ITEMID: 001-105202
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DIBIROVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Mrs Khanipat Dibirova, is a Russian national who was born in 1937 and lives in Alkhazurovo, Chechen Republic (Chechnya). She was represented before the Court by Ms L.A. Khamzayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the attack at the applicant’s house are disputed by the parties.
According to the applicant, on 16 July 2002 federal forces carried out an air strike on Alkhazurovo village. A missile hit the applicant’s house at 56 Voroshilova Street, completely destroying it and causing injuries to the applicant. The applicant submitted that her grandson was also wounded.
The applicant submitted two undated notes which, according to her, had been issued by the Urus-Martan district hospital (the signatures and stamps are unreadable and the notes do not have letterheads). The note in respect of the applicant states that she had presented herself at the hospital “after the air strike of 16 July 2002” and had been diagnosed with splinter wounds to her left shoulder, body and legs.
On 17 July 2002 an expert from the State construction company and the applicant co-signed a damage certificate (дефектный акт). The certificate described the damage to the house situated at 56 Voroshilova Street in Alkhazurovo caused by flooding on 22-23 June 2002. It estimated the destruction of the three-room house built of sun-dried bricks with metal roofing at 80-100 %. It indicated the size of the house at 65 square metres (two premises, of 40 and 25 sq m), plus a covered part of the yard with an area of 54 square metres.
On 30 January 2003 the Urus-Martan district administration issued a note to the effect that the applicant’s household was situated at 56 Voroshilova Street in Alkhazurovo. The household measured 232 sq. m, including 100 sq. m of habitable space, and had been entirely destroyed on 16 July 2002 as a result of a direct hit by an aviation bomb.
The Government submitted that no air strike had been carried out on Alkhazurovo on 16 July 2002. They conceded that an air strike had been carried out in July 2002 on a target in the vicinity of Alkhazurovo, but argued that the circumstances of the attack on the applicant’s house had not been established.
On 29 April 2009 the Commander in Chief of the Ground Forces of the Ministry of Defence wrote to the Representative of the Russian Federation at the Court and informed him that there were no documents to confirm the carrying out of a special operation by the army or the deployment of aircraft on 16 July 2002 in Alkhazurovo. At the same time, the Government referred to the copy of the expert report, which had concluded that the fragments collected at the applicant’s house had belonged to a 100-mm artillery shell (see below). They argued that this shell could have been launched either by the military or by illegal armed groups active in the district.
On 17 July 2002 the Urus-Martan District prosecutor’s office opened a criminal investigation in respect of deliberate destruction of property.
On 18 September 2002 the investigation was suspended as no suspects had been identified.
On 22 October 2002 the prosecutor’s office informed the applicant that the case would be transferred to a military prosecutor, as the alleged offence had been committed by military forces.
On 24 October 2002 the prosecutor’s office of the North Caucasus Military Circuit transferred the applicant’s case to the military prosecutor’s office of the United Group Alignment. On 18 November 2002 the latter informed the applicant that her complaint had been forwarded to the military prosecutor’s office of military unit no. 20102.
On 31 January 2003 a prosecutor of the unit wrote to the applicant that on 16 July 2002 federal air forces had attacked a fighters’ base situated two and a half kilometres to the south of Alkhazurovo. The attack had been carried out by military aircraft based in Yeysk [Krasnodar region]. The navigation system used by the air forces allowed a margin of error of up to two kilometres.
On 26 February 2003 the prosecutor’s office of the Chechen Republic informed the applicant that on 21 February 2003 they had set aside the decision of 18 September 2002 to suspend the investigation. They further noted that they had sent the case to the Urus-Martan District prosecutor’s office and had ordered it to carry out a number of investigative measures, in particular to interview the applicant, to grant her the status of victim and civil claimant, and to assess the pecuniary damage inflicted.
In their observations of 20 January 2010 the Government referred to the statements made by the applicant given on 15 April 2003 and submitted that she had been accorded victim status on the same day. According to the Government, during the questioning the applicant stated that she had learnt from other villagers that her house had been destroyed by a bomb. No transcript of this statement or of the decision to accord victim status has been provided.
On 6 May 2003 the Forensic Science Centre of the Ministry of the Interior of Chechnya (Экспертно-криминалистический центр МВД Чеченской Республики) produced an expert report in respect of over 200 pieces of metal collected at the applicant’s house. The report concluded that the fragments were parts of 100-mm artillery shells, fired from a gun of the same calibre.
The Government informed the Court that the investigation into the attack had been adjourned and reopened on several occasions and that the latest decision to adjourn the proceedings had been taken on 5 June 2004. They submitted that the applicant had been informed of all the relevant decisions taken in the case but had failed to submit any complaints or requests, and had not asked for access to the file. No documents related to the investigation after 6 May 2003 had been submitted by the parties.
On 21 April 2003 two of the applicant’s neighbours drew up a list of belongings which on 16 July 2002 had been destroyed by a missile which struck her house at 56 Voroshilova Street. The list was co-signed by the head of the local municipality.
On 28 April 2003 the applicant brought an action for damages against the Russian Government. Neither the applicant nor the Government submitted any documents related to these proceedings; however they described their progress in the following manner.
On 21 July 2003 the applicant’s lawyer obtained information from the State Committee on Statistics about the average price of one square metre of residential property in the Russian Federation during 2002 and the first and second quarters of 2003.
On several occasions between 6 November 2003 and 21 April 2004 the hearings at the Basmanny District Court of Moscow were adjourned due to the applicant’s failure to appear. On 29 June 2004 the court rejected the applicant’s claim. The hearing took place in the applicant’s absence, at her request. The applicant did not appeal against this decision. The Government stated that a copy of the decision had been sent to the applicant’s representative on 8 September 2004.
The applicant stated that she had not received a copy of the said decision, and that her previous representative, Mr Khamzayev, had died on 13 June 2004. It does not appear that she had taken any steps to obtain a copy of the decision at any stage, to appeal against it or to seek reinstatements of the terms of appeal.
The Government submitted in their observations of 17 February 2010 that the applicant had obtained compensation for the property lost as a result of the attack. Without providing copies of any documents or indicating the dates on which these events had taken place, they submitted that the assessment carried out by the local State construction company had estimated the applicant’s losses to the house and property at 337,236 Russian roubles (RUB). Under the procedure provided for by Government Decree No. 404 (see Relevant national law below), the applicant had been paid compensation of RUB 300,000 for the lost real estate and RUB 50,000 for personal belongings.
The applicant submitted a copy of the assessment report of unclear date produced by the State construction company, which calculated damages to the house and property at 56 Voroshilova Street at RUB 337,236. She did not comment on the issue of compensation apparently paid to her on the basis of this assessment.
The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом» – “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows:
“For the purposes of the present Federal Law the following basic concepts shall be applied:
... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities;
‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...”
“On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
Governmental Decree no. 404 of 4 July 2003 established the right of all permanent residents of the Chechen Republic who had lost their homes and any possessions in them after 12 December 1994 to receive compensation in the amount of RUB 300,000 for their home and RUB 50,000 for possessions.


ITEMID: 001-61133
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MALEK v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the other complaints;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1963 and lives in Krems (Austria). He is a practising lawyer by profession.
5. On 18 June 1993 a colleague, Mr P., laid a disciplinary information against the applicant alleging that he had infringed the profession’s honour and reputation in the context of administrative criminal proceedings relating to traffic offences. He was suspected of having misbehaved towards intervening police officers during a traffic control by threatening them with job-related troubles in case they charged him with traffic offences. Subsequently, on 10 September 1993 the Disciplinary Council of the Lower Austrian Bar Chamber (Disziplinarrat der Niederösterreichischen Rechtsanwaltskammer), upon request of the Bar Chamber’s Prosecutor (Kammeranwalt), appointed an Investigating Commissioner (Untersuchungskommissär).
6. On 16 September 1993 the Investigating Commissioner informed the applicant that disciplinary proceedings against him were opened and requested him to file observations as regards the charges against him.
7. On 4 October 1993 the applicant complied with this request.
8. On 13 June 1994 the Investigating Commissioner submitted a report to the Disciplinary Council.
9. On 7 October 1994 the Disciplinary Council discontinued the proceedings against the applicant. The Bar Chamber’s Prosecutor filed an appeal against this decision.
10. On 15 December 1994 the applicant submitted his observations on the appeal.
11. On 20 February 1995 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) allowed the Bar Chamber’s Prosecutor’s appeal and remitted the case to the Disciplinary Council.
12. In August 1995, after the case had been taken over by another Investigating Commissioner, the latter agreed with the Vienna Federal Police Directorate (Bundespolizeidirektion) to question the police officers involved in the traffic control at issue by way of letters rogatory. On 3 November 1995 he filed letters rogatory with the Donaustadt District Court (Bezirksgericht) which were subsequently transferred to the Josefstadt District Court.
