CASE OF ŠNEERSONE AND KAMPANELLA v. ITALY

Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;No violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicants were born in 1973 and 2002 respectively and live in Rīga.

In 2002 Marko was born to the first applicant in Italy. His father was an Italian national, who was never married to the first applicant but who has never disputed his paternity of Marko. In 2003 Marko’s parents separated and the applicants moved to a separate residence in Cerveteri, Italy. The applicants allege that ever since Marko’s birth he has in practice been in the exclusive care of his mother, and his father’s participation in his upbringing has been minimal.

At the request of the first applicant, on 20 September 2004 the Rome Youth Court (Tribunale per i minorenni di Roma) granted custody of Marko to his mother because the ongoing conflict between the parents made joint custody unfeasible. However, the court held that the father had a right to have his son stay at his home on specified days of the week and also whenever the first applicant was travelling outside Rome for a length of time exceeding one week or outside Italy for any length of time. The decision came into force on the day it was adopted.

Marko’s father appealed against that decision, requesting that joint custody be granted or that he be granted sole custody and that the first applicant be forbidden to take the child abroad or to change her place of residence without the father’s prior approval. The Youth Section of the Rome Court of Appeal (Corte d’appello di Roma. Sezione per i minorenni) rejected his request in a decision of 1 March 2005, noting, inter alia, that the child was developing well and that it was impossible to ensure his development by granting sole custody to the father. Furthermore, it was noted that the father’s concern that the first applicant might move to Latvia and take their son with her was unfounded because a judge in a guardianship hearing (giudice tutelare, “the guardianship judge”) had previously refused to issue a passport to Marko and also because his mother had strictly adhered to the ruling of the first-instance court and had left the child in his father’s care when travelling to Latvia.

On 24 June 2005 the guardianship judge granted an authorisation to issue a passport to Marko. On 11 July 2005 Marko’s father appealed against that decision. On 14 November 2005 the Rome Youth Court rejected Marko’s father’s appeal, because there was no evidence that the first applicant was planning to leave Italy with the child.

On 3 February 2006 the Court (Tribunale) of Civitavecchia ruled that Marko’s father had to make child support payments. The decision noted, inter alia, that the father had previously avoided financially supporting his son. Marko’s father failed to make the ordered payments and on 8 April 2006 the first applicant lodged a complaint about this with the Italian police.

It appears that because of Marko’s father’s failure to financially support the applicants their only income was money which the first applicant’s mother was sending from Latvia. However, in December of 2005 the first applicant’s mother informed her that she was no longer able to provide financial support. According to the applicants it was for that reason that they had no other choice but to return to Latvia in April of 2006. The applicants indicate that they subsequently continued to return to Italy for brief periods of time. According to the Italian Government, they have never been back.

On 7 February 2006 Marko was granted Latvian citizenship, since it was established that his mother’s permanent residence at the time of his birth had been in Latvia. Subsequently, the first applicant registered Marko’s permanent residence in an apartment in Rīga belonging to her.

On an unspecified date Marko’s father requested the Rome Youth Court to grant him interim sole custody of Marko and to order his return to Italy.

On 5 June 2006 that court issued a decision in which it upheld the father’s request. The decision noted that the first applicant’s actions had been harmful to the child. The court further held that it did not have jurisdiction to order the child’s return to Italy but indicated that Marko had to reside with his father. The decision finally provided that a hearing would be held on 25 October 2006 and that Marko’s father had an obligation to inform the first applicant of the court’s decision before 20 September 2006.

The applicants submit that the first applicant was not informed of the hearing that had been scheduled, nor did she receive a summons to it. The applicants further submit that Marko’s father had never requested full custody, but instead had asked the court to re-establish his rights of contact with the child and to order his return to Italy. The first applicant alleges that she only learned about the adopted decision in March of 2007.

On 16 January 2007 (by what appears to be a clerical error the document is dated 16 January 2006) the Italian Ministry of Justice, in its capacity as the Central Authority under Article 6 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), issued a request for Marko to be returned to Italy.

After receiving the request, the Latvian Ministry of Child and Family Matters (Bērnu un ģimenes lietu ministrija), which is the Latvian Central Authority within the meaning of the Hague Convention, initiated civil proceedings against the first applicant in accordance with Article 7 of the Hague Convention. The Rīga City Vidzeme District Court, which had been allocated the case, requested the Rīga City Orphans’ Court (Rīgas bāriņtiesa) to evaluate the applicants’ residence and to issue an opinion concerning the possibility of returning Marko to his father in Italy. After visiting the applicants’ residence, by a decision of 20 March 2007 the Orphans’ Court established that the child’s living conditions were beneficial for his growth and development. It further noted that Marko had adjusted to living in his mother’s residence and that she was ensuring his full physical and intellectual development. Accordingly, the Orphans’ Court concluded that the child’s return to Italy would not be compatible with his best interests.

That conclusion was also supported by the findings of a psychologist, whose opinion had been requested by the applicants’ lawyer. In a report dated 30 March 2007 the psychologist concluded that severance of contact between Marko and his mother was not to be allowed, in that it could negatively affect the child’s development and could even create neurotic problems and illnesses.

By a letter of 6 April 2007, the Italian Central Authority attested to the Latvian Central Authority that if any of the circumstances mentioned in Article 13 (b) of the Hague Convention arose Italy would be able to activate a wide-ranging child protection network which could ensure that Marko and his father received psychological help.

