The applicant, P4 Radio Hele Norge ASA (hereinafter referred to as P4), is a radio broadcasting company established in Norway. The applicant company is represented before the Court by Mr. Kyrre Eggen, a lawyer practising in Oslo.

On 5 March 2001 P4 applied for authorisation to radiobroadcast, in whole or in part, the main hearing (hovedforhandling) in a major criminal trial concerning charges against four persons of triple murder, the so-called Orderud case, scheduled to take place before the Nes District Court (herredsrett) as from 18 April 2001. According to the applicant, this was probably the most spectacular and media-focused criminal case in Norwegian history. The case involved a son and his wife, the wife’s half-sister and a friend of the latter, who were charged with the murder of the son’s parents and sister, committed in a particularly brutal manner.

The district court judge (sorenskriveren), who received the application on 26 March 2001, replied by fax:

“APPLICATION FOR BROADCASTING

The Orderud case

Hereby rejected

Nobody is granted such permission”

The above decision was taken under section 131A (in its version as applicable at the relevant time) of the Administration of Courts Act 1915 (domstolloven).

P4 appealed against this decision to the Eidsivating High Court (lagmannsrett) and requested it to quash the District Court’s refusal to broadcast and to give a new decision. The applicant maintained that there was no justification for refusing radio broadcasting from the lawyers’ opening statements and closing arguments and from the delivery of verdict.

On 4 April 2001 the High Court dismissed (avviste) the appeal. In so far the procedure was concerned, it found no error which warranted setting aside the refusal. Regarding the substance of the decision, it held that this was a matter which by its very nature could not form the subject of an appeal (uangripelig). The High Court added incidentally that, notwithstanding this limitation on its own jurisdiction, it did not find that the disputed refusal conflicted with either the Convention provisions concerning the public character of judicial proceedings or those on freedom of expression.

On 23 April 2001 the Appeals Selection Committee of the Supreme Court unanimously rejected an appeal by P4 against the High Court’s decision. The Committee’s reasoning could be summarised as follows.

The Committee noted the absence, in section 131 (incorporating the provision of section 131A according to an amendment in 1999, which had not yet entered into force) of the Administration of Court’s Act 1915, of an express provision on the right to appeal against a refusal to broadcast, unlike sections 129 and 130 concerning respectively prohibition on reporting from judicial proceedings (referatforbud) and publication of judicial decisions. This suggested that section 131 decisions were not intended to be open to appeal. However, the Committee did not find it necessary to consider the applicant’s argument that a right of appeal would follow from Article 377 of the Code of Criminal Procedure (straffeprosessloven), since such a right could in any event follow from the fact that it had been claimed that a Convention right had been violated. In this connection the Committee mentioned the provisions of the Human Rights Act on the precedence of international human rights conventions over domestic law and Article 13 of the Convention on the right to an effective remedy for “arguable claims” of violation. The Committee noted a decision by the former Commission (Atkin and Others v. the United Kingdom, application no. 13366), which concerned complaints by two journalist under Articles 10 and 13 of the Convention about judicial orders to prohibit reporting and to hear a case in camera, rejected as manifestly ill-founded. It was found that the interference was justified for the purposes of Article 10 § 2 and that, absent an arguable claim of violation, Article 13 did not apply. The Committee further observed that the “arguable claim” criterion had been criticised in legal theory and pointed out that the condition for lodging an appeal under Norwegian procedural law was that the appellant’s claim of violation did not appear entirely unfounded.

As regards the decision under challenge, the Committee, noting that the High Court had dismissed the appeal on jurisdictional ground, quoted its findings on the merits and upheld those findings. As regards the latter aspect, the Committee observed:

“The Committee agrees with what has been stated by the High Court and points to the fact that the principle of publicity in Article 6 § 1 is to ensure democratic control of the courts, not the right of the public to receive information, and that the principle is preserved by the provisions on public hearing and the freedom to report in ... the Administration of the Courts Act. The Committee cannot see that the prohibition in section 131A, first paragraph, of the Act on, inter alia, recording for radio transmission from the proceedings in a criminal case infringes the right to receive and impart information under Article 10 of the Convention. It is recalled that the media are not excluded from, or imposed a duty of silence about, the proceedings. The Committee finds no support in the Court’s or the [former] Commission’s case-law for interpreting the right to freedom of expression to mean that there is a right to record from criminal proceedings with a view to radio - or television broadcasting. At last, it should be noted that, under section 131A, second paragraph, a derogation from the prohibition in the first paragraph may be made during the main hearing where there are special reasons and after having heard the views of the parties.”

In the meantime, on 18 April 2001 the trial started before the District Court. It was held in open court. Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives, special arrangements were made enabling the press to follow the trial at a press centre, set up in a sports hall, to which sound and picture were transmitted live and shown on a television screen.

