The applicant , PERSON , is a NORP national , who was born in DATE and lives in Skive , GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE .

The present proceedings concern essentially the NORP authorities’ decision on DATE to authorise , without the applicant ’s consent , the adoption of her daughter PERSON by her foster parents and their refusal to grant the applicant a right to regular access . They are a sequel to the case which the ORG decided in its judgment of DATE , Reports of Judgments and Decisions PERSON ( hereinafter referred to as “ PERSON I ” ) . That case concerned in the main the compulsory taking into care by the NORP authorities of the applicant ’s daughter PERSON shortly after her birth in DATE , their subsequent refusal to terminate the care order and the deprivation of the mother ’s parental rights and access . In its judgment the ORG held , inter alia , unanimously that neither the care order nor the fact that it remained effective gave rise to a breach of LAW ; and by CARDINAL votes to one that the local ORG Røa ’s ( “ the ORG ” ) decision of CARDINAL DATE , in so far as it deprived the applicant of her access and parental rights in respect of her daughter , constituted a violation of LAW . As regards the case now under consideration it is important to note that the finding of a violation was confined to that decision and that the ORG did not express an opinion on the question of PERSON ’s adoption by her foster parents , which had not yet been decided by the national authorities .

For the background to this case the ORG refers firstly to Part I of PERSON I ( pp . CARDINAL - CARDINAL , § § DATE ) .

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

Pending the outcome of the aforementioned proceedings before ORG in the PERSON I case , GPE ( fylkesmannen ) of GPE and ORG suspended the processing of an application for the adoption of S. that had been made by her foster parents on DATE .

Following the ORG ’s judgment of CARDINAL DATE , the applicant was informed in DATE that the adoption proceedings would resume . A psychologist , PERSON , was commissioned to carry out an investigation . On the basis of her report of DATE , a request for authorisation to adopt was submitted to ORG ( fylkesnemndea- hereinafter “ the ORG ” ) . The matter was discussed in DATE and again in DATE , before a differently composed ORG . Before the ORG the applicant recognised that PERSON was in a good foster home and that would grow up there but opposed adoption . She said that she wished to have contact with her daughter and feared that , in the event of adoption , the decision would be left to the foster parents . She was not confident that they would allow her the necessary contact and so requested access .

On DATE ORG decided to authorise adoption of the child by her foster parents . It found no reason to take any decision on the applicant ’s access to S. until after the adoption , which was to be arranged as soon as possible .

Under section CARDINAL of the DATE LAW ( lov om barneverntjenester ) , where a child had been taken into compulsory care and where the parents had been deprived of their parental responsibilities for it , ORG was empowered to authorise adoption if ( CARDINAL ) it was likely that the parents would be permanently unable to provide suitable care or ( CARDINAL ) the child had become so attached to persons and his or her environment that serious difficulties would result if he or she were to be removed , provided that adoption was in the child ’s best interests and the foster parents had shown that they were able to raise the child as their own .

In the absence of an updated assessment of the applicant ’s suitability as a carer , ORG proceeded on the assumption that she was not permanently unable to provide care . It focused its consideration of the adoption issue on the criterion mentioned under item ( CARDINAL ) above , that is to say whether PERSON ’s attachment to persons in her current environment meant that her removal would lead to serious difficulties for her .

ORG was satisfied that the foster parents were clearly suitable as carers for S. It emphasised that PERSON , who was then DATE , had lived in the foster home practically all her life . She was old enough to be fully conscious of her foster parents being her only parents and of her own growth ; which suggested that she should live with the foster parents until she reached maturity . While there were no social ties between PERSON and the applicant , there were clear ties between her and the foster parents whom she perceived as her psychological parents . If she were to leave the foster home , it was most uncertain that she would be able to establish basic ties with new carers , as such ties normally developed before DATE . Removing her from the foster home was likely to entail serious difficulties for her , with an acute separation crisis , and traumatic despair and insecurity . Thus ORG considered that the second ground for adoption was fulfilled and the applicant did not dispute that . Nor did she request that PERSON be returned to her . What she did not seem to accept was the definitive character of an adoption , which suggested that she might wish to seek to be reunited with the child later .

Adoption would moreover be in PERSON ’s best interests . S did not consider herself a foster child and thus had a very strong attachment to her foster parents . However , the fact that she had not yet been adopted seemed to have caused a feeling of insecurity , both on her own part and on the part of the foster parents . As pointed out by the experts , the need for security was a weighty argument for preferring adoption to continued foster care . A lifelong attachment to her foster family would offer a number of advantages to S. later in life .

ORG did not reject the applicant ’s wish to have access . It emphasised that the child would soon need to become familiar with and have contact with her biological mother . This was a process that needed to take place over time but should start immediately . For the time being it was not advisable to arrange for regular access . The experience of the first contact would necessarily be an important guide for determining how access should be arranged in the future . While S. would probably enjoy having contact with her biological mother and CARDINAL - siblings , that contact could in no way compensate for a loss of a sense of belonging to the foster family . ORG was confident that the foster parents would exercise appropriate discretion in facilitating access once the child was ready to meet the applicant and would seek the assistance of the child care authorities . Adoption clearly was in the child ’s best interests , which outweighed the mother ’s interest in enjoying a right of access .

On DATE the applicant instituted proceedings before ORG ( byrett ) , requesting it to set aside ORG administrative decision as being unlawful . On DATE the County Governor authorised adoption but the matter was subsequently suspended pending the outcome of the judicial proceedings .

The first meeting between PERSON and the applicant took place on DATE . During the meeting , the applicant did not call S. by her current NORP name but by the name she had given her at birth . The applicant told her that her brothers and sisters missed her and asked her to come to live with them in GPE . She gave PERSON a letter from her younger brothers and sisters in which they also asked her to come to live with them and which enclosed CARDINAL of a piece of jewellery that would be joined together with CARDINAL and hung up on the wall when she came home to her mother in GPE .

Later the foster parents noted that S. experienced nightmares in which she dreamed of losing her mummy and daddy ( the foster parents ) . She frequently complained of headaches , which she had not done previously .

In DATE S. ’s feelings of insecurity were reinforced when the applicant was observed in the company of another person near ORG school and home asking pupils at the school if they knew where she was . The applicant had also rung the doorbell of NORP foster father ’s house , but no one had been at home . The applicant had been observed by a neighbour who had recognised her from a television interview she had given DATE before in connection with questions that had been put in relation to the case during question time in the ORG ( ORG ) . Following that incident , PERSON had said that she was frightened that the applicant might come and take her away . During the school breaks she no longer dared to be outside . She refused to go to bed at TIME unless one of her foster parents sat with her , she had frequent nightmares and was afraid of falling asleep .

During DATE , PERSON expressed the wish to meet her younger CARDINAL - siblings and her older CARDINAL - brother , D , on her mother ’s side . She was particularly interested in meeting NORP , but did not wish to meet her biological mother again . The meeting took place on DATE . D was not present . S. was not told beforehand that he would be absent , but the meeting with the CARDINAL - siblings was held nevertheless . S. accepted the applicant ’s presence on condition that a psychologist of the child care services , PERSON , accompanied her . The meeting itself took place at a preventive centre , “ ORG ” and went well , except that PERSON was still called by her former name and the CARDINAL - siblings persisted in asking her to come to their home in GPE .

TVCARDINAL had secretly filmed the children outside afterwards , having been informed of the event by a person acting on behalf of the applicant . S. had not been aware of this and was very upset when the recording was shown on television that TIME .

By a judgment of DATE ORG : ( CARDINAL ) upheld ORG decision of DATE to authorise adoption and to refuse access pending a final decision on adoption ; ( CARDINAL ) dismissed the applicant ’s requests for a declaratory judgment ( fastsettelsesdom ) that she had parental responsibility for PERSON and rights of access , for an order restoring parental responsibility and care to her and for the case to be transferred to another child welfare office .

By a further decision of DATE ORG also dismissed a petition by the applicant for a provisional grant of access and for a stay of execution of ORG decision of DATE .

On DATE the applicant appealed against the above judgment and decision to ORG . On DATE it dismissed the applicant ’s appeal against ORG dismissal of her claims under item ( CARDINAL ) above , but allowed the remainder of the appeal to be heard , including the issue whether the applicant should have access in the event that adoption was refused .

Subsequently , the applicant brought various proceedings , notably before ORG on DATE claiming that the parental responsibilities for S. were vested in her and that she was entitled to access . On DATE ORG dismissed the latter application but agreed to hear the former . In addition , the applicant made an unsuccessful attempt to discontinue the appeal proceedings before ORG .

