Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger

NORP In their capacity as a lawyer and a law firm , the applicants had been retained by ORG , a public limited company ( société anonyme ) , to assist and represent it during audit operations conducted into its affairs for DATE to DATE as a result of an audit notice of DATE .

On DATE , pursuant to the provisions of Article L. CARDINAL B of the Code of Tax Procedure , the tax authorities applied to the President of the NORP tribunal de grande instance to authorise a search and seizure operation to be carried out in the context of the audit of ORG , with a view to obtaining accounting , legal and corporate documents supporting certain declarations , on account of suspected fraudulent activities ( price mark - ups and uninvoiced or fictitious transactions ) .

By a warrant of the same date the President authorised the tax inspectors , assisted by senior police officers , to carry out the searches and seizures required in order to discover evidence of the alleged activities at certain sites where documents or data carriers connected with the suspected fraud might be found , in particular at the applicants’ place of business , since they had been retained to assist and represent ORG and were therefore assumed to be in possession of documents evidencing the suspected fraud on the part of their client .

The judge authorised CARDINAL search , setting DATE as the time limit for the search and DATE as the time - limit for the submission of a report on the operations .

On DATE , simultaneous searches were conducted at the locations indicated in the warrant issued by the President of the GPE tribunal de grande instance . The operations carried out at the applicants’ place of business by CARDINAL tax inspectors took place TIME and TIME , in the presence of the first applicant , the chairman of ORG and a senior police officer . On that occasion , the first applicant was given a copy of the warrant of DATE .

A record of the search and seizure operations and an inventory were drawn up and signed by those present . CARDINAL documents were seized . They included handwritten notes and a document with a comment in the first applicant ’s handwriting , in respect of which the chairman of ORG expressly pointed out that these were the lawyer ’s personal documents and were accordingly protected by the rule of absolute professional secrecy and could not be seized . The first applicant protested at the way in which the search had been carried out and made a number of observations which were logged in the record . He was given a copy of the record and the documents seized .

The applicants appealed on points of law within the statutory time - limit of DATE . In their pleadings in support of the appeal , they raised CARDINAL grounds alleging that the searches and seizures had been unlawful . They stated in particular , relying on professional secrecy and the rights of the defence , that documents sent by a client to that client ’s lawyer and correspondence between them could not be seized where the search was not aimed at establishing proof that the lawyer in question had been involved in the offence . They also complained that the search warrant issued by the President of the tribunal de grande instance had failed to mention specifically that the presence of the chairman of ORG or his or her representative was compulsory during the operations .

In a judgment of DATE ORG dismissed the applicants’ appeal . As to the failure to refer specifically to the presence of the chairman of ORG , the court stated that the search warrant did not have to determine the measures required for professional secrecy to be observed , any breaches thereof being examined in the context of the review of the lawfulness of the operations and not the review of the lawfulness of the warrant . As regards the seizure of the documents at issue , ORG considered that the professional secrecy of lawyers did not constitute an obstacle to searches of their LOC and seizure of any documents in their possession being authorised , in so far as the judge had found that the information provided by the applicant authority contained sufficient evidence for the suspicion mentioned in the warrant .

NORP The relevant provisions of LAW , as applicable at the material time , read as follows :

“ I. If the judicial authority , on an application by the tax authority , considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices , by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly making inaccurate or false entries or causing inaccurate or false entries to be made in the accounting records that are required to be kept by LAW , it may , in accordance with the conditions set out in LAW , authorise tax officials of at least inspector rank and holding authority from ORG to that end to seek proof of such acts by carrying out searches of all LOC , including private LOC , where evidence and documents relating thereto may be kept and to seize such evidence and documents .

II . All searches must be authorised by an order of the liberties and detention judge of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located .

The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well - founded . The application must contain all the information in the possession of the authority that may serve to justify a search .

The order shall include :

( i ) where appropriate , a statement that the president of the tribunal de grande instance has delegated the requisite power ;

( ii ) the address of the premises to be searched ;

( iii ) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search .

The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought .

If during the course of the search the accredited officials discover the existence of a safe - deposit box in a financial institution in the name of the person occupying the LOC searched in which items of evidence and documents relating to the acts referred to in I are likely to be found , they may , with the permission DATE which may be given in any form – of the judge who made the order , immediately search the safe - deposit box . A reference to such permission shall be entered in the record referred to in GPE .

The search and seizure of documents shall be carried out under the authority and supervision of the judge who authorised them . To that end , he or she shall give all instructions to the officials engaged in the operations .

He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress .

The judge may , if he or she considers it appropriate , attend the LOC while the operations are under way .

He or she may at any time decide to suspend or halt the search .

The occupier of the LOC or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it , for which he or she shall either sign a receipt or initial the record referred to in LOC . In the absence of the occupier of the LOC or his or her representative , the order shall be served by registered letter with recorded delivery after the search has been performed . Service shall be deemed to have been effected at the date of receipt entered on the delivery form .

If delivery of the order is not taken , it shall be served personally in accordance with the provisions of Articles CARDINAL et seq . of LAW .

The time - limit and procedure for appealing shall be set out in the documents accompanying postal or personal service .

The only remedy against the order referred to in the first sub - paragraph shall be an appeal on points of law in accordance with the rules set out in LAW . Such appeals shall have no suspensive effect . For the purposes of an appeal on points of law , time shall start to run from the date of postal or personal service of the order .

III . Searches , which may not be started before TIME or after TIME , shall be conducted in the presence of the occupier of the LOC or of his or her representative . If that is not possible , the senior police officer shall appoint CARDINAL witnesses who shall not be from his or her department or the tax authority .

The tax - authority officials referred to in I may be assisted by other tax - authority officials who have been accredited in the same conditions as the inspectors .

The accredited tax officials , the occupier of the LOC or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure .

The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third paragraph of LAW . LAW shall be applicable .

IV . A record stating how the operation was organised and how it proceeded and logging any findings shall be compiled forthwith by the tax - authority officials . An inventory of the evidence and documents seized shall be appended to it , where necessary . The record and the inventory shall be signed by the tax - authority officials , a senior police officer and the persons mentioned in the first sub - paragraph of III . Any refusal to sign them shall be noted in the record .

Should it prove impractical to take an inventory on site , the evidence and documents seized shall be placed under seal . The occupier of the LOC or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer . The inventory shall be taken at that time .

PERSON The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled . A copy of those documents shall be provided to the occupier of the LOC or his or her representative .

The evidence and documents seized shall be returned to the occupier of the LOC within DATE of the search ; however , when criminal proceedings are brought , their return must be authorised by the competent court .

VI . The tax authorities may not use any information obtained against the taxpayer until the seized items and documents have been returned or reproduced and until the review measures referred to in the first and second sub - paragraphs of Article L. DATE have been implemented . ”

“ However , [ the senior police officer ] must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected . ”

“ A search of a lawyer ’s chambers or home may only be made by a judge and in the presence of the chairman of ORG or a person delegated by him or her . Only the judge and the chairman of ORG or the person delegated by him or her are entitled to inspect documents discovered during a search with a view to their possible seizure .

The chairman of ORG or the person delegated by him or her may object to the seizure of a document which the judge intends to carry out if he or she considers that it would be unlawful . The document must then be placed under official seal . These steps shall be noted in an official record indicating the objections of the chairman of ORG or the person delegated by him or her , which shall not be added to the case file . Where other documents have been seized during the search without any objection , the official record shall be separate from that required by LAW . The official record and the document placed under official seal shall be transmitted to the liberties and detention judge , along with the original or a copy of the case file .

Within DATE of receipt of the documents , the liberties and detention judge shall give a reasoned ruling on the objection , which shall not be open to appeal .

To this end , he or she shall interview the judge who carried out the search and , where necessary , the public prosecutor and also the lawyer whose chambers or home has been searched and the chairman of ORG or the person delegated by him or her . He or she may open the seal in the presence of these persons .

Where he or she considers that it is not necessary to seize the document , the liberties and detention judge shall order its immediate return and the destruction of the official record of the operations and , where necessary , the deletion of any reference to that document or its contents in the official case file .

