ITEMID: 001-77416
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ESKINAZI AND CHELOUCHE v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The first applicant, Mrs Ethel Teri Eskinazi, who has French and Turkish nationality and was born in 1963, lodged the application with the Court on her own behalf and on behalf of her daughter, Caroline Ruth Chelouche (the second applicant), who has French, Turkish and Israeli nationality and was born in January 2000 in Tel Aviv (Israel). The applicants are currently living in Istanbul.
They were represented before the Court by Mr D. Bollecker, Mr J. Paillot, Mr H.C. Krüger and Ms E. Schwab-Gyrs, of the Strasbourg Bar, and assisted at the hearing by Mr M. Uluç, of the Istanbul Bar, and Ms R. Halperin-Kaddari, a lawyer practising in Israel.
The third-party intervener in the case, Mr Jacques Gabriel Chelouche, of Franco-Israeli nationality and father of the second applicant, was born in 1959 and lives in Tel Aviv.
He was represented before the Court by Mr F. Ruhlmann, of the Strasbourg Bar, assisted at the hearing by Ms M. Lemarchand, a lawyer practising in Paris, and Mr S. Moran, a lawyer practising in Israel.
The facts of the case, as submitted by those appearing before the Court, may be summarised as follows.
On 20 April 1997 Mrs Eskinazi married Mr Chelouche. The civil wedding took place before the French consular authorities in Tel Aviv. A Jewish wedding ceremony also took place in the same city.
The couple apparently intended to settle permanently in Paris, although Mr Chelouche’s professional activities often kept him in Israel and Mrs Eskinazi often went to Turkey, either for work purposes or to visit her family.
As she never sought to acquire Israeli nationality, the first applicant used to stay in Israel on three-month tourist visas issued by the Israeli consulate in Turkey.
On 27 January 2000 the second applicant was born in Tel Aviv. The couple continued travelling between the three countries, however. The child was always accompanied by her mother.
As time went by the couple’s relationship deteriorated.
On 8 April 2004 the applicants went to Turkey for Passover. The plan was that they would stay there for ten days. Mrs Eskinazi put off the return date a number of times, however, and ultimately decided to remain in Turkey.
On 29 April 2004 the first applicant filed a divorce petition (case no. 2004-375) with the single judge of the Sarıyer Family Affairs Court in Istanbul (“the Sarıyer Court”).
On 30 April 2004 the Sarıyer Court awarded Mrs Eskinazi interim custody of her daughter. Up until then Mrs Eskinazi and Mr Chelouche had had joint custody of their daughter.
On 16 May 2004, having been informed of the situation, Mr Chelouche in turn petitioned for divorce in the Tel Aviv Rabbinical Court (Batei Hadîn Harabaniim Haezorim – “the Rabbinical Court”), composed of three religious judges (dayanim). Mr Chelouche asked for the issue of custody of his daughter to be determined at the same time as that of the religious dissolution of the marriage. That request conferred full jurisdiction ipso jure on the Rabbinical Court to rule on the issue of custody rights.
In his pleadings Mr Chelouche expressed the fear that his daughter would emigrate from Israel, which, judging by his wife’s conduct, would sever all his ties with his daughter.
...
On the same day the Rabbinical Court made two orders.
In the first one it ordered Mrs Eskinazi to bring her daughter back to Israel within seven days, failing which her action would be deemed “wrongful removal of the child” within the meaning of Article 15 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The first applicant was informed of the order by telephone, and subsequently by fax and mail, and was given three days in which to reply.
Before giving its ruling, the Rabbinical Court found it to be established that after their marriage the couple had elected Israel as the family’s fixed place of residence, and that Mrs Eskinazi, although a Turkish national, had continually lived in Israel, had obtained a driving licence and work permit in that country and had opened a bank account there. Pointing out that the child was a minor, of Israeli nationality and resident in Israel, the Rabbinical Court noted that the mother had taken the child to Turkey on 8 April 2004 supposedly for ten days, but had never returned.
The order in question authorised the father to confiscate the child’s passport, once she crossed the Israeli border, and to “use all means” to safeguard his parental rights.
In the second order the Rabbinical Court also imposed a prohibition on Mrs Eskinazi and her daughter leaving Israeli territory. That measure, which was initially valid until 17 May 2005, was lifted on 12 January 2005.
On 10 February 2005 the Rabbinical Court decided to adjourn its hearing in the divorce proceedings, which are still pending. Mrs Eskinazi is represented in those proceedings by two members of the Tel Aviv Bar.
As a first step, Mr Chelouche lodged a criminal complaint in Turkey against his wife for child abduction. The Sarıyer public prosecutor’s office took no action, however, on the ground that the case fell to be dealt with under the Hague Convention and should be brought before the bodies having jurisdiction to deal with it.
Mr Chelouche therefore applied to the Ministry of Justice of his country, designated as the Central Authority (“Israel’s Central Authority”), for assistance in securing his daughter’s return to Israel, in accordance with the procedure laid down in Articles 8 and 9 of the Hague Convention.
On 10 June 2004, for the purposes of those proceedings, Israel’s Central Authority sent the two aforementioned orders of the Rabbinical Court to its Turkish counterpart, namely, the General Directorate of International Law and Foreign Relations at the Ministry of Justice (“Turkey’s Central Authority”).
On 23 June 2004 Turkey’s Central Authority instructed the Sarıyer public prosecutor (“the public prosecutor”) to ascertain the child’s current address, apply to the Sarıyer Court for an order prohibiting her from leaving Turkish territory, and to summon Mrs Eskinazi in order to obtain a statement from her about the alleged abduction.
On 1 July 2004 the Sarıyer Court decided, in case no. 2004-375, to issue the order requested by the public prosecutor, and gave instructions for the border posts to be informed accordingly.
On 6 July 2004 Turkey’s Central Authority was sent two further applications by the Israeli authorities claiming that, under Article 16 of the Hague Convention, custody rights should be withdrawn from Mrs Eskinazi as the Rabbinical Court had found her liable for “child abduction”.
Turkey’s Central Authority then instructed the public prosecutor to raise a preliminary question in case no. 2004-375 pending before the Sarıyer Court, requesting the court not to rule on the custody of the child pending the outcome of the dispute regarding her return to Israel. On 9 July 2004 the Sarıyer Court followed the public prosecutor’s advice and withdrew Mrs Eskinazi’s custody of her daughter.
On 19 July 2004 friendly-settlement negotiations, conducted at the request of Turkey’s Central Authority and under the aegis of the Sarıyer Court, failed after Mr Chelouche insisted on his daughter’s repatriation.
On 23 July 2004 Turkey’s Central Authority sent Mrs Eskinazi’s lawyer a request from the Israeli authorities regarding the arrangements proposed by Mr Chelouche for visiting his daughter in Istanbul.
On 16 August 2004 the public prosecutor brought proceedings in the Sarıyer Court for the return of the child to her father (case no. 2004-683).
The Sarıyer Court held two hearings in the case.