In the appeal against the ORG ’s decision of DATE ORG , sitting with CARDINAL professional judges , CARDINAL expert lay judges and CARDINAL other lay judges , held an oral hearing CARDINAL September CARDINAL . The applicant and PERSON ’s father , who were both represented by counsel , were heard , as were the social authorities . A senior child - welfare officer , PERSON , appeared as an expert witness . CARDINAL other witnesses were heard and documentary evidence was adduced , including a revised report by the psychologist PERSON of DATE . In a separate room the judges took a statement from PERSON record was made available to the parties .

In its judgment of DATE ORG upheld by CARDINAL votes to CARDINAL ORG judgment regarding adoption and unanimously decided not to take any decision on access pending a final decision on adoption .

ORG first interpreted the ORG ’s PERSON I judgment and noted that the finding of violation concerned only the ORG ’s decision of CARDINAL DATE to deprive the applicant of access and parental responsibilities and did not encompass subsequent decisions by the national authorities on the subject . ORG proceeded on the assumption that the deprivation of parental responsibilities was lawful .

It then went on to examine whether the other conditions for adoption under section CARDINAL - CARDINAL of LAW were fulfilled , pointing out that the assessment ought to be based on the situation obtaining at the time of the judgment and what would be in the child ’s best interests in the long run . In that regard , ORG , supported by expert evidence , made inter alia the following observations :

“ It is not disputed that as at DATE [ the applicant ] is capable of caring for her child . Consent to adoption may however be granted if consideration of the best interests of the child so indicates .

S. is DATE . For DATE she has lived with her foster parents . She is naturally strongly attached to them and to their family , and is fond of them . S. regards the foster parents as her parents and there can be no doubt that they are her psychological parents . PERSON states clearly that she wishes to continue living with her parents . ORG considers it completely inappropriate to move PERSON to [ the applicant ] against S. ’s will . [ The applicant ] also seems to accept this . ORG also finds it extremely unlikely that PERSON would wish to move from her foster parents to GPE before she reaches the age of majority . The child ’s attachment to her foster parents , their family and the environment she knows in GPE is too strong for that , in addition to which she currently has feelings of antagonism against her biological mother . On the basis of the extensive evidence that has been presented , ORG is in no doubt that these are PERSON ’s own feelings and that she has not been influenced to feel this way . ...

The High Court finds no reason to doubt that S. ’s foster parents have proved well suitable to bring up S. as their own child . On the basis of the case documents and testimonies from , among others , the child welfare authorities and the expert witnesses who have had contact with the foster parents , ORG is confident that the foster parents have provided PERSON with a secure and caring upbringing . This impression was strengthened through the examination of the foster parents in court and through the ORG ’s conversation with S.

The foster parents have lived in separate houses since DATE . ORG finds that they are still in frequent contact with each other , and that they see each other several times a week . The ORG finds furthermore that they sometimes stay TIME in each others’ homes , have contact with each others’ families and spend DATE and DATE excursions together . They both say that they are fond of each other but that , partly owing to the strain that the case has been for them , have felt a need to be alone . They are unsure about the future . They report that they have attempted to make permanent arrangement as to where PERSON is to live , but have gradually abandoned such arrangements . S. now moves freely between the houses and stays TIME where it is most convenient for everyone . Neither the foster parents nor PERSON have said that this gives rise to any problems .

A rupture between parents usually creates problems for the children . However , the amount of strain involved is usually dependent on how the parents handle the situation in relation to the children and on whether there is a high level of conflict between the parents . ... S. reacted negatively to the situation at first . ... However , as a result of the way the parents tackled the problems and the apparent lack of conflict , as well as the close contact that the parents still have between themselves and together with PERSON , she seems no longer to regard this as a major problem DATE . She hopes , naturally enough , that the foster parents will move together again , which she demonstrates , for example , by insisting on moving out of her mother ’s room and leaving the double bed to her father when he stays TIME there . ORG finds that PERSON does not currently regard the fact that the parents live apart as a major problem , but that it is an arrangement she would prefer to be otherwise .

In the assessment of ORG , the way the foster parents have tackled the care of S. in the situation to date indicates that they would also be suitable to bring up S. in the future , even if they should decide for a permanent separation possibly involving new partners .

The foster parents are not separated . The High Court finds it to be clear that the foster parents , in the sense intended by LAW , are to be regarded as a married couple . Their formal relationship should thus , pursuant to LAW , not preclude their joint adoption of S ....

By means of its brief conversation with PERSON , ORG has received confirmation of the impression given by the remaining evidence in the case of a girl who , during DATE or CARDINAL , has developed considerable personal problems . She expresses insecurity and fear , and begs to be listened to . She wishes to be a normal girl . She wants no more court cases . She wants to continue living with her foster parents and feels encroached upon by [ the applicant ] and her children . S. has no clear understanding of what adoption really entails . When she has stated that this is what she wants , in the High Court ’s assessment , this is an expression of her perception of adoption as an arrangement that would ensure that she be allowed to continue living with her foster parents without needing to fear that [ the applicant ] can demand that she move to GPE . She perceives adoption as a guarantee of peace and quiet , allowing her once to live like a normal child .

The High Court finds that it is S. ’s relationship to her biological mother and the judicial proceedings which are the cause of her problems DATE . The emergence of [ the applicant ] has given S. a feeling of insecurity that she has difficulty in tackling . S. was at first curious to meet her biological mother . For some time , she had accustomed herself to the idea that her foster mother was not her biological mother . This process seems to have been supported and encouraged in a constructive way . The foster parents knew that this situation would arise and had already made contact with specialists to obtain advice about how best to handle it . Naturally enough , PERSON was motivated by her interest and curiosity to see the mother who had given birth to her . In the view of ORG , PERSON had no idea that this meeting might manifest itself as a threat to the life she lived with the people she regarded as her parents and their family , her home , school , friends , etc ....

The [ first ] meeting [ held on DATE ] must have been difficult for both parties , and [ the applicant ] ’s actions can be explained by the loss she had felt for DATE and by the fact that she had been informed TIME before the meeting that the daughter [ bore a different NORP name ] . However , the ORG is in no doubt that the meeting was unfavourable for the relations between mother and daughter . PERSON was unprepared for the discovery that her mother did not want her to continue living with the foster parents and that she was apparently not accepted as ORG does not find it difficult to understand that PERSON was polite to [ the applicant ] during the meeting and said that she would like to visit her in GPE . The girl was DATE . She was alone with her mother for the first time and , in this situation , would hardly want to hurt her mother ’s feelings or oppose her directly .

[ The applicant ] has explained that , in her struggle for her daughter , she has been obliged to use all means at her disposal , including the media , to promote her case . This may explain her way of acting but , in the view of ORG , also shows her lack of ability or willingness to understand that the media coverage had a negative and stressing effect on PERSON , who was recognised by fellow - pupils , neighbours etc . , and who was reminded of what she experiences as an insecure situation . The media coverage was the main reason why PERSON changed schools in DATE . Thus , [ the applicant ] ’s struggle for what she regards as fair treatment has caused S. to suffer . [ The applicant ] fails to acknowledge that S. reacts negatively to this .

[ The applicant ] has clearly stated that her aim is that S. shall come to live with her in GPE and has demonstrated that she intends to employ all procedural means available in order to achieve this . In ORG assessment , PERSON will be the loser in this process . She feels that her whole identity and existence are threatened and challenged , which makes her frightened , unhappy and insecure . S. is DATE and is entering puberty . ORG is convinced that she will suffer if the proceedings around her and [ the applicant ’s ] struggle to get her back with her to GPE do not end .

In the further assessment , ORG is divided into a majority [ all CARDINAL professional judges , both expert lay members and CARDINAL lay member ] and a minority [ CARDINAL lay member ] .

The majority [ CARDINAL to CARDINAL ] holds the view that new actions must be expected from [ the applicant ] unless adoption is authorised . A typical example is the civil action that has now been brought before ORG in which [ the applicant ] claimed that she holds parental responsibility . In addition , claims for access , etc . must be expected . Consent to adoption will put a stop to this development . Orderly conditions can only be achieved by allowing the foster parents to adopt S. The legal proceedings for ORG return will then be discontinued ...

The majority holds furthermore the view that adoption would best ensure continued contact between PERSON and [ the applicant ] and her CARDINAL - siblings . The foster parents have stated that they regard it as important for S. that such contact be maintained and developed . However , their condition is that it should take places on LOC ’s own terms . The majority perceives that the foster parents sincerely mean this , and that they feel it is in PERSON ’s best interests to have such contact . They have themselves expressed the view that any hindrance to contact them would have a negative effect on S. ’s relations with them in the long term . As an adoptive child , PERSON will have nothing to fear from [ the applicant ] . She will then know that it has been decided that she shall live with her adoptive parents , and that [ the applicant ] can not do anything about it . The majority of the High Court regards it as natural and probable that PERSON , within this framework , will gradually come to want more contact with her family in GPE . If , on the other hand , consent to adoption is not granted , S. would continue to regard [ the applicant ] as a threat to her own existence and life situation and would be unwilling to have further contact with her . ...