On 11 April 2007 the Rīga City Vidzeme District Court issued a decision by which it refused the father’s request to return Marko to Italy. That court based its decision on the Hague Convention and Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”). The court held that the removal of Marko had been wrongful within the meaning of the Hague Convention and the Regulation, since it had been carried out without his father’s permission. It was further noted that it was not expedient to hear Marko’s own opinion, since he was four years old at the time and was unable to form an opinion about which of his parents he should live with.

The court considered it necessary to assess whether the circumstances provided for in Article 13 (b) of the Hague Convention existed. Its conclusion was that those circumstances existed. It noted the ties between Marko and his mother and the fact that he had settled well in Latvia and considered that his continued residence in Latvia was essential for his development. The Vidzeme District Court found that the provisions of Article 11 (4) of the Regulation had not been fulfilled, because it was financially impossible for the first applicant to follow Marko to Italy if he were returned there. Furthermore, the guarantees provided for by Italy could not ensure that the child would not suffer psychologically and that his mental health would not be prejudiced. Accordingly the court applied Article 13 (b) of the Hague Convention and refused the father’s request.

On 24 May 2007 the Rīga Regional Court adopted a final decision, by which it rejected the father’s appeal against the decision of the Vidzeme District Court. In substance the Regional Court agreed with the conclusions of the first-instance court, adding that the guarantees offered by the Italian Central Authority concerning the protection available to Marko after his potential return to Italy were too vague and non-specific. It was also mentioned that Marko’s father had made no effort to establish contact with his son ever since the applicants’ departure from Italy.

On 4 June 2007 the first applicant requested the Rīga City Vidzeme District Court to grant her sole custody of Marko. On 8 January 2008 the Rīga Custody Court issued an opinion in which it concluded that granting sole custody of Marko to his mother was in his best interests. The Custody Court indicated among other considerations the fact that Marko’s father had not seen his son since 2006.

On 7 August 2007 Marko’s father lodged a request with the Rome Youth Court, which was based on Article 11 (4), (7) and (8) of the Regulation, to issue an immediately executable decision ordering Marko’s return to Italy.

On 11 December 2007 the first applicant submitted her observations to that court, in which she acknowledged that she had left Italy because of an ongoing conflict with Marko’s father and because of her difficult financial situation. She noted that Marko’s father had never travelled to see his son in Latvia; however, she stated that the applicants were always available to come to Italy to meet Marko’s father during school holidays. In conclusion, she requested that the court order child support payments in the amount of 700 euros (EUR) per month.

In the context of separate proceedings, on 11 January 2008 the Civitavecchia Court made a judgment concerning the first applicant’s request for child support payments and ordered Marko’s father to pay the first applicant EUR 4,800 plus interest, starting from 14 October 2004.

By a decision of 21 April 2008 the Rome Youth Court upheld the father’s request. It considered that the only role left to it by Article 11 (4) of the Regulation was to verify whether adequate arrangements had been made to secure the protection of the child from any identified risks within the meaning of Article 13 (b) of the Hague Convention after his or her return. After considering the first applicant’s submissions, the court noted that the father had proposed that Marko would stay with him, while the first applicant would be authorised to use a house in Aranova for periods of fifteen to thirty consecutive days during the first year and subsequently for one summer month every other year (the first applicant would have to cover her own travel expenses and one half of the rent of the house in Aranova), during which time Marko would be staying with his mother, while the father would retain the right to visit him on a daily basis. Marko would be enrolled in a kindergarten which he had attended before his removal from Italy. He would also attend a swimming pool he had used before his departure from Italy. The father furthermore undertook to ensure that the child would receive adequate psychological help and would attend Russian-language classes for Russian children. The court considered such an arrangement adequate to fulfil the requirements of the Regulation and ordered an immediate execution of its decision to return Marko to Italy and to have him reside with his father. The court also pointed out that it would be preferable if the first applicant accompanied Marko on his way to Italy but, should that prove to be impossible, his return would be arranged by the Italian embassy in Latvia. Due to the urgent nature of the case, the decision was pronounced to be immediately executable.

On 18 June 2008 (in what appears to be a clerical error, the date indicated in the document is 18 June 2009) the first applicant lodged a request with the Youth Court to suspend the execution of its decision. She argued that Marko had not been heard by the tribunal and that the Youth Court had not taken into consideration the arguments which the Latvian courts had used in their decisions when applying Article 13 of the Hague Convention.

On 20 June 2008 the first applicant lodged an appeal against the decision of the Rome Youth Court of 21 April 2008. In her appeal she requested that the execution of that decision be suspended; that the appeal court hear Marko; that there be an order that she retain sole custody of Marko; and that Marko’s father be ordered to pay EUR 700 per month in child support payments.

On 22 July 2008 the Rome Youth Court adopted a decision in which it rejected the first applicant’s request to suspend the execution of the decision of 21 April. That court considered that it was not appropriate to question the child, taking into account his young age and the level of maturity. Furthermore, it considered that Article 42 of the Regulation did not oblige it to hear the parties in person. It remarked that all of the decisions taken by the Latvian courts had been duly taken into consideration. Finally, the court upheld the father’s request to issue a return certificate in accordance with Articles 40, 42 and 47 of the Regulation. The certificate was issued on 29 July 2008.

On 14 August 2008 the Italian Central Authority sent a letter to the Latvian Central Authority, forwarding the Youth Court’s decision of 22 July 2008 and inviting it to advise the Italian side on “the initiatives that will be taken in order to enforce the return order made by the Youth Court in Rome”.

