C. and D. and S. and OTHERS v. THE UNITED KINGDOM

The applicant PERSON , in application no . CARDINAL , is a GPE national born in DATE and resident in GPE . She brings this application on her own behalf and on behalf of her children , A. , born in DATE , and B. born in DATE , also GPE nationals . She is represented by PERSON , of FAC , GPE .

The applicants in application no . CARDINAL , C. and NORP , born in DATE and DATE , are represented by their guardian and solicitor , Mr P. ORG , a solicitor practising in GPE and are also GPE nationals .

S. met the father of A. and B. in DATE . They started to cohabit in DATE . She already had a son PERSON from a previous relationship . In DATE , a boy , was born and PERSON , a girl , was born in DATE .

Serious problems emerged in the family in DATE when P ran away from home . He alleged that his stepfather , the father of GPE and PERSON , had repeatedly beaten him . ORG arranged a foster placement . The father denied the allegations and S. supported him . At a case conference in DATE , the father was arrested for threatening behaviour . He was subsequently charged and sentenced to community service . ORG issued applications for a care order in respect of P. and supervision orders in respect of A. and B.

In DATE , PERSON made allegations of sexual abuse against his stepfather . A child protection investigation followed . The stepfather denied the allegations , supported by S.

On DATE , NORP and NORP were taken into care pursuant to an emergency protection order and placed in foster care .

In DATE , S. separated from A. and B. ’s father .

While the paediatric examinations of A. and B. were inconclusive , an expert reported that the father presented an unacceptable risk to them and that S. , their mother , was unable to protect them . He recommended therapy for the mother .

ORG sought care orders for all CARDINAL children . Its care plan for PERSON was that he should remain in care . The care plan for PERSON and PERSON was to attempt to rehabilitate them with S.

On DATE , after a hearing , ORG judge found that the father had sexually abused PERSON and beaten the children with a slipper . She also found that PERSON had failed to protect them . While it was agreed that there should be a care order in respect of P. , there was some debate as to the orders to be made in respect of GPE and GPE and the children ’s guardian elicited assurances from ORG on the package of support and treatment available to the family which was needed to make rehabilitation viable . S. ’s counsel sought some guarantee of performance , or a safeguard in respect of breach . She argued , inter alia , that it was neither necessary nor proportionate for a care order to be made on the footing that all power and responsibility should pass to ORG . PERSON was sceptical , on past experience , whether ORG would carry out the care plan for A. and B. She contended that only interim care orders should be made while the children ’s guardian sought final care orders . The judge made final care orders in respect of all CARDINAL children expressing confidence that ORG would implement the care plan . The applicant appealed .

The care plan had envisaged reunification within DATE . Within DATE which followed between the orders and the appeal hearing , little happened . Meetings occurred between PERSON and the social worker assigned to NORP and PERSON of the planned family therapy work took place . No social worker was provided to assist LOC programme was not started until DATE . No therapy was started for the mother . ORG later called this a “ striking and fundamental failure ” to implement the care plan and noted that most of the assurances given by the social workers and accepted by the guardian ad litem and judge had proved vain . It found that this was not a matter of bad faith and that the principal cause of the failings was a financial crisis within the authority leading to substantial cuts in the social services budget . The sad history of potentially disastrous failure fully vindicated the line taken by PERSON ’s counsel at trial .

The CARDINAL brothers , C. and NORP , were born in DATE and DATE respectively , to an NORP mother and NORP father . The parents had a volatile relationship with periods of separation .

Concern arose as to the GPE ability to meet the children ’s needs centring on the GPE relationship and the mother ’s mental health . In DATE , anxiety deepened . The mother made allegations about the father which were not substantiated . The mother ’s conduct deteriorated . Her medical history included diagnoses of borderline personality disorder and bipolar disorder . There was concern about the children ’s emotional development .

On DATE , ORG ( “ the Council ” ) applied for care orders and moved the children into foster care under an emergency protection order . The ORG ’s final care plan was that the children should be placed with the maternal grandparents with continuing direct contact for both parents . The grandparents who lived in the GPE agreed to move to GPE . The children were to remain in foster care until they arrived . The children ’s guardian supported this placement . During the period leading up to the hearing , both parents showed significant progress in understanding their own problems and those of the children and made efforts to work with the various doctors and experts engaged in the case . The mother , now conclusively diagnosed as having bipolar disorder and a personality trait , had come to accept her mental illness and the need for treatment and medication . The parents were living together again and wished to have the children returned .

On DATE , ORG commenced hearing evidence on the care applications . In his judgment on DATE , the judge stated that there was no question of ruling the parents out in the longterm but , for the present and near future , concluded that the children were unable to return safely to their parents : “ possibly , or even probably , it may be appropriate in DATE , but not now . ” All the parties agreed that the maternal grandparents would be suitable carers , although the evidence that they would in fact be able to move to GPE was “ exiguous in the extreme ” . The judge described the care plan as inchoate because of all the uncertainties involved , not only concerning the grandparents but also the outcome of further assessment and therapy for the boys , the final outcome of marital work for the parents and the possibility of improvements with the mother ’s personality traits . Nonetheless , the judge made care orders for both children .

The parents applied for and obtained permission to appeal , submitting that the judge had erred in granting a final care order when so many issues were uncertain . Meanwhile , there was delay in the maternal grandparents obtaining residence and work permits and the boys were moved due to their foster mother suffering an accident .

ORG heard appeals in both cases together .

In its judgment of DATE , ORG proposed adopting a new approach to meet the situation where the judge ’s evaluation of what was in the best interests of a child risked conflicting with events as they occurred after a final care order had been made . It was noted that while the parents might have the right to apply to the courts under section CARDINAL of LAW DATE alleging a fundamental failure to implement a care plan , there was no person to act for a child if the parent did not choose to act . The guardian would have ceased to act and would no longer have any supervisory authority .

First , the court enunciated guidelines intended to give trial judges a wider discretion to make an interim care order , rather than a final order .

Second , in an innovation described by ORG as “ radical ” , ORG propounded a new procedure for the period after the making of a care order by which at trial the essential milestones of a care plan would be identified and elevated to a “ starred status ” . If a starred milestone was not achieved within a reasonable time after the date set at trial , the local authority would be obliged to “ reactivate the interdisciplinary process that contributed to the creation of the care plan ” . The local authority would at least have to inform the child ’s guardian . Either the guardian or the local authority would then have the right to apply to the court for further directions .

As regarded the GPE case , ORG considered the outcome finely balanced and declined to disturb the judge ’s order . It was noted that the children might have remedies under LAW if necessary but that meanwhile there had been sufficient progress in the case to make further referral to ORG an unnecessary distraction in the case .

As regarded the GPE case , it was clear that the care plan was insufficiently mature and that the judge had wanted more time to await developments but had been constrained by case - law to make the full care order . The judge should have insisted on more information before making the order or on a report back if matters did not turn out as expected . It allowed the appeal in that case , replacing the final care order with an interim one and remitting the case to the judge for further consideration .

S. appealed in the ORG case while the Secretary of ORG and ORG , supported by ORG , appealed against the reasoning of ORG , although not against the substantive orders made .

Meanwhile , on DATE , the judge in the ORG case starred various items in the final care plan : a parenting assessment was to be completed by DATE , a course of therapy for PERSON was to be completed by DATE and a decision about the immediate goals of the care plan ( reunification with PERSON or long term foster care ) was to be made by DATE . She directed ORG to provide a progress report to the children ’s guardian , or in the absence of the guardian , to the court if a starred element was not achieved within DATE of the specified dates . By the time of ORG hearing , it was stated that the starred plan was working well and the children ’s interests were being met .