On the basis of an overall assessment , the majority of ORG considers that it will clearly be better for PERSON to be adopted by her foster parents than to grow up as a foster child .

On the basis of the majority ’s assessment , ORG judgment , in so far as it applies to consent to adoption , is upheld .

Affirmation of ORG judgment entails that the High Court shall not decide on access .

A unanimous ORG holds the view that access should not be decided until a legally enforceable judgment has been passed . S. does not wish access arrangements to be made with [ the applicant ] at present . She has major problems and needs to be left in peace . In the assessment of ORG , forced access with [ the applicant ] in such an interim period would have a disturbing effect on PERSON and reinforce the insecurity she feels as a result of the court cases . Access during the period until a legally enforceable judgment is passed is thus not regarded as being in PERSON ’s best interests . ”

The applicant sought to appeal against the above judgment to ORG , requesting a declaration that ORG decision of DATE was null and void and an order granting her regular access . On DATE ORG of ORG refused the applicant leave to appeal , holding that the appeal manifestly had no prospects of success .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 5-1-f;Violation of Art. 5-4;Violation of Art. 5-3;Violation of Art. 13+3;Not necessary to examine Art. 13+5;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

The applicant is a citizen of GPE and GPE . He was born in DATE and currently resides in GPE .

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

The applicant was employed as an accountant in ORG of GPE . On DATE the applicant was registered at FAC in GPE as a NORP citizen residing in GPE , and on DATE he was issued a NORP passport ( no . CARDINAL N CARDINAL ) . In DATE the applicant resigned and , with his wife and son , born in DATE , moved to GPE to apply for a PhD course .

On DATE the Prosecutor General of GPE sent a request to ORG to detain and extradite the applicant on criminal charges . The request was made on the basis of FAC on legal assistance and legal relations in civil , family and criminal cases ( the DATE Minsk Convention ) . In GPE the applicant was charged with large - scale embezzlement of state property , committed through abuse of power . In particular , the request stated that in the period DATE and DATE the applicant had transferred financial assets to the value of MONEY from the correspondent account of ORG in ORG ( GPE - am - Main , GPE ) to ORG GPE ) , ORG , GPE ) and to ORG ( GPE , GPE ) . The assets had later been withdrawn from the accounts and not returned to GPE . Criminal proceedings were instituted against the applicant in GPE . On DATE a warrant for his arrest had been issued by a prosecutor and he had been put on the wanted list .

On DATE the applicant was arrested in GPE pursuant to an order of ORG and placed in the temporary detention ward of ORG of the ORG ( изолятор временного содержания ORG г. GPE ) .

On DATE the applicant 's lawyer , PERSON , submitted a complaint to ORG ( ORG ) . She argued that the applicant should not be extradited to GPE because he was a NORP national . She referred to the relevant provisions of LAW , LAW , LAW ORG ) and the DATE Minsk Convention , none of which allowed extradition of a NORP national to another jurisdiction . The complaint referred to human - rights reports on the situation in GPE , which gave rise to a well - established fear that torture and other forms of inhuman or degrading treatment would be used against the applicant . She also stated that , as the applicant could not be legally extradited , on account of his NORP nationality , his detention for that purpose was unlawful .

On DATE FAC ( “ LOC ) , a NORP NGO , contacted ORG about the applicant 's detention and possible extradition to GPE . It referred to the applicant 's NORP nationality . It further referred to the situation in GPE and , in particular , to the absence of fair - trial guarantees and the lack of impartiality and independence of the judiciary . It referred to the facts that in GPE arrest warrants were signed personally by the President of GPE and were not subject to any review , that the sentences given in all politically important cases were pre - determined and that the use of torture was widespread . On CARDINAL and CARDINAL PERSON issued press releases concerning the applicant 's case . It stated that the applicant was being persecuted in GPE in connection with a politically motivated case against the former deputy head of ORG , who had been accused by the President of financing the opposition and embezzling state funds , and who had fled GPE in DATE . PERSON gave details of the persecution of the employees of ORG and their relatives , including the arrest of the applicant 's mother , sister and uncle and confiscation of their property .

On DATE Mr PERSON , a member of ORG , sent a letter to the head of ORG concerning the applicant 's case . He reminded the official of the applicant 's NORP nationality and referred to the risk of torture and to the lack of fair - trial guarantees if the applicant were to be extradited to GPE .

On DATE the applicant was transferred to a pre - trial detention centre ( учреждение ИЗ CARDINAL/CARDINAL ) .

On DATE the chief assistant to ORG issued an order for the extradition of the applicant to GPE . This order was approved by ORG on DATE . The applicant and his lawyers were not informed of the order at the time and did not receive a copy of it .

On DATE the applicant was extradited to GPE . The applicant submitted that , early in the morning , he was taken by the officers of the ORG to FAC and brought to the premises of ORG . There he was briefly shown a copy of the decision of ORG to extradite him . The officers of the NORP law - enforcement bodies brought him to the plane through the border control , where he was not required to show a passport . The applicant demanded a meeting with his lawyer , but this was refused .

The Government referred , in their memorials , to the information obtained from the ORG , according to which the applicant had been escorted to the plane by the officers of ORG . The applicant had not applied to the escort with a request for a meeting with his lawyer , and in any event the escort was not authorised to deal with detainees ' complaints . The Government confirmed that the applicant had seen the decision to extradite him on DATE .

On CARDINAL and DATE the applicant 's lawyer submitted complaints to ORG . She challenged the lawfulness of the applicant 's detention in view of his NORP nationality and the lack of grounds for his extradition . In her second complaint she also referred to the decision of ORG to extradite the applicant and stated that the applicant had neither been officially informed of the decision nor received a copy of it .

On DATE a judge of ORG replied to the applicant 's lawyer 's complaint of DATE in a letter stating that the complaint concerning the lawfulness of the applicant 's detention should have been submitted to a competent district court . He further said that the complaint did not raise the issue of lawfulness of the decision to extradite , but that in any case a review should take place in the presence of the person who was to be extradited . Since the applicant had been already extradited to GPE on DATE , he could not take part in the proceedings . On CARDINAL DATE the same judge replied to the lawyer 's complaint of CARDINAL DATE stating that the complaint about the unlawfulness of the decision to extradite could not be reviewed in the applicant 's absence . The applicant 's lawyer appealed to ORG .

On DATE the ORG replied to the applicant 's lawyer stating that the decision to extradite had been taken pursuant to the request of ORG in relation to a criminal charge and was in conformity with international law .

On DATE ORG requested information from the Government , under Rule CARDINAL § CARDINAL ( a ) of ORG , concerning the applicant 's detention and extradition to GPE , and asked whether his claims that he might be subjected to treatment contrary to LAW had been reviewed by a competent national authority .

On DATE ORG reviewed the lawyer 's complaint of CARDINAL DATE . It found that the decision to extradite the applicant had been unlawful in view of his NORP nationality , proof of which - a copy of his NORP passport - was contained in the case file . ORG further found that the decision had not been officially served on the applicant or his lawyer , as a result of which he had been deprived of the possibility to challenge it under the national law . The applicant 's detention was also found to be unlawful . No appeal was lodged against this decision , which became final on DATE .

On DATE the First Deputy to ORG applied to ORG of GPE seeking to establish that the applicant had fraudulently obtained NORP nationality . The application was directed against ORG , ORG in GPE and the applicant himself . The prosecutor submitted that the applicant had obtained NORP nationality as the spouse of a NORP national , pursuant to the relevant provisions of LAW , and had submitted to ORG a copy of the marriage certificate of DATE . However , the marriage had allegedly been dissolved by a district court in GPE , GPE , on DATE and that ruling that had become final on DATE .

On DATE the ORG found that the applicant had submitted fraudulent information to FAC . The court refused to nullify the applicant 's NORP nationality , since a decision of this nature could only be taken by the President of GPE . Neither the applicant , nor his wife nor his lawyer was informed of the proceedings or present at the hearing .

Having learnt of the proceedings , the applicant 's lawyer appealed against the decision to ORG on DATE . She challenged the authenticity of the GPE district court 's ruling , which had been accepted as the basis of the decision . She submitted a statement from the applicant 's wife in which she categorically denied the divorce . Reference was also made to the fact that the applicant , his wife and his lawyer had not been informed of the proceedings and had taken no part in them .

