ITEMID: 001-94293
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PISHCHALNIKOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1959 and lived, until his arrest, in the town of Revda in the Sverdlovsk Region. Prior to the events described below the applicant had never been accused of or charged with any crime.
7. On 15 December 1998 the applicant was arrested on suspicion of aggravated robbery. According to the Government, a police investigator apprised the applicant of the rights of an accused, including the right to be assisted by counsel. The Government insisted that the record of the applicant’s arrest contained a line which read as follows: “[the applicant] needs services by a retained lawyer Mr L.” The Government did not produce a copy of the arrest record, despite the Court’s request to that effect. The applicant confirmed that he had made a handwritten note in the arrest record, asking to be assisted by counsel, Mr L. He had also included Mr L.’s phone number and home address in the record. The applicant stressed that after the investigator had drawn up the arrest record, he had commenced interrogating the applicant about his participation in the robbery on 10 December 1998. As a consequence of the interrogation the applicant confessed to “[having gone] to a motorway together [with six other individuals] to seize a cargo by fraud”. The applicant also noted that one of his accomplices had had a gun which he had planned to use as a threat.
8. On 16 December 1998 an investigator again interrogated the applicant about the circumstances surrounding the robbery. According to the applicant, the investigator disregarded his request for legal assistance and proceeded to questioning. During that interrogation the applicant described in detail the preparations for the robbery, his meetings with other co-accused and the subsequent events on 10 December 1998. He also confessed to having participated with his co-accused in other criminal activities, including a murder, kidnapping, hijacking and unlawful possession of weapons. The Government did not produce a copy of the interrogation record drawn up on 16 December 1998.
9. On the following day the Sverdlovsk Regional Prosecutor-Criminalist performed an investigative experiment aimed at verifying the applicant’s statements made during the questioning on 15 and 16 December 1998. In the course of the experiment the applicant was taken to various places where he and his accomplices had allegedly planned or committed criminal offences. In each location the applicant, in the presence of attesting witnesses, answered the prosecutor’s questions pertaining to various criminal activities committed by the criminal group in which the applicant had taken part. It appears from the record of the investigative experiment that the prosecutor commenced the experiment by asking the applicant whether he agreed to participate in the experiment in the absence of a lawyer. The applicant did not object. The prosecutor further informed the applicant of his constitutional right not to make self-incriminating statements and asked whether he was willing to show the crime scenes, describe his and his accomplices’ actions and reproduce his actions at the crime scene. The applicant agreed and signed the record.
10. On 18 December 1998 the Achitskiy District Prosecutor authorised the applicant’s detention on remand. The detention was subsequently extended on a number of occasions by a prosecutor or a court.
11. On 24 December 1998 a senior investigator of the Sverdlovsk Regional Prosecutor’s office charged the applicant with aggravated robbery. The indictment record was served on the applicant in the presence of free legal aid counsel, Ms K. On the following day the senior investigator, in the presence of counsel, Ms K., informed the applicant of his procedural rights, including the right to free legal aid. The applicant made a handwritten note in the record, stating that he was in need of free legal aid.
12. During subsequent interrogations on 15 January, 1, 10, 16 and 25 February, 29 March, 15 April and 30 August 1999 the applicant refused legal assistance, each time making handwritten notes in the interrogation records to that effect. He also noted that his refusal was not due to lack of financial resources but his fear of a possible “information leak”. The Government provided the Court with copies of the first few pages of the interrogation records, containing the applicant’s handwritten notes. The pages pertaining to the statements which the applicant had made during the questioning were not enclosed.
13. On 27 October 1999 an investigator from the Sverdlovsk Regional Prosecutor’s office questioned the applicant about his involvement in forgery of documents in August 1998. On the applicant’s request Mr B., legal aid counsel, was called to assist him. The applicant confessed to having forged two national passports, but did not admit to having used them.
14. On 9 November 1999 the applicant, assisted by legal aid counsel, Mr Sh., studied reports of various expert examinations. Two days later he was again questioned in the absence of a lawyer. The first two pages of the interrogation record, presented to the Court by the Government, contain the applicant’s signature confirming his knowledge of the accused’s procedural rights and his refusal of legal assistance.
15. The Government, supporting their assertion with extracts of interrogation records bearing the applicant’s handwritten notes, submitted that during the remaining three interrogations on 17 November, 6 and 22 December 1999 the applicant had refused legal assistance. The Government noted that the refusal was not conditioned by the applicant’s lack of financial resources.
16. On 30 December 1999 the applicant was served with the final version of the bill of indictment comprising all charges. In particular, the prosecution authorities accused the applicant of having participated in a stable armed criminal group and having committed criminal offences within that criminal group, including several counts of aggravated robbery, hijacking, theft, aggravated kidnapping, unlawful deprivation of liberty, forgery of documents, murder, attempted manslaughter, torture and unlawful possession of weapons. Following the service of the bill of indictment an investigator questioned the applicant. Mr B. was appointed to act as the applicant’s counsel. The interrogation record, provided to the Court by the Government, consisted of a three-page printed template, in which the dates, the investigator’s and applicant’s names, the applicant’s personal data and his statements made during the interrogation were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics):
“Before the inquiry [the applicant] is informed that by virtue of the requirements of Article 149 of the RSFSR Code of Criminal Procedure and on the basis of Articles 46, 47, 48, 49, 77, 141-1, 151, 152, 154, 202, 202-2 of the RSFSR Code of Criminal Procedure he has a right: to defend himself, to know what he is charged with and to give explanations about the charges brought, to submit evidence, to lodge requests, to complain to a court about the unlawfulness and ill-foundedness of his arrest and detention, to study records of investigative actions in which he participated, [to study] materials which were submitted to a court as evidence of the lawfulness and well-foundedness of the authorisation and extensions of [his] detention on remand and, after the end of the pre-trial investigation, [to study] all materials of the criminal case file, to copy any and in any amount information out of [the case file], to be assisted by counsel from the moment when the arrest record or a detention order or a bill of indictment is served on [him], to have private meetings with counsel, to lodge complaints with a court against the arrest or extension of detention and to participate in a court hearing when [those complaints] are examined, to participate in trial hearings, to challenge [the bench, prosecutor, other participants of criminal proceedings], to appeal against investigators’, interrogators’, prosecutors’ and courts’ actions and decisions, to defend his rights and lawful interests by any other means and measures which do not run contrary to the law, and [he] also [has] the right [to make pleadings at the end of the trial] as a defendant.
Moreover, [the applicant] was informed that by virtue of Article 51 of the Constitution of the Russian Federation, no one is obliged to make self-incriminating statements and [statements] incriminating his/her spouse and close relatives, whose list is determined by the federal law.
[the applicant’s signature]
According to Article 17 of the RSFSR Code of Criminal Procedure I was informed of my right to make statements in my native language and to be assisted by an interpreter. I speak Russian. I do not need the services of an interpreter and want to make statements in Russian.
[the applicant’s signature]
Before the interrogation [the applicant] stated: I need to be assisted by counsel appointed by a Bar Association.
[the applicant’s signature]
I can give the following explanation in relation to the questions put to me:
The content of the charges against me was explained to me.
I partially admit my guilt of having committed crimes under Article 327 § 3 and Article 327 § 2 of the Criminal Code of the Russian Federation. In fact, I forged two passports of USSR citizens. One of [the passports] was issued in the name of Mr M., and the other one [was issued] in the name of Mr Z. I glued pictures of myself in those passports and forged the cameo printing “USSR Passport” with a wooden homemade engraving, which I had made myself. I bought Mr Z.’s passport in Revda town railway station from Mr Z. for 50 Russian roubles; [I] took Mr M.’s passport from my house where it was kept. In my house, that is at the [following address]: ... where I lived temporarily. [I] note that my mother lives permanently at that address. I have never used passports in the names of Mr Z. and Mr M.
I do not confess to [having committed] other criminal offences with which I am charged.
By virtue of Article 51 of the Russian Constitution I will no longer make any statements.
My words recorded correctly and read by me.
[the applicant’s and his lawyer’s signatures].”
17. No further investigative actions were performed until 26 January 2000, when the applicant, in the presence of counsel, Mr B., was served with a copy of the decision on the closing of the pre-trial investigation. Between 7 February and 20 June 2000 the applicant and counsel B. studied the case file.
