The first applicant, Ms Gabriele Weber, is a German national. The second applicant, Mr Cesar Richard Saravia, is a Uruguayan national. Both applicants live in Montevideo (Uruguay). They were represented before the Court by Mr W. Kaleck, a lawyer practising in Berlin, and by Mr E. Schwan, a university professor in Berlin. The German Government (“the Government”) were represented by their Agents, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

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

The case concerns several provisions of the Law of 13 August 1968 on restrictions on the secrecy of mail, post and telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also called “the G 10 Act”, as modified by the Fight Against Crime Act of 28 October 1994 (Verbrechensbekämpfungsgesetz).

It notably concerns the extension of the powers of the Federal Intelligence Service (Bundesnachrichtendienst) with regard to the recording of telecommunications in the course of so-called strategic monitoring, as well as the use (Verwertung) of personal data obtained thereby and their transmission to other authorities. Strategic monitoring is aimed at collecting information by intercepting telecommunications in order to identify and avert serious dangers facing the Federal Republic of Germany, such as an armed attack on its territory or the commission of international terrorist attacks and certain other serious offences (see “Relevant domestic law and practice” below, paragraphs 18 et seq.). In contrast, so-called individual monitoring, that is, the interception of telecommunications of specific persons, serves to avert or investigate certain grave offences which the persons monitored are suspected of planning or having committed.

The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the Federal Intelligence Service, notably armaments, preparations for war, drug and arms trafficking and money laundering. In order to carry out her investigations, she regularly travels to different countries in Europe and South and Central America, where she also meets the persons she wants to interview.

The second applicant, an employee of Montevideo City Council, submitted that he took messages for the first applicant when she was on assignments, both from her telephone and from his own telephone. He then transmitted these messages to wherever she was.

On 19 November 1995 the applicants lodged a constitutional complaint with the Federal Constitutional Court.

They alleged that certain provisions of the Fight Against Crime Act amending the G 10 Act disregarded their fundamental rights, notably the right to secrecy of telecommunications (Article 10 of the Basic Law), the right to self-determination in the sphere of information (Articles 2 § 1 and 1 § 1 of the Basic Law), freedom of the press (Article 5 § 1 of the Basic Law) and the right to effective recourse to the courts (Article 19 § 4 of the Basic Law).

In the applicants’ submission, technological progress had made it possible to intercept telecommunications everywhere in the world and to collect personal data. Numerous telecommunications could be monitored, in the absence of any concrete suspicions, with the aid of catchwords which remained secret. Strategic monitoring could then be used in respect of individuals, preventing the press from carrying out effective investigations into sensitive areas covered by the Act.

The Federal Constitutional Court, having held a hearing, delivered its judgment on 14 July 1999 (running to 125 pages). It found that the constitutional complaint lodged by the second applicant was inadmissible. The court noted that a constitutional complaint could be lodged directly against a statute if the person concerned could not know whether there had actually been an implementing measure applying the statute to him or her. The complainant, however, had to substantiate sufficiently his or her argument that his or her fundamental rights were likely to be breached by measures taken on the basis of the impugned statute.

The Federal Constitutional Court noted that it was irrelevant that the applicants did not reside in Germany, because the impugned provisions were aimed at monitoring international telecommunications. However, it held that, unlike the first applicant, the second applicant had failed to substantiate sufficiently his claim that his rights under the Basic Law were likely to be interfered with by measures based on the impugned provisions of the amended G 10 Act. In the absence of any further details, the mere fact that he dealt with the first applicant’s telecommunications in her absence was not sufficient to demonstrate this.

Partly allowing the first applicant’s constitutional complaint, the Federal Constitutional Court held that certain provisions of the Fight Against Crime Act were incompatible or only partly compatible with the principles laid down in the Basic Law (see “Relevant domestic law and practice” below, paragraphs 18 et seq.). In particular, section 3(1), first and second sentence, point 5, section 3(3), (4), (5), first sentence, (7), first sentence, (8), second sentence, and section 9(2), third sentence, of the Act were found to be incompatible with Article 10, Article 5 or Article 19 § 4 of the Basic Law (see paragraphs 26 et seq. below). It fixed a deadline of 30 June 2001 for the legislature to bring the situation into line with the Constitution.

On 29 June 2001 a new version of the G 10 Act came into force (BGBl. I 2001, pp. 1254, 2298) and the G 10 Act in its version as amended by the Fight Against Crime Act of 28 October 1994 ceased to apply.

The Basic Law provides for the following fundamental rights, in so far as relevant:

“(1) Everyone shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to obtain freely information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.

(2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour.”

“(1) Secrecy of mail, post and telecommunications shall be inviolable.

(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives.”

(4) If a person’s rights are violated by a public authority, he may have recourse to the courts. If no other jurisdiction has been established, the civil courts shall have jurisdiction. Article 10 § 2, second sentence, remains unaffected by this paragraph.”

The separation of legislative powers between the Federation and the Länder is laid down in Articles 70 et seq. of the Basic Law. Pursuant to Article 70 § 1 the Länder, in principle, have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Such legislative power is conferred on the Federation, in particular, in Article 73:

“The Federation shall have exclusive power to legislate [ausschließliche Gesetzgebungskompetenz] on:

foreign affairs and defence, including the protection of civilians;

Being the statute envisaged by Article 10 § 2, second sentence, of the Basic Law (cited above, paragraph 14), which provides for exceptions to the general rule of inviolability of telecommunications, the Law of 13 August 1968 on restrictions on the secrecy of mail, post and telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also called “the G 10 Act”, lays down the conditions under which the authorities may introduce the restrictions referred to in that provision of the Basic Law.

In a judgment delivered on 6 September 1978 (Klass and Others v. Germany, Series A no. 28), the Court held that the provisions of the G 10 Act of 13 August 1968, in its original version and as regards the monitoring of individuals, did not contravene the Convention. It found that the German legislature was justified in considering that the interference resulting from the legislation in question with the rights guaranteed by Article 8 § 1 of the Convention was necessary in a democratic society within the meaning of paragraph 2 of that Article. The Court also considered that the remedies provided for in the G 10 Act complied with the requirements of Article 13 of the Convention.

The Federal Law of 28 October 1994 on the fight against crime amended the G 10 Act. Among other things, it extended the range of subjects in respect of which “strategic monitoring” (as opposed to monitoring of individuals) could be carried out. In the original version of the G 10 Act, such monitoring was permitted only in order to detect and avert the danger of an armed attack on the Federal Republic of Germany and at that time was therefore merely focused on the States belonging to the Warsaw Pact. Furthermore, owing to technical progress it had become possible to identify the telephone connections (Anschlüsse) involved in an intercepted telecommunication.

Pursuant to the provisions of the G 10 Act which either remained unchanged by the Fight Against Crime Act or were not contested in the present case, the Offices for the Protection of the Constitution of both the Federation and the Länder (Verfassungsschutzbehörden des Bundes und der Länder), the Military Counter-Intelligence Service (Militärischer Abschirmdienst) and the Federal Intelligence Service were entitled to monitor and record telecommunications within their own sphere of activities (section 1(1) of the G 10 Act). Monitoring of individuals was limited to serious threats to national security (for example, high treason or threatening the democratic order) and was permissible only if less intrusive means of investigation had no prospect of success or were considerably more difficult (section 2 of the G 10 Act). As to strategic monitoring, only the head of the Federal Intelligence Service or his deputy were entitled to lodge an application for a surveillance order. The application had to be lodged in writing, had to describe and give reasons for the nature, scope and duration of the measure and had to explain that other means of carrying out the investigations either had no prospect of success or were considerably more difficult (section 4 of the G 10 Act).

Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister assigned by the Chancellor or the highest authority of the Länder (in respect of applications by their Offices for the Protection of the Constitution). The order was made in writing and specified the exact nature, scope and duration of the monitoring measure. The duration of the measure was to be limited to a maximum of three months; the execution of the measure could be prolonged for a maximum of three months at a time as long as the statutory conditions for the order were met (see section 5 of the G 10 Act).

The monitoring measures authorised were to be carried out under the responsibility of the requesting authority and under the supervision of a staff member qualified to hold judicial office. Monitoring had to be discontinued immediately if the conditions of the monitoring order were no longer met or the measure was no longer necessary (section 7 of the G 10 Act).

Section 3(4) provided that the Federal Intelligence Service was to verify whether the personal data obtained by measures taken under subsection 1 of section 3 were necessary to pursue the aims laid down in that subsection.

The Federal Constitutional Court found that in its present version section 3(4) was incompatible with Article 10 and Article 5 § 1, second sentence, of the Basic Law. It found that the provision did not contain sufficient safeguards to guarantee that personal data which were not destroyed or deleted as being unnecessary for the purposes of the Federal Intelligence Service would be used only for the purposes which had justified their collection. Furthermore, the provision also failed to comply with the identification requirements flowing from Article 10. In addition, there were insufficient safeguards to guarantee that the Federal Intelligence Service would only use such data as were relevant for the dangers listed in section 3(1). Such safeguards should also ensure that the Federal Intelligence Service would take into account the important concerns of nondisclosure of sources and confidentiality of editorial work as protected by the freedom of the press under Article 5 § 1 of the Basic Law. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(4) was to be applied only if the data were specially marked and were not used for purposes other than those listed in section 3(1).

Monitoring measures were supervised by two bodies, the Parliamentary Supervisory Board and the so-called G 10 Commission (see section 9 of the G 10 Act). At the relevant time, the Parliamentary Supervisory Board consisted of nine members of parliament, including representatives of the opposition. The Federal Minister authorising monitoring measures had to inform the board at least every six months about the implementation of the G 10 Act (section 9(1) of the G 10 Act).

The G 10 Commission consisted of a president who was qualified to hold judicial office and three additional members who were appointed by the Parliamentary Supervisory Board for the duration of one legislative term and who were independent in the exercise of their functions (see section 9(4) of the G 10 Act). The Federal Minister authorising surveillance measures had to inform the G 10 Commission monthly about planned monitoring measures and had to obtain its consent (section 9(2) of the G 10 Act; see paragraphs 55-58 below). Moreover, the Federal Minister had to inform the Commission whether or not persons concerned by such measures had been notified of them. If the Commission decided that notification was necessary, the Federal Minister had to arrange for it to be given without undue delay (section 9(3) of the G 10 Act).

Section 1(1), points 1 and 2, in conjunction with section 3(1), first and second sentence, authorised the monitoring of wireless telecommunications, that is, telecommunications which were not effected via fixed telephone lines, but, for example, via satellite connections (Überwachung nicht leitungsgebundener Fernmeldeverkehrsbeziehungen).

Section 3(1), first sentence, provided that restrictions on the secrecy of telecommunications could be ordered by the competent Federal Minister with the approval of the Parliamentary Supervisory Board, on an application by the Federal Intelligence Service, for international wireless telecommunications. Under the second sentence of that provision, such restrictions were permitted only in order to collect information about which knowledge was necessary for the timely identification and avoidance of certain dangers, namely:

(1) an armed attack on the Federal Republic of Germany;

(2) the commission of international terrorist attacks in the Federal Republic of Germany;

(3) international arms trafficking within the meaning of the Control of Weapons of War Act and prohibited external trade in goods, data-processing programmes and technologies in cases of considerable importance;

(4) the illegal importation of drugs in substantial quantities into the territory of the Federal Republic of Germany;

(5) the counterfeiting of money (Geldfälschung) committed abroad;

(6) the laundering of money in the context of the acts listed under points 3 to 5.

Pursuant to section 3(1), third sentence, restrictions on the secrecy of telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in order to identify and avert the dangers listed in section 3(1), second sentence, point 1.

The Federal Constitutional Court found that, pursuant to Article 73, point 1, of the Basic Law (see paragraph 15 above), the federal legislature had exclusive legislative power to regulate the matters listed in section 3(1) of the amended G 10 Act, as they concerned foreign affairs.

However, the Federal Constitutional Court took the view that allowing the monitoring of telecommunications in order to prevent the counterfeiting of money abroad, in accordance with point 5 of section 3(1) in its present wording, constituted a disproportionate interference with the secrecy of telecommunications as protected by Article 10 of the Basic Law. It argued that this danger as such could not be considered to be as serious as an armed attack on the German State or any of the other dangers listed in section 3(1). The counterfeiting of money should therefore be included in section 3(1) only if it was restricted to cases in which it threatened the monetary stability of the Federal Republic of Germany. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(1), second sentence, point 5, was to be applied only if the counterfeiting of money abroad threatened monetary stability in Germany.

In practice, wireless telecommunications (as opposed to telecommunications via fixed telephone lines) comprised some ten per cent of the total volume of telecommunications at the relevant time. However, given technical progress, the volume of such telecommunications was expected to rise in the future.

Technically, telecommunications via satellite links (with the satellites being positioned some 36,000 km above the equator) could be intercepted from sites in Germany if the signal reflected by the satellite (the “downlink”) covered the area in which the station was located. The area covered by the satellite beam depended on the satellite technology used. Whereas signals downlinked by older satellites often “beamed” across onethird of the earth’s surface, more modern satellites could concentrate their downlink on smaller areas. Signals could be intercepted everywhere within the area covered by the beam. International radio relay links (Richtfunkstrecken) could be intercepted from interception sites on German soil only if the radio relay transmission was effected within close proximity of these sites.

Pursuant to section 3(2), the Federal Intelligence Service was only authorised to carry out monitoring measures with the aid of catchwords (Suchbegriffe) which served, and were suitable for, the investigation of the dangers described in the monitoring order (first sentence). The second sentence of that provision prohibited the catchwords from containing distinguishing features (Identifizierungsmerkmale) allowing the interception of specific telecommunications. However, this rule did not apply to telephone connections situated abroad if it could be ruled out that connections concerning German nationals or German companies were deliberately being monitored (third sentence). The catchwords had to be listed in the monitoring order (fourth sentence). The execution of the monitoring process as such had to be recorded in minutes by technical means and was subject to supervision by the G 10 Commission (fifth sentence). The data contained in these minutes could be used only for the purposes of reviewing data protection and had to be deleted at the end of the year following their recording (sixth and seventh sentences).