On DATE ORG in GPE , acting also on behalf of ORG , submitted a request to ORG to reinstate the DATE time - limit for appealing against the decision of DATE , because the decision had been delivered to them on DATE . On DATE the ORG reinstated the term . In its appeal the ORG submitted that the decision of the court was based on a wrong interpretation of NORP family law and that the court decision on divorce was not final . They further stated that the applicant had been deprived of the opportunity to participate in the court hearing . At the relevant time he had been detained in GPE and FAC had been denied access to him , in violation of the relevant international treaties . They referred to Articles DATE and CARDINAL of LAW .

On DATE the ORG quashed the decision of DATE because measures had not been taken to guarantee the applicant 's participation in the proceedings . The case was remitted to ORG .

On DATE , on an application by the ORG , ORG terminated the proceedings concerning the allegedly fraudulent acquisition of NORP nationality , due to a change in circumstances . The decision became operative on DATE .

The applicant submitted an account of his detention in GPE in a letter of CARDINAL DATE . He stated that once he arrived in GPE he was brought to the office of ORG and questioned for TIME . He was refused water and cigarettes and threatened with torture and reprisals against his family . During the questioning he was hit on the head and back , the effects of which lasted for DATE . The applicant denied the charges brought against him .

He was then taken to the pre - trial detention centre of ORG . He described the conditions as follows : CARDINAL people were detained in a cell measuring QUANTITY , they were each given a plate of food twice a day , there was no toilet in the cell and they were taken out to the toilet twice a day , there was no radio or TV in the cell and they received no news from the outside . The applicant was taken outside for TIME ' exercise during DATE , and for DATE he was not allowed any exercise . The applicant submitted that during his stay in detention he was constantly in fear that he or his close relatives would be subjected to torture , which is wide - spread in GPE .

He was questioned twice without a lawyer . He attempted to instruct a lawyer through his relatives , but was told that he was not entitled to CARDINAL . His relatives found out that he was detained in the pre - trial detention centre , and informed him that his mother had been sentenced to DATE in prison , and his uncle for a longer term . His sister 's and parents - in - law 's identity documents had been taken away from them .

At DATE and beginning of DATE the officers of the law - enforcement bodies of GPE visited the applicant in the detention centre and informed him that proceedings had been instituted in LOC in GPE . He was shown a summons to attend the court and told to sign it . The applicant managed to write on it that he was in detention and could not attend . The officers became angry at this and hit the applicant .

On DATE the applicant was presented with the charges and the case file . The charges ran to CARDINAL pages in NORP and the case file consisted of CARDINAL folders , mostly in NORP . The applicant submits that he does not know NORP well enough , and asked for an interpreter or a translation of the documents . His request was refused . By that time he had a lawyer , who told him that there were no documents in the file which could prove his guilt . It also appears that on a later date the applicant was charged with swindling committed jointly with his sister .

In the meantime the Russian Consulate in GPE contacted ORG of GPE on several occasions in order to arrange for a consular meeting with the applicant . Requests were sent on CARDINAL and DATE and on CARDINAL and DATE . On DATE ORG of GPE replied that no meeting was possible because the applicant was a citizen of GPE .

On DATE the applicant was taken to FAC and returned to GPE , accompanied by an official from FAC .

After the applicant was returned to GPE , he learnt that his mother had been tried again and sentenced to DATE imprisonment and that similar sentences had been imposed on his sister and his uncle .

While the applicant was in GPE , an investigator of the ORG started criminal proceedings on CARDINAL DATE against a group of persons on the basis of information received from ORG of GPE . The background to the proceedings concerned the unauthorised transfer of MONEY from the account of ORG in ORG ( GPE - am - Main , GPE ) to accounts in a private bank in GPE . The applicant was not listed among the suspects .

On DATE the applicant was charged with swindling on a large scale , committed by an organised group . The charge stated that in DATE the applicant , along with several private bank managers , including a certain PERSON , had transferred MONEY from the account of ORG in ORG ( GPE - am - Main , GPE ) to accounts in a private bank in GPE . They had then misappropriated MONEY .

Also on CARDINAL DATE the applicant was put on the international wanted list .

On DATE the Basmanny District Court of GPE issued an arrest warrant in respect of the applicant on request of the ORG . The warrant stated that the applicant had been charged with a serious crime but had fled from justice abroad and that his name had been placed on the international wanted list . At the hearing the applicant was represented by a court - appointed lawyer , who did not object to the applicant 's arrest .

On DATE the First Deputy to ORG contacted ORG of GPE , seeking the applicant 's extradition in relation to criminal charges and an arrest warrant issued against him in GPE . The letter stated that the applicant was a NORP national and that there was information from which one could conclude that he was now in GPE . It did not refer to the applicant 's previous extradition to GPE .

On DATE the First Deputy to ORG of GPE authorised the applicant 's “ temporary extradition ” to GPE on the grounds of the criminal proceedings brought against him .

On DATE the applicant was returned to GPE . On his arrival he was arrested and placed in the FAC pre - trial detention centre of ORG ( ORG ) . On DATE he was presented with the charges of swindling .

On DATE the applicant 's lawyer , PERSON , met with the applicant in the detention centre . During the meeting she learnt of the court decision of CARDINAL DATE ordering the applicant 's arrest . On CARDINAL DATE she lodged an appeal with ORG against that decision . She submitted that the applicant had not been properly represented , that he had not fled from justice but had been extradited to GPE by the ORG , that he had been detained in GPE and that the investigators could not have been unaware of this . She also referred to the decision of ORG of DATE according to which the applicant 's extradition and detention were unlawful .

On DATE ORG dismissed the appeal . The representative of the ORG submitted that the investigator and the Deputy Prosecutor General who had authorised the proceedings had not been aware of the applicant 's whereabouts and that an international search warrant had been issued against him . The district court had had regard to his personal situation , the seriousness of the charges , and the fact that the applicant could interfere with the investigation , put pressure on witnesses and hide or destroy evidence of the crimes .

On DATE the applicant was again charged with large - scale swindling committed by a group of persons and with forgery of official documents .

On DATE the Basmanny District Court extended the applicant 's detention . The court repeated its findings that the applicant had fled from justice abroad . It had regard to the seriousness of the charges and the risk that he might interfere with the investigation . His detention was authorised until CARDINAL DATE . On DATE ORG confirmed this decision on appeal .

On DATE , following a letter from the applicant stating that the threat of his extradition persisted , ORG requested ORG , under LAW , not to extradite the applicant to GPE until further notice .

DATE . On DATE and CARDINAL DATE the charges of swindling , money - laundering and forgery of documents were again laid against the applicant .

On DATE a judge of ORG , on a complaint by the applicant , submitted an application for supervisory review to the ORG of ORG , seeking a review of the decisions of DATE and DATE . The application stated that the applicant had been extradited to GPE pursuant to a decision of ORG and that the reasons given for issuing an international search warrant and authorising his detention in absentia had therefore been invalid .

On DATE the Basmanny District Court again extended the applicant 's detention .

At some point in DATE the investigation was completed and ORG set the case down for hearing on DATE , and then on DATE .

On DATE the ORG of GPE found the applicant guilty of using a forged document and sentenced him to a fine of MONEY ( ORG ) . The court acquitted the applicant of the charges of embezzlement , while the prosecutor withdrew the charges of money - laundering . The applicant was released from detention on DATE . By the same decision the applicant 's only co - accused , PERSON , the manager of a private bank in GPE , was convicted of money - laundering committed by a group and sentenced to DATE imprisonment .

On DATE , following a letter from ORG giving assurances that the applicant would not be extradited to GPE in view of his now undisputed NORP nationality , ORG discontinued the preliminary measure indicated under LAW .

On DATE ORG reviewed and upheld the sentence of DATE .

Articles CARDINAL and CARDINAL of LAW ( ORG ) of DATE contain provisions relating to pre - trial detention . They provide that detention can be imposed by a judge , on a reasoned request by the prosecutor , or an investigator upon the prosecutor 's sanction , if no other measure of restraint can be applied . The presence of the accused person in the court room is obligatory , unless he has been put on the international wanted list . The decision of the court to order detention can be appealed to a higher court within DATE . The appeal must be considered within DATE of the date of receipt . Article CARDINAL sets out the following terms of pre - trial detention : the term of detention can not exceed DATE . If the investigation continues , it can be extended to DATE by the court on an application by the prosecutor . After that it can be extended to DATE on an application by the prosecutor of the region . In exceptional circumstances , on an application by ORG or his deputy , pre - trial detention can be extended to a maximum of DATE .

Article CARDINAL of the ORG provides for judicial review of decisions of investigators that might infringe the constitutional rights of participants in the proceedings or prevent a person 's access to court .

