George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Ms S.B., is a Moroccan national, who was born in 1986. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr Leo Hertzberg, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant arrived in Finland on 18 July 2007 with a visa granted by the Finnish consulate in Rabat.

On 10 September 2007 the applicant married an Algerian man in Finland and she was granted a residence permit on the basis of family ties until 19 January 2010. She divorced on 7 September 2009.

On 21 December 2009 the applicant sought asylum as well as the extension of her residence permit. She stated that her adoptive mother lived in Finland and that they were very close.

On 18 March 2010 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected her asylum application and decided to order her removal to Morocco. In its reasons the Service stated that the applicant’s story contained conflicting information concerning, inter alia, with whom she had lived in Morocco. Her story was thus not fully credible. The threats imposed by private parties were not as such sufficient grounds to grant asylum. Since 2004 Moroccan women no longer needed permission from their father to marry and divorces had become more common in Morocco. The police had a special unit for investigating domestic violence and a shelter system was in place for women. It was nowadays possible for a woman to live alone in Morocco. The applicant had not shown any reason why she could not obtain protection from the Moroccan authorities if needed. Even though the applicant had taken part in student protests, she had not been arrested and her name was not known to the Moroccan authorities. It was not credible that she would be persecuted in Morocco for political reasons. Nor was it credible that she would be persecuted due to the fact that she was married to an Algerian man. As to the residence permit, the Service noted that the applicant’s adoption had not been registered in Finland. In any event, the applicant was an adult and could not be considered a family member of her adoptive mother.

The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the Immigration Service’s decision be quashed.

On 3 November 2010 a District Court (käräjäoikeus, tingsrätten) confirmed the applicant’s adoption in Finland. It found that the applicant’s aunt had taken care of her since she was four years old. Even when the aunt moved to Finland in 1997, she had been in close contact with the applicant. In 2000 the adoption had been registered in Morocco. The applicant’s adoption could be confirmed in Finland only when she had become an adult.

On 7 January 2011 the Administrative Court rejected the applicant’s appeal on the same grounds as the Immigration Service. This decision was served to the applicant on 27 January 2011.

By letter dated 17 February 2011 the applicant appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) requesting a stay on expulsion, which was not granted.

On 22 February 2011 the applicant was detained with a view to preparing her removal.

On 24 February 2011 a District Court found, when deciding on the applicant’s detention, that the applicant’s state of health prevented her removal at that time but that the removal could be enforced when her condition allowed it. She was released from detention on the same date.

On 28 February 2011 the applicant was admitted to the closed ward of a psychiatric hospital due to psychotic depression. She was admitted at least until 3 March 2011.

On 11 March 2011 the police decided to detain the applicant again. However, this was not possible as the applicant was apparently still hospitalised.

On 13 March 2011 the applicant was admitted to a psychiatric hospital in Helsinki. She was diagnosed as severely depressed, psychotic and suicidal. She was apparently hospitalised until 27 May 2011.

On 16 March 2011 the applicant lodged an application with the Court, requesting that the removal to Morocco be stayed. On 17 March 2011 the Court indicated an interim measure under Rule 39 of the Rules of Court and held that the applicant should not be removed to Morocco in the light of her physical and mental condition. The Government was requested to submit to the Court independent medical evidence of the applicant’s fitness to travel prior to the implementation of any possible future attempt to remove her.

In April 2012 the Government informed the Court about the applicant’s situation. The applicant’s health had improved during the autumn and winter of 2011 but had deteriorated again in February 2012 when the police had asked for a new psychiatric evaluation. Since then the applicant had not been able to eat and had been suffering from severe sleeping problems. Her eating problems and suicidal tendencies were likely to lead again to hospitalisation.

On 11 June 2013 the Supreme Administrative Court refused the applicant leave to appeal.

According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

Section 147 b of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004, as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders. The annex of the Decision contains common guidelines on security provisions for joint removals by air, including, inter alia, an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air.


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The first and second applicants were born in 1965 and 1955 respectively. The third and fourth applicants were born in 2000. They all live in Maisons-Alfort.

The first and second applicants are husband and wife. They were unable to have a child of their own because the second applicant is infertile.

After a number of unsuccessful attempts to conceive a child using in vitro fertilisation (IVF) with their own gametes, the first and second applicants decided to undergo IVF using the gametes of the first applicant and an egg from a donor with a view to implanting the fertilised embryos in the uterus of another woman. Accordingly, they went to California, where the process is legal, and entered into a gestational surrogacy agreement.

The applicants specified that, in accordance with Californian law, the “surrogate mother” was not remunerated but merely received expenses. They added that she and her husband were both high earners and therefore had a much higher income than the applicants and that it had been an act of solidarity on her part.

On 1 March 2000 the surrogate mother was found to be carrying twins and, in a judgment of 14 July 2000, the Supreme Court of California, to which the first and second applicants and the surrogate mother and her husband had applied, ruled that the first applicant would be the “genetic father” and the second applicant the “legal mother” of any child to whom the surrogate mother gave birth within the following four months. The judgment specified the particulars that were to be entered in the birth certificate and stated that the first and second applicants should be recorded as the father and mother.

Twins – the third and fourth applicants – were born on 25 October 2000 and their birth certificates were drawn up in accordance with the terms stated above.

In early November 2000 the first applicant went to the French consulate in Los Angeles to have the particulars of the birth certificates entered in the French register of births, marriages and deaths and the children’s names entered on his passport so that he could return to France with them.

The applicants stated that many French couples in their situation had previously succeeded in carrying out that procedure. The consulate rejected the first applicant’s request, however, on the grounds that he could not establish that the second applicant had given birth and, suspecting a surrogacy arrangement, sent the file to the Nantes public prosecutor’s office.

As the US Federal Administration had issued US passports for the twins on which the first and second applicants were named as their parents, the four applicants were able to return to France in November 2000.

In December 2000 a preliminary investigation was carried out at the request of the public prosecutor’s office.

In May 2001 an investigation was commenced against a person or persons unknown for acting as intermediary in a surrogacy arrangement and in respect of the first and second applicants for false representation infringing the civil status of children.

On 30 September 2004, in accordance with the submissions of the Créteil public prosecutor, the investigating judge gave a ruling of no case to answer on the ground that the acts had been committed on US territory, where they were not classified as an offence, and therefore did not constitute a punishable offence in France.

In the meantime, on 25 November 2002, on the instructions of the public prosecutor’s office, the particulars of the birth certificates of the third and fourth applicants had been recorded in the central register of births, marriages and deaths in Nantes by the French consulate in Los Angeles.

However, on 16 May 2003 the Créteil public prosecutor instituted proceedings against the first and second applicants in the Créteil tribunal de grande instance to have the entries annulled and the judgment recorded in the margin of the entries thus invalidated. He observed that an agreement whereby a woman undertook to conceive and bear a child and relinquish it at birth was null and void in accordance with the public-policy principle that the human body and civil status are inalienable. He concluded that, as the judgment of the Supreme Court of California of 14 July 2000 was contrary to the French concept of international public policy and of French public policy, it could not be executed in France and that the validity of civil-status certificates drawn up on the basis of that judgment could not be recognised in France.

By a judgment of 13 December 2005, the Créteil tribunal de grande instance declared the action inadmissible. It found that “the entries had been recorded on the sole initiative of the public prosecutor with the purpose, since avowed, of bringing proceedings to have the entries annulled”. It concluded from this that “an action by the public prosecutor on grounds of public policy which he himself ha[d] infringed could not be deemed admissible where the provisions of Article 47 of the Civil Code on which he [relied] allowed him to verify the validity of the certificates in any respect and to reject any request for registration that would render them binding in France”.