Section 131A, as in force at the material time, of the Administration of Courts Act 1915 (domstolloven) provided:

“During oral proceedings in a criminal case, photographing, filming and radio - or television recordings are prohibited. It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place, without his or her consent.

If there are special reasons for doing so, the court may in the course of the proceedings make an exception from the [above] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so. Before authorisation is given the parties should have an opportunity to express their views.”

Article 377 of the Code of Criminal Procedure (straffeprosessloven) reads:

“An interlocutory appeal may be brought against a court order or decision by any person who is affected thereby unless it may form the subject of an appeal proper or may serve as a ground for such an appeal by the said person, or by reason of its nature or a specific statutory provision is unchallengable.”


The applicant was born in 1964 and lives in Germany. He used to run a car rental business.

On 3 November 1994 the Limburg Prosecuting Office informed him that it had begun criminal investigations against him and three other persons on the suspicion of insurance fraud. They were suspected of having obtained reimbursement for non-existent car rental costs and of having requested payment for non-refundable kilometres.

On 4 November 1994, following the Wetzlar District Court's arrest warrant, the applicant was arrested on the suspicion that he would attempt to hinder the investigation proceedings (Verdunklungsgefahr).

On 29 November 1994 the District Court suspended the execution of the arrest warrant on the condition that the applicant cease to have contact with his co-suspects and any of the witnesses involved.

On 10 February 1997 the applicant and his co-suspects were indicted for fraud.

On 10 March 1997 the District Court revoked the arrest warrant.

On 12 January 2000 the Limburg Regional Court provisionally discontinued proceedings with the applicant's consent pursuant to Section 153a § 2 of the Code of Criminal Procedure (see relevant domestic law below) on the condition that the applicant pay a sum of 3,500 DEM to the Association to Aid Criminal Offenders (Verein für Straffälligenhilfe).

On 21 March 2000, after the applicant had fulfilled this condition, the Regional Court, sitting as a chamber of three judges, permanently discontinued proceedings against the applicant but refused to grant him compensation for the time spent in detention on remand, finding that such compensation would not be equitable (entspricht nicht der Billigkeit), in particular as the applicant had waived any right to compensation.

The applicant appealed against this decision, arguing that he had never waived his right to compensation and that compensation would be equitable, as the criminal proceedings had caused him to lose his source of income and had prevented him from finishing his law studies.

By letter to the applicant's counsel of 18 May 2000, the presiding judge of the competent chamber of the Regional Court confirmed that if the proceedings had been pursued, the Regional Court would have opened proceedings against the applicant with regard to parts of the indictment. The applicant would then have been convicted with predominant probability (“Insoweit war auch mit bei weitem überwiegender Wahrscheinlichkeit mit Verurteilung zu rechnen”). In one of the cases of fraud, this predominant probability was based on the submissions of another accused and of a former suspect. In another case, a conviction for fraud was to be expected following the submission of various car rental receipts (“...war schon im Hinblick auf die Einreichung der diversen Mietwagenrechnungen mit einer Verurteilung wegen Betrugs zu rechnen”).

On 22 September 2000 the Frankfurt/Main Court of Appeal rejected the applicant's appeal. It noted that granting compensation for prosecution measures lay within the discretion of the competent courts or prosecuting offices. The relevant Section 3 of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungs- massnahmen, see relevant domestic law below) was to be seen as an exception to the rule - according to this provision, compensation should be granted in special cases where the execution of provisional prosecution measures was considered to be grossly disproportionate (“grob unverhältnismässig”). This did not apply to the case against the applicant.

The Court of Appeal noted that the measures of prosecution instituted against the applicant were originally based on a strong suspicion (dringender Verdacht). If the proceedings had continued, the Regional Court would have opened proceedings against the applicant regarding a certain part of the indictment. The Court of Appeal found that taking into account a remaining suspicion (“verbleibender Tatverdacht”) when deciding on compensation was not in violation of the right to the presumption of innocence under Article 6 of the Convention, as it did not involve the establishment or allocation of guilt, but only constituted an admissible and necessary evaluation of the situation. Legal consequences of a non-punitive character, such as the refusal of compensation for prosecution measures, may be linked to such a remaining suspicion. This remaining suspicion, which the Regional Court took into account when deciding on compensation, was only relevant with regard to the question of whether to open proceedings and of whether the public interest in further prosecution could be overcome. It was not relevant with regard to the actual question of guilt or the probability of a conviction.

On 14 December 2000 the Federal Constitutional Court refused to entertain the applicant's complaint against the court decisions and the letter of the Regional Court, finding that the principle of the presumption of innocence did not prevent the establishment and assessment of a remaining suspicion in a decision on the discontinuance of criminal proceedings before a conviction has taken place. It thus also did not prevent courts or prosecuting offices from taking this remaining suspicion into account when deciding on compensation.