18. On 14 August 2000 the applicant and his co-defendants were committed to stand trial before the Sverdlovsk Regional Court. The Regional Court received the case file on the same day.
19. According to the Government, it was not until 24 April 2001 that the Sverdlovsk Regional Court fixed the first trial hearing for 29 May 2001. Ms Ya. was appointed to act as the applicant’s lawyer at the trial.
20. At the hearing on 29 May 2001 the Regional Court adjourned the proceedings until 4 June 2001 to allow the defendants to study the case file materials.
21. Between 4 and 11 July 2001 the Regional Court held eight hearings. The following hearing, fixed for 11 July 2001, was postponed due to a co-defendant’s illness. The proceedings were stayed until 7 August 2001.
22. Between 7 August and 18 December 2001 sixty-five hearings were held. The Sverdlovsk Regional Court heard a number of witnesses. A victim of a car hijacking, Ms Lo., asked to be dismissed from the proceedings and for her statements given at the pre-trial investigation to be taken into account. She noted that her pre-trial statements were true, but she did not want to testify in open court as she was afraid of the applicant and his co-defendants. The Regional Court found that Ms Lo.’s fears were justified and dismissed her from the proceedings.
23. In October 2001 the applicant lodged a complaint with the Regional Court alleging ineffective legal representation and asking to appoint another counsel or, in the alternative, to be allowed to defend himself. The applicant asserted that Ms Ya. had no knowledge of the criminal case file and had not held any private meetings with him to discuss the strategy of his legal defence. On 22 October 2001 the Sverdlovsk Regional Court dismissed that request, finding that Ms Ya. was an experienced and well-qualified lawyer who defended the applicant effectively. The Regional Court also noted that by virtue of Article 50 § 2 of the RSFSR Code of Criminal Procedure the participation of a lawyer was mandatory in the trial hearings, having regard to the gravity of the charges against the applicant. At the same time, the applicant had a right to retain counsel of his own choosing, but he refused to do so. Therefore, there were no grounds to dismiss Ms Ya. from the proceedings.
24. On 17 January 2002 the Sverdlovsk Regional Court, composed of one professional judge and two lay judges, found the applicant guilty of aggravated murder, torture, kidnapping, unlawful deprivation of liberty, theft, robbery, attempted robbery, car hijacking, participation in a criminal group and forgery of documents. The Regional Court sentenced him to twenty-two years’ imprisonment. While holding the applicant guilty on a charge of having taken part in a criminal group and having committed a number of criminal offences within it, the Regional Court noted that the co-defendants, including the applicant, denied their guilt in open court. However, it cited their statements given during the pre-trial investigation in support of its findings of guilt. In particular, it gave a detailed account of the applicant’s statements made on 15 and 16 December 1998, in which the latter confessed his guilt to a number of criminal offences. At the same time the Regional Court excluded from evidence the records of the remaining applicant’s interrogations carried out in the absence of counsel, finding that the counsel’s presence during the interrogations had been mandatory and the applicant’s refusals of legal assistance could not be accepted. The Regional Court reached a similar conclusion in respect of the majority of the interrogations performed with other co-defendants, finding as follows:
“refusals of legal assistance handwritten by [the accused] in the [interrogation] records due to the fear of a leak of information should be considered involuntary as in reality lawyers were not appointed during the interrogations”.
25. The applicant appealed against the conviction. In his appeal statement he complained, inter alia, that he had been denied legal assistance during the pre-trial investigation and that his legal defence during the trial had been ineffective.
26. According to the Government, on 14 March 2002 a Sverdlovsk Regional Court judge held that the applicant and his co-defendants could study the case file materials from 22 to 27 March 2002. In addition, from 29 May to 11 October 2002 the applicant studied four volumes of the case file.
27. In August 2002 the applicant asked for legal assistance for preparation of the appeal statement. He also asked for his sister to be appointed as his “public defender”. In reply, on 12 August 2002 a judge of the Sverdlovsk Regional Court informed the applicant that the Russian law did not provide him with the right to be assisted by a relative during appeal proceedings. The judge, however, noted that he could have asked a court to provide him with free legal assistance. According to the Government, such a request was never lodged by the applicant.
28. On 2 December 2002 the case file was sent from the Sverdlovsk Regional Court to the Supreme Court of the Russian Federation for an examination.
29. On 8 August 2003 the Supreme Court of the Russian Federation amended the judgment of 17 January 2002. The Supreme Court discontinued the proceedings against the applicant on the charges of torture, unlawful deprivation of liberty and one count of attempted robbery because his participation in those criminal offences had not been proved. The Supreme Court also reduced the applicant’s sentence by two years. While upholding the remainder of the applicant’s conviction, the Supreme Court endorsed reasons given by the Regional Court, once again relying on the statements made by the applicant on 15 and 16 December 1998. The applicant was not assisted by a lawyer at the appeal hearing.
30. Article 47 of the old CCrP read as follows:
“A lawyer should be called to take part in a case at the moment when charges are brought or, if a person suspected of a criminal offence is arrested or detained before charges are brought against him, at the moment when the arrest record or a detention decision is read out to him.
If the lawyer chosen by a suspect or an accused is unable to appear within twenty-four hours after the arrest or detention has been effected, an interrogator, investigator, or a prosecutor may offer the suspect or accused the possibility to retain another lawyer or provide him with a lawyer through the assistance of the Bar Association.”
31. Article 48 of the Code established that a lawyer should be called by an accused, his legal representative or other persons on a request or with the consent of the accused. An investigator or court should to provide the suspect or the accused with counsel at his request. In cases where counsel chosen by the accused was not available for a long period of time, the investigator or the court could suggest that the accused choose another counsel or, as an alternative, appoint another counsel for the accused.
32. If the accused was charged with criminal offences punishable by death penalty, participation of counsel was imperative in court proceedings and was also mandatory in the pre-trial investigation from the moment when charges were brought. In such a case, if the accused, his legal representative or other persons on his request did not invite counsel, an investigator, prosecutor or court should ensure the accused’s legal representation in the case (Article 49).
33. An accused could refuse legal assistance at any moment of the criminal proceedings. If the accused was charged with criminal offences punishable by death penalty, such a refusal was not binding for a court, an investigator or a prosecutor (Article 50).
34. Article 51 of the new CCrP, in so far as relevant, reads as follows:
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;
2) the suspect or the accused is a minor;
3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
4) the suspect or the accused does not speak the language in which the proceedings are conducted;
5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
6) the criminal case falls to be examined by a jury trial;
7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
2. ...
3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”
35. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of the procedural actions which have already been performed by that time.
36. Article 373 of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal instance may directly examine evidence, including additional material submitted by parties.
37. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court
38. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows:
“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
(c) other new circumstances.”
39. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”
40. Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec. (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows:
“Legal advice
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
...
23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”
41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.
42. Article 48 of the Charter of Fundamental Rights states that “[r]espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the right guaranteed under Article 48 is among those who have the same meaning and the same scope as the equivalent right guaranteed by the European Convention on Human Rights.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-5740
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: AUSTIN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1962 and living in Surrey. He is represented before the Court by Mr P. Ross, a lawyer practising in Hampshire. The Government were represented by their Agent, Mr M. Eaton, of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicant joined the Royal Navy in or about 1985. He completed two tours of duty in Bosnia in 1993 and 1994, during and after which he suffered from depression and experienced certain problems with his superiors. On 16 May 1994 he went absent from the Navy. In late 1994 his brother committed suicide after which the applicant could not envisage going back to the Navy.
On 1 May 1996 he was arrested and held in close arrest, during which detention he was diagnosed as suffering from Post Traumatic Stress Disorder. While in close arrest he gave his Defending Officer a list of 18 witnesses who could testify as to the manner in which he had been treated by his superior officers while in the Navy. He claims that his Defending Officer only spoke to three of those potential witnesses, that he failed to investigate a relevant incident and that that officer had told him that, if he took two weeks’ additional treatment in the naval hospital and opted for a summary trial before his Commanding Officer (Captain Slater), the punishment for his absence would be discharge only. He also alleges that that officer discouraged him from making a complaint against the relevant superior officers and avoided giving the applicant access to a naval barrister.
