ITEMID: 001-5424
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: HOFSTÄDTER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian citizen, born in 1948. He is a farmer residing in Guntramsdorf (Austria). Before the Court he is represented by Mr. E. Proksch, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 February 1966 the Lower Austrian District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") instituted consolidation proceedings (Zusammenlegungsverfahren) for Guntramsdorf.
In December 1966 the applicant received several parcels of land situated in Guntramsdorf as a donation from third persons. In February 1967 and April 1967 he bought further land in Guntramsdorf.
On 17 October 1967 the District Authority, on the basis of a draft consolidation plan, ordered the provisional transfer of compensation parcels. This measure also affected several parcels of the land owned by the applicant and his father. According to an agreement concluded with the District Authority the applicant's father, who has the same name as the applicant, Franz Hofstädter, and had also acted on the applicant’s behalf, agreed in August 1967 to the exchange of several parcels of land. The decision of 17 October 1967 was served on the parties concerned, not by mail but by a circular letter which an employee of the Guntramsdorf Municipal Office (Gemeindeamt) served on the parties by visiting them. Acknowledgements of receipt were signed.
On 26 June 1973 the District Authority by a circular letter informed the 26 owners of land concerned by the consolidation proceedings that a consolidation plan had been drawn up which could be inspected at the Guntramsdorf Municipal Office between 16 and 30 July 1973. During this period appeals against the consolidation plan could be lodged. This circular letter was again not served by mail but by an employee of the Municipal Office. On the acknowledgement of receipt under No. 24 the applicant’s mother is mentioned and there is a signature beside her name. Under No. 22 there is the name “Hofstädter Franz” and the address Berggasse 84. Beside his name is a signature which seems to be identical to the one beside No. 24.
The applicant claims that he did not receive the circular letter. It had been served on another person bearing the same name as the applicant and who had died in the meantime. According to the Government, the circular letter was properly served on the applicant and his mother had signed the receipt in his place.
The applicant's father filed an appeal against the consolidation plan which he later withdrew. No appeal by the applicant is recorded in the files.
On 26 February 1979 the Mödling District Court (Bezirksgericht), acting as the land registry, amended the land register according to the consolidation plan. This decision was served on the applicant.
On 13 November 1980 the District Authority issued a decree (Verordnung) by which the consolidation proceedings were formally terminated. This decree was published in the official gazette, published at the Guntramsdorf Municipality Office and the District Authority and entered into force on 29 November 1980.
On 1 May 1984 the applicant sent a letter to the District Agricultural Authority. He submitted that he still maintained an appeal he had lodged on 19 July 1973 and that the amendments entered on the land register were incorrect or invalid. He further announced that after the harvest in 1984 he would cultivate his previous parcels of land and requested the District Authority to re-establish the former borders.
On 29 May 1984 the applicant appeared before the District Authority. He submitted a copy of his appeal of 19 July 1973 and stated that he had handed over the appeal to the civil servant who had directed the land consolidation proceedings. He was informed that no appeal had been found in the files, that by the decree of 13 November 1980 the land consolidation proceedings had been terminated and that therefore no further decision could be taken. According to the copy of the appeal handed over to the officer of the District Authority, the applicant had complained that certain parcels of his land were too far away from the land he had received in compensation and that he should keep other parcels which were closer to his farming estate.
On 12 July 1984 the District Authority, referring to the applicant’s letter of 1 May 1984, informed him that no appeal by the applicant against the consolidation plan had ever been received by the authority. The proceedings had become final (rechtskräftig), the land register had been amended accordingly and no further decision relating to the land consolidation proceedings could be taken. The applicant was advised to refrain from any interference with other people’s land as this would only create serious problems for him.
Four years later, on 18 March 1988 the applicant, assisted by counsel, requested the District Authority to resume the consolidation proceedings and, in particular, to serve on him the District Authority's circular letter of 26 June 1973 or, alternatively, the consolidation plan, so that he could appeal against the plan.
On 31 May 1988 the District Authority rejected the applicant's request for lack of competence. On the applicant’s appeal, the Lower Austria Regional Land Reform Board (Landesagrarsenat - "the Regional Board") on 10 January 1989 quashed this decision. On 7 April 1989 the District Authority again rejected the applicant's request and found that, after the publication of the decree of 13 November 1980, no further claims concerning the consolidation proceedings could be made.
On 30 May 1989 the Regional Board dismissed the applicant's appeal and confirmed the District Authority's decision. It noted that, under Section 28 of the Lower Austrian Agricultural Land Planning Act (Flurverfassungs-Landesgesetz), consolidation proceedings have to be terminated by a decree once all the plan’s measures, including the changes in the land register (Grundbuch), have been carried out.
On 6 March 1991 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant's complaint as it found that it had no prospect of success and referred the case to the Administrative Court (Verwaltungsgerichtshof). The Constitutional Court also found that it had no doubts as to the constitutionality of the decree of 13 November 1980 since any alleged deficiencies in the communication of the circular letter of 26 June 1973 could no longer affect the lawfulness of the decree by which the consolidation proceedings had been concluded.
On 16 November 1993 the Administrative Court dismissed the applicant's complaint and confirmed the District Authority's reasoning. The Administrative Court found that, as a consequence of the entry into force of the District Authority's decree of 13 November 1980, the land consolidation authorities no longer had jurisdiction. Thus the land consolidation authorities were no longer competent to serve the consolidation plan on the applicant.


ITEMID: 001-58736
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF NUUTINEN v. FINLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;No violation of Art. 8;Not necessary to examine other complaints under Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;Gaukur Jörundsson;R. Pekkanen
TEXT: 7. In 1987 the applicant was convicted of having caused danger to others and sentenced to one year's imprisonment. In 1990 the Kuopio City Court (raastuvanoikeus, rådstuvurätten) convicted him of attempted manslaughter and sentenced him to three years' imprisonment. The court had regard to an opinion on his mental state submitted by the Unit for Forensic Psychiatry of the Kuopio County Prison on 29 June 1990 as well as to a related opinion of the National Medico-Legal Board (lääkintöhallitus, medicinalstyrelsen) of 11 July 1990. The Board had concluded that the applicant had committed the offence while not fully in control of his faculties but that he was not in need of psychiatric care.
8. On 21 January 1992 the Kuopio City Court convicted the applicant of having threatened and assaulted his then girlfriend H and of having subjected her to coercion. Those offences were found to have been committed while he was not fully in control of himself during H's pregnancy in October 1991, when their relationship had been ending. The applicant was sentenced to three months' imprisonment.
9. In March 1992 H gave birth to a daughter, I. The two subsequently moved from Kuopio to Helsinki. In November 1992 the applicant was released from prison and recognised I as his child. In the light of H's objections a judge of the Kuopio City Court refused to confirm the recognition.
10. On 30 November 1992 the Population Registration Authority (väestörekisterikeskus, befolkningsregistercentralen) granted a request by H that her and I's address would not be disclosed for marketing, polling or addressing purposes.
11. In an action of 21 September 1993 the applicant requested that his paternity in respect of I be confirmed, that custody of her be shared and that she be granted a right to see him every second weekend from Friday to Sunday night. In addition, the applicant requested access arrangements enabling I to spend part of the annual holidays with him. The Kuopio City Court's summons was served on H on 13 October 1993, the first hearing having been fixed for 14 January 1994.
12. Before the City Court H contested the paternity claim and objected to joint custody and to any form of access between I and the applicant. The hearing was adjourned until 6 May 1994, the City Court having ordered the parties to deliver blood samples by 8 April 1994 on pain of an administrative fine (uhkasakko, vite) in the amount of 1,000 Finnish marks (FIM). H was also under an obligation to have samples delivered by I.
13. In April 1994 H married another man.
14. Taking note of H's failure to deliver blood samples, the City Court, on 6 May 1994, adjourned the proceedings until 9 September 1994. H was ordered to produce the samples by 12 August 1994 on pain of a further administrative fine in the amount of FIM 2,000. At its hearing on 9 September 1994 the City Court adjourned the proceedings until 16 December 1994, having decided to seek opinions on the question of access both from the Kuopio Social Welfare Board (in respect of the applicant) and from the Helsinki Social Welfare Board (in respect of H and I).