The public prosecutor’s office appealed to the Paris Court of Appeal, which upheld the lower court’s judgment on 25 October 2007. The Court of Appeal also considered the public prosecutor’s action for annulment of the entries in the Nantes central register of births, marriages and deaths inadmissible as a matter of international public policy. It substituted its own grounds for that decision, however, finding that the contents of the entries were accurate as regards the judgment of the Supreme Court of California of 14 July 2000 and that the public prosecutor’s office was not disputing the fact that the judgment was binding on France or that, under Article 47 of the Civil Code, the certificates drawn up in California in accordance with the usual procedures in that State should be deemed valid.

On 17 December 2008 the Court of Cassation (First Civil Division) quashed that judgment on the ground that the public prosecutor’s office had an interest in bringing proceedings for annulment of the entries since, as established by the Court of Appeal, the birth certificates in question could only have been drawn up following a surrogacy arrangement. It remitted the case to the Paris Court of Appeal with a differently constituted bench.

By a judgment of 18 March 2010, the Paris Court of Appeal overturned the judgment remitted to it, annulled the entries pertaining to the birth certificates and ordered its judgment to be recorded in the margin of the invalidated birth certificates.

Regarding the admissibility of the action brought by the public prosecutor’s office, the court found that it could not be seriously alleged that the prosecution authorities had contravened public policy or disrupted peaceful family relations by requesting that the contents of an entry that they themselves had ordered be annulled, since the purpose was to frustrate the effects of a foreign civil status which they considered contrary to French public policy or to guard against an application to have the entries recorded.

The Court of Appeal ruled on the merits as follows:

“... The birth certificates were drawn up on the basis of the Supreme Court of California’s judgment of 14 July 2000 which declared [the first applicant] the genetic father and [the second applicant] the legal mother of any child to which [the surrogate mother] gave birth between 15 August and 15 December 2000. The civil-status documents are therefore indissociable from the decision underlying them and the effectiveness of that decision remains conditional on its international lawfulness.

Recognition, on national territory, of a decision delivered by a court of a State that is not bound to France by any convention is subject to three conditions: the indirect jurisdiction of the foreign court based on the connection between the court and the case; compliance of the merits and procedure with international public policy; and absence of circumvention of the law.

It has been established in the present case that following a surrogacy agreement [the surrogate mother] gave birth to twins who were conceived from the gametes of [the first applicant] and of a third party and were relinquished to [the first and second applicants].

Under Article 16-7 of the Civil Code, whose provisions deriving from Law no. 94653 of 29 July 1994, and not amended by Law no. 2004-800 of 6 August 2004, are a matter of public policy by virtue of Article 16-9 of the same Code, any agreement concerning reproductive or gestational surrogacy is null and void. Accordingly, the judgment of the Californian Supreme Court, which indirectly validated a surrogacy agreement, contravenes the French concept of international public policy. Consequently, without having to ascertain whether the law has been circumvented, the entries in the French central register of births, marriages and deaths of the particulars of the US birth certificates naming [the second applicant] as the mother of the children must be annulled and the present judgment recorded in the margin of the invalidated birth certificates.

[The applicants] cannot seriously claim that they have not had a fair hearing; nor do they have justifiable grounds for arguing that this measure contravenes provisions laid down in international conventions and domestic law. The concepts to which they refer, in particular the child’s best interests, cannot allow them – despite the practical difficulties engendered by the situation – to validate ex post facto a process whose illegality, established first in the case-law and subsequently by the French legislature, is currently enshrined in positive law. Furthermore, non-registration does not have the effect of depriving the two children of their US civil status or calling into question their legal parent-child relationship with [the first and second applicants] recognised under Californian law ...”

The applicants appealed on points of law, submitting that the children’s best interests – within the meaning of Article 3 § 1 of the International Convention on the Rights of the Child – had been disregarded and complaining of a breach of their right to a stable legal parent-child relationship and, further, of a violation of Article 8 of the Convention taken alone and in conjunction with Article 14. They submitted, further, that the decision of a foreign court recognising the legal parent-child relationship between a child and a couple who had lawfully contracted an agreement with a surrogate mother was not contrary to international public policy, which should not be confused with domestic public policy.

At a hearing on 8 March 2011 the advocate-general recommended quashing the judgment. He expressed the view that a right lawfully acquired abroad or a foreign decision lawfully delivered by a foreign court could not be prevented from taking legal effect in France on grounds of international public policy where this would infringe a principle, a freedom or a right guaranteed by an international convention ratified by France.

He noted in particular that in Wagner and J.M.W.L. v. Luxembourg (no. 76240/01, 28 June 2007) the Court had taken account, in its examination of the case under Article 8 of the Convention, of an “effective family life” and “de facto family ties” between a single mother and the child she had adopted in Peru, without attaching any importance to the fact that the former had gone abroad in search of a legal system which would allow her to obtain what the law of her country of origin refused her. In the advocate-general’s opinion, if the same rationale were applied in the present case, even where domestic law had been circumvented, a legal relationship lawfully created abroad could not be prevented from producing the relevant legal effects where it concerned an effective family set-up and allowed it to function and evolve in normal conditions from the standpoint of Article 8 of the Convention. He also observed that the third and fourth applicants had been living in France for ten years and “[were being] brought up there by genetic and intended parents in a de facto family unit in which [they were receiving] affection, care, education, and the material welfare necessary to their development” and that this effective and affective family unit – fully lawful in the eyes of the law of the country in which it had originated – [was] “legally clandestine”, “the children having no civil status recognised in France and no parent-child relationship regarded as valid under French law”. As to whether that state of affairs infringed their “right to a normal family life”, the advocate-general replied as follows:

“... At this stage two answers are possible: either – somewhat theoretically and largely paradoxically – the refusal to register the birth particulars is inconsequential and does not substantially affect the family’s daily life, which means that registration is a mere formality and it is therefore difficult to see any major obstacle in the circumstances to recording the details of certificates with such minimal legal effect that it is inconceivable that they are capable in themselves of shaking the foundations of our fundamental principles and seriously contravening public policy (since they do not intrinsically contain any mention of the nature of the birth).

Alternatively, the refusal to register the birth details permanently and substantially disrupts the family’s life, which is legally split into two in France – the French couple on one side and the foreign children on the other – and the question then arises whether our international public policy – even based upon proximity – can frustrate the right to family life within the meaning of Article 8 [of the Convention] or whether, on the contrary, public policy of that kind, whose effects have to be analysed in practical terms as do those of the foreign rights or decisions that it seeks to exclude, should not be overridden by the obligation to comply with a provision of the Convention.

If the second alternative is retained on the grounds that international conventions must take precedence over public policy based on a standard provided for in a legislative provision, this will not necessarily result in the automatic collapse of the barriers erected by the domestic public-policy provision in such circumstances. As long as the European Court has not given a clear ruling on the question of the lawfulness of surrogacy and allows the States to legislate as they deem fit in this area, it can be considered contrary to public policy to validate, on grounds of respect for family life, situations created illegally within the countries which prohibit them.

However, where it is merely a question of giving effect on the national territory to situations lawfully established abroad – be this at the cost of deliberately disregarding the strictures of a mandatory law – there is nothing to preclude international public policy – even based upon proximity – from being overridden in order to allow families to lead a life in conformity with the legal conditions in which they were created and the de facto conditions in which they now live. Furthermore, the best interests of the child, envisaged not only under the New York Convention but also under the case-law of the Court of Human Rights which has established this criterion as a component of respect for family life, also militate in favour of this interpretation. At least this is the lesson that I think we can draw from the judgment in Wagner [and J.M.W.L.] ...”

However, on 6 April 2011 the Court of Cassation (First Civil Division) gave judgment dismissing the appeal on the following grounds:

“ ... the refusal to register the particulars of a birth certificate drawn up in execution of a foreign court decision, based on the incompatibility of that decision with French international public policy, is justified where that decision contains provisions which conflict with essential principles of French law. According to the current position under domestic law, it is contrary to the principle of inalienability of civil status – a fundamental principle of French law – to give effect, in terms of the legal parent-child relationship, to a surrogacy agreement, which, while it may be lawful in another country, is null and void on public-policy grounds under Articles 16-7 and 16-9 of the Civil Code.