13. On 13 December 1995 the two police officers were questioned by the Josefstadt District Court.
14. On 8 February 1996 the Investigating Commissioner submitted his report to the Disciplinary Council.
15. On 3 June 1996 the Disciplinary Council, upon the Investigating Commissioner’s report, decided to open the main proceedings. This decision was served on the applicant on 31 July 1996.
16. On 30 August 1996 the applicant filed his observations.
17. On 20 September 1996 the Disciplinary Council fixed a hearing for 14 October 1996 and summoned the applicant, his spouse and the two police officers. As the applicant’s spouse and one police officers submitted that they could not appear at that date, the hearing was cancelled.
18. On 24 February 1997 the Constitutional Court, in proceedings unrelated to the present one’s, issued a decision concerning the composition of the Disciplinary Council. On 15 May 1997, after an internal discussion of the consequences of the Constitutional Court’s decision for the proceedings at issue, Mr F was appointed as new chairman of the Disciplinary Council.
19. On 17 September 1997 the Disciplinary Council fixed a hearing for 6 October 1997. The applicant’s spouse and the two police officers submitted that they could not appear at that date.
20. On 19 September 1997 the applicant filed observations and challenged the chairman and another member of the Disciplinary Council for bias.
21. On 23 September 1997 a new chairman was appointed.
22. On 6 October 1997 the Disciplinary Council held a hearing. The applicant requested to summon his spouse for the next hearing. The Disciplinary Council adjourned the case and decided to obtain the file concerning the administrative criminal proceedings against the applicant.
23. On 9 February 1998 the Disciplinary Council requested the Vienna Federal Police Directorate to submit the file concerning the administrative criminal proceedings against the applicant.
24. On 5 August 1998, since the file at issue had meanwhile been transmitted to an other administrative authority, the Disciplinary Council filed a new request to submit the file.
25. On 6 August 1998 the Disciplinary Council fixed a hearing for 14 September 1998. The applicant again challenged a member of the Disciplinary Council for bias.
26. On 14 September 1998 the Disciplinary Council held a hearing. The only witness heard was one of the two police officers, the other witnesses and the applicant submitted that they were not able to appear.
27. On 14 October 1998 the Disciplinary Council fixed another hearing for 9 November 1998. The applicant again challenged two members of the Disciplinary Council for bias and submitted that he was prevented from appearing.
28. On 9 November 1998 the Disciplinary Council held a hearing and convicted the applicant under section 10 § 2 of the Lawyers Act. It found that he had misbehaved towards intervening police officers during a traffic control by threatening them with job-related troubles in case they charged him with traffic offences. The applicant had thereby infringed the profession’s honour and reputation. The Disciplinary Council ordered him to pay an additional fine of ATS 10,000 as he had already been ordered to pay ATS 25,000 in four other sets of disciplinary proceedings.
29. On 15 December 1998 the applicant filed an appeal against this decision and on 11 January 1999 the Bar Chamber’s Prosecutor submitted his observations in reply.
30. On 14 June 1999 the Appeals Board dismissed the applicant’s appeal.

31. On 30 September 1999 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained, inter alia, about the length of the proceedings and claimed that the disciplinary authorities had failed to take the excessive length of the proceedings into account as a mitigating circumstance.
32. On 29 February 2000 the Constitutional Court dismissed the applicant’s complaint. This decision was served on the applicant on 6 April 2000.
33. Section 10 § 2 of the Lawyers Act (Rechtsanwaltsordung) provides that a practising lawyer is obliged to preserve the honour and reputation of the profession by his honest and sincere conduct.
34. Section 16 § 1 of the Disciplinary Act (Disziplinarstatut), in the version applicable at the material time, provided for the following disciplinary penalties: a written reprimand, a fine of up to ATS 500,000, a prohibition on practising as a lawyer for a period not exceeding one year and being struck off the bar roll.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71099
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SUNTSOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1948 and lives in Volgograd.
5. Pursuant to a decision of the Volgograd Central District Administration of 14 October 1987 the applicant began receiving a monthly single mother allowance in respect of her daughter who was born on 15 April 1986.
6. In 1998, from April to July, the applicant received no payments.
On 4 September 1998 the applicant brought proceedings before the Central District Court of the City of Volgograd (Центральный районный суд города Волгограда) requesting the payment of outstanding sums.
7. By a judgment of 21 September 1998 the court allowed the applicant’s claim and ordered the Finance Department of the Volgograd Regional Administration (Волгоградское облфинуправление) to pay the applicant 467.56 roubles (RUR).
8. Following the entry into force of the judgment, the court’s bailiff instituted enforcement proceedings for recovery of the sum awarded to the applicant. However, the applicant was informed that in 1998 the court judgment could not be enforced, because the defendant lacked sufficient funds.
9. The applicant complained about the non-enforcement of the judgment to the Department of Justice of the Volgograd Regional Administration (Управление юстиции администрации Волгоградской области), which on 16 February 1999 forwarded her complaint to the bailiff’s service of the first instance court for reply and necessary measures.
In an undated letter of 1999, the bailiff’s service informed the applicant that it had issued a writ of execution, but had not yet received from the defendant the sum due to the applicant.
10. According to the Governments submissions, which were not contested by the applicant, the sum of RUR 467.56 was paid to her twice – on 29 September 2000 and on 9 October 2002.
11. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
12. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88516
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LANDEN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Tommy Landén, is a Swedish national who was born in 1945 and lives in Järfälla. He was represented before the Court by Mr S. Svahnström, a lawyer practising in Täby. The Swedish Government (“the Government”) were represented by their Agent, Ms C. Hellner, Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant ran a contracting business dealing with excavation and drilling of wells for fresh water and geothermal heating. In 1987 and 1989 he purchased two excavators, for which he obtained financing from two credit institutions. According to the two contracts for purchase by instalments, the excavators were to remain the property of the credit institutions until the full purchase price had been paid. The interest fixed in the contracts was 12.5 and 14.7%, respectively.
4. In June 1991, the applicant’s contracting business went bankrupt. As a consequence, by a decision of the District Court (tingsrätten) of Lindesberg of 15 July 1991, a third credit institution, which apparently had acquired title to the two contracts mentioned above, claimed possession of the two excavators. According to the applicant, the credit institution did not render any account to him concerning the further administration of the excavators but he learned much later that they had been sold to a buyer in the Netherlands, allegedly for a price much below their market value.
5. Apparently, title to the two contracts were later acquired by a fourth credit institution, Handelsbanken Finans AB (hereinafter “Handelsbanken”). In the autumn of 1992, Handelsbanken applied to the Enforcement Service (kronofogdemyndigheten) for a payment order (betalningsföreläggande) against the applicant. It claimed 577,813 Swedish kronor (SEK; corresponding to approximately 61,000 euros (EUR)) in recovery of the debt and annual interest on overdue payments of 24%. According to the applicant, neither that application nor the Enforcement Service’s injunction to reply was served on him.
6. By a decision of 2 December 1992, the Enforcement Service issued a payment order, in accordance with Handelsbanken’s application. The decision stated that the applicant had been served with the Service’s reply injunction but had failed to contest the bank’s claim. According to the applicant, as with the application by Handelsbanken and the Service’s reply injunction, he did not receive the payment order. It appears, however, that the order was sent to his registered address at Kopparberg. This address was not changed by the applicant although, after the bankruptcy, he bought a caravan, moved away from the house he had been renting and came to live, for several years, at various temporary places. Allegedly, in the late 1990s, he reported to the authorities that he lived in Järfälla.
7. On 3 October 2002 the applicant received from a debt-recovery company owned by Handelsbanken a claim for repayment of the debt, now amounting to SEK 577,813 plus SEK 1,665,726 (approximately EUR 175,000) in accrued interest. Apparently without having received a reply from the applicant, Handelsbanken subsequently applied to the Enforcement Service for enforcement of the 1992 payment order.
8. In a reply to the Service dated 5 November 2002, the applicant contested the claim which, he asserted, was completely unknown to him and, in any event, statute-barred. He further stated that, if the case was not dismissed, he wished to see the original documents relating to the debt with his signature.
9. By a decision of 5 December 2002, the Enforcement Service dismissed Handelsbanken’s claim. Basing itself on the incorrect assumption that the debt in question concerned a consumer credit – for which a three-year period of limitation applied, as opposed to ten years for a commercial credit –, the Service found that the 1992 payment order was no longer enforceable.
10. Handelsbanken appealed to the District Court of Stockholm. By a letter of 27 January 2003, the applicant’s legal counsel requested that the Enforcement Service be ordered to give information on how and when Handelsbanken’s application for a payment order and the Service’s subsequent decision of 2 December 1992 had been served on the applicant.
11. Three days later, the Enforcement Service informed counsel for the applicant by telephone that the entire file had been destroyed, as ten years had passed since the 1992 decision.
