CASE OF AXEL SPRINGER AG v. GERMANY (No. 2)

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicant company is a public limited company with its registered office in Hamburg. Among other activities, it is the publisher of the mass-circulation daily newspaper Bild.

On the evening of 22 May 2005, after his party (the Social Democratic Party (SPD)) had suffered a heavy election defeat in the Land of North Rhine-Westphalia, Federal Chancellor Gerhard Schröder, who had been in power as head of the Federal Government since 1998, announced that parliamentary elections would be brought forward to autumn 2005 from their scheduled date in September 2006. Because the early elections could not be held until the Bundestag (German Federal Parliament) had been dissolved – a process which could only take place by order of Federal President of Germany after a motion of confidence in the Federal Chancellor had been defeated – Chancellor Schröder called a vote of confidence on 1 July 2005 and lost it, with 148 of the 304 members of parliament from the parties making up his government abstaining as requested by the Chancellor. On 21 July 2005 Federal President Horst Köhler dissolved the Bundestag. This means of securing the dissolution of Parliament prompted discussions in public and among members of parliament, and was also the subject of appeals to the Federal Constitutional Court, which, by a majority, dismissed them and ruled that the disputed procedure was in conformity with the Basic Law (see in particular the decision of 25 August 2005, nos. 2 BvE 4/05 and 7/05).

The elections were held on 18 September 2005. None of the main political parties emerged victorious with a sufficient majority, but the parties forming the outgoing Schröder government (the SPD and the Greens) lost their majority. Subsequently, the conservative parties (the CDU and CSU) and the SPD agreed to form a coalition headed by Ms Angela Merkel, the candidate for the CDU and CSU. On 22 November 2005 Mr Schröder left office and Ms Merkel was elected as the new Federal Chancellor.

On 9 December 2005, at a ceremony to mark the start of work on the Baltic Sea gas pipeline (“Ostseepipeline”), it was announced that Mr Schröder had been appointed chairman of the supervisory board of the German-Russian consortium NEGP (Konsortium Nordeuropäische Gaspipeline). The aim of the consortium, which had its registered office in Switzerland and was controlled by the Russian company Gazprom, was to build a gas pipeline to supply Russian gas to western Europe. The agreement on the principle of building the pipeline had been signed on 11 April 2005 by the German company BASF and Gazprom in the presence of Mr Schröder and the Russian President Vladimir Putin. The signing of the contract itself, initially scheduled for mid-October at an energy summit in Moscow, had taken place on 8 September 2005 – again in the presence of Mr Schröder and Mr Putin – ten days before the early elections.

On the day of the announcement, a member of Bild’s editorial staff attempted to contact the deputy spokesperson for the government, S. (who had continued to occupy this post under the new government), for information on the subject but received no reply. The following day he made a further attempt, which was likewise unsuccessful. Following a third request later that day, the deputy spokesperson informed the journalist that Mr Schröder had nothing to add to his statement of 9 December 2005 in which he had indicated his willingness to accept an offer from the consortium partners to take up a position on its supervisory board.

On Sunday 11 December 2005 a Bild journalist called the vice-chairman of the parliamentary group of the Free Democratic Party (FDP), Carl-Ludwig Thiele.

In a sworn statement of 14 December 2005 the journalist affirmed that Mr Thiele had wondered whether Chancellor Schröder had already spoken to the Russians about a lucrative position before calling the early elections in May 2005. When asked by the journalist what he meant, Mr Thiele had replied: “The early election gambit must now be seen in a new light”. The journalist had then asked Mr Thiele whether he meant that Mr Schröder might have triggered the fresh elections on the basis of promises from Russia. Mr Thiele had replied: “That’s a question we need to ask”. He had added that, from his own experience in politics, a matter involving such a major change in personal activity must have been settled well before May. He had then asked two further questions: “Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?”

According to the statement, Mr Thiele had agreed for his comments to be quoted. On 14 December 2005 the journalist called Mr Thiele again and asked him whether, in the light of the warning (Abmahnung) which Mr Schröder had issued to Bild, he still stood by his comments; Mr Thiele confirmed that he did.

In its edition of 12 December 2005 Bild published a front-page article with the headline: “What does he really earn from the pipeline project? Schröder must reveal his Russian salary.” On page 2 of the newspaper, under the headline “Russian salary – will Schröder earn more than a million a year?” the article read as follows:

“The ex-Chancellor and Russian gas: there is growing outrage among all political parties. For Schröder is to head the supervisory board of a business seeking to build a four-billion-euro gas pipeline through the Baltic Sea from Russia to Germany. While he was Chancellor, he pushed this project through despite considerable resistance.

Lower Saxony Prime Minister Christian Wulff (CDU) called on Schröder to act, either by declining the chairmanship of the NEGP consortium’s supervisory board, or by revealing all his income from his Russian job!

Wulff told Bild: ‘Through his behaviour Gerhard Schröder has seriously damaged the reputation of politics in Germany. Schröder must decline the job of supervisory board chairman, because otherwise this may create the impression of being a reward for promoting the pipeline.’

The politician added: ‘If Schröder nevertheless accepts his appointment to the supervisory board, he must disclose what he is getting paid. This is a requirement under the regulations on disclosure [of income], which were toughened up by the Schröder government this year. The fact that the pipeline company has its headquarters in Switzerland is no reason for the former Federal Chancellor not to abide by these rules.’

Insiders reckon that Schröder is pocketing more than a million dollars a year for his gas job. After all, the Russians are not stingy. For example, five supervisory board members of the Russian company Northgas, a Gazprom subsidiary, have received payments totalling seven million dollars.

The fact that Schröder is walking into the joint German-Russian venture so soon after leaving the Government has been met with incredulity across all political parties. One particularly delicate matter is that on 11 April the Russian energy giant Gazprom and the German [company] BASF signed a memorandum in Hanover for the joint exploitation of a Russian gas field, in the presence of Schröder and Russian head of State Vladimir Putin. Following the signing, the two government leaders stayed up late drinking red wine together.

Was Schröder’s recruitment to the multinational gas company already being discussed at that time – six weeks before he called the early elections?

The vice-chairman of the FDP parliamentary group, Carl-Ludwig Thiele, said: ‘That’s a question we need to ask!’ Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?’ The early election gambit should ‘now be seen in a new light’, he added.

Peter Ramsauer, chairman of the CSU parliamentary group in the Bundestag, said: ‘You don’t make a deal like that overnight, and Gerhard Schröder was still Chancellor three weeks ago. He should now lay his cards on the table and say whether these agreements had already been reached while he was in office.’

The vice-chairman of the CDU parliamentary group, Wolfgang Bosbach, added: ‘Schröder should finally say what’s going on (was Sache ist)!’

The economic affairs spokesperson for the Greens parliamentary group, Matthias Berninger, said: ‘Schröder must now ensure maximum transparency and disclose his contract and remuneration.’”

The article on page 2 was accompanied by a photograph of Mr Schröder wearing a chapka on his head. Further down there was a short article stating that the NEGP consortium was headed by a former major from the State Security Ministry of the former German Democratic Republic, who was a friend of Mr Putin.

Mr Schröder’s appointment as chairman of the supervisory board gave rise to public debate and was reported in the media and discussed in the German Parliament, in particular on 15 December 2005.

An article published in Focus magazine (no. 50/2005) on 12 December 2005 stated that a journalist from the magazine had contacted the Schröder government in August 2005 to find out whether indications from Moscow that Gazprom was preparing a post for Mr Schröder were true. The government spokesperson had said that this was absurd and denied the existence of any such offer.

In April 2006 it emerged that in late October 2005, while government business was still being conducted on an interim basis by the outgoing government pending Ms Merkel’s election as Chancellor, guarantees had been signed whereby the German government agreed to underwrite a loan of one billion euros from two German banks in favour of Gazprom and part of the pipeline. Mr Schröder indicated that he had had no knowledge of the signing of the guarantees and Gazprom stated that it had not made use of them.

On an unspecified date in 2006 Gerhard Schröder sought an injunction in the Hamburg Regional Court prohibiting any further publication of the following passage of the article:

“Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?’”

