The applicant, A.G., is a German national who was born in 1990 and lives in Allerum. He was represented before the Court by Dr. jur. A. Firsching, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs. The German Government did not make use of their right to intervene under Article 36 of the Convention.

On 5 November 2007 the father of A., a seven year-old girl, reported to the police that his daughter had told her mother the day before that she had been sexually abused by the applicant. The incident was supposed to have taken place some time during the 2007 school summer break.

On 6 November 2007, between 2.08 p.m. and 2.44 p.m., A. was interviewed by a police inspector. The interview was recorded on videotape. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him.

On 7 November 2007 the applicant was questioned by the police, in the presence of his newly-appointed defence counsel. Before the questioning he was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), that he was suspected of rape of a child (våldtäkt mot barn).

On 10 December 2007, between 10.06 a.m. and 10.35 a.m, A. was interviewed a second time by the police inspector who had conducted the first interview. This interview was also videotaped. The applicant’s counsel was shown the recording of the first interview before the start of the second interview. He followed the second interview on a monitor, from an adjoining room and used the opportunity to put supplementary questions to A. through the interviewing police inspector. The applicant himself was not present, however.

On 17 December 2007 the applicant was questioned by the police a second time, in the presence of his counsel.

The police also interviewed A.’s father and mother, A.’s father’s partner, the cohabitee of the grandmother of the partner, A.’s grandmother and the eight-year-old friend of A. The last interview was videotaped.

The preliminary investigation was concluded on 18 February 2008. The applicant and his counsel were notified of the investigation report on 20 February 2008, at which time they were shown the videotaped interviews with A. and with her friend. The applicant’s counsel requested that a supplementary interview be held with the friend’s father. This interview was held on 29 February 2008. No further requests or comments were made concerning the report of the preliminary investigation.

The applicant was subsequently indicted for rape of a child.

The District Court (tingsrätten) of Helsingborg held a hearing in the case on 27 March 2008. Heard by the court, the applicant denied the charges. The videotaped police interviews with A. were shown during the hearing. The court also heard evidence from A.’s mother and A.’s father’s partner, on the proposal of the prosecution, as well as the father of A.’s friend, at the request of the defence. No request was made for A. to be heard in person.

In a judgment of 3 April 2008 the District Court, by a majority of three lay assessors against the presiding judge, convicted the applicant of the lesser offence of sexual assault of a child (sexuellt övergrepp mot barn) and sentenced him to 70 hours of community service. It also ordered him to pay 50,000 Swedish kronor in damages to A. The court gave the following reasons:

“[The applicant] has completely denied the charges brought against him by the prosecutor. The evidence consists mainly of the information given by the plaintiff at two videotaped interviews which have been played back at the main hearing. Defence counsel had the opportunity to put supplementary questions to A. through the interviewer during the second interview. Nevertheless, interviews of this kind should always be evaluated with caution (...). The court cannot base its evaluation of the credibility of the plaintiff and the reliability of the information submitted on impressions of the kind conveyed by an examination in court. [The applicant] has been prevented from putting questions to the plaintiff through his counsel before the court and the court has not been able to put questions to the plaintiff either.

The interviews in issue are of good quality. There have been good opportunities to observe the plaintiff’s facial expressions and body language during the interview. Without any leading questions having been put to her, the plaintiff has given an account which in itself is consistent and which does not contain direct contradictions or statements that evidently cannot be true.

The suspicion that A. has been subjected to an assault arose when, in November 2007, she told her mother about the incident. Nothing that has emerged in the case indicates that A. has been put under pressure by, for instance, her parents before she, at the police interview, gave an account of what she had been subjected to. The information that A., according to witness statements, had revealed before the police interview is concordant with the information she gave at the police interview. Moreover, there are no noticeable divergences between the accounts in the police interviews which took place with more than a month’s interval. During the interviews she has given a detailed account of what [the applicant] did and stated that she told [him] that it hurt. She has shown in which position she was lying and how [the applicant] was placed in relation to her when the assault occurred.

The fact that A. revealed what had happened only in November 2007, whereas the incident is supposed to have occurred during the summer break of 2007, could be held against the credibility of her statements. Furthermore, it has emerged that A., immediately prior to telling about the assault in issue, made intercourse-style movements against the arm of her mother’s partner and explained that she “made babies” with him. There is no indication that any such movements occurred in connection with the incident now being examined. It has also emerged that A. a previous year was subjected to a sexual act, during which the perpetrator stated that he was showing “how one makes babies”.

The account given by [the applicant] is not in itself contradictory. However, his statement that the plaintiff made advances to him appears, in the view of the District Court, to be less probable given her age and level of development. It also appears less probable that he would have occupied himself for such a long period of time with a younger girl who, according to his own opinion, was rather demanding, although it has emerged that he is helpful and sometimes baby-sits for others.

The District Court places reliance in A.’s statements and finds beyond reasonable doubt that [the applicant] committed the sexual acts indicated by the prosecutor in the indictment.”

The District Court then considered that the sexual acts in question – which consisted of touching A.’s genitals and trying to insert a finger into her vagina – were not comparable to intercourse. Consequently, the applicant could not be held liable for rape of a child.

In her dissenting opinion, the presiding judge stated that, while the applicant’s account of events, for the reasons indicated in the judgment, appeared somewhat less plausible than that given by A., it did not contain any direct contradictions or demonstrable errors. She was of the opinion that a verdict of guilty required supporting evidence of some strength. However, the evidence given by various witnesses could not be regarded as independent of the police interviews and it did not in any important aspect strengthen the prosecutor’s claims. Consequently, in the absence of further information, the judge did not find that the applicant’s guilt had been proven beyond reasonable doubt.

The applicant appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge. Asserting that, when it is one person’s word against another’s, certain supporting evidence is required for a conviction, he maintained that the evidence invoked by the prosecutor did not lend such support to the statements made by A.

In May 2008 the appellate court held a hearing, during which the videotaped police interviews with A. were played back. Audiotapes of the testimony given by witnesses before the District Court were also played back. Moreover, it took evidence from a new witness proposed by the defence, a neighbour and former partner of A.’s friend’s father. Again, the applicant did not request that A. give evidence during the hearing.

In a judgment of 9 June 2008 the Court of Appeal upheld the applicant’s conviction and sentence. It restated some precedents of the Supreme Court (Högsta domstolen), according to which the outcome in cases concerning sexual offences mainly hinged on the evidence given by the plaintiff. The absence of observations by witnesses or technical evidence did not prevent the evidence from being considered sufficient for a conviction. However, to an increasing extent, a verdict of guilty required that the plaintiff’

“When it comes to the videotaped interviews that have been held with A., as indicated by the District Court, such interviews must be evaluated with caution, although there is no reason to direct any particular criticism against the interviews that have been held in the instant case.

As the District Court has set out, there are no noticeable divergences between the statements given by A. on different occasions. Her account of what [the applicant] did and how she felt has been relatively exhaustive. It contains certain details which strengthen the impression that she is describing something that she has experienced. Such a detail is her description in the videotaped interviews that they are playing, that [the applicant] then fetches the mobile phone and that he, after having introduced the idea of nude photographing, takes photos of A. who, by then, has pulled down her knickers and shorts but is still dressed on the upper part of the body. Another detail is her description of the condom which the applicant is supposed to have put on one of his fingers. She makes a drawing of it and describes it as being sticky, transparent and soft. It is true that her mother has testified that it is not ruled out that, on some occasion, she might have told A. what a condom is, but there is no indication that A. earlier had a particular familiarity with the subject.

The information given by A. at the interviews is supported by her mother’s statement. Her account has been very nuanced, and she has given her statement with rather unusual openness, thoughtfulness and moderation. She has reported that, in connection with a story-time, A. made movements against her mother’s partner’s arm and said that she “made babies” and that, when asked from whom she got that idea, she answered [the applicant]. Asked when they had talked about that, A. replied that it had happened when he had asked if she had seen nude photos of her vagina. When she had answered in the negative, he had, according to A., suggested that they take some photos, which she first refused but later agreed to. According to the mother, A. seemed to be ashamed that she had agreed to this. When asked by the mother if anything else had happened, A. had told the rest. A.’s account is also to some extent supported by the testimony given by A.’s father’s partner. A. has given information about the assault also to her, in particular on the introductory part.