12. On 18 March 2003 the District Court rejected Handelsbanken’s appeal against the Enforcement Service’s decision of 5 December 2002. The reasons were, however, different from those given by the Service. The District Court noted that, under sections 5 and 7 of the Statute of Limitations Act (Preskriptionslagen, 1981:130), the running of the period of limitations was interrupted by an application to a court or to the Enforcement Service, such interruption, however, requiring additionally that the debtor had been served with the creditor’s application. The court further stated that the burden to prove that such service had taken place rested with the creditor, in this case Handelsbanken, which had had the opportunity to secure evidence in this respect. Noting that the only proof of service that had been presented was the statement in the decision of 2 December 1992 that the applicant had been served with the Service’s reply injunction, the court concluded that Handelsbanken had failed to show that the running of the period of limitation had been interrupted.
13. Handelsbanken appealed to the Svea Court of Appeal (Svea hovrätt). Confident that the appellate court would find in his favour, the applicant stated, in a submission of 14 April 2003, that there seemed to be no reason to have an oral hearing since the case concerned “a simple matter of law”.
14. Further on 14 April 2003 the applicant instituted proceedings before the Göta Court of Appeal (Göta hovrätt), requesting that the Enforcement Service’s decision of 2 December 1992 be set aside due to a miscarriage of justice (domvilla). He claimed that the decision had been taken without his having been duly served with the injunction to reply, in accordance with the provisions of the Code of Judicial Procedure (Rättegångsbalken). He did not invoke any evidence.
15. Handelsbanken argued in these proceedings that the payment order had been sent in the applicant’s name to his registered address. In relation to the applicant’s claim that he had not had any contact with Handelsbanken after the excavators had been reclaimed in 1991, Handelsbanken stated that it had sent letters by ordinary mail to the applicant on 13 occasions between 1993 and 2002 requesting him to pay the debt. Due to a special agreement with the postal service any letter not successfully delivered to the addressee would usually be returned, but none of the letters sent to the applicant had allegedly been returned. Furthermore, Handelsbanken had already applied for enforcement of the payment order in 1994 but had been informed by the Enforcement Service, in a report of 12 January 1995, that the applicant lacked attachable property. In the same report, the Service stated that it had been in contact with the applicant during the course of the matter. Furthermore, Handelsbanken asserted that, according to a note made by the above-mentioned debt-recovery company, the applicant had called the company on 31 October 1994 and asked for copies of “everything”. Consequently, Handelsbanken strongly doubted that the applicant, before receiving the application for enforcement on 3 October 2002, had been unaware of its claim and the payment order.
16. The submissions of Handelsbanken were sent to the applicant but he did not submit any comments in reply.
17. In the present proceedings before the Court, the applicant claimed that after his bankruptcy he had not had any contact whatsoever with the Enforcement Service until November 2002 when he received the application for enforcement of the payment order. He had felt that the Service had caused him harm in the bankruptcy proceedings and had not wished to have any further contact with the Service. He further rejected Handelsbanken’s assertion that he had called the debt-recovery company in October 1994. In any event, he asserted that such a contact could not have cured the failure in the autumn of 1992 to properly serve him with the injunction to reply in the payment order proceedings. These statements were, however, not submitted to the Göta Court of Appeal.
18. By a decision of 24 October 2003, the Göta Court of Appeal rejected the applicant’s request in regard to miscarriage of justice. The court first rejected Handelsbanken’s objection that the case should be dismissed on the ground that the matter was already pending before the Svea Court of Appeal (lis pendens). In so doing, it stressed that the Svea Court of Appeal case concerned the question whether the claim was statute-barred whereas the case before the Göta Court of Appeal determined whether any procedural error had been committed in the handling of the claim. With regard to the substance of the latter issue, the court noted that the decision of the Enforcement Service stated that the applicant had been duly served and considered that there was no reason to question the accuracy of this statement. Consequently, there had not been any miscarriage of justice.
19. On 21 September 2004 the Supreme Court (Högsta domstolen) refused leave to appeal against the above decision of the Göta Court of Appeal.
20. In the enforcement proceedings, pending before the Svea Court of Appeal, the applicant changed his view on the necessity of an oral hearing following the decision by the Göta Court of Appeal in the proceedings concerning miscarriage of justice. Thus, he asked the Svea Court of Appeal to hold a hearing, at which he wished to be heard about the service of documents in the case. The court, however, informed the parties that it found a hearing unnecessary. The applicant was given an opportunity to submit final observations in writing. He did so and, at the same time, reiterated his request for a hearing.
21. By a decision of 15 December 2004, the Svea Court of Appeal reversed the District Court’s decision of 18 March 2003. The appellate court interpreted the preparatory works (prop. 1979/80:119, p. 69 et seq.) of section 7, subsection 2 of the Limitations Act (Preskriptionslagen, 1981:130) and found that the requirement to serve the application for a payment order on the debtor in order to interrupt the running of the period of limitations did not apply to situations where the matter had been finalised with a decision by the Enforcement Service. Instead, the requirement of service, contained in this rule of exception, was aimed at cases where a creditor applied for a payment order and then withdrew the claim before service had taken place, with the purpose of starting a new period of limitations. Consequently, in assessing the period of limitations in the present case, it was irrelevant whether the payment order had been properly served or not. That period should therefore be counted from 2 December 1992, the date of the Service’s decision. The court noted that it was undisputed that Handelsbanken’s claim for enforcement had been introduced within ten years from that date.
22. The Court of Appeal went on to examine the applicant’s objection that the payment order had been issued under such circumstances that there were reasons to quash it. The court noted that a writ of execution could be quashed in enforcement proceedings only in highly exceptional situations. Noting that the applicant’s objection had been examined in the case concerning miscarriage of justice and that that examination had not led to the order being quashed, the court found no reason to question the validity of the payment order as a writ of execution.
23. The Court of Appeal therefore concluded that there were no impediments to the enforcement of the payment order and returned the matter to the Enforcement Service for further processing.
24. As questions concerning service of documents were of no relevance to the determination of the case, the Court of Appeal further found that there was no reason to hold an oral hearing and, accordingly, refused the applicant’s request in this respect.
25. On 14 February 2005 the Supreme Court refused the applicant leave to appeal against the Svea Court of Appeal’s decision of 15 December 2004.
26. Chapter 3 of the Enforcement Code (Utsökningsbalken) contains provisions on execution titles. Section 21 provides the following on objections to enforcement:
“If the defendant shows that he has satisfied an obligation to pay or other obligation to which the application for enforcement relates, enforcement may not take place. This also applies if the defendant as a set-off invokes a claim that has been confirmed by an execution title which may be enforced or which is based on a promissory note or other written evidence of debt, and the general preconditions for set-offs are met.
Nor may enforcement take place if the defendant claims that another circumstance relating to the dealings between the parties constitutes an impediment to enforcement and the objection cannot be ignored.
If a situation referred to in the first or second paragraph is at hand and a measure of enforcement has already been taken in the case, the measure shall be annulled, if this is possible.
The decision of the Enforcement Service by reason of an objection referred to in the first or second paragraph does not prevent the matter from being considered by a court.”
27. An objection based on a circumstance relating to the parties’ dealings may only concern the substantive judicial relationship between the parties, for instance that the person seeking enforcement has granted the defendant a respite for the payment, that they have agreed on a service in return for the payment or that the execution title has become statute-barred (see Walin, Gregow, Löfmarck, Utsökningsbalken – en kommentar (commentary to the Enforcement Code), 3rd edition (1999), pp. 105-107).
28. In a case where the defendant had claimed that a decision constituting an execution title was unlawful or at least incorrect, the Supreme Court, which dismissed the objection by a decision of 3 September 1984, stressed that the scope for rejecting an execution title in an enforcement case is extremely limited (NJA 1984, p. 602). In a more recent decision, taken on 18 December 2006 (NJA 2006, p. 657), the Supreme Court expressed the following:
“A basic principle in cases of enforcement is that the enforcing authority has no right to examine anew issues that have been determined in the execution title. Upon appeal in enforcement cases, the courts’ powers are no wider than those of the Enforcement Service.
Accordingly, in so far as the courts’ determination is concerned, objections against an execution title, which refer to circumstances dating back to time before it was issued, cannot be examined in the enforcement case. In respect of decisions taken by an administrative authority, it is likely that there is a somewhat wider scope for such objections, but then they would, as a rule, concern issues that have not been examined in the execution title.”
29. Section 7 of the Limitations Act reads as follows:
“Where a limitation period is interrupted through the commencement of legal proceedings or otherwise through the pleading of a claim as stated in section 5, subsection 3, a new limitation period shall run in accordance with the provisions of section 2 from the day of the publication of a judgment or a final decision or from the day on which the legal proceedings are concluded in any other way. Where, prior to the expiry of the new limitation period, the case is appealed or the proceedings are resumed for any other reason, the period of limitation is interrupted, and a new period of limitation shall run from the day of the conclusion of the resumed proceedings.
However, where the legal proceedings are concluded without the debtor having been served with, or otherwise informed of, the creditor’s statement of claim, the period of limitation shall be calculated as if no interruption had occurred. The claim shall nevertheless not be barred by the expiry of the limitation period earlier than one year after the conclusion of the proceedings.