Section 3(3), first sentence, provided that personal data (personenbezogene Daten) obtained through the interception of telecommunications could only serve the prevention, investigation and prosecution of offences listed in section 2 of the Act and in certain other provisions, notably of the Criminal Code. These offences included, in particular, high treason against the peace or security of the State, crimes threatening the democratic order, the external security of the State or the security of the allied forces based in the Federal Republic of Germany, the formation of terrorist associations, murder, manslaughter, robbery, the forgery of payment cards or cheques, fraud relating to economic subsidies, infiltration of foreigners and the production, importation and trafficking of illegal drugs. Personal data thus obtained could be used only if the person concerned was either subject to individual monitoring under section 2 of the Act or if there were factual indications (tatsächliche Anhaltspunkte) for suspecting a person of planning, committing or having committed one of the offences mentioned above. This catalogue of offences for the investigation of which knowledge obtained by strategic monitoring could be used was considerably enlarged by the amendment of the G 10 Act in issue.

Pursuant to section 3(3), second sentence, the obligation on the Federal Intelligence Service to inform the Federal Government of its findings obtained by strategic monitoring, including personal data, under section 12 of the Federal Intelligence Service Act remained unaffected.

The Federal Constitutional Court found that section 3(3), second sentence, in its present version, failed to comply with Articles 10 and 5 § 1, second sentence, of the Basic Law. The provision did not contain sufficient safeguards to guarantee that the duty of the Federal Intelligence Service to report to the Federal Government, which included the transmission of personal data, would be performed solely for the purposes which had justified the collection of the data (Zweckbindung). Furthermore, the provision failed to comply with the identification requirements (Kennzeichnungspflicht) flowing from Article 10. Ensuring that personal data were not used for illegal purposes was possible only if it remained discernible that the data concerned had been obtained by means of an interference with the secrecy of telecommunications. Likewise, there were no safeguards ensuring that the Federal Government did not keep or use the personal data transmitted to them for purposes other than those listed in section 3(1). The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(3), second sentence, was to be applied only if the personal data contained in the report to the Federal Government were marked and remained bound up with the purposes which had justified their collection.

Section 3(5), first sentence, provided that the data obtained in the circumstances described in subsection 1 of section 3 had to be transmitted to the Offices for the Protection of the Constitution of the Federation and of the Länder, to the Military Counter-Intelligence Service, to the Customs Investigation Office (Zollkriminalamt), to the public prosecutors’ offices and to certain police services for the purposes laid down in subsection 3 of section 3 in so far as this was necessary for the recipient authorities to carry out their duties.

Pursuant to section 3(5), second sentence, the decision to transmit data was to be taken by a staff member who was qualified to hold judicial office.

The Federal Constitutional Court found that the federal legislature’s exclusive legislative power under Article 73, point 1, of the Basic Law (see paragraph 15 above) to regulate matters concerning foreign affairs also covered the transmission to other authorities of information obtained by the Federal Intelligence Service in the performance of its tasks as provided for in section 3(5) of the amended G 10 Act. The federal legislature merely had to provide guarantees that the further use of the data did not disregard the primary function of the monitoring measures.

The Federal Constitutional Court further found that section 3(5) was not fully compatible with Articles 10 and 5 § 1, second sentence, of the Basic Law. It held that Article 10 did not prohibit the transmission to the authorities listed in section 3(5), first sentence, of information which was relevant for the prevention and investigation of criminal offences. This finding was not called into question by the fact that the initial collection of data by means of the random interception of telecommunications in order to prevent or investigate offences, without any prior suspicion of a specific offence being planned or having been committed, would breach Article 10.

However, in the opinion of the Federal Constitutional Court, the transmission of data under section 3(5), first sentence, in its present version, disproportionately interfered with the right to secrecy of telecommunications and freedom of the press. The transmission of data constituted a further serious interference with the secrecy of telecommunications, because criminal investigations could be instituted against persons concerned by the interception of telecommunications which had been carried out without any prior suspicion of an offence. Consequently, such transmission was proportionate only if it served the protection of an important legal interest and if there was a sufficient factual basis for the suspicion that criminal offences were being planned or had been committed.

Section 3(5), first sentence, read in conjunction with section 3(3), did not fully comply with these requirements.

The catalogue of offences in respect of which the transmission of data was permitted also included less serious offences such as fraud relating to economic subsidies. Moreover, the impugned provision authorised the transmission of data in cases in which there were merely factual indications for the suspicion that one of the offences listed in that provision had been committed or was even only being planned. The transmission of data for the investigation of an offence which had already been committed was to be authorised only if the factual basis for the transmission was the same as that required by Article 100a of the Code of Criminal Procedure. Article 100a provided, however, that interferences with the secrecy of telecommunications in order to investigate crimes required the presence of specific facts – as opposed to mere factual indications – warranting the suspicion that the person concerned had committed an offence listed in that provision. As regards the transmission of data for the prevention of crime, the combination of the following elements led to a disproportionate interference with the fundamental rights affected: the fact that mere factual indications were sufficient, that the mere planning of an offence could suffice, and that transmission could also be justified in the case of less serious offences.

The Federal Constitutional Court further found that section 3(5), second sentence, was likewise not compatible with the right to secrecy of telecommunications. It considered it unnecessary to entrust the decision on transmission of data to an independent body. However, there was no requirement to record in minutes the transmission or the destruction or deletion of the data. This rendered effective supervision of the transmission of the data impossible.

The Federal Constitutional Court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(5), first sentence, could be applied provided that data were only transmitted if specific facts aroused the suspicion that offences listed in section 3(3) had been committed. Furthermore, the transmission had to be recorded in minutes.

Section 3(6) and (7) and section 7(4) regulated the procedure for destruction of the data obtained by strategic monitoring.

Section 3(6) provided that if the data obtained in the circumstances set out in section 3(1) were no longer necessary to achieve the purposes listed in that provision and if they did not have to be transmitted to other authorities pursuant to section 3(5), they had to be destroyed and deleted from the files under the supervision of a staff member who was qualified to hold judicial office (first sentence). The destruction and deletion had to be recorded in minutes (second sentence). It was necessary to verify every six months whether the conditions for destruction or deletion were met (third sentence).

Section 3(7) provided that the recipient authorities were likewise to verify whether they needed the data transmitted to them in order to achieve the aims laid down in section 3(3) (first sentence). If this was not the case, they also had to destroy the data immediately (second sentence). The destruction could be dispensed with if separation of the data from other information which was necessary for the fulfilment of the tasks set was impossible or could only be carried out through unjustifiable effort; the use of such data was prohibited (third sentence).

Section 7(4), first sentence, provided that personal data obtained by means of monitoring measures pursuant to sections 2 and 3 about a person involved in the telecommunications monitored had to be destroyed if they were no longer necessary for the purposes listed in the Act and could no longer be of significance for an examination by the courts of the legality of the measure. The destruction had to be carried out under the supervision of a person qualified to hold judicial office. Pursuant to section 7(4), second sentence, the destruction had to be recorded in minutes. It was necessary to examine every six months whether personal data obtained could be destroyed (third sentence). Access to data which were merely kept for the purpose of judicial review of the monitoring measure had to be blocked (fourth sentence). They could only be used for that purpose (fifth sentence).

The Federal Constitutional Court found that the provisions on the destruction of data laid down in section 3(6) and (7), second and third sentences, and section 7(4) complied with Article 19 § 4 of the Basic Law. The provisions had, however, to be interpreted so as not to frustrate judicial review of monitoring measures. This meant that data could only be destroyed six months after the person concerned had been notified that monitoring measures had been taken.

