Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant is a NORP national born in DATE and currently resident in GPE .

On DATE he submitted to GPE an application for a disability pension under section CARDINAL of PERSON no . CARDINAL .

On the orders of the ORG an administrative inquiry was carried out by GPE , which concluded on DATE that the applicant was entitled to a pension because he had been tortured during the dictatorship and had suffered irreparable damage to his health as a result .

On CARDINAL DATE ORG advised ORG of the State ( PERSON ) to grant the applicant a pension . ORG considered that the applicant had been incarcerated because of his activities against the military dictatorship and had been tortured . As a result , his right hand was paralysed .

On DATE ORG ( Ypiressia Kanonismou Syntaxeon ) of ORG rejected the applicant ’s application on the ground that the conditions of CARDINAL of PERSON no . PERSON ( see paragraph CARDINAL below ) were not fulfilled . ORG considered that the applicant ’s allegations were not proved by court decisions or public documents issued before DATE and that the applicant had not been injured as a result either of his direct involvement in the struggle against the dictatorial regime or his opposition thereto . On DATE the applicant appealed to ORG ( PERSON ) .

The applicant ’s appeal was heard by ORG on DATE . It was rejected on DATE . ORG considered that the applicant ’s allegations were not proven by a court decision or public document issued before DATE . It also found that the torturing of the applicant during the dictatorship had not resulted in an “ injury ” but in an “ illness ” . The law , however , provided for the award of a pension to persons who had been “ injured ” as a result of their opposition to the dictatorship .

On DATE the applicant lodged an appeal on points of law with the ORG sitting in plenary , claiming that ORG had erred in law .

The Plenary held a hearing on CARDINAL DATE at which the applicant did not appear . On DATE ORG decided that the applicant had not been duly summoned and adjourned the case .

Another hearing was held on DATE at which the applicant was duly represented . On CARDINAL DATE ORG upheld the applicant ’s appeal , on the ground , inter alia , that ORG had failed to examine in depth the cause of the paralysis of the applicant ’s right hand . It sent the case back to its Third Chamber for reconsideration .

ORG held a hearing on DATE at which the applicant was neither present nor represented . On DATE it decided to adjourn the case . It ordered the applicant to produce within DATE a number of decisions issued in the context of criminal proceedings against the applicant before DATE . It also sent the applicant ’s file to ORG ordering it to examine the applicant and to deliver an opinion on the following issues : Was the applicant ’s paralysis the result of “ injury ” or “ illness ” ? What was the extent of his disability ? Was there any relationship between his disability and his activities during the dictatorship ?

On DATE ORG considered that it could not deliver an opinion on the applicant ’s case in the absence of any evidence that the applicant ’s health condition was related to his activities during the dictatorship . On DATE the applicant was informed of the ORG ’s decision not to deliver an opinion .

On DATE ORG held a fresh hearing .

A further hearing was held on DATE . The ORG has not been informed of any decision of ORG . The Government state that judgment is to be delivered shortly .

Section CARDINAL of Law no . ORG provides the following :

“ All NORP citizens who were injured by or as a result of their direct involvement in the struggle against the dictatorial regime of CARDINAL DATE to CARDINAL DATE or as a result of their opposition to the above - mentioned regime are entitled to a pension paid by ORG , provided that the above - mentioned circumstances have been recognised in a court decision based on public documents issued no later than DATE .

This provision does not create a right to a pension for persons who contracted an illness , as distinct from an injury , through their opposition to the dictatorship . Such a right was however created by a law of DATE which is not relevant to the present case .

The award of a pension is not automatic but has to be applied for through the Prefecture to ORG of ORG .

An objection against the decision of ORG can be brought before ORG of ORG ( Article CARDINAL of the NORP and Military Pensions Code ) .

An appeal lies within DATE to a Chamber of ORG ( Article CARDINAL ) . A further appeal , on points of law , lies within DATE ( Articles CARDINAL and CARDINAL ) to ORG , which has the power to refer the case back to the competent ORG ( LAW ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in FAC ( GPE ) . He was represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE the applicant was arrested and taken into police custody at the headquarters of the anti - terrorism branch of the GPE security police .

On DATE , after being interviewed by the public prosecutor at ORG , he was taken before a judge of that court who on DATE ordered his detention pending trial .

On DATE the public prosecutor committed the applicant for trial in ORG .

The criminal proceedings against the applicant are still pending .

The applicant ’s lawyer dated his application DATE and took it on DATE to the post office in PERSON ( central GPE ) , where post is collected regularly several times a day .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant , Mr Ayodeji Yesufa , is a NORP national who was born in DATE . He currently lives in GPE . He was represented before ORG , a firm of solicitors practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

The applicant and his brother arrived in GPE in DATE to join their father , who was resident there , and their sister , who was born in GPE and was a NORP citizen . When the applicant ’s father died in DATE his mother came to GPE to care for him . On DATE the applicant was granted Indefinite Leave to Remain as a dependant of his mother .

Shortly after the death of his father , the applicant began to mix with older children and he started to commit criminal offences . When he was DATE he was expelled from school . DATE he accumulated CARDINAL criminal convictions arising from CARDINAL sentencing hearings for offences including criminal damage , driving whilst uninsured , receiving stolen goods , possession of a Class B drug ( cannabis ) , common assault and burglary . The maximum sentence that he received was a DATE detention and training order .

On DATE the applicant was convicted of robbery . On DATE was sentenced to CARDINAL years’ imprisonment . In CARDINAL separate incidents the applicant and a number of accomplices had stolen ORG and some alcoholic beverages from an off - licence and CARDINAL items of jewellery from a pawn brokers . During the second incident the applicant and his accomplices were armed with iron bars .

On DATE the Secretary of ORG for ORG wrote to the applicant asking him to submit reasons why he should not be deported following his conviction on DATE . His representations were considered but the Secretary of ORG concluded that his deportation would be conducive to the public good . That decision was issued to the applicant on DATE . He appealed to ORG ( “ ORG ” ) . On DATE the Immigration Judge dismissed the appeal , holding , inter alia , that the decision appealed against would not cause GPE to be in breach of the law or its obligations under LAW as the applicant did not enjoy family life in GPE and there were no insurmountable obstacles to his mother and brother returning to GPE with him . The ORG found no error of law in the NORP Judge ’s decision and refused to make an order for reconsideration . In an undated decision ORG ordered the ORG to reconsider the Immigration Judge ’s decision on the ground that the judge had erred in law in finding that the applicant ’s family could be expected to return to GPE with him . On reconsideration , the ORG accepted that the applicant had established both family and private life in GPE but held that any interference was not a disproportionate exercise of the Secretary of ORG ’s discretion to make a deportation order . On DATE the ORG refused to grant the applicant leave to appeal to ORG .

The applicant was released on licence on DATE . He subsequently was convicted of a further CARDINAL offences , including carrying a lock knife in a public place , breaching bail conditions , possession of a Class A drug and motoring offences .

On DATE the applicant was deported to GPE .

On DATE the applicant indicated for the first time that he had been in a DATE relationship with a NORP citizen , who had given birth to their child on DATE .

Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of LAW DATE provide for the making of Immigration Rules by the Secretary of ORG . Section CARDINAL(CARDINAL)(a ) of the same LAW ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .

Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(a ) of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against a decision to deport , inter alia , on the grounds that the decision is incompatible with the LAW and that it was not in accordance with ORG .

The Rules relating to the revocation of a deportation order are contained in paragraphs CARDINAL and CARDINAL of ORG CARDINAL ( as amended ) , supplemented by LAW ( “ IDIs ” ) . There is no specific period after which revocation will be appropriate although LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “ spent ” under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation will not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government are represented by Mr P. Laptev , Representative of GPE at ORG .

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

On DATE the applicant ’s husband , Mr Podolskiy , was presented a book Doctors of the CARDINALth Century ( “ ORG века ” ) published by the PERSON health protection department . On reading the book Mr Podolskiy found that his name had been omitted from a chronological list of directors of the GPE health protection department , although he had worked in that position from DATE . Also , in another place there was a mistake in his initials . Finally , the book contained a photograph of Mr Podolskiy with an unknown woman ; the caption of the photograph indicated that the persons on the photograph were “ Mr Podolskiy with his spouse ” .

On DATE Mr Podolskiy lodged a civil action against the authors and publishers of the book for the protection of his honour , dignity and professional reputation and compensation for non - pecuniary damage . He also sought an injunction to stop dissemination of the book , recall all printed copies and make necessary corrections . Mr Podolskiy submitted that the omissions in the publication damaged his professional reputation and also “ upset the peace ” of his family life . He explained that he had been married to his spouse for DATE and they both adhered to “ traditional moral values ” that included disapproval of divorce and re - marriages . He also stated that because of the publication he had to seek medical assistance in DATE .

On DATE ORG of PERSON gave its judgment . The court found that a mistake in Mr Podolskiy ’s initials was a typographical error . It established that Mr Podolskiy ’s name had been wrongly omitted from the chronological list and the caption of the picture was indeed incorrect . Nevertheless , the court concluded :

“ However , the court does not consider that [ this information ] is damaging , i.e. [ that it ] contains indications that the plaintiff has committed an offence under existing laws or has transgressed moral principles ...

