court noted that this argument could not constitute a ground for quashing the judgment at first instance, as according to a decision of the Plenary of the Supreme Court of Russia, firearms could not be regarded as a hazardous device so that a claim for compensation for the damage caused by the shooting would only lie if the defendant was at fault. It concluded:

“The arguments advanced in the appeal do not point to any circumstances which have not been examined by the [first-instance] court or which could rebut the conclusions of the judgment. They seek to re-evaluate the adduced evidence and cannot serve as a basis for quashing the judgment.”

On 1 March 2001 the applicant sent a letter to the President of the City Court, complaining about the court's refusal to examine the detailed appeal submissions he had given to the presiding judge at the court hearing on 28 February 2001 and requesting that the appeal be registered and a copy of the court's decision of 28 February 2001 forwarded to him.

In a letter of 26 March 2001 the District Court sent a copy of the requested decision to the applicant without further explanation.

In order to be able to assess the merits of the applicant's complaint, the Court invited the Government at the admissibility stage to submit documentary evidence to clarify whether the applicant's detailed appeal submissions had been received and registered by the Moscow City Court.

In reply, the Government submitted a copy of the applicant's preliminary notice of appeal of 14 December 2000 and of his detailed appeal submissions of 27 February 2001.

The first document, which is dated and signed by the applicant, bears the stamp of the Basmanny District Court of Moscow together with a reference number and the date of 14 December 2000. There are also a number of handwritten notes, dates and signatures on the document which make it clear that it was sent to, and received by, the Moscow City Court.

The copy of the applicant's detailed appeal submissions, which is dated and signed by the applicant, contains no official stamps or dates to indicate whether they were received by the Moscow City Court and, if so, on what date. The list of the enclosures at the end of the document has been crossed out and the word “refused” has been inserted by hand nearby. The date of this “refusal” is missing, but the signature is very similar to that of the presiding judge on a copy of the appeal decision of 28 February 2001.

Article 282 enshrined the right of any party to a dispute and of other participants in proceedings to appeal against a first-instance judgment.

Article 283 provided that, as a rule, an appeal should be brought through the first-instance court that delivered the judgment. However, the fact that an appeal was lodged directly with an appellate court should not preclude the latter from examining it.

By virtue of Article 284, an appeal could be lodged within ten days after the first-instance judgment was finalised.

Article 286 laid down a number of formal requirements for lodging an appeal. In particular, the notice of appeal had to indicate the court to which it was addressed, the name of the person lodging it, the judgment being appealed against and the court which had delivered that judgment, the grounds of appeal and the list of documents enclosed with the appeal. An appellant could not refer to new evidence which had not been before the first-instance court unless he or she could substantiate that it had been impossible to adduce that evidence at first instance.

Article 291 secured the right of the other party to the dispute to submit written pleadings in reply to an appeal.


CASE OF GYARFAS AND HUNAUDIT KFT. v. HUNGARY

The applicant was born in 1956 and lives in Budapest.

On 28 December 1994 the predecessor of the second applicant, represented by the first applicant, filed an action for damages against a company before the Budapest Regional Court. On 17 October 1995 the Regional Court ordered intermission of the proceedings for six months at the joint request of the parties. On 11 April 1996 the plaintiff requested continuation of the proceedings and extended its action to involve another respondent.

On 6 March 1997 the Regional Court delivered a judgment dismissing the action.

On appeal, on 17 November 1997 the Supreme Court's appellate bench quashed the first instance judgment and remitted the case to the Regional Court.

On 31 August 1998 the plaintiff extended the action to include a claim of invalidity of a contract. On 10 November 1998 the plaintiff stated its intention to extend the action to involve further respondents including a company based in Japan. It was therefore instructed to advance the costs of translation but complied with this order only on 4 November 1999.

On 20 April 2000 the Regional Court held a hearing and delivered a judgment dismissing the action. The plaintiff appealed on 5 June 2000.

On 27 September 2000 the plaintiff was struck out of the register of companies and ceased to exist as a legal entity. Its successor was the second applicant. However, neither itself nor its attorney, the first applicant, informed the courts or the parties of this fact.

On 24 September 2001 the Supreme Court quashed the first instance judgment for deficient facts and remitted the case.

In the resumed proceedings, a respondent notified the Regional Court on 22 May 2002 that the plaintiff had been struck out of the register of companies. On 23 May 2002 the first applicant, representing the second one, declared that he could not make a statement on the legal succession of his client. He was ordered to do so within 15 days. On 17 July 2002 he informed the court that, by way of a deed of cession, the successor of the plaintiff was his own mother, a pensioner eligible for exemption from court fees.

At the hearing of 26 September 2002 the first applicant produced a contract of 2 January 1996 by which part of the claims of the original plaintiff had been ceded to himself. He also submitted another document of 31 October 1998 by which he had further ceded some of those claims to his mother. He stated that he wished to enter the proceedings as party.

On 15 October 2002 the Head of the Economic College of the Budapest Regional Court informed the President of the Budapest Bar Association of the first applicant's conduct, deemed profoundly unethical. The applicant was subsequently reprimanded.

On 9 September 2003 the parties were heard as to the first applicant's claim to become a plaintiff. On 7 October 2003 the first applicant was granted leave to become a plaintiff in the proceedings. However, on the respondents' appeal against the leave, the Budapest Court of Appeal quashed the order on 1 June 2004.

On 13 July 2004 the Budapest Regional Court declared interruption of the proceedings on the ground that the plaintiff had ceased to exist. On 30 May 2005 the court quashed this order finding that the second applicant was the legal successor. On 28 June 2005 the first applicant stated that he did not wish to become a party to the proceedings. However, on 23 February 2006 he stated that he nevertheless joined the proceedings.

On the same date the Budapest Regional Court delivered a judgment dismissing the applicants' action. On appeal, the Court of Appeal held a hearing on 5 December 2006 and delivered a judgment on 13 December 2006 upholding in essence the first-instance.

On 12 November 2007 the Supreme Court delivered a judgment dismissing the applicants' petition for review and upholding the judgment of the Budapest Court of Appeal.


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant came to the Netherlands on 31 March 1988 where he married a Turkish woman on 29 December 1988. Upon his request he was granted a residence permit by the head of the Utrecht police on 14 February 1989 which enabled him to live with his spouse and to work in the Netherlands. This residence permit was valid for one year and, on 5 April 1990, the applicant was given a document showing that as a result of his marriage he was allowed to reside in the Netherlands indefinitely.