However, the Federal Constitutional Court considered section 3(7) to be incompatible with Article 10 of the Basic Law. It was necessary for the recipient authorities to mark the data as having been obtained by means of the interception of telecommunications. Otherwise, following verification that the information obtained was relevant for the tasks of the authorities concerned, personal data could be saved in a manner which made it impossible to identify them as resulting from the strategic monitoring of telecommunications. The restrictions on the permitted use of these data pursuant to section 3(3) would thereby be undermined. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(7) could be applied provided that the data were marked as described.

Section 3(8), first sentence, provided that the Federal Intelligence Service or the recipient authorities had to inform the persons monitored about the restriction imposed on the secrecy of telecommunications as soon as such notification could occur without jeopardising the achievement of the aim pursued by the restriction and the use of the data. Pursuant to section 3(8), second sentence, no notification was given if the data obtained had been destroyed within three months after their receipt by the Federal Intelligence Service or the recipient authorities.

The Federal Constitutional Court considered the restriction on the duty of notification as such, as laid down in section 3(8), first sentence, to be compatible with the Basic Law. By virtue of Article 10 § 2, first and second sentences, taken in conjunction with Article 19 § 4, third sentence, of the Basic Law, no notification had to be given if this served to protect the German State or its democratic order or if disclosure of the information obtained or the methods used to this end threatened the fulfilment of the tasks of the authorities concerned.

However, section 3(8), second sentence, violated Articles 10 and 19 § 4 of the Basic Law. There were no safeguards precluding the data from being used before their destruction within the three-month period. The mere destruction of the data within that period alone did not, however, justify dispensing with the duty of notification irrespective of the prior use of the data.

The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(8) could be applied provided that the data had not been used before their destruction.

Section 9(2) provided for supervision of the monitoring measures by an independent body, the so-called G 10 Commission.

Pursuant to section 9(2), first sentence, the competent Federal Minister was to inform the G 10 Commission on a monthly basis about the measures he had ordered to restrict the secrecy of telecommunications before such measures were implemented.

The Federal Minister could, however, order the execution of the measure before informing the G 10 Commission if there was a risk that a delay might frustrate the purpose of the measure (second sentence of section 9(2)). The Commission gave a decision of its own motion or further to complaints contesting the legality and necessity of monitoring measures (third sentence). Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately revoked by the Minister (fourth sentence).

The Federal Constitutional Court considered that section 9(2), in its present wording, was incompatible with Article 10 of the Basic Law. It failed to provide in a sufficiently clear manner that supervision by the G 10 Commission covered the whole process of obtaining and using the data (including measures taken under section 3(3), (5), (6) and (8)), and not only the monitoring orders by the competent Minister. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, the provision in question was only to be applied if the Commission’s supervisory powers extended to measures taken under section 3(3), (5), (6) and (8).

Section 9(6) excluded the possibility of judicial review in the case of monitoring measures ordered and executed to prevent an armed attack on the territory of the Federal Republic of Germany within the meaning of section 3(1), second sentence, point 1.

Pursuant to section 5(5) of the G 10 Act, which remained unchanged in substance, the person concerned had to be notified of measures restricting the secrecy of telecommunications as soon as these measures were discontinued, provided that such notification did not jeopardise the purpose of the restriction (first and second sentence). After notification, the person concerned could have recourse to the courts; section 9(6) did not apply (third sentence).

The Federal Constitutional Court found that section 9(6) constituted a justified restriction on the secrecy of telecommunications in accordance with Article 10 § 2, second sentence, of the Basic Law. Moreover, a person concerned by a monitoring measure could have recourse to the courts following notification of the restriction under section 5(5), third sentence, of the G 10 Act. The same applied if the person concerned had learned of the monitoring measure by another means, without having been notified.

A new version of the G 10 Act, which takes into account the principles laid down by the Federal Constitutional Court in its judgment of 14 July 1999, came into force on 26 June 2001.


Violation of Article 6 - Right to a fair trial

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

The applicant is a limited liability company, founded in 2006, with its seat in Budapest.

On 10 August 1992 its predecessor (see paragraph 1 above) requested the Budapest Regional Court to issue an order for payment against another company.

The court ordered the respondent to make a payment of 61,369 Hungarian forints (approximately 250 euros (EUR)). Since the latter contested the order, on 5 April 1993 the proceedings became litigation.

After having held three hearings, the Regional Court found for the plaintiff in April 1995. On appeal, the Supreme Court quashed this decision in October 1996 and remitted the case to the first-instance court.

Between 6 February 1998 and 13 July 2003 the proceedings were stayed, pending the plaintiff’s identifying the respondent’s legal successor. After the latter had finally entered the proceedings, a procedural dispute evolved, at the end of which, apparently in February 2006, the Regional Court noted that, since the original respondent had ceased to exist on 1 April 1993, the proceedings had been interrupted on that date. Thus, all the actions of the parties and all the decisions delivered by the courts after that date were invalid.

Eventually, in November 2006 the Regional Court ordered the resumption of the proceedings and transferred the case to the Pest Central District Court, which had acquired jurisdiction to hear the case due to an amendment to the Code of Civil Procedure.

On 20 February 2007 the District Court allowed the applicant company to replace the original plaintiff.

On 5 December 2007 the District Court found for the applicant company. None of the parties appealed and the decision became final on 22 January 2008.


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1955 and lives in the town of Kremenchug, Ukraine.

At the material time the applicant worked as an accountant at the Cherkasytransgas State company.

In May 1998 the authorities revealed a shortfall of 70,000 Ukrainian hryvnyas (UAH) in the Cherkasytransgas accounts. On 30 November 1998 the local police instituted criminal proceedings against the applicant for embezzlement of State funds. On 20 January 1999 criminal proceedings for forgery and negligence were also instituted.

On 26 January 1999 criminal proceedings against M. were instituted in connection with the same episode of embezzlement. On 1 April 1999 criminal proceedings against the applicant and M. were joined.

On 21 September 1999 the applicant gave a written undertaking not to abscond.

The criminal proceedings against M. were terminated on 22 October 1999.

On 1 December 1999 the applicant's case was sent to the court.

On 18 April 2000 the Kremenchug Court found the applicant guilty of embezzlement of State funds and sentenced her to ten years' imprisonment. The court also ordered confiscation of any property belonging to the applicant.

On the same day the applicant was imprisoned.

On 7 June 2000 the Poltava Regional Court (since June 2001 the Poltava Regional Court of Appeal) quashed this judgment and remitted the case for additional investigation.

On 15 August 2000 the applicant was released.

In the course of the investigation several expert reports on handwriting, accountancy and technical criminal questions were submitted.

By 11 January 2001 the additional investigation was completed and the case was transferred to the court.

On 3 December 2003 the Kremenchug Court found the applicant guilty of embezzlement and sentenced her to five years' imprisonment. The court also disqualified the applicant from holding positions of financial responsibility for three years and ordered confiscation of any property belonging to her.

On 12 March 2004 the Poltava Regional Court of Appeal reduced the applicant's sentence to three years and six months' imprisonment.

On 11 November 2004 the Supreme Court of Ukraine lifted the three year disqualification from holding positions of financial responsibility and upheld the remainder of the decisions of 3 December 2003 and 12 March 2004.

Subsequently the applicant requested the Supreme Court of Ukraine to review the case under the extraordinary review procedure but to no avail.


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

András Sajó;Guido Raimondi;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in 1945 and lives in İzmir. He is a journalist/columnist and author of a number of books.