On 14 June 1996 the applicant was brought before his Commanding Officer and was charged with desertion contrary to the Naval Discipline Act 1957 (for which offence the potential punishment after trial by court-martial is an unlimited period of imprisonment). He was given the weekend to consider whether he wished to have a summary trial or be tried by court-martial. On 17 June 1996 he opted for a summary trial and on that day he was tried by his Commanding Officer, when the applicant pleaded guilty. The applicant claims that his Defending Officer did not procure the attendance of any of the 18 witnesses he had proposed as regards mitigation of sentence. He was sentenced to 90 days’ detention (with no remission for the 51 days of close arrest already served) and discharge from the Navy. By letter dated 19 June 1996 from the applicant’s Commanding Officer to the latter’s next superior officer (the Flag Officer Training and Recruitment – “FOTR”), the Commanding Officer described in some detail the charge against the applicant, his plea, the prosecution case, the evidence in mitigation of sentence and the reasons for the punishment imposed. On 21 June 1996 the sentence was confirmed by the FOTR. The applicant commenced his sentence.
On 1 July 1996 he lodged a petition against the severity of his sentence, arguing that his Post-Traumatic Stress Disorder had not been sufficiently taken in account. By letter dated 10 July 1996 the Commanding Officer provided written comments on the applicant’s petition. By letter dated 15 July 1996 the FOTR outlined in detail why he rejected the applicant’s petition. On or about 22 July 1996, Major Codd informed the applicant of the outcome of his petition and made the following hand-written note at the end of the letter of 15 July 1996: “Informed + does not wish to pursue further”.
The Government maintain that Major Codd informed the applicant, as he was required to do, that the applicant had the right to take the matter further and that the applicant did not wish to. The applicant submits that Major Codd told him that he could take the matter further only if he had fresh evidence and that there is nothing in Major Codd’s hand-written note that contradicts this.
Having no fresh evidence, the applicant did not pursue the matter further, served his sentence and left the Navy in August 1996.
On 30 September 1996 the applicant wrote to his solicitors pointing out that he believed that he had not been given a fair trial since statements from witnesses had not been collected or presented at trial, medical reports and the time spent in close arrest were ignored, and the case was decided on elements that had nothing to do with the reasons for his leaving.
On 14 October 1996 the applicant’s solicitor wrote to the successor of the applicant’s Commanding Officer (Captain Hart), in the following terms:
“I represent Marine Austin in connection with his detention arising from a hearing at the Captain’s table on 17 June 1996. I should be most grateful if you would please advise me if there is any method of appeal or review of that decision. Could you please let me have a copy of the reasons for the decision made for his detention. I understand that no legal representation was available at the hearing before the Captain.”
Captain Hart replied by letter dated 24 October 1996 indicating that the applicant had had one review before the FOTR and that, while he had been advised that another review to a specific higher authority (Second Sea Lord/Commander) was open to him, he had chosen not to pursue that option.
On 25 February 1997 the European Court of Human Rights handed down its judgment in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, no. 30). The applicant claims that it was not until the publication of that judgment and having taken counsel’s advice that he realised that he had the right to request that his complaint be taken further.
The applicant’s solicitor therefore wrote to Captain Hart on 6 June 1997 referring to the Findlay judgment, pointing out that the applicant considered that he had not had a fair hearing by an independent and impartial tribunal (within the meaning of that judgment), and as required by the rules of natural justice. He stated that he wished to renew his complaint against sentence to a higher authority for which no time-limit had been set down by the relevant regulations.
Captain Hart replied by letter dated 12 June 1997. He set out the history of the case and rebutted certain of the applicant’s allegations about his trial and noted that the applicant had since left the service thereby losing any right to request a further review. He concluded by noting that nothing new had been raised in the applicant’s lawyer’s letter about the facts of the applicant’s case, that the Findlay case was of no relevance and that, accordingly, there were no justifiable grounds to review the case again.
On 29 July 1997 the applicant applied for legal aid to pursue judicial review proceedings against the Royal Navy in respect of the decision of Captain Hart not to forward the applicant’s complaint to the next higher authority. On 11 August 1997 the Legal Aid Board refused legal aid. The Board considered that the applicant had not shown reasonable grounds for taking, defending or being a party to proceedings and that the applicant had not shown that the decision of Captain Hart was illegal, irrational or procedurally improper. The Board noted that the three month limitation period for judicial review proceedings appeared to run from 1996 and, given that Captain Hart’s letter of 12 June 1997 merely confirmed what had previously taken place, judicial review proceedings were out of time. On 18 September 1997 the Legal Aid Area Committee refused the applicant’s appeal against the refusal of legal aid, the Committee not being satisfied that the applicant had reasonable prospects of success in the proposed judicial review proceedings.
Section 130 of the Naval Discipline Act 1957 (“ the 1957 Act”) reads, in so far as is relevant, as follows:
“1. If a person subject to this Act thinks that he has suffered any personal oppression, injustice or other ill-treatment, he may make a complaint in accordance with the procedure laid down in Queen’s Regulations and, if he does not obtain the redress to which he thinks he is entitled, a complaint to the Defence Council. ...
2. On receiving any complaint made by virtue of subsection (1) above, it shall be the duty of the Defence Council to investigate the complaint and to grant any redress which appears to them to be necessary ...”
An officer of junior rank or a rating may request an officer in his ship to assist him in making a complaint, in default of which the Divisional Officer (or such other officer as the Commanding Officer may decide) will give assistance (clause 1 of paragraph 4204). In the case of a rating, the complaint is first made orally to the Commanding Officer (clause 2).
Clause 3 points out that it is the duty of any authority receiving a complaint to have it investigated as soon as possible. On receipt of any complaint, the Commanding Officer or other officer receiving the same shall satisfy himself that the complaint is made in accordance with the appropriate regulations in this section. He is then to deal with it in the exercise of his discretion as may seem to him right, and cause the complainant to be informed of his decision.
Clause 4 provides that, if the Commanding Officer should refuse or be unable to remedy the complaint so made, the complainant may ask that he may be allowed to make his complaint in writing. On receiving the request, the Commanding Officer is to give the complainant 24 hours to reconsider the matter. The complainant (while still having the assistance of the officer referred to in clause 1) may then address his complaint in writing to the Commanding Officer, who is to forward it to his next superior, together with his own remarks thereon.
Clauses 5 and 7 of paragraph 4204 read, insofar as relevant, as follows:
“5. If the complainant is not satisfied. If the complainant is not satisfied with the decision on his complaint, he may request that it be forwarded to the next superior authority and so on to the Commander-in-Chief and finally to the Defence Council to be dealt with in accordance with Clause 3, and all such requests shall be complied with. ... When such a complaint is referred to a higher authority a copy of the complainant’s full service documents should also be forwarded, in order that the complaint may be dealt with without delay.” ...
“7. Injustice at a summary trial. If a rating considers he has suffered an injustice at a summary trial, in conviction and/or sentence, he should state a complaint as set out <in Clauses 1-6> above. Detailed instructions for the handling of such complaints are contained in BR11, Manual of Naval Law, Chapter 11.”
“Section II: REVIEW OF SUMMARY TRIALS
“1110. Complaints against conviction and/or sentence
1. There is no right to appeal to the Courts-Martial Appeal Court against either conviction or sentence at a summary trial. However, a rating is entitled to represent, through the medium of the complaints procedure set out in <Queen’s Regulations> Chapter 42, that he has been wrongfully convicted, or excessively punished, or both.
2. Any such complaint should be made as early as possible to facilitate proper investigation. Application should not be delayed until completion of the punishment. ...
3. Where a Commanding Officer or intermediate superior authority rejects a complaint, the rating is to be informed and the reasons stated. The rating should also be told of his right to have his complaint considered by the next higher authority if he is not satisfied. ...
5. A rating whose complaint has been rejected by a Commander-in-Chief, an Area Flag Officer, the Flag Officer Naval Aviation, the Flag Officer Surface Flotilla, the Flag Officer Submarines or the Commandant-General Royal Marines is to be informed of his right to request that it be forwarded to the Ministry of Defence ... for the consideration of the Admiralty Board of the Defence Council.
6. At all stages the complaint is to be given immediate attention ...
7. If the complaint is against a committed sentence of detention it is essential that this expeditious handling procedure is observed so that, if any authority decides to uphold the complaint, the rating concerned may be released without delay. ...”
