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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in 1969 and live in the town of Tver.

On an unspecified date the authorities brought proceedings against the applicants on suspicion of fraud.

On 17 April 2001 the Moskovskiy District Court of the town of Tver tried and convicted both applicants on a charge of attempted large-scale fraud. Both applicants were also tried on a charge of forgery. On the latter charge, the court acquitted the first applicant and found the second applicant guilty. They were sentenced to three years and six months and four years and six months’ imprisonment respectively.

The applicants appealed against the judgment. Their appeal was examined and dismissed by the Tver Regional Court on 3 July 2001.

On 18 December 2002 the Deputy President of the Supreme Court of Russia applied for supervisory review of the judgment of 17 April 2001, requesting a milder sentence.

By decision of 20 January 2003 the Supreme Court examined and allowed the arguments set out in the special appeal. It reduced the applicants’ sentences to two years and two years and six months’ imprisonment respectively and ordered that the first applicant be released accordingly.

By decision of 11 March 2003 the Torzhokskiy Town Court released the second applicant on parole before the expiry of his prison sentence.

On 15 December 2000 the applicants were arrested and placed in detention.

The applicants specified that between 11 a.m. on 15 December and 3 a.m. on 16 December 2000 they had first been held in a local police station before being transferred to IZ-69/1. According to both applicants, they were refused food and an opportunity to sleep. They did not make any allegations concerning the overcrowding of cells in that facility.

Both parties agreed that the applicants had been transferred to pre-trial detention centre IZ-69/1 on 16 December 2000 and that they had first been held in the local police station.

The applicants arrived at the pre-trial detention centre IZ69/1 in the town of Tver on 16 December 2000. The first applicant remained there until 24 July 2001 and the second applicant until 31 July 2001.

According to the first applicant, between 16 and 19 December 2000 he had been detained in cell no. 42.

On 20 December 2000 he was transferred to cell no. 60. Between 30 December 2000 and 23 January 2001 he was held in cell no. 42. From 23 January to 11 March 2001 he was detained in cell no. 54. For eleven days between 11 and 22 March 2001 he was detained in a punishment cell. On 22 March 2001 he was transferred back to cell no. 54 and remained there until 17 April 2001. Between 17 April and 24 July 2001 he was detained in cell no. 23. On 24 July 2001 the first applicant left facility no. IZ-69/1 for another penitentiary establishment to serve his prison sentence.

The Government submitted that the dates of detention in the various cells in facility no. IZ-69/1 given by the first applicant were erroneous. The first applicant had been placed in cell no. 42 on 15 December and had remained there for only one day. He was then transferred to cell no. 60, where he stayed until 19 December 2000. Between 20 and 24 December 2000 the first applicant was detained in cell no. 42. He was transferred to cell no. 54 on 25 December 2000 and remained there until 22 January 2001. Between 23 January and 10 March 2001 the first applicant was held in cell no. 120. From 11 to 18 March 2001 he was held in cell no. 54. On 19 March 2001 the first applicant was transferred to cell no. 23, where he remained until he left facility no. IZ-69/1 on 24 July 2001.

From the above, it follows that the parties agreed that the first applicant has been detained in cells no. 23, 42, 54 and 60. In addition, the first applicant maintained that he had spent 11 days in a punishment cell and the Government maintained that he had spent some 45 days in cell no. 120.

The applicant submitted that cell no. 23 measured 30 square metres. It had twenty-five sleeping places and accommodated between eighty and ninety detainees.

The Government submitted that the cell measured 45.3 square metres and had eleven sleeping places. It had a system of artificial and natural ventilation and was lit by four 40-watt daylight lamps. The prison administration submitted a letter in which it certified that there had been eleven inmates in the cell on 17 April 2001.

According to the first applicant, the cell measured 24 square metres, had nineteen bunk beds and was occupied by between 45 and 50 detainees at all times during his stay there.

According to the Government, the cell measured 31.9 square metres, had eight bunk beds and was lit by four 80-watt day lamps. The prison administration submitted a letter in which it certified that there had been seven inmates in the cell on 16 December 2000. The cell had both natural and artificial ventilation systems.

According to the prison administration, on 25 December 2000, the date of the first applicant’s departure from cell no. 42, there had been eight inmates in the cell.

According to the first applicant, cell no. 54 measured 16 square metres, had nine beds and accommodated between ten and twelve detainees.

The Government submitted that the cell in question measured 27.6 square metres and had seven sleeping places. It had a system of natural and artificial ventilation and was lit by four 40-watt day lamps. The prison administration submitted a letter in which it certified that there had been seven inmates in the cell on 23 January 2001 and that on 19 March 2001, the date of the first applicant’s departure from cell no. 54, there had been six inmates in the cell.

According to the first applicant, cell no. 60 measured 16 square meters, with six beds, and had held between twelve and fourteen infected detainees at the time of the applicant’s detention. It had a constantly high level of humidity as it was situated right above the prison baths. Also, every other night the only toilet in the cell was decontaminated with half a bucket of chlorine-based reagent. Since the toilet flush was inactive during the night, the chlorine-based reagent combined with the humidity and urine caused corrosive damage to detainees’ lungs and eyes.

According to the Government, the cell in question measured 22.4 square metres, had both artificial and natural ventilation systems and five sleeping places and was lit by four 80-watt day lamps. The prison administration submitted a letter in which it certified that there had been three inmates in the cell on 20 December 2000.

The first applicant submitted that the punishment cell measured 4 square metres, with only one sleeping place and eleven inmates. The applicant submitted that there had no toilet in the cell and that detainees had used a bucket, which had been emptied once a day but had never been washed or decontaminated.

The Government submitted that this cell measured 8.8 square metres, had two sleeping places, both natural and artificial ventilation, and was lit by one 150-watt bulb. The prison administration submitted a letter in which it certified that on 11 March 2001 there had been two inmates in the cell.

Between 16 December 2000 and 17 April 2001 the second applicant was detained first in cell no. 102 and then in no. 84. During the period between 17 April and 30 July 2001 he was held in cell no. 21. For fourteen days in May 2001 the second applicant was detained in the punishment cell.

The Government submitted that on 16 December 2000 the second applicant had been detained in cell no. 102. As of 28 December 2000 he was placed in cell no. 84. On 17 April 2000 he was transferred to cell no. 21. As of 17 May 2001 he was transferred to cell no. 117. From 24 May to 31 July 2001 he was detained in cell no. 21.

From the above it follows that the parties agree that the second applicant spent some time in cells nos. 21, 84 and 102. In addition, the second applicant maintains that he had spent 14 days in a punishment cell and the Government maintained that he had spent some seven days in cell no. 117.

The second applicant submitted that cell no. 21 measured 17 square metres, had twelve sleeping places and was occupied by more than 43 inmates.

The Government submitted that the same cell measured 20.7 square metres, had five sleeping places, artificial and natural ventilation systems, and was lit by two 150-watt bulbs. On 17 April 2001 it had accommodated four inmates. The prison administration submitted a letter in which it certified that on 24 May 2001 there had been four inmates in the cell.

The second applicant submitted that cells no. 102 and no. 84 measured 7.5 square metres, had four bunk beds and accommodated more than six detainees.

The Government submitted that cell no. 102 measured 9 square metres and had two sleeping places. Cell no. 84 measured 9.8 square metres and had two bunk beds. Both cells had natural and artificial ventilation and were lit by two 40-watt day lamps. On 16 December 2000 there had been two inmates in cell no. 102. The prison administration submitted a letter in which it certified that on 28 December 2000 there had been two inmates in cell no. 84.

According to the second applicant, he had been detained for fourteen days in May 2001 in a punishment cell measuring approximately 4 square metres, with one bed and twelve detainees.

According to the Government, the cell no. 117 measured 8.2 square metres, had two sleeping places and, according to the prison administration, on 17 May 2001 had contained two inmates.

