ITEMID: 001-80038
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHURCH OF SCIENTOLOGY MOSCOW v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 11+9;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 6. On 25 January 1994 the applicant was officially registered as a religious association having legal-entity status under the RSFSR Religions Act of 25 October 1990.
7. On 1 October 1997 a new Law on Freedom of Conscience and Religious Associations (“the Religions Act”) entered into force. It required all religious associations that had previously been granted legal-entity status to bring their articles of association into conformity with the Act and obtain re-registration from the competent Justice Department.
8. On 11 August 1998 the applicant submitted to the Moscow Justice Department an application for re-registration, together with the documents required by law.
9. On 1 June 1999 the Moscow Justice Department refused re-registration of the applicant on the ground that its purpose and activities contradicted the requirements of the Religions Act and violated the Criminal Code as there was an on-going criminal investigation against the then president of the applicant. The applicant indicated that the investigation had been subsequently closed in the absence of indications of a criminal offence.
10. On 29 December 1999 the applicant submitted a second application for re-registration.
11. On 28 January 2000 the deputy head of the Moscow Justice Department informed the applicant that the second application had been refused. He wrote that the applicant had adopted a “new version of the Charter”, rather than “amendments to the Charter”, and had indicated that by the charter, the applicant “may have”, instead of “shall be entitled to have”, attached representative offices of foreign religious organisations. He also claimed that there had been other (unspecified) violations of Russian laws.
12. On 10 February 2000 the then president of the applicant sent a letter to the Moscow Justice Department inviting them to indicate specific violations. He relied on the requirement in section 12.2 of the Religions Act, pursuant to which the grounds for a refusal were to be set out explicitly.
13. By a letter of 18 February 2000, the deputy head responded to the applicant that the Justice Department was under no obligation to clarify or review charters or other documents and that it could only carry out legal evaluation of the submitted documents and give a decision either to grant or to refuse reregistration.
14. On 30 May 2000, having taken further steps to remedy any supposed defects in the documents, the applicant submitted its third application for registration.
15. On 29 June 2000 the deputy head informed the applicant that the application could not be processed because it had submitted an incomplete set of documents. Following a written inquiry of the applicant of 12 July 2000 as to what documents were missing, the deputy head informed the applicant on 17 July 2000 that his Department was not competent to indicate what information was missing and what additional documents were to be submitted.
16. On 17 July 2000 the applicant submitted to the Moscow Justice Department a fourth, more detailed application for re-registration.
17. On 19 August 2000 the Justice Department informed the applicant that the application would not be processed because it had allegedly submitted an incomplete set of documents. The missing documents were not specified.
18. On 10 October 2000 the applicant submitted a fifth, still more detailed application.
19. On 9 November 2000 the Justice Department repeated that the applicant had submitted an incomplete set of documents and the application would not be processed.
20. On 31 December 2000 the time-limit for re-registration of religious organisations expired.
21. The president and co-founder of the applicant brought a complaint before the Nikulinskiy District Court of Moscow against the Moscow Justice Department's refusal to re-register the applicant.
22. On 8 December 2000 the Nikulinskiy District Court of Moscow gave judgment, finding that the Justice Department's decision of 28 January 2000 had not had any basis in law. It established that the wordings used in the applicant's charter were in fact identical to those contained in the Religions Act and held that religious associations should not “be required to reproduce the text of the law verbatim in their charter”. The court stressed that the Justice Department could have suggested an editorial revision of the charter without refusing the application as a whole.
23. The District Court further held that the decision of 29 June 2000 had not been lawful, either. It established that all the documents required by the Religions Act had been appended to the application with the exception of a document confirming the existence of the religious group in the given territory for no less than fifteen years. However, that document was not necessary because, in accordance with the ruling of the Constitutional Court, religious organisations established before the adoption of the Religions Act were not required to confirm their fifteen-year existence.
24. The District Court concluded that the Moscow Justice Department had been “in essence, using subterfuges to avoid re-registration [of the applicant]”. It pointed out that such avoidance or refusals had violated the rights of the plaintiffs and their fellow believers guaranteed by Article 29 and 30 of the Russian Constitution because the parishioners whose association had no legal-entity status would not be able to rent premises for religious ceremonies and worship, to receive and disseminate religious literature, to have bank accounts, etc. The District Court also held that the refusal had been inconsistent with international standards of law, Articles 9 and 11 of the Convention and Article 18 of the International Covenant on Civil and Political Rights. The District Court also referred to Article 7 of the United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and held that “the refusal to grant legal-entity status to a religious entity imposes a practical restriction on the right of each person to profess his/her religion in community with others”. The District Court concluded as follows:
“Hence, the justice authorities' avoidance of re-registration of the Church of Scientology of Moscow under far-fetched pretexts contradicts the above mentioned laws of the Russian Federation and the international law.”
The District Court ordered the Moscow Justice Department to re-register the applicant.
25. The Justice Department did not appeal against the judgment and it became binding and enforceable on 19 December 2000. However, the Moscow Justice Department refused to comply with it.
26. On 27 December 2000 the president of the applicant obtained a writ of execution.
27. On 4 January 2001 the applicant submitted its sixth application along with the writ of execution mandating re-registration.
28. On 2 February 2001 the Justice Department refused to process the application, repeating that an incomplete set of documents had been submitted. No clarification as to the nature of the allegedly missing document(s) was given.
29. On an unspecified date the Moscow Justice Department asked the Moscow City prosecutor to lodge an application for supervisory review which he did. The prosecutor's application was granted by the Presidium of the Moscow City Court. On 29 March 2001 the Presidium quashed the judgment of 8 December 2000 by way of supervisory review. In doing so, it relied on the following grounds. Concerning the lawfulness of the decision of 28 January 2000, the Presidium criticised the District Court for the failure to verify the compliance of the amendments to the charter submitted for re-registration on 29 December 1999 with the law. As to the refusal of 29 June 2000, the Presidium opined that the book Scientology: The Theology and Practice of a Contemporary Religion (Russian edition) did not provide sufficient information on “the basic tenets of creed and practices of the religion” as required by section 11.5 of the Religions Act and that the set of documents was therefore incomplete. The Presidium remitted the matter for a new examination by the District Court.
30. On 7 August 2001 the Nikulinskiy District Court gave a new judgment. The District Court ruled in favour of the Moscow Justice Department and dismissed the complaint about the refusal to re-register the applicant. It found that the applicant had not complied with section 11 of the Religions Act in that (i) the application for re-registration only included copies, rather than originals, of the charter and registration certificate; (ii) the book submitted by the applicant did not qualify to be the “information on the basic tenets of creed and practices of the religion”, and (iii) the document indicating the legal address of the applicant was missing.
31. Before the court the plaintiffs unsuccessfully argued that the Moscow Justice Department had had in its possession the original charter and registration certificate, as well as the applicant's legal address, as these documents had been included in the first application for re-registration and the Moscow Justice Department had never returned them. The District Court concluded, nevertheless, that “the fact that some documents were [physically] in the building of the Department did not relieve the applicant of the obligation to submit a complete set of documents for registration”. It affirmed that “all required documents were to be submitted simultaneously”.
32. On 26 October 2001 the Moscow City Court upheld the judgment on appeal, endorsing the District Court's reasoning.
33. On 16 January 2002 the applicant submitted a seventh application for re-registration. In observance with the domestic courts' judgments the application included (i) the original charter and registration certificate; (ii) “information about the basic tenets of creed and practices” in the form of a four-page document instead of a book; and (iii) a new document confirming the legal address.
34. On 23 January 2002 a new deputy head of the Moscow Justice Department refused to process the application on the ground that the time-limit for re-registration of religious organisation had expired and that a civil action for the applicant's dissolution (see below) was pending.
