Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant, Mr Adam Kauczor, is a Polish national who was born in 1967 and lives in Siemianowice Śląskie.

On 9 February 2000 the applicant was arrested. On 10 February 2000 the Katowice District Court (Sąd Rejonowy) remanded him in custody on suspicion of murder. That decision was upheld by the Katowice Regional Court (Sąd Okręgowy) on 1 March 2000.

The applicant’s pretrial detention was subsequently extended by the Katowice Regional Court’s decisions of 25 April 2000, 3 July 2000 (upheld by the Katowice Court of Appeal (Sąd Apelacyjny) on 2 August 2000), and 23 April 2001.

Meanwhile, on 21 June 2000 the applicant was indicted for murder and illegal possession of weapons. The Prosecutor requested that thirty-four witnesses be heard by the trial court and the testimonies of a further one hundred and four witnesses be read out at the trial.

The first hearing was scheduled on 28 December 2000. It was adjourned, however, due to the absence of a key witness.

Subsequently the court held sixty hearings. Approximately twenty hearings were cancelled or adjourned either because of the absence of the applicant’s counsel or summoned witnesses, or because of the illness of a judge.

On 26 November 2001 the Katowice Regional Court decided to extend the applicant’s detention until 30 April 2002. However that decision was changed by the Katowice Court of Appeal’s decision of 19 December 2001. The Katowice Court of Appeal agreed to continue the applicant’s detention, but only until 9 February 2002. It was held that the firstinstance court was no longer competent to extend the preventive measure, since the length of the applicant’s detention was about to reach the statutory two-year timelimit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego).

Between 2001 and 2003 the court held a hearing every two or three months.

During this time, the applicant’s detention was extended by the Katowice Court of Appeal’s decisions of 6 February 2002 (confirmed by the same court on 13 March 2002), 15 May 2002 (upheld on 23 October 2002), 23 October 2002 (upheld on 12 March 2003), 12 March 2003 (upheld on 23 April 2003).

On 21 May 2003 the applicant’s trial commenced de novo because the judge rapporteur had retired.

The first hearing scheduled on 5 July 2003 was adjourned due to the absence of a key witness and one of the lay judges.

From the beginning of 2004 until mid2005 the court held on average one hearing per month.

On 16 September 2005 the President of the Criminal Section (przewodniczący wydziału) ordered that hearings be scheduled more often than once a month.

In 2006 the court scheduled twenty-three hearings, of which eleven did not take place. It appears that between January and October 2007 the court scheduled nine hearings.

Meanwhile, the applicant’s detention was extended by the Katowice Court of Appeal decisions of 23 July 2003 (upheld on 27 August 2003), 26 November 2003 (upheld on 17 December 2003), 18 February 2004 (upheld on 17 March 2004), 11 August 2004 (upheld on 25 August 2004), 24 November 2004 (upheld on 5 January 2005), 16 March 2005 (upheld on 20 April 2005), 27 July 2005 (upheld on 10 August 2005), 19 October 2005 (upheld on 23 November 2005), 25 January 2006 (upheld on 22 February 2006), 19 April 2006 (upheld on 19 May 2006), 19 July 2006 (upheld on 23 August 2006), 25 October 2006 (upheld on 15 November 2006), and 24 January 2007.

The domestic courts justified the applicant’s pretrial detention in its initial phase by the existence of strong evidence against the applicant and the likelihood that a severe penalty would be imposed, as well as by the need to secure the proper course of the proceedings. The latter was derived from the fact that there was a suspicion that the applicant had been aided in committing the offence charged and that the alleged accomplices were being sought by the authorities. During that time numerous witnesses were heard and an identification parade was held.

At the later stage of the applicant’s detention, the authorities relied on the complexity of the case as the reason for extending the measure. It was also emphasised that many of the scheduled court hearings did not take place for various objective reasons, such as the illness of a judge, the applicant’s request for the withdrawal of a judge, the absence of witnesses or of the applicant himself, as well as difficulties in obtaining the report of ballisticforensic experts as requested by the applicant at an advanced stage of the proceedings.

On 11 December 2007 the Katowice Regional Court decided to lift the preventive measure and to release the applicant. On an unspecified date that decision was upheld by the Katowice Court of Appeal.

The case is currently pending before the Katowice Regional Court as the court of first instance.

On an unspecified date in 2006 the applicant lodged a complaint about unreasonable length of proceedings under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).

On 25 October 2006 the Katowice Court of Appeal dismissed the complaint. Although the court examined the entire length of the proceedings, it held that there had been no inactivity or undue delay on the part of the relevant court. It was observed that until April 2003 the court had been dealing with the case speedily and there had been no periods of inactivity. It was acknowledged that the proceedings had been obstructed when the case had had to be opened de novo and a new judge rapporteur had had to be assigned. The court emphasised that from the end of 2003 until the end of 2006 over fifty hearings had been scheduled. The fact that some of them were cancelled was attributable to objective factors such as the absence of a lay judge, illness of a presiding judge or absence of the applicant’s lawyer. Finally, it was pointed out that the case was of a complex nature and, moreover, that the applicant himself had contributed to the delay because of his multiple requests for new evidence to be admitted.

The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines pre-trial detention (aresztowanie tymczasowe) one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).

Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”

Article 258 lists grounds for pre-trial detention. It provides, in so far as relevant:

“1. Pre-trial detention may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

(2) there is a reasonable risk that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

The provisions on pre-trial detention are based on the precept that pretrial detention, the most extreme among the preventive measures, should not be imposed if more lenient measures are adequate.

Article 257 reads, in so far as relevant:

“1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.”

Article 259 § 1 reads:

“1. If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would:

(1) seriously jeopardise his life or health; or

(2) entail excessively harsh consequences for the accused or his family.”

Article 259 § 3 provides:

“Pre-trial detention shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.”

Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused is attempting to evade justice, when he persistently fails to comply with summonses or when his identity cannot be established.

A more detailed description of the relevant domestic law and judicial practice concerning the imposition of pre-trial detention, the grounds for its extension, release from detention and rules governing other “preventive measures” are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 August 2006.

On 24 July 2006 the Polish Constitutional Court, having examined jointly two constitutional complaints (skarga konstytucyjna) lodged by former detainees, declared Article 263 § 4 of the Code of Criminal Procedure unconstitutional in so far as it related to the investigation stage of criminal proceedings (No. SK 58/03). The provision in question provided that the detention measure might be extended beyond two years if the pretrial proceedings could not have been completed because of “important obstacles” which could not have been overcome. The provision in question did not set any statutory time-limit for extending the detention measure. The Constitutional Court considered that the impugned provision, by its imprecise and broad wording, could lead to arbitrary decisions of the courts on pre-trial detention and thus, infringe the very essence of constitutional rights and freedoms.

The Constitutional Court ruled that the unconstitutional provision was to be repealed within six months from the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw).

As a result of the Constitutional Court’s judgment, Article 263 § 4 of the Code of Criminal Procedure was amended as follows:

“The pre-trial detention shall be extended beyond the period specified in paragraphs 2 and 3, only by the court of appeal in whose jurisdiction the proceedings are conducted, upon a motion from the court before which the case is pending, and at the investigation stage, upon a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.”

However, a new provision was added in § 4(a) of Article 263:

“The court of appeal, in whose jurisdiction the proceedings are being conducted may also, on a motion from the court before which the case is pending, order the extension of the detention on remand for a fixed period, exceeding that specified in paragraph 3, because of other important obstacles whose removal has not been possible”.

The above amendment was adopted on 12 January 2007 and entered into force on 16 February 2007 (Journal of Laws of 2007, No. 20, item 116).

In the framework of the procedure before the Committee of Ministers (see paragraph 34 below) the Polish Government supplied statistical data concerning the number and the length of pre-trial detentions ordered in a given year by the domestic courts.