On 27 August 1990, a son, Kürsad, was born to the applicant and his wife.

The applicant and his wife separated in November 1991 and divorce proceedings were initiated. As the applicant's right to reside in the Netherlands indefinitely had been dependent on his being married and cohabiting with his spouse, he lost this right ex jure from the moment of separation. On 24 January 1992, the applicant applied for and was granted an independent residence permit in order to work in the Netherlands pursuant to the relevant provisions of the Aliens Circular (Vreemdelingencirculaire; see paragraphs 40-42 below). This permit was valid for one year.

In the period immediately following the separation the applicant made no attempt to see Kürsad, but at a later stage he requested the Utrecht Regional Court (Arrondissementsrechtbank) to establish an arrangement concerning parental access (omgangsregeling – “formal access arrangement”). The Regional Court requested the Child Care and Protection Board (Raad voor de Kinderbescherming) to investigate the feasibility of such an arrangement.

In its report of 18 January 1993, the Child Care and Protection Board stated that after an initial refusal to cooperate in a formal access arrangement, the mother had agreed for the applicant to meet Kürsad several times on a provisional basis at the maternal grandparents' house but that the applicant had failed to contact the Board. The Board concluded that the applicant's situation had not become sufficiently clear and for this reason the Board found that a formal access arrangement would not be appropriate.

The applicant requested a prolongation of his residence permit in order to work in the Netherlands from the head of the Utrecht police on 11 January 1993. At this time the applicant was in receipt of unemployment benefits and for this reason his request was rejected on 3 February 1993. As regards Article 8 of the Convention, the head of the Utrecht police considered, inter alia, that since it appeared that the applicant had no regular contacts with his son there was no family life between them within the meaning of this provision. In this respect it was held that the applicant's claim that it was not his fault that no regular contacts took place could not be taken into account, since regard could only be had to the factual situation. Furthermore, even assuming there was family life between the applicant and his son, an interference with the right to respect for this life would, according to the head of the Utrecht police, be justified under paragraph 2 of Article 8.

The applicant requested the State Secretary for Justice (Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien) the decision of the head of the Utrecht police. He submitted that he was in the process of obtaining a permanent employment contract. He conceded that at present the contacts with Kürsad had not yet been regularised but that the Regional Court of Utrecht was expected to examine and to grant a request for a formal access arrangement shortly afterwards.

The applicant's marriage was officially dissolved on 17 March 1994.

On 15 July 1994, the applicant was heard by the Advisory Commission for Aliens' Affairs (Adviescommissie voor Vreemdelingenzaken). The applicant stated that since February 1993 he had visited Kürsad between one and three times a week.

The Advisory Commission proposed to the State Secretary for Justice that the applicant's request for revision be rejected. Even though it considered that there was family life between the applicant and Kürsad and that the refusal to grant the applicant continued residence in the Netherlands would constitute an interference with the applicant's right to respect for his family life, the Advisory Commission held that this interference was justified for the protection of the economic well-being of the country. In this respect the Advisory Commission considered that the applicant was in receipt of unemployment benefits. Although it might be true that these benefits would be withdrawn in view of the applicant's contract as a stand-by employee in the clothing industry, the Advisory Commission did not regard these activities as serving an essential national interest since it had appeared that on the Netherlands labour market other people, having priority over the applicant, were available for this kind of work.

The Advisory Commission further took into account that the applicant had only lived with Kürsad for eighteen months, that he saw Kürsad irregularly and briefly, and that he contributed irregularly to the costs of Kürsad's upbringing and education.

In line with the opinion of the Advisory Commission, the State Secretary for Justice rejected the applicant's request for revision on 6 October 1994.

The applicant filed an appeal against the decision of 6 October 1994 with the Aliens' Division (Vreemdelingenkamer) of The Hague Regional Court sitting in Amsterdam (nevenzittingsplaats Amsterdam) on 31 October 1994. He submitted, inter alia, that contrary to what the Advisory Commission had held, he had an intense relationship with Kürsad.

Meanwhile, following a hearing on 25 November 1994, the Utrecht Regional Court on 24 January 1995 appointed the applicant's former wife as guardian (voogdes) and the applicant as auxiliary guardian (toeziend voogd) of Kürsad. It further ordered that as a contribution to the costs of the maintenance and education of Kürsad, the applicant should pay to the mother any child benefits he might receive under the statutory regulations. In view of the circumstances and the relationship between the parties the Regional Court found it inappropriate, however, to lay down in a formal access arrangement the varying contacts which the applicant was having with Kürsad at that time. The Regional Court assumed in this respect that the contacts which the applicant had had and was still having with Kürsad would be continued in the future; it added that, as part of the upbringing of the child, it was incumbent on the mother to ensure that these contacts between father and child took place.

The applicant filed an appeal with the Amsterdam Court of Appeal (Gerechtshof) against the decision of the Utrecht Regional Court not to establish a formal access arrangement. A hearing took place on 19 April 1995, during which the applicant's former wife stated that she was not willing to cooperate in a formal access arrangement, since she felt that the applicant only wished to have such an arrangement established in order to obtain a right to reside in the Netherlands. Furthermore, she did not believe that the applicant was capable of maintaining regular contacts with Kürsad and submitted that irregular contacts would not be conducive to the boy's well-being.

On 10 May 1995, a hearing took place before the Hague Regional Court sitting in Amsterdam on the appeal filed by the applicant against the rejection of his request for revision of the decision not to prolong his residence permit. The Regional Court rejected the appeal by decision of 24 May 1995. It held that the refusal to grant the applicant continued residence in the Netherlands constituted a justified interference with his family life. The Regional Court considered in this respect, inter alia, that the Utrecht Regional Court had rejected the applicant's request to establish a formal access arrangement. It found, furthermore, that the contacts between the applicant and Kürsad were irregular and short and that the applicant did not contribute regularly to the costs of his son's maintenance and education. The Regional Court further held that the economic well-being of the country should be taken into account as well. It noted that the applicant had submitted an employment contract from which it appeared that his probationary period had not yet been concluded and that, in any event, there was a sufficient amount of work force with priority over the applicant available on the Netherlands labour market for the kind of work the applicant was employed to do.