Chapter CARDINAL of the ORG regulates extradition on criminal charges . Articles CARDINAL - CARDINAL state that a decision to extradite a person upon a request from another country is taken by ORG or his deputy . Such a decision is subject to appeal to a regional court within DATE from the date of notification of the decision to the person concerned . The complaint is reviewed at a public hearing in the presence of the person in question , his representative and the prosecutor . The decision of the regional court can be appealed to ORG .

Article CARDINAL provides that extradition can not take place if the person whose extradition is sought is a NORP national or if he has refugee status .

Article CARDINAL contains provisions relating to detention of a person whose extradition is sought . Detention can be authorised by ORG or his deputy on receipt of an extradition request . If a foreign court has authorised the person 's arrest , the decision of the prosecutor does not need to be confirmed by a NORP court . The period of detention can not exceed the normal periods of detention pending investigation laid down by LAW for similar crimes .

Article CARDINAL of the CIS Convention on legal assistance and legal relations in civil , family and criminal cases ( the DATE Minsk Convention ) , to which both GPE and GPE are parties , provides that extradition shall not take place if the person whose extradition is sought has the nationality of the requested ORG .

Its other relevant provisions are as follows :

“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow . A petition for arrest ... may be sent by post , wire , telex or fax .

NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .

NORP In case of [ the person 's ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . ”

“ CARDINAL . The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested ORG ....

A request for the search ... shall contain ... a request for the person 's arrest and a promise to submit a request for his extradition .

A request for the search shall be accompanied by a certiﬁed copy of ... the detention order ....

The requesting Contracting ORG shall be immediately informed about the person 's arrest or about other results of the search . ”

“ CARDINAL . A person arrested pursuant to LAW and LAW shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest .

A person arrested pursuant to LAW shall be released if no petition issued pursuant to LAW arrives within the time established by the law concerning arrest . ”

Article CARDINAL of the LAW states that a citizen of GPE may not be deported from GPE or extradited to another State .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW permit a citizen of GPE to have the citizenship of a foreign State ( dual citizenship ) in accordance with the federal law or an international agreement of GPE . The possession of foreign citizenship by a citizen of GPE shall not derogate from his rights and freedoms and shall not relieve him of the obligations stipulated by NORP citizenship , unless otherwise provided for by federal law or an international agreement of GPE .

Section CARDINAL(CARDINAL ) of LAW provides that a citizen of GPE shall not be exiled from GPE or handed over to a foreign State .

DATE Agreement between GPE and GPE on Regulation of Double Citizenship provides that a person having double citizenship of the Contracting Parties enjoys all rights and freedoms and bears all responsibilities of a citizen of the State where he or she resides .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and DATE , respectively . The first applicant lives in PERSON , near GPE , and the second applicant lives in GPE . At the material time , the first applicant was the Editor in Chief of ORG and the second applicant was the Editor in Chief of GPE , CARDINAL major national newspapers in GPE .

The present case has its background in the same case - complex as a previous application , ORG Norge ASA v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , PERSON ) . Like the latter , it concerns a complaint under LAW about restrictions on media coverage of a major criminal trial , in this case concerning charges against CARDINAL persons of triple murder , the so - called ORG case , which took place before ORG ( herredsrett ) from DATE to DATE . This was probably the most spectacular and media - focused criminal case in NORP history . The trial involved a son ( A ) and his wife ( B ) , the wife ’s CARDINAL - sister ( C ) and a friend of the latter ( D ) , who were charged with the murder of the son ’s parents and sister , committed in a particularly brutal manner . Because of the great media interest in the case and since the hearing room was too small to host both members of the ordinary public and media representatives , special arrangements were made enabling the press to follow the trial at a press centre , set up in a sports hall , to which sound and pictures were transmitted live and shown on a television screen . On DATE a Chamber of the former Third Section declared inadmissible as being manifestly ill - founded ORG complaint that a refusal by ORG , under section CARDINAL of ORG Act DATE ( domstolloven- hereinafter “ the DATE LAW ) , to grant its application for radio broadcasting directly from the court hearing room violated LAW .

The case under consideration concerns restrictions on the publication by the press of photographs taken of B without her consent outside the court house while leaving , shortly after having attended the ORG delivery of its judgment of DATE , convicting A , B and C of the charges and sentencing each of them to CARDINAL years’ imprisonment and sentencing D to CARDINAL years’ imprisonment .

The delivery of ORG judgment was broadcast live on TV by CARDINAL leading national broadcasting companies , the ORG and the TVCARDINAL . The broadcast did not contain any pictures of B.

In the proceedings summarised here below , ORG ( in paragraph CARDINAL of its judgment ) , relying on ORG findings , described the circumstances in which the photographing of B had taken place as follows :

" ORG has established as a fact that during the reading out of the judgment B realised that she would be found guilty , and that she suffered a physical reaction in the form of nausea . Because of this she went to the toilet , together with CARDINAL of her defence counsels , PERSON , PERSON . Thereafter she entered a side room , where she cried and was in deep despair . Shortly afterwards she was notified that she had been rearrested , to be remanded in custody . The rumour had spread , and a large number of photojournalists were waiting outside the community hall . B left the building TIME after the judgment had been pronounced , together with defence counsel , PERSON , accompanied by a plain - clothes police officer who walked QUANTITY behind them . On the way to the unmarked police car , which was parked QUANTITY from the exit , she was photographed a number of times ... ”

On DATE ORG published and extra edition featuring a photograph covering CARDINAL of a page , showing B , holding a handkerchief to her face , and her lawyer Y , taken in a side angle from behind . The picture was part of an article , entitled “ The farm dispute led to homicide ” . An article underneath was entitled “ Tense atmosphere before verdict ” . The caption stated “ Arrested : [ B ] was TIME sentenced to DATE of prison . Here , while crying , she is guided out of the premises by her lawyer [ Y ] ” .

On DATE ORG published a smaller photograph showing B seated inside an unmarked police car . The picture is part of an article entitled “ Broken ” , with an accompanying text : “ The heavy trip , [ B ] is lead out of the [ court house ] and taken to Lillestrøm police station . ”

On DATE PERSON published a photograph covering CARDINAL of a page , showing B crying outside the court house , taken from the front holding a handkerchief , while her lawyer Y walks next to her and makes a deprecating gesture toward the photographer . A person walks behind , identified as a plain clothes police officer . Underneath the caption states : “ DATE . [ B ] has realised it now – that freedom will not be the outcome . She is supported on the way out by defence counsel PERSON The picture appeared next to an article entitled “ Firm , clear – and appealed ” , commenting on the judgment . Below on the same page featured another article entitled : “ The words are merciless- they fall like needles against the dense silence . Twisting around ” . This photograph had been purchased and published by a number of newspapers throughout the country .

In the above - mentioned issues ORG and GPE reported on ORG judgment and on the arrest . The prospects of arrests in the event of conviction had been an issue of discussion in the above newspapers during DATE .

B had not given her consent for photographs to be taken of her ; on the contrary her lawyer Y attempted to prevent it . The authorisation to broadcast the delivery of the judgment had only concerned the reading out of the judgment as such .

On DATE B ’s defence lawyer , ORG , reported the applicants and CARDINAL of the photographers to the police for violation of section CARDINAL of the CARDINAL Act , which led to charges being brought against them .

On DATE the ORG acquitted the defendants of the charges , giving inter alia the following reasons :

“ The ORG underlines that the main rule must still be that the taking of photographs of a convicted person on his or her way out of the court premises is prohibited , as is the publication of such images , but that the prohibition will not apply where entirely special considerations so indicate .

In the assessment of ORG such entirely special and weighty considerations are present in this case . In this regard ORG notes that [ B ] had been convicted of a horrific crime involving the triple homicide of the parents and sister of her husband . As has already been noted , this crime , the investigation and subsequent criminal trial hearing were the subject of unprecedented attention on the part of the media and the general public . A further point for ORG is that [ B ] ’s identity had since long been revealed . Photographs of her had appeared in all the country ’s newspapers numerous times during the course of the investigation and in connection with the trial hearing before ORG . During the period prior to the trial in ORG , [ B ] had rarely consented to being photographed . Nevertheless , the press took a number of photographs of her without her knowledge . However , the situation was different during DATE trial . According to the information provided , [ B ] and her husband had consented to being photographed once per week during the trial . The photographs taken during these photo sessions appeared almost daily in the country ’s biggest newspapers and on various television channels . The issue of protection against identification through photographs was accordingly not an argument in this case . ...

A key consideration underlying the prohibition against the taking of photographs in section CARDINALA is to protect the accused or convicted person against portrayal in situations in which their self - control is reduced . In this case [ B ] had been sentenced to the most severe penalty permitted under the law for the triple homicide and was in a form of shock . On the other hand , the weight of this consideration is somewhat reduced by the fact that the taking of photographs did not take place until TIME after the end of the court hearing at which the judgment was delivered . In the meantime she had had the opportunity to compose herself in a side room to the hearing room , in the presence of her CARDINAL defence counsel and members of her family .