15. On 2 December 1994 the Helsinki Social Welfare Board requested that the time-limit for the submission of its opinion be extended until 31 May 1995 so as to enable it to carry out a thorough investigation. The City Court then requested the Board to provide a preliminary opinion by 14 December 1994.
16. In its opinion of 12 December 1994 the Kuopio Social Welfare Board noted that the applicant did not wish to be in contact with H and her new husband and was willing to accept that the authorities act as intermediaries during an initial period of access. The applicant further considered that the initial meetings should take place in the city or town where his daughter was resident.
17. In its preliminary opinion of 14 December 1994 the Helsinki Social Welfare Board suggested that the examination of the access question be adjourned until the end of May 1995 so that a solution convenient to the child could be found in these exceptional circumstances. The Board alluded to H's strong fear of the applicant and to her new pregnancy expected to reach its term in December 1994.
18. On 16 December 1994 the Kuopio District Court (käräjäoikeus, tingsrätten; the former City Court) confirmed the applicant's paternity in respect of I (which was no longer disputed by H). On an interim basis, right of access in respect of the child was granted for two hours on the last Saturday of March, April and May 1995. The meetings were to take place in Helsinki on the premises of an association in this field. The final decision in respect of custody and access was adjourned until 2 June 1995.
19. In a written opinion of 2 March 1995 drawn up for the purposes of the access proceedings Dr V, a child and youth psychiatrist, stated as follows:
“[H], [I], [H's husband] and [their son] have paid a visit to my practice.
[H] has shown me a number of documents relating to certain court proceedings; in part to the [access proceedings] and in part to [the applicant's assault on H]. It transpires from the documents that the intention is to organise unsupervised meetings between [I] and [the applicant].
On the basis of the above material I must, as an expert, oppose the meetings in question until further notice. Both supervised and, in particular, unsupervised meetings would amount to a flagrant violation of the best interests of the child and would subject [I] at least to a serious mental and possibly also physical danger and could damage her mental development to an extent which would be difficult to treat.
This opinion is of a preliminary character because I am currently examining the matter [more] thoroughly. The examination will last a few months, following which I will be prepared to submit a more detailed and more reasoned opinion. ...”
20. In a letter of 22 March 1995 the Helsinki Social Welfare Authority informed the applicant that the meeting between him and the child fixed for 25 March 1995 would not take place. H had informed the Social Welfare Authority that she had no intention of bringing I to the meeting-place, the reason being that she feared that the child might be subjected to “something harmful”. The Social Welfare Authority's attempts to convince H to comply with the court order had been unsuccessful.
21. On 18 April 1995 the applicant lodged a request for enforcement with the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa, acting as Chief Bailiff (ulosotonhaltija, överexekutor). He referred to H's failure to bring I to the meeting fixed for March. Moreover, a leading official of the Helsinki Social Welfare Authority had informed the applicant that H was keeping his paternity secret from the child.
22. In a letter of 21 April 1995 the Helsinki Social Welfare Authority informed the applicant that H would not bring the child to the meeting fixed for April either. This letter had been preceded by a social welfare official's telephone calls to the applicant and H. The official had suggested to H that a plain-clothed police officer could attend the meeting. H had refused, indicating a wish to attend the meetings herself. When informed that this wish could be accommodated, H had retracted her consent, at least in respect of the April meeting. When requested to state her position in respect of the May meeting, H had thought her answer would remain negative.
23. On 18 May 1995 the Helsinki Social Welfare Authority informed the applicant that H would not bring the child to the May meeting either.
24. On 22 May 1995 the applicant repeated his enforcement request, referring to H's failure to bring I to the April meeting.
25. On the same day H requested that the Helsinki Registry Office (maistraatti, magistraten) order her and the child's address to be kept secret in accordance with the 1993 Population Data Act (väestötietolaki, befolkningsdatalag, no. 507/1993). H referred to the applicant's conviction in 1992 and suspected that he was threatening the lives of her and the child. On 24 May 1995 the Registry Office ordered that the address of H and I should be kept secret for two years. This order was later extended.
26. On 29 May 1995 O.A. and R.K., Office Director and Senior Social Welfare Officer of the Family Advice Centre of the Helsinki Social Welfare Authority, submitted the final opinion to the Kuopio District Court on the question of access. They noted H's strong fear and suspicions in respect of the applicant and his intentions. H seemed to fear that the meetings between the applicant and his daughter would cause physical or psychological harm to the child or her new family. In the explosive situation at hand it would be difficult to organise the visits in an atmosphere which could be beneficial to the child. In the long term visits were nevertheless to be aimed at, as it was in the child's best interests to meet her father in secure conditions and to be able to form her own opinion of his good and bad features. Regrettably, it had proved impossible to have any of the interim access arrangements enforced. This had significantly prevented the officials from forming their opinion of the applicant's abilities to relate to his child.
27. A summary by the Family Advice Centre dated 18 November 1996 indicated that, prior to drawing up the opinion of 29 May 1995, officials had met H three times together with the child and once also together with the grandmother. The officials had intended to request investigations by the Family Advice Clinic (perheneuvola, familjerådgivningen) but H had already contacted a private child psychiatrist (Dr V), on whose preliminary opinion she had relied early on, refusing to comply with the interim access arrangements. She had categorically refused to accept any such access, even when it had been proposed to organise the meetings at the Family Advice Centre in the presence of a police officer. She had feared for her own and the child's safety and had considered that access would not be in the child's best interests. She had not wanted any information about the child to be given to the applicant. She had referred to his criminal record, the 1990 opinion on his mental health and the threats he had addressed to her family. The social welfare official had concluded that the parents' relationship was negative and filled with hatred. The applicant had been contacted by telephone and letter as he had found it unnecessary to attend a meeting with the social welfare officials. Occasionally, he had been very aggressive and threatening towards the officials. The Family Advice Centre's summary concluded that in the light of the information available at the time the Helsinki Social Welfare Board had been unable to formulate any clear proposal to the Kuopio District Court in respect of access rights.
28. On 2 June 1995 the District Court adjourned the access proceedings until 15 June 1995 at the request of H. In its decision of the latter date the District Court afforded custody of the child solely to H and granted the child the right to meet with the applicant for two hours on the last Saturday of every other month. The District Court furthermore ordered H to pay the administrative fine imposed on 14 January 1994. The District Court had at its disposal Dr V's final opinion of 17 May 1995 in which he had stated, inter alia, as follows:
“... I have met [I] twice and [H], her husband and second child on three occasions. ... [The applicant] refused to see me ... but spoke to me over the telephone. ...
... [I] is strongly attached to her mother and her stepfather, whom she wishes to call her father.
The conversation with [the applicant] was rather original. He was ... rather agitated and paranoid and unable to explain why. He refused to cooperate, although I explained that this would have been very important and in the interests of his child. Instead he threatened me with ... court proceedings and negative publicity; ... At the beginning of the conversation he lied to me, saying that the person answering the telephone was a neighbour. His paranoia was illustrated by accusations against everyone; everyone seemed to be wrong and to be persecuting him; only he was right. This fits well with the impression one gets from the documents, namely that [he] very easily becomes aggressive and that his ability to control his impulses is very poor. These factors combined with his paranoid attitude and feeling of always being right makes him very dangerous as regards [I].
... I consider it very likely that the planned meetings between [I] and [the applicant] will seriously damage at least [I's] mental development. They might also endanger her physical health. I continue to be of the opinion that [H] ... should not agree to any such experiments ... at the expense of the child's future. [The applicant] must first show that he is able to create a secure and good relationship towards [H]; only subsequently can meetings of this kind be contemplated. ...”
29. As regards the question of access the Kuopio District Court found as follows:
“According to the opinion of the ... Helsinki Social Welfare Authority, [I] is a well-balanced child with a trusting attitude towards adults. Witness [V] has stated in his opinion that the tests carried out by [M.H.], Chief Psychologist, and [V's own] psychological interviews have shown that she is well cared for and mentally balanced and that she has developed and continues to develop well ... According to [V], [I] is a healthy and happy child. [He] is of the opinion that [the applicant] cannot be granted access rights ..., since [H] is afraid of meeting [him] and [I] can sense that fear on the part of her custodian.