In the GPE case , setting aside the final care order had the unfortunate consequence of augmenting uncertainty . The maternal grandparents were reluctant to move to GPE without a final care order . On DATE , the judge made a final care order with the consent of the guardian and without any opposition from the parents . The care order was not starred . The agreement attached to the care order which was intended to supplement the care plan , indicated that the children would be in the care of the ORG , that the maternal grandparents would be encouraged to move to the area as soon as possible and that it was in the best interests of the children for the legal proceedings to end . It was recorded that the parents believed that the family would be rehabilitated within DATE and that the parents would apply to discharge the care order in the event that the children had not been placed with the grandparents by DATE , the grandparents became unable to care for the children or the children were not rehabilitated to the GPE care within DATE . It was further agreed that the ORG would convene a statutory review in DATE at which the issue of rehabilitation would be specifically considered .

In its judgment of DATE ( ORG Care Order : Implementation of Care Plan ) and ORG ) ( Care Order : Adequacy of Care Plan ) [ DATE ] CARDINAL FLR CARDINAL ) , ORG rejected PERSON ’s appeal and allowed the appeal of the local authority .

The headnote of the reported case summarised the judgment as follows :

“ ( CARDINAL ) ORG had set out its clear intention in LAW DATE that once a care order had been made , the responsibility for the child ’s care thereafter lay with the authority , not with the courts , and the courts were not empowered to intervene . The division of responsibility was a cardinal principle of the LAW . The introduction of a system which gave the court a supervisory role following the making of a care order went beyond the bounds of the court ’s judicial jurisdiction because it involved a substantial departure from one of the cardinal principles of LAW . LAW DATE required primary legislation to be read and given effect in a way compatible with Convention rights , so far as was possible , but the judicial innovation of starred milestones passed well beyond the boundary of interpretation and would constitute amendment . The starring system could not be seen as a mere judicial remedy for victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children , justified by ss CARDINAL and CARDINAL of the CARDINAL Act , as the proposed system would impose obligations on authorities in circumstances where there had been no finding of unlawful conduct and , indeed , no breach or proposed breach of the Convention ...

( CARDINAL ) LAW DATE was not itself incompatible with or inconsistent with Art CARDINAL of the Convention . Infringement of the right to respect for family and private life was only likely to arise if a local authority failed properly to discharge its responsibilities under LAW DATE ; those responsibilities were not themselves an infringement of rights under Art CARDINAL . It might be that there was a failure to provide an effective remedy against local authority infringements of rights under Art CARDINAL , as while parents would have an effective remedy in the judicial review process or through proceedings under s CARDINAL of LAW DATE , in practice a child with no parent to act for them might not always have such a remedy , but that was not in itself an infringement of Art CARDINAL . Under the Convention , failure to provide an effective remedy for infringement of a Convention right was an infringement of Art CARDINAL , but Art CARDINAL was not a Convention right under LAW DATE . Therefore , legislation which failed to provide an effective remedy for infringement of Art CARDINAL was not , for that reason , incompatible with a Convention right within the meaning of LAW DATE ...

( CARDINAL ) Circumstances might perhaps arise in which LANGUAGE law relating to some decisions by local authorities concerning care of children would not satisfy the requirements of Art CARDINAL(CARDINAL ) ... The failure to provide access to a court as guaranteed by Art CARDINAL(CARDINAL ) meant that LANGUAGE law might be incompatible with Art CARDINAL(CARDINAL ) , but the absence of such a provision from a particular statute did not mean that the statute itself was incompatible with Art CARDINAL(CARDINAL ) . The absence in LAW DATE of effective machinery for protecting the civil rights of young children with no parent or guardian was a statutory lacuna , not a statutory incompatibility . The inability of parents or children to challenge in court care decisions , however fundamental , made by a local authority while a care order was in force , was a different matter . Judicial review apart , the opportunity to challenge such decisions in court would be in conflict with the scheme of the CARDINAL LAW . The issue of whether in this respect LAW DATE was incompatible did not arise in this case , as the parties concerned had not lacked a court forum in which to express their concern at the lack of progress ...

( CARDINAL ) Interim care orders were not intended to be used as a means by which the court might continue to exercise a supervisory role over the local authority in cases in which it was in the best interests of a child that a care order should be made . Problems had arisen about how far courts should go in attempting to resolve the uncertainties within care plans before making a care order . Where an uncertainty needed to be resolved before the court could decide whether it was in the best interests of the child to make a care order at all , the court should finally dispose of the matter only when the material facts were as clearly known as could be hoped . Some uncertainties relating to the details of the care plan were suitable for immediate resolution , in whole or in part , by the court in the course of disposing of the care order application ; other uncertainties could and should be resolved before the court proceeded , during a limited period of ‘ planned and LOC delay . Frequently the uncertainties involved in a care plan could only be worked out after the making of an order . Despite all the inevitable uncertainties , when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future . The degree of firmness to be expected , as well as the amount of detail in the plan , would vary from case to case , but if the parents and the child ’s guardian were to have a fair and adequate opportunity to make representations to the court on whether a care order should be made , the care plan must be appropriately specific . The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over - zealous investigation into matters which were the responsibility of the local authority . ”

Lord PERSON noted that the court would only ordinarily grant relief to a person who was victim of an actual and proposed breach of a Convention right . In the GPE case , the problem had been essentially “ drift ” in the implementation of the care plan . In practice however , the mother , PERSON , had not lacked a court forum in which to express her deep concern . Her appeal enabled her to raise these matters in ORG and the intervention of that court appeared to have galvanised the local authority into taking the necessary action , if belatedly .

He went on to state :

“ I must finally make an observation of a general character . In this speech I have sought to explain my reasons for rejecting ORG initiative over starred milestones . I can not stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by ORG or mentioned by me . CARDINAL of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring an overall improvement in the quality of child care provided by local authorities . Answering this question calls for a wider examination than can be undertaken by a court . The judgments of ORG in this case have performed a valuable service in highlighting the need for such an examination to be conducted without delay . ”

In the GPE case , the ORG had decided that long term reunification should be the stated goal of the care plans of A. and PERSON had continued to receive therapy after DATE , in particular regarding her re - instigation of contact with the children ’s father . Contact was suspended in DATE as a result of ORG renewed contacts with the father but resumed after DATE and ad hoc TIME stays had taken place by DATE . The care plans were amended in light of changed circumstances so as to state that shared care ( between PERSON and a children ’s home or foster family ) was the immediate goal . By DATE , the children were regularly staying with S. at DATE . The most recent review meeting in DATE recorded that the care plan was for shared care , with up to TIME per week with PERSON , together with long term foster placements for NORP and PERSON However , contact is currently less than that , due to difficult behaviour by GPE and B.

In the GPE case , the grandparents moved to GPE , with financial assistance , and the children were duly placed with them on DATE . They had contact with their parents CARDINAL to CARDINAL times a week . By DATE , a dispute had arisen between the parents and the ORG as to the appropriateness of TIME contact . The parents intimated that they might apply to the court DATE of LAW DATE to increase their contact rights but did not do so . Contact gradually increased and overnight contact began on CARDINAL DATE . DATE , the children stayed alternate weekends with their parents and after a review in DATE this was increased to CARDINAL weekends per month . At DATE , a dispute arose as to whether the children should return permanently , which the local authority considered could not yet occur due to lack of compliance with the relevant regulations , in particular that a written agreement be reached with the parents as to various matters . The parents again intimated that they might apply to the court for increased contact but did not do so . By DATE , the children had been formally placed with their parents . At a further review on DATE , the chairperson of the statutory review considered that an application should be made to discharge the care order although family support would continue . The ORG however considered that there should be a further period of assessment .

