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

The Government are represented by their Agent , PERSON of ORG .

On DATE the applicant entered a snackbar at FAC wearing a balaclava and forced the staff at knife - point to hand him money from the till . He was stopped by railway police as he tried to leave the station . It was later reported that his breath smelt of drink .

The applicant was arrested and detained for questioning ( ophouden voor verhoor ) at TIME

At TIME the applicant was seen by an assistant public prosecutor ( hulpofficier van justitie ) , a senior police officer competent to give certain orders in criminal cases . At TIME the applicant was seen by a doctor . Both found that the applicant was not in a fit state to be questioned . It appeared that he was much the worse for drink and drugs .

The TIME time - limit within which the applicant should have been either released or ordered taken into police custody ( inverzekeringstelling ) ended at TIME

The applicant was brought before an assistant public prosecutor the following TIME , DATE , at TIME He was questioned by police officers at TIME and TIME At TIME the applicant was again brought before the assistant public prosecutor , who ordered him to be placed in police custody at TIME .

On DATE , the applicant , assisted by counsel , was heard by an investigating judge ( rechter - commissaris ) . He asked to be released immediately . This the investigating judge refused to do . She found the police custody to be unlawful as a matter of domestic law but ordered that the applicant be taken into detention on remand . The official record drawn up by the investigating judge contains her decision , which is in the following terms :

“ The suspect [ verdachte ; i.e. the applicant ] was arrested on DATE at TIME , but was unresponsive ( niet aanspreekbaar ) . He was then locked in a cell to sober up and brought before the assistant public prosecutor on DATE at TIME

The suspect was questioned at TIME and TIME , after which he was again brought before the assistant public prosecutor at TIME and taken into police custody at TIME , that is , TIME after his arrest . Since it appears that the applicant was responsive ( aanspreekbaar ) by TIME , he ought not to have been taken into police custody TIME . In view of the seriousness of the crime of which the suspect is suspected and the serious indications ( ernstige bezwaren ) that have arisen in his regard , the request for immediate release must be refused , the applicant having been taken into detention on remand without preliminaries ( nu de verdachte rauwelijks in bewaring is gesteld ) . ”

The applicant was tried by ORG ( arrondissementsrechtbank ) of GPE on DATE . The judgment notes that he was taken into police custody on DATE .

On DATE ORG gave judgment finding the applicant guilty of extortion ( LAW ) . It sentenced him to CARDINAL months’ imprisonment , DATE of which was suspended on condition that he undergo treatment for his addiction problems , as an in - patient if need be , under appropriate supervision . Its reasoning included the following :

“ The suspect ’s counsel has stated at the hearing that the order for the applicant to be taken into police custody was given too late , i.e. after the expiry of the time - limit prescribed by law . Counsel has invoked LAW § CARDINAL a of LAW PERSON ) and argued that in the event of a conviction this procedural violation ( vormverzuim ) should lead to a reduction of sentence . On this point , ORG holds , considering also the seriousness of the crime committed by the suspect , that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence . In so holding ORG has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice . ”

The applicant appealed to ORG ( gerechtshof ) of GPE .

A hearing was held on DATE , at which the applicant stated that he had drunk a bottle of port wine and taken cocaine on DATE . The applicant ’s counsel again argued that the applicant ’s sentence should be reduced in view of the unlawfulness of the order placing him in police custody .

ORG gave judgment on DATE confirming the applicant ’s conviction . Echoing the reasoning of ORG , it rejected the plea for a reduction of sentence in the following terms :

“ The suspect ’s counsel has stated at the appeal hearing that the order for the applicant to be taken into police custody was given too late , i.e. after the end of the time - limit prescribed by law . Counsel has invoked LAW § CARDINAL a of LAW and argued that in the event of a conviction this procedural violation should lead to a reduction of sentence . On this point , ORG holds , considering also the seriousness of the crime committed by the suspect , that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence . In so holding ORG has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice . ”

Noting that the applicant had evaded treatment of his addiction in an institution , it imposed an unconditional sentence of CARDINAL months’ imprisonment and ordered the execution of an earlier suspended CARDINAL-day prison sentence not relevant to the present case .

The applicant lodged an appeal on points of law ( cassatie ) to ORG ( PERSON ) , which gave judgment dismissing the appeal on DATE .

The following provisions of LAW ( PERSON ) , as in force at the time , are relevant to the case before the ORG :

“ CARDINAL . The public prosecutor or the assistant public prosecutor before whom the suspect is brought , or who has himself arrested the suspect , may , after having questioned him , order in the interests of the investigation that he shall remain at the disposal of the authorities responsible for the administration of justice ( de justitie ) and shall be placed in police custody for that purpose in a place indicated in the order . ... ”

“ CARDINAL . A police custody order shall only be given in the case of a punishable act ( strafbaar feit ) for which detention on remand is permitted .

The police custody order shall be valid for DATE . In cases of urgent necessity the order can be prolonged once for a further period of DATE .

As soon as the interests of the investigation so allow , the assistant public prosecutor shall order the suspect released . Otherwise , he shall propose to the public prosecutor that police custody be prolonged . The public prosecutor may order the suspect to be brought before him to be heard . ”

“ CARDINAL . The suspect shall be brought before the investigating judge for interrogation DATE and TIME from the moment of his arrest .

At the time of his interrogation [ by the investigating judge ] , the accused may request the investigating judge to release him [ from police custody ] .

If the investigating judge considers the police custody unlawful ( onrechtmatig ) , he shall order the accused ’s immediate release . Otherwise , the investigating judge shall make a note of his decision in the official record of the interrogation or , if the suspect has made a request for his release , the investigating judge shall reject it . ... ”

“ CARDINAL . If the suspect is not taken into police custody ... nor ... brought before the investigating judge , he shall be released promptly ( dadelijk ) after questioning .

Under no circumstances ( in QUANTITY ) shall the applicant be detained for questioning for TIME , not counting the time TIME ”

“ CARDINAL . The investigating judge may , upon an application ( vordering ) by the public prosecutor , order the suspect ’s initial detention on remand . ... ”

“ CARDINAL . The [ trial court ] may , if it appears that there have been procedural violations during the preliminary investigation which can no longer be redressed and the legal consequences thereof are not apparent from the law , decide that :

a. the sentence shall be reduced in proportion to the seriousness of the procedural violation , if the harm done by the violation in question can be thus compensated ; ...

In applying the first paragraph , the [ trial court ] shall consider the interest that is intended to be served by the procedural rule that has been violated , the seriousness of the violation and the harm thereby caused . ”

In a decision in camera of DATE , PERSON ( ORG ) DATE , no . CARDINAL , ORG held that a failure to observe legal requirements in relation to police custody might affect the lawfulness of the police custody but did not of itself prevent the investigating judge from subsequently ordering the suspect ’s initial detention in remand .

Section CARDINAL of the DATE LAW ( ORG ) provides as follows :

“ The duty of the police shall be to ensure , in subordination to competent authority and in conformity with the law in force , the actual maintenance of the legal order and to provide help to those who need it . ”

In a judgment of CARDINAL DATE , PERSON , page CARDINAL , ORG held under the predecessor provision ( which was identical to section CARDINAL of the modern Police Act , save for its more archaic grammar ) that the task of the police comprised securing public order , safety and peace ; that this preventive task included removing an inebriated person from the public highway ; and that a patrolling police officer made reasonable use of this authority by detaining such a person for as long as it took them to sober up .


CASE OF NEULINGER AND SHURUK v. SWITZERLAND

Remainder inadmissible;No violation of Art. 8

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

CARDINAL NORP The applicants were born in DATE and DATE respectively and live in GPE ( GPE of GPE , GPE ) .

CARDINAL The facts as submitted by the parties may be summarised as follows .

The first applicant , who is NORP , decided in DATE to settle in GPE . There she met an NORP national , who is also NORP , and married him on DATE in GPE . They had a son , PERSON , who was born in GPE on DATE . He has NORP and NORP nationality .