When this decision was sent to the applicant, that is, on 26 June 1995, the applicant's probationary period had come to an end and he was in possession of a contract of employment for an indefinite period.

As regards the applicant's request for the establishment of a formal access arrangement, the Court of Appeal decided in an interlocutory judgment of 1 June 1995 to adjourn these proceedings. The Court found that at the present time there was insufficient reason to deny the applicant right of access to his son. As it was not clear to what extent the applicant was genuinely interested in Kürsad the Court of Appeal requested the Child Care and Protection Board to organise a number of supervised trial meetings between the applicant and Kürsad in order to have the applicant's motives clarified.

On 19 September 1995, the applicant was informed that the Court of Appeal had further adjourned the proceedings until 3 December 1995 in view of the heavy workload of the Child Care and Protection Board. By letter of 16 October 1995, the applicant asked the Court of Appeal whether a different organisation might be appointed to organise the trial meetings as he wished to see Kürsad and a further delay would be detrimental to both the applicant and the child.

On 31 October 1995, the applicant was placed in detention with a view to his expulsion (vreemdelingenbewaring).

On 2 November 1995, the applicant again requested a residence permit in order to work in the Netherlands, to be able to be with his child and for reasons of a compelling humanitarian nature. On this occasion he told the head of police that as of February 1995 he had stopped contributing financially to his son's maintenance since his former wife no longer allowed him to see Kürsad.

The first trial meeting between the applicant and Kürsad, organised by the Child Care and Protection Board, took place on 3 November 1995 at the offices of this organisation. Since the applicant was still in detention, he was accompanied by two police officers who observed the meeting between the applicant and Kürsad from a different room.

On 7 November 1995, the applicant's representative contacted the officer of the Child Care and Protection Board who had also been present at the meeting between the applicant and his son. In the opinion of this officer, the meeting had gone well given the circumstances under which it had taken place. Although father and son initially had had to re-accustom themselves to being together, it had been clear that Kürsad knew his father and was familiar with him. After the meeting Kürsad had spontaneously gone to the window to wave to the applicant. The officer submitted as her opinion that another trial meeting should be organised by the Board, perhaps in the presence of a psychologist, following which the possibility of a supervised access arrangement should be considered.

The applicant's request of 2 November 1995 for a residence permit was rejected by the State Secretary for Justice on 6 November 1995. The State Secretary held that no relevant new facts had been adduced by the applicant. On the basis of the information submitted by the police officers who had observed the meeting between the applicant and Kürsad on 3 November 1995, the State Secretary considered furthermore that it had not appeared that the relationship between the applicant and his son at the present time was meaningful, mutual or anything more than shallow and neither was it realistically foreseeable that a closer relationship would develop.

The applicant filed an objection (bezwaar) against the refusal of a residence permit with the State Secretary for Justice on 6 November 1995. He submitted, inter alia, that proceedings concerning access to his son were still pending before the Amsterdam Court of Appeal and that the trial meeting which had been ordered by the Court of Appeal on 1 June 1995 had only taken place as late as 3 November 1995. Given the fact that at that time the applicant had been in detention, it was unreasonable to expect that this meeting between the applicant and Kürsad would give a true impression of the nature of the relationship between them. The applicant also requested an interim measure from the President of the Hague Regional Court sitting in Amsterdam.

The applicant was expelled to Turkey on 8 November 1995.

On 7 March 1996 the President of the Regional Court rejected both the objection which the applicant had filed against the refusal of a residence permit and the request for an interim measure.

The appeal proceedings concerning the formal access arrangement before the Amsterdam Court of Appeal were adjourned for some time and finally continued in the absence of the applicant who had not been granted an entry visa in order to attend either more trial meetings or the hearing before the Court of Appeal. On 7 May 1998 the Court of Appeal confirmed the decision of the Utrecht Regional Court not to lay down a formal access arrangement (see paragraph 21 above). Having regard to the report of the Child Care and Protection Board of 18 January 1993 (see paragraph 12 above), the fact that Kürsad and his father had not seen each other since November 1995, that it had not been possible for the trial meetings – except for the one of 3 November 1995 – to take place within a reasonable time, the uncertainty as to whether the father would come to the Netherlands and stay there temporarily, the continued doubt as to whether the father was capable of maintaining regular contacts with Kürsad and the continuing tension in respect of the father's uncertain situation, the Court of Appeal considered that such an arrangement would be contrary to the compelling interests of the child.

The applicant lodged an appeal on points of law against this decision with the Supreme Court (Hoge Raad) which was rejected on 16 April 1999.

Meanwhile, on 5 January 1999, the applicant re-entered the Netherlands with a visa valid for three months. He submitted a new application for a formal access arrangement to the Utrecht Regional Court on 25 January 1999, arguing that there had been a change of circumstances since the decision of the Court of Appeal of 7 May 1998 (see paragraph 35 above) in that he was currently in the Netherlands and had employment. Following a hearing on 23 February 1999, during which Kürsad's mother stated that the boy did not want to see the applicant, the Regional Court requested the Child Care and Protection Board to examine whether it would be in Kürsad's best interests to be brought into contact with his father.

On 15 December 1999 the Regional Court rejected the applicant's request for a formal access arrangement and denied him the right of access to his son. It noted the conclusion reached by the Child Care and Protection Board, after another trial meeting had taken place, to the effect that the interests of the child militated against access since Kürsad had displayed strong opposition to the idea and the applicant had not proved able to overcome this opposition. The applicant has lodged an appeal against this decision, which proceedings are currently still pending.

Under section 11(2) of the Aliens Act (Vreemdelingenwet) residence permits granted for a specific purpose, such as family reunification or family formation, can be granted subject to restrictions relating to that purpose. If the purpose for which the permit was granted is no longer complied with, the residence permit may be revoked pursuant to section 12(d) of the Aliens Act, and prolongation may be refused pursuant to section 11(5) of the Act on grounds relating to the public interest. An alien who has been granted entry to the Netherlands but is not or is no longer eligible for admission is under an obligation to leave the country pursuant to section 15(d)(2). If he or she does not leave voluntarily, expulsion may follow (section 22).

The Netherlands authorities pursue a restrictive immigration policy in view of the high population density. Admission is only granted on the basis of treaty obligations, if the individual's presence serves an essential national interest or if there exist compelling reasons of a humanitarian nature. This policy is laid down, inter alia, in the “Circular on Aliens” (Vreemdelingencirculaire – “the Circular”): a body of directives drawn up and published by the Ministry of Justice.