In a judgment of 24 June 2005 the Regional Court granted the injunction. It held in particular that the quotation in issue was neither a factual allegation nor a value judgment but mere speculation in the form of questions, the legality of which was a matter for assessment in the light of the principles established for reporting on suspicions (Verdachtsberichterstattung). According to these criteria, the courts had to assess whether the impugned report concerned a matter of public interest, whether there was a sufficient factual basis for the speculation, whether the newspaper had been sufficiently diligent in carrying out its research and in deciding to publish the report, and whether the nature of the report made it sufficiently clear that what was being reported was speculation and that the factual reality might be different. The regional court held that the publication of the passage in issue in the case before it did not satisfy these criteria in so far as the applicant company had not sought to obtain Mr Schröder’s views on the matter beforehand and had not established a sufficient factual basis to justify publishing the passage in question.

In a judgment of 8 April 2008 the Hamburg Court of Appeal upheld the Regional Court’s judgment. It held that the publication of the offending quotation breached Article 823 § 1 of the Civil Code, in conjunction with Article 1004 § 1 (by analogy) of the Civil Code and the right to protection of personality rights (Allgemeines Persönlichkeitsrecht – see “Relevant domestic law and practice”), because it suggested to readers of the newspaper that Chancellor Schröder had taken the decision to hold early parliamentary elections on the basis of private considerations motivated by self-interest. The Court of Appeal found it unnecessary to determine whether the quotation in issue amounted to a genuine (open) question or a factual allegation in the form of a question, since the applicant company had conveyed a suspicion which could also have been formulated as a question. The Regional Court had thus been correct in applying the criteria for reporting on suspicions.

The Court of Appeal observed that the report published by the applicant company did not merely reproduce what Mr Thiele had said, but the quotation had formed part of a significantly longer article intended to steer readers in a certain direction. It further pointed out that the article had begun by saying that Mr Schröder and the Russian President Putin had met in April 2005, and had then asked whether Chancellor Schröder’s activities on behalf of Gazprom had been discussed on that occasion. In the court’s view, this encouraged readers to believe that it was possible that an agreement had been reached for Mr Schröder to take up a private-sector post and that he had used the election defeat in North Rhine-Westphalia as a pretext for triggering a series of events that would lead to his leaving office as Chancellor. It added that this line of thinking was borne out by the two questions in the quotation in issue and the use of the phrases “early election gambit” and “must now be seen in a new light”.

The Court of Appeal observed that the principles for reporting on suspicions applied to the case before it, although the report in question had not contained any suspicion that Mr Schröder had committed a criminal offence. What was decisive in the court’s view was that the applicant company had conveyed a suspicion entailing a serious and damaging accusation against the former Chancellor. The article had suggested that he had misled the general public and the electorate about the true reasons for his decision to call early elections and that he had prioritised his own financial interests over the common good, which he was required to serve as Federal Chancellor. The Court of Appeal considered that this was one of the most serious accusations that could be levelled against a person who had formerly held one of the highest State offices. In its view, the quotation in issue confirmed the seriousness of the accusation by using the phrase “monstrous suspicion”.

The Court of Appeal added that the applicant company had not had due regard to the principles established for reporting on suspicions. According to these principles, any such reports had to concern a matter of justifiable public interest, have a minimum factual basis, set out the facts objectively by indicating both the circumstances supporting the suspicion and those pleading in favour of the person under suspicion, be published, in principle, after obtaining comments about the accusations from the person concerned and be the result of research satisfying the requirements of journalistic rigour.

Applying those principles to the case before it, the Court of Appeal noted firstly that the subject-matter of the report was in the public interest. It also accepted that there had been sufficient material to justify reporting on the suspicions in question. In that connection, it recapitulated the sequence of events forming the background to the article, namely that Mr Schröder had expressed support for the pipeline project throughout his time as Chancellor, that he had met President Putin at the signing of the declaration of 11 April 2005 by two Russian and German private-sector firms, that he had decided to hold early elections at a time when his political party had been in difficulty following its election defeat in North Rhine-Westphalia, that he had triggered a process resulting in his relinquishing the office of Chancellor and that – according to the Court of Appeal – it had emerged that between the date of the early elections and his last day as Chancellor, Mr Schröder had secured a very well-paid post in a consortium controlled by Gazprom.

The Court of Appeal added that it was especially legitimate to ask how Mr Schröder could have secured that post as the events in question belonged to an area of fundamental importance in shaping public opinion. It pointed out that the requirements for assessing the legitimacy of such a report should not be too stringent. Otherwise, there was a risk that the media would be limited to commenting on politicians’ conduct only where there was substantial evidence corroborating the suspicions raised. Such a restriction, however, was not acceptable in this sphere. The Court of Appeal noted that anyone who attracted public attention, such as politicians, had to accept that the threshold beyond which their conduct could be investigated by the media was lower than that applicable to anyone not in the public domain.

The Court of Appeal added that the impugned publication had lacked objectivity and balance. It pointed out that the version of events set out in a report should not amount to a prejudgment (Vorverurteilung) of the person concerned. This was not only the case where the report gave the impression that the person had in fact done what he or she was suspected of doing, but also when a report was intentionally biased and distorted the facts for sensationalist purposes, without regard to the circumstances militating in favour of the person concerned. In the Court of Appeal’s view, this was what had happened in the case of the report in issue, since it had made no mention of any factors casting doubt on the accusations made but had referred solely to circumstances corroborating the suspicions, which to a certain extent were concentrated within the offending quotation.

In this connection the Court of Appeal observed that the report did not mention that the May election defeat in North Rhine-Westphalia had considerably weakened the authority of the government majority at federal level and could have constituted a valid reason for asking the electorate, by means of early elections, whether it still supported this majority. Likewise, the report did not mention anywhere that Chancellor Schröder had not adopted an attitude of resignation but rather had been active and combative throughout the election campaign. Lastly, the Court of Appeal found that at the time of the article’s publication there had been no information from anyone close to Mr Schröder to suggest that he had based his decision to call early elections on grounds that were spurious (sachfremd).

The Court of Appeal added that the applicant company had no basis for arguing that these circumstances were so well known to readers that there was no need to reiterate them in the report, since the entire article had sought to suggest to readers that there were no circumstances casting doubt on the facts as presented. Similarly, the fact that the subject of the report was of considerable public interest could not exempt the applicant company from its duty to present a balanced account of the facts. On this point, the Court of Appeal emphasised that the applicant company was not prevented from criticising Mr Schröder. However, in view of the extremely serious accusation being made, it could have been expected to indicate that the facts had yet to be established.

The Court of Appeal held, lastly, that the applicant company had not carried out sufficient research before publishing the article. It considered that irrespective of whether the politician quoted in the article should have been required to conduct his own research before raising his questions, the applicant company had had a duty to clarify the facts further before publicly reproducing those questions, which concerned extremely serious allegations. It pointed out that there had been sufficient connecting factors in this regard. For example, the applicant company could have contacted the consortium in Switzerland, Mr Schröder himself or one of his team to find out when the post for the former Chancellor had been planned or created, when he had discovered the existence of the post and when and by whom the post had been offered to him. The Court of Appeal added that the fact that other media outlets had reported on similar suspicions could not release the applicant company from its duties. Moreover, the company had not asked Mr Schröder for his views. In the Court of Appeal’s opinion, irrespective of whether the views of the person concerned should always be sought when suspicions were being reported, the press had a duty in any event, in order to satisfy the requirements of journalistic rigour, to contact the person concerned when publishing speculation relating to that person’s motives, provided that the person could be reached for comment. The Court of Appeal concluded that this duty had been all the more compelling in the case before it, in view of the especially serious nature of the allegation being made.

In a decision of 13 January 2009 the Federal Court of Justice refused the applicant company leave to appeal on points of law, holding that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law.

On 18 February 2010 a chamber of the Federal Constitutional Court decided not to accept for adjudication a constitutional appeal by the applicant company (no. 1 BvR 368/09). It declined to give reasons for its decision.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

The applicant was born in 1966 and lived before his arrest in the Arkhangelsk Region. He is currently detained in the town of Severodvinsk.

