Violation of Art. 8;Violation of Art. 6-1;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant married a NORP national GPE In DATE PERSON gave birth to their first daughter PERSON , their son B was born in DATE and their second daughter C in DATE .

The applicant and his family lived in GPE . The household also included GPE , the son of PERSON born in DATE of her previous marriage .

On DATE PERSON was committed to a psychiatric institution for DATE . According to the applicant she was diagnosed with “ a clear paranoid psychosis ” .

GPE suffered from development disorders caused by “ massive rejection ” by his mother .

NORP On DATE the applicant and GPE separated . Subsequently , they filed for divorce .

On DATE ORG granted the applicant the custody of A , B and C. Moreover , the court granted PERSON visiting rights . She was allowed to visit the children in their house once DATE and DATE after giving the applicant a DATE written notice . At the same time , the court issued a restraining order prohibiting PERSON from visiting the children in their schools . The applicant and PERSON were both granted parental authority .

On DATE ORG dismissed PERSON 's appeal against ORG decision .

On DATE PERSON abducted A , B and C and took them to GPE .

On DATE the applicant applied to ORG – designated as a ORG under LAW on the Civil Aspects of International Child Abduction ( “ LAW ) – for assistance in securing the return of the children .

On DATE PERSON applied to ORG for a decision declaring that A , B and C were habitually resident in GPE . She also applied for a restraining order prohibiting the applicant from removing the children from GPE .

On DATE the applicant 's application for the return of the children was submitted by ORG to ORG .

On DATE ORG stayed the proceedings concerning the application lodged by PERSON court 's decision was based on LAW .

On DATE a NORP translation of an expert opinion obtained by ORG on DATE was submitted to ORG .

On DATE ORG held a hearing in a case concerning the applicant 's application for the return of the children . PERSON , whose lawyer did not attend the hearing , informed the court that she would like to submit later certain documents confirming that she and her children had been ill - treated by the applicant . The hearing was adjourned until DATE .

On DATE the court requested an expert opinion on the relationships between the children and their parents and on whether the return of the children to the applicant would lead to psychological or physical damage to the children . The hearing was adjourned until DATE .

On DATE the applicant , PERSON and the children were interviewed by ORG , which was responsible for preparing the expert opinion .

On DATE ORG granted the applicant parental authority in respect of A , B and C and changed PERSON 's visiting rights . It considered that PERSON had unlawfully taken the children to GPE .

On DATE the hearing before ORG was adjourned sine die because the expert opinion was not ready .

The expert opinion was submitted on DATE . It had CARDINAL pages and ended with the following conclusion :

“ The emotional ties of the children with both parents still exist but are disturbed as a result of conflicts in the family environment . The father 's attitude to the children does not raise any problems and the mutual relationships between him and [ B ] and [ C ] are correct .

However , significant problems exist in the relationship between the father and [ A ] , who partly identifies herself with her mother and whose attitude to the father is dictated by [ the mother ] . Therefore , transferring her to the care of the father may be difficult .

Nevertheless , the existing disturbances in the behaviour of [ A ] show that the father will better guarantee a proper functional development in future . "

On DATE ORG held a hearing .

The next hearing took place on DATE . ORG allowed an application for the return of the children lodged by the applicant and ordered PERSON to return them to the applicant . As PERSON declared that she would appeal this decision , the court granted the applicant visiting rights pending the outcome of the appellate proceedings . During the hearing the counsel for the applicant asked the judge to take the children away from PERSON and place them in a child care facility as there was a risk that PERSON would hide the children . However , the judge refused the request as she considered that such a risk did not exist .

Subsequently , PERSON lodged with ORG an appeal against ORG decision of DATE .

On CARDINAL DATE ORG held a hearing . The counsel for PERSON submitted a medical certificate confirming that she was sick and could not attend the hearing . The court adjourned the hearing until DATE .

On DATE ORG dismissed an appeal lodged by PERSON During the hearing PERSON and her lawyer declared that the children would be hidden .

On DATE the enforcement proceedings began . The bailiff ( komornik ) requested PERSON to return the children but she refused .

On DATE the applicant paid MONEY to the bailiff .

On DATE the bailiff referred the case file to ORG .

On DATE the court held the first hearing in the enforcement proceedings . PERSON did not attend it . She submitted a medical certificate confirming that she was sick .

The next hearing before ORG was held on DATE . The court adjourned the hearing as it considered that it was necessary to hear both parties to the proceedings .

On DATE ORG informed ORG about ORG decision of DATE . The applicant submitted that ORG had not informed him that he should have attended the hearings held on DATE and DATE and that he had not received summonses from ORG to attend them .

On DATE the applicant was examined in GPE by a court expert in psychology .

On DATE ORG held a hearing . The court ordered PERSON to return the children to the applicant within DATE . It also decided that if she did not comply with the order she would be punished with a MONEY fine or a DATE prison term in default . The court also ordered the bailiff to take the children away from PERSON by force if they were not returned within DATE .

M.C. appealed ORG decision of DATE but her appeal was dismissed on DATE by ORG .

On DATE the bailiff sent to ORG in GPE a written request for their assistance in the enforcement of ORG order to take the children away from PERSON by force . The request referred to LAW and included information that the bailiff would enforce the court 's order on DATE at TIME at PERSON 's house in GPE .

On DATE ORG passed to ORG the applicant 's concerns that PERSON , who had already hidden the children in the past , might hide them again and asked whether it was possible to take any measures to prevent this and in particular to bring forward the date of enforcement of the court order .

On DATE ORG replied in the following terms :

“ I would like to inform you that there is no possibility [ of executing ] the ORG decision in another way . It is true that ORG is allowed to [ take preventive ] measures but the execution of the measures will be held on the same bases as the [ substantive ] decision . Mr. PERSON ( ... ) 's anxieties have been transmitted to the proper court .

The [ execution of the decision ] may not take place before the established date . ”

On DATE the applicant had a meeting with the bailiff . He informed the applicant that following his request of CARDINAL DATE he had contacted ORG . He had been advised that it would not send a representative to assist in the enforcement of the court 's decision on DATE . In addition , a person speaking on behalf of ORG had made the following statement to the bailiff :

“ You understand that I do not agree with that and the mother of the children will be immediately informed about the date and time of the enforcement . ”

According to the applicant , the bailiff did not take any steps to speed up enforcement of the court 's order .

On DATE the bailiff assisted by CARDINAL police officers and accompanied by a social worker , the applicant and the NORP consul came to the GPE 's house to enforce the court order . However , neither PERSON nor the children were present . PERSON 's mother , who lived in the house , informed the bailiff that PERSON and the children “ had left DATE for an unknown destination ” .

Subsequently , the police authorities in GPE and GPE were informed that PERSON had abducted the children and was hiding them in GPE .

On DATE ORG submitted to its NORP counterpart details of PERSON 's bank account held in GPE into which she was receiving her pension from GPE .

DATE . On DATE and DATE ORG inquired of ORG about developments in the search for the applicant 's children but received no reply .

On DATE ORG submitted to ORG a third request for information about developments in the applicant 's case . The request was signed by CARDINAL senior officers of the ORG .