The presumption of innocence prohibits imposing sanctions with a punitive or de facto punitive effect on an accused whose guilt has not been established in the relevant criminal proceedings. However, in a decision on the discontinuance of proceedings, legal consequences of a non-punitive character may be linked to a remaining suspicion, but it must become sufficiently clear from its reasoning that this does not occur out of the intention to establish or allocate guilt, but out of the intention to describe and assess the state of suspicion (Verdachtslage). This distinction had to be sufficiently expressed in the decision's reasons. In this respect, the context of all the given reasons had to be taken into account.

In the light of the above principles, the Federal Constitutional Court found that the impugned decisions were compatible with the German Basic Law. It noted that the Court of Appeal had refused to grant the applicant compensation under Section 3 of the Act on Compensation for Prosecution Measures on the ground that if the proceedings against the applicant had been pursued, the Regional Court would have opened court proceedings against the applicant based on parts of the indictment. This evaluation of the remaining suspicion with regard to the question of the opening of proceedings and overcoming the public interest in pursuing prosecution measures neither contained a declaration on the probability of the applicant's conviction, nor did it contain a criminal allocation of guilt.

According to Section 153a of the Code of Criminal Procedure, criminal proceedings involving a less serious criminal offence (Vergehen) may be discontinued subject to certain conditions and instructions (Auflagen und Weisungen).

If the proceedings are still in the investigation phase, the Public Prosecutor's Office may, with the consent of the competent court and the accused, provisionally refrain from issuing an indictment relating to an offence and may at the same time order the accused (1) to take measures providing reparation, (2) to pay a sum of money to a charitable association or the Treasury, (3) to take other measures or (4) to make maintenance payments of a particular amount, if such conditions and instructions can remove the public interest in prosecution and if this is not in conflict with the seriousness of the crime (“...wenn diese geeignet sind, das öffentliche Interesse an der Strafverfolgung zu beseitigen, und die Schwere der Schuld nicht entgegensteht”) (Section 153a § 1).

If the accused has already been indicted, the court may, with the consent of both the public prosecutor's office and the accused, discontinue the proceedings and impose the same conditions and instructions (Section 153a § 2).

Compensation for various prosecution measures is covered by the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen).

In cases where an accused is acquitted or where the proceedings against him are discontinued or where a court refuses to open the proceedings against him, he is entitled to compensation for damages suffered due to time spent in detention on remand or due to other prosecution measures (Section 2).

If the discontinuation of the proceedings is subject to the discretion of the prosecutor'

According to the case-law of the Federal Constitutional Court, cases where the proceedings have been discontinued according to Section 153a of the Code of Criminal Procedure also fall under the scope of the above regulations.


CASE OF KROON AND OTHERS v. THE NETHERLANDS

Violation of Art. 8;No separate issue under Art. 14+8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The first applicant, Catharina Kroon, is a Netherlands national born in 1954. The second applicant, Ali Zerrouk, born in 1961, was a Moroccan national at the time of the events complained of; he subsequently obtained Netherlands nationality. Although they were not living together at the time, they had a stable relationship from which the third applicant, Samir M’Hallem-Driss, was born in 1987; he has both Moroccan and Netherlands nationality. All three applicants live in Amsterdam.

In 1979, Mrs Kroon had married Mr Omar M’Hallem-Driss, a Moroccan national.

The marriage broke down towards the end of 1980. Thereafter, Mrs Kroon lived apart from her husband and lost contact with him. It appears from official records that he left Amsterdam in January 1986 and his whereabouts have remained unknown ever since.

Samir was born on 18 October 1987. He was entered in the register of births as the son of Mrs Kroon and Mr M’Hallem-Driss.

Mrs Kroon instituted divorce proceedings in the Amsterdam Regional Court (arrondissementsrechtbank) one month after Samir’s birth. The action was not defended and the divorce became final when the Regional Court’s judgment was entered in the register of marriages on 4 July 1988.

On 13 October 1988, relying on section 1:198 (1) of the Civil Code (Burgerlijk Wetboek - "CC" - see paragraph 19 below), Mrs Kroon and Mr Zerrouk requested the Amsterdam registrar of births, deaths and marriages (ambtenaar van de burgerlijke stand) to allow Mrs Kroon to make a statement before him to the effect that Mr M’Hallem-Driss was not Samir’s father and thus make it possible for Mr Zerrouk to recognise the child as his.

The registrar refused this request on 21 October 1988. While expressing sympathy, he noted that Samir had been born while Mrs Kroon was still married to Mr M’Hallem-Driss, so that unless the latter brought proceedings to deny paternity (see paragraphs 18 and 21 below) recognition by another man was impossible under Netherlands law as it stood.