The applicants submitted that they had taken walks in the detention centre courtyard every day. The walks had lasted between ten minutes and one hour depending on the guards’ mood. The courtyard was exposed to the elements and had no roof, and in bad weather the walks usually lasted at least an hour.

The Government did not comment on these allegations.

According to the applicants, detainees could not take a shower more than twice or three times a month and the water in the shower was barely warm.

The Government submitted that the applicants had been allowed to take a shower once a week for at least fifteen minutes.

The applicants also submitted that all the cells they had described lacked proper ventilation systems and were very hot in summer and cold in winter.

According to the Government, all the cells referred to above had both artificial and natural ventilation systems. The windows in all of the applicants’ cells were double glazed and had a window leaf for ventilation. Furthermore, the heating system in the prison was fully operational and the temperature in the cells was within the permissible range (+20o C in winter and +24o C in summer).

According to the applicants, all the cells were infected with lice, fleas and bugs, none of the toilets in the cells offered detainees any privacy and the authorities had failed to provide them with fresh linen, blankets or crockery. They submitted three photographs of a cell in the detention centre in question. None of the beds in the photographs had any bed linen on them.

The Government submitted that both applicants had been provided with an individual sleeping place and had a mattress, a pillow with two pillowcases, two blankets, two sheets and three towels. In addition, they were given a mug, a spoon and a bowl. The bed linen was changed once a week after the inmates had taken a shower. There was a brick wall 1.20 metres high separating the toilet area from the living area in all the cells. The authorities submitted plans of the interior of all the cells and their dimensions. They further submitted that during the relevant period they had carried out disinfection works, including fumigating and disinfesting each cell twice a month.

The applicants alleged that the catering had been extremely poor.

The Government submitted that inmates were given food three times a day, in accordance with the relevant norms.

The applicants further submitted that all the cells had been heavily overcrowded and that during the preliminary stage of the proceedings visits to the prison by an investigator had coincided with their turn to sleep and their lunchtime, so that they were effectively deprived of sleep and food. The detainees had to sleep in turns and had no way of washing themselves or shaving.

The Government submitted that the cells in question had not been overcrowded. They referred to statements of the prison authority in this regard (see, for more details, the sections below on specific cells).

The Government submitted in respect of the period between 15 December 2000 and 31 July 2001 that the number of bunk beds in the establishment had remained constant, that there had been 536 sleeping places in total, that 127 cells (nos. 1-14, 15-25, 25a, 26-34, 34a, 35-57, 63110, 112-20, 124-34, with a capacity ranging from 2 to 14 sleeping places) had been used in that prison, and that the daily total number of detainees during that period had been on average around 2,300 (ranging from 1,423 on 28 December 2000 to 2,589 on 27 April 2001).

The Government submitted detailed plans and dimensions in respect of each of the cells mentioned by the applicants.

The applicants submitted that for attendance at court hearings they had usually been taken out of the detention centre early in the morning, at around 5 a.m., and were not brought back until 8.30 or 9 p.m. While they were being moved, the applicants were kept either in a small space measuring 0.5 m x 0.65 m along with another detainee, or in a bigger space measuring 2 m x 0.65 m containing between seven and twelve detainees. No warm food or toilet facilities were provided during transport or in the detention cells of the court. While waiting for a hearing, between court sessions or while waiting for other detainees after the hearing, each of the applicants had been kept for hours in a small unventilated cell in the courthouse measuring approximately 1.5 m x 1.5 m, together with up to two other prisoners.

According to the applicants, they were transported to the courts on eleven occasions each: 29 December 2000, 16 and 24, January, 8 February, 9, 10, 11, 12, 13 and 17 April, and 3 July 2001. They also submitted that the prison vans had been unsuitable for transportation of prisoners because of the lack of artificial and natural ventilation or toilet facilities and overcrowding. They also pointed out that the actual distance travelled had been longer because the prison van had had both to deliver detainees to and collect them from five different regional courts around the city. They submitted that it had taken six hours: three for delivery and three for collection and the return journey.

The Government submitted that the inmates had breakfast before going to court, were returned to the detention centre for lunch and had dinner after the court sessions. The Government submitted a statement by Mr I. B., an official in charge of transportation of detainees, dated 9 August 2007, in which he certified that his convoy teams had never exceeded the limits of transport capacity of the prison vehicles. The Government also submitted drawings of the interior of such vehicles. They could not provide more detailed information on the exact number of transported detainees as the relevant archived documents had been destroyed on 11 August 2005 on the expiry of the storage time-limit.

The Government submitted that the first applicant had made ten return journeys on the following dates: 29 December 2000 (the District Court), 24 January 2001 (the District Court), 8 February 2001 (the District Court), 9, 10, 11, 12 and 13 April 2001 (the District Court), 17 April 2001 (the District Court), and 3 July 2001 (the Regional Court). The second applicant made nine return journeys on the following dates: 29 December 2000 (the District Court), 24 January 2001 (the District Court), 9, 10, 11, 12 and 13 April 2001 (the District Court), 17 April 2001 (the District Court), and 3 July 2001 (the Regional Court).

The distance between facility no. IZ-69/1 and the District and Regional Courts was three and four kilometres respectively.

As regards the detention cells in the District Court, the Government submitted that there were six of them, each designed for two persons, containing benches, artificial lighting, natural ventilation and measuring 5.26, 3.56, 3.86, 3.73, 3.71, 3.8 square metres respectively. The detainees were allowed to go to the WC room upon request.

The applicants referred to reports on human rights in Russia by the Moscow Helsinki Group NGO of 1999, 2000 and 2001. A 2000 report on the events of 1999 stated that the situation in pre-trial detention centres in Russia was very bad overall, as the detention centres contained four times more detainees than the number of places available (2,765 detainees and 680 places). The 2001 report on the events of 2000 mentioned the Tver Region as being affected by the issue of overcrowded pre-trial detention centres and complaints about deficient catering. The 2002 report on the events of 2001 referred to dozens of former inmates who spoke of arbitrariness and “lawlessness” in the detention centre in question.

According to the applicant, the newspaper Nezavisimaya gazeta published an interview given by a number of officials, including Minister of Justice Yu. Chayka, his deputy Yu. Kalinin and the head of the Department of Execution of Penalties of the Ministry of Justice, during a press conference in the Butyrskaya pre-trial detention centre. The applicant claimed that they had admitted that the numbers of inmates in Russian SIZOs and prisons exceeded capacity by 52.2%, the most difficult situation being in the cities of Moscow and St Petersburg, the towns of Tver and Tula and the republic of Chuvashiya.

Rule 42 provided that all inmates, whether suspects or defendants, had to be given, among other things: a sleeping place; bedding consisting of one mattress, one pillow and one blanket; bed linen consisting of two sheets and a pillowcase; a towel; crockery and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).

Rule 44 stated that cells in pre-trial detention centres must be equipped, among other things, with a table and benches with enough seating for the number of inmates, sanitation facilities, tap water, day lamps and nighttime lighting.

Rule 46 provided that prisoners were to receive food three times a day, with warm meals provided in accordance with the norms laid down by the Government of Russia.

Under Rule 47, inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after they had taken a shower.

Rule 143 provided that an inmate could receive visits from his lawyer, family members or other persons, subject to written permission from an investigator or an investigative body, the number of visits being limited to two per month.

Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme.

The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem.

The programme mentions pre-trial detention centre IZ-69/1 amongst the ones affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 1,160 inmates and in reality accommodated 1,587 detainees, in other words, 36.8% more than the permitted number.

The relevant extracts from the General Reports of the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:

“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps signiﬁcantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.

A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...

Speciﬁc mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The CPT would add that it is particularly concerned when it ﬁnds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.

It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...”

“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.

The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...”

“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ...

In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.

The CPT frequently encounters devices, such as metal shutters, slats, or plates ﬁtted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr Ali Mehemi, who was born in Lyons in 1962, is an Algerian national and is currently living in Algeria. Until 28 February 1995, when he was deported, he lived in France, where his parents – who have lived there for about forty years – still reside, as do his two brothers (one of whom is French and the other the father of two French children) and his two sisters (one of whom is French and the other the wife of a French national).