35. On 30 April 2002 the Nikulinskiy District Court refused the Justice Department's civil action for dissolution of the applicant, referring to the Constitutional Court's decision of 7 February 2002 in the case of The Moscow Branch of The Salvation Army, according to which a religious organisation could only be dissolved by a judicial decision if it was duly established that it had ceased its activity or had engaged in unlawful activities (for a detailed description of the decision, see The Moscow Branch of The Salvation Army v. Russia, no. 72881/01, §§ 23-24, ECHR 2006...). Since the applicant had on-going financial and economic activities, maintained balance sheets and staged events in municipal districts of Moscow, and had not commited any wrongful acts, the action for its dissolution was dismissed. On 18 July 2002 the Moscow City Court upheld that judgment on appeal.
36. On 1 July 2002 the system for State registration of legal entities was reformed. A new Unified State Register of Legal Entities was established and the competence to make entries was delegated to the Ministry for Taxes and Duties (Tax Ministry). However, in respect of religious organisations a special procedure was retained, under which the regional departments of the Ministry of Justice would still make the decision of whether to register a religious organisation, whilst formal processing of the approved application would pass to the Tax Ministry. All existing legal entities were required to provide to local tax authorities certain updated information about themselves by 31 December 2002.
37. On 11 July 2002 the applicant submitted its eighth application for re-registration to the Moscow Justice Department, under the new procedure.
38. On 9 August 2002 the Justice Department refused to process the application, repeating that re-registration was no longer possible due to the expiry of the time-limit.
39. On 24 September 2002, after the Moscow City Court upheld the judgment refusing dissolution of the applicant, the applicant submitted a ninth application for re-registration. On the same day it also submitted the updated information required under the new procedure, to the local registering tax authority, Moscow Tax Inspectorate no. 39.
40. On 2 October 2002 the head of the Moscow Justice Department, responded to the applicant's letter of 2 September 2002 in the following terms:
“...a situation exits when, on one hand, the action of the [Moscow Justice Department] seeking dissolution of your religious organisation has been refused, and, on the other hand, the very same court has upheld as lawful our decisions to leave the applications and documents for re-registration of this organisation unexamined, whereas the time-limit for re-registration established by law has expired.”
41. On 23 October 2002 the Justice Department refused to process the ninth application, referring to the above letter from the department head and stating, as before, that the time-limit had passed.
42. On 29 October 2002 Moscow Tax Inspectorate no. 39 entered the applicant on the Unified State Register of Legal Entities and issued the registration certificate.
43. On 24 December 2002 the applicant submitted a tenth application for re-registration, attaching the registration certificate.
44. On 24 January 2003 the Justice Department left the tenth application unexamined, repeating once again that the time-limit had expired.
45. On 24 April 2003 the applicant lodged a complaint against the Justice Department's persistent refusal to re-register the applicant under the Religions Act. It argued, in particular, that the actions of the Justice Department constituted a breach of the rights to freedom of religion and association of the applicant and its members. It submitted a copy of the registration certificate of 29 October 2002 and relied on the Constitutional Court's decision of 7 February 2002.
46. On 1 September 2003 the Presnenskiy District Court of Moscow dismissed the complaint, holding that the Religions Act did not provide for a possibility to re-register religious organisations that had missed the time-limit for re-registration.
47. On 22 January 2004 the Moscow City Court quashed the judgment of 1 September 2003 and remitted the case. It held as follows:
“...failure to re-register within the established time-limit cannot in itself serve as a basis... for refusal to register amendments to the charter... of a religious organisation upon expiry of the established time-limit...
Refusal of registration of amendments to the founding documents of a religious organisation restricts the rights of the organisation, and, as a consequence, those of its members, to determine independently the legal conditions of its existence and functioning.”
48. On 3 November 2004 the Presnenskiy District Court granted the applicant's complaint against the Justice Department. It found that the Religions Act could not be interpreted as restricting a religious organisation's ability to amend its founding documents after the expiry of the time-limit set for re-registration. The Justice Department's decision not to process the application for registration of the amended charter was therefore unlawful. The District Court ordered the Justice Department to re-register the applicant by way of registering its charter as amended in 2002.
49. On 4 February 2005 the Moscow City Court upheld the interpretation of the Religions Act given by the District Court. However, it found that the Justice Department was wrongly ordered to register the amended charter without reviewing its compliance with the law. The City Court amended the operative part of the judgment and ordered the Justice Department to examine the applicant's application for registration in accordance with the established procedure.
50. On 31 May 2005 the applicant re-submitted its application for registration to the Moscow Registration Department, that is, the legal successor of the Moscow Justice Department in matters of registration of religious organisations following a reform of the justice system.
51. On 27 June 2005 the Moscow Registration Department informed the applicant that its application would not be processed because it had not submitted a document confirming its presence in Moscow for at least fifteen years.
52. On 2 September 2003 the Ministry for the Press, Tele/Radio Communications and Mass Communication rejected the applicant's application for registration of its newspaper Religion, Law and Freedom. The decision cited no legal grounds for the refusal and read, in its entirety, as follows:
“We report, that after the court proceedings between [the applicant] and [the Moscow Justice Department] have completed (that is, after the judgment has entered into legal force), this organisation may apply again for registration of the newspaper Religion, Law and Freedom.”
53. Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, to freely choose, have and share religious and other beliefs and manifest them in practice.
54. Article 30 provides that everyone shall have the right to freedom of association.
55. On 1 October 1997 the Federal Law on the Freedom of Conscience and Religious Associations (no. 125-FZ of 26 September 1997 – “the Religions Act”) entered into force.
56. The founding documents of religious organisations that had been established before the Religions Act were to be amended to conform to the Act and submitted for re-registration. Until so amended, the founding documents remained operative in the part which did not contradict the terms of the Act (section 27 § 3).
57. By letter of 27 December 1999 (no. 10766-СЮ), the Ministry of Justice informed its departments that the Religions Act did not establish a special procedure for re-registration of religious organisations. Since section 27 § 3 required them to bring their founding documents into conformity with the Religions Act, the applicable procedure was that for registration of amendments to the founding documents described in section 11 § 11. Section 11 § 11 provided that the procedure for registration of amendments was the same as that for registration of a religious organisation.
58. The list of documents required for registration was set out in section 11 § 5 and ran as follows:
“- application for registration;
- list of founders of the religious organisation indicating their nationality, place of residence and dates of birth;
- charter (articles of association) of the religious organisation;
- minutes of the constituent assembly;
- document showing the presence of the religious group in this territory for at least fifteen years...;
- information on the basic tenets of creed and religious practices, including information on the origin of the religion and this association, forms and methods of activities, views on family and marriage, on education, particular views on health held by the religion followers, restrictions on civil rights and obligations imposed on members and ministers of the organisation;
- information on the address (location) of the permanent governing body of the religious organisation, at which contact with the religious organisation is to be maintained; and
- document on payment of the State duty.”
59. Section 12 § 1 stated that registration of a religious organisation could be refused if:
“- aims and activities of a religious organisation contradict the Russian Constitution or Russian laws – with reference to specific legal provisions;
- the organisation has not been recognised as a religious one;
- the articles of association or other submitted materials do not comply with Russian legislation or contain inaccurate information;
- another religious organisation has already been registered under the same name;
- the founder(s) has (have) no capacity to act.”
60. Section 27 § 4 in its original wording specified that the re-registration of religious organisations was to be completed by 31 December 1999. Subsequently the time-limit was extended until 31 December 2000. Following the expiry of the time-limit, religious organisations were liable for dissolution by a judicial decision issued on application of a registration authority.
61. Examining the compatibility with the Russian Constitution of the requirement of the Law that all religious organisations established before its entry into force should confirm that they have existed for at least fifteen years, the Constitutional Court found as follows (decision no. 16-P of 23 November 1999 in the case of Religious Society of Jehovah's Witnesses in Yaroslavl and Christian Glorification Church):
“8. ... Pursuant to... the RSFSR Law on freedom of religion (as amended on 27 January 1995), all religious associations – both regional and centralised – had, on an equal basis, as legal entities, the rights that were subsequently incorporated in the Federal Law on freedom of conscience and religious associations...
Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them, solely on the basis that they did not have confirmation that they had existed for 15 years. In relation to religious organisations created earlier, that would be incompatible with the principle of equality enshrined in Article 13 § 4, Article 14 § 2 and Article 19 §§ 1 and 2 of the Constitution of the Russian Federation, and would be an impermissible restriction on freedom of religion (Article 28) and the freedom of [voluntary] associations to form and to carry out their activities (Article 30)...”