According to the applicants , in DATE the child 's father joined the NORP “ NORP ” movement , which they have described as an ultra - orthodox , radical movement that is known for its zealous proselytising .

Marital difficulties then arose , and the first applicant , fearing that her husband would take her son to a “ NORP - Lubavitch ” community abroad for religious indoctrination , applied to ORG for a ne exeat order to prevent PERSON 's removal from GPE . On DATE the court made a ne exeat order that was to expire when the child attained his majority , that is to say on DATE , unless annulled by the court in the meantime .

In an interim decision of DATE , the same court granted “ temporary custody ” of the child to the mother and requested the GPE social services to draw up an urgent welfare report . The “ guardianship ” of the child was to be exercised jointly by both parents .

In a decision of CARDINAL DATE , the court , on the recommendation of a social worker , confirmed the first applicant 's “ temporary custody ” of the child and granted a right of “ visitation ” to the father .

On DATE the NORP social services were obliged to intervene . They instructed the parents to live apart , in the interest of the child . DATE , the first applicant filed a complaint with the police accusing her husband of assault .

In an injunction of CARDINAL DATE the competent judge of ORG , upon an urgent application lodged DATE by the first applicant , prohibited the father from entering the child 's nursery school or the first applicant 's flat , from disturbing or harassing her in any manner whatsoever , and from carrying or possessing a weapon . Restrictions were also imposed on the visitation right granted to the father , who was now only authorised to see the child twice DATE under the supervision of the social services at a contact centre in GPE .

The couple 's divorce was pronounced on DATE with no change in the attribution of guardianship .

As the father had defaulted on his maintenance payments to the first applicant , an arrest warrant was issued against him on DATE .

In a decision of CARDINAL DATE the competent judge of ORG dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from GPE .

On DATE the first applicant secretly left GPE for GPE with her son .

On DATE PERSON 's father contacted ORG , which was unable to locate the child until DATE , when ORG forwarded him a note from ORG indicating that the first applicant was in GPE .

On DATE ORG transmitted to ORG a request for the return of the child pursuant to LAW of DATE ( the “ LAW ” ) . In support of its request it indicated , among other things , that ORG had notified it only DATE before that PERSON and his mother were living in GPE and that the latter had applied for the renewal of her NORP passport .

In a decision of CARDINAL DATE , delivered upon an application by the child 's father , ORG observed that the child was habitually resident in GPE and that , as of DATE , the date of the applicants ' departure , the parents remained joint guardians of their son , with the mother having temporary custody and the father a right of visitation . The court held that the child 's removal from GPE without the father 's consent had been wrongful within the meaning of LAW .

On DATE the child 's father lodged an application with the Lausanne District Justice of the FAC seeking an order for his son 's return to GPE . He requested in particular , as an extremely urgent measure , that ORG be ordered to retain the applicants ' NORP passports .

On DATE the Justice of the FAC made an order allowing the application by PERSON 's father for an extremely urgent measure .

Following a new application for an extremely urgent measure , faxed by the child 's father on DATE , the Justice of the FAC , in a provisional measures order made that DATE , ordered the first applicant to deposit her and PERSON 's passports in the registry of LOC immediately , on pain of criminal sanctions for refusal to comply with the decision of an authority .

The first applicant , assisted by counsel , and the legal representative of the father , whose obligation to appear in person had been waived , made representations to the Justice of the FAC on DATE .

In a decision of CARDINAL DATE , after a hearing , the father 's application was dismissed by ORG of the Peace . The court took the view that , whilst the child 's removal had been wrongful within the meaning of LAW , it had to apply LAW , first paragraph , sub - paragraph ( b ) , of that Convention , as there was a grave risk that the child 's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation .

On DATE the father appealed against that decision before ORG ( chambre des tutelles ) of ORG , which ordered an expert 's report and for that purpose appointed Dr. PERSON , a paediatrician and child psychiatrist . In his report , delivered on DATE , he stated that the child 's return to GPE with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return , in particular the conditions awaiting the mother and their repercussions for the child ; that the return of the child without his mother would expose him to a risk of major psychological harm ; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term .

On DATE , as the first applicant had left the country , the competent judge in GPE cancelled the indictment for domestic violence that she had initiated in DATE .

On CARDINAL DATE ORG of ORG dismissed the father 's application . Having carried out an additional investigation , and taking into account the expert 's report by Dr. PERSON dated DATE , it took the view that the child 's return carried a grave risk of psychological harm , whether or not he was accompanied by his mother , and would also place him in an intolerable situation . It therefore considered that the conditions of LAW , first paragraph , sub - paragraph ( b ) , of LAW were met . Finding however that the child could not be deprived of all relations with his father , it prescribed measures with a view to rebuilding the personal relationship between them .

The father lodged a civil appeal with ORG seeking the quashing of ORG judgment and the return of the child to GPE . He alleged that the court had misapplied LAW , first paragraph , sub - paragraph ( b ) , of LAW , principally , and LAW , secondarily .

In a decision of DATE , the President of the appropriate division of ORG granted the father 's request for immediate suspension of the judgment .

In a judgment of CARDINAL DATE , served on the first applicant 's lawyer on DATE , ORG allowed the father 's appeal . The relevant passages of its judgment read as follows :

“ CARDINAL . The object of LAW on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any ORG ( DATE , sub - paragraph ( a ) ) . The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ( Article CARDINAL , sub - paragraph ( a ) ) . ' Rights of custody ' include rights relating to the care of the person of the child and , in particular , the right to determine the child 's place of residence ( DATE ( a ) ) . In the present case it is not in dispute that the child 's removal to GPE was wrongful , since the father retained , jointly with the respondent , the right of ' guardianship ' , which under NORP law includes the right to decide on the child 's residence . Moreover , since the request for return was presented within DATE after the removal , the respondent can not deny either that , in principle , pursuant to LAW , the child 's prompt return should be ordered . The only matter in dispute is therefore the question whether an exception to that return may be applied under LAW , first paragraph , sub - paragraph ( b ) , of LAW .

According to the appellant , by refusing to order the child 's return to GPE , ORG misapplied LAW , first paragraph , sub - paragraph ( b ) , of LAW .

CARDINAL Under LAW , first paragraph , sub - paragraph ( b ) , of LAW , in respect of which ORG is entitled to examine matters of compliance freely ( section CARDINAL(b ) LAW ) , the judicial authority of the requested ORG is not bound to order the child 's return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The exceptions to return provided for LAW must be interpreted restrictively ; the parent who has abducted the child can not take advantage of his or her unlawful conduct ( judgment CARDINAL of DATE recital CARDINAL , in DATE p. CARDINAL ) . Only grave risks must be taken into consideration , excluding any grounds relating to the parents ' educational capacities , as the purpose of LAW is not to attribute parental authority ( ORG judgment CARDINAL III CARDINAL recital CARDINAL ; CARDINAL II CARDINAL recital CARDINAL p. CARDINAL ) . An exception to return under LAW , first paragraph , sub - paragraph ( b ) , of LAW , is therefore not open to consideration unless the child 's intellectual , physical , moral or social development is under serious threat ( judgment CARDINAL of DATE recital CARDINAL / bb in DATE p. CARDINAL and the reference cited therein ) . The burden of proof lies with the person who opposes the child 's return ( ibid . , recital CARDINAL , in DATE p. CARDINAL and the reference cited therein ) .

CARDINAL ORG observed that the case concerned a very young child in the custody of his mother , who had always provided for him . The father , for his part , lived in a religious community where he was fed , and from his activity as a sports and art teacher he had a DATE income of CARDINAL [ Swiss ] francs . The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home . For the same reason , the NORP courts ordered him to live separately and prohibited him from approaching the mother 's flat . Before the child 's removal to GPE he had only had a restricted right of visitation , limited to TIME twice a week , under the supervision of the NORP social services . Concerning the conditions of a possible return of the child without his mother , according to the information provided by ORG on DATE , the father , who now shares a flat with CARDINAL other tenant and still works in an institution for religious education , would be prepared to take care of the child . Taking into account the laconic and not very reassuring nature of this information , together with the expert 's report by Dr [ ... ] , a psychiatrist , ORG considered that a return to GPE involved a risk of psychological harm for the child and might place him in an intolerable situation , whether or not he was accompanied by his mother . The court added that , in view of the father 's low income , the return to GPE of the respondent would also undermine the child 's economic stability and the mother would have to find a job in order to provide for them both .