On 9 January 1989 Mrs Kroon and Mr Zerrouk applied to the Amsterdam Regional Court for an order directing the registrar to add to the register of births Mrs Kroon’s statement that Mr M’Hallem-Driss was not Samir’s father and with Mr Zerrouk’s recognition of Samir. They relied on Article 8 (art. 8) of the Convention, taken both alone and together with Article 14 (art. 14+8), pointing out that while it would have been possible for Mrs Kroon’s former husband to deny the paternity of Samir, it was not possible for her to deny her former husband’s paternity of the child.

The Regional Court refused this request on 13 June 1989. It held that in spite of the justified wish of Mrs Kroon and Mr Zerrouk to have biological realities officially recognised, their request had to be refused since, under the law as it stood, Samir was the legitimate child of Mr M’Hallem-Driss. There were only limited exceptions to the rule that the husband of the mother was presumed to be the father of a child born in wedlock. This was justified in the interests of legal certainty, which were of great importance in this field, and by the need to protect the rights and freedoms of others. The law as it stood was therefore not incompatible with Articles 8 and 14 (art. 8, art. 14) of the Convention.

Relying again on Articles 8 and 14 (art. 8, art. 14), Mrs Kroon and Mr Zerrouk appealed to the Amsterdam Court of Appeal (gerechtshof).

The Court of Appeal rejected the appeal on 8 November 1989. It held that Article 8 (art. 8) was applicable but had not been violated. The restrictions imposed on the mother’s right to deny the paternity of her husband satisfied the requirements of Article 8 para. 2 (art. 8-2). There had, however, been a violation of Article 14 taken together with Article 8 (art. 14+8), since there was no sound reason for the difference of treatment which the law established between husband and wife by not granting the latter the possibility, available to the former, of denying the husband’s paternity. Nevertheless the appeal could not be allowed; it was not open to the court to grant the applicants’ request, as that would require the creation of new Netherlands law, including administrative procedure, and would therefore go beyond the limits of the judiciary’s powers to develop the law. Only the legislature could decide how best to comply with Article 14 (art. 14) of the Convention as regards the possibility of denying paternity of a child born in wedlock.

Mrs Kroon and Mr Zerrouk then lodged an appeal on points of law with the Supreme Court (Hoge Raad).

They argued, firstly, that the Court of Appeal had violated Article 8 (art. 8) of the Convention by holding that the limitations imposed by section 1:198 CC on the mother’s possibility of denying her husband’s paternity - more particularly the fact that she might do so only in respect of a child born after the dissolution of the marriage - satisfied the requirements of Article 8 para. 2 (art. 8-2). The Court of Appeal had not properly weighed up the interests involved. It ought to have considered the relative weight of, on the one hand, the interests of the biological father and his child and, on the other, the interests protected by the legislation. The Court of Appeal should have given priority to the former interests, which in the case before it were best served by severing the legal ties between Samir and Mr M’Hallem-Driss and establishing such ties between Samir and Mr Zerrouk, who were entitled, under Article 8 (art. 8) of the Convention, to have their family relationship recognised.

In addition, they suggested that it followed from the Court of Appeal’s finding of a violation of Article 14 (art. 14) that the interference concerned could not under any circumstances be covered by Article 8 para. 2 (art. 8-2).

Secondly, they argued that, by holding that it was not empowered to grant the applicants’ request as that would require the creation of new Netherlands law, the Court of Appeal had violated Articles 14 and 8 (art. 14+8) taken together. In the applicants’ submission, there was no reason to consider that only the legislature was able to remove the discrimination which the Court of Appeal had rightly found to exist; it was sufficient to disregard the requirement that the child must have been born after the dissolution of the mother’s marriage.

Following the advisory opinion of the Advocate General, the Supreme Court rejected the appeal on 16 November 1990.

The Supreme Court did not rule on the question whether section 1:198 CC violated Article 8 (art. 8), or Article 14 taken together with Article 8 (art. 14+8). It considered that it was not necessary to do so, because it agreed with the Court of Appeal that, even if there had been such a violation, solving the problem of what should replace section 1:198 CC went beyond the limits of the judiciary’s powers to develop the law. This finding was based on the following reasoning:

"In this connection, it should not be overlooked that if a possibility were to be created for the mother to deny [her husband’s] paternity [of a child born] during marriage, the question would immediately arise as to what other limitations should apply in order not to jeopardise the child’s interest in certainty regarding its descent from its legitimate parents, which interest the child generally has and which is part of the basis for the present system. Such limitations have therefore also been written into the Bill to Reform the Law of Descent (Wetsvoorstel Herziening Afstammingsrecht; Bijlage bij de Handelingen van de Tweede Kamer der Staten-Generaal - Annex to the Records of the Lower House of Parliament -, 1987-88, 20626, sections 201 et seq.), which is now before Parliament ... [I]t is not certain whether [these limitations] will be retained, added to or withdrawn in the course of the further parliamentary discussion, many variations being conceivable, regard also being had to the need to ensure equal treatment of the father and the mother, in so far, at any rate, that unequal treatment is not justified."