On DATE ORG informed its NORP counterpart that details of PERSON 's bank account had been passed to the prosecution service , which was investigating this lead . It also advised the NORP authorities about new legislation which since DATE had made a guardian ( kurator sądowy ) responsible for the enforcement of court decisions allowing applications for the return of children . Therefore , on DATE ORG had allowed an application lodged by the applicant 's lawyer and had decided that a guardian should take the children away from PERSON when her address was established .

On DATE and DATE the applicant wrote to the Chief Police Commissioner in GPE asking for help in finding his children but did not receive any reply .

On DATE the applicant received a telephone call from GPE , at that time aged CARDINAL , who was on holiday in GPE . GPE informed him that A was visiting PERSON 's aunt in GPE . The applicant immediately contacted the police authorities in GPE and GPE while GPE kept A under observation .

On DATE returned to the applicant 's house in GPE .

On DATE ORG asked an elementary school in GPE whether B and C were attending it . On DATE the court asked the local educational authority in GPE whether the children were attending any of the schools managed by it .

On DATE the NORP Minister of Justice sent a letter to his NORP counterpart asking him to look into the applicant 's case .

On DATE a meeting of representatives of institutions engaged in the search for the children took place in GPE . It was organised by ORG .

On DATE ORG asked ORG where GPE was collecting her pension .

On DATE the court requested CARDINAL other elementary schools whether B and C were attending them . On DATE it was informed by ORG in GPE that PERSON had made a phone call from GPE to GPE .

On DATE ORG informed ORG that PERSON had been arrested in GPE , GPE DATE before .

On DATE the NORP ORG replied to the letter of DATE . The reply referred to the conduct of the proceedings in the applicant 's case and the fact that PERSON was being prosecuted on charges of forgery of documents and use of false identity . She was under police supervision and was not allowed to leave GPE .

On DATE ORG informed ORG that the prosecution service had lodged with ORG a bill of indictment against PERSON She was charged with the forgery of documents as she had apparently adopted false identities for herself and for B and C.

On DATE a guardian took B and C away from GPE

On DATE the children were returned to the applicant .

LAW was published in the NORP ORG on DATE . LAW reads , in so far as relevant :

“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures :

( a ) To discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) To secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) To exchange , where desirable , information relating to the social background of the child ;

( e ) To provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

( g ) Where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) To keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

Pursuant to LAW :

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”

Article CARDINAL of the Code , which was repealed on DATE , provided as follows :

“ When taking away a person who is a subject of parental authority or who is in care , the bailiff shall be specially careful , and shall do everything to protect such a person from physical or moral harm . The bailiff shall request the assistance of social services , or another institution tasked with this , or a court expert . ”


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

András Sajó;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE , DATE , DATE and DATE respectively . The first applicant lives in GPE and the other applicants live in GPE .

NORP In DATE the applicants , together with CARDINAL other persons , went to an upper secondary school ( gymnasieskola ) and distributed CARDINAL leaflets by leaving them in or on the ORG lockers . The episode ended when the school ’s principal intervened and made them leave the LOC . The originator of the leaflets was an organisation called ORG and the leaflets contained , inter alia , the following statements :

“ Homosexual ORG ( NORP )

In the course of DATE society has swung from rejection of homosexuality and other sexual deviances ( avarter ) to embracing this deviant sexual proclivity ( böjelse ) . Your anti - NORP teachers know very well that homosexuality has a morally destructive effect on the substance of society ( folkkroppen ) and will willingly try to put it forward as something normal and good .

-- Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for DATE plague gaining a foothold .

-- Tell them that homosexual lobby organisations are also trying to play down ( avdramatisera ) paedophilia , and ask if this sexual deviation ( sexuella avart ) should be legalised . ”

For distributing the leaflets , the applicants were charged with agitation against a national or ethnic group ( hets mot folkgrupp ) .

The applicants disputed that the text in the leaflets expressed contempt for homosexuals and claimed that , in any event , they had not intended to express contempt for homosexuals as a group . They stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education dispensed in NORP schools .

On DATE ORG ( tingsrätten ) of PERSON found that the statements in the leaflets had clearly gone beyond what could be considered an objective discussion of homosexuals as a group and that the ORG intention had been to express contempt for homosexuals . It therefore convicted the applicants of agitation against a national or ethnic group , and sentenced the first and second applicants to CARDINAL months’ imprisonment , the third applicant to a suspended sentence ( villkorlig dom ) combined with a fine , and the fourth applicant to probation ( skyddstillsyn ) combined with TIME of community service .

The applicants as well as the prosecutor appealed against the judgment to ORG ( hovrätten ) for ORG . The applicants requested the court to reject the charges , to consider the criminal act minor , or at least to reduce the punishments . The prosecutor appealed as regards the first CARDINAL applicants , requesting the court to consider the criminal act to be aggravated or at least to increase the punishments .

On DATE ORG , referring to ORG judgment of CARDINAL DATE in the case ORG DATE p. CARDINAL ( see below under “ Relevant domestic law and practice ” ) , rejected the charges against the applicants on the ground that a conviction would amount to a violation of their right to freedom of expression as guaranteed by the Convention .

The Office of the Prosecutor - General ( Riksåklagaren ) appealed against the judgment to ORG ( ORG domstolen ) and requested it to convict the applicants of agitation against a national or ethnic group , arguing that it would not amount to a violation of LAW in the circumstances of the present case . The applicants disputed the appeal .

On DATE ORG convicted the applicants of agitation against a national or ethnic group . The majority of judges ( CARDINAL out of CARDINAL ) first considered decisive for the outcome of the case whether the interference with the applicants’ freedom to distribute the leaflets could be considered necessary in a NORP society and whether the interference with their freedom of expression could be deemed proportionate to the aim of protecting the group of homosexuals from the violation that the content of the leaflets constituted . The majority then held :

“ In the light of the case - law of ORG CARDINAL , in the interpretation of the expression “ contempt ” in the provision regarding incitement against a group , , where , in particular , the following should be considered . The handing out of the leaflets took place at a school . The accused did not have free access to the LOC , which can be considered a relatively sheltered environment as regards the political actions of outsiders . The placement of the leaflets in and on the ORG lockers meant that the young people received them without having the possibility to decide whether they wanted to accept them or not . The purpose of the handing out of the leaflets was indeed to initiate a debate between pupils and teachers on a question of public interest , namely the objectivity of the education in NORP schools , and to supply the pupils with arguments . However , these were formulated in a way that was offensive and disparaging for homosexuals as a group and in violation of the duty under LAW to avoid as far as possible statements that are unwarrantably offensive to others thus constituting an assault on their rights , and without contributing to any form of public debate which could help to further mutual understanding . The purpose of the relevant sections in the leaflets could have been achieved without statements that were offensive to homosexuals as a group . Thus , the situation was in part different from that in NJA CARDINAL p. CARDINAL , where a pastor made his statements before his congregation in a sermon based on certain biblical quotations . The above - mentioned reasons taken together lead to the conclusion that LAW , LAW , interpreted in conformity with the LAW , permits a judgment of conviction , given the present circumstances of this case . ”

NORP The minority ( CARDINAL judges ) found that convicting the applicants would not be proportionate to the aims pursued and would therefore be in violation of LAW . Hence , the minority wanted to acquit the applicants but gave separate reasons for this conclusion , at least in part . CARDINAL of them was of the view that the prosecution was not formulated in such a way that ORG could take into consideration that the leaflets had been distributed at a school and addressed to the pupils , while the other found it natural that the leaflets had been aimed at pupils and agreed with the majority that an overall assessment of the circumstances had to be made .