In his appeal , the appellant does not criticise ORG finding that there was a grave risk that the child would be exposed to psychological harm if he returned to GPE without his mother . He is of the opinion , however , that such a risk would not exist if the child 's mother accompanied him to GPE , as could be reasonably expected of her . As regards that latter hypothesis , the judgment of ORG fails to adduce any evidence of such a grave risk of harm , or of any intolerable situation for the child . The expert psychiatrist failed , in particular , to address that question , simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return . As to the appellant 's aggressive behaviour towards the respondent , it does not appear from ORG judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother . She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well . The social worker appointed to supervise the right of visitation had described as marvellous the father - son relationship as established just before the child 's abduction by his mother . She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her . As to the considerations relating to the father 's low income and his ties with the religious community ' PERSON ' , as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of LAW , first paragraph , sub - paragraph ( b ) , of LAW . Whilst such considerations may help to determine which of the CARDINAL parents offers the best educational capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence ( Article CARDINAL of LAW ) – they are not pertinent , however , for a decision about the return of a child after a wrongful abduction ( see recital CARDINAL above ) .

As to the mother 's threat not to return to GPE , the judgment of ORG did not deal at all with the reasons for her refusal , whereas it should have established the existence of objective circumstances justifying that attitude . The Cantonal judges quoted the expert psychiatrist who had referred to the ' judicial risks ' that would be incurred in the event of a return to GPE , without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction . Supposing that such a risk were proven , she could not be expected to return to GPE with the child – and that would accordingly rule out the return of [ the child ] in view of the major psychological harm that would be caused to him by the separation from his mother . She made no comment on that question in her reply to ORG ; in particular , she has not claimed that immediate imprisonment , or even any criminal sanction at all , would be imposed on her . Neither has she argued that in the event of her return to GPE it would be impossible or very difficult for her to integrate , or , in particular , to find a new job . Consequently , it can not be said that the mother 's return , and therefore that of the child , would be unbearable for economic reasons either . Therefore , as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to GPE , it must be accepted that she could reasonably be expected to return to that ORG of origin accompanied by the child . In these circumstances , it is of no import that the information provided by ORG ( see recital CARDINAL above ) on which the ORG based , in particular , its justification of the exception to the child 's return as provided for by DATE , first paragraph , sub - paragraph ( b ) , of LAW , was deemed not very reassuring , because that information was based only on the hypothesis of the child 's return without his mother .

Accordingly , the Cantonal judges breached LAW , first paragraph , sub - paragraph ( b ) , of LAW in finding that they were entitled to apply an exception to the child 's return to the ORG of his habitual residence . The appeal must therefore be allowed and the judgment of the court below quashed , without it being necessary to examine the complaint concerning a violation of LAW . It is incumbent on the respondent to secure the return of the child ... to GPE by DATE . ...

ORG therefore finds as follows :

The appeal is allowed and the judgment of the court below is quashed .

The respondent is ordered to secure the return of the child ... to GPE by DATE .

On DATE , the child 's father , through counsel , lodged an application with LOC of the Peace , who was responsible for the enforcement of the return decision , seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure . On DATE , after the ORG had decided on DATE to indicate interim measures to the Government , the father withdrew his application of CARDINAL DATE .

The relevant provisions of LAW of DATE , which entered into force in respect of GPE on DATE , read as follows :

“ Preamble

The GPE signatory to the present Convention ,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody ,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , as well as to secure protection for rights of access ,

Have resolved to conclude a Convention to this effect , and have agreed upon the following provisions : ”

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . ”

“ For the purposes of this Convention –

( a ) ' rights of custody ' shall include rights relating to the care of the person of the child and , in particular , the right to determine the child 's place of residence ;

( b ) ' rights of access ' shall include the right to take a child for a limited period of time to a place other than the child 's habitual residence . ”

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

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

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith . ... ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child 's habitual residence . ”

“ In ascertaining whether there has been a wrongful removal or retention within the meaning of LAW , the judicial or administrative authorities of the requested ORG may take notice directly of the law of , and of judicial or administrative decisions , formally recognized or not in the ORG of the habitual residence of the child , without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable . ”

On DATE the Swiss ORG enacted the “ LAW and LAW and Adults ” , for the purpose of clarifying certain notions , especially in relation to the application of LAW of DATE . To date the LAW has not entered into force . The sections relied on by the applicants read as follows :

“ The return of a child places him or her in an intolerable situation , within the meaning of LAW , first paragraph , sub - paragraph ( b ) , of LAW , in particular where the following conditions are met :

( a ) placement with the parent who lodged the application is manifestly not in the child 's interest ;

( b ) the abducting parent is not , given the circumstances , in a position to take care of the child in the ORG where the child was habitually resident immediately before the abduction , or this can not reasonably be required of that parent ; and

( c ) placement in the care of a third party is manifestly not in the child 's interest . ”

“ The court dealing with the application for the return of the child shall decide , as required , on the child 's personal relations with his or her parents and order the measures necessary to ensure his or her protection .

Where the application for return has been received by ORG , the competent court may , at the request of ORG or any of the parties , order the appointment of a representative or a guardian for the child , or take other protective measures even if the application for return is not yet pending before the court . ”

In connection with LAW concerning this LAW , ORG submitted to ORG a “ dispatch ” ( PERSON DATE , pp . CARDINAL - CARDINAL ) of which the relevant passages read as follows :

“ CARDINAL.CARDINAL Return and interest of the child ( section CARDINAL )

In order to ensure an application of LAW of DATE that is better adapted to the interests of the child , it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation . The rule in section CARDINAL is not supposed to supersede the provision of LAW , first paragraph , sub - paragraph ( b ) , of LAW of DATE . The term ' in particular ' means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention .

Firstly , sub - paragraph ( a ) refers to the situations in which the child 's accommodation by the parent who requested the return is manifestly not in the child 's interest . If that is not so , in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility , there will not , in principle , be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused . This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child .

ORG - paragraph ( b ) governs cases in which the appropriateness of the child 's return can be assessed only from the standpoint of his or her relationship with the abducting parent . Where the child 's accommodation by the parent who requested the return is manifestly not to be taken into consideration , the problem of his or her return to the ORG of origin will be addressed differently , depending on whether the person who wrongfully removed or retained the child ( usually the mother ) is or is not in a position to return to that ORG . If the said parent is not able to do so because , for example , he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in GPE ( for example following remarriage or on account of a situation of hardship suffered by another family member living in GPE ) , the child 's psychological and physical stability may be at stake , because the child would , after the return , be obliged to live apart from his or her parents . Such separation is tolerable only in exceptional cases and must constitute an ultima ratio .

Second type of situation : where , given all the circumstances , it can not reasonably be required of the abducting parent that he or she take care of the child in the ORG where it had its habitual residence immediately before the abduction ( section CARDINAL(b ) ) . It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that ORG . He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there , with the child , the court 's final decision on the attribution of custody . In that context , we have in mind especially those cases in which the mother can not be guaranteed safe or affordable accommodation outside the home of his or her former partner . One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order , whilst the abducting parent is clearly the child 's primary carer . In such a case the child would only be taken to the ORG of origin to await the final attribution of the right of custody to the abducting parent , before coming back to GPE again with that parent . Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former ORG of residence . Such a solution would be inadmissible according to the spirit and purpose of LAW , because it would be incompatible with the child 's interest . But the situation would have to be beyond doubt for the NORP court dealing with the request for return . Unless the circumstances can be established clearly , the court will have to rule that the return to the parent 's ORG of origin is bearable and that , accordingly , the child will not be placed in an intolerable situation such as to justify a decision denying the return under LAW , first paragraph , sub - paragraph ( b ) , of LAW .