On 24 December 2005 a daily newspaper Birgün published an article entitled “Stability” written by the applicant. The article read as follows:

“Stability ... has lost its dictionary meaning and become a sickening word. From the Prime Minister to ministers, all statesmen and politicians keep on repeating it... it is used as a protective shield for ‘robbery and profiteering’. By mentioning stability at every opportunity some want to pave the way for a ‘religion based regime’. In sum, ‘the key word of the moderate regime’ that the Prime Minister and his men have set their minds on is primarily ‘stability’.

In longing for a society that doesn’t speak up or interfere, the stability in command sacrifices justice, rights and freedoms, independence, equality, modernity, participation, pluralism and legal order. The rest is not needed, they settle for stability in government.

No one should be concerned. Stability is continuing. The Prime Minister and his men are continuing to be stable in creating their absurdities. They cannot reconcile modern law with the Islamic law imprinted in their brains at puberty. Stability is continuing. The Prime Minister and his men are continuing to be stable in swearing. Don’t be anxious.

Stability has a special meaning for the Prime Minister. The Prime Minister, forgetting which chair he occupies, shows on every occasion what a master denouncer he is. He who just yesterday was denouncing Turkey to the outside world for the headscarf of his wife and daughter, today makes up a crime and denounces those who support Prof. Dr Yücel Aşkın of the Van 100 yıl University. Outside he incites America for whom he is a civil servant and inside his civil servants ‘the prosecutors’.

Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected. The act of looking you in the eye and lying is considered as governing the country. The day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it. And when he reopened Aliağa State Hospital a year and a half after it had become operational or when he cut the ribbon once again many years later at Çankırı State Hospital neither he nor his men blushed.

Stability is continuing. The man is lying about matters from national income to inflation to the budget. Don’t believe it. Stability is continuing. From teachers to judges, from prosecutors to the police, from imams to doctors, the man uses these posts like the property of his own party. Don’t be angry.

In respect of the Minister of the Interior and the Minister of Foreign Affairs, who are both defendants in the proceedings concerning the embezzlement of 1 trillion liras from the Refah Party, the Minister of Justice, Cemil Çicek, states that they will be acquitted. This is not considered as interfering with the judiciary. Abdullah Gül says he thinks Orhan Pamuk will not be punished. This is not considered as interfering with the judiciary. But he is able to denounce at the meeting of TÜSİAD those requesting justice for rector Aşkın. He does not know what crime or punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old.

They think that we have forgotten the fact that even on the first day of the AKP government there were ministers accused of corruption. No one seems to care that those against whom criminal proceedings were brought for corruption, namely Kemal Unatıkan, Hilmi Güner, Binali Yıldırım, Abdullah Gül and Abdulkadir Aksu, entered the Assembly and subsequently became part of Government.

For whatever reason, the fact that Mr Recep Tayyip Erdoğan, who is Prime Minister in the AKP government, completes this painting is disregarded. For whatever reason, no one remembers the fact that [the Prime Minister] granted immunity to his nine friends from the Istanbul Municipality who were facing corruption charges by admitting them to the Assembly.

Didn’t the poor sons join their corrupt fathers?

Didn’t Bilal Erdoğan launder his wealth by giving the gold and dollars he received for his wedding and circumcision to his father-in-law? Weren’t the judges who gave this judgment promoted to higher courts?

Didn’t Erkan Yıldırım become rich when he bought a boat and started carrying passengers when his father Binali Yıldırım governed the transport sector?

Was is not Kemal Unakıtan who made sure that his son Ahmet Unakıtan’s chickens were fed four thousand tons of corn without any import duty being added? Would the list of Keman Unakıtan’s acts of corruption and rule-breaking fit on this page if I recited them?

Could Abdulkadir Aksu, the Minister of the Interior, give a reply to the allegations regarding Murat Aksu?

Don’t be anxious. Don’t be alarmed. Don’t get angry. Don’t believe it. Don’t be ambitious. The stability of today is your work of art. It is you who glorified stability. Now you may swell with pride.

No need to get anxious. Consistency is maintained in the way you understand it.

If consistency is to freeze in earthquake tents still covered in snow, if it is dead babies who could not reach their first year, childbirth without doctors, children without schools, schools without teachers, hospitals without doctors, the starvation of teachers, and the poverty of workers and civil servants, it will surely be maintained. Do not get anxious.

If consistency is Turkey becoming a drug haven once again, decreasing the age of using drugs to 11, 12-year-old prostitutes wandering in the streets, there is consistency in this country. Do not get distressed.

If consistency is the police, the gendarme, public officials, parliamentarians, ministers and mafia jerks taking to the roads there is consistent consistency in this country. Do not take offence.

Hear once more the shouting of the great poet, Nazım. Become aware of how you perceive consistency.

If consistency is ‘your farms, the valuables in your safes and your bank accounts’ or your allocations and your salaries, everybody knows that a consistent consistency is in power.

If consistency is dying from hunger by the side of the road or trembling in the cold like a dog or shivering from malaria in the summer, everybody sees that your consistent power is on the right road.

If consistency is American bases, American bombs, American navies, American missiles, all the world understands that your consistent consistency kneels and obeys.

If consistency is ‘sucking our scarlet blood in your factories’, we hail such consistency. If consistency is ‘the claws of your village lords’, maintain such consistency.

If your consistency is a ‘catechism’, we do not clasp our hands before such consistency or rub our faces on it. We oppose it. If your consistency is ‘the police truncheon’ we do not obey or give in to such consistency. We fight.

We do not appreciate your walls or your handcuffs; we do not give a damn about your consistency or commitment. Know that.”

On 2 January 2006 the Prime Minister of Turkey, Mr Recep Tayyip Erdoğan, brought a civil action for compensation against the applicant and the publishing company before the Ankara Civil Court of First Instance on the ground that certain remarks in the article above constituted an attack on his personal rights.

Before the first-instance court the applicant maintained, inter alia, that the aim of the article in question had not been to insult the Prime Minister but to criticise him. He submitted that his article had to be read in the context of the interviews given by the Prime Minister. In this connection, he submitted quotations from two interviews given by the Prime Minister and a press release from the Ministry of Justice. The content of these quotations referred notably to stability in Turkey and its positive effects, freedom of expression in Turkey, and the independence of the judiciary.

On 6 December 2006 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Mr Recep Tayyip Erdoğan in the amount of 5,000 Turkish liras (TRY), plus interest at the statutory rate applicable on the date of the publication of the article.

In its decision the court referred to the following passages:

“Stability has lost its dictionary meaning and become a sickening word. From Prime Minister to ministers to politicians the word is in everyone’s mouth... But there is no need to worry because stability is continuing. The Prime Minister and his men are continuing to be stable in creating their absurdities... The Prime Minister and his men are continuing to be stable in swearing...

Whether you like it or not stability is continuing. Every word that comes out of his mouth shocks, even if denied and corrected. The act of looking you in the eye and lying is considered as governing the country. The day he says there are no convictions under Article 301 of the Turkish Criminal Code two journalists are convicted under it. And when he reopened Aliağa State Hospital a year and a half after it became operational or when he cut the ribbon once again many years later at Çankırı State Hospital neither he nor his men blushed...