Re - marriages are not prohibited by law , not condemned in society and can be entered into because of various reasons . ”

The court dismissed Mr Podolskiy ’s action in full . On DATE Mr ORG ’s lawyer appealed against the judgment . He argued , in particular , that the damage caused to the plaintiff ’s goodwill had to be assessed with regard to the plaintiff ’s individual subjective values , such as the conviction that remarriages were unacceptable .

On DATE Mr Podolskiy died of a heart attack .

On the applicant ’s request , she was recognised as Mr Podolskiy ’s legal successor in the civil proceedings . The court agreed that the applicant also had her own interest in pursuing the claim .

On DATE ORG upheld the judgment of DATE . The court confirmed that the information in the book was incorrect ; however , it did not consider that such information was damaging to Mr Podolskiy ’s or the applicant ’s dignity , honour or reputation .

LAW of GPE of DATE provides that a court may award compensation for non - pecuniary damage to an individual who sustained such damage as a result of acts that violated his personal non - pecuniary rights .

LAW of the Russian Federation provides that an individual may seize a court with a request for retraction of information damaging his or her honour , dignity or professional reputation unless the person who distributed such information proves its accuracy . In addition to retraction , the individual may also claim compensation for losses and non - pecuniary damage sustained as a result of distribution of such information .


Violation of Art. 5-1;Non-pecuniary damage - financial award

The applicant was born in DATE and is currently staying in a custodial clinic in the GPE .

DATE , the applicant was convicted CARDINAL times of theft , criminal damage , assault and aggravated assault . On DATE ORG ( arrondissementsrechtbank ) convicted the applicant of assault and assault occasioning grievous bodily harm committed in DATE . Having found that at the time of the commission of the offence the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree , ORG sentenced the applicant to DATE imprisonment in combination with an order for his confinement in a custodial clinic ( hereafter a “ ORG order ” - terbeschikkingstelling met bevel tot verpleging van overheidswege ) .

On DATE ORG ( gerechtshof ) upheld ORG judgment of DATE .

Although the applicant had initially filed an appeal in cassation with ORG ( PERSON ) against the judgment of DATE , he withdrew this appeal on CARDINAL DATE when , after having served his prison sentence , the ORG order took effect . However , he was not transferred to a custodial clinic but was held in preplacement detention in an ordinary remand centre ( PERSON bewaring ) .

On DATE , the applicant filed an appeal with ORG ( beroepscommissie ) of LAW for ORG ( Centrale PERSON ) against the apparently automatic prolongation by DATE of the DATE period of preplacement detention referred to in LAW on confinement to a custodial clinic of persons subject to a ORG order ( PERSON verpleging ter beschikking gestelden ; hereinafter referred to as “ the DATE LAW ) . He submitted that this DATE period had expired , that he had not received written notification from the Minister of ORG that his preplacement detention would be extended by DATE and , apparently , that the procedure for selection and placement in a custodial clinic in his case had not yet started .

DATE and DATE the applicant stayed in the Dr. ORG for the purpose of selection and subsequent placement in a custodial clinic .

On DATE the applicant filed a further appeal with ORG against the second apparently automatic prolongation of his preplacement detention by DATE . He requested ORG to suspend the second prolongation request .

On DATE the Minister of ORG filed written submissions with ORG in response to those filed by the applicant .

On DATE the President of ORG rejected the applicant 's request to suspend the further execution of the Minister 's decision of DATE to prolong the applicant 's preplacement detention in the remand centre by DATE . Taking into account the fact that the applicant , at the time of the decision , had spent DATE awaiting placement in a custodial clinic and that , according to the medical report of DATE , there was no apparent urgent medical need for his placement in a custodial clinic , the President found no pressing interest which required the suspension of the Minister 's decision .

On DATE the applicant filed an appeal against the third apparently automatic prolongation by DATE of his preplacement detention . On DATE the Minister informed the applicant that he could not yet be admitted to a custodial clinic and that his preplacement detention had been prolonged by a further period of DATE , i.e. from DATE to DATE .

On DATE , after a hearing held on DATE , ORG gave its decision on the applicant 's appeals against the first and second automatic prolongations of his preplacement detention . This decision , in so far as relevant , reads :

“ CARDINAL . The challenged decisions

' CARDINAL.CARDINAL NORP The Minister had not extended by CARDINAL DATE the period within which the appellant should have been placed in a custodial clinic for persons subject to a ORG order . Pursuant to LAW of the [ DATE ] Act ... , this failure is to be considered a decision to prolong this period .

NORP The Minister had not extended by DATE the period within which the appellant should have been placed in a custodial clinic for persons subject to a ORG order . Pursuant to LAW of the [ DATE ] Act ... , this failure is to be considered a decision to prolong this period . ...

The facts

... The appellant 's ORG order took effect on DATE . Since then , he has spent a transitory period in the PERSON remand centre awaiting placement in a custodial clinic .

By letter of CARDINAL DATE the Minister informed the appellant that he could not yet be placed in a custodial clinic and that the transitory period ( passantentermijn ) pending his placement in a custodial clinic had , for the time being , been ipso jure prolonged by DATE from CARDINAL DATE to DATE ... On DATE the appellant was heard by a penitentiary adviser .

By letter of CARDINAL DATE the Minister informed the appellant that he still could not be placed in a custodial clinic and that his preplacement detention pending his admission to a custodial clinic was to be prolonged further from DATE to CARDINAL DATE .

The appellant was admitted for selection purposes DATE and DATE to ORG in GPE . He was selected for the custodial clinic X in Y.

ORG has provided a medical statement dated DATE on the appellant 's mental condition , which has been supplemented by a report of DATE .

The parties ' submissions

... The [ applicant 's ] lawyer further considers , relying on the learned observation by a commentator on the [ Bizzotto v. GPE ] judgment of ORG DATE , ORG ( PERSON ) DATE , no . CARDINAL , that there is already a violation of LAW when the DATE delay is exceeded . ...

[ The Minister ] , as to the [ applicant 's ] reliance on LAW , points out that the ORG order serves in the first place for the protection of society and , in the second place , for the treatment of the person concerned . According to ORG case - law , the execution of a ORG order in a remand centre is not an unlawful deprivation of liberty . Where a reproach can be made of the fact that the ' treatment aspect ' is lacking , liability for damage arises . If an appeal is declared well - founded by ORG , the ' treatment aspect ' is also lacking and imputable as from the relevant expiry date .

The assessment

... CARDINAL.CARDINAL.CARDINAL The following must be first stated in assessing the appeal . On the basis of the history of the enactment of LAW ... , it must be assumed that it has been the intention of the legislature that a lack of capacity in the custodial clinics may in principle give the Minister reason to prolong by DATE , as often as necessary , DATE set out in the first paragraph of this provision within which a person subject to a ORG order must be placed in a custodial clinic . A decision by the Minister to prolong this period on grounds of lack of capacity does not , therefore , constitute an automatic ground for declaring the appeal well - founded . ...

CARDINAL.CARDINAL.CARDINAL ... in examining appeals filed by persons subject to a ORG order against decisions of the Minister to prolong the transitory period , ORG must at least have at its disposal information to be supplied by or on behalf of the Minister in relation to :

– the available capacity or the lack of capacity in custodial clinics at the time of taking the decision to prolong the transitory period , as well as a prognosis on this for DATE following the decision ;

– an indication of the average duration of transitory stays in remand centres of persons subject to a ORG order at the time when the decision to prolong the transitory period was taken ;

– the pro justitia report in relation to the mental condition of the person concerned who is subject to a ORG order , and a statement by a doctor on the question whether the person concerned , in view of his mental condition , is able to stay any longer , on a transitory basis , in a remand centre .

CARDINAL NORP The Minister is obliged , prior to the expiry of the transitory period referred to in LAW ... , to take a decision on the prolongation of this period and , in doing so , to comply with the procedural regulations set out in LAW ( a ) of the [ CARDINAL LAW ... – the obligation to hear – and LAW ... – the obligation to inform . These regulations are of essential importance for the legal position of the person subject to a ORG order and the Minister is therefore obliged to comply with these regulations in the decision - making process concerning the prolongation of the transitory period . ...

CARDINAL The argument based on LAW fails . The detention of a person subject to a ORG order in a remand centre is , after all , based on the judicial decision in which the ORG order has been imposed , whereas LAW ( b ) of the [ DATE ] Prisons Act ( Beginselenwet Gevangeniswezen ) provides that ' remand centres are intended for the accommodation of all others lawfully deprived of their liberty by a judicial decision ... for as long as their admission to another suitable place is not possible ' .

CARDINAL In so far as the appeal is directed against the prolongation of the transitory period for placement from CARDINAL DATE until DATE , ORG considers as follows :

CARDINAL.CARDINAL.CARDINAL It has appeared from the examination of the present case that the Minister did not , prior to the expiry of the delay for placement , take a decision to prolong that delay . Nor has the appellant been heard on this subject in a timely manner . The Minister 's reliance on the exception contained in LAW ( a ) of the [ CARDINAL LAW ... , as regards refraining from hearing requests of an urgent nature , fails . This provision is not applicable as in the present case there was no sudden event requiring an immediate measure and thus no opportunity to hear the person concerned .

ORG is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister 's [ implied ] decision to prolong the transitory period must be quashed on formal grounds .