On an unspecified date the applicant, while being on the wanted list after having breached his undertaking not to leave the place of his residence, was arrested on the charges of violent acts against a public official (Article 318 § 1 of the Criminal Code of the Russian Federation). On 18 May 2010 the Severodvinsk Town Court of the Arkhangelsk Region authorised his detention.

On 2 September 2010 the applicant asked the Town Court to apply a non-custodial restraint measure to him. The applicant and his lawyer attended the hearing and made oral submissions. The Town Court dismissed the motion for release, having referred, in particular, to the applicant’s criminal record, which included two convictions for having mounted threats of violence against a judge, an offence under Article 296 of the Criminal Code, and for contempt of court, punishable under Article 297 of the Criminal Code. The applicant appealed.

In the meantime, on 20 September 2010 the applicant was convicted as charged.

On 12 October 2010 the Arkhangelsk Regional Court upheld the decision of the Town Court of 2 September 2010. With reference to its discretional powers under Article 379 of the Code of Criminal Procedure of the Russian Federation the appeal court rejected the applicant’s leave to appear, and held the hearing in his absence.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant, Mr Marco Severini, is an Italian national who was born in 1968 and lives in Murata. He was represented before the Court by Mr A. Campagna, a lawyer practising in Dogana.

On 4 May 2010 the applicant (a journalist who manages a website, S) was heard under oath as a witness, without the assistance of a lawyer, by an investigating judge. The questioning was in connection with a series of allegedly defamatory articles published on the website about a journalist and a politician, who had complained to the police on 2 February and 4 March 2010 respectively.

On an unspecified date a certain C. was questioned by the investigating judge.

On 7 December 2010 the investigating judge put the applicant’s name on the list as a suspect and issued a “judicial notice”, informing him of the charges against him being investigated (a step required by San Marino law).

On 20 December 2010 the applicant was again questioned by the investigating judge, this time as a person subject to investigation, and he therefore had the assistance of a lawyer. The investigation was concluded on the same day and a bill of indictment was filed against the applicant on charges of insult, defamation and libel in connection with the abovementioned articles.

According to the applicant, on an unspecified date before he became aware of the indictment, he had asked that he and his lawyer be allowed to reexamine C. The request was ignored since the bill of indictment had already been issued.

By a judgment of 5 November 2012 the applicant was found guilty of the charges. He was fined 5,000 euros (EUR) and ordered to pay damages that had still to be quantified.

The applicant appealed on the merits and further argued that the investigating judge had purposely delayed putting his name on the list of suspects, which leads to the issuing of a judicial notice, in order to deny him his defence rights, contrary to Article 4 of Law no. 93/2008. He noted that the judge had only filed the notice after C.’s testimony (which had then been repeated at the trial).

On appeal, by a judgment of 9 October 2013, the applicant was acquitted of the charges relating to the politician but found guilty of insulting and libelling the journalist. His fine was reduced to EUR 3,500.

In respect of his procedural complaints, the court of appeal considered that all the evidence had been adduced at trial and had thus been legitimate. It further noted that being put late on the list of suspects (which is the basis for a judicial notice being issued within 30 days) and the collection of evidence in relation to an “indagato sostanziale”, against whom such a notice has not yet been filed, could not nullify the actions in question. Indeed, the decision as to when to issue such a notice was a matter of judicial discretion and at worst could only entail disciplinary proceedings against the judge concerned in cases of dolo or culpa grave. The court noted that in the case in question the applicant had repeated his statements in the presence of a lawyer and they had thus been totally legitimate.

Moreover, there had been no infringement of the rights of the defence and the earlier questioning of the applicant had allowed him to become aware of the proceedings against the website he was managing. In any event, the court of appeal considered that the applicant had failed to specify which rights had been breached by the late filing of the judicial notice.

Law no. 93/2008 concerning criminal procedural rules, in so far as relevant, reads as follows:

“Except in the cases mentioned in Article 5 below, the investigating judge carries out all the investigating activity in general, as well as that related to the collection of evidence and particularly its acquisition (formazione), while safeguarding the rights of the accused and the prerogatives of the Attorney General (Procuratore del Fisco) as well as the rights of private parties as protected by criminal law.

The accused, assisted by a legal representative, and the Attorney General, have the right to present their defence by means of submissions and pleas. They may also examine and make copies of all the acts in the proceedings, including the report on the crime. The investigating judge must ensure that the parties can participate or be represented at each stage of the investigation proceedings.”

“(1) Within thirty days of the crime report ..., save for the exceptions set out in Article 5 below, the investigating judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ...”


André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

The applicant, Mr Jock Anthony Palfreeman, is an Australian national who was born in 1986 and is currently serving a prison term in Sofia. He was represented before the Court by Mr K. Kanev, from the Bulgarian Helsinki Committee.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, of the Ministry of Justice.

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

On the night of 27 December 2007 the applicant, who was serving in the British Army at the time of the incident, was leaving a bar in Sofia when he saw a group of about fifteen young people in the street outside the bar. Some of them got into a brawl with two Roma men. The applicant ran towards them, brandished a knife and started waving it at the group. During the ensuing fight he stabbed and killed one of the young people in the assembled group, the 20-year-old son of a politician. He also seriously injured another young man. Shortly afterwards, two police officers arrived and arrested the applicant.

The applicant was tried for murder. His defence was that he had attempted to protect the Roma men who had been attacked by the group of young people. He also claimed that he had used his knife in self-defence when the group had become violent towards him. The prosecution maintained that the applicant had run into the group in a determined way in order to administer justice. By the time he had intervened, the attack on the Roma had come to an end and he had not been acting in self-defence when he had stabbed two members of the group.

The applicant was convicted of murder in December 2009. The sentence was upheld on appeal and cassation. The applicant is currently serving a 20-year sentence in Sofia Prison. Both the case and the applicant have attracted significant public attention and extensive media coverage in Bulgaria.

The applicant’s close and extended family members – parents, siblings, grandparents, cousins, aunts and uncle – live in Australia; he has no partner or children in Australia. Each journey between Australia and Bulgaria for the 40-minute time slots allowed for visits involves substantial expense and absence from Australia for approximately a week. Because of such constraints, the applicant’s parents have only managed to see him once every six months since he was imprisoned. Such visits have also become increasingly difficult for them with time. His grandparents are in their late eighties and so the journey to Bulgaria has become almost impossible for them. A number of cousins and other close relatives, including an uncle and four aunts to whom the applicant is very close, are unable to make the journey at all.

On the basis of the information in the case file, it is clear that the applicant has been receiving regular visits in prison – from family members, friends and acquaintances; in particular, he was visited 48 times between September 2012 and July 2015; nine of those visits were from family members. Visits have been authorised when requested, including during periods falling outside the standard prison visiting schedule. According to a psychological assessment, made in April 2015 and submitted by the Bulgarian authorities, the applicant is socially and emotionally balanced and mature, with realistic self-esteem, a preserved sense of humour and no signs of depressive tendencies, stress or anxiety. He is the chairperson of the Bulgarian Prisoners Association and is fluent in the Bulgarian language, both orally and in writing. He displays leadership potential and strives to dominate in the prison community in which he is well integrated; he is popular among other inmates, both foreigners and Bulgarians, whom he is known to frequently assist with the drafting of their requests and/or complaints to the prison administration. He is housed in the wing for foreigners, assists foreign prisoners by interpreting between English and Bulgarian when necessary, and has regular access to a computer room, for a few hours a day, which makes it possible for him to pursue a distancelearning university course leading to a degree. The applicant actively corresponds in writing with family and friends.

On 12 April 2012, at the applicant’s initiative, the Australian authorities contacted the Bulgarian authorities about the possibility of transferring the applicant to Australia for him to continue to serve his sentence there. On 25 June 2012 the Bulgarian Prosecutor General replied in writing that the question of the applicant’s transfer could only be considered once he had paid outstanding damages to the victims.