The first CARDINAL applicants were given suspended sentences combined with fines ranging from SEK CARDINAL,CARDINAL ( approximately MONEY ( ORG ) ) to SEK CARDINAL,CARDINAL ( approximately LAW ) and the fourth applicant was sentenced to probation .

Chapter DATE , LAW ( ORG , ORG ORG ) provides that a person who , in a disseminated statement or communication , threatens or expresses contempt for a national , ethnic or other such group of persons with allusion to race , colour , national or ethnic origin , religious beliefs or sexual orientation , should be convicted of agitation against a national or ethnic group . The offence carries a penalty of up to CARDINAL years’ imprisonment . If the offence is considered minor the penalty is a fine , and if it is considered to be aggravated the penalty is imprisonment for DATE and DATE .

Agitation against homosexuals as a group was made a criminal offence by an amendment of the law that came into effect on DATE . According to the preparatory work on that amendment , as reproduced in Government PERSON ( pp . DATE ) , homosexuals constitute an exposed group which is often subjected to criminal acts because of their sexual orientation , and national socialist and other racist groups agitate against homosexuals and homosexuality as part of their propaganda . The preparatory work also stated that there were good reasons to assume that the homophobic attitude that had caused certain offenders to attack individuals on account of their sexual orientation derived from the hate , threat and inflammatory propaganda against homosexuals as a group that was spread by the majority of NORP and other right - wing extremist groups in the country .

ORG , in its judgment of CARDINAL DATE ( case ORG DATE p. CARDINAL ) concerning statements made by a pastor during a sermon which were deemed to have expressed contempt for homosexuals as a group within the meaning of LAW , LAW , considered that the legislation was in accordance with the LAW . However , ORG found that , the word “ contempt ” in the provision regarding incitement against a group had to be interpreted more restrictively than the preparatory work appeared to indicate if an application of the provisions that was in line with the LAW was to be achieved . ORG then found that an application of the provision that was in line with the LAW would not permit a judgment convicting


The applicant is a NORP national , born in DATE and living in GPE ( GPE ) .

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

The applicant ’s plot of land and his house were expropriated in DATE and DATE respectively by the local municipality . He was compensated with CARDINAL apartments . In DATE the ORG adopted a law on the restitution of property expropriated under planning and other legislation ( ORG за възстановяване собствеността върху някои отчуждени имоти по ORG , ORG , ORG , ORG и ЗС ) ( see below Relevant domestic law ) .

On DATE the applicant requested restitution of his property from the GPE Deputy - Mayor . On DATE the municipal board on architecture and construction issued its opinion according to which a road and a building were built over the expropriated plot of land . On DATE the committee in which the appropriate power was vested regarding the restitution of expropriated property expressed the opinion the plot of land should not be returned , regard being had to the fact that it had already been built over .

On DATE and CARDINAL DATE the applicant repeated his request . By letter of DATE , he was informed by the deputy - mayor that the municipality had been processing his request , the delay being due to the large number of similar applications .

On DATE the applicant ’s request was rejected by the mayor on the ground that the project for which his property had been expropriated , namely a road and a building , was completed .

On DATE the applicant appealed against that decision to ORG through the municipality . He requested the court to order the preparation of an expert report regarding his property . On DATE the applicant ’s appeal was received by the court , on DATE it was assigned to a panel of judges and on DATE the court appointed an expert .

The expert report of DATE stated , inter alia , that the road had been closed , the constructed building had been demolished and that the claimed land constituted an independent plot according to the relevant regulations as in force in DATE .

On DATE the court held a hearing . The applicant stated that he did not intend to give back the CARDINAL apartments received as compensation .

On DATE the court dismissed the applicant ’s appeal holding that the legal conditions for the restitution of the applicant ’s expropriated land were not met since he did not intend to give back the CARDINAL apartments by which he had been compensated .

On DATE the applicant submitted a petition for review to ORG complaining , inter alia , that the lower court did not take into consideration the expert report and the fact that the value of the plot of land had diminished .

Following the adoption of LAW , on DATE , ORG was split into ORG and ORG .

On DATE the applicant declared before a notary that he would return the apartments if he received back the plot of land with the house which had been demolished and an adequate compensation .

On DATE ORG opened case - file no . CARDINAL regarding the applicant ’s petition for review . At the hearing of DATE , the applicant declared his determination to return the apartments at issue . By judgment of DATE , the court quashed the decision of ORG and instructed it to examine whether the applicant ’s property had been expropriated on the basis of CARDINAL of the laws mentioned in the restitution law , whether the project for which the property had been expropriated had been completed on the date on which the restitution law had entered into force and whether the preconditions set out in the restitution law for the annulment of the expropriation had been fulfilled .

ORG held its first hearing on DATE . The applicant declared that he would return the apartments only if a new house were built by the municipality . The applicant applied for leave to adduce additional evidence and the hearing was adjourned .

The hearing resumed on CARDINAL DATE . The applicant again applied for leave to adduce additional evidence and the hearing was adjourned .

At the hearing of DATE , the applicant again stated that he would not give back the CARDINAL apartments .

On DATE the ORG quashed the mayor ’s decision of DATE and the expropriation orders of DATE and DATE . It held that the legal conditions set out in the restitution law had been fulfilled .

Upon the applicant ’s requests in DATE , ORG corrected some errors in its DATE judgment .

On DATE the municipality filed a cassation appeal with ORG through ORG . On DATE the applicant was served with a copy .

On DATE the ORG transmitted the cassation appeal to ORG . The hearing was held on DATE .

On DATE ORG , at a public hearing , quashed ORG decision and upheld the mayor ’s decision of DATE . It noted that the applicant had chosen of his own will to request restitution of a plot of land , although the expropriated house had been demolished and it had been clear under the relevant law that he would have to give back the CARDINAL apartments which he had received in compensation . On several occasions the applicant had declared before the court his unwillingness to give up the apartments . Therefore , there was no clear and unconditional request for restitution . As regards the applicant ’s request for compensation , the court held that it had not had jurisdiction to examine that issue , but the applicant would have to institute civil proceedings in this regard .

Throughout the proceedings the applicant was not legally represented .

DATE PERSON on the restitution of property expropriated under planning and other legislation

This law provides that former owners , or their heirs , of real estate which had been expropriated pursuant to several particular pieces of legislation could request , within DATE of the law 's entry into force , the restoration of their rights under certain conditions .

In the case of plots of land where an existing building was demolished , its restitution was possible only if the practical execution of the project for which the property had been expropriated had not commenced and the expropriated land had a sufficient surface to constitute an independent plot under the planning regulations ( LAW ) . Also , the former owners were required to return what they had received in compensation ( Sections CARDINAL ) .


The applicant , Mr Mykola Mykytovych Melnychuk , is a NORP national who was born in DATE and lives in GPE , in the GPE region of GPE .

