ITEMID: 001-118248
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF EBERHARD AND M. v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 4. The first applicant, Mr Eberhard, was born in 1968 and lives in Ponikva. The second applicant, M., is his daughter.
5. On 8 April 2001 the first applicant’s wife, M.E., together with the second applicant, then aged four, moved out of the flat in which they had been living with the first applicant. M.E. subsequently filed a petition for divorce.
6. On 4 May 2001 the first applicant and his wife, with whom the second applicant was living, signed an agreement on access arrangements.
7. On 12 June 2001 the first applicant filed a request with the Šentjur Social Welfare Centre (“the Šentjur Centre”) seeking formal determination of the access arrangements, claiming that since 12 May 2001 M.E. had denied him access to the second applicant.
8. During the following month M.E. gave a number of statements at the Šentjur Centre, opposing contact between the applicants, stating that the first applicant represented a danger to her and the second applicant. She also lodged a criminal complaint against the first applicant for endangering their safety.
9. On 11 July 2001 the expert committee of the Šentjur Centre submitted an opinion in the case.
10. On 31 July 2001 a hearing was held at the Šentjur Centre. While the first applicant attended the hearing, M.E. refused to attend, claiming that she did not feel safe in the presence of the first applicant.
11. On 1 August 2001 the Šentjur Centre issued an order granting the first applicant four hours a week with the second applicant, taking into account the expert committee’s opinion and the fact that, at the supervised meeting between the applicants, the second applicant had not appeared to be afraid of the first applicant but, on the contrary, pleased to see him. The Šentjur Centre did not follow the first applicant’s proposal that he should be allowed to pick the second applicant up at her nursery; instead it ordered M.E. to bring the second applicant to a meeting point at a local train station.
12. On 3 October 2002, further to an appeal by M.E., the Ministry of Labour, Family and Social Affairs (“the Ministry”) modified the order in part. However, in essence, the access arrangements remained unaffected. The access order therefore became final and enforceable on 16 October 2002.
13. M.E. failed to comply with the order. She did not bring the second applicant to the meeting-point specified therein.
14. On 22 November 2002 the first applicant requested enforcement of the order. After hearing evidence from both parties, on 31 January 2003 the Šentjur Administrative Unit (“the Unit”) allowed the enforcement and ordered M.E. to hand the second applicant over to the first applicant at the next meeting. In addition, the Unit decided that if M.E. failed to do so she would be ordered to pay a fine of 5,000 Slovenian tolars (SIT) (approximately 25 euros (EUR)). It also noted that the fine could be increased in the event of further failure to comply.
15. M.E. continued to refuse the first applicant all access to the second applicant.
16. Further to the first applicant’s thirteen notices of non-compliance by M.E., on 3, 18, 23 and 30 April, 13 May and 9 June 2003 the Unit issued orders imposing fines which increased from SIT 5,000 to SIT 35,000 (approximately EUR 145). The orders were forwarded to the tax authorities for execution.
17. M.E. appealed against the orders.
18. According to letters addressed to the court by the Šentjur Centre on 8 September 2003 and 3 May 2004, in the context of proceedings no. P 667/2003, the Šentjur Centre and the Unit attempted to organise supervised meetings between the applicants, but M.E. refused to cooperate.
19. On 15 June 2004 the Ministry quashed the impugned enforcement orders, finding that M.E. had not been informed of the first applicant’s notices concerning non-compliance and had had no opportunity of participating in the proceedings and presenting arguments in her favour. The Ministry also found that the Unit had not examined the situation by verifying whether the meetings had actually failed to take place, and, if so, whether there had been justifiable reasons for such failure. The Ministry, however, noted that the order determining access arrangements remained enforceable and could not be challenged in those proceedings. The Unit was ordered to reexamine the notices. Neither of the parties challenged the decision before the Administrative Court and it therefore became final on 29 June 2004.
20. Further to changes in legislation which stipulated that the first-instance authority should be in charge of enforcement, the Unit transferred the file to the Šentjur Centre on 7 April 2005. There are no indications in the case file that any steps were subsequently taken by the Šentjur Centre in the context of these proceedings.
21. On 14 June 2001, further to the divorce petition filed by M.E., the Celje District Court issued an interim decision granting M.E. provisional custody (varstvo in vzgoja) of the second applicant pending the outcome of the proceedings. This decision was upheld by the Celje Higher Court on 15 November 2001.
22. On 11 February 2002 the Celje District Court issued a judgment granting the first applicant and M.E. a divorce, granting M.E. custody of the second applicant and fixing the amount the first applicant had to pay in child support.
23. On 4 December 2002 the Celje Higher Court upheld M.E.’s appeal in part and increased the child support. This was a final decision in these proceedings.
24. On 6 June 2003 the first applicant lodged an application for custody of the second applicant, relying on the fact that M.E. was denying them contact. He also requested an interim order under which the second applicant would be placed in his custody pending the outcome of the proceedings, and the appointment of a curator ad litem to represent the second applicant’s interests in the proceedings. He further requested that the case be granted priority. On 7 July 2003 the applicant submitted documents in support of his request for exemption from obligation to pay the court fees.
25. The hearing scheduled for 30 September 2003 was cancelled at the first applicant’s request.
26. At a hearing held on 20 November 2003 the first applicant requested to have the case dealt with through mediation. The request was allowed by the court. However, it would appear that M.E. showed no interest in resolving the issues in that manner.
27. On 3 March 2004 the first applicant requested the President of the court to establish why no hearing had been scheduled. The next day a hearing was scheduled for 1 April 2004. That hearing was then adjourned as M.E. did not attend. The Šentjur Centre was requested to conduct an interview with M.E. and to inform the court about the implementation of contact between the applicants.
28. At the hearing of 13 May 2004, the first applicant requested that the proceedings be stayed, after having had an opportunity to see the second applicant at the school’s parent-teacher meetings.
29. However, as M.E. continued to refuse any contact between the applicants, on 16 August 2004 the first applicant requested that the proceedings be resumed and a hearing was scheduled for 7 October 2004. It was adjourned as the court decided, further to the first applicant’s request, to appoint an expert psychologist. On 19 October 2004 the court appointed expert D.T. to produce an opinion in the case.
30. On 24 May 2005 the first applicant lodged written submissions and requested the court to urge the expert to prepare the opinion. In addition, he made an alternative request seeking, inter alia, a change in the access arrangements and to have proceedings Pn 22/2005 (see paragraphs 52-62 below) joined to the current set of proceedings. In these and subsequent submissions the second applicant was also mentioned as a plaintiff.
31. On 16 June 2005 and 7 December 2005 the first applicant lodged further written submissions. In the first set, he submitted that he had had no access to the second applicant. He also asked the court to appoint another expert, as D.T. had failed to produce an opinion. In the second set of submissions the first applicant urged the court to issue the interim custody order (see paragraph 24 above) and added an alternative request for an interim access order. In the latter, he emphasised the need to organise the visits in a manner that would prevent M.E. from obstructing them. Accordingly, he proposed to pick the second applicant up from school, after her lessons. The first applicant also informed the court that, to his knowledge, M.E. was refusing to be examined by D.T., and complained about the passivity of the court. In addition, the first applicant alerted the court to the fact that he had had no access to the second applicant in the past four and a half years, except on one occasion at her school.
32. In the meantime, the appointed expert informed the court on 22 September 2005 that he was unable to prepare the opinion as M.E. had refused to cooperate. On 8 December 2005, the court informed the first applicant that it would decide on the interim orders only when the expert opinion was available.
33. On 22 February 2006 the first applicant lodged supervisory appeals with the President of the court and the Ministry of Justice complaining about the passivity of the judge.
34. On 23 February 2006 the first applicant again urged the court to decide on the case, stressing that M.E. was deliberately avoiding examination by the expert.
35. On 27 February 2006 the judge prepared a report in reply to supervisory appeal. The next day the President of the court replied to the first applicant. He noted that no interference with the judge’s decision concerning the appointment of the expert was permitted and that there were no reasons for any measures to be taken in response to the first applicant’s supervisory appeal. He also informed him that the main reason for the delay in the proceedings was M.E.’s failure to cooperate and reassured him that if the expert could still not examine M.E. the court would decide on the interim access order in the absence of an expert opinion.
36. On 14 March 2006 the first applicant requested the expert, the judge and the President of the court to step down from the case, arguing that they were inactive. His requests were dismissed on the ground that the statutory conditions for withdrawal were not fulfilled.
37. On 20 March 2006 M.E. was examined by the expert.
38. On 19 May 2006 the court held a hearing concerning the interim orders. Beforehand, it acquired information concerning the first applicant’s criminal record and relevant information from the Šentjur Centre and M.E.’s bank. All parties were present at the hearing. Subsequently, on 26 May 2006, the court issued a decision rejecting the first applicant’s application for provisional custody and upholding his alternative request for an interim access order. It noted that “during the court proceedings the applicants had contact once in 2004 at the school in Celje and, subsequently, twice at the school in Ljubljana”. The applicants were granted the right to spend, inter alia, one afternoon a week together, whereby the first applicant would pick the second applicant up after school and return her to M.E. at 5 p.m., plus every second weekend and part of the holidays. These arrangements were to be implemented after three weekly preparatory meetings. The court also decided that M.E. could be subjected to a fine of SIT 500,000 (approximately EUR 2,080) if she was found to be preventing or obstructing contact between the applicants. The second applicant was by then nine years old.