62. The Constitutional Court subsequently confirmed this position in its decision no. 46-O of 13 April 2000 in the case of Independent Russian Region of the Society of Jesus, and decision no. 7-O of 7 February 2002 in the case of The Moscow Branch of the Salvation Army.
63. Resolution 1278 (2002) on Russia's law on religion, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted, in particular, the following:
“1. The new Russian law on religion entered into force on 1 October 1997, abrogating and replacing a 1990 Russian law – generally considered very liberal – on the same subject. The new law caused some concern, both as regards its content and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the religious communities' re-registration exercise at federal level successfully completed by the Ministry of Justice on 1 January 2001. However, other concerns remain. ...
5. Moreover, some regional and local departments of the Ministry of Justice have refused to (re)register certain religious communities, despite their registration at federal level. The federal Ministry of Justice does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within the ministry...
6. Therefore, the Assembly recommends to the Russian authorities that:
i. the law on religion be more uniformly applied throughout the Russian Federation, ending unjustified regional and local discrimination against certain religious communities and local officials' preferential treatment of the Russian Orthodox Church, and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from the Russian Orthodox Church;
ii. the federal Ministry of Justice become more proactive in resolving disputes between its local/regional officials and religious organisations before disputes are brought before the courts, by taking remedial action within the ministry in case of corruption and/or incorrect implementation of the law on religion, thus rendering it unnecessary to take such cases to the courts...”
VIOLATED_ARTICLES: 11
9


ITEMID: 001-93244
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STOYANOVA-TSAKOVA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-1
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1956 and lives in Sofia.
6. Following a petition from her former husband, on 29 October 1998 the Sofia District Court dissolved their marriage. It gave the applicant custody of the couple’s only child, and also gave her the use of the former matrimonial home. It found that this home was a flat acquired jointly by the former spouses during their marriage, situated in the “Strelbishte” neighbourhood of Sofia, and intended by them to fulfil the family’s housing needs (the applicant had moved into that flat in 1997 although it had not been fully finished). The fact that the applicant’s former husband had never lived there was of no relevance, as this had been the result of his disregarding his duty to cohabit with his spouse. As the applicant had been given custody of their only child, the court held that she was entitled to use the flat.
7. The applicant’s former husband appealed against the court order relating to the former matrimonial home. He averred that this home was in fact another flat – situated in the “Borovo” neighbourhood of Sofia and coowned by him and his mother and sister – where the spouses had lived before their de facto separation in 1995.
8. On 16 June 2000 the Sofia City Court upheld the order. It agreed with the Sofia District Court that the former matrimonial home was the flat in “Strelbishte”, as it had been acquired, by means of a preliminary contract with the builder, during the marriage, for the family’s housing needs, as at that time the spouses had not owned another home, and as the applicant and her child had been living there at the time when the marriage was dissolved. The flat in “Borovo” was not the former matrimonial home, because it was co-owned by the applicant’s former husband and third parties and both spouses had left it in 1995.
9. The applicant’s former husband appealed on points of law.
10. In a judgment of 29 March 2001 the Supreme Court of Cassation quashed the lower court’s judgment and remitted the case. It held that the former matrimonial home was the flat in “Borovo”, not the one newly built in “Strelbishte”. According to its settled caselaw, the former matrimonial home was the one which had been used before the dissolution of the marriage and, in case of a de facto separation preceding the dissolution, the one used before the separation.
11. On remittal, the Sofia City Court, in a judgment of 20 March 2002, again upheld the order of the Sofia District Court. It relied on interpretative decision no. 12/1971 of the Plenary Meeting of the Supreme Court (see paragraph 18 below), according to whose point 2 (b), in the event of a de facto separation, the former matrimonial home is the one acquired during the separation with funds accumulated during the marriage. On this basis, it found that the former matrimonial home was the flat in “Strelbishte”. Given the unambiguous rule set out in the interpretative decision, the fact that the spouses had not lived in that flat together was immaterial.
12. The applicant’s former husband appealed on points of law.
13. The Supreme Court of Cassation held a hearing on 9 October 2002. The applicant was represented by counsel, who asked the court to dismiss the appeal and said that he had developed his arguments in a memorial which he filed during the hearing.
14. In the memorial, which ran to four pages, the applicant’s counsel argued that the Sofia City Court had not erred by taking into account interpretative decision no. 12/1971 instead of the guidelines of the Supreme Court of Cassation given in the judgment of 29 March 2001, since where there was conflict between the instructions given in a specific case and the solution envisaged by a binding interpretative decision the latter prevailed. He further presented a number of arguments why the flat in “Strelbishte” was the former matrimonial home and why its use should be given to the applicant. He asserted that this flat had been acquired by the spouses with a view to fulfilling the family’s housing needs, that the applicant had contributed financially to its acquisition and that the only reason why she did not have title to it was her former husband’s protracting the conclusion of the final contract for its acquisition from the builder. The applicant had brought a separate suit, seeking a court order declaring the preliminary contract with the builder final. However, that suit was still pending. The spouses had lived in the flat since 1997, but even assuming that the applicant’s former husband had not done so throughout the entire period, this had been due to his dereliction of the duty to cohabit with his wife. The applicant and her child could not live in the flat in “Borovo”, because this was not the former matrimonial home, and this would mean cohabiting with their former inlaws, with whom they did not have good relations.
15. On 21 November 2002 the Supreme Court of Cassation quashed the Sofia City Court’s judgment. In the beginning of its twoandahalf page opinion it observed that the applicant had not made submissions in the proceedings before it. It found no indication that the spouses had obtained title and thus acquired the flat in “Strelbishte” during the marriage; there was merely a preliminary contract in respect of it. The date of delivery of the flat was irrelevant. Therefore, point 2 (b) of interpretative decision no. 12/1971 (see paragraph 18 below) was not applicable. However, even if the spouses had acquired the flat during the marriage, it would not have become the matrimonial home, because it had not been acquired in order to fulfil the family’s housing needs. Where a home had not been acquired for such purpose, point 2 (b) was inapposite on account of the repeal in 1991 of a communist-era statute restricting the number of properties which an individual was allowed to own. Thereafter, the contribution of funds by both spouses could be of importance solely for the existence or otherwise of a joint title to a home acquired during the marriage, not for its designation as the matrimonial home. The former matrimonial home was the flat in “Borovo”, as the spouses had lived there before their de facto separation in 1995. Since the couple’s child was already an adult and since the applicant shared some of the responsibility for the breakdown of the marriage, the use of the former matrimonial home was to be given to her former husband.
16. On 29 November 2002 the applicant’s counsel asked the Supreme Court of Cassation to rectify the statement in its judgment that he had not made any submissions in the cassation proceedings. He considered that statement to be an obvious mistake, because, as noted in the minutes of the hearing, he had filed a memorial, which featured after page 10 in the case file. On 6 December 2002 the court refused, saying that only errors in the operative provisions of a judgment could be rectified.
17. Article 107 § 1 of the 1985 Family Code provides that when a court allows a divorce petition, it must give the use of the former matrimonial home to one of the spouses if it cannot be used separately by both of them. In reaching its decision, the court must have regard to the interests of the children, the fault for the breakdown of the marriage, the health of the spouses and all other relevant circumstances.
18. Interpretative decision no. 12/1971 of the Plenary Meeting of the Supreme Court (постановление № 12 от 28 ноември 1971 г., Пленум на ВС) was adopted on 28 November 1971 under the 1968 Family Code (which was superseded by the 1985 Family Code). It deals with all issues relating to the use of the former matrimonial home. Point 2 (b) of its operative provisions defines the former matrimonial home as the one acquired while the spouses were separated de facto, but with funds accumulated during the marriage.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-66642
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SCHIRMER v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 6. In 1996 the applicant filed with the Warsaw District Court (sąd rejonowy) an action in which she requested the eviction of Ms J. from a flat she owned. She also claimed payment of overdue rent, in the amount of 4,371.17 Polish zlotys (PLN). She submitted that she had given notice of termination of the lease contract after J's recurrent failure to pay the rent on time. J. had been occupying the flat on the basis of an administrative decision, given under a so-called special lease scheme (see § 18 below). This administrative decision had created a protected tenancy contract between the parties, on the basis of which controlled rent was to be paid by the tenant and the tenancy could not be terminated by the owner.