1111. Review of summary sentences
1. Whether in pursuance of a complaint made under 1110 or otherwise, any Flag Officer or Commodore may exercise any of the powers conferred by section 72(1) of <the 1957 Act> to annul or otherwise alter the sentence at a summary trial if:
a. he is satisfied by information available to him but not available to the officer who awarded the sentence, either
(1) that an offence of which the accused was convicted was not committed by him (in which case action to have the conviction quashed must also be taken <pursuant to> 1112); or
(2) that the punishment is too severe and the accused should not be required to undergo that part of the punishment which is considered too excessive.
b. a sentence is for any reason invalid.
c. the report made in accordance with 0707.4 indicates that an unjustifiable punishment has been awarded summarily to a rating who would, had the circumstances permitted, have had the right to be tried by court-martial.
1112. Review of summary convictions by Commanders-in Chief, Area Flag Officers or Two-Star or Three-Star Type Commanders
1. The powers conferred by sections 70 and 71 of the <1957 Act> to quash or otherwise alter a conviction ... at a summary trial may be exercised by Commanders-in Chief or, when authorised ..., by Area Flag Officers or, when authorised ..., by the Flag Officer Naval Aviation, the Flag Officer Surface Flotilla or the Flag Officer Submarines, where they consider that such action is appropriate.”
Paragraph 0804 of the Manual of Naval Law provides that solicitors and barristers should not appear at summary trials and that, in particular, an accused has no right to request legal representation at such a trial. If an accused requests legal representation, the Commanding Officer should consider whether justice requires, having regard to the gravity and nature of the offence, that the accused should alternatively be tried by court-martial. The accused’s Divisional Officer and witnesses can attend the summary trial (paragraph 0805).
No time-limit applies to complaints made pursuant to the above provisions except that the right to make a complaint is retained only as long as the person concerned is “subject to” the 1957 Act, namely, while the individual remains in service. It was, nevertheless, at the relevant time the policy of the Royal Navy as a matter of discretion to consider such a complaint for a period of three months after a serviceman had ceased to be subject to naval law if the case raised exceptional circumstances and, typically, when new evidence was put forward.


ITEMID: 001-89858
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MAGOMEDOV v. RUSSIA
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;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1945 and lives in Makhachkala, a city in Dagestan.
5. A retiree of the Ministry of the Interior, in 2002–04 the applicant contested in court a stoppage of his pension.
6. On 30 October 2002 the Sovetskiy District Court of Makhachkala ordered the Ministry to resume the pension in the amount of 3,004.41 Russian roubles (RUB) per month, to pay arrears in the amount of RUB 94,378.47, and to adjust the arrears for the cost of living by paying RUB 77,331.32. This judgment became binding on 22 January 2003 with the exception of the cost-of-living adjustment, this part of the award having been quashed on appeal.
7. On 11 March 2003 the District Court once again awarded the cost-of-living adjustment in the same amount. This judgment became binding on 22 March 2003.
8. On 28 March 2003 the applicant requested bailiffs to enforce the judgment of 30 October 2002. On the Ministry’s request, from 14 May to 30 June 2003 the enforcement proceedings were stayed pending proceedings in the Constitutional Court. On 29 July 2003 the judgment was enforced in the part concerning the resumption of the periodic payments.
9. On 29 March 2004 the applicant requested the bailiffs to enforce the judgment of 11 March 2003.
10. On 19 April 2004 the applicant requested the bailiffs to enforce the judgment of 30 October 2002 in the part concerning the arrears.
11. Meanwhile, on 15 November 2003 the Ministry requested a supervisory review of the judgments, and on 8 June 2004 the Supreme Court of Dagestan stayed the enforcement. On 9 September 2004 the Presidium of the Supreme Court quashed the two judgments on supervisory review. The Presidium rejected the applicant’s claim, having found that the court below had misinterpreted material laws concerning the applicant’s entitlement to the pension.
The applicant was absent from this hearing, because he had allegedly not been properly notified of it.
12. 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: 001-87515
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JACKSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property)
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1960 and lives in London.
6. His wife died on 12 September 1999 leaving two children, born in 1995 and 1998.
7. On 30 March 2000 the applicant applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled, namely a Widow’s Payment a Widowed Mother’s Allowance and thereafter a Widow’s Pension, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). On 16 May 2000 the Benefits Agency refused his application because he was not a woman. He was told that he had no right of appeal since his claim had not been considered by a decision-maker.
8. On 5 October 2000 the applicant made a claim for Widow’s Bereavement Tax Allowance to the Inland Revenue for the year 1999-2000. On 12 October 2000 he was informed that his claim could not be accepted because there was no basis in domestic law allowing widowers to claim this benefit.
9. The applicant receives child benefit in the sum of GBP 100 every four weeks.
10. The relevant domestic law and practice are described in the Court’s judgments in the cases of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV; Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007; and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58002
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF AHMUT v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: N. Valticos
TEXT: 7. Salah Ahmut was born in 1945. He has been a Netherlands national since 22 February 1990 although he has retained his original Moroccan nationality. Salah Ahmut currently resides in Rotterdam. He is a trader.
8. Souffiane (or Soufiane) Ahmut is Salah Ahmut’s son. Souffiane was born on 27 November 1980 in Morocco. He is a Moroccan national. He currently resides in Tangier.
9. Salah Ahmut married a Ms F.A. in 1967. Five children were born to them, namely Hamid (on 6 February 1969), Fouad (on 2 June 1970), Chaouki Dayaf (on 24 June 1971), Souad (on 28 July 1972) and Souffiane. The applicants have stated that the marriage was dissolved in 1984. However, this statement is not corroborated by documentary evidence. In any event, the children remained with their mother after Salah Ahmut moved to the Netherlands.
10. Salah Ahmut migrated to the Netherlands in September 1986. In November of the same year he married a Netherlands national, Ms K.A., who already had three children from a previous marriage. Her marriage with Salah Ahmut remained childless.
11. The Commission’s file contains a sworn translation into English of Ms F.A.’s death certificate, from which it would appear that Ms F.A. died as a result of a traffic accident on 27 March 1987. The Commission’s file also contains a sworn translation into French of a notarial statement which was dated 8 March 1991 and countersigned by a judge, from which it appears that Hamid, Fouad, Chaouki Dayaf, Souad and Souffiane are indeed the issue of the marriage of Salah Ahmut and Ms F.A. and that Salah Ahmut is their legal guardian under Muslim and Moroccan law.
12. After their mother’s death the children were cared for by Salah Ahmut’s mother, Ms C.A.M.
13. Salah Ahmut’s eldest son, Hamid, entered the Netherlands without a provisional residence visa (machtiging tot voorlopig verblijf - see paragraph 42 below) in 1987. He was expelled in 1989 after a residence permit (vergunning tot verblijf - see paragraph 44 below) was refused him. He has since resided in Morocco where he is a trader.
14. The Commission’s file contains a document in French from a bank in Tangier from which it appears that from April 1986 until October 1990 Ms C.A.M. received financial support in the amount of 80,000 Moroccan dirhams per year. Although these sums were paid to her through an account with a bank in Tangier in the name of a person with the same family name as Salah Ahmut’s second wife, it is not contested that the money was supplied by Salah Ahmut. However, Salah Ahmut never applied to the Netherlands State for child benefits (kinderbijslag) for Souffiane.
15. Salah Ahmut and his second wife, Ms K.A., separated in February 1990. Following divorce proceedings, their marriage was dissolved on 21 December of the same year. On 11 March 1991 Salah Ahmut married a Ms S.Y., a Moroccan national, in the Netherlands. Ms S.Y. had been living in the Netherlands since 9 December 1990. She was granted a residence permit for the purpose of living with her husband on 12 March 1991.
16. Salah Ahmut’s second and third sons, Fouad and Chaouki Dayaf, entered the Netherlands in 1989 and 1990 respectively. In October 1990 they were granted residence permits to enable them to prepare for entrance examinations at the Technical University of Delft.
17. The Commission’s file contains a document in French claimed to be a sworn translation of a statement by a Tangier physician dated 7 November 1990 to the effect that on that date Ms C.A.M., who was then 80 years old, was suffering from respiratory problems and kidney failure and was receiving treatment as an out-patient.
18. The applicants state that between 28 September 1986 (when Salah Ahmut migrated to the Netherlands - see paragraph 10 above) and 26 March 1990 (the date of Souffiane’s arrival in the Netherlands - see paragraph 19 below) Souffiane visited the Netherlands about four times, each time for a period of one month.
19. Souffiane arrived in the Netherlands on 26 March 1990, in the company of his sister Souad. Neither held a provisional residence visa.