On 14 May 2013 a representative of the Australian Attorney General wrote to the Bulgarian Prosecutor General, formally seeking the Bulgarian Government’s agreement to transfer the applicant under the Council of Europe Convention on the Transfer of Sentenced Prisoners of 1983 (the “Transfer Convention”, see paragraphs 17-21 below). The Australian authorities pointed out that the applicant met the eligibility conditions for the transfer of international prisoners and proposed a number of conditions in that respect. They included the following: that his transfer would not take place until his debts in Bulgaria had been paid; that the applicant would continue to serve his prison sentence in full in Australia and would become eligible for early release once he had served half of it, this also being an option under Bulgarian law; that all reductions of the applicant’s sentence confirmed by the Bulgarian authorities would be reflected in the remaining sentence; and that if the applicant benefitted from a conditional early release in Australia, he would be subject to parole conditions.

In a letter of 8 July 2013, sent via the Bulgarian Ministry of Justice, the Prosecutor General informed the Australian Attorney General that the applicant’s transfer had been refused. The letter emphasised that, having carefully considered the relevant provisions in the Transfer Convention and Bulgarian law, the prosecutor found that the conditions for transfer were not met. In particular, transfer was an option and not a mandatory consequence of a request made under the Transfer Convention. The applicant still needed to serve over 14 years of his 20-year sentence. Importantly, he had not shown remorse and had categorically been denying personal responsibility for the crime he had committed. In addition, he had expressed a negative and suspicious attitude towards the Bulgarian justice system as a whole and had been demonstrating hostility and mistrust towards the orders issued by members of the prison administration. In view of the above and of the fact that he had only served a fraction of his sentence, the prosecutor found that the purpose of the punishment, including for the purposes of international law, namely to turn the convicted individual into a law-abiding citizen, had not been achieved.

On 9 July 2013 the Bulgarian Prosecutor General announced publicly the refusal to allow the transfer of the applicant to serve the remainder of his sentence in Australia.

On an unspecified date the applicant appealed to the Sofia City Administrative Court against the refusal to transfer him to Australia. In particular, he emphasised that the refusal was against the fundamental rationale behind the Transfer Convention, which was to provide a possibility for States to cooperate towards achieving the purposes of justice and the social rehabilitation of convicted individuals. The Sofia City Administrative Court declared the appeal inadmissible, finding that the Prosecutor’s refusal to transfer the applicant was not an individual administrative act, given that the Prosecutor was part of the judicial and not the executive branch of power.

The applicant appealed. In a final decision of 24 April 2014, the Supreme Administrative Court held that the refusal of the Prosecutor General was not amenable to review by the administrative courts.

Article 453 § 1 regulates the transfer of individuals who have been sentenced. The Prosecutor General is the competent national authority to decide on requests for the transfer of foreigners convicted by a Bulgarian court to their country of nationality in order to serve their sentence. The Prosecutor General agrees such transfers with the relevant competent body of the administering State, after agreement by the prisoner in question.

A new provision in the Code of Criminal Procedure, Article 437 § 2, in force since 7 February 2017, provides a possibility for an individual serving a sentence of imprisonment to personally request conditional early release under Article 70 § 1 (1) of the Criminal Code if he or she has served at least half of the prison sentence.

The Transfer Convention provides for a formal mechanism by which prisoners can be transferred from one to another contracting State. Both member States and non-member States of the Council of Europe can accede to this Convention, which entered into force on 1 October 1994 in respect of Bulgaria and on 1 January 2003 in respect of Australia.

The Explanatory Report to the Transfer Convention states in paragraph 8 that the purpose of the Convention is:

“to facilitate the transfer of foreign prisoners to their home countries.”

Article 2 of the Convention provides:

“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.

A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.”

Article 3 sets out various conditions which must be met in order for a person to be transferred. A sentenced person may be transferred only if he is a national of the administering State. Both the sentencing and the administering State must consent to the transfer.

Under Article 4, any sentenced person to whom the Transfer Convention may apply shall be informed by the sentencing State of the substance of this Convention and if she or he expressed an interest in being transferred under this Convention, the sentencing State shall so inform the administering State as soon as practicable after the judgment becomes final.


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

Alvina Gyulumyan;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Nona Tsotsoria;Paul Mahoney;Vincent A. De Gaetano

The applicant was born in 1967 and is living in The Hague.

In March 1987 the applicant met and started a relationship with Mr W., who – like the applicant – was born and had always lived in Suriname. Both of them had acquired Surinamese nationality in 1975 when Suriname gained its independence (Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (Toescheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname), see paragraph 62 below). In September 1989, the applicant and Mr W. started to cohabit in the house of the latter’s paternal grandfather in Suriname.

On 19 October 1991, Mr W. travelled from Suriname to the Netherlands, holding a Netherlands visa for the purpose of stay with his father in the Netherlands. In 1993, Mr W. was granted Netherlands nationality which entailed the renunciation of his Surinamese nationality.

Mr W. has one sister, two brothers and one half-brother who are living in the Netherlands. Two other half-brothers and one half-sister are living in Suriname. The applicant has one brother, G., who was expelled from the Netherlands to Suriname in 2009. The applicant has also one half-brother and one half-sister who are living in the Netherlands. She has another half-sister who is living in Suriname.

Between 1991 and 1995, the applicant filed five unsuccessful requests for a Netherlands visa for the purpose of visiting a relative. These requests were rejected because her sponsor (referent) was insufficiently solvent, had failed to sign the required affidavit of support (garantverklaring) or had failed to supply sufficient information required for the assessment of the visa request. The applicant did not challenge any of these rejections in administrative appeal proceedings.

On 19 November 1996 the applicant filed a sixth visa request for the purpose of visiting a relative. After this request had been granted on 4 March 1997, the applicant entered the Netherlands on 12 March 1997 and did not return to Suriname when her visa expired 45 days later. To date, she has been staying in the Netherlands. She lived in Rotterdam until 20 July 1998, when she moved to The Hague. Since 17 December 1998 she has been living at the same address in The Hague.

On 20 October 1997, the applicant applied for a residence permit. According to the applicant, she had done so for the purpose of taking up residence with her Netherlands-national partner Mr W. According to the Government, the applicant’s stated aim had been to take up “paid employment”. On 16 February 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) decided not to process the application (buiten behandeling stellen) as the applicant had on two occasions failed to appear in person before the immigration authorities for the purpose of giving further information about her application. When, on 13 February 1998, the applicant’s lawyer had requested a new appointment on the ground that she would be unable to attend the interview scheduled for 16 February 1998, she was informed by the immigration authorities that – despite her lawyer’s absence – the applicant should appear in person. The applicant did not appear on 16 February 1998. The Deputy Minister’s decision of 16 February 1998 was notified to the applicant on 23 February 1998 and she was ordered to leave the Netherlands within seven days.

The applicant filed an objection (bezwaar) against the decision of 16 February 1998. As this objection was denied suspensive effect, she applied for a provisional measure (voorlopige voorziening) in the form of a court injunction preventing her expulsion pending the determination of her objection. This application was rejected on 23 December 1999 by the Acting President of the Regional Court (rechtbank) of The Hague sitting in Haarlem. The applicant’s objection against the decision of 16 February 1998 was rejected by the Deputy Minister on 17 January 2000. The applicant’s appeal against this decision to the Regional Court of The Hague and her accompanying application for a provisional measure were rejected on 12 July 2001 by the Regional Court of The Hague sitting in Utrecht. No further appeal lay against this ruling.

In the meantime, the applicant had married Mr W. on 25 June 1999 and, in September 2000, a son was born of this marriage. Under the Netherlands nationality rules, the applicant’s child is a Netherlands national. Since the child was unwell, he required lengthy treatment in hospital. He is currently attending secondary school and has no health problems.

On 20 April 2001, the applicant applied unsuccessfully for a residence permit on the basis of the so-called three-year policy (driejarenbeleid) or for compelling reasons of a humanitarian nature. Under this three-year policy a residence permit could be granted if a request for such a permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record. In the course of the proceedings on this request, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Amsterdam granted the applicant’s request for a provisional measure (injunction on removal) on 23 February 2004. The final decision was given on 17 May 2004 by the Regional Court of The Hague sitting in Amsterdam.