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

In DATE the ORG , a local newspaper , published a critical review by PERSON of a book written by the applicant .

On DATE the same newspaper published another article by Mr P. about a new book of poetry also written by the applicant . PERSON wrote that the applicant ’s book looked good , but that it had no soul . PERSON observed that he had previously commented on another book by the same author and explained that , without a basic knowledge of literary writing and respect for the rules of language , one could not be a poet . Mr. PERSON then gave a number of examples from the applicant ’s new book where the author used numerous NORP words in the NORP text . CARDINAL of the quotations from the applicant ’s book was “ The town looks like a girl/ But also has something from the goat/ Though Berdychiv [ name of the town ] is older/ Almost twice [ older ] ” . PERSON also criticised the author for using portraits of and making references to PERSON , a famous NORP poet . Mr P. called the applicant ’s poetry the “ theatre of the absurd ” . He advised the sponsors of the book to put their money to better use by giving it to charity rather than funding the publication of books of dubious quality . Finally , he stated that the existence of such books could be harmful for the public , particularly schoolchildren , who might think that the printed word was a model for language use .

On DATE the applicant submitted a written reply to the newspaper , requesting that it be published . He pointed out that PERSON was a member of ORG , and went on to refer to PERSON as the “ member ” ( член ) , a word which is widely used in vulgar language for the penis . He further claimed that PERSON was jealous of his popularity and gave a confusing account of PERSON political and business activities . The applicant compared himself to the writers who were persecuted during the NORP era . He accused PERSON being an alcoholic who wrote low - quality verse about birds , and who tried to increase his political standing by criticising other writers . The applicant further disputed the criticism of his use of vocabulary . Finally , he called PERSON subhuman ” ( відлюдок ) .

The applicant ’s request for the publication of his reply was refused .

In DATE the applicant instituted proceedings in ORG against the ORG newspaper , claiming compensation for pecuniary and non - pecuniary damage caused by the publication of the above - mentioned articles . He maintained that they had undermined his popularity and violated his copyright . He also requested the court to order the newspaper to publish his reply to the impugned articles .

Before the court , the newspaper ’s representatives maintained that they had refused to publish the applicant ’s reply because it contained obscene and abusive remarks about PERSON The applicant had been informed of this in writing , and had been invited to amend his reply accordingly . The applicant maintained that he had never received this written refusal , which he believed to have been falsified , and claimed to have received only oral refusals over the telephone .

On DATE the court found against the applicant . The court established that PERSON articles were written in the form of book reviews , in which the author expressed his personal opinion about the quality of the applicant ’s literary work . It found that the newspaper had been entitled to agree or refuse to publish the applicant ’s protest . The newspaper had refused to publish the applicant ’s views because they contained obscene and abusive remarks about the book reviewer ’s personality , rather than a reply to the content of the articles in question . This ground for refusal was provided for by LAW . The court also dismissed as being unsubstantiated the applicant ’s complaint about an alleged violation of his copyright .

The applicant appealed to ORG , stating , inter alia , that section CARDINAL of LAW entitled him to demand the rectification of untruthful or defamatory information about him .

On DATE ORG upheld the decision of the first - instance court . It also observed that the impugned articles contained opinions , not facts , and that their content could not therefore be examined in terms of veracity .

On DATE a panel of CARDINAL judges of ORG dismissed the applicant ’s request for leave to appeal in cassation .

The relevant extracts of the resolution read as follows :

“ ORG ...

Recommends to member governments , as a minimum , that the position of the individual in relation to the media should be in accordance with the following principles :

NORP In relation to information concerning individuals published in any medium , the individual concerned shall have an effective possibility for the correction , without undue delay , of incorrect facts relating to him which he has a justified interest in having corrected , such correction being given , as far as possible , the same prominence as the original publication .

NORP In relation to the information concerning individuals published in any medium , the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute :

ii . an attack upon his dignity , honour or reputation ... ”

The relevant extract of the recommendation reads as follows :

The ORG consequently recommends that ORG :

i. ask governments of member PERSON to see that legislation guarantees effectively the organisation of the public media in such a way as to ensure neutrality of information , plurality of opinions and gender balance , as well as a comparable right of reply to any individual citizen who has been the subject of an allegation ;

The relevant extract of the appendix to the recommendation reads as follows :

“ Principle CARDINAL

The governments of the member GPE should establish or maintain a sound legal framework consisting of civil , criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others .

To this end , governments of member States should examine ways and means to :

– enhance the possibilities of combating hate speech through civil law ... by ... providing for the possibility of court orders allowing victims a right of reply or ordering retraction ;

The relevant extracts of the recommendation read as follows :

“ CARDINAL . Scope of the right of reply

Any natural or legal person , irrespective of nationality or residence , should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his / her personal rights . ”

“ CARDINAL . Exceptions

By way of exception , national law or practice may provide that the request for a reply may be refused by the medium in question in the following cases :

– if the reply is not limited to a correction of the facts challenged ;

“ CARDINAL . Settlement of disputes

If a medium refuses a request to make a reply public , or if the reply is not made public in a manner satisfactory for the person concerned , the possibility should exist for the latter to bring the dispute before a tribunal or another body with the power to order the publication of the reply . ”

The relevant extracts from the Printed Media ( Press ) Act provide :

“ ... It shall be prohibited to use the printed mass media for :

– an interference with the private life of citizens , or an attack on their honour and dignity ;

“ ORG , legal entities and ORG bodies and their legal representatives shall be entitled to demand the rectification of information published about them or data that do not correspond to the truth or defame their honour and dignity .

If the editorial board has no evidence that the information published by it corresponds to the truth , it must rectify this information at the plaintiff ’s request in the next issue of the printed media or publish a rectification on its own initiative . ...

The editorial board shall refuse to publish the reply if it :

NORP violates the provisions of section QUANTITY ;

The editorial board shall within DATE of receipt of the reply ... inform the applicant in writing ... of the refusal to publish the reply , indicating the grounds for such a refusal ... ”


The applicant is a NORP citizen , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

A.

At the material time the applicant was working in GPE as an international doctor for ORG ( “ the company ” ) , a NORP construction company .

The applicant , together with his CARDINAL colleagues , PERSON ( CARDINAL of the company engineers ) and PERSON ( the company accountant ) decided to pay a DATE visit to GPE in DATE . They took the ferry boat ( “ the GPE ) from GPE and arrived in GPE at TIME on DATE .

When they reached the passport control point the police questioned them about their visit to GPE . The applicant replied that he would be staying for DATE and that he had MONEY on him . Despite the fact that the applicant had a valid visa for entering and leaving GPE , issued in GPE , the police claimed that there appeared to be a problem in respect of his return visa to GPE and that he had to wait .

Although what the police said was unclear , the applicant did what he was told . His CARDINAL colleagues were also faced with the same difficulties .

While they were waiting one of the police officers , referred to as “ Mario ” , approached them and started to insult the applicant and his colleagues for being NORP and NORP . The applicant tried to explain that religion was a matter of belief and that people should respect rather than judge or discuss religion . The police officer became agitated , raised the tone of his voice and stated that the barbarian NORP had tried in the past to conquer the whole of LOC , that they had attacked GPE in DATE and that the brave , heroic NORP people had resisted and beaten them back , that LOC had been saved by the NORP and that the NORP knew these matters to be true as they had been taught them at school .