At the hearing on 17 September 2004 the parties submitted their preliminary observations. Counsel for Mrs Eskinazi argued that the Hague Convention was inapplicable in a number of respects to the case in hand and produced in support of that submission private legal opinions by Turkish professors of private international law and French lawyers.
With a view to proving that the child was socially integrated in Turkey and had ties there, Mrs Eskinazi also relied on numerous documents and witness statements, and asserted that the girl had gone with her to Turkey with the father’s consent and could not therefore be regarded as having been abducted.
Mr Chelouche, for his part, disputed those submissions and called two witnesses: his uncle and mother.
At the end of the hearing the court fixed the father’s visiting days. The visits were to take place at the mother’s home in the presence of a social worker, but without the mother being present.
At the following hearing, on 25 October 2004, which was the last one, the Sarıyer Court first took formal note of the documents produced by Turkey’s Central Authority in support of Mr Chelouche’s application. These were statements from nurseries and paediatricians in Israel. Also produced in the proceedings was an official record of the dates on which the child had gone in and out of Israel during the period 2000-04, drawn up by the Tel Aviv city authorities and the Israeli and Turkish border police.
During the proceedings Mr Chelouche, referring in particular to the information provided by the Central Authorities, claimed that his daughter had spent 76% of her life in Israel. He submitted that his right was established and that a ruling had to be made expeditiously, since Article 11 of the Hague Convention required proceedings to be disposed of within six weeks.
The court then heard evidence from Mr Chelouche’s mother and uncle and from the defendant’s eight witnesses. According to the latter, the child and her mother had mainly spent their time in Turkey, with the father’s knowledge. The first applicant also produced a written statement to that effect by Mr S. Levi, an Israeli importer known to the couple.
Mrs Eskinazi relied further on photocopies of her passport, declaring that she had never stayed in Israel for more than 132 days out of 365 and had always had her daughter with her. She also submitted several psychologists’ opinions questioning Mr Chelouche’s ability to assume custody of his daughter.
In addition, Mrs Eskinazi challenged the participation of a public prosecutor in the proceedings and complained that the plaintiff was attempting to influence the court by referring to observations of the Turkish Central Authority that were not based on any final judicial and binding decision awarding custody of the child to the father, that right having previously been exercised jointly by the parents in Israel.
Lastly, Mrs Eskinazi submitted a list of further witnesses. The public prosecutor opposed her application to call them, arguing that the case was ready for decision and that, in the light of the evidence, the court should find in favour of Mr Chelouche.
In accordance with Article 13 (b), second paragraph, of the Hague Convention, the Sarıyer Court did not hear the second applicant on account of her young age.
At the end of the proceedings the Sarıyer Court decided that the child should be returned to her father in Israel, and maintained the prohibition on her leaving Turkey until the judgment became final.
The court found that, whilst the parties to the dispute had joint custody of their daughter, Mrs Eskinazi had assured Mr Chelouche that she would go to Turkey on 8 April 2004, as usual, and return on 18 April, which she had not done in the end, contrary to the father’s wishes. Having regard in particular to the official record provided by Israel’s Central Authority, the court found that, during the period 2000-04, that is, until Miss Chelouche was removed, she had spent only 455 days outside Israel.
The other relevant passages from the judgment read as follows:
“... The Court cannot accept the argument submitted by the defendant and her representative that the child’s habitual place of residence is not Israel. In the light of the two-page official document issued by the Israeli Ministry of the Interior ... setting out the dates of the child’s entry into and exit from Israel between 2000 and 2004 ... and the other documents ..., it is established that, from her birth onwards, the child spent most of her life in Israel. The assertion regarding the habitual place of residence is therefore inadmissible, particularly when regard is had to the fact that the defendant declared on 15 July 2004 before the Sarıyer public prosecutor that she had lived in Israel for the six years that elapsed following the marriage. The child’s habitual place of residence, prior to her removal, was therefore Israel, notwithstanding the contrary statements by the defendant’s witnesses, which are not based on established facts and are contradicted by the official documents filed in the proceedings.
Nor can the Court accept the final submission of the defendant’s representative, based on Article 13 (b) of the Hague Convention, according to which the conditions for ordering the child’s return are not satisfied on account of the state of war affecting Israel. It would appear that life in Israel pursues its normal course regarding, among other things, teaching, education, business, tourism, etc., and that the conflict and disorder in the country are confined to certain specific regions. Moreover, the conflict, which is not new and has been going on for many years, did not stop the parties from continuing to live in Israel. Furthermore, the existence of a grave risk, within the meaning of Article 13 (b) of the Hague Convention, that her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation has not been established. Thus, the conditions for refusing to return the child, as specified in the said Article, have not been made out.”
The judge of the Sarıyer Court concluded as follows:
“... After hearing the parties’ submissions, I consider it established that Caroline Ruth Chelouche was taken to Turkey by her mother and subsequently removed ... from her father, contrary to the latter’s wishes, in breach of Article 3 of the Hague Convention ... I also consider it established that the requirements regarding the time-limit stipulated in Article 12 § 1 of [that convention] are satisfied, but that the conditions capable of justifying a refusal to return the child in the light of Articles 13 and 20 are not.”
On 1 November 2005, following the divorce proceedings instituted by her husband, Mrs Eskinazi applied to the Tel Aviv Civil Family Court (Batei Mishpath Lelnyanei Hamishpa’ha), using an Israeli lawyer. The application, which was lodged on Caroline Chelouche’s behalf, sought to challenge the jurisdiction of the religious courts on the ground that the mother was not an Israeli national and did not reside in Israel.
However, after a thorough examination of the case another lawyer convinced the first applicant that the application “stood no chance of success”, and she withdrew it on 23 November 2005.
On 11 February 2005 Mrs Eskinazi’s final application for reinstatement of custody of her daughter, in case no. 2004-375, was dismissed by the Sarıyer Court, having regard to the order for the child’s return in case no. 2004-683.
On 18 February 2005 Mrs Eskinazi appealed on points of law against the decision to return the child to her father. Relying on the concept of the “best interest of the child”, she maintained that her daughter’s habitual residence was in Turkey. In her submission, a child could have several places of residence, under the rules of international law, and, in any event, the Hague Convention could not be applied merely by calculating the number of days the child had spent in Israel.
The first applicant argued that the child could not therefore be considered to have been abducted, especially as the father had knowingly agreed to the child gradually settling in Turkey; Mr Chelouche had neither a fixed place of residence nor regular work commitments in Israel, and had himself been keen to settle elsewhere.
According to Mrs Eskinazi, he had in fact acted in bad faith in order to have the child’s habitual residence established arbitrarily, deliberately referring the matter to a rabbinical court, which – despite having no jurisdiction – had ruled in the absence of the mother on the basis of religious tenets and with total disregard for the principles of equality of arms and adversarial process.
Lastly, Mrs Eskinazi’s lawyer referred to the prosecution’s participation in the proceedings before the Sarıyer Court, alleging that this had considerably swayed the mind of the single judge of the Sarıyer Court.
...
On 22 March 2005 the Court of Cassation held a hearing at which it heard submissions from both parties’ representatives. On 29 March 2005 it upheld all the provisions of the impugned judgment.