39. As M.E. and the second applicant moved to Ljubljana, the Ljubljana Vič-Rudnik Social Welfare Centre (“the Ljubljana Centre”) obtained jurisdiction in the case. On 13, 20 and 27 June 2006 the applicants had contact in the context of the preparatory meetings held at the Ljubljana Centre. The Centre assessed the visits very positively. In answer to the court’s request, the Ljubljana Centre informed it that subsequent contact between the applicants did not appear to have been hindered.
40. On 21 August 2006 the first applicant lodged written submissions complaining that on certain occasions he had been denied access to the second applicant. He also requested that M.E. be penalised as stipulated in the decision of 26 May 2006.
41. On 24 October 2006 the expert D.T. issued a report which assessed the relationship between the applicants in positive terms, finding that the second applicant showed affection for the first applicant and that there were no reasons to doubt the latter’s capacity to be a parent. D.T. further found that M.E. had in the past year changed her attitude regarding the relationship between the applicants and gained some trust in the first applicant. D.T. also noted that the second applicant was growing up with her mother and had expressed a wish to continue living with her.
42. On 2 November 2006 the court ordered the first applicant to pay the expert’s fees. The first applicant appealed on 10 November 2006. On 29 March 2007 the Celje Higher Court upheld the order of the first-instance court, finding that the first applicant had undertaken to pay the fees for the expert whose appointment he had proposed.
43. In the meantime, on 24 January 2007, the first applicant received the expert opinion.
44. On 27 February 2007 the court scheduled a hearing for 5 March 2007, which was adjourned sine die at M.E.’s request. M.E. stated that she would not be available during that period as she had given birth in December 2006 and was breastfeeding.
45. On 2 March 2007 the first applicant lodged a supervisory appeal, relying on section 6 of the Act on Protection of the Right to a Hearing without Undue Delay (“the 2006 Act”).
46. On 23 March 2007 the President of the court, relying on section 6, paragraph 4 of the 2006 Act, replied to the supervisory appeal stating that the hearing had been held on 5 March 2007, that is, within four months of receipt of the supervisory appeal.
47. On 7 September 2007 the court held a hearing. It joined proceedings Pn 22/2005 to the existing proceedings. Since the first applicant insisted that the second applicant act as a second plaintiff and be represented in the proceedings by a curator ad litem (see paragraph 24 above), the court adjourned the hearing and appointed a lawyer to represent the second applicant.
48. On the same day the first applicant lodged preliminary written submissions in which he expressed his dissatisfaction with certain parts of the expert opinion and requested that a new expert be appointed.
49. On 3 October 2007 the first applicant lodged a motion for a deadline, relying on section 8 of the 2006 Act. On 15 October 2007 the President of the Celje Higher Court rejected (zavreči) the motion. He found that the first applicant had not sufficiently explained his allegations of undue delay and therefore failed to satisfy the requirements of section 5, paragraph 2, point 5 of the 2006 Act.
50. A hearing was scheduled for 9 November 2007 but was cancelled at the request of the second applicant’s representative.
51. The next hearing was held on 10 January 2008. At the hearing the parties agreed on new access arrangements. Under the terms of that agreement, the first applicant also withdrew his application for custody rights. In addition, the parties withdrew two other claims – one criminal complaint for defamation lodged by M.E. against the first applicant and a civil complaint pursued by the first applicant against M.E. On that day the proceedings were “finally resolved” (see paragraph 79 below).
52. On 24 May 2004 the first applicant lodged a request for access arrangements in separate proceedings. In his request the first applicant noted that the access order issued in administrative proceedings had been ineffective and requested that the court grant an interim access order which would ensure contact between the applicants. In this connection, he requested to be granted the right to pick up the second applicant at her school, which would prevent M.E. from hindering the access. In July and September 2004 the court tried to serve the request on M.E., but to no avail. The court then ordered that the request be served through M.E.’s employer.
53. In his written submissions of 25 October 2004 the first applicant included the second applicant as a claimant.
54. On 26 October 2004 the Šentjur pri Celju Local Court held a hearing. It found that it lacked jurisdiction to decide in the case and referred it to the Celje District Court.
55. On 23 December 2004 the applicants requested the Šentjur pri Celju Local Court to transfer the case file to the Celje District Court.
56. On 29 December 2004 the Šentjur pri Celju Local Court informed the first applicant that the case could not be transferred as the decision concerning the court’s lack of jurisdiction had not yet become final owing to the lack of success in serving it on M.E.
57. On 14 January 2005 the case was transferred to the Celje District Court and was registered under number Pn 22/2005.
58. On 11 February 2005 the first applicant requested priority.
59. The court held a hearing on 24 March 2005 in the absence of M.E. The first applicant testified that he had had access to the second applicant only on three occasions, namely on 12 May 2001, on 5 May 2004 and on 23 December 2004. The judge informed the first applicant that an interim access order could not be issued as the final access order issued in administrative proceedings was still in force.
60. On 24 and 25 March 2005 the first applicant filed written submissions.
61. On 4 April 2005 the Celje District Court asked the first applicant to enclose a confirmation from the social welfare centre that an attempt had been made to reach an agreement concerning access rights as stipulated in the Marriage and Family Relations Act. It also noted that the advance for the payment of expert fees had not been paid. It appears from this decision that the second applicant, represented by her father, was also considered a claimant in the proceedings.
62. On 17 May 2005 the court dismissed the request for new access arrangements as the first applicant had failed to submit the required documents. It seems, however, that this decision did not become final as on 25 May 2005 the first applicant successfully requested that the proceedings be joined to proceedings P 667/2003 (see paragraph 30 above).
63. Until 1 May 2004 the Social Welfare Centres were in principle responsible for taking decisions concerning access arrangements. The enforcement of such decisions could then be requested only in administrative proceedings. As regards the sanctions, the Administrative Procedure Act (Zakon o splošnem upravnem postopku, Official Gazette no. 80/1999) provided in its section 299:
“If the enforcement of a non-pecuniary obligation cannot be achieved or achieved in time by the means specified in sections 297 and 298 of this law [such as the imposition of administrative fines], it may, depending on the nature of the obligation concerned, be secured by direct coercion unless otherwise stipulated in the applicable legislation.”
64. The Marriage and Family Relations Act (“the MFR Act”, Zakon o zakonski zvezi in družinskih razmerjih, (old) Official Gazette of the Socialist Republic of Slovenia no. 15/1976) stated in its section 114 that:
“... In the event of a divorce or annulment of marriage, parental rights (roditeljska pravica) shall be exercised by the parent who has custody of the child.
Decisions that are decisive for the development of a child, shall be taken by both parents together ....
If the parents cannot reach an agreement, the Social Welfare Centre shall decide.”
65. On 23 April 2003 the Constitutional Court delivered an important decision in which it found several provisions of the MFR Act concerning custody and access arrangements to be unconstitutional. Subsequently, an amendment was enacted by the Parliament (Official Gazette no. 16/2004). It entered into force on 1 May 2004.
66. Further to the above-mentioned legislative changes, the courts acquired jurisdiction to adjudicate custody and access arrangements. Since then, parents have been able to reach an agreement (outside divorce proceedings) in non-contentious civil proceedings. If no agreement can be reached with the assistance of the Social Welfare Centre, the issue of custody is decided in contentious civil proceedings. The issue of access arrangements can be decided in non-contentious civil proceedings if it is not raised together with the issue of custody (sections 78, 105 and 106 as amended in 2004). In particular, sections 105 and 106 provide, as far as relevant:
“...
If the parents, with the assistance of the Social Welfare Centre, cannot reach an agreement on the custody of children (varstvo in vzgoja otrok), the court shall decide at the request of one or both parents that all the children are in the custody of one of them or that some children are in the custody of one and the others in the custody of the other parent. The court may, of its own motion, decide to place all or some of the children in the custody of a third person. Before the decision is taken by the court, the opinion of the Social Welfare Centre shall be obtained. The court shall take the child’s view into account if the child expresses his or her view ...
“A child has the right to have contact with both parents. Both parents have the right to have contact with their children. Contacts should be in the child’s interest first and foremost.
The parent with whom the child lives ... shall avoid anything that hinders or prevents such contact. He or she must strive to maintain an appropriate attitude in the child in respect of contacts with the other parent ...
...
The court can withdraw or limit the right to contacts only if this is necessary for the protection of the child’s interests ...”
67. Section 106 of the amended MFR Act states also that, if the custodial parent denies the non-custodial parent access to the child and contact cannot be secured with the assistance of the Social Welfare Centre, the court shall, at the request of the non-custodial parent, transfer custody to him or her if this is in the interest of the child.
68. In addition, the amended MFR Act annulled the previous section 114 (see paragraph 64 above), providing instead, in sections 107 and 113:
“Minors shall be represented by their parents.
Letters or information to be served on the minor may be served effectively on any of the parents; if the parents do not live together, they shall be served on the one with whom the child lives ...”
“Parental rights shall be exercised mutually by both parents in accordance with the child’s best interests. If they cannot reach an agreement, the Social Welfare Centre shall assist.