Are there then any circumstances which may undermine A.’s credibility? A. did not tell her mother about the incident until a number of months later. It is obvious, however, that her interpretation of the incident is that of a child, into which she has not read everything that a grown-up would. Accordingly, there is nothing striking about the fact that she told about the incident only on an occasion which can be said to have had a certain connection to the incident.

She is supposed to have made intercourse-style movements against a relative on one occasion in addition to the above-mentioned. Moreover, on an occasion further back in time, A. told her parents that she, together with a friend and her elder brother, experienced something with certain rather innocent sexual connotations. However, neither this nor the other information that has emerged indicates that A. has any sexual interest or knowledge in the matter which goes beyond the ordinary.

Furthermore, it has not been shown that A. has any motive to give incorrect information about the applicant.

Against this background, the Court of Appeal finds, in agreement with the District Court, that the examination [of the case] should be based on the statements given by A. Through her statements it has been proven that [the applicant] made a caressing movement on the outside of A.’s genitals. However, her statements differ to some extent on the question of whether he twice tried to insert a finger or actually did insert it. Consequently, it has been proven only that he tried to do it.”

The applicant appealed to the Supreme Court. He claimed that he had been convicted solely on the basis of the statements given by A., which were not supported by any other independent evidence.

On 9 July 2008 the Supreme Court refused the applicant leave to appeal.

Domestic provisions of relevance in the present case are found in the 1942 Code of Judicial Procedure (Rättegångsbalken; hereafter “the Code”) and in the Ordinance on Preliminary Investigations (Förundersöknings-kungörelsen, 1947:948 – “the Ordinance”). There is also some national case-law of interest.

A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, section 10, of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, section 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, section 11, of the Code).

When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, section 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, section 19, of the Code).

Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, section 10, of the Code, a child’s custodian should be present whenever a child under the age of 15 is questioned if this can be done without any harmful effects on the investigation.

Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of 18 must be conducted in such a manner that there is no danger that the interviewed person might be harmed. It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require. Questioning is, moreover, according to section 17 of the Ordinance, not allowed to take place on more occasions than is necessary with regard to the nature of the investigation and the best interest of the child.

Section 18 of the Ordinance provides that interviews with children must be conducted by persons who are particularly apt to perform the task. In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child’s testimony.

Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, section 4, of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video-recording of the police interview, which is played back during the court’s main hearing. In allowing this to take place, the court applies Chapter 35, section 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand.

On a few occasions the Supreme Court has examined the question of evaluation of evidence in cases where the prosecutor’s indictment has been based to a large extent on videotaped police interviews with the injured party. In such situations, the Supreme Court has stated that the fact that the courts have not had the opportunity to assess the credibility and reliability of a witness or an injured party, and that the accused has not been able to question that person, ought to entail that the statements are examined and evaluated with particular caution. In the published cases NJA 1993 p. 68 and NJA 1993 p. 616 the Supreme Court came to the conclusion that the videotaped interviews, combined with other supporting evidence, were sufficient for a conviction.

In the case NJA 1992 p. 532, the injured party had not attended the main hearing but the Court of Appeal had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. Thus, in the light of the Court’s case-law, the Supreme Court found that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention and therefore referred the case back to the Court of Appeal for re-examination.

The Supreme Court has in a number of cases examined the question concerning the assessment of evidence in cases regarding sexual offences mainly hingeing on the evidence given by the plaintiff. In such situations, the Supreme Court has stated that in order for the courts to find the guilt of the accused beyond reasonable doubt, it is not sufficient that the statements of the injured party are found to be more credible than the applicant’s story. The Supreme Court has, however, stressed that even if direct witnesses and technical evidence are generally missing in such cases, this does not prevent a conviction if the injured party’s statements are found throughout to be credible and compatible with other circumstances, for example testimonies regarding the injured party’s behaviour after the incident (see, for example, NJA 2005 p. 712 and NJA 2009 p. 447).


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

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1947 and lives in Pabianice. She owns a semidetached house located in a residential area. A tailoring workshop employing about 20 people was located in the other half of the building.

On 14 September 1993 the applicant made an application to the City Council for a ban on the operation of the workshop or at least for measures to be taken to reduce the level of noise it generated.

On 11 June 1994 the Director of the Pabianice District Office, to which the application of 14 September 1993 must have been transferred, issued a decision in which it found that the workshop was operating without the required permission. He obliged the owner of the workshop to take steps to remedy the situation, inter alia by obtaining an environmental impact assessment of the workshop and by carrying out adaptation works.

On 30 January 1995 the Governor of Łódź approved a “[t]echnical project on protection of the environment against noise”, and obliged the owner to comply with the project and to submit an evaluation of the noise level.

On 7 February 1995 the Governor of Łódź approved the location of the workshop on condition that the owner complied with the requirements set out in the decision of 30 January 1995.

On 15 March 1995 the Director of the Construction Supervision Department of the Town Office gave instructions as to the way in which the works to adapt the workshop should be conducted. The applicant appealed.

On 4 April 1995 the applicant lodged an appeal with the Governor of Łódź in which she complained that she had not been allowed to participate in the proceedings. She submitted that she should have been treated as a party to them and that she had not received an answer to her application of 14 September 1993.

On 11 May 1995 the applicant made an application to the Minister of Environment for the proceedings – which must have been discontinued on an unspecified earlier date – to be reopened in order to enable her to participate as a party to the proceedings in order to have her arguments taken into consideration.

On 17 May 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995 until the request for reopening of 11 May 1995 had been considered. The workshop’s owner appealed.

On 7 August 1995 the General Inspector of Construction Supervision quashed the decision of 17 May 1995.

On 20 October 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995. The workshop’s owner appealed.

On 15 December 1995 the General Inspector of Construction Supervision upheld the decision of 20 October 1995. The applicant appealed.

On 25 February 1997 the applicant made an application to the Governor of Łódź requesting, inter alia, that the decisions of 7 August 1995 and 15 December 1995 be quashed and that the operation of the workshop be stayed until a decision was made on the merits of her request of 1993.

On 14 November 1997 the Minister of Environment quashed the decisions of 7 August 1995 and 30 January 1995. In the written grounds he stated that the noise pollution inside the applicant’s home was not a matter of environmental protection, so that there was no legal basis for the proceedings to be instituted. The applicant appealed to the Supreme Administrative Court.

In a letter of 12 January 1998 to the Director of the Pabianice District Office the applicant requested that the appeal proceedings against the decision of 15 March 1995 be stayed until the appeal against the decision of 14 November 1997 lodged with the Supreme Administrative Court had been decided. On 30 January 1998 the Governor of Łódź, to whom this request must have been transmitted, stayed the proceedings as requested. The applicant’s neighbour appealed.

On 18 March 1998 the General Inspector of Construction Supervision quashed the decision of 30 January 1998 and remitted the case for reconsideration.

On 26 August 1998 the Governor of the Town of Łódź upheld the decision of 15 March 1995 and set a new time-limit for the workshop’s owner to comply with the imposed obligations.

On 25 November 1998 the Director of the Pabanice District Office granted permission for the operation of the workshop. The applicant appealed. On 23 March 1999 the Governor of Łódź quashed the decision of 25 November 1998 and remitted the case for reconsideration. The workshop’s owner appealed.

On 13 November 2001 proceedings were instituted to determine whether the operation of the workshop was lawful. On the same day the applicant was informed that on 13 December 2001 an inspection of the building would be carried out. On the same day the Supreme Administrative Court dismissed the owner’s appeal against the decision of 23 March 1999.

On 29 November 2001 the Mayor of Pabianice stayed the proceedings concerning the granting of permission until the Pabianice District Inspector of Construction Supervision had given a decision as to whether the operation of the workshop complied with the applicable legal requirements. The applicant appealed.

On 8 March 2002 the Mayor of Pabianice issued an operation permit for the workshop. The applicant appealed. On 26 April 2002 the Governor of Łódź informed the applicant that the time-limit set by law to decide on her appeal had been extended because of the need for checks to be done by the building inspection authorities.

On 7 June 2002 the Governor of Łódź upheld the decision of 8 March 2002. The applicant lodged a complaint with the Supreme Administrative Court.

By a decision of 29 October 2002 the Pabianice District Inspector of Construction Supervision authorised the operation of the workshop. The applicant appealed.