The applicant went to school in France until the age of 17. He apparently worked in the construction industry for three years and thereafter as a self-employed taxi-driver.

He is the father of three children of French nationality, born in 1982, 1983 and 1984. On 14 May 1986, in Villeurbanne, he married their mother, an Italian national who has been lawfully resident in France since 1978.

On 5 November 1989 officers of the Regional Criminal Investigation Department, assisted by customs officers, seized 142 kilograms of hashish imported from Morocco in a van adapted for the purpose. Nine people, including the applicant, at whose parents’ home seven kilograms of hashish were found, were committed for trial at the Lyons Criminal Court accused of drug offences and illegal importation of prohibited goods.

On 22 January 1991 the Criminal Court sentenced Mr Mehemi to six years’ imprisonment, with ineligibility for parole during the first three years, and two customs fines, for possession and illegal importation of dangerous drugs.

In a judgment of 4 July 1991 the Lyons Court of Appeal upheld the judgment of 22 January 1991 and ordered Mr Mehemi’s permanent exclusion from French territory on the ground that “public-policy considerations preclude the presence within French territory of an alien engaged as a principal in the offence of drug trafficking ”.

On 19 March 1993 Mr Mehemi filed with the Lyons Court of Appeal an application to have the permanent exclusion order rescinded. He relied in particular on Article 8 of the Convention.

On 1 June 1993 the Court of Appeal refused the above application on the following grounds:

“The defendant has not adduced any new evidence not examined by the Court of Appeal when it decided to uphold Ali Mehemi’s permanent exclusion from French territory.

It should be observed that the Court of Appeal expressly mentioned in the reasons for its decision that French public-policy considerations precluded the presence within French territory of an alien engaged as a principal in the offence of drug trafficking.

It is untrue that the defendant has maintained no link with his nationality of origin, since he voluntarily opted for that nationality on reaching his majority, despite the fact that the circumstances of his birth would have allowed him, in the absence of any criminal conviction, to acquire French nationality as of right if he had not expressly declined it.

His various trips to North Africa over the years preceding his arrest show that he has not severed all physical links with his nationality of origin.

Lastly, the order permanently excluding him from French territory is justified by the offence of importing drugs in the manner described in his conviction, now final, and by no means constitutes a disproportionate response to the seriousness of that offence, given that he had remained on French territory in order to facilitate the importation and subsequent distribution among desperate young people – with all the consequences which this type of offence involves – of very substantial quantities of hashish, the first drug turned to by addicts on their downhill slide, more than 140 kilograms of it in this case, purely for financial gain.

It cannot seriously be maintained that there has been any violation of the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

On 7 June 1993 the applicant appealed on points of law. In his statement of the grounds of appeal, dated 2 July 1993, his lawyer argued as follows:

… Contrary to what is said in the impugned judgment, Mr Ali Mehemi, an Algerian national, was never entitled to claim French nationality as of right ... Contrary to what is asserted there, he did not at any time decline French nationality … Pursuant to the legislation governing the consequences of Algerian independence as regards nationality (Ordinance no. 62-825 of 21 July 1962, Decree no. 62-1475 of 27 November 1962 and Law no. 66-945 of 20 December 1966), Mr Ali Mehemi, who was born before 1 January 1963, was subject to the same rules as his parents, who, not having made the declaration of recognition of French nationality provided for in Article 1 of the Law of 20 December 1966, became, as a result, Algerian.

... Contrary to what the Court of Appeal judges said, there was indeed disproportionality in the instant case between the isolated offence Mr Ali Mehemi was found guilty of and his interests as defined and protected in Article 8 of the Convention ... Mr Ali Mehemi was born in France, is married to a national of a European Community member State and is the father of three French children ... His whole family lives in France and …, contrary to what is stated in the judgment, he has not maintained links with his country of origin, his nationality – which he did not choose – not reflecting his actual position.

... Mr Ali Mehemi’s three French children were born in France and have always lived there ... They cannot be uprooted and sent to a country they do not know with the sole aim of being allowed to remain with their father ... In any event, their mother could not follow them if they were, ... nor can Mr Mehemi go to Italy, on account of his exclusion from French territory.

In a judgment of 23 February 1994 the Court of Cassation dismissed the appeal in the following terms:

The Court finds in this case that the measure concerned, which was imposed on the defendant following adversarial proceedings, was by no means a disproportionate response to the seriousness of the crime, and the grounds of appeal therefore contain no new evidence of a kind to warrant rescinding the measure.

In the light of the above findings and considerations, the Court of Appeal justified its decision and did not infringe the principles or legislation relied on in the grounds of appeal.

It follows that the appeal cannot be allowed.

While Mr Mehemi was in prison, on a date which has not been determined, his wife wrote to the French President in the following terms:

I would not ask you to plead in my favour for a reduction of my husband’s sentence, as I know full well that that is impossible, but I beseech you to help me have his expulsion from French territory quashed. He was sentenced to six years’ imprisonment – so be it. That must be the way of it because he committed a crime and I know perfectly well that he must pay for it ... But I cannot bring myself to accept his expulsion, and for good reason. Please understand me, Mr President, or at least try to: since my husband went to prison my children have not been themselves; they are suffering terribly and are constantly having to be examined by psychologists. But it is not just my children and I who are suffering: there is also the whole of my husband’s family, particularly his mother, who is 67 years of age and a diabetic. She sees her grandchildren all the time and whenever they ask her where “Dad” is and when he will be coming back she cannot help bursting into tears. This situation is having a terrible effect on her physical and mental health.

Things cannot go on like this. I do not want my family and the future of my children to be destroyed, because what future can I give them without their father at their side? ...”

The permanent exclusion order was enforced on 28 February 1995.

Article L. 630-1 of the Public Health Code formerly provided:

“... the courts ... may order an alien convicted of an offence under Article L. 627 to be permanently excluded from French territory.

Exclusion from French territory shall of itself entail the deportation of the convicted person at the end of his sentence.

Where a person, on conviction, is permanently excluded from French territory, he may not request the benefit of the provisions of Article 55-1 of the Criminal Code.”

Law no. 91-1383 of 31 December 1991 replaced the last three paragraphs by the following provisions:

“However, exclusion from French territory shall not be imposed on:

a convicted alien who is the father or mother of a French child resident in France, provided that he or she is vested with or shares parental authority over that child or provides for its needs;

Nor shall exclusion from French territory be imposed on a convicted alien who can prove either:

that he has been normally resident in France since reaching the age of 10 at the most or for more than fifteen years; or

that he has been lawfully resident in France for more than ten years.

The provisions of the eight preceding paragraphs shall not be applicable in the event of a conviction for ... importing or exporting [toxic plants classified as drugs] or for conspiracy to commit those offences.

Exclusion from French territory shall of itself entail the convicted person’s deportation, where necessary after the end of his prison sentence.”

Article L. 630-1 was repealed by Law no. 92-1336 of 16 December 1992.

Article 55-1 of the Criminal Code provides:

Any person who has incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or vary its duration.


Violation of Art. 6-1;Violation of Art. 13;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 1950 and lives in Järvenpää.

The applicant’s home as well as the office premises of his various companies were searched on 7, 9 and 14 February 1995 and various materials were seized. The search warrants referred to an investigation into debtor’s dishonesty involving the company Lehtikarin Kirjapaino Oy as well as a book-keeping offence. Both offences were suspected to have been committed by the applicant between 5 June 1991 and 25 May 1994.

On 15 February 1995 the public prosecutor questioned the applicant in connection with other criminal proceedings which were pending against the applicant before the District Court (käräjäoikeus, tingsrätten) of Tuusula in respect of acts allegedly committed in April 1992 relating to the company UYP-Sijoitus Oy (“U.”).

On 27 April 1995 the estates of three wound-up companies, including U, reported an offence against the applicant for alleged offences of debtor’s dishonesty.