20. Souffiane was enrolled at a primary school in Rotterdam, which he attended until his eventual return to Morocco in September 1991 (see paragraph 32 below).
21. On 3 May 1990, Salah Ahmut, Souad and Souffiane appeared before the officer of the Rotterdam police in charge of matters concerning aliens. As Souffiane’s legal representative, Salah Ahmut applied to the Rotterdam police for a residence permit for Souffiane. Souad filed a similar application for herself. The stated purpose of both applications was to enable Souad and Souffiane to reside with their father, who had by then become a Netherlands national (see paragraph 7 above).
22. The same day the Rotterdam police forwarded the applications to the Deputy Minister of Justice (Staatssecretaris van Justitie) with an accompanying note. According to the police, neither the death of Ms F.A. nor the fact of her divorce from Salah Ahmut had been proved by means of documentary evidence. Nor could Salah Ahmut show that he was the children’s legal guardian. For these reasons it was recommended that the Deputy Minister reject the application in respect of Souffiane as inadmissible. It was also recommended to reject Souad’s application on substantive grounds, namely that she had not been part of Salah Ahmut’s family since 1986 nor had she apparently received financial support from him and that there were other relatives who could take care of her in Morocco.
23. On 26 June 1990 the Deputy Minister gave reasoned decisions rejecting the applications on substantive grounds. The Deputy Minister found that actual family ties between Salah Ahmut on the one hand and Souad and Souffiane on the other had been broken several years earlier, that Salah Ahmut’s moral or financial responsibility for Souad and Souffiane had not been established and that it had not been shown that their grandmother or other relatives could not care for them. He noted in addition that this decision did not constitute a violation of the applicants’ family life, protected by Article 8 of the Convention (art. 8): to the extent that such family life existed, adherence to a policy restricting immigration was necessary in a democratic society in the interests of the economic wellbeing of the country. In the same decision he ordered the expulsion of Souad and Souffiane from the Netherlands.
24. On 13 November 1990 Salah Ahmut, Souad and Souffiane lodged requests with the Deputy Minister for revision (herziening) of his decision, reserving the right to state their grounds for so doing at a later stage. On 4 January 1991 the Deputy Minister acknowledged the receipt of these requests and decided that they should have suspensive effect with regard to Souad’s and Souffiane’s expulsion (see paragraph 53 below).
25. On 18 January Salah Ahmut, Souad and Souffiane filed statements of their grounds for requesting revision. They stated that the Deputy Minister’s establishment of the facts had been incorrect; in support of their position they submitted copies of the documents mentioned in paragraphs 14 and 17 above. They also observed that two of Souad’s and Souffiane’s brothers, Fouad and Chaouki Dayaf, were in the Netherlands for study purposes and submitted statements from the Technical University of Delft to the effect that they had applied for admission.
26. The Deputy Minister referred the matter to the Aliens Advisory Board (Adviescomissie voor vreemdelingenzaken - see paragraph 54 below) for advice on 31 January 1991.
27. As the Deputy Minister did not decide within three months, Salah Ahmut, Souad and Souffiane, acting on the legal assumption that their requests had been refused, lodged an appeal with the Raad van State on 6 March 1991. They based their appeal on the grounds put forward in support of their request for revision, to which the Deputy Minister had not responded.
In view of this appeal, the Deputy Minister took no further action with regard to the request for revision of his original decision although he did not withdraw his request to the Advisory Board for advice.
28. The Aliens Advisory Board held a hearing on 20 March 1991, during which both Salah Ahmut - as Souffiane’s legal representative - and Souad were heard. During this hearing it emerged, inter alia, that Salah Ahmut had two brothers living in Morocco and that Souad had become pregnant in the Netherlands by a trader who, although he lived in Morocco, made frequent visits to the country.
The Aliens Advisory Board submitted its advice to the Deputy Minister in a document dated the same day. Not finding it established that Salah Ahmut had been divorced from Ms F.A., it concluded that Souad and Souffiane had never belonged to the family which Salah Ahmut had established in the Netherlands with Ms K.A. Souad had reached an age at which she no longer needed to be cared for and she could, if necessary, take care of Souffiane. To the extent that Souad and Souffiane needed additional care, this could be supplied, if not by Salah Ahmut’s mother, then at least by Hamid or by their two uncles. Salah Ahmut could continue to provide financial support from the Netherlands if necessary.
A decision rejecting the applications for a residence permit would not, in the Board’s view, violate Article 8 of the Convention (art. 8). Although the bond between Salah Ahmut on the one hand and Souad and Souffiane on the other amounted to "family life", there would be no "interference" with it since it could be continued as before. Moreover, any "interference" could be considered "necessary in a democratic society" in the interests of the economic well-being of the country.
29. On 19 April 1991 the Deputy Minister notified the Rotterdam police that Salah Ahmut, Souad and Souffiane had filed an appeal to the Raad van State and that they would be allowed to await the outcome in the Netherlands.
30. The Deputy Minister filed statements of defence to the single-judge Chamber of the Raad van State on 1 October 1991. His arguments corresponded to the grounds on which the Advisory Board had based its advice (see paragraph 28 above).
31. Following a hearing on 10 August 1992, the single-judge Chamber of the Raad van State dismissed the appeals by an oral judgment on 24 August. Its grounds for so doing were essentially those suggested by the Deputy Minister. It noted in addition that in its view the Netherlands were not under a positive obligation to grant Souad or Souffiane a residence permit, since the latter’s interests had to be balanced against the general interest served by the implementation of a restrictive immigration policy.
Its reasoning included the following:
"[The decision not to admit Souffiane] does not violate Article 8 (art. 8) of the European Convention on Human Rights and Fundamental Freedoms. It cannot be said that there is an interference with family life [familie- of gezinsleven] as Souffiane is not being deprived of residence rights [verblijfstitel] which formerly enabled him to carry on his family life with the appellant, his father. Nor can any positive obligation incumbent on the respondent to grant him residence rights be derived from Article 8 (art. 8), since Souffiane’s above-described circumstances must be balanced against the general interest, which the respondent must uphold, which requires the maintenance of a restrictive immigration policy."
32. Souffiane left the Netherlands on 30 September 1991. As from the same date his name was removed from the municipal population register (bevolkingsregister) of the municipality of Rotterdam.
He has been at a boarding-school in Morocco ever since. The applicants state that he has made frequent visits to his father in the Netherlands, and that the latter has visited him in Morocco.
33. The introductory application to the Commission, which was lodged on 23 February 1993, gives Souffiane’s and Souad’s place of residence on that date as Tangier. Other members of the Ahmut family at present living in Morocco are Salah Ahmut’s eldest son Hamid and two of Salah Ahmut’s brothers. It is not known whether Salah Ahmut’s mother is still alive.
34. The following is a description of the regime governing the admission of aliens to Netherlands territory which applied, at the time of the events complained of, to aliens in general. Binding rules were, and are, laid down in the Aliens Act (Vreemdelingenwet), the Aliens Ordinance (Vreemdelingenbesluit) and the Aliens Schedule (Voorschrift Vreemdelingen).
35. Until 1 January 1994, the Government’s policy was defined in the 1982 Aliens Circular (Vreemdelingencirculaire 1982) and the 1984 Border Guarding Circular (Grensbewakingscirculaire). The competent tribunals have consistently held that it was incompatible with general principles of good governance (algemene beginselen van behoorlijk bestuur) to deviate from the policy rules set out in these documents to the detriment of an alien.
36. Special regimes, not relevant to the present case, applied to nationals of European Union or Benelux member States, to nationals of certain other States (not including Morocco) under bilateral treaties and to refugees as defined in Article 1 A of the Geneva Convention of 28 July 1951 relating to the Status of Refugees (United Nations Treaty Series - UNTS - no. 2545, vol. 198, pp. 137 et seq.) and Article 1 of the Protocol relating to the Status of Refugees of 31 January 1967 (UNTS no. 8791, vol. 606, pp. 267 et seq.).
37. Under section 6 (1) of the Aliens Act, to be allowed access to the Netherlands an alien had to qualify for admission - that is, either fulfil the requirements of section 8 of the Aliens Act (see paragraph 40 below), or possess a residence or settlement permit (see paragraphs 44 and 49 below) - and hold a valid passport or equivalent identity document containing a visa if a visa requirement applied (see paragraphs 41 and 42 below).