Accordingly, the Court of Appeal correctly held that, in giving effect to an agreement of this nature, the “American” judgment of 14 July 2000 conflicted with the French concept of international public policy, with the result that registration of the details of the birth certificates in question, which had been drawn up in application of that judgment, should be annulled. This does not deprive the children of the legal parent-child relationship recognised under Californian law and does not prevent them from living with Mr and Mrs Mennesson in France; nor does it infringe the children’s right to respect for their private and family life within the meaning of Article 8 of the Convention ..., or the principle that their best interests are paramount as laid down in Article 3 § 1 of the International Convention on the Rights of the Child ...”

On 16 April 2013 the first applicant lodged an application with the Charenton-le-Pont District Court for a certificate of French nationality for the third and fourth applicants. The senior registrar sent him acknowledgement-of-receipt forms dated 31 October 2013 and 13 March 2014, indicating that the request “was still being processed in [his] department pending a reply to the request for authentication sent to the consulate of Los Angeles, California”.


Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

André Potocki;Ganna Yudkivska;Vincent A. De Gaetano

The applicant was born in 1976.

On 29 December 2009 a police investigator initiated criminal proceedings against the applicant and charged him with fraudulent appropriation of property. On the same day the applicant was placed on the list of wanted persons.

On 27 April 2010 the applicant was arrested and informed of the charges.

On 29 April 2010 the applicant’s pre-trial detention was ordered by a court.

On 25 June 2010 the applicant was released under a written undertaking not to abscond.

In February 2011 the case was referred to the Dzerzhynskyy District Court of Kharkiv (“the District Court”) for trial.

On 4 April 2011 the District Court held a preliminary hearing in the case. Following the request of the prosecutor, it ordered that the preventive measure in respect of the applicant should be changed and that the applicant should be placed in pre-trial detention. The court, paying regard to the fact that the applicant denied his guilt, considered that the applicant could influence witnesses, conceal or remove traces and evidence of the crime. It stated that the applicant was charged with a serious crime and his actual place of residence did not coincide with his registered address. It therefore concluded that the applicant could behave negatively and his isolation was necessary. The court noted that the applicant was of middle age, he was not a disabled person, he did not suffer from chronic illnesses, he had a family and a minor son, and that he worked as director of a company.

On a number of occasions during the trial the applicant requested the District Court to change the preventive measure in his respect and release him.

On 5 July, 19 August, 23 November 2011 and 17 January 2012 the District Court dismissed the applicant’s requests maintaining the impugned preventive measure. The court referred to its decision of 4 April 2011 and repeated that the applicant’s actual and registered addresses did not coincide, he was charged with a serious crime, and that there were grounds to believe that the applicant could behave negatively, if released. The court also repeated that the applicant was of middle age, he was not a disabled person, he did not suffer from chronic illnesses, he had a family and a minor son, and that he worked as director of a company. The court then found that there had been no grounds to change the preventive measure for health reasons or to apply bail; furthermore, the applicant showed no remorse and had refused to admit his guilt.

On 30 January 2012 the District Court found the applicant guilty of fraudulent appropriation of property and sentenced him to six years’ imprisonment and ordered confiscation of his property.

The Kharkiv Regional Court of Appeal and the Higher Specialised Civil and Criminal Court of Ukraine upheld the judgment of 30 January 2012 on 9 April 2013 and 6 February 2014 respectively.


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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in 1946 and lives in Sant’Angelo In Campo (Lucca).

In 2001 the applicant was practising law. In September 2001 he sent a letter to the Italian National Legal Service Commission (Consiglio Superiore della Magistratura – the “CSM”) in which he complained about the conduct of a judge, X, at the Lucca District Court. He subsequently transmitted the content of that letter by means of a “circular letter” to a number of judges of the same court, but without expressly referring to X by name.

The relevant parts of that circular letter read as follows:

“Before you receive any incorrect or untrue information, before the corporatist spirit prevails over a correct interpretation of the reasons that drove me to write to the CSM, to the Ministry of Justice, to the National Council of Notaries and to the National Bar Council, about the conduct of two judges of the Lucca District Court in the context of a judicial partition procedure to which my clients were parties, and before any of my colleagues come to apologise, on my behalf, for my initiative, perhaps making out that I am insane or irresponsible, my intention is to clarify and tell you the reasons which led me to do so.

An appeal on points of law is pending against a judgment of the Lucca District Court in which that court, ruling against the claims by a female partner and deciding on the related issue of the partition of an inheritance, asked the investigating judge to proceed with the sale of a flat, which was the sole item of property to be divided between the heirs, and which was occupied by the partner and her daughter, an heir, born to the cohabiting couple. Since the judgment of the Lucca District Court was not final, it was not possible to proceed with the sale or to initiate the procedure relating thereto, since this was prohibited expressly by Article 791 of the Code of Civil Procedure.

The other heir, however, applied for ... the sale, and the investigating judge, in spite of our repeated requests for suspension of the sale, which were all rejected, brought about, after two auctions without a buyer, the conveyance of the property to a third party at the third auction.

Here are the specific reasons for which all our requests were rejected:

In spite of this, I would like to point out at the outset that I do not feel any animosity towards the judiciary and judges in general, and that I consider, by contrast, that the role played by judges is crucial and irreplaceable for civil society.

There are and have been judges who carry out and have carried out their duties with great dignity and decorum [decoro], and who deserve my admiration and the admiration of all those who have worked in the field of justice. None of us can forget Y, who died, one can say, on the ‘battlefield’. I still remember that, in the courtroom, he was the one, out of all his colleagues, who, even in his state of extreme and obvious suffering, took the greatest number cases for adjudication, and he carried on doing this until the bitter end. I confess that if I had been able to spare him the effort, in view of his condition, I would willingly have taken over his workload. But there are other equally deserving judges who work, even during their holidays, going to the office, talking to lawyers, and with whom we can have a form of collaboration and dialogue – and to them I also express my esteem and admiration.

I am well aware that justice is done by men and precisely for that reason decisions may be erroneous and incomplete. I still prefer, however, a human justice to one that is automated.

But what I refuse to accept is the idea that, when the rights of the individual and the dignity of those whose task it is to defend him or her are at stake, those rights could be decided upon in a partial manner, perhaps with a display of arrogance, or that a ruling could be given with total indifference and lack of commitment. I personally believe strongly in the autonomy of the judiciary and I feel that without respect for the autonomy of the person whose task it is to decide, it would be impossible to have dispassionate and fair judgments. Autonomy, however, cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness. I have pointed out how I see the meaning of justice and reiterate that I think very highly of the duties exercised by judges, and that my full admiration goes to those who act with dedication, commitment and decorum [decoro].

I am even envious of judges, because they probably have more time to study and to dwell on issues, and also to attend to other cultural and social interests, than lawyers who, by the nature and specificity of their work, do not always manage to do things or to do things well. I often take home things to read and to study and I end up, mid-evening, nodding off over a book after a busy day, running from one office to another in the morning, and answering the phone or receiving clients in the afternoon. I also understand that the judiciary is burdened with work and with problems, that the staffing is insufficient and the workload huge – and for that reason it is true that protests [esposti] do not help to get the work done more easily, and that more collaboration and dialogue would be better than protests. There are limits, however, that in my view should not be passed and, after thinking about this for quite some time, I decided to submit this particular protest [the letter to the CSM]. I will now quote the last part of my protest in which I dwell on the meaning of the lawyer’s profession and ask whether it is legitimate that any decision or conduct should always be accepted:

‘This lawyer would point out as follows:

It is regrettable to direct this letter against individuals who, even [if they have] different duties, are considered by this lawyer to be “colleagues”, as practitioners in law usually call each other. He considers, however, that he is obliged to do so in response to a lack of commitment and total indifference towards the legitimate demands of the citizen in whose name justice is done, with a belief in impunity, as the position is one of “power”, even though it should be seen as the discharge of a “duty”, and “last but not least”, a lack of respect for the dignity and responsibility of this lawyer’s profession.