The judgment of the Supreme Court was reported in Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ"), 1991, 475.

Three more children were born to Mrs Kroon and Mr Zerrouk after the birth of Samir: a daughter, Nadia, in 1989 and twins, Jamal and Jamila, in 1992. They were all recognised by Mr Zerrouk.

Mrs Kroon and Mr Zerrouk do not cohabit. The applicants claim, however, that Mr Zerrouk contributes to the care and upbringing of their children.

Every municipality has a separate register for births (section 1:16 (1) CC); this is kept by one or more registrars of births, deaths and marriages (section 1:16 (2)).

An entry in the register of births, or birth certificate, mentions the mother’s husband as the father if the mother was married at the time of the birth or within a period of 306 days immediately preceding the birth; in all other cases, the name of the father is mentioned only if he recognises the child before or at the time the entry is made (section 1:17 (1) (c) CC).

An interested party or the public prosecutor (officier van justitie) can apply to the Regional Court within the jurisdiction of which the register in question is located for an order to correct or add to the register of births. The Regional Court’s decision is forwarded to the registrar of births, deaths and marriages; the correction or addition is made in the form of a note in the margin or at the foot of the certificate (section 1:29 (1)-(3) CC).

Section 1:197 CC reads as follows:

"The husband shall be the father of a child born in wedlock. Where a child is born before the 307th day following dissolution of the marriage, the former husband shall be its father, unless the mother has remarried."

Section 1:197 CC thus creates two legal presumptions. Firstly, a child born during marriage is presumed to be the issue of the mother’s husband; secondly, a child born before the 307th day following the dissolution of the mother’s marriage is presumed to be the progeny of the mother’s former husband. The first presumption may be rebutted only by the mother’s husband, who to that end must provide proof to the contrary (sections 1:199-200 CC - see paragraph 21 below). The second presumption may be rebutted by either the mother or her former husband; the mother’s former husband will, however, have to adduce proof, whereas for the mother a statement is sufficient (section 1:198 CC - see following paragraph).

Section 1:198 CC reads as follows:

"1. The mother may deny that a child born to her within 306 days following the dissolution of the marriage is the child of her former husband by making a statement to that effect before the registrar of births, deaths and marriages, provided that another man recognises the child by the instrument in which that statement is recorded ...

The mother’s statement and the recognition must take place within one year of the child’s birth.

The [mother’s] statement and the recognition shall take effect only if the mother and the man who recognises the child marry each other within one year of the birth of the child ... 4. If a judgment annulling the recognition in an action brought by the former husband becomes final, the mother’s statement shall also lose its force.

In its judgment of 17 September 1993 (NJ 1994, 373), the Supreme Court deprived section 1:198 (3) CC of its effect.

In the case in question - in which a child had been born within 306 days of the dissolution of its mother’s marriage - it was established, firstly, that there was a relationship between the child and its biological father which qualified as "family life" for the purposes of Article 8 (art. 8) of the Convention and, secondly, that the mother and the biological father, who did not wish to marry, wanted the paternity of the mother’s former husband to be denied and the child to be recognised by its biological father.

The Supreme Court found that section 1:198 (3) CC constituted an "interference" within the meaning of Article 8 (art. 8), since it obstructed the formation of legally recognised family ties unless the mother and the biological father got married.

In deciding whether such interference was permissible under the terms of Article 8 para. 2 (art. 8-2), the Supreme Court noted that when section 1:198 (3) CC had been enacted it was considered more important to protect a child from being deprived of its "legitimate" status than to enable it to establish ties with its biological father. Since then, however, the relative importance of these two opposing interests had changed; in particular, following the judgment of the European Court in the Marckx v. Belgium case (13 June 1979, Series A no. 31), legal differences between "legitimate" and "illegitimate" children had to a large extent disappeared. In view of these developments, it could no longer be said that in cases where, for the purposes of Article 8 (art. 8) of the Convention, there was a relationship between the child and its biological father amounting to "family life", the importance of maintaining a child’s "legitimate" status overrode the interest protected by section 1:198 (3) CC.

Section 1:199 CC reads as follows:

"The husband can only deny paternity of the child by bringing an action to this end against the mother as well as against the child, which, unless it has come of age, shall be represented in the proceedings by a guardian ad litem appointed for that purpose by the District Court (kantonrechter)."