Otherwise , he or she shall order the inclusion of the document and the official record in the case file . His or her decision shall not prevent the parties from subsequently applying to , the trial court or the investigation division , as appropriate , for the seizure to be declared null and void . ”

Section CARDINAL of Law no . CARDINAL of DATE ( amended by PERSON no . CARDINAL of DATE ) provides :

“ In all matters , whether with regard to advice or defence , written opinions sent by a lawyer to his or her client or intended for the latter , correspondence between a client and a lawyer , between a lawyer and other lawyers , with the exception , in the latter case , of correspondence marked ‘ official’ , meeting notes and , more generally , all documents in a case file shall be covered by professional secrecy . ”

ORG has held that the seizure of correspondence between a person under investigation and that person ’s lawyer may only be ordered and pursued if the documents seized are capable of establishing proof of the lawyer ’s participation in an offence ( see in particular Court of Cassation ( Criminal Division ) , DATE , Bulletin criminel no . CARDINAL ; DATE , Bulletin criminel no . CARDINAL ; ORG ) , CARDINAL DATE , ORG , no . CARDINAL ; ORG ) , DATE , Bulletin criminel no . CARDINAL ; DATE , Bulletin criminel no . CARDINAL ) . Observance of the principle of the confidentiality of exchanges between a lawyer and his or her client is not limited to seizures , but extends to other measures that might affect it ( for example , a measure such as the tapping of a lawyer ’s private and/or personal telephone line must be preceded by a specific finding that credible evidence exists of the lawyer ’s participation in an offence : Court of Cassation ( Criminal Division ) , DATE , Bulletin criminel no . CARDINAL ; DATE , Bulletin criminel no . CARDINAL ; ORG ) , DATE , appeal no . CARDINAL ) .

“ CARDINAL . Community law , which derives from not only the economic but also the legal interpenetration of GPE , must take into account the principles and concepts common to the laws of those GPE concerning the observance of confidentiality , in particular , as regards certain communications between lawyer and client . That confidentiality serves the requirements , the importance of which is recognised in all of GPE , that any person must be able , without constraint , to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it .

As far as the protection of written communications between lawyer and client is concerned , it is apparent from the legal systems of the Member GPE that , although the principle of such protection is generally recognised , its scope and the criteria for applying it vary ...

Apart from these differences , however , there are to be found in the national laws of the Member GPE common criteria inasmuch as those laws protect , in similar circumstances , the confidentiality of written communications between lawyer and client provided that , on the one hand , such communications are made for the purpose and in the interests of the client ’s rights of defence and , on the other hand , they emanate from independent lawyers , that is to say , lawyers who are not bound to the client by a relationship of employment ...

As far as the first of those CARDINAL conditions is concerned , in Regulation ... care is taken to ensure that the rights of the defence may be exercised to the full , and the protection of the confidentiality of written communications between lawyer and client is an essential corollary to those rights .

As regards the second condition , it should be stated that the requirement as to the position and status as an independent lawyer , which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate , is based on a conception of the lawyer ’s role as collaborating in the administration of justice by the courts and as being required to provide , in full independence , and in the over - riding interests of that cause , such legal assistance as the client needs . The counterpart of that protection lies in the rules of professional ethics and discipline ... Such a conception reflects the legal traditions common to GPE and is also to be found in legal order of the Community ... ”

In this case the ORG recognised the specific nature of the profession of lawyer . In his submissions presented on DATE , ORG PERSON considered , in particular , as follows :

“ CARDINAL . Professional secrecy forms the basis of the relationship of trust between lawyer and client . It requires the lawyer not to divulge any information imparted by the client and extends ratione temporis to the period after the lawyer has ceased to act for the client and ratione personae to third parties . Professional secrecy also constitutes an ‘ essential guarantee of the freedom of the individual and of the proper working of justice’ , so that in most Member GPE it is a matter of public policy . ”

Directive CARDINAL/CARDINAL/EEC states that lawyers are obliged to inform the competent authorities of any fact which could be an indication of money laundering . The particular protection to be afforded to lawyers and the possible exceptions thereto are the subject of debate in the context of a dispute before the ORG , in relation to Directive CARDINAL/CARDINAL/EEC and the obligation on lawyers to inform and co - operate with the authorities responsible for the fight against money laundering .

In its judgment of CARDINAL DATE ( ORG barreaux francophones et germanophones , ORG français des avocats du barreau GPE , ORG barreaux flamands , Ordre néerlandais des avocats du barreau GPE against ORG , Case C-CARDINAL/CARDINAL ) , the ECJ ruled that the obligations of information and cooperation with the authorities responsible for combating money laundering did not infringe LAW following reasons :

– these obligations “ apply to lawyers only insofar as they advise their client in the preparation or execution of certain transactions , essentially those of a financial nature or concerning real estate ” , that is , in a context with no link to judicial proceedings ;

DATE furthermore , again in the context of these transactions , as soon as the lawyer is called upon for assistance in defending the client or in representing him before the courts , or for advice as to the manner of instituting or avoiding proceedings , that lawyer is exempt from the obligations of information and cooperation ( regardless of when the information was received ) .

The relevant provisions of Recommendation No . R ( DATE ) CARDINAL read as follows :

“ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen LAW , in which lawyers take part , in particular in the role of defending individual freedoms ;

Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction , influence , inducement , pressure , threats or interference , direct or indirect , from CARDINAL of for any reason ;

Principle I – General principles on the freedom of exercise of the profession of lawyer

All necessary measures should be taken to respect , protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public , in particular in the light of the relevant provisions of LAW . ...

All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer - client relationship . Exceptions to this principle should be allowed only if compatible with LAW . ”

The relevant provisions of the “ Basic Principles on ORG ( adopted by ORG on ORG and the Treatment of Offenders , held in GPE from DATE to CARDINAL DATE ) state :

“ CARDINAL . Governments shall ensure that lawyers ( a ) are able to perform all of their professional functions without intimidation , hindrance , harassment or improper interference ; ( b ) are able to travel and to consult with their clients freely both within their own country and abroad ; and ( c ) shall not suffer , or be threatened with , prosecution or administrative , economic or other sanctions for any action taken in accordance with recognized professional duties , standards and ethics .

Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential . ”


Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

The General Directorate of National Water Board , a state body responsible for dam construction , expropriated plots of land belonging to the applicants in PERSON , ORG in order to build LOC . Expropriation took place in DATE . A committee of experts assessed the value of the plots of land belonging to the applicants and this amount was paid to them when the expropriation took place .

Following the applicants ' requests for increased compensation , ORG Instance awarded them CARDINAL PERSON ( GPE ) of additional compensation plus interest at the statutory rate of PERCENT per annum , namely the rate applicable at the date of the court 's decision . The domestic court had fixed CARDINAL DATE as the date from which the statutory rate of interest run . On DATE , on the ORG 's appeal , ORG upheld the first instance court 's decision . On DATE the administration paid CARDINAL NORP Liras ( GPE ) as the additional compensation awarded to the applicants together with the interest .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .


Violation of Art. 6-1 (as regards first complaint);Violation of Art. 6-1 (as regards second complaint);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national born in DATE , is currently in prison in GPE .

On DATE ORG committed the applicant , together with his son and daughter , who had been minors at the material time , for trial at ORG for aiding and abetting armed robbery , for aggravated theft and for handling stolen goods .

On DATE ORG sentenced him to CARDINAL years’ imprisonment for aiding and abetting armed robbery and for aggravated handling and ordered that he should not be eligible for any form of release for DATE .

On DATE the applicant lodged an appeal on points of law against his conviction .

On DATE Mr Aït - Mouhoub lodged a criminal complaint , together with a civil - party application , against CARDINAL gendarmes ( Mr Maurin and PERSON ) who had taken part in the judicial investigation that had led to the applicant ’s being found guilty and sentenced by ORG .

In it the applicant accused Mr DATE of subornation of perjury , forgery of documents and uttering , malfeasance , abuse of office , extortion and aiding and abetting theft , and PERSON of forgery of documents and uttering .

The complaint in question read as follows :

“ I am lodging with you a complaint , together with a civil - party application , against ORG Staff PERSON , head of the NORP investigation section , in respect of the following judicial offences and exactions : subornation of perjury , forgery and uttering , bringing proceedings to challenge officially recorded documents as forgeries , forgery of documents and uttering , aiding and abetting theft , malfeasance , abuse of office and extortion .

I am lodging a complaint , together with a civil - party application , against ORG in respect of the following judicial offences and exactions : forgery of documents and uttering , forgery of a report , bogus interview , imitating the signature of a witness .