Under LAW of LAW DATE ( “ the DATE LAW ) , on the application of any local authority or authorised person , the court may make an order placing the child in the care of a designated local authority ( “ a care order ” ) . The preconditions under section LAW ) are that the court must be satisfied that the child is suffering , or likely to suffer , significant harm ; and that the harm is attributable to the care given , or likely to be given , not being what it would be reasonable to expect a parent to give . There is no power under LAW for a care order to be made on terms , or accompanied by directions , whether in accordance with a care plan or otherwise . A care plan may be discharged ( section CARDINAL(CARDINAL ) ) or substituted by a supervision order ( section CARDINAL(CARDINAL ) ) . An interim care order may be made under section ORG which lasts for DATE initially and if renewed for DATE . The judgment of Lord PERSON in this case is regarded as the leading authority on the scope for the granting of interim care orders , namely , as a temporary “ holding ” measure where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to the planning and deciding the future . An interim care order is not a means of exercising a supervisory role over the local authority ’s implementation of its care plan but gives the court sufficient flexibility to defer making a final order until satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic .

In deciding whether to make a care order , the court must have before it the details of the local authority ’s proposed care plan . This is to be put on a statutory footing by new legislation . Section CARDINAL of ORG will insert a new section CARDINALA in the LAW requiring a care plan to be prepared by the local authority for the purposes of any application which may result in the making of an order . According to the Government , this was expected to come into force in DATE .

Once a care order has been made , a court retains jurisdiction CARDINAL aspects :

under LAW , the local authority must allow the child reasonable contact with his parents and the court can adjudicate on any dispute as to what is reasonable contact or to vary or discharge any contact order ;

the court may entertain an application by the local authority , parent or child , to discharge the care order or substitute some other order e.g. a supervision order .

Section CARDINAL provides for the appointment by the court of a “ Children ’s Guardian ” ( an officer of ORG “ ORG ” ) for the purposes of specified proceedings e.g. applications for the making or discharge of care and supervision orders . ORG ’s primary function is to safeguard and promote the welfare of children . When the court rules on an application , the ORG ’s role comes to end . There is no statutory provision for ORG to have a role outside active court proceedings .

Section CARDINAL of the CARDINAL Act provides for the appointment by the local authority of an “ independent reviewing officer ” ( “ ORG ” ) . The ORG is independent of the line management involved in the child ’s case and his / her role is to participate in statutory reviews , monitoring the authority ’s functions and referring the case to ORG if appropriate . Referral allows a Children ’s Guardian to take any necessary action through the courts by acting for the child either in proceedings for judicial review or freestanding claims under LAW DATE ( “ HRA ” ) . The ORG may also refer a child to a solicitor directly if legal assistance is considered more appropriate .

An aggrieved party may appeal the making of a care order to the court on the basis that it was not justified in the circumstances e.g. that the order breaches the LAW the parents or children ( section CARDINAL(CARDINAL)(b ) of the ORG ) .

Representations to the local authority may also be made by parents and children at the statutory reviews which take place after DATE , DATE and then DATE after the care order . The local authority is required to seek the views of all relevant parties . The local authority must also make available a complaints procedure , involving the participation of CARDINAL person independent of the local authority ( section CARDINAL of the DATE LAW Complaint may also be made to ORG if any interested party is unhappy about the discharge by a local authority of its functions under LAW . The ORG can investigate complaints of maladministration ( e.g. bias , neglect , incompetence , arbitrariness ) and issue recommendations as to the steps which the authority should take to remedy the injustice to the person aggrieved ( see LAW DATE ) .

Applications may be made to the courts under the DATE Act concerning contact arrangements or discharge of the care order .

Any decision of a local authority in relation to a child in its care may be subject to judicial review in ORG . ORG review does not provide an appeal on the merits of a decision . FAC of challenge include illegality , irrationality , impropriety , material error of fact , acting for an improper purpose , failure to take into account relevant considerations , or taking into account irrelevant considerations . Judicial review proceedings may also include a complaint of breach of Convention rights , pursuant to section CARDINAL(CARDINAL ) of the ORG . The ORG also confers a free - standing right of complaint in the ordinary courts where it is alleged that a local authority has breached Convention rights in its decision - making in relation to a child in its care .


Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient

In DATE and DATE negotiations were conducted between , among others , ORG and NORP banks concerning compensation due to Holocaust victims for unclaimed assets deposited in NORP bank accounts .

Against that background PERSON , who was the NORP ambassador to GPE at the time , drew up on DATE a “ strategy paper ” , classified as “ confidential ” , which was faxed to PERSON , who was the head of the task force that had been set up to deal with the question within ORG in GPE . Copies were sent to CARDINAL other individuals and to the NORP diplomatic missions in GPE , GPE , GPE , GPE and GPE .

The applicant obtained a copy . It seems clear that he could not have acquired possession of the document without a breach of professional confidence by a person whose identity remains unknown . On DATE the GPE DATE newspaper ORG published the following article by the applicant ( translation ) :

“ Mr PERSON insults the NORP

Secret document : ' Our adversaries are not to be trusted '

by [ the applicant ]

GPE / GPE – Another scandal involving the NORP ambassador to GPE : PERSON , in a confidential strategy paper on the assets of Holocaust victims , talks of the ' war GPE must wage ' , and of ' adversaries ' who ' are not to be trusted ' .

The paper is classified as ' confidential ' . It was written by PERSON , NORP ambassador to GPE . On DATE the CARDINAL - old high - ranking diplomat in GPE sent the task force in GPE his views on what he described as a ' campaign against GPE ' . This report has been obtained by the ORG , and is dynamite . In terms of its content , it is an unremarkable assessment of the situation . But the aggressive language used by PERSON has the effect of an electric shock on the reader . ' It is a war ' , writes the ambassador , ' a war GPE must wage , and win , on the external and the domestic fronts ' . He describes Senator PERSON and the NORP organisations as ' adversaries ' , saying that ' most of our adversaries are not to be trusted ' .

In his paper , PERSON mentions the possibility of concluding an agreement , because ' the NORP organisations and Senator PERSON must be placated as a matter of urgency ' . He uses the word ' deal ' in this context . Ambassador PERSON suggests ' payment of a lump sum ' in order to settle ' all NORP claims once and for all ' . Then , he writes , ' everyone will be happy ' .

Speaking of the ' external front ' , PERSON says that GPE should ' campaign systematically in political circles and in the media ' . Relations with NORP organisations should be ' cultivated in a friendly manner but without servility ' , with the help of a firm of lawyers , and a ' well - orchestrated public relations campaign [ should be launched ] including seminars and round - table sessions ' .

No comments on this strategy paper by the eminent diplomat – due to retire in DATE were forthcoming DATE either from ORG [ head of the NORP diplomatic service ] at ORG or from the task force headed by PERSON . PERSON had no comment to make to this newspaper .

PERSON , President of ORG ( SIG / FSCI ) described PERSON remarks as ' shocking and profoundly insulting ' . He said he foresaw ' a difficult run - up to retirement ' for PERSON .

In the same edition of ORG of DATE , another article by the applicant read ( translation ) :

An unusual public display for a diplomat ... and the strategy paper on unclaimed assets

By [ the applicant ]

GPE / GPE – NORP ambassador PERSON constantly gets himself noticed on the diplomatic stage . With his insensitive remarks on the assets of Holocaust victims , he has thrown NORP foreign policy into turmoil – and not for the first time .

Early on DATE TIME the temperature began to rise in the offices of the NORP embassy in GPE . ' We do not comment on internal documents ' said an embassy spokesman emphatically to this newspaper ... By DATE , nevertheless , ... [ an ] editor on the [ DATE newspaper ] ORG had already leapt to the defence of his close friend PERSON . Under the heading ' Leaks continue unabated ' , he announced that ' this balanced document , some parts of which may , of course , be wrongly construed , may be published this DATE ' .

Damage limitation , therefore , was the name of the game in GPE on DATE . Ambassador PERSON , who has represented GPE abroad for DATE , was clearly aware of the explosive nature of his strategy paper , dated DATE , on the subject of unclaimed NORP assets . In his paper , he talks about a ' war GPE must wage , and win , on the external and the domestic fronts ' . He winds up with a flourish by observing : ' Most of our adversaries are not to be trusted ' .