Section 1:200 CC reads:

"1. The court shall allow the action to deny paternity if the husband cannot be the father of the child.

If during the period in which the child was conceived the husband did not have intercourse with the mother, or if they lived apart during that time, the court shall also declare the action to deny paternity well-founded, unless facts are established which make it appear possible that the husband is the father of the child."

Such proceedings must be brought within six months from the day on which the father became aware of the fact that the child had been born; however, if the mother has made a statement of the kind provided for in section 1:198 CC (see paragraph 19 above), this time-limit does not expire until eighteen months after the birth of the child (section 1:203 CC).

According to section 1:205 CC, legitimacy is proved by a person’s parentage (afstamming) and the marriage of his or her parents. If there is no birth certificate, the parentage of a "legitimate" child is proved by the undisturbed possession of the status of "legitimate" child.

Section 1:221 (1) CC reads as follows:

"An illegitimate child has the status of natural child (natuurlijk kind) of its mother. Upon recognition it acquires the status of natural child of its father."

Section 1:222 CC reads as follows:

"An illegitimate child and its descendants have legally recognised family ties (familierechtelijke betrekkingen) with the child’s mother and her blood relations and, after the child has been recognised, also with the father and his blood relations."

Section 1:223 CC reads as follows:

"Recognition may be effected: (a) on the child’s birth certificate; (b) by an instrument of recognition drawn up by a registrar of births, deaths and marriages; (c) by any notarial deed (notariële akte)."

There is no requirement that the man recognising an "illegitimate" child should be the biological father. Moreover, it is not possible for a man to recognise a "legitimate" child, even if he is the biological father.

Recognition under section 1:198 CC (see paragraph 19 above) may be annulled on application by the mother’s former husband if the man who has recognised the child is not the child’s biological father (section 1:225 para. 3 CC).

Section 1:227 CC reads as follows:

"1. Adoption is effected by a decision of the Regional Court at the request of a married couple who wish to adopt a child.

The request can only be granted if the adoption is in the apparent best interests of the child, as regards both breaking the ties with the [natural] parents and reinforcing the ties with the adoptive parents, or - in the case of adoption of a legitimate or natural child of one of the adoptive parents - as regards both breaking the ties with the other parent and reinforcing the ties with the stepparent, and provided that the conditions laid down in the following section are satisfied.

Section 1:228 CC reads as follows:

"1. Adoption shall be subject to the following conditions:

(a) ...

(b) that the child is not the legitimate or natural child of a legitimate or natural child of one of its adoptive parents;

(c) that neither adoptive parent is less than eighteen or more than fifty years older than the child;

(d) that the request is not opposed by a parent or the parents with legally recognised family ties with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on the occasion of a similar request by the same couple that was refused, although the conditions laid down in paragraphs (e) to (g) below were satisfied;

(e) ...

(f) ...

(g) that the adoptive parents were married at least five years before the day the request was filed.

In the case of adoption of a legitimate or natural child of one of the adoptive parents, the conditions set forth in paragraphs (c) and (g) of the preceding subsection shall not apply. In the case of adoption of a legitimate child of one of the adoptive parents, the condition specified in paragraph (d) shall be replaced by the condition that the former spouse, whose marriage with the spouse of the stepparent has been terminated [by divorce or dissolution of the marriage after judicial separation], if he or she has legally recognised family ties with the child, does not oppose the request.

Section 1:229 (1) CC reads as follows:

"By adoption the adopted person acquires the status of legitimate child of the adoptive parents. However, if the adopted person already had the status of legitimate child of one of the spouses who adopted him or her, he or she shall retain it and by adoption acquire the status of legitimate child of the other spouse."


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in 1946 and currently lives in Tbilisi.

In the course of a police operation conducted on 15 September 1997 in the village of Becho, Mestia District, the applicant’s house, which happened to be close to the scene, was accidentally burned down together with the adjacent farm buildings. The house had been the applicant’s place of residence prior to the incident.

On 15 July 1999 the applicant sued the Ministry of the Interior and the Ministry of Finance for the damage done and, in a judgment of 27 December 2000, the Krtsanisi-Mtatsminda District Court in Tbilisi ordered the respondent authorities to pay him 60,000 Georgian laris (GEL) (26,646 euros (EUR)) in compensation for the destruction of his property (“the judgment debt”). The operative part of the judgment indicated that the payment should be made from the State Budget for 2001.

The judgment of 27 December 2000 was upheld in full by the Tbilisi Regional Court and the Supreme Court of Georgia on 21 March and 2 October 2002, respectively, and became binding on the latter date.

On 19 November 2002 the Krtsanisi-Mtatsminda District Court issued the respondent authorities with a writ of execution which reiterated the obligation to discharge the judgment debt from the 2001 State Budget. The authorities remained inactive.