This lawyer has practised law in courts at three levels of jurisdiction, has borne very high costs on behalf of his clients – to the point where, if one were to apply the professional rate, one would exceed the amount of the claim – has sought, in three statements of claim filed in the Florence Court of Appeal, a stay of execution under Article 373 of the Code of Civil Procedure, but his requests were all rejected by reasoning that leaves much to be desired – but that is not the subject of this protest –has accumulated a formidable pile of documents of all descriptions, and has seen the attachment of funds in respect of his own claim go up in smoke.

In the time it has taken to work on these cases, he could probably have dealt with fifteen ordinary cases of average complexity.

If work – any type of work, provided it is lawful – has its own protection and its own dignity, then the judge too (more than any person, as a result of his function and role) cannot but allow himself not to respect for the work of others, including that of the lawyer.

As a legal practitioner, this lawyer has a duty to provide some certainty to his client, who is the citizen in whose name justice is done (judgments are headed “In the name of the Italian People”).

What certainty can the lawyer provide if each judge, instead of applying the law, gives his preferred interpretation and does not even explain his interpretation of the laws in question? It should be noted that the system of appeals and claims is no guarantee for the citizen. Judges are only human and can make mistakes (errare humanum est), but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence, and the citizen must have his or her claims upheld, provided they are well founded, from the earliest stage. There are a large number of cases; this can be explained by the fact that if many decisions had been taken correctly from the outset, one could have avoided the proliferation of cases, procedures and claims, as can be seen here; and not forgetting the many cases where the citizen, disappointed and bemused to receive abnormal decisions, having lost all confidence in the justice system, decides not to appeal. This entails a justified loss of confidence in the courts and an increase in workload and expense for the State, because of the extra work for other judges, registries and bailiffs.

And what justification and explanation could be given by the lawyer to this client, to whom he had predicted a certain result, with all due caution, only to present a decision by the judge that is diametrically opposed to that which he predicted?? If that is the result of an error, or a lack of knowledge or commitment or analysis on the part of the lawyer, he should take responsibility for it; but when this depends on the judge, it is damaging to the lawyer because the client will necessarily have a negative opinion of the lawyer’s work. Are clients and citizens capable of understanding whether it is the lawyer or the judge who has made a mistake and to what extent?? If the lawyer does not obtain appropriate results with legal argument, what other means are available?? What must the lawyer do to obtain something to which he is professionally entitled?? ... Or should the lawyer not make life difficult for himself and carry on regardless, tending to his garden [il suo orticello], while protecting his head from any tiles that might fall off the roof – because on the one hand he is not protected and on the other he is at the mercy of another person’s discretionary power?? ... Without any regard for his own professional dignity?? ...

When this letter reaches you I will be undergoing a medical operation. I am sorry that, for the time being, I cannot provide any further clarification or explanations to those who may wish them. I am however ready, if necessary, to answer for my conduct and to provide any clarification that may be requested of me after my operation, when I am in a better state of health again.’”

Finding that certain expressions used in the circular letter had impugned his reputation, X filed a criminal complaint for defamation against the applicant.

As X was a judge in Lucca, the file was transferred, under Article 11 of the Code of Criminal Procedure, to the judicial authorities of Genoa.

On 13 February 2003 the Genoa public prosecutor requested that the applicant be committed to stand trial before the court of that city.

X joined the criminal proceedings against the applicant as a civil party.

According to the charge, in the circular letter the applicant had expressed admissible (lecite) criticism in so far as he spoke about interpreting and performing the work of a judge, but had then overstepped the limits to his freedom of expression by writing the following sentences in particular:

(a) “Autonomy ... cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness”.

(b) “... in a partial manner, perhaps with a display of arrogance, or ... a ruling ... given with total indifference and lack of commitment”.

(c) “... the judge ... cannot allow himself not to respect the work of others, including that of the lawyer”.

(d) “Judges are only human and can make mistakes ... but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence”.

At the hearing of 4 March 2004 the representative of the public prosecutor’s office stated that the applicant also had to be charged with proffering insults, given that it transpired from X’s statement that he had been one of the recipients of the circular letter.

In a judgment of 3 February 2005, deposited in the court’s registry on 11 February 2005, the Genoa District Court convicted the applicant of defamation and proffering insults and sentenced him to four months’ imprisonment and to the reimbursement of X’s court costs (amounting to 2,000 euros (EUR)) with reparation for the damage sustained by X. The amount of that damage was to be fixed in separate civil proceedings; the court nevertheless awarded X an advance payment (provisionale) of EUR 15,000.

The District Court observed that it was not in dispute that the applicant had written the circular letter and had asked his secretary to send copies to the judges in the civil divisions of the Lucca District Court. During the proceedings, the applicant had filed pleadings and had made spontaneous statements. His arguments in defence had not, however, made it possible to disregard the offensive nature of the expressions used in the circular letter, exacerbated by the fact that he was a lawyer. In his letter, the applicant had stated that he had the greatest respect for the judiciary and for judges who carried out their duties with “dedication, commitment and decorum”. But he was clearly not talking here about X, who had been accused by the applicant of being arrogant and indifferent, of believing that he was immune because he held a position of power, and of having committed wilful mistakes, by malicious intent, serious misconduct or negligence. Those accusations could be explained not by X’s inaction in the handling of a case, but by the decisions taken by X in a case where the applicant’s requests had been rejected. Instead of reiterating his legal arguments, the applicant had overstepped the limits of his right to criticism, alleging that X had erred “wilfully”, thus seriously impugning the honour of the judge in question.

According to the District Court, the subject of the accusations contained in the circular letter could only have been X, as shown by similar letters, which expressly referred to that judge, addressed by the applicant and his clients to the CSM, the Ministry of Justice, the National Council of Notaries and the National Bar Council.

The applicant’s defence (esimente) of provocation (Article 599 of the Criminal Code) was not accepted. Even supposing that the decisions of X could be regarded as “unfair acts”, the circular letter, sent about four months after those decisions, did not constitute an immediate reaction to them.

The applicant lodged an appeal.

He alleged, among other things, that the offences he was said to have committed were punishable merely by a fine, that the sentence imposed on him had been disproportionate and that the advance he had to pay was excessive. Moreover, in his complaint X had not mentioned that he himself had been a recipient of the circular letter, thus ruling out the charge of proffering insults. The applicant also argued that it could not be seen from the text of the letter that the criticism was directed at X and that this document, when assessed as a whole, was merely a manifestation of his frustrations about the shortcomings of the justice system in general.

Lastly, in the alternative, he took the view that his defence of provocation was valid. He argued that, in the proceedings for the partition of an inheritance, X had on a number of occasions rejected his requests for the suspension of a sale by auction of the flat in question, and that X’s decisions had subsequently been overturned by another judge.

At the hearing of 12 March 2007, the applicant stated that it had not been his intention to offend X personally and he produced documents as evidence of his ill-health.

In a judgment of the same day, deposited in the court’s registry on 2 April 2007, the Genoa Court of Appeal ruled that no prosecution could be brought on a charge of proffering insults, as there had been no criminal complaint on that ground, and reduced the sentence for the offence of defamation to a fine of EUR 400. It stated that this sentence was fully remitted (condonata), and ordered the applicant to make reparation for the damage sustained by X, which it assessed at EUR 15,000, and to reimburse X’s court costs in the appeal proceedings (EUR 2,000).

The Court of Appeal observed that, in the first part of his circular letter, the applicant had recounted the tribulations of the partition proceedings in which X had taken the impugned decisions. He had added that he regretted having to make complaints about certain individuals (X and another judge) whom, even though they had different duties from his own, he regarded as “colleagues”. In addition, the judges of the Lucca District Court, giving testimony in the first-instance proceedings, had had no difficulty in identifying X as the addressee of the criticisms in the circular letter. In those circumstances, the applicant’s argument that the letter was merely a manifestation of his discontent about the justice system in general could not be accepted.