The applicant then lodged an application for rectification of a judgment.
On 25 April 2005, at the request of its Israeli counterpart, Turkey’s Central Authority instructed the public prosecutor to take the necessary measures to prevent Mrs Eskinazi from leaving with the child.
On 22 September 2005 Mrs Eskinazi’s application for rectification was refused and the judgment ordering the child’s return thus became final.
On 10 October 2005 Mr Chelouche brought enforcement proceedings for the return of his daughter.
Enforcement of the judgment was stayed, however, in accordance with the interim measure indicated in the case by the European Court under Rule 39 of the Rules of Court.
A report drawn up on 22 October 2004 by the social worker responsible for overseeing the parental visits noted that Mrs Eskinazi had made efforts to ensure that the child’s meetings with her father were conducted smoothly and in a warm atmosphere. A second report, filed in the proceedings on 25 October 2004, on the date when the judgment at first instance was delivered, still referred to a harmonious relationship between the child and her father.
However, the many further reports drawn up by social workers after that judgment were increasingly critical of the father.
On 27 February 2005, when visiting the child at Mrs Eskinazi’s flat, Mr Chelouche allegedly attacked the social worker present, insisting that he wanted to talk to his daughter alone. He allegedly also caused damage in the flat. A complaint lodged in connection with those events led to the institution of criminal proceedings, which are still pending.
It appears that relations deteriorated still further after that incident, and on 7 May 2005, at Mrs Eskinazi’s request, a second indictment was filed against Mr Chelouche.
Following a series of psychiatric examinations carried out in September and October 2005, in the appropriate departments of two university hospitals, the second applicant was diagnosed with post-traumatic stress disorder. She has been taking medication ever since.
For some of the provisions of this convention, see, for example, Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 29, ECHR 2003-V). The following Articles are also relevant:
“If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.”
...
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.”
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
“Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.”
The relevant provisions of this convention, ratified by Turkey and by Israel on 4 April 1995 and 3 October 1991 respectively, provide:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
“States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.”
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present Article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
“1. In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention.”
...
“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
Article 23 of the International Covenant on Civil and Political Rights, signed by Turkey on 15 August 2000 and ratified by Israel on 3 October 1991, provides:
“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
...
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”
Israel’s reservation regarding that provision reads as follows:
“With reference to Article 23 of the Covenant, and any other provision thereof to which the present reservation may be relevant, matters of personal status are governed in Israel by the religious law of the parties concerned.
To the extent that such law is inconsistent with its obligations under the Covenant, Israel reserves the right to apply that law.”
Implementation of the Covenant by the States Parties is supervised by the Human Rights Committee, which is a body made up of independent experts. Under Article 41 of the Covenant, the Committee may examine communications of States Parties in respect of other States. All the States Parties undertake to submit reports, at regular intervals, on the measures they have adopted which give effect to the rights recognised in the Covenant. They must submit an initial report within one year of acceding to the Covenant and subsequently whenever the Committee requests one. The Committee studies the reports and informs the State Party concerned of its concerns and recommendations in the form of “final observations”. The Committee meets in Geneva or New York and generally holds three sessions per year.
Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe on a European Charter on the Rights of the Child states among the first general principles:
“(a) Children must no longer be considered as parents’ property, but must be recognised as individuals with their own rights and needs;”
The Hague Convention has statutory force in Turkish law and forms part of the legislation. In theory, the execution in Turkey of a decision of a foreign court requires a registration procedure. However, by virtue of Article 14 of the Hague Convention, decisions delivered by the courts of the place of “habitual residence” of the child concerned are applicable without any need for a registration procedure. When dealing with an application under Article 8 of the Hague Convention, the Turkish family affairs courts are therefore empowered to rely directly on the court decision on which the application is based as conclusive evidence (Article 30 of the Hague Convention), without having to endorse it in the legal sense of the term.
Execution of a decision to return a child to the country deemed to be its “habitual residence” is carried out by public prosecutors, on behalf of the General Directorate of International Law and Foreign Relations at the Ministry of Justice, that is, “the Central Authority” designated to implement the procedures laid down in the Hague Convention.
In practice, in that context, the public prosecutor in charge of execution asks the requesting Central Authority to inform him of the date of arrival of the parent whose child has been abducted and makes the necessary arrangements for the child to be returned in the best conditions.
In accordance with Article 25 (b) of the Judgment Enforcement Code, procedures for the return of a child and meetings in person with a child are conducted in the presence of an expert (social worker, teacher, psychologist, etc.) who is appointed jointly by the head of the Judgment Enforcement Agency and the Institute of Social Services and the Protection of Children.
The Law of 1984, which establishes the structure of the Israeli legal system, provides – apart from the special courts – for three major types of court: civil, religious and military. The religious courts are governed by the Rabbinical Courts (Marriage and Divorce) Act (Law no. 5713/1953). The laws applicable to Israeli Jews in the sphere of personal status are generally based on the Torah and the Halacha.
For parties of the Jewish faith, the regional rabbinical courts (Batei Hadîn Harabaniim) have exclusive jurisdiction in the areas of, among other things, divorce, marriage and diet of the members of their community. They also have jurisdiction in any other sphere relating to the personal status of Jews (such as custody and contact rights in respect of children, maintenance payments, filiation, etc.). Moreover, in respect of those matters, the regional rabbinical courts and the civil family courts (Batei Mishpath Lelnyanei Hamishpa’ha) – which are governed by the Family Courts Act (Law no. 5755/1995) – are vested with concurrent jurisdiction, which, in practice, becomes exclusive for the court before which the case is first brought.
Decisions of the rabbinical courts delivered at first instance are subject to review by the Grand Rabbinical Court (Beith Hadîn Harabani Hagadol), which is the appeal court.
Whether a case is tried by the rabbinical or the civil courts, the final court of appeal is the Supreme Court. According to the information in the Court’s possession, however, in respect of the rabbinical courts the Supreme Court acts as High Court of Justice, under section 15(c) of the above-mentioned Law of 1984, and, accordingly, the object and scope of its power of review are more limited. In practice, it would appear that this power of review is often exercised in respect of disputes relating to the jurisdiction of the rabbinical courts and, more rarely, in cases of denial of natural rights and non-application of the mandatory provisions of civil law. It is accepted that, in cases of conflict of jurisdiction, the Supreme Court can set aside the decision of the rabbinical court and refer the case to a civil court, but that, where errors of law with regard to the Halacha are concerned, it will merely remit the case to the original rabbinical court for it alone to amend its decision.
...
Many Israeli writers point to the inequality between the sexes in the rabbinical courts, particularly in connection with the get institution, which is often criticised by Israeli society. In accordance with the Halacha, only the husband may petition for divorce from his wife, by handing her the get. There is a consensual aspect to the measure, however, since the wife is free to accept or refuse the get.
...
Under Israeli law, the family courts and the rabbinical courts can, in the interests of the proper conduct of the proceedings, prohibit a party to divorce proceedings from leaving Israeli territory. According to the information available, such ne exeat measures are ordered by the rabbinical courts at the request of the party petitioning for divorce, normally for a renewable one-year period. Where the respondent is not an Israeli national, the measure is applied with particular rigour. Where the opposing party objects, the rabbinical court determines the matter following a hearing of the issue.