On 27 August 2008 a psychologist issued another report on Marko’s psychological state. The report concluded that the child had developed certain psychological problems in connection with his father’s request to return him to Italy. It further reiterated the conclusion from the earlier report, that Marko had strong emotional ties with his mother, the severance of which was impermissible.

On 10 September 2008 the first applicant received information from the Latvian Central Authority about the request made by the Italian Central Authority. The first applicant was informed that Latvia had an obligation to enforce the 21 April 2008 decision of the Rome Youth Court.

On 13 February 2009 the first applicant submitted a request to the Rīga City Vidzeme District Court, requesting it to indicate interim measures and not to allow Marko’s return to Italy “until he himself agrees to return to his father in Italy”. Further, she requested the court to require the Rome Court of Appeal and the Rome Youth Court to surrender their competence to the Vidzeme District Court, since that court had already, on 4 June 2007, been allocated a still pending case concerning the granting of sole custody of Marko to his mother, and also because the child’s permanent residence was in Latvia.

On 18 February 2009 the Vidzeme District Court adopted a decision in which it decided not to proceed with the first applicant’s request concerning the question of Marko’s custody, since it considered that the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008, which was pending at the time before the Rome Court of Appeal, concerned the same subject matter, with the same parties involved.

On 21 April 2009 the Rome Court of Appeal adopted a decision concerning the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008. The appeal court first of all observed that pursuant to Article 11 (8) of the Regulation (see below, paragraph 45) it had jurisdiction to decide the question of the child’s return to Italy. It then went on to observe that the first-instance court had correctly implemented the procedure set out in Article 11 (7) of the Regulation (see below, paragraph 45), as attested by the reasoned opinion of the European Commission (see below, paragraphs 39-45). The court continued by observing that the decision to grant Marko’s father sole custody had been motivated by the first applicant’s behaviour when she had chosen to take the child to Latvia and by the father’s undertaking to take care of the child in Italy. The Court of Appeal therefore upheld the decision of the Rome Youth Court and ordered that after the child’s return to Italy he be enrolled in a primary school.

On 10 July 2009 the bailiff of the Rīga Regional Court charged with the execution of the Rome Youth Court decision of 21 April 2008 invited Marko’s father to provide assistance in the execution of that decision by reestablishing contact with his son. It appears that Marko’s father has not responded to that request in any way.

On 15 October 2008 the Republic of Latvia brought an action against Italy before the European Commission in application of Article 227 of the Treaty Establishing the European Community. Latvia alleged, in particular, that the above-described proceedings in Italy (the decision adopted on 21 April 2008 and the issuing of the return certificate in July 2008) did not conform to the Regulation, in that neither of the applicants had been heard by the Rome Youth Court on 21 April 2008, and also that the Rome Youth Court had ignored the decisions of 11 April 2007 of the Rīga City Vidzeme District Court and of 24 May 2007 of the Rīga Regional Court.

On 15 January 2009 the Commission issued a reasoned opinion. It held that Italy had violated neither the Regulation nor the “general principles of the Community law”. In so far as is relevant to the case before the Court, the Commission held as follows.

At the outset it reiterated, where Latvia was disputing the legality of the actions of an Italian authority with a judicial function, the scope of the Commission’s review was very limited. The Commission could only review matters of procedure, not substance, and it had to respect the decisions made by the Italian courts in the exercise of their discretionary powers.

Concerning the argument of the Republic of Latvia that the decision of 21 April 2008 had been adopted without attempting to obtain Marko’s opinion, the Commission stressed that it followed from the Regulation, the United Nations Convention on the Rights of the Child (“the UN Convention”), the Hague Convention and the Charter of Fundamental Rights of the European Union that hearing a child’s opinion with regard to questions concerning that child was a fundamental principle. However, that principle was not absolute. What had to be taken into account was the level of the child’s development. That level was not and could not be defined in any international instruments, therefore the national authorities retained wide discretion in such questions. The Commission held that the Italian Central Authority had used that discretion and indicated in the certificate of return that it had not been necessary for the Italian courts to hear Marko. Therefore, none of the international instruments that had been invoked by Latvia had been breached.

Latvia further criticised the fact that the decision of 21 April 2008 had been adopted without duly taking into account the position of the first applicant, and that the decision had been adopted without hearing either of the parties, including the first applicant, who was neither informed of the time of the forthcoming hearing nor invited to take part in it. The Commission noted that the decision of 21 April 2008 had been adopted in written proceedings, without hearing oral submissions of either of the parties, which was fully in conformity with the applicable Italian procedural legislation. The Commission interpreted Article 42 (2) (b) of the Regulation (see below, paragraph 51) in the light of the Court’s case-law (referring in particular to Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274), and considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed. The Commission observed that the first applicant had been given an opportunity to submit written observations on equal grounds with Marko’s father and thus neither the Regulation nor the UN Convention had been violated.