On 2 April 1996 the applicant was interrogated by the police. On 28 November 1996 he was charged with the offence of debtors’ dishonesty, allegedly committed between 7 and 23 April 1992. The estate of the wound-up company U. was indicated as one of the complainants.

On 12 February 1997 he received a summons to appear before the District Court on 19 March 1997. The summons had wrongly indicated the Judicial Building in Vantaa as the hearing venue instead of Tuusula. On 1 April 1997 the applicant was brought to the hearing of the District Court of Tuusula, the court having found that the applicant had no legal excuse for not having been present at the first hearing.

At the hearing on 27 November 1997 the applicant demanded that the charges against him be adequately particularised.

In a further letter of indictment dated 29 April 1998 the prosecutor presented alternative charges of aggravated tax fraud and aiding and abetting that crime.

On 8 July 1998 the applicant initiated civil proceedings against bank V. and requested that they be joined to the criminal proceedings. The District Court rejected this request.

At the hearing on 27 July 1998 the prosecutor, basing himself on a letter of indictment of the same day, specified the charges.

On 31 December 1998, at its 13th hearing, the District Court issued its judgment. It convicted the applicant of debtor’s dishonesty and sentenced him to eleven months’ unconditional imprisonment. He was ordered to pay some 10,000,000 Finnish Marks (FIM, almost 1,700,000 euros (EUR)) in damages.

The applicant appealed, appending his own writ of appeal to that of his counsel, P.V. In addition, he lodged numerous further submissions both within and outside the requisite time-limit, the last one in February 2002. Originally, the applicant requested an oral hearing and, in any case, that the Court of Appeal should reduce his sentence. In December 2001 he requested that the case be referred back to the District Court to be decided by a different composition of judges or, in the alternative, that the charges against him be dismissed as one judge had allegedly been partial and he had been refused leave to examine a witness.

In October 2001 the Court of Appeal, as requested, cancelled P.V.’s appointment and appointed P.I. as the applicant’s new legal aid counsel.

In its judgment of 15 March 2002 the Court of Appeal rejected his appeal and increased the sentence to a term of imprisonment of one year and two months. Having regard to the contents of the applicant’s appeal as filed within the time-limit, the Court of Appeal saw no need for an oral hearing. The court took into account three of the applicant’s further submissions as well as four submissions lodged by his new counsel, in so far as the requests therein had not deviated from his original appeal as filed within the requisite time-limit. Insofar as the applicant had alleged procedural defects the Court of Appeal considered most of his submissions belated as they had not been lodged within six months of the judgment of the District Court.

On 3 September 2002 the Supreme Court refused the applicant leave to appeal.

Under Chapter 16, Article 4 (2) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, as amended by Act no. 1052/1991 and in force at the relevant time) any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint with a Court of Appeal within 30 days from the date of the adjournment. Under the said provision the district court could adjourn the case upon request by a party, for example if the said party wished to adduce further evidence. The court could not adjourn the hearing proprio motu save on special grounds. Chapter 16, section 4 (2) was repealed with effect from 1 October 1997, when new provisions generally prohibited adjournments.

Chapter 6 of the Penal Code (rikoslaki, strafflagen, Act no. 515/2003) was amended with the effect as of 1 January 2004. Section 6, Article 7 sets out the grounds mitigating the punishment that are to be taken into consideration, including “a considerably long period that has passed since the commission of the offence”, if the punishment that accords with established practice would for this reason lead to an unreasonable or exceptionally detrimental result.

The Government referred to the Supreme Court’s precedent KKO 2005:73 concerning the relevance of the length of the proceedings when determining a sentence. In that case the defendants were sentenced to prison for one year and four months for aggravated tax-fraud. Their sentences were mitigated because of the length of the proceedings, which was 10 years.


Preliminary objection allowed (non-exhaustion of domestic remedies)

When she lodged her application, Danielle Van Oosterwijck had been working since 1963 in the Secretariat of the Commission of the European Communities; she was at the same time studying at the Free University of Brussels and, in June 1979, obtained a degree in law (licence en droit). Subsequently, she was enrolled as a first-year pupil at the Brussels Bar; she is entered on the roll of pupils as "Van Oosterwijck D.".

At birth, on 23 December 1944, the applicant possessed all the physical and biological characteristics of a child of the female sex and she was entered on the birth register of the Uccle district (Brussels) as the daughter of J. Van Oosterwijck, with the forenames Danielle, Juliette, Laure, Colette.

However, according to her, from the age of five she became conscious of a dual personality: although physically female she felt herself psychologically of the male sex. After going through a period of depression on this account, she attempted suicide in 1962 and had to be treated in hospital (see paragraph 12 of the Commission’s report).

From 1966 onwards, the applicant - who will henceforth be referred to in the masculine, the male sex being the one assumed by Danielle Van Oosterwijck for social purposes at the time the application was lodged with the Commission - sought a solution to his problem by having a "sex-change" carried out on his body.

In 1969, two specialists, Doctor Slosse and Doctor Dumont, respectively a neurologist and endocrinologist, found that the symptoms shown by the applicant unquestionably indicated transsexualism. In addition to having before them the report of a Belgian psychiatrist, they had also consulted a British psychiatrist, Doctor Randell.

Whilst the doctors considered the use of psychotherapy ineffective in this field, they concluded, in the light of American, English and Danish research, that surgical treatment offered excellent prospects of success. They also took note of the fact that the applicant had consistently refused to accept the first kind of treatment and they believed it probable that he would attempt to commit suicide if the second kind were not adopted.

Accordingly, they decided to apply hormone therapy, followed by surgery.

On being advised of the purposes, methods and effects of the treatment, the applicant stated his readiness to accept the risks. He therefore underwent hormone therapy which, after a few months led to appearance of the secondary sexual characteristics of a male, such as hair growth and change of voice.

In July and December 1970 in Brussels, two surgeons, Mr. Fardeau and Mr. Longrée, successfully performed on him two operations of sexual conversion (bilateral mammectomy; hysterectomy-bilateral ovariectomy). Mr. Fardeau had previously sought the consent of the Medical Association: on 8 May 1970, the Secretary of the Council of the Brabant Province Branch of the Association had sent him the following reply: "As the problem you raise is a medical one, you should act according to your conscience but we must most strongly advise you to take all possible precautions in view of the very delicate nature of this type of operation."

Subsequently, the applicant received a phalloplasty carried out in ten stages, from October 1971 to October 1973, by Professor Evans, a surgeon at Queen Mary’s Hospital in London.

The treatment has without any doubt substituted an outwardly male physique for a female physique, but the chromosomes remain those of the female sex.

Part of the cost was borne by the Medical Service of the Commission of the European Communities; the Communities’ administrative department issued the applicant with an employment card made out in the name of Mr. D. Van Oosterwijck.

On 18 October 1973, the applicant filed a "petition for rectification of a civil states certificate ("requête en rectification d’un acte de l’état civil"): he requested the Brussels Court of First Instance to direct that his birth certificate should henceforth read "a child of the male sex with the forenames Daniel, Julien, Laurent, born on ..., son of ...". He relied, inter alia, on a decision delivered on 20 October 1965 by the Ghent Court of First Instance, which had adopted a similar solution in another case (see paragraph 18 below).

The ministère public (Attorney-General’s department) submitted on 13 November 1973 that the petition should be disallowed: it was argued that D. Van Oosterwijck had not established, as he was obliged to do under the legislation in force, that the initial record of his sex was tainted by an error, whereas the case decided in Ghent did concern such an error.

The Brussels Court dismissed the petition on 30 January 1974 on the ground that the petitioner had not demonstrated that the Registrar had made a mistake when drawing up the birth certificate; indeed, the petitioner’s submissions showed just the opposite since he did not claim to have been "fundamentally" a man from the outset.