The Government maintain that this conversation never took place and stress that the “ Mario ” referred to by the applicant was not on duty at that part of the port at the time in question .

The applicant again attempted to explain that he and his colleagues could not be held responsible for events which had occurred DATE and that they could not be used to justify a decision to deny them entry into GPE . The police refused to listen . At TIME the police took the applicant and his colleagues to another building . The police acted violently towards them and placed them in a cell .

The Government maintain that the applicants were at no stage assaulted by the police .

When the applicant and his colleagues enquired about the crime they were supposed to have committed to warrant being locked up , the officer in charge replied that no mistake had been made and since they did not have a return visa for GPE they were going to be sent back to GPE on the same ferry . The applicant and his colleagues protested that their visas were valid and stated that even if they did not have a return visa for GPE , it was pointless to send them back there . They pointed out that if they were not allowed to enter GPE , they had enough money to buy plane tickets to fly to GPE and indeed could have gone to GPE for their holiday under those conditions . The officer in charge laughed at them , saying that they should have considered this before coming to GPE and that they would not be allowed out for any reason . The officer also forcibly seized their camera , removed the film and burned it .

At TIME the officers ' shift changed . New officers took over . Although they explained their situation to the new officers , there was no change in the outcome . They told the police that they could not keep them in cells even if they did not grant them leave to enter GPE . The applicants were threatened that " worse " might happen if they did not shut up .

At TIME LOC began embarking passengers for the journey to GPE . The applicant and his colleagues asked the police to let them get on it . The police said they would let them go to the ferry just before it departed .

The Government state that it is the practice of the ferry master not to allow “ inadmissible passengers ” such as the applicant on board until TIME before sailing .

The applicant and his colleagues were given nothing to eat or drink for TIME . Those who needed to use the toilet facilities had to call the warder who took them CARDINAL by CARDINAL . If it was not convenient for him , he simply said " later " . The Government dispute these allegations and assert that the detention only lasted a maximum of TIME .

The applicant and his colleagues were taken out TIME and brought to the ferry . Their passports were given to the NORP officer in charge of the ferry .

When the NORP officer asked why they had not been granted leave to enter GPE , they explained that the NORP officials had claimed that they did not have return visas for GPE . The NORP officer , after having examined their passports and after having seen that everything was in order , went to the NORP sergeant and asked why they had not been granted entry . The NORP sergeant said that the applicant and his CARDINAL colleagues did not have return tickets for GPE . The applicant insisted that they did have return tickets . The answer of the NORP sergeant was " they came with this ship and they are going to go back with this ship " .

Following their return to GPE , the applicant complained to ORG in GPE . The ORG replied on DATE stating that they would investigate the matter , but the outcome of this investigation is unknown . In a letter dated DATE ORG to GPE raised the applicant ’s complaints with ORG to GPE . On DATE the latter ORG replied that :

“ ( ... ) the CARDINAL passengers did not completely satisfy the requirements of ORG and on CARDINAL account , there were reasons to believe that the NORP passengers could not possibly be considered as bona fide travellers and were thus inadmissible under the immigration and national security regime ( ... ) ”

The Embassy ’s letter of reply also affirmed that the applicant and his colleagues had been treated with dignity and respect .

B. Relevant domestic law

Section CARDINAL(CARDINAL ) of LAW provides :

“ Any person who , not having been granted a residence permit , lands or is in GPE without leave of the ORG Officer shall be a prohibited immigrant . ”

Section ( CARDINAL)(a ) of the same LAW states :

“ Notwithstanding that he has landed or is in GPE with the leave of ORG or that he has been granted a residence permit , a person shall also be a prohibited immigrant if :

( a ) he is unable to show that he has the means of supporting himself and his dependants ( if any ) or if he or any of his dependants are likely to become a charge on public funds ; ”

Section CARDINAL stipulates :

“ ( CARDINAL ) Where leave to land is refused to any person arriving in GPE on an aircraft , such person may be placed temporarily on shore and detained in a place approved by the Minister and notified by notice in ORG until the departure of such aircraft is imminent .

( CARDINAL ) Where leave to land is refused to any person arriving in GPE by any other means , such person at his own request may , with the leave of ORG , be placed temporarily on shore and detained in a place approved by the Minister and notified by notice in ORG ;

Provided that he shall be returned to the vessel by which he is to leave GPE immediately that he makes a request to that effect or that ORG so directs , whichever is earlier .

( CARDINAL ) Any person , while detained under subsections ( CARDINAL ) or ( CARDINAL ) of this section shall be deemed to be in legal custody and not to have landed . ”

Section CARDINAL provides :

“ Any person who acts in contravention of section LANGUAGE of this LAW or is reasonably suspected of having so acted , may be taken into custody without warrant by ORG or by any police officer and while he is so kept in custody he shall be deemed to be in legal custody :

Provided that , without prejudice to prosecution for any offence under LAW , such person shall be released if he has not been charged with such offence within TIME of his having been so taken into custody . ”


CASE OF HAVLICKOVA v. THE CZECH REPUBLIC

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

ORG The applicant lives in ORG .

On DATE the applicant , having been divorced on DATE , lodged an action with ORG ( okresní soud ) for the separation of the matrimonial property .

On DATE and CARDINAL DATE the court held CARDINAL hearings . On DATE and DATE it appointed CARDINAL experts with a view to evaluating real estate , antiques and jewellery . Subsequent hearings were held on CARDINAL DATE , CARDINAL DATE and CARDINAL DATE . In the meantime , the expert in real estate delivered his opinion . Another hearing was scheduled for DATE .

On DATE a new expert opinion concerning the real estate was submitted to the court , which had appointed another expert in antiques and jewellery .

On DATE ORG ordered a new expert opinion concerning the real estate . The expert submitted his report on DATE .

On DATE the case was transmitted to another judge at ORG .

Two hearings were held on DATE and DATE . The parties expressed their wish to reach a friendly settlement . The last hearing was therefore adjourned sine die .

As the parties had not informed the court about a friendly settlement , a hearing was held on DATE . It was adjourned in order to evaluate the antiques and jewellery claim . Moreover , the applicant was invited to submit the address of a witness she had suggested be heard .

On DATE the court appointed a new expert in real estate . The expert submitted his opinion in DATE .

On DATE and DATE , ORG held hearings . The applicant did not attend the last hearing , being in GPE . The court therefore adjourned the hearing sine die .

On DATE the applicant ’s lawyer informed the court that her client had returned to GPE and that a friendly settlement of the case was not excluded . On DATE she informed the court of the continuation of the dispute . On DATE the applicant notified the court that she would be abroad until DATE .

A hearing scheduled for DATE was adjourned at the request of the applicant ’s lawyer until DATE . At this hearing , the defendant challenged the judge for bias . On DATE the PERSON Regional Court ( krajský soud ) decided that the judge was not biased , and remitted the case to ORG .

A hearing scheduled for DATE was adjourned , the defendant being ill .

A hearing held on DATE was adjourned sine die , the parties not agreeing on the value of the antiques and jewellery . The court requested ORG to submit written opinions as the defendant claimed that certain antiques had been stolen in DATE .