On 25 February 2003 the Supreme Administrative Court quashed the decision of 7 June 2002 and the preceding decision of 8 March 2002. It observed that noise evaluation tests were necessary for a decision allowing the operation of the workshop. Such tests had already been carried out in the case, but not in an appropriate manner. They should have been carried out during the working hours of the workshop and at different times and should have allowed for the applicant’s involvement to enable her to put forward her arguments to the person conducting the tests.

On 18 March 2003 the Pabianice Inspector of Construction Supervision stayed the proceedings concerning the permission to operate the workshop. The applicant appealed and they were resumed at an unspecified later date.

On 3 July 2003 the Mayor of Pabianice issued a decision obliging the workshop’s owner to supplement the submitted documentation by, inter alia, submitting an evaluation of the noise level before 30 September 2003.

On 29 October 2003 the District Inspector of Construction Supervision gave permission to operate the workshop on the basis of noise evaluation tests carried out by a certain S.K. The applicant appealed, challenging the soundness of the outcome of the tests and the way they had been carried out.

On 28 January 2004 the Łódź Regional Inspector of Construction Supervision quashed the decision of 29 October 2003, finding that the applicant had not been given an opportunity to be sufficiently involved in the noise evaluation tests.

On 22 October 2004 the applicant lodged a complaint with the Łódź Regional Inspector of Construction Supervision about inactivity on the part of the Pabianice District Inspector of Construction Supervision, to whom the case had been remitted for reconsideration on the strength of the decision of 28 January 2004.

On 20 October 2004 the Łódź Regional Inspector of Construction Supervision gave a decision in which it found inactivity on the part of the Pabianice District Inspector of Construction Supervision and obliged him to give a decision by 20 February 2005.

On 14 January 2005 the applicant lodged a complaint with the General Inspector of Construction Supervision about the administration’s failure to act in her case.

By a decision of 7 March 2005 the General Inspector of Construction Supervision stated that no inactivity on the part of the Łódź Regional Inspector of Construction Supervision had been found.

On 18 March 2005 the Pabianice District Inspector of Construction Supervision stayed the proceedings concerning the request for permission to operate, pending the outcome of noise tests to be carried out by the Regional Inspector of Environmental Protection. The applicant appealed. On 23 June 2005 the Łódź Regional Inspector of Construction Supervision allowed her appeal, quashed the decision staying the proceedings and ordered that they should be conducted further.

On 27 July 2005 the applicant complained to the administrative court about the District Inspector’s failure to take any steps to have a proper noise evaluation carried out and to give a decision on the merits of the case. In his reply of 25 August 2005 the Regional Inspector summarised the developments in the proceedings since the applicant’s complaint of 22 October 2004 and reiterated that the proceedings were, after its decision of 23 June 2005, pending before the first-instance authority. It noted that the applicant’s appeal against the decision of 18 March 2005 to stay the proceedings was fully justified.

By a judgment of 20 October 2005 the Łódź regional administrative court partly allowed the applicant’s complaint and set a one-month timelimit for the District Inspector to give a decision. It summarised the conduct of the proceedings since its judgment of 25 February 2003. It further observed that the proceedings had been conducted exceedingly slowly and that no valid justification for this unreasonable delay had been adduced by the administrative authorities.

The proceedings are pending.

Under domestic law inactivity on the part of authorities is open to challenge.

Firstly, a party to administrative proceedings can make a complaint to a hierarchically higher authority under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the timelimits fixed in that Code.

If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure, up to 1 January 2004 a party could have lodged a complaint about inactivity on the part of the administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. This provision was repealed with effect from 1 January 2004.

On 1 January 2004 the 1995 Act was replaced by the Act on Proceedings before Administrative Courts of 30 August 2002, which provides for similar remedies.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants were born in 1977 and 1975 respectively and live in Rome.

Following the birth of their daughter in 2006, the applicants learned that they were healthy carriers of cystic fibrosis. The child had been born with the disease.

In February 2010, when the first applicant was pregnant again, the applicants, who wanted to have a healthy child unaffected by the genetic disease, had a prenatal test carried out. The results showed that the foetus was affected by cystic fibrosis. The applicants then decided to have the pregnancy terminated on medical grounds.

The applicants now want to take advantage of assisted reproduction technology (hereafter “ART”) and preimplantation genetic diagnosis (hereafter “PGD”) before the first applicant becomes pregnant again. However, under Law no. 40 of 19 February 2004, ART is available only to sterile or infertile couples. There is a blanket ban on the use of PGD.

By a decree of 11 April 2008, the Ministry of Health extended access to ART to couples in which the man suffers from a sexually transmissible viral disease (such as the HIV virus, or hepatitis B and C) to allow them to conceive children without the risk of contamination of the woman and/or the fœtus inherent in conception by natural means.

According to the information provided by the Government and the first third-party intervener, this operation is done by “sperm washing” prior to in vitro fertilisation.

“Access to assisted reproduction technology shall be authorised only where proof is adduced that it is otherwise impossible to eliminate the causes of inability to procreate, and, in any event, [said access] shall be limited to medically certified inexplicable cases of sterility or infertility and to cases of sterility or infertility [deriving] from a medically certified and verified cause. ...”

“... Adult couples, composed of two persons of opposite sex, who are married or living together as a couple, of potentially fertile age and alive may have access to assisted reproduction technology.”

“Individuals satisfying the conditions provided for in section 5 shall be informed of the number and, at their request, the state of health of the embryos produced and destined to be transferred into the womb.”

“... Any test regarding the state of health of an embryo created in vitro, within the meaning of section 14(5) [of Law no. 40 of 2004], must be for observation purposes alone (dovrà essere di tipo osservazionale). ...”

In this decree the reference to “observation” purposes mentioned in Ministry of Health decree no. 15165 of 21 July 2004 was deleted.

Furthermore, the part of this decree concerning certification of infertility or sterility provides that, for the purposes of access to assisted reproduction technology, this must be done

“... having regard also to particular conditions in the presence of which – where the man is a carrier of a sexually transmissible viral disease by infection with HIV, or hepatitis B and C – the high risk of infection for the mother or for the fœtus constitutes de facto, in objective terms, an obstacle to procreation, requiring precautions that necessarily result in infertility of a kind comparable to acute male infertility deriving from a verified and medically certified cause such as that referred to in section 4(1) of Law no. 40 of 2004”.

In this judgment the court set aside on grounds of ultra vires the part of Ministry of Health decree no. 15165 of 21 July 2004 limiting any test relating to the state of health of embryos created in vitro to observation purposes alone. The court found that the power to establish the scope of application of such tests was a matter for the legislature alone and not the ministry, which had purely implementing powers.

In this order, following urgent proceedings, the delegated judge of the Salerno Court granted, for the first time, a couple who were neither sterile nor infertile, and both healthy carriers of muscular atrophy, access to PGD.

The judge referred, among other things, to the new provisions introduced by the Ministry of Health decree no. 31639 of 11 April 2008 no longer limiting tests on the state of health of embryos created in vitro to observation purposes alone and authorising access to assisted reproduction for couples in which the man carried a sexually transmissible viral disease.

He thus considered that PGD had to be regarded as one of the prenatal monitoring techniques for ascertaining an embryo’s state of health. Accordingly, prohibiting access to the technique, in the claimants’ case, engaged the medical liability of the Health Director of the Centre for Reproductive Medicine, who was the defendant in the proceedings, for failure to provide a health service.

The judge also found that since the mother had the right to abort an unhealthy fœtus, it would be unreasonable not to guarantee her the right to know the state of health of the embryo by means of PGD.

The judge accordingly ordered the health director to carry out a PGD on the claimants’ in vitro embryo in order to determine whether it was affected by muscular atrophy.

The relevant parts of this Convention read as follows:

“Tests which are predictive of genetic diseases or which serve either to identify the subject as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to health purposes, and subject to appropriate genetic counselling”.

Paragraph 83 of the Explanatory Report to the Oviedo Convention provides:

Article 12 as such does not imply any limitation of the right to carry out diagnostic interventions at the embryonic stage to find out whether an embryo carries hereditary traits that will lead to serious diseases in the future child.

The Oviedo Convention, signed on 4 April 1997, has not been ratified by the Italian Government.

This directive has established a minimum quality and safety standard for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, thus providing for harmonisation of national regulations. It also covers embryos transferred following PGD.