ORG - paragraph ( c ) refers to placement with third parties . If the child 's return were to lead to separation from the parent who wrongfully removed or retained the child ( because return is impossible for that parent or can not reasonably be required of him or her ) , it could only be carried out in appropriate conditions if the child were placed with a third party in the ORG of origin . However , such a solution should only be sought , with the resulting possibility for the competent NORP court to order the child 's return , if placement with CARDINAL party is not manifestly contrary to the child 's interest . That third condition can be satisfied only if separation from the parent remaining in GPE is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent DATE and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child . In any event , such a situation should only be envisaged as an ultima ratio .

It must further be noted that , for the return to be compatible with the child 's interests and , in particular , for the conditions of LAW to be fulfilled , the authority ruling on the matter has to be apprised of the situation prevailing in the ORG of origin and of the legal provisions in force there . Thus , the parties , and in particular the parents , have a duty to participate in the establishment of the facts . The hearing of the parties in person by the court ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) is therefore of great importance . The new provisions concerning the procedure and the cooperation with the competent authorities of the ORG of origin also play an essential role . The court must be able to verify whether , and in what manner , it is possible to ensure the child 's return ( section ORG ) ) . If it does not succeed in that task , or succeeds only partially , it will not be in a position to weigh up all the consequences that a return might have for the child . The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child 's reception and protection , in particular when there is some doubt about the requesting parent 's capacity to look after the child properly . In this respect , section CARDINAL is thus directly related to the practical application of section CARDINAL . ”

The relevant provisions of the Convention on the Rights of the Child of DATE , which entered into force in respect of GPE on DATE , read as follows :

“ ... Convinced that the family , as the fundamental group of society and the natural environment for the growth and well - being of all its members and particularly children , should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community ,

Recognizing that the child , for the full and harmonious development of his or her personality , should grow up in a family environment , in an atmosphere of happiness , love and understanding , ... ”

“ CARDINAL . The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents . ... ”

“ CARDINAL . GPE Parties shall ensure that a child shall not be separated from his or her parents against their will ... ”

“ CARDINAL . GPE Parties shall respect the right of the child to freedom of thought , conscience and religion .

GPE Parties shall respect the rights and duties of the parents and , when applicable , legal guardians , to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child . ... ”

“ CARDINAL . GPE Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child . Parents or , as the case may be , legal guardians , have the primary responsibility for the upbringing and development of the child . The best interests of the child will be their basic concern . ... ”

Recommendation CARDINAL ( DATE ) of ORG of ORG on a NORP Charter on the Rights of the PERSON states the following as the first of a number of general principles :

“ a. Children must no longer be considered as parents ' property , but must be recognised as individuals with their own rights and needs ; ... ”


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto

The applicant , Mr PERSON , is a NORP national who was born in DATE . The place where the applicant lives is unknown , as he is in hiding ( see paragraph CARDINAL ) .

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

On DATE the ORG convicted the applicant , together with his accomplice PERSON , of attempted drug dealing in large quantities ( Articles CARDINAL § CARDINAL and QUANTITY of ORG as then in force ) . The court established that the offence had been disclosed using a “ criminal conduct simulation model ” ( “ the model ” ) , which had been authorised against PERSON by ORG on DATE .

The court found that in DATE ( DATE according to the Government ) ORG , a policeman acting as an undercover agent under the model , had approached PERSON and , during their conversation on various topics , asked where he could get psychotropic drugs . PERSON had said that he could procure and sell samples to the policeman straight away and more thereafter if the samples were good . The samples would cost from CARDINAL to CARDINAL NORP Litai ( “ LTL ” ) ( MONEY ) per gram , depending on the quantities required . He had refused to lower the price for the first transaction , but suggested that it might be cheaper if ORG needed a regular supply . However , the officer had replied that he could not wait and they had agreed to telephone each other on the matter . PERSON had to undergo a hospital intervention . Thereafter , it was PERSON who contacted PERSON , suggesting a meeting so that he could provide ORG with drug samples .

On an unknown date , PERSON had contacted the applicant with a request to obtain the drugs ( QUANTITY ) , as PERSON liked the samples . The applicant had agreed to procure the narcotics . The Government contended that the applicant had contacted an acquaintance who had provided him with drugs .

On DATE , the applicant and PERSON had sold ORG a few samples . The Government contended that the applicant had provided just CARDINAL sample of amphetamines and stressed that he had stayed in the car while PERSON went to ORG 's car .

On DATE , ORG had telephoned PERSON , requesting more drugs for a total sum of CARDINAL . On DATE the applicant and PERSON had provided ORG with QUANTITY of amphetamines . The applicant and his accomplice had been arrested immediately . Both had pleaded guilty to the attempted drug offence .

NORP The court questioned PERSON as an anonymous witness in private , outside the courtroom via an audio relay . His identity was not disclosed in order to protect him and the proper functioning of the police drug squad . At that stage the defence did not put any questions to ORG After ORG 's testimony had been read out by the trial judge , the defence formulated some questions which were put to him by the judge and answered . The other evidence examined by the court included the transcripts of the conversations between PERSON and PERSON , the testimony of another police officer who had acted as ORG 's back - up during the operation , of their supervising officer and of the applicant and his co - accused , as well as an expert 's findings .

The documents relating to the use of the model were classified as secret and were not disclosed to the defence because they would have disclosed the identity of the police officers involved and the operational methods of the drug squad . The Government contended that the applicant was not , however , denied access to information about the execution of the model .

Defence counsel , in his final submissions to the trial court , contended that the undercover police officer PERSON had acted unlawfully and that the applicant had been incited to commit the offence . Consequently , the officer 's evidence could not be relied on . Furthermore , counsel contended that the applicant had never been involved in drug dealing before .

At the same time , PERSON 's defence counsel argued that the initial conversations between PERSON and PERSON had deliberately not been recorded by the police officer and that was because the crime was provoked .

The trial court concluded that the use of the model in the case had been lawful . The court observed inter alia :

“ [ T]he ORG is used to collect evidence about the criminal activities of a particular person . That is what happened in the present case . Having obtained information that M. ... was selling psychotropic substances , the police officer - whose identity was concealed - expressed his wish to get some drugs . The subsequent activities of [ both the applicant and his accomplice ] , i.e. the selling of a large quantity of drugs , were in part determined by the conduct of the police officer . ”

The court acknowledged that the applicant 's and his accomplice 's conduct had been influenced by Officer PERSON from the outset , and commented at the sentencing stage that it had not been established that the applicant and PERSON had sold or tried to sell drugs to anyone other than this officer .

The applicant was convicted of the attempted offence and sentenced to DATE imprisonment , as well as to the confiscation of LTL CARDINAL,CARDINAL ( MONEY ) .

The applicant appealed to ORG . His defence counsel argued that the sentence imposed was DATE that the crime was incited by the police officers and that the applicant had not even been mentioned in the authorisation for the model – the officers had controlled the actions of the applicant and his accomplice . As there was no real damage done to the interests protected by law , and the applicant had acknowledged his guilt , the goal of punishment could be reached by imposing another sentence . The Government contended that the applicant had not claimed that PERSON had overstepped the legitimate limits of investigation by influencing and inciting PERSON and the applicant to sell a large quantity of drugs : he had mainly raised issues relating to the punishment and had claimed that he had been drawn into committing the crime by PERSON

On DATE ORG upheld the conviction , considering that the applicant was guilty of a completed offence . The court also re - classified the conviction under LAW of LAW and set the sentence at DATE of imprisonment . With respect to the applicant 's entrapment allegations , the court noted :

“ The court finds the [ applicant 's ] arguments that he was drawn into committing the crime by PERSON unfounded . The evidence shows that PERSON , as the person who carried out the crime , had already been detected when drug - related crimes were being investigated . The case file shows that both PERSON and PERSON actively carried out the crime . ... [ I]n establishing the persons involved in drug - dealing , [ the officers ] did not overstep the limits of ORG . ... [ T]he police have only uncovered the ring of persons committing crimes and brought to an end their criminal activities . The officers joined in the crime that was already taking place ... Having established the group of accomplices , the officers brought to an end their criminal activities , but did not influence or incite them . ”

NORP The applicant lodged a cassation appeal . He alleged that the police actions had been unlawful . He argued that the authorities had applied ORG , as a consequence of which he had been induced into a crime by assisting PERSON to fulfil the police officer 's lucrative request to procure drugs . The applicant observed that he had acted on the police officer 's instructions . The lower courts had had no data that before the model had been sanctioned either the applicant or PERSON had ever been involved in similar or any other crimes . The applicant alleged that , at least from DATE , the police had known that he was an accomplice of PERSON However , the authorities had failed to sanction the application of ORG against him and , moreover , had continued provoking him to sell drugs in even larger quantities . Lastly , the applicant claimed a breach of his defence rights , alleging that he could not acquaint himself with the documents related to the authorisation to use the simulation model .