38. An alien who was refused access to Netherlands territory had to leave the country as soon as possible and could, if necessary, be forcibly removed (section 7 of the Aliens Act).
39. An alien who had been granted access but did not, or no longer, qualify for admission could be expelled (section 22 of the Aliens Act).
40. Under section 8 of the Aliens Act taken together with section 46 of the Aliens Ordinance, aliens who, upon entering the country, had complied with the required formalities at the border were admitted if and for so long as they conformed with the Aliens Act and delegated legislation, had sufficient means to cover the cost of living in the Netherlands and of the return journey, and did not threaten public peace, public order or national security. The right to admission based on section 8 was a temporary right based directly on the law and therefore not conditional on the grant of any permit. However, in principle, a visa was required (see paragraph 41 below) and the duration of the right was limited: to the period of validity of the visa, or to three months in the case of those aliens not subject to visa requirements.
41. Subject to certain exceptions not relevant to the present case, to be granted access to the Netherlands aliens had to hold a valid passport containing a transit visa (transitvisum), valid for up to three days, or a travel visa (reisvisum), valid for up to three months (section 41 (1) of the Aliens Ordinance).
42. To obtain access to the Netherlands with a view to remaining for more than three months, aliens who had not already been granted a residence permit had to hold a valid passport containing a provisional residence visa (section 41 (1) of the Aliens Ordinance). A provisional residence visa was valid for a period of up to six months (section 8 of the Aliens Act).
43. A provisional residence visa could be applied for abroad, through a consular or diplomatic representative, or in the Netherlands, via the head of the local police. Applications were decided on by the Minister for Foreign Affairs (section 1 of the Aliens Ordinance and section 7 of the Sovereign Ordinance (Souverein Besluit) of 12 December 1813) after consultation with the Minister of Justice (Minister van Justitie). Applications for such a visa were considered according to the same criteria as those applying to applications for a residence permit, since such a visa would only be issued if the alien concerned was expected to be granted such a permit.
44. Aliens wishing to reside in the Netherlands for longer than three months (see paragraph 40 above), had to hold a residence permit (section 9 of the Aliens Act). Such a permit was applied for to, and granted by, the Minister of Justice (section 11 (1) of the Aliens Act). It was valid for up to one year and renewable (section 24 of the Aliens Schedule).
45. A residence permit could be applied for either in the Netherlands (through the head of the local police - section 52 of the Aliens Ordinance) or abroad (through a diplomatic or consular representative). The application had to be submitted by the alien him or herself or, if he or she was a minor, by his or her legal representative (section 28 (4) of the Aliens Schedule).
46. The granting of a residence permit was delegated by the Minister of Justice to the head of the local police in certain cases, including cases where the alien applying for such a permit already held a provisional residence visa. In principle, a residence permit was refused an alien who did not already hold a provisional residence visa (1982 Aliens Circular, Chapter A4, para. 3.3).
47. A residence permit could be made subject to restrictions (section 11 (2) of the Aliens Act).
48. An alien holding a valid residence permit was allowed to re-enter Netherlands territory after having left it.
49. The Minister of Justice could grant a settlement permit (vergunning tot vestiging - section 13 of the Aliens Act); such a permit was normally granted only after the alien had been legally resident in the Netherlands for five consecutive years. After such an initial period, a settlement permit would be granted unless there was no reasonable certainty that the alien would be able to meet the costs of living, or if he or she had committed serious breaches of public peace or public order or constituted a serious threat to national security.
50. Given the situation obtaining in the Netherlands with regard to population size and employment, government policy was, and remains, aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens were only granted admission for residence purposes if:
a) the Netherlands were obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the Geneva Convention relating to the Status of Refugees;
b) this served "essential interests of the Netherlands" (wezenlijk Nederlands belang), e.g. economic or cultural interests;
c) there were "cogent reasons of a humanitarian nature".
In addition, aliens who, under this policy, were eligible for admission were in principle expected to have sufficient means at their disposal to cover the costs of living and not to threaten public peace or public order or national security. These were general rules which did not apply in the same way to all categories of aliens, specific criteria having been developed applicable to certain categories (1982 Aliens Circular, Chapter A4, para. 5.1.1.1).
51. Specific criteria applied to the admission of aliens in connection with the reunification or establishment of families involving spouses, partners or close relatives of Netherlands nationals or aliens holding residence or settlement permits. Under these criteria, it was possible that admission could be granted for the purpose of reuniting or establishing a family even if the applicable conditions had not all been met, if there were "cogent reasons of a humanitarian nature" (1982 Aliens Circular, Chapter B19, para. 1.1).
52. Government policy with regard to the admission of aliens with a view to continuing or establishing family life in the Netherlands (gezinshereniging) was defined in Chapter B19 of the Aliens Circular.
This chapter contained an express reference to Article 8 of the Convention (art. 8). It was stated in paragraph 1.2 that the refusal of a residence permit did not constitute an "interference" with the right to family life if the relative with whom the alien wished to continue or establish family life could reasonably be expected to follow the alien to a place outside the Netherlands. There might, however, be a positive obligation incumbent on the Netherlands authorities to grant a residence permit. To determine whether this was the case, the interests of the State in denying such a permit should be weighed against the individual’s interests, taking into account the age of the persons involved, their situation in their country of origin, their degree of dependence on relatives in the Netherlands and, if applicable, the Netherlands nationality of any persons involved. If a residence permit was refused after an examination for compliance with the requirements of Article 8 (art. 8), this fact was to be mentioned in the decision.
Minor children - minority being determined according to Netherlands law (Chapter B19, para. 2.1.2.1) - who "actually belonged to the family" (feitelijk behoren tot het gezin), for instance children from a previous marriage of a person lawfully resident in the Netherlands, were granted a residence permit (Chapter B19, para. 2.1.2).
53. Until the General Administrative Law Act entered into force on 1 January 1994, an alien could, in the event of a refusal to grant a residence permit, apply in writing to the Minister of Justice for administrative revision of his decision (section 29 (1) of the Aliens Act). If such an application was not decided on within six months, it was deemed to have been refused (section 29 (2)). Such a request for revision did not suspend the alien’s expulsion unless it was made more than one month before the expiry of the period during which the alien was allowed to remain in the Netherlands (section 32 (2)). It was, however, open to the Minister to decide that the request would have "suspensive effect".
54. The advice of the Aliens Advisory Board had to be obtained if a request was made for revision of a decision to expel an alien whose main place of residence for three months or more had been in the Netherlands and who had complied with the formalities required by the Aliens Act (section 31 (1) (c) taken together with section 29 (1) (g) of the Aliens Act).
55. In the event of a negative decision, or of failure to decide within due time, an appeal lay to the Judicial Division of the Raad van State (section 34 (1) of the Aliens Act). However, no application could be made to the President of the Judicial Division for a provisional measure or for acceleration of the proceedings (section 34 (3)).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-84293
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF P.P. v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Giovanni Bonello;Javier Borrego Borrego;Kristaq Traja;Lech Garlicki;Nicolas Bratza
TEXT: 6. The applicant lives in Torri di Quartesolo, Italy.
7. In 1991 the applicant married a Polish national K.P. In 1992 K.P. gave birth to their first daughter A. In 1996 the second daughter, B, was born. The family lived in Italy.
8. In summer 1999 K.P. took A and B on holiday to Poland. Subsequently, she failed to return to Italy with the children and they remained in Poland.
9. In September 1999 K.P. filed with the Poznań Regional Court an application for divorce.
10. On 6 September 1999 the applicant applied to the Polish Ministry of Justice – designated as a central authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the children.
11. On 11 October 1999 the Venice Court for Minors allowed an application submitted by the applicant and made an interim order granting him custody of A and B.
12. On 9 November 1999 the Poznań District Court made an interim order requiring A and B to remain in Poland during the proceedings concerning the application for their return.
13. On 14 November 1999 the applicant asked the Poznań District Court to grant him visiting rights.
14. On 17 November 1999 the Poznań District Court allowed the application and granted the applicant visiting rights. In particular, the court granted him the right to visit his children four times a month and to take them outside the flat in which they lived. K.P. appealed against this decision but her appeal was dismissed on 14 December 1999. However, she interfered with the applicant's visiting rights and in the course of the next three months he had to be assisted on three occasions by police officers in order to enforce his visiting rights.