When the parents do not live together and do not have joint custody, they shall decide mutually on all issues decisive for the child’s development in accordance with the child’s best interest. If they cannot reach an agreement, the Social Welfare Centre shall assist. Questions concerning the child’s everyday life shall be decided by the custodial parent.
If the parents, even with the assistance of the social welfare centre, do not reach an agreement ...., the court decides on these issues.
...”
69. Section 116 states the circumstances in which parental rights can be withdrawn:
“The parent who abuses his or her parental rights or abandons a child or demonstrates unwillingness to take care of the child or in any other way neglects his or her responsibilities shall be deprived of his or her parental rights by a court judgment.”
70. Section 10a of the amended MFR Act provides that cases covered by the Act should be processed with priority.
71. Lastly, pursuant to the transitional provisions of the amended MFR Act, proceedings instituted before the entry into force of the amendments (that is, before 1 May 2004) were to be continued and completed before the Social Welfare Centre. In such cases any appeal against the first-instance decision was still to be examined by the Ministry. However, where the first-instance decision was quashed by the Ministry, the proceedings were to be continued before the district court with territorial jurisdiction in accordance with the amended MFR Act.
72. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999), read as follows:
“In marital disputes and disputes concerning relations between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children ...
In disputes concerning the custody and maintenance of children [and in disputes concerning contacts between children and parents or other persons – added with the amendment of 5 January 2004, in force since 1 May 2004], the panel is not bound by the parties’ requests. Where so provided by the law, the panel may take decisions even without any request being made.
For the protection of the interests of the persons mentioned in the first paragraph, the panel may investigate facts which were not provided by the parties, and collect the information necessary for its decision ...”
“...
If there is a conflict of interests between the child and his or her statutory representative (zakoniti zastopnik’s interests.”
“During proceedings concerning marital disputes and disputes relating to relationships between parents and children, the court may, at the request of one of the parties or of its own motion, issue interim orders (začasne odredbe) concerning child custody and maintenance as well as interim orders withdrawing or restricting access arrangements.
...”
73. As regards the stay of proceedings, section 210 of the Civil Procedure Act provides:
“... the proceedings are stayed (mirovanje postopka) until a party proposes that they be continued. The proceedings may not be resumed until three months after they were stayed.”
75. The Act on the Protection of the Right to a Hearing without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006 – “the 2006 Act”) was passed by the Parliament on 26 April 2006 and entered into force on 1 January 2007.
76. The 2006 Act provides for remedies to expedite pending proceedings (a supervisory appeal and a motion for a deadline). In addition to these acceleratory remedies, the 2006 Act also provides for the possibility of obtaining redress through a compensatory remedy, by instituting proceedings for just satisfaction within nine months of the “final resolution” of the case (see paragraph 79 below).
77. As regards the acceleratory remedies, a claimant may, during the first- and second-instance proceedings, that is the proceedings before the regular courts, use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia, fails to respond to the claimant within two months, the claimant can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is dealt with by the president of the higher court. He or she shall decide on the motion for a deadline within fifteen days of receiving it.
78. As regards the obligatory elements which must be included in a supervisory appeal and a motion for a deadline, section 5 provides in the relevant part:
“(2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal [the same applies to a motion for a deadline] shall contain the following elements:
– personal or corporate name or any other name of the party, with address of permanent or temporary residence or registered office;
– personal or corporate name or any other name of the representative or lawyer, with address of permanent or temporary residence or registered office;
– indication of the court hearing the case;
– reference number of the case or date on which the case was filed in the court;
– indication of circumstances or other particulars concerning the case which demonstrate that the court is unduly protracting the decision-making;
– handwritten signature of the party, representative or lawyer.”
79. As to the claim for just satisfaction, sections 15, 19 and 20 of the 2006 Act provide that for the claimant to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first- and/or second-instance proceedings the claimant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. Secondly, the proceedings must have been “finally resolved” (pravnomočno končan postopek). The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies. This would normally be the first-, or if an appeal has been lodged, the second-instance court’s decision. The maximum amount of just satisfaction for non-pecuniary damage fixed by the 2006 Act is EUR 5,000.
80. As regards proceedings terminated before 1 January 2007, section 25 lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party has made a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party made its proposal, the party may lodge a claim [for just satisfaction] with the competent court under this Act ...”
81. For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-110382
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PASCAL v. ROMANIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi
TEXT: 7. The applicant was born in 1976 and lives in ClujNapoca, Romania.
8. The applicant was married to O.M.M. and the couple had one daughter, N.M.E.P., who was born on 8 June 2004.
9. On 1 August 2006, following the applicant’s and O.M.M.’s separation, he brought proceedings against O.M.M., seeking an injunction for interim contact rights with his daughter.
10. By a judgment of 3 August 2006 the ClujNapoca District Court allowed the applicant’s action of 1 August 2006. It held that the applicant could see his daughter every Sunday between 10 a.m. and 1 p.m. at her mother’s house or elsewhere. O.M.M. appealed against the judgment.
11. By a final judgment of 19 October 2006 the Cluj County Court allowed an appeal by O.M.M. against the judgment of 3 August 2006 and ordered a retrial.
12. By a final judgment of 29 November 2006 the ClujNapoca District Court, in a second set of proceedings, allowed the applicant’s action of 1 August 2006. It held that the applicant could see his daughter every Sunday between 10 a.m. and 1 p.m., at her mother’s house or elsewhere.
13. On 7 March 2007 the applicant brought proceedings against O.M.M., seeking an injunction for exceptional contact rights on 28, 29 and 30 March 2007 between 10 a.m. and 1 p.m.
14. By a final judgment of 8 March 2007 the ClujNapoca District Court allowed the applicant’s action in part and acknowledged his right to visit his daughter exceptionally on 29 March 2007 between 10 a.m. and 1 p.m. at O.M.M.’s home or elsewhere, on the ground that it was in the best interest of the child to preserve family ties with her father and her relatives.
15. On an unspecified date in 2007 the applicant brought proceedings against O.M.M., seeking an injunction for exceptional contact rights on 29, 30 and 31 May and 1 June 2007 between 10 a.m. and 1 p.m.
16. By a final judgment of 24 May 2007 the ClujNapoca District Court allowed the applicant’s action in part and acknowledged his right to visit his daughter exceptionally on 30 May and 1 June 2007 between 10 a.m. and 1 p.m., at O.M.M.’s home or elsewhere, on the ground that it was in the best interest of the child to preserve family ties with her father and her relatives.
17. On an unspecified date in 2007 the applicant brought proceedings against O.M.M., seeking an injunction for exceptional contact rights for the 2007 Christmas holiday.
18. By a judgment of 20 December 2007 the ClujNapoca District Court allowed the applicant’s action for exceptional contact rights for the 2007 Christmas Holiday. It held that given the tense relationship between the parents it would be in the best interest of the child and less stressful for her if she could meet her father away from her mother’s home. Consequently, it allowed the applicant to take the child away from her mother’s home for seven days, starting on 22 December 2007. O.M.M. appealed against the judgment.
19. By a final judgment of 1 February 2008 the Cluj County Court dismissed O.M.M.’s appeal against the judgment of 20 December 2007. It held that the appeal was moot, as the injunction of 20 December 2007 was enforced and her daughter was returned to her after seven days.
20. On 23 August 2006 the applicant brought divorce and child custody proceedings against O.M.M.
21. By a judgment of 15 February 2007 the ClujNapoca District Court allowed the applicant’s action for divorce, awarded sole custody of the child to O.M.M., and ordered the applicant to pay monthly child support. By relying on witness statements and on the Cluj Guardianship Authority’s (Autoritatea Tutelară Cluj) social investigation and recommendation the court held that the mother was the child’s main caregiver. Consequently, it considered that the mother was able to ensure N.M.E.P.’s emotional and physical development, and that her presence was still essential, given the young age of the child. The judgment was final, as neither the applicant nor O.M.M. appealed against it.
22. On 25 September 2006 the County Centre for Abused Children attached to the Child Social and Protection Services (Direcţia Generală de Asistenţă Sociala şi Protecţia Copilului – Centrul Judeţean de Intervenţie pentru Copilul Abuzat) produced a psychosocial report in respect of N.M.E.P. According to the report the Centre for Abused Children carried out an investigation into the case after they were informed by O.M.M. that the child’s father had behaved inappropriately towards his daughter by bathing with her without wearing underwear, and had neglected the child when she was left alone with him. The report also stated that following a discussion with both parents they accused one another of inappropriate behaviour towards the child which negatively influenced the minor’s behaviour. In addition O.M.M. also accused the applicant of being physically aggressive towards her in January 2006. Consequently, both parents were invited, and agreed, to attend psychological counselling sessions at the County Centre for Abused Children. The child’s father was informed on several occasions that his behaviour in bathing naked with his daughter could influence his relationship with her and could have unforeseen negative consequences. The report concluded that the child’s situation needed to be monitored and that the parents needed to continue the psychological counselling sessions within the centre.