7. In January 1999 the applicant, having offered Ms J. an alternative flat, added a new eviction application, which was based on article 56 of the Law on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych). Subsequently, she withdrew the claim related to her tenant's failure to pay the rent.
8. On 6 August 1999 the court gave judgment. It ordered Ms J. to pay overdue rent in the amount of PLN 459,15 and dismissed the eviction application. The court admitted that the applicant had offered J. an alternative flat before seeking her eviction. It pointed out, however, that Article 56 § 7 of the 1994 Law on the Lease of Dwellings provided that a flat offered to a tenant as alternative lodging had to be owned by the person seeking eviction (see § 20 below). However, the flat which the applicant had offered J. was owned by a housing co-operative and the applicant had only a limited right to it. The court considered that:
“The plaintiff has a co-operative quasi-proprietorial right to that flat, which, although relatively extensive, is yet limited by a number of provisions of the Co-operative Law and cannot be equated with ownership. This court is bound by laws, and the relevant provision of the Law on the Lease of Dwellings [concerning the requirements that an alternative dwelling had to meet] is unequivocal.”
9. The court further considered that it was not empowered to assume that the legislature had made the reference to mandatory ownership of the alternative accommodation by mistake. Neither could it accept that this reference should be understood as covering also the quasi-proprietorial cooperative right to an apartment.
10. The court finally considered that, pursuant to the 1994 Law on the Lease of Dwellings, eviction of a tenant, if preceded by the offer of an alternative flat, was an exception to the general rule that an owner could not evict a tenant who complied with his or her statutory duties. Accordingly, the provisions covering such exceptions could not be given an extensive interpretation.
11. In the same judgment the District Court discontinued the proceedings in so far as they related to the withdrawn application.
12. The applicant appealed. She submitted that the Law on the Lease of Dwellings should not have been interpreted in her case in the literal manner proposed by the District Court. She argued that the main objective of the provisions concerning eviction of tenants was to protect the property rights of owners. On the other hand, those provisions were also aimed at guaranteeing tenants an effective right to continued and peaceful enjoyment of accommodation and thus required the owners to secure alternative flats for them. In the light of that aim of the Law, the interpretation made by the court had been too restrictive. As a result, only the rights of the tenant were protected by the judgment under appeal, to the detriment of the owner's rights. The applicant pointed out that the alternative lodging which she had offered J. made it possible for her to enjoy peaceful accommodation. The purpose of the provision applied in the case was essentially to secure the position of tenant in an alternative dwelling and to prevent him or her being evicted from it. The apartment offered by the applicant guaranteed such certainty, notwithstanding the fact that she did not own that apartment, but had another right in rem to it, close in its nature to ownership. For those reasons the applicant considered that the dismissal of her eviction application, which made it impossible for her to live in her own apartment, amounted to an infringement of her property rights.
13. The applicant also resubmitted a declaration of the housing co-operative by which it had agreed that the applicant's apartment be let to Ms J. until the end of 2004, i.e. until the time-limit set by the 1994 Law on Lease of Dwellings for the prolongation of the system of protected tenancies.
14. On 20 December 1999 the Warsaw Regional Court (sąd okręgowy) dismissed the applicant's appeal. It pointed out that the underlying purpose of a law could be examined as an aid to its interpretation only if an analysis of a literal meaning of its text proved ineffective. Having regard to the clear wording of the provision at issue and to an unequivocal reference to 'ownership' of the alternative accommodation, the court found that this was not the case. The provision on which the District Court had relied conferred special rights on the owner, in that she was entitled to offer alternative accommodation to the tenant who had been fully complying with the conditions of the tenancy contract. These special rights could not be interpreted in an open-ended manner to the detriment of the tenant.
15. On 14 March 2000 the Warsaw Regional Court rejected the applicant's appeal against the judgment of 20 December 1999, as it was not provided for by law in that case.
16. On 28 February 2001 the Supreme Court dismissed her appeal against the Regional Court's decision of 14 March 2000.
17. From 1945 on, under successive acts of housing legislation, housing matters were subject to state control. The most important characteristics of this system, called the 'special lease scheme' under the provisions of the 1974 Housing Law, was that tenancy contracts were created by administrative decisions. For all practical purposes, such decisions replaced civil law contracts between landlords and tenants. Under this system owners could not choose their tenants as they were imposed by the administrative authorities, tenants paid controlled rent and owners could not terminate leases by giving notice on a tenancy contract.
18. The “special lease scheme” was abolished by the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances. However, the system of protected tenancies was maintained in that the Law provided for protection against termination of leases concluded on the basis of administrative decisions.
19. Under transitional provisions of this Law, protected tenancies which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for indefinite period and governed by the provisions of the 1994 Law. Until 31 December 2004 rents paid for these leases were to remain controlled.
20. The Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances provided, in so far as relevant:
“Article 32. 1. ... The owner can terminate the lease if the tenant: ...
(2) is in arrears of rent ... for at least two full terms of payment, despite a written notice of intent to terminate the lease and fixing an additional, one-month time-limit for the payment of overdue and current amounts. ...
Article 56. 1. Under this law, a lease which originated in an administrative decision on allocation of a flat, or had another legal basis [that existed] before in a given locality the state management of housing or special lease scheme was introduced, shall be treated as a contractual lease concluded for an indefinite period under the provisions of this law. ...
4. If the owner... intends to live in his flat and with that intention has vacated the flat which he has hitherto rented ... from the municipality, the tenant shall be obliged to vacate the owner's flat and to move into the flat [proposed to him], provided that the [condition of] the flat in question complies with the requirements laid down by this law in respect of alternative accommodation. If such is the case, the owner can terminate the lease under article 32 § 2. ...
7. If the landlord has offered the tenant the alternative accommodation he owns himself or if, at the owner's request, such alternative accommodation has been provided by the municipality, paragraph 4 shall apply by analogy.”
21. The Law of 1994 was repealed by the Law of 21 June 2001 on the Protection of Tenants' Rights, the Commune Housing Reserve and the Amendment of the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego), which entered into force on 10 July 2001.
22. Article 11 of that Law provides, in so far as relevant:
“... The owner can terminate the contract, if he or she intends to dwell in the flat owned by him, ... [and] provides [the tenant] with an alternative flat.”
23. The Civil Code mentions the quasi-proprietorial right to a flat in a housing-co-operative (spółdzielcze własnościowe prawo do lokalu) in its chapter on limited property rights. The details are described in the Cooperative Law (Prawo spółdzielcze) enacted on 16 September 1982. That law provides:
“Article 213. § 1. In buildings owned by a housing co-operative its members have a right to use flats allocated to them ... (co-operative quasi-proprietorial right to a flat) ...
Article 223. § 1. The co-operative quasi-proprietorial right to a flat is a transferable right, it may be inherited and is subject to enforcement proceedings. It is a limited right in rem.
§ 2. The validity of transfer of the co-operative quasi-proprietorial right to a flat depends on admitting the acquirer as a member of the co-operative. ...
Article 226. § 1. The member is obliged to participate in the costs of construction, use and upkeep of the co-operative's property, ... and other obligations of the co-operative by bringing in a construction contribution (wkład budowlany) ... in the amount corresponding to the total costs of the construction due in respect of his flat, and by the payment of fees relating to the use of the flat. ...”
24. Under Articles 217 and 238 of the Co-operative Law, a person having the co-operative quasi-proprietorial right to an apartment could let this apartment to third parties or let them use it for free, but only if the cooperative gave its consent thereto. The Constitutional Court, in its judgment of 29 June 2001, found that these provisions were incompatible with the constitutional guarantees of peaceful enjoyment of property rights. This was so because they restricted the very essence of the co-operative quasi-proprietorial ownership right too significantly, in a manner incompatible with the nature of that right in rem, and conferred too strong a position on co-operatives vis-à-vis their members.