Bearing in mind that the three-year-old [I] is a well-balanced child, who is behaving in a manner which is adequate for her age, short meetings between her and her biological father and other strangers cannot be considered harmful to her, provided [her] custodian is able to support her mentally in connection with the meetings. There is thus no reason to prohibit access ... completely. ...
For these reasons, ... the District Court finds that [I] is entitled to meet her father and to stay in contact with him. ...”
30. The District Court specified that the meetings between the applicant and I were to take place at a children's centre in Kauniainen (near Helsinki), where the meetings could also be supervised. Both parties appealed against the judgment, the applicant seeking more extended access and H opposing access altogether.
31. On 4 July 1995 the County Administrative Board appointed an official of the Helsinki Social Welfare Authority to act as conciliator in the enforcement proceedings. She was ordered to submit her report by 1 August 1995. H's lawyer informed the conciliator that H could not be reached in July 1995, since she was on holiday.
32. On 19 July 1995 the conciliator requested to be replaced by another official, the applicant having objected to her appointment as she had been involved in drawing up the Helsinki Social Welfare Authority's opinion to the Kuopio District Court.
33. On 21 July 1995 the County Administrative Board appointed the suggested official to act as conciliator and ordered her to submit her report by 15 August 1995. H informed the conciliator that she wished the matter to be handled by her lawyer, who would be on holiday until 15 August 1995.
34. On 10 August 1995 the applicant repeated his enforcement request and referred to H's failure to bring I to the July meeting.
35. In her report of 21 August 1995 the conciliator found that conciliation had to be excluded, given the complete deadlock. H was categorically opposed to any access between I and the applicant and had refused even to discuss the matter in person with the conciliator. The applicant, for his part, was approaching the matter so aggressively and expressing such threats that it rendered any dialogue difficult. Even his telephone calls to the conciliator had been impertinent and had contained threats.
36. Heard in writing by the County Administrative Board, H referred, inter alia, to the applicant's criminal convictions and prison sentences as well as to the views of Dr V. In his rejoinder the applicant essentially considered that such material was irrelevant for the purposes of the enforcement proceedings.
37. On 19 September 1995 the County Administrative Board rejected the applicant's request for enforcement of the initial access arrangements, noting that the District Court's interim order of 16 December 1994 had been replaced by its final decision of 15 June 1995. The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten).
38. On 29 September 1995 the Court of Appeal of Eastern Finland, in response to the parties' appeal in the main proceedings concerning custody and access, made some minor changes in respect of the implementation of the access rights. Both parties sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen).
39. On 7, 8 and 9 December 1995 the applicant repeated his enforcement request, referring to H's failure to bring I to the September and November meetings.
40. On 19 December 1995 the Helsinki Court of Appeal, acting as appellate body in the enforcement proceedings, quashed the County Administrative Board's decision of 19 September 1995 and ordered it to reconsider the applicant's request as comprising a request for enforcement also of the access arrangements ordered on 15 June 1995.
41. The County Administrative Board joined the remitted request and the applicant's fresh request for enforcement and again heard H in writing. The County Administrative Board summarised her statement, inter alia, as follows:
“... [The applicant's] intention has clearly been to harass [H] by requesting the imposition of administrative fines. The imposition of fines would not be in the best interests of the child, since [H's] financial possibility of caring [for I] would thereby be significantly jeopardised. The courts' finding that the biological father's rights are so strong that they must be given more weight than the experts' views on the best interests of the child is astonishing. Both the social welfare officers of the City of Helsinki and child psychiatrist [V] have been of the opinion that [access between I and the applicant] would not at this stage be in the best interests of the child.”
42. On 13 February 1996 the County Administrative Board ordered H, on pain of an administrative fine of FIM 5,000, to comply with the access arrangements ordered on 15 June 1995 and upheld on 29 September 1995. The County Administrative Board found that H had not put forward any acceptable reason for her refusal to bring I to the meetings fixed for July, September and November 1995. Moreover, the Supreme Court had not suspended the enforcement of the decision of 29 September 1995 of the Court of Appeal of Eastern Finland. Finally, the expert views to which H had referred, allegedly showing that enforcement would not be in the child's best interests, had already been known to the first-instance court in the civil proceedings regarding access and custody. That material could therefore not be invoked at the enforcement stage.
43. On 7 March 1996 the Supreme Court refused leave to appeal in the main proceedings concerning custody and access.
44. On 7 May 1996 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjointen) found that the Kuopio District Court had not postponed the first set of the main proceedings unnecessarily, given the failure by H to produce the necessary blood samples and the District Court's requests for opinions from the social authorities.
45. In response to the applicant's further request for enforcement the County Administrative Board, on 14 October 1996, ordered H to pay the fine of FIM 5,000 imposed in February 1996 and directed her to comply with the access arrangements on pain of a further fine of FIM 8,000. The County Administrative Board noted that the address of the centre where the meetings were to take place had changed. However, even after H had been informed of the new address (on 4 June 1996) she had refused to comply with the arrangements. She could also have verified the possible supervision of the meetings by contacting the centre directly.
46. In December 1996 the applicant brought fresh proceedings before the Helsinki District Court, seeking to obtain shared custody of I and extended access rights. H objected and sought to have the access rights revoked. She invoked her and her family's right to respect for their private and family life within the meaning of Article 8 of the Convention. She had now told her daughter that, being her biological father, the applicant wished to see her. The daughter, however, had allegedly not been interested in meeting him. H furthermore referred the applicant to her parents' address in Kuopio, where he could send presents intended for his daughter without having to know her whereabouts.
47. On 11 December 1996 Chief Inspector P.-L.H. of the Ministry for Social Welfare and Health Affairs requested the Deputy Senior Physician of the Kuopio Social Welfare and Health Centre to forward copies of the applicant's patient records. Reference was made to the drafting of the Ministry's opinion to the Ministry for Foreign Affairs in respect of his application to the Commission. According to P.-L.H., it had transpired from the documents already obtained that the centre in question was in the possession of records pertaining to the applicant's mental health which were of major importance to the Government's observations to the Commission. The request was based on sections 56 and 58 of the 1982 Social Welfare Act (sosiaalihuoltolaki, socialvårdslagen, no. 710/1982) and section 13, subsection 3(1), of the 1992 Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lagen om patientens ställning och rättigheter, no. 785/1992). Copies of the requested records were subsequently disclosed to the Ministry.
48. As from 1 December 1996 a request for enforcement of access rights was to be lodged with a district court which could also order that a child be escorted to meetings for enforcement purposes. In January 1997 the applicant requested the Helsinki District Court to order such enforcement.
49. By letter of 23 January 1997 Chief Inspector P.-L.H. forwarded to the Ministry for Foreign Affairs the request of counsel for H to obtain copies of the applicant's submissions to the Commission and the Government's observations in reply. H had argued that this material would be of relevance both to the enforcement proceedings and the second set of custody and access proceedings which the applicant had just initiated. P.L.H. stated, with reference to the material obtained by the Ministry for Social and Health Affairs, that H would have good reasons to propose that the District Court order a fresh conciliation and obtain a new opinion from the Social Welfare Board.
50. On 11 February 1997 the Helsinki District Court appointed two conciliators of the Western Social Welfare Centre of Helsinki (R.C., Senior Social Welfare Officer, and E.B., a psychologist of the Family Advice Clinic) and ordered them to submit an opinion by 4 March 1997. The conciliators met separately with the parents and, as suggested by H, also planned on interviewing the child.
51. On 12 February 1997 the Helsinki Court of Appeal upheld the County Administrative Board's decision of 14 October 1996 in the first set of enforcement proceedings.
52. In their report of 9 March 1997 the conciliators noted, inter alia, that in spite of her argument that it was important to ascertain the child's own opinion H had refused to bring the child to a meeting with them. The applicant, for his part, had demonstrated in the course of the conciliation that he could become very aggressive. He had stressed his own intelligence and good health. In his view his current situation was simply a result of the protracted access proceedings. On this point the conciliators noted, however, that already in 1990 he had been diagnosed as suffering from a mental disturbance. In his opinion the conciliators were always siding with H and the conciliation was only a means of prolonging the proceedings. He did not trust the Helsinki Social Welfare Authority or the judicial organs. He had threatened court proceedings and publicity. The conciliators continued as follows:
“It is of course natural that [the applicant] is frustrated ..., having tried in vain to meet his child. However, this does not ... explain such a strong aggressive behaviour. [The applicant's] suspicions also showed in that he recorded all telephone conversations and [our] meeting. ...