D. Van Oosterwijck appealed to the Brussels Court of Appeal on 14 February 1974. He contended that a transsexual has by definition the sex opposite to that which is apparent at the time of his birth and criticised the Court of First Instance for disregarding the concept of transsexualism. According to him, the rectification being claimed was therefore a pressing legal necessity. He also requested the Court of Appeal to be guided by equity, humanity and the interests both of society and of himself in arriving at its decision. He maintained that, on this basis, the Court would accept that he was a man who no longer possessed the characteristics of a woman; that it was inconceivable not to recognise the consequences of transsexualism where it had been duly established; that the decision under appeal led to results that were absurd and harmful to the social order, for example the possession of patently incorrect identity documents.

The parquet (Attorney-General’s department) submitted that the appeal should be dismissed, relying on the following arguments. There was controversy in medical circles regarding the syndrome known as transsexualism. Moreover, the assertion that D. Van Oosterwijck had always belonged "fundamentally" to the male sex was not corroborated by the facts; the Registrar of Births had made no mistake in recording what outward appearances revealed. In point of fact, some lawyers questioned whether, in the absence of an error, the only conceivable legal remedy did not consist of an "action d’état préalable" (a "preliminary action pertaining to personal status"); their views probably had force, but in the present proceedings the issue had not been put in that manner. Admittedly, the appellant had an affliction which caused him considerable suffering in human and personal terms; if this were the only aspect to be considered, it might perhaps have been possible to grant his petition. From the point of view of public policy (ordre public), on the other hand, the petition prompted the most serious reservation: its acceptance might provoke numerous other petitions and it would be dangerous to encourage indirectly by this means the proliferation of treatment whose effects, being irreversible, might subsequently be regretted by the patients themselves. Finally, the perpetual calling in question of certain situations, particularly in the realm of personal status, conflicted with the requirements of a rational organisation of the community: it would tend to an increase in personal problems and engender a climate of insecurity and instability in family and social relationships.

The Brussels Court of Appeal dismissed D. Van Oosterwijck’s appeal on 7 May 1974. It held that, before it could be rectified, a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed "account to be taken of artificial changes to and individual’s anatomy", such as those in the present case, "even if they correspond[ed] to his deep-seated psychical tendencies". However, "neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism" were capable of evidencing the existence, from the very outset, of "physical characteristics of the male sex or even (of) transsexual tendencies".

D. Van Oosterwijck decided not to take his case to the Court of Cassation. According to Appendix II to the Commission’s report, he had previously consulted "a number of qualified persons". In addition, Mr. Ansiaux, a lawyer practising before the Court of Cassation, advised the applicant after the event, on 20 September 1976 and in 1977, that in his view such an appeal would have had no prospects of success (see the verbatim record of the hearings of 24 April 1980 before the Court and paragraph 37 below).

The applicant has not, until now, sought authorisation to change his forenames, authorisation which may be granted by the Government in pursuance of an Act of 2 July 1974 supplementing the Act of 11 Germinal, Year XI - 1 April 1803 (see paragraph 20 below). He has an identity card bearing his female forenames, but with a photograph corresponding to his present outward appearance.

In Belgium, there is no legislation dealing with transsexualism. In the only case of the kind which appears to have given rise to a criminal prosecution, the Brussels Court of First Instance held, on 27 September 1969, that sex-change treatment and operations did not of themselves constitute criminal offences. They depended on the free decision of doctors and surgeons, acting according to their conscience and with the patients’ consent.

The drawing up of civil status certificates, including birth certificates, is regulated by the Civil Code. Under Article 55, declarations of birth have to be made before the Registrar of Births, Marriages and Deaths for the district. The certificate is drawn up immediately in the presence of two witnesses and states, amongst other things, the child’s sex and forenames (Articles 56 and 57).

Rectification of civil status certificates is governed by Articles 1383 to 1385 of the Judicial Code. The person concerned has to file a petition with the Court of First Instance (Article 1383). The President of the Chamber designated to hear the matter gives directions for the petition to be communicated to the ministère public and appoints a judge-rapporteur; the petitioner is invited to appear at a hearing in order to present his case (Article 1384). The operatives provisions of any judgment ordering rectification are transmitted to the Registrar of Births, Marriages and Deaths who will forthwith enter particulars thereof on his registers and endorse them in the margin of the certificate to be amended; thereafter, the certificate will only be issued bearing the rectifications ordered (Article 1385).

The Government referred the Court to a judgment dealing with the construction of these provisions: in the case of a couple who had obtained a judicial separation but later resumed co-habitation, the Verviers Court of First Instance held on 22 September 1969 that "rectifying a civil status certificate" involves making thereto "such additions, deletions or modifications as may be necessary to cause it to be in conformity with the law and with the true state of affairs regarding the status of the person or persons it concerns", including the situation where "a certificate, though properly prepared in the first place, no longer corresponds to the true state of affairs".

Several Belgian courts have had the occasion to hear petitions for rectification filed by persons who had undergone sex-change treatment in circumstances varying somewhat from one case to another. The Courts of First Instance of Charleroi (8 June 1973) and Malines (17 June 1975) dismissed the actions, whereas that of Ghent (20 October 1965) upheld the petition. Another case also resulted in a favourable decision for the petitioner, although the person concerned, unlike D. Van Oosterwijck, had not received a phalloplasty (Ghent Court of First Instance, 24 April 1978).

The Court of Cassation has never been called on to consider the issue.

According to the Government, any civil status certificate may also be modified so as to coincide with the person’s current situation by means of an action d’état (an action pertaining to personal status). This "bringing into conformity" only has effect as regards the future. Up to the present time, apparently no one has instituted such an action with a view to obtaining recognition of a new sexual identity.

Since 23 August 1974, the date on which the above-mentioned Act of 2 July 1974 came into force (see paragraph 15 above), any person who has grounds for changing his forenames may apply to the government authorities setting out his reasons (section 4). If the application is allowed, the government authorities grant leave for the change by Royal Decree; on request by the person concerned, the Registrar of Births, Marriage and Deaths will then enter particulars of the Royal Decree on his registers and endorse them in the margin of the birth certificate. Any short form birth certificate subsequently issued must state the new forenames and not the former ones.

At the present time, at last seven transsexuals have taken advantage of this Act, implementation of which in a given case has no legal bearing on the person’s sex.

The short-form certificates of civil status which third parties may procure do not state the descent or sex of the persons concerned (Article 45 par. 1, first sub-paragraph, of the Civil Code), but only their place and date of birth, family name and forenames.

On the other hand, certified copies of the full certificate may be obtained by the individual himself, his spouse or surviving spouse, his legal representative, his ascendants, descendants or rightful heirs, the public authorities and persons having a family, scientific or other legitimate interest (Article 45 par. 1, second sub-paragraph).

Identity cards, passports and driving licences do not specify the sex of the holder.


No violation of Art. 10 with regard to the interim injunction;Violation of Art. 10 with regard to the permanent injunction;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

On 8 November 1995 the applicant company acquired the publishing rights for a book entitled Le Grand Secret (“The Big Secret”) from a Mr Gonod, a journalist, and a Dr Gubler, who had been private physician to President Mitterrand for several years. The book gave an account of the relations between Dr Gubler and the President, describing how the former had organised a medical team to take care of the latter, who had been diagnosed with cancer in 1981, a few months after he had first been elected President of France. It recounted in particular the difficulties Dr Gubler had encountered in concealing the illness, given that President Mitterrand had undertaken to issue a health bulletin every six months.

The book was due to be published in mid-January 1996, while President Mitterrand was still alive. However, following the President's death on 8 January 1996, the authors and Editions Plon decided to postpone its publication.

On 10 January 1996 the daily newspaper Le Monde published an article which revealed that President Mitterrand had been suffering from prostate cancer since the beginning of his first seven-year term of office and pointed out that the public had not been officially informed about his illness until 1992. The article also stated that President Mitterrand had dismissed Dr Gubler in 1994, choosing instead to be treated with medicine described by the applicant company as “alternative”.