CARDINAL ORG considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister 's conduct referred to in DATE . ORG fixes this compensation , having heard the view of the Minister , at MONEY ( NLG ) .

CARDINAL.CARDINAL.CARDINAL As the Minister , regarding the prolongation at issue , has not sent separate written notification to the appellant , but did inform the appellant , by written notification of DATE , of the further prolongation of the transitory period after he had been heard on that matter , ORG will not order the Minister to take a new decision in respect of the period referred to in CARDINAL . but will examine whether there are also material grounds for quashing the ... decision . Further reference is made to the considerations set out in CARDINAL .

CARDINAL In so far as the appeal is directed against the prolongation of the transitory period for placement from DATE until DATE , ORG considers as follows :

CARDINAL It has appeared from the examination of the present case that the Minister did not , prior to the expiry of the delay for placement , take a decision to prolong that delay . ORG is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister 's decision to prolong the transitory period must be quashed on this formal ground .

CARDINAL.CARDINAL.CARDINAL ORG considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister 's conduct referred to in CARDINAL . ORG fixes this compensation , having heard the view of the Minister , at NLG CARDINAL .

CARDINAL It has been sufficiently established from the examination of the present case that , as a result of a lack of capacity , the appellant has still not been placed in a custodial clinic . It has also been sufficiently established that the Minister , in his decision on this matter , has not deviated from his policy to determine the order of placement in a custodial clinic chronologically according to the date on which the ORG orders in respect of the appellant and other [ like ] persons ... took effect .

CARDINAL NORP The total duration of the appellant 's stay in a remand centre [ awaiting placement in a custodial clinic ] ... has not yet been so long that these decisions to prolong the transitory stay , balancing all relevant interests , must be regarded as unreasonable or inequitable .

CARDINAL It appears from the medical statement of ORG of DATE that the appellant 's mental condition at that moment was such that a further stay in the remand centre should be regarded as irresponsible . Although ORG considers it highly desirable that the Minister , as regards subsequent prolongation decisions , should submit on each occasion updated medical reports , it finds , in respect of the present appeals , that the medical report drawn up shortly before the second prolongation suffices . From the report on the selection examination in the period DATE and DATE ( falling partly within both of the prolongation periods challenged ) , it does not appear that the detention was unsuitable during the period of admission to the ORG .

CARDINAL ORG is of the opinion , having regard to the above considerations , that the decisions challenged are not in violation of the substance of the [ CARDINAL ] Act ... , and that the period within which the appellant should be placed in a custodial clinic had to be prolonged from CARDINAL DATE to DATE and from DATE to DATE .

CARDINAL As the decisions challenged must be quashed on formal grounds , ORG rules , pursuant to LAW ( b ) in conjunction with LAW of the [ DATE ] Act ... , that its decision in respect of the prolongations of the transitory period should replace those which were challenged . ... ”

No further appeal lay against this decision .

On DATE the Minister of ORG decided to prolong the applicant 's preplacement detention by a further period of DATE as from CARDINAL DATE . The applicant filed an appeal against this decision on CARDINAL DATE with ORG .

NORP The applicant was admitted to a custodial clinic on CARDINAL DATE .

On DATE , following a hearing held on DATE , ORG quashed the Minister 's decision to prolong the applicant 's preplacement detention from DATE to DATE on formal grounds , namely the Minister 's failure to comply with the procedural regulations under LAW ( a ) and LAW . Finding also that the total duration of the applicant 's preplacement detention could not be regarded as having been so long that , balancing all relevant interests , it should be considered unreasonable or inequitable , and having found no indication that the applicant 's mental condition required a priority placement in a custodial clinic , ORG did not find that the impugned decision should be quashed for being in material breach of LAW . It decided that the applicant 's preplacement detention should be prolonged until DATE . ORG decided to replace the Minister 's decision with its own decision to prolong the applicant 's preplacement from DATE to DATE . It awarded the applicant compensation in an amount of NLG CARDINAL in respect of the procedural shortcomings in the Minister 's decision .

In so far as the applicant had claimed that his preplacement detention was contrary to LAW held :

“ The argument based on LAW fails . After all , the preplacement detention in a remand centre of a person subject to a ORG order is based on the judicial decision in which the ORG order has been imposed whereas , according to LAW ( b ) of the DATE LAW , as in force until DATE , casu quo LAW ( f ) of the [ new DATE ] Prisons Act as in force as from DATE , persons subject to a ORG order can be held in a remand centre for as long as their admission to a place suitable for them is not possible . Under LAW , the duration of such a stay in a remand centre can , after DATE , be prolonged by periods of DATE . ”

On DATE , after a hearing held on DATE , ORG ruled on the applicant 's appeal of CARDINAL DATE . Having found it established that , contrary to LAW , the applicant 's view had not been heard prior to the taking of the decision , ORG considered that , on this procedural ground alone , the impugned decision had to be quashed . In addition , it found that , also on material grounds , the decision of DATE had to be quashed as at the expiry of that prolongation decision the applicant would have spent DATE in preplacement detention . A delay of DATE , balancing all relevant interests , should be regarded as unreasonable and inequitable . It awarded the applicant compensation of NLG CARDINAL on account of the procedural shortcomings and NLG CARDINAL for DATE he had spent in preplacement detention on the basis of the decision of CARDINAL DATE .

On DATE ORG ( arrondissementsrechtbank ) extended the applicant 's ORG order by DATE . An appeal by the applicant against this decision was rejected by ORG on DATE . No further appeal lay against this decision .

The relevant provisions of LAW ( PERSON ) , as in force at the relevant time , read as follows :

“ LAW

A person sentenced to imprisonment who , on grounds of the inadequate development or pathological disturbance of his mental faculties , is eligible for this , may be placed in a judicial institution ( justitiële inrichting ) for the treatment ( verpleging ) of persons subject to a ORG order ; in that case Articles CARDINALc , DATE and DATE shall apply by analogy . ...

Article CARDINAL

The judge may order that a person who , owing to the inadequate development or pathological disturbance of his mental faculties , can not be held responsible for an offence , be committed to a psychiatric hospital ( plaatsing in een psychiatrisch ziekenhuis ) for DATE , but only if he represents a danger to himself , to others , or to the general safety of persons or property . ...

Article PERSON

The judge may impose a ORG order ( terbeschikkingstelling ) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if :

CARDINAL the offence he has committed is one which , according to its statutory definition , renders offenders liable to a term of imprisonment of DATE or more , or if the offence is defined in Articles CARDINAL , CARDINAL § CARDINAL , CARDINAL , ORG or CARDINAL of LAW , LAW ( ORG ) , LAW ( PERSON ) , or LAW , under CARDINAL , of LAW , and

CARDINAL the said measure is necessary in the interests of the safety of others or the general safety of persons or property .

In applying paragraph CARDINAL , the judge may refrain from imposing a penalty , even if he finds that the suspect may be held criminally responsible for the offence .

In making an order referred to in paragraph CARDINAL , the judge shall take account of the statements contained in the reports made concerning the suspect 's personality , and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences .

Paragraph CARDINAL of this Article and LAW may be applied in conjunction with regard to the same offence .

Article CARDINALb

The judge may order that a person who is subject to a ORG order be confined to a custodial clinic ( verpleging van overheidswege ) if this is necessary in the interests of the safety of others or the general safety of persons or property . ...

Article CARDINALc

Treatment shall be provided in custodial clinics for persons subject to ORG orders in accordance with rules to be laid down by ORG ( algemene maatregel van bestuur ) .

The Minister of ORG shall ensure that persons subject to ORG orders who are confined to a custodial clinic receive the necessary treatment . In respect of specific patients , the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property .

The rules to be laid down pursuant to paragraph CARDINAL shall make provision for persons subject to ORG orders to appeal against decisions which restrict their freedom of movement or correspondence , or their right to receive visitors .

Article CARDINALd

Persons subject to ORG orders may be confined to the following institutions , on condition that the institutions have been designated for this purpose by the Minister of ORG :

a. private institutions managed by legal persons established in the GPE ;

b. State institutions .

Treatment shall preferably take place in a private institution . ...

Article CARDINALe

The costs of the confinement of persons subject to ORG orders shall be borne by the ORG in so far as no other provision is made for them by or pursuant to any ORG . Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in ORG institutions . ”

A ORG order with confinement to a custodial clinic is not intended to have a punitive effect , but to protect society from any risk posed by the person concerned . It is initially imposed for DATE and may be prolonged by a judge for further periods of DATE where the safety of others or the general safety of persons or property so require ( Article FAC of LAW ) . The total duration of a ORG order may not exceed DATE , unless it has been imposed on the ground of an offence directed against , or constituting a danger to , the physical integrity of CARDINAL or more persons . In the latter case , there is in principle no restriction on the number of extensions that can be granted by a judge ( Article PERSON of LAW ) .

The provisions relating to the proceedings on the extension of a ORG order are set out in ORG CARDINALo – CARDINALx of LAW PERSON ) . Article CARDINALo § CARDINAL provides that the public prosecutor 's office ( openbaar ministerie ) may submit a request ( vordering ) for the prolongation of a ORG order DATE and DATE before the date on which the order is due to expire . The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment ( LAW ORG ) . The court competent to decide on such a request is ORG that tried the person concerned at first instance for the crime that gave rise to the ORG order ( Article CARDINALp ) .