[The applicant] emphasised the child's right to know who her father is and to meet him. However, the fact that [H] has refused to comply with the access arrangements does not change the fact that [the applicant] is a complete stranger to the child. [The applicant's] lack of understanding is reflected, for instance, in his refusal to accept that the child could bring along a support person to the meetings, his reason being that he himself has to come to the meetings alone. ...”
53. The conciliators concluded that it would be in I's best interests that the meetings with the applicant be organised after the child had been properly prepared for them and would feel calm and safe. Otherwise the child would be under a duty to meet the applicant instead of enjoying a right to this effect.
54. Apart from interviewing the applicant and H the conciliators had also heard one of the previous conciliators as well as Chief Inspector P.L.H., the mother of H as well as the supervisor at the centre where I's meetings with the applicant should have taken place. With reference to Chief Inspector P.-L.H.'s opinion that the conditions for the meetings should be revised, the conciliators attached a secret memorandum containing information obtained by the Ministry for Social and Health Affairs which had not been at the courts' disposal earlier. According to the memorandum, Chief Inspector P-L.H. had obtained, while preparing the Government's observations on the application before the Commission, various patient records indicating that the applicant had been suffering from mental problems for years. When the conciliators had raised this point with the applicant, he had become very aggressive, contending that he had no such problems. The access dispute had begun to affect his nerves and his doctor had rightly been concerned about that, not about any mental problems. The applicant had again threatened court proceedings and publicity. He had refused even to consider psychiatric care or therapy. His language had been “unbelievably inappropriate”.
55. The District Court heard the applicant, H, two witnesses on the applicant's behalf and conciliator R.C. The applicant contended that he had not behaved violently in recent years. Nor was he in need of therapy, care or medication against his alleged mental problems. The witnesses on his behalf testified along the same lines. Having been unable to interview the child, conciliator R.C. found herself unable to state any view as to whether the meetings would be in the child's best interest.
56. In its decision of 7 April 1997 the District Court found that the testimonies by the applicant's witnesses could not refute the medical indications relating to his mental state. Those indications did not, however, show that enforcement of the access arrangements would be contrary to the interests of the child, bearing in mind the limited access and the meeting place. The court was composed of one presiding professional judge and three lay members.
57. The District Court dismissed the applicant's request that the child be brought to the meetings. Having regard to the attitude of H, the District Court found it most likely, however, that the court-ordered access would not take place despite any changes in the arrangements. The fact that the child had never met the applicant could therefore be seen as a weighty reason for ordering the child to be brought. On the other hand, such a measure could not be the right way for the child to get to know the applicant. Instead the child was to be given a possibility to get to know him gradually in conditions where she would feel that this would happen on a voluntary basis. The District Court therefore concluded that there were no weighty reasons militating in favour of escorting the child to meetings and ordered that a professional supervisor as well as H and/or another person close to the child should attend the child's meetings with the applicant for six months. The applicant had agreed to those changes. The District Court ordered H to comply with the modified arrangements on pain of a further administrative fine, this time automatically staggered in view of the special reasons at hand. The amount of the fine was FIM 10,000 at the outset, to be increased by FIM 2,000 for each of the three forthcoming meetings between I and the applicant with which H would refuse to comply (in May, July and September 1998).
58. The District Court furthermore ordered that the applicant could not bring other persons with him to the meetings. Neither could he record the meetings on audiotape, let alone film and/or photograph the other persons attending the meetings, without their consent. In order to keep I's whereabouts secret from the applicant, she and the accompanying persons would arrive at the meeting place ten minutes after the applicant and leave ten minutes before him.
59. The District Court finally waived the administrative fine imposed on H on 14 October 1996. It noted that, whereas the Kuopio District Court's decision of 15 June 1995 could have given the impression that the meetings would be supervised, the centre where they were to be organised had informed H that the meetings would not be supervised without an explicit court order to that effect. In these circumstances H had had reason to suspect that enforcement would not be in the child's best interests. Her refusal to bring I to those meetings had therefore been acceptable.
60. The District Court's decision was upheld by the Helsinki Court of Appeal on 14 August 1997 and leave to appeal was refused by the Supreme Court on 30 December 1997.
61. Meanwhile, at a preparatory hearing on 23 April 1997 the Helsinki District Court decided to adjourn the second set of the custody and access proceedings pending receipt of fresh opinions from the social welfare boards of Helsinki and Kuopio by 30 October 1997. It found no reason to amend or revoke the access rights on an interim basis.
62. In its opinion of 2 September 1997 the Kuopio Social Welfare and Health Board stated, inter alia, as follows:
“... At [our] meeting [the applicant] stated that his life situation had improved and that things were going well. He was unwilling to provide any further information to [the social welfare officers], stating that he would inform the court directly of his conditions.
[The applicant] called on 14 August 1997 to say he was moving away from Kuopio ... He refused to indicate his new place of residence.
In the light of the foregoing the Kuopio Social Welfare and Health Board is unable to put forward a recommendation concerning access, since there is no adequate information as to the conditions of the applicant. ...”
63. The Helsinki Social Welfare Authority was granted an extension until 31 December 1997 for the submission of its opinion. The opinion of that date stated, inter alia, as follows:
“[H] was interviewed at the Family Office on 11 July 1997 and briefly on 13 August 1997. She cancelled the [five] appointments reserved for her [between July and December 1997] ...
... The child has not been interviewed. [H] refused to bring [I] to the Family Office. Nor did she accept that [social welfare] officers pay a visit to her home, where the child could have been interviewed in familiar surroundings. [H] wishes to keep her family (her husband and children) outside the access dispute. ...
H objects to any meetings between I and [the applicant]. In her opinion [the applicant] has nothing positive to give to the child. On the contrary, she fears that [he] will frighten [I] with his uncontrolled behaviour. She considers [the applicant] to be mentally unstable and fears physical violence on his part. ...
H will not permit [the applicant] to see [I] until [the child] is ready for it and expresses a wish to that effect. If the child is ordered to be brought, [H] will leave home with the child. ... The child itself should have the right to decide whether or not it wishes to see its father. ...
... The officers in charge of this investigation have not met with [the applicant]. In telephone conversations his behaviour has been inappropriate and threatening towards the officers of the Family Advice Clinic. He has behaved in the same manner towards the conciliators of the ... Social Welfare Authority.
In the course of the investigation a meeting between [I] and her father could not be organised. Such a meeting might have produced valuable information with a view to assessing the success of future meetings. ... On the basis of the information now collected it is not possible to assess at what age the meetings could be successful with regard to the best interests of the child. The circumstances would at any rate have to be very secure. ... In her early teens [I] will herself be ready to decide ... on possible meetings with her father. ...”
64. In their opinion of 19 December 1997 (attached to the Helsinki Social Welfare Authority's opinion) psychiatrists M.L. and O.H. of the Family Advice Clinic of the Southern Social Welfare Centre stated, inter alia, the following:
“... We met I together with her mother on 28 October 1997 and the mother alone on 29 September 1997. We offered three different appointments to [the applicant] but he refused to attend. ...
We have not met the child separately and have not conducted any psychological examination, considering that this would not shed any further light on the matter.
The investigation is incomplete, since in respect of the father it was limited to telephone calls and letters received from him. It was not possible to arrange a meeting between the ... father and the daughter or a ... meeting between the mother, the daughter and the father, since the mother did not agree to such a meeting.
[The applicant] could not agree on a date for a meeting. At first he doubted whether he would be able to attend the meetings due to his studies and the long distance [between Helsinki and Rovaniemi]. Later he stated that he would not attend the meetings unless his daughter had been interviewed at [the Clinic] before him. When we offered ... to meet him after [I]'s visit ..., he refused, requiring that we arrange a meeting between him and [I]. ... Finally, [he] noted that under domestic law it was for the authorities of his place of residence to provide an opinion on his conditions.