ORG in GPE is however , experienced in crisis management . PERSON , who heads the embassy , regularly puts his foot in it . In DATE , DATE after moving into his office in the prestigious FAC , this senior diplomat committed his first faux pas . In an interview with ORG , he complained about the NORP administration , saying ' I 've observed a certain lack of courtesy ' . Even PERSON , who was said to ' burst out laughing sometimes at inopportune moments ' , was criticised during the interview . Apparently , Mr PERSON had ' kept [ Carlo Jagmetti ] waiting for DATE before he was accredited . And , according to the ambassador , it was legitimate to ask , on a general note , ' who [ was ] actually governing GPE .

GPE reprimanded the ambassador for his ill - chosen remarks and for an unconventional public appearance ( PERSON and his wife had been pictured [ in an article in the magazine ORG ] in their bathrobes ) , but the ambassador did not prove much more reticent in his subsequent utterances . And in the highly topical debate concerning the assets of Holocaust victims , PERSON has also given the impression of somebody blundering onto the diplomatic stage in outsize boots . He rebuked the Holocaust survivor PERSON in front of the assembled NORP press , saying that her claims were unfounded as her uncle had emptied the NORP bank account in question . The incident - prone diplomat based his remarks , however , not on proven facts , but on unsubstantiated rumours which had been circulating .

GPE was left with no choice but to apologise for his undiplomatic remarks in a bid to limit the damage .

These remarks , which have now been made public , are all the more embarrassing since the tension seemed to be easing . Only DATE Senator PERSON and ORG had for the first time welcomed GPE 's agreeing to set up a fund for Holocaust victims .

NORP diplomats are now engaged in behind - the - scenes efforts to head off the impending crisis by stressing the fact that PERSON is due to retire shortly . In any event , they argue , PERSON played only a minor role in the recent successful negotiations between NORP organisations and the NORP Senator PERSON .

PERSON himself has declined to comment . He absented himself from the major press conference held by Senator PERSON on DATE before the world 's press . He was reportedly on holiday in GPE . ”

A third article , which also appeared in FAC on DATE and was written by the editor PERSON , was entitled “ The ambassador with a bunker mentality ” . On DATE the GPE DATE the Tages - Anzeiger reproduced lengthy extracts from the strategy paper in an article entitled “ The finishing touches ! ” . Subsequently , another newspaper , ORG , also published extracts from the paper .

On DATE ORG ( GPE des ORG ) fined the applicant MONEY ( CHF ) for contravening LAW ( see “ Domestic law and practice ” below ) in publishing the articles entitled “ Mr PERSON insults the NORP ” and “ The ambassador in bathrobe and climbing boots puts his foot in it again ” .

On DATE , following an application by the applicant to have the decision set aside , ORG ( Bezirksgericht ) convicted him of an offence under LAW of LAW , but reduced the amount of the fine to CHF CARDINAL .

In its decision ORG , noting that prior to its publication by the applicant , the strategy paper had not been in the public domain , found that the issue of whether the content of the paper should ultimately be divulged was irrelevant . The document had been far from insignificant , as it contained an assessment of the delicate foreign - policy situation in which GPE found itself in relation to the assets of Holocaust victims deposited in NORP banks . It outlined various strategies open to GPE in order to deal with this difficult situation . ORG held that carefully worded evaluations and assessments , provided on a regular basis , were an essential part of the exchange and formation of opinion among ambassadors . That being so , even dissenting points of view were circulated internally . Article CARDINAL of LAW was designed to ensure freedom to form opinions without undue outside influence . In the instant case , the document in question had been aimed at assisting the head of the task force set up by the Government to form his opinion , and would therefore have influenced the country 's handling of the issue concerned . Given its nature , publishing an internal document of that kind could have devastating consequences .

As to the applicant 's argument that the public had the right to be informed of points of view which were at variance with the official NORP position , ORG considered that the applicant had in reality sought to report on a document whose style he found offensive . He could have started a public debate on the issue without contravening LAW . Lastly , ORG considered that this was not a matter of “ minor importance ” within the meaning of the third paragraph of that Article . By publishing the paper , the applicant had jeopardised NORP foreign policy .

In determining the amount of the fine , ORG took mitigating circumstances into account , notably the fact that the disclosure of the confidential document had not undermined GPE 's very foundations . In addition , the applicant had published the article with the approval of his editor and the newspaper 's legal department , and with the intention of starting an open debate on the subject .

The applicant lodged an appeal on grounds of nullity ( GPE ) , which was dismissed by ORG ) of the GPE of GPE on DATE .

The applicant lodged an appeal on grounds of nullity and a publiclaw appeal ( staatsrechtliche Beschwerde ) with ORG ( PERSON ) . He complained that a journalist could be convicted of an offence under LAW only in exceptional circumstances , namely if the secret published was of unusual importance and publishing it undermined the country 's very foundations . He referred to the public interest in the remarks made by the NORP ambassador and the role of journalists as watchdogs in a NORP society .

ORG dismissed the applicant 's appeals in CARDINAL judgments dated DATE ( served on DATE ) in which it upheld the decisions of the lower courts . ORG considered in particular that the applicant , in submitting that LAW should apply only to breaches of confidentiality in matters of major importance , was in fact requesting that the legislative provision in question be amended . That was not within the jurisdiction of ORG . Whether or not a fact was confidential depended not on the degree of public interest in the information , but on the content and subject matter of the fact in question .

Meanwhile , ORG PERSON ) had requested ORG ( ORG ) to examine the case .

ORG acts as a complaints body for media - related issues . It is an institution under NORP private law set up by CARDINAL associations of journalists which formed a foundation ( ORG ) to organise and fund the activities of ORG . According to ORG rules , its activities are intended to contribute to the discussion of fundamental ethical issues in relation to the media . Its task is to uphold freedom of the press and freedom of information , and it adopts opinions , on its own initiative or in response to complaints , on issues concerning journalistic ethics . ORG has adopted a “ Declaration on the rights and responsibilities of journalists ” which is available on the Internet .

Below is its opinion ( Stellungnahme ) of DATE concerning the present case ( no . CARDINAL , ORG ) ( translation ) :

“ II . Considerations

NORP With regard to the publishing of confidential information , the following extracts from the LAW on the rights and responsibilities of journalists are of relevance :

( a ) ' [ Journalists ' ] responsibility to the public [ shall take precedence ] over their responsibility ... towards the ... authorities ... in particular ' ( Preamble ) .

( b ) Journalists shall have free access ' to all the sources of their information and [ shall have the ] right to investigate without hindrance any facts which are in the public interest ; objections of secrecy in public or private matters may be raised only in exceptional cases , with sufficient reasons given in each case ' ( point a. of the LAW ) .

( c ) Journalists shall publish only ' such information , documents [ or ] images whose origin is known to them ; [ they shall not suppress ] information or essential elements [ and shall not ] distort any text , document , image ... or opinion expressed by another . [ They shall ] present unsubstantiated news items very clearly as such [ and ] make clear when pictures have been edited ' . They shall comply with reasonable deadlines ( point CARDINAL of the Declaration of responsibilities ) .

( d ) Journalists shall not make use of ' unfair methods in order to obtain information , ... images or documents ' ( point CARDINAL of the Declaration of responsibilities ) .

( e ) They shall respect ' editorial secrecy and shall not reveal the sources of information obtained in confidence ' ( point CARDINAL of the Declaration of responsibilities ) .

( f ) They shall not accept ' any favours or promises which might compromise their professional independence or their ability to express their own opinions ' ( point CARDINAL of the Declaration of responsibilities ) .