At the relevant period, the requirements for admission of aliens for the purpose of family reunification and family formation, and for continued residence after separation, were laid down in Chapter B19 of the 1982 Circular. Aliens married to either a Netherlands national, a recognised refugee or a holder of a permanent residence permit (vestigingsvergunning) acquired, after one year of legal residence, ex jure an indefinite right to remain pursuant to section 10(2) of the Aliens Act. This right expired ex jure when the spouses no longer cohabited.

Pursuant to Article 4.3 paragraphs (a) and (d) of Chapter B19 of the 1982 Circular an alien whose marriage had lasted for at least three years before it broke down could be granted one year's residence from the date of the de facto breakdown of the marriage, subject to the restriction “for the purpose of finding work, in paid employment or self-employed”. During this year, dependence on social security or unemployment benefits would not be held against the alien. When assessing an application for a subsequent prolongation of the residence permit, the authorities had to determine whether the person concerned was in paid employment or was self-employed, and would continue to be so for at least another year, regardless whether this durable income was obtained from work in a sector where there were sufficient nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill all vacancies. Where no such employment existed for another year, the right of continued residence would be denied. Employment found subsequently would not change that decision unless that work served an essential national interest.

Respect for family life as enshrined in Article 8 of the Convention constitutes one of the treaty obligations which may lead to the granting of admission or continued residence (see paragraph 40 above). Article 1.2 of Chapter B19 of the 1982 Circular provided in this respect that where an alien was not eligible for (continued) residence on the basis of the applicable rules, the question whether a refusal of (continued) residence was in accordance with Article 8 of the Convention should always be examined. Similarly, Article 4.4 of Chapter B19 of the 1982 Circular stipulated that in the decision whether or not to grant continued residence, regard should be had to the individual's family life within the context of Article 8 of the Convention.

Article 377a of Book 1 of the Civil Code (Burgerlijk Wetboek) regulates access between a child and the parent who was not awarded parental responsibility following the divorce, as well as the grounds on which access can be denied. This provision, in so far as relevant, reads as follows:

“1. A child and a parent on whom parental responsibility has not been conferred shall have the right of access to each other.

At the request of one or both parents, the court shall establish an arrangement, for an indefinite period or otherwise, for the exercise of the right of access, or shall deny the right of access, for an indefinite period or otherwise.

The court shall deny the right of access only if:

a. access would seriously damage the child's psychological or physical development;

b. the parent is clearly incapable or must clearly be deemed incapable of access;

c. when interviewed, a child over the age of 12 has indicated serious objections to access;

d. access would be contrary in some other way to the compelling interests of the child.

If the parents disagree about the access arrangement, the courts request the Child Care and Protection Board for a report. Where the father has seen the child only occasionally since the child was very young and the parents are in dispute about the question of access, the Board may organise a number of meetings on Board premises, in order to determine how the child responds to the father and how the father treats the child. Such observations are then used to decide on the request for an access arrangement.

The applicant applied to the Commission on 6 November 1995. He maintained that the authorities' refusal to grant him continued residence and his subsequent expulsion had infringed Articles 3, 8 and 14 of the Convention.

On 27 June 1996 the Commission declared the complaints under Articles 3 and 14 inadmissible, and on 22 October 1997 it declared the complaint under Article 8 admissible.

In its report of 20 May 1998, the Commission expressed the unanimous opinion that there had been a violation of Article 8 of the Convention.


The applicant, Mr. A.B., is an Iranian national, who was born in 1962 and lives in Sweden. He is represented before the Court by Mrs. B. Bruks, a University lecturer in Law Science at the Mid-Swedish University in Östersund.

The applicant belongs to an ethnic minority in Iran called the Baluchis.

On 9 November 1988 the applicant arrived in Sweden with his family, his wife and their two sons, born in 1985 and 1987 respectively, and applied for political asylum under the name of A.D., born in 1960.

On the same day, the Immigration Board (Invandrarverket) held a first interview with the applicant in which he stated that he had fled from Baluchistan in Iran due to political problems. He claimed that he was an opponent of Khomeini and the Iranian regime and that he was politically active within the PAYKAR (a leftist movement). Further, he alleged that he had been imprisoned due to his political activities on two occasions, first in 1981 during two months and then again in 1984 for two years. In September 1988 he and his family had fled to Pakistan where, through smugglers, they had bought forged Pakistani passports and visas and tickets for Sweden. They travelled to Sweden on 7-8 November 1988 and, upon arrival, they threw away the passports since they were forged.

On 29 November 1988 the Immigration Board held a second interview with the applicant where he told about his life and political activities in more detail. He claimed that he had become politically active when the Shah was ousted in 1979 and that as a student he had been involved in an organisation called Sazmane Paykar (a communist party) for which he sold the organisations newspaper, handed out leaflets and painted slogans on walls. He had been arrested for the first time in 1980 and, after a trial, he had been sentenced to six months deportation to another region of Iran, Jahrom. In 1984 he had married and, between 1984 and 1988 he had worked as a driver, delivering products for different stores. He stated that he was not religious, although his parents were Sunni Muslims, but that it had been particularly difficult for him to be politically active since he was a Baluch and the central regime under Khomeini had had several conflicts with the Baluchis. At this point the interview was interrupted and it was not resumed until 5 December 1988 when he continued his account of events. He stated that after he had returned from Jahrom he had resumed his political activities, although not so openly anymore. In October 1981 he had again been arrested and during the interrogations he had been whipped and placed in very painful positions. He never admitted to anything and, in January 1985, he was released. At that time his political organisation had ceased to exist but he had soon joined another organisation, Baluch Raje Zorombersh (Baluchistan National Movement), which fought for the independence of Baluchistan from Iran. The applicant claimed that he had transported newspapers and leaflets for the organisation in his car while working as a delivery man for various stores. In August 1988 a close associate of his in the organisation had been arrested and the applicant had then decided to flee with his family to avoid being arrested as well. He stated that if he was returned to Iran he would be arrested and imprisoned and probably executed due to his political activities.

On 18 January 1989 the Immigration Board granted the applicant political asylum and a permanent residence permit.