According to these statistics, in 2005 the total number of cases in which pre-trial detention was ordered by regional courts amounted to 3,833. That number comprised 30% of cases in which the measure lasted between twelve and twenty-four months, and 23 % of cases in which the measure exceeded two years. In 2006 the total number cases in which pre-trial detention was ordered by district courts was 4,000. It comprised over 33 % of cases in which the detention measure lasted between twelve and twentyfour months, and over 21 % of cases in which the measure exceeded two years. District courts ordered pre-trial detention in 7,635 cases in 2005 and 7,632 cases in 2006. In both years, approximately in 12% of cases the detention measure lasted between twelve and twenty-four months and in approximately 2.5 % over two years.

The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005V.

In addition to new Article 263 § 4 of the Code of Criminal Procedure (see paragraph 27 above) new amendments, designed to streamline criminal proceedings, entered into force on 20 June 2007 (Law of 9 May 2007 on amendments to the Code of Criminal Procedure; Journal of Laws of 2007, No. 99, item 664; Ustawa o zmianie ustawy - Kodeks postępowania karnego oraz niektórych innych ustaw). Those amendments strengthened the powers of the authorities to discipline the participants.

In particular, newly added Article 285 § l (a), which applies in the investigative and judicial phase of criminal proceedings, empowers a trial court to impose a fine of up to 10,000 Polish zlotys (PLN) on a defence counsel or a representative of a party who has failed to obey the summons of the authority conducting the proceedings or who, without the approval of the competent authority, has left the venue of the proceedings before they were completed.

A similar admonishing measure may be applied in respect of experts, witnesses, interpreters and other persons participating in the proceedings (see among others, Articles 285 § 1, 287 and 20 § 1 (a)).

In addition, new Article 117 (a) entered into force on 20 June 2007. According to this provision it is sufficient if one of the defence lawyers or representatives of a party (who has more than one defence lawyer or representative) is present before the authority to proceed with the case.

Another amendment, preventing the obstruction of proceedings was introduced, to Article 378 § 1 of the Code of Criminal Procedure. According to the new provision a trial court shall appoint ex officio a defence counsel if the accused has dismissed his lawyer or the lawyer himself has resigned and the accused has not appointed a new defence counsel. Previously, in such a situation, the court had to fix a time-limit for the accused to choose a new defence counsel and only after this time had lapsed, could the court act ex officio.

According to the information supplied by the Polish Government to the Committee of Ministers (see paragraph 28 above and paragraph 34 below), in addition the Polish trial courts and prosecution authorities have undertaken a series of practical measures in order to organise criminal proceedings in a more efficient manner, i.e. by scheduling time-limits for hearings well in advance, holding hearings on Saturdays or severing charges against co-accused to separate proceedings under Article 34 § 3 of the Code of Criminal Procedure if the joint examination proves difficult and time-consuming.

On 17 May 2007 the Council of Ministers (Rada Ministrów) adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (Program Działań Rzqdu w sprawie wykonywania wyroków Europejskiego Trybunału Praw Człowieka). By virtue of that document the Minister of Justice was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre-trial detention stemming from the Convention and the case-law of the Court in Polish cases and to include this topic in the programmes of workshops and seminars for judges.

On 6 June 2007 the Committee of Ministers adopted an Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). It reads, in its relevant parts, as follows:

“... Having regard to the great number of judgments of the Court finding Poland in violation of Article 5, paragraph 3, of the Convention on account of the unreasonable length of detention on remand (...)

Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations found as well as general measures to prevent new, similar violations of the Convention;

Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention;

Taking note of the steps taken so far by the authorities to remedy the structural problems related to detention on remand in Poland (...)

Noting also that, although some courts have begun to refer to the Convention and the European Court’s case-law in rendering decisions on the use of detention on remand, this preventive measure still seems often to be ordered without taking into consideration the Convention’s requirements;

Underlining that continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty;

Recalling that the persistence of reasonable suspicion that a person arrested has committed an offence, although a condition sine qua non for the lawfulness of the continued detention, may no longer suffice after a certain lapse of time and that consequently other relevant and sufficient grounds must be presented in order to extend such detention;

Noting that the number of cases in which the European Court has found similar violations is constantly increasing,

ENCOURAGES the Polish authorities, in view of the extent of the systemic problem concerning the excessive length of detention on remand:

- to continue to examine and adopt further measures to reduce the length of detention on remand, including possible legislative measures and the change of courts’ practice in this respect, to be in line with the requirements set out in the Convention and the European Court’s case-law; and in particular

- to take appropriate awareness-raising measures with regard to the authorities involved in the use of detention on remand as a preventive measure, including judges of criminal courts and prosecutors;

- to encourage domestic courts and prosecutors to consider the use of other preventive measures provided in domestic legislation, such as release on bail, obligation to report to the police or prohibition on leaving the country;

- to establish a clear and efficient mechanism for evaluating the trend concerning the length of detention on remand;

On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland. It reads, in its relevant parts, as follows:

“36. The European Court of Human Rights has repeatedly found violations of Article 5 § 3 of the Convention (right of a person subject to pre-trial detention to be tried within a reasonable time) in respect of Poland. Examples of cases brought to Strasbourg where pre-trial detention has lasted between 4 to 6 years are not uncommon.

The Commissioner urges the Polish authorities to review the application and functioning of pre-trial detention in Polish law. The training of judges and prosecutors as regards European standards and case-law of the Strasbourg Court is crucial. The general rule should be the release rather than the detention on remand and this message needs to be strongly underlined to national judges...”


The applicant, Mr Athanassios Vryonis, has Greek and German nationality. He was born in 1962 and lives in Duisburg in Germany.

The applicant is the father of the child K., born on 7 September 1992. The parents separated in November 1995. Following police intervention, the applicant’s wife and son found shelter in a women’s refuge, were they stayed until April 1996.

On 13 February 1996 the Ahaus District Court (Amtsgericht) temporarily transferred parental custody to the child’s mother. The applicant’s appeals remained unsuccessful.

Since August 1996 the child attended kindergarten in Bocholt.

Throughout the proceedings, the child remained with his mother; until the summer of 1997 the applicant had regular access to him.

In April 1998, following a visit during the Easter holidays, the applicant returned the child two days later than agreed upon.

On 9 June 1998, following a weekend visit, the applicant refused to return K. to his mother. He took the child out of Bocholt kindergarten and registered him at a kindergarten in Duisburg. On 10 June 1998, upon the mother’s request, the Bocholt District Court ordered that the child be returned to his mother.

As difficulties arose when the applicant had to return the child following a visit on 17 July 1998, which necessitated intervention by a Youth-Office officer, the applicant, allegedly upon the Youth Office’s advice, temporarily suspended the visits.

On 15 December 1998 the applicant attempted to visit his son. A conflict arose between the parents which culminated in police intervention.

On 23 March 1997 the applicant, represented by counsel, filed a petition for divorce with the Bocholt District Court, acting in the capacity of a family court. At the same time, he requested that sole parental authority over K. should be transferred to him.

On 20 June 1997 the applicant, in separate interim proceedings, requested the Bocholt District Court to grant him access rights.

On 28 July 1997 the District Court, in the proceedings on the applicant’s access rights, ordered the psychological expert W. to prepare an expert opinion as to how parental authority and access rights should be distributed between the parents.

On 19 January 1998 W. submitted his expert opinion. He found that both parents were in principle able and willing to raise K. The mother, however, had not been able to build up an unburdened relationship with her son. Her personality was characterised by introversion, emotional instability and inhibition, by a low capacity to build and stabilise human relationships and by low emphatic capacities (geringe emotionale Mitschwingfähigkeit). The applicant, on the other hand, had a more stable personality and was considerably better apt to treat K. with empathy and loving understanding. The expert further found that the applicant did not show any remarkable signs of aggressiveness. It followed that the applicant was better able to raise the child and to serve him as a role model. The expert concluded that both parents should be granted joint custody, that the child should live with the applicant and that the mother should be granted regular visiting rights.