It must first be established whether diplomats ' reports come under the heading of vital interests . The federal authorities and those who share their point of view argue that these reports are highly sensitive and comparable to the negotiations conducted by ORG and the reports preceding such negotiations . These documents , they argue , merit greater protection than , for instance , expert reports or TIME of parliamentary committees . ORG and ORG can not form an accurate picture of international relations unless the ambassadors provide them with additional information , different to and more sensitive than that provided by the media . Diplomats also provide information they have obtained from confidential sources , behind the scenes or off the record . They need , for instance , to be able to express in plain language their views about violations of human rights and political relations in GPE , the involvement of leading NORP politicians in drug trafficking and the true picture with regard to the balance of power and intrigue in the ORG . If , despite everything , reports of this kind are published , the ambassador concerned will almost automatically be declared persona non grata in the host country . If reports of this kind were to be published on a regular basis , ambassadors would no longer be able to report on everything that was going on . That would have an adverse impact on NORP foreign policy , perhaps even paralysing it completely . And if everything were to be made public , GPE might just as well recall its diplomats and replace them with the media . In exercising their function as critic and watchdog , the media must always remain mindful of their responsibilities . This applies with particular force in the sphere of foreign policy , as the reports relating to foreign policy are also read abroad . If only for this reason , they are more sensitive than reports on domestic policy matters .

Conversely , the representatives of the media argue that the function of the media as critic and watchdog is much the same in the foreign policy sphere as in other spheres . The tendency to invoke the national interest is particularly marked where foreign policy is concerned . This happened in GPE in the case of the closure of the ORG agency and the revelations concerning the defects in the ORG CARDINAL tanks , and in GPE in the case of the Watergate and ORG scandals . However , NORP foreign policy is not a reserved area . When the media bow to the wishes of the Government , we are dangerously close to the kind of artificial neutrality we had during the Second World War . In all spheres , including foreign policy , it is argued , reforms occur only when the veil of secrecy is lifted .

ORG acknowledges the importance of the principle that diplomatic correspondence should remain confidential . In the past , the NORP media have observed that principle in substance and have not set out to expose the internal workings of diplomacy to public view . Revelations in the foreign policy sphere have been the exception rather than the rule in GPE . Media bosses are clearly aware of the responsibilities inherent in the media 's role as critic and watchdog in this sphere . At the same time , it should not be forgotten that revelations by the media in the field of foreign policy are commonplace in other countries , particularly in GPE , but also in GPE and GPE . Clearly , other governments and diplomats have long had to contend with this risk of revelations concerning foreign policy , and have learned to live with it . Whether they like it or not , the NORP authorities must also learn to adjust to a situation in which foreign policy is as much the focus of media attention as domestic policy , and in which revelations may come not just from the NORP media but also from foreign media . An approach which places confidentiality before the public interest in too rigid a manner is neither realistic nor legitimate , particularly since diplomatic reports are regularly forwarded to a large number of authorities .

There can be no doubt that the revelations in ORG and the TagesAnzeiger were a source of embarrassment and problems for those responsible for NORP foreign policy , but they did not restrict their room for manoeuvre substantially . Diplomatic reports are confidential in law , but when the conditions that allow confidential reports to be published are met , freedom of the press must take precedence ( Opinion CARDINAL/CARDINAL , ORG parliamentary questions ) .

ORG must now examine whether the content of Mr Jagmetti 's strategy paper is of such importance that it was appropriate to invoke the public interest , and whether it should have been published . In the view of PERSON , editor of ORG , the public interest lay in the fact that it was important to let people know how the NORP ambassador in GPE perceived the complex issue of the assets of the Holocaust victims and the way GPE was coming to terms with its past , and the kind of aggressive language he used . According to PERSON , his newspaper did not publish any leaked information unless the public interest was at stake . Although there were more leaks now than previously , they were not damaging in principle , and were often the only remaining means of putting a stop to harmful conduct . The representatives of other media also recognised the fact that Mr ORG 's paper was of public interest , as it shed important light on the PERSON affair . The television channels or the Tages - Anzeiger , for example , would have reported on the document in the same way had they happened on it first .

Those critical of the publication of Mr ORG 's paper , on the other hand , take the view that the public interest of information not intended for public consumption is invariably defined by the media themselves , and that other factors should be considered , such as confidentiality , personality rights , the national interest , the foreseeable consequences of disclosure and the motives and interests of those providing the information . In the present case , so the argument runs , Ambassador ORG 's report was of limited public interest , since prior to publication it had been a non - event , it was already DATE and it could not be made public without damaging NORP interests . In that respect , the ORG undermined NORP foreign policy in a foreseeable and serious manner which was not justified in the public interest . According to this line of argument , the ORG report should properly have been dealt with as a background document in the classic sense and should not have been published , either in full or in part .

From ORG standpoint , the next step is to assess the strategic importance of PERSON paper . PERSON set out in this document to make a perfectly reasonable analysis of the situation , making a number of constructive proposals . He explored CARDINAL ' extreme ' options DATE the first involving some kind of ' deal ' and the second involving a ' legal approach ' . The paper testifies to a fundamental concern to get at the truth , to find a generous financial solution and to protect NORP interests and the country 's good relations with GPE . However , it could not escape the attention of even the most casual reader that PERSON used very bellicose language and that he regarded his negotiating partners as adversaries who were not to be trusted and who might be amenable to some kind of deal . The language used betrays attitudes which are problematic even in an internal document , since attitudes are liable to be reflected also in negotiations and informal contacts . In that connection , PERSON was to have been engaged in important discussions concerning the assets of Holocaust victims during DATE of his tenure .

ORG is mindful of the fact that the degree of public interest of confidential information can not be determined in a wholly objective manner , but depends on the ideological , cultural , economic and advertising context in which the medium operates . Nevertheless , in the case of PERSON strategy paper , the public interest was clear , as the debate surrounding the assets of Holocaust victims and GPE 's role in the Second World War was highly topical in DATE and DATE and had an international dimension , and because the NORP ambassador in GPE was to occupy a prominent position in the forthcoming discussions . Knowing what that ambassador thought and how he formulated his opinions was relevant , and not a trivial concern . Leaving aside the question of the public interest and the relevance of the ambassador 's remarks , the publication of this supposedly confidential paper was justified from an ethical viewpoint , as only as a result of its publication did it become clear that those in charge still had no very clear idea , despite the creation of the task force , as to the question of NORP responsibility and what steps should be taken . From the perspective of political transparency , publication of the confidential paper , despite the fact that it was DATE and that in the meantime there had been talk of setting up a fund for Holocaust victims , might have spurred the Government on to overcome the problems , demonstrate leadership and devise convincing solutions .

Finally , it is necessary to assess whether the information was made public in the most appropriate form . According to CARDINAL school of thought , the media are in a position of power , since not only do they inform , they also suggest by the way in which they present the information how it is to be viewed . In the present case FAC , it is argued , presented an internal analysis of foreign policy in truncated form and , by publishing it alongside comments from third parties who had not seen the original text , planted in people 's minds the idea that Ambassador PERSON had “ insulted the NORP ” . The newspaper , by accusing PERSON of antiSemitism , started a rumour in an irresponsible manner . Reproducing the full text would not have placed PERSON under the same kind of pressure and would not have forced him to resign . The manner in which the information was published , therefore , was the source of problems and consternation .

The opposing school of thought argues that it is vital to analyse the salient points of Mr ORG 's remarks . According to ORG , there was no question of accusing Ambassador PERSON of NORP . Nevertheless , the newspaper 's editors have acknowledged off the record that it would have been wiser to publish the strategy paper in full . They maintain that , on DATE of publication , it would have been virtually impossible to add another page to the newspaper and that plans to publish the full text on the Internet were abandoned owing to technical problems .