In the Court of Appeal’s view, the decisions taken by X in the context of the inheritance partition proceedings could, at most, be regarded as “erroneous” but not as “unfair”. The court also pointed out that one of the questions at the heart of the dispute (the existence of inheritance rights in favour of the partner) had been settled by the Court of Cassation differently from the applicant’s proposed solution. The National Bar Council had in fact noted that the applicant’s letters could have been seen as a means of pressure against the judges concerned.

According to the Court of Appeal, the applicant had not expressly challenged the part of the first-instance judgment considering that the expressions contained in the circular letter had overstepped the limits of the right to criticise.

The applicant, who had no criminal record, had to be allowed the benefit of mitigating circumstances, and under Article 52 of Legislative Decree no. 274 of 2000 (see paragraph 32 below), the penalty for defamation was now a mere fine (and not a custodial sentence).

The Court of Appeal observed that the distribution of a letter such as that sent by the applicant, within a small court, could not but impugn the dignity of the judge against whom it was directed and his image as an independent judge. The expressions used by the applicant, outside any procedural act, sought to call into question the professional conduct of X, who was portrayed, within a restricted community, as a partial and soft judge. In the light of those considerations, the Court of Appeal, ruling on an equitable basis, awarded the civil party EUR 15,000 in non-pecuniary damage.

The applicant appealed on points of law.

He reiterated his grievances and, referring to a particular passage in his grounds of appeal, stated that the Court of Appeal had made a mistake in asserting that the defendant had failed to challenge the finding about the offensive nature of the expressions contained in the circular letter. In any event, the judge had been required, at all stages of the proceedings, to verify of his own motion whether or not the criminal charge in question was made out.

In a judgment of 12 November 2008, deposited in the court’s registry on 17 December 2008, the Court of Cassation, finding that the Court of Appeal had given logical and correct reasoning in respect of all the contentious points, dismissed the applicant’s appeal on points of law.


CASE OF KRASNODĘBSKA-KAZIKOWSKA AND ŁUNIEWSKA v. POLAND

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants were born in 1942 and 1943 respectively and live in Warsaw.

The applicants are legal successors of the former owners of a property in the vicinity of Warsaw, called Willa Janówka, composed of a number of plots owned by several individuals.

In 1971 the then owners of the property, including E.P., the applicants’ mother, were obliged by an administrative decision to transfer their land to the State Treasury without compensation within the framework of a larger expropriation scheme.

On 30 December 2005 the Local Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze w Warszawie) gave a decision concerning the applicants and three other persons, legal successors of the other former owners expropriated by the 1971 decision. It declared that that decision had been issued in flagrant breach of the law in force at the material time. The parties were further informed that the corrective decision gave rise to a compensation claim on their part for damage caused by the original unlawful decision.

On 28 August 2006 the applicants sought compensation for damage caused by the decision given in 1971.

On 15 May 2009 the Warsaw Regional Court allowed the applicants’ claim and awarded 64,487 Polish zlotys (PLN) to each of them, corresponding to the value of the expropriated land. It held that the conditions determining civil liability in tort, namely a tortious event which caused damage and the establishment of a causal link between the event and the damage, were met in the case. In respect of tort committed by the State Treasury and caused by unlawful administrative decisions compensation could be sought only after a subsequent decision declared that the original administrative decision was unlawful. Such a corrective decision (decyzja nadzorcza) had been given in the applicants’ case in 2005 (see paragraph 8 above).

11inter alia, Article 160 of the Code of Administrative Procedure and enacted Article 417 1

The defendant State Treasury, represented by the mayor of Warsaw, appealed.

On 26 November 2009 the Warsaw Court of Appeal examined the appeal and dismissed the applicants’ claim. It endorsed the findings of fact made by the lower court as to the existence of pecuniary damage and the causal link between the 1971 decision and that damage. However, it was of the view that the provisions concerning the State’s civil liability in tort should have been interpreted differently by the first-instance court, in particular as to the determination of the prescription period. The court observed that under the communist regime it was practically impossible, essentially for political reasons, to vindicate claims originating in unlawful administrative decisions or to seek compensation from the State Treasury for damage in tort caused by such decisions. The earliest date on which it was possible to do so was 4 June 1989, when the first partially free parliamentary elections were held in Poland. It was from that date that the prescription period of ten years provided for by Article 442 of the Civil Code started to run. The applicants should have availed themselves of the available remedy, namely they should have obtained a decision declaring the original expropriation decision unlawful prior to 4 June 1999 when the ten-year prescription period came to an end.

The applicants appealed on points of law. They argued that the contested judgment was in breach of Article 77 of the 1997 Constitution in so far as it guaranteed the right to compensation for damage caused by the State. Neither the damage caused by the 1971 decision nor its unlawfulness were in dispute between the parties.

They further submitted that the case raised a significant legal issue in so far as there were divergent strands of case-law regarding the interpretation of legal provisions governing the State’s civil liability for administrative decisions made prior to 1 September 2004 and declared unlawful after that date. These differences in the judicial approach to similar cases, both as to the determination of the beginning of the prescription period and as to its length, had a decisive influence on the outcome of compensation cases brought by victims of unlawful administrative decisions and on the applicants’ case.

On 21 October 2010 the Supreme Court, sitting in camera as a single judge, refused to hear the applicants’ appeal on points of law, holding that it did not raise any significant legal issue.

Parallel to the applicants’ case, A.C., a successor of another owner expropriated by the same expropriation decision given in 1971 and covered by the same corrective decision of 30 December 2005 (see paragraph 8 above), sought compensation in civil proceedings for damage caused by the original decision. She lodged her claim with the Warsaw Regional Court on 30 August 2006.

By a judgment of 30 September 2010 the Warsaw Regional Court allowed her claim and awarded her compensation in the amount of PLN 110,187, corresponding to the value of the plot of land owned by A.C.’s legal predecessor. It recounted briefly the divergent views expressed by the civil courts, including the Supreme Court, in cases concerning claims for pecuniary damage caused by administrative decisions declared unlawful after 1 September 2004. It noted that the manner in which the provisions concerning the State’s liability in tort for unlawful administrative decisions were interpreted had given rise to serious difficulties and differences of opinion in judicial practice. It disagreed with the view expressed in certain judicial decisions that the ten-year prescription period for bringing compensation claims before the courts had started to run when the unlawful decision had been given, but its running was subsequently stayed until 4 June 1989. The Regional Court was of the view that the three

On 5 September 2006 R.W., another legal successor of the original owners, brought a compensation case before the Warsaw Regional Court, claiming compensation from the State Treasury, represented by the mayor of Warsaw, for damage originating in the 1971 decision. He also referred to the corrective decision of 30 December 2005.

By a judgment of 10 July 2012 the Warsaw Regional Court allowed his claim and awarded him PLN 82,988, corresponding to the value of the land concerned. The court stressed that it was not in dispute that the original administrative decision had been unlawful. Nor was it in dispute that that decision had caused damage to the claimant. The court referred to the resolution given by the Supreme Court on 31 March 2011 (see paragraph 27 below). It shared the view expressed by the Supreme Court in this resolution that it was not justified to interpret the applicable provisions in a way imposing on the applicant an obligation to seek a declaration of unlawfulness of the original administrative decision within ten years after 4 June 1989.


No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1979 and lives in Šibenik.

On an unspecified date an investigation was opened in respect of the applicant and four other persons, A.B., D.D., G.A. and E.R., in connection with the killing in Split of S.I.T.J, a British national. During the investigation A.B. gave oral evidence twice.

On 28 May 1997 the applicant was indicted before the Split County Court on charges of murder, while A.B., D.D., G.A. and E.R. were charged under the same indictment with participating in a fight which resulted in the death of one person. During the proceedings before the trial court A.B. did not testify and the oral evidence he had given during the investigation was read out. The applicant denied the veracity of his evidence.