Naturally I hold all the evidence and testimony to support each of my accusations .

I am sending a copy of these complaints to ORG . ”

NORP The applicant applied for legal aid to pursue this complaint .

On DATE ORG at the NORP tribunal de grande instance refused the application on the ground that although the applicant ’s means had been assessed at nil , the application was inadmissible because the applicant ’s appeal on points of law against ORG judgment of DATE was still pending .

On DATE Mr PERSON appealed to ORG against that decision . He confirmed his appeal in a letter of DATE .

In an order of CARDINAL DATE the senior investigating judge of the tribunal de grande instance , noting that the applicant had not obtained legal aid , directed that he should pay into court MONEY ( ORG ) as security for costs in respect of the complaint against the CARDINAL gendarmes . He set DATE as the time - limit for paying the security , failing which the complaint would be inadmissible .

The applicant did not challenge the amount by appealing to ORG against the order .

On DATE Mr Aït - Mouhoub wrote to the senior investigating judge to inform him that he had appealed against the decision not to grant him legal aid .

On DATE ORG dismissed the applicant ’s appeal on points of law against ORG judgment of DATE .

On DATE the applicant , having heard nothing from ORG , renewed his application for legal aid . He pointed out that the ground of inadmissibility relied on in the refusal of DATE had ceased to be valid as ORG had given judgment in the meantime .

In an order of DATE the senior investigating judge ruled that the applicant ’s complaint was inadmissible on the following grounds :

“ By Articles CARDINAL and R. CARDINAL of LAW , a party who has not obtained legal aid is required to pay into court a sum to cover the costs of the proceedings where he has not joined existing proceedings brought by the public prosecutor , failing which his criminal complaint will be inadmissible .

As the civil party has not paid within the time allowed the sum specified in the aforementioned order and the public prosecutor does not consider it necessary to institute criminal proceedings ,

I declare Mr PERSON application to become a civil party to criminal proceedings inadmissible . ”

The applicant did not appeal against that order .

On DATE ORG dismissed PERSON appeal against the refusal of DATE .

On DATE the applicant lodged a second criminal complaint and civil - party application against CARDINAL other persons ( Mr PERSON , a prosecution witness at his trial , and PERSON , the brother - in - law of a gendarme ) . The complaint read as follows :

“ I am lodging a complaint , together with a civil - party application , against the following individuals :

PERSON of ORG , ORG , in respect of incitement of a minor to immorality , selling military weapons and munitions to a minor , impeding apprehension or prosecution , perjury , and failure to obey a summons to appear as a witness at ORG . The presiding judge of ORG publicly issued a warrant for him to be brought before the court . This person boasts that it was ‘ ORG , that he had immediately been told by a senior gendarme to be absent , that he was no longer at the address indicated , whereas he had never left home . I lodged a complaint DATE , on which no action has been taken , thanks to a judicial intervention of which he likewise boasts .

I have at your disposal all the evidence in support of my accusations , which I will summarise for you in a pleading as soon as the judicial investigation has been opened .

PERSON , living at FAC .

Theft , blackmail , threatening behaviour .

This individual , who claims to be the brother - in - law of a gendarmerie sergeant against whom I have also lodged a criminal complaint in respect of malfeasance , forgery and uttering , on the basis of irrefutable evidence , paid a visit to my home , with a gendarme , at the time of my arrest and took away all the furniture from my bar and restaurant . Subsequently , he took away all the furniture belonging to my under - age daughter . Despite my complaints , I was warned to watch my step if I did n’t want to blow up … and my under - age daughter , who had recently tried to complain to this individual , was told :

‘ You ’d better not make any claims at all … your mother owes me much more , thanks to me and my brother - in - law , she did n’t go to prison , we managed to get her off the hook … so you be careful little girl … you might get done PERSON

Naturally I hold all the evidence and testimony to support my accusations .

I am sending a copy of this complaint to ORG in order to apply for legal aid , since I am ruined . ”

The applicant applied for legal aid to pursue this complaint also , but ORG took no decision on the application .

NORP In an order of CARDINAL DATE the senior investigating judge , noting that the applicant had not obtained legal aid , set the security payable in respect of the complaint against Mr PERSON and Mr PERSON likewise at FRF CARDINAL , on the ground that “ the evidence and … the existence of another complaint justify applying Articles CARDINAL - CARDINAL and CARDINAL of LAW [ see paragraph CARDINAL below ] ” . He set CARDINAL DATE as the time - limit for paying the security , failing which the complaint would be inadmissible .

On DATE Mr Aït - Mouhoub wrote to the senior investigating judge to inform him that he had not yet had any reply concerning legal aid .

On DATE the applicant , having still heard nothing from ORG , renewed his application .

In an order of CARDINAL DATE the senior investigating judge ruled that the applicant ’s complaint was inadmissible on the following grounds :

Section CARDINAL of the Law of DATE on legal aid provides :

“ Natural persons whose means are insufficient to enable them to assert their rights in the courts may be granted legal aid . They may be aided in whole or in part .

Section CARDINAL of the same PERSON imposes a further condition on persons who are not civilly liable and have not been either charged with or convicted of a criminal offence and are not defendants in criminal proceedings or assisted witnesses : the action must not appear to be “ manifestly inadmissible or unfounded ” ( see also section CARDINAL of the PERSON ) .

Applications for legal aid are examined by boards called legal - aid offices , which consist of lawyers , representatives of the ORG and users ( sections CARDINAL et seq . of the same PERSON ) . These offices are attached to courts and determine applications relating to cases brought before those same courts .

Legal - aid offices may order any useful information to be provided , in particular on the financial position of persons making applications , and may also have any persons interviewed ( section CARDINAL of the aforementioned PERSON and Article CARDINAL of the implementing decree of DATE ) .

In NORP law the victim of an offence may join criminal proceedings as a civil party either by applying to the investigating judge , ORG or the trial court , if proceedings are already under way , or by bringing proceedings by directly summoning the accused before the trial court or lodging a complaint and civil - party application with the investigating judge , if the public prosecutor has not instituted criminal proceedings .

The relevant provisions of LAW ( “ ORG ” ) are worded as follows :

“ Anyone who has personally suffered from damage directly caused by a criminal offence may bring civil - party proceedings to seek compensation for such damage .

Discontinuance of such proceedings can neither terminate nor stay the criminal proceedings , without prejudice to the cases provided for in paragraph CARDINAL of Article CARDINAL [ ORG ] . ”

“ A judicial investigation shall be mandatory in cases of serious crime ( crime ) … ”

“ Anyone who claims to have suffered damage as a result of a serious crime ( crime ) or other serious offence ( délit ) may , by lodging a criminal complaint , join the criminal proceedings as a civil party on application to the appropriate investigating judge . ”

“ The investigating judge shall record in an order the lodging of the complaint . According to the civil party ’s means , he shall determine the amount of security for costs which that party must , if he has not obtained legal aid , deposit at the registry and the time - limit for doing so if the complaint is not to be declared inadmissible . He may exempt the civil party from paying security . ”

“ The security set pursuant to LAW shall guarantee payment of the civil fine which may be imposed pursuant to the first paragraph of LAW .

The sum paid into court shall be returned where the proceedings based on that provision are time - barred or have resulted in a decision that has become final to the effect that the civil - party application was neither an abuse of process nor intended purely to gain time . ”

“ Where , after a judicial investigation begun on a criminal complaint and civil - party application , a decision has been taken that there is no case to answer , the public prosecutor may summon the civil party before ORG in which the case was investigated . If the complaint and civil - party application are held to have been an abuse of process or to have been intended purely to gain time , the court may impose a civil fine , the amount of which shall not exceed FRF CARDINAL … ”


The first applicant , PERSON , was born in DATE and lives in GPE . The second applicant , PERSON , was born in DATE and lives in GPE . Both are NORP nationals . The third applicant , Editions PERSON , is a limited company formed under NORP law that has its registered office in GPE .

The first applicant , who is a journalist and writer , is the author of a book entitled PERSON , Lyon DATE which was published in DATE by PERSON ( the third applicant ) , a company chaired by the second applicant .