During the telephone conversations [the applicant] ... occasionally used inappropriate and aggressive language towards us. It was not possible to have a dialogue with him. [His behaviour] did not reflect any real understanding of the world of a five-year-old girl or of the feelings and reactions which she could be facing if she met him in the current extremely tense conditions.
... A five-year-old child's perception of the world is still [that it is] identical to that of its parents ... Accordingly, even if [H and I's stepfather] were to support [I] in her meetings with her biological father, [the] internal fears and resistance she would sense in her [de facto] parents would place her in a situation of anxiety and contradiction.
Subjecting the child to the very difficult disputes between its biological parents could endanger her normal mental development. ...
... It would be very important for [I] that the legal battle between her biological parents cease. ...”
65. The applicant moved to Rovaniemi towards the end of 1997. In December 1997 he brought further enforcement proceedings before the Helsinki District Court, again referring to the exceptional circumstances which in his view required that the child be brought to the meetings. A preparatory hearing was held on 2 February 1998, by which time H and I had apparently moved to Oulu.
66. On 3 March 1998 the Helsinki District Court again dismissed the applicant's demand that the child be brought to the meetings. Neither the presiding judge nor any of the three lay members had examined the previous enforcement request decided on 7 April 1997. The District Court had again heard the applicant and H as well as psychiatrist M.L. of the Family Advice Clinic and also based itself on the Helsinki Social Welfare Authority's opinions of 29 May 1995 and 31 December 1997, the opinion of the Family Advice Centre of 19 December 1997 and the Kuopio Social Welfare and Health Board's opinion of 2 September 1997.
67. The District Court further ordered H to pay the administrative fines imposed on 7 April 1997 in the amount of FIM 16,000. She was also ordered to comply with the access arrangements on pain of a further automatically staggered fine. Access was now to take place in Oulu. The amount of the fine now imposed was FIM 20,000 at the outset, to be increased by FIM 6,000 for each of the three forthcoming meetings between I and the applicant which H would refuse to respect (in March, May and July 1998). Both parties appealed against the decision.
68. On 20 April 1998 the Helsinki District Court considered the applicant's fresh request for shared custody and extended access rights. It decided to hear him, H, two witnesses on the applicant's behalf (S.H. and K.P.) and four on behalf of H (Dr V, Dr O.H., M.H. and M.L.). H was to be heard in the applicant's absence, as her fear of the applicant might prevent her from supplying all the relevant information. The District Court dismissed a request by H that the applicant's aggressive behaviour be assessed by an expert. The oral evidence was taken on the same day. Neither the presiding judge nor any of the lay members had participated in the decisions of 7 April 1997 and 3 March 1998 in respect of the applicant's enforcement requests.
69. The District Court also had regard to the opinion on the applicant's mental state submitted by the Unit for Forensic Psychiatry of the Kuopio County Prison on 29 June 1990, the related opinion of the National Medico-Legal Board of 11 July 1990, Dr V's final opinion of 17 May 1995, the Helsinki Social Welfare Authority's opinion of 29 May 1995, the conciliators' opinion of 9 March 1997, the attached secret memorandum, the opinion of the Family Advice Centre of 19 December 1997, the Helsinki Social Welfare Authority's opinion of 31 December 1997 and the pre-trial investigation record of the Kuopio Police Department drawn up in November 1991 in respect of the applicant's offences against H.
70. In its decision of 29 April 1998 the District Court dismissed the applicant's request for joint custody, revoked the access arrangements and upheld the secrecy order in respect of the child's whereabouts. Having heard H orally in the applicant's absence, the District Court had become convinced that her fear of the applicant was genuine and primarily based on his assault and other offences committed in 1991, when H had been pregnant. This fear explained in a plausible manner why she had consistently refused to let I meet the applicant even under supervision. The testimony of witnesses M.H. and M.L. had further strengthened H's account of her fears.
71. The District Court furthermore found it established through the testimony of Dr O.H. that H was considering I's best interests by keeping the child out of her disputes with the applicant. Above all, H had been physically assaulted by him during her pregnancy. Her fears relating to that incident had not been dispersed despite the passage of time. Those fears would inevitably be passed on to I and any access at her age would produce distress and confusion which could lead to a permanent depression and anxiety. Access without any risks could take place once I was able to form her own opinion, namely at the age of 14 or 15. When telling I of her biological father, H had also stated that she did not want the child to meet with him, fearing “something bad” could happen. In the opinion of Dr O.H. the child would at any rate have sensed H's fears intuitively. During the investigation the applicant had cooperated with difficulty and had questioned Dr O.H.'s competence. According to Dr O.H., it would have been crucial to the investigation that the applicant be interviewed in the presence of I. The telephone conversations with him had not clarified his motives for wishing to see his child.
72. The District Court noted that Dr V's testimony had been consistent with that of Dr O.H. and found no reason to question Dr V's competence in the field. Moreover, the District Court's hearing of the applicant in person had strengthened the view that he was unable to distinguish between the child's interests and his own and was perceiving the child's access right as an obligation.
73. Finally, the District Court ordered that the conciliation report and certain passages of its decision which recounted the contents of that report should be kept confidential for a period of forty years.
74. In the light of the quashed access arrangements the Helsinki Court of Appeal, on 22 May 1998, dismissed the applicant's appeal against the District Court's decision of 3 March 1998 and relieved H of paying the administrative fine imposed on 7 April 1997 and upheld for payment on 3 March 1998.
75. In his appeal against the District Court's decision of 29 April 1998 in the second set of custody and access proceedings the applicant requested either that the case be referred back to the District Court for a further investigation into his daughter's conditions and his ability to relate to her, or that an oral hearing be held before the Court of Appeal. The applicant argued that since the mother's fears dated back to his assault in 1991 her fears during the recent years could only be of an imaginary character, given that the two had only met in the court room. By consistently defying the court-ordered access arrangements which had been decided and maintained in the best interests of the child H had eventually managed to have the child's access rights revoked. The applicant also demanded that he be given the necessary information allowing him to contact the child.
76. On 15 December 1998 the Helsinki Court of Appeal refused the applicant's appeal after rejecting his request for a remittal or re-hearing. In refusing to admit the proposed fresh evidence it noted, inter alia, that the applicant had refused to provide detailed information on his own situation at the time of the Kuopio Social Welfare Board's investigation in the autumn of 1997.
As to the merits of the appeal, the Court of Appeal found as follows:
“According to section 10 of [the Act on Child Custody and Right of Access (laki lapsen huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt, no. 361/1983)], 'a matter relating to child custody and right of access shall be resolved by keeping the interests of the child foremost in mind. To this end, special attention shall be paid to the manner in which custody and right of access may best be realised in the future'. Certain international conventions which are binding on Finland emphasise everyone's right to family life as well as the right of a child, who has been separated from a parent, to maintain regular and direct contact with both parents. However, the best interests of the child is a determining factor even in the application of these conventions, and this is explicitly provided for in Article 9, paragraph 3 of the Convention on the Rights of the Child.
According to the opinions of the social welfare authorities ... and the witnesses heard before the District Court, [I], who was born [in 1992], has been subjected to exceptionally strong conflicts between her parents. According to the opinions, a five-year-old child is not able to form an opinion of her own which would be distinct from the fears of her mother. Accordingly, meetings at this stage would cause anxiety and confusion in [I], possibly leading to more serious mental problems. During the consideration of the matter [the applicant] has not been able to make a distinction between the interests of the child and his own.
The Court of Appeal notes that on the basis of domestic law and international conventions the child has a right of access also in respect of the parent with whom he or she does not reside. If not considered to be in the best interests of the child, this right ... may be set aside by ... the authorities. A right for the parent to enjoy access in respect of his or her child can also be derived from the right to family life provided for in international conventions. In a case of this kind involving conflicting interests or rights the matter shall be decided in accordance with the best interests of the child.
Considering the above and the other reasons for the District Court's decision, the Court of Appeal finds ..., whilst recognising the importance ... of creating a father-child relationship between [I and the applicant] as early as possible, that in the present circumstances it is not in the best interests of [I] to grant the right of access requested by [the applicant]. ...”