The period of limitation may no be extended more than once pursuant to the provisions of the second paragraph, second sentence.”


ITEMID: 001-102894
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RYTCHENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Remainder inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1956 and lives in Moscow.
6. On 11 February 1995 the applicant and Ms B. got married. Ms B. already had a daughter, T., by a different father. On 23 December 1995 Ms B. gave birth to a daughter, A. In May 1998 the applicant moved out of his and Ms B.'s household. He continued to visit A. every week. From November 1998 Ms B. refused all contact between the applicant and the girl. His attempts to see A., with the help of the local custody and guardianship office, were unsuccessful.
7. On 15 November 1998 A. was examined by M., the director of the psychological centre, Inex-92. M. stated that A. had a wide range of fears and displayed increased anxiety. On the basis of the tests conducted, it was established that A. had a close relationship with her mother and elder sister, but was distanced from her father and tended to reject him.
8. On 9 December 1999 A. was examined by psychologist M-va, with a view to determining her emotional state following the long absence of her father. M-va's conclusion stated:
“1. [A.] easily establishes contact with a stranger (psychologist) which proves that [she] has developed a feeling of safety.
2. [A.] is in stable emotional state. The girl is cheery, clever, actively reacts to jokes, displays initiative in communication and in games.
3. The child is surrounded by love and care from her mother and grandmother [and] likes to play with her elder sister.
4. The following [A.'s] statements give rise to concern: “My father does not give me presents...”, “I feel good without him...” and “I don't want to see him”.
5. The absence of the father is compensated by communication with a great-uncle and role-play games (used as a therapeutic means).”
9. On 14 January 2001 the applicant's marriage was dissolved and Ms B. was granted full custody of A.
10. On 22 February 2001 the applicant sued Ms B. for the obstruction of access to his daughter, A.
11. On 26 April 2001 Ms B. filed a counter-claim seeking to divest the applicant of his parental rights.
12. On 5 April 2001 Moscow Psychoneurological Dispensary No. 4 carried out a psychological examination of the applicant at the request of the Izmaylovskiy District Court of Moscow. The applicant consented to the examination. The panel of three doctors that examined the applicant stated that he might be suffering from paranoid personality disorder or “sluggish schizophrenia”. However, the conclusive diagnosis could only be made upon an in-patient examination.
13. On 4 November 2001 A. was examined for a second time by M., the director of the psychological centre, Inex-92. M. stated that A. was highly communicative, intellectually developed and emotionally free. She also displayed a high degree of reflection, stability of mood, optimism and an interest in life. Various tests conducted revealed close relationships between A. and her mother and her elder sister and a rejection of her father. The main reasons for the rejection were expressed by A. as follows: “he offends T. (the elder sister)”, “it is bad with him” and “he is mean”. According to M., the latter statement could be understood to mean that the applicant had an excessive tendency to preach. M. further stated that A.'s rejection of her father was of a stable psychological and motivated nature, which might have been caused by a previous traumatic experience and was not inspired by another person. At the same time, A. willingly accepted the father of her elder sister, her maternal grandfather, sports coaches and a male psychologist. M. concluded that there had been a positive development in A. over the three years that had passed since her first examination: the fears had disappeared, the anxiety had eased, she displayed optimism and emotional stability. A phobic reaction to men, which had previously been observed, had also disappeared. M. stated that, in his view, it was necessary to take into account A.'s opinion concerning the choice of parent so as not to cause repeated psychological trauma.
14. On 18 December 2001 M. examined the applicant. He noted that the examination was of a superficial nature and could not substitute a complete in-patient psychological examination. M. further stated that the examination did not reveal any psychopathic symptoms. However, taking into account A's persistent rejection of her father, he recommended exercising caution as regards their interaction so as not to cause repeated psychological trauma.
15. On 8 February 2002 the Izmaylovskiy District Court of Moscow allowed the applicant to visit A. every first Sunday of the month between 12 noon and 2 p.m. in the presence of Ms B. The court relied, inter alia, on an expert's opinion which stated that contact with the father would not have a negative effect on the child. At the same time the court dismissed Ms B.'s counter-claim.
16. The applicant appealed, requesting additional visiting hours. On 16 April 2002 the Moscow City Court dismissed his appeal and upheld the judgment.
17. Ms B. failed to comply with the court order and the visit scheduled for 5 May 2002 did not take place. On 27 May 2002 the bailiffs' office opened enforcement proceedings.
18. The applicant was not able to see A. on either 2 June or 7 July 2002. The bailiff summoned Ms B. and requested her to obey the court order on pain of an administrative fine.
19. The applicant saw his daughter on 4 August, 1 September, 6 October, 3 November and 1 December 2002, and 5 January, 2 February, 2 March, 6 April, 4 May and 1 June 2003. The meetings were held in the presence of Ms B. who, according to the applicant, prevented A. from speaking to him, playing with him or accepting his gifts.
20. On 17 October 2002 the applicant applied to the Izmaylovskiy District Court claiming additional visiting hours without Ms B.'s supervision. Ms B. requested that the applicant's access rights be terminated.
21. On 17 February 2003 the Izmaylovskiy District Court held a hearing during which it granted Ms B.'s motion to adduce the following documents for examination: the medical report from the Psychoneurological Dispensary No. 4 on A.'s psychological state, psychologists' reports on her mental state between 1998-2001, reports from the school and the sports centre that A. had attended and the two reports from A.'s psychological examinations. The applicant submitted a detailed statement in support of his claim and requested an expert psychological examination of A. The court granted the request. It also granted the motion of the local custody and guardianship office to examine A. at the hearing.
22. Following the examination conducted pursuant to the court order, expert K. stated the following.
a) A. and her mother had a close relationship characterised by an emotional bond and cooperation. Ms B.'s attitude to her daughter was emotionally-open, she tried to understand and accept the child's emotional state and the relationship was based on the girl's interests. The mother undertook a democratic approach to parenting, which included a high level of verbal communication, the inclusion of the girl in discussions on family issues, the supporting of the child's interests and independence. She paid sufficient attention to the girl's physical and intellectual development.
b) During the previous four years A.'s contact with the applicant had been of an episodic and formal nature and, as a rule, in the presence of third persons. The applicant substituted direct parental communication with moralising and attempts to obtain assurances of A.'s affection in front of third persons or to demonstrate Ms B's “undue” conduct. The values and behavioural motives of the applicant and Ms B. differed significantly. The applicant typically had formal relationships with people devoid of pronounced emotional involvement, which were based on certain rules, worked out in the course of his life. His approach to parenting was based on control, implying significant restrictions to the child's conduct. The applicant did not recognise his daughter's right to her own interests and independent choice. He poorly understood, and did not take into account, the girl's psycho-emotional and age-related behaviour.
c) A child's “core personality” is formed at approximately five years old. A. had a sufficiently high level of intellectual development. However, her emotional sphere was much more labile than that of an adult and mostly depended on her environment. Her own values and opinions were being developed in the course of communication within the family. Furthermore, it is typical for children to copy the conduct of other persons, primarily the parent of the same sex. Therefore, it might be asserted that A.'s perspective of the issue was nearly identical to her mother's. From the point of view of further social adaptation, her female upbringing (mother, grandmother, elder sister) was sufficiently auspicious as it enabled a model of “female conduct” in society to be successfully put into practice. The remote negative result is that A. might have difficulties in building her own family, due to the absence of an adequate model of conjugal partnership. However, this applies to all children from single-parent families.
d) The feeling of safety is a vital human need. The basic feeling of safety is provided by the family. In the first seven years of a child's life, communication with the mother is more important, irrespective of the child's gender. The child forms an image of the father through the prism of the mother's perception and his/her own communication with him, which A. had been deprived of for the last four years. At the time in question, A. saw the applicant as an incomprehensible stranger, whose actions had subverted her feeling of safety. Her mother and grandmother, in compliance with the court order, had effectively forced A. to communicate with her father, whom she did not love and was afraid of. As a result, A.'s immediate family (mother and grandmother) and relatives (father), instead of being the safety factor, became the danger factor. A.'s negative emotional stress, brought about by the meetings with her father was expressed in affective reactions (shouts, tears, obsessive movements) observed after the meetings. The increase of the duration of the meetings, especially in the mother's absence, would entail the risk of the child's persistent neurosis or depression, due to the impossibility of avoiding the subjectively distressing situation. The extreme manifestation of such a condition is self-aggression (suicidal tendencies, thoughts and actions).
e) The so-called “female upbringing” was not a factor that would foster a negative or “wrong” attitude by the girl towards men in general. A. was unlikely to develop serious problems from the point of view of social or professional adaptation. She had sufficient experience of communication with the opposite gender through contacts with her peers, teachers, sports coaches, and so on.
f) Blood relations do not guarantee mutual love, respect or deep attachment. Emotional relationships are formed in the course of cohabitation, communication, upbringing and communal activity. The inability or unwillingness of the parents to establish a civilised relationship might have affected the negative attitude of A. towards the applicant. The prolonged conflict between the applicant and Ms B., with whom A. identifies, resulted in the child's lack of belief in the possibility of a positive development of her relationship with her father.
g) Ignoring the girl's emotional and rational rejection of her father and forcing her to meet with him might cause irretrievable adverse effects on the latter's health and psychological well-being. It might also adversely affect A.'s moral development, since in such a situation neither the family nor the State would provide her with psychological support and safety.