In respect of the Minister of the Interior and the Minister of Foreign Affairs, who are both defendants in the proceedings concerning the embezzlement of 1 trillion liras from the Refah Party, the Minister of Justice, Cemil Çicek, states that they will be acquitted. This is not considered as interfering with the judiciary. Abdullah Gül says he thinks Orhan Pamuk will not be punished. This is not considered as interfering with the judiciary. But he is able to denounce at the meeting of TÜSİADthose requesting justice for rector Aşkın. He does not know what crime or punishment are. He doesn’t read, he doesn’t learn. He is content with what entered his head at Imam Hatip School when he was 12-13 years old. ”

The court stated that the press had certain privileges so as to provide free and impartial news, to be able to discuss views and opinions and to enlighten the public. However, like all freedoms these privileges were not without limits. In this connection it noted that freedom of the press was limited by Article 28 of the Constitution, Article 24 of the Code of Obligations and Article 24 of the Civil Code in so far as it concerned the protection of honour and reputation of persons.

The court further considered, inter alia, that the press, while performing their duty to inform the public of issues and events of public interest, may have to criticise certain persons and institutions. In such circumstances two rights competed, namely the freedom of the press and personal rights, and one of the rights would require more protection than the other.

In this connection, the court considered, inter alia, that politicians should bear the burden of being subjected to heavy criticism and that they should particularly be more tolerant of virulent criticism if they occupy a higher function in the State. However, it held that this was not without limits. It considered that in its duty to inform, the press was limited in its criticism, even of politicians by, inter alia, the following: a) truthfulness b) public interest c) topicality d) interconnectedness between the thoughts, the subject and the words used.

The court opined that in the present case the remarks contained in the article went beyond the limits of acceptable criticism, there was no harmony between the form and the content, the content went beyond the subject of criticism, and that through the words used there was an unjustified attack on the plaintiff’s personal rights.

The applicant appealed.

On 7 February 2008 the Court of Cassation refused the applicant’s request for a hearing as the value of the case did not reach the threshold required under domestic law and upheld the judgment of the first-instance court. This decision was served on the applicant on 4 March 2008.

On 9 June 2008 the Court of Cassation refused to examine the merits of the applicant’s request for a rectification of its decision since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted.

On 6 May 2006 Birgün published another article written by the applicant entitled “Get well soon”. The article read as follows:

“I thought long and hard about whether to send this article to the newspaper advertisement service or to the editor in charge of articles. I guess a half-page newspaper advertisement wouldn’t have been bad. It was high time I put in an advertisement which said ‘read me’ in large print and which was of a modern design and under which I put my signature.

However, I needed some money for my dream to come true. But, I would not overcome this problem by putting a paid advertisement in the newspaper as both the euro and Turkish lira were taken out of circulation a long time ago in my newspaper, which had no boss. In the last analysis, I found out that I had to find some other solutions as the conditions for submitting an advertisement were not ripe. Since I was the child of a ‘country where solutions were inexhaustible’, I could overcome this problem by standing on my own feet. And I did. In recent years my colleagues have been asked whether their columns are their property. And now I decided to use my column for my private matters as ‘it is my property’. Maybe I would use the ‘get well’ advertisement as a step to improve private relations that would ‘lead to some good’.

The contrary could also be experienced. My innocence would be disregarded and my well-intentioned attempt could be misunderstood. It would be deemed as ‘a libellous and deriding statement against honour, pride and dignity which infringes personal rights and a severe, intolerable and unbearable insult’. Then I would feel sorry for not taking the opportunity to make a ‘get well visit’. I would regret not talking face to face, taking his five minutes by adding ‘take care’ to my ‘get well’ wish.

But I know for sure that I could never succeed in making such an appointment in spite of my journalistic experience. I am not exaggerating. I really could not. Because I would not, for instance, call ‘Mr Undersecretary’ the top civil servant who emphasised ‘the necessity of replacing the republic and the principles of secularism with integration with Islam’ and ask for an appointment in days like these where ‘tanks make their appearances in the streets and we feel an urgent need for unity and solidarity’.

One might ask then, if I could not call the press agent. My answer to them would be, in Kasımpaşa jargon, that ‘they are dead on their feet paying their hotel bill’. Moreover, I wouldn’t do that either. Because by my nature, I refuse to be rude to somebody all along.

Suppose that giving way to despair, I dialled the number. It would appear that there is no such office in the central organisation of the Prime Minister’s Office any more. Several journalists from the supporting media organisations who are ‘holding a press card and members of a religious order’ are coupled together and wandering in the building like cats on hot bricks. However, its functioning has changed. When you dialled the number, you immediately realise that the journalist you get on the phone is not a press agent but an ‘executive director for proofreading press statements’. You don’t even have to call them. Mostly, they call you. So far I haven’t called them and they haven’t called me. However, ‘those who have been called’ state that the voice at the other end of the telephone says every time ‘he did not say that’ or ‘he did not mean to say that’.

Under these circumstances I give up making a big announcement. From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. But as a dabbler in amateur psychology I would like to draw attention to a small detail. Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless, and he also makes inappropriate remarks about the mothers of the voters, I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young ...

As he has become such a nervous wreck in that he dismissed a question like the erection of the “Pontic Genocide Memorial” in Thessaloniki and tore the visitors’ book in the house of Mustafa Kemal, I suspect that he is suffering from a psychopathic aggressive illness. I wish him a quick recovery.”

On 9 May 2006 the Prime Minister of Turkey, Mr Recep Tayyip Erdoğan brought a civil action for compensation against the applicant and the publishing company before the Ankara Civil Court of First Instance on the ground that certain remarks in the above article constituted an attack on his personal rights.

Before the first-instance court the applicant maintained, inter alia, that the aim of the article in question had not been to insult the Prime Minister but to criticise him. He claimed that since the plaintiff was a politician and Prime Minister of Turkey, he had to be open to political criticism. In this connection, the applicant pointed out that the plaintiff should be particularly tolerant towards heavy criticism as a result of incidents or events he had created. In support of his submissions he submitted quotations from a number of columnists criticising various incidents involving the Prime Minister and an interview with Dr M.K., member of the AK party and member of parliament, where the latter considered, inter alia, that the Prime Minister had been tense in recent months and that as a result his responses had been automatic.

On 20 September 2006 the Ankara Civil Court of First Instance ordered the applicant and the publishing company jointly to pay compensation to Mr Recep Tayyip Erdoğan in the amount of TRY 5,000, plus interest at the statutory rate applicable on the date of the publication of the article.

In its decision the court referred to the following passages below:

“...under these circumstances I give up making a big announcement. From my column I say to Prime Minister Recep Tayyip Erdoğan, get well soon. I leave him in the hands of the Turkish doctors. But as a dabbler in amateur psychology I would like to draw attention to a small detail. Having regard to the fact that he defames the birds in the air and the wolves in the mountains, he responds to criticisms with swearing, for him University professors are immoral, the opposition party meagre, journalists shameless, and he also makes inappropriate remarks about the mothers of the voters, I consider it useful for both his and the public’s mental health to investigate whether he had a high-fevered illness when he was young ...

The court considered that the article taken as a whole had alleged that the Prime Minister had psychological problems and that he had a hostile attitude suggesting he was mentally ill. It held that a politician naturally had to bear and tolerate reasonable criticism. However, the court considered that, in the instant case, the remarks made in the article went beyond the limits of acceptable criticism and belittled the Prime Minister in the public and the political arena. In its view, the allegations were not the kind that one could make about a Prime Minister.