Those revelations were the subject of extensive comment in the media. Questions were asked, in particular, about the quality of the treatment received by President Mitterrand.

A former cultural adviser to President Mitterrand had already claimed in a book entitled L'Année des adieux, published by Flammarion in June 1995, that the President had not received proper treatment. In addition, shortly after the President's death, one of his brothers made similar allegations. The head of the cancer treatment department at the Pitié-Salpêtrière Hospital did likewise, in particular asserting on the radio station Europe 1 that “for years [President Mitterrand had been] given nothing but magical cures, and these techniques were completely ineffective in treating his illness”.

On 12 January 1996, however, Le Monde published a statement by the President of the National Council of the ordre des médecins (Medical Association) to the effect that “according to the information in [his] possession, the President [had] received perfectly appropriate treatment”. Furthermore, on 11 January 1996 the President's widow and children had issued a statement emphasising that they maintained their trust in the medical team that had looked after him.

As Dr Gubler considered that his reputation had been called into question, it was decided to publish Le Grand Secret on 17 January 1996. The following text appeared on the back cover:

“On 10 May 1981 François Mitterrand was elected President of France.

On 16 November 1981, six months later, medical examinations revealed that the head of State was suffering from cancer. Statistically, he had between three months and three years to live.

A handful of doctors resolved to fight the illness, driven by the obsession to save the President and to obey his instruction that the French public should know nothing about the matter. It became a State secret.

Only Claude Gubler, private physician to François Mitterrand during his two terms of office, could have provided us with the astonishing account of how the President cheated death for years, taking each day at a time.

These revelations will transform our image of a man who led France for fourteen years.”

On an urgent application lodged on 17 January 1996 by President Mitterrand's widow and children, who complained of a breach of medical confidentiality, an invasion of President Mitterrand's privacy and injury to his relatives' feelings, the President of the Paris tribunal de grande instance issued an injunction on 18 January 1996 prohibiting the applicant company and Dr Gubler from continuing to distribute Le Grand Secret, on penalty of 1,000 French francs (FRF) per book distributed, and instructed a bailiff “to procure all documents containing details of the print run and the number of copies in circulation”.

The urgent-applications judge based her decision on the following grounds:

“All people, regardless of their rank, birth or function, have the right to respect for their private life.

This protection extends to their relatives where the relatives are justified in asserting their right to respect for their own private [and] family life.

What is in issue in the instant case are disclosures by President François Mitterrand's private physician, who treated and attended to him for more than thirteen years and in whom the patient and his family placed their trust.

They were made in breach of provisions that lay down a duty of professional confidentiality, all the more strictly where medical confidentiality is concerned, and the person who made them may be liable to the penalties provided for in Article 22613 of the Criminal Code.

By their very nature, they constitute a particularly serious intrusion into the intimate sphere of President François Mitterrand's private family life and that of his wife and children.

The resulting interference is especially intolerable in that it has occurred within a few days of President Mitterrand's death and burial.

Since this is a case of blatant abuse of freedom of expression resulting in a manifestly unlawful infringement of the claimants' rights, it is within the power of the urgent-applications judge to order measures capable of putting an end to the infringement or limiting its scope.”

In a judgment of 13 March 1996, the Paris Court of Appeal upheld the injunction and gave the claimants one month to apply to a court with jurisdiction to examine the merits of the case, indicating that if such an application was made, the injunction and penalty for non-compliance would remain in force until a ruling was given on the merits, but that if no such application was made, those measures would cease to have effect on the expiry of the one-month period.

The judgment began by noting the definition of medical confidentiality in Article 4 of the Code of Conduct for Medical Practitioners, and emphasised that “the death of the patient does not release a medical practitioner from the duty of confidentiality”. It went on to quote the text on the back cover and identified some twenty disclosures made in the book, together with page references, about facts “of which Mr Gubler had become aware in the performance of his professional duties as physician to François Mitterrand” and which “as such ... [were] manifestly covered by the rules of medical confidentiality”. The judgment stated:

... the disclosure, through publication of the book Le Grand Secret, of facts covered by the duty of medical confidentiality by which the co-author of the book is bound is manifestly unlawful.

The innermost feelings of Mrs Mitterrand and of François Mitterrand's children have been offended by this public disclosure of information pertaining both to the character and private life of their husband and father and to their own sphere of intimacy by the private physician to the late French President, in whom the latter had placed his trust, under the protection of a lawfully established duty of professional confidence of which all medical practitioners are solemnly reminded when the Hippocratic oath is read out on their admission to the profession.

... prohibition of the distribution of a book can only be an exceptional measure.

However, in view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the duty of medical confidentiality by which the co-author of the book is bound, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it.

Accordingly, the decision by the first-instance judge to prohibit the [applicant] company and Mr Gubler from continuing to distribute the book Le Grand Secret was based on a precise assessment of the interim measure likely to put an end to the manifestly unlawful infringement resulting from such disclosures.

Although the first edition of the book in question was marketed before the date of the injunction appealed against, and although information published in the book has been divulged by various media since the injunction was issued, the ensuing circumstances are not capable of putting an end to the manifestly unlawful infringement that would necessarily result from resumed distribution of the book.

Consequently, the injunction issued by the first-instance judge should remain in force.

However, the necessarily temporary nature of such a measure dictates that its validity should be limited in time by such means as to afford the parties an opportunity to submit argument in the dispute between them, within a reasonable time, before a court with jurisdiction to examine the merits of the case.

To that end, the respondents should be given one month, from the date of delivery of this judgment, to bring their dispute before such a court. It should further be specified that if an application for an examination of the merits is made within this period, the injunction will remain in force, unless the court in question rules otherwise, until the delivery of its decision, but that if no such application is made within this period, the injunction will immediately cease to have effect.”

In a judgment of 16 July 1997, the Court of Cassation dismissed appeals on points of law by the applicant company and Dr Gubler against the judgment of 13 March 1996.

The Court of Cassation considered that the Court of Appeal had established the existence of a manifestly unlawful infringement by holding that disclosures made in the book about the development of François Mitterrand's condition had been in breach of medical confidentiality, and that it had been exclusively within the Court of Appeal's jurisdiction to rule that the injunction prohibiting the continued distribution of the book, as an interim measure valid for a limited period only, was the only means of putting an end to the infringement pending a decision on the merits.

In the meantime, on 19 April 1996, the Paris public prosecutor had summoned Dr Gubler to appear in the Paris Criminal Court on a charge of breaching professional confidence during May and June 1995, November and December 1995 and January 1996 by having disclosed information to Mr Gonod and Mr Olivier Orban, the managing director of Editions Plon, about President Mitterrand's health and the treatment he had been prescribed. Mr Gonod and Mr Orban had also been summoned to answer a charge of aiding and abetting that offence. President Mitterrand's widow and three children had applied to join the proceedings as civil parties but had not filed claims for damages.

In a judgment of 5 July 1996, the Criminal Court found Dr Gubler guilty of breaching professional confidence and Mr Gonod and Mr Orban guilty of aiding and abetting the same offence. It sentenced Dr Gubler to four months' imprisonment, suspended, and fined Mr Gonod and Mr Orban FRF 30,000 and FRF 60,000 respectively. The judgment emphasised, in particular, that by signing a publishing contract on 8 November 1995, and subsequently by delivering his manuscript with a view to its publication, Dr Gubler had publicly disclosed confidential information entrusted to him, and that “publication of an entire book based on a breach of medical confidentiality amounted, on Mr Claude Gubler's part, to a serious breach of his professional duties, calling for a stern reminder of the law”.

As no appeal was lodged, the judgment became final on 5 September 1996.

Alongside those proceedings, on 4 April 1996 President Mitterrand's widow and three children had brought proceedings against Dr Gubler and Mr Orban (both in his personal capacity and as the statutory representative of the applicant company) in the Paris tribunal de grande instance, seeking an order prohibiting resumption of the publication of Le Grand Secret or, in the alternative, deleting certain pages and paragraphs. They also sought an award of damages. They argued, in particular, that the book contained disclosures that breached medical confidentiality and invaded President Mitterrand's privacy in such a way as to interfere with the feelings and personal life of his widow and children. They further submitted that some of these “indiscretions” amounted to direct personal attacks on their own sphere of intimacy.