ORG regards these arguments as spurious , and agrees with the criticism regarding the manner of publication . ORG did not make sufficiently clear that Ambassador PERSON had outlined several options in his strategy paper , of which the ' deal ' was just one . Nor did it make the timing of the events sufficiently clear , particularly since the document was already DATE and had reached the addressees before the interview given by the outgoing NORP President on the programme DATE / ORG . The newspaper unnecessarily made the affair appear shocking and scandalous and , by its use of the headline “ Mr PERSON insults the NORP ” , misled the reader and made it appear that the remarks had been made DATE . It was incorrect to assert that PERSON letter undermined the process which had begun in DATE , particularly since the document had been circulated beforehand and had not previously been in the public domain , and could not therefore adversely affect the talks with the country 's partners at home and abroad . When ORG attempted to contact Mr ORG on DATE in order to obtain a comment , and failed to reach him because he was in GPE , the newspaper 's editors should have considered whether it might not be wiser to delay publication by DATE so as to be able to publish an interview with PERSON alongside the extracts from his paper . The fact that publication went ahead in the next issue can only have been prompted by the fear of competition , which on no account constitutes sufficient justification for immediate publication . Hence , by publishing the strategy paper in the way it did , the ORG omitted vital pieces of information , in breach of the LAW on the rights and responsibilities of journalists ( point CARDINAL of the Declaration of responsibilities ) .

III . Findings

Freedom of the press is too fundamental a right to be made subservient as a matter of principle to the interests of the ORG . The media 's role as critic and watchdog requires them to make information public where the public interest is at stake , whether the source of information is freely accessible or confidential .

As to the publication of confidential information , the pros and cons must be weighed up carefully , with an eye to whether interests which merit protection are liable to be damaged in the process .

Internal reports by diplomats are rightly confidential , but do not necessarily merit a high degree of protection in all cases . The media 's role as critic and watchdog also extends to foreign policy , with the result that those in charge in the media may publish a diplomatic report if they consider its content to be in the public interest .

In the case of PERSON , the interest to the public of his strategy paper should be acknowledged , as should the fact that its publication was legitimate on account of the importance of the public debate on the assets of Holocaust victims , the prominent position occupied by the NORP ambassador in GPE and the content of the document .

NORP In this case FAC , in irresponsible fashion , by printing the strategy paper in truncated form and failing to make the timing of the events sufficiently clear , made PERSON views appear shocking and scandalous . The newspaper therefore acted in breach of the LAW on the rights and responsibilities of journalists ( point CARDINAL of the Declaration of responsibilities ) . The Tages - Anzeiger and LOC , on the other hand , placed the affair in its proper context by reproducing the document in its near - entirety . ”

Article CARDINAL of LAW , entitled “ Publication of secret official deliberations ” , reads as follows :

“ CARDINAL . Anyone who , without being entitled to do so , makes public all or part of the proceedings of an investigation or of the deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine .

Complicity in such acts shall be punishable .

The court may decide not to impose any penalty if the secret concerned is of minor importance . ”


CASE OF SHOLOKHOV v. ARMENIA AND MOLDOVA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing) (Armenia);Non-pecuniary damage - award

Alvina Gyulumyan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

In DATE the applicant , who was living in GPE at that time , suffered an injury at work , namely a spinal fracture , while working at FAC , a ORG - owned enterprise . He was recognised as a disabled person of the first degree , in need of constant nursing , and was granted a DATE disability allowance .

On DATE the administration of ORG acknowledged its liability for the accident and awarded the applicant DATE payments for life , equivalent to the difference between the disability allowance and the average wage .

On an unspecified date the applicant , who by that time had apparently moved to the NORP SSR , instituted proceedings in the local courts against FAC , seeking damages .

On DATE ORG of GPE ordered FAC to pay the costs of nursing : a lump sum of MONEY and DATE payments of MONEY for the period DATE and DATE , the latter being the date when the applicant was supposed to undergo his regular disability examination . On DATE ORG of ORG of the NORP SSR modified this judgment by decreasing the awarded sums to MONEY and MONEY respectively .

It appears that on an unspecified date the applicant was granted disability status for life , with PERCENT loss of capacity for work . It further appears that the ORG continued to make the DATE payments on a voluntary basis after DATE .

On an unspecified date in DATE the applicant instituted proceedings against ORG seeking further damages for the cost of supplementary medical care and extra nutrition .

On DATE the ORG of GPE granted the applicant ’s claims and ordered ORG to pay a lump sum of MONEY for the cost of supplementary medical care DATE , a lump sum of MONEY for the period between DATE and DATE and a lump sum of MONEY for the cost of extra nutrition for the period DATE and DATE ( hereafter “ the DATE judgment ” ) . ORG further ordered FAC to pay the applicant , with effect from the date of the judgment , MONEY DATE for supplementary medical care and extra dietary needs .

No appeal was lodged , so this judgment became final .

It appears that the factory stopped making DATE payments to the applicant starting from DATE .

On DATE ORG , which by that time had already been renamed ORG ” , was restructured into ORG of Yerevan Open ORG ( hereafter the Urartu OJSC ) and was subsequently privatised . According to the statute of the company , the Urartu OJSC was considered as a legal successor of ORG .

By a letter of CARDINAL DATE , the general director of ORG , PERSON , informed ORG that the factory had been experiencing financial problems and was not able to make the payments . The general director pledged to restart the payments notwithstanding these problems .

On DATE the Erebuni ORG of GPE , pursuant to the provisions of ORG , declared the GPE ORG bankrupt . On DATE the company was put up for auction and sold to a private person . On CARDINAL May and DATE respectively ORG declared the private person the new owner of GPE PERSON and concluded the bankruptcy proceedings by releasing the debtor company from repayment of any debts . The Urartu OJSC , in turn , adopted a new statute according to which it was not considered as a legal successor of any other company and was not liable for any other company ’s debts .

By a letter of DATE ORG GPE ( the ORG ) informed ORG of GPE ( the PERSON ) about the applicant ’s allegations of non - enforcement of the DATE judgment . Commenting on the fact that the GPE OJSC was experiencing financial difficulties , the ORG drew attention to LAW by an Injury , an Occupational Disease or Other Damage to Health Related to the Performance of their Professional Duties , signed in GPE on DATE ( NORP о взаимном признании прав на возмещение вреда , причиненного работникам увечьем , профессиональным заболеванием либо иным повреждением здоровья , связанные с исполнением ими трудовых DATE “ the FAC ” ) and asked the PERSON to inform it about the outcome of its inquiry .

By a letter of DATE the PERSON informed the ORG that , provided that the applicant submitted all the duly completed documents , it was prepared to forward these documents to the relevant court to have the judgment in question enforced as required under the agreements of ORG ( ORG ) .

On DATE the applicant submitted a letter to the ORG complaining , inter alia , about the non - enforcement of the DATE judgment and asking to have the arrears paid and the DATE payments resumed .

By a letter of DATE the ORG forwarded the applicant ’s letter to the PERSON .

On an unspecified date the applicant wrote to the PERSON , informing it that its request for duly completed documents must have been a misunderstanding since his complaints concerned the non - enforcement of a judgment adopted by the NORP courts as opposed to a foreign judgment .

The ORG addressed a letter to the PERSON on DATE with a similar content , attaching a copy of the DATE judgment and stating that all the requisite enforcement documents were in the possession of the NORP authorities .

By a letter of DATE the PERSON informed the ORG that it had applied to the ORG and ORG of GPE with an inquiry about the reasons for non - enforcement of the DATE judgment .

By a letter of CARDINAL DATE the PERSON informed the ORG that , on DATE , GPE PERSON had been declared bankrupt , sold to a third party by auction and that it was not considered as a legal successor of any other company and was not liable for any other company ’s debts .

On an unspecified date the applicant wrote to ORG and the PERSON stating that the above reply contradicted LAW which was to be applied in his case if PERSON had been liquidated .

On an unspecified date the applicant wrote to the PERSON , arguing that GPE OJSC could not be considered as liquidated and that , in any case , LAW was to be applied . In the same period he wrote to the ORG , complaining about its failure to react under Articles CARDINAL and CARDINAL of LAW to the non - compliance of the NORP authorities with LAW .