It appears that the proceedings are still pending at first instance .


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG The applicant , a NORP national born in DATE , pursued a career in the NORP army . In DATE he retired with the rank of capitaine - commandant . On DATE he gained a law degree .

ORG On DATE Mr ORG informed the Chairman of ORG that he intended to apply for enrolment on the list of pupil advocates . On DATE he had an interview with the Chairman .

ORG , when it learnt of the applicant ’s intention at its session on DATE , reacted in a somewhat unfavourable manner , but took the view that it was unnecessary to give a decision as no formal application had been made .

ORG On DATE , in the course of a telephone conversation , the Chairman of ORG allegedly told the applicant that ORG had decided not to enrol him because he had completed CARDINAL full career and FAC already had CARDINAL members .

ORG By a letter of CARDINAL DATE Mr ORG submitted an application in the prescribed form .

ORG At a meeting on DATE ORG decided to consult the Chairman ( doyen ) of ORG .

On DATE , after considering the latter ’s opinion , according to which there were no grounds for refusing Mr ORG application ( " er geen argumenten zijn om ORG FAC te weigeren " ) , the ORG appointed CARDINAL rapporteurs from among its members .

ORG On DATE the Chairman read out the report of the first rapporteur , which was unfavourable , and the second submitted a comprehensive report on the matter . During the deliberations , it was pointed out that Mr ORG had not taken the oath and had therefore not been entitled to seek enrolment . DATE the ORG rejected the application .

ORG The Chairman of ORG informed Mr ORG of this decision in a letter of CARDINAL DATE . He stated that it was consistent with the practice followed by ORG according to which persons who had completed a full career outside the Bar were not admitted to the list of pupil advocates .

ORG On DATE Mr ORG filed an application in the PERSON d’Etat to have the decision set aside on the ground that ORG did not constitute an " independent and impartial tribunal " within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .

ORG On DATE ORG produced its statement of defence . It argued that the PERSON d’Etat lacked jurisdiction and that Mr ORG had no interest in the proceedings inasmuch as he had not taken the oath and could not therefore be enrolled on the list of pupil advocates . On the merits , it affirmed that a refusal to enrol could be based on reasons other than those justifying disciplinary measures . The fact that the applicant had already completed CARDINAL full career justified the impugned decision , particularly because he had stated that , as his income was sufficient , he wished to engage in what he regarded as a stimulating occupation on a part - time basis .

ORG Mr ORG filed his reply on DATE . He maintained that the uncertainty concerning his admission to the Bar had made it impossible for him to find an advocate who was prepared to present him so that he could take the oath ; this obstacle could be surmounted only by the designation of an ad hoc pupil master .

ORG On DATE , DATE and CARDINAL DATE the Legal Adviser ( auditeur ) responsible for preparing the case requested various documents from ORG , which sent them to him on DATE .

ORG On DATE the auditeur submitted his report , which was communicated to the applicant on DATE . He expressed the view that the ORG d’Etat had jurisdiction and that Mr ORG had an interest in having ORG decision quashed . There was no legal obligation for a law graduate to take the oath before seeking enrolment on the list of pupil advocates . The text of the decision refusing the applicant admission to that list had not cited as a reason the fact , mentioned orally on DATE ( see paragraph CARDINAL above ) , that FAC already had a large number of lawyers . It had referred solely to the circumstance that the applicant had completed a full career outside the Bar . Yet , in the light of the judgment of ORG CARDINAL DATE ( see paragraph CARDINAL below ) , a refusal to enrol of this nature should have been grounded either on the failure to comply with the conditions laid down in LAW or on the postulant ’s unfitness or incompetence to practise as a lawyer . It followed that the reason given by ORG did not justify in law the decision of CARDINAL DATE , which should therefore be set aside .

ORG On CARDINAL DATE ORG filed a final pleading , reiterating the same CARDINAL objections to the admissibility of the application ( see paragraph QUANTITY above ) . It added that the reason given fell within the scope of the wide discretion that ORG considered itself to enjoy in this area .

ORG On DATE the President of the ORG d’Etat , PERSON , transferred the case from the ORG before which it was pending and directed that it should be heard by ORG . On DATE he postponed the public hearing until DATE as some members of the ORG d’Etat were unable to attend on DATE , the date for which it had been initially set down .

ORG On DATE ORG sought leave to intervene in the proceedings . It considered Mr ORG application inadmissible . As he had not taken the oath and did not therefore satisfy one of the statutory conditions for enrolment , ORG could only have given an opinion , in respect of which an application for annulment could not lie . It argued in addition that the PERSON d’Etat lacked jurisdiction . In its view , the intention of the legislature had been that only the ordinary courts , and not the ORG d’Etat , should have jurisdiction for disputes arising from the decisions of ORG .

ORG On DATE ORG gave leave for this intervention and heard the parties , after which the President reserved the decision .

ORG On DATE the applicant complained to the President of the length of the proceedings . He allegedly received no reply .

ORG On DATE he laid a formal complaint with ORG for a denial of justice . On DATE he learned of the authorities’ decision not to proceed with his complaint .

ORG In a judgment of CARDINAL DATE , ORG , presided over by Mr Baeteman , President of the ORG d’Etat , noted that the assembly which had heard the case up to that point had not concluded its deliberations and could no longer validly sit on account of the death of the judge - rapporteur , the appointment of CARDINAL of the judges to another post and the retirement of PERSON on DATE . It consequently decided to reopen the oral proceedings before ORG composed differently , at a hearing to be held on DATE .

ORG On DATE that assembly , refusing to follow the opinion of the auditeur , Mr PERSON , ruled that the objection based on the PERSON d’Etat ’s lack of jurisdiction ratione materiae was well - founded . It took the view , inter alia :

" that having regard to the relations between the LOC and the judiciary and the concern to preserve advocates’ independence , the legislature ’s intention [ had been ] that the decisions of ORG should fall outside the scope of review by the PERSON d’Etat . Accordingly , the decisions of ORG [ could not ] be set aside by the PERSON d’Etat . The right to have his case heard by an independent and impartial national tribunal which the petitioner [ inferred ] from Article CARDINAL para . CARDINAL ( article CARDINAL ) [ of LAW ] [ did not ] mean that the PERSON d’Etat [ had ] to rule on a matter which [ fell ] outside its jurisdiction ; "

It therefore dismissed the application .

ORG Each Bar has as the administrative organs for the profession of advocate ORG ( conseil de l’Ordre ) , the Chairman of ORG ( bâtonnier ) and ORG .

ORG is composed of the Chairman of ORG and CARDINAL other members , according to the number of advocates on the Bar roll and the list of the pupil advocates . ORG has CARDINAL members in addition to the Chairman .

The members are directly elected by ORG , to which all advocates on the roll are convened ( LAW ) . The election is held before the end of each judicial year .

ORG The ORG exercises numerous functions of an administrative , regulatory , adjudicative , advisory and disciplinary nature . For the purposes of the present case it is sufficient to mention that it is responsible for drawing up the roll of advocates and the list of pupil advocates .