In a judgment of 23 October 1996, the Paris tribunal de grande instance ordered Dr Gubler, Mr Orban and the applicant company jointly and severally to pay damages of FRF 100,000 to Mrs Mitterrand and FRF 80,000 to each of the other claimants, and maintained the ban on distribution of Le Grand Secret. The judgment stated, inter alia:

Merits of the applications

A reading of the book Le Grand Secret reveals that its contents include:

(a) a description of the President's 'health regime' at the time when arrangements were being made for the 'medical care' with which he was to be provided throughout his time in office (pages ...);

(b) a reference to the initial symptoms of his illness (page ...) and an account of the medical examinations which he underwent in November 1981 (page ...);

(c) the results of these examinations and the subsequent discussions between François Mitterrand and his doctors (pages ...);

(d) a description of the medical examination carried out on François Mitterrand by Professor [S.] on 16 November 1981, and an account of the conversation in which Professor [S.] and Claude Gubler informed François Mitterrand of the nature of his illness and the forms of medical treatment it required (pages ...);

(e) a description of a treatment protocol prescribed by Professor [S.] and Claude Gubler and the manner in which the treatment was administered to François Mitterrand (pages ...);

(f) an indication of the pseudonym under which biological tests concerning François Mitterrand were carried out by a private laboratory (page ...) and of the frequency and nature of such tests (pages ...);

(g) a description of certain physical disorders that affected François Mitterrand and an indication of the medicine he was given in order to treat them and prevent their recurrence (pages ...);

(h) a description of anxiety attacks suffered by François Mitterrand (pages ...);

(i) a description of the side-effects of the medical treatment received by François Mitterrand (page ...);

(j) information on developments in François Mitterrand's health and the impact of such developments on his behaviour (pages ...);

(k) a description of the circumstances in which certain health bulletins on François Mitterrand were drawn up (pages ...);

(l) a description of other medical practitioners' dealings with François Mitterrand and the power struggles between various members of his medical team (pages ...);

(m) an account of the operation performed on François Mitterrand on 16 July 1994 (pages ...);

(n) a description of the medical treatment which François Mitterrand received and the medical examinations he underwent in late 1994 (pages ...);

The events described in the above passages from Le Grand Secret became known to Claude Gubler in the performance of his professional duties as physician to François Mitterrand or members of his entourage. Although they do not relate directly to medical facts, Claude Gubler could only have become aware of them while practising his profession; accordingly, they were manifestly covered by the duty of medical confidentiality by which he was bound. They were disclosed unlawfully, firstly when Claude Gubler, wishing to provide the public with a 'chronological account' of the head of State's illness, contacted the journalist Michel Gonod and wrote the manuscript for the book in conjunction with him; subsequently, when the manuscript was submitted to Olivier Orban in November 1995 with a view to its publication by Editions Plon; and finally, when the book went on sale a few days after François Mitterrand's death, the publisher laying emphasis in the text on the back cover on the fact that only Claude Gubler, through his privileged position in relation to the head of State, could have written this 'astonishing account'.

Neither Claude Gubler's alleged desire to restore the truth by informing the public about facts that had been kept from them for several years ... nor the fact that while François Mitterrand was alive incomplete bulletins about his health were published, which the physician nonetheless agreed to sign, serve as justification for the disclosures in question. The duty of medical confidentiality is general and absolute and does not allow medical practitioners to transform themselves into guarantors of the proper functioning of State institutions or into historical witnesses.

Furthermore, nothing can release medical practitioners from their obligation to remain silent, since the duty of professional confidence exists not only to protect the interests of those who confide in them, but also to guarantee the reputation that medical practitioners must enjoy among all those who require medical assistance.

Although a practitioner whose competence or integrity has been called into question may be required to breach the duty of confidence in order to prove the quality of his treatment or his good faith, this is subject to the condition that such disclosure is limited to the strict requirements of his defence in court and does not, as in the instant case, take the form of deliberate public divulgence of information.

Redress

The specific purpose of civil liability is to restore as precisely as possible the balance that has been upset by the damage and to return the victim, at the expense of the party held liable, to the position in which he or she would have been had the prejudicial act not occurred. This principle means that, when affording redress for non-pecuniary damage, the courts are able not only to award damages to the victim in compensation for the harm already sustained, but also to prevent any subsequent damage by ordering the elimination of its cause.

The offence caused to the Mitterrands and Ms Pingeot by the disclosure of their own doctor's deliberate breaches of the necessary confidentiality of his relations with both François Mitterrand and themselves over many years, the publisher's desire to draw attention to the book in a spectacular manner by rushing to print and sell it immediately after the announcement of François Mitterrand's death (the possibility of a mere coincidence of events cannot be seriously entertained), the advance communication of extracts from the book to certain sections of the press for obvious promotional purposes, and the book's substantial initial print run (40,000 copies were distributed and sold from 17 January 1996) justify an award of damages to the claimants as set out in the operative provisions of this judgment ... and the continuation of the prohibition on the distribution of the book ordered by the urgent-applications judge.

In this connection, ... prohibition of the distribution of a piece of writing entailing an infringement of human rights ... [is], regard being had to the principles governing civil liability, [a] legally acceptable means of redress designed to put an end to the injury suffered by the victim and to prevent the recurrence of the damage that would necessarily result from resumption of the distribution of the piece of writing.

Contrary to what Claude Gubler maintained in his submissions, the time that has elapsed since François Mitterrand's death cannot have had the effect of definitively putting an end to the infringement observed when the book was published and rendering lawful the distribution of a book purporting to be a 'witness account of the historical truth about the President's two terms of office, to which the French people should have access' ..., when the defendant is not authorised to give a historical analysis of facts which became known to him in the performance of duties in which he was bound by absolute confidentiality.

Although, in spite of the injunctions of 18 January and 13 March 1996 prohibiting distribution of the book, information contained in Le Grand Secret has been divulged through various media, the ensuing situation is not capable of preventing the injury and damage that would result for the claimants from resumed distribution of the book, with the particular light which the comments of a doctor shed not only on relations with members of the family circle with whom he was in close contact, but also on the most intimate reactions of François Mitterrand to his illness.

In view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the rules of medical confidentiality, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it ...”

On an appeal by the applicant company, Dr Gubler and Mr Orban, the Paris Court of Appeal gave judgment on 27 May 1997. It cleared Mr Orban on the ground that the production and sale of Le Grand Secret did not constitute a separate tort from the one attributable to the applicant company. It also declared inadmissible the action brought by the Mitterrand family in so far as it concerned the protection of President Mitterrand's private life, pointing out in that connection that “the possibility for anyone to prohibit any form of disclosure about [their private life] is only open to the living”. As to the alleged invasion of the privacy of the Mitterrands themselves, the Court of Appeal noted that certain passages from the book in issue “entail[ed] invasions of the Mitterrands' privacy”, but considered that such infringements could not, “regrettable though they may have been, justify – regard being had, in particular, to their sporadic occurrence in the book – prohibiting publication of the book as a whole”.

However, holding that Dr Gubler had breached the duty of medical confidentiality by which he was bound, the Court of Appeal ordered him and the applicant company jointly and severally to pay damages in the amount determined in the first-instance judgment, and upheld the decision to maintain the ban on distribution of the book. The judgment of 27 May 1997 stated, in particular:

The breach of medical confidentiality

It was established in the judgment [of the Paris Criminal Court] of 5 July 1996, which has become final and binding on the civil courts, that Mr Gubler breached the duty of medical confidentiality by which he is bound.