On 30 June 1998 the parents concluded a friendly settlement according to which the applicant was granted visiting rights every second weekend from Friday night until Saturday night.

As difficulties arose when the applicant had to return the child following the next visit on 17 July 1998, the applicant, allegedly upon the Youth Office’s advice, temporarily suspended the visits.

On 24 March 1999 the District Court, in the divorce proceedings, ordered the preparation of a fresh expert opinion as to the distribution of parental authority and access rights by the psychological expert M. K.

On 21 August 2000 M. K. submitted her expert report. Having on several occasions heard and examined both parents and the child, the expert noted that the implementation of the applicant’s access rights had failed because the applicant insisted on exercising these rights according to his own discretion, without accepting any rules. In this respect, the expert noted that the applicant wanted to fetch the boy at different times than agreed upon, that he refused to return him after visits and that he took him out of kindergarten and registered him in another one at his home place, without having parental authority. He further tried to discredit his wife. According to the expert, the applicant had been unable to realise that his behaviour was damaging his good relationship with his son. There was no indication that the mother influenced the child against him; on the contrary, the fact that the child still expressed the wish to see his father indicated that such influence had not taken place.

The expert further noted that the mother was perfectly able to raise the child and that she tried to keep him as much as possible out of his parents’ post-marital conflicts. She had demonstrated her ability to deal with everyday conflicts. The applicant’s reproaches against her, which had culminated in the filing of criminal information, were unfounded. According to psychological tests and the mother’s reports, K. did not show any psychological abnormalities. This too indicated that the mother was able to educate and encourage him in accordance with his age and his individual needs.

In so far as the mother was suspicious as to whether the applicant would abide by the agreements on visiting rights, this was justified by her previous experiences. The expert further found that the applicant had shown a high degree of aggressiveness. In so far as the expert W. had concluded that the applicant did not show any aggressive behaviour, his assessment had been based on psychological tests which had not been suitable for the purpose at hand. Finally, the expert expressed her doubts as to whether the applicant would be able to adequately deal with daily problems in case the child’s needs were opposed to his own interests.

The expert concluded that the child K. loved and needed both parents. However, having regard to the persisting conflicts between the parents and the fact that the applicant did not accept the mother as his equal, the granting of joint custody would be contrary to the child’s best interests. She recommended that sole parental authority should be transferred to the mother. With regard to access rights, the expert noted that it would be in the child’s interest to have regular contacts with his father. However, both K. and his mother would have to be assured that the applicant abided by the rules set up for such contacts. As long as the applicant insisted that the child should live with him, as long as he degraded the mother and as long as he did not change his behaviour with a view to a more constructive strategy aimed at solving conflicts, such visits would have to be supervised.

On 19 September 2000 the Bocholt District Court, having heard both parents, the child and the experts W. and M. K., issued the divorce decree, transferred sole parental authority to the child’s mother and temporarily suspended the applicant’s access rights. The District Court noted, firstly, that neither of the parents was willing to accept joint parental authority. Having regard to the development of the parents’ conflicts, which had not diminished in spite of the long period of separation, it would be contrary to the child’s best interests to award joint custody. This had not been contrary to the finding of the first expert W., who had favoured joint custody. In this respect, the District Court noted that W.’s expert opinion had been more than 2.5 years old and that W. himself, in a supplementary statement dated 27 February 1999, had declared that joint custody had to be excluded with a view to the subsequent developments. Furthermore, the expert had expressly declared that his expert opinion was “outdated” and that changed circumstances warranted a fresh examination.

The District Court found that it was in the child’s best interest to transfer parental authority to the mother. The applicant was not able to properly raise the child. Following the expert M. K.’s opinion, that court found that the applicant was not able to adequately deal with daily problems in case the child’s needs were opposed to the applicant’s own interests. Furthermore, the child’s well-being was jeopardised by the applicant’s aggressive impulses and by the fact that the applicant did not accept the child’s mother as his equal, but tried to debase her.

The child’s mother, on the other hand, had proved that she was able to raise the child and that she had developed strategies to solve conflicts of daily life. As established by the expert, she had succeeded in keeping K. out of his parents’ conflicts and to preserve the positive image he had of his father. Insofar as K. appeared to be shy and aggrieved when heard by the court, this had to be explained by the fact that the child was torn into the conflict between his parents and that he had to take sides between two persons whom he both loved. There was no indication that the child had been negatively influenced against his father, otherwise he would not have declared that he wished to have contact with him. This finding was not contrary to the conclusions drawn by expert W., as the latter had conceded that his report had to be updated as the parents’ personal circumstances had changed in the meantime. The District Court could not follow the expert W.’s finding that the applicant did no show any signs of aggressive behaviour. In this respect, it pointed out that in 1996, the lease of the applicant’s flat had been terminated on the ground that the applicant had attacked the lessor’s wife. In separate proceedings, the director of the women’s refuge where K.’s mother temporarily found shelter had given testimony on the applicant’s aggressive behaviour. The Regional Court noted that these findings were in line with the finding of the expert M. K., who attested the applicant violent impulses.

The District Court further decided to temporarily suspend the applicant’s access rights pursuant to section 1684 of the Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law below). It acknowledged that the child had a strong relationship to his father and that it would be desirable to grant regular contacts. This, however, was not possible at the present time. In this respect the District Court noted, firstly, that the applicant’s contacts with his child led to serious conflicts which necessitated police intervention. Referring to the expert M. K.’s finding, the District Court found that access rights could only be granted if the child could be assured that the applicant abided by the rules. As long as the applicant insisted on taking K. with him to Duisburg and did not accept any differing decisions – including court orders – such visits would have to be supervised. Such supervision was presently not possible as the applicant was not willing to accept any person as a supervisor, who did not completely meet his own expectations and who did not act accordingly. The Bocholt Youth Office could not act as a supervisor in the present case due to serious tensions between the applicant and the Youth Office. The applicant had lodged petitions for administrative and criminal review against the Youth Office. Accordingly, the latter had refused to act as a supervisor in the applicant’s case. Another possible supervisor, Mr B., was only willing to supervise visiting contacts if both parents agreed to this. During the court hearing, the District Court had phoned Mr B. in order to render visits possible. These endeavours failed, firstly, because the applicant was not willing to bear the costs entailed by supervision. Furthermore, the mother only agreed to commission Mr B. in case the applicant accepted that the child remained with her until a final court decision. The applicant had not been willing to make such a declaration. That the mother’s fears were not unfounded was demonstrated by the fact that the applicant had refused to return the child in the summer of 1998. There were no other persons available who could supervise visiting contacts. In any event, the problem would persist as the applicant was not willing to bear the necessary expenses.

On 27 June 2001 the Hamm Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal against the District Court’s decisions on parental authority and on the temporary exclusion of access rights. The Court of Appeal followed the District Court’s reasoning, according to which the serious tensions persisting between the parents excluded the possibility of joint custody. With regard to the transfer of parental custody to one parent, the Court of Appeal left the question undecided whether the applicant was sufficiently able to raise the child on a daily basis, as the mother had proved to be. The transfer of custody to the mother was in accordance with the wishes the child had expressed when heard by the expert and by the court. The most decisive point was that the transfer of custody to the mother gave continuity to the child’s present life and educational circumstances. A change of the child’s present life circumstances which would be added to the psychological burden which had already been imposed on him by his parents’ separation could only be justified if such change was compensated by considerable advantages for the child. Such advantages could not be found in the present case. Following the expert M. K.’s opinion, that court found that the child was well taken care of by his mother. It was not necessary to determine whether the finding of the expert W. had been scientifically correct, as they dated back to 1998 and the decision had to be taken according to the current circumstances. The expert W. did not claim that his findings were still valid. He had, on the contrary, stated that M. K.’s recommendations may be correct for the time of her examination. The issue which parent was more ready to accept the child’s relationship with the other parent (Bindungstoleranz) clearly pointed in favour of the mother. This was established by the expert M. K.’s findings as well as by the applicant’s unfounded allegations during custody and access proceedings, who had reproached the mother of “brainwashing” and abusing the child. The fact that the child had looked forward to meet his father disproved the allegations that the mother had influenced the child against him.