The CDBI drew up this report with a view to providing information on preimplantation and prenatal diagnosis and the legal and ethical questions arising from their use in various European countries. The relevant extracts of this document are worded as follows:

[a) Context]

“In vitro fertilisation has been performed since the late ‘70s to help couples with fertility problems. Advances in reproductive medicine have opened new possibilities to avoid genetic disease by selective transfer of embryos. At the beginning of the’90s, preimplantation genetic diagnosis (PGD) was introduced as a possible alternative to prenatal genetic diagnosis (PND) for couples at risk of transmitting a particularly severe genetic defect, avoiding the difficult decision of whether or not to terminate a pregnancy.”

[b) PGD cycle]

“A “PGD cycle” comprises the following steps: ovarian stimulation, oocyte retrieval, in vitro fertilisation of several mature oocytes, by introcytoplasmic sperm injection (ICSI), removal of 1 or 2 embryonic cells, genetic analysis of nuclear material from those cells and lastly selection and transfer of embryos not carrying the abnormal genetic characteristics in question.”

[c) PGD uses]

“Use of PGD for medical indications has been offered to couples at high risk of transmitting a specific genetic disease of particular gravity ... and untreatable at the time of diagnosis. The risk was often identified on the basis of family history or the birth of affected children. Numerous monogenic indications currently meet these criteria justifying application of PGD, such as cystic fibrosis, Duchenne Muscular Dystrophy, myotonic dystrophy, Huntington’s disease, spinal muscular atrophy in infants and haemophilia.”

“In those countries where preimplantation genetic diagnosis (PGD) is performed, it has become an established clinical method to analyse genetic characteristics of embryos created by in vitro fertilisation, and to obtain information which is used to select the embryos to be transferred. The use of PGD is mainly requested by couples carrying genetic conditions linked to severe disorder or premature death of their offspring who wish to avoid initiation of a pregnancy that may not come to term or that may entail the difficult question of terminating the pregnancy in case of a detected particularly severe genetic defect.”

This report shows that PGD patients from countries where the practice is prohibited go abroad for the diagnosis. Italian patients generally go to Spain, Belgium, the Czech Republic or Slovakia.

The study also points to the inconsistency of legislative provisions which prohibit access to PGD yet authorise access to prenatal diagnosis and medical termination of pregnancy in order to avoid serious genetic diseases in children.

The relevant parts of the press release on this report read as follows:

“Concerted action at EU and national level is needed to tackle this problem, according to a report adopted by Parliament today. The current EU legislative framework is poorly suited to rare diseases and not well defined. Although rare diseases contribute greatly to morbidity and mortality, they are mostly invisible in health care information systems due to the lack of appropriate coding and classification systems. ... Parliament adopted an amendment today which recommends that Member States encourage efforts to avoid rare diseases which are hereditary, through genetic counselling of carrier parents and, where appropriate and “not contrary to existing national laws and always on a voluntary basis, through pre-implantation selection of healthy embryos”.”

The documents in the Court’s possession (namely, the reports of the Council of Europe and the European Commission, paragraphs 25 to 27 above) show that PGD is banned, at least for the prevention of transmission of genetic diseases, in the following countries: Austria, Italy and Switzerland.

With regard to Switzerland, the Court notes that on 26 May 2010 the Federal Council submitted for consultation a draft amendment to the current ban on PGD contained in the Assisted Reproduction Act, to provide for regulated access. An amendment to Article 119 of the Federal Constitution will be necessary in order to implement the change.

It also appears that PGD is authorised in the following countries: Germany, Belgium, Denmark, Spain, Finland, France, Georgia, Greece, Norway, the Netherlands, Portugal, the Czech Republic, the United Kingdom, the Russian Federation, Serbia, Slovenia and Sweden.

PGD is not the subject of specific regulations in the following countries: Bulgaria, Cyprus, Malta, Estonia, Ireland, Latvia, Luxembourg, Poland, Romania, Slovakia, Turkey and Ukraine. The Court notes that three of those countries (Cyprus, Turkey and Slovakia allow access to PGD in practice.

The Court also observes that in the case of Roche v. Roche and Others ([2009] IESC 82 (2009)), the Irish Supreme Court established that the concept of the unborn child did not apply to embryos created through in vitro insemination, which accordingly did not benefit from the protection provided for in Article 40.3.3. of the Irish Constitution recognizing the right to life of the unborn child. In that case the applicant, who had already had a child following in vitro fertilisation, had applied to the Supreme Court for leave to have implanted three other embryos created by the same fertilisation process, despite the lack of consent of her former partner from whom she had separated in the meantime.

This Bill seeks to extend the use of PGD to precluding the risk of giving birth to a child who is a healthy carrier of a serious genetic disease (access to this technique to avoid giving birth to children affected by genetic diseases being already provided for in Belgian law). The relevant passages of the Bill are set out below:

“Requests for preimplantation testing have increased over time and this is now an option for couples who run a high risk of giving birth to a child with a serious hereditary disorder where mutation can be detected. ...

Future parents generally prefer preimplantation genetic diagnosis (PGD) to prenatal diagnosis. Indeed ... “where the fœtus is affected this will involve terminating the pregnancy from three months onwards, which is generally a source of mental distress for parents who have invested emotionally in the fœtus as their future child ... Moreover, it is possible that several successive pregnancies have to be terminated before a healthy fœtus can be obtained [Source: Bioethics Advisory Committee, opinion no. 49 on the use of PGD]

Accordingly, the main advantage of preimplantation testing is that termination of pregnancy can be avoided. It has been observed that this constitutes the main motivation of the majority of couples seeking the treatment, these couples having often already endured the distressing experience of terminating a pregnancy on medical grounds.”


CASE OF ZWIAZEK NAUCZYCIELSTWA POLSKIEGO v. POLAND

Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings

In 1964 the administrative authorities handed over to the applicant association the management and use of a property that had been expropriated from a religious association by the State Treasury in 1962. The decision concerning the transfer stipulated inter alia that, on termination of the use of the property, the applicant association would be entitled to recuperate the outlays incurred in connection with any construction work carried out on the buildings, less the normal costs of upkeep.

On 20 October 1992 the Warsaw Property Commission (“the Property Commission”), set up pursuant to the Law on relations between the State and the Catholic Church in Poland, returned the property to the religious association. The Property Commission ordered the latter to reimburse the applicant association its outlay to the sum of 420,353,658 old zlotys (PLZ) (42,035 new zlotys (PLN)). That amount was based on a calculation prepared by experts. The applicant association challenged the amount and proposed its own calculation. However, the Property Commission declared that it lacked jurisdiction to examine further claims. Its decision contained a clause to the effect that the decision did not affect the applicant association’s right to make further claims relating to the 1964 decision in accordance with the general provisions of law.

The applicant association subsequently filed an action against the State Treasury with the Przemyśl Regional Court (sąd wojewódzki), in which it applied for reimbursement of the outstanding outlays, relying on the text of the 1964 decision in which the administrative authorities had established its right to those outlays. The applicant association also referred to the Property Commission’s decision of 20 October 1992.

On 15 December 1995 the court awarded the applicant association the sum of PLN 546,133.02 by way of reimbursement of its outlays. The court referred to the part of the 1964 decision which stated that the applicant association would be entitled to recover the outlays incurred in connection with any construction work carried out on the buildings, less the normal costs of upkeep.

Both parties to the proceedings appealed against this judgment.

On 13 June 1996 the Rzeszów Court of Appeal (sąd apelacyjny) decided to submit to the Supreme Court the question whether the 1989 Law on the relations between the State and the Catholic Church in Poland excluded the possibility of submitting to a civil court claims arising out of the use of a property that was returned to its original owner on the strength of a decision by a property commission.

On 27 June 1996 the Supreme Court replied in the affirmative to the Court of Appeal’s question.

The Supreme Court observed that the 1989 Law was a statute which addressed, inter alia, an exceptional matter, namely the regularisation of property issues created by expropriations carried out in the past against the Catholic Church. It noted that the proceedings before a property commission involved the participation of all parties concerned. The decisions of those commissions were intended to settle all property claims arising out of past expropriations. Such claims – including claims concerning outlays incurred by a former user of a property – could be brought before a civil court only in those exceptional cases provided for in section 64 of the 1989 Law where a property commission was unable to restore a property to its original owner. The Supreme Court pointed out that, following the Property Commission’s decision, the State Treasury had ceased to own the property. Accordingly, there were no grounds on which a claim against the Treasury could be brought before a civil court after that date.