DATE LAW ( Beginselenwet gevangeniswezen ) , as in force until DATE , provided :

“ Remand centres are intended :

a. for the accommodation of those who must undergo punishment by imprisonment or military detention ;

b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision , court order or public authority , in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible . ”

On DATE , a new Prisons Act ( Penitentiaire Beginselenwet ) entered into force , replacing the CARDINAL Act . Article CARDINAL § CARDINAL of LAW , in so far as relevant , reads :

“ The following may be held in remand centres : ...

f. persons subject to a ORG order with confinement to a custodial clinic within the meaning of Articles CARDINALb or CARDINAL c of LAW for as long as their admission to a suitable clinic is not possible . ”

On DATE Articles CARDINAL–CARDINAL and CARDINAL–CARDINAL of the Act on confinement to a custodial clinic of persons subject to a ORG order ( “ the DATE LAW ) entered into force . The custodial clinics , of which there were CARDINAL at the material time , are top - security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves . The treatment provided in these clinics is aimed at reducing this danger and preventing recidivism .

The CARDINAL Act distinguishes between care ( verpleging ) and treatment ( behandeling ) . The provision of care in a custodial clinic is aimed at the protection of society against the risks posed by persons subject to a ORG order by keeping them confined in a secure institution . The treatment provided in a custodial clinic is geared to individual disorders and personalities . It is aimed at helping persons subject to a ORG order to gain insight into and control over their disorders , to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society .

Pursuant to LAW , which provision had already entered into force on DATE , a person subject to a ORG order must be admitted to a custodial clinic DATE after the ORG order has taken effect . This period can be extended by the Minister of ORG by further periods of DATE each time if placement proves impossible . A failure to give an explicit prolongation decision is considered to be a decision to prolong the preplacement detention . In such a situation , the preplacement detention is extended automatically . Consequently , a failure to give a prolongation decision can never result in the release of the person concerned , who may challenge such an implicit decision by taking appeal proceedings before ORG .

DATE CARDINAL LAW provides that the Minister of ORG must decide in which specific custodial clinic the person concerned is to be placed , and that such a decision should – at least – take into account the requirements of the protection of society against the dangerousness of the person subject to a ORG order , the safety of persons other than the detainee or the general safety of persons or property , and the requirements of the treatment of the person concerned in view of the nature of the established inadequate development or pathological disturbance of his or her mental faculties .

The decision on the selection of the most appropriate custodial clinic DATE given the differences between the various institutions as regards their security levels , patient population ( gender , psychiatric diagnosis of the patients and their ability to function in a group setting , etc . ) , methods of treatment and the average stay of patients – is in most cases preceded by a DATE period of psychiatric observation in the Dr F.S. Meijers Institute , an institution specialised in this field .

In ORG report no . CARDINAL/CARDINAL of DATE , which concerned the situation prior to the entry into force of LAW , it was stated that , in principle , taking into account the DATE observation period and a margin of DATE for the administrative processing of the selection application and the admission procedure , a delay of DATE between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable . Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded , the ORG further held that an additional delay of no longer than DATE at the very most might still be acceptable . However , given the responsibility of the Minister of Justice for adequate capacity planning , the ORG did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of preplacement detention unavoidable .

Since DATE a simplified system has been used for the selection and placement of persons subject to a ORG order . This has resulted in a reduction of the delay in effecting admission to a custodial clinic . In DATE this delay was , on average , DATE .

In the report of DATE of ORG for the Prevention of Torture and Inhuman Treatment ( the “ CPT ” ) on its visit to the GPE from DATE to CARDINAL DATE ( ORG ( CARDINAL ) , it is stated :

“ CARDINAL . ... the delegation also met ( for instance , in FAC , ORG and ORG ) some male and female prisoners in respect of whom treatment measures ( eg . a ORG placement ) had been decided , in some cases a long time before , but who had not yet been transferred because of a lack of places .

The ORG would like to receive the NORP authorities ' comments on this subject . ”

In their response to the ORG report ( ORG ( CARDINAL)CARDINAL ) , ORG stated :

“ The increase in the number of persons under a ORG order has placed the existing capacity under severe strain , causing a rise in the number of prisoners awaiting transfer to a ORG clinic . ORG shares the ORG 's view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time . The situation has changed , however , since the delegation 's visit . A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments , and outpatient departments for part - time treatment have been added to some ORG , widening the prospect for earlier probationary leave . These measures will reduce waiting times considerably . ”

NORP In the ORG report of CARDINAL DATE on its second visit to the GPE from DATE ( ORG ( CARDINAL ) , it is stated :

“ CARDINAL . Since DATE , the NORP authorities have been confronted by a significant increase in ORG orders , a problem which has been exacerbated by the prolonged stays DATE for DATE of CARDINAL persons within the ORG system . As a result , the number of persons waiting in prisons for admission to ORG establishments rose from CARDINAL in DATE to CARDINAL at the time of the ORG 's second periodic visit . In response to this situation , the NORP authorities have decided to increase the number of ORG places , in order to reach a capacity of CARDINAL in DATE . However , the ORG notes that , in a letter sent to ORG of ORG on DATE , ... the Minister of ORG indicated that the shortage of ORG places in DATE is estimated at CARDINAL .

Concern has been expressed in the GPE about the position of inmates waiting in prison for admission to a ORG institution . During this waiting period , currently averaging DATE , the persons concerned do not receive the treatment they require , a situation which , it has been pointed out , is likely to provoke feelings of anxiety , self - doubt and anger in the persons concerned . Further , as they are considered dangerous , those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held . ”

In their response to the ORG report ( ORG ( CARDINAL)CARDINAL ) , ORG informed the ORG of the measures taken by the NORP authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission . According to ORG , efforts were being made to improve / accelerate the outflow of ORG patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of ORG orders was expected both to increase the outflow of ORG patients as well as to reduce the number of patients entering custodial clinics .

The Government further informed the ORG that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem , but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons . In these experiments , therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual ORG treatment and to reduce the growing hostility felt by these people towards the justice system . According to the Government , the initial results of these experiments were encouraging in that the persons involved – therapists , prison staff and inmates DATE had all responded positively , and there was a growing demand among prisoners awaiting admission to a ORG institution for this kind of support ( pp . DATE ) .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

On DATE PERSON , a GPE DATE newspaper published in NORP , printed an article by journalist PERSON on various reafforestation techniques that had been used after the storms in DATE that devastated part of the GPE woodlands . The article appeared under the title “ GPE ... das ganze noch einmal ” ( “ GPE ... all over again ” ) and included the following :

[ Translation from a NORP translation provided by the applicant ]

“ The cynicism really knows no limits , since it should not be forgotten that these forest gardeners cut down trees , buy , plant , ‘ treat’ with public funds , to the tune of MONEY . ( Ministers , lend an ear ! )

What does all this hide ? Of course , there will be a full denial by all concerned , but the conclusion to be drawn after various discussions with people in the industry should be this : It is better to replant CARDINAL or CARDINAL times with plants from a seller who gives a generous percentage than once with plants from a firm that has the nerve to refuse to pay bribes . ( Comment from someone familiar with the system : ‘ I know of CARDINAL person who is incorruptible.’ He gave the name of the forest warden from ‘ PERSON . )

‘ ORG , it ’s a case of the tabloid press yet again publishing ‘ unsubstantiated monstrosities’ ; ‘ ORG , there is no truth in any of it , but the owners of the woodlands , whether the ORG , municipalities or private individuals , should be aware of CARDINAL thing : they are the ones who must pay for the repeated reafforestation of dubious benefit ; and they the ones who should demand that the political authorities remove the dung from Augeas ’s FAC , instead of continually trying , with mixed success , to muzzle those who have the nerve to put the public interest before the private interests of a few ‘ fleas in the scrotum of ORG ( dixit Degenhard ) . ”

The applicant was at the time a journalist on a national radio station , RTL CARDINAL , for whom he presented a DATE programme in PERSON entitled “ Oekomagazin ” dealing with nature and the environment . He had raised the subject of the problems connected with reafforestation after the DATE storms on a number of occasions on the programme and had alluded , along with other GPE publications , to a breakdown in the system .