With respect to the decision on the temporary exclusion of access rights, the Court of Appeal confirmed the District Court’s finding that unattended visits could not be granted as long as the applicant did not respect the rules set up for such meetings. Supervised visits were currently not feasible as the applicant refused to cooperate. The Court of Appeal noted that the Youth Office could not supervise meetings, as the applicant did not accept the Youth Office’s staff and that the Youth Office had consequently refused to undertake that task. The Court of Appeal further noted that the District Court, in its hearing of 29 August 2000, had tried to arrange supervised visits. These endeavours had failed inter alia because the applicant had been unwilling to bear the necessary expenses, in spite of being legally obliged to do so. The applicant had not changed his attitude during second instance proceedings.

On 1 March 2002 the Federal Constitutional Court (Bundesverfassungsgericht) refused to accept the applicant’s constitutional complaint and joint request for an interim order for adjudication.

The relevant provisions of the Civil Code (Bürgerliches Gesetzbuch) read as follows:

Section 1671

Living separately and joint parental authority

“(1) If parents who share joint parental authority are separated more than temporarily, each parent can request the family court to be transferred either sole parental authority or part of the parental authority.

(2) The request shall be granted if

the other parent consents, unless the child is at least fourteen years of age and is opposed to the transfer, or

if it is to be expected that the lifting of joint parental authority and its transfer to the applicant is best suited to serve the child’s welfare

Section 1684

Contacts between parent and child

“(1) The child is entitled to have access to both parents; each parent is obliged to have contact with, and is entitled to have access to the child.

(2) The parents must not do anything that would harm the child’s relationship with the other parent or interfere with the child’s upbringing...

(3) The family courts can determine the scope of the right of access and can prescribe more specific rules for its exercise, also with regard to third parties. They may oblige the respective parties to fulfil their obligations under paragraph 2.

(4) The family court can restrict or suspend access rights or the execution of previous decisions on access if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access be exercised under the supervision of a third party. Such a third party may be a Youth Office or a private association...”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant, Mr Omar Osorio, is a Chilean national who was born in Tocopilla, Chile on 22 November 1970 and lives in Södertälje. He was represented before the Court by Mr K. Potthoff, from Växjö. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson, of the Ministry of Foreign Affairs.

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

The applicant came to Sweden as a refugee in 1979. In 1998, after a routine operation, he started to suffer from severe pain. This pain was treated by strong pain killers which allegedly caused him to suffer brain damage. He was able to recover and to work in a boat factory for a while in 1998 and 1999. In 2000, however, he again became unable to work and started to receive sickness allowance (sjukpenning), which was later transformed into an early retirement pension (förtidspension) as of 1 January 2001.

The applicant applied for life annuity (livränta) from the Social Insurance Office (försäkringskassan) in Stockholm, claiming that his injuries had been caused by solvents to which he was exposed while working in the boat factory.

On 29 January 2003 the Social Insurance Office decided to refuse the application for life annuity as the applicant’s brain damage could not be considered a work-related accident or a condition caused by the working environment. According to the medical opinion given on 6 November 2002 by Dr P.L., the Social Insurance Office’s own medical doctor (försäkringsläkare), it was not probable that the applicant’s brain damage was connected to his work.

By letter dated 23 March 2003 the applicant appealed to the County Administrative Court (länsrätten) in Stockholm, claiming that he had a right to life annuity. He stated that he had been more sensitive to chemicals due to his prior brain damage in 1998. The applicant submitted a document by D, a professor in procedural law, entitled “Statement concerning the evidentiary requirements in work injury cases in general, with the case of [M.B.] as an example”. The applicant reserved the right to request that D be heard as an expert witness. He submitted written evidence, mainly articles from medical journals, and requested that this evidence be sent to D for comments.

On 3 March 2004 the County Administrative Court, which interpreted the applicant’s request as a request for a written expert opinion, rejected the applicant’s request to obtain a statement from D. The applicant was provided with the opportunity to complete his appeal within two weeks.

On 6 December 2005 the applicant requested that an oral hearing be held without giving any reasons for his request. The County Administrative Court offered the applicant the opportunity to finalise his submissions and to submit all evidence he wished to invoke. The applicant was also informed that the court would then decide on his request for an oral hearing. Furthermore, the applicant was informed about the applicable legislation concerning oral hearings and was asked to indicate whether he maintained his request.

On 2 January 2006 the applicant submitted his evidence to the County Administrative Court. He did not invoke any oral evidence or comments on the issue of an oral hearing.

On 24 May 2006 the County Administrative Court rejected the applicant’s request to obtain a written opinion from D., the request for an oral hearing and the applicant’s appeal. After having examined several medical certificates and opinions, included in the applicant’s case file and submitted by both parties, the court found that the medical evidence did not show that the applicant was more sensitive to solvents or that such shortterm work with solvents would have exposed him to brain damage such as he had suffered. His condition could thus not be considered as a work-related condition and he had therefore no right to life annuity.

On 1 August 2006 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm and maintained what he had claimed before the first instance court. Additionally, he stated that he had invoked oral evidence before the first instance court and claimed that the rejection of his request for an oral hearing constituted a violation of his rights under the Convention. Furthermore, the applicant requested an oral hearing to be held. On 7 August 2006 the applicant was offered the opportunity to complete his appeal. He was reminded that the issue of whether to grant leave to appeal could be decided even if he did not complete his appeal. He was also informed that his request concerning an oral hearing would not be determined before the issue of leave to appeal. In a submission of 25 August 2006 the applicant confirmed that he did not request an oral hearing on the question of leave to appeal. He stated that the reasons for his request for an oral hearing concerning the factual issues were complex, that an oral hearing was not unnecessary and that there was no reason not to hold an oral hearing.

On 3 October 2006 the Administrative Court of Appeal refused leave to appeal.

By letter dated 2 December 2006 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), reiterating the grounds of appeal already presented before the lower instances, claiming compensation and requesting the court to hold an oral hearing. The applicant stated that he had been refused an oral hearing before the lower courts and that the County Administrative Court had also rejected his request to hear an expert witness. He maintained that his case was complex and important and that, for these reasons, he had a right to an oral hearing.

On 23 January 2007 the applicant was informed that the Supreme Administrative Court would, first of all, examine whether leave to appeal should be granted and that it had understood his request for an oral hearing to be related to the substance of the case. The applicant was given the opportunity to comment on both issues and to complete his appeal. On 7 May 2007 the applicant requested once again that an oral hearing be held without clarifying whether it concerned the issue of leave to appeal or the substance of the case.

On 12 December 2007 the Supreme Administrative Court rejected the applicant’s request for an oral hearing regarding the issue of leave to appeal and gave the applicant the opportunity to finalise his submissions.

On 9 January 2009 the applicant completed his appeal and requested that an oral hearing be held with reference to his previous requests.

On 20 February 2009 the Supreme Administrative Court refused leave to appeal.

Domestic provisions of relevance in the present case are found in the 1976 Work Injury Insurance Act (Lagen om arbetsskadeförsäkring, SFS 1976:380) and the Administrative Court Procedure Act (Förvaltnings-processlagen, SFS 1971:291, “the 1971 Act”). The 1976 Work Injury Insurance Act has been incorporated into Chapters 39 and 41 of the Social Insurance Code as of 1 January 2011.

According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s workplace. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries.