77. On 23 February 1999 the Supreme Court refused the applicant leave to appeal.
78. On 11 November 1999 the applicant requested the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) urgently to investigate whether any public official had committed an offence in office, or had incited to such an offence, on account of the disclosure to the Ministry for Social and Health Affairs of the applicant's patient records at the Kuopio Social and Health Care Centre. The Ministry's request to obtain the material had allegedly not been founded on domestic law. Information emanating from this material had not only been relied on by the Government in their observations to the Commission but had also been conveyed to conciliator R.C. after the Ministry's Chief Inspector P.-L.H. had advised H to request a fresh conciliation report. The conciliator had conveyed the information further to the Helsinki District Court which had relied on it in its decisions of 7 April 1997 and 29 April 1998 with the result that the access rights had ultimately been revoked.
No decision has yet been forthcoming from the Parliamentary Ombudsman.
79. According to the 1975 Paternity Act (isyyslaki, lag om faderskap, no. 700/1975), a court shall collect, of its own motion, all necessary evidence in respect of a paternity investigation (section 30). To this end the court may order the child, the mother and the possible father or fathers to deliver blood samples on pain of an administrative fine. In case of non-compliance the fine shall be upheld for payment and a further fine may be imposed. Alternatively, the court may order that the person in question be brought by force to deliver the sample (sections 1-3 of the 1975 Act on Certain Blood and Other Investigations into Hereditary Features (laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista, lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper, no. 702/1975). Cases relating to the establishment or annulment of paternity shall be dealt with urgently (section 46 of the Paternity Act).
80. According to the 1983 Act on Child Custody and Right of Access, the child shall have the right to maintain contact with the parent with whom he or she is not living (section 2). The court shall place primary emphasis on the interests of the child and have particular regard to the most effective means of implementing custody and access rights in the future (sections 9 and 10). The court's interim orders and decisions are immediately enforceable, unless they state otherwise (section 17).
81. The 1975 Act on the Enforcement of Decisions Concerning Custody of Children and Access Rights (laki lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt, no. 523/1975 – “the 1975 Act”) was in force up to 1 December 1996, when it was replaced by Act no. 619/1996 (“the 1996 Act”). Under the 1975 Act enforcement proceedings were to be instituted before the Chief Bailiff which, before ordering enforcement, was to assign, as a conciliator, a person appointed by the Social Welfare Board or another suitable person to mediate between the parties with a view to enforcing the decision and to draw up a report. Such conciliation was to be aimed at persuading the person taking care of the child to comply voluntarily with his or her obligations under the relevant decision. Conciliation was not to be ordered if it was evident from previous attempts that it would be unsuccessful or, in the case of a custody decision, if immediate enforcement was in the child's interests and dictated by strong reasons (sections 4 and 4a).
82. If deemed necessary, the Chief Bailiff was to obtain opinions from State and municipal authorities and hear the child itself and others. The Chief Bailiff could also proceed to hear witnesses and experts and have the child examined by a physician (section 11).
83. The Chief Bailiff's decision could be enforced immediately and could include the imposition of an administrative fine for enforcement purposes (sections 5 and 13).
84. If, following a decision regarding access, the conditions had changed so significantly that a re-examination by a court would be in the best interests of the child, the Chief Bailiff was to dismiss the enforcement request (section 7).
85. Under the 1975 Act enforcement could not take place against the child's own wishes if he or she was twelve years of age or sufficiently mature for his or her wishes to be taken into account (section 6). The 1996 Act contains a similar provision (section 2).
86. According to the 1996 Act, a request for enforcement shall be lodged with the competent district court which shall normally appoint a conciliator to mediate and draw up a report (sections 6 and 8). The court may hear the conciliator, the child and others orally, obtain opinions from State and municipal authorities and order that the child be examined by a physician or other expert (section 12). The court shall dismiss the request if, in light of changed circumstances or for any other reason, enforcement would be manifestly contrary to the child's best interests (section 14).
87. The 1996 Act furthermore provides for the possibility of escorting the child to meetings with a view to enforcing access arrangements, if it is likely that access would not otherwise materialise and provided there are, from the point of view of the child's best interests, particularly weighty reasons (section 16). The conciliator or a representative of the social welfare authority must escort the child. He or she must request the presence of a person close to the child and, if necessary, that of a physician or other expert (section 24). All measures must be carried out without shocking the child. If enforcement is impossible owing, for instance, to the shock experienced by the child, it must be postponed (section 3).
88. In the drafting history of the 1996 Act the government proposed that a court could issue a standing escorted access order which would be valid for six months (see Bill no. 96/1995, pp. 44-45). Parliament's Standing Legal Affairs Committee did not accept this proposal. Considering that being escorted was stressful for the child, the Committee found that an escorted access order should only be issued for one meeting at a time (Committee Report no. 7/1996).
89. The district court may order the defendant either to hand over the child to the party seeking enforcement or to disclose the child's whereabouts on pain of an administrative fine (sections 15 and 17). For particular reasons, the fine may be automatically staggered, its final amount depending on the duration of the non-compliance (section 18). Certain provisions of the 1990 Act on Administrative Fines (uhkasakkolaki, viteslag, no. 1113/1990) are also applicable. Accordingly, the fine is fixed on the basis of all relevant circumstances and may be reduced for particular reasons. The district court may also quash and reconsider the imposition of a fine if the circumstances have changed, if important fresh evidence has been obtained or if the fine has been imposed by a manifestly incorrect application of the law (sections 8, 11 and 12).
90. The Act on Custody and Access Rights with regard to children does not compel a custodian to disclose a child's whereabouts to a parent who lacks custody. Under the Social Welfare Act, social welfare officials may not, without the consent of the person concerned or that of, for instance, his or her custodian, disclose personal and family information obtained in the performance of their duties. This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties (section 57). Thus the social welfare authorities are entitled to obtain, from a public body such as a municipal care centre, any material required for the performance of their duties (section 56). The confidentiality of patient records, as stipulated in the Act on the Status and Rights of Patients, may thereby be waived (section 13 of the said Act). A refusal to disclose information requested under section 56 of the Social Welfare Act constitutes an offence (section 58).
91. Under section 8 of the 1996 Act a conciliator must have access, to the same extent as social welfare authorities, to medical and other information as stipulated in section 56 of the Social Welfare Act. The conciliator may also seek executive assistance in gathering such information. The conciliator's report may contain information which should not be disclosed, bearing in mind the child's best interests. The court may disclose such information only to a party to the proceedings and to other authorities.
92. According to the 1987 Act on Personal Data Files (henkilö-rekisterilaki, personregisterlag, no. 471/1987), a registered person may prohibit the keeper of the register from disclosing his or her address (section 23). A custodian has the same right in respect of a child.
93. According to the Population Data Act, a registry office may, on request, order that an address may only be disclosed to authorities if the person in question has reason to fear for his or her own or his or her family's health or safety. The secrecy order may be granted for two years, following which it may be prolonged on an annual basis (section 25, subsection 4, as in force as from 1 June 1994).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-102806
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STARUCH v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Stanisław Staruch, is a Polish citizen who was born in 1972 and is currently detained in Chełm Prison. He was represented before the Court by Mr P. Sendecki, a lawyer practising in Lublin.
From 24 April 2003 to date the applicant has been serving a prison sentence in Chełm Prison.
The applicant submitted that throughout his detention he was held in overcrowded cells. By way of example, he submitted that he had been incarcerated together with five other detainees in a cell of about 15 m². The level of overcrowding was such that at times, and each time for a period of several weeks, he was forced to sleep on a mattress on the floor of his cell.
The applicant further submitted that overcrowding had resulted in increased tension, conflict and self-inflicted injuries among detainees as well as in the deterioration of the prison’s sanitary conditions.
The Government acknowledged that the applicant might have been temporarily placed in cells with a space of less than 3 m² per prisoner. They stressed, however, that the prison authorities had not been storing information as to the exact number of prisoners detained in each cell on specific days.
The Government submitted that during the applicant’s detention in Chełm Prison the prison authorities had never used measures of direct coercion against him. There had been no conflicts in the cells where the applicant had been serving his sentence.
More recently, the Government also submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission.