ORG dismissed the applicant 's cassation appeal on DATE . As regards the lawfulness of the Model , it held :

“ In the present case , ORG ... was applied in order to protect society and the ORG from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances . The model was sanctioned by ORG , in view of the possession of information about PERSON selling narcotic substances . Such data ... is a lawful ground for the use of the model .

By entering into contact with PERSON and offering to buy psychotropic substances from him ... , PERSON only joined in the criminal activity of PERSON and uncovered his accomplice . Such actions can not be considered as entrapment ( nusikaltimo provokavimas ) : it appears from the case file that PERSON and PERSON were not subject to any pressure ... [ The applicants ' ] allegation that the police undercover agent drew into the crime ( paskatino ) persons who had never offended before to commit a serious crime , is unsubstantiated . On the contrary , the use of [ the model ] helped to stop the criminal activity . ...

The information which is obtained by use of the [ model ] constitutes a ORG secret ... and is accessible only to persons who have special authorisation . Neither [ the applicant ] nor his lawyer has such authorisation . Consequently , the fact that secret operative information was not disclosed to them can not be regarded as a violation of the applicant 's defence rights . It should be noted that the first instance court acquainted itself with the secret operative information and its sources , and properly evaluated the lawfulness of the model . ”

As regards the qualification of the offence ORG held that “ the activities [ of PERSON and PERSON ] which constituted the objective part of the norm of LAW were controlled by the officials and partially realised under their influence . ” The applicant 's conviction was again re - classified as an attempt to sell drugs in large quantities ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the new Criminal Code ) , and the sentence of DATE imprisonment was maintained .

On DATE , the applicant 's defence counsel submitted a request to ORG for reopening the case , claiming that the courts ' decisions were based on inappropriate evidence which had been gathered unlawfully . This request was dismissed by ORG on DATE , on the ground that the arguments submitted by the applicant were intended to contest the factual background of the case and therefore were not a ground for reopening the case according to domestic law . The Government indicated that at the time when the request for reopening was lodged the applicant had already gone into hiding .

The Government submitted information about PERSON 's request for reopening his case , which has been granted by ORG on DATE after the judgment of ORG in the PERSON case ( PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) .

The relevant domestic law and practice , as well as the relevant international law , concerning police undercover activities and ORG , have been summarised in the judgment of DATE in the case of PERSON GPE ( [ ORG ] no . CARDINAL/CARDINAL , § § DATE ) .


CASE OF GOLDSTEIN AND S.C. RING PRESS SRL v. ROMANIA

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The first applicant was born in DATE and lives in GPE . He is a journalist ; on the date of the events in issue in this case he was the editorinchief of the DATE newspaper ORG and senior partner and legal representative of the applicant company . The applicant company is the owner and publisher of ORG and has its headquarters in GPE .

The applicants are represented by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

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

NORP Starting in DATE , the first applicant wrote a series of over CARDINAL articles in LOC concerning the difficult financial situation of the media trust PERSON also expressed his dissatisfaction with the alleged preferential treatment being given to GPE by the ORG in the payment of taxes .

M.P. lodged a complaint against the applicant company , claiming that the articles written by the first applicant constituted acts of unfair competition . It based its action on DATE ) of LAW ( Law no . CARDINAL/CARDINAL ) , which prohibited denigration as an act of unfair competition .

The trust made reference to the following articles : “ Minister [ ORG ] allows himself to be manipulated by [ GPE ] ” ( “ PERSON se lasă manipulat de [ GPE ] ” ) ; “ [ GPE ] – possible subject of interstate criminal investigation ” ( “ [ GPE ] – posibil subiect de cercetare penală interstatală ” ) ; “ [ GPE ] – choked by debts but insolent ” ( “ [ GPE ] – înglodat PERSON datorii , QUANTITY tupeu ” ) ; “ According to NORP accounting ORG ’s profits are showing a loss at [ GPE ] ” ( “ Profiturile CME după contabilitatea americană reprezintă pierderi la [ GPE ] ” ) ; “ Naivety ? Incompetence ? Corruption ? ” ( “ Naivitate ? PERSON ? PERSON ? ” ) ; “ [ GPE ] of GPE is being investigated by ORG ” ( “ [ GPE ] din România a ORG sub investigaţiile ORG din GPE ” ) ; and “ [ P. TV ] – ANTINATO ” ( “ [ P. TV ] – ANTINATO ” ) .

The articles contained references to reports by ORG , ORG and ORG of DATE . In an article from the same series , published on DATE in LOC , GPE were invited to present their point of view on the matter .

On DATE ORG allowed the action and ordered the applicant company “ to refrain from spreading , through its publications , defamatory statements about the plaintiff ’s activities ” . The applicant company was also ordered to pay MONEY ( ROL ) in respect of nonpecuniary damage and to publish a copy of the court ’s CARDINAL - page decision in ORG .

The relevant parts of the court ’s reasoning read as follows :

“ That [ the applicant company ’s ] acts fall within the sphere of competition is proved by the manner in which , in a series of articles in the newspaper ORG , it presented the activities of the [ media trust ] , activities which ... concern the public at large .

Relevant in this respect are the articles concerning the news agency [ owned by ORG ] about which [ the applicant company ] commented , for example , that : ‘ ... a press review can not be entrusted to an agency which is part of the media trust with the highest debt in the country – [ GPE ] ; it is in its interest to eliminate any reference to the corrupt circle which tolerates its debts.’ ...

Most of the articles contain ... open accusations about [ LOC ] .

They concern , for example , [ ORG ] ’s financial situation : ‘ the group with the highest debt in the ORG , ‘ an inveterate debtor’ , ‘ choked by debts but insolent’ , ‘ incorrect’ , ‘ ... accounting ORG ; or the group ’s business dealings : ‘ GPE ’s Enron’ , ‘ possible candidate for an interstate criminal investigation’ , promoting ‘ incestuous management’ .

Because of their gravity , these statements , even if proved true , promote a feeling of disapproval , even disgust towards the media group . The phrases indicate that the [ applicant company ] misunderstood the freedom of the press and the right to hold an opinion and to impart information ...

The repeated publication , over a long period of time , of negative information concerning a competitor ’s activities , in a manner capable of arousing their clients’ disapproval , can not constitute fair and acceptable competition ...

Guilt exists as long as there is unfair competition .

Bad faith is no more than an aggravating circumstance ... [ negative consequences ] may ensue even without intent . [ Lack of intent ] does not preclude responsibility .

Indeed , other newspapers published similar articles , but they did not constitute acts of competition , and were not defamatory or repeated over time . In any case , [ the fact that other newspapers published similar articles ] does not preclude the defendant ’s responsibility . ”

On DATE the decision was upheld by ORG . It thus became final .

The relevant parts of the appeal court ’s decision read as follows :

“ ... the impugned articles present a comparative evaluation of the journalistic means used by ORG and [ M. ] , a comparison unfavourable to [ GPE ] ...

The [ applicant company ’s ] bad faith is proved by its behaviour : extremely serious , biased accusations ; length [ of the campaign ] and the frequency of the articles against the [ ORG ] ; and also the manner in which the incriminated articles were written and presented ...