The decision further read:

“The clause contained in the decision of the Property Commission to the effect that that decision ‘[did] not hinder the applicant association’s right to make further possible claims relating to the 1964 decision in accordance with the generally applicable provisions of law’ cannot be interpreted as allowing the plaintiff to vindicate its claims before a civil court. The application of generally applicable provisions of law [concerning financial settlements between the State Treasury as the owner of land and the users of land] is out of the question in the present case. The clause in question cannot be interpreted as an undertaking by the State Treasury to satisfy any possible and unspecified claims of the plaintiff association.”

The relevant section of the operative part of the decision read:

“A decision by the Property Commission, set up under the provisions of the Law on relations between the State and the Catholic Church in Poland, to the effect that the ownership of real property was returned to its original owner, a church entity, and which contains a ruling on the obligation to reimburse the outlays to the entity which has used such property hitherto, also rules out any possibility of bringing [before a civil court] any claims between the user and the State Treasury.”

On 5 December 1996 the Court of Appeal, having regard to the Supreme Court’s decision, quashed the judgment of the Regional Court and dismissed the applicant association’s action. Both parties to the proceedings appealed.

On 20 June 1997 the Supreme Court dismissed both parties’ cassation appeals. It noted that the applicant association’s cassation appeal was in fact directed against the Supreme Court’s decision of 27 June 1996, whereas that decision was binding on all the courts dealing with the case.

The relevant part of the Law of 17 May 1989 on relations between the State and the Catholic Church in Poland provides:

“(1) At the request of church entities, proceedings (hereinafter called ‘regularisation proceedings’) shall be instituted with regard to the restitution of the ownership of nationalised properties.

“(1) Regularisation proceedings shall be conducted by the property commission ... composed of representatives designated in equal numbers by the Office for Religions [Urząd do Spraw Wyznań] and the Secretariat to the Conference of the Episcopate of Poland [Sekretariat Konferencji Episkopatu Polski].

(2) Apart from the applicant, all State and church entities concerned shall be participants in the regularisation proceedings. ...

(5) The Commission examines cases in adjudicating groups, composed of members designated by the Office for Religions and the Secretariat to the Conference of the Episcopate of Poland, each of which shall nominate two members, and representatives of the hierarchical bodies of the participants in the proceedings, namely one representative of each body.”

“The regularisation may consist of:

restitution of the ownership of properties ... to church entities;

the grant of an alternative property ...

the award of compensation, if neither of the solutions provided for under 1 and 2 above is possible.

Under section 64, if a property commission is unable to reach a conclusion and give a ruling on a request for the restoration of property, the parties to the case may bring their claims to a civil court.


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings

The applicants were born in 1946, 1957 and 1970 respectively and live in Voronezh.

The applicants are in receipt of welfare payments for their children. In 1999 – 2000 they brought separate sets of civil proceedings against a local welfare authority, claiming arrears in those payments.

On 17 December 1999 the Levoberezhny District Court of Voronezh awarded the first applicant 3,245.28 Russian roubles (RUR) against the welfare authority. This judgment entered into force on 28 December 1999.

On 31 January 2000 the writ of execution was issued and sent to the bailiffs.

On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 17 December 1999 and returned the writ of execution to the first applicant, as the debtor had insufficient funds.

On 26 February 2002 the first applicant complained to the Department of Justice of the Voronezh Region about the bailiffs’ failure to execute the judgment in her favour.

By letter of 27 March 2002 the Department of Justice of the Voronezh informed the first applicant that the judgment in question had not been enforced, as the defendant had insufficient assets, and that it was open to her again to send the writ of execution to the bailiffs’ service.

On 29 April 2002 the first applicant lodged a court complaint against the bailiffs for their failure to enforce the judgment in her favour.

On 19 June 2002 the Leninskiy District Court of Voronezh allowed the first applicant’s complaint and ordered the bailiffs to recommence the enforcement proceedings.

On 2 June 2004 the first applicant was paid the amount due pursuant to the writ of execution.

On 29 March 2000 the Leninskiy District Court of Voronezh awarded the second applicant RUR 1,980.6 against the welfare authority. This judgment entered into force on 9 April 2000.

On 29 March 2000 the writ of execution was issued and sent to the bailiffs.

On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 29 March 2000 and returned the writ of execution to the second applicant, referring to the lack of the debtor’s funds.

On 27 April and 6 May 2002 the second applicant again sent the writ of execution to the bailiffs’ service.

On 30 September 2002 the bailiffs returned the writ of execution to the second applicant, having stated that they had been unable to enforce the judgment in her favour, as the defendant refused to pay.

On 2 June 2004 the judgment of 29 March 2000 was paid in full.

On 9 November 2000 the Tsentralny District Court of Voronezh awarded the third applicant RUR 4,304.7. This judgment entered into force on 20 November 2000. On the same date the writ of execution was issued and sent to the bailiffs.

On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 9 November 2000 and returned the writ of execution to the third applicant by reference to the lack of the debtor’s funds.

On 24 May 2002 the third applicant requested the bailiffs’ service and the Department of Justice of the Voronezh Region to ensure the enforcement of the judgment in her favour. It is unclear whether any response was ever sent to that request.

On 2 June 2004 the third applicant was paid the amount due pursuant to the writ of execution.

Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.

Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.


STOWARZYSZENIE ''POZNAŃSKA MASA KRYTYCZNA'' v. POLAND

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

The applicant, Stowarzyszenie Poznańska Masa Krytyczna, is an association registered in Poznań. It is represented before the Court by Mr A. Bodnar, a lawyer practising in Warsaw.

The applicant is a registered association. Its objective is to draw the attention of the public and the local authorities to the growing number of cyclists in Poznań and to the need to adapt traffic management measures and the road network for their benefit. Since 2005 it had organised monthly events consisting of gatherings of large numbers of cyclists riding through the main thoroughfares of Poznań.

On 27 October 2009 the applicant association notified the Poznań Town Hall of an event to be held on 30 October 2009 in protest against various forms of discrimination (mające na celu protest wobec dyskryminacji). It was to start at 6 p.m. and end at approximately 8.45 p.m. A specific route for the cycle ride was indicated in the notice.

By a decision of 29 October 2009 the mayor of Poznań banned the event. He was of the view that the assembly in the form planned by the applicant association had to be regarded as a “ride” (przejazd), a term to which section 7 of the Assemblies Act 1990 could not be held applicable. That provision referred to an assembly as a “passage” (przejście). As the planned event was to take the form of a ride, it could not be regarded as assembly within the meaning of that Act. Such an event fell under the Road Traffic Act 1997.

The applicant association appealed against that decision the same day, on the grounds that it was in breach of its right to freedom of peaceful assembly.

On 5 November 2009 the governor of Wielkopolska allowed the appeal. He held that the first-instance decision was in breach of Article 7 of the Assemblies Act. It had wrongly construed the notion of assembly in such a manner as to exclude a group of cyclists riding through town from the scope of the notion of assembly within the meaning of the provision. Such an interpretation was unduly restrictive and in breach of Article 57 of the Constitution, Article 21 of the UN Covenant of Civil and Political Rights, and Article 11 of the Convention. Furthermore, the conditions laid down in section 8 of the Assemblies Act specifying circumstances in which a ban of an assembly to be held could be imposed, such as danger to life or limb or a major danger to property, were not met.

The appellate body discontinued the proceedings.

The applicant association appealed against the second-instance decision, on the grounds that it also was in breach of the right to freedom of assembly, because it had been given after the planned date. The applicant association had not had at its disposal any procedure which would have made it possible to obtain a final decision prior to that date. It was of the view that a procedure should be in place enabling organisers of public meetings and assemblies to have a ruling – delivered in advance of the event – on whether the event can be held.

It further challenged the decision to discontinue the proceedings. It asked the Poznań Regional Administrative Court (Wojewódzki Sąd Administracyjny) to consider lodging a legal question with the Constitutional Court as to the compatibility of sections 7.1, and 9.1 and 4 of the Assemblies Act with the Constitution in so far as they laid down the procedural framework for obtaining authorisation.

On 20 November 2009 the Regional Administrative Court dismissed the appeal. It shared the view of the appellate body that the first-instance decision had been in breach of the applicant association’s right to freedom of assembly.