23. On 5 December 2007 the Centre for Abused Children attached to the Child Social and Protection Services produced a psychological evaluation report in respect of N.M.E.P. The report stated, inter alia, that the child was developing normally for her age. She felt closer to her mother and evaluated her in positive terms. She started being upset when she was asked about her father. The father was represented in a negative way because of the tense situation between the parents. None of the father’s actions were received positively, and she did not wish her father to visit, because of the tense situation with her mother. She considered her father’s visits to be a negative process. Her father was excluded from the description of her family, which in her opinion consisted of her mother and her maternal grandparents. She refused to discuss any potential sexual abuse by her father. The report concluded that the child was scarred by the tense situation between her parents, and that consequently she did not wish to receive visits from her father. Moreover, there was no clear evidence that she had been sexually abused by either of her parents.
24. On 6 December 2010 the Centre for Abused Children attached to the Child Social and Protection Services informed the Government, inter alia, that attempts were being made to mediate the relationship between the applicant and his former wife to help them protect the best interest of their child. In 2006 the parents were asked to attend psychological counselling sessions. After four meetings the applicant decided that the sessions were useless and discontinued attending them.
25. On an unspecified date in 2007 the applicant brought injunction proceedings against O.M.M., seeking to establish a schedule for visiting rights. He requested the court to order O.M.M. to allow him to see his daughter on Sundays, on 8 May, 8 June, 14 July, 11 and 24 November; one week for Orthodox Easter and one for Christmas every two years; in August; one week between OctoberDecember, JanuaryMarch and AprilJune; and to allow him to leave the country with the child for at least a week during the time they spent together and in August 2007.
26. By a judgment of 7 June 2007 the ClujNapoca District Court allowed the applicant’s action in part, seeking to establish a schedule for visiting rights. Relying on the statements of the parties’ witnesses and on the report produced by the County Centre for Abused Children attached to the Child Social and Protection Services, the court held that the father could visit the child and spend a few hours per week with her in the mother’s absence. The absence of her mother would avoid any stressful situation for the child caused by the tension between the parents. Also the contact with her father would be welcomed by and beneficial for the child as long as N.M.E.P. needed the attention of both parents for her balanced emotional and physical development, which could not be achieved in the presence of both parents. According to the social investigation carried out at the applicant’s home, his living conditions were appropriate. The fact that the supplement to the social investigation, which the court did not order, mentioned that the rooms of his home looked unwelcoming, without providing details on why they would be unfit to host a child, could not be considered a well-grounded reason for refusing the applicant contact with his daughter. Moreover, O.M.M.’s arguments that the applicant was not capable of taking care of the child were rebutted by the available witness statements.
27. In respect of the applicant’s request to be allowed to occasionally take the child out of the country the district court held that regardless of the parent’s position, the minor had a legal right to meet her relatives, including the paternal ones. The paternal relatives met the child and had her wellbeing at heart. In N.M.E.P.’s case, she enjoyed ties with both Romanian and French cultures, and she could not be denied the right to maintain those direct contacts with the two countries. In addition, no evidence supported O.M.M.’s argument that the applicant would fail to return the child to Romania. The child had been left alone with the applicant before and he had always returned her to her mother. Moreover, the witnesses stated that whenever O.M.M. did not agree to leave the child alone with him he did not insist on O.M.M. doing so. Also, she never expressed concern that the applicant would fail to return the child to her. The applicant’s failure to indicate the dates for travelling abroad and for returning to Romania by providing plane tickets could not be considered arguments for the dismissal of his request, as it was the court’s task to set those dates. Also, the applicant had provided the names and addresses of all his relatives, where he would like to take the child. Consequently, after it had been established that the schedule suggested by the applicant was not in the minor’s best interest, the court set a contact rights programme for the applicant and allowed him to take the child away from O.M.M.’s home, even in her absence and without her consent: on Sundays, on 14 July and between 1 and 15 August; every second year on 8 June, a week at Easter and a week at Christmas. In addition, the court allowed the applicant to take the child out of Romania, even without O.M.M.’s consent, every second year for a week at Easter and for Christmas and yearly between 1 and 15 August. The parties appealed against the judgment. O.M.M. asked the court, inter alia, to order a psychological evaluation of the child, but the applicant contested O.M.M.’s request.
28. By a judgment of 14 November 2007 the Cluj County Court dismissed O.M.M.’s request for a psychological evaluation of the child, on the ground that it would be inconclusive for the case, and allowed the applicant’s appeal in part. It also allowed the applicant to take the child away from O.M.M.’s home every year on 24 November, even in her absence, and upheld the judgment of 7 June 2007. The judgment became final on 5 April 2008, as the parties’ appeal on points of law (recurs) was dismissed by the Cluj Court of Appeal.
29. On an unspecified date in 2009, following O.M.M.’s and his daughter’s move to the United Kingdom on an unspecified date in 2009, the applicant brought proceedings against O.M.M., seeking a new contact schedule and an injunction for his daughter to be brought to his home at O.M.M.’s expense under the penalty of 50 new Romanian lei (RON) (approximately 13 euros (EUR)) in daily compensation for any delay on the following dates: every second Sunday; every second year on 8 June, at Orthodox Easter and at Christmas; and yearly between 1 and 15 August.
30. By a judgment of 12 November 2009 the ClujNapoca District Court allowed the applicant’s action in part. It held that the change of the child’s residence to a different country justified the applicant’s action for a new contact schedule. However, the court considered that the schedule suggested by the applicant was too tiring for the child, taking into account her young age and her need to attend school. In this respect the court held that the Orthodox Easter period would prove a good opportunity for the applicant to visit his daughter at her home and would give him the opportunity to meet the child in a familiar environment for the latter. For the winter and summer holidays, when the applicant and his daughter could spend more time together, he was allowed to take his daughter away from her mother’s home, since there would be enough time for the child to rest and play. Moreover, the court considered that the parents must share the child’s travelling expenses for the summer and winter holidays, while the travelling expenses for Easter would be incurred by the father. Furthermore, on account of O.M.M.’s previous obstructive behaviour with regard to the enforcement of judgments, the court ordered her to pay a RON 50 (approximately EUR 13) daily compensation for any delay if she failed to comply with the contact schedule established by the court, as follows: yearly at Orthodox Easter at the child’s home in the United Kingdom, at the applicant’s expense and between 1 and 15 August at both parents’ expense; and one week every two years for Christmas at both parents’ expense. The applicant appealed against the judgment.
31. By a judgment of 23 February 2010 the Cluj County Court allowed the applicant’s appeal against the judgment of 12 November 2009, in part. It held that every two years at Orthodox Easter, the child was to travel to Romania and stay at the applicant’s home. The expenses would be borne by both parents and the child would be accompanied by the mother on the outbound flight from the United Kingdom and by the father on the return flight home. Moreover, the father could travel to visit his daughter every second month for the last weekend of the month, while the mother had to bring the child to Romania to her father’s home every second month for the last weekend of the month. Both parents had to pay their own travelling expenses. The monthly travel visits could not take place around the Easter and the Christmas period, when the contact schedule established by the first-instance court applied. Lastly, it upheld the remaining provisions of the judgment of 12 November 2009.
32. The applicant informed the Court on an unspecified date in 2011 that O.M.M had appealed on points of law (recurat) against the judgment of 23 February 2010, and that her appeal (recurs) had been allowed. He submitted that the contact schedule had been changed by the final judgment, in so far as he was forced to travel to the United Kingdom on the last Sunday of every month to see his daughter. Moreover, according to him the judgment did not refer to the mother’s duty to bring his daughter to him for the Christmas and summer holidays. Furthermore, for Easter he would be able to see his daughter once every two years starting from 2010, but only for two days and not for a week. The Easter holiday was the only time the courts had ordered the mother to bring N.M.E.P. to him. The applicant did not submit a copy of the alleged final judgment to the file.
33. On 20 August and 15 October 2006 a bailiff employed by the applicant attempted to enforce the judgment of 3 August 2006. The enforcement reports produced by the bailiff on the same dates stated that O.M.M. had left her home with the intention of preventing the enforcement of the judgment, although she had been notified of the bailiff’s visits; and also that she allowed the applicant to see his daughter at her home and in her presence but did not agree for him to take her away.
34. On 10 and 17 December 2006 a bailiff employed by the applicant attempted to enforce the judgment of 29 November 2006. The enforcement reports produced by the bailiff on the same dates stated that O.M.M. allowed the applicant to see his daughter at her home but did not agree for him to take her away.
35. On 29 March 2007 a bailiff employed by the applicant attempted to enforce the judgment of 8 March 2007. The enforcement report produced by the bailiff on the same date stated that O.M.M. had allowed the applicant to see his daughter at her home but did not agree that he could take her elsewhere, because N.M.E.P. refused to leave with her father. Eventually, the two parents agreed that their daughter could leave if she was accompanied by her mother.
36. On 16 April 2008 a bailiff employed by the applicant attempted to enforce the judgment of 7 June 2007. On the same date the bailiff notified O.M.M. that on 25 April 2008 the applicant wanted to take N.M.E.P. to France for a week at Easter.
37. On an unspecified date in 2008 O.M.M. contested the enforcement proceedings opened against her on 16 April 2008.
38. On 22 April 2008 the bailiff requested the Cluj Social Assistance and Child Protection Agency to delegate a representative to accompany him to O.M.M.’s home on 25 April 2008 on account of O.M.M.’s previous repeated refusals to allow the applicant to have contact with his daughter.