15. On 19 November 1999 the Poznań District Court dismissed K.P.'s request that the case concerning the return of the children be either joined to the divorce case or stayed. The court gave the following reasons for its decision:
“Pursuant to Article 16 of the Hague Convention after receiving notice of a wrongful removal or retention of a child within the meaning of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention. That is why the court has informed the Regional Court that it is necessary to stay proceedings in the divorce case.”
16. At the hearing held on 26 November 1999 the court decided to order an expert opinion.
17. On 11 January 2000 the Poznań Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted to the Poznań District Court an expert opinion in reply to the court's inquiry whether the wellbeing of A and B would be threatened by their return to their father in Italy. The opinion ended with the following conclusions:
“1. The well-being of [A and B] will not be threatened if they are returned to Italy together with their mother. Reuniting the children only with their father would result in repeating an abnormal situation prevailing at the moment. Moreover, in view of the age of the children, and in particular the age of [B], depriving them of the permanent presence of their mother would lead to the inability to fulfil their development needs concerning the mother;
2. the possibility of leaving the children in the custody of their mother in Poland should only be considered if their father could be guaranteed more significant participation in their lives, including contact without the participation of other persons. However, the attitude of the mother does not guarantee that such a right and the needs of the children would be secured.”
18. On 7 February 2000 the Poznań District Court allowed an application for the return of the children lodged by the applicant and ordered K.P. to return them to the applicant. The court considered that the removal of A and B had been wrongful under Article 3 of the Hague Convention.
K.P. appealed against this decision to the Poznań Regional Court.
19. On 15 May 2000 the Venice Court for Minors granted the applicant the custody of A and B and ordered that they be returned to Italy.
20. On 2 and 16 June 2000 the Poznań Regional Court held hearings. On the latter date it allowed an appeal lodged by K.P., quashed the decision of 7 February 2000 and remitted the case to the District Court.
21. On 21 October 2000 the court held a hearing at which it ordered that a new expert opinion be prepared.
22. On 20 November 2000 the Poznań Family Consultation Centre submitted to the Poznań District Court the expert opinion, which ended with the following conclusions:
1. The return of the children to Italy without the mother will be difficult for them as it will be damaging. However, we should point out that such damage is experienced by children who grow up separated from one of their parents. That is why in our previous opinion we suggested as the best solution the return of the girls to Italy together with their mother (...).
2. As to the scope of damage caused to the minors by their return to Italy without their mother, we are of the view that:
- there is no danger of physical damage because the living conditions in Italy guaranteed by their father are proper (...);
- the minors have emotional bonds with their mother and they will suffer because of her absence – it will be impossible for them to fulfil their development needs related to the mother, and this will cause them psychological damage.
3. The assessment of all the problems of the children caused by their return to Italy without the mother leads us to the conclusion that it will not expose them to irreparable damage because:
- they are going back to their father with whom they have emotional bonds;
- they have a feeling of belonging to him and he used to play an important role as a parent. (...);
- they are going back to the environment which is familiar to them as they grew up in it and this will facilitate their adaptation;
- [B] is reaching the age in which contacts with peers become important and her needs can no longer be fulfilled only in the family; the role of the father also becomes more important at that age;
- the possibility of adaptation of [A] is even greater than her younger sister's as she concentrates on problems related to her school life. (...);
- both minors' psychological and physical development is good and they do not require special conditions for their development.
4. Both minors are of a young age and have not reached a degree of maturity which would allow their opinions to be taken into account concerning the choice of the parent with whom they would like to live. In addition to the lack of maturity of the minors, the value of such opinions would be doubtful because of the influence to which they are presently subjected (...).
23. On 10 December 2000 the Poznan Family Centre submitted an additional expert opinion. The experts were heard on 4 and 5 January 2001.
24. On 5 January 2001 the Poznań District Court again allowed an application for the return of the children lodged by the applicant and ordered K.P. to return them to the applicant. The court considered that K.P. had unlawfully abducted the children. It also observed that:
“the court also draws the attention to the fact that [K.P.] does not obey the law in Poland as she does not comply with a final court decision concerning the father's contacts with the children (she does not allow the father to take the children away from their place of residence). Therefore, the children cannot stay with their father and he cannot participate in their education.”
(...)
The court would also point out that the applicant's behaviour does not disclose contempt of court. His bitter words directed at the justice system were caused by the despair and bitterness of a father and were justified since the proceedings in the present case have already lasted a year and a half and [K.P.] still does not comply with the court decision granting him visiting rights.”
25. K.P. appealed against the decision of 5 January 2001 but on 1 June 2001 the Poznań Regional Court dismissed her appeal. On 8 June 2001 the court declared that the decision was enforceable (klauzula wykonalnosci).
26. K.P. lodged a cassation appeal against the decision of 1 June 2001. However, it was rejected on the basis that it was not provided for by the law.
27. On 19 July 2001 the applicant requested the enforcement of the final decision of 5 January 2001. On 10 September 2001 the court's bailiff requested K.P. to return the children to the applicant within one week. On 27 December 2001 the court ordered the bailiff to enforce the court's decision. Since K.P. failed to comply, on 31 December 2001, the bailiff discontinued the proceedings.
28. On 29 October 2001 the Poznań District Court dismissed K.P.'s application in which she requested that the final decision should not be enforced.
29. On 8 January 2002 the Poznań District Court ordered a court guardian (kurator sądowy) to forcibly remove A and B from K.P. under Article 5986 of the Code of Civil Proceedings.
30. On 8 January 2002 two guardians, assisted by police officers and accompanied by a representative of the Italian embassy, visited three different houses looking for A and B. The applicant was also present. The children were not found at any of those locations. Despite some indications that the children could have been in the second house visited, the police officers refused the guardians' request to enter the house since they did not have a search warrant.
31. On 16 January 2002 K.P. appealed against the enforcement order of 8 January 2002 but on 1 February 2002 her appeal was rejected as it was not provided for by the law. Her appeal against the latter decision was dismissed on 27 May 2002.
32. On 17 January 2002 the court guardian requested the Poznań Regional Prosecutor to institute criminal proceedings against K.P. on charges of abduction according to Article 211 of the Criminal Code.
33. K.P. filed with the Poznań District Court an application challenging judge B.B. but it was finally dismissed on 6 August 2002.
34. On 31 January 2002 two guardians assisted by police officers and accompanied by a representative of the Italian embassy attempted to enforce the court's order. K.P. and the children were not found in the house they visited.
35. On 10 July and 30 September 2002 the guardian informed the court that her attempts to obtain information about the children were still unsuccessful. On 19 September 2002 the guardian asked whether A had been attending a particular school. On 7 October 2002 the Director of the school confirmed that K.P. had paid for tuition, however due to illness A had not been attending classes.
36. On 18 October 2002 the police informed the court of the address where A and B were staying with their mother. The court guardian went to this address on 21 October 2002 but the children were not there.
37. Apparently, on 7 January 2003 K.P. proposed a friendly settlement with the applicant. He refused.
38. On 27 January 2003 the court guardian attempted to remove the children from the last known address but there was no sign of them again.
39. On 28 January 2003 the Poznań District Court ordered that the children be taken by the court guardian at any time. On 29 January 2003 the guardian unsuccessfully tried to enforce the order.
40. In February 2003 the District Court requested several institutions to submit information about the whereabouts of K.P. and the children.
41. On 13 February 2003 the Poznań District Prosecutor discontinued the criminal proceedings against K.P. on charges of abducting and hiding A and B because she considered that the abduction and hiding were of “minimal social harm” (społeczna szkodliwość czynu jest znikoma).
On 25 September 2003 the Poznań District Court dismissed an appeal by the applicant against the prosecution service's decision of 13 February 2003 to discontinue the criminal proceedings against K.P. on charges of abduction and hiding of A and B.
42. On 6 April 2003 two guardians, assisted by police officers and accompanied by a representative of the Italian embassy, went to a property situated in B. M. in order to enforce the court order. The property consisted of a house and a plot of land located in a forest and belonging to the local forest warden. It was surrounded by police officers. K.P., her sister and A and B were inside the house. When guardians entered the house A said that she did not want to be reunited with her father and K.P. used insulting language with respect to the applicant and the court which had ordered the return of the children. Subsequently, the guardians called an ambulance. After a doctor had examined A and B, the guardians decided that they would not enforce the court order. The guardians, the police officers and the representative of the Italian embassy left the property.