In his book , the first applicant reconstructed the chronology of events involving the Resistance movements in PERSON in DATE and took stock of the various archive materials that were available on that period . CARDINAL of the principal mysteries surrounding this period is the PERSON meeting , an event of particular significance to the history of the French Resistance and a major episode of the Second World War . On DATE PERSON , the regional head of the NORP , arrested the main Resistance leaders at a meeting in GPE in the PERSON suburbs . Among those arrested were PERSON , General PERSON representative in GPE and the leader of the internal Resistance , and PERSON , a member of the Resistance movement who managed to escape in DATE . The truth about how the Resistance leaders came to be arrested in PERSON has still not been established . A member of the Resistance , PERSON , who is now dead , was accused of being the “ traitor ” and put on trial . However , he was not convicted after CARDINAL separate trials . A majority of the court voted in favour of a conviction in CARDINAL of the trials , but the rules of criminal procedure in force at the time required a majority of CARDINAL votes for a guilty verdict to be returned .

The first applicant recounted this major event “ using the Aubracs as a prism ” . He claimed that his book put to the test “ the official truth as related at length in the media , notably by the Aubracs , and in a film that sings their praises ” .

The book sparked off a fierce public debate in GPE and the newspaper ORG organised a round - table conference at which historians were invited to discuss the issue in the presence of PERSON and PERSON .

An unabridged version of the written submissions DATE known as the “ PERSON testament ” – which were signed by PERSON and lodged by Mr PERSON , his lawyer , on DATE with the judge investigating PERSON ’s treatment of members of ORG was appended to the book . Many of the questions raised by the first applicant were based on a comparison of that document with the “ official ” version of history . In the conclusion to his book , he said that there was no evidence in the archives to substantiate the accusation of treachery made by PERSON against PERSON , but that their examination had shown that “ unreliable accounts [ had ] been given at times ” . He followed this up with CARDINAL pages of questions that cast doubt on PERSON innocence .

On DATE Mr and PERSON brought a private prosecution by direct summons in the DATE ORG the GPE tribunal de grande instance . The summons contained CARDINAL extracts from the book ( CARDINAL from PERSON ’s written submissions and CARDINAL from the first applicant ’s own text ) . The CARDINAL applicants were summoned in their capacities as author , accomplice and a party liable for defamation under the civil law . PERSON and PERSON relied on DATE of ORG of DATE and ORG judgment of DATE in PERSON . The relevant parts of the summons read as follows :

“ When ... PERSON was brought to GPE in DATE he chose to defend himself by seeking to discredit those of his victims who had survived and were still able to make accusations against him by accusing them of treachery . He suggested that PERSON and PERSON might be among their number . However , when PERSON attended PERSON ’s trial after being called as a witness by him , neither PERSON , nor his counsel PERSON , asked him the slightest question , made the least remark or produced any document capable of supporting this vile accusation which remained extremely vague .

At the same time , by a judgment of DATE followed by a judgment of CARDINAL DATE which has become final , PERSON secured Mr PERSON ’s conviction for defamation after Mr PERSON had chosen to relay and even to back up his client ’s insinuations in a film by Mr PERSON . ...

The [ first applicant ’s ] book was published in DATE with the title ‘ PERSON , GPE CARDINAL’ . A banner wrapped around the cover proclaimed : ‘ A legend put to the test of history.’

There can not , therefore , be any doubt that this book is aimed almost exclusively at the Aubracs and purports to use rigorous historical method to destroy their so - called ‘ legend’ as members of the Resistance . ”

Mr and PERSON then set out those of the ORG allegations which they considered defamatory and their reasons for so considering them :

“ A. The circumstances of PERSON arrest in DATE

The first falsehood of which the Aubracs are accused is that PERSON was arrested on DATE and not on DATE ; this enables PERSON to assert on the basis of this ‘ established fact’ that the only way PERSON , who had been arrested on DATE , was able to attend the meeting on DATE in FAC in GPE was under the control of the NORP police . ...

B. The allegations relating to PERSON release in DATE

An order for PERSON release was made on DATE . However , in an autobiographical account published in DATE , his wife puts the date of his release at CARDINAL May while PERSON himself hesitates DATE in a deposition made on DATE in connection with the second PERSON trial .

... For [ the first applicant ] , there can be but one explanation for this discrepancy between the dates : PERSON spent DATE collaborating with the divine PERSON who compelled the NORP judicial authorities to release him . This was confirmed by PERSON assertion that she had warned the public prosecutor not to oppose release , while [ the first applicant ] feigns surprise at the lack of concrete evidence of the application . ...

C. Escape from ORG

... this entire chapter returns to the alleged statement by PERSON that she secured her husband PERSON ’s inclusion not only among the CARDINAL members of the Resistance who were arrested on DATE , but also among those who were freed on CARDINAL May , with the sole aim of challenging the account of those who took part in that escape and branding them liars . ...

... [ The first applicant ’s ] inability to rank the documents he cites in order of importance is a cause for consternation here . He considers it a near certainty that PERSON ’s wife ‘ hid’ her husband following his release by PERSON , but chooses to ignore the fact that [ the circumstances of ] his release [ were ] immediately examined by PERSON , head of the ‘ Combat’ movement and subsequently , as was to be expected , subjected to close scrutiny at General PERSON headquarters in GPE , and , in particular , the remark made by Frenay – despite its inclusion in the record of his interview in GPE on DATE that ‘ there is no doubt that PERSON is a fellow who is beyond all suspicion’ . ...

D. The defamatory allegations about PERSON

Although the debate still rages over the extent to which PERSON was a willing collaborator and the unnecessary risks taken by the leaders of the ‘ Combat’ movement in sending PERSON to PERSON to defend the prerogatives of their leader , prior to PERSON in DATE no one had ever suggested that PERSON and PERSON had played the slightest role in PERSON arrest on DATE , or his identification by PERSON on DATE after DATE of torture , it again being stressed that PERSON did not know PERSON .

... [ The first applicant ] had no hesitation in asserting ( page CARDINAL ) :

‘ It is certain that PERSON appears no longer to recollect the meeting with PERSON and PERSON at Lonjaret ’s home on DATE , although in DATE he fully admitted that such a meeting had taken ORG

In so doing , [ the first applicant ] lends credence to the notion that on DATE PERSON knew all about the proposed meeting in GPE ...

PERSON The deliberate confusion between PERSON and PERSON

In CARDINAL transitional chapters ( Chapters ORG and ORG ) , [ the first applicant ] , without citing a single piece of documentary evidence , seeks to cause deliberate confusion by recounting the misfortunes of PERSON ( who , once again , no one doubts helped the NORP although it is not known to what extent he did so voluntarily ) and PERSON and PERSON , whom no one has ever accused of such collaboration , for good reason . ...

... [ The first applicant ’s ] aim is still the same : to lead people to believe that PERSON is lying and that what he clearly stated at the material time no longer matters , as he does not repeat it in identical terms DATE on . ...

F. The offences of defamation are made out

Both the publication of the ‘ PERSON testament’ and the comments of [ the first applicant ] in support of that document render [ the applicants ] liable for defamatory statements in the form of precise allegations , although sometimes in the form of innuendo , against CARDINAL specific persons , PERSON and PERSON , whose honour and reputation have been considerably tarnished by the said allegations .

The most harmful allegations in a book whose entire content is defamatory are as follows :

A. Allegations against PERSON

PERSON was the NORP officer whom the NORP used to infiltrate the leaders of ORG upon its formation .

PERSON was a member of the Resistance whom PERSON turned into CARDINAL of his department ’s agents on his arrest in DATE .

PERSON lied about the date of his first arrest : it took place on CARDINAL , not DATE .

PERSON , who was controlled by the NORP police , was not in fact arrested on DATE , when the NORP police went to one of his homes .

PERSON was responsible for the ‘ mousetraps’ that were set for members of the Resistance movement in PERSON DATE .

PERSON was not released on DATE pursuant to a freely made decision of the investigating judge ... , but because the NORP authorities had compelled the NORP judicial authorities to release him .

PERSON lied about the date of his release following his first arrest in order to hide the fact that for DATE , CARDINAL and DATE , he had remained at the disposal of PERSON , the head of the NORP .

After being informed on DATE of the time and venue of the meeting due to take place in GPE of various Resistance leaders including PERSON , PERSON had informed his wife , who was thus able to inform the head of the Gestapo .