39. On 25 April 2008 the bailiff accompanied the applicant to O.M.M.’s home. The enforcement report produced by the bailiff on the same date stated that it was impossible to enforce the judgment, as neither the mother nor the daughter were present, and O.M.M. had written to the applicant that she had gone on holiday for Easter.
40. On 12 May 2008 the Cluj Social Assistance and Child Protection Agency informed the bailiff’s office that so far as the enforcement proceedings were concerned the Agency was not party to the proceedings, did not have legal standing and it did not have any record of the child being placed under special protection measures.
41. By a judgment of 18 June 2008 the ClujNapoca District Court dismissed O.M.M.’s action contesting the enforcement proceedings opened against her on 16 April 2008, on the ground that they were lawful. There is no evidence in the file that O.M.M. appealed against the judgment.
42. On 15 July 2008 the bailiff made a second attempt to enforce the judgment of 7 June 2007. On the same date the bailiff notified O.M.M. that the applicant would visit her home on 1 August 2008 at 11 a.m. to take the child away for the period between 1 and 15 August 2008.
43. On 1 August 2008 the bailiff accompanied the applicant to O.M.M.’s home. The enforcement report produced by the bailiff on the same date stated that the child refused to leave with her father and consequently O.M.M. did not agree to allow her to go.
44. On an unspecified date in 2006 the applicant brought proceedings against O.M.M., seeking an injunction for a fine of between RON 20 and RON 50 (approximately EUR 5 to 13) for every Sunday O.M.M. refused to allow him to see his daughter as required by the final judgment of 29 November 2006.
45. By a final interlocutory judgment of 30 January 2007 the ClujNapoca District Court dismissed the applicant’s action for a fine. It held that according to the enforcement report produced by the bailiff on 10 December 2006 O.M.M. had allowed the applicant to see his daughter at her home and in her presence, but that she had refused to allow him to take the child away. In these circumstances the Court considered that O.M.M. had not obstructed the enforcement of the judgment of 29 November 2006.
46. On 4 February 2008 the applicant brought proceedings against O.M.M., seeking an injunction for a RON 5,000 (approximately EUR 1,250) security deposit and a civil fine of RON 50 (approximately EUR 13) for every day she prevented him from enforcing the judgment of 7 June 2007.
47. By a judgment of 10 July 2008 the ClujNapoca District Court allowed the applicant’s action of 4 February 2008 in part. It ordered O.M.M. to pay a RON 30 fine for every day she prevented the applicant from enforcing the judgment of 7 June 2007. In this respect it held that O.M.M. had prevented the applicant on several occasions in 2008 from seeing his daughter, either by not being at home or by refusing to allow him to take his daughter away from her home. However, the court dismissed his claim for a security deposit, on the ground that it had already ordered O.M.M. to pay a fine for obstructing the enforcement of a final judgment. The applicant appealed against the judgment.
48. By a judgment of 11 November 2008 the Cluj County Court dismissed the applicant’s appeal against the judgment of 10 July 2008, on the ground that the applicant had already been ordered to pay a fine. Moreover, forcing her to pay an additional RON 5,000 penalty would be disproportionate, and might affect the child due to the financial burden imposed on her mother. The applicant appealed on points of law (recurs) against the judgment.
49. By a final judgment of 18 February 2009 the Cluj Court of Appeal allowed the applicant’s appeal on points of law against the judgment of 11 November 2008 in part and ordered O.M.M. to deposit on a bank account a payment of RON 3,000 (approximately EUR 750) in the applicant’s name. In also upheld the remaining part of the judgment of 11 November 2008. It held that while the mother’s financial stability had to be considered, the child had a right to spend time with her father. Moreover, the mother had a good income and the amount established by the court for the warranty maintained a balance between the financial burden imposed on O.M.M. and the aim of preserving family ties.
50. On 17 April 2009 the applicant brought proceedings against O.M.M., asking the court to establish the amount of the fine O.M.M. had to pay following the judgment of 10 July 2008 and seeking an injunction for O.M.M. to pay him RON 8,000 (approximately EUR 2,000) in compensation for nonpecuniary damage following her repeated refusals to accept the enforcement of the judgment of 7 June 2007.
51. By a judgment of 22 October 2009 the ClujNapoca District Court dismissed the applicant’s action of 17 April 2009. It held that the court could not establish the amount of the fine due, as the applicant had not been able to show how many times he had been obstructed in the enforcement of the judgment of 7 June 2007 after O.M.M.’s duty to pay a fine was set by the court on 10 July 2008. Moreover, the tense relationship between the parents, reflected also in his relationship with his daughter, did not allow the applicant always to see his daughter in the circumstances he would have wished. While separation from one’s child after divorce implied a certain suffering, this was not of such a level as to engage O.M.M.’s civil liability. The problems faced by the applicant, in particular his former wife’s behaviour, had already been punished by the courts, which had obliged her to set up a security deposit in his favour. In addition, the fact that his daughter had left Romania and he had not been able to see her since February 2009 could not have caused him additional suffering, since he was notified about his ex-wife’s decision, was informed of his daughter’s address in the United Kingdom, and had brought proceedings for the contact rights schedule to be changed. Consequently, pending those proceedings, his only discomfort was caused by the fact that he did not live in the same country as his daughter any more. The applicant appealed against the judgment.
52. By a final judgment of 5 May 2010 the Cluj County Court dismissed the applicant’s appeal against the judgment of 22 October 2009 as timebarred.
53. On 15 January 2008 the applicant brought criminal proceedings against O.M.M. for obstructing the enforcement of the judgments allowing him contact rights with his daughter. He argued that although he had attempted repeatedly to enforce the judgments of 29 November 2006, 7 June and 20 December 2007 and the judgments allowing him exceptional contact rights with his daughter for 29 March, 30 May and 1 June 2007, he had been unable to do so because of O.M.M.’s behaviour.
54. By a judgment of 11 March 2008 the ClujNapoca District Court dismissed the applicant’s criminal complaint of 15 January 2008, on the ground that O.M.M.’s behaviour could not be classified as criminal. However, the court applied an administrative sanction, issuing O.M.M. with a warning. It held, inter alia, that although O.M.M. had obstructed the enforcement of final court judgments, her conviction would not serve and adequate purpose considering that the parties have a child together and a conviction could also influence the future of the said child, particularly if O.M.M. did not change her behaviour. The applicant appealed against the judgment.
55. By a final judgment of 2 July 2008 the Cluj County Court dismissed the applicant’s appeal against the judgment of 11 March 2008. It underlined, inter alia, that, according to a report produced by the County Centre for Abused Children attached to the Child Social and Protection Services following counselling sessions with the parties which were quit by the father, the child was affected by the conflict between her parents and considered her mother to be “good” and her father to be “bad” and wanted him to “leave her alone” and to stop visiting her. The child was closer to her mother and was somewhat detached from her father, even rejecting him of her own accord, whether or not induced to do so by her mother. In this context, the court held that although O.M.M. obstructed the enforcement of final court judgments it could not be argued that she did not have in mind the best interest of her child. She allowed the father to visit the child at her home and in her presence. Consequently, given the tense relations between the parents and the need of the child, convicting O.M.M. would not serve any purpose, as it would preserve, inter alia, the child’s feelings of uncertainty.
56. In a letter addressed to the Court in December 2008 the applicant stated that from July 2006 until December 2008 he had attempted to exercise his acknowledged visiting rights 108 times. All the attempts of the applicant to visit his daughter according to the schedule established by final judgments were obstructed by the categorical refusal of O.M.M. to let him take the minor away from her home, and whenever he was allowed to see his daughter he was compelled to agree to the visits taking place in her presence, or else in the presence of the minor’s maternal grandmother. Consequently, he lodged 107 criminal complaints against O.M.M. for noncompliance with the provisions of the final judgments allowing him personal contact with his daughter.
57. In a letter addressed to the Court on an unspecified date in 2011 the applicant stated that he had no knowledge of his daughter’s whereabouts and that he had not seen her for a year and a half. His former wife had allegedly moved from the address he had known in the United Kingdom and had not notified him of the new address. Moreover, although the domestic courts had been informed about the mother’s failure to notify him of his daughter’s new address during the proceedings seeking to change the contact rights schedule, they did not order her to disclose it to him. Consequently, he was unable to contact or see his daughter.
58. The relevant domestic legal provisions are set out in the Court’s judgments in the cases of Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05, §§ 55-58, 13 October 2009). The role and responsibilities of the local public authorities in respect of social assistance and child protection, as well as the relevant provisions of the Child Protection Act (no. 272/2004), are described in the judgment in the case of Amanalachioai v. Romania, (no. 4023/04, §§ 56 and 59, 26 May 2009).
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-72864
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CAMPAGNANO v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election;Vote);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele;Lucius Caflisch;Margarita Tsatsa-Nikolovska;Vladimiro Zagrebelsky
TEXT: 8. The applicant was born in 1933 and lives in Amorosi (Benevento).
9. In a judgment deposited with the court's registry on 30 June 1997, the Benevento District Court made a winding-up order in respect of the applicant's company, a beverage company, and also declared the applicant personally bankrupt.