In March 1996 the applicant was arrested and charged with having murdered his wife. He admitted that he had stabbed her but claimed that it should be considered as manslaughter (dråp). He stated that his wife had wanted a divorce and that she had moved to another apartment with the children. He knew that she was seeing other men. He further asserted that his wife’s family in Iran had repudiated her when she demanded the divorce and that her father had told him that he was not a man if he did not kill her. He claimed that he had regretted the act immediately and had called the emergency services.

On 26 May 1996 the Malmö District Court (tingsrätten) convicted the applicant of murder and sentenced him to ten years’ imprisonment and lifetime expulsion from Sweden. When deciding the ten years’ imprisonment the District Court took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence, which would have been life imprisonment, accordingly.

As concerned the expulsion, the District Court had requested that the Immigration Board submit its observations on the matter. In its observations, the Immigration Board stated that the reasons invoked by the applicant at the time when he was granted asylum were not such that, according to the current practice, he would have been granted asylum. However, in line with the Immigration Board’s practice and the provisions in the Aliens Act, there was no reason to recall his refugee status. On the other hand, the Immigration Board found that there were no impediments to enforcing a possible order to expel the applicant. The District Court also heard a witness called by the applicant who stated that he would be executed in Iran due to his political activities. The court considered that due to the very serious nature of the crime, there were particular reasons for expelling the applicant.

The applicant did not appeal against the judgment.

Following the conviction, the applicant lost custody of his sons and they were taken into care by the social authorities and placed in a foster home. They then had no contact with their father for some years. In December 2000 the applicant was granted permission to call them once a month and to visit them when they were visiting his brother, who lived in Gothenburg. The children allegedly had a close relationship with their uncle.

On 5 December 2001 the applicant requested the Government, through the Ministry of Justice, to revoke the expulsion order. He informed the Government of his true identity, A.B., and gave an account of what he stated was his true life story. He maintained that he had been politically active within the PAYKAR, distributing newspapers and leaflets, organising demonstrations and writing slogans on walls, and that he had been arrested in 1980 and detained for two months before he was sentenced by a revolutionary court to six months’ deportation to the city of Jahrom. When he returned home, he married and resumed his political activities. During the autumn of 1981 he was again arrested and this time he was tortured during the interrogations. He claimed that he had been whipped, beaten, kicked and placed in very painful positions. After roughly two years’ detention, he had been released but had to report to the police once a week. His relatives had helped him to buy a small lorry to enable him to work and support his wife. During the summer of 1984 he had decided to flee from Iran and, after careful planning, he had fled with his wife to Pakistan where he was recognised as a refugee by the UN High Commissioner for Refugees. In November 1985 his first son was born. The applicant alleged that many refugees were killed in Pakistan for which reason he and his family, in February 1986, had travelled to the Netherlands where he had applied for asylum. In October 1987 his second son was born and, in 1988, his request for asylum was refused by the Dutch authorities. On 8 November 1988, to avoid being sent back to Iran, the applicant had travelled to Sweden with his family, on forged documents, where he had applied for asylum under the name of A.D.

Before the Government the applicant submitted that he had continued his political activities in Sweden where he had joined the Baluchistan National Movement (BNM) and had become a board member and a member of the editorial board of “Zrombech”, the organisation’s newspaper. The applicant requested that the Government examine his reasons for asylum based on the information he had submitted. In particular, because of his family situation, an expulsion would mean that his sons would become parentless in Sweden. Last, he claimed that the Iranian authorities were aware of his political activities and that he would be executed because of this if forced to return to his home country. He submitted several documents to support his claims about his political activities, both in Iran and in Sweden, inter alia, of which he submitted the following to the Court:

A fax from the BNM in London, dated 17 May 1996, in which it was stated that the applicant was a former member of the central committee of the BNM and a member of the editorial board of the movement’s news paper, “Zrombesh”. It further stated that the applicant would face torture and execution if returned to Iran due to his political activities.

One further letter from the BNM, dated 20 December 2003, in which it renewed its concerns for the applicant’s safety if expelled to Iran due to his active opposition to the Iranian regime and that country’s lack of respect for human rights.

A fax from the Spanish Catholic Migration Commission, dated 22 May 1996, which drew attention to Article 3 of the Convention and noted that to expel the applicant to Iran would imply serious danger to his life and freedom.

A copy of his certificate issued in July 1984 by the UN High Commissioner for Refugees in Pakistan, stating that the applicant was recognised as a refugee by the UN. His date of birth was noted to be 1958.

On 21 May 2002, after a request by the Government, the Migration Board (Migrationsverket) submitted its observation regarding the matter. It considered that there were no obstacles to expelling the applicant to Iran.

During the summer of 2002 the applicant published a book about his life, in Swedish, which included information about his political activities, experiences from Iranian prisons and criticism of the Iranian regime. He claimed that the content of the book would automatically lead to a very harsh sentence for him if he were returned to Iran since he was convinced that the Iranian Embassy in Sweden would have obtained a copy of the book. One thousand copies of the book had been printed.

Based on this new information, the Government requested that the Migration Board submit supplementary observations. On 26 August 2002, the Migration Board maintained that the applicant’s political activities in his home country as well as the political activities he had performed in Sweden before his imprisonment were not such that they could constitute an impediment to the enforcement of his expulsion to Iran. However, it stated that some of the statements made by the applicant in his book were of such a character that it could not be excluded that the Iranian authorities had noted them and that the applicant might be apprehended as a result if forced to return. The Migration Board therefore considered that there could be an impediment against enforcing the expulsion for this reason.

On 12 October 2002 the applicant was conditionally released from prison but placed in detention awaiting expulsion following a decision, two days earlier, by the Minister of Justice. However, on the same day, the Minister of Justice had also decided that the applicant should not be expelled until the Government decided otherwise.

On 1 December 2002 the Minister of Justice decided that the applicant should be released from detention.

Apparently, on 28 April 2003, the applicant participated in a Swedish radio programme which discussed the topic of honour-related murders.

In June 2003 the Government requested the Swedish Embassy in Iran to investigate whether the applicant would be at risk if returned to Iran and to submit its assessment on the matter.

On 27 July 2003 the Embassy submitted its answer to the Government. It stated that it was possible that the Iranian authorities were aware of the BNM’s activities outside Iran but that it did not appear that the organisation had any activities or contacts within the country. As concerned the applicant’s book, the Embassy made the assessment that it did not contain any information which could be considered as offensive by the Iranian authorities. It noted that the prison conditions in Iran were discussed in the Iranian media and that the applicant’s experiences and descriptions of the prisons were outdated. Moreover, the political activities described by the applicant in his book were not current and were depicted in a vague and summary manner. Thus, the Embassy concluded that the applicant would not risk being punished if returned to Iran, neither because of his political activities nor because of his book.