For an injury to qualify as a work injury, a causal link must be established between the accident or harmful factor in the workplace and the insured person’s health problems. What is meant by “harmful factor” is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person. At the relevant time, it had to be “highly probable” that a certain factor in the working environment could cause a person’s injuries and, thereby, be considered to constitute a harmful factor. The view that a certain factor is very likely to cause an injury has to be relatively generally accepted (Govt. Bill 1992/93:30, pp. 20 and 36). This is the case where substantial knowledge exists, within medical or other science, that a certain factor has such harmful effect. If there is a lack of such support, such as, for example, profound differences in expert opinion, this requirement cannot be considered fulfilled. Thus, the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effect.

Section 9 of the 1971 Act, as in force at the relevant time, was worded as follows:

“The procedure shall be in writing.

Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues.

In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”

In a case concerning social insurance, leave to appeal was required for the Administrative Court of Appeal to consider an appeal against a decision enacted by a County Administrative Court. Leave to appeal was to be granted if it was of importance for the guidance of the application of law that a superior court consider the appeal, if reason existed for amendment of the County Administrative Court’s conclusion, or if there were otherwise extraordinary reasons to entertain the appeal.

A decision of the Administrative Court of Appeal not to grant leave to appeal could be appealed against to the Supreme Administrative Court.


The applicant is a Turkish national, born in 1926 and living in Antalya (Turkey) and Belvue (Switzerland). He is represented before the Court by Mr Sinan Aklar, a lawyer practising in Antalya(Turkey).

A.

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

The applicant owns a three-story house on a hill overlooking the south coast of Antalya. At the time when he had his house built, the south coast was officially designated a conservation area (doğal sit alanı). According to the local master building and settlement plan (imar planı), no building was authorised in this area. In 1993 the Antalya Municipal Board revised the master plan in order to allow homes to be built. Subsequently, property developers were given building permits (inşaat ruhsatı) and undertook major building works in the area. As a result, the natural panorama of the south coast began to change rapidly.

In 1993 the applicant twice complained to the Antalya City Municipality requesting that development be halted with immediate effect. In reply, the Antalya City Municipality informed the applicant that the master plan had been revised on 4 March and 2 July 1993 and that several developers had been granted construction permits pursuant to the revision.

The applicant challenged the award of the building permits before the Antalya Administrative Court (İdare Mahkemesi). He contended that the revision of the master plan did not comply with the requirements prescribed by Law no. 3194 and that the presence of the buildings would deprive him of his right to the peaceful enjoyment of the panoramic view from his house. He further contended that the preservation of the natural beauty of the site was in “the public interest” and the planned high buildings did not meet safety requirements for geographical reasons. He requested the annulment of the building permits awarded to the developers. He also requested the court to order the administration to suspend (yürütmenin durdurulması) the building permits pending the outcome of the court’s final decision on the matter.

On 3 February and 22 August 1994 the court ordered the administration to stay the execution of the building permits. These decisions were served on the administration on 17 February and 5 September 1994 respectively. The court noted that any further construction carried out on the basis of the permits could give rise to irreparable harm.

On 27 September 1994 and 21 February 1995 the applicant’s lawyer requested the Muratpaşa Municipality and the Antalya Metropolitan Municipality to comply with the order. The municipalities neither suspended the building permits nor prevented the holders from continuing to build.

Experts appointed by the court (bilirkişi) investigated the area and submitted a report which generally bore out the applicant’s allegations. On 19 November 1994 the Antalya Administrative Court found, inter alia, that the revision of the local master construction and settlement plan was not in accordance with relevant law and was not in the public interest (kamu yararı). The court also found that building permits did not comply with the revised master plan. The court accordingly annulled the revision of the master plan as well as all building permits awarded on the basis of the revised plan.

The Antalya Metropolitan Municipality and the Muratpaşa Municipality appealed (temyiz) on the ground that the judgment was contrary to substantive and procedural law.

On 29 May 1995 the 6th Chamber of the Supreme Administrative Court (Danıştay) upheld the judgment of 19 November 1994 of the Antalya Administrative Court. The Antalya Metropolitan Municipality and the Muratpaşa Municipality requested the rectification of the judgment (karar düzeltme) of the 6th Chamber. The request was rejected on 18 September 1996.

De facto construction continued in the area even after the annulment of the building permits had become final. The applicant, with reference to the final court judgment, requested the Muratpaşa Municipality and Antalya Metropolitan Municipality to stop the building being carried out by the holders of the annulled permits and to demolish the existing buildings in the area. The municipalities failed to comply with the request. The applicant then complained to various State institutions inter alia, the Antalya Public Prosecutor’s Office, the Antalya Governor’s Office, the Ministry of Interior, and the State Ministry responsible for urban issues. He did not receive any clear response. The impugned buildings remain to this day.

B. Relevant domestic law

Article 138 of the Constitution provides in its fourth paragraph (unofficial translation):

“Legislative and executive organs and the administration shall comply with court decisions. These organs and the administration shall neither alter them in any respect nor delay their execution.”

Article 28 of the Administrative Procedure Code states (unofficial translation):

“The administration shall comply with the decisions of the Supreme Administrative Court, district administrative courts, administrative and tax courts. The administration shall ensure the execution of such decisions within thirty days from the date of their notification.”


Remainder inadmissible;Violation of Art. 5-1 and 5-4;Violation of Art. 34;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1984 and, at the time of lodging his application, he was being held in the Edirne Foreigners' Admission and Accommodation Centre in Turkey.

The applicant was an active member of the Worker-Communist Party of Iran and the Freedom and Equality Seeking Students Movement in Iran. He was also on the board of editors of a well-known student journal.

According to the applicant's submissions, on Students' Day in Iran in 2007, which was held annually by university students across the country, more than fifty students were arrested and placed in solitary confinement in Evin Prison, in Tehran. Other members of the board of editors of the student journal that the applicant worked for were among those who were arrested. Subsequently, more students were arrested and imprisoned during the crackdown on students.

On an unspecified date in early 2008, the applicant arrived illegally in Turkey.

On 5 April 2008 the applicant was arrested by Turkish security forces while trying to leave Turkey illegally. He was subsequently placed in the Edirne Foreigners' Admission and Accommodation Centre.

On 22 April 2008 the applicant lodged an application for temporary asylum with the Ministry of the Interior (the “Ministry”).

On 24 July 2008 the applicant's request was rejected. According to a letter addressed to the Edirne governor's office by the Deputy Under- Secretary of the Ministry, the applicant had stated that he had been involved in the same activities as a certain P.P., an Iranian national who had been deported to Iraq on 22 August 2007 since his presence in Turkey constituted a risk for national security. The Deputy Under-Secretary maintained that the applicant's request had been rejected for the same reason and that this type of person should be not granted temporary asylum in general. He also requested that the Office of the United Nations High Commissioner for Refugees (UNHCR) should not be informed of these facts and that their access to this information should be restricted on national security considerations. The Deputy Under-Secretary finally requested the Edirne governor's office to notify the applicant of the decision taken in his case and to inform him that he could lodge an objection within two days against this decision.

On the same day the applicant was served with the decision rejecting his temporary asylum request and was informed that, unless he lodged an objection within two days, he would be deported to his home country.

On 25 July 2008 the applicant lodged, with the Edirne governor's office, a petition written in Farsi containing his objection against the decision rejecting his temporary asylum request.

On the same day the applicant made statements to two police officers in the presence of an interpreter. He maintained that he was an active member of the Worker-Communist Party of Iran and the Freedom and Equality Seeking Students Movement. He noted that he had participated in a number of demonstrations held by these organisations and that he had digital photographs of these demonstrations in his possession. He stated that he had left Iran subsequent to the arrest and imprisonment of his friends, who had been involved in the same activities on behalf of those organisations. He asked the Turkish authorities to contact the office of the UNHCR, his lawyer and a national non-governmental organisation, the Helsinki Citizens' Assembly, in order to receive documents and detailed information regarding his activities in Iran.