As to the grounds for appeal based on the allegedly deficient timeframe, the court held that pursuant to section 7 of the Assemblies Act, a request for approval to hold an assembly had to be filed no earlier than thirty days and no later than three days before the planned date. In the present case notice had been given on 27 October 2009, whereas the event had been planned for 30 October. The first-instance decision dated 29 October had been served on the applicant association the same day. It had lodged an appeal the next day, Friday 30 October. Saturday and Sunday were regarded as non-working days. On Monday 2 November the appeal had been forwarded to the second-instance administrative body. The decision had been given on 5 November and served on the applicant the same day.

The speed with which the case had been processed was not open to criticism. The governor had dealt with the case speedily. The applicant association had failed to take into consideration that the public administration did not work on Saturdays and Sundays. Had it filed its request earlier, it would have been possible for the authorities to give a decision prior to the planned date.

The court shared the appellant’s view that the contested decision had failed to indicate the grounds on which the proceedings had been discontinued in accordance with the applicable procedural provisions. However, this procedural breach had no bearing on the outcome of the case.

The court further held that there were no grounds on which to put a legal question to the Constitutional Court with a view to challenging the provisions of the Assemblies Act as to the time-frame within which the administrative authorities had to decide requests for approval to hold an assembly.

Article 57 of the Constitution reads:

Freedom of peaceful assembly and participation in such assemblies shall be ensured to everyone. Limitations upon such freedoms may be imposed by statute.

By virtue of section 1 of the Assemblies Act 1990, everyone has the right to freedom of peaceful assembly. A gathering of at least fifteen people, called in order to debate an issue or to express an opinion on a given issue, is to be regarded as an assembly within the meaning of the Act.

Under section 2, freedom of assembly can only be restricted by statute and where it is necessary for the protection of national security or public safety, for the protection of health or morals or for the protection of the rights and freedoms of others.

In principle, decisions concerning the exercise of freedom of assembly must be taken by the local authority in the municipality where the assembly is to be held. These decisions can be appealed against to the regional governor.

Under section 6 of the Act, the municipality must be informed by the organisers of the intention to hold a public gathering in an open air area accessible to an unspecified number of people. Under section 7, notice must be given to the municipality no earlier than thirty days and no later than three days before the planned date of the demonstration.

Pursuant to section 8 the municipality shall ban a demonstration if its purpose is in breach of the Act itself or of the provisions of the Criminal Code, or if it might entail danger to life or limb, or major damage to property.

According to the legislative provisions in force at the relevant time, a first-instance decision to ban a demonstration had to be served on the organisers within three days of the date on which the relevant request was filed and no later than twenty-four hours before the planned time of the demonstration. An appeal against the ban had to be lodged within three days of the date of its service. The lodging of such an appeal did not prevent the ban of the demonstration taking effect.

A decision given by the appellate authority had to be served on the organisers within three days of the date on which the appeal was lodged.


The applicant, Mr Fraydun Ahmet Kordian, has both American and Iraqi nationality and was born in 1956. He is currently detained in Turkey pending extradition to the United States to face charges of murder in the State of California. He was represented before the Court by Mr M.Bilici and Mr M. Türköz, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

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

The applicant fled from the United States (“US”) as he was suspected of murdering two people and attempting to murder two others, in California. On 20 October 2005 the California State Court issued an arrest warrant for the applicant.

On 22 October 2005 the applicant was arrested at Istanbul Atatürk Airport, while in transit to Iraq. He was detained on the same day by the Bakırköy Magistrates Court, relying on the decision of 20 October 2005 of the California State Court.

On 31 October 2005 the Ministry of Foreign Affairs sent a diplomatic note to the US authorities, informing them about the provisional detention of the applicant.

On 19 December 2005 the US Embassy in Ankara submitted a diplomatic note to the Turkish Ministry of Foreign Affairs, transmitting duly certified and authenticated documents in support of the extradition request concerning the applicant. They presented the affidavit, dated 2 December 2005, of Mr Robert Grace, the Los Angeles County Deputy District Attorney, stating that his office was determined not to seek the death penalty against the applicant for the two counts of murder. The undertaking given by Mr Grace read as follows:

“Kordian would face the maximum penalty of death or life imprisonment without the possibility of parole if he is convicted of more than one crime of murder in the first or second degree. Having given consideration to the facts and circumstances of the murders with which Kordian is charged, this office has determined not to seek the death penalty against the defendant. Accordingly the maximum possible punishment that could be imposed on the defendant in this case would be life imprisonment without the possibility of parole, plus monetary fines and restitution. This office is aware that this election is irrevocably binding upon us should the petition for extradition be granted in this case such that we could not later elect to pursue the death penalty against Kordian for this offence.”

The affidavit was sworn before the California Superior Court Judge and certified by the Associate Director at the Office of International Affairs in the Criminal Division of the Department of Justice on 6 December 2005. Furthermore, on the same day the affidavit and its certification were sealed by the Attorney General of the US Department of Justice and ultimately by the Secretary of State.

On 4 January 2006, following the questioning of the applicant and the examination of the relevant documents, the Bakırköy Assize Court prolonged the applicant’s detention on remand, as it considered that there was no clear request from the US authorities to extradite the applicant. On 6 January 2006 the applicant’s lawyer filed an objection against the remand decision. His request was dismissed by the Bakırköy Public Prosecutor.

On the same day the Ministry of Justice informed the Bakırköy Public Prosecutor that, the contrary to what the court had noted in its decision of 4 January 2006, there was a clear extradition request from the US authorities concerning the applicant, in accordance with the relevant international agreement between the two countries. On 6 January 2006, following the Public Prosecutor’s request, the Bakırköy Assize Court reconsidered the applicant’s case and rectified its initial decision. It decided to detain the applicant until his extradition.

On 15 February 2006 the applicant’s representative requested the Court to indicate to the Turkish Government, under Rule 39 of the Rules of Court, the suspension of his client’s extradition.

On 16 February 2006 the President of the Chamber to which the case had been allocated decided to indicate to the respondent Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicant to the United States until further notice, and invited them to submit written observations on the admissibility and merits of the case.

Following this Rule 39 indication, on 21 February 2006 the Ministry of Justice requested the suspension of the extradition proceedings.

On 16 March 2006 and 14 April 2006, the Court received the observations of the Government and the applicant, respectively.

Extradition between Turkey and the United States is governed by the “Treaty on extradition and mutual assistance in criminal matters between the United States and the Republic of Turkey”, signed at Ankara on 7 June 1979. It entered into force 1 January 1981. The relevant provisions of the Treaty provide as follows:

Article 7

“Contents of the request:

A request relating to a person being prosecuted or who is charged with an offence, and who has yet to be convicted, shall be accompanied by the following:

(a) A warrant of arrest issued by a judge or other competent judicial officer;

(b) A statement of the facts of the case;

(c) Such evidence as, according to the laws of the Requested Party, would justify arrest and committal for trial of the person sought if the offence had been committed in the territory of the Requested Party;

(d) Evidence proving that the person sought is the person to whom the warrant of arrest refers, including information, if available, on nationality; and

(e) The text of the applicable laws of the Requesting Party, including the law defining the offence, the law prescribing the punishment for the offence, and the law relating to the limitation of legal proceedings or the enforcement of the penalty for the offence. ...”

Article 10

“Provisional arrest or detention:

(1) In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey.

(2) The application for provisional arrest or detention shall state that a warrant of arrest or a judgment exists and that it is intended to make a request for extradition. It shall also state the offence for which extradition will be requested and when and where such offence was committed and shall give all available information concerning the description of the person sought and nationality. ...

(3) The Requested Party shall make the necessary arrangements for the provisional arrest or detention and shall notify the other Party when the person sought has been arrested or detained specifying that the person sought will be released if the documents mentioned in Article 7 are not submitted within a period of 60 days from the date of arrest or detention.

(4) If the documents for extradition are submitted to the executive authority of the Requested Party within the 60 day time limit, the arrest or detention shall continue until a decision on the request for extradition has been reached by the competent authorities of the Requested Party. If the request for extradition is granted, the arrest or detention may be extended to the extent permitted by the laws of the Requested Party. ...”


The applicant is a Turkish national, born in 1958, and living in Natters.

He is represented before the Court by Mr. Horst Lumper, a lawyer practising in Bregenz.