ITEMID: 001-83251
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DOLNEANU v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Violation of Art. 13 + P1-1;Not necessary to examine Art. 6;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Josep Casadevall
TEXT: 5. The applicant was born in 1930 and lived in Puhoi.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant deposited money in three different accounts in the Savings Bank ('the Bank'), which was, during Soviet times, State-owned.
8. In 1994 Parliament adopted Decision no. 201-XIII on the indexing of citizens' savings in the Savings Bank of Moldova” (“the 1994 decision”) whereby persons who had reached the age of 60 by 1 January 1994 and who had savings in their accounts in the Bank on 2 January 1992 were entitled to recover a part of their deposits at the rate of one Moldovan leu (MDL) for one Soviet rouble for the first thousand roubles deposited in each account.
9. On 16 February 1995 the Government adopted Decision no. 108, whereby it created a Commission charged with establishing the amount of compensation to be transferred by the Ministry of Finance (“the Ministry”) by the 25th day of each month to the Bank for compensation purposes, on the basis of the allocations made for that purpose in the State budget for the relevant year.
10. The applicant had more than a thousand roubles in each of his three accounts in the Bank and he claimed accordingly MDL 3,000 (the equivalent of 750 United States dollars (USD)). On 7 June 2000 he received MDL 570 after the Ministry of Finance (“the Ministry”) transferred money to the Bank for compensation purposes. He continued to request the remaining amount and to complain to various authorities.
11. On 8 November 2001 he initiated court proceedings against the Bank and the Ministry to recover the remaining amount and seeking compensation for the late payment (since the value of the money was depreciating because of high inflation) and for non-pecuniary damage caused by having to wait for the payment (the applicant was recognised as second-degree disabled and had a monthly State pension of MDL 89). Both defendants accepted that the applicant had a right to obtain the outstanding amount of compensation, and stated that the delay in paying was due to the failure to include in the State budget the allocations for that purpose. According to the Ministry, during 1995-1997 it transferred to the Bank 26% of the money necessary to pay the compensation in full to all those affected by the 1994 decision. However, the State budget did not allocate any further funds during 1998-2000, while an additional 7% of the total amount was allocated in the budget for the year 2001. The applicant did not receive any compensation in 2001.
12. On 4 March 2002 the Centru District Court partly accepted the applicant's claim. It found that the main responsibility for the delay in paying his outstanding compensation lay with the Ministry, which had not transferred the necessary money to the Bank. It ordered the Bank to pay the applicant MDL 266 and the Ministry to pay him MDL 2,163, which constituted the remaining amount due under the 1994 decision (a total of MDL 2,429, or EUR 210 at the time). The court rejected the claim for compensation in respect of pecuniary and non-pecuniary damage because there was no law dealing with such claims.
13. In an appeal, the applicant expressly requested the court, on the basis of Article 4 of the Constitution, to apply directly Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention as regards the absence of domestic remedies.
14. On 7 May 2002 the Chişinău Regional Court upheld the judgment of 4 March 2002, repeating the reasoning of the first-instance court in rejecting the claim for compensation in respect of pecuniary and non-pecuniary damage.
15. In an appeal, the applicant repeated his arguments advanced before the lower courts and relied in addition on Article 6 of the Civil Code (see paragraph 18 below).
16. On 3 September 2002 the Court of Appeal also upheld the lower courts' judgments and confirmed their reasoning in rejecting the claim of compensation in respect of pecuniary and non-pecuniary damage, because it “had no support in law”. That judgment was final. On 29 July 2004 the outstanding amount was transferred to the applicant's account.
17. The relevant provisions of the Constitution read as follows:
“Article 4 Human rights and freedoms
(1) The constitutional provisions regarding human rights and freedoms shall be interpreted and applied in line with the Universal Declaration of Human Rights and with the covenants and other treaties to which Moldova is a party.
(2) In the event of a conflict between the covenants and other treaties regarding human rights and freedoms to which Moldova is a party and its domestic legislation, the international provisions shall take precedence.”
“Article 20 Free access to justice
(1) Every citizen shall have the right to obtain effective protection from competent courts of jurisdiction against actions infringing his or her legitimate rights, freedoms and interests.
(2) No law may restrict access to justice.”
18. The relevant provisions of the Civil Code, in force before 12 June 2003, read as follows:
“Article 6 Protection of civil rights.
Civil rights shall be protected in accordance with the rules determined by the competent courts...: by recognising those rights; ... by obliging persons who violate a right to compensate for the damage caused..., as well as by other means provided for by law.
Article 215 Obligation of the debtor to compensate for the damage
If the debtor does not fulfil his obligation or fulfils it inappropriately he shall compensate for the damage caused to the creditor.
The compensation shall include the creditor's costs, loss of or damage to items, as well as loss of any profits which the creditor would have obtained had the obligation been fulfilled.”
19. Parliament's decision “Concerning the indexing of citizens' savings in the Savings Bank of Moldova” (No. 201-XIII, 29 July 1994) reads as follows:
“Article 1 – Citizens' savings in the Savings Bank of Moldova ...shall be indexed on the basis of the account balance on 2 January 1992 for those account holders who on 1 January 1994 had reached the age of 60 – the first thousand roubles on all accounts according to the ratio one [Soviet] rouble : to one leu [MDL].
Article 2 – The Government and the National Bank of Moldova:
within one month shall decide upon and propose the manner and mechanism of amortisation of the indexed amounts and the sources of compensation;
shall make proposals regarding the manner of indexation of citizens' other deposits of the population in the Savings Bank of Moldova”
20. The relevant provisions of the Law on the indexation of citizens' savings in the Savings Bank (No. 1530-XV, 12 December 2002) (“the 2002 Law”) read as follows:
“... Article 2 Indexation
The savings of citizens of the Republic of Moldova deposited in the Savings Bank ... shall be indexed on the basis of the account balance on 2 January 1992:
a) according to the ratio one rouble to one leu [MDL] for the first thousand roubles of the cumulative balance of all accounts of natural persons (account holders);
b) according to the ratio two and a half roubles to one leu [MDL] for the balance exceeding the amount indicated under (a) for natural persons (account holders).
Article 3 Manner of payment
The amounts indicated in Article 2 shall be paid in instalments, starting in 2003.
Article 4 Financial means of payment
(1) Payment of the indexed amounts shall be made from the State Budget.
(2) The annual Budget shall provide, for the relevant year, the quantum of financial means for the payment of indexed amounts...
Article 5 Phases of indexation
(1) Indexation of the amounts and their payment shall be made, at the account holders' request, in phases, with priority for the first thousand roubles, then for the balance exceeding the first thousand roubles, in accordance with the account holder's year of birth.
Article 7
The Government:
a) shall adopt, within one month, a Regulation regarding the indexing and manner of payment of the indexed amounts of citizens' savings in the Savings Bank;
b) shall determine annually, depending on the amounts provided in the Annual Budget for indexation, the categories of citizens whose savings are to be indexed...”