23. On 24 June 2003 the Izmaylovskiy District Court delivered its judgment. The court had studied several expert reports. In particular, in August and September 2002 A. had been referred to a psychologist at the Izmaylovo centre for children. In the report, the psychologist stated that in August 2002 A. had been provided with psychological aid after meetings with her father since, after the resumption of contacts with her father, the girl was highly agitated, irritable and suffered from nightmares. The same psychologist had consulted the applicant and stated that he was showing no parental interest in or affection for his daughter. His perception of the child was “inadequate” and he displayed “a pathological tendency towards litigation”.
24. The court also studied the report of the expert examination conducted pursuant to its order of 17 February 2003 and examined expert K. during the hearing. She confirmed the conclusions she had stated in the report and emphasised that forcing A. to meet with the applicant, especially without the presence of Ms B., might irreversibly affect her physical and psychological well-being and possibly lead to neurosis and depression. Furthermore, expert K. asserted a strong opinion that the applicant was interested in having contact with A. only to boost his self-esteem and not to establish a relationship with the child. The absence of such a relationship was acknowledged by the applicant himself in his letters to Ms B. and the bailiff, where he stated that his daughter did not wish to see him, hated him, wanted to change her surname and refused to accept his gifts.
25. The District Court further examined the opinion of the local custody and guardianship service which stated that meetings between the applicant and A. should be discontinued, having regard to the interests and wishes of the latter, who strongly resisted communication with her father.
26. The court questioned the applicant, who reiterated his claim. It also questioned Ms B., who stated that during the meetings the applicant had provoked a negative reaction on the part of A., for example, by forcibly removing her glasses or earphones, forcing her to accept a book as a present and then taking pictures so as to document her refusal. He failed to establish a relationship with the girl, did not take into account her opinion, applied coercion and brought her to tears. After the meetings with the applicant A. developed nervousness, problems sleeping and refused to leave the house. This behaviour was noted in the psychologists' reports.
27. The District Court further examined several other witnesses. A.'s school sports coach and her aunt stated that the girl was very sociable, but reacted negatively to her father, wanted to have her mother's surname, had not allowed him to take a picture of her and had left the classroom when the applicant had come to visit her at school. The applicant's father and brother believed that Ms B. had turned her daughter against her former husband. Ms B.'s step-father said that the applicant and his child had had a wonderful relationship until the parents' separation.
28. The District Court also questioned A. in the presence of a teacher. A. explained that she did not like her father, did not want to see or talk to him and wanted to have her mother's surname.
The District Court held as follows:
“In accordance with Article 66 § 4 [of the Family Code] and section 8 of ruling no. 10 of 28 May 1998 of the Plenum of the Supreme Court of the Russian Federation, in exceptional cases a court may refuse a parent's claim to determine the order of [his or her] participation in the child's upbringing when communication between the child and ... the parent may adversely affect the child, his physical and psychological wellbeing.
The court grants the claim to discontinue the father's contact with his daughter and dismisses [his] claim for additional visiting hours, having regard exclusively to the interests of the minor, in particular: the contact ... affects the child's physical and psychological well-being, which is demonstrated by the lack of mutual understanding and communication between the father and the daughter during the meetings ordered by the court's previous decision; having the father's surname is a traumatising situation for the child; the meetings have a very formal nature; the child's conduct at the appearance of her father, when in her mother's presence, is characterised by strong rejection ([she] hid under the desk; ran away; tore up [her] letter of commendation bearing the surname “Rytchenko”; after seeing her father, she refused to go to a picnic with her classmates), which is not conducive to creating psychological comfort and a feeling of safety for the child; the very litigation is psychologically traumatising since it was initiated by [the applicant] but is centred around the seven year-old child, who knows about it because the court decision of 8 February 2002 is being enforced with her participation. Furthermore, the court takes into account that the child was being seen repeatedly by psychologists ...
The lack of contact between the father and the daughter and the psychologically traumatising environment for the child is corroborated by the parties' explanations, documentation from the case, statements by witnesses and the opinion of the local custody and guardianship office.”
29. At the hearing of 24 June 2003 the judge removed one of the applicant's representatives from the courtroom. The applicant also asked his second representative to leave the courtroom and requested that the judge provide him with legal representation. After the refusal to grant his request, the applicant unsuccessfully challenged the judge.
30. On 22 September 2003 the Moscow City Court upheld the first-instance judgment. It also mentioned that the applicant's representatives had been removed for contempt of court.
“1. The exercising of parental rights shall not be in contradiction with the children's interests. Providing for the children's interests shall be an object of the parents' primary care.
In exercising the parental rights, the parents will not have the right to inflict damage on the physical and psychological well-being of the children, or on their moral development. The methods of the children's upbringing must exclude neglectful, cruel, rude or degrading treatment, insults or exploitation of the children.
Parents exercising parental rights to the detriment of children's rights and interests shall be made answerable in conformity with the law-established procedure.
2. All issues concerning the children's upbringing and education shall be resolved by the parents by mutual consent based on the children's interests and taking into account [their] opinion. In the case of a disagreement, the parents (or one of them) shall have the right to apply to a custody and guardianship office or to a court to resolve any differences.
3. If the parents live apart, the children's place of residence shall be established by an agreement between the parents.
In the absence of an agreement, a dispute between the parents shall be resolved in court, proceeding from the children's interests and taking into account [the children's] opinion. The court shall take into account the child's attachment to each of his parents and to his brothers and sisters, the child's age, the moral and other personal qualities of the parents, the relations existing between each of the parents and the child, the possibility to create optimal conditions for the child's upbringing and development (the parents' activity, their work routine, their financial and family situation, etc.).
1. The parent residing apart from the child shall have the right to communicate with the child, participate in [the child's] upbringing and take decisions concerning the child's education.
The parent with whom the child resides shall not prevent the child from communicating with the other parent, unless the communication damages the child's physical or psychological well-being and his moral development.
2. Parents shall have the right to conclude a written agreement concerning the way in which the parent residing apart from the child exercises his parental duties.
If the parents fail to reach an agreement, the dispute shall be settled in court, upon the parents' claim (or one of them), with the participation of a custody and guardianship office.
3. In the case of failure to comply with the court's decision, the parent at fault shall be subjected to the measures provided in the Code of Civil Procedure. In the case of persistent failure to comply with the court's decision, the court may decide, upon the claim of the parent residing apart from the child, to transfer the child to that parent, proceeding from the child's interests and taking into account his opinion.
4. The parent residing apart from the child shall have the right to receive information about the child from educational and medical establishments, institutions for social protection and other similar bodies. The information may be withheld only if the parent presents a threat to the child's life and well-being. The refusal to provide information may be challenged before a court.
31. Section 8 of the Ruling provides that, when a court has to determine the level of participation in a child's upbringing of the parent who resides apart from the child, it has to take into account the child's age, his state of health, his attachment to each of his parents and other circumstances which could affect the child's physical and psychological well-being and moral development. In exceptional cases, when communication with the parent who resides apart from the child may adversely affect the latter, the court may dismiss that parent's claim to participation in the child's upbringing on the basis of Article 65 § 1 of the Family Code. The reasons should be stated in the court's decision.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-110450
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF MEHMET NURİ ÇAÇAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre
TEXT: 4. The applicant was born in 1970 and lives in Bitlis.
5. On 29 April 2000 the applicant was arrested and imprisoned after a criminal conviction.
6. During the imprisonment it was found that the applicant was mistakenly incarcerated due to his personal identity card being used by his brother in commission of a crime.
7. On 25 July 2000 the Istanbul State Security Court found in favour of the applicant and ordered his release.
8. The applicant could only be released on 7 August 2000 because of extended paperwork.
9. On 4 February 2002 the Istanbul State Security Court ordered the acquittal of the applicant.
10. On 27 October 2000 the applicant lodged criminal complaint with the Bakırköy Assize Court requesting compensation for his unlawful detention for a period of three months and eight days, pursuant to Law no. 466.
11. During the course of the proceedings, the court held twenty one hearings. The applicant was present only at one of them, which was held on 19 July 2001. The applicant’s lawyer did not attend to any of the hearings despite having been notified.
12. On 7 March 2007 the court partially granted the applicant’s request.
13. On 15 April 2009 the Court of Cassation quashed the judgment of the first-instance court on the ground that the proceedings before the Istanbul State Security Court had not been finalised at the time when the applicant brought the compensation action before the assize court. It held that the applicant had failed to comply with a prerequisite in order to bring such an action.