10. On 15 October 1997 the trustee in bankruptcy filed a report.
11. On 9 April 1998 the bankruptcy judge (“the judge”) checked the statement of liabilities of the bankrupt estate and on 7 June 1999 declared it judicially established (esecutivo).
12. On 1, 5 and 9 July 1999 respectively the companies C.D.O., C.C.C. and F.C. instituted proceedings contesting the statement of liabilities.
13. At a hearing held on 14 April 2000, the judge ordered the striking out of the action brought by the company F.C. as being out of time.
14. On 18 December 2000 the trustee in bankruptcy requested the creditors' committee to give its opinion on the possible sale of two lorries in very poor condition which were listed in the statement of assets.
15. On 8 January 2001 the trustee in bankruptcy requested the judge to declare the lorries unfit for sale (illiquidabili) so that the proceedings could be terminated.
16. On 5 February 2001 the trustee in bankruptcy filed the revenue and expenditure account, which the judge approved on 12 March 2001.
17. By a decision deposited with the registry on 20 March 2001, the judge terminated the bankruptcy proceedings for lack of any further assets to distribute.
18. The decision was posted in the District Court on 23 March 2001. It became final on 7 April 2001.
19. The Bankruptcy Act (Royal Decree no. 267 of 16 March 1942) provides, inter alia:
“An appeal shall lie against the decisions of the bankruptcy judge ... to the district court within three days of their adoption, and may be lodged by the trustee in bankruptcy, the bankrupt, the creditors' committee or any other person with an interest.
The district court shall deliberate in private and give a reasoned decision.
The appeal shall not have suspensive effect in relation to the impugned decision.”
“An appeal shall lie against measures taken by the trustee in bankruptcy. Such appeals may be lodged by the bankrupt, or any other person with an interest, with the bankruptcy judge, who shall give a reasoned decision.
An appeal against that decision may be lodged within three days with the district court. That court shall give a reasoned decision after hearing evidence from the trustee in bankruptcy and the appellant.”
“The bankruptcy order shall divest the bankrupt of the rights to administer or to deal with assets that were in existence at the date of the said order. ...”
“Correspondence addressed to the bankrupt shall be passed to the trustee in bankruptcy, who shall be empowered to retain correspondence concerning property interests. The bankrupt may consult the correspondence. The trustee in bankruptcy shall keep the content of correspondence not relating to such interests confidential.”
“The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge, the trustee in bankruptcy or the creditors' committee each time he is duly summoned, except where he is unable to appear on legitimate grounds and the judge gives him leave to send a representative.
If the bankrupt fails to comply with a summons, the judge may order that he be brought by the police.”
“A public register of the names of bankrupts shall be held at the registry of each district court. Names shall be deleted from the register by order of the district court. A bankrupt shall be subject to the restrictions laid down by law until such time as his name is deleted from the register.”
“The bankruptcy proceedings shall be terminated by means of a reasoned decision of the court ...
An appeal against that decision may be lodged with the court of appeal within fifteen days of its being posted in the court ...”
“Rehabilitation may be granted to bankrupts who
1. have paid in full the debts included in the bankruptcy, including interest and expenses;
2. have complied with the terms of the composition with creditors if the court considers them eligible for such a measure, taking into account the causes and circumstances of the bankruptcy, the terms of the composition and the percentage agreed. Rehabilitation may not be granted in cases where the percentage agreed for unsecured creditors is below 25% ...;
3. have shown proof of effective and consistent good conduct for at least five years following the end of the bankruptcy proceedings.”
20. Article 2 § 1 (a) of Presidential Decree no. 223 of 20 March 1967, as amended by Law no. 15 of 16 January 1992, provides essentially for the suspension of the bankrupt's electoral rights for the duration of the bankruptcy proceedings and, in any event, for a period not exceeding five years from the date of the bankruptcy order.
21. Legislative Decree (decreto legislativo) no. 5 of 9 January 2006 on the reform of the Bankruptcy Act provides, inter alia, as follows:
“Article 48 of Royal Decree no. 267 of 16 March 1942 is hereby replaced by the following:
'Article 48 (correspondence addressed to bankrupts): Entrepreneurs who are declared bankrupt and the directors or liquidators of companies or corporations which are the subject of bankruptcy proceedings shall be required to hand over to the trustee in bankruptcy all correspondence, and in particular electronic correspondence, concerning property interests [rapporti] included in the bankruptcy.' ”
“Article 49 of Royal Decree no. 267 of 16 March 1942 is hereby replaced by the following:
'Article 49 (obligations of bankrupts): Entrepreneurs who are declared bankrupt and the directors or liquidators of companies or corporations which are the subject of bankruptcy proceedings shall be required to inform the trustee in bankruptcy of any change of residence or address.
Where information or clarification is needed for the conduct of the proceedings, the above-mentioned individuals must report in person to the bankruptcy judge, the trustee in bankruptcy or the creditors' committee.
If they are unable to do so, the judge may give leave to the entrepreneur or the legal representative of the company or corporation which is the subject of the bankruptcy proceedings to send a representative.' ”
“Article 50 of Royal Decree no. 267 of 16 March 1942 is hereby repealed.”
“The following provisions are hereby repealed:
(a) Article 2 § 1 (a) ... of Presidential Decree no. 223 of 20 March 1967;
...”
22. According to legal commentators, the institution of bankruptcy has its origins in the Middle Ages (thirteenth century), an era when merchants (in the broad sense, encompassing traders, entrepreneurs and bankers) formed the nucleus of a new social class. In this context, in which the public interest coincided at times with the interests of the merchant class, bankruptcy was designed to impose stringent measures on insolvent merchants. Hence, bankruptcy was subject to criminal penalties (such as banishment, arrest and, in some cases, torture or death) or civil penalties such as the entry of the bankrupt's name in a register, forcing bankrupts to wear distinguishing marks (such as a green beret), loss of citizenship, and other restrictions (see A. Jorio, La crisi d'impresa, il fallimento, Guiffré, 2000, p. 364; S. Bonfatti and P.F. Censoni, Manuale di diritto fallimentare, Cedam, 2004, pp. 1-2 and 72-73; and L. Guglielmucci, Lezioni di diritto fallimentare, G. Giappichelli, Turin, 2004, p. 122).
VIOLATED_ARTICLES: 13
8
P1
VIOLATED_PARAGRAPHS: 8-1
P1-3
NON_VIOLATED_ARTICLES: 8
P1
P4
NON_VIOLATED_PARAGRAPHS: 8-1
P1-1
P4-2
NON_VIOLATED_BULLETPOINTS: P1-1-1
P4-2-1


ITEMID: 001-99986
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: CURMI AND OTHERS v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicants, Ms Patricia Curmi, Mr Bernard Pullicino, Ms Maryanne Zammit Pullicino, Ms Stephanie Mose' Pullicino, Mr Edward Pullicino, Ms Graziella Pullicino, Mr Joseph Pullicino and Ms Yvonne Pullicino are Maltese nationals who were born in 1966, 1963, 1977, 1964, 1966, 1970, 1963 and 1936 respectively and live in Malta. They were represented by Dr Kevin Dingli, Dr Austin Bencini and Dr Lorna Mifsud Cachia, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are owners of undeveloped plots of land situated both inside and outside the perimeter of land earmarked for the Malta Freeport Project.
The applicants' land is subject to a declaration by the Governor General dated 13 February 1969, stating that such land will be expropriated for a public purpose.
On 6 February 2001 the amount offered in compensation by the Government was deposited in court by means of a schedule of deposit. On 21 May 2002 the applicants contested the amount before the Land Arbitration Board. These proceedings are still pending.
At the date of the introduction of the application, the property belonging to the applicants, situated outside the perimeter of the Freeport, had not been taken possession of and included within the perimeter of the Freeport Project; neither had the procedures to conclude the transfer of property to the Maltese State been finalised and nor had any compensation been paid.
Adjoining the applicants' property is land belonging to Mr C., which was subject to a similar declaration dated 22 February 1969 and made in the same factual circumstances. On 28 December 2001 the Constitutional Court of Malta found that the Governor's declaration had breached Mr C.'s right to enjoyment of property. It held that whenever the process by which an individual was divested of his property had not been concluded, and therefore the interference remained one of control of use, the State had to release the property to its rightful owners as soon as it transpired that the grounds on which the State had originally, validly and justifiably taken the measure restricting the owner's use no longer existed. According to the applicants, the judgment of the Constitutional Court further established the standard of proof required in such cases for determining whether there still existed a public interest ground for the taking, namely, i) the competent authorities' active consideration for at least four years to release the property in question because it was not needed for the purposes for which it had originally been expropriated, and ii) the lapse of a number of years between the date of the declaration and the date when the constitutional case was brought.
In the light of the judgment in Mr C.'s case, the applicants instituted constitutional proceedings in 2002 before the Civil Court (First Hall) claiming a breach of Article 1 of Protocol No.1 in respect of their property. In particular, they claimed that no public interest ground subsisted since the authorities had not made use of the said land in over thirty years. They maintained that they had a legitimate expectation that the same law and criteria used in the C. case would be applied to them. They complained moreover that the authorities had breached the reasonable time requirement under Article 6 of the Convention in that the proceedings for the payment of compensation had not yet been concluded, more than thirty years after the date of the declaration.