ITEMID: 001-97207
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: T.S. AND D.S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, T.S. and D.S., are British nationals who were born in 1977 and 1965 respectively and live in Hailsham.
The applicants’ daughter (“S”) was born on 23 February 2002. S was conceived with the assistance of IVF treatment and she is the applicants’ only child.
In December 2006 an anonymous call was made to the National Society for the Prevention of Cruelty to Children (“the NSPCC”), outlining a number of concerns about S. In particular, the caller said that she was inappropriately dressed, that she reported having seen “horrible things” on her father’s computer, and that her mother had described her as “sexy” while she posed for a photograph. The NSPCC reported the concerns to social services, who contacted the applicants but felt that no further action was necessary. The applicants, however, were convinced that the call had been made by a teaching assistant at S’s school. They visited the school, where they became “angry and vociferous” and the headmistress threatened to call the police. They then visited the home of the teaching assistant who they believed had called the NSPCC, but she was not there.
The applicants subsequently removed S from school. In or around April 2007 S reached compulsory school age. Although the applicants indicated that they were looking for a new school and that S was being home-schooled in the meantime, there was no evidence to support either of these claims and they subsequently admitted that they had misled the authorities.
The applicants are dog breeders and on or around 25 March 2007 a police officer visited their home following the theft of a puppy. She described the kitchen as clean and tidy and observed that S behaved in an appropriate manner.
On 19 April 2007 two inspectors from the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”) visited the applicants’ property after receiving information that the tails of their dogs had been docked. The applicants were verbally aggressive and the inspectors left the property. They subsequently obtained a warrant under the Animal Welfare Act and, on 25 April 2007, four police officers, two RSPCA officers and a vet went to the applicants’ property to execute the warrant. On entering the conservatory they saw a large pool of urine on the floor and piles of dog faeces throughout. The whole house smelt strongly of ammonia and urine. A number of dead rabbits, which were used to feed the dogs, were spread around the house with trails of blood and entrails. There were blood stains on unwashed floors and a mincing machine in the front room close to S’s clothing. The family bedroom contained only a tattered double mattress and the ceiling was partially collapsed above the bed. S was naked from the waist down and wearing only a grubby pink t-shirt. The applicants later attributed the state of the property to “the raid” and said that it was clean before the police arrived. They also explained that they were looking after additional dogs which belonged to a friend, and that the lack of clothes and furniture could be explained by the fact that the family was preparing to move.
Following the visit a police officer requested that protective measures be taken in respect of S and authorisation was given for her to be removed from the property. She was taken first to a police station, where she told a police officer that she had seen her father, the first applicant, “having sex with his girlfriend on his computer”.
S was placed with foster carers. Following the placement she stated that she did not wish to see the applicants.
On 26 April 2007 a social worker visited the applicants’ property. Although some cleaning had been carried out, the applicants refused to engage with the social worker and instead insisted that they were perfect parents.
Contact was arranged for 31 April 2007. On arrival at the contact centre, the first applicant became extremely upset and angry. S was distressed by his behaviour and at times was seen to be “shaking with fear”.
The local authority initially planned to rehabilitate S to the applicants. They applied for an interim care order with a care plan that S would remain in care until assessments of the applicants could be carried out. In a judgment dated 31 July 2007, a High Court Judge found that the threshold criteria for making an interim care order had been met as S had suffered and was at risk of suffering serious harm in the applicants’ care. In particular, the judge observed that the removal of S from school and the living conditions in the applicants’ home provided reasonable grounds for believing that S was suffering significant harm. The judge also found that there was a risk of emotional damage because the applicants could not control their anger and resentment towards others. The judge noted, however, that the risk to S’s physical well-being had diminished by July 2007 as a number of improvements had been made to the applicants’ property. The judge declined to make any findings on the basis of anything said by S, either concerning sexual activity that she may have witnessed or about not wanting to see her parents. The judge made an interim care order.
Directions were given at the beginning of August 2007 for the instruction of experts to move the case forward. The position statements of the applicants at that date, which were prepared while both were legally represented, indicated that they accepted the need for a global psychological assessment. Two expert psychiatrists were appointed to look at the psychiatric background to the case. By 17 August 2007 the applicants had dismissed their solicitors and counsel. They were acting in person and made it clear that they would only co-operate with a Dr W, who they considered was looking only at S and why she presented as she did. Dr W was able to conduct a three hour interview with the applicants but they subsequently refused to engage further with her and they refused to allow her to observe their contact with S. In her report Dr W described the applicants as having “a habitual style of oversensitivity, persistent grudge bearing, misconstruing friendly actions, a combative approach to their own rights out of keeping with reality and preoccupation with unsubstantiated conspirational explanations of events.” Without a process of assessment she found it very likely that S would experience further significant emotional harm if she were returned to the applicants’ care and that there was an additional risk of neglect.
Dr W concluded that there was no evidence either applicant suffered from psychiatric illness although there were concerns that they exhibited paranoid personality traits. As the issue of personality traits was considered to be a matter for a psychologist, she recommended that the applicants undergo a full psychological assessment.
On 5 December 2007 the judge ordered the continuation of the interim care order. The court also ordered a kinship assessment of S’s aunt and uncle. In the course of the hearing the applicants indicated their unwillingness to agree to any further assessments. The court urged them to seek legal advice as, in the absence of co-operation, the case would have to be set down for a final hearing.
Between the hearing and 17 December 2007, as a consequence of the first applicant’s behaviour at a contact session, he was asked to sign a Good Conduct Agreement. He refused to sign the agreement as he believed that it would be tantamount to admitting that he had done something wrong. On 21 December 2007 the judge again ordered the continuation of the interim care order. She also made an order permitting the local authority to suspend the first applicant’s contact with S until he signed the Good Conduct Agreement.
On 2 April 2008 the Court of Appeal refused the applicants’ applications for leave to appeal against the orders continuing the interim care orders, finding that there was no prospect of a successful appeal. The court strongly recommended, however, that the applicants obtain representation before the final hearing.
The case came before the County Court on 9 April 2008. The applicants had still not agreed to a psychological assessment, although the second applicant expressed her intention to instruct a solicitor. At the end of April the case was again before the court, and the second applicant indicated that she was willing to seek leave to instruct a psychiatrist. It became apparent, however, that her intention was to re-open findings of fact made in the judgment of 31 July 2007. Directions were given for the filing of position statements. When the case came back before the court on 24 May 2008, although position statements had been prepared the bundles were not ready and it was not possible to hear the applications before the court.
By the end of May the applicants had sought legal advice but had still not agreed to a psychological assessment. The case was listed for hearing at the end of August. The hearing could not proceed as planned as a positive kinship assessment of S’s aunt and uncle was undermined by allegations of indecent assault made against the uncle.
The application for a full care order came before the County Court in September 2008. By the date of the hearing, the first applicant had again dismissed his solicitor and barrister and he represented himself. The second applicant was legally represented.
Although the local authority had originally hoped to rehabilitate S to the applicants, their failure to co-operate throughout the proceedings forced the local authority to change their position. At the hearing the local authority’s final care plan was for a permanent placement outside the family, unless the applicants would agree to a full psychological assessment.
In the course of her evidence, the second applicant attributed her past behaviour to an internet site called “Forced-Adoption.com”, which recommended that parents in the applicants’ situation refuse to co-operate with social services and refuse to be assessed by any experts until their children were returned.
In a judgment dated 18 December 2008, the judge found that the applicants’ behaviour in the course of proceedings demonstrated that S’s emotional welfare took second place to their need to validate their feelings of injustice. She reiterated that at the time the proceedings were taken, S was suffering significant harm from the neglect of her schooling, the environment in which she was living and the applicants’ inability to prioritise her needs over their own. With regard to the final care plan, the judge found that the first applicant had no intention of submitting to a psychological assessment. She also noted that if the second applicant were to agree to an assessment, she would be unlikely honestly to engage. In any case, she noted that an assessment of one parent only would be pointless. Finally, she considered that it would not be safe to return S to the applicants without such an assessment, and that S’s interests would not be served by any further delay. The judge could not make a final order in the terms requested by the local authority as S’s case had not been placed before a permanence panel. She therefore made a four-week interim care order.