On 10 December 2005, a second child was born of the applicant’s marriage. This child also holds Netherlands nationality.

On 23 January 2007, the applicant filed a request for a residence permit for the purpose of stay with her children in the Netherlands. This request was rejected because the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa has to be applied for at a Netherlands mission in the petitioner’s country of origin and it is a prerequisite for the grant of a residence permit (verblijfsvergunning) which confers more permanent residence rights. The applicant was not exempted from the obligation to hold a provisional residence visa. She challenged this decision unsuccessfully in administrative appeal proceedings in which the final decision was taken by the Regional Court of The Hague sitting in Haarlem on 19 April 2007.

On 7 May 2007, the applicant requested the Deputy Minister of Justice to reconsider (heroverwegen) the negative decision on her last request. On 28 September 2007, the applicant filed a complaint with the Deputy Minister on account of the latter’s failure to reply to her request for reconsideration. By letter of 12 November 2007, the Deputy Minister informed the applicant that although her complaint concerning delay was well-founded there was no reason for a reconsideration of the decision.

On 28 September 2007, the applicant applied for a grant of a residence permit at the discretion of the Deputy Minister (conform beschikking staatssecretaris) based on grounds of special and individual circumstances (vanwege bijzondere en individuele omstandigheden).

On 7 July 2008, the Deputy Minister of Justice rejected this application. The applicant filed an objection with the Deputy Minister against this decision as well as an application to the Regional Court of The Hague for a provisional measure (injunction on removal pending the objection proceedings). On 17 November 2008, having noted that this request was not opposed by the Deputy Minister, the Regional Court of The Hague granted the provisional measure. On 11 March 2009, after a hearing on the applicant’s objection held on 15 January 2009, the Deputy Minister rejected the applicant’s objection.

The applicant’s appeal against the decision of 11 March 2009 to the Regional Court of The Hague and her accompanying application for a provisional measure in the form of an injunction on her removal pending the determination of her appeal were rejected on 8 December 2009 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. In its relevant part, this ruling reads as follows:

“2.11 It is not in dispute that the appellant does not hold a valid provisional residence visa and that she is not eligible for an exemption from the requirement to hold such a visa under section 17 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000) or section 3.71 § 2 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). It is only in dispute whether reason dictates that the defendant should exempt the appellant from the obligation to hold a provisional residence visa on the basis of section 3.71 § 4 of the Aliens Decree [for reasons of exceptional hardship (onbillijkheid van overwegende aard)].

2.12 The Regional Court finds that the defendant could reasonably conclude that in the present case there are no special and individual circumstances on the basis of which insistence on compliance with the visa requirement would entail exceptional hardship. ...

2.18 The appellant’s reliance on Article 8 of the Convention fails. There is family life between the appellant and her husband and her minor children, but the defendant’s refusal to exempt her from the obligation to hold a provisional residence visa does not constitute an interference with the right to respect for family life as the defendant’s decision did not deprive her of a residence permit enabling her to enjoy her family life in the Netherlands.

2.19 It does not appear that there is a positive obligation for the Netherlands State under Article 8 of the Convention to exempt the applicant, contrary to the policy pursued in this area, from the obligation to hold a provisional residence visa. It is of importance at the outset that there has been no appearance of any objective obstacle to the enjoyment of family life outside the Netherlands. Taking into account the young age of the appellant’s children, it can also reasonably be expected that they would follow the appellant to Suriname for the duration of the proceedings relating to the provisional residence visa. This is not altered by the fact that both children are Netherlands nationals. The fact that the appellant’s husband is currently being detained gives no cause for finding that ... there is an objective obstacle.

2.20 The appellant has cited the judgments of the European Court of Human Rights in the cases of Rodrigues da Silva [and Hoogkamer v. the Netherlands, no. 50435/99, ECHR 2006I], Said Botan [v. the Netherlands (striking out), no. 1869/04, 10 March 2009] and Ibrahim Mohamed [v. the Netherlands (striking out), no. 1872/04, 10 March 2009]. This cannot succeed, for the following reasons. The case of Rodrigues da Silva did not concern a temporary separation in connection with maintaining the requirement to hold a provisional residence visa, so the case cannot be said to be comparable. In the cases of Said Botan and Ibrahim Mohamed the European Court found that the reasons for lodging the complaints had been removed, because a residence permit had been granted to the complainants in those cases. For that reason, their complaints were not considered further. The Regional Court fails to see in what manner the European Court’s findings in those two cases could be of relevance to the appellant’s case.

2.21 The appellant has further invoked Article 2 of the International Convention on the Rights of the Child. In so far as the provisions invoked entail a directly applicable norm, they have no further implications beyond the fact that in proceedings such as those at hand, the interests of the children concerned must be taken into account. In the decision of 11 March 2009, the situation of the appellant’s two minor children was explicitly taken into account in the assessment. As the provisions invoked do not contain a norm as regards the weight that must be given in a concrete case to the interests of a child, there is no ground for finding that those provisions have been violated.

2.22 The Regional Court will declare the appeal unfounded.”

On 2 August 2009, upon his return to the Netherlands from a trip to Suriname for the funeral of his foster mother, the applicant’s husband had been found to have swallowed cocaine pellets. He was placed in pre-trial detention. On 8 October 2009, a single-judge chamber (politierechter) of the Haarlem Regional Court convicted him of offences under the Opium Act (Opiumwet) and sentenced him to seven months’ imprisonment. On the basis of this conviction, the Netherlands Royal Constabulary (Koninklijke Marechaussee) included his name on a blacklist provided to airline companies operating direct flights between the Netherlands and Aruba, the former Netherlands Antilles, Suriname and Venezuela. His name was to remain on the list for a period of three years, the aim being to prevent him from reoffending. On 31 December 2009, after having served his sentence, the applicant’s husband was released from prison. His name was removed from the airline blacklist on 2 August 2012.

The applicant’s appeal of 7 January 2010 to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the judgment of 8 December 2009 of the provisional-measures judge of the Regional Court of The Hague was dismissed on 6 July 2010. The Administrative Jurisdiction Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

In the meantime, the applicant filed a fifth request on 16 April 2010 for a residence permit with the Minister of Justice (Minister van Justitie) for the purpose of stay with a child, arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances.

This request was rejected on 11 May 2010 by the Minister, who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to Article 8 of the Convention. While accepting that there was family life within the meaning of Article 8 between the applicant, her husband and their children, the Minister found that there was no interference with the right to respect for family life as the refusal to grant the applicant’s request for exemption did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands.

As to the question whether the applicant’s rights under Article 8 entailed a positive obligation for the Netherlands to grant her a residence permit, the Minister found that the interests of the Netherlands State in pursuing a restrictive immigration policy outweighed the applicant’s personal interest in exercising her right to family life in the Netherlands. In balancing these competing interests, the Minister took into account the following: already in Suriname and before her arrival in the Netherlands the applicant had been in a relationship with her current spouse; she had entered the Netherlands without having been granted entry clearance for joining her partner as required under the relevant immigration rules; and she had created her family in the Netherlands without holding a residence permit. When it transpired in the course of the proceedings that the applicant was pregnant, the Minister further held that it had not been established, nor did it appear that the applicant would be unable – should hospitalisation be necessary – to give birth in a hospital in Suriname or that there would be any insurmountable objective obstacles to the exercise of family life in Suriname. On this point, the Minister noted that Dutch was spoken in Suriname and that the transition would not therefore be particularly difficult for the applicant’s children, who could continue their education in Suriname in a normal manner.

The Minister added that the mere fact that the applicant’s spouse and children were Netherlands nationals did not entail an automatic obligation for the Netherlands authorities to grant the applicant a residence permit, or lead to the conclusion that the exercise of family life would only be possible in the Netherlands. The Netherlands authorities could not be held responsible for the consequences of the applicant’s personal choice to come to, settle and create a family in the Netherlands without any certainty as to her entitlement to permanent residence. In the balancing exercise, the Minister attributed decisive weight to the fact that the applicant had never resided lawfully in the Netherlands and that there was no indication whatsoever that it would be impossible to exercise family life in Suriname.