14. On 25 September 2009 the court dismissed the case in line with the decision of the Court of Cassation.
15. According to the information in the case file the proceedings are currently pending before the Court of Cassation.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79153
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KLIMENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1967 and lives in the town of Taganrog.
5. On 10 July 2000 the Taganrog Town Court (“the Town Court”, Таганрогский городской суд) granted the applicant's claim for recovery of 42,900 Russian roubles (“RUR”) which he had lent to a private company and awarded him the interest of RUR 50,543. The applicant's action in respect of the second defendant, a private person, was rejected.
6. The judgment, in its part relating to the award of interests, was quashed by the Rostov Regional Court (“The Regional Court”, Ростовский областной суд) on appeal on 27 September 2000 and remitted at first instance.
7. On 14 March 2001 the Town Court rendered a new judgment in the applicant's favour. The court decided that the private company was to pay the applicant RUR 86,937.60 in respect of the accrued interest. In addition the court ruled that the co-defendant, a private person, was to be held vicariously liable for the debts of the private company to the applicant in the total amount of RUR 129,837.60.
8. The judgment was not appealed against and on 25 March 2001 it came into force.
9. On 6 June 2002 the Presidium of the Rostov Regional Court, acting upon the protest lodged by its President, quashed the judgments of 10 July 2000 and 14 March 2001 as well as the decision of 27 September 2000 and remitted the case at first instance. In particular, the court noted that the factual findings of the first-instance court had been erroneous and in breach of the relevant procedural rules.
10. By judgment of 10 November 2002 the Town Court freshly examined the case and granted the applicant's claims in full. The court ruled that the private company was to pay the applicant RUR 42,900 in respect of the principal debt and RUR 86,937.60 in respect of the accrued interest. The court also decided that the co-defendant, the private person, was to be held vicariously liable for the entirety of the debts of the private company to the applicant in the total amount of RUR 129,837.60.
11. The judgment of 10 November 2002 was upheld by the Rostov Regional Court on appeal on 6 February 2003.
12. It appears that the applicant was unsuccessful in a few sets of civil litigation against various third persons who had allegedly failed to re-pay their debts. He also tried unsuccessfully to prosecute these persons.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108963
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DIACENCO v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection joined to merits and dismissed;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 6. The applicant was born in 1944 and lives in Botoşani.
7. On the evening of 5 November 1998 the applicant, an engineer, accompanied by P.H., was driving a car owned by the limited company C. on the national road connecting Iaşi to Botoşani and was involved in a car accident. A car travelling in the opposite direction blinded the applicant with its headlights and he was forced to slow down and to steer the car towards the right side of the road. Suddenly, a cart pulled by a horse (“the cart”) travelling on the side of the road appeared in front of the applicant and forced him to break abruptly. However, he was unable to avoid collision. The driver of the cart, N.Z., escaped unharmed, but his passenger, S.I., suffered some injuries that required medical treatment.
8. On 9 November 1998 the Botoşani Forensic Laboratory carried out a forensic examination of the injuries suffered by S.I. and found that they could have been caused by a car accident on 5 November 1998, and required fiftyeight to fiftynine days of medical care.
9. A second forensic examination of the injuries suffered by S.I. was carried out by the Botoşani Forensic Laboratory on 3 February 1999. It concluded that S.I.’s injuries could have been caused by a car accident on 5 November 1998, and required 102 to 103 days of medical care.
10. On 24 February 1999 the Botoşani Prosecutor’s Office ordered the opening of a criminal investigation against the applicant for involuntary battery and other violent offences.
11. By a decision of the Botoşani Prosecutor’s Office of 15 June 1999 the criminal investigation against the applicant was discontinued on the ground that he had not committed any unlawful act. The decision concluded that the cart which the applicant had collided with had not been equipped with the legally required hazard warning lights, which prevented the applicant from seeing the cart at the material time owing to the poor weather conditions. Consequently, the applicant could not have anticipated the danger and taken action in order to avoid it. S.I. appealed against the decision.
12. By a final decision of 10 June 2000 the Suceava Prosecutor’s Office allowed S.I.’s appeal, quashed the decision of 15 June 1999 and ordered the reopening of the criminal investigation against the applicant.
13. On an unspecified date S.I. joined the criminal proceedings instituted against the applicant as a civil party and claimed 50,000,000 Romanian lei (ROL) (approximately 2,100 euros (EUR)) in respect of pecuniary and nonpecuniary damage.
14. By a final decision of 19 March 2001 the Botoşani Prosecutor’s Office acknowledged that S.I. had joined as a civil party the criminal proceedings instituted against the applicant, indicted the applicant and referred the case to the Botoşani District Court.
15. On an unspecified date the applicant at his own request added to the file a technical expert report dated 4 June 2001 regarding the accident of 5 November 1998. The report concluded, inter alia, that the applicant had been driving lawfully, had been travelling at a speed of fortythree kilometres per hour (km/h), that he had hit the cart at a speed of thirtythree km/h and that the person responsible for the accident was N.Z.
16. On 29 October 2001 and 16 April 2002 the Botoşani District Court ordered a technical expert report and a supplement to the technical report, respectively, to be prepared regarding the accident of 5 November 1998.
17. On 29 January and 16 September 2002 the Iaşi Forensic Department attached to the Minister of the Interior carried out the technical expert analysis and concluded that the applicant had been travelling at a speed of between twentyeight and thirtysix km/h and could have avoided the accident if his speed had been between eleven and twelve km/h. However, there had been no reason for him to travel at such a low speed. The travelling speed had been high enough to cause part of the cart to break. Moreover, the accident could have been avoided by N.Z. if he had equipped his cart with the legally required hazard warning lights. Consequently, the absence of the legally required hazard warning lights on N.Z.’s cart had been the cause of the accident.
18. On 15 March 2002, in his written submissions before the firstinstance court, the applicant contested, inter alia, the results of the medical expert reports of 9 November 1998 and 3 February 1999. He contended that S.I. had already been suffering from some of the ailments which had been taken into account in the reports in order to determine the number of days of medical care she required as a result of the accident. Moreover, the said reports had not established with certainty that her condition had been caused by the car accident at issue.
19. By a judgment of 16 December 2002 the Botoşani District Court acquitted the applicant on the basis of the provisions of Article 47 of the Romanian Criminal Code, and dismissed S.I.’s civil claims for damages against him. Relying on the statements of the witnesses, of the victim and of the accused, as well as on the forensic and technical expert reports contained in the file, the court held that in the absence of hazard warning lights, the applicant could not have foreseen the presence of the cart on the road and that therefore the accident could not have been avoided.
20. The applicant appealed against that judgment and argued that the legal basis for his acquittal should have been the fact that he had not committed the alleged offence and that N.Z. had been the sole party responsible for the accident. S.I. also appealed against the judgment, requesting to be awarded civil damages.
21. By a judgment of 8 May 2003 the Botoşani County Court, in the presence of the applicant and his chosen legal representative, dismissed both appeals and upheld the judgment of 16 December 2002. In dismissing S.I.’s request for civil damages, the court held that in the light of the applicant’s acquittal, the just satisfaction claim submitted by the applicant did not have any basis in law.
22. The applicant and S.I. appealed (recurs) against that judgment. S.I. modified her civil claims against the applicant to ROL 100,000,000 in respect of pecuniary and nonpecuniary damage.
23. On 3 June 2003 the parties were summoned to appear before the Suceava Court of Appeal on 9 July 2003. The summons addressed to the applicant was displayed on the main entrance door of his home because he was not at home when the bailiff had attempted to deliver the summons.
24. On 9 July 2003, in the absence of the applicant and his legal representative and prior to the delivery of its judgment, the Suceava Court of Appeal heard the oral submissions of the parties present with regard to the appeal.
25. By a final judgment of 9 July 2003 the Suceava Court of Appeal dismissed in the operative part of its judgment the applicant’s appeal, and upheld the judgments of 16 December 2002 and 8 May 2003. In the reasoning part of the judgment it held that the applicant had failed to provide the court with written or oral reasons for his appeal (recurs), as required by the applicable rules of criminal procedure and that the court could not identify any reasons that would require the Court of Appeal to quash the judgments of the lower courts. At the same time the court allowed the appeal (recurs) lodged by S.I., and ordered the applicant to pay ROL 100,000,000 (approximately EUR 2,600) to S.I. for pecuniary and nonpecuniary damage, out of which ROL 30,000,000 (approximately EUR 800) would be paid jointly with the insurance company A., for the mental and physical suffering which S.I. had endured and the medical expenses she had incurred. It held that the lower courts had misapplied the law with regard to the civil limb of the proceedings, and considered that they had erred in acquitting the applicant on the ground that he could not have anticipated the presence of the cart on the road. According to the evidence in the file, the applicant had committed the unlawful act in respect of which he had been indicted and could have foreseen the danger in question. The applicant was guilty of the offence of involuntary battery and other violent offences because he had failed to control the speed of his car and to adjust it to the road conditions so that he would have been able to stop in the event of a foreseeable obstacle. Moreover, the court dismissed the conclusion reached in the technical expert reports concerning the speed of the applicant’s car, on the ground that the impact had caused part of the cart to break. Furthermore, prudent driving should have prompted the applicant to stop when he was blinded by the headlights of the car travelling in the opposite direction. Consequently, the court concluded that:
“For the above-mentioned reasons, [the court] considers that the applicant is guilty of the offence for which he was correctly indicted and his case sent for trial, the fact that the [lower] courts have acquitted him on the basis of the provisions of Article 47 of the [Romanian] Criminal Code (which is not applicable), is irrelevant in respect of the civil limb.”