The applicant claimed that the Embassy had not seriously read and considered the content of his book. He had also participated in more radio programmes where he had made critical comments against the Iranian regime and culture. Moreover, he stated that his wife’s relatives would kill him if he returned as revenge for having murdered her. Last, he stated that his relationship with his sons was improving all the time and that he met with them and spoke with them on the phone frequently. In particular, his relation to his younger son was getting stronger and his son had asked to be allowed to live with the applicant.

On 25 September 2003 the Government rejected the applicant’s request to have the expulsion order revoked. The Government found that there was neither any impediment against the enforcement of the expulsion nor any other special reason, as set forth in the Aliens Act, to revoke the expulsion order.

In November 2003 the applicant lodged a new application with the Government, requesting that the expulsion order be revoked. He stated that his younger son had had a severe crisis as a result of the Government’s rejection since he did not want to lose his father. The younger son spent every other weekend with his father and had expressed the wish to be allowed to live with him. The older son kept his distance from his father but did not want him to be expelled. He submitted a medical certificated written by a Chief Physician at the Children and Youth Psychiatric Clinic in Östersund which stated that consideration should be taken of the children’s difficult situation and need of their father.

On 11 December 2003 the Government rejected the request, finding no reason to change its previous decision.

In January 2004 the applicant lodged yet another application with the Government to have the expulsion order revoked. He primarily invoked his younger son’s deteriorating psychological status which was caused by the fear of losing his father and becoming parentless. The applicant and his younger son had developed a very close relationship and it would cause irreparable damage to the son if his father were to be expelled expelled.

On 12 February 2004 the Government rejected the application on the same grounds as previously.

On 17 August 2004, after a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Iran until the Chamber had had the opportunity to examine the application on 31 August 2004.

Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence.

Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. Firstly, he or she must be convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if he or she is in fact sentenced to a more severe punishment than a fine and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he or she will continue his or her criminal activities in Sweden or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country.

Furthermore, under Chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account his or her links to Swedish society. As regards aliens who are considered to be refugees and in need of protection in Sweden, they may be expelled only if they have committed a particularly serious crime and it would entail serious danger for public order and safety to allow them to remain in Sweden. An alien with refugee status shall be considered as a refugee in need of protection in Sweden unless it is evident that he or she no longer is a refugee with such a need.

Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.

According to Chapter 7, section 16 of the Act, if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision by the court. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen) grant clemency or reduce a penal sanction or other legal effect of a criminal act.


Violation of Article 1 of Protocol No. 1 - Protection of property

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in 1924, 1932, 1940, 1949, 1946, 1944, 1937 and 1934 respectively and live in different cities in Turkey.

On various dates, the applicants inherited or bought plots of land and properties near the coasts in different parts of Turkey, namely in Çanakkale, Şarköy, Izmir, Mudanya and Seferihisar. Some of the applicants constructed houses or operated commercial entities on their land.

On different dates, the Treasury requested from the competent courts of first instance to determine whether the applicants’ properties were located within the coastal strip. A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area.

Following the conclusion of the expert reports, the Treasury brought actions before the relevant courts, requesting the annulment of the applicants’ title deeds to the land and the properties, on the ground that they were located within the coastal area.

On various dates, the courts of first instance upheld the request of the Treasury and annulled in full the applicants’ title deeds in application nos. 23953/05, 37166/05, 19638/06 and 17654/07, whereas the title deeds in the remaining two applications were partially annulled. In their decisions, the courts held that, pursuant to domestic law (the Coastal Law of 1990), the coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the plots of land.

Appeals by the applicants against these judgments were dismissed by the Court of Cassation. Some of the applicants’ requests for rectification of the judgments were also rejected by that court.

In application no. 23953/05 the applicant brought an action for damages in the Şarköy Civil Court of First Instance on account of his loss of ownership and the demolition of four shops located on the land. On 28 October 2003 the Şarköy Civil Court of First Instance dismissed the applicant’s action on the ground that, inter alia, the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. The applicant appealed. In a judgment of 24 September 2004 the Court of Cassation upheld the judgment. A rectification request by the applicant was further dismissed by the Court of Cassation on 17 March 2005.

The details concerning the six applications are indicated in the table below:

The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006).


The applicants, Stéphane David and Maurice Zollmann, are Belgian nationals, who were born in 1959 and 1963 respectively and have given addresses in Belgium and South Africa. They are represented before the Court by Mr N. Angelet, a lawyer practising in Brussels, Belgium.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants, who are brothers, run an international diamond business, which involved, inter alia, importing diamonds to the family business in Antwerp, Belgium. They state that in autumn 1997 the family business took the decision not to import diamonds from African countries which were undergoing civil war or political instability.

By resolution 1173 (1998) of 12 June 1998, the United Nations Security Council imposed an embargo on the export of diamonds by UNITA due to that organisation's role in the continuing war in Angola. In paragraph 21, it requested States to take measures against persons or bodies which violated the sanctions and to impose appropriate penalties. On 8 July 1998, the European Union formally adopted sanctions, binding on its member states. By August 1998, the United Kingdom and Belgium had adopted legislation to give effect to resolution 1173. The legislation as amended in the United Kingdom prohibited the importation into the United Kingdom of diamonds from Angola unless certified by the Angola Government.

On 20 September 1999, in answer to a parliamentary question, Mr Peter Hain, the Minister of State at the Foreign and Commonwealth Office responsible for Africa, gave a written response stating inter alia;

“We fully support UN sanctions against UNITA... We have also called for stricter enforcement of sanctions by all UN member states. ... The UK fully implements UN sanctions decided upon by the Security Council... Information concerning potential breaches of sanctions by UK nationals or companies is passed immediately to the appropriate UK enforcement authorities.”

On 18 January 2000, in answer to further questions about Government measures to enforce UN sanctions, Mr Hain stated:

“It is vital that private individuals and companies engaged in breaking the law by deliberately breaching the UN sanctions on UNITA are stopped. I can inform the House that we are referring to the UN sanctions committee and its expert panels the details of three such individuals which we hope that they will be able to follow up...”