The case came back before the judge in March 2009. It could not be considered earlier as there had been a failure to provide the permanence panel with the correct documentation in an appropriate form.
At the hearing the judge noted that there was no evidence which would require her to vary the conclusions that she made in December 2008. She therefore made a final care order, dispensed with the applicants’ consent and made a placement order. Given S’s age, she indicated that an order which did not allow for the possibility of direct contact between her and the applicants would be inappropriate, but that much work would have to be done before such contact could take place.
On 8 July 2009 the applicants were refused leave to appeal to the Court of Appeal.
Section 31 of the Children Act 1989 provides for the making of care and supervision orders:
“(1) On the application of any local authority or authorised person, the court may make an order—
(a) placing the child with respect to whom the application is made in the care of a designated local authority; or
(b) putting him under the supervision of a designated local authority or of a probation officer.
(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.”
The Adoption and Children Act 2002 provides for the making of placement orders:
“21 Placement Orders
(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.
(2) The court may not make a placement order in respect of a child unless—
(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.
(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b) that the parent’s or guardian’s consent should be dispensed with.
... ... ...
52 Parental etc. consent
(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with.”


ITEMID: 001-120951
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF PRIZZIA v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant was born in 1962 and lives in Glen Allen, Virginia, USA.
6. The applicant married a Hungarian citizen, Ms J.B., and the couple had one son, T.M.P., born on 3 February 2000. The family lived in Virginia.
7. In 2003, following a visit to relatives in Hungary, J.B. did not return to the USA and instituted divorce proceedings. The applicant initiated proceedings before the Hungarian courts in order to have the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) applied and the child taken back to the USA.
By a decision of 14 September 2004, the Hungarian Supreme Court found that the retention of the child in Hungary by her mother without the father’s consent was illegal but refused to grant a return order under the Hague Convention. The applicant’s visiting rights were regulated through a number of interim measures pending the divorce proceedings.
8. On 19 March 2005, following the pronouncement of the divorce of the applicant and his wife, the Budapest Central District Court placed the couple’s son with the mother. After appeals, on 27 March 2007 the Supreme Court regulated by a final judgment the applicant’s access rights in a way that he had access to his son four consecutive days every month and was entitled to spend one month of the summer vacation with him, including the possibility to take him to the USA. The mother was obliged to hand over the necessary travel documents for this purpose.
The court explained that it was in the child’s best interest to maintain emotional links with his father, which would become difficult should he be disconnected from the linguistic environment. In addition, the court, referring to the Hague Convention, found no evidence to support J.B.’s supposition that the applicant would fail to return the child to Hungary.
9. In August 2007 the applicant complained to the Budapest XII District Guardianship Authority that his access granted in respect of the months of August 2007 could not be exercised on account of the mother’s reluctance to co-operate. In reply, J.B. maintained that the son was sick and needed medical treatment.
Despite assurances from the applicant that he would accompany T.M.P. to all medical appointments that were necessary, the mother left Budapest with the child for a place unknown to the applicant.
The Guardianship Authority established that the mother and son had not been available on 1 August 2007 as regulated in the Supreme Court’s judgment. On 11 September 2007 the Authority warned the mother that she might be fined for her conduct. The applicant for his part initiated enforcement proceedings with no success.
10. On 1 July 2008 the mother again failed to comply with the applicant’s access right. On 23 July 2008 the then competent Budapest XIII District Guardianship Authority imposed a fine of 100,000 Hungarian forints (HUF) (approximately 360 euros (EUR)) on her, ordering the handover of the child to the applicant on 1 August 2008. The mother stated that she would not comply with the court judgment as regards the child’s visit to the USA, since there was an international warrant in place to locate the child, which might impede his return to Hungary.
In the resumed first-instance administrative proceedings the Guardianship Authority ordered J.B. to pay a fine and to reimburse the applicant’s travel costs in the amount of HUF 396,375 (approximately EUR 1,300). This decision was upheld by the Budapest Regional Court on 26 April 2010.
11. The applicant again requested the enforcement of the access arrangements. On 28 July 2008 a bailiff ordered J.B. to deliver the child’s passport to the applicant within three days. Nonetheless, she did not comply with this decision but handed over the child’s passport to an employee of the Ministry of Foreign Affairs on 19 August 2008. However, the Ministry did not transfer the passport to the applicant upon the bailiff’s order but returned it to the mother on 15 October 2008.
12. The applicant lodged a criminal complaint against the employee of the Ministry of Foreign Affairs on charges of abuse of power. Eventually, on 19 October 2010 the Budapest Public Prosecutor’s Office discontinued the investigation, finding no appearance of a criminal offence.
13. On 24 September 2009 the Authority established the mother’s non-compliance with the access arrangements in respect of 1 August 2008 and imposed a further fine of HUF 200,000 (approximately EUR 720) for the overdue visit. Moreover, she was ordered to compensate the applicant for the costs incurred by travelling in vain. During the hearing before the Authority the mother reiterated that she would not allow the child to travel to the USA since the father would obstruct his return to Hungary. The mother’s request for a judicial review was rejected by the Budapest Regional Court on 23 June 2010.
14. It appears that the applicant was otherwise able to have contact with his son in compliance with the Supreme Court’s decision.
15. Meanwhile, both the applicant and the mother initiated actions before the Buda Central District Court in February 2007, the applicant seeking, in particular, a change in custody and the official deposit of the child’s passport. The mother requested a restriction on the applicant’s access rights, removing his entitlement to take the child to the USA. The cases were joined.
On 11 December 2008 the court rejected both actions. Nonetheless, the court allowed the applicant’s request to have the annual summer visits moved to July (in which case a missed opportunity could be substituted for by a visit in August) and modified the scheme accordingly. The decision was upheld by the Budapest Regional Court, acting as a second instance court, on 25 January 2010.
16. The child’s envisaged stay with his father, first scheduled for 1 July and then rescheduled for 1 August 2009, did not take place. The mother stated that she would not co-operate in this respect, unless the applicant saw to it that the criminal proceedings allegedly initiated against her in the USA were discontinued.
On both occasions a police officer accompanied the applicant to the mother’s flat, but his access right could not be enforced, since the mother had left with the child for an unknown place.
The applicant’s first request seeking the enforcement of his right to July visit was dismissed by the Guardianship Authority as premature, because he was entitled to reschedule the visit to August. However, subsequent to the omission of the visit in August, the applicant initiated enforcement proceedings, following which a penalty in the sum of HUF 300,000 (approximately EUR 1,000) was imposed on the mother by the Guardianship Authority. This decision was confirmed by the Budapest Regional Court on 14 July 2011.
17. Furthermore, it appears that the applicant’s access to his son of four consecutive days every month, as regulated by the Supreme Court’s decision, did not take place at least in June 2009 and November 2009.
18. The applicant brought proceedings against J.B. in respect of the missing visit of July/August 2011. Based on the mother’s statement that she had stayed at home and been available on the prescribed day in order to hand over the child to the applicant, his action was dismissed by the Government Office for Budapest, acting as the second-instance administrative authority, on 10 August 2012.
19. Meanwhile, the applicant initiated another action before the Pest Central District Court, again seeking a change of custody. In an interim measure of 15 June 2010, the court ruled that the applicant’s access rights in respect of the 2010 summer holiday should be exercised in Hungary.
20. In its judgment of 19 May 2011 the court dismissed the applicant’s action. It limited his access rights to the effect that the access visits during the child’s summer holiday could take place in Hungary only, and this until the child’s sixteenth birthday, explaining that the child was concerned about his father not bringing him back to Hungary. The applicant was granted access visits for some days during autumn, Christmas and spring holidays, to be exercised in Hungary as well. The court also regulated the exact days of every other month when the applicant was entitled to visit his son in Hungary in the coming years. It considered, among other things, that the child did not consider the applicant as being a member of his family, the disputes between the parents had negative impact on him and he seemed to be reluctant to leave for the USA with his father alone.