The applicant appealed.

On 6 December 2007 the Court of Cassation refused the applicant’s request for a hearing as the value of the case did not reach the threshold required under domestic law, and upheld the judgment of the first-instance court. This decision was served on the applicant on 30 January 2008.

On 31 March 2008 the Court of Cassation refused to examine the merits of the applicant’s request for a rectification of its decision, since the value of the case did not reach the threshold required under domestic law for rectification proceedings to be instituted.

Enforcement proceedings were initiated by the Prime Minister against the applicant and the publishing company in respect of the compensation awarded by the domestic courts. Two case files were opened (nos. 2007/2289 and 2008/1624) by the Ankara Enforcement Court.

According to the documents submitted by the Government the sum due in respect of case no. 2008/1624 amounted to TRY 8,611.88 and was fully executed. It appears that the applicant paid TRY 2,859.79 of this sum. The sum due in respect of case no. 2007/2289 amounted to TRY 8,384.42 and had not yet been executed on 31 August 2010.

A description of the relevant domestic law at the material time can be found in Sapan v. Turkey, no. 44102/04, §§ 24-25, 8 June 2010.


CASE OF JUCIUS AND JUCIUVIENĖ v. LITHUANIA

Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award

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

The first applicant is a Lithuanian national who was born in 1966. The second applicant, his wife, is a Lithuanian national who was born in 1967. They live together in Mažeikiai and have two children.

In April 1999 the first applicant’s sister, SJ, and her partner, DŠ (senior), died, and the applicants were appointed as temporary custodians of the deceased couple’s daughters - RŠ, aged four, and DŠ, aged six months.

On an unspecified date in 1999 the paternal grandparents, SŠ and VŠ, applied to a court to adopt RŠ and DŠ. The applicants submitted a counter-claim for the adoption. On 22 December 1999 the Mažeikiai District Court accepted the grandparents’ claim, recognising RŠ and DŠ as their adopted children. On 27 March 2000 the Šiauliai Regional Court upheld that decision. On 14 June 2000 the Supreme Court quashed the lower decisions, remitting the case for a fresh examination at first instance.

On 17 July 2001 the Mažeikiai District Court partly granted the claim of SŠ and VŠ, by recognising DŠ (then two years) as their adopted daughter. However, it recognised RŠ (then six years old) as the adopted daughter of the applicants. The applicants and the grandparents were ordered by the court to ensure that there were no obstacles that would prevent RŠ and DŠ from communicating with the applicants as well as with their grandparents.

On 8 March 2002 the Šiauliai Regional Court quashed the decision, dismissing both adoption applications. The court considered that the dispute between the two couples could be resolved without an adoption, but by a grant of permanent custody.

On 28 August 2002 the Mažeikiai District Court appointed SŠ and VŠ as the permanent custodians of the two girls. The court reached this decision on account of the better financial and living conditions of the grandparents compared to the applicants, as well as the fact that SŠ and VŠ were closer blood relatives to the girls. Noting RŠ’s young age (then seven years old) and her “emotional instability” when expressing herself in front of officials, the court rejected her express wish to live with her “mother” and “father” (the applicants). The Mažeikiai District Court observed that a child’s wish does not necessarily coincide with its future interests; therefore the court was not bound by RŠ’s opinion. The court took note of the request of the Child Rights Protection Institution to give custody of the girls to the applicants, whom the girls recognised as their “natural family” and who had cared for them since their parents’ death. However, it concluded that the girls were of a young, adaptable age. As RŠ had lived with the applicants for a few years, without any memory of her grandparents’ family, she was unable to understand where she would be better off.

The applicants and the Child Rights Protection Institution appealed. On 4 November 2002 the Šiauliai Regional Court confirmed the first-instance reasoning and decision after a written procedure, without an oral hearing of the parties.

The applicants and the Child Rights Protection Institution lodged cassation appeals. On 8 November 2002 the President of the Supreme Court suspended the execution of the Mažeikiai District Court’s decision until the cassation appeal could be examined. On 12 February 2003 the Supreme Court held that it had no jurisdiction in child custody cases and dismissed the cassation application.

On 21 March 2003, when the bailiff attempted to execute the courts’ decision, RŠ refused to leave the applicants’ home to live with her grandparents. DŠ was taken to the grandparents.

On an unspecified date the Prosecutor General, defending the public interest, filed a request to reopen the proceedings. The Telšiai District Court reopened the civil proceedings and, on 8 October 2004, overruled the Mažeikiai District Court’s decision of 28 August 2002. The court granted permanent custody of RŠ to the applicants, who lived in Mažeikiai, and permanent custody of DŠ to the grandparents, who lived in Klaipėda. When deciding to separate the sisters, the court noted the wish of RŠ to stay with the applicants and the wish of DŠ to stay with her grandparents. The court also observed that, since March 2003, the girls had lived separately and were used to their current environments.

The grandparents appealed to the Šiauliai Regional Court, which on 22 November 2004 upheld the lower court’s decision. The appellate court was of the opinion that it had been reasonable for the first-instance court to take into consideration the interests of each child and not to consider them as an inseparable unit. The court noted that the children should be provided with the most suitable and best conditions to meet their personal interests in the most advantageous way. Therefore the court found that the principle of not separating siblings had been justifiably overruled. It also held that the principle of placing children within the family had not been violated. The court pointed out that it was not only blood ties which mattered when choosing placements, but also the individuals to whom the child felt closest.

On 6 June 2005 the Supreme Court gave a final ruling and upheld the decision of the Šiauliai Regional Court. Agreeing with the reasoning of the lower courts, it observed that during the initial proceedings the Mažeikiai District Court had made a mistake by not giving primary consideration to the wishes of RŠ. The Supreme Court also noted that the evidence in the case showed the existence of a conflict between the two guardianship families. It noted that proper conditions should be created so that the girls could communicate with each other, giving the primary importance of the children’s interests over those of their guardians. This was an obligation for the State authorities to fulfil.

The questions related to child custody are regulated by the Civil Code (Civilinis kodeksas), the relevant articles of which read as follows:

“1. In considering any question related to a child, the child, if capable of formulating its views, must be heard directly or, where that is impossible, through a representative. Any decisions on such a question must be taken with regard to the child’s wishes unless they are contrary to the child’s interests. In making a decision on the appointment of a child’s guardian/curator or on a child’s adoption, the child’s wishes shall be given paramount consideration ...”

“1. The purpose of child custody/curatorship is to ensure the child’s upbringing and care in an environment which would facilitate the child’s growing up, development and progress.

Objectives of child custody/curatorship:

1) to appoint for the child a guardian whose duty it will be to take care of the child, bring it up, to represent the child and protect its rights and legitimate interests;

2) to provide the child with living conditions which would be adequate for its age, state of health and development level;

3) to prepare the child for independent life in a family and in society.”

“1. The establishment of child custody/curatorship shall be governed by the following principles:

1) first consideration must be given to the interests of the child;

2) priority in becoming the child’s guardians (curators) must be accorded to its close relatives, provided this is in the child’s best interests;

3) the child’s custody/curatorship in a family;

4) non-separation of siblings, except when this is contrary to the child’s interests. ...

When child custody/curatorship is established or ended, or a guardian is appointed to a child capable of expressing its views, the child shall be provided an opportunity to be heard and to influence the decision making.”