Lastly, Latvia criticised the decision of 21 April 2008 and the related return certificate for ignoring the Latvian authorities’ reasons for refusing to order Marko’s return to Italy. The Commission indicated that its role was not to analyse the substance of the Italian authorities’ decisions – it was limited to appraising the compliance with the procedure which led to the adoption of those decisions with the procedural requirements of the Regulation. Nothing in the Regulation forbade the Italian authorities to come to a conclusion that was opposite to the one reached by the Latvian authorities. Quite to the contrary, the Commission considered that the Regulation gave the country of the child’s residence prior to the abduction “the final say” in ordering the return, even if his or her new country of residence had declined to order the return. In this regard the Commission noted that the Rīga Regional Court, when adopting the decision of 24 May 2007 (see above, paragraph 23), had referred to the Law of Civil Procedure, section 64419 (6) (2) of which permits refusal to return a child if the child is well settled in Latvia and his or her return is not in his or her interests. The Commission questioned the Latvian court’s alleged failure to invoke the “much more binding” Article 13 of the Hague Convention, which in their opinion demonstrated that the Latvian courts had devoted attention to Marko’s situation in Latvia instead of the potential consequences of his return to Italy. In short, the Commission had “not discovered any indications” that life in Italy together with his father would expose Marko to physical or psychological harm or otherwise place him in an intolerable situation. What is more, the Commission considered that the Rome Youth Court in its decision of 21 April 2008 had directly addressed the Rīga Regional Court’s concerns that the measures envisaged for Marko’s protection upon his return to Italy were too vague – the Italian court had set out specific obligations on the father which would allow for balanced development of the child and for him to have contact with both parents.

In conclusion the Commission conceded that the decision of 21 April 2008 did not contain a detailed analysis of either the arguments of the first applicant or of those of Marko’s father. However, it considered that the Regulation did not require such an analysis. Therefore, the exact procedure to be followed in that respect was left to the national courts’ discretion. Taking that into account, it was found that neither Latvia nor the Commission could dispute the particular formulation of the Italian court’s decision.

The Hague Convention, which has been ratified by Latvia and Italy, provides, in so far as relevant, as follows.

“The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”

“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]”

“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures –

f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]”

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

Paragraph 17 of the preamble of the Regulation explains its scope, in so far as it is relevant to this case, as follows:

“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.”

With regard to jurisdiction in cases of child abduction, the Regulation, in Article 10, provides, in so far as is relevant, as follows:

“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”

Article 11, which is specifically singled out in the preamble, provides as follows:

“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

A court cannot refuse to return a child on the basis of Article 13 (b) of the [..] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..]

Notwithstanding a judgment of non-return pursuant to Article 13 of the [..] Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”

Pursuant to Article 40 (1) (b) of the Regulation, its Section 4 applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8)”

Article 42 in Section 4 provides the following:

“1. The return of a child referred to in Article 40 (1) (b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.

Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11 (b) (8), the court of origin may declare the judgment enforceable.

The judge of origin who delivered the judgment referred to in Article 40 (1) (b) shall issue the certificate referred to in paragraph 1 only if:

(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;

(b) the parties were given an opportunity to be heard; and

(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. [..]”

As concerns the enforcement of judgments requiring the return of a child, Article 47 of the Regulation provides the following:

“1. The enforcement procedure is governed by the law of the Member State of enforcement.

Any judgment delivered by a court of another Member Stat and [..] certified in accordance with [..] Article 42 (1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.

In particular, a judgment which has been certified according to [..] Article 42 (1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”

Lastly, Articles 60 and 62 of the Regulation provide that the Regulation “shall take precedence” over the Hague Convention “in so far as [it concerns] matters governed by this Regulation” and that the Hague Convention continues “to produce effects between the Member States which are party thereto”.


CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM

Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The first applicant was born in 1946 and lives in Woking.

On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83 kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years' imprisonment.

The first applicant's defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man presented to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day.

The following morning he was told that the plans had changed as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar car and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently called “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing GBP 125,000. They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin.

At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway by mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room.

According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom and when he came out Graham was ready to go. They returned to the van where the briefcase was opened and within moments the applicant had been arrested.

Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard he considers it relevant that at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad Detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant's case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway's trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant's own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction.

Prior to the commencement of the applicant's trial the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 34 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence, outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the present proceedings before the European Court, the Government revealed for the first time that the material placed before the trial judge included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. He denies any prior involvement in drug dealing. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 36 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure.

Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”: see paragraph 29 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure.

Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant it was, however, difficult for the defence to undermine Graham's credibility because his full name and other identifying details were not disclosed.

Following his conviction the applicant appealed to the Court of Appeal on the ground, inter alia, that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996 the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”.

Prior to the events in question, the applicant was of good character. He had been employed as accounts director in a firm which had gone into liquidation a year earlier, and at the time of his arrest in July 1995 he was unemployed and in considerable debt.

The applicant's version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995 Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged bank notes.

Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched.

The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impugned. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, “Terry” or “Tel”, “Jazz” or “Jag” were participating informers or undercover police officers.

Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that “Chris” was coaxing the applicant, there was no evidence of pressure being applied.

A second submission was then made on the applicant's behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – “Chris” and “Ian” – the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996.

On 20 November 1996 he was sentenced to a total of four and a half years' imprisonment.

On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that:

“Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.”

The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney General's Reference (No. 3 of 2000) ([2001] UKHL 53), a judgment which followed and approved earlier case-law, including case-law which applied at the times of the applicants' trials (for example, the judgment of the House of Lords in R. v. Latif [1996] vol. 1 Weekly Law reports p. 104).

In Looseley, Lord Nicholls of Birkenhead explained, (§ 1):

“My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen”.

In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without the police incitement (R. v. Smurthwaite; R. v. Gill (1994) vol. 98 Criminal Appeal Reports p. 437, judgment of the Court of Appeal; and Looseley, cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court's process and should not have been brought in the first place.

In Looseley, their Lordships agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “state created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement held out by the police, and the more forceful and persistent the police overtures, the more readily might a court conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant's criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§ 26-29; Lord Hoffmann, §§ 50-71).