It appears that the applicant continued to complain to various authorities about the non - enforcement of the DATE judgment . By a letter of CARDINAL DATE ORG of GPE , in reply to the applicant ’s complaint addressed to the NORP parliament , informed him that , according to LAW of the Government decree no . CARDINAL of DATE which was no longer in force since DATE , in the event of liquidation of a company damage was to be compensated by the social security authorities with funds allocated from the ORG budget . The applicant could have applied to the competent authorities to obtain such compensation , which he had failed to do . Therefore the questions raised by the applicant in his complaint fell outside the competence of the administrative authorities . The applicant was advised to apply to the courts .

On an unspecified date the applicant instituted proceedings in the NORP courts against GPE ORG , alleging that the latter had stopped making any payments on DATE and seeking further damages for ( a ) the costs of medicine , ( b ) the costs of prosthetics and a wheelchair once DATE , ( c ) the costs of domestic services , ( d ) the costs of sanitary and health resort treatment , including the voucher and the travel costs for himself and an accompanying person , ( e ) the costs of bed linen , ( f ) the costs connected with the purchase of a vehicle , its major repairs and fuel , ( g ) the costs of physiotherapy , massage , rental of equipment , and the fees of an instructor and masseur , and ( h ) the costs connected with the purchase of accommodation and its maintenance . The costs under items ( ORG ) were claimed for the period DATE and DATE . The applicant submitted that he had applied to the management of GPE ORG with the above claims but had been refused .

On DATE ORG of GPE found GPE ORG to be the legal successor of ORG and granted the applicant ’s claims under items ( ORG ) , awarding him a total of MONEY , while rejecting his claim under item ( h ) ( hereafter “ the DATE judgment ” ) . This judgment was subject to appeal within DATE after its delivery .

On an unspecified date the applicant lodged an appeal , seeking to have his claims granted in full .

On DATE Mr PERSON also lodged an appeal , apparently in his capacity as the general director of the company .

On DATE ORG of ORG upheld the DATE judgment in the final instance .

It appears that the applicant , in the meantime , requested the ORG to assist him in the recognition and execution of the DATE judgment on the territory of GPE in accordance with ORG signed in GPE on DATE ( Конвенция о правовой помощи и правовых отношениях по гражданским , семейным и уголовным делам – “ the GPE Convention ” ) . It further appears that on DATE the ORG forwarded the applicant ’s request , including all the necessary documents , to the PERSON .

By a letter of DATE the PERSON informed the applicant that his request for the recognition and execution of the DATE judgment had been forwarded to the competent NORP court .

On DATE the ORG and ORG of GPE granted the applicant ’s request by recognising the DATE judgment and ordering its enforcement .

On an unspecified date Mr PERSON lodged an appeal against this decision .

On DATE ORG of GPE decided to dismiss the applicant ’s request . In this respect , ORG mentioned that , by the DATE judgment , the applicant was awarded DATE payments for medical care and extra nutrition , and quoted LAW ) of LAW .

On an unspecified date the applicant lodged an appeal on points of law , in which he argued that the subject matter of the DATE and DATE proceedings was different and that , in any event , the defendant had stopped making any payments on DATE .

On DATE ORG dismissed the applicant ’s appeal as unsubstantiated by upholding the findings of ORG . A copy of this decision was received by the applicant on an unspecified date after DATE .

On DATE the ORG addressed a letter to the PERSON seeking to find out the official position of the NORP authorities on the interpretation and application of LAW to the applicant ’s case and the possibility of an unbiased examination by an NORP court of the issue of the execution of the DATE judgment . It is not clear if there was any reply to this letter by the ORG .

According to LAW are an integral part of the legal system of GPE .

The relevant provisions of LAW provide :

“ This ORG covers enterprises , agencies and organisations of Contracting Parties ( including those of the former GPE ) irrespective of their form of ownership ( hereafter , the enterprises ) .

Compensation payments for damage caused to employees by an injury , an occupational disease or other damage to health related to the performance of their professional duties ( hereafter , compensation for damage ) are made to the employees who have previously worked at the enterprises , or in case of their death to persons entitled to compensation for damage , and who are nationals of and permanent residents in any of the Contracting Parties . ... ”

“ Compensation for damage caused to an employee as a result of an occupational injury , other damage to health ( including cases where the loss of capacity to work as a result of an accident at work connected with the performance of professional duties by employees occurs after the injured person has moved to ORG ) or death is paid by the employer of ORG whose laws were applicable to the employee at the time of the injury , other damage to health or death .

The employer responsible for causing damage pays compensation pursuant to the domestic law . ”

“ In case of liquidation of the enterprise responsible for damage caused to an employee and in the absence of a legal successor , ORG on whose territory the enterprise was liquidated guarantees compensation for damage to such employees pursuant to the domestic law . ”

“ A court of ORG on whose territory the action incurring a liability for damages has taken place , or a court of ORG on whose territory persons entitled to compensation for damage reside enjoy jurisdiction over the cases as provided for in the present Convention . ”

“ Disputes concerning interpretation or application of this Convention are resolved through negotiations between the Contracting Parties concerned and other generally accepted means , including conciliation commissions set up upon the request of CARDINAL of the Contracting Parties . ”

“ Issues not regulated by this Convention , including those related to its application , are examined by the competent authorities of the Contracting Parties . ”

The relevant provisions of LAW of the Minsk Convention , entitled “ Recognition and Execution of Decisions ” , provide :

“ ORG , in compliance with the requirements of this LAW , shall recognise and execute the following decisions adopted in the territories of other Contracting Parties : ( a ) the decisions adopted by institutions of justice on civil and family cases ... ”

“ CARDINAL . The request for authorisation of execution of a decision shall be filed with the competent court of ORG where the decision is subject to be executed . It can also be filed with the court which has decided on the case at first instance . That court shall forward the request to the court competent to decide on the request ... ”

“ CARDINAL . The request for recognition and execution of decisions envisaged by Article CARDINAL shall be examined by the courts of ORG in the territory of which the decision must be executed .

NORP The court , examining the request for recognition and authorisation of execution of a decision , shall limit itself to determining that the requirements of this Convention have been observed . If the requirements have been observed , the court decides to have the decision executed ... ”

“ The recognition of decisions ... and the authorisation of their execution may be refused if : ... ( c ) there has been previously a final decision adopted on the case in the territory of ORG , where the decision must be recognised and executed , involving the same parties , having the same subject - matter and on the same grounds ... ”

Section CARDINAL empowered the court to declare a debtor bankrupt .

Section CARDINAL § CARDINAL provided that the court shall decide to put a bankrupt debtor legal entity on sale through auction . According to sub - paragraph CARDINAL of the same Section , the purchaser of the bankrupt legal entity should not be liable for its debts .

Section CARDINAL provided that a court , upon conclusion of the court examination of a bankruptcy case , should declare the debtor released from paying all outstanding debts and it should be forbidden thereafter to institute court proceedings against the debtor seeking to recover such debts .

According to LAW of the Decree , which lost its effect on DATE , in the event of termination of the activities of a company in consequence of its liquidation or restructuring the damage caused to an employee as a result of a professional injury was to be compensated by the company ’s legal successor and , in the event of the absence of the latter , the social security authorities with funds allocated from the ORG budget .


Preliminary objections rejected (victim);No violation of Art. 8;No separate issue under P4-2

The applicant was born in ORG in DATE and lives in GPE .

The applicant lived in GPE from his birth until DATE with all the members of his family , his father and mother and his CARDINAL brothers and sisters .

On DATE he married an NORP national who , according to him , now has NORP nationality , and QUANTITY children of NORP nationality were born of the marriage .

Following his arrest for offences under drugs legislation ( cannabis resin ) in DATE , the applicant was sentenced on DATE to CARDINAL years’ imprisonment . On DATE ORG upheld the sentence and ordered the applicant ’s permanent exclusion from NORP territory .

NORP After both ORG and ORG had dismissed his application for the exclusion order to be lifted , the applicant submitted an application ( no . CARDINAL ) on DATE to ORG ( “ the Commission ” ) against GPE under former LAW . The case was referred to ORG on DATE , and by the ORG on DATE .

The exclusion order was enforced on DATE .