In the assessment of ORG it may be doubtful that these circumstances of themselves are sufficient for it to be necessary to limit the application of the prohibition with the result that publication must be considered permissible pursuant to LAW ... . However , the court views this in the context of the fact that an arrest situation must be said to have existed at the time . [ A ] , [ B ] and [ C ] were all arrested by the police during TIME following the pronouncement of judgment while they were in the side rooms to the court premises in the company of their defence counsel . CARDINAL of the photographs that formed the basis for the penalty charge notices in this case depict [ B ] as she crosses the QUANTITY between the court premises and the police car that would take her to the police station in PERSON . The third photograph depicts her seated inside the unmarked police vehicle . It is clear that the issue of arrest had been discussed in a number of mass media during DATE preceding the pronouncement of judgment . There was speculation about whether in the event of a conviction the police would arrest the convicted persons or whether they would remain at liberty awaiting the appeal proceedings before ORG that most people expected would come , whatever the outcome in ORG . As noted earlier , the various editorial boards discussed what the significance of the prohibition against the taking of photographs would be in the event of an arrest situation . This issue was also discussed amongst the photojournalists who gathered at the exit from the court premises when it became known that CARDINAL of the convicted persons had been rearrested . Based on the information on the case presented before ORG it must be assumed that reasonable doubt as to whether any photographs whatsoever would have been taken of the convicted persons on this occasion had they not been arrested .

An arrest of this nature must be regarded as a new situation in terms of fact and law . This was an event that was awaited with considerable interest by the media and the general public . Interestingly , in the wake of the arrest , there was discussion amongst centrally placed lawyers about whether it was correct to arrest the convicted persons or not . ORG regards the arrest as a new situation and an event that the mass media could legitimately cover as a news item using both words and images . In the assessment of ORG the arrest aspect of the situation overshadows the fact that the convicted persons were on their way out of the court premises . PERSON ’s feature on DATE states on the front page , on which [ B ] is shown being escorted into the prison building , that an arrest took place immediately after judgment had been pronounced . The arrest is also described in detail in the extra edition of ORG on DATE . The ORG ’s assessment of the photographs concerned by the penalty charge notices [ foreleggene ] is that it is made clear to the reader that the intention of the photographs is to illuminate the situation surrounding the arrest .

As a general rule there is no prohibition against taking photographs of arrest situations . Notwithstanding the fact that the arrest in this case was undramatic involving no use of physical force on the part of the police and was carried out with the use of plain - clothes officers and unmarked police vehicles , the decisive point as regards the news aspect and the information needs of the media must be that these arrests marked a provisional end to a criminal case that had been the subject of extensive discussion . The CARDINAL defendants who , prior to the trial before ORG , had been at liberty for DATE were immediately arrested and subsequently remanded in custody . As a result of subsequent developments in the case , these CARDINAL have not been out of prison since their arrest on DATE .

ORG accordingly finds having assessed the circumstances as a whole , that entirely special considerations are present such that the prohibition against the taking of photographs in section CARDINALA of the CARDINAL Act can not entail criminal liability for the journalists and editors charged in this case . All CARDINAL defendants will accordingly be acquitted . ”

The Public Prosecutor appealed against the applicants’ acquittal ( not that of the photographers ) directly to ORG .

By a judgment of DATE ORG convicted the applicants of having published the impugned photographs in violation of sections CARDINAL and CARDINAL ( CARDINAL ) of the CARDINAL Act and sentenced each of them to pay ORG CARDINAL in fines , failing which the fines were to be converted into CARDINAL days’ imprisonment . ORG rejected a claim by B for compensation of non - pecuniary damage . Its reasoning , stated by PERSON and joined in the main by the other members of the formation , included the following :

“ ( CARDINAL ) ORG held that B had not given her consent to being photographed . On the contrary , Y made active attempts on her behalf to prevent the taking of photographs . I find in addition that the consent that ORG gave for the pronouncement of the judgment to be transmitted live on television applied only to the reading of the judgment . It is in any event clear that the authority of the ORG to grant an exemption from the prohibition against the taking of photographs in section CARDINALA(CARDINAL ) of the LAW applies only during the trial itself . This provision will accordingly not apply in our case .

( CARDINAL ) The question in this case is whether it constituted a breach of section CARDINAL of the CARDINAL Act and thus a criminal offence pursuant to its section CARDINAL ( CARDINAL ) to publish photographs of a weeping B , distraught and dissolved in tears , leaving the court LOC having been convicted of aiding and abetting in a triple homicide . If this question were to be answered in the affirmative , a further question would arise as to whether the enforcement of the prohibition would be contrary to ... LAW , cf . section CARDINAL of LAW . ...

( CARDINAL ) It is the second sentence [ of section DATE ) ] that is of interest in our case . ...

( CARDINAL ) The question is : What restrictions will follow from the phrase ‘ on his or her way to , or from , the hearing’ . I agree with ORG that the restrictions on the taking of photographs will apply only ‘ in the immediate vicinity of the court premises , i.e. normally up to the car parking area , and that the special protection that follows from section CARDINALA will not apply after the accused has driven away from the court premises’ . ORG concluded that the provision therefore also encompassed B as she made her way out of the courtroom and into the waiting vehicle . I agree with this . I also agree with ORG that the fact that she was under arrest at the time does not render the provision inapplicable .

( CARDINAL ) I must accordingly conclude that the photographs in question contravene the prohibition against the taking of photographs in section CARDINAL .... I must therefore examine whether ... Article CARDINAL of the Convention would nevertheless lead to a different outcome .

( CARDINAL ) On the subject of the general balancing of interests I refer to the discussion in ORG judgment in the PERSON case ( DATE ) ... . ORG held by CARDINAL votes to QUANTITY that the filming by TVCARDINAL of CARDINAL of the convicted persons following the pronouncement of judgment in the PERSON case did not constitute a punishable offence . The majority found , with the support of the minority , that the general rule must be that the taking of photographs in the courtroom was prohibited , including after the court had adjourned , but that this restriction would not apply ‘ where entirely special considerations suggest that the taking and publishing of photographs must be permitted’ .

( CARDINAL ) The majority held that the purpose of the prohibition was to protect the ‘ reputation or rights’ of the accused or convicted person , and that accordingly the LAW pursued a legitimate aim . Although enforcement of the restrictions on the taking of photographs would generally constitute a serious interference pursuant to LAW , it ought to be considered whether the interference nevertheless was necessary in a democratic society according to LAW . The point of departure must be that it was generally important to protect accused and convicted persons against exposure through the taking of photographs in the courtroom , both during the hearing itself and in immediate connection with the hearings . The majority noted that most countries had prohibitions against the taking of photographs , although the scope and wording varies . By way of conclusion , paragraph CARDINAL noted that :

‘ The reality of this is a general rule prohibiting the taking of photographs in the courtroom after court session has been adjourned , and a prohibition against the publication of the photographs , although the prohibition will not apply if warranted by entirely special considerations . The prosecution has argued that a rule of this nature would undermine the prohibition against the taking of photographs . It is of course true that a rule with certain limitations will be less absolute . Even so , a rule of this nature will not give the news media a ‘ free hand’ to take and publish photographs when deemed expedient . The prohibition against the taking of photographs is supported by weighty and genuine considerations , not least in the situation immediately after the pronouncement of a judgment . Accordingly , in such a situation , strong reasons will have to be adduced for it to be accepted that it is required to photograph the convicted person and to put these pictures on display.’

( CARDINAL ) The view that the prohibition against the taking of photographs does not violate LAW would appear to be supported by the inadmissibility decision of CARDINAL DATE rendered by ORG in ORG Norge ASA v. GPE ( dec . ) , no . MONEY , ECHR CARDINALVI . ...

( CARDINAL ) ORG found the application to be ’manifestly ill - founded’ . The ORG held that the prohibition against recording and broadcasting must to some extent be viewed as an interference with the freedom of expression provided for in LAW . Nevertheless , the ORG held that there was no common ground in the legal systems of GPE with regard to radio and television transmission from court proceedings . The balance between the need for openness and the need for court proceedings to be conducted without disturbance could be resolved in various ways . Moreover ... the Court held :

‘ Depending on the circumstances , live broadcasting of sound and pictures from a court hearing room may alter its characteristics , generate additional pressure on those involved in the trial and , even , unduly influence the manner in which they behave and hence prejudice the fair administration of justice . ... ’

( CARDINAL ) ORG also held that the national authorities , particularly the courts , were best placed to assess whether in the individual case the broadcasting of proceedings would conflict with the ’fair administration of justice’ . By way of conclusion the ORG noted that on this point GPE must enjoy a ’wide margin of appreciation’ . Thus the general rule provided for in section CARDINAL of ORG , which applies equally to broadcasting and the taking of photographs , was not found to be problematic in relation to LAW .