The Minister further rejected the applicant’s argument that she ought to be exempted from the visa requirement, on the basis that inter alia the length of the applicant’s stay in the Netherlands was a consequence of her personal choice to continue to remain there. She had met with several refusals of her applications for a Netherlands residence permit but had nevertheless opted each time to file a fresh request, thus accepting the risk that, at some point in time, she would have to leave the Netherlands, at least, temporarily. The Minister further considered that the applicant had been born and raised in Suriname where she had resided most of her life and, given her age, she should be regarded as capable of returning to and fending for herself in Suriname, if need be with financial and/or material support from the Netherlands, pending the determination of an application for a provisional residence visa to be filed by her in Suriname. The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the visa requirement constituted exceptional hardship within the meaning of section 3.71 § 4 of the Aliens Decree 2000.

On 17 May 2010, the applicant filed an objection against this decision with the Minister. She filed additional grounds for her objection and furnished further information by letters of 20 and 25 May and 8 June 2010.

On 2 July 2010, the applicant requested the Regional Court of The Hague to issue a provisional measure (injunction on expulsion pending the outcome of the objection proceedings).

On 3 August 2010, following a court hearing held on 28 July 2010 and having regard to pending proceedings taken by the applicant seeking deferral of her removal under section 64 of the Aliens Act 2000 (see paragraph 53 below), the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam rejected the request for a provisional measure on the basis that it was moot.

On 19 December 2011 the Minister rejected the applicant’s objection of 17 May 2010. An appeal by the applicant against that decision was rejected on 17 July 2012 by the Regional Court of The Hague sitting in Dordrecht. In so far as relevant, its judgment reads:

“2.4.1. It must be examined whether the defendant could have refused to exempt the appellant from the obligation to hold a provisional residence visa, as required under section 3.71 § 1 of the Aliens Decree 2000, on the ground that removal is not contrary to Article 8 of the Convention.

2.4.2. It is not in dispute between the parties that there is family life between the appellant and her husband and their three minor children. Refusing the application [for a residence permit] does not constitute interference within the meaning of Article 8 § 2 of the Convention. No residence permit which actually enabled the appellant to enjoy family life in the Netherlands has been taken away from her. The subsequent question arises whether there exist such facts and circumstances that the right to respect for family life may be said to entail a positive obligation for the defendant to allow the applicant to reside [in the Netherlands]. In making this assessment, a ‘fair balance’ must be found between, on the one hand, the interests of the alien concerned in enjoying family life in the Netherlands and, on the other, the general interest of the Netherlands State in pursuing a restrictive immigration policy. In this balancing exercise, the defendant has a certain margin of appreciation.

2.4.3. It was reasonable for the defendant to attach more weight to the general interest of the Netherlands State than to the personal interests of the appellant and her family members. The defendant did not have to accept an obligation to grant the appellant residence in the Netherlands on the basis of Article 8 of the Convention. In this balancing exercise, the defendant was entitled to weigh heavily to the appellant’s disadvantage the fact that she had started family life in the Netherlands when she had not been granted a residence permit for this purpose, and that she had further intensified her family life despite the refusal of her requests for residence. This is not altered by the fact that for a certain period the appellant was lawfully resident while awaiting the outcome of proceedings concerning a request for a residence permit.

2.4.4. The defendant was entitled to take the position that the consequences of the appellant’s choices were at her own risk. According to the case-law of the European Court of Human Rights (Rodrigues da Silva and Hoogkamer v. the Netherlands [no. 50435/99, ECHR 2006I]), where family life has started while no residence permit for that purpose has been granted, removal will lead to a violation of Article 8 only in the most exceptional circumstances. The appellant has not established that, as regards her and her family, there are such exceptional circumstances. Her reliance on the judgments in Rodrigues da Silva and Hoogkamer and Nunez v. Norway (no. 55597/09, 28 June 2011) fails, as her situation is not comparable to the one in the cases of Rodrigues da Silva and Nunez. In those cases it was established that the children could not follow their mother to the country of origin. With the removal of the mother, contact with the children would become impossible. However, in the appellant’s case, it has not become sufficiently apparent that her husband and children could not follow her to her country of origin to continue family life there. The appellant has insufficiently demonstrated that her family members will encounter difficulties in entering Suriname. The consequence of her husband’s inclusion on a blacklist is that airlines can refuse to allow him on direct flights from the Netherlands to the Netherlands Antilles, Aruba, Suriname and Venezuela during the period between 2 August 2009 and 2 August 2012. This does not mean that it is self-evident that the husband will not be admitted to Suriname. The appellant has not established that it would be impossible for her husband to travel to Suriname in another manner. In addition, it is important to note that registration on the blacklist is only of a temporary nature.

2.4.5. No other circumstances have appeared on the basis of which the existence of an objective obstacle to continued family life in Suriname must be accepted. There is also no question of excessive formalism. The appellant’s situation is not comparable to the one in the case of Rodrigues da Silva. The defendant has taken the interests of the minor children sufficiently into account in the balancing exercise. The children were all born in the Netherlands and hold Netherlands nationality. At the time the impugned decision was taken, they were respectively eleven, six and one year old. The children have always lived in the Netherlands. Although the oldest child has built up bonds with the Netherlands, the defendant did not have to accept this as a basis for holding that the children could not take root in Suriname. In this connection it is also relevant that Dutch is spoken in Suriname and that both parents hail from Suriname.

2.4.6. This is not altered by the fact that the appellant’s husband and children hold Netherlands nationality and, on the basis of Article 20 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’), can derive rights from their EU citizenship. It can be deduced from the considerations of the Court of Justice of the European Union (hereinafter ‘ECJ’) in the Dereci et al. judgment of 15 November 2011 (C-256/11), in which a further explanation is given of the Ruiz Zambrano judgment of 8 March 2011 (C-34/09), that in answering the question whether a citizen of the EU who enjoys family life with a third-country national will be denied the right to reside in EU territory flowing directly from Article 20 of the TFEU, only a limited importance is given to the right to respect for family life. As follows from paragraphs 68 and 69 of the Dereci judgment, this right is not, as such, protected by Article 20 of the TFEU but by other international, EU and domestic rules and regulations, such as Article 8 of the Convention, Article 7 of the Charter of Fundamental Rights of the European Union, EU Directives and section 15 of the Aliens Act 2000. In answering this question the desire of family members to reside as a nuclear family unit in the Netherlands or the European Union is, inter alia, also of limited importance.

2.4.7. The situation of an EU citizen being denied the right to reside in EU territory arises only when the EU citizen is so dependent on the third-country national that, as a consequence of the decision by the defendant, he has no other choice than to stay with that national outside EU territory. In the appellant’s case, that has not occurred. The appellant’s children can be cared for by their father. The father also has Netherlands nationality. The appellant’s husband and children are not obliged or actually compelled to go with her to Suriname in connection with the application for a provisional residence visa. Their rights as EU citizens are thus not breached.

2.4.8. It was reasonable for the defendant to take the view that there was no appearance of very special individual circumstances leading to undue hardship. The proceedings concerning the appellant’s previous requests for a residence permit and the course of events during her placement in aliens’ detention for removal purposes cannot be regarded as such. The lawfulness of the decisions taken in those proceedings cannot be examined in the present appeal proceedings. The appellant has further not substantiated her claim that, when she submitted her first request for a residence permit, she complied with all the requirements and that she should then have been granted a residence permit. ...”

The Regional Court went on to find that the applicant had not substantiated her alleged medical problems or why these problems should lead to exempting her from the obligation to hold a provisional residence visa. The court further found that the applicant had not demonstrated her claim that, apart from the requirement to hold a provisional residence visa, she met all requirements for the issuance of a residence permit.

On 14 August 2012, the applicant filed a further appeal with the Administrative Jurisdiction Division. No further information about the proceedings on this latest request for a residence permit has been submitted by the parties.