In a judgment of DATE , the ORG held that there had been a violation of LAW ( Mehemi ( no . CARDINAL ) , cited above ) . It found that the permanent exclusion order was disproportionate to the aims pursued . It found in particular that ( pp . DATE , § DATE )

“ ... in view of the applicant ’s lack of links with GPE , the strength of his links with GPE and above all the fact that the order for his permanent exclusion from NORP territory separated him from his minor children and his wife ... the measure in question was disproportionate to the aims pursued ” .

On DATE the applicant lodged an application for the exclusion order to be lifted with specific reference to the ORG ’s judgment of DATE .

By a judgment of DATE , ORG converted the permanent exclusion order into a DATE exclusion order , on the ground that an exclusion order limited in time no longer constituted a disproportionate interference with the applicant ’s rights under LAW .

The applicant appealed on points of law and applied for legal aid .

By a decision of CARDINAL DATE , the legal aid section of ORG took a provisional decision to grant legal aid . However it then rejected the application on DATE , on the ground that there were no genuine grounds of appeal .

ORG dismissed the appeal by a ruling of CARDINAL DATE .

On DATE the applicant lodged an application for a pardon which was rejected on DATE .

On DATE the applicant ’s lawyer wrote to the Minister for ORG asking what measures he intended to take following the ORG ’s judgment of DATE and under what conditions his client would be able to return to GPE . On DATE Mr GPE , Deputy Director of ORG at ORG , informed him that he had consulted the Minister of ORG , who had jurisdiction over the lifting of the exclusion order , and the Minister of the ORG , who had jurisdiction over the issuing of residence permits , and that he would shortly be replying .

On DATE Mr GPE sent the applicant ’s lawyer a letter which included the following :

“ Although the principle of res judicata precludes the authorities from issuing a residence permit to Mr ORG prior to the lifting of the order or the grant of the pardon , the NORP government wishes to put an early end to the interference with your client ’s family life as found by ORG . Accordingly it is willing to permit Mr Mehemi to return immediately to GPE , where he will remain subject to a compulsory residence order until either the exclusion order is lifted or he is pardoned .

The NORP consular services in GPE will be instructed to issue Mr ORG with a visa as soon as he requests CARDINAL . ”

The applicant ’s lawyer wrote to Mr GPE on CARDINAL , DATE and DATE to ask whether there had been any developments . In his last letter , he noted that the applicant had been to the NORP embassy in GPE several times but had been told that he could not be issued with a visa unless the appropriate instructions had been received . He also asked what steps needed to be taken to make sure that the visa was issued , lamenting the fact that the applicant had still not been able to return to GPE and observing that , on the basis of what the applicant had found out from the NORP embassy in GPE , the officials concerned seemed to be “ passing the parcel ” from CARDINAL service to another .

No visa having been issued by DATE , the applicant ’s lawyer , after a number of letters and telephone calls , sent a fax on DATE to ORG in GPE of ORG . By a letter dated DATE , that ORG informed him that the applicant ’s particular circumstances required a special visa to be issued which needed the Minister of the Interior ’s prior consent , and that had not been forthcoming . On DATE the ORG sent the lawyer a fax worded as follows :

“ Reference : situation of Mr PERSON

I refer to your fax of DATE , my fax of CARDINAL DATE , and your fax of DATE .

As soon as you were kind enough to send me a copy of your client ’s passport , the NORP Visa Section referred the matter to the appropriate services of ORG .

For the name of the person dealing with this file , I suggest that you contact ORG of ORG who will be able to give you the necessary information . ”

On DATE the NORP Visa Section informed the lawyer that it had just received the Minister of the ORG ’s consent and that instructions had accordingly been given to the consulate in GPE .

Having obtained a special visa on DATE , the applicant returned to GPE DATE . On DATE Mr GPE sent the applicant ’s lawyer a letter worded as follows :

“ As you are no doubt aware , our Consulate General in GPE issued a visa to Mr Mehemi on DATE . ORG will be subject to a compulsory residence order in GPE until the exclusion order against him is lifted or he is pardoned .

ORG return to GPE thus brings this matter to a satisfactory conclusion , in accordance with the judgment of ORG . ”

Meanwhile , on DATE , the Minister of the ORG had issued an order requiring the applicant to reside in the Rhône département , in a place to be determined by the prefect . It included the following passage :

“ Whereas Mr PERSON was permanently excluded from NORP territory by a judgment of ORG on DATE ...

Section CARDINAL : NORP Until such time as he is able to comply with the order permanently excluding him from GPE , the above - mentioned person shall reside where required to by the prefect of the Rhône département .

Within the territory of this département , he shall periodically report to the police or the gendarmerie .

Section CARDINAL : NORP The prefect of the Rhône département shall be responsible for serving and enforcing this order . ”

The order was served on the applicant in person on DATE at TIME The notice accompanying the order listed the possibilities of appeal . Further to that order , the prefect of the Rhône département issued an order dated DATE requiring the applicant to reside in the precise area of the LOC city district ( arrondissement ) and to report DATE to the police station at ORG where he was then living .

The applicant was subsequently issued with a provisional residence permit for DATE dated DATE and expiring on DATE . The permit stated that he was authorised to pursue an occupation and was required to reside in the Rhône département by ministerial order of DATE and prefectoral order of CARDINAL DATE . The provisional residence permit was then systematically renewed when it was about to expire , on DATE until DATE , on DATE until DATE , and on DATE until DATE . It was last extended on DATE .

On DATE the applicant ’s lawyer asked the prefect of the Rhône département to issue the applicant with a DATE residence permit , on the ground that the exclusion order had expired ( see paragraph CARDINAL below ) . Not having received a reply , he sent another letter to the prefect on DATE in which he construed the lack of response as an implied refusal and asked the prefect to state his reasons .

On DATE the Minister of the ORG issued an order revoking the ministerial residence order of CARDINAL DATE against the applicant . The revocation order stated among other things that “ the permanent exclusion order made initially by ORG on DATE , which was reduced to DATE by a judgment of DATE , is deemed to have expired on DATE ” .

On DATE , the minister sent a certified copy of the revocation order to the prefect for ORG , the prefect of the Rhône département , requesting him to serve it on the applicant with a “ very formal warning ” . He also requested the prefect to issue the applicant with a residence permit valid for DATE endorsed with the mention “ salaried ” . The minister enclosed a letter addressed to the applicant , which included the following passage :

“ Following a fresh examination of your file , I have decided by order of DATE ’s date to revoke the order for your compulsory residence in the Rhône département made on DATE , so that you may live peacefully on NORP territory .

I wish however to warn you formally that if you again fail to abide by our laws and regulations , that will indicate that you are still a threat to public order . I would then ask the prefect for ORG , the prefect of the Rhône département , to make the necessary arrangements to bring expulsion proceedings against you . ”

By a letter of DATE , the prefect informed the applicant ’s lawyer of both the revocation of the ministerial order and the proposed ministerial warning . The police served the DATE revocation order on the applicant on DATE , and he was also invited to go to the prefecture in order to formalise his administrative status .

The applicant went to the prefecture on DATE . His application for a DATE residence permit endorsed with the mention “ salaried ” was registered and he was issued with a receipt for the application .

NORP In reply to the letter of DATE , the prefect reminded the applicant ’s lawyer of the decisions served on the applicant on DATE . He added :

“ Mr Mehemi went to the prefecture on DATE in order to apply for a DATE residence permit endorsed with the mention ‘ salaried’ .

Pending the issue of his renewed passport , he has been given a receipt valid for DATE endorsed with a work permit .

On presentation of that document , I shall issue him with the above - mentioned residence permit . ”

On DATE the applicant was issued with a new receipt for a residence permit application valid until DATE . On DATE , a new receipt valid until DATE was issued .

On DATE the applicant went to the prefecture again , still without his passport , which had not yet been renewed by the consular services in GPE . His residence permit was extended until DATE .