( CARDINAL ) ... It must be assumed that the margin of appreciation with regard to measures that are considered necessary with a view to securing ‘ fair administration of justice’ is relatively broad .

( CARDINAL ) The opinions expressed in this decision must also have a bearing in relation to section DATE ) , second sentence , of the CARDINAL LAW . The interests that the prohibition against the taking of photographs seeks to safeguard have been summarised in the following way in a note on the case by ORG :

-Protection against identification through the taking of photographs .

- Protection against portrayal in photographs in situations in which the subject ’s control is reduced .

- The safeguarding of CARDINAL of the fundamental requirements for due process of law , namely that it should inspire trust and show consideration towards the persons involved . An accused or convicted person who has to force his or her way through press photographers and television teams may - quite apart from the issues of protection of personal integrity that arise - feel this to be a considerable additional burden .

- The need to protect the dignity and reputation of the courts . Since in general it is the courts that require the presence of the accused , which of itself may be burdensome , it is important that the courts should at the same time ensure that accused persons receive fair and considerate treatment . A failure to do so will affect not only the accused person him or herself , but also the court , which is required to ensure that the accused is treated in a considerate manner while being within and in the vicinity of the court LOC .

( CARDINAL ) This means that in addition to privacy considerations the prohibition against the taking of photographs is supported by entirely central principles for due process . Although the need to safeguard the openness of proceedings , including satisfactory opportunities for an active and alert press , is a central consideration , this means that a balancing of interests must be conducted . The legislators conducted this balancing of interests with the introduction of section CARDINAL of the CARDINAL Act , and the penal provision in section GPE ) , in connection with the enactment of LAW of CARDINAL DATE nr . CARDINAL . It is apparent from the legislative history that the background to this was that the existing legislation , including LAW of DATE , was not found to afford the accused and convicted persons sufficient protection against being treated as ‘ fair game’ by the press , particularly in cases of major interest to the public .

( CARDINAL ) I should add that the provision has not been regarded as a problem in relation to LAW . Doubt on this point has mainly attached to other aspects of the new LAW , which was enacted with the legislative change of DATE nr . CARDINAL , but which has not yet entered into force . This provision entails an extension of the prohibition against the taking of photographs , inter alia in relation to suspected persons in the custody of the police . Given the position of our case , I will not discuss this in further detail .

( CARDINAL ) Accordingly I will now move on to consider whether in our case there exist entirely special considerations , see the PERSON ruling , according to which the prohibition against the taking of photographs must yield to the freedom of expression . In paragraph CARDINAL of the judgment in that case ( HR-CARDINAL - CARDINALa - ACARDINAL ) the majority attached weight to the fact that the case - the harrowing child killings in GPE - had attracted extensive public interest and that the identity of the convicted person was known . It was also noted that the photographs might reveal something significant - in a negative sense - about his personality . The decisive point , however , which was discussed in paragraph CARDINAL , was that by their nature the photographs were corrective in that they showed a different and more unaffected reaction to the judgment than had been publicly expressed by defence counsel . This was viewed as information which the public had a right to receive in such a case .

( CARDINAL ) Applied to our case it is clear that the ORG case , too , was horrifying and was the subject of enormous public interest . Moreover , B ’s identity was already widely known when the photographs were taken . However , the photographs of B were in my view of an entirely different nature . The reaction that she displayed to the judgment - distress and sobbing - must be characterised as normal and expected in the circumstances . She was in a situation in which she had reduced control , in immediate connection with her conviction by ORG - in other words she was within the core area of what the prohibition against the taking of photographs is intended to protect . The decisive point must therefore be whether other elements were present that would give the press the right to take the photographs and the public the right to see them .

( CARDINAL ) The decisive point as regards ORG acquittal was that the arrest - which took place directly after judgment was pronounced - was perceived as a new situation in fact and in law . According to ORG the arrest was an event that it was legitimate for the mass media to cover , including with the aid of photographs . In my view there are no grounds for maintaining that the arrest meant that ‘ entirely special ORG applied . An arrest after a conviction by a court is not entirely unusual and would not have been unexpected in a serious homicide case such as the PERSON case , in which the accused persons had been at liberty throughout the trial . Moreover , I can not conclude that the considerations that justify the protection against the taking of photographs in and around the court premises should be any less in such a situation . As long as the photographs do not show something entirely special , for example relating to the procedures of the police during the arrest itself , the protection must in my view remain the same .

( CARDINAL ) [ The applicants’ ] defence counsel has argued forcibly that the shocking offences of which B was convicted and the extensive public interest in the case , gave the media a right and a duty to inform , even if this was contrary to the interests of the convicted persons . Moreover , in DATE ’s media - based society this information would not be complete without photographs , which suggested that the scope of the prohibition against the taking of photographs should be limited . In my view the protection afforded to the convicted person pursuant to section CARDINALA of the CARDINAL Act must in principle apply regardless of the nature of the case and of the media interest that the case evokes . In practice , persons who have been convicted of very serious and sensational crimes will usually not be able to avoid being identified . Nevertheless , the other considerations justifying the prohibition against the taking of photographs will be present , frequently to a greater degree than in the case of other convicted persons .

( CARDINAL ) ...

( CARDINAL ) I have accordingly concluded that ORG acquittal is not based on a correct application of the law . The case has been sufficiently elucidated for ORG to render a new judgment , cf . Section CARDINAL second paragraph of LAW . The Defendants have not objected to this . I find that [ the applicants ] must be convicted in accordance with the indictment and that the sentence proposed by the prosecution , a fine of ORG , in the alternative a prison sentence of DATE , is appropriate for both parties .

( CARDINAL ) I will conclude by considering the criminal injuries compensation claim .

( DATE ) B has filed a claim for damages for non - pecuniary loss , not to exceed ORG CARDINAL,CARDINAL , from each of the accused . She submits that given their convictions for breaches of sections CARDINAL and CARDINAL(CARDINAL ) of GPE , the preconditions for awarding damages pursuant to section DATE ) , last sentence , of LAW will also have been met . I agree that this may frequently be the case . However , I will not consider this further since this involves a ‘ may’ provision and I do not find that there are sufficient grounds to award economic compensation in this case .

( CARDINAL ) It will be clear from my comments on the question of penalty that considerations of protection of personal privacy have not been dominant in my assessment . Moreover it is clear from B ’s testimony that she was not even aware that the photographs had been taken . The violation lies solely in the publication of the photographs , which were not particularly conspicuous in relation to what had been published about her otherwise . This case has first and foremost revolved around the drawing of boundaries between the information work of the press and key principles of legal process . Given this situation it is my view that criminal sanctions against the editors in the form of fines will be sufficient for the purpose of emphasising that that boundary was transgressed and that there are no grounds for awarding damages . ”

Section CARDINAL , as in force at the material time , of ORG Act DATE ( domstolloven ) provided :

“ During oral proceedings in a criminal case , photographing , filming and radio - or television recordings are prohibited . It is also prohibited to take photographs or make recordings of the accused or the convicted on his or her way to , or from , the hearing or when he or she is staying inside the building in which the hearing takes place , without his or her consent .

If there are special reasons for doing so , the court may in the course of the proceedings make an exception from the [ above ] prohibition if it can be assumed that it would not unduly affect the examination of the case and no other reasons militate decisively against doing so . Before authorisation is given the parties should have an opportunity to express their views . ”

Section CARDINAL(CARDINAL ) provided that the taking of photos or recordings made in breach of section CARDINAL is punishable by the imposition of fines .

The Appendix to the Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on the provision of information through the media in relation to criminal proceedings ( Adopted by ORG on DATE at the NORP meeting of ORG ) contains the following principle of particular interest to the present case :

“ Principle CARDINAL - Protection of privacy in the context of on - going criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr J. Carroll , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG , GPE .

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

On DATE , the applicant was questioned by the police and charged with various offences . He and CARDINAL other men were later tried in ORG at GPE on CARDINAL charges , predominantly of assault and drugs offences . The trial lasted from DATE to DATE . The ORG withdrew a number of charges at the close of the prosecution case , such that the applicant was ultimately convicted of CARDINAL charges of assault and robbery and CARDINAL of assault causing injury to a PERSON PERSON . He was sentenced on DATE to CARDINAL years’ imprisonment . The trial had been recorded by mechanical means .