PERSON was released voluntarily by the NORP on DATE , when NORP agents took part in an operation to free one of their agents , PERSON , and PERSON , who had been informed of the operation , seized the opportunity to allow his agent PERSON to escape .

In general , PERSON conduct with regard to the NORP authorities in ORG in DATE was similar to that of PERSON , whom the NORP were using at that time .

B. Allegations against PERSON

PERSON had concealed the fact that her husband was released on DATE , not as a result of action she had taken , but by virtue of an order of the investigating judge ... acting on the instructions of PERSON , the head of the NORP .

It was not PERSON who had arranged the operation that had enabled CARDINAL members of the Resistance , who had been arrested at the same time as PERSON , to escape from ORG on DATE .

After being informed by her husband of the time and place of the meeting at Dr PERSON ’s home in PERSON on DATE , PERSON had communicated the information to PERSON , the regional head of the NORP , on DATE , DATE .

PERSON , whose controlling officer was GPE , PERSON ’s deputy , had agreed to act as liaison officer between her husband and ... PERSON to avoid ‘ giving her husband NORP .

PERSON could only have gained access to the LOC used by the Gestapo if she was a Gestapo agent .

It was with the full agreement of the NORP , and more specifically PERSON , that PERSON was able to arrange her husband ’s ‘ ORG in an operation that was organised not by her , but by ORG , on DATE .

Each of these defamatory statements ... must give rise to liability under LAW of DATE .

These defamatory statements , which accuse [ the ORG ] of treachery and of concealing treachery , constitute a direct attack on their status as founding members and organisers of ORG network and , in PERSON case , as the military commander of ORG .

This reference to LAW DATE is inescapable since , as ORG reiterated in a judgment of CARDINAL DATE ( in PERSON ) : ‘ ... By virtue of a combination of sections CARDINAL and CARDINAL of ORG and LAW of LAW of DATE , the protection against defamation afforded to certain recognised Resistance movements which are likened to the ORG and ORG extends to the members of these movements if the defamatory statement concerns their status or actions as members.’ ”

In a judgment of DATE , the tribunal de grande instance began by examining the various alleged defamatory statements in the chronological order of the underlying events and by comparing PERSON signed written submissions with the first applicant ’s text , as it considered that the very purpose of the first applicant ’s book was to

“ compare the allegations of these ‘ written PERSON with the account of events given by PERSON and PERSON on various occasions and the other oral and documentary evidence relating to that period . ... The entire book thereafter focuses on this ( major ) charge of treachery ” .

The tribunal de grande instance thus examined the circumstances of PERSON initial arrest in DATE , his release in DATE , the escape from ORG , the PERSON episode , events post - PERSON and the escape from boulevard des Hirondelles , and concluded :

“ Thus ... , without formally corroborating the direct accusations made in ‘ PERSON ’s written PERSON , the [ first applicant ] sets about sowing confusion by combining a series of facts , witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties ; he also questions the motives for their deception and lies , and DATE despite the reservations expressed by the author DATE surreptitiously renders plausible the accusation of treachery and manipulation made in ‘ PERSON ’s written PERSON that constitutes the underlying theme of the entire book . ...

The civil parties are therefore right to consider that the entire book , and particularly the passages [ reproduced in the judgment ] , tarnish their honour and reputation .

The publication of the written submissions signed by PERSON and the quotation in various parts of the text of extracts from them constitutes defamation by reproduction of libellous accusations or allegations , an offence expressly provided for by section DATE , first paragraph , of the Freedom of the Press Act .

As for the author ’s comments , they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over PERSON and PERSON conduct in DATE that outweigh the certainties that have been hitherto accepted ; they thus lend credence to PERSON ’s accusations . ”

The tribunal de grande instance then considered which section of the Freedom of the Press Act was applicable in the case and , referring to LAW of DATE and ORG case - law , stated that the likening of recognised Resistance movements to the ORG and ORG also applied to members of those movements . It noted that for ORG purposes “ law ” included both legislation passed by ORG and judicial interpretation of that legislation , provided it was sufficiently settled and accessible . It accordingly found that LAW DATE was applicable .

It went on to explain that the defamatory statements were deemed to have been made in bad faith and that the burden of proof was on the accused to provide sufficient justification to establish that they had acted in good faith . They had to show that there had been a legitimate interest in publication unaccompanied by personal animosity , that a proper investigation had been carried out and that the tone was measured :

“ While the work of historians , who must be permitted to go about their work with total liberty if the historical truth is to be established , may on occasion lead them to make critical assessments containing defamatory accusations against the actors – both living and dead – of the events they are studying , it can only be justified if the historian proves that he has complied with his scientific obligations . ...

As soon as they came into the hands of the investigating judge and even though only the specialists knew what they contained , ‘ PERSON ’s written PERSON received a degree of publicity that encouraged rumours to spread . There was , therefore , an argument for full publication , provided it was accompanied by an explanation of the historical background and a critical analysis that would enable the reader to form a considered opinion on the weight to be attached to the last statements of the former NORP officer . ”

With that requirement in mind , the tribunal de grande instance found that the characteristic features of the applicant ’s book were the excessive importance given to ‘ PERSON ’s written PERSON , a manifest lack of adequate documentation on the circumstances of PERSON first arrest on DATE and his release , a failure to rank the sources of information on the escape from ORG in order of importance , insufficient qualification of his remarks on PERSON and the escape of DATE , a lack of critical analysis of the NORP sources and documents as such and its neglect of the statements of those who took part in the events .

The tribunal de grande instance set out in detail and gave reasons for each of these assertions and concluded :

“ ... judges are required by the nature of their task not to abdicate when confronted with the scholar ( or someone claiming to be such ) and to decide the case in law , thereby contributing in their own way to the regulation of relations in society .

Thus , judges can not , in the name of some higher imperative of historical truth , abandon their duty to protect the right to honour and reputation of those who were thrust into the torment of war and were the unwilling but courageous participants therein .

ORG by their contemporaries as illustrious myths , these men and women have not for all that become mere subjects of research , shorn of their personality , deprived of sensibility or divested of their own destinies in the interests of science .

Because he has forgotten this and has failed to comply with the essential rules of historical method , the accused ’s [ the author of the book ’s ] plea of good faith must fail . ”

The tribunal de grande instance therefore found the first CARDINAL applicants guilty , as principal and accomplice respectively , of the offence under sections CARDINAL , first paragraph , and DATE , first paragraph , of the LAW of DATE of public defamation of PERSON and PERSON in their capacity as members of a recognised Resistance movement .

It sentenced the first applicant , as the principal , to a fine of MONEY ( ORG ) and the second , as an accomplice , to a fine of ORG CARDINAL . It also found them jointly and severally liable with the third applicant to pay PERSON and PERSON damages of ORG CARDINAL each . It dismissed an application for an order for the book ’s destruction , but made an order for publication of a statement in CARDINAL DATE newspapers and for each copy of the book to carry a warning in like terms . Lastly , it found the third applicant liable under the civil law .

The applicants appealed against that decision .

In a judgment of DATE , ORG dismissed objections of nullity that had been made by the applicants and , on the merits , examined the following questions in turn : whether the prosecution was lawful , legitimate and necessary , whether the remarks were defamatory , whether the defendants had acted in good faith and whether LAW of DATE was applicable .

As to whether the remarks were defamatory , ORG endorsed the reasoning of the court below and added that there were a number of factors which indicated that the author and publisher had decided to make the ORG alleged betrayal the subject of their publication ; these included the editorial presentation , the general structure of the book , the wraparound banner that juxtaposed ‘ legend’ and ‘ ORG , and the conclusion to the book which was on the same theme .

With regard to the question of defamation by innuendo , ORG rejected the criticism of the tribunal de grande instance ’s reasoning :

“ Having thus decided how the book would be balanced : systematic doubt where the ORG are concerned and the use of PERSON ’s document as a reference – albeit one to be treated with caution DATE [ the first applicant ] proceeds , in circumstances that are accurately described in the judgment , systematically to refuse to accord any credit to PERSON and PERSON account .

To take the CARDINAL episodes to which the defence refer : as regards the escape from L’Antiquaille , the author is not merely being irreverent but clearly makes accusations of inaccuracy , contradiction ( page CARDINAL ) and of misrepresenting the truth ( page CARDINAL ) : there is no better way of insinuating that someone is lying . ”

ORG then examined the applicants’ plea that they had acted in good faith and rejected it .