The applicant had chosen reafforestation as the subject matter for his “ Oekomagazin ” programme of CARDINAL DATE . He began the programme with an introduction in which he reminded listeners that he had spoken DATE about “ the temptation for ORG people to take advantage when an opportunity present[ed ] itself ” and had referred to “ a series of telephone calls from people all over the country who [ had ] interesting tales to tell ” . He went on to say “ in any event , CARDINAL thing is clear : the woodland management chapter is much thornier than people might think ” . He also reported , indicating that he was giving an example , that a person who had had work done in woodland he owned by a private contractor “ no longer knew which way to turn ” after receiving a bill for the work from ORG responsible for the sector rather than the private contractor . After that introduction , he quoted certain passages from the aforementioned article , which he said was “ strongly worded ” . He said , inter alia :

“ But there is money to be made at the sawmill as well as in wood . The same applies to the plantations , because they can be counted in CARDINAL . In a CARDINAL - page article in DATE ’s edition of LOC , PERSON does not mince his words in denouncing various plantation practices used by ORG and he makes no concessions . The journalist writes , and I quote : ‘ CARDINAL already requires a certain dose of cynicism not to forget that these gardeners of the forest do not clear out , buy , plant , and ( in inverted commas ) treat the publicly owned woodlands with their own money , but with public funds to the tune of millions.’ PERSON then provides the proof ( fazit ) of the proposition : ‘ It is better to replant CARDINAL or CARDINAL times with plants from a seller who pays a percentage than once with plants from a firm that has the nerve to refuse to pay a percentage.’ The LOC journalist then cites an authoritative source from the industry who is quoted as saying : ‘ I know of CARDINAL person who is incorruptible.’ The name of the forest warden from ORG is given in that connection . ‘ The owners of our forests , whether the ORG , municipalities or private individuals should be aware of CARDINAL fact : they are the ones who must pay for CARDINAL questionable reafforestation projects’ , to quote again from the LOC journalist , ‘ It is they who ought to demand that the political authorities clean out Augeas ’s FAC once and for all’ ... ”

NORP The applicant explained that with that “ strongly worded ” article , PERSON had implicitly referred to the provision in the LAW relating to intermeddling , which prohibits civil servants working for the ORG or the municipalities to use their official status to derive personal gain . He added that people working for ORG “ have a reasonable salary and can under no circumstances claim a hand - out and get rich at the expense of public - owned woodlands or of private owners , buyers of wood or tree nurseries ” .

He then proceeded with the theme of the programme and put questions to PERSON , a ORG engineer , before asking NORP , a private woodlands owner :

“ In a strongly worded article by journalist PERSON TIME , it is said : ‘ It is better to replant CARDINAL or CARDINAL times with plants from a seller who is generous with bribes than once with plants from a firm that has the nerve to refuse to pay bribes.’ Mr NORP , what do you think of that strongly worded phrase . You also work a little in this branch : what is your experience in this sphere ? Is what PERSON says true ? ”

After NORP had expressed his opinion on that point , the applicant questioned him further on the subject of the importation of plants , a matter he had previously raised with PERSON , the engineer . He asked NORP the following questions :

“ And what is your opinion on the delivery of plants from abroad , possibly through GPE traders ? Is it possible that the plants , which come from GPE or GPE , for example , are delivered without being checked ? ”

After NORP ’s reply , the applicant ended his programme with a long debate on the theme of public tenders .

In a press release on DATE , ORG announced its intention to lodge a complaint for defamation against the applicant . However , it did not do so .

DATE and DATE CARDINAL forest wardens and CARDINAL forestry engineers brought civil actions in damages against the applicant alleging that he had damaged their reputation . They each claimed MONEY ( ORG ) in compensation complaining that he had quoted accusations from the article published in the CARDINAL DATE edition of LOC without in any way toning them down , correcting them or commenting on them “ the slightest bit critically ” , and that he had passed them off as his own . He had thus suggested publicly that all forestry wardens in GPE ( of whom there were CARDINAL at the time ) and all GPE forestry engineers were , with CARDINAL exception , corruptible and corrupt . In their writs , they quoted from a GPE judgment of DATE , in which it was held as follows :

“ By establishing freedom of the press , the LAW does not impose any restriction on the fundamental principle contained in Articles DATE and CARDINAL of LAW . Freedom of the press is not unlimited and ends where it infringes the legitimate rights and interests of others . Journalists do not enjoy any immunity exempting them from their obligation to exercise care towards all individuals and even the ORG and its institutions , and any breach , albeit slight , of that obligation is unlawful under the aforementioned ORG of ORG which oblige anyone who , through his wrongdoing , or negligent act or omission causes damage to another , to make reparation .

Journalists may be held severally liable for any breach of their obligation to be truthful and objective ” ( judgment no . CARDINAL of CARDINAL DATE , PERSON .

The CARDINAL statements of claim were couched in more or less identical terms .

The applicant requested that the various actions against him be joined and declared inadmissible on the ground that he had merely quoted statements made by a clearly identified person . He offered to adduce witness evidence to show that his investigations revealed numerous offences in the sphere concerned . He also lodged a counterclaim against each of the claimants for payment of ORG CARDINAL as an allowance for preparing the case for trial and ORG CARDINAL for abuse of process and vexatious proceedings ; he also claimed costs and expenses .

NORP ORG examined the CARDINAL cases at a single hearing and handed down QUANTITY almost identical judgments on DATE . It awarded each of the claimants MONEY in nominal damages , dismissed the counterclaims and ordered the applicant to pay the costs and expenses .

After examining the text of the aforementioned passage from the LOC article and the aforementioned quotations from the transcript of the applicant ’s radio programme , ORG held , inter alia :

“ The journalist , PERSON , seized upon the article by PERSON and , in particular , the impugned passage , to persuade the public that the legislation in force was not being complied with and to adopt PERSON ‘ fazit’ conclusion .

ORG considers that the use of the words ‘ GPE , Forstverwaltung’ to restrict the circle of people concerned by the programme , the use of PERSON ’s conclusion to support the assertions , citing a person who was supposedly familiar with that circle ( PERSON aus dem Milieu ) , the assertion that that person knew CARDINAL person DATE from that background DATE who was incorruptible , meant that those against whom the accusation was made are sufficiently identifiable .

In view of his position ( as a ORG employee ) , the claimant has sufficiently established in law that ORG remarks were directed against him .

ORG must analyse whether by so acting the defendant has committed an act that falls to be dealt with under the provisions of ORG and CARDINAL of LAW .

It is true that the press has the right , and even the duty , to criticise abuses that come to light in public life ( CSJ DATE ORG , p. CARDINAL ) .

It is incumbent on professional journalists to publish breaking news , news items and , generally , anything which seems to them to present an interest as soon as they can ( GPE ORG , DATE , no . CARDINAL/CARDINAL ) . The press must preserve its right to criticise the social activity of individuals , that is to say all those whose dealings directly concern the community . The press is entitled to say what it thinks about their activities , provided that it does not attack their reputation and provided that it acts in good faith ( GPE ORG , DATE , ORG liaison de la conférence PERSON no . CARDINAL , p. CARDINAL ) .

PERSON was , accordingly , perfectly entitled to investigate the problems posed by the reafforestation of our woodlands after the storms and to denounce and to criticise practices which he considered to be inconsistent with the laws and regulations .

Indeed , through a series of articles in the press , the GPE journalists have not missed the opportunity of drawing the attention of the public and the public authorities to matters which they believe it was their duty to criticise .

While it is true that absolute objectivity can not be required of journalists , in view of their relatively unreliable means of investigation , they nonetheless have an obligation to act on information that has been verified to the extent the means available to them reasonably permit . The law requires journalists to act in good faith and does not seek to give immunity to persons who through spite , malice or foolishness seek by publication to discredit others . A mala fide intention may appear when a journalist had reasons to doubt the truth of the facts or his ability to produce evidence establishing them ( NORP . GPE , DATE PERSON ) .

In the instant case , it was for PERSON to prove that he had obtained sufficient evidence to enable him to adopt ORG ’s allegations and to assert that the claimant had been guilty of corruption in connection with the reafforestation of the woodlands . ”

After rejecting an offer by the applicant to adduce evidence as being too vague , ORG concluded :

“ PERSON has , accordingly , not established that he has sufficient evidence to show that the claimant was guilty of corruption in connection with the reafforestation of the woodlands .

It is not for this ORG to order or complete investigative measures of its own motion in order to assist the journalist to carry out ex post facto the investigations and research which he should have performed before publishing the impugned article .

By giving the impression without evidence and without qualification that all ORG officials concerned by the reafforestation work were , with but CARDINAL exception , corruptible , PERSON has overstepped the boundaries of his right to impart bona fide information and has , accordingly , committed a tort . ”

The applicant appealed against all CARDINAL judgments . In his appeal submissions , he requested the joinder of the CARDINAL cases brought by the forestry wardens and the QUANTITY actions brought by the forestry engineers . His opponents contested that request . The applicant did not renew the offer to adduce evidence which he had made at first instance .

ORG of the Grand Duchy of GPE ( Seventh ORG ) gave its decision in almost identical judgments delivered on CARDINAL DATE . It acceded to the applicant ’s request for joinder and upheld the impugned judgments . In support of its decision to award each of the claimants nominal damages of MONEY , ORG added the following grounds to those that had been relied on by ORG :

“ By attributing the phrases ‘ PERSON unbestechlich ist . PERSON ORG - Försters’ not to a particular individual , but to a ‘ berufene PERSON , that is to a person in the know , someone from the background who is aware of confidential matters and can be relied upon not to provide false information , the text of ORG ’s article quoted by the appellant suggests to the public and leads it to believe that , apart from the forest warden responsible for ORG there was not CARDINAL other ORG official , whether ordinary forest wardens or even members of its management , who was incorruptible .

It follows that , contrary to the appellant ’s assertion , the text quoted by him qualifies as corruptible ‘ a defined group of identified people’ , since he suggests that all ORG officials are in that position and together they constitute a defined group of identified persons .

It follows from the foregoing that the claimants at first instance and respondents to this appeal – on whom the burden of proving the merits of their claims lies – have , in view of their position ( as ORG staff ) , established that PERSON text quoted by the applicant was directed at them .

Further , the applicant fails in his attempts to deny liability by arguing that his remarks are no more than a quotation from the impugned article by PERSON .