On 19 July 2000 the Split County Court, composed of a panel of two professional judges and three lay judges, acquitted the applicant and found the other accused guilty as charged. Upon an appeal by the Split County State Attorney’s Office, on 5 December 2002 the Supreme Court quashed the judgment in respect of the applicant and dismissed the charges against the other accused on account of the statutory prescription period. The Supreme Court also ordered that fresh proceedings against the applicant be conducted by a trial panel composed of different judges.

In the fresh proceedings a panel of two different professional judges and three different lay judges of the Split County Court heard evidence from A.B. in the presence of the applicant and his defence lawyer on 18 February 2004. However, since one of the lay judges changed during the proceedings, the trial had to start afresh. At a hearing held on 10 July 2007 the applicant agreed that A.B.’s statement could be read out and on the same day the Split County Court again acquitted the applicant. That judgment was also quashed by the Supreme Court, on 22 January 2008, which again ordered a fresh trial with different judges.

A third round of proceedings was held before a panel of two different professional judges (I.R. and Ar.B.) and three different lay judges (B.S., G.M. and S.B.) of the Split County Court. At a hearing held on 23 February 2010 A.B. gave oral evidence in the presence of the applicant and his defence counsel. On 24 March 2010 Judge Ar.B. was replaced by Judge M.Š. and the lay judge B.S. was replaced by another lay judge, J.B. At a hearing held on 8 July 2010 that panel heard evidence from A.B., in the presence of the applicant and his defence counsel. On 17 February 2011 Judge M.Š. was replaced by Judge M.M. and the trial had to start afresh. During the renewed proceedings the trial panel heard evidence from various witnesses, save for the witness A.B. whose prior statement was read out at a hearing held on 7 June 2011 because he was in a psychiatric institution. A.B. was the only witness who said that he had seen the applicant attacking the victim. A request by the applicant for the trial panel to hear the witness in person was denied on the grounds that the witness was undergoing treatment for alcoholism in a psychiatric institution and that any absence from the institution would have a negative effect on his treatment.

On 16 June 2011 the Split County Court found the applicant guilty of murder and sentenced him to eleven months’ imprisonment, suspended for five years.

In an appeal of 5 August 2011, the applicant, inter alia, challenged the veracity of the evidence given by A.B. and objected to the trial court’s decision not to hear evidence from that witness in person. The applicant countered the reason given by the trial court for not requesting A.B. to come to the hearing by submitting that the witness’s psychiatric treatment was scheduled to be completed in about two months and that such a delay would not affect the applicant’s trial.

On 27 March 2012 the Supreme Court upheld the judgment of 16 June 2011. The relevant part of the Supreme Court’s judgment reads:

“The accused is not right in [alleging] that the first-instance court committed a serious breach of the rules of criminal procedure when it, without the [defence’s] consent, read out the statements of witnesses A.B. and G.A. The [first-instance] court was correct in deciding to read out the statement of witness A.B. (page 967 of the case file), who was questioned several times in these criminal proceedings, because a letter from the Rab Psychiatric Hospital shows that he was undergoing medical treatment, namely that ‘... the medical treatment is ongoing and possible absence would not contribute to the overall therapeutic procedure ...’ (page 965 of the case file).”

A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 12 July 2012.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

At the time of the events giving rise to the present application, the applicants lived in Istanbul and their children attended different public elementary schools.

On unspecified dates in December 2001 the applicants (save for Mr Yılmaz Yavuz) each sent petitions to the Bağcılar, Esenler and Kadıköy Education Directorates with a request for their children to be provided with education in Kurdish in their respective elementary schools. It appears that similar petitions were submitted by many other parents of Kurdish ethnic origin around the same time.

According to the examples submitted by the applicants, the petitions were worded, with slight variations, as follows:

“I want my child who is studying at ... school to receive education in Kurdish, which is his [her] mother tongue, in addition to education in Turkish, at school...”

On receipt of the petitions the relevant education directorates informed the Istanbul Security Directorate, which brought the matter to the attention of the principal public prosecutor’s office at the Istanbul State Security Court.

On 28 December 2001 the public prosecutor asked the Anti-terrorism branch of the Istanbul Security Directorate to identify the names and addresses of the persons who had petitioned the Bağcılar and Esenler Education Directorates with a request for education in Kurdish. It appears that on an unspecified date the same instruction was given in relation to the petitions lodged with the Kadıköy Education Directorate.

On 8 January 2002 the public prosecutor requested a warrant authorising a search of the homes of forty people, including the applicants, who had submitted petitions. The public prosecutor considered that the petitions in question had been made on the instructions of the PKK (Workers’ Party of Kurdistan), an illegal armed organisation, and wished to collect relevant evidence from the petitioners’ homes. The Istanbul State Security Court granted the public prosecutor’s request that day.

On 9 January 2002 the public prosecutor instructed the Antiterrorism branch of the Istanbul Security Directorate to conduct the searches with a view to finding evidence that could link the relevant persons to the PKK as aiders and abettors. It also instructed the Anti-terrorism branch to take the petitioners into police custody and question them in relation to the content and purpose of their petitions. The public prosecutor provided a list of questions to ask the petitioners, which mainly aimed to establish whether they had acted on the orders of the PKK.

Early on the morning of 13 January 2002 police officers from the Anti-terrorism branch of the Istanbul Security Directorate carried out a simultaneous search of all the properties, including the applicants’ houses. The search and seizure reports drafted by the police and signed by the applicants and other members of the household indicated that a search warrant had been issued by the Istanbul State Security Court on account of their petitions requesting education in Kurdish for their children. The reports also stated that the public prosecutor had ordered the petitioners’ arrest for questioning. According to these search and seizure reports, no illegal material was found in the applicants’ homes.

The applicants were arrested and taken into police custody following the searches on 13 January 2002. The search and seizure reports and custody records submitted by the Government indicate that the applicants were arrested and taken into police custody at the following times:

On the same day the applicants were questioned by officers from the Anti-terrorism branch of the Istanbul Security Directorate. They were asked, in particular, whether they had submitted the petitions in accordance with the PKK’s new “civil disobedience” strategy adopted at its Sixth National Conference held between 5 and 22 August 2001. The applicants Meryem Peker and Yılmaz Yavuz claimed that they had not submitted any petitions requesting education in Kurdish to any State authorities. The remaining applicants mainly denied any affiliation with the PKK and stated that they had submitted the petitions in question so that their children could learn their parents’ mother tongue. Some of the applicants also stated that the issue of submission of such petitions had also been discussed at the Bağcılar branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party), a Turkish political party, which they attended from time to time. The applicants’ signed statements suggest that interpretation services were provided to three of them (Ayşe Döner, Fatma Yılmaz and Güli Akyol) on request. A note drafted by the police also suggests that the applicants other than Meryem Peker, Halime Günana, Asiya Karadeniz and Yılmaz Yavuz were illiterate.

It appears that in the meantime, some of the applicants’ families contacted the Istanbul Bar Association seeking legal aid for their relatives during their detention in police custody. A lawyer was accordingly appointed. On 13 January 2002 the lawyer applied to the public prosecutor’s office at the Istanbul State Security Court for information in relation to twelve of the applicants (Esma Döner, Gülperi Döner, Ayşe Döner, Hanım Gülün, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Fatma Duruşkan, Meryem Peker and Mehmet Şirin Döner). In particular, he enquired about their legal status and the charges they were facing, and asked to meet them and to provide them with the necessary legal assistance. On the same day he applied to the Istanbul State Security Court to have the same twelve applicants released, arguing that they were being held in custody unlawfully.

On the same day a judge at the Istanbul State Security Court decided that there was no need to decide on the lawyer’s request as there was no record of the individuals in question being detained in relation to an investigation conducted by the public prosecutor’s office. On 16 January 2002 the Istanbul State Security Court rejected a request by the lawyer to have the decision rendered by the judge set aside.