At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence.

In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports, p. 302 (“the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:

“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of, an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”

In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.

In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would then have the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.

The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.

The leading case on disclosure at the time of the applicant's trial was the judgment of the Court of Appeal in R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”.

Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant's innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure.

In the case of R. v. Turner ([1995] vol. 1 Weekly Law Reports p. 264), the Court of Appeal returned to the balancing exercise, stating inter alia:

“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...”

The requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”), which came into effect in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor's view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused's defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.

Following the judgments of the Court in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V) and Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV), the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”), and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court's judgment in Jasper v. the United Kingdom ([GC], no. 27052/92, § 36, ECHR 2000).

In December 1999 the Government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia, the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte, non-disclosure on grounds of public interest immunity. The recommendation was explained in the Report as follows (footnotes omitted):

“193. The scheme [developed by the common law since R v. Ward and reflected in the 1996 Act: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant's interest in the [ex parte] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a 'special independent counsel'. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias.

In my view, there is much to be said for such a proposal, regardless of the vulnerability or otherwise of the present procedures to Article 6. Tim Owen QC, in a paper prepared for the Review, has argued powerfully in favour of it. It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications. It should not be generally necessary for special counsel to be present throughout the trial. Mostly the matter should be capable of resolution by the court before trial and, if any question about it arises during trial, he could be asked to return. If, because of the great number of public interest immunity issues now being taken in the courts, the instruction of special counsel for each would be costly, it simply indicates, as Owen has commented, the scale of the problem and is not an argument against securing a fair solution.

The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly, the Government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a 'third' or 'special' counsel being instructed on behalf of a defendant has been conceded in a number of areas.

The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court's reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury's verdict into underestimating the significance of the undisclosed material.

However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system.

I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant, Mr Józef Oleksy, is a Polish national who was born in 1946 and lives in Warsaw. He is represented before the Court by Mr W. Tomczyk, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

Following the entry into force of the Law of 11 April 1997 “on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions” (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”), the applicant, a former Prime Minister who at the material time had been a member of the Sejm, declared that he had not collaborated with the Communist-era secret services.

On 25 June 1999 the Commissioner of the Public Interest (Rzecznik Interesu Publicznego), Mr B. Nizieński, applied to the Warsaw Court of Appeal (Sąd Apelacyjny) for proceedings to be instituted in the applicant’s case on the grounds that he had lied in his lustration declaration by denying that he had cooperated with the secret services.

On 25 June 1999 the Warsaw Court of Appeal decided to institute lustration proceedings against the applicant. The court was composed of three judges: a judge rapporteur A.L. and judges Z.B. and R.K. The decision contained the following reasons:

“The Commissioner of the Public Interest lodged with the Warsaw Court of Appeal an application for lustration proceedings to be instituted in respect of Józef Oleksy.

The Court of Appeal finds that the application should be granted. The materials submitted together with the application point to the assessment (wskazują na ocenę) that Józef Oleksy lodged an untrue lustration declaration.

In those circumstances it has been decided as above.”

On 25 October 2000 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had submitted an untrue lustration declaration because he had not revealed that he had intentionally and secretly collaborated with the State’s secret services. The operative part of the judgment was served on the applicant; however, the reasoning was considered “top secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of the court.

The applicant lodged an appeal.

On 27 June 2000 the Warsaw Court of Appeal, acting as the secondinstance lustration court, allowed the applicant’s appeal and quashed the impugned judgment.

On 13 June 2004 the magazine Newsweek-Polska published an article on the applicant’s lustration case and his alleged cooperation with the secret services. According to the applicant, the article relied on documents and information in the case file that had been classified “top secret” and was presented in a manner that made him believe that they had been obtained from the Commissioner of the Public Interest.

On 17 June 2004 the applicant applied to have the Commissioner, Mr B. Nizieński, excluded from dealing with his case on the grounds that there was reasonable doubt as to his impartiality.

On 24 June 2004 the First President of the Supreme Court decided that under domestic law he did not have the right to examine the applicant’s challenge of the Commissioner as he could not be considered his superior within the meaning of Article 48 § 1 of the Code of the Criminal Procedure.

The applicant lodged a constitutional complaint against that decision. On 21 September 2004 the Constitutional Court (Trybunał Konstytucyjny) refused to hear the complaint, mainly on the ground that it was not competent to decide on issues concerning gaps in the law. It reiterated its role as a “negative legislator”, in that it was called on to strike down laws that breached the Constitution, but had no legislative powers. An appeal by the applicant against that decision was dismissed on 19 May 2005. The applicant’s lawyer was notified of this decision on 24 May 2005. On 19 May 2005 the Constitutional Court decided to inform the Sejm that the case disclosed a gap in the law in that it had not provided for a procedure for challenging the Commissioner of the Public Interest, nor an authority to which such a challenge could be directed. The closing of such a gap in the law was, in the court’s opinion, indispensable to ensure the integrity of the legal system, and respect for the rule of law, defence rights and the right to court. The Commissioner of the Public Interest, Mr B. Nizienski, took part in the proceedings up to the end of the applicant’s lustration trial on 22 December 2004.

On 22 December 2004 the Warsaw Court of Appeal gave a judgment in which it found the applicant guilty of lying in his lustration declaration. The court was composed of three judges, including a judge rapporteur, R.K.

The written reasons, numbering 189 pages, were considered “top secret” and could be consulted only in the secret registry.