A journalist can not escape liability by arguing that the impugned article which he has published is merely a reproduction of one already published by someone else since , by choosing to reproduce the article , he appropriates the allegation contained in the reproduced text and thus incurs personal liability .

That is the position and a journalist who merely quotes from an article that has already appeared will only escape liability if he formally distances himself from the article and its content and if in terms of newsworthiness an interest exists in communicating the content of the article that has already been published .

In the instant case it is quite clear that in repeating in the ‘ ORG programme of CARDINAL DATE in LOC the impugned passage from PERSON article in DATE edition of LOC , the appellant did not distance himself from the quoted text and , in particular , the aforementioned allegation which it contains .

It follows that even supposing that the appellant had merely quoted the impugned passage from PERSON article , that quotation nonetheless rendered him liable .

Finally , ORG holds below that the appellant has failed to establish the merits of the allegation of corruption contained in the impugned passage in PERSON article which he quoted from without formally distancing himself from it . Under these circumstances , that allegation establishes by itself that when in the CARDINAL DATE edition of ‘ ORG the appellant repeated the passage from ORG ’s article containing that allegation unreservedly , there was , contrary to what he asserts , no ‘ lack of malice’ on his part ...

It follows that by leading public opinion to believe without evidence that the entire staff of ORG from forest wardens to the director were corruptible , the only honest employee being the forest warden from ORG , the appellant has not complied with his obligation to impart bona fide information and has consequently committed a tort rendering him liable under ORG and DATE of LAW ... ”

The applicant appealed to ORG , which dismissed his appeals in CARDINAL judgments of DATE . ORG said , inter alia , that ORG and DATE of the Civil Code established a system of reparation and that , subject to the last sentence of LAW and of section CARDINAL(CARDINAL ) of LAW DATE on the ORG , the scope of those ORG in press cases was unlimited since , as in every other sphere , the courts would take account of the special nature of the activity of journalists in deciding whether a tort had been committed . It added that the courts below had justified their decision in law for finding a tort .

The relevant provisions of LAW concerning liability under the general law read as follows :

“ Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone is liable for the damage which they have caused not only through their acts , but also through their negligent omissions or acts . ”

For the purposes of Articles CARDINAL and CARDINAL the tort may result from a violation of a rule of criminal law . In that eventuality , the victim may either bring a civil action , or institute or be joined to criminal proceedings as a civil party .

The offence of damaging a person ’s reputation is laid down by LAW of LAW , which provides :

“ Anyone who , in the circumstances set out hereafter , maliciously accuses another of something that is liable to damage that person ’s reputation or expose him to public scorn shall be guilty of calumny if , in cases where it is possible by law to plead a defence of justification , no admissible evidence supporting the accusation is adduced . He shall be guilty of defamation if the law does not allow of a defence of justification . ”

Section CARDINAL of the PERSON on the ORG provides :

“ Everyone who shall have taken part , as a principal , co - offender or accomplice in press offences shall incur criminal and civil liability .

However , if the principal is of known identity , a Luxemburger and domiciled in the Grand Duchy , the printer , editor and any accomplice shall be immune from suit . ”

That provision introduced the notion of “ indirect liability ” in proceedings against the press . According to legal commentators , the system obviates the need for the author ’s work to be subjected to prior censorship by the editor , printer or distributor . It is not a question of liability being diluted but of its attaching to CARDINAL person , that person being the author , if his identity is known and he is domiciled in GPE , or , failing that , the editor , printer or distributor .

Section CARDINAL of the statute provides :

“ No one shall be entitled to invoke by way of excuse or justification the fact that the writings , printed material , pictures or emblems are merely a reproduction of materials published in the Grand Duchy or abroad . ”


The applicant , Mr PERSON , a lawyer by profession , is a NORP national who was born in DATE and lives in Hämeenlinna . He is not represented before the ORG . The respondent Government are represented by their Agent , PERSON , Director in ORG .

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

The applicant was appointed as liquidator in the winding up of a company . He acted with another lawyer who embezzled the company ’s and other ORG funds .

In criminal proceedings , CARDINAL companies which were being wound - up claimed compensation for losses caused by the embezzlement . The embezzler was convicted and ordered to pay compensation for the damage he had caused , but was found to be insolvent .

The companies commenced actions for compensation against the law office for which the convicted lawyer had worked , against his fellow partners and against those lawyers who had acted as co - liquidators with him as well as against their law offices .

On DATE the company in respect of which the applicant had been appointed as liquidator , commenced an action against him , among others , before ORG of PERSON ( käräjäoikeus , tingsrätten ) . The summons was served upon the applicant on DATE . He filed his submissions on DATE .

Due to the substantial connections between the actions , ORG decided to deal with them jointly . Negotiations for a friendly settlement between the parties were held . At least as far as the applicant was concerned , they were fruitless .

The companies submitted additional written observations on DATE . At the same time , they commenced an additional action .

ORG held CARDINAL preparatory hearings , on CARDINAL and DATE and DATE . The main hearings were held on CARDINAL and DATE . ORG dismissed the action against the applicant on DATE .

The companies , among others , appealed . At the NORP request , the time - limit for submission of the letters of appeal was extended . The time - limit for submission of the observations in reply was accordingly automatically extended until DATE .

On DATE ORG ( hovioikeus , hovrätten ) upheld without an oral hearing ORG judgment as far as the applicant was concerned .

The ORG applications for leave to appeal were submitted on DATE .

On DATE ORG ( korkein oikeus , högsta domstolen ) granted leave to appeal and invited the applicant , amongst others , to submit observations in reply by DATE .

The case was examined by ORG during CARDINAL sessions , on DATE , DATE , DATE and DATE and CARDINAL and DATE .

On DATE ORG annulled ORG judgment and found in favour of the companies , ordering the applicant and others jointly to pay damages , amounting to ORG CARDINAL ( ORG CARDINAL ) with interest as from DATE , and legal expenses .

The applicant ’s insurance covered ORG CARDINAL ( EUR CARDINAL ) and he paid FIM CARDINAL ( ORG CARDINAL ) from his own funds .

Under LAW , LAW CARDINAL of the Judicial Procedure Code ( oikeudenkäymiskaari , rättegångsbalken ) , as in force until DATE , a court was to adjourn criminal proceedings on request , for example if a party wished to adduce further evidence and the court was satisfied there was a good reason for the adjournment . The court could not adjourn criminal proceedings of its own motion save for special reasons . Where the defendant in criminal proceedings was in detention , under a travel - ban or disqualified from holding office , a case could not be adjourned for DATE save for carrying out a mental examination of the defendant . If a party considered that the proceedings had been unjustifiably delayed , a procedural complaint ( kantelu , klagan ) could be lodged with the court of appeal within DATE from the date of adjournment .


No violation of Art. 6-1;No violation of Art. 8;Preliminary objection rejected (non-exhaustion of domestic remedies)

The applicant was born in DATE and lives at GPE ( GPE ) . He is the father of CARDINAL children whom he had been bringing up alone : PERSON and PERSON . , who were born in GPE in DATE and DATE respectively , and C. , who was born in GPE in DATE .

On DATE the applicant took C. to the ophthalmic unit of ORG in GPE . The child , who presented bruising to each eye , a cut to the right forearm , abrasions to the abdomen and healed scar tissue to the face , was admitted to the paediatric ward .

The ORG public prosecutor 's office was informed and a police investigation set in motion . On DATE the public prosecutor made an order placing C. in the care of the child - welfare service ( “ the ORG ” ) of the Rhône département . A doctor examined the child on DATE and concluded that his tegumentary lesions could have been caused by abuse .

On DATE the investigating judge at the FAC tribunal de grande instance charged the applicant with assault with intent by an ascendant on a minor aged DATE and placed him under court supervision .

On DATE the children 's judge at the PERSON tribunal de grande instance made an order under LAW seq . of LAW for C. 's temporary placement with the ORG and issued an injunction against the applicant banning him from “ all contact before the hearing of CARDINAL DATE ” on the ground that “ ... [ C. ] [ had ] been admitted to hospital and that he [ was ] at risk in the family home ... ” .

By a judgment of CARDINAL DATE the children 's judge placed C. with the ORG for a period of DATE . He put the applicant 's CARDINAL other sons in the care of the same authority ; PERSON was to remain in care until he reached his majority and PERSON . for DATE . The reasons given in the judgment were : “ ... the domestic situation is difficult and the children are in danger ; ... their removal from home is necessary to enable relations with the father to become less conflictual and to make the children feel more secure by helping them to resolve their personal difficulties ” .

On an appeal by the applicant , ORG of ORG upheld all the provisions of the judgment of the court below in a decision of DATE , on the following grounds :

“ ... Mr GPE is bringing up his CARDINAL sons in circumstances made difficult in particular by the fact that he works as a night - watchman and the CARDINAL mothers are absent : CARDINAL live in LOC , while his relations with the third , PERSON . 's mother , are very intermittent .

... on DATE Mr GPE applied for educative assistance measures in respect of his son , I. , who had run away from home and was beyond his control ; ... in an interview with the caseworkers on DATE , the father came across as someone who was inflexible , incapable of understanding his son 's sufferings and with whom it would be impossible to implement any educative measures ; ORG has had to remain in care ...