43. Immediately after the attempt to remove the children, K.P. left with A and B and remained in hiding at least until September 2003. Since then they have been living in K.P.'s father's house in P., where the children attend schools.
44. On 25 July 2003 the Poznań District Court suspended the enforcement proceedings concerning the return of the children to the applicant. The court gave the following reasons for its decision:
“On 5 January 2001 the Poznań District Court (...) made an order in a case IX Nsm 469/00 ordering [K.P.] to return the minors [A and B] to their father [P.P.] who lives in Italy. The order was made on the basis of the Hague Convention on the Civil Aspects of International Child Abduction.
The order was appealed. On 1 June 2001 the Regional Court dismissed appeals lodged by [K.P.] and the District Prosecutor. The order is final and enforceable.
[K.P.] has been in hiding with the children for more than two years and she makes it impossible to enforce the order. She has recently returned to her original place of residence and she has lodged an application under Article 577 of the Code of Civil Procedure to reject [P.P.'s] request to return the children.
The court has doubts whether it is possible to change an order made under the Hague Convention and to give a contradictory decision under Article 577 of the Code of Civil Procedure. In view of these doubts the court has decided to submit the case (...) to the Regional Court as it raises serious doubts.
At the same time, the court has stayed the enforcement until the final ruling in the case.”
45. On 2 September 2003 the Poznań Regional Court dismissed an appeal by the applicant against the decision of 25 July 2003.
46. On 19 September 2003 the Poznań Regional Court refused the District Court's request of 25 July 2003 and returned the case to the District Court. The court considered that it was possible to change the court's order to return minors but such proceedings must be based on the Hague Convention and decided in the light of the principles embodied in the European Convention on Human Rights. In particular, the change of the order could not be a consequence of the authorities' failure to take all the measures that could reasonably be expected to enforce the order.
47. On 14 October 2003 the Poznań District Court decided that the enforcement proceedings would be stayed until the date of the final ruling on K.P.'s application to change the court order requiring her to return the children to the applicant.
48. On 5 January 2004 the Poznań District Court held a hearing in the proceedings concerning K.P.'s application to change the court order concerning the return of the children. At this hearing the court heard evidence from K.P.
49. On 7 March 2004 the applicant asked the court to determine his contact with the children. At the hearing held on 25 October 2004 the parties agreed that the applicant would have a right to two phone calls per month with A and B. This order was amended on 15 April 2005 by the Poznan District Court, which decided that the applicant could visit his daughters every time he came to Poland and that he could take them outside their place of residence.
50. On 27 March 2005 the applicant met his daughters for the first time since 2001. The visit took place in the house of K.P.'s father. The applicant was allowed to speak with his older daughter A but the grandfather, assisted by private security guards, stopped him from entering the second floor of the house to see his younger daughter.
51. On 7 June 2005 the Poznan District Court quashed the decision of 5 January 2001 and decided not to return the children to the applicant. The court justified the review of the final decisions ordering the return of children to Italy, under Article 13 of the Hague Convention, by reference to a risk that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation. It based its assessment on the visits that had been carried out in the place of residence of the children, in September and October 2003, and on the opinion of the Poznań Family Consultation Centre of 27 October 2003. The court established that during their six-year stay in Poland the girls had fully assimilated in the country, spoke Polish, and had forgotten their life in Italy. Their emotional bond with their mother was very strong. The emotional tie between A and her father was distorted as she rejected him, disapproved of him and wished to stay with her mother in Poland. The bond between the younger B and the applicant was considered by the experts as suppressed. In those circumstances the court found that the best interest of the children required quashing the decisions ordering their return to Italy, as separating A and B from their mother could be dangerous for their mental state and could place them in an intolerable situation.
52. On 8 July 2005 the applicant, represented by his lawyer, lodged an appeal against the decision.
53. On 11 October 2005 the Poznan Regional Court dismissed the appeal. The decision is final.
54. On 28 November 2005 the Poznan District Court resumed the enforcement proceedings and decided that in the light of the decision of 7 June 2005 the enforcement of the order to return the children should be finally discontinued.
55. Simultaneously, the Italian courts were dealing with the applicant's case. On 24 February 2005 the Venice court granted the applicant sole custody of A and B. On 28 November 2005 the Venice court gave a decision in which it deprived K.P. of her parental authority over A and B. The decision is final.
56. On 1 December 1999, in the course of the divorce proceedings instituted by K.P., the Poznań Regional Court ordered the applicant to pay 1,000 Polish zlotys (PLN) monthly in child support. The applicant submitted that he had been notified of the reasons for this decision in December 2000.
57. As the applicant was not paying child support the Poznań District Prosecutor instituted criminal proceedings against him, on a request made by K.P. On 25 January 2002 the Poznań District Court ordered the pre-trial detention of the applicant for a period of one month. Subsequently, the prosecutor issued an arrest warrant against him.
58. On 14 October 2002 the Poznań Regional Court ex officio quashed its decision of 1 December 1999.
59. On 20 July 2004 the applicant's lawyer applied to change the preventive measure imposed on the applicant.
60. On 22 July 2004 the Poznan District Prosecutor dismissed his request as it found that bail would not secure the applicant's appearance at his trial. That decision was upheld by the Poznan District Court on 19 October 2004.
61. Another request to quash the decision ordering the applicant's detention was dismissed by the Poznan District Prosecutor on 15 January 2005. The applicant's lawyer appealed against this decision.
62. On 9 March 2005 the Poznan District Court allowed the appeal and quashed the applicant's detention order. The court established that the reason for which the detention had been imposed, the impossibility of establishing the applicant's address in Poland, was no longer a valid ground as he had appointed a representative in the case. Moreover, it had not been substantiated that the applicant would avoid his trial.
63. On 17 May 2004 the Poznan Regional Court during the divorce proceedings decided to dismiss K.P.'s request for child support from the applicant. The court found that since K.P. has been keeping the children illegally and has not allowed the enforcement of final decisions, supporting the children should remain her sole responsibility.
64. On 7 September 2004 the Poznan Court of Appeal dismissed an appeal by K.P. against this decision.
65. On 11 January 2005 the Poznan Regional Court dismissed another request lodged by K.P. to grant her child support from the applicant. Her appeal against this decision was dismissed on 15 February 2005 by the Poznan Court of Appeal.
66. The Hague Convention was published in the Polish Official Journal on 25 September 1995. Article 7 of the Hague Convention reads, in so far as relevant:
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) To discover the whereabouts of a child who has been wrongfully removed or retained;
(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) To exchange, where desirable, information relating to the social background of the child;
(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
67. Pursuant to Article 11:
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks of the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
68. Article 13 provides as follows:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”
69. The 1964 Code of Civil Proceedings (Kodeks Postępowania Cywilnego) in Article 577 provides as follows:
“The custody court can change its decision if the best interests of the person it concerns so require.”
70. The amendment to the Code introduced on 19 July 2001, which entered into force on 27 September 2001, deals with the proceedings concerning the return of children under the Hague Convention.
71. Article 5986 provides, that if a person who is ordered to return a child does not comply with the court's order, the court will instruct the guardian to remove the persons concerned forcibly (przymusowe odebranie osoby).
According to Article 59810:
“Upon a request of a court guardian, the police are obliged to help him in carrying out the forcible removal of [a minor].”
Article 59811 § 1 provides as follows:
“If forcible removal of [a minor] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order, the court guardian shall inform a prosecutor.”
Pursuant to 59812:
“§ 1 The court guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of that person is not disturbed and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function.
§ 2 If the well-being of [a minor] would be in danger as result of the removal, the guardian shall stop the enforcement of the order until the danger is over, unless the stopping of the enforcement would cause greater danger to the person.”
72. As regards visiting rights, according to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, decisions on access rights are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8).
73. If a court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Proceedings is applicable to the enforcement of this obligation. This article provides:
“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...).
2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.”
74. Article 1092 of the Code provided as follows:
“When taking away a person who is the subject of parental authority or who is in care, the bailiff shall be especially careful, and shall do everything to protect such a person from physical or moral harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.”
75. Article 211 of the 1997 Criminal Code (Kodeks Karny) provides as follows:
“Whoever, contrary to the will of the person appointed to take care of or supervise, abducts or detains a minor person under fifteen years of age or a person who is helpless by reason of his mental or physical condition shall be liable to a penalty of deprivation of liberty for up to three years.”
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