The applicant filed one complaint with the Governor of Chełm Prison (Dyrektor Zakładu Karnego), alleging overcrowding and inadequate conditions of his detention. On 23 October 2007 his complaint was dismissed as unfounded. In addition, the applicant submitted that, on many occasions, he had brought the issue of his detention conditions to the attention of the prison authorities by way of oral complaints.
The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.
(See Siedlecki and 9 other applications v. Poland, no. 5246/03).


ITEMID: 001-86963
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MOROKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy;Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1979 and lives in Krasnoyarsk.
5. In 2001–02 he stood trial for a drugs offence and was acquitted. He sued the State for compensation for the unfounded prosecution and pre-trial detention.
6. The case came before the Leninskiy District Court of Krasnoyarsk. By its judgments of 5 December 2003 and 21 September 2006 the court ordered the Ministry of Finance to compensate the applicant’s non-pecuniary and pecuniary damage. The judgments became binding on 2 February 2004 and 16 November 2006, but were not enforced immediately.
7. The judgment of 5 December 2003 was enforced on 21 October 2005 when the Ministry credited the judgment debt to the applicant’s bank account.
8. The judgment of 21 September 2006 which was enforceable as of 16 November 2006 was not enforced immediately. The writ of enforcement was sent by the court to the bailiff service two months and seven days after the judgment had become final. On the same date the bailiff service returned the writ to the court as it lacked competence to enforce this judgment under the relevant provisions of the Budgetary Code. Two months later, i.e. on 27 March 2007, the applicant sent the relevant documents to the Federal Treasury, and on 15 August 2007 the judgment debt was credited to the applicant’s bank account.
9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must honour a judgment in three months.
10. Chapter 25 of the Code of Civil Procedure allows a person to appeal in court against an authority whose actions breach his rights (Article 254). If the appeal is well-founded, the court will order the authority to make good the breach (Article 258).
11. Article 208 of the Code of Civil Procedure empowers a court to upgrade the amount of a judgment debt, if a creditor so asks.
12. Chapter 59 § 4 of the Civil Code obliges the State to compensate a person’s non-pecuniary damage caused by a breach of his property rights.
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-92865
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 2)
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;No violation of Art. 10
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant, a limited liability company with its seat in Vienna, is the owner of the daily newspaper Der Standard.
6. In its issue of 14 May 2004 Der Standard published an article in the domestic politics section under the heading “Gossip mongering” (“Kolportiert”). The article, which was entitled “A society rumour” (“Ein bürgerliches Gerücht”) commented on certain rumours relating to the marriage of Mr Klestil, the then Federal President. The article also appeared on the website of Der Standard. It read as follows:
“If the stories circulating between the outlying district of Döbling and the city centre are to be believed, there is only one topic of conversation at the moment among the socalled upper crust of Viennese society: the marriage of the departing presidential couple Thomas Klestil and Margot Klestil-Löffler [bold print in the original]. Rumour has it that not only is he about to leave office, but she is about to leave him. The latter claim has of course set tongues wagging furiously in bourgeois – and not-so-bourgeois – circles. People here like nothing better than to be able to express outrage about one of their own.
In addition to the allegedly less-than-blissful domestic situation on the Hohe Warte [the Federal President’s residence], there has been persistent gossip recently about the supposedly close ties between the First Lady, who is her husband’s junior by 22 years, and other political figures. Head of the FPÖ parliamentary group Herbert Scheibner [bold print in the original], for instance, is reported to be close to her (Scheibner has accompanied the presidential couple on a number of foreign trips). Ms Löffler is also said to be well acquainted with the husband of the Canadian ambassador (unsurprisingly, given her post as head of the American department of the Foreign Affairs Ministry).
The fact that the President’s wife took a few days off recently to organise the move from the official residence to the couple’s newly renovated home in Hietzing fuelled further speculation. So much so, in fact, that Klestil – never squeamish about putting his emotions on display – had the following pre-emptive statement published in his information bulletin, News [an Austrian weekly]: ‘Rumours of a separation are nothing but idle gossip’ he said. He added: As of 8 July we will be embarking on a new phase of our life together. Any assertions to the contrary are untrue.
Be that as it may, the people are concerned for the well-being of their President. Apparently, the public information desk of the President’s Office has recently had more callers than ever before enquiring about the state of the President’s marriage. And more than a few of the callers made their enquiries in the ultra-refined tones of Schönbrunn.”
7. The article was accompanied by a picture of Mr Klestil and Mrs Klestil-Löffler, looking in different directions.
8. On 18 May 2004 Mr Klestil and Mrs Klestil-Löffler brought proceedings under sections 6 and 7 of the Media Act (Mediengesetz) against the applicant company, claiming that the article published in Der Standard of 14 May 2004 reported on their marriage and family life and thus interfered with the strictly personal sphere of their lives.
9. By judgment of 15 June 2004 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) ordered the applicant company to pay compensation of 5,000 euros (EUR) to the first claimant, Mr Klestil, and EUR 7,000 to the second claimant, Mrs Klestil-Löffler. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimants’ costs.
10. The Regional Court, referring to section 7 of the Media Act, held that the applicant company had reported on the strictly personal sphere of the claimants’ lives in a manner that was likely to undermine them in public. It analysed the contents of the impugned article as alleging, on the one hand, that Mrs Klestil-Löffler intended to divorce and, on the other hand, that she had close contacts with two men, thus describing her as a double adulteress and Mr Klestil as a deceived husband. In reply to the applicant company’s defence that the article merely reported on a rumour, the Regional Court noted that even the dissemination of a rumour could breach section 7 of the Media Act, if it conveyed the impression that there was some truth in it.
11. As to the applicant company’s request to take evidence in order to show that the rumour had actually been spread at the time, the court noted that in cases concerning an infringement of the strictly personal sphere of a person’s life, section 7 § 2 of the Media Act excluded the proof of truth (Wahrheitsbeweis), unless the statement at issue was directly related to public life. Such a direct link would exist, for instance, where a publication reported on the state of health of the Federal President which might prevent him from exercising his functions. However, the state of his marriage did not have any bearing on his capacity to exercise his functions nor did it have any other link with public life.
12. In assessing the amount of compensation, the Regional Court had regard to the fact that Der Standard was a widely read newspaper and to the considerable degree of insult suffered by the claimants. In addition it noted that it was highly uncommon in Austria to report on (true or untrue) details of the private lives of politicians. Having regard to the above considerations and the need to deter other media from making similar publications, a relatively large amount of compensation appeared justified. The difference in the sums awarded was to the fact that the second claimant was described as a double adulteress, while the first claimant was “merely” depicted as a deceived husband.
13. The applicant company appealed. As a point of law it submitted that the Regional Court had wrongly refused its request for the taking of evidence. In its view the publication was directly related to public life within the meaning of section 7 § 2 of the Media Act. The claimants, being public figures, had made their private life part of their “marketing strategy”. Like no other presidential couple before, they had kept the public informed about their marriage, starting with the first claimant’s divorce from his former wife and his remarriage, to the second claimant. Moreover, the first claimant had relied heavily on family values during his first electoral campaign. He therefore had to accept that the public had an interest in being informed about his private life.
14. As regards points of fact, the applicant company argued that the Regional Court had wrongly assessed the contents of the article at issue. Read in its proper context, the article did not state that Mrs Klestil-Löffler actually intended to divorce and even less that she was an adulteress. On the contrary the article rather aimed at exposing the idle gossip propagated in certain upper-class circles. It clearly pointed to the absurdity of the rumour by explaining that the allegedly close ties of the second claimant with Mr Scheibner and with the husband of the Canadian ambassador had perfectly unsuspicious reasons. Seen in that light, the article did not even relate to the strictly personal sphere of the presidential couple but made fun of the gossip in bourgeois society.
15. As regards the sentence the applicant company claimed that the compensation awards were excessive.
16. While the appeal proceedings were pending, Mr Klestil died. By decision of 2 September 2004 the Vienna Regional Criminal Court discontinued the proceedings as regards Mr Klestil. On 9 December 2004 the Vienna Court of Appeal (Oberlandesgericht), on an appeal brought by Mr Klestil’s estate, quashed the Regional Court’s decision.