... PERSON . has been virtually abandoned and no longer tolerates the tension in his relations with his father or his father 's authoritarianism . ... it appears that he is unable to obtain from his father a response to his emotional and educative needs . ... accordingly , since the conditions in which the minor is brought up are highly unsatisfactory , the order for PERSON . 's placement will stand . ...

... on both occasions [ C. ] was admitted to hospital DATE on CARDINAL DATE with a cranial traumatism and bruising to both eyelids and on DATE with bilateral periorbital bruising – the public prosecutor 's office was advised by the FAC civil hospital authorities of the suspect origin of the injuries .

... whatever the origin of the injuries , it does not appear that Mr GPE offers the material and educative guarantees necessary to ensure the child 's health and safety . ... ”

On DATE Professor NORP , a doctor at ORG , examined C. and found that he presented post - traumatic ecchymosis caused by DATE in the home where he had been placed . On DATE he said in a letter to the investigating judge that it was “ possible that the child presented a propensity to major haematomic reaction to moderate trauma and [ that it was ] quite possible that that propensity had ... led to the degree of trauma being over - estimated during the child 's CARDINAL stays in hospital that had resulted in the public prosecutor 's office being informed . ... ” . A copy of that letter was sent to the children 's judge . He also wrote to the public prosecutor 's office .

By an order of CARDINAL DATE the children 's judge suspended the applicant 's rights to contact until DATE on the ground that “ [ the applicant 's ] visits invariably provoke[d ] violent incidents , [ C. ] [ was ] disturbed and insecure afterwards , a carer had been subjected to violence by the applicant ” and “ arrangements were being made for [ the child ] to be placed with foster parents ” . He further ordered that the name and address of C. 's foster parents were not to be communicated to the father and contact was only to be arranged after DATE , “ in a neutral location to be determined by the ORG , and provided that there [ was ] no risk of violence and that Mr PERSON ] with the timetable and the conditions imposed ” .

In a judgment of DATE the children 's judge extended the period of C. 's placement with the ORG for a year starting on DATE . On an appeal by the applicant , ORG of ORG upheld that judgment in a decision of DATE , subject to arrangements being made for contact . It held in particular :

“ ... the ORG says that the child has made positive progress in his foster home , ... having gained in confidence and not demonstrating any behavioural disorders . ... the father does not accept the care order and the attitude of both father and son during the monthly visits is passive , although the boy subsequently vents his emotions . ... The father refuses to speak with the social workers .

... the father lodged a report by a forensic expert in the criminal proceedings with the court . In addition to containing an opinion on whether the abuse was intentional or not ( a matter for the judge dealing with the criminal proceedings ) , it refers to the psychological trauma suffered by the child as a result of his separation from his mother and to the child 's need to live in a home , as the father is unable in his present condition to assume both the paternal and maternal roles .

... those circumstances make it necessary to continue with protective measures , while it is hoped that relations between the father and the social services will improve through mutual acceptance .

... It does , however , appear necessary for the child 's development to facilitate contact with the father by making it more extensive than the child - welfare service has currently decided , namely [ TIME every month ] .

... the court considers it necessary to regulate access by allowing visits [ of TIME , twice DATE ] . ... It has been explained to Mr GPE that if the visits take place without disruption he will be able to apply to the children 's judge for a review of the arrangements and that any incidents must be referred to the children 's judge , who will review the case in the interest of the child . ”

On DATE an expert appointed by the investigating judge on DATE had lodged a report . The ORG quoted the following extract from that report in their memorial of DATE :

“ The scars to the abdomen , face , and the right forearm are of traumatic origin . The lesions to the abdomen and face appear to have been caused by a blunt or cutting instrument and the lesion to the right forearm by a cigarette burn . An examination of the child 's mental state ... has not revealed any marked pathological symptoms but does suggest retarded development of adequate defence mechanisms to counter anxiety ... He does not present any of the characteristic psychological disorders seen in abused children .

[ On ] examination , the cutaneous lesions presented by [ the child ] on his admission to hospital on DATE are consistent in both form and evolution with the suspected abuse , but can not constitute concrete evidence of abuse .

On the other hand , the psychological after - effects which the child currently presents are directly related to the serious situation that has arisen as a result of severance from the mother figure which the child went through probably in DATE . Those psychological after - effects also demonstrate the incapacity of his father and brother to adopt with him a sufficiently stable maternal role ...

The psychological after - effects by themselves justify his placement in a foster home , as it appears risky to force the father to assume the mother 's role alone , when the characteristic nature of that role is continuous presence . ”

On DATE the investigating judge held that the applicant had no case to answer as there was insufficient evidence against him .

In a letter of DATE , the applicant 's counsel requested the children 's judge to hear further evidence from the applicant and to review the care order in the light of the decision to drop the prosecution .

By an order of DATE the children 's judge suspended the applicant 's right to contact until DATE , on the following grounds :

“ [ C. ] is showing worrying behavioural disorders and severe anxiety at the prospect of seeing his father . A meeting with a psychiatrist has been arranged and it appears necessary to suspend the visits until that meeting has taken place . An order has been made for a psychiatric report on the child . ”

On DATE the children 's judge renewed the order suspending contact , holding :

“ An order for a psychiatric report has been made and the report is due to be lodged on DATE . [ The child ] still opposes seeing his father . The father 's right to contact shall remain suspended until the hearing that will take place once the expert 's report has been lodged . ”

In their memorial of DATE , the Government quote the following extract from the psychiatric report lodged on DATE :

On examination , [ C. ] does not display any organised pathology but signs of anxiety that appear to be related less to the father 's absence than to the interiorised image of the father .

It would be disturbing for the child for the father 's right to contact to be reinstated at this point . We therefore consider it more prudent to maintain the status quo – placement in a foster home without visits from the father – for DATE and to review the position at that juncture . ”

In a judgment of DATE the children 's judge renewed the order for ORG 's placement with the ORG for a period of DATE from DATE ( that is to say , until DATE ) . In their memorial of DATE , the Government quote the following extract from that judgment :

“ The psychiatric report confirms the need for [ C. ] to be protected from the invasive presence of his father ... Mr GPE remains impervious to any advice concerning his son , whom he regards as his property and whom he affords no opportunity for independent development ; ... these circumstances justify renewing [ C. 's ] placement with the ORG for DATE and suspending contact for that period . ”

In a judgment of DATE ORG of ORG upheld the order renewing the child 's placement with the ORG . With regard to the suspension of contact , it appointed an expert to assess whether , and , if appropriate , how , contact between the father and his son could take place and adjourned the hearing of the case “ to the first available date after the expert 's report is lodged ” .

The expert 's report was lodged on DATE . The ORG quoted the following extracts in their memorial of DATE :

“ It is not desirable for [ C. ] to return home to the family environment with his father ...

Intermittent contact between Mr GPE and his son have a moderate relatively morbid impact on [ C. ] ; the lack of contact is not a source of mental suffering ...

Consequently , it is possible to propose a conditional lifting of the ban on contact and brief visits to be allowed DATE at a neutral location .

Allowing Mr DATE to see [ C. ] will provide no solution unless accompanied by psychotherapeutic treatment for him . Admittedly , it seems highly unlikely that he will accept , but it must be impressed on him that all the experts agree that he is suffering from personality disorders . If this course of action is to have any chance of succeeding , it will be necessary for a committee to be set up composed of certain people in whom he has confidence ... , which will inform him of the prescribed treatment and ask him to follow it for the good of and out of love for [ C. ] . ”

On DATE ORG of ORG once again deferred a decision on contact and adjourned examination of the case to DATE , the applicant being invited in the meantime to envisage starting therapy , as advised by the expert . The ORG added that contact remained suspended until the next hearing , although the applicant was authorised to make arrangements for the reimbursement of his expenses .

On DATE ORG upheld all the provisions of the judgment of DATE . It noted that the applicant had failed to attend the hearing before it and had refused to cooperate with the ORG , as he had not responded to appointments he had been given so that arrangements for contact with his son could be made . It also noted that the child was relaxed in his new home .

On DATE the children 's judge renewed the order for C. 's placement with the ORG for DATE . The reasoning set out in his judgment was as follows :

“ The domestic situation has remained largely unaltered over DATE . Although he has been kept regularly informed by the ORG of his son 's progress , Mr GPE has failed to get in touch , despite being offered appointments . He recently went to [ C. 's ] former school where he made a scene and alarmed those present by his aggressiveness . He has not attended DATE 's hearing but has sent a letter calling for his son 's return . [ C. ] has been making positive progress with his foster parents . It is not possible to envisage [ C. 's ] returning home at present . Before any meetings between the father and the son can take place , Mr GPE will need to contact the ORG so that the question can be explored . ”

By an order of CARDINAL DATE the children 's judge dismissed an application by the applicant for the care order to be lifted and renewed the placement with the ORG for DATE from DATE . The order stipulated that the applicant 's rights to ordinary contact and to residential contact would be conditional on “ professional support for both father and child being provided ” . The reasons for the order were as follows :

“ Mr GPE seeks the return of his son , but did not attend the last hearing on DATE . He has been kept informed by the ORG of his son 's progress but says that he has never received any documents and refuses all contact with the social worker responsible for [ C. ] . He claims that he is able to tend to all his son 's needs and perceives the placement as having torn the family apart and as a means of persecuting him and his son 's need as an extension of himself . He rejects any idea of treatment or of a third party 's intervening between him and his son . [ C. ] is progressing well in his foster home but clams up when his father is mentioned and refuses to listen . The situation is currently in an impasse and it does not appear possible at present for contact between the father and his son to be envisaged without the presence of a mediator and a third party , and it will be necessary for [ C. ] to be accompanied and helped to find the strength to broach the subject of relations with his father . ”

The applicant appealed to ORG of the Lyons Court of Appeal . At his request , the applicant 's son was heard by a member of that ORG on DATE . On DATE ORG delivered the following decision :

“ [ C. ] was placed into the care of the ORG after suspected abuse ; the placement was also a consequence of the father 's inability to tend to his material and educative needs . At the material time , Mr GPE , who had been living on his own since [ C. 's ] mother 's return to LOC in DATE , was also wholly incapable of bringing up his then adolescent sons , [ I. ] and [ PERSON . ] , who had to be placed in care by the children 's judge .