On 9 September 2008 his objection was rejected by the Ministry. According to the official documents, the Ministry considered that, in the light of the applicant's militant background, there was a real risk that he would be taken to the United States of America where he would have military training and that he would be part of military operations targeting Iran.

On 4 November 2008 the applicant was interviewed by officers from the UNHCR's Ankara office while he was being held by the Turkish authorities. On 20 March 2009 the applicant was granted refugee status under the UNHCR's mandate.

Following his placement in the Edirne Foreigners' Admission and Accommodation Centre, between 9 and 21 July 2008, the applicant went on a hunger strike in protest against his detention and the refusal of the authorities to allow him to have access to the temporary asylum system. He further alleged that he had been kept in solitary confinement in this Centre and that he had attempted to commit suicide there.

On 25 July 2008 the applicant was transferred to the Kırklareli Foreigners' Admission and Accommodation Centre. He alleged that his solitary confinement had continued in this Centre.

On 21 October 2008 following his visit to the Kırklareli Centre and his meeting with the applicant, Mr Barış Yıldız reported that the applicant had alleged that he was being detained alone in a cell. The lawyer had then asked a police officer about the conditions in the cell where the applicant was held. The police officer responded that the cell had a toilet and shower in it. The applicant had also told the lawyer that he had not been subjected to ill-treatment and that he did not need to see a psychologist or a psychiatrist.

On 3 September 2008 the Organisation for Human Rights and Solidarity for Oppressed People (Mazlum-Der), a human rights organisation based in Turkey, made a visit in order to observe the living conditions in the Centre. According to this organisation's report, they were not allowed by the Centre's administration to visit the inside of the Centre where foreign nationals were held or to hold a meeting with the applicant. The officers orally informed them that the Ministry had sent them written instructions to restrict access to the applicant. However, they did not wish to show Mazlum-Der the document in question. Mazlum-Der reported that other persons held in the Centre maintained that they did not know that the applicant had been held in the Centre for a very long time. Subsequently, they learned that the applicant was kept separately from them. According to the report, the Centre's administration did not allow the applicant, who was suffering psychologically, to talk with any other detainee. Nor was he authorised to hold a meeting with the representatives of the UNHCR.

The Government submitted that the applicant was held in the Kırklareli Foreigners' Admission and Accommodation Centre, which was not a prison or detention centre. Therefore, there were no prison cells or sections where the applicant could be kept in solitary confinement; neither was there any instruction to that effect.

On 23 April 2009 the applicant's representative lodged petitions with the Kırklareli police headquarters and the department responsible for foreigners, borders and asylum attached to the General Police Headquarters. The applicant's representative noted, in his petition, that the Government of Sweden had accepted the applicant within the refugee quota for Sweden and that an aeroplane ticket to Sweden was booked for the applicant for 27 May 2009. He requested the administrative authorities to secure the applicant's release with a view to facilitating the applicant's departure from Turkey.

On an unspecified date the applicant's representative further lodged an application with the Ankara Administrative Court for the applicant's release.

On 6 May 2009 the Administrative Court dismissed the case, holding that the applicant's representative had failed to attach the documents relevant to his petition, such as those demonstrating that he had already applied to the administrative authorities and that the latter had rejected his requests. The court asked the applicant's representative to renew his request in the light of the content of its decision within 30 days.

On 24 June 2009 the Ankara Regional Administrative Court upheld the decision of 6 May 2009.

On 26 June 2009 the applicant's representative renewed his request before the Ankara Administrative Court.

On 21 August 2009 the Ankara Administrative Court decided to request the office of the UNHCR to submit information regarding the applicant. In particular, the documents showing the Government of Sweden's decision to grant the applicant refugee status, the documents relating to the interim measure indicated by the Court and a copy of the case file were requested from the office of the UNHCR.

On 19 November 2009 the Ankara Administrative Court ordered the applicant's release from the Kırklareli Centre. In its judgment, the Ankara Administrative Court took into account the applicant's status as a refugee under the UNHCR mandate and the fact that the Government of Sweden had accepted the applicant within the refugee quota. It therefore decided to release the applicant with a view to his transfer to Sweden.

By a letter dated 23 December 2009, the Government informed the Court that on 24 November 2009 the applicant had escaped. They explained that the applicant had fled from the Kırklareli police headquarters where he had been taken in order for him to receive a wire transfer. The Government maintained that the applicant was not apprehended despite the arrest warrant issued by the Kırklareli police following his escape.

By a letter dated 12 January 2010, the applicant's representative informed the Court that, upon his and the UNHCR's request, on that date the applicant had surrendered to the police in order to be released from the Kırklareli Foreigners' Admission and Accommodation Centre in accordance with the Ankara Administrative Court's decision of 19 November 2009.

On 3 February 2010 the Government and the applicant's representative informed the Court that the applicant had been released from the Foreigners' Admission and Accommodation Centre on 26 January 2010. The Government further noted that the applicant had been granted a residence permit for five months pending his departure to Sweden. The applicant's representative noted that an aeroplane ticket to Sweden was booked for the applicant for 4 March 2010.

On 9 and 15 March 2010 the applicant's representative and the Government informed the Court respectively that the applicant had left Turkey on 4 March 2010 and arrived in Sweden where he was granted refugee status.

A description of the relevant domestic law and practice can be found in Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009).


Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants were born in 1928 and 1933 respectively and live in Bihać.

Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicants deposited foreign currency in their bank accounts at the Privredna banka Sarajevo Glavna filijala Bihać. In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...).

Following several unsuccessful attempts to withdraw their funds, the applicants initiated court proceedings seeking the recovery of their entire “old” foreign-currency savings and accrued interest.

By a decision of the Bihać Municipal Court of 3 December 1993, the Privredna banka Sarajevo Glavna filijala Bihać was ordered to pay the applicants 54,469.42 German marks (DEM), 19,257.25 Swiss francs, 81.12 French francs, 60,120.49 Austrian shillings, 185.61 Canadian dollars, 231.86 US dollars, 163.39 Dutch guilders and 22,217.60 Italian liras, default interest on the above amounts at the rate applicable to overnight deposits from private individuals from 1 January 1992 and legal costs in the amount of DEM 1,940. The judgment entered into force on 12 June 1994.

On 9 April 1997 the Bihać Municipal Court issued a writ of execution (rješenje o izvršenju). The execution proceedings were effectively stayed between 12 January 1998 and 12 September 2001.

Meanwhile, on 28 November 1997, the judgment debt became a public debt pursuant to the Settlement of Claims Against the Federation of Bosnia and Herzegovina Act 1997.

On 6 April 2005 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (“the Human Rights Commission”) found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising from a failure to enforce the judgment of 3 December 1993. It ordered the Federation of Bosnia and Herzegovina to ensure full enforcement of the judgment in issue within two months, to pay the equivalent of 255 euros in respect of non-pecuniary damage within three months and to pay default interest after the expiry of the above time-limits at the annual rate of 10%.

On 28 October 2005 the applicants received the compensation awarded by the Human Rights Commission.

The judgment of 3 December 1993 was fully enforced on 5 June 2007 (the applicants were paid the principal debt, default interest and legal costs in the amounts specified in the judgment).

For relevant law and practice see the admissibility decision in Jeličić, cited above; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007.


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Richard Owens, is a British national who was born in 1944 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant's wife died on 2 August 1999 leaving dependent children. In November 2000 the applicant applied for widows' benefits. On 8 November 2000 the applicant was informed that his claim had been disallowed. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.

The applicant was in receipt of Incapacity Benefit at the relevant time, the amount of which exceeded the rate of Widowed Mother's Allowance.

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant association, which was set up in 1977, is a non-profit association registered in Rennaz (Canton of Vaud). It is the national branch of the Raelian Movement, an organisation based in Geneva and founded in 1976 by Claude Vorilhon, known as “Raël”. According to its constitution, its aim is to make the first contacts and establish good relations with extraterrestrials.