17. By a judgment of 20 January 2005 the Vienna Court of Appeal upheld the Regional Court’s judgment of 15 June 2004.
18. It confirmed that in the present case, the proof of truth was excluded by section 7 § 2 of the Media Act. The applicant company’s argument that the claimants were public figures and had exposed their private and marital life to the public eye like no other presidential couple before was not convincing. While the first claimant had relied on his family life and on his then marriage in his first campaign some twelve years ago, his marriage with Mrs Klestil-Löffler had not played a role in his second campaign nor otherwise during his second period in office. Moreover, his second and last period in office had been drawing to a close at the time of the publication. In sum, the Regional Court had rightly found that the publication at issue was not directly related to public life. Consequently, it had rightly refused to take the evidence proposed by the applicant company.
19. There was no basis for the applicant company’s assertion that the article was aimed at unveiling the hypocrisy of the so called upper crust of Viennese society or that it described the rumours about the claimants’ marriage as absurd. The Regional Court had rightly understood the article’s contents as conveying rumours about the Federal President’s marriage as if there was some truth in them.
20. Finally, as regards the amounts granted in compensation, the Court of Appeal found that deterring other media from similar publications was not a relevant criterion. Nevertheless the other considerations relied on by the Regional Court justified the compensation awards.
21. On 11 June 2004 Mr Scheibner brought proceedings under sections 6 and 7 of the Media Act against the applicant company in respect of the electronic version of the article, which had been published on the website of Der Standard and in respect of the print version. He alleged that the passage referring to him contained an untrue statement amounting to defamation.
22. By judgment of 20 July 2004 the Vienna Regional Criminal Court ordered the applicant company to pay EUR 4,000 to Mr Scheibner as compensation for the publication in the printed version of Der Standard and EUR 2,000 as compensation for the publication on the website. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimant’s costs.
23. The court, arguing along the same lines as in its judgment of 15 June 2004 (see paragraphs 10-11 above), held that the applicant company had reported on the strictly personal sphere of the claimant’s life in a manner that was likely to undermine him in public. It analysed the contents of the impugned article as alleging that the claimant, Mr Scheibner, who was a married man, had a close relationship with Mrs Klestil-Löffler and therefore described him as an adulterer. Thus, his strictly personal sphere was affected. However, it found that the publication did not amount to defamation within the meaning of Article 111 of the Criminal Code (Strafgesetzbuch).
24. As to the amount of compensation it considered that the insult as regards Mr Scheibner weighed less heavily than as regards the claimants in the first set of proceedings. In sum, compensation awards of EUR 4,000 as regards the publication in the paper version of Der Standard and EUR 2,000 for the publication on the website, which was less widely read, appeared appropriate.
25. The applicant company and Mr Scheibner appealed, whereby the applicant company relied on the same grounds as in its appeal in the previous set of proceedings.
26. On 22 December 2004 the Vienna Court of Appeal dismissed the applicant company’s appeal but partly granted Mr Scheibner’s appeal. It held that the impugned statement also breached Article 6 of the Media Act, since it fulfilled the objective elements of defamation as defined in Article 111 of the Criminal Code. The claimant was accused of adultery, which even in a liberal society was still considered an unlawful and dishonourable act. It considered however, that this had no influence on the amount of compensation to be paid, which was therefore upheld.
27. As to the applicant company’s appeal, the Court of Appeal again confirmed the Regional Court’s reading of the contents of the article. It added that the placement of the article in the domestic politics section and its presentation including the picture of the presidential couple supported this assessment. Furthermore, the appellate court noted that the applicant company had not argued before the Regional Court that the publication was directly related to public life within the meaning of Article 7 § 2 of the Media Act.
28. In any case, Mr Scheibner, though a public figure, had a right to respect for the strictly personal sphere of his life. Rumours about an alleged relationship between him and the wife of the Federal President had no link with his public functions and responsibilities and did therefore not justify the reporting at issue.
29. Once the judgment of the Court of Appeal had become final, Mr Scheibner brought proceedings under the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requesting an injunction ordering the applicant company to refrain from publishing any statement alleging that he had a relationship with Mrs Klestil-Löffler.
30. At the hearing of 22 April 2005 before the Vienna Commercial Court (Handelsgericht), the applicant company entered into a settlement with Mr Scheibner undertaking to refrain from publishing any such statement. The Commercial Court noted that according to constant case-law, a judgment under section 6 of the Media Act had binding effect in subsequent civil proceedings relating to the same facts. It ordered the applicant company to pay Mr Scheibner’s procedural costs.
31. The Commercial Court’s judgment was served on the applicant company’s counsel on 25 May 2005. The applicant company did not appeal.
32. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows:
“(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
(2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
(3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
33. Section 7 of the Media Act provides a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. In the version in force at the material time, it read as follows:
“(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 14,535 euros; ...
(2) The right referred to in paragraph 1 above shall not apply where:
(i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies;
(ii) the statements published are true and are directly related to public life;
(iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or
(iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-5561
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: JAKOB v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1925, residing in Vienna. She is represented before the Court by Mr Graff, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant suffers from cancer. Since an operation in 1988 she has been treated with “Ukrain”, a medicine which is not registered in the Austrian pharmacopeia (Arzneimittelverzeichnis). The applicant asked the Vienna Health Insurance (Gebietskrankenkassa) to reimburse the various costs of her treatment. On 13 April 1995 the Vienna Health Insurance refused to meet the costs.
On 2 May 1995 the applicant filed an action with the Vienna Labour and Social Court (Arbeits- und Sozialgericht) against the Vienna Health Insurance, requesting the reimbursement of the treatment costs. On 12 May 1995 the Vienna Labour and Social Court appointed an expert who delivered his opinion in June 1995.
On 24 October 1995 a witness was heard and the expert opinion was discussed. On 6 February 1996 the proceedings were adjourned because the Constitutional Court was expected to deliver a judgment concerning “Ukrain”.
On 8 February 1996 the applicant appealed against the adjournment, which was quashed by the Vienna Court of Appeal (Oberlandesgericht). On 29 May 1996 a witness was heard. In August 1996 another expert delivered his opinion. On 16 September 1996 the expert delivered a supplementary opinion. A further hearing appears to have been held on 5 December 1996. On 19 December 1996 the applicant gave notice that two witnesses were going to be absent for some time and asked the court to schedule the following hearing no sooner than the beginning of March 1997. On 30 December 1996 the Vienna Labour and Social Court appointed another expert who – after having been admonished by the judge three times – finally delivered his opinion in May 1997. On 23 July 1997 a hearing was held to discuss the expert opinion.
On 19 September 1997 the applicant’s counsel submitted documents in Russian which were translated into German by 13 October 1997.
On 17 December 1997 the expert delivered a supplementary opinion on the basis of the submitted documents.
On 9 February 1998 the court fixed the date for a hearing on 27 March 1998, but at the request of the applicant counsel’s postponed the hearing until 24 April 1998.
On 24 April 1998 the hearing was postponed until 15 June 1998 due to the judge’s illness. On 13 May 1998 the applicant’s counsel requested a further postponement.
On 11 September 1998, after the hearing, the Vienna Labour and Social Court dismissed the applicant’s action, referring to section 133 of the Social Insurance Act (Allgemeines Sozialversicherungsgesetz) which states that the treatment provided has to be sufficient and appropriate but must not exceed what is actually necessary. The court found that the mere fact that “Ukrain” was not registered in the Austrian pharmacopoeia did not in itself prevent the reimbursement of treatment costs. However, in the applicant’s case, registered medicines would have had the same curative effects and, given the evidence produced during the proceedings (submissions of the parties and witnesses, expert opinions), their prescription could not be considered unreasonable or unacceptable. In addition, the “Ukrain” treatment cost six times as much. Besides, the court noted that no curative effect had been proved. Therefore the “Ukrain” treatment was neither a necessary nor an appropriate treatment within the meaning of section 133 of the Social Insurance Act.
On 22 March 1999 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. On 29 April 1999 the applicant lodged an appeal on points of law with the Supreme Court (Oberster Gerichtshof).
On 31 August 1999 the Supreme Court dismissed the applicant’s appeal on points of law. The decision was served on 6 October 1999.