On 4 March 2005 the applicant’s lawyer lodged an appeal. He complained, inter alia, that the judge, R.K., who dealt with the case at the initial stage of the proceedings, should have been disqualified from dealing with the case as there was reasonable doubt as to his impartiality.

On 21 October 2005 the Warsaw Court of Appeal, acting as a secondinstance lustration court, upheld the impugned judgment. The applicant could consult the written reasons for the judgment in the secret registry of the court.

On 26 January 2006 the applicant’s lawyer consulted the file and complained to the court that the reasoned judgment did not contain the dissenting opinion. The dissenting opinion, which was 50 pages long, was submitted to the parties on 21 February 2006, only three days before the expiry of the time-limit for lodging a cassation appeal.

On 24 February 2006 the applicant’s lawyer lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). He argued that the applicant had not been aware of an obligation to disclose his activities for the Agenturalny Wywiad Operacyjny, “AWO”, a separate agency, which according to information in his possession could not be considered as belonging to the secret services within the meaning of the Lustration Act.

On 31 January 2007, after a hearing, the Supreme Court quashed both previous judgments of the Warsaw Court of Appeal of 21 October 2005 and 22 December 2004 and discontinued the lustration proceedings against the applicant (umorzył postępowanie).

It established that the lustration declaration submitted by the applicant had been “subjectively untrue but objectively true” (obiektywnie nieprawdziwe lecz prawdziwe subiektywnie oświadczenie lustracyjne). When submitting his declaration the applicant had been misled by the two most competent persons in the field, the Minister of Defence and the Head of Military Information Services (Szef Wojskowych Służb Informacyjnych), who had infbłąd usprawiedliwiony) and the applicant was not found to have been a “lustration liar”.

Section 28 of the 1997 Lustration Act, amended with effect from 8 March 2002, provides:

“A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in the Official Law Gazette (Dziennik Urzędowy RP Monitor Polski) if

1) no cassation appeal has been lodged within the prescribed time-limit; or

2) the cassation appeal has been left unexamined; or

3) the cassation appeal has been dismissed.”

Section 30 lists the consequences of such a judgment for a person subject to lustration who has submitted an untrue declaration. It reads, in so far as relevant:

“1. A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions, described according to the relevant laws as: unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. After 10 years the judgment shall be considered to be of no legal effect.

A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it.

A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of 10 years.”

The detailed rendition of the provisions of the domestic law is set out in the Court’s judgment in the case Matyjek v. Poland, no. 38184/03, ECHR 2007...


Remainder inadmissible;Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in 1975 and lives in the town of Orsk, Orenburg Region.

In the evening of 22 September 2001 police officers arrested the applicant's husband on suspicion of indecent behaviour in a public place and took him to a nearby police station situated in a dormitory building. The applicant accompanied him. According to the applicant, in response to her pleas for her husband's release, a police officer, Mr Sh., grabbed her hair and hit her head against a wall three times. Then he handcuffed her to a radiator in a corridor of the dormitory. She was released few hours later.

The Government disputed the applicant's version of events, arguing that the applicant, who was drunk, had followed the police officers and her husband to the station, demanding to be informed of the reasons for her husband's arrest and for him to be released. According to the Government, the applicant attempted to resist her husband's arrest, grabbing the officers' uniforms and using obscene language. On arrival at the station the applicant attempted to block the entrance door and kicked officer Sh. on the leg. After the police officers had locked the entrance door, the applicant broke a pane of glass in the door, unlocked it and entered the station. She accompanied her actions with threats of violence against the officers and said she would get them dismissed from the police force. Faced with violence and resistance on the applicant's part, police officer Sh. used physical force and handcuffed her.

In the afternoon of 23 September 2001 the applicant went to Orsk Town no. 2 Hospital complaining of headache, nausea, dizziness and vomiting. She was diagnosed with concussion and prescribed outpatient treatment. The attending doctor also noted that the applicant had bruises on the forehead, chest, shoulders and occipital region of the head.

Criminal proceedings were instituted against officer Sh. on a charge of abuse of position. The prosecutor's office accused him of having caused the applicant injuries in the form of concussion, tissue damage and bruising on the left side of the face and of exceeding the limits of his official powers by handcuffing the applicant to a radiator.

On 28 September 2001 the applicant was subjected to a forensic medical examination. Following the exam the expert issued a report which, in so far as relevant, read as follows:

“[there are] a swelling of the soft tissues on the left side of the [applicant's] forehead accompanied by a bluish and yellow bruise measuring three centimetres in width and six centimetres in length ..., [and] three bruises measuring between seven centimetres in width and seven centimetres in length and two centimetres in width and two centimetres in length on the back surface in the lower third part of her right shoulder. There are similar bruises on the palmar surface of the right forearm (a bruise one centimetre long and one centimetre wide) and on the rear of the right forearm (two bruises: one centimetre wide and one centimetre long and three centimetres wide and three centimetres long); [there is a bruise], measuring four centimetres in width and four centimetres in length, on ... the left shoulder, [there are] numerous similar bruises on the back of [the applicant's] left wrist and left forearm ... measuring between three to three and four to five centimetres.”

The expert concluded that the applicant had concussion and an injury and bruise on the face which had been caused recently by hard blunt objects and had caused minor damage to health. He listed numerous bruises on the applicant's arms and shoulders, assessing that they too were the result of blows from a firm blunt object and had been incurred at the same time as the head injury. Finally, the expert addressed the possibility that the applicant had sustained a chest injury; this was the preliminary diagnosis she received at the hospital. The expert observed no injuries on the chest, and found that there was no evidence in support of that preliminary diagnosis.