VIOLATED_ARTICLES: 13


ITEMID: 001-114518
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF C.N. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Non-pecuniary damage - award
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1979.
5. The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She claimed that she had been raped several times in Uganda and that her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She intended to work to support herself in the United Kingdom and to pursue further education.
6. According to the applicant’s account, a relative named S. and a Mr A. helped her obtain a false passport and a visa to enable her to enter the United Kingdom. However, the applicant claimed that on arrival in the United Kingdom S. took her passport and travel documents and did not return them to her.
7. The applicant lived for a number of months at various houses belonging to S. in London. She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in London. She was also shown violence on television and told that this could happen to her if she was not careful.
8. In January 2003 S. introduced the applicant to a man called M. who ran a business providing carers and security personnel for profit. The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations. The applicant asserted that on each occasion payment was made by the client to M., who transferred a share of the money to S.’s bank account in the apparent belief that he would pass it on to her. However, she claimed that she did not receive any payment for the work that she did.
9. In early 2003 the applicant began to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). She found the role physically and emotionally demanding as Mr K. suffered from Parkinson’s disease and she was required to change his clothing, feed him, clean him and lift him as necessary. As a result, she was permanently on-call during the day and night. On one Sunday every month she was given a couple of hours leave but on these occasions she would usually be collected by M. and driven to S.’s house for the afternoon. She accepted that after a couple of years she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone.
10. The applicant claimed that the GBP 1,600 Mr and Mrs K. paid every month for her services was sent directly to M. by cheque. A percentage of that money was passed by M. to S. on the apparent understanding that it would be paid to her. However, she received no significant payment for her labour. Occasionally Mr and Mrs K would give the applicant presents or second-hand clothes and from time to time S. would give her GBP 20 or GBP 40 when she went to his home on her monthly afternoon of leave. It was sometimes suggested that S. was saving up her income for her education, but she denied that any money was ever given to her.
11. In August 2006 Mr and Mrs K. went on a family trip to Egypt. The applicant was unable to accompany them because she did not have a passport. In their absence, the applicant was taken to a house belonging to S. When he left for a business trip to Uganda, she remained in the house with his partner, H. The applicant asserted that H. effectively prevented her from leaving the house and warned her not to speak with anyone.
12. On 18 August 2006 the applicant left the house. She went to a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary’s Hospital, where she was diagnosed as HIV positive. She was also suffering from psychosis, including auditory hallucinations.
13. The applicant remained in hospital for one month. H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S.’s house. In particular, she warned her that when she left the hospital she would have to pay for anti-retroviral medication and if she did not return to the house she would be “on the streets”.
14. Following her discharge from hospital, the applicant was housed by the local authority. On 21 September 2006 she made an application for asylum. The application was refused on 16 January 2007. The Secretary of State for the Home Department considered that the applicant could access protection in Uganda to prevent further sexually motivated attacks. Moreover, he found that if she had been genuinely afraid of S., she would have tried to escape from him earlier. The applicant appealed. Her appeal was dismissed on 20 November 2007. In dismissing the appeal, the Immigration Judge expressed serious concerns about the applicant’s credibility and found much of her account to be implausible.
15. In April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. The Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences, commenced an investigation to ascertain whether or not she had been the victim of a criminal offence. The police interviewed the applicant on 21 June 2007. During the investigation, the Human Trafficking Team sought the views of the United Kingdom Human Trafficking Centre in Sheffield, a multi-agency organisation which provided a central point of expertise in the field of human trafficking. However, the Centre advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into the United Kingdom and observed that during her time working with Mr and Mrs K she had been well looked after.
16. On 26 September 2007 the police informed the applicant’s former solicitor that there was “no evidence of trafficking for domestic servitude in the interview”.
17. On 26 August 2008 the applicant’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation. On 5 September 2008 the police noted that the Head of Legal Services at the United Kingdom Human Trafficking Centre had advised that there was no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom. He further advised that while the applicant worked with the K family she was well looked after and given some money. There was, however, a dispute over money and it may have been that “her cousin kept more than he should have done”.
18. On 5 September 2008 the police informed the applicant’s solicitor that “a decision was taken not to proceed with the matter as there was no evidence that she [the applicant] had been trafficked”. On 18 September 2008 the police reiterated that following the interview “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted”.
19. On 5 December 2008 the applicant’s solicitor wrote to the police to ask them to consider prosecutions for other offences, including a jus cogens offence of slavery or forced labour.
20. On 18 December 2008 the applicant was assessed by the POPPY Project, a Government funded project providing housing and support for victims of trafficking. The POPPY Project concluded that she had been “subjected to five of the six indicators of forced labour” (as identified by the ILO). In particular, her movement had been restricted to the workplace, her wages were withheld to pay a debt she did not know about, her salary was withheld for four years, her passport was retained, and she was subjected to threats of denunciation to the authorities.
21. On 5 January 2009 the police began to conduct further investigations. On 14 January 2009 the police noted that a statement had been obtained from the agent who arranged the applicant’s work with Mr and Mrs K (presumably the man previously identified as M.). He stated that he had been introduced to the applicant by a person he believed to be her relative. He was supplied with a passport, a national insurance number and a criminal records check. The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him. She only complained about this arrangement in or around June 2006. The agent also stated that he feared the applicant’s relative, who was a wealthy and powerful man well-connected to the Ugandan government.
22. The police were unable to make contact with Mr and Mrs K. Eventually they made contact with a member of the K family. However, no statement appears to have been taken as the (unidentified) woman told the police that she was leaving the country for medical treatment.
23. On 25 February 2009 the police informed the applicant’s solicitor that the evidence did not establish an offence of trafficking. They noted that “at this stage there is no evidence that would support exploitation of any kind”.
24. Police officers met with the applicant and her representative on 11 March 2009. The applicant’s solicitor asserted that at this meeting a police officer indicated that it was the Metropolitan Police’s provisional view, given expressly without formal authority, that there was no offence in English criminal law which applied to the facts of the case. The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant’s account was credible.
25. In an entry dated 27 March 2009 the police noted that:
“It is clear that this female was not trafficked into the UK for labour exploitation. She having applied for a visa in her real name to come to the UK was refused. She then in agreement with her father then obtained a false passport with a forged visa stamp. These false documents were paid for by her father with the assistance of her uncle...
She willingly commenced work that was arranged by her uncle as a live-in carer for an elderly couple.
The family at first wanted to pay her wages direct. But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle’s account who in turn would send the money back to Uganda. This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number. If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [United Kingdom Border Agency]. This would then lead to her arrest and eviction from the UK...
...There is no evidence to show that this female is/was a victim of slavery or forced labour. She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the UK. It is basically a situation that one criminal (her uncle) has taken all the proceeds of their crime...”
26. At that meeting the applicant’s solicitor pointed out that S. had taken the applicant’s identity documents from her upon her arrival in the United Kingdom and that this was grounds to prove possible forced labour. However, the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter the United Kingdom.