On 5 January 2007, the aliens’ police ordered the applicant to report to them on 10 January 2007 so that she could be served with notice to leave the country within two weeks. This order was withdrawn owing to the applicant’s third request for a residence permit filed on 23 January 2007 (see paragraph 19 above).

On 26 February 2010, the applicant’s lawyer was informed by the aliens’ police that – as the applicant’s appeal against the judgment of 8 December 2009 (see paragraphs 23 and 25 above) did not have suspensive effect – they would proceed with the applicant’s removal.

On 10 April 2010, having failed to respond to a summons of 4 March 2010 to report to the aliens’ police, the applicant was placed in aliens’ detention (vreemdelingenbewaring) for removal purposes in accordance with section 59 § 1 (a) of the Aliens Act 2000. She was taken to the Zeist detention centre where she was found to be pregnant, her due date being 14 December 2010.

The applicant’s three successive release requests were rejected by the Regional Court of The Hague sitting in Rotterdam on 27 April, 1 June and 8 July 2010, respectively. In each decision, the Regional Court found that there were sufficient prospects of expulsion within a reasonable time frame and that the Netherlands authorities were pursuing the applicant’s removal with sufficient diligence. In its rulings, the Regional Court also rejected the applicant’s arguments that her pregnancy rendered her detention contrary to Article 3 and that, against that background, her conditions of detention were incompatible with that provision. In this context, in a letter of 29 June 2010 and addressed to the applicant’s lawyer who submitted it in the proceedings to the Regional Court, the Netherlands section of Amnesty International expressed its concern about the applicant’s placement in aliens’ detention. Although aware that the applicant had failed to respect the duty to report imposed on her, Amnesty International considered that a less severe measure than deprivation of liberty would be appropriate in the particular circumstances of the applicant’s case.

In the course of her placement in aliens’ detention, the applicant, on 28 June, 15 July and 3 August 2010, also filed complaints about her conditions of detention with the competent Supervisory Board (Commissie van Toezicht) of the two detention centres where she was held. These complaints were decided in two decisions given on 12 and 29 November 2010, respectively. Apart from the applicant’s complaint of 28 June 2010 that she had been required to wear restraints during transports to hospital, which was accepted as well-founded in the decision of 29 November 2010, the applicant’s complaints were dismissed. On 6 June 2011 the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) gave final decisions on the applicant’s appeals against the decisions of 12 and 29 November 2010. It held that the use of restraints for pregnant women was impermissible. It also held that the applicant had received too little supplementary nutrition upon arrival at the Rotterdam detention centre. These complaints were considered by the Court in its decision on admissibility of 4 December 2012 (see paragraph 4 above) and were declared inadmissible for the reasons set out therein.

The applicant was released from aliens’ detention on 5 August 2010 and her third child was born on 28 November 2010.

On 25 September 2012, the Consulate General of Suriname in Amsterdam issued a Surinamese passport to the applicant, which is valid until 25 September 2017.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicants are owners of residential buildings which were or still are subject to the rent-control scheme. Under the relevant legislation they were obliged to let their flats to tenants while charging no more than the maximum amount of rent fixed by the State. The legislation precluded them from unilaterally terminating the leases or selling the flats in question to anyone other than the respective tenants. The particulars of the flats affected by the rent control are set out in Appendices 3 and 4 (columns A - F).

The situation of the applicants is structurally and contextually the same as that in Bittó and Others v. Slovakia (no. 30255/09, 28 January 2014 (merits) and 7 July 2015 (just satisfaction) and subsequently decided cases concerning the rent-control scheme in Slovakia (Krahulec v. Slovakia, no. 19294/07; Bukovčanová and Others v. Slovakia, no. 23785/07; and Rudolfer v. Slovakia, no. 38082/07, 5 July 2016; Riedel and Others v. Slovakia, nos. 44218/07, 54831/07, 33176/08, 47150/08; Mečiar and Others v. Slovakia, no. 62864/09, 10 January 2017).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in 1959 and lives in Bijela (the Republic of Montenegro).

On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract for the exchange of his house in Dubrovnik (the Republic of Croatia) for one owned by F.O. in Trebinje (Republika Srpska, Bosnia and Herzegovina).

In 2001 Vu.Z. brought a civil action in the Trebinje Municipal Court (Osnovni sud u Trebinju) against F.O.’s heirs, seeking permission to register his ownership (clausula intabulandi) of the house in Trebinje.

On 20 April 2001 the Trebinje Municipal Court ordered F.O.’s heirs to issue a clausula intabulandi to Vu.Z and the defendants obeyed that order.

Vu.Z. died on an unknown date between 2001 and 2002.

On 14 August 2002 M.Z., Vu.Z.’s son and the applicant’s husband, brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku), seeking to have the contract for the exchange of the houses declared null and void. He claimed that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also claimed that his father’s signature on the power of attorney used by his mother, Vu.Z.’s wife, to sign the impugned contract on the latter’s behalf, had been forged. In his action, M.Z. indicated the value of the subject matter of the dispute (vrijednost predmeta spora) at 10,000 Croatian Kunas (HRK) (approximately 1,300 euros (EUR) at the time). Later on, at a hearing on 6 April 2005, he indicated the value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). The defendants objected.

On 25 April 2005 the Dubrovnik Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 180 at the time) for bringing the civil action. It assessed the fees according to the value of the dispute being at HRK 105,000.

By a judgment of 27 September 2005 the Dubrovnik Municipal Court dismissed the claim and ordered the claimant to bear all the litigation costs and the expenses of the opposing parties, namely HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings according to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows:

“... the costs of the proceedings were awarded to the defendants [and assessed] according to ... the value of the dispute indicated by the claimant (HRK 105,000 (page 58 [of the case-file]) that the [first-instance] court accepted.”

On 12 December 2005 the first-instance court ordered the claimant to pay court fees of HRK 1,400 for the judgment. It also assessed them according to a value of HRK 105,000 for the dispute.

By a judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed an appeal by the claimant and upheld the first-instance judgment. The relevant part of that judgment reads as follows:

“... the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.”

On 24 May 2010 M.Z. lodged an appeal on points of law (revizija) with the Supreme Court.

On 17 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir.

By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris, finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000. It held that the applicable value of the subject matter of the dispute was the one indicated in the claimant’s civil action. The relevant part of that decision reads as follows:

“With regard to section 40(3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises over jurisdiction over the subject matter, the composition of the court, the type of proceedings, or the right to lodge an appeal on points of law, the court shall quickly and in an appropriate manner verify the accuracy of the value specified, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits.

It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute, ex officio or if an objection is raised by the defendant, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits.

In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas.

Later on, at the hearing of 6 April 2005, the claimant’s representative indicated the value of the subject matter of the dispute at 105,000 Croatian kunas ... . However, the claimant did not amend the claim at the same time. [Therefore] the first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40(3) of the CPA [Civil Procedure Act] were not met.

It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.”

By a decision of 10 November 2011 the Constitutional Court declared a constitutional complaint by the applicant inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative.


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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant was born in 1954 and lives in Warsaw.

At the relevant time the applicant was a member of the Polish parliament.

In October 2006 a series of reports appeared in the Polish press in which the applicant’s past was described. It was reported that the applicant had sexually abused students when working as a teacher in the 1980s. The reports in question were published in the Polish daily newspapers Super Express on 20 October and Rzeczpospolita and Gazeta Wyborcza on 23 October, on the internet portal wydarzenia.pl on 20 October, and by the Information Radio Agency on 20 October and the Polish Press Agency on 20, 21 and 22 October 2006.

On 30 October 2006 the applicant organised a press conference which was held in the Sejm building. The conference was transmitted by a TV news information channel, TVN24. At the press conference the applicant said:

“... of course this was connected with the blackmail to which we were subjected. We already know which journalists cooperated, and with whom, in order to obtain money from us under false pretences. Today this is almost one hundred per cent clear to us. I think that today those three gentlemen already know about that. Those journalists cooperated with the informer who supplied the information on the basis of which the whole matter was disseminated and today, as far as we know, they are being paid for that. I do not yet know how much, some 15 or 20% of the amount obtained...”