It did not deny that there could be an interest in analysing major events in the history of the Resistance and found that although some of the expressions used in the book were unpleasant they did not suffice to establish the existence of personal animosity . However , it concluded that the first applicant had failed to act with the necessary rigour for the following reasons :

“ Anyone who alleges a specific fact must first seek to verify its accuracy . Although this requirement is general , it is especially justified when the accusation is particularly serious – such as of an act of treachery leading to the death of the main Resistance leader DATE and when , as a historian , its maker is accustomed to questioning sources . ”

ORG then proceeded to identify the factors from which it had concluded that that requirement had not been complied with : the first applicant ’s failure to consult the file on the investigation that was conducted after the arrests in DATE , even though it would have enabled him to establish the date of PERSON arrest and whether he was already in custody when his home was searched ; his lack of interest in the testimony of direct witnesses from that period who were still alive when the book was written ; and his failure to investigate certain documents . Noting repeated failures by the first applicant to exercise sufficient caution ( he had published the PERSON document without subjecting it to genuine critical analysis , had directly accused the civil party of lying and had dismissed the boulevard des Hirondelles operation by members of the Resistance led by PERSON as a sham ) , ORG rejected his plea of good faith .

As regards the decision to apply section CARDINAL of the Act of DATE , ORG referred to CARDINAL of the LAW of DATE and to CARDINAL judgments of ORG and found that the civil parties had been defamed exclusively with regard to their activities as members of the Resistance “ since [ the first applicant ’s ] entire thesis conveyed to the reader the notion that they were guilty of treachery ” . It rejected an argument regarding the quality of the statute that had been applied in the case before it , noting that it was DATE and had been the subject matter of “ settled and unambiguous case - law of the highest court for DATE ” .

Finding that the sentences that had been handed down were just and proportionate , ORG upheld all the provisions of the judgment of the court below .

The applicants appealed to ORG , pleading , inter alia , ORG and CARDINAL of the Convention on the basis that the statutory provision that had been applied was neither clear nor precise and that its interpretation by the courts was inaccessible , unforeseeable and too wide . In their final CARDINAL grounds of appeal , they alleged that ORG had failed to give reasons for its decision to hold the applicants civilly and criminally liable for public defamation .

In a judgment of DATE , ORG dismissed the appeal , holding , inter alia , that the court below had properly justified its decision . It found that ORG had applied the law correctly :

“ By virtue of a combination of LAW of LAW of DATE and sections CARDINAL and CARDINAL of the Act of DATE , firstly , these provisions afford protection against defamation to certain recognised Resistance movements which are likened to the regular ORG and , secondly , this protection extends to members of these movements if the defamatory statement concerns their status or actions as members . ”

It examined the final CARDINAL grounds of appeal together and dismissed them , holding :

“ ORG is satisfied from the wording of the judgment and its examination of the procedural documents that ORG has , for reasons which are neither insufficient nor self - contradictory , firstly , correctly analysed the meaning and scope of the impugned statements and thus identified all the constitutive elements of fact and intent of the offence of which it found the accused guilty and , secondly , used its unfettered discretion to analyse the special circumstances and concluded that the accused ’s plea of historical criticism in good faith had to be rejected . ”

Freedom of LAW of DATE ( as worded at the material time )

“ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged . The direct publication or reproduction of such a statement or allegation shall be an offence , even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches , shouts , threats , written or printed matter , placards or posters .

It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact . ”

“ Anyone who by CARDINAL of the means set out in CARDINAL makes a statement that is defamatory of a court of first instance or of appeal , the ORG , ORG or ORG , a constitutional body or a public authority shall be liable on conviction to between CARDINAL days’ and DATE imprisonment and a fine of MONEY , or to one only of these penalties . ”

“ Defamation by like means by reference to the functions or capacity of CARDINAL or more ministers or ministry officials , CARDINAL or more members of CARDINAL of the CARDINAL legislative chambers , a civil servant , a representative or officer of the law , a minister of religion in receipt of a ORG salary , a citizen temporarily or permanently responsible for a public service or discharging a public mandate , a member of a jury or a witness on the basis of his witness statement shall be punishable by the same penalty .

Defamatory statements about the private lives of the above persons shall be punishable under section CARDINAL below . ”

“ Anyone who by any of the means set out in sections CARDINAL and CARDINAL makes a statement that is defamatory of private individuals shall be liable on conviction to between CARDINAL days’ and CARDINAL months’ imprisonment and a fine of MONEY , or to one only of these sentences .

Law no . CARDINAL of DATE

“ For the purposes of LAW of DATE , recognised Resistance movements and networks shall be deemed to form part of the ORG and ORG . ”

Extracts from ORG case - law

“ The originating summons referred only to section DATE of the LAW DATE , which makes it an offence to make statements that are defamatory of private individuals ; the statements which the tribunals of fact found to be defamatory amounted , on the contrary , to offences under sections CARDINAL and CARDINAL of the LAW , as the allegations were made against a Resistance group that was likened to the regular ORG , or against its leader acting in that capacity and in respect of his functions . ”

“ When the defamatory accusation is made against the leader of a Resistance group that is likened to the regular ORG acting in that capacity and with respect to his functions ... , a charge will lie only under LAW ”

“ By virtue of a combination of sections CARDINAL and CARDINAL of ORG and LAW of LAW of DATE , the protection against defamation afforded to certain recognised Resistance movements which are likened to the ORG and ORG extends to the members of these movements if the defamatory statement concerns their status or actions as members . ”


Violation of Art. 14+8;Not necessary to examine Art. 8;Not necessary to examine Art. 9;Not necessary to examine P1-2;Costs and expenses award - Convention proceedings

PERSON is an NORP citizen residing in PERSON . She is a housewife .

In DATE PERSON - then Miss PERSON Mr S. , a telephone technician . At that time , they were both NORP .

CARDINAL children were born to them , a son , PERSON , in DATE and a daughter , PERSON , in DATE . They were baptised as NORP .

The applicant left ORG to become a GPE ’s Witness .

On DATE the applicant instituted divorce proceedings against Mr S. She left him in DATE or DATE while the proceedings were still pending , taking the children with her .

The divorce was pronounced on DATE .

Following their separation , both the applicant and PERSON applied to ORG ( Bezirksgericht ) to be granted parental rights ( PERSON ) over the children .

Mr S. submitted that if the children were left in the applicant ’s care , there was a risk that they would be brought up in a way that would do them harm . He claimed that the educational principles of the religious denomination to which the applicant belonged were hostile to society , in that they discouraged all intercourse with non - members , all expressions of patriotism ( such as singing the national anthem ) and religious tolerance . All this would lead to the children ’s social isolation . In addition , the GPE ’s Witnesses’ ban on blood transfusions might give rise to situations in which their life or their health was endangered .

With regard to the son , PERSON , Mr PERSON noted that he would eventually have to refuse to perform military service or even the civilian service exacted in its stead .

The applicant claimed that she was better placed to take care of the children , being in a position to devote herself to them completely , and as a mother better able to provide them with the necessary family environment . She alleged that Mr S. did not even provide for their maintenance , as he was both legally and morally bound to do . She acknowledged , however , that she intended to bring the children up in her own faith .

The youth office of ORG , PERSON ) expressed a preference for granting parental rights to the applicant ; it referred to , inter alia , the expert opinion of a child psychologist .

By decision of CARDINAL DATE , ORG granted parental rights to the applicant and denied them to Mr S.

According to its reasoning , only the children ’s well - being fell to be considered . The material living conditions of both parents were such that either of them would be able to take proper care of the children ; however , the father would need his mother ’s help . The children had stronger emotional ties with the applicant , having lived with her for DATE already , and separating them from her might cause them psychological harm . It followed that it was preferable to leave the children with the mother .

ORG further observed :

" As against this , it has been stated by the children ’s father , essentially as his only argument , that PERSON membership of the religious community of ORG has serious detrimental effects on the children . As to this , it ought to be made clear right away that in no case are GPE religious convictions as such a relevant criterion in deciding on parental rights and duties pursuant to LAW CARDINAL of LAW . These rights can not be refused to a parent or withheld from him for the sole reason that he or she belongs to a religious minority .