On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster advertising campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97x69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.

On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.

In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.

On 27 October 2003 the Neuchâtel Land Management Directorate upheld that decision. It noted that, for the Raelian Movement, life on earth had been created by extraterrestrials, who were also the founders of the various religions and were capable of saving the world, and accepted that this amounted to a religious conviction protected by freedom of conscience and belief. It further accepted that the Neuchâtel Regulations constituted a sufficient legal basis in such matters. The Directorate observed that there was nothing offensive in the text and picture on the poster, or in the allusion to extraterrestrials. However, it pointed to the fact that the Raelian Movement advocated “geniocracy” (a political model based on intelligence), and human cloning. Moreover, in a judgment of 13 February 1998, concerning a right of reply, the Fribourg Cantonal Court had found that the movement also “theoretically” advocated paedophilia and incest, especially in the works of Raël himself. The practice of “sensual meditation” could also easily lead to abuse. In addition, the website of Clonaid, to which the Raelian Movement’s site had a link, proposed specific services in the area of cloning, and eugenism was contrary to the principle of non-discrimination. The poster advertising campaign was prejudicial to morals and to the rights of others. In any event, the Raelian Movement had other means to disseminate its ideas.

The applicant association appealed to the Administrative Court for the Canton of Neuchâtel. It claimed, among other things, that the mere defence of “geniocracy”, cloning and sensual meditation were not offensive opinions. Moreover, it argued that the movement denounced paedophilia through its association Nopedo. The refusal to authorise its poster thus amounted purely and simply to censorship, especially as the applicant association’s website was, in any event, accessible through a search engine.

In a judgment of 22 April 2005 the Administrative Court dismissed the appeal, after acknowledging, however, that the applicant association defended a global vision of the world and was entitled to both freedom of opinion and religious freedom. It found first that the impugned measure was based on the Administrative Regulations, which constituted a law in the substantive sense, and that the poster had to be assessed in relation to the message conveyed by the books and websites that could be accessed from the movement’s website. The services proposed by Clonaid were manifestly contrary to Swiss public order. The court further observed that criminal complaints had been filed against the Raelian Movement alleging the existence of sexual practices that were intended to systematically corrupt young teenagers. The content of the works on “geniocracy” and “sensual meditation” could lead certain adults to sexually abuse children, the child being described in certain works as a “privileged sexual object”. The comments on “geniocracy” and the criticisms of contemporary democracies were likely to undermine public order, safety and morality. For those reasons the Administrative Court concluded that it was not justifiable to authorise the dissemination of such ideas on the public highway.

The applicant association lodged a public-law appeal against that judgment with the Federal Court, requesting that it be set aside and that the case be referred back to the respondent authority for a new decision.

In a judgment of 20 September 2005, served on the applicant association on 10 October 2005, the Federal Court dismissed the appeal. The relevant passages read as follows:

“The Directorate, then the Administrative Court, acknowledged that the [applicant] association could rely on the right to freedom of religion (Art. 15 of the Constitution, Art. 9 ECHR and Art. 18 UN Covenant II), in so far as it defended a global vision of the world, especially as regards its creation and the origin of the various religions. The City of Neuchâtel disputes this, noting that the aim of the [applicant] association as defined in Article 2 of its Constitution, is not religious in nature. According to a report on ‘sects’ produced in 1995 for the French National Assembly, the Raelian Movement is classified among the movements that present dangers for the individual, especially on account of the excessive financial demands made of its members and practices that cause bodily harm, and also dangers for the community, in particular through an antisocial discourse. Many of the movement’s publications contain passages described as offensive.

There is no need to ascertain whether a religious movement may, on account of the dangers it represents, be precluded from relying on the right to freedom of religion, or whether the [applicant] association presents such dangers. Indeed, the parties agree that the applicant is entitled to rely on the right to freedom of opinion. As to the conditions in which such freedom may be restricted, as laid down in Article 36 of the Constitution, it makes little difference whether Article 15 or Article 16 of the Constitution is relied on (see also Articles 9 § 2 and 10 § 2 ECHR). The applicant association does not argue that the impugned measure impairs the very essence of its religious freedom, or that the restrictions . On the contrary, the applicant association relies on the principles of proportionality and public interest, without distinction as to the constitutional right invoked.

5.2 According to case-law, citizens do not have an unconditional right to an extended use of public space, in particular when a means of advertising on the public highway involves activity of a certain scale and duration, and excludes any similar use by third parties (Federal Court judgment 128 I 295 point 3c/aa p. 300 and the judgments cited therein). When it wishes to grant authorisation for extended or private use of public space, or when it supervises the conditions under which a licence is used, the State must nevertheless take into account, in balancing the interests at stake, the substantive content of the right to freedom of expression (Federal Court judgment 100 Ia 392 point 5 p. 402).

5.3 In the present case, the grounds given by the Cantonal Court to confirm the refusal by the City of Neuchâtel relate to respect for morality and the Swiss legal order. The Administrative Court took the view that it was necessary to take into account not only the content of the poster but also the ideas conveyed by the Raelian Movement, together with the works and websites that could be accessed from the movement’s website. Three different criticisms are thus directed against the [applicant] association. Firstly, the [applicant] association’s website contains a link to that of Clonaid, via which this company offers specific cloning-related services to the general public and announced, in early 2003, the birth of cloned babies. Cloning is prohibited under Swiss law, pursuant to Art. 119 of the Constitution and to the Medically-Assisted Reproduction Act (RS 814.90). Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of children. Numerous members of the movement had, moreover, been investigated by the police because of their sexual practices. Thirdly, the promotion of ‘geniocracy’, a doctrine according to which power should be given to the most intelligent individuals, and the criticism consequently directed at contemporary democracies, was likely to undermine the maintaining of public order, safety and morality.

5.4 The applicant no longer contests, at this stage, the existence of a sufficient legal basis, namely, in this case, Article 19 of the Regulations. A municipal by-law offers the same guarantees, in terms of democratic legitimacy, as a Cantonal law, and thus constitutes a sufficient legal basis (judgment 1P.293/2004 of 31 May 2005 point 4.3 Federal Court judgment 131 I xxx; Federal Court judgment 122 I 305 point 5a p. 312; 120 Ia 265 point 2a p. 266/267 and the references cited therein). The applicant invokes, however, the principle of public interest and criticises the respondent authorities for going beyond the content of the poster and engaging in an assessment of the [applicant] association’s activities. It argues that if it had generally engaged in conduct that was immoral or in breach of public order, it would have been dissolved by the courts pursuant to Article 78 of the Civil Code. If no decision had been taken to that effect, it would not be possible to prohibit it from publicising its philosophy and world vision.

5.5 The poster in itself does not contain anything, either in its text or in its illustrations, that was unlawful or likely to offend the general public. Above the central drawing representing extra-terrestrials appears the text ‘The Message from Extraterrestrials’, without any explanation. Below that, the [applicant] association’s website address and a telephone number are printed in bolder type. The phrase ‘Science at last replaces religion’ is admittedly capable of offending the religious beliefs of certain persons, but it is merely the expression of the movement’s doctrine and cannot be described as particularly provocative.

The poster as a whole can thus clearly be seen as an invitation to visit the website of the [applicant] association or to contact it by telephone. Faced with such advertising, the authority must examine not only the admissibility of the advertisement’s message as such, but also that of its content. It is therefore legitimate to ascertain whether the website in question might contain information, data or links capable of offending people or of infringing the law.

Moreover, contrary to the applicant’s allegation, an association may be criticised for opinions or activities which, without constituting grounds for dissolution within the meaning of Article 78 of the Civil Code, nevertheless justify a restriction on advertising.