Subsequent to the applicant’s complaint, on 8 January 2003 the Enforcement Department of the Ministry of Justice (“the Enforcement Department”) invited the respondent authorities to discharge the judgment debt of their own accord within the following three months, on pain of forcible enforcement measures. The allotted time expired without the judgment debt having been paid, but no measures followed.

On 11 October 2005 the Enforcement Department issued the National Bank of Georgia with an order to pay the judgment debt. However, as that order indicated the wrong amount, the National Bank sent it back on 25 November 2005 unenforced.

On 1 December 2006 the applicant asked the Ministry of Finance for news of progress in the enforcement proceedings.

On 13 December 2006 the Ministry of Finance replied that it was unable to discharge the judgment debt, as the Ministry of the Interior had failed to do so of its own accord.

In a decision of 19 December 2006, at the applicant’s request, the Tbilisi City Court removed from the judgment of 27 December 2000, as an objectively unenforceable condition, the indication that the debt should be paid from the 2001 State Budget. That decision became binding on 28 May 2007, and on 4 September 2007 the City Court issued a writ for its enforcement.

On 2 April 2008, on the basis of the previous enforcement writ of 19 November 2002, the Enforcement Department requested the National Bank of Georgia to disburse the judgment debt. The latter authority did so on 4 April 2008, and three days later the applicant retrieved the debt in full.

The relevant legal provisions concerning the conduct of enforcement proceedings against a public agency funded from the State Budget were cited in the case of Amat-G Ltd and Mebaghishvili v. Georgia (no. 2507/03, §§ 25-27, ECHR 2005VIII).


Violation of Art. 3;Violation of Art. 5-4;No violation of Art. 6-3-c;No violation of Art. 6-3-b;Non-pecuniary damage - financial award

The applicant was born in 1953 and lives in Kaliningrad.

On 21 July 1998 the investigating authorities of the District Department of Internal Affairs of Kaliningrad opened a criminal investigation based on a complaint by Mr. S who alleged that the applicant had shot at his windows with a hunting rifle in revenge for an unpaid debt. Following Mr. S’s second complaint on 14 August 1998 concerning a similar incident, a second investigation was opened and joined with the first.

It appears that these investigations led to the applicant’s arrest on 21 September 1998. Following interrogations, he was detained on 22 September 1998 under suspicion of having committed a crime under Sections 167 § 2 and 213 § 3 of the Criminal Code of the Russian Federation which concerns intentional destruction of, or damage to, property and hooliganism and which carries a sentence of up to seven years’ imprisonment.

The following day, 23 September 1998, the applicant was released under his written undertaking not to leave the town as a measure of restraint.

On 1 December 1998 the prosecution authorities forwarded the case-file and an indictment to the Moskovskiy District Court of Kaliningrad for examination and trial. However, on 24 March 1999 the court remitted the case for further investigations. During these subsequent investigations the authorities issued, on 7 July 1999, an arrest warrant against the applicant as he had on a number of occasions failed to attend for interrogation. The applicant was arrested on 27 July 1999 and remained in detention until 1 October 1999 when the District Court ordered his release, finding the alleged risk of the applicant absconding unsubstantiated.

In the meantime, on 2 August 1999, the resumed investigations had been brought to an end and the case-file sent, once more, to the District Court for adjudication. However, on 30 September 1999 the District Court ordered further investigation to be carried out. In the course of this investigation, on 4 April 2000, the authorities anew ordered the applicant’s arrest and detention on the basis that the applicant had changed his residence, failed to appear for interrogations and hampered the proceedings. On 17 April 2000 an arrest warrant was issued and on 26 July 2000 the applicant was arrested and detained on remand in the Remand Centre IZ39/1 of Kaliningrad.

According to the report issued by the Chief Prison Directorate of the Ministry of Justice, submitted by the Government, the applicant stayed at the Remand Centre IZ-39/1 from 26 July 2000 until 7 March 2001 and from 16 May 2001 until 18 July 2001. He was kept in six different cells described as follows: cell no. 67 (21 m² of surface, 10 bunks, the sanitary conditions satisfactory); cell no. 97 (7.8 m² of surface, 6 bunks, the sanitary conditions satisfactory); cell no. 135 (25.1 m² of surface, 10 bunks, the sanitary conditions satisfactory); cell nos. 4/16, 4/8, 4/21 (13.8 m² of surface for each cell, 8 bunks, the sanitary conditions of each of the cells satisfactory). It appears from the report that the sanitary and technical conditions of the cells in which the applicant was held were monitored on a regular basis.

In accordance with Section 17 § 1.11 of the Federal Law on detention the applicant was allowed daily walks for not less than one hour.