26. On 2 October 2003 the applicant initiated extraordinary annulment (contestaţie în anulare) appeal proceedings against the final judgment of 9 July 2003. He argued that he had not been lawfully summoned for the hearing of 9 July 2003 before the Suceava Court of Appeal. Thus, he had been unaware about the date of the hearing. Consequently, he had been unable to submit written or oral reasons for his appeal, to defend himself or to inform the court as regards his absence.
27. By a final judgment of 28 September 2004 the Cluj Court of Appeal dismissed the applicant’s annulment appeal on the ground that during the applicant’s absence from his home the summons had been displayed on the main entrance door, in accordance with the applicable rules of criminal procedure. The applicant appealed against that judgment.
28. On 2 December 2004 the applicant brought extraordinary review (revizuire) appeal proceedings against the final judgment of 9 July 2003, submitting, inter alia, that he had not been lawfully summoned for the hearing held on the aforementioned date.
29. By a final judgment of 14 December 2004 the Court of Cassation dismissed the applicant’s appeal against the final judgment of 28 September 2004 as inadmissible, on the ground that the said judgment was final and not subject to appeal.
30. By a judgment of 5 October 2006 the Botoşani District Court dismissed the applicant’s appeal to review the final judgment of 9 July 2003, on the ground that he had been lawfully summoned and that, in any event, his presence at the hearing would not have changed the outcome of the proceedings, given that the Suceava Court of Appeal had relied on the evidence available in the file and not the parties’ arguments. The applicant appealed against that judgment.
31. By a judgment of 16 January 2007 the Botoşani County Court dismissed the applicant’s appeal against the judgment of 5 October 2006 as illfounded. The applicant appealed against that judgment.
32. By a final judgment of 22 October 2007 the Suceava Court of Appeal dismissed the applicant’s appeal against the judgment of 16 January 2007 as illfounded.
33. The relevant provisions of the Romanian Constitution as in force at the relevant time provided as follows:
“ ...
A person is considered innocent pending a final court conviction.”
34. The relevant provisions of the Romanian Code of Criminal Procedure in force at the relevant time provided as follows:
“(1) The aim of a civil action is to engage the civil liability of the person accused of a criminal offence...
(2) A civil action can be joined to the criminal proceedings, if the victim joins the criminal proceedings as a civil party.
...”
“...
(2) A victim can join criminal proceedings as a civil party at the criminal investigation stage or before the court...
...”
“(1) If a victim has not joined criminal proceedings as a civil party, he or she can initiate separate proceedings for damages caused as a result of the offence before the civil courts.
(2) Civil proceedings are to be suspended pending a final judgment of the criminal courts...
...”
“(1) The final judgment of a criminal court is res judicata in respect of the existence of an offence, the identity of the offender and his guilt for the court examining the civil action.
(2) The final judgment of the court examining the civil action is not res judicata in respect of the existence of an offence, the identity of the offender and his guilt for the authority carrying out the criminal investigation or for the criminal courts.”
“(1) A person accused of or charged with a criminal offence does not have to prove his innocence.
(2) Where evidence is adduced proving a person’s guilt, the accused or the person charged with a criminal offence has the right to rebut the evidence.”
35. Articles 998 and 999 of the Romanian Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused such damage.
36. Article 47 of the Romanian Criminal Code provides that an act covered by the criminal law, which leads to results owing to unforseeable circumstances, shall not be an offence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-106584
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF S. v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 6. The applicant was born in 1967 and lives in Tallinn.
7. On 4 October 2006 a criminal investigation was started in respect of the applicant’s violent behaviour towards her partner. Allegedly, on 17 September 2006, she had repeatedly punched him and broken his nose.
8. On 5 November 2006 another criminal investigation was started in respect of the applicant’s allegedly violent behaviour towards her partner on 3 November 2006. The two proceedings were subsequently joined.
9. According to the applicant, her partner had physically attacked her and she had acted in self-defence.
10. On 6 November 2006 the applicant was admitted to the admissions ward of the Psychiatric Clinic of the North Estonia Medical Centre.
11. On 8 November 2006 the psychiatric clinic filed an application with the Harju County Court for the authorisation of the applicant’s involuntary psychiatric treatment. The application was accompanied by an opinion signed by two doctors, according to which the applicant had been suffering from a mental illness for some years. She had been treated in different hospitals and had been making outpatient visits to psychiatrists. When not in hospital, she had used medicines irregularly. According to the doctors’ opinion, the applicant was suffering from delusions of grandeur, she was paranoid and her condition had become acute. She had attacked her partner and had been travelling with her six-year old child all over Estonia, including doing so late in the evening, and had repeatedly taken the child to a shelter. She had been hospitalised on 30 October 2006 but as she had refused inpatient treatment, had behaved in a restrained manner and had undertaken to follow outpatient treatment, she had been allowed to leave the hospital on the following day. However, the applicant had failed to undergo adequate treatment. She had become aggressive and, after having attacked her partner again, she had been hospitalised by ambulance. The doctors affirmed that at the time of her involuntary admission to the clinic on 6 November 2006 the applicant had demonstrated uninhibited and threatening behaviour. Thereafter, she had remained psychotic, had demonstrated signs of delusions of grandeur and had been paranoid. The doctors affirmed in their opinion that the applicant had refused inpatient treatment.
12. On 8 November 2006 the County Court decided to apply interim measures (esialgne õiguskaitse) and authorised the applicant’s involuntary psychiatric treatment for as long as necessary, but for no longer than three months. The relevant part of the court’s decision read as follows:
“The court, having examined the evidence presented to it, finds that there are circumstances [warranting] involuntary emergency psychiatric treatment pursuant to the procedure for the application of interim measures. According to the application of the health care institution and the accompanying letter from the attending physicians, [the applicant] was taken to the Psychiatric Clinic by ambulance on 6 November 2006 because she had attacked her partner. She had also been roaming around Estonia with her six-year old child, thereby exhausting [the child] and damaging the child’s health. On admission the patient was noisy, agitated and very angry with her partner: she did not deny having punched him, but argued that she had done so in self-defence. As [the applicant’s] behaviour was threatening and uncontrollable, involuntary emergency psychiatric treatment was applied in respect of her from 6 November 2006, as she posed a danger to herself and to those around her. Previously, [the applicant] had received inpatient treatment [at a psychiatric hospital] in Jämejala and [had also been treated] in recent years in Tallinn. She had also been making outpatient visits to psychiatrists. Since 1993 [the applicant] had received treatment at the Psychiatric Clinic [of the North Estonia Medical Centre] on five occasions.
At the time of the lodging of the application the patient’s condition had not improved. [She] is agitated and stressed, and does not understand the need for treatment.
Considering [the applicant’s] mental state and the fact that her treatment is not possible by other means, the court finds that there are grounds to apply interim measures pursuant to Article 534 § 3 of the Code of Civil Procedure – that is, before hearing the person herself and the other persons [involved], and before appointing a representative for her. Based on the above, involuntary emergency psychiatric treatment shall be authorised in respect of [the applicant] for as long as necessary, but for no longer than three months.”
On the same date, the decision was sent to the psychiatric clinic by fax.
13. On 8 November 2006, after having taken the above decision, the County Court appointed a lawyer to defend the applicant at the State’s expense.
14. According to the applicant, she gave her consent to undergo treatment and signed a consent form on 8 November 2006.
15. According to the psychiatric clinic, as stated in the reply to the applicant’s subsequent appeal against the County Court’s decision (see paragraph 20 below), the applicant had said that she consented to the treatment on 9 November 2006, after having been informed of the County Court’s decision. She had signed a consent form to that effect which had been placed in her medical file.
16. On 14 November 2006, in the course of the criminal proceedings, the police ordered the applicant’s forensic psychiatric examination. According to an expert report drawn up on 17 November 2006, the applicant suffered from paranoid schizophrenia and, at the time of committing the acts she was accused of (that is, the alleged assaults on 17 September and 3 November 2006), she had been mentally incompetent. Furthermore, she was unable to participate in the pre-trial investigation, give evidence in court or serve a punishment.