In the meantime, on 14 January 2002 the public prosecutor informed the lawyer that the applicants in question were in custody on suspicion of being affiliated with an illegal organisation, and that there was no need to decide on the lawyer’s request to have access to them as no authorisation for their detention in police custody had yet been issued by the public prosecutor’s office.

It appears that shortly after that decision, still on 14 January 2002, the public prosecutor authorised the applicants’ detention in police custody for four days between 13 and 17 January 2002. The authorisation was granted in response to a request made by the Anti-terrorism branch of the Istanbul Security Directorate, who had claimed that the applicants’ detention was needed for the completion of their files, in particular to verify whether the petitions had been submitted by the applicants themselves, whether they had any affiliation with the PKK and whether they were being searched for in connection with other offences (see paragraph 32 below for the legal basis for that authorisation).

At 8.30 a.m. on 17 January 2002 the applicants were taken out of the detention centre and, following a routine medical check-up, were brought before the public prosecutor at the Istanbul State Security Court. They admitted before the public prosecutor that they had written the petitions, either themselves or with the help of their children, but stated that they had no other motive than wanting their children to learn their mother tongue. They denied any involvement with the PKK. Some of the applicants claimed that they had submitted petitions after hearing about it from other parents at school or on television. According to the information provided by the Government, seven of the applicants (Ayşe Döner, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Meliha Can and Kudret Dağ) were assisted by an interpreter during questioning by the public prosecutor.

At an unspecified time on 17 January 2002 the applicants (except for Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz) were brought before a judge at the Istanbul State Security Court, who ordered their release after taking statements from them. The applicants concerned were actually released following the Istanbul State Security Court’s order. Seven of the applicants (Ayşe Döner, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Güli Akyol, Meliha Can and Kudret Dağ) were assisted by an interpreter before that court. It appears that Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz were also released that day, but the decision ordering their release was not submitted to the Court.

On the same day the public prosecutor filed an objection concerning the decision to release the applicants, claiming that it was evident from the statements made by them following their arrest that they had submitted the petitions in an organised manner with the aim of assisting the PKK’s “politicisation” process. The public prosecutor added that although the applicants appeared to have lawfully used their right to petition, in reality they were acting on the instructions of the PKK and were thus aiding and abetting that organisation.

On 18 January 2002 the Istanbul State Security Court upheld the public prosecutor’s objection in respect of the applicants Esma Döner, Hanım Gülün, Hasibe Yılmaz, Meliha Can, Şükrüye Temüroğlu, Halime Günana and Zübeyde Yavuz, and issued a warrant for their arrest. The court did not provide any reasons for its decision.

On 22 January 2002 the lawyer asked the Istanbul State Security Court to set aside its decision of 18 January 2002 ordering the arrest of the relevant applicants. On 28 January 2002 the State Security Court dismissed that request, basing its decision on the nature of the offence, date of arrest, state of the evidence and contents of the case file.

In the meantime, on 19 January 2002 Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz were arrested on the basis of that warrant. The next day they were remanded in custody. It appears that the remaining four applicants named in the warrant could not be located.

On 21 January 2002 the applicants Esma Döner and Zübeyde Yavuz filed objections concerning their detention on remand.

On 22 January 2002 the Istanbul State Security Court dismissed Esma Döner and Zübeyde Yavuz’s objections, basing its decision on the nature of the offence and the state of the evidence.

On 6 February 2002 the public prosecutor at the Istanbul State Security Court decided not to prosecute the applicant Yılmaz Yavuz because of a lack of evidence against him.

On the same day the public prosecutor issued an indictment against thirty-eight suspects, including the remaining applicants, accusing them of aiding and abetting an armed organisation under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713) in force at the material time. In the indictment the public prosecutor stated that following the arrest and conviction of their leader Abdullah Öcalan, the PKK had set out to pursue new policies. Accordingly, at the Sixth National Conference held between 5 and 22 August 2001, it had adopted the “Democratisation and Peace Project”, a new strategy which had involved undertaking non-violent activities of “civil disobedience” and aimed at leaving the State and its authorities in a difficult position in the international arena. The public prosecutor submitted that such organised acts of civil disobedience agreed on by the PKK had included petitioning the State authorities for education in Kurdish, dressing up in traditional Kurdish female costume, and applying to courts or population registration offices with requests for their Kurdish identities to appear on their national identity cards. When viewed against this background, the petitions in question – which had been submitted to certain authorities on predetermined dates and times – could not be considered to be individual acts. They had actually been part of an organised movement which had aimed to implement the decisions adopted by the PKK and thereby undermine the authority of the State.

On 12 February 2002 the first-instance court ordered the release of the applicants Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz pending the criminal proceedings.

On 28 May 2003 the Istanbul State Security Court acquitted all the accused, including the applicants, because on the facts none of the elements of the crime of aiding and abetting an armed organisation had been present in their actions and there was no other evidence to support the allegations brought against them. The judgment became final on 5 June 2003.


Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, J.L., is a British national who was born in 1946 and lives in Leeds. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 3). She was represented before the Court by Mr K. Lomax of Lester Morrill Solicitors, a lawyer practising in Leeds.

The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office.

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

The applicant was married to an army officer. He was an alcoholic who had been violent towards her and had abused one of her twin daughters. In 1989 he resigned from the army following a court martial which found him guilty of ungentlemanly conduct. The army therefore no longer had any duty to house the applicant but on compassionate grounds, because of her husband’s misconduct towards her and her family, it was arranged that she should move to Ministry of Defence accommodation in Leeds where her daughters, then aged thirteen, were attending boarding school.

The applicant and her daughters moved into the accommodation in Leeds in September 1989 as “irregular occupiers”. However, the accommodation in Leeds was supposed to be temporary until the applicant was able to obtain housing through the local council and her licence to occupy was terminated on 26 September 1990.

The Ministry of Defence was granted a possession order in July 1993 and attempts were made to find alternative accommodation for the applicant and her children. However, the applicant has a history of spinal surgery, osteoarthritis, poor mobility and chronic pain. She is currently registered disabled and has to use a wheelchair. When an offer of alternative accommodation was made, it was refused because it was not suitable for wheelchair use.

On 19 July 1994 a letter was sent from the headquarters of the Eastern District of the army stating that the applicant was ill-advised to reject the offer because she had removed herself from the Leeds Council priority housing list and the only alternative was to rent or purchase in the private sector. It was asserted that the applicant had been rejecting all attempts to provide help and advice and, in the absence of a specific plan to obtain alternative accommodation, there was no alternative but to apply for a warrant of possession.

In December 1994 a further letter was sent indicating that the army would do everything they could to help in a difficult situation. The letter also asked for a medical report and an indication of what steps would be taken. Nothing appears to have happened following receipt of the letter and the applicant and her family remained in occupation.

In September 1996 the Ministry of Defence sold its property to a company called Annington Homes and leased it back. In October 1999 it was said that the applicant’s dwelling was surplus to requirements for the Ministry of Defence and should be handed back to Annington Homes. On 4 November 1999 a fresh notice to quit was served on the applicant.

There was a further delay and on 13 July 2001 a warrant for possession was sought based on the order made in 1993. The court refused to grant the order as it concluded that a fresh tenancy had been granted since 1993.

Due to a shortage of Ministry of Defence housing in the Leeds area, a further notice to quit was served in November 2005. In April 2007 the Ministry of Defence Assistant Director of Housing met with Leeds Social Services. At the meeting social services offered to write to the applicant to provide help and advice on re-housing.

On 26 June 2007 the Ministry of Defence commenced possession proceedings in Leeds County Court. On 3 September 2007 the applicant served a defence and counterclaim in which she asserted that the claim for possession was unlawful and would constitute a breach of her rights under Article 8 of the Convention. At the time the applicant was living in the property with her two daughters. One daughter suffered from mental health problems while the other daughter had a young son who suffered from Crohn’s disease.