The first - instance decision has not infringed the [ applicant company ’s ] freedom of expression . [ The applicant company ] retains the liberty to publish any information , even unfavourable or negative , so long as the information is correct and true and the publication does not become a press campaign aimed at destroying a competitor ’s image and reputation ...

In the case at hand , the accusations of corruption , fraud , political blackmail and manipulation , as well as manipulation through mass media , undoubtedly affect the public image , prestige and reputation [ of GPE ] ... ”

Several other actions were lodged by GPE against the applicants : a similar complaint of unfair competition ( dismissed on DATE by ORG as GPE failed to pay the court fees ) , CARDINAL actions in tort ( the first dismissed on DATE and the second allowed by the first - instance court , but appealed against by the first applicant ) , and an action in defamation against the first applicant ( dismissed on DATE by ORG ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON . ORG ( “ the Government ” ) are represented by Mr PERSON , Representative of GPE at ORG .

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

At the material time the applicant was the head councillor of the Dmitrovskiy administrative district in GPE .

On DATE the GPE Mayor , by decision no . CARDINAL , fixed the election to the GPE City Duma for DATE . ORG is the permanent representative and legislative body of the city of GPE that has CARDINAL members elected for a term of DATE .

On DATE district electoral commission no . CARDINAL registered the applicant as a candidate in the election .

On DATE a private person PERSON lodged a complaint with a court , asking it to cancel the registration of PERSON because he had allegedly omitted to report a part of his income on his property declaration and because he had used his official position for electoral campaigning .

At TIME on DATE ORG delivered judgment . The court found that the applicant ’s property declaration had only listed his taxable earnings without mentioning his tax - exempt revenue , that he had organised a meeting with the local residents at the expense of the council budget , and that he had used his acquaintance with a Government minister in order to create the impression that his bid for elections had been supported by the federal executive power . By law , these grounds were sufficient to cancel the registration of the applicant as a candidate in the election . Pursuant to LAW , the judgment was final and enforceable with immediate effect .

At TIME on DATE which was the voting day , the district electoral commission no . CARDINAL ordered Mr PERSON ’s name to be struck out of the list of candidates . Whilst his name on the information stand had been crossed out without delay , the manual correction of the voting ballot papers was only completed TIME .

The applicant did not take part in the election , in which CARDINAL of his competitors participated .

On DATE ORG of GPE , in the proceedings initiated by CARDINAL private complainants , determined that that LAW was incompatible with a constitutional right to the effective judicial protection in so far as it provided for finality and immediate effect of judgments concerning violations of electoral rights , without affording the aggrieved party a possibility to lodge an appeal against them ( Ruling no . CARDINAL-P ) .

On DATE the applicant , relying on ORG decision , lodged a notice of appeal against the judgment of DATE . He challenged the factual findings and alleged a number of procedural defects . He claimed , in particular , that he had not been duly notified of the complaint lodged by PERSON , that a copy of the complaint had not been communicated to him and that the court had delivered its judgment at CARDINAL.CARDINAL p.m. , that is in TIME time ” , according to the definitions in LAW and LAW .

On DATE ORG of GPE upheld on appeal the judgment of DATE , endorsing the reasons exposed by ORG .

The LAW of the Russian Federation guarantees to the citizens of GPE the right to elect and to stand for election to ORG and municipal bodies ( LAW ) .

LAW ( Federal Law on LAW and of their Right to Participate in a Referendum , no . CARDINAL of DATE ) provided that registration of a candidate could be cancelled at the latest on DATE the voting day ( section CARDINAL § CARDINAL ) . A similar provision was contained in section QUANTITY of LAW on LAW of ORG , Mayor , Vice - Mayor and ORG , no . CARDINAL of DATE .

After the candidate had been registered , if the information he had submitted about himself , including his financial statement , was found to have been substantially untrue , his registration could be cancelled by the electoral commission ( DATE before the voting day ) or by a court of general jurisdiction ( from DATE before the voting day ) ( section CARDINAL § CARDINAL ) .

A procedural step may be performed until TIME on DATE of the time period within which it must be performed ( LAW ) .

Judgments concerning complaints about the actions or failures to act of ORG or municipal authorities , electoral commissions and their officials which violated ORG electoral rights , come into force immediately after their delivery , with exception of judgments concerning contestation of the election results ( LAW ) . An appeal may only be lodged against the judgments that have not come into force ( LAW .

On DATE ORG issued a ruling on compatibility of certain provisions of LAW with LAW ( no . CARDINAL-P ) . It determined , in particular , that whereas cancellation of a candidate ’s registration was permitted until and including DATE the voting day , a judicial decision ordering cancellation should have become final by DATE . ORG confirmed this position in its decision no . CARDINAL-O of DATE .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE / Main , GPE . She is represented before the ORG by PERSON PERSON and PERSON Klaus - Ulrich Ventzke , CARDINAL lawyers practising in GPE .

The respondent Government are represented by PERSON , ORG , and , subsequently , PERSON PERSON , PERSON , of ORG .

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

In DATE , ORG - “ ORG ” ) , a left - wing extremist terrorist movement , was founded in GPE . Its members intended to destroy the public order of GPE by terrorist action , in particular murder , attacks with explosives and the taking of hostages , in order to bring about a radical change of NORP society . Following a series of attacks in DATE , several “ ORG ” members were arrested . CARDINAL founding members , PERSON , PERSON and PERSON , were sentenced to life imprisonment in DATE .

As early as DATE , the “ ORG ” had launched terrorist attacks for the liberation of detained members . In DATE , hostages were taken at ORG in GPE . In DATE , ORG ( ORG ) PERSON was shot . In DATE , an attempt to kidnap a member of the management of the ORG ORG , PERSON , failed and he was shot . In DATE , “ ORG ” members tried to attack the building of ORG .

On DATE members of the “ ORG ” kidnapped Dr ORG , a NORP industrialist and President of the NORP ORG , in GPE ; his driver and CARDINAL policemen were killed immediately .

On CARDINAL DATE CARDINAL members of a “ Special Command ” ( “ PFLPSC ” ) of ORG for ORG ( “ LOC ) with headquarters first in GPE and later in GPE , hijacked the ORG aircraft Landshut on a flight from GPE to GPE / Main . The hijackers threatened to kill their CARDINAL hostages and to blow up the aircraft if their demands for the liberation of CARDINAL “ ORG ” members detained in GPE and CARDINAL “ NORP ” members imprisoned in GPE were not met . They forced the pilot to change destination and the plane subsequently landed in GPE , GPE , GPE , GPE and GPE , where the leader of the hijackers shot the captain of the aircraft for alleged disobedience . The aircraft then left for GPE , GPE , on DATE . On DATE , shortly after TIME , the hostages were liberated by members of a special unit ( “ ORG CARDINAL ” ) of the NORP ORG . CARDINAL of the hijackers were killed and the fourth , a woman , was seriously injured . The terrorists shot at CARDINAL members of the “ ORG CARDINAL ” and seriously injured them . CARDINAL hostages were injured by a hijacker . All remaining hostages , who had been subjected to continued threats to their lives throughout the kidnapping , survived .

Following the failure of the hijacking , Mr Schleyer was killed by “ ORG ” members . The CARDINAL “ ORG ” founding members detained in ORG prison committed suicide in TIME of DATE .

In DATE the “ ORG ” announced in a written declaration that they would suspend the attacks on representatives of the ORG and the economy .

In DATE the surviving fourth hijacker was convicted of , inter alia , murder , the taking of hostages , kidnapping , attack on air traffic and attempted murder . She was sentenced to CARDINAL years’ imprisonment .

On DATE , the applicant was arrested by the NORP police following an arrest warrant issued by ORG of ORG on DATE . She was suspected , in connection with the DATE hijacking of the ORG aircraft Landshut , of having acted as an accomplice to an attack on air traffic and the taking of hostages . Furthermore , she was suspected of having aided and abetted the kidnapping of ORG . The applicant was taken into detention on remand . She was released on CARDINAL DATE , when the arrest warrant was quashed . Following further investigations , the applicant was again arrested on DATE .