During the proceedings, the Commissioner of Lands declared under oath that two of the said plots were within the Freeport Zone, two other plots were partly in the zone and the third was outside it. The latter could thus be released. Moreover, he had requested the relevant department to release any of the plots which had not been used, but he had not received a reply. To his knowledge, no use was foreseen for these plots, but it was up to the relevant department to decide on that matter. He observed that no department had applied to use the plots in the thirty years since their taking. He further stated that all the plots were located within the extension area of the Freeport. A representative of the Freeport declared that three of the plots had been excavated, and that the other two were the subject of pending permits for the building of warehouses, applied for in 2000. Another witness presented a marketing brochure confirming that certain areas could not yet be built on and that there was a plan for the construction of warehouses in other areas.
In the applicants' view, the State had had no need of the land in question and had considered the possibility of releasing it. They further adduced proof of their argument that the State had not taken possession of their land (in fact no structural works had been carried out), nor had the expropriation proceedings been concluded even though thirty years had elapsed since the date of the Governor's declaration.
The State or the competent authorities did not submit any evidence regarding a change in jurisprudence subsequent to the C. case.
On 14 April 2005 the Civil Court found against the applicants in respect of their complaint under Article 1 of Protocol No.1. It held that the Freeport Project was one of great importance and was “rationally related to a conceivable public purpose”. It had been proved that the plots at issue were located in the area already being used for the Freeport or in the extension area. When assessing the issue of fair balance, the public interest in the project outweighed the interests of private individuals. That there had only been a de facto expropriation for a number of years did not detract in any way from the continuing relevance of the public interest grounds relied upon by the State. The future expansion of a project fell within the notion of the public interest and therefore the expropriation proceedings taken in relation to the applicants' property were a matter of public interest. As to the yet unpaid compensation, the court did not examine the matter since the compensation proceedings were still pending before the LAB. The court, however, found a violation of Article 6 of the Convention in that those proceedings had still not been concluded after thirty years. It awarded the applicants 5,000 Maltese liras (MTL, approximately 11,650 euros (EUR)).
The applicants appealed. On 30 April 2007 the Constitutional Court confirmed the authority of the C. case as a correct application of the law; it dismissed, however, the applicants' claims, confirming the existence of a public interest purpose for the expropriation of the applicants' land.
The Constitutional Court held that the plots situated within the Freeport perimeter had clearly been taken in the public interest even though the State had only started developing the land in 2000. However, it was reasonable to take a larger portion of land for a project and then make use of only a part of it in the initial years, leaving the rest for further expansion. This was especially true of a project such as the Freeport. Thus, the public interest persisted at the time of these proceedings. As to the plots outside the Freeport, it acknowledged that part of the applicants' land had remained unused; however, that land might be required if the Freeport Project were to be expanded (as appeared to be the case in view of the building of warehouses). Indeed, the Government, in 2002, had started to expropriate other lands in the area. It followed that on the evidence as presented, the public interest requirement in respect of those plots also persisted at the time of these proceedings.
It upheld the first-instance judgment in respect of Article 6.
By a deed of 21 January 2009, at the time when the proceedings before this Court were pending, the Government sold back to the applicants the three plots of land situated outside the perimeter of the Freeport (excluding a part which had been used to build a road), these plots being the subject matter of the Convention proceedings. The sale was carried out in accordance with Government policy. According to that policy, where land had been acquired by the Government but was no longer needed for a public purpose, it could be returned to the original owners for a price or any other amount originally agreed, with interest of 5 % per year being paid from the date of the taking to the date of release. By means of the above-mentioned deed, the applicant buyers undertook to withdraw any pending proceedings and declared that they had no further claims against the Government in respect of the plots of land which they were buying back.
1. In Mr C.'s case (Pawlu Cachia vs Avukat Generali u l-Kummissarju ta l-Artijiet, Rikors Nru 586/97, 28/12/2001) the Constitutional Court held, after giving an overview of the applicable principles under Article 1 of Protocol No.1 to the Convention, that whenever the process by which an individual was divested of his property had not yet been concluded, the interference remained one of control of use. The State had the obligation to release the property to its rightful owners as soon as it transpired that the grounds on which the State had originally, validly and justifiably taken the measure restricting the owner's use no longer existed. It was for the Government to prove that both at the time of the Governor's declaration and throughout the proceedings until the time of transfer of the property concluding the expropriation there existed a public interest for the taking of the property.
2. It resulted from the evidence that, in respect of Mr C.'s plots of land which were outside the Freeport zone, the competent authorities had for at least four years actively considered releasing the property to its rightful owners as it was no longer necessary for the purpose for which it had originally been taken. Moreover, decades had passed since the date of the declaration. The absence of a public interest was thus apparent even if such an interest had been present at the time of the declaration. It had subsequently emerged that Mr C.'s property would not be used in the public interest. The Government should therefore have returned the said property to Mr C.. Their failure to comply with this latter obligation amounted to a breach of Mr C.'s property rights under the Convention.


ITEMID: 001-87832
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KUKALO v. RUSSIA (NO. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1941 and lives in Kurgan, a city in the Kurgan Region.
5. As a victim of Chernobyl, the applicant was entitled to social beneﬁts. The beneﬁts were underpaid, and the applicant sued the local welfare authority.
6. The Kurgan Town Court held for the applicant eight times.
7. On 25 March 2003 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 8 May 2003 and was enforced in July 2003.
8. On 3 April 2003 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 17 April 2003 and was enforced on 21 July 2005.
9. On 19 February 2004 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 6 March 2004 and was enforced on 21 July 2005.
10. On 11 March 2004 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 27 March 2004 and was enforced in July 2005.
11. On 27 April 2004 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 8 May 2004 and was enforced in July 2005.
12. On 20 December 2004 the court awarded inationary loss caused by the non-enforcement of the previous four judgments, awarded arrears, and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 11 January 2005 and was enforced on 27 October 2006.
13. On 22 May 2006 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 6 June 2006 and has been enforced in part.
14. On 28 June 2006 the court awarded arrears and ﬁxed a new amount of periodic beneﬁts. This judgment became binding on 14 July 2006 and has been enforced in part.
15. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-22000
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: MOURA CARREIRA and MARGARIDA LOURENCO CARREIRA v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants [Mr Joaquim Moura Carreira and Mrs Maria Margarida Lourenço Carreira] are Portuguese nationals who were born in 1910 and 1915 respectively and live in Sesimbra (Portugal). They were represented before the Court by Mr A. de Sousa Leite, of the Almada Bar.] are Portuguese nationals
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 November 1978 the Seixal District Court issued a temporary injunction prohibiting the applicants from disposing of their shares in a private limited company, J.M. Carreira Lda., following an application for this protective measure (providência cautelar) by G.C. and D.C., who were also members of the company. G.C. and D.C. had alleged that the applicants had failed to honour a promise to sell shares to them.
On 20 November 1978 the applicants lodged an application to have that decision set aside (embargos). They alleged, inter alia, that the document produced by G.C. and D.C., containing the promise to sell the shares, was a forgery.
In an order of 13 June 1981, which was served on the applicants on 6 October 1983, the court invited them to bring interlocutory proceedings to challenge the authenticity of the document in question.
The applicants appealed against that order to the Lisbon Court of Appeal (Tribunal da Relação), but the outcome of the proceedings is not known. However, they also made an interlocutory application on 20 October 1983 challenging the authenticity of the document, as the court had invited them to do.
In an order of 17 January 1989 the court ruled that it could not entertain the application as it had been made out of time.
The applicants appealed against that order to the Lisbon Court of Appeal, which in a judgment of 25 January 1990 quashed the impugned decision.
The case was remitted to the Seixal District Court. On 7 March 1991 that court decided that the proceedings to set aside the protective measure should be stayed pending the outcome of the proceedings to challenge the authenticity of the document.
In a judgment of 21 October 1993 the court dismissed the interlocutory application. That decision was upheld by the Lisbon Court of Appeal in a judgment of 15 December 1994.
In a decision of 4 November 1997 the Seixal District Court permanently stayed the proceedings to set aside the protective measure, in the light of the decision taken in the main proceedings (see below). The applicants were also ordered to pay costs and expenses.
The applicants appealed against that decision, but only in relation to the costs order. In a judgment of 30 June 1998 the Lisbon Court of Appeal allowed the appeal and made an order for costs against G.C. and D.C.
On 6 December 1978 G.C. and D.C. brought an action for damages in the Seixal District Court in respect of the applicants’ alleged failure to honour their promise to sell shares in J.M. Carreira Lda.
In a judgment of 21 February 1997 the court dismissed their claim.
G.C. and D.C. appealed to the Lisbon Court of Appeal. However, since they failed to file pleadings, the court declared the appeal invalid (deserto) in a decision of 27 June 1997. That decision was served on the applicants on 3 July 1997.
At the time when the proceedings in question were instituted, applications to set aside protective measures were governed by Article 401 of the Code of Civil Procedure. In such applications complainants could challenge the proceedings whereby a protective measure had been ordered by adducing evidence capable of casting doubt on the grounds for the measure or of curtailing its scope (see Article 401 and Article 406 § 1 of the Code of Civil Procedure in the version applicable at the time, and the Supreme Court’s judgments of 18 January 1979, Boletim do Ministério da Justiça (“BMJ”) no. 283, p. 213, and 6 February 1986, BMJ no. 354, p. 434).