It was rightly observed in that decision that breach of professional confidence was made a criminal offence not only in the public interest but also in the interests of private individuals, in order to guarantee the security of the confidential information which they are required to entrust to certain persons on account of their status and profession. The duty of medical confidentiality is founded on the relationship of trust essential to the provision of medical treatment, whereby patients are assured that anything they tell their doctor or cause him to see, hear or understand, as a person in whom such information must be confided, will not be disclosed by him.

Article 4, second paragraph, of the Code of Conduct for Medical Practitioners provides that medical confidentiality covers 'everything that has come to the attention of medical practitioners in the practice of their profession, that is, not only what has been confided in them but also what they have seen, heard or understood'.

Since Mr Gubler was in the company of Mr François Mitterrand solely on account of his position as his doctor, all the information he recounts in his book, which he learned or observed while practising his profession, is covered by the duty of medical confidentiality by which he is bound vis-à-vis his patient, although it may also constitute interference with the patient's private life or sphere of intimacy.

The Mitterrand family have inherited from Mr François Mitterrand the right to bring proceedings against the appellants. Although Le Grand Secret was published after François Mitterrand's death, it should be noted that the book was in fact the subject of a publishing contract signed on 8 November 199[5], prior to his death.

Accordingly, the Mitterrands have inherited from the deceased the right both to obtain redress for the breaches of medical confidentiality resulting from the disclosure of confidential information to Mr Gonod in May and June 1995 and to Mr Orban in November 1995, as the criminal court held, and to obtain compensation for the consequences of the decision taken on 8 November 1995 to publish the book; this possibility is not excluded by the judgment of 17 July 1995 and is not contrary to the principle of res judicata in relation to that judgment.

Redress

The exercise of freedom of expression, a principle with constitutional status set forth in Article 10 of the Convention ..., carries with it duties and responsibilities; it may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, for example for the protection of health, for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence.

In the instant case the prohibition of the book complained of is necessary since it is the only means of putting an end to the damage sustained and to the criminal offence which it constitutes ...”

In a judgment of 14 December 1999, the Court of Cassation dismissed an appeal on points of law by Mr Orban and the applicant company. In response to their ground of appeal based on Article 10 of the Convention, it held:

“... the Court of Appeal held that all the information published had been obtained by Mr Gubler in the performance of his professional duties as private physician to François Mitterrand, so that it was covered by the rules of medical confidentiality, although it could also constitute interference with the right to respect for private life. After observing that the breach of medical confidentiality had been established by a criminal court, the Court of Appeal, pointing out that the exercise of freedom of expression could be subject to certain restrictions, in particular for the protection of the rights of others, justified its decision in law in holding, in the exercise of its exclusive jurisdiction, that discontinuing the distribution of the book was the only means of putting an end to the criminal offence and the damage sustained, its assessment of which is not subject to appeal ...”

However, partly allowing an appeal on points of law by the Mitterrands, the Court of Cassation quashed and annulled the judgment of 27 May 1997 in so far as it had cleared Mr Orban, and remitted the case, on that point, to a differently constituted bench of the Paris Court of Appeal. The outcome of that aspect of the proceedings has not been specified by the parties.

The parties have stated that an electronic version of the text of Le Grand Secret is available on the Internet. They have not indicated who decided to disseminate the text in this form or the date when it became available.

The obligation of medical confidentiality incumbent on medical practitioners is set forth in the following provisions of the Code of Conduct for Medical ¨Practitioners:

“The duty of professional confidentiality, established in the interests of patients, shall apply to all medical practitioners as provided by law.

Such confidentiality shall cover everything that has come to the attention of medical practitioners in the practice of their profession, that is, not only what has been confided in them but also what they have seen, heard or understood.”

“Medical practitioners must ensure that persons who assist them in their practice are informed of their obligations regarding professional confidence and comply with them.

They must ensure that those around them do not breach the confidentiality attaching to their professional correspondence.”

“Medical practitioners must protect from any indiscretion the medical documents concerning persons whom they have treated or examined, irrespective of the content or form of such documents.

The same shall apply to any medical information that may be in their possession.

When using their own experience or documents for the purposes of academic publishing or teaching, medical practitioners must ensure that individuals cannot be identified. Failing this, the consent of the persons concerned must be obtained.”

Breaching professional confidence is a criminal offence under Article 226-13 of the Criminal Code, which provides:

“The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by one year's imprisonment and a fine of 15,000 euros.”

The Court of Cassation has held that “what the law intended to guarantee is the security of confidential information which individuals are required to disclose to persons whose position or profession makes it necessary, in the general public interest, to confide such information in them” (Criminal Division of the Court of Cassation (Cass. crim.), 19 November 1985, Bulletin criminel (Bull. crim.) no. 364). The Court of Cassation has further held that “the obligation of professional confidence, as set forth in Article 226-13 of the Criminal Code in order to ensure the necessary trust in the practice of certain professions or the performance of certain duties, is incumbent on medical practitioners, save where the law provides otherwise, as a duty inherent in their position [and], subject only to this proviso, is general and absolute” (Cass. crim., 8 April 1998, Bull. crim. no. 138), and that “no one is entitled to release them from it” (Cass. crim., 5 June 1985, Bull. crim. no. 218). In a case concerning a lawyer, it has held that “the obligation of professional confidence, as set forth in Article 226-13 of the Criminal Code, is incumbent on lawyers as a duty inherent in their position [and that] knowledge by others of facts covered by the confidentiality rule does not mean that they are no longer confidential and secret” (Cass. crim., 16 May 2000, Bull. crim. no. 192).

Article 226-14 of the Criminal Code (in its wording resulting from Law no. 2002-73 of 17 January 2002) provides:

“Article 226-13 shall not apply in cases where the law requires or authorises disclosure of confidential information. Nor shall it apply to:

(1) persons who inform the judicial, medical or administrative authorities of acts of deprivation or ill-treatment, including sexual assault, of which they have knowledge and which have been inflicted on a minor under 15 years of age or a person unable to protect himself or herself because of his or her age or physical or mental condition;

(2) medical practitioners who, with the victim's consent, bring to the attention of a public prosecutor acts of ill-treatment which they have noted in the practice of their profession and which cause them to suspect that sexual assault of any nature has been committed;

(3) health or welfare professionals who inform the prefect, or, in Paris, the Commissioner of Police, of the danger posed to themselves or others by persons who consult them and whom they know to be in possession of a weapon or to have indicated their intention to acquire one.

No disciplinary measures may be taken where a medical practitioner has reported acts of ill-treatment to the relevant authorities in accordance with this Article.”

The Court of Cassation has held that, although professional confidentiality is a strict obligation, it cannot prohibit medical practitioners whom a patient has attempted to involve in fraud by causing them, through deception, to issue a certificate falsely attesting to the existence of illness or disability from proving that they acted in good faith by giving evidence, in judicial proceedings relating to the fraud, about the means used to falsify their examination and impede their judgment, thereby causing them to issue the certificate (Cass. crim., 20 December 1967, Bull. crim. no. 338). The Government pointed out, however, that that was possible only on condition that the disclosure was limited to the strict requirements of the medical practitioner's defence in court and did not take the form of a deliberate public disclosure; they referred in that connection to a Watelet judgment delivered by the Criminal Division of the Court of Cassation on 19 December 1885, although they did not produce it or cite its publication reference. The applicant company produced a judgment of 22 May 2002 in which the First Civil Division of the Court of Cassation held that “pursuant to Article 901 of the Civil Code [by which 'persons making a donation ... must be of sound mind'], which amounts to authorisation within the meaning of Article 226-14 of the Criminal Code, practitioners are released from their obligation not to disclose facts which become known to them in the practice of their profession; since the purpose of professional confidence is to protect the non-professional who confided such facts in the professional, they may be disclosed not only to the non-professional but also to persons with a legitimate interest in ensuring this protection”. The Court of Cassation inferred from this that the trial courts could rule that an expert appointed in proceedings for the determination and partition of an estate should have access to the deceased's medical records without being blocked on grounds of medical confidentiality by the practitioner in possession of the records.