In the criminal proceedings against her , the applicant was assisted by several defence counsel .

On DATE , ORG at ORG preferred the indictment against the applicant , charging her , in connection with the Landshut hijacking , of having acted as an accomplice of acts of kidnapping , attack on air traffic , extortion , murder and attempted murder , and , in connection with the kidnapping of ORG , of having aided and abetted kidnapping , extortion and homicide .

On DATE , the GPE / ORG , following numerous hearings DATE and DATE , convicted the applicant of having aided and abetted an attack on air traffic , the taking of hostages , extortionate kidnapping and attempted murder on CARDINAL counts in connection with the Landshut hijacking . As regards the kidnapping of Mr Schleyer , ORG found that the applicant ’s intent to aid and abet this offence had not been proved . She was sentenced to DATE imprisonment .

In its long and detailed decision , ORG , having regard to the applicant ’s personal background , noted in particular that the applicant had sympathised with the “ ORG ” and had participated in shooting trainings in CARDINAL of the military training camps of the “ NORP ” in GPE , GPE . The applicant had confirmed that she was known as “ NORP ” there , had married a leading “ LOC member under NORP law and had lived there DATE , together with their son , born in DATE , and their daughter , born on CARDINAL DATE .

ORG found that on DATE CARDINAL “ ORG ” members , witnesses Mr PERSON and Ms M. , had taken a flight to GPE to meet members of the “ ORG ” in order to prepare the LOC hijacking . They had accepted the offer of the “ ORG ” to support their terrorist activities for the liberation of “ ORG ” members by hijacking a NORP aircraft . The leader of the “ ORG ” had then instructed the applicant and PERSON , a “ NORP ” member , to bring the weapons and the explosives needed for the hijacking to GPE . The applicant had received the weapons and the explosives in GPE on DATE or shortly before . On DATE , she had taken a plane , together with PERSON and her daughter , to GPE , transporting the weapons and the explosives in her cabin baggage . She had then handed over the material to a NORP called PERSON .

ORG based its findings as to the applicant ’s participation in the offences essentially on the evidence given by PERSON

The court observed that PERSON could not be questioned at the trial , as he was serving a prison sentence in GPE . The NORP authorities had refused to transfer him to GPE for the purposes of the proceedings , even though the Investigating Judge at ORG had given the assurance of safe conduct ( sicheres PERSON ) .

ORG therefore relied on the depositions of the witnesses Mr PERSON and Mr S. , officers of ORG . They had been present together with an interpreter when PERSON had been questioned by the NORP police on CARDINAL , DATE and DATE in the course of preliminary investigations of the NORP prosecution authorities against himself and the applicant ’s husband .

According to Mr PERSON and Mr S. , PERSON had initially denied having participated in the Landshut hijacking or having any knowledge thereof , as well as having been engaged in any other terrorist acts of the “ NORP ” . On DATE of questioning , PERSON had been very nervous and had given the impression that he was not telling the truth . During the second questioning , he had asked for DATE of reflection . At his third interrogation , PERSON , who had appeared relieved and calm , had announced that he would tell the full truth . He had admitted that he had been a member of the “ NORP ” since DATE . Furthermore , he had stated that in DATE , DATE before the Landshut hijacking , the leader of the “ ORG ” had instructed him to travel to GPE together with a NORP woman called “ Amal ” in order to transport weapons from GPE to GPE . In GPE , “ NORP ” had received weapons and explosives , hidden in a radio and in candy boxes . These weapons had been destined for hijacking an aircraft . DATE before the Landshut hijacking , he had travelled with “ NORP ” , accompanied by her daughter , from GPE to GPE with an NORP passport issued to “ PERSON ” . “ NORP ” had transported the weapons in her cabin baggage . In GPE she had handed this material over to a NORP called “ PERSON . They returned by plane to GPE via GPE DATE .

Regarding the use in evidence of PERSON statements , ORG considered that , on the basis of the clear and concurring statements of witnesses PERSON and PERSON and the letters rogatory issued by ORG , it was established that PERSON had been informed by the NORP police officers about his rights as an accused under NORP law , namely to remain silent and to request the taking of specific evidence for his defence . ORG further found that no unlawful means had been used to obtain PERSON statements . According to witnesses PERSON and PERSON , the NORP authorities had no interest of their own in these investigations , and there had been nothing to suggest that PERSON had been ill - treated or threatened or that promises had been made . Moreover , there was no indication that the statements made by PERSON had been the result of leading questions .

Recalling that a cautious approach was required in assessing statements of a witness who had not been heard at the trial and to whom the parties to the proceedings could not put any questions , ORG found that PERSON statements as to “ PERSON ’s ” , i.e. the applicant ’s , participation in the hijacking were credible . In this respect , ORG took into account that the witnesses PERSON and PERSON had given an account of PERSON . S. ’s demeanour during the interrogations under letters rogatory and had been able to put questions to him , and that PERSON was not an anonymous witness .

Furthermore , ORG found that witness PERSON , when heard again under letters rogatory by ORG in the course of this trial on DATE , had confirmed having travelled from PERSON to PERSON in DATE together with a NORP woman . He had , however , denied that they had transported any weapons . The court considered that the records of his questioning could be read out at the trial as the witness , who was still serving a prison sentence in GPE , was out of reach . The fact that the public prosecutor , the applicant and her defence counsel had had no opportunity to attend the questioning did not exclude the use in evidence of PERSON statements . According to ORG , the foreign procedural rules had to be observed in the first place , which in the instant case did not require the presence of the parties to the present proceedings at the questioning . In its letters rogatory , ORG had informed ORG that under NORP law , the parties to the proceedings were entitled to attend such a questioning and had invited it to notify it of the date of the questioning , should such presence be possible under NORP law . Nevertheless , bearing in mind the limitations on the rights of the defence , ORG decided not to consider these statements as evidence which could stand on its own . It noted , however , that PERSON had no reason wrongfully to incriminate both himself and the applicant .

ORG argued that the discrepancies between PERSON statements at this hearing as opposed to his submission at his hearing in DATE had occurred because the NORP court had not sufficiently confronted the applicant with his earlier statements . This was attributable to the fact that the parties to the proceedings had not been allowed to attend this questioning . However , a further hearing of PERSON under letters rogatory , as requested by the applicant , or further investigations to obtain evidence as to the circumstances in which PERSON statements had been made were not called for . Only Said S. ’s hearing in person at the trial would have been suitable to rebut the evidence already obtained at that stage .

Furthermore , ORG found that other important evidence confirmed PERSON statements .

Thus witness P. , a high - ranking official of ORG , had indicated that already on DATE ORG had been notified by an informer that CARDINAL persons using the names “ PERSON ” , “ PERSON ” and “ PERSON ” , born on CARDINAL DATE ( the date of birth of the applicant ’s daughter ) , had travelled from GPE to GPE on DATE . The CARDINAL adults were associated with terrorist organisations . P. had refused to disclose the identity of the informer or the documents concerned . ORG noted that its requests addressed to ORG and ORG for the ORG for disclosure of these sources and documents had been refused for good reasons , namely , the necessity to protect life and limb of persons who were not within NORP jurisdiction . It accepted the authorities’ argument that notably the applicant ’s husband , a former leading member of the “ NORP ” whom the applicant had kept informed about the proceedings against her , was still capable of organising assassinations of or acts of revenge against witnesses incriminating the applicant .

Moreover , witness PERSON , a high - ranking official of ORG , had stated that in DATE a reliable informer had identified the applicant as “ NORP ” on photographs . Another informer had notified ORG that a woman called “ NORP ” had travelled with a “ LOC member and a baby from GPE to GPE , and had also known the false names and the numbers and origin of the passports used by them . Subsequent investigations had shown that the passport carried by “ NORP ” , issued to “ PERSON , born PERSON ” , had been stolen in the GPE and that the passport used by PERSON was a fake of the same type as the passports later used by the hijackers . The informer in question had identified the applicant on photographs as “ NORP ” and as the person transporting the weapons and explosives . Witness PERSON had stated that he was not entitled to disclose the identity of the informers . ORG requests to ORG and ORG for the ORG for disclosure of the identity of its informers equally remained unsuccessful . Both authorities invoked the need to protect live and limb of their informers for the same reasons as those given with respect to the informer whose statements were reported by witness P.