27. On 31 March 2009 the police spoke again with the applicant’s solicitor. While they accepted that not every enquiry had been carried out, such as production orders relating to relevant bank accounts, it was important to ensure that the limited resources of the Human Trafficking Team were used to best effect and they could not, therefore, carry out any further investigation into the applicant’s complaints.
28. The applicant was assessed by a clinical psychologist specialising in violence against women. The psychologist concluded in her 16 May 2009 report that the applicant was “suffering to a severe degree from a complex form of chronic Post-Traumatic Stress Disorder (PTSD), in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide.” In particular, she noted that the applicant presented “in ways consistent with a victim of trafficking and forced labour, in the context of a history of sexual assaults”.
29. On 11 August 2009 the police noted that they would write to the applicant’s solicitor to confirm that “this particular case does not fulfil the requirements of human trafficking as per UK legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor”.
30. On 12 August 2009 the police wrote to the applicant’s solicitor in the following terms:
“I can confirm that after undertaking an investigation of the case including interviewing Ms N. a decision has been made to conclude the investigation. This decision is based on several factors, one being that after consultation with the legal representative of the Human Trafficking Centre the circumstances of Ms N.’s case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004.
I am not aware of any specific offence of forced labour or servitude beyond that covered by section 4 of the Asylum and Immigration Act 2004 though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances the Gangmasters Act 2004...”
31. Section 71 of the Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009, made slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to fourteen years’ imprisonment. Section 71 came into force on 6 April 2010 but did not have retrospective effect.
32. Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the offence of trafficking people for exploitation. It provides that:
“(1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the “passenger”) and—
(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
(2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the “passenger”) in respect of whom he believes that an offence under subsection (1) may have been committed and—
(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.
(3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the “passenger”) and—
(a) he intends to exploit the passenger outside the United Kingdom, or
(b) he believes that another person is likely to exploit the passenger outside the United Kingdom.
(4) For the purposes of this section a person is exploited if (and only if)—
(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),
(b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplants Act 1989 (c. 31) or the Human Organ Transplants (Northern Ireland) Order 1989 (S.I. 1989/2408 (N.I. 21)),
(c) he is subjected to force, threats or deception designed to induce him—
(i) to provide services of any kind,
(ii) to provide another person with benefits of any kind, or
(iii) to enable another person to acquire benefits of any kind, or
(d) he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—
(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and
(ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement.
(5) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.”
33. On 12 November 2009 the Coroners and Justice Act 2009 received Royal Assent. Section 71, which will come into force “on such day as the Secretary of State may by order appoint”, provides as follows:
“71 Slavery, servitude and forced or compulsory labour
(1) A person (D) commits an offence if—
(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or
(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.
(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.
(4) In this section—
“Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
“the relevant period” means—
(a) in relation to England and Wales, 12 months;
(b) in relation to Northern Ireland, 6 months.”
34. Articles 1 and 2 of the Convention provide as follows:
“Article 1
1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.
2. With a view to this complete suppression, recourse to forced or compulsory labour may be had, during the transitional period, for public purposes only and as an exceptional measure, subject to the conditions and guarantees hereinafter provided.
3. At the expiration of a period of five years after the coming into force of this Convention, and when the Governing Body of the International Labour Office prepares the report provided for in Article 31 below, the said Governing Body shall consider the possibility of the suppression of forced or compulsory labour in all its forms without a further transitional period and the desirability of placing this question on the agenda of the Conference.
Article 2
1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include--
(a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character;
(b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;
(e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.”
35. The ILO has developed indicators of forced labour which provide a valuable benchmark in the identification of forced labour. These indicators are:
“1. Threats or actual physical harm to the worker.
2. Restriction of movement and confinement to the work place or to a limited area.
3. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt.
4. Withholding of wages or excessive wage reductions, that violate previously made agreements.
5. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status.
6. Threat of denunciation to the authorities, where the worker is in an irregular immigration status.”
36. The United Kingdom ratified the Convention on 17 December 2008 and it came into force on 1 April 2009.
37. Article 4 defines “trafficking in human beings" as follows:
“(a) the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
38. Article 19 provides that:
“Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph (a) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.”
39. Article 5 of this Convention, which the United Kingdom ratified in 1927, provides that:
“The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.
It is agreed that:
(1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.
(2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.
(3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.”
40. Recommendation 1523 (2001) provides, as relevant, that:
“1. In the last few years a new form of slavery has appeared in Europe, namely domestic slavery. It has been established that over 4 million women are sold each year in the world.
2. In this connection the Assembly recalls and reaffirms Article 4, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits slavery and servitude, and also the definition of slavery derived from the opinions and judgments of the European Commission of Human Rights and the European Court of Human Rights.
3. The Assembly also recalls Article 3 of the ECHR, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 6, which proclaims the right of access to a court in civil and criminal matters, including cases where the employer enjoys immunity from jurisdiction.
... ... ...
5. It notes that the victims’ passports are systematically confiscated, leaving them in a situation of total vulnerability with regard to their employers, and sometimes in a situation bordering on imprisonment, where they are subjected to physical and/or sexual violence.
6. Most of the victims of this new form of slavery are in an illegal situation, having been recruited by agencies and having borrowed money to pay for their journey.
7. The physical and emotional isolation in which the victims find themselves, coupled with fear of the outside world, causes psychological problems which persist after their release and leave them completely disoriented.
... ... ...
9. It regrets that none of the Council of Europe member states expressly make domestic slavery an offence in their criminal codes.
10. It accordingly recommends that the Committee of Ministers ask the governments of member states to:
i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes;
... ... ...
vi. protect the rights of victims of domestic slavery by:
a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds;
b. taking steps to provide them with protection and with social, administrative and legal assistance;
c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery;
d. developing specific programmes for their protection;
e. increasing victims’ time limits for bringing proceedings for offences of slavery;
f. establishing compensation funds for the victims of slavery.”
41. Recommendation 1663 (2004) further provides, as relevant, that:
“The Assembly thus recommends that the Committee of Ministers:
i. in general:
a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion;
b. encourage member states to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member states;
c. ensure that the relevant authorities in the member states thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible;
d. recommend that member states review their immigration and deportation policies, granting victims of domestic slavery at least temporary residence permits (if possible, in conjunction with work permits) and allowing them to file complaints against their abusive husbands or employers if they wish to do so;
e. urge member states to provide an efficient support network for victims (including emergency accommodation, health care, psychological and legal counselling services) and attribute funds to non-governmental organisations working in this area;
f. ensure that victims of slavery are provided with reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition;
ii. as concerns domestic servitude:
a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers’ recommendation or even of a convention, should guarantee at least the following rights to domestic workers:
– the recognition of domestic work in private households as “real work”, that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights;
– the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities;
– the right to health insurance;
– the right to family life, including health, education and social rights for the children of domestic workers;
– the right to leisure and personal time;
– the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country;
b. recommend the introduction of a system of accreditation for agencies placing domestic workers, which would commit these agencies to certain minimum standards, such as charging reasonable fees, tracking the employees they have placed and providing emergency help in cases of difficulty. Accredited agencies could have visa applications put forward on their behalf validated automatically;
c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub-paragraph b above.”