Following this statement, a journalist from the daily Super Express J.H. commented:

“I am the author of this article, J.H., from Super Express. My question concerns the people who inspired me... Maybe you could tell us something else about these familial-financial relationships?”

The applicant replied:

“I will reply to you. The first complaint will be lodged against you [with the court] tomorrow. After that, three more complaints will be lodged...”

On 31 October 2006 the Rzeczpospolita daily published an article entitled “Jan Bestry: I did not commit rape, I will sue Super Express”. According to this article, the Super Express daily had written that in the 1980s the applicant’s employment contract had been terminated without notice because he had sexually abused young girls. The article went on to say that a few days after publication of this story, the TV station TVN reported that the applicant had been convicted in 1982 of having assaulted a woman passenger on a train when working as a train conductor. The article also mentioned that during an interview with Rzeczpospolita the applicant had said:

“The disclosure of these matters is in effect a plot in which Super Express was involved”.

The author of the article was G.P., who wrote it after interviewing the applicant on the phone. According to G.P. the applicant approved publication of the contents of the article and the statements cited in the article were the statements made by the applicant.

However, the applicant denied having spoken to G.P. or having approved any information for publication in the press article. When questioned by the court he said that he had not attempted to have a correction of this article published because he had only found out about it in the course of the judicial proceedings (see paragraph 19 below).

On 1 December 2006 the former editor-in-chief of the Super Express daily, T.L., and the publisher of the newspaper, the company Media Express Sp. z o.o., lodged a civil claim against the applicant for the protection of their personal rights. They claimed that the applicant had harmed their good name and credibility by statements he had made at the press conference on 30 October and in the article published by Rzeczpospolita on 31 October 2006.

On 29 May 2008 the Warsaw Regional Court granted the claim in part and ordered the applicant to publish an apology for the statements he had made – and which were cited in the article published by Rzeczpospolita on 31 October 2006 – using the following wording:

“Jan Bestry apologises to T.L., the former editor-in-chief of the Super Express daily, for unlawful infringement of his personal rights, namely his good name and professional credibility, by alleging in the Rzeczpospolita daily in an article published in issue no. 255 dated 31 October-1 November 2006 under the headline: “Jan Bestry - I did not commit rape; I will sue Super Express” that “the disclosure of the matters referred to in the article is in effect a plot in which Super Express was involved”.

The applicant was also ordered to make a similar statement of apology as regards the plaintiff company Media Express Sp. z o.o. and to publish these two statements in a particular way on page four of Rzeczpospolita.

The court refused to grant the plaintiffs’ request that the apology also be published in five other dailies and on the TVN channel, finding that such an order would exceed the severity of the infringement committed by the applicant.

The court justified its reasoning by finding that the applicant’s statement referring to a “plot” in which the Super Express daily was involved infringed the plaintiffs’ personal rights, and at the same time the applicant had not in any way proved the veracity of his allegations; both at the time the article was published and later, in the course of the civil proceedings, he had failed to demonstrate that the newspaper had in fact been involved in any “plot”. The court concluded that the applicant’s statements, which had been made in public, amounted to “unverified suspicions and accusations addressed to the newspaper”. It further observed that the applicant, as member of the parliament, had “a right to criticise socially negative phenomena” guaranteed to him by the Polish Constitution and by Article 10 of the European Convention on Human Rights. However, “while enjoying this right, he may not overstep the limits of permissible criticism by spreading groundless accusations.”

The court did not find credible the applicant’s submission at the hearing on 27 May 2008 that he had only found out about the Rzeczpospolita article in the course of the proceedings. The court took the view that, having held a press conference, the applicant would surely have followed the press articles which appeared over the following days concerning the subject matter discussed at the conference.

The court dismissed the remainder of the claim, finding that the statements made by the applicant at the press conference on 30 October 2006 could not unambiguously be interpreted as concerning journalists from a specific newspaper, because the applicant had not expressly mentioned any journalist or newspaper by name.

Both parties appealed against the first-instance judgment.

On 12 February 2009 the Warsaw Court of Appeal amended the challenged judgment insofar as it additionally ordered the applicant to publish an apology for the statements made during the press conference on 30 October 2006. The court examined what was said in the course of the conference and found that the applicant had initially referred to the events of 1980s, and to his work at the school and in the railway company. He had also said:

“Everything which was written in Super Express is untrue”.

Next, the applicant had spoken about his feelings about the case and about the sources that lay behind the story reported by the “journalists involved in this case”. He stated that:

“The first bill of indictment will be lodged with the court against the tabloid’s editor tomorrow. Before the end of the week, three more complaints will be lodged. All [complaints] concern articles in the newspaper discussed”.

After further statements referring to events at the school where the applicant had worked and a statement by the applicant’s wife, the applicant made the statement referred to above (see paragraphs 8 and 10), which in turn provoked the reaction by J.H. (see paragraph 9 above).

The Court of Appeal concluded that, although the applicant had not specifically mentioned the names of any journalists or newspapers, for the average person it was clear from the context of the statements concerned that the charges of blackmail and obtaining money under false pretences had been directed at journalists from Super Express.

The Court additionally ordered the applicant to publish the following apology on the TV Channel TVN 24 on a weekday between midday and 4 p.m.:

“Jan Bestry apologises to T.L., the former editor-in-chief of the Super Express daily for unlawful infringement of his personal rights, namely his good name and professional credibility, by making a statement at the press conference on 30 October 2006 which contained the untrue and defamatory allegation that Super Express journalists had cooperated with informers in order to obtain money from Jan Bestry under false pretences and, when publishing articles about Jan Bestry in Super Express, had received a percentage of the money obtained under false pretences. Jan Bestry expresses his regret for having illegally infringed the personal rights of the former editor-in-chief T.L.”

The applicant was also ordered to publish, in the same medium, an identical apology regarding the company Media Express sp. z o.o.

The applicant lodged a cassation appeal.

On 20 April 2010 the Supreme Court refused to examine the appeal, holding that the applicant had not demonstrated that the Court of Appeal had overstepped the limits regarding the assessment of evidence or had infringed the rules of interpretation of the relevant provisions.

J.H. lodged a private bill of indictment against the applicant. He claimed that on 30 October 2006 the applicant had slandered him through the mass media at a press conference by making public allegations that he had cooperated with informers in order to obtain money from the applicant. He also requested that the applicant be found guilty of slandering him by giving an interview to the Rzeczpospolita daily in which he had alleged that J.H. had participated in a plot against him.

On 27 April 2009 the Warsaw District Court found the applicant guilty of two counts of slander and sentenced him to a fine.

The applicant did not appeal against this judgment.

The applicant in turn also lodged a private bill of indictment against J.H. He sought a criminal conviction for J.H. on two counts of slander: firstly, for having published an article alleging that the applicant had sexually abused children and secondly for having published, on 27 October 2006, another article under the title: “Woman assaulted by Bestry. He wanted to force her into submission. He was convicted for beating her up”.

On 16 October 2012 the Warsaw Regional Court acquitted J.H. on the first count of slander but found him guilty on the second count.

The applicant’s lawyer and J.H.’s lawyer both lodged appeals against this judgment.

On 3 July 2013 the Warsaw Regional Court amended the first-instance judgment in that it also acquitted J.H. also of the second count of slander, finding that he had not committed an offence because he had merely made public truthful information concerning a person exercising a public function. The court found that J.H had collected sufficient evidence to prove the veracity of the information he had published and therefore could not be found guilty of slander. The court admitted that as regards the second count of slander, J.H. had published information about a criminal conviction which, due to the passage of time, had already been removed from the applicant’s criminal record. However, it considered that the expunging of the applicant’s record had concerned only its criminal and not its civil aspects and that the disclosure of the expunged conviction was permissible if made for the purposes of protecting a “socially protected interest”.

On 19 March 2014 the Supreme Court declined to examine the appeal, holding it to be unfounded.