ORG noted that the statements made by PERSON and the evidence supplied by anonymous informers were further corroborated by the results of investigations into the passenger lists of the flights from GPE to GPE on DATE and from GPE to GPE - Orly on DATE . These lists contained references to the false names used by PERSON , the applicant and her daughter . ORG equally took into account evidence of the applicant ’s and PERSON stay at a hotel in GPE . It had regard to bills bearing the names “ PERSON ” and “ PERSON ” , and to explanations given by the managing director of the hotel who had indicated that CARDINAL of his employees had remembered that a man with an NORP name accompanied by a NORP woman and a small child had stayed at the hotel at the relevant time .

As far as the number and types of weapons and explosives used were concerned , ORG had heard several witnesses and had regard to photographs contained in the file , showing inter alia the radio serving as a hiding place for the weapons , which had been found in the aircraft .

Moreover , ORG took into account the applicant ’s own statement that PERSON had been a member of the “ NORP ” and had been on GPE DATE prior to the Landshut hijacking together with the surviving hijacker .

As to the applicant ’s defence , ORG found that there was nothing to show that she had not left GPE at the relevant time , in particular that her young child had been seriously ill . Furthermore , witness B. , the “ ORG ” member who had met “ PFLP ” members in GPE at DATE and in DATE , had stated that he had seen the applicant in GPE . ORG , in concluding that PERSON ’s depositions were credible , had notably regard to the consistency of his statements , the detailed account of his meeting with the applicant and the fact that as a former “ ORG ” member , he did not have reasons to incriminate the applicant wrongfully . The statements made by PERSON Ms M. , CARDINAL “ ORG ” members , and by the applicant ’s son to the effect that they had not seen the applicant leaving GPE and being in GPE did not refute PERSON ’s depositions .

In ORG view , the applicant had strong motives to participate in the hijacking , especially since her husband had played a leading role in organising it . Moreover , since DATE she had assisted , as a “ ORG ” sympathiser , the CARDINAL “ ORG ” members detained in GPE .

On DATE , ORG , following an oral hearing , dismissed the applicant ’s appeal on points of law . It noted that ORG had found the applicant ’s participation in the offences in question to be established by the statements made by PERSON in the course of his interrogation by the NORP police in the presence of NORP police officers . PERSON had confirmed in substance these depositions when he was questioned under letters rogatory by ORG . His statements had been confirmed by numerous other items of evidence , such as material obtained from informers , passenger lists and hotel bills , as well as statements made by the former “ ORG ” member B.

As regards the applicant ’s complaint about the use in evidence of the oral testimony of witnesses P. and PERSON , ORG found that there was no breach of LAW CARDINAL and CARDINAL ( d ) of the Convention due to the fact that the informers themselves could not be questioned . It considered that ORG had correctly taken a cautious approach in assessing this evidence and had merely considered it as corroborating the statements of witness PERSON and other items of evidence .

Moreover , referring to the case - law of ORG ( in particular PERSON v. the GPE , judgment of DATE ) , ORG considered that , unlike the said case , the present case did not concern statements made by anonymous police officers . The informers who had remained anonymous were obviously persons operating abroad in cooperation with the NORP authorities to combat international terrorism . These persons and their families were particularly exposed to the risk of acts of revenge by terrorist organisations and would be generally endangered if identified . In any event , their depositions had not been the basis for the applicant ’s conviction , but merely corroborating evidence . ORG cautious approach in assessing the evidence obtained from anonymous informers had counterbalanced the limitations on the rights of the defence . In particular , ORG had not only examined whether the authorities’ refusal to disclose the informers’ identities had been arbitrary or obviously erroneous , but had also reached the conclusion that in substance the authorities’ decisions had been reasonable and convincing .

According to ORG , the applicant ’s complaint that ORG had examined witness PERSON on oath was well - founded . In this respect , it noted that there was no indication in the trial record or in the reasoning of the judgment that ORG had considered that , on account of his possible participation in the offences concerned , Mr B. should not have been administered an oath ( Section CARDINAL no . CARDINAL of the Code of Criminal Procedure ; see ‘ Relevant domestic law and ORG below ) . However , this procedural flaw was irrelevant for the outcome of the proceedings . In its detailed assessment of the evidence , in particular of PERSON ’s credibility , ORG had not mentioned that PERSON had been administered an oath . Therefore , it could be excluded that ORG had found the witness more credible due to the fact that he had made his statements on oath .

On DATE , the applicant lodged a complaint with ORG , alleging that the criminal proceedings against her , in particular the taking and assessment of the key evidence for the prosecution , had been unfair .

On DATE , the GPE / ORG ordered that the remainder of the applicant ’s prison sentence be suspended on probation . It found that the applicant , having regard to the length of her detention on remand , had already served CARDINAL of her prison sentence . It fixed a probationary period of DATE .

On DATE , a panel of CARDINAL judges of ORG refused to admit the applicant ’s constitutional complaint .

ORG found that the examination of the complaint was not necessary for the protection of the applicant ’s constitutional rights . The impugned decisions could not be objected to from a constitutional point of view , although the application of the procedural rules resulting in the applicant ’s conviction might be seen as close to the borderline of what could be accepted under LAW . There was no indication of arbitrariness .

Referring to its own case - law , to the case - law of ORG and to decisions of ORG , ORG recalled that statements obtained from informers who had not been heard at the trial were , as a rule , not sufficient for a judge to reach a final conclusion as to the truth of this information . That information had to be corroborated by other important aspects and indices . The trial court had to be particularly cautious where , as in the present case , informers of police authorities or intelligence services could not be heard in court for the sole reason that the authorities concerned had refused to disclose their identity or to authorize their officers testifying in court to give evidence in this respect .

ORG found that in the present case there was an accumulation of hearsay evidence which did not directly relate to the facts to be established , but consisted of circumstantial evidence pointing to such facts . However , the trial court ’s assessment and evaluation of evidence had not been confined to the depositions of the police officers PERSON and PERSON concerning the highly incriminating statements made by the accomplice PERSON and to information obtained from police and intelligence service informers operating abroad , as presented by the witnesses PERSON and PERSON Further important circumstantial evidence was the testimony of witness PERSON His statements showed that the applicant ’s assertion that she had not been in GPE at the relevant time was wrong , thereby confirming the depositions made by PERSON

Therefore , ORG view that the criminal proceedings against the applicant , taken as a whole , had not been unfair within the meaning of Article CARDINAL § § CARDINAL ( d ) of the LAW , was unobjectionable , at least from a constitutional point of view .

The decision was served on DATE .

Pursuant to the provisions of LAW , a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person ’s observation . In principle , the witness ’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement ( Section CARDINAL of the said Code ) . According to the constant case - law of ORG , Section CARDINAL permits the hearing of witnesses giving hearsay evidence . In particular , it is possible to hear a police officer on evidence obtained from an informer whose attendance at the hearing can not be secured .

As an exception to the above - mentioned principle , the examination of a witness or co - accused may be replaced by reading out the written record of his previous examination by a judge . This is permitted if there are insurmountable impediments preventing the witness or co - accused from attending the main hearing for a long or indefinite period of time ( Section CARDINAL no . CARDINAL of the said Code ) .

Pursuant to Section CARDINAL no . CARDINAL of the said Code , it is prohibited to administer an oath to a witness who is suspected of having participated in the offence which was the subject - matter of his hearing .

The public prosecutor , the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing ( Section CARDINALc § CARDINAL of the Code of Criminal Procedure ) . A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody ( Section CARDINALc § CARDINAL of the said Code ) .