VIOLATED_ARTICLES: 4
VIOLATED_PARAGRAPHS: 4-1


ITEMID: 001-78219
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRASNOSHAPKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1963 and lives in the town of Lokhvitsya, Poltava region, Ukraine.
5. The applicant worked as a saleswoman in the “Kram” shop at the State-owned “Lokhvitskiy Spirtkombinat” distillery.
6. In July 1998, in accordance with the findings of an inspection, which revealed the shortage of goods, the applicant was dismissed from her position.
7. On 21 August 1998 the applicant instituted proceedings in the Lokhvytskiy District Court against her former employer challenging her dismissal.
8. On 10 November 1998 the court found the case ready for examination and scheduled the hearing for 27 November 1998.
9. On 21 November 1998, following the results of the inspection, a criminal case was instituted.
10. On 27 November 1998 the civil proceedings in the applicant's case were suspended until the investigation of the criminal case was completed.
11. On 25 March 1999 the criminal proceedings were terminated due to the lack of corpus delicti in the applicant's actions.
12. On 14 December 2001 the hearing was adjourned upon the applicant's request.
13. On 17 December 2001 the court requested the Lokhvitsky District Prosecutor's Office to provide information about the results of the investigation.
14. On 20 December 2001 the court was informed that the criminal proceedings against the applicant had been terminated.
15. On 14 June 2002 the court heard the merits of the case and adjourned the hearing.
16. On 14 June 2002 the applicant modified her claim.
17. On 23 July 2002 the court heard the merits of the case and adjourned the hearing in order to allow the defendant to study the new documents submitted by the applicant.
18. On 2 October 2002 the court postponed the hearing due to the failure of the defendant's representative to appear.
19. On 22 November 2002 the hearing was adjourned due to illness of the defendant's representative.
20. On 12 August 2003 the court found in part for the applicant and ordered her reinstatement in the position of a saleswoman. It also awarded the applicant UAH 16,500 in salary arrears and UAH 1,000 in compensation for non-pecuniary damage.
21. On 18 August 2003 the Poltava Regional Court of Appeal left the defendant's appeal against the above decision without a course and gave him the time to rectify the procedural shortcomings.
22. On 18 December 2003 the Court of Appeal quashed this judgment and remitted the case for a fresh consideration.
23. On 1 June 2005 the Supreme Court of Ukraine quashed the decision of the court of appeal and remitted the case for a fresh consideration. The Supreme Court held that the Poltava Regional Court of Appeal was itself competent to consider the merits of the case.
24. On 27 July 2005 the Poltava Regional Court of Appeal partly changed the decision of 12 August 2003. It rejected the applicant's claim for non-pecuniary damage but upheld the remainder of that decision.
25. On 14 November 2005 the Supreme Court upheld this judgment.
26. In April 2006 the applicant informed the Court that the judgment in her favour remained unenforced.
27. Article 221-4 of the Code of Civil Procedure of Ukraine envisages that a court must suspend proceedings if it is impossible to examine the case until determination of another case which is examined in civil, criminal or administrative procedure. According to Article 224-1, in such a situation the proceedings are suspended until the decision, on which the proceedings depend, became final.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-24074
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: TRANSADO-TRANSPORTES FLUVIAIS DO SADO, S.A. v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant company, Transado-Transportes Fluviais do Sado, S.A., is a public limited company formed under Portuguese law, whose registered office is in Setúbal (Portugal). It was represented before the Court by Mr M. Mendes Carqueijeiro and Mr I. Machado, of the Lisbon Bar.
The applicant company is a river transport company which operated a ferry across the river Sado between Setúbal and Tróia under a concession contract concluded in 1976 with the Setúbal port authorities ( “the APS”).
Clause XXXIII of the contract provided that any dispute concerning the validity, interpretation or execution of the provisions of the concession contract would in all cases be submitted to an arbitration tribunal made up of three arbitrators, the first to be appointed by the APS, the second by the applicant company and the third – the president – by the Setúbal court.
Clause XXVI of the contract stated that on expiry of the concession the APS would become the owner of all assets and equipment, including ships. However, Transado would be entitled to compensation in respect of those assets acquired by it with the APS’s agreement which had not yet been written off on expiry of the concession; such compensation would correspond to the value that had not been written off. To this end, the applicant company and the APS were required to reach agreement on the writing-off periods for the assets in issue.
On 4 August 1981 the applicant company and the APS signed a supplementary agreement to the concession contract, fixing the length of the concession at twenty years. This period would be automatically extended for ten years unless one of the parties repudiated it at least six months prior to expiry of the contract. Negotiations were also held between the applicant company and the APS with a view to amending clause XXVI of the concession contract, particularly with regard to the formula for calculating compensation, but these came to nothing. In a letter from the APS to the applicant company, dated 14 October 1980, a concrete proposal on amending clause XXVI was put forward. However, no such amendment to the contract was agreed.
In 2001 the applicant company operated a fleet of eight conventional vessels and ferries which it had bought itself; at least three had been purchased with the APS’s authorisation.
On 29 January 2001 the APS informed the applicant company that it did not intend to renew the concession, which would therefore expire on 4 August 2001. It referred in particular to the applicant company’s difficult financial situation and to the problems arising from the considerable sums which it owed to the tax and social security authorities, debts which moreover had entailed the seizure of certain vessels.
On 19 March 2001 the applicant company submitted its request for compensation to the APS. It argued that any such compensation ought to be calculated on the basis of the provisions of clause XXVI of the concession contract, as amended by the APS’s letter of 14 October 1980.
On 11 June 2001 the APS stated that compensation could be awarded only on the basis of the original wording of clause XXVI of the concession contract, and under no circumstances could any such compensation be awarded on the basis of the amendment proposed on 14 October 1980, which had never been agreed.
On 22 June 2001 the applicant company requested that the arbitration tribunal provided for in clause XXXIII of the concession contract be convened, with a view to settling the dispute.
The arbitration tribunal was formed on 12 November 2001. The applicant company and the APS both submitted observations and witnesses were questioned.
The arbitration tribunal delivered a unanimous verdict on 2 April 2002, dismissing the applicant company’s request for compensation. Having interpreted clause XXVI, and noting that only the original text of the concession contract could be applied, it stressed that there was nothing in the facts as established to show that the applicant company and the APS had reached agreement on the writing-off periods for the assets in issue. The compensation request could not therefore succeed.


ITEMID: 001-70629
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ZYFLLI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Bujamin Zyflli, is an Albanian national who was born in 1945. At the time his application was lodged with the ECHR he was serving a sentence in Kruja Prison. He currently lives in the city of Devoll.
and the Government pursuant to Rule 49 § 2 (a) of the Rules of Court, may be summarised as follows.
On 3 April 1989 the applicant was arrested and charged with murder and the possession of firearms.
On 25 May 1989 the Korça District Court found him guilty and sentenced him to twenty years’ imprisonment.