5.5.1 As regards cloning, it was not the opinions expressed by the [applicant] association in favour of such practices (particularly in the book Yes to Human Cloning, published in 2001 and available via the applicant’s website) that were penalised, but the link with the company Clonaid, set up by the association itself, which proposes various practical services in this area for payment. The issue is thus not simply, contrary to what the applicant has argued, the expression of a favourable opinion of cloning, protected by Article 16 of the Constitution, but the practice of that activity, in breach of its prohibition under Article 119 § 2 (a) of the Constitution. That provision, accepted in 1992 by the majority of the population and of the Swiss Cantons (in the form of Article 24novies (a) of the Constitution), falls in particular within a policy of protection of human dignity, according to the conception thereof that is generally shared in this country (FF 1996 III 278; see also the response of the Federal Council to a question from R. Gonseth of 9 June 1997). The applicant does not contest the unlawfulness of human cloning, especially if it is carried out for commercial gain (Section 36 § Medically-Assisted Reproduction Act; Art. 119 § 2 (e) of the Constitution). Nor can it seriously contest the fact that the link to the Clonaid website contributes to the promotion of an unlawful activity, and goes further than the mere expression of an opinion. On that first point, which already justifies the decision under appeal, the applicant has not put forward any real relevant argument within the meaning of Art. 90 § 1 (b) of the Judicial Organisation Act.

5.5.2 On 15 October 2003 the Intercantonal Beliefs Information Centre provided information on the Raelian Movement. This information shows, among other things, that the movement apparently has a political mission. Virulently attacking democracies, which are referred to as ‘mediocracies’, it defends the notion of ‘geniocracy’, a political model based on individuals’ level of intelligence. A world government would consist of geniuses, elected by individuals whose intelligence is 10% higher than average. Admittedly, “geniocracy” is presented as a utopia and not as a genuine political project; contrary to the finding of the Administrative Court, this doctrine does not appear likely to undermine public order or safety.

However, apart from the fact that the doctrine appears to be largely inspired by eugenism, it is manifestly capable of offending the democratic and anti-discriminatory convictions that underpin the rule of law (see, in particular, the wording of the preamble to the Federal Constitution of 18 April 1999, together with Article 8 of the Constitution concerning equality and the prohibition of discrimination).

5.5.3 Lastly, according to the judgment under appeal, it cannot be considered that the Raelian Movement advocates paedophilia. However, numerous members have apparently been investigated by the police on account of their sexual practices. According to a judgment delivered on 28 November 1997 by the District Court of La Sarine, concerning a right of reply requested by the Mouvement raëlien suisse, the remarks made by Raël in his works could lead certain adults to commit acts of sexual abuse against children. The judgment quotes extracts from works by Raël that can be downloaded from the website of the [applicant] association, according to which the sexual education of children should not only be theoretical but should consist of a sensual education aimed at showing them how to derive pleasure from it. That judgment further indicates that, notwithstanding the denial subsequently issued on this point, certain articles published in the quarterly newsletter Apocalypse described the child as a ‘privileged sexual object’. Lastly, it is stated that a friend and a member of the Raelian Movement were convicted by the Vaucluse Assize Court and sentenced to five years’ imprisonment for sexually assaulting a 12-year-old girl. The judgment was upheld on 13 February 1998 by the Fribourg Cantonal Court. An ordinary appeal and a public-law appeal by the Mouvement raëlien were dismissed on 24 August 1998 by the Federal Court, having regard in particular to the equivocal writings of the movement’s founder or members (judgments 5P.172/1998 and 5C.104/1998).

The case-file, moreover, contains various documents concerning criminal proceedings brought against members of the [applicant] association for sexual assault. A judgment of 24 January 2002 of the Lyon Court of Appeal clearly shows that acts of sexual abuse were committed by leaders of the movement against minors. The movement’s leaders are thus said to have advocated ‘a broad sexual freedom strongly encouraging commission of the act’; they had thus corrupted young teenagers by supposedly philosophical discourse, by increasingly specific sexual fondling and by inciting them more and more forcefully, in order to satisfy ‘their sexual needs and fantasies with young girls who had just turned fifteen, and who were changing partners very quickly’.

The fact that the impugned articles date from the 1980s and that there has been no conviction in Switzerland does not negate the involvement of members of the [applicant] association in acts leading to criminal sanctions. The applicant association does not dispute the fact that certain passages in the books available via its website could lead adults to abuse children. On that point also, the applicant’s arguments do not address the grounds set out in the decision under appeal. Since acts of abuse have indeed been recorded on the part of certain members of the Raelian Movement, the argument that paedophilia is strongly condemned by the movement’s official doctrine is not decisive.

5.6 Having regard to the foregoing, the refusal issued to the applicant association appears to be justified by sufficient public-interest grounds, because it is necessary to prevent the commission of acts constituting criminal offences under Swiss law (reproductive cloning and sexual acts with children). Moreover, certain passages in the works available via the applicant’s website (in particular about the ‘sensual awakening’ of children, and ‘geniocracy’) are likely to be seriously offensive to readers.

5.7 The applicant association invokes the principle of proportionality. It points out that the poster itself contains nothing that is contrary to public order, and maintains that the measure is not appropriate to the aim pursued.

5.7.1 In accordance with Article 36 § 3 of the Constitution., any restriction on a fundamental right must be proportionate to the aim pursued. It must be appropriate to the fulfilment of that aim and any damage to private interests must be kept to a minimum (Federal Court judgment 125 I 474 point 3 p. 482 and the references cited therein).

5.7.2 In the present case, the public interest does not only consist in limiting the publicity given to the [applicant] association’s website, in view of the reservations expressed above about public order and morality; it is even more important to ensure that the State does not provide any support for such publicity by making public space available for it, which might suggest that it endorses or tolerates the opinions or conduct in question. From that perspective, the prohibition of the posters is appropriate to the aim pursued. Furthermore, the measure criticised by the applicant is confined to the display of posters in public spaces. The [applicant] association remains free to express its beliefs by many other means of communication at its disposal (see the Murphy judgment of 10 July 2003, ECHR 2003-IX, p. 33, § 74).

5.7.3 The applicant takes the view that the authority should have suggested that it make changes to the poster in order to make the content admissible. However, even though it was aware of the objections raised against its poster campaign, the applicant itself never proposed a version of the poster that was likely to be authorised. The Administrative Court, for its part, found that the poster should be prohibited even without the reference to the website, but this seems questionable; there is no doubt, however, that the removal of the address in question would deprive the poster campaign of its object, which, as has been shown, is essentially to advertise the website itself. It is therefore difficult to see what comprehensible meaning the poster could have had without that reference to the website and to the telephone number.

5.7.4 The impugned measure therefore respects the principle of proportionality, in all its aspects. It constitutes, for the same reasons, a restriction that is necessary ‘in a democratic society’, in particular for the protection of morals, within the meaning of Articles 9 § 2 and 10 § 2 of the ECHR.”

Article 119 of the Federal Constitution concerns reproductive medicine and gene technology involving human beings. That provision reads as follows:

“Human beings shall be protected against the misuse of reproductive medicine and gene technology.

The Confederation shall legislate on the use of human reproductive and genetic material. In doing so, it shall ensure the protection of human dignity, privacy and the family and shall adhere in particular to the following principles:

(a) All forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful.

(b) Non-human reproductive and genetic material may neither be introduced into nor combined with human reproductive material.

(c) Methods of medically-assisted reproduction may be used only if infertility or the risk of transmitting a serious illness cannot otherwise be overcome, but not in order to conceive a child with specific characteristics or for research purposes; the fertilisation of human egg cells outside a woman’s body is permitted only under the conditions laid down by the law; no more human egg cells may be developed into embryos outside a woman’s body than are capable of being immediately implanted.

(d) The donation of embryos and all forms of surrogate motherhood are unlawful.

(e) Trade in human reproductive material and in products obtained from embryos is prohibited.

(f) The genetic material of a person may be analysed, registered or made public only with the consent of the person concerned or if the law so provides.

(g) Everyone shall have access to data relating to their ancestry.”