Following a second forensic medical examination of the applicant, on 23 January 2002, the expert's findings were similar as to the location of the injuries and their nature and also established that the injuries could have been caused in the circumstances described by the applicant.

In March 2002 the case was sent for trial to the Leninskiy District Court of Orsk. However, on 17 April 2002 the District Court returned the case to the prosecution with an order for certain procedural defects, which violated the defendant's rights, to be corrected. The trial court further stressed that a comprehensive expert medical examination of the applicant was needed “to settle certain inconsistencies in the first two expert reports”.

On 24 January 2003 a comprehensive expert medical examination authorised by the District Court confirmed that the applicant had had a craniocerebral injury comprising a bruise and an injury to the soft tissue of the left side of the forehead, an injury to the soft tissue of the occipital region and concussion, numerous bruises on the arms and an injury to the soft tissue on the left side of the chest resulting from the application, a number of times, of a hard blunt object with a small surface area. Noting that the injuries could have been caused in the circumstances described by the applicant, the experts went further and stated that the different location, in particular the fact that the bruises had been on the applicant's forehead and the occipital region, and the quantity of the injuries, ruled out self-infliction.

On 17 March 2003 the Leninskiy District Court acquitted Mr Sh. of all charges, finding that his actions had not been criminal. The District Court based its judgment on statements by the defendant, the applicant and her husband, four police officers, Mr B., Mr M., Mr T. and Mr S., five witnesses, Mr A., Ms G., Ms K., Ms B., and Ms I.., and an opinion given by a forensic medical expert, Mr P. Their statements were as follows:

- the defendant confirmed that on 22 September 2001 he and his partner, Mr T., had arrested the applicant's husband. The applicant, who was drunk, approached and demanded that her husband be released. She used offensive language, grabbed the police officers by their clothes and did not respond to their warnings. After the officers had entered the police station, the applicant tried to prevent them from closing the entrance door and kicked the defendant on the leg. When the defendant succeeded in closing the door, the applicant broke a pane of glass in the door, unlocked it and entered the building. The defendant noted that he had had no choice but to handcuff the applicant to a radiator near the entrance door. However, she continued acting violently. She broke another pane of glass in the entrance door and used offensive language. The defendant insisted that he had not beaten the applicant up. He could not explain the cause of the applicant's injuries, noting that she had had no injuries before her husband's arrest and that she could have hurt herself.

- the applicant confessed that, being under the influence of alcohol, she had tried to prevent her husband's arrest and had grabbed the police officers by their uniforms and had used offensive language. She further stated that after she had broken a pane of glass in the entrance door and gone into the station, the defendant had grabbed her by the hair and hit her head three times against a wall. He had then handcuffed her to a radiator.

- the applicant's husband confirmed that his wife had accompanied him to the police station. At the station he had heard the sound of breaking glass, then his wife shouting, and then more breaking glass. He did not see how his wife had sustained the injuries.

- the witnesses, Mr A. and Ms G., testified that they had seen the applicant and her husband during the evening of 22 September 2001, prior to the arrival of the police, and that they had not observed the alleged beatings by the police.

- the police officers, Mr B. and Mr M., stated that they had arrived at the police station at about 10 p.m. on 22 September 2001. They saw the applicant handcuffed to a radiator in a corridor. She was acting aggressively and was drunk. There was broken glass around her on the floor. She did not have any visible injuries. The police officers noted that Mr Sh. explained to them that he had handcuffed the applicant to calm her down. After the applicant was released she again threatened the police officers, using offensive language.

- the witnesses, Ms K. and Ms B., informed the District Court that on 22 September 2001, at about 10 p.m., they had gone along a corridor in the dormitory building. They noticed that the applicant was handcuffed to a radiator. She was drunk and aggressive and was using offensive language. The applicant did not make any requests or complaints.

- the witness, Ms I., who worked as a concierge in the dormitory, stated that she spoke to the applicant during the evening of 22 September 2001 and that the applicant had confirmed that she had broken windows to draw attention to her situation.

- the police officer, Mr T., corroborated the statements made by the defendant.

- the police officer, Mr S., testified that the applicant had complained to him that the defendant had beaten her up. He saw a bruise on her arm, above the wrist, and an injury on her forehead. The applicant was sent for a medical examination.

- the expert, Mr P., informed the District Court that on the instruction of a Leninskiy District assistant prosecutor he had performed a forensic medical examination of the applicant and had issued a report. He recorded that the applicant had concussion, tissue damage and a bruise on the face, a bruise on the right side of the forehead and bruises on the arms. The expert noted that his report was corroborated by the results of the compound forensic medical examination of the applicant.

Having examined the evidence, the District Court held that there was no evidence that the defendant had beaten the applicant up. As regards the fact that the defendant had handcuffed the applicant, the District Court held as follows:

“The actions of the defendant, Mr Sh., were lawful and valid and were caused by unlawful actions of the victim, [the applicant], who had committed an offence. A special measure – handcuffs were lawfully applied to prevent an ongoing offence by [the applicant], who acted unpredictably, created a dangerous situation for police officers and other individuals who passed through the corridor of the building. [The applicant] could have caused various injuries to individuals by breaking the panes of glass [in the door]. The victim did not need medical assistance, nor did she ask for it. The victim did not have visible injuries which required medical assistance. When he had handcuffed and arrested the spouses [the applicant and her husband], the defendant, Mr Sh., reported to ... his chief, thus fully complying with legal obligations.”