The applicant came to Austria in November 1989 without having a valid visa. In 1990 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft) found him guilty of illegal entry and imposed a fine of 2,200 Austrian Schillings (ATS) on him. Subsequently, the applicant obtained a residence permit which was periodically renewed. In August 1991 his wife, who is also a Turkish national, as well as their son, born in 1975, and their daughter, born in 1985, were allowed to join him under a family reunion scheme. The applicant found employment as a worker. In 1993 the Innsbruck District Administrative Authority found him guilty of drunken driving and imposed a fine of ATS 12,100 on him. In 1994 the same authority found him guilty of refusing to undergo a breathalyser test when being reasonably suspected of drunken driving and imposed a fine of ATS 15, 400 on him.

On 9 February 1995 the Innsbruck District Administrative Authority issued a residence ban valid for five years against the applicant. Referring to S. 18 § 1 and § 2 (2) of the 1992 Aliens Act (Fremdengesetz), according to which a residence ban has to be issued against an alien, inter alia, if he has been convicted more than once of a serious administrative offence, it found that the applicant’s convictions for drunken driving in 1993 and refusing to undergo a breathalyser test in 1994 constituted such serious offences. Although the residence ban constituted an interference with the applicant’s private and family life, this measure was necessary, as there were specific reasons to fear that his further stay would be a danger for public security.

On 22 February 1995 the applicant, represented by counsel, filed an appeal. He argued that the residence ban against him was disproportionate, as the offences committed by him were not of a serious nature. Moreover, it forced him to separate from his family who were dependent on his income. Further, the applicant argued that Austria had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement and the decisions on its implementation, Turkish workers who had been legally employed in a member State for four years had a right of free access to the employment market and also to a residence permit. Moreover, measures of public security against such workers could not be based solely on criminal convictions but had to be justified by the specific conduct of the person concerned.

On 3 October 1995 the Tyrol Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. It confirmed that the applicant’s convictions in 1993 and 1994, relating to drunken driving and refusing a breathalyser test, constituted serious administrative offences within the meaning of S. 18 § 2 (2) of the Aliens Act. Referring to S. 20 of the said Act which requires the authority to weigh the negative consequences the residence ban would have for the alien and his family against the public interest in issuing a residence ban, it found in particular that the applicant had only lived in Austria since 1989 and his family since 1991. Moreover, his family could leave Austria with him. Having regard to the conduct of the applicant and the particular risks it entailed for life and limb as well as the property of others, he had to be considered as a danger for public safety. In sum, the interest in issuing the residence ban outweighed the interests of the applicant and his family in staying in Austria. Finally, the Association Agreement between the European Union and Turkey, relied on by the applicant, did not prohibit the issuing of a residence ban.

On 25 October 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He repeated the arguments he had already forwarded in his appeal to the Public Security Authority.

On 27 November 1995 the Constitutional Court refused to entertain the applicant’s complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof).

On 20 March 1996 the Administrative Court dismissed the applicant’s complaint. It found that the contested residence ban was necessary within the meaning of Article 8 § 2 of the European Convention on Human Rights in the interests of public safety and the prevention of crime. Referring on the one hand to the gravity of the offences committed by the applicant and on the other hand to his short stay in Austria, the Court confirmed that the Public Security Authority had duly weighed the interests involved.


SRPSKA PRAVOSLAVNA CRKVENA OPSTINA NA RIJECI v. CROATIA

The applicant, the Rijeka Serbian Orthodox Church (Srpska Pravoslavna Crkvena Opština na Rijeci), is a religious community with its seat in Rijeka. It is represented before the Court by Mr M. Markiš, a lawyer practising in Rijeka. The respondent Government are represented by their Agents, first Ms L. Lukina-Karajković and subsequently Ms Š. Stažnik.

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

The applicant owns in Rijeka a flat of a surface of 104.57 square metres. A certain Ž.J. had a specially protected tenancy of the flat.

On 22 October 1996 Parliament enacted the Lease Act, which regulates the conditions of leasing privately-owned flats, including those previously let under a specially protected tenancy.

Under the Lease Act, on 8 November 1997 the applicant let the flat to Ž.J.

On 1 April 1999 the applicant terminated the lease because it intended to lodge a priest in the flat.

Since Ž.J refused to vacate the flat, the applicant instituted proceedings in the Rijeka Municipal Court (Općinski sud u Rijeci) seeking eviction of Ž.J. The applicant based its claim on the Lease Act claiming that it needed the flat for its own use, namely to house its priest. It also claimed that it could provide for Ž.J. another flat also situated in Rijeka, but a smaller one, of a surface of 48 square metres.

On 5 June 2000 the Rijeka Municipal Court dismissed the applicant’s action, finding that it did not need the flat in question for itself but only to install its priest. The court found that the priest could have lived in any other flat including the one that the applicant was offering to Ž.J.

The applicant appealed against the first-instance judgment arguing that installing its priest in the flat at issue amounted to the use of the flat by the applicant itself.

On 4 April 2001 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal. It found that the applicant did not satisfy the conditions of section 40 of the Lease Act because it was a legal entity rather than a natural person. The court stated that the question whether there existed a need for the flat at issue on behalf of the applicant, the reasons for eviction of Ž.J., and the fact that the applicant had offered Ž.J. another flat, were irrelevant in the present case.

The applicant subsequently filed a constitutional complaint claiming, inter alia, that its property rights were violated because it had no possibility to terminate the lease on the flat that it owned.

On 3 June 2002 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. It found that the lower courts’ decisions were based on law, and that the relevant provisions of the Lease Act providing for termination of a lease for personal reasons referred only to natural persons but not to legal entities. It stated that the applicant’s inability to terminate the lease did not violate its property rights.

Meanwhile, Ž.J. died, but his wife, A.J., continues to live in the flat.

The Flat Lease Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996) (“the Lease Act”) regulates the legal relationship between the landlord and the tenant with respect to the lease of flats. It recognises a special category of tenants, namely those who were previously holders of specially protected tenancies on privately-owned flats. Such a category is, according to the Act, subject to a number of protections, for instance, an obligation for the owners to contract a lease for an unlimited period of time; payment of a so-called protected rent, the amount of which is to be prescribed by the Government, as well as limited reasons for the termination of the lease. The Lease Act abolished the specially protected tenancy as such.

Pursuant to the Lease Act a landlord may terminate the lease of a protected tenant in the following cases:

if the tenant does not pay the rent or charges;

if the tenant sublets the flat or part of it, without permission from the landlord;

if the tenant or other tenants in the flat disturb other tenants in the building;

if another person, not figuring in the lease contract, lives in the flat longer than thirty days, without permission from the landlord, except where that person is a spouse, child or parent of the tenant or of the other legal tenants in the flat, or a dependant of the tenant or a person on whom the tenant is dependent;

if the tenant or other legal tenants do not use the flat for living, but for other purposes;

if the landlord does not have another flat and is entitled to social assistance benefits or is older than sixty years.

Under section 40 (1) of the Lease Act, the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children, parents or dependants therein.


The applicants are Finnish nationals, born in 1945 and 1946 respectively and living in Turku and Kaarina.

A.

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

The applicants are Justices at the Court of Appeal of Turku. Between the applicants and the representative of their employer a disagreement arose about the amount of their salary. According to the applicants, they were entitled to receive salary corresponding to a higher salary grade than that actually applied. The Chief Secretary of the Court of Appeal (hovioikeuden kansliapäällikkö, hovrättens kanslichef) made a decision that the applicants were not entitled to the higher salary grade. The applicants asked for a notice of appeal, but did not receive one.

The applicants nonetheless appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), which on 14 November 1996 stated that as the question concerned the interpretation of a collective bargaining contract on civil servants’ salaries, the court was not competent to try the case.

The applicants then took legal action against the State in the Labour Court (työtuomioistuin, arbetsdomstolen). On 3 March 1997, the court found that, according to the Act on the Labour Court (laki työtuomioistuimesta, lag om arbetsdomstolen), a civil servant bound by a collective bargaining contract on civil servants’ salaries was allowed to take legal action before the Labour Court. However, since the applicants were not members of a trade union and therefore not bound by the contract, they could not take legal action before the Labour Court.

B. Relevant domestic law and practice

According to Section 10a, Subsection 2, of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time, everyone has the freedom of association. Freedom of association entails the right to form an association without a permit, to be a member or not to be a member of an association and to participate in the activities of an association. The freedom to form trade unions and to organise in order to look after other interests is likewise guaranteed.