From June 1989 to August 1992 the applicant served his sentence in Batër Prison, during the course of which he was required to do forced labour in a mine.
Between August 1992 and 1997 he was transferred to three different prisons.
Under the Amnesty Act of 13 November 1989 the applicant was excused from serving four years, ten months and two days of imprisonment.
Under a pardon issued on 28 December 1995 he was entitled to two years’ remission of sentence.
In 1996 the applicant argued that he had been excused from serving two years three months and six days of imprisonment under two pardons.
On 13 March 1997 he left prison, at a time when the State no longer had control over prisons when Albania was reduced to turmoil.
According to the applicant, an Amnesty Act of 1997 entitled him to two years’ remission.
On 11 September 2000 he gave himself up to the authorities in order to serve the rest of his sentence, which according to the applicant amounted to a few months.
On 5 February 2003 and 25 March 2004, following the applicant’s requests, the Kruja District Court granted him a total of six months’ remission for good behaviour.
In 2003 the applicant lodged two applications with the judge responsible for the execution of sentences for a reduction of sentence as follows: (a) nine months and sixteen days corresponding to three years’ forced labour while in Batër Prison; (b) two years, three months and six days under two pardons issued in 1996; (c) one month being the period he had spent in pre-trial detention; and (d) two years under the Amnesty Act of 1997. According to the applicant, his detention from 2001 onwards was unlawful.
On 22 October and 13 November 2003 the Kruja District Court decided to stay the proceedings in view of requests by the applicant for the cases to be struck out of the list. The applicant did not appeal against the above mentioned decisions.
Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Government stated on 1 July 2004 that the applicant had eight months and fourteen days of his sentence left to serve.
They submitted that the applicant had been entitled to remission of sentence for the following periods: (a) two years under the pardon of 28 December 1995; (b) four years, ten months and two days under the Amnesty Act of 13 November 1989; (c) one month for his pre-trial detention; (d) six months granted by the domestic court for good behaviour; (e) one month and twenty days corresponding to thirteen days’ forced labour.
With regard to the applicant’s claim to a reduction in sentence on account of the forced labour, the Government submitted that the applicant’s prison file revealed that during three years in Batër Prison he had worked a total of thirteen days in a period between June and July 1989, entitling him to one month and twenty days’ remission.
As regards the remainder of the time the applicant spent in Batër Prison there was nothing in his prison file to indicate whether he had been certified fit to work in the mine. The Government observed, however, that the applicant had failed to lodge a request for certification of facts with the domestic courts in order to have his prison file restored.
According to the Government, the applicant did not receive a pardon in 1996 or qualify for remission under the Amnesty Act of 1997.
On 14 March 2005 the applicant was released from prison having served his sentence.
The relevant provisions of the Code of Civil Procedure read as follows:
“When the creation, modification or cessation of a person’s personal or property rights depends on a fact and the document which certifies the existence of such fact has disappeared or has been lost and cannot be reissued or obtained in any other way, the interested party shall be entitled to request certification of such fact by a court decision.”
(a) Under a pardon issued on 28 December 1995 the Albanian President, exercising his right to grant convicted prisoners a pardon, decided that the applicant was entitled to two years’ remission of sentence.
(b) In 1996 the Albanian President granted six pardons under his prerogative powers, but according to the Government, the applicant was not among the recipients.
Section 7 of the Amnesty Act of 13 November 1989 provided that all convicted prisoners at the time the Act entered into force were entitled to remission of a quarter of their sentence.


ITEMID: 001-4656
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TUMILOVICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Russian national, born in 1948 and living in Krasnodar.
A.
The applicant worked as an engineer for the joint-stock company “Saturn” (АООТ «САТУРН») (“the company”). Because of the financial difficulties of the company the applicant was ordered to take unpaid leave for the period from 12 October 1993 to 1 November 1995. It appears that the applicant decided to take further unpaid leave until December 1996.

In 1996, while on leave, the applicant brought an action for damages against the company requesting compensation for losses she had incurred and reinstatement in her former job.
On 13 December 1996 the Prikubansk District Court (Прикубанский районный суд) refused to deal with the applicant’s action on the grounds that she had failed to comply with the procedural requirements.
On 11 February 1997 the same court, after a public hearing, dismissed the applicant’s rectified action finding, inter alia, that the company’s financial difficulties had an objective basis which was beyond the court’s control.
On 25 March 1997 the Krasnodarsk Regional Court (Краснодарский краевой суд), upon the applicant's appeal, upheld the judgment of the Prikubansk District Court.
On 8 April 1997, the applicant was dismissed from work following a reorganisation of the company.

The applicant lodged several complaints with various State administrative authorities. On 25 December 1996 and 19 May 1998 she was informed by the Regional Work Inspectorate (Государственная инспекция труда по Краснодарскому Краю) and the Federal Work Inspectorate (Федеральная инспекция труда) respectively that labour disputes fell within the competence of the national courts.

By letter of 17 June 1997 the Deputy Krasnodarsk Regional Prosecutor (заместитель прокурора Краснодарского края) rejected the applicant’s application to file an appeal for a supervisory review (hereafter referred to as an “application for a supervisory review”) (жалоба в порядке надзора) against the ordinary courts’ judgments, finding that the issues raised by the applicant had been properly dealt with by the national courts.
The applicant lodged another application for supervisory review with the Krasnodarsk Regional Court requesting that the ordinary courts’ judgments be quashed and her case reconsidered. By letter of 5 August 1997 the Deputy President of the Krasnodarsk Regional Court informed the applicant that her application had been rejected for being unsubstantiated, as confirmed by letter of 3 December 1997 from the President of the Regional Court.
By letter of 6 August 1997 the Krasnodarsk Regional Prosecutor (Прокурoр Краснодарского края) rejected the applicant’s third application for a supervisory review.
By letters of 8 August 1997 and 19 February 1998 the Prosecutor General Office (Генеральная прокуратура) dismissed the applicant’s fourth application for a supervisory review against the ordinary courts’ judgments.

By letter of 15 June 1998 the President of the Civil Chamber of the Supreme Court (Председатель состава Судебной коллегии по гражанским делам Верховного Суда) rejected the applicant’s fifth application for a supervisory review as unsubstantiated.
By letter of 14 October 1998 the Deputy Prosecutor General (Заместитель Генерального Прокурoра) rejected the applicant’s sixth and last application for a supervisory review.

By letter of 15 February 1999 the Constitutional Court (Конституционный Суд) informed the applicant that it was not competent to deal with her complaint.
B. Relevant domestic law
According to Article 319 of the Code of Civil Procedure (“the Code”), judgments, court rulings and decrees which have entered into force, may be reviewed by way of supervision following a “protest” (протест) lodged by the persons listed in Article 320 of the Code.
According to Article 320 of the Code, the persons competent to lodge a protest are the Prosecutor General and the President of the Supreme Court.

According to Article 322 of the Code, the persons listed in Article 320 are entitled, subject to certain conditions, to obtain the case file in a civil case in order to establish whether there are any grounds for lodging a protest by way of supervision.