On 29 November 2011 the Budapest Regional Court upheld the first-instance decision, rejecting the applicant’s request to establish the bi-monthly days of visit in a flexible way.
21. The applicant’s petition for review is pending before the Supreme Court.
22. The relevant rules concerning the enforcement of contact orders are contained in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows:
“(2) A child’s development is endangered where the person entitled or obliged to maintain child contact repeatedly fails, by his or her own fault, to comply or to properly comply with the [contact rules], and thereby fails to ensure undisturbed contact.
...
(4) Where, in examining compliance with subsections (1)-(2), the guardianship authority establishes [culpability on the parent’s side], it shall, by a decision, order the enforcement of the child contact within thirty days from the receipt of the enforcement request. In the enforcement order it shall:
a) invite the omitting party to meet, according to the time and manner specified in the contact order, his or her obligations in respect of the contact due after the receipt of the order and to refrain from turning the child against the other parent,
b) warn the omitting party of the legal consequences of own-fault non-compliance with the obligations under subsection (a)
c) oblige the omitting party to bear any justified costs incurred by the frustration of contact.
(5) Where the person entitled or obliged to maintain contact fails to meet the obligations specified in the enforcement order under subsection (4), the guardianship authority may ...
a) initiate to involve the child contact centre of the child welfare service or to take the child into protection in case the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or the parents have communication problems,
b) initiate child protection mediation procedure ....
...
(7) If it is proved that the person liable to contact brings up the child by continuously turning him/her against the person entitled to contact and, despite the enforcement measures specified under subsections (4)-(5), fails to comply with the contact order, the guardianship authority:
a) may bring an action seeking change of placement if it is the best interests of the child,
b) shall file a criminal complaint ...”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-58069
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF GUILLOT v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
JUDGES: R. Pekkanen
TEXT: 8. Mr Gérard Guillot and his wife, Mrs Marie-Patrice Guillot, née Lassauzet, chose to give their daughter, born on 7 April 1983, the forenames "Fleur de Marie, Armine, Angèle". After consulting State Counsel at Nanterre, the registrar of births, deaths and marriages for Neuilly-sur-Seine, to whom the child's birth had been declared, refused to register the first of these names on the ground that it did not appear in any calendar of saints' days. The birth certificate drawn up at the time mentions only "Armine, Angèle".
9. In a judgment of 7 February 1984 the Nanterre tribunal de grande instance dismissed the applicants' main application for an order that the forename "Fleur de Marie" be added as their daughter's first forename, but granted their application made in the alternative for the addition of "Fleur-Marie". It held as follows:
"State Counsel objected to the application on the grounds that whereas 'Fleur' and 'Marie' are, when taken separately, acceptable first forenames under French law, that is not the case with 'Fleur de Marie'. The applicants submit that 'Fleur de Marie' is composed of two forenames recognised by French law, which when linked by the preposition 'de' form the name of the heroine of Eugène Sue's Mystères de Paris, a work which is world-famous. However, although a forename may be composed of up to two names already in use, it cannot, as in the present case, consist of a combination of two names linked by a preposition since it would cease to be a mere reuse of a traditional boy's or girl's name and become an image invented at the whim of individuals, for all that they might possess as lively an imagination as Eugène Sue. In any event, this was not the intention of the legislature when it regulated the choice of forenames. Consequently, the main claim in the application must be dismissed but there is no reason not to grant the claim made in the alternative relating to the forename 'Fleur-Marie'. For these reasons, ... Dismisses the applicants' application for an order that the forename 'Fleur de Marie' be added as the first forename of the child born on 7 April 1983 and already called Armine Angèle. Declares, on the other hand, that the forename 'Fleur-Marie' is acceptable under French law and orders that it be added as the first forename of the above-mentioned child. Orders that the operative provision of this judgment ordering the addition of the first forename be entered in the margin of the child's birth certificate. Orders that no certified copy of the certificate shall be delivered without the said addition.
(...)"
10. Mr and Mrs Guillot appealed to the Versailles Court of Appeal, which on 18 September 1984 upheld the judgment of the court below in the following terms:
"(...)
Although in spite of the mandatory requirements of the Law of 11 Germinal Year XI, which provides that forenames must be chosen from the various calendars in use, case-law is tending towards a more liberal approach in order to take account of changes in social mores, local customs and family traditions, it is necessary to prevent parents from choosing forenames which are excessively whimsical and so eccentric that the child is likely to be the first victim. This is the case with the forename 'Fleur de Marie', notwithstanding that it was the name of the heroine of a famous literary work. On the other hand, there is no reason not to allow the claim made in the alternative that the forename should consist of the two forenames 'Fleur' and 'Marie' juxtaposed.
(...)"
11. Relying in particular on Articles 8, 9 and 14 of the Convention (art. 8, art. 9, art. 14), the applicants appealed on points of law to the Court of Cassation (First Civil Division), which dismissed their appeal on 1 October 1986 on the following grounds:
"(...)
the provisions of section 1 of the Law of 11 Germinal Year XI are not contrary to ... Articles [8, 9 and 14] (art. 8, art. 9, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which merely establish general principles relating to respect for private and family life, freedom of conscience and the prohibition of discrimination between individuals; ... ... the Court of Appeal, which was not obliged to go into the finer detail of the parties' reasoning, held, in the exercise of its unfettered discretion, that the chosen forename, because it was eccentric and excessively whimsical, and notwithstanding that it was the name of the heroine of a famous literary work, was likely to harm the interests of the child; in so doing, the Court of Appeal justified its decision in law
(...)"
12. Article 57 of the Civil Code provided:
"The birth certificate shall state the date, time and place of birth, the sex of the child and the forenames to be given it, the forenames, surnames, ages, occupations and addresses of the father and mother and, if applicable, those of the person registering the birth ... The forenames which appear on a child's birth certificate may, where there is a good and lawful reason, be amended by an order of the tribunal de grande instance made on an application by the child or, during the child's minority, by the child's legal representative. The order shall be made and published in accordance with the conditions set out in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered."
2. The Law of 11 Germinal Year XI and its application
13. Section 1 of the Law of 11 Germinal Year XI provided:
"(...)
only names in use in the various calendars, and those of known figures of ancient history may be entered as forenames in birth registers; registrars shall not enter any other names in their registers."
The ministerial circular of 12 April 1966 amending the general circular on civil status (Official Gazette of 3 May 1966) laid down in particular:
"(...)
CHOICE OF FORENAMES
(...)
General principles
(...)
Practical application
(a) It should, however, be observed that the impact of custom in this field has considerably reduced the restrictions which were initially placed on the acceptance of forenames by the provisions of the Law of 11 Germinal Year XI taken literally. It is true that these provisions are of practical value in that they provide registrars of births, deaths and marriages with a bulwark against innovations which appear to them to be such as might later harm children's interests and which would therefore be unacceptable. In practice, registrars of births, deaths and marriages, who have to take the immediate decision whether a forename is acceptable, can hardly be expected to compile a list of the exact resources of the calendars and of ancient history in order to determine whether a given forename is included in this heritage or not. In practice they are required to use common sense when exercising their discretion, so as to ensure that the law is applied with a measure of realism and liberality, in other words in such a way that the changes in social mores which have hallowed certain usages are not ignored and that surviving local characteristics and even family traditions which can be shown to exist are respected. Registrars must not lose sight of the fact that it is for parents to choose forenames and that, to the fullest extent possible, any wishes they may have expressed should be taken into account. ...
(b) In addition to the forenames normally allowed within the strict limits of the Law of Germinal, the following may therefore possibly be accepted, having regard to the foregoing considerations and, where applicable, subject to appropriate evidence being produced:
1. certain forenames of mythological origin (such as Achille, Diane, Hercule, etc.);
2. certain forenames peculiar to local languages of the national territory (Basque, Breton, Provençal, etc.);
3. certain foreign forenames (such as Ivan, Nadine, Manfred, James, etc.);
4. certain forenames which correspond to words that have a specific meaning (such as Olive, Violette, etc.) or even old surnames (such as Gonzague, Régis, Xavier, Chantal, etc.);
5. compound forenames, provided that they do not include more than two simple names (such as Jean-Pierre or Marie-France but not, for example, Jean-Paul-Yves, which would be a combination of three forenames).