On 17 February 2000, Mr Hain stated in the House:

“We are ready to name, shame and take action where we can on those who break sanctions. For example, we would take action in respect of the illegal provision of UNITA with supplies, without which it could not keep on fighting in Angola. I have named in the House several people included in breaking UN sanctions by supplying UNITA and I shall now name more. David Zollmann is involved in exporting diamonds to Antwerp for UNITA. Based in Rundu, Namibia, Zollmann paid a monthly fee to Namibian officials to enable him to operate without interference. We estimate that in 1999 Zollmann was moving $4 million worth of diamonds per month. His brother, Maurice Zollmann, is carrying out similar activity for UNITA in South Africa. Hennie Steyn, a South African pilot, flies diamonds for Maurice Zollmann from Angola, via Congo Brazzaville... Those individuals are making money out of misery. It is vital that all the Governments, agencies and companies where they operate take urgent action to stop their illegal activities... We have passed these names to the UN and in particular to ambassador Robert Fowler, for his work on the Sanctions Committee responsible for tackling UNITA and Angola generally.”

This declaration was published in the House of Commons Hansard Debates and was available on the parliamentary website. The press reported on the matter, repeating the names of the persons included in the declaration – this included a report from Reuters on 17 February 2000 repeated by CNN, an article in the Guardian on 18 February 2000 and an article in the Namibian newspaper Windhoek Observer on 11 March 2000. Mr Hain's declaration was repeated in the South African Parliament by the deputy minister for foreign affairs on 15 March 2000.

The applicants stated that an investigation was opened into the allegations by the parquet in Antwerp in February 2000. No proceedings have since ensued. The applicants provided a letter dated 8 November 2000 from the Antwerp procureur stating that the investigation had been closed with a decision not to prosecute or issue charges. A letter (undated but apparently sent in June) from the Belgian Foreign Minister to a Belgian Member of Parliament stated that the British secret service had provided information to the Belgian secret service but that it had not been established on the basis of that information that David Zollmann was guilty of the acts that Mr Peter Hain had accused him of.

By letter dated 28 February 2000, the first applicant wrote to Mr Peter Hain denying the facts imputed by the Minister and requesting a meeting with himself and his brother. On 8 March 2000, Mr Peter Hain replied that he stood by the statement which he had made, that the matter was in the hands of the UN Sanctions Committee and that he saw no need for a meeting.

On 28 February 2000, the Panel of Experts assisting the UN Angola Sanctions Committee stated in a report that it has received information from several sources that David Zollmann had been involved in importing diamonds to Antwerp for UNITA and that similar allegations had been made publicly. It considered that further investigation was warranted and passed on the information to the Chairman of the Committee.

On 12 July 2000, following disclosure of the letter by the Belgian Minister for Foreign Affairs, the first applicant's counsel wrote to Mr Peter Hain requesting that he retract his allegations publicly and meet with the first applicant on his visit to Antwerp in July 2000, or alternatively, to waive the parliamentary privilege attaching to his statements in order to permit the first applicant to take proceedings in the courts. No response was received to this letter.

In the report of the Monitoring Mechanism on Angola Sanctions dated 21 December 2000, a detailed analysis of the status of the sanctions on diamond trading in the region was made. David Zollmann was named as the junior partner in the Antwerp firm of Glasol which had created the Cuango Mining Corporation that had been the largest mining operation in the Cuango valley before the imposition of sanctions. In the additional report dated 16 April 2001 reporting on the enforcement of sanctions, no mention was made of either applicant.

Since then the applicants have alleged that the stigma attaching to their reputation has led to other businesses refusing to trade with them e.g. providing two letters referring to the appearance of the name of one of the applicants in UN documents concerning diamond smuggling.

Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states:

“... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a court or place out of Parlyament.”

The effect of this privilege was described by Lord Chief Justice Cockburn in the case of Ex parte Watson (1869) QB 573 at 576:

“It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party.”

Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege.

The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In the case of Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord Nicholls of Birkenhead stated in the House of Lords, at page 204:

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.”

Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is lost only if the publisher has acted “maliciously”. “Malice”, for this purpose, is established where the report concerned is published for improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of reckless indifference to the truth) can reasonably be inferred.

MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of the Defamation Act 1996, which provides:

“(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) Where a person waives that protection –

(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.”

General control is exercised over debates by the Speaker of each House of Parliament. Each House has its own mechanisms for disciplining Members who deliberately make false statements in the course of debates. Deliberately misleading statements may be punishable by Parliament as a contempt. Alternatively, as the parliamentary Select Committee on Procedure (1988-89) has observed:

“... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions if some ministerial responsibility can be established; he can petition the House, through a Member; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another, particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper notification were observed.”

A Joint Committee of both Houses of Parliament was set up in July 1997 and tasked with reviewing the law of parliamentary privilege. The Committee received written and oral evidence from a wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on parliamentary immunity:

“38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy.

It follows that we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government. Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.”

Article 40 of the Statute of the Council of Europe provides:

“a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions.

b. The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph a above. For this purpose the Committee of Ministers shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges and immunities which the Council shall enjoy at its seat.”

In pursuance of paragraph b above, the member States, on 2 September 1949, entered into the General Agreement on Privileges and Immunities of the Council of Europe. This provides, as relevant, as follows:

“Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.”

“During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy:

a. on their national territory, the immunities accorded in those countries to members of Parliament;

b. on the territory of all other member States, exemption from arrest and prosecution. ...”

Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe provides:

“Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.”

Article 9 of the Protocol on the Privileges and Immunities of the European Communities, adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides:

“Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.”


The applicant, C. M., is a French national, born in 1939 and living in Grande Synthe (France). He is represented before the Court by Mr W. Watel, a lawyer practising in Lille.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner of a private motor vehicle which he also uses in the course of his professional activities with the permission, granted on 1 October 1991, of the regional director for industry, research and the environment.

On 22 September 1994 the applicant’s son, accompanied by a friend, was driving the car when he was stopped for a customs inspection. The customs officers found nineteen grams of heroin, whereupon the applicant’s son and his friend admitted that they had been to the Netherlands to acquire drugs for their personal use.

On 23 September 1994 the Lille Criminal Court convicted the applicant’s son of drug smuggling and drug use. The Court also ordered that the vehicle used to commit the smuggling offence should be forfeited to the customs authorities. The applicant’s son lodged an appeal against the judgment relating solely to the forfeiture of the vehicle.