“A child shall be put under permanent custody (curatorship) when:

1) both parents or the single parent of the child are dead...”

“1. A child’s guardian/curator shall be selected by taking into consideration his or her personal qualities, state of health, abilities to function as a guardian/curator, relations with the child deprived of parental care, and the interests of the child...”

The Law on the Fundamental Protection of the Rights of the Child (Vaiko teisių apsaugos pagrindų įstatymas), insofar as relevant to this case, provides as follows:

“Parents, other legal representatives of the child, the State, municipal government, public institutions and other natural and legal persons must abide by the following provisions and principles:

1) the legal interests of the child must always and everywhere be given priority ...

5) no child must be left without a home, minimum funds for subsistence and care or custody...”

“1. A child shall have the right to live with its parents or other legal representatives.

To separate a child from its parents or its other legal representatives against the will of the child, as well as that of its parents (legal representatives), shall be permitted only in exceptional circumstances, provided for by laws and according to the established procedure, based upon a court decision and when such a separation becomes necessary for the child (striving to avoid danger to the life and health of the child, or it becomes necessary to take measures in relation to its care and upbringing or to protect other important interests of the child).”

Under Articles 31222 and 31223 of the Code of Civil Procedure, as in force at the material time, in child custody cases a court was to hold a hearing during which a child could express his or her opinion. Under Article 347 of the Code the parties could bring a separate appeal (atskirąjį skundą) against a decision of a first instance court. Article 349 stipulated that the appellate court would determine such appeals by way of a written procedure. According to Articles 334 and 3501 of the Code, the appellate court, when examining a separate appeal, had a right to examine de novo evidence, as well as evidence which had already been examined by the first instance court. Therefore the appellate court could decide both questions of law and fact.


Violation of Art. 6-1 (length of one set of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1936 and lives in Vráble.

On 23 April 1991 the applicant was dismissed from his job as a sports teacher at a secondary school.

On 13 September 1991 the Levice District Court found that the applicant’s dismissal was void.

On 22 November 1991 the applicant again received a notice of dismissal.

On 13 May 1992 the Levice District Court dismissed the applicant’s action challenging the lawfulness of the dismissal.

On 15 March 1993 the Nitra branch of the Bratislava Regional Court declared the applicant’s dismissal unlawful.

In 1993 the applicant claimed payment of the salary which the employer owed him.

On 12 December 1994 the Levice District Court dismissed the action, but the Nitra branch of the Bratislava Regional Court quashed this decision on 29 November 1995.

On 23 August 1996 the Levice District Court ordered the defendant to pay the outstanding salary to the applicant.

On 23 April 1998 the Nitra Regional Court upheld this decision.

On 19 July 1993 the applicant received a third notice of dismissal from his employer due to redundancy.

On 25 January 1994 he challenged the lawfulness of his dismissal before the Levice District Court. In the course of February 1994 the applicant supplemented his submission in accordance with the court’s instruction.

On 12 March 1994 the court asked the applicant to pay the court fee. It also sent the action to the defendant for comments. The applicant paid the fee on 18 March 1994. The defendant’s comments were submitted on 28 March 1994.

The first hearing was held on 1 June 1994. The case was adjourned due to the defendant’s absence.

At the second hearing held on 17 August 1994 the court heard the parties.

Between August and November 1994 the District Court obtained further evidence.

On 16 January 1995 the Levice District Court dismissed the action. The judgment was served on 1 March 1995 and the applicant appealed on 7 March 1995.

On 5 April 1995 the applicant paid the fee and the file was submitted to the court of appeal on 20 April 1995.

On 17 April 1996 the Nitra Regional Court quashed the first instance judgment and returned the case to the District Court. In its decision the Regional Court explicitly stated which evidence needed to be taken with a view to establishing the relevant facts. The file was returned to the District Court on 10 July 1996.

In the course of August 1996 the District Court obtained further evidence. A hearing was scheduled for 2 October 1996.

In a submission of 1 October 1996 the applicant challenged the presiding judge. He reiterated his objection at the hearing on 2 October 1996. The request was submitted to the Regional Court which refused to exclude the judge on 31 October 1996. The file was returned to the District Court on 14 November 1996.

The District Court heard the parties on 6 December 1996. On 10 December 1996 it again dismissed the applicant’s action. On 14 February 1997 the applicant appealed. The file was transmitted to the court of appeal on 13 March 1997.

On 8 July 1997 the court of appeal scheduled a hearing for 21 December 1998. It asked the defendant to submit further evidence at the hearing.

On 21 December 1998 the Nitra Regional Court quashed the first instance judgment of 10 December 1996. The court of appeal noted, in particular, that the District Court had disregarded the legally binding opinion set out in its decision of 17 April 1996 and had failed to take evidence with a view to establishing the relevant facts. The case file was returned to the District Court on 3 August 1999.

On 16 September 1999 the judge instructed the court’s registry to serve the decision of the court of appeal. The parties were asked to submit further information. The parties submitted their replies on 4 and 9 November 1999.

On 4 January 2000 the District Court scheduled a hearing for 15 March 2000. It also asked a trade union for information concerning the applicant. The trade union replied on 7 February 2000.

The Levice District Court held hearings on 3 March 2000 and on 12 April 2000. It also obtained further evidence during that period.

In its third judgment in the case given on 14 April 2000 the District Court dismissed the applicant’s action. It held, with reference to the evidence taken, that the school where the applicant had been employed had been restructured as a result of which the staff had to be reduced. The employer had had no possibility of offering a different job to the applicant. The court also examined the applicant’s objection that under the relevant law his dismissal should have been subject to approval by the trade union. It found that the trade union established within the school had given such consent on 28 June 1993.

The judgment was served on the applicant on 5 October 2000. He appealed on 19 October 2000. The applicant argued that the judgment was arbitrary in that, in particular, the District Court had overlooked the fact that the employer could have offered a different job to him. He also argued that he was a member and president of a different trade union which had existed at the school and that that organisation had not been duly consulted prior to his dismissal.

On 7 December 2000 the President of the Levice District Court admitted that there had been undue delays in serving the judgment of 14 April 2000 on the applicant and informed the latter that the judge dealing with the case had been disciplined.

On 24 January 2001 the Nitra Regional Court upheld the District Court’s judgment of 14 April 2000. It concurred with the first instance court that the statutory requirements for dismissing the applicant had been met in that a causal link existed between the restructuring of the school and the applicant’s redundancy, and the evidence available showed that the employer had not been in a position to offer a different job to the applicant.

As to the applicant’s allegation that his trade union had not been consulted, the appellate court held that the defendant had not been notified that such trade union existed within the school and that the statutes of that trade union did not foresee consultations with employers in similar cases. In addition, the defendant had consulted the trade union which had been established within the school and the existence of which had been officially known to everybody.

On 18 April 2001 the applicant filed an appeal on points of law. He argued that the courts had disregarded the fact that he had been dismissed after he had become inconvenient because of his criticism of the management of the school and that they had failed to hear the other persons who had also been dismissed for similar reasons at that time.

The Supreme Court dismissed the appeal on points of law by a decision given on 30 July 2001. It noted, in particular, that there were no apparent shortcomings in the proceedings at the lower instances which would render an appeal on points of law admissible under the relevant provisions of the Code of Civil Procedure. The decision was served on the applicant on 24 August 2001.