ORG At the material time , LAW gave the Council unfettered discretion in this respect :

" Enrolment on the roll of advocates and on the list of pupil advocates shall be determined by ORG . No appeal shall lie from its decision as it has absolute authority over the composition of the roll and the list of pupil advocates . "

An Act of DATE amended that provision by requiring that any rejection of an application for enrolment had to state reasons . In addition , under the new LAW , an appeal from such a decision lies to ORG , without prejudice to the right to file an appeal on points of law with ORG at a later stage .

Another amendment concerned the public nature of the proceedings . LAW , second paragraph , of LAW now provides : " ORG , sitting in disciplinary proceedings or as in disciplinary proceedings , shall hear the case in public , unless the advocate against whom the proceedings have been brought or the person applying for enrolment or re - enrolment requests that the proceedings be private . "

ORG The enrolment of a lawyer on the list of pupil advocates or as a member of the Bar was and is governed by LAW :

" No one may bear the title of avocat or practise as an advocate unless he is a NORP national or a national of a Member ORG of ORG and possesses the degree of Doctor of Laws ; he must have taken the oath prescribed by law and be enrolled on the Bar roll or on the list of pupil advocates .

Save where the law provides otherwise , no further qualification may be added to the title avocat . "

ORG As regards the taking of the oath , which is a separate formality from admission to pupillage , LAW as follows :

" The oath shall be taken at a public sitting of ORG , candidates being presented by an advocate enrolled as a member of ORG that court for not DATE , in the presence of the Chairman of ORG of the seat of ORG and at the suit of ORG " .

The candidate shall swear the following oath :

‘ I hereby swear allegiance to the King , obedience to the LAW and to the laws of the NORP people , and not to deviate from the respect due to the courts and the public authorities , or to advise or defend any cause that I do not , to the best of my knowledge and belief , hold to be just.’

The registrar shall draw up a record of the whole proceedings and endorse each diploma to certify that the formalities have been completed . "

ORG To be enrolled on the list of pupil advocates a person holding a law degree , or Doctor of Laws , who has usually already taken the oath , lodges with the secretariat of ORG an application for enrolment and his diploma bearing the endorsement certifying that he has taken the oath . In principle an application for admission as a pupil advocate contains the information on the basis of which ORG can determine whether the candidate meets the required standards of integrity and decency .

ORG considers whether the candidate satisfies all the requirements as to good character and thus whether he is a fit person to bear the title of avocat . It also verifies that he does not fall within any of the statutory categories of incapacity and incompatibility set out in LAW , which is worded as follows :

" The profession of advocate shall be incompatible with :

CARDINAL the posts of full - time member of the judiciary ( magistrat effectif ) , registrar and civil servant ;

CARDINAL the functions of notary ( notaire ) and bailiff ( huissier de justice ) ;

CARDINAL industrial or commercial activity ;

CARDINAL remunerated employment and activity , whether in the public or private sector , unless it does not jeopardise the independence of the advocate or compromise the dignity of the Bar .

ORG has a very wide discretion in deciding whether to admit candidates to the Bar . That discretion must however be exercised within the limits laid down by the code .

Seeking to define those limits Mr Lemmens , the auditeur , in his report ( see paragraph CARDINAL above ) took as authority a judgment of ORG CARDINAL DATE concerning a decision taken by ORG . Under LAW of DATE setting up ORG , that ORG was vested with powers , as regards admission to the roll , similar to those of ORG . The relevant ground of the judgment in question is worded as follows :

" ... it may be inferred from paragraph CARDINAL [ of LAW of CARDINAL DATE ] laying down the procedure for appeals against decisions refusing applications for enrolment , in the light of the purpose of that text and its legislative history , that ORG , responsible for drawing up the roll of the ORG , can found their refusal of an application for enrolment only on a defect in the qualifications on which the application is based or on the current unfitness of the candidate or on his professional incompetence . " ( Pasicrisie , I , p. CARDINAL )


Preliminary objection dismissed (non-exhaustion);Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , the GPE .

On DATE the applicant was arrested on the strength of a provisional arrest warrant issued by a duty magistrate in connection with a request for his extradition made by GPE . The request was relayed to GPE through ORG . The charge related to the applicant 's involvement in international drug trafficking in cannabis . The information laid before the magistrate by the Attorney General referred , inter alia , to the DATE United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ( “ the LAW ” ) , to LAW concerning designated countries and Government Notice CARDINAL published in ORG of DATE which reproduced the text of the Convention to which GPE acceded on DATE . Attached to the request was a Red Notice issued by ORG bearing the applicant 's description and fingerprints as well as a certificate issued by the Prime Minister under subsection ( CARDINAL ) of section CARDINAL of the DATE LAW ) .

On DATE , pursuant to section CARDINAL ) of LAW , the applicant was brought before the Magistrates ' Court acting as a court of criminal inquiry in connection with extradition proceedings . A defence counsel was appointed for him . The presiding magistrate was different from the one who issued the provisional arrest warrant . The applicant did not challenge the lawfulness of his arrest and the proceedings were adjourned until DATE .

On DATE the applicant filed a judicial act with ORG alleging that the provisional arrest warrant was unlawful because , inter alia , there were no bilateral extradition arrangements between GPE and GPE and ORG had not been incorporated into domestic law .

On DATE the Prime Minister as the minister responsible for justice matters replied to the act . The Prime Minister rejected the applicant 's claim as frivolous and vexatious . He stressed that both GPE and GPE were parties to LAW even though the Convention had not been incorporated into domestic law . On the latter point , he noted that NORP law was already sufficiently equipped and adequate to implement GPE 's obligation under LAW .

At its next sitting on DATE , the applicant 's lawyer pleaded that ORG did not have jurisdiction to hear the case for extradition , that the provisional arrest warrant was therefore unlawful and that the applicant should be released . The prosecution disputed the applicant 's reasoning . The case was adjourned to CARDINAL DATE .

At the further hearing on CARDINAL DATE the applicant again pleaded that the NORP courts lacked jurisdiction to examine the extradition request as there was no extradition treaty in force between GPE and GPE and that LAW , although signed by GPE , had not been duly ratified in accordance with NORP law .

On DATE the ORG rejected the plea of lack of jurisdiction and declared that it had jurisdiction to hear the case . ORG took into account , in particular , the applicant 's argument according to which ORG had not been ratified as required by LAW . It observed , however , that the said LAW only provided for the ratification of certain treaties , indicated in section CARDINAL(CARDINAL ) . The applicant argued that LAW fell under LAW , which imposed the ratification of any treaty affecting or concerning the relationship of GPE with any multinational organisation , agency , association or similar body . ORG could not accept such an interpretation , on the ground that LAW was binding for the GPE which signed it , but not for ORG . Therefore , it could not give rise to a relationship between GPE and ORG . The Magistrates ' Court moreover observed that LAW authorised arrest with a view to extradition of any person accused of an offence in a “ designated foreign country ” . As GPE had been designated foreign country by LAW DATE , the applicant 's deprivation of liberty could not be regarded as unlawful .

On DATE the applicant appealed to ORG . In a judgment of CARDINAL DATE , ORG found that there was no right of appeal at that stage of the proceedings under NORP law and that an appeal was only possible when a person was subject to an order committing him to custody to await his removal . Furthermore , the applicant had filed his appeal out of time .