However , in the concrete case it needs to be examined whether the mother ’s religious convictions have a negative influence on her upbringing of the children which should be taken into account and whether their well - being is impaired as a result . It appears in particular that PERSON would not allow blood transfusions to be given to her children ; that for herself she rejects communal celebration of such customary holidays as DATE or GPE ; that the children experience a certain tension in relation to an environment which does not correspond to their faith ; and that their integration in societal institutions such as kindergarten and school is made more difficult . However , the father ’s apprehension of complete social isolation as a result of the mother ’s religion does not appear well - founded in the light of the established facts . In addition , no possible dangers to either child ’s development have appeared in the course of the establishment of the facts .

It is true that the facts adduced ( blood transfusions , holidays , impaired social integration ) are in principle capable of having detrimental effects on the children . This point must now be examined in the context of the particular case . It appears first of all that the father ’s argument that PERSON and PERSON would be exposed in an emergency to serious danger to their life and health by the refusal of a blood transfusion is not of decisive importance . In the absence of parental permission for a medically necessary blood transfusion to either child , such permission can be replaced by a judicial decision in accordance with LAW ( compare the decision of ORG ( PERSON ) of DATE , CARDINAL CARDINAL/CARDINAL ) . In any case , according to this legal provision , anyone can apply to the court for an order that is necessary to ensure the welfare of the child when the parent endangers it by his conduct . In view of this possibility of applying to the court , which is available at all times , no danger to the children need be inferred from the mother ’s attitude to blood transfusions .

As for PERSON rejection of holidays , notice must be taken of her express agreement to allow the father to take the children on such occasions and celebrate them with the children as he sees fit . The mother ’s religious convictions thus do not deprive PERSON and PERSON of the possibility of celebrating these holidays in the usual way , so that no detriment to the children can be found in this regard either .

Of the reservations with regard to the mother ’s upbringing of the children resulting from her religion the only remaining one of any significance is the circumstance that PERSON and PERSON will in later life experience somewhat more difficulty in finding their way in social groups as a result of the religious precepts of ORG and will find themselves to some extent in a special position . However , the court can not consider this so detrimental to the children ’s welfare that they should for that reason not be entrusted to their mother , with whom they have such a close psychological relationship and to whose care they are accustomed . Careful consideration must lead to the conclusion that in spite of more difficult social integration , as discussed above , it appears to be more in the interest of the children ’s welfare to grant parental rights to the mother than to transfer them to the father . "

Mr S. appealed against the above decision to ORG ( PERSON ) .

ORG rejected the appeal by decision of CARDINAL DATE . Its grounds for so doing were the following :

" The main thrust of the appeal is to argue that the decision of the first - instance court is incompatible with the children ’s welfare in view of the mother ’s membership of the religious community of the GPE ’s Witnesses . In this connection , the appellant discusses the criteria and objectives peculiar to that religious community and the resulting social attitudes , which are in his opinion wrong ; it follows , in his view , that both children are bound to suffer harm if the parental rights and duties are assigned to the mother , and in particular that they may be forced into social isolation removed from reality .

The appellant ’s line of argument in this regard is unsound . The Jehovah ’s Witnesses , formerly known as Serious Bible Students , a community based upon their own interpretation of the Bible , are not outlawed in GPE ; it may therefore be assumed that their objectives neither infringe the law nor offend morality ( see LAW in conjunction with LAW ) of ORG ) . Therefore , the mother ’s membership of that religious community can not of itself constitute a danger to the children ’s welfare ...

Admittedly , the mother ’s religion will in all probability affect the children ’s care and upbringing , and they may come to experience a certain tension in relation to an environment which does not correspond to their faith . The first - instance court has already dealt at length with part of the appellant ’s arguments that relate thereto and has given detailed and conclusive reasons why the father ’s objections against assigning the parental rights and duties to the mother can not in the final instance be decisive . The new points raised on appeal - relating to a lack of understanding of democracy and a lack of subordination to the ORG - can not cast doubt on the first - instance decision as regards the children ’s welfare ; it suffices in this respect to recall the legal recognition of the religious community of ORG , which meant , contrary to the appellant ’s allegation , that the first - instance court did not in fact need to seek ex officio an expert opinion on the objectives or the ‘ nature’ of the Jehovah ’s Witnesses . Nor were the first - instance proceedings incomplete because no expert medical opinion was sought regarding the question , which was raised anew on appeal , of blood transfusions , which are rejected by the GPE ’s Witnesses ; in the event that a judicial remedy ( a decision pursuant to LAW ) arrives too late , it will in the final instance be up to the physician treating the patient , when confronted with the problem , to reach a decision , with a view in the first place to life - saving medical action and only in the second place taking into account the rejection of blood transfusions which is peculiar to the GPE ’s Witnesses .

The appellant ’s further line of argument - to the effect that a properly arranged transfer of the children to himself and properly arranged visiting rights for the mother could not cause the same shock as had the mother ’s forcible removal of the children , and that the decision under appeal had legalised her unilateral action - also fails to convince . The appellant overlooks the fact that , in view of the paramount importance of the children ’s welfare , the way in which they reached the place where they are currently being taken care of is not necessarily decisive . Even illegal conduct would be of relevance only to the extent that it might , in an individual case , be possible to infer therefrom a lack of suitability for care or upbringing ; it is not otherwise decisive for determining the attribution of parental rights and duties whether or not the parent concerned has taken charge of the children without authorisation . It remains true , however , that both children have for a long time developed harmoniously in the mother ’s care , that there is a closer relationship with her than with the father , and that , whatever the religious or philosophical views of the mother , neither child has suffered any harm in his or her physical or - particularly - psychological development ; in fact the appellant could not seriously claim that they had actually suffered in the latter respect . "

Mr S. lodged an appeal on points of law ( außerordentlicher Revisionsrekurs ) with ORG ( Oberster Gerichtshof ) .

By decision of DATE , ORG overturned the judgment of ORG , granting parental rights to Mr S. instead of the applicant . It gave the following reasons :

" The appellant has not hitherto claimed that the children belonged to the NORP faith ; however , he has stated , and it has in fact been established , that the mother is bringing them up according to the principles of the GPE ’s Witnesses’ teaching . It is also uncontested that the children do not belong to this confession . The lower courts had therefore to examine whether or not the mother ’s bringing up the children in this way contravened the provisions of LAW of DATE on ORG ( Bundesgesetz über die religiöse GPE ) , BGBl ( ORG , Federal official ORG ( re - enactment of LAW DATE on ORG , dRGB ( deutsches Reichsgesetzblatt , ORG ) I. CARDINAL ) . According to LAW the religious education of a child shall be decided upon by an agreement freely entered into by the parents , in so far as the responsibility for his or her care and upbringing is vested in them . Such an agreement may be revoked at any time and is terminated by the death of either spouse . LAW , paragraph CARDINAL , of LAW lays down that if such an agreement does not or ceases to exist , the provisions of LAW on the care and upbringing of children shall extend to their religious education . However , according to LAW , paragraph CARDINAL of LAW , during the existence of the marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up .

Since in any case the children do not belong to the faith of the Jehovah ’s Witnesses , their education according to the principles of this sect ( which is not , as the appellant rightly points out , a recognised religious community : see ORG , ORG , [ NORP LAW ] , PERSON . CARDINAL , p. CARDINAL ) contravenes Article CARDINAL , paragraph CARDINAL , of LAW . ORG failure to apply this provision is obviously in breach of the law .

Moreover , the lower courts also failed in their decisions to give due consideration to the children ’s welfare ... . That the mother , as has been established , would refuse to consent to the children ’s receiving a necessary blood transfusion constitutes a danger to their well - being , since requesting a court to substitute its consent for that of the mother ... may in urgent cases involve a life - threatening delay and medical intervention without seeking the approval of the person entitled to take care of the child is considered contrary to the law ... . It has also been established that if the children are educated according to the religious teaching of the Jehovah ’s Witnesses , they will become social outcasts . In the initial decision as to which of the spouses is to have the right to provide care and upbringing , these circumstances can not be ignored . Although it is preferable for young children to be taken care of by their mother ... , this applies only provided that all other things are equal ... . There is no maternal privilege as regards the attribution of parental right ... . The stress caused to the children by being transferred to the care of the other parent , which in any case is usually transitory , has to be accepted in their own best interests ... . The file contains no documentary basis for the assumption that a change to another carer ‘ would with a high degree of probability cause the children serious psychological harm’ ... . Even according to the opinion of the lower courts , the father is able to see to the children ’s upbringing , since they have a good relationship with him and with their grandmother , who would take charge of their care and upbringing during the father ’s absence at work ; the availability of accommodation for the children in the house of the father ’s parents is assured . Therefore , only transfer of parental rights and duties to the father is in the children ’s interest . "

Numbering CARDINAL worldwide not counting uninitiated sympathisers , the GPE ’s Witnesses form a particular religious movement . It originated in GPE in DATE . Formerly known by names such as International Bible Students , the Jehovah ’s Witnesses took their present name in DATE .