According to Section 5, Subsections 1 and 2, everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.

Section 16 guarantees to everyone the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice.

In its decision no. 4398 rendered on 31 December 1999 the Supreme Administrative Court held that the above mentioned Section 16, inter alia, guarantees also to a judge not belonging to a trade union the right to have a dispute concerning his salary decided by a court. As the appellants in the case in question could not have their case decided by the Labour Court, the Supreme Administrative Court examined their claim but rejected it on the merits.

As from 1 March 2000 the Constitution Act is replaced by the Constitution of Finland (Suomen perustuslaki, Finlands grundlag), which contains provisions identical to those mentioned above.


CASE OF WILLIAM FAULKNER v. THE UNITED KINGDOM

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

The applicant, who was born in 1947, was released from detention in February 1999. Prior to that he was detained at HMP Magilligan, County Derry, Northern Ireland, on temporary transfer from a Scottish prison while serving a seven year sentence for a drug offence.

On 1 July 1996 a sealed letter sent by him to the Scottish Minister of State was returned to him by the prison authorities. Following the Court’s admissibility decision, the Government informed the Court that the Prison Service was unable to explain why the letter had not been sent, since there was nothing untoward in its content.

The relevant domestic legislation is the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 (“the Rules”), which came into effect on 1 March 1995.

Rule 67(1) allows the Secretary of State to impose restrictions on communications between a prisoner and others, either generally or in a particular case, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons. Under Rule 67(4), except as provided by the Rules, every letter or communication to or from a prisoner may be read or examined by the Governor who may, at his discretion, stop any such letter on the grounds that it is not permitted under paragraph (1) or that it may undermine the prison’s security.


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1957 and lives in Gross-Rohrheim (Germany).

On 10 August 1989 the applicant registered his marriage with Ms G. in Novosibirsk. After the marriage they moved to St. Petersburg.

On 12 May 1995, during her stay at her parents’ home in Novosibirsk, Ms G. gave birth to a son to whom she gave her surname, despite objections from the applicant. Shortly thereafter the birth was registered; the applicant was named as the child’s father in the register.

In late September 1995 Ms G. and her son returned to St. Petersburg. The applicant believed that he was the boy’s father and treated him as his own.

On 28 March 1996 the applicant moved to Germany. Until September 1997 he waited for Ms G. and the son to join him there. However, in a letter of September 1997, Ms G. informed him that she had no plans to continue their marriage and would be applying for maintenance for the child. At about that time the applicant’s relatives in Novosibirsk advised him that he was not the boy’s father.

On 16 December 1997 the applicant petitioned for divorce and brought an action contesting paternity. On 12 April 1999 the divorce was granted.

On 16 November 2000 the Zheleznodorozhniy District Court of Novosibirsk delivered judgment in the paternity action. It noted that genetic (DNA) tests of 28 June 1999 and 5 June 2000 demonstrated that the applicant could not be the boy’s father. Although Ms G. maintained that the applicant was the father, in the absence of any doubts as to the accuracy of the tests, the court established that the applicant was not the father of her son.

The District Court ruled, however, that the case was governed by the RSFSR Marriage and Family Code of 30 July 1969 because the child had been born before 1 March 1996, that is to say before the new Family Code of the Russian Federation came into effect. The RSFSR Marriage and Family Code set a one-year limitation period for an action contesting paternity, the starting point of which was calculated from the date the putative father was informed that he had been registered as the father. As the applicant had not contested paternity when the child was born and had only applied to the courts in December 1997, after the expiry of the time-limit, his action was held to be time-barred. The fact that a new Family Code had been introduced which did not lay down a limitation period for paternity actions was irrelevant because it was only applicable to family-law disputes arising after 1 March 1996.

On 15 March 2001, on an appeal by the applicant, the Novosibirsk Regional Court upheld the judgment of 16 November 2000.

On 20 April and 26 October 2001 the Novosibirsk Regional Court and the Supreme Court of the Russian Federation, respectively, refused requests by the applicant for supervisory review.

On 12 September 2002 the Justice of the Peace of the Third Court Circuit of the Zheleznodorozhniy District of Novosibirsk granted Ms G.’s claim for maintenance and made a charging order over the applicant’s interest in a flat.

On 15 September 2003 the Zheleznodorozhniy District Court of Novosibirsk upheld the maintenance order.

The RSFSR Marriage and Family Code of 30 July 1969 (Кодекс РСФСР о браке и семье) provided that a person entered in the birth register as the father of a child could contest the entry within one year of the date he became or should have become aware that the entry had been made (Article 49).

The Family Code of the Russian Federation of 29 December 1995 (Семейный кодекс РФ, in force from 1 March 1996) provides that a person entered in the birth register as the father of a child may contest the entry by means of judicial proceedings (Article 52 § 1). It does not set any time-limit for bringing an action.

Resolution no. 9 of the Plenary Supreme Court of the Russian Federation of 25 October 1996 “On application by courts of the Family Code of the Russian Federation to the cases concerning paternity and maintenance” established that, in respect of children born before 1 March 1996, the RSFSR Marriage and Family Code was applicable and, accordingly, the time-limit for contesting paternity was one year from the date the person became or should have become aware of his registration as the child’s parent.


The applicant, Mr Vladimir Vitalyevich Golubev, is a Russian national who was born in 1972 and lives in Krasnoye-Na-Volge.

In 2000 the applicant, a police officer at that time, was charged with bribe taking. He was suspected in providing “protection” to a group of black market dealers in return for regular payments. On 7 July 2000 he was arrested and, since he was a former policeman, placed in a special detention facility for former law enforcement officials.

On 20 May 2000 he was transferred for several days to a “common” cell where ordinary criminal suspects were detained. In his words, the investigator placed him in that cell in order to put pressure on him.

On 12 September 2000 the applicant complained about this fact to the prosecution authorities. On 23 October 2000 the local prosecutor informed the applicant that the person responsible for placing him in that cell was reprimanded. There is no information on any further development regarding this complaint.

On 12 October 2001 the applicant was convicted of bribe taking by the Kostroma Regional Court. He was sentenced to five years’ imprisonment in a colony of the strict regime.

The applicant indicates that he was unable to study the record of the trial hearings. He indicates that he signed a waiver where he renounced his right to examine the record. He claims, however, that he did so under the pressure of the judge.

The applicant and his lawyers appealed. They challenged the findings of the first instance court as to the facts of the case and complained of misinterpretation of the domestic law and various irregularities in the proceedings during the investigation and before the first instance court. The defence indicated inter alia that in the course of the pre-trial detention the applicant had been placed in a common cell, in breach of the relevant provisions of the domestic law. However, the brief of appeal did not mention that the applicant had been unable to study the trial record. The applicant did not request his personal presence at the hearing before the court of appeal.

On 18 March 2002 the applicant’s conviction was upheld by the Supreme Court of Russia. The applicant was not present at the court of appeal’s hearing and remained in the detention centre. However, his two lawyers were in the courtroom and during the hearing the applicant was able to communicate with the judges through a video communication system, which allowed him to see and hear what happened in the court room, and put questions to the participants of the hearing. The Supreme Court, basing on the materials of the case-file and the parties’ pleadings, upheld the finding of the lower court in full. It did not detect any serious irregularity in the proceedings before the trial court which would require the review of the case.

After conviction the applicant was sent to serve his sentence in a correctional colony in Mordovia.

In 2004, due to the changes in the Criminal Code, the applicant’s sentence was reduced to four years and eleven months, and he was transferred to a colony with a milder regime.

Article 375 of the Code of Criminal Proceedings of 1960, as in force at the relevant time, provided that the criminal defendant should indicate in his points of appeal whether or not he wanted to participate personally in the hearing before the court of appeal. Article 335 of that Code provided that the court of appeal might choose whether or not the applicant should participate in the hearings. However, by Ruling of 10 December 1998 no. 27-П the Constitutional Court of Russia invalidated that provision as anticonstitutional. The Constitutional Court found that the criminal defendant should always have the possibility to participate in the proceedings before the court of appeal. However, the Constitutional Court did not specify whether personal participation was needed, or participation through a video communication system was sufficient.

The new Code of Criminal Proceedings, as in force from 1 July 2002, provides that the criminal defendant may choose whether or not he wants to participate in the proceedings (Article 376 § 3). However, the choice between personal presence and participation via the video communication system belongs to the court.