On DATE , while the extradition proceedings were still pending , the applicant filed an application with ORG in its constitutional jurisdiction . He alleged that his case gave rise to violations of LAW ) and CARDINAL of ORG . The applicant based his claim on the words “ lawful arrest or detention ” of a person in connection with extradition proceedings . His main argument was that GPE had not duly ratified any international treaty giving the ORG “ legal authority ” to arrest him with a view to his extradition to GPE . As to his plea concerning LAW , the applicant stated that there was no possibility to have the legality of the detention for extradition examined before the case was decided and an appeal lodged .

The First Hall of the Civil Court listed the case for hearing on DATE . However , the case had to be adjourned to CARDINAL DATE to enable the applicant 's lawyer to produce witness evidence .

In the meantime , ORG , under whose order the applicant was kept in detention , continued to hear the case , in anticipation of obtaining the relevant evidence to support the extradition request from GPE . The court had a DATE time - limit in which to conclude the hearings and render its decision . This period could be extended by further periods of up to a maximum of DATE by the President of the Republic .

On DATE the applicant was discharged on the grounds that there was no evidence to justify his extradition to GPE . The Attorney General did not appeal against the decision . The applicant was ordered by the police , acting as ORG , to return to the GPE within TIME .

NORP The applicant 's application to FAC was still pending when the applicant 's case was being heard by ORG . However , on DATE the applicant had to leave GPE , having been refused permission to stay in GPE pending the examination of his application to FAC . On DATE the applicant 's lawyer , who had been instructed by the applicant to file the constitutional case , requested that the Commissioner of Police , as ORG , be ordered to allow the applicant to return to GPE for the hearing of the case which was pending before FAC .

On DATE the First Hall of ORG ordered that a lawyer be appointed for the applicant . According to the applicant , under domestic law any voluntary assumption of this mandate by the lawyer who filed the application to ORG would imply that the person assuming it would be personally responsible to the Government of GPE for all costs and expenses incurred in the proceedings . The applicant had no relatives in GPE . Furthermore , the lawyer acting on his behalf could not assume the position of a “ party ” in the proceedings had he applied to act as his lawyer in addition to being his legal representative since this would have raised serious issues of professional ethics . The acceptance of a voluntary mandate would make the lawyer personally involved in the proceedings as if it were his own case .

In the event , the applicant never gave a power of attorney to a legal representative in GPE to enable his claim to be dealt with by FAC . Furthermore , the applicant was never granted permission to enter GPE and the domestic court never ordered that permission be granted .

On DATE the First Hall of ORG adjourned the case pending the applicant 's confirmation that he intended to issue a power of attorney to a legal representative for the purposes of the proceedings .

On DATE , in the absence of the parties at the resumed hearing , ORG adjourned the case sine die . The applicant still could not enter the country to continue the proceedings in the NORP courts regarding the lawfulness of his detention .

On DATE the applicant 's action was declared deserted and his case was struck off the list .

In so far as relevant , LAW reads as follows :

“ ( CARDINAL ) A person arrested in pursuance of a warrant under LAW shall ( unless previously discharged under subsection ( CARDINAL ) of that section ) be brought as soon as practicable and in any case not later than TIME from his arrest before ORG ( GPE ) as a court of criminal inquiry ( in this LAW referred to as the court of committal ) which shall have for the purposes of the proceedings under this section the same powers , as nearly as may be , including power to remand in custody or on bail , as the said court has when sitting as aforesaid . ( ... ) .

( CARDINAL ) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied , after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person , that the offence to which the authority relates is an extraditable offence and it is further satisfied

( a ) where the person is accused of the offence , that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of ORG of GPE ;

( b ) where the person is alleged to be unlawfully at large after conviction of the offence , that he has been so convicted and appears to be so at large ,

the court shall , unless his committal is prohibited by any other provision of this LAW , commit him to custody to await his return thereunder ; but if the court is not so satisfied or if the committal of that person is so prohibited , the court shall discharge him from custody .

Provided that notwithstanding any order discharging him from custody such person shall remain in custody until the expiration of DATE from any such order and , where an appeal has been entered by the Attorney General , until the appeal is disposed of or abandoned , or the Attorney General consents to the release of such person ” .

The Magistrates ' Court of GPE , acting as a court of criminal inquiry , gave on DATE the following decision in the case of The ORG v. PERSON :

“ Dr. PERSON [ the lawyer of the accused ] points out that the arrest is illegal since it does not conform with the necessary conditions laid out in Art . CARDINAL ) of ORG in view of the fact that even LAW lays down the circumstances in which a person can be brought under arrest before the ORG , but in the circumstances no one is entitled to once again formally arrest the person charged so as to initiate proceedings .

Having heard both parties as to whether the arrest is justified or not .

Having heard submissions by the parties regarding the case , in the circumstances the arrest is not justified and thus orders the release of the person charged ” .

Article CARDINAL of the Criminal Code provides for the remedy of habeas corpus . This provision reads as follows :

“ Any magistrate who , in a matter within his powers , fails or refuses to attend to a lawful complaint touching an unlawful detention , and any officer of ORG , who , on a similar complaint made to him , fails to prove that he reported the same to his superior authorities within TIME shall , on conviction , be liable to imprisonment for a term from DATE . ”

On DATE the police arrested PERSON for a breach of LAW . During his detention he became suspect of a serious offence concerning the public security of GPE . On DATE the applicant applied to the ORG requesting that he should be either charged or released . On DATE the ORG considered that it had the power under LAW ( currently section CARDINAL ) of LAW to attend to a lawful complaint touching on unlawful detention . It also found that the police had not brought Price before the Magistrates ' Court within TIME as required by CARDINAL ( currently section CARDINAL ) of LAW . As a result , the court ordered ORG 's release .

On DATE the First Hall of the Civil Court ordered PERSON to be detained for TIME for contempt of court . The detainee appealed under section QUANTITY of LAW . The Attorney General , with reference to ORG having invoked section CARDINAL of LAW , requested ORG to order ORG and the Commissioner of Police to bring ORG before the ORG and order either of them to set him free at once . According to the Attorney General , ORG 's appeal had suspensive effect on the execution of the judgment and , as a result , his continued detention was illegal . ORG acceded to the Attorney General 's request .

In a judgment given on DATE in the case of PERSON v. Attorney General , ORG decided as follows :

“ The applicant criticises the decision of the first Honourable Court on the use which could have been made of Article CARDINAL of LAW .

The applicant reasoned as follows : “ With all due respect this is an offence in itself , it is a punishment and not a remedy ” .

During oral submissions applicant 's counsel made reference to a similar comment made by ORG with regard to a case still pending before ORG [ application no CARDINAL/CARDINAL ] . ...

If CARDINAL delves more deeply into the practice of a country , one will note that history is different . CARDINAL three years ago , former Chief Justice PERSON was writing ... about the existence of Habeas Corpus in GPE and he traced its roots precisely on this . It is true that this remedy is not often used ... but from the fact that the remedy is not often made use of one can not infer that the remedy does not exist . In fact recently this remedy was resorted to in the cases of GPE ( arrest alleged to be illegal ) as well as in the ORG case ( contempt of court or the air conditioner case ) . ”