A central feature of GPE ’s Witness doctrine is the belief that ORG in the original LANGUAGE and NORP are the revealed word of PERSON and must therefore be taken as literal truth .

The refusal to accept blood transfusions is based on several scriptural references , most notably Acts CARDINAL : CARDINAL - CARDINAL , which reads ( ORG translation ) :

" For the holy spirit and we ourselves have favored adding no further burden to you , except these necessary things , to keep abstaining from things sacrificed to idols and from blood and from things strangled and from fornication . If you carefully keep yourselves from these things , you will prosper ... "

Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) deals with the custody of children in an event such as the dissolution of their GPE marriage by divorce . It reads :

" ( CARDINAL ) Where the marriage between the parents of a legitimate minor has been dissolved , annulled or declared void , or where the parents are separated other than merely for a temporary period , they may submit to the court an agreement concerning which of them shall in the future have custody of the child . The court shall approve the agreement if it is in the interests of the child ’s welfare .

( CARDINAL ) Where no agreement is reached within a reasonable time , or if the agreement reached is not in the interest of the child ’s welfare , the court shall decide which parent is to have sole custody of the child in the future ; in the case of a separation of the parents which is not merely temporary , such a decision shall be taken only on application by CARDINAL of them . "

Both during and after the GPE marriage , the court may be called upon to substitute its approval or consent for that of the parents ( or parent ) . The relevant provision is LAW , which reads :

" Where the conduct of the parents threatens the welfare of a minor , the court shall be required , irrespective of who has applied to it , to make the orders necessary for the protection of the child ’s welfare . Such an order may also be made on application by one of the parents when the parents have failed to reach an agreement concerning a matter of importance to the child . In particular the court may withdraw custody of a child , either wholly or in part , including rights of approval and consent provided by law . In individual cases the court is also required to substitute its approval or consent for parental approval or consent required by law , when there is no justified reason for refusal . "

In taking decisions under Articles CARDINAL and CARDINAL , the courts follow the criteria set out in Article PERSON , which reads :

" In assessing the interests of the minor , his or her personality and needs must be duly taken into consideration , particularly his or her talents , abilities , inclinations and developmental opportunities , as well as the material circumstances of the parents . "

Religious freedom is guaranteed by LAW , which reads :

" ( CARDINAL ) Complete freedom of beliefs and conscience is guaranteed to everyone .

( CARDINAL ) Enjoyment of civil and political rights shall be independent of religious confessions ; however , a religious confession may not stand in the way of civic duties .

( CARDINAL ) No one shall be compelled to take any church - related action or to participate in any church - related celebration , except in pursuance of a power conferred by law on another person to whose authority he is subject . "

GPE has a system of recognition of religious communities . It is governed by LAW DATE concerning ORG ( Gesetz betreffend die gesetzliche PERSON ) , RGBl ( Reichsgesetzblatt , Official Gazette of GPE ) CARDINAL/CARDINAL . CARDINAL religious communities are so recognised , among them ORG but not the Jehovah ’s Witnesses . Religious groupings without legal recognition have legal personality as " societies " ( ORG ) under the general law .

The religious education of children is governed by LAW on ORG , which re - enacted a NORP law dating DATE that was incorporated into NORP law in DATE ( see paragraph CARDINAL above ) .

" The religious education of a child shall be decided upon by an agreement freely entered into by the parents , in so far as the responsibility for the child ’s care and upbringing is vested in them . Such an agreement may be revoked at any time and is terminated by the death of either spouse . "

" ( CARDINAL ) If such an agreement does not or ceases to exist , the provisions of LAW on the care and upbringing of children shall extend to their religious education .

( CARDINAL ) During the existence of their marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of their marriage or from that in which he or she has hitherto been brought up , or that a child is to cease to attend religious education classes .

( CARDINAL ) In the absence of such consent , application may be made for the mediation of , or a decision by , the guardianship court . In any such decision the interests of education shall be paramount even in cases not covered by LAW . Before the decision is taken the child ’s parents , and if necessary relatives , relatives by marriage and teachers , must be heard if this is possible without significant delays or disproportionate costs . The child itself must be heard if it has reached the age of ten . "

The need for parental permission for administering blood transfusions to minors follows from the law governing medical action in general .

Thus , LAW ( Krankenanstaltengesetz ) , BGBl CARDINAL/CARDINAL , lays down in DATE :

" ( CARDINAL ) ...

( CARDINAL ) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science .

( CARDINAL ) Special curative treatments including surgical operations may be carried out on a patient only with his consent , but if the patient has not yet reached DATE or if because he lacks mental maturity or health he can not assess the necessity or usefulness of the treatment , only with the consent of his legal representative . Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health . The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment . "

It is a criminal offence to administer medical treatment without the requisite consent ; this follows from LAW ) , which reads :

" ( CARDINAL ) Whoever treats another person , even according to the rules of medical science , without having obtained that person ’s consent , shall be liable to imprisonment for DATE or to a fine of CARDINAL DATE rates .

( CARDINAL ) If the offender has failed to obtain the consent of the patient because he assumed that a delay in the treatment would entail a serious risk for the life or health of the patient , he shall be punished according to paragraph CARDINAL only if the assumed risk did not exist and if by taking due care ... he could have been aware of this .

( CARDINAL ) The offender shall be punished only at the request of the person who underwent unauthorised treatment . "


CASE OF NICOLAE CONSTANTINESCU v. ROMANIA

Violation of Article 6 - Right to a fair trial

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lived in GPE .

On DATE the applicant , together with CARDINAL relatives , lodged a civil action claiming restitutio in integrum of a mill , the property of their parents , which had been taken by the ORG in DATE .

Of the CARDINAL hearings held DATE and CARDINAL DATE , CARDINAL were adjourned at the applicant ’s request .

On DATE ORG ( “ ORG ” ) rejected the action , considering that the mill had been nationalised in accordance with the law and that therefore the applicant and his relatives had no right of property .

The applicant and his relatives appealed . Of the CARDINAL hearings held DATE and DATE one was adjourned at the applicant ’s request .

On DATE ORG ( “ the ORG ” ) , taking into account the expert ’s report produced during the appeal , dismissed the appeal as being groundless .

On DATE ORG ( “ the Court of Appeal ” ) by a final decision upheld the findings of the lower courts , considering that the nationalisation had been lawful .

The applicant and his relatives made use of extraordinary remedies and on CARDINAL DATE ORG allowed the application to set aside the final decision of DATE , quashed the previous judgments and sent the case back for fresh examination . The court noted that under Government Ordinance no . CARDINAL ORG should have been summoned to appear in the proceedings as the ORG ’s representative .

During the retrial , of the CARDINAL hearings held DATE and DATE CARDINAL were adjourned at the applicant ’s request .

On DATE ORG held that it had no jurisdiction ratione materiae , considering the case to be within the competence of ORG . On DATE ORG also refused to exercise jurisdiction . Following the dispute as to jurisdiction , ORG decided on DATE that it was ORG which had jurisdiction ratione materiae .

On DATE ORG , having regard to the CARDINAL experts’ reports and to the witnesses produced during the retrial , upheld in part the action lodged by the applicant and his relatives , considering that the legal requirements for nationalisation had not been fulfilled and therefore the ORG had no valid title . The court granted restitutio in integrum in respect of the mill and of the appurtenant land .

The defendant party appealed . Of the QUANTITY hearings held DATE and DATE none was adjourned as a result of requests by the applicant . A new expert ’s report was produced .

On DATE ORG allowed the appeal by the defendant and rejected on the merits the action lodged by the applicant and his relatives , considering that the nationalisation had been lawful . That decision was upheld on DATE by a final decision of ORG .