On 18 January 1995 the Douai Court of Appeal upheld the judgment ordering the forfeiture on the following grounds:

“The vehicle was lawfully seized under Article 323 of the Customs Code.

Under Article 414 of the Customs Code, any smuggling offence involving prohibited goods results in the forfeiture of the vehicle.

Liability to forfeiture is incurred whenever an offence has been committed (Court of Cassation, Criminal Division – “Cass. Crim.”, 1980).

Moreover, it is clear that the vehicle was used to commit the offence.

The case law provides the following clarification of the position:

– The statutory provision requiring the forfeiture of vehicles used for smuggling is general and absolute and makes no exception in respect of vehicles without which it would have been impossible to bring smuggled goods in or out. It suffices that they were used in one way or another. (Cass. Crim. 1956)

– Courts which find that a vehicle was used for smuggling cannot refrain from ordering their forfeiture save where they find extenuating circumstances as provided by Article 369 of the Customs Code, which makes no reference to Article 463 of the former Criminal Code and is not covered by section 323 of Law no. 92-1336 of 16 December 1992.

Accordingly, this court allows the authorities’ application and upholds the judgment of the Lille Criminal Court since, in view of the seriousness of the offences of which he is accused, [the applicant’s son] is not entitled to plead extenuating circumstances under customs law.”

The applicant was not notified of either the judgment of 23 September 1994 or that of 18 January 1995.

In a letter of 30 September 1994 the applicant’s lawyer asked the customs authorities to return the applicant’s private vehicle to him along with some personal effects (a pair of gloves, a pair of hunting boots, two knives and a pack of cards).

On 28 October 1994 the applicant’s lawyer sent a further letter repeating his request and stating that the applicant refused to pay any sum, however small, to recover his vehicle.

In a letter of 18 November 1994 the interregional director of customs stated that the applicant could recover his personal effects, as he had already been told during a telephone conversation on 26 September 1994. Regarding the vehicle, the director informed him that he was “prepared to accept a friendly settlement for the transfer of the vehicle ... in return for payment in cash of FRF 3,000 (three thousand francs)”.

The relevant provisions of the Customs Code read as follows:

“1. When seized goods are not prohibited an offer to release the vehicle from judicial seizure shall be made subject to security from a reliable guarantor or deposit of the value.

That offer and the reply thereto shall be recorded in the official report.

The vehicle shall be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage, rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession. However, restitution is subject to the reimbursement of any costs incurred by the customs authorities for the holding and safe keeping of the seized vehicle.”

“District courts shall adjudicate disputes relating to the payment or reimbursement of duties, applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts.”

“1. Seized or forfeited objects may not be claimed by the owners, nor may the value of the vehicle, whether deposited or not, be claimed by creditors, including secured creditors, save through action against the party who committed the customs offence.

Once time limits for lodging appeals, third party applications and sales have expired, all actions for restitution and other actions shall be inadmissible.”

The relevant provisions of the Code of Judicial Organisation read as follows:

“District Courts shall hear the following cases, subject to appeal:

(9) Disputes relating to refusal to pay customs duties, applications to set aside an order to pay, failure to discharge liabilities imposed by transit bonds and other customs cases; ...”

Finance Amendment Law no. 81-1179 of 31 December 1981 amended Article 326 of the Customs Code by adding a third paragraph providing for the establishment of an exceptional procedure where owners have acted in good faith. The reform was intended to resolve problems in applying Article 376 § 1 resulting from the increase in vehicle rental and leasing contracts by allowing the situation of various vehicle rental, leasing and public transport or freight companies to be resolved by absolving them from guarantor and deposit requirements as long as there was proof of good faith and a contract had been negotiated.

This statutory system has been progressively supplemented by case-law. The Court of Cassation has clarified that this was the only legal remedy that an owner acting in good faith could use to have his vehicle restored as a civil claim in criminal proceedings against a person who had committed a customs offence would be inadmissible because the loss or damage complained of was not the direct result of the offences at issue (Cass. Crim., 6 March 1989, Bulletin criminel – “Bull. crim.” no. 101).

On 12 January 1987 the Criminal Division also established the principle that paragraphs 1 and 3 of Article 326 should be read separately:

“Under Article 326 § 3 of the Customs Code, the vehicle must be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage, rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession, regardless of the nature of the goods transported.” (Bull. crim. no. 8).

Furthermore, in a judgment of 9 April 1991 the Court of Cassation established the principle that the district courts had jurisdiction to hear applications for restitution under Articles 326 and 341 bis-2 of the Customs Code which, when combined with Article 357 of the Code,

“assign[ed] jurisdiction to rule on the restitution of vehicles seized during these operations to the district court of the place in which the seizure took place. Under these circumstances and provided that the ship-owner was not implicated in the criminal proceedings the impugned judgment rightly upheld the District Court’s decision that it had jurisdiction”.

In this ruling the Court of Cassation also specified that the provisions of Article 326 applied both to the seizure carried out by the customs authorities and to the forfeiture ordered by the courts and moreover that the civil courts were under no obligation to defer their decision pending the outcome of the criminal proceedings.

“Under certain circumstances specified therein, Article 362 § 3 of the Customs Code entitles owners acting in good faith of vehicles seized because they were used for smuggling to have their vehicle returned without the need for a guarantor or a deposit even when a criminal court has ordered their forfeiture. It follows that criminal proceedings during which such orders are issued cannot have any influence on any future decisions in civil proceedings to establish ownership.” (Cass. Crim. 9 April 1991, Bull. crim. no. 125; JCP 1991-IV, p. 226).

The jurisdiction of the district courts was reconfirmed in a judgment of 21 February 1995 (Crassat case) in the following terms:

“District courts hear disputes relating to the payment or reimbursement of duties, applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts. Under Articles 356 and 357 of the Customs Code, the criminal courts hear cases relating to petty and lesser indictable customs offences and all customs matters raised as a defence. It follows that the district courts have primary jurisdiction to hear these cases provided that they fall within the jurisdiction of the ordinary courts.”

In this judgement, the Criminal Division of the Court of Cassation also extended the scope of Article 326 § 3, taking the view that this provision allowed any vehicle to be returned to owners acting in good faith, without the need for a guarantor or a deposit, even if there was no contract between the owner and the offender who had used the vehicle.