The applicant and the prosecution appealed.

On 22 April 2003 the Orenburg Regional Court upheld the District Court's findings. The judgment of the Regional Court, as far as relevant, read as follows:

“As regards injuries caused to the victim.

Mr Sh. emphatically stated that he had not beaten [the applicant] up. There are no eyewitnesses. The statements by the victim as to the cause of her injuries do not correspond to the findings of the forensic medical examinations.

Thus, as it follows from an expert report..., [the applicant] had injuries in the form of concussion, an injury and bruising to the face, on the left side of the forehead. An expert, Mr P., who had performed the initial medical examination, was questioned at a hearing and stated that if it was confirmed that [the applicant] had hit her head it was possible that she had received those injuries, however, it was impossible to say precisely.

According to the conclusions of the comprehensive forensic medical examination, [the applicant] had injuries in the form of a craniocerebral trauma (a bruise and injury to the soft tissues of the left side of the forehead, an injury to the soft tissues of the occipital region of the head, and concussion), numerous bruises on the arms, and an injury to the soft tissues of the left side of the chest.

Having regard to the general picture of the bodily injuries, the experts concluded that it would not have been possible for the victim to inflict them on herself.

However, in the present case the scope of the accusations only included injuries recorded on the forehead of the victim. [The applicant's] injuries on the occipital region of her head and an injury on the chest were not included in the accusations against Mr Sh. Taking this fact into account, the prosecution and the court cannot overstep the bounds of the indictment and cannot examine at the court hearing any additional questions which could lead to further charges.

The court also finds that those injuries cannot be taken into consideration when deciding on the question whether the applicant could have caused those injuries to herself. The prosecution thus did not rebut Mr Sh.'s argument that [the applicant] could have herself caused the injury to the left side of the head which led to the concussion.”

On 27 July 2003 the applicant lodged an action against the Orsk Town police department and the Ministry of Finance, claiming compensation for non-pecuniary damage caused by the unlawful actions of Mr Sh.

On 5 December 2003 the Leninskiy District Court, Orsk, relying on the judgment of 17 March 2003 of the same court, dismissed the applicant's action. The District Court held that Mr Sh.'s guilt in having caused the injuries had not been proven. Referring to Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the District Court noted “the character” of the applicant's injuries and the fact that neither the applicant nor Mr Sh. had explained “the mechanism of the appearance of injuries” and it held that “the injuries could have been caused accidentally when lawful sanctions were being applied to the plaintiff”. The District Court considered that the actions resulting in those injuries could not amount to “torture”.

On 5 February 2004 the Orenburg Regional Court upheld the judgment of 5 December 2003, relying on the findings of the District Court made during the trial against Mr Sh.

The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He/she can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect, which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act (section 12).

Section 12 of the Police Act provides that a police officer resorting to physical force, special means or a firearm, should warn an individual that force/special means/firearms are to be used against him. In cases when a delay in the use of force, special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage, such a warning is not necessary. Police officers should ensure that damage caused by the use of force/special means/firearms is minimal and corresponds to the character and extent of the danger posed by unlawful conduct and the perpetrator, and the resistance offered by the perpetrator. Police officers should also ensure that individuals who have been injured as a result of the use of force/special means/firearms receive medical assistance.

Under section 13 of the Police Act police officers may use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who have committed such offences, to overcome resistance to lawful orders, or if non-violent methods do not ensure compliance with responsibilities entrusted to the police.

Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including handcuffs, and firearms may be used. In particular, handcuffs may only be used to overcome resistance offered to a police officer, to arrest an individual caught when he is committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers.


The applicant is a Finnish national, born in 1947 and living in Malaga, Spain.

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

On 21 December 1993 the Helsinki Tax Office made a decision that the applicant was due to pay residual taxes since he had not announced certain income in the amount of FIM 100,000 in his tax returns. The applicant was also obliged to pay a 20% tax increase on the amount. The decision was based on a tax audit in a company called AT. This company had paid FIM 100,000 to the limited company F, which was owned by the limited partnership company SR. The applicant was the only active partner of SR, which owned 100% of the shares of F.

On 20 February 1994 the applicant appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa, complaining that the decision was wrong and that he had not been informed of the legal provisions on which the decision was based. The appeal was referred to the local tax rectification board (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden) which, on 9 May 1994, rejected the appeal.

On 1 August 1994 the applicant again appealed to the County Administrative Court. On 19 January 1996 the court lowered the tax increase from 20% to 10% and upheld the remainder of the decision. The court stated that the payment of the amount of FIM 100,000 was considered to be the applicant’s personal income since he had received payment for his actions related to a sales contract concerning an airplane. The payment was considered to be the applicant’s personal income, even though he had waived his right to the amount in favour of company F. Further the court noted that, as the applicant had not announced that amount in his tax returns, the tax office had a right to order the payment of a residual tax and impose a tax increase. Finally, the court rejected, for lack of a legal basis, the applicant’s request that the taxes already paid by companies AT and F on the same ground be counted for his benefit.

On 31 December 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the applicant’s request for leave to appeal.

On 29 September 1994 the Execution Office collected from the applicant FIM 62,116 as residual taxes, FIM 1,863 as a payment of back taxes, additional taxes amounting to FIM 32,178, default interest of FIM 4,347 and FIM 400 as execution fee, altogether FIM 100,904 (€ 16,970). After the decision of the County Administrative Court the applicant was refunded FIM 5,093.