On or DATE , the applicant lodged an appeal against both conviction and sentence . Leave to appeal was refused by a single judge on DATE . By letter dated DATE , the applicant ’s representatives applied for review of that refusal .

On DATE , the applicant was granted leave to appeal against sentence and limited leave to appeal against conviction on the charge of assault and robbery , identified for purposes of the proceedings as “ Charge CARDINAL . ” Charge CARDINAL read in material part as follows :

“ [ the applicant did ] repeatedly punch and kick PERSON on the head , repeatedly threaten to slash and stab him , present a knife to him , attempt to cut off his finger with a knife or similar instrument , all to his injury . ”

By letter dated DATE , it was indicated that leave had been granted to appeal against conviction on PERSON on the basis that “ there might be an arguable point as to the need for corroboration on the use of a knife . ”

The applicant obtained legal aid for the instruction of senior and junior counsel on DATE . He thereafter sought to substantiate the factual basis of the appeal against conviction on PERSON . He sought authority ( in general terms ) to have transcribed the recording of counsel ’s submissions in support of the contention that there was no case to answer . He was granted legal aid to this effect on DATE and court authorisation on DATE ; he received the transcript on DATE . He obtained counsel ’s advice in DATE and , as a consequence , amended his Note of Appeal . The revised Note of Appeal lodged on DATE expanded his initial ground of appeal against conviction on PERSON as follows :

“ That specifically in relation to charge CARDINAL , the trial judge misdirected himself in law and fact when he rejected the submission by counsel that there was insufficient corroboration to allow the jury to find the appellant guilty of attempting to cut off ORG witness PERSON ’s finger . PERSON there was sufficient evidence for the jury to convict , they should have been directed that before they could do so in relation to the attempted cutting off of the ORG witness PERSON ’s finger they must find corroboration in the evidence before they could convict of this element of the charge . ”

Further , the applicant sought transcripts of the evidence of certain witnesses to seek support for the revised grounds of appeal . This was because it appeared to the applicant and his representatives that the trial judge ’s record of the evidence was different to that of his agents . On DATE sanction was granted by the court for the funding of the transcription of the evidence of the relevant witnesses . At a hearing on DATE , the court allowed the revised grounds of appeal , ordered a supplementary report from the trial judge , and took note of the position on transcripts .

The trial judge provided a supplementary report on DATE . The judge noted the attack on the element of charge CARDINAL relating to the “ attempt to cut off [ PERSON ’s ] finger with a knife or similar instrument , ” and continued :

“ There is no suggestion now , nor was there then , that there was insufficient evidence for the remainder of [ charge CARDINAL ] ( of which whole charge the applicant was found unanimously guilty ) including in particular the allegation that the appellant , acting along with CARDINAL others , repeatedly threatened to slash and stab the complainer and presented a knife at him . This has significance ... for the question of corroboration . ”

The trial judge noted the evidence of a Sergeant Scott to the effect that :

“ the complainer sought to speak to him DATE on DATE and then told him informally what had happened , although apparently too scared to give a formal statement . At that stage the witness saw not only the injuries to the complainer ’s forehead and face , apparently consistent with the punching and kicking attack spoken to by the complainer , but also a cut to the complainer ’s pinkie .

Standing the evidence of PERSON there was , it seemed to me , arguably enough evidence of the part of the assault in question . Further I took the view that if the jury believed the complainer as to the detailed account he gave ( including threats and the presentation of the knife ) there was no need for specific corroboration of the matter .

[ i]n this case , in circumstances in which it was accepted that there was sufficient evidence for the allegation of repeated threats to slash and stab the complainer and of presentation of the knife at him , and where the complainer accepted that the apparent attempt to cut off his finger was not carried through to any great extent , I did not think , leaving aside for the moment the evidence of PERSON , that any specific corroboration was needed . ”

The trial judge also noted that , even if the appeal on this point was allowed , and a question was raised as to its effect upon the applicant ’s evidence , it would have made no difference to the sentence he imposed .

ORG wrote to the applicant ’s representatives on DATE to ask whether the appeal was ready to proceed ; the applicant ’s representatives responded that they were unable to do so until they received the transcripts . On DATE , they were received . By letter dated DATE , the applicant ’s representatives wrote to the company contracted to provide the transcription requesting the evidence of a Mr O’Reilly . By letter dated DATE the transcribers advised ORG Justiciary that it had proved impossible to transcribe his evidence due to his diction and the quality of the recording . This letter was passed to the applicant ’s representatives , who , on DATE , replied that counsel ’s view was that the lack of this transcript would put the appeal in severe difficulties and requesting to have the tape cleaned up .

Technical attempts were made by specialists to recover the evidence of PERSON O’Reilly . The applicant ’s representatives wrote to the transcribers on DATE , DATE and DATE , DATE and DATE . In the last letter they stated that the transcript was of " critical importance to the appeal " .

On DATE , the transcribers finally advised that the defects could not be resolved , and that the transcript of PERSON O’Reilly ’s evidence could not be provided .

At a procedural hearing on DATE , fixed by the ORG , the court directed that the applicant had DATE to confirm if the appeal was to proceed .

On DATE , the applicant tendered a new and additional ground of appeal , namely that there had been a failure by the court to conclude the appeal within a reasonable time in breach of the applicant ’s Article CARDINAL rights . This ground was supported by a chronology , in which it was recorded that “ On DATE , copy transcripts of the evidence were lodged with ORG and the appellant ’s agents awaited notification of a hearing on the appeal . ” The applicant accepted that the time taken to CARDINAL DATE was reasonable . However , he contended that , upon lodging the transcripts with ORG , “ it should have been clear to the authorities that this case was now pressing and that urgent steps should have been taken to secure a hearing at a time which would have accorded with a reasonable and proportionate time in which to conclude such a case . ”

On DATE , at a procedural hearing , the court granted leave to appeal on this further ground .

On DATE , the court directed that a hearing be assigned during the sitting of the appeal court on DATE .

On DATE , the applicant abandoned his appeal against conviction , stating that it was counsel ’s view that without the transcription of PERSON O’Reilly ’s evidence the appeal against Charge CARDINAL in relation to the use of the knife on Mr PERSON ’s little finger could not be sustained . As the sitting on DATE concerned appeals against conviction , not sentence only appeals , no date was assigned on that occasion . A date was later fixed for DATE .

On DATE , ORG of ORG of GPE the Article QUANTITY challenge and the appeal against sentence in DATE , and dismissed them both on DATE .

ORG noted that the report of the trial judge showed that PERSON O’Reilly ’s evidence was not relied upon to provide corroboration of the single feature of Charge CARDINAL that was the subject of challenge . Further , ORG considered that the chronology supplied on DATE by the applicant ’s representatives in support of the Article CARDINAL challenge was :

“ neither comprehensive nor entirely accurate . In particular , the suggestion that as from DATE the appellant ’s agents were simply awaiting notification of an appeal diet can not be reconciled with the position presented in the later case and argument that appeal could not proceed without the transcripts , nor with the efforts made to recover O’Reilly ’s evidence until DATE . ”

ORG considered that the issue relating to corroboration had been “ fully ventilated ” by DATE , and that :

“ [ ORG time was taken up by the fruitless search for support from some unspecified deficiency in the evidence . It is important to note that there is no suggestion that the transcribed evidence of the witnesses , on whom the trial judge ’s analysis of the assault on PERSON ’s little finger depended , failed in any way whatsoever to bear out the analysis in his reports . Delay in this case was due to the intransigent insistence of the appellant and his advisers in pursuit of the irrelevant .... ”

ORG then considered the question of length by specific reference to LAW , in particular , the case of ORG v. GPE ( no . CARDINAL , DATE ) . It considered that :

“ at each stage in the prosecution of this appeal the appellant had the benefit of a prompt response from the ORG to applications made to it . The simple explanation of the major part of the time that has elapsed between conviction and the disposal of the appeal against sentence is the insistence of the appellant in an appeal against conviction that had to be abandoned as having no foundation . [ The applicant ’s representative ’s ] assertion that there was some absolute duty on the ORG to procure a speedy disposal of the appeal , whatever the position of the appellant , is clearly not supported by the NORP jurisprudence . The conduct of the appellant is a factor . Had the ORG intervened to require the appeal to be disposed of while the appellant continued to pursue his quest for transcripts , we have no doubt that that would have been the focus for complaint . ORG passed in this appeal because the court allowed the appellant the time he sought to pursue these matters . ”

As regards the appeal against sentence , ORG found no basis to interfere with the trial judge ’s determination of the relative criminality of the applicant and PERSON , the central ground upon which the applicant maintained that the sentence imposed him had been excessive .

In the meantime , the applicant had been released on parole licence on DATE , having served CARDINAL of his sentence .