Under Article 389 of the Code of Civil Procedure, a protective measure ceases to have effect if the claims of the party in whose favour it was made are dismissed in the main proceedings. In that event, the court must permanently stay the proceedings in respect of the protective measure (Article 389 § 4).


ITEMID: 001-91636
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BÖKE AND KANDEMIR v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 6-3-c;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1969 and 1979 respectively and live in İzmir.
5. On 14 February 2001 two persons were shot and injured in a bus by a person who subsequently got off the bus.
6. On the same day, upon receipt of information that the suspect of the shooting was in a red car, police officers from the Aydın police headquarters arrested the applicants during a traffic control operation that had they initiated on the Aydın motorway. The security forces further arrested four other persons, including the first applicant’s brother, in another car. The police officers confiscated the applicants’ mobile telephones and both cars, in which 5 firearms were found. On the same day, the applicants were taken into police custody.
7. On 15 February 2001 three police officers drafted a report containing the numbers dialled and calls received on the mobile telephones of the first applicant, his brother and another suspect.
8. On 19 February 2001 a single judge at the Aydın Magistrates’ Court extended the period of the applicants’ detention in police custody for a further three days.
9. On the same day the applicants’ statements were taken by police officers from the organised crime unit of the Aydın Police Headquarters. According to the document containing their statements, the applicants were suspected of forming a criminal profit-making organisation proscribed by Article 1 of Law no. 4422. According to the document, both applicants confessed to their involvement in a criminal organisation.
10. On 15, 16 and 21 February 2001, the applicants were examined by doctors at the Aydın State Hospital. The doctors noted in their reports that there were no signs of ill-treatment on the applicants’ persons.
11. On 21 February 2001 the applicants were brought before a single judge at the Aydın Magistrates’ Court, who ordered their detention on remand. Before the judge, the applicants refuted the accuracy of the documents containing their statements taken by the police.
12. On 22 March 2001 the firearms found in the cars were subjected to a ballistic examination. The experts found that one of the weapons found in the car of the first applicant’s brother had been used in the shooting of 14 February 2001.
13. On an unspecified date a test was conducted in order to detect traces of gunpowder on the applicants’ and other suspects’ hands, which resulted in the finding of gunpowder traces on the applicants’ hands.
14. On 19 April 2001 the Public Prosecutor at the İzmir State Security Court filed a bill of indictment, charging the applicants and eleven other persons with forming a criminal profit-making organisation.
15. On 5 June 2001 the applicants made statements before the Aydın Assize Court and refuted the veracity of the documents containing their statements taken by the police. The minutes containing their statements were then sent to the İzmir State Security Court.
16. On 13 June 2001 the İzmir State Security Court held the first hearing on the merits of the case and heard some of the accused and read out the evidence in the case file. On the same day the applicants’ representative stated before the court that the applicants disputed the accuracy of the evidence against them, including the medical reports issued following their detention in police custody, which stated that there was no sign of physical violence on their bodies.
17. On 2 August and 11 September 2001 the court held the second and third hearings and took statements from some of the other accused.
18. On 13 June 2001, 26 July 2001, 2 August 2001 and 11 September 2001, the State Security Court refused to release the applicants, relying on the seriousness of the offence and the evidence in the case file.
19. On 1 November 2001, during the fourth hearing before the State Security Court, the first applicant, Rifat Böke, complained that he had been subjected to torture during his detention in police custody and that he suffered from cervical disk syndrome as a result. He denounced the statements that had been taken from him in police custody and contested the accuracy of the medical reports issued in his respect. At the end of the hearing, the court refused to release the applicants, taking into account the nature of the offence and state of the evidence. The court held that the next hearing would be held on 27 December 2001.
20. The applicants filed an objection to the decision for their continued detention.
21. On 20 November 2001 another Chamber of the İzmir State Security Court dismissed the applicants’ objection, holding that the decision for their continued detention was justified.
22. Between 27 December 2001 and 14 May 2002 the İzmir State Security Court held four more hearings.
23. On 14 May 2002 the İzmir State Security Court convicted the applicants of forming a profit-making criminal gang and sentenced them to three years and four months’ imprisonment. In its judgment, the court took into consideration as evidence the arrest report, the report stating that firearms were found in the applicants’ car, the applicants’ statements to the police, the medical reports issued at the end of their detention in police custody, the report containing the details of the telephone calls made by the first applicant, the results of the test showing gunpowder traces on the applicants’ hands and the ballistic reports. The court further noted the past relations between the applicants and the other accused, as well as the hostility between them and one of the persons who had been shot on 14 February 2001. In the light of the evidence in the case file, the State Security Court found it established that the applicants had formed a criminal organisation with a view to making a profit, and that the shooting of the two persons on 14 February 2001 had been a result of the activities of that organisation. Taking into account the total period of the applicants’ pre-trial detention, the court ordered their release.
24. On 5 May 2003 the Court of Cassation upheld the decision of the İzmir State Security Court.
25. On 14 June 2001 the Aydın Public Prosecutor filed a bill of indictment with the Aydın Criminal Court, charging the applicants with causing grievously bodily harm to third persons.
26. On 4 December 2006 the Aydın Criminal Court acquitted the applicants. The court noted that the persons who had been shot could not identify the applicants as the perpetrators of the shooting. It held that there was insufficient evidence in the case file to conclude that the applicants had been involved in the shooting.
27. On 26 February 2001 the applicant met his representative in the Aydın prison. The applicant complained about the ill-treatment he had allegedly suffered in police custody. He asked his representative to secure him a medical examination.
28. On 2 March 2001 the applicant’s representative filed a petition with the İzmir Public Prosecutor’s office, requesting the latter to order the medical examination of both applicants. He alleged that, during the applicants’ detention in police custody, they had been subjected to various forms of ill-treatment, including hanging by the arms, which still caused them pain and had left marks on their bodies. He further stated that the applicants had previously been examined by doctors who had turned a blind eye to these marks and had failed to draft accurate medical reports. He warned that an immediate medical examination was necessary since the traces of ill-treatment risked disappearing.
29. On the same day, the Aydın Public Prosecutor sent a letter to the Aydın Prison Administration, requesting the latter to send the applicants to Aydın State Hospital for medical examinations. He further asked the prison administration to provide him with the medical reports concerning the findings on the applicants’ bodies so that he could verify whether they had been subjected to ill-treatment.
30. On 29 March 2001 the first applicant was taken to a clinic attached to the Aydın Governor’s office. A doctor examined the applicant and drafted a report in which he noted that there was no sign of ill-treatment. He recommended that the applicant undergo a medical examination by a neurologist.
31. On 30 March 2001 a doctor at the Aydın State Hospital drafted a report on the first applicant’s neurological examination. He noted that there were no pathological findings in respect of the applicant.
32. According to the first applicant’s submissions, on the same day, another doctor at the hospital took an x-ray of his neck. The applicant further submitted that the doctor had noted in his report that he was suffering from cervical disk syndrome. The doctor sent the applicant’s x-ray to the Aydın prison.
33. On 4 April 2001 a doctor at the Aydın State Hospital prescribed a hard cervical collar for the first applicant. According to the minutes of the hearing before the Aydın Criminal Court held on 26 July 2001, the applicant appeared before the court wearing the collar.
34. On 10 May 2001 the applicant filed a complaint with the Aydın Public Prosecutor’s office against the police officers who had allegedly illtreated him, and the prison authorities, who had failed to arrange his transportation to a hospital for medical examination. He also complained about the doctors who had not examined him in accordance with the regulations and had failed to note his injuries in their reports.
35. On 23 May 2001 a doctor prescribed anti-inflammatory medicine (Tilcotil) for the applicant.
36. On 5 June 2001 the applicant stated before the Aydın Assize Court, within the context of his defence concerning the case brought against him before the İzmir State Security Court (see paragraph 14 above), that he had been subjected to torture and had suffered from severe pain in his neck as a result. He further maintained that he could not receive appropriate medical treatment since he was detained.
37. On 23 October 2001 the Aydın Public Prosecutor issued a decision to discontinue the criminal proceedings against the police officers since no sign of ill-treatment had been detected on the applicant’s person. In his decision, the public prosecutor relied exclusively on the medical reports issued in respect of the applicant on 15, 16 and 21 February 2001 and the medical report issued during the investigation.
38. On 9 January 2002 Mr Böke filed an objection with the Nazilli Assize Court against this decision. He maintained that he had worn a cervical collar for three weeks. He further contended that the cervical X-ray, the medical report diagnosing him with cervical disk syndrome and the prescriptions had not been given to him. Nor had they been included in the investigation file.
39. On 5 February 2002 the Nazilli Assize Court dismissed the applicant’s objection. The court considered that the decision to discontinue the proceedings was justified given the lack of sufficient evidence capable of substantiating the applicant’s allegations of ill-treatment.
40. A full description of the law and practice at the relevant time may be found in Batı and Others v. Turkey, (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV (extracts)) and in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31 and 37-44, 27 November 2008).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 3