The father 's violent conduct towards the social workers during visits to his son led the children 's judge to arrange for the visits to take place at a neutral location and subsequently to suspend them and to seek an informed opinion on whether contact between the father and the child was possible . The experts found that Mr GPE was suffering from severe personality disorders and was incapable of considering his son as a separate being ( Dr [ Pe . ] ) or other than as a narcissistic object ( Dr [ C. ] ) . In that connection , the appellant confirmed by his remarks at the hearing on DATE that he was incapable of imagining that [ C. ] could lead a separate existence ( he kept repeating : ' my son is dead ' ) .

Mr GPE refuses to acknowledge that [ C. ] made a firm request at the hearing to be allowed to live with his foster parents ' all the time ' , though he also seeks contact with a father of whom he is fond .

In these circumstances , returning the minor to his father would put his health and safety at risk and would be very damaging to his welfare . The decision to renew his placement will therefore be upheld .

Although Mr GPE rejects the whole idea of treatment or meetings with third parties , in order to offer the meetings with [ C. ] , whom he has not seen for DATE , ' a chance of success ' ( Dr [ Pe . ] ) , attempts should be made to arrange contact at a neutral location through a specialist counselling service . As it will take some time to make the arrangements , the first visit will be during DATE ... ORG ... upholds the decision of the court below regarding [ C. 's ] continued placement ; holds that Mr GPE shall be entitled to visit his son , [ C. ] , at a neutral location and that there shall be an initial TIME visit during DATE followed by CARDINAL - and - a - half - hour visits at DATE intervals until DATE ; to that end , orders an inquiry and welfare counselling by a centre for educative action ... whose task will be to determine the arrangements ( place , date and time ) of the visits ; orders that the centre for educative action will report to ORG by DATE on progress and may , in the event of serious incident , terminate the measure immediately , provided it informs the President of ORG without delay . ... ”

On DATE Mr GPE lodged a notice of appeal on points of law with the registry of ORG . On DATE he made an application for legal aid to ORG of ORG . In a decision of DATE , ORG accepted the applicant 's eligibility for legal aid on the means test but dismissed his application on the ground that “ no arguable ground of appeal on points of law [ could ] be made out against the impugned decision ” . Mr GPE exercised his right of appeal to the President of ORG under section CARDINAL of Law no . CARDINAL of DATE on legal aid , but his appeal was dismissed by an order of DATE on the ground that “ it [ did ] not appear from an examination of the evidence in the file that a ground of appeal on points of law [ could ] be argued with any real prospect of success ” .

On DATE the President of ORG dismissed the appeal as being out of time on the following ground :

“ The notice of the appeal on points of law does not set out any valid ground of appeal . Furthermore , the appellant has not sent a memorial containing valid grounds of appeal to the registry of ORG within the statutory time - limit . ”

In their memorial of CARDINAL DATE , the Government alleged that on DATE the centre for educative action had sent to ORG of ORG a record of the applicant 's CARDINAL visits to his son , in which it had concluded : “ It does not appear desirable for the meetings between father and son to continue in these circumstances , since [ C. ] remains at risk when with his father , whose pathology makes it impossible for him to consider his son otherwise than as a part of himself , such that there is no room for the independent existence of this small boy . ”

On DATE the children 's judge renewed the order placing C. in the care of the ORG for a period of DATE starting on DATE . The judgment contained the following reasons :

“ ... Mr GPE continues to call for [ C. 's ] return ... He says that he finds their separation painful and regards it as unjustified and unlawful . He is unable to comprehend that renewed contact must take place gradually and does not consider that the children 's judge has any right to take decisions concerning [ C. ] . [ C. ] is making positive progress in his foster home . He says that he is ready to meet his father once he is better . It is necessary to assess the feasibility of contact between father and son . ”

On DATE the children 's judge ordered a new medical , psychological and psychiatric report on C. According to the Government , the report , which was lodged on CARDINAL DATE , concluded as follows ( extract from the ORG 's memorial of CARDINAL August CARDINAL ) :

“ On medical examination , [ C. 's ] general health ... was seen to be good and his psychomotor development normal .

[ C. 's ] mental development is normal . He will shortly be reaching adolescence and shows considerable interest in GPE , consistent with the construction of his identity and the need to adhere to his biological origins .

There is no sign of marked mental illness on examination . ...

[ C. ] does not present any physical or mental disorders or disabilities likely to influence his behaviour .

No special protection , assistance or therapeutic measures are required . However , in view of the history of mental suffering that has occurred concurrently with visits from his father and [ C. 's ] current genuine wish to see his father again , any new contact that takes place should be accompanied by enhanced psychological support to avert and treat new symptoms .

There is no need for specialised treatment for the time being .

There is no medical reason why contact should not take place . He is receiving a normal education which he is pursuing with success . ”

The Government added that on CARDINAL DATE the children 's judge delegated to the ORG by way of a grant of power pursuant to LAW such parental authority as would enable it to obtain a national identity card for C. , on the ground that “ Mr GPE is not in touch with the LOC ... ” .

On DATE the children 's judge sent the following letter to the applicant 's lawyer :

“ ... I acknowledge receipt of your letter of DATE regarding the possibility of Mr GPE visiting his son [ C. ] .

In view of the very difficult background to this case , no visit can be arranged unless Mr Gnahoré first contacts the ORG ... who are responsible for [ C. ] .

[ C. ] has not asked to see his father recently and may find a visit very perturbing . ... ”

In DATE the Director of ORG of the Villeurbanne Territorial Unit sent the following letter to the applicant :

“ I acknowledge receipt of your letter of DATE and note what you say .

I would remind you that [ C. 's ] file is still being handled by ORG of ORG ...

Mr [ NORP ] remains the caseworker responsible for [ C. ] and I can , if you so wish , send you news of your son by letter .

However , I regret to inform you that I am unable to grant your request to see [ C. ] .

This is because it has never been possible to do any preparatory work with you , despite the efforts of members of this service , or to build relations with you without your resorting to violence , or making demands or threats .

Furthermore , at the request of ORG a review of the father / son relationship has been conducted by the LAW responsible for GPE . You saw [ C. ] in that connection once DATE for DATE and the same findings were reached , namely that :

( i ) it is impossible for you to re - establish a relationship with your son in his interest and in liaison with the children 's service ;

( ii ) NORP you refuse to accept that you need treatment .

Under these circumstances and in [ C. 's ] interest , I have no alternative but to stand by my decision ... ”

The relevant provisions of LAW are as follows :

“ If the health , safety or morals of an unemancipated minor are at risk , or if the conditions in which he or she is being brought up are highly unsatisfactory , a court order may be made for educative assistance measures on application by the father and mother , jointly or severally , the person or authority in whose care the child has been placed , the guardian , the child itself or by a representative of ORG . The court may act on its own initiative in exceptional circumstances . ...

The duration of the measure shall be determined by the court in its decision but shall not exceed DATE if the assistance is to be provided by a service or an institution . The measure may be renewed by a reasoned decision . ”

“ The children 's judge shall have jurisdiction for all matters concerning educative assistance .

The children 's judge shall in all cases endeavour to obtain the family 's agreement to the measure envisaged . ”

“ Whenever possible , the minor shall remain in his or her present home . In such cases , the judge shall appoint a qualified person or a service for observation , education or rehabilitation in the home to provide the family with help and advice in order to surmount the material or psychological difficulties encountered . That person or service shall be responsible for monitoring the child 's development and periodically reporting to the judge .

The judge may also order that the child shall remain at home only if special obligations are complied with , such as regular attendance at an ordinary or specialised health or educational institution , or carrying on an occupational activity . ”

“ Decisions concerning educative assistance may at any time be varied or set aside by the judge who delivered them , either on his or her own initiative or on application by the father and mother , jointly or severally , the person or authority in whose care the child has been placed , the guardian , the child itself or by a representative of ORG . ”

“ The father and mother of the child for whose benefit assistance has been ordered shall retain their parental authority over the child and shall be entitled to exercise all attributes of that authority that are not inconsistent with the application of the measure . For so long as an educative assistance measure is in force they shall not be entitled to emancipate the child without permission from the judge .

If the child has had to be placed outside the family home , his or her parents shall retain the right to correspond with the child and to have contact . The judge shall decide on the arrangements and may even , if the interest of the child so demands , decide that the exercise of either or both of those rights shall be provisionally suspended . The judge may order that a placement for the child shall be sought in a location that will facilitate so far as possible contact with the parent or parents . ”