According to a letter from the Head of the Medical Department of the Prison Directorate for the Kaliningrad Region, submitted by the Government, the applicant was on admission to the remand centre examined by the general practitioner, the dermatologist, the venerologist and the psychiatrist who found his health to be satisfactory. In the course of a check-up two days after his arrival, on 28 July 2000, post-tuberculosis changes in the upper lobe of the right lung were detected. During the detention the applicant did not make requests for medical assistance, no diseases were detected in the course of routine examination and his state of health was considered to be satisfactory.

Without disputing the size of the cells the applicant submitted that these were dirty and infected with cockroaches, bed-bugs and lice. The weekly inspection did nothing to remedy that. The cells were overcrowded, leaving about 1 square metre of surface per person. The detainees were obliged to sleep in turns and the applicant could wash only every 10 days. The windows were covered with steel shutters and let in very little light.

On 21 November 2000 the Criminal Chamber of the Kaliningrad Regional Court dismissed the applicant’s appeal against the ruling of the Moskovskiy District Court of Kaliningrad of 4 September 2000.

On 15 December 2000 the Moskovskiy District Court of Kaliningrad rejected the applicant’s application of 30 July 2000 for release pending trial.

On 19 August 2002 a Deputy President of the Supreme Court made an application for supervisory review of the decisions of the Moskovskiy District Court of 4 September and 15 December 2000. The Deputy President alleged that these decisions had been unlawful as far as they had effectively deprived the applicant of his right to obtain a judicial review of his detention.

On 16 September 2002 the Presidium of the Kaliningrad Regional Court granted the application. It set aside the decisions of the Moskovskiy District Court of 4 September and 15 December 2000 and ordered a fresh examination of the applicant’s application for release. It appears that the applicant did not pursue the case following which the proceedings were terminated.

On 21 August 2000, following the completion of the investigation ordered by the District Court on 30 September 1999 (see § 12 above), the public prosecutor prepared the indictment and submitted the case to the District Court for adjudication. The indictment referred to Sections 330 § 2 and 213 § 3 of the Criminal Code. On 4 September 2000 the court decided that the applicant should be given time to study the case-file and set the trial to commence on 9 October 2000. Due to the seriousness of the charges against the applicant the court appointed a defence counsel. It appears that the applicant refused the appointment of eight different defence counsels and eventually the court decided to entrust the applicant’s defence to Mr M. as the applicant had not suggested any other lawyers. During the trial, on 12 October 2000, the applicant requested that he be represented by his mother and his sister. On 13 October 2000 the court rejected the applicant’s request referring in particular to the fact that the case was complex and that therefore special legal knowledge and professional experience, which his mother and sister did not have, were required. A subsequent request of 19 November 2000 to be represented by his relatives was likewise rejected.

By judgment of 25 December 2000 the Moskovskiy District Court found the applicant guilty of the charges against him and sentenced him to six years’ imprisonment. The applicant appealed against the judgment, complaining also that he had not been allowed to choose his legal assistance.

On 27 February 2001 the Kaliningrad Regional Court upheld the judgment. On 28 February 2002 the Presidium of the Kaliningrad Regional Court lowered the sentence to four years’ imprisonment.

On an unspecified date the applicant filed a supervisory complaint in order to review the domestic courts’ judgment in his case. On 6 May 2004 the judicial panel on criminal cases of the Supreme Court rendered its judgment which in part found in the applicant’s favour. The Supreme Court quashed the domestic courts’ judgments in so far as they related to the conviction under Section 213 § 3 of the Criminal Code, whereas the remainder of the conviction was upheld. The applicant has been released from prison having served the sentence related to the remaining conviction.

Code of Criminal Procedure of 1960, in force at the material time:

“... The accused may ... appeal to court against unlawfulness and groundlessness of detention...”

“May be admitted as defenders: an advocate authorised by a bar office; a representative of a trade union or of another public association...

Where authorized by a court decision or ruling, close relatives, legal representatives and other persons may be admitted as defenders.”

“A defender’s participation is obligatory in proceedings:

in which a public or private prosecutor is involved...”

“... When a prison administration receives a detainee’s [appeal to a court against pre-trial detention], it must pass the [appeal] to the relevant court immediately, and, at any rate, not later than 24 hours after its receipt, having informed a public prosecutor...

If the appeal has been lodged via the prison administration, the prosecutor must send [the documents confirming the lawfulness and validity of the detention as a measure of restraint] to the court within 24 hours after receipt of the prison administration’s notification that the person concerned has lodged the appeal...”

“... A judge must review the lawfulness of the detention ... within three days after receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint...”

Constitution of the Russian Federation of 1993:

“Everyone has the right to professional legal aid. In cases established by law, legal aid is granted free...”