(c) Exceptionally, registrars of births, deaths and marriages may also accept, but with some caution:
1. certain diminutives (such as 'Ginette' for Geneviève, 'Annie' for Anne, or even 'Line', which is derived from feminine forenames containing that ending);
2. certain shortened forms of double names (such as 'Marianne' for Marie-Anne, 'Marlène' or 'Milène' for Marie-Hélène, 'Maïté' for Marie-Thérèse, 'Sylvianne' for Sylvie-Anne, etc.);
3. certain variations in spelling (for example Michèle or Michelle, Henri or Henry, Ghislaine or Guislaine, Madeleine or Magdeleine, etc.).
(d) Ultimately, it would appear that registrars of births, deaths and marriages should only refuse to enter names chosen by parents which have not been demonstrably established as forenames in France by sufficiently widespread use. Thus, in particular, registrars should systematically refuse to enter forenames which are purely whimsical or names which, by reason of their nature, meaning or form cannot normally constitute forenames (surnames, names of objects, animals or qualities, words used as stage names or forenames or as pseudonyms, names that are onomatopoeic or recall political events).
(...)"
In a judgment of 10 June 1981 the Court of Cassation stated that "parents can in particular choose as forenames, subject to the general reservation that, in the child's interest, they are not found to be ridiculous, names in use in the various calendars; and while no official list of permitted forenames exists, there is no ground for requiring that the calendar relied on emanate from an official authority" (First Civil Division, 10 June 1981, Recueil Dalloz Sirey 1982, p. 160).
14. The Law of 6 Fructidor Year II provided - and still provides:
"No citizen may bear a surname or forename other than those stated on his birth certificate; those who have abandoned their original names shall resume them."
"Neither may any nickname be added to the original name, unless it has hitherto been used to distinguish members of the same family and does not evoke feudal or nobiliary attributes."
"All public servants are expressly prohibited from referring to citizens in documents otherwise than by their surnames, the forenames shown on the birth certificate or the nicknames permissible under section 2 and from recording any other names in the certified copies or short-form certificates which they issue subsequently."
15. Law no. 93-22 of 8 January 1993 on civil status, the family and children's rights, which created the office of family-affairs judge, repealed the Law of 11 Germinal Year XI and replaced the last two paragraphs of Article 57 of the Civil Code by the following provisions:
"A child's forenames shall be chosen by its father and mother
(...)
The registrar of births, deaths and marriages shall immediately enter the chosen forenames on the birth certificate. Any forename recorded on the birth certificate may be chosen as the usual forename. Where the said forenames or any one of them, either taken alone or linked to the other forenames or to the surname, appear to the registrar to be contrary to the child's interests or to the right of third parties to protect their surname, the registrar of births, deaths and marriages shall immediately so inform State Counsel, who may then refer the matter to the family-affairs judge. If the judge considers that the forename is contrary to the child's interests or infringes the right of third parties to protect their surnames, he shall order the name to be deleted from the registers of births, deaths and marriages. If the parents fail to choose an alternative name compatible with the aforementioned interests, he shall give the child another forename of his own choosing. The decision shall be noted in the margin of all documents relating to the child's civil status."
On the other hand, the Law of 8 January 1993 did not repeal the Law of 6 Fructidor Year
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-105936
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KRACZKIEWICZ AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicants, Ms Danuta Kraczkiewicz and eighteen others listed in the annex (application no. 15120/10), Ms Teresa Wojciechowska and Ms Janina Mazur (application no. 17883/10) and Mr Darek Konrad Dawda and Mr Jacek Dawda (application no. 13626/11), are Polish nationals who live in Poland, Belgium and Canada. They are represented before the Court by Mr I. Kamiński, Mr R. Nowosielski and Mr B. Sochański, Polish lawyers practising respectively in Cracow, Gdańsk and Szczecin.
All the applicants are relatives of servicemen in the Polish Army who were taken prisoner by the Soviet Red Army in late 1939 following the occupation of the eastern part of Poland by the USSR. On 5 March 1940 Mr Beria, head of the USSR’s NKVD, wrote to Joseph Stalin, Secretary General of the USSR Communist Party, proposing to approve the shooting of Polish prisoners of war on the grounds that they were all “enemies of the Soviet authorities and full of hatred towards the Soviet system”. On the same day the Politburo of the Central Committee of the USSR Communist Party took the decision to consider, “using a special procedure” and employing “capital punishment – shooting” in the case of Polish officers held in the prisoner-of-war camps. Examination of the cases was delegated to a three-person panel (“troika”) composed of NKVD officials, which operated on the basis of lists of detainees compiled by the regional branches of the NKVD. The executions took place in April and May 1940.
After the burial pits were discovered, the Soviet authorities responded by putting the blame on the Germans who – according to Moscow – had in the summer of 1941 allegedly taken control of the Polish prisoners and had therefore murdered them. On 3 March 1959 Mr Shepelin, Chairman of the State Security Committee (KGB), prepared a note recommending “the destruction of all the [21,857] records on the persons shot in 1940 in the ... operation...” The remaining documents were put in a special file, known as “package no. 1”, and sealed. In Soviet times, only the Secretary General of the USSR Communist Party had the right of access to the file. On 28 April 2010 its contents were officially made public on the website of the Russian State Archives Service.
On 13 April 1990 the official news agency of the USSR acknowledged the responsibility of NKVD officials for “the crime committed in Katyń Forest”. In the same year, prosecutors in Kharkov and Kalinin (Tver) instituted criminal investigations in connection with the discovery of mass burials. The investigations were later joined and taken over by the Russian Chief Military Prosecutor’s Office (“case no. 159”).
On 21 September 2004 the Chief Military Prosecutor’s Office decided to discontinue criminal case no. 159 on the ground that the persons allegedly responsible for the crime had already died. In the meantime, on 22 December 2004, the Interagency Commission for the Protection of State Secrets classified thirty-six volumes of the case file – out of a total of 183 volumes – as “top secret” and a further eight volumes as “for internal use only”. The decision to discontinue the investigation was given top-secret classification and its existence was only revealed on 11 March 2005 at a press conference given by the Chief Military Prosecutor.
On 13 March 2008 the Chief Military Prosecutor’s Office rejected a request for rehabilitation submitted by counsel on behalf of Ms WołkJezierska and other applicants in case no. 29520/09 (“the WołkJezierska group”). The prosecutor’s office stated that it was not able to determine the legal basis for the repression against Polish citizens in 1940. Following a judicial appeal against the prosecutor’s refusal, on 25 November 2008 the Moscow City Court upheld it at final instance as lawful and justified.
On 14 October 2008 the Military Court of the Moscow Command rejected a further complaint against the prosecutor’s decision on the discontinuation of case no. 159. It found that the complainants’ relatives had not been among those identified and that “the ‘Katyń’ investigation ... [had] not establish[ed] the fate of the said individuals.” On 29 January 2009 the Military Panel of the Supreme Court of the Russian Federation upheld the judgment of 14 October 2008, repeating verbatim extensive passages of the findings of the Moscow Military Court. It added that the decision of 21 September 2004 could not be quashed because the prescription period had expired.
The applicants in the instant case awaited the outcome of the legal proceedings instituted by the Wołk-Jezierska group.
On various dates in late 2009 the applicants submitted requests to the Chief Military Prosecutor’s Office concerning the rehabilitation of their relatives and the discontinuation of case no. 159.
The Chief Military Prosecutor’s Office rejected their requests and justified its decisions in a manner identical to that of the decisions concerning the Wołk-Jezierska group. All the decisions were sent to the applicants via the Consular Division of the Polish Embassy in Moscow and reached them on various dates in October and November 2009 (applications nos. 15120/10 and 17883/10) or December 2010 (application no. 13626/11).