17. On 21 November 2006 the County Court heard the applicant’s brother.
18. On 23 November 2006 the applicant’s lawyer and a judge from the County Court paid a visit to the applicant in the clinic. According to a note made by the judge in the case file concerning the hearing of the applicant, she was satisfied with her treatment, particularly satisfied with her doctor, and had no complaints.
19. On 13 December 2006, following a telephone call from the Estonian Patients’ Advocacy Association (“the EPAA”), the applicant was given a copy of the County Court’s decision of 8 November 2006. On 22 December 2006, represented by an EPAA lawyer, she appealed against the decision, arguing that the court had not reliably established the existence of the circumstances required for involuntary emergency psychiatric care under section 11 of the Mental Health Act (Psühhiaatrilise abi seadus). She also complained that there had been procedural violations, arguing that she had not been heard at the earliest opportunity, that both the hearing and the appointment of a lawyer had been of a merely formal nature and that the principle of equality of arms had not been complied with.
20. On 25 January 2007 the psychiatric clinic submitted a reply to the applicant’s appeal, explaining with reference to her medical record that the conditions for placing her in involuntary psychiatric treatment had been met. It was noted, inter alia, that the applicant’s consent to her voluntary treatment, given on 9 November 2006, had been disregarded as this had not been her true will.
21. On 5 February 2007 the applicant’s treatment in the psychiatric clinic was terminated and she was transferred to the Jämejala psychiatric hospital where she stayed until 5 September 2007. The legal basis for her treatment in Jämejala was the Harju County Court’s decision of 5 February 2007, made in the context of the criminal proceedings. The court found that the applicant had committed the unlawful acts she had been charged with. However, she had been mentally incompetent at the time. Therefore, the criminal proceedings were terminated and the applicant was subjected to coercive psychiatric treatment under Article 86 of the Penal Code (Karistusseadustik).
22. On 20 March 2007, in a written procedure, the Tallinn Court of Appeal dismissed the appeal by the applicant against the County Court’s decision of 8 November 2006.
23. The applicant appealed to the Supreme Court, reiterating her earlier complaints. In addition, relying on Article 5 § 4 of the Convention, she complained that she had received the County Court’s decision thirty-eight days after it had been adopted and that it had taken three months for the Court of Appeal to decide on her appeal.
24. On 10 October 2007 the Supreme Court dismissed the applicant’s appeal. It found that the elements required under section 11 of the Mental Health Act to involuntarily admit the applicant to a closed institution had been established by the lower courts which in their decisions had referred to doctors’ opinions. As regards the fifteen-day delay that had elapsed before the County Court had heard the applicant, the Supreme Court stated as follows:
“18. In response to the claim in the [present] appeal concerning a violation of the second sentence of Article 534 § 3 of the [Code of Civil Procedure – “the CCP”], the [Supreme Court] notes the following. In the event of the admission of a person to a closed institution pursuant to the procedure for the application of interim measures, the person himself or herself, and those close to him or her, have to be heard (Article 534 § 1 (4) of the CCP). The second sentence of Article 534 § 2 of the CCP allows for an exception from this rule to be made if the hearing may cause significant damage to the health of the person or if the person is clearly not able to express his or her will. According to the first sentence of Article 534 § 3 of the CCP, due to the potential danger resulting from a delay (the meaning of the provision indicates that reference is made to danger to the person’s own life or other persons’ lives, health or safety), interim measures may be applied before hearing the person himself or herself and the other persons, and before appointing a representative for him or her. According to the second sentence of Article 534 § 3 of the CCP, such [hearing and appointment] must be performed promptly thereafter. The [Supreme Court] considers that the main purpose of Article 534 § 1 (4) and the second sentence of § 534 (3) of the CCP is the need to prevent an unfounded admission of a person to a closed institution or the opportunity to decide on the termination of the admission pursuant to Article 539 § 1 of the CCP.
In the present case, the County Court heard the person concerned fifteen days after the decision to apply interim measures had been taken. The [Supreme Court] finds that in the present case the County Court has not given reasons for the fifteen-day delay. Although the second sentence of Article 534 § 3 of the CCP obliges the court to promptly perform certain acts (hear the person himself or herself and the other persons named in the law, and appoint him or her a representative), the meaning of the law is that the person concerned has to be heard in the first place. Since the person concerned, as a rule, will have been admitted to the closed institution by that time, his or her whereabouts will be known to the court. If there were any objective circumstances preventing the court from hearing the person concerned herself, or if there were any circumstances mentioned in the second sentence of Article 534 § 2 of the CCP (hearing the person concerned would cause significant damage to his or her health, or he or she is clearly not able to express his or her will), pertinent reasons should have been set out in the decision. However, the aforementioned violation of the norms of procedure is not so important that it would result in quashing the ruling. The County Court has heard the person concerned and, based on the materials in the case file and the rulings made, the courts have not had doubts as to the existence of the prerequisites for the person’s admission to the closed institution or as to their cessation.”
25. The Mental Health Act (Psühhiaatrilise abi seadus), as in force at the material time, provided:
“(1) A person may be admitted to the psychiatric department of a hospital for emergency psychiatric care without the consent of the person or his or her legal representative, or the treatment of a person may be continued regardless of his or her wishes, only if all of the following circumstances exist:
1. the person has a severe mental disorder which restricts his or her ability to understand or control his or her behaviour;
2. without inpatient treatment, the person may endanger the life, health or safety of himself or herself or others due to the mental disorder; and
3. other psychiatric care is not sufficient.
(2) Involuntary treatment may be applied only on the basis of a court’s decision. Involuntary care may be applied in the absence of a court’s decision if this is unavoidable for the protection of the person or the public and a court’s decision cannot be obtained sufficiently promptly.
(3) A decision to apply involuntary treatment in the absence of a court’s decision shall be made by a psychiatrist on the admission of the person to the psychiatric department of the hospital ... promptly after his or her medical examination. ...
(4) Involuntary treatment on the basis of a decision referred to in subsection 3 may be applied for forty-eight hours from the beginning of the involuntary treatment.
...”
“(1) A request to apply involuntary treatment and admit a person to a hospital’s psychiatric department under the procedure for the application of interim measures shall be made to the court in the area where the hospital is located by the hospital’s chief doctor. ...”
26. Admission of persons to closed institutions is dealt with in Chapter 54 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik). As in force at the material time, it provided:
“Pursuant to the procedure provided in this Chapter, the court shall conduct proceedings concerning the following matters based on a petition by the rural municipality or city government of the residence of the person:
1. the admission of a mentally ill person to a psychiatric hospital or a social welfare institution against his or her will, together with deprivation of the liberty of the person;
...
3. other matters concerning the admission of a person to a closed institution provided by law.”
“(1) Based on the request of the petitioner, the court may [order the] admission of a person to a closed institution pursuant to the procedure for the application of interim measures, if:
1. the conditions of admission to a closed institution are clearly met and a delay is likely to result in danger, and
2. documents exist concerning the person’s state of health, and
3. a representative has been appointed for the person [concerned] in the proceedings, and
4. the person himself or herself, and the persons specified in Article 536 § 2 of this Code, have been heard.
(2) ... A person need not be heard if this may cause significant damage to his or her health or if the person is clearly not able to express his or her will.
(3) If a delay could result in danger, the court may apply interim measures even before hearing the person himself or herself and the other persons, and before appointing a representative for him or her. In such a case, such [hearing and appointment] must be performed promptly (viivitamata) thereafter.
(4) Interim measures may be applied for a period of up to three months. After hearing an expert, such term may be extended to up to six months. Such term shall also include the time the person is admitted to a closed institution for examination.
(5) In the cases and pursuant to the procedure provided by law, a person may be admitted to a closed institution without a court ruling if this is strictly necessary for the protection of the person himself or herself or the public, and a court ruling cannot be obtained promptly enough. In such a case, a petition for obtaining a court ruling shall be submitted no later than during the following working day.”
“(1) If it is clearly necessary in the interests of the person and the person is not represented by another person with full legal capacity [to take part in] civil proceedings, the court shall appoint a representative for the person [concerned] in proceedings for the admission of the person to a closed institution.
...”
“(1) Before a person is admitted to a closed institution, the person must be heard in person by the court and the court shall explain the course of the proceedings to him or her. If necessary, the court shall hear the person in his or her usual environment. ...
(2) Before a person is admitted to a closed institution, the court shall also hear the opinion of the rural municipality or city government, and the following persons:
1. the spouse of the person, and other family members who live or have lived together with the person;
2. the guardian or caregiver of the person;
3. the trustee appointed by the person;
4. the head of the closed institution in which the person has been admitted, or an official appointed thereby.
...”
“(1) The court shall terminate the admission of a person to a closed institution by a ruling after the prerequisites thereof have ceased to exist. The court may also terminate admission to a closed institution based on an application by the person himself or herself, the petitioner or at the initiative of the court. Before terminating a person’s admission to a closed institution, the court shall obtain the opinion of the rural municipality or city government.
...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1