On 22 November 2007 the case was transferred to the Administrative Court.

On 5 May 2009 the Administrative Court made a possession order in favour of the Ministry of Defence. It observed that following Doherty and others v. Birmingham City Council [2008] UKHL 57 the applicant could only challenge the decision to bring possession proceedings and not the proceedings themselves. In the present case there had been no obligation on the authority to enquire into the personal circumstances of the applicant and even if it were aware of her circumstances, personal disability would not generally provide a proper basis for declining to take proceedings. Moreover, while the Ministry of Defence had not always acted in a way which lived up to the proper standards of good administration, there was no reason to doubt that there was a real need for the property. As the Ministry’s need for available accommodation overrode the applicant’s rights under Article 8, it followed that she could not stay in the property forever and therefore could not have security. Possession had to be attained in due course, although it fell to Leeds City Council to consider the question of rehousing.

On 21 September 2009 the Court of Appeal refused to grant the applicant leave to appeal. Following renewal of the application, permission was again refused on 28 January 2010.

The applicant introduced her complaints to the Court on 4 November 2010. At that time the possession order had not been executed as suitable alternative accommodation had not been identified.

A few days later the Supreme Court handed down its judgment in Manchester City Council v. Pinnock [2010] UKSC 45 (see paragraphs 2528 below). In that judgment the Supreme Court considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact.

In February 2011 the Secretary of State for Defence decided to take action to enforce the possession order. He applied for and obtained a writ of possession issued on 9 March 2011.

The applicant subsequently issued domestic proceedings, requesting that the decision to enforce the possession order made against her be judicially reviewed in light of the judgment in Pinnock. In particular, she submitted that Article 8 entitled her to a single proportionality review of the eviction process and following Pinnock this review had to be conducted when the domestic court was deciding whether or not to make a possession order. As a consequence, such a right could not arise at the enforcement stage.

On 7 November 2011 the Court adjourned the application pending the outcome of the domestic proceedings.

The High Court handed down its judgment on 30 July 2012. It held, inter alia, that there was no reason to doubt that Article 8 remained engaged at the enforcement stage, as enforcement itself involved a significant and direct infringement of the tenant’s occupation of her home. That being said, the court held that it would not be in every case that a proportionality review would be appropriate at the enforcement stage. Indeed, where the question of proportionality had been raised and addressed at the possession stage, or where it could have been raised and addressed, it would be difficult for the tenant successfully to invoke it at the enforcement stage absent a marked change in circumstances or some other exceptional reason justifying its consideration. In the vast majority of cases where enforcement took place within days or weeks of the possession order, it would be unlikely that such justification could be established. In the present case, the court noted that the domestic courts had been unable to consider Article 8 in making the possession order, and concluded that in such circumstances she was entitled to a proportionality review at enforcement stage.

The High Court therefore conducted a proportionality review in the applicant’s case. It considered her longstanding mobility and ill-health difficulties; her daughter’s longstanding psychiatric disorder and the impact a forced eviction would have on her; the family’s need for particular and accessible accommodation; and the hardship they would face if required to move. However, given the Secretary of State for Defence’s legitimate aim in seeking possession (his right to do so under domestic law and his public law duty effectively to manage the Ministry of Defence’s resources), and in light of the high threshold identified by the Supreme Court in both London Borough of Hounslow v Powell and Others [2011] UKSC 8 and Pinnock (see paragraphs 26-38 below), the court held that the applicant’s circumstances did not render it disproportionate to seek enforcement of the possession order.

In reaching this conclusion, the court found the following considerations to be of particular relevance: the high threshold that applied to an Article 8 defence in possession proceedings applied with even more force at the later stage; the Ministry of Defence did not have the public function of providing social housing generally; Leeds City Council had such a public function, and it had awarded the applicant the highest level of priority possible; even if the family had to be placed in temporary accommodation pending the identification of a suitable permanent home, they would be placed together in accommodation that suited their needs; the applicant had been warned that she could not remain in the property indefinitely; the Secretary of State had refrained from seeking to enforce the possession order for more than a year and a half after it became enforceable to give the applicant an opportunity to find alternative accommodation; no one could say with any certainty that the applicant’s situation would be different within any fixed time-frame; and finally, there was no evidence to suggest that the eviction would be more detrimental now than in the future.

The applicant appealed to the Court of Appeal, which dismissed the appeal on 30 April 2013. In doing so, it agreed with the High Court that while in the overwhelming majority of cases the occupant’s Article 8 rights could be appropriately and sufficiently respected by the provision of a proportionality review during the possession proceedings themselves, in exceptional cases such as the present the raising of Article 8 at enforcement stage would not be an abuse of process. It also accepted that in the present case such a review could only have taken place at enforcement stage and the judge had been correct to carry it out when she did. It found that the judge had carried out a careful and sympathetic analysis of the consequences for the applicant and her family of the threatened eviction and her conclusions on proportionality could not be faulted.

Pursuant to the 1977 Act, in order to evict a tenant a landlord must first serve a notice to quit, giving the tenant at least four weeks’ notice. If the tenant does not leave the property voluntarily, the landlord must apply to court for an order for possession. If the court grants the order, it will specify the date on which the tenant must give up possession of the property. If the tenant does not give up possession on that date, the landlord must apply to court for a warrant of possession (see Rule 17 of CCR Order 26, as set out in Schedule II to the Civil Procedure Rules).

For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court’s judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010.

Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10, Lord Hope of Craighead clarified the two “gateways” via which a defendant in possession proceedings could challenge his eviction:

“... Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 [“gateway (a)”], the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...”

Lord Brown of Eaton-under-Heywood referred to the amendment to the 1968 Act allowing the County Court to suspend, for up to twelve months at a time, any possession order in respect of a local authority caravan site and noted:

“... Now, therefore, the county court would be entitled to suspend the order made against someone in Mr Connors’ position; previously, it was not.

By the same token moreover that the county court judge would have been unable, under the pre-existing law, to decline or postpone a possession order in the case of someone in Mr Connors’ position, so too in my judgment he is unable in other cases to give greater effect or weight to the occupier’s right to respect for his home than is allowed for under domestic law ...”

He added:

“The difficulty with such [a public law] defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court ... under a primary duty to reach its own judgment on the justifiability of making a possession order.

For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action ...

It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority’s decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself ...”

The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57 considered the Kay gateways. As regards the scope of gateway (b), Lord Hope clarified:

“52. ... [T]he speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review ...

... [I]t will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent’s decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable ...

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.”

On 3 November 2010 the Supreme Court sitting as a panel of nine judges in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”) considered the application of Article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the Housing Act 1996 (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). Following a review of the case-law, the Supreme Court considered the following propositions to be well established in the jurisprudence of this Court:

“(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ...

(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ...

(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ...

(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.”

The Supreme Court thus considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.

In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.

Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home might require certain statutory and procedural provisions to be revisited.

In London Borough of Hounslow v Powell and Others [2011] UKSC 8 (“Powell”), handed down on 23 February 2011, the Supreme Court held that the principle in Pinnock applied not only to demoted tenancies but to all cases where a local authority was seeking possession in respect of a property that constituted a person’s home for the purposes of Article 8.

Lord Hope observed that following Pinnock the court had to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home, even if his or her right to occupation had come to an end. The question of whether the property in question constitutes the defendant’s “home” was likely to be of concern only in cases where an order for possession was sought against a defendant who had only recently moved into accommodation on a temporary or precarious basis. Therefore, in most cases it could be taken for granted that a claim by a person who was in lawful occupation to remain in possession would attract the protection of article 8.

With regard to the proportionality assessment, Lord Hope stated that:

“33. The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim.”

The threshold for raising an arguable case on proportionality was a high one which would only succeed in a small proportion of cases. However, if the threshold was crossed, the court would have to consider whether making an order for possession was a proportionate means of achieving a legitimate aim. Lord Hope continued:

“The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement.

So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier’s personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44.

In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.”