ITEMID: 001-83078
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ROHL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Bettina Röhl, is a German national who was born in 1967 and lives in Hamburg in Germany. She was represented before the Court by Mr P. Plog, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1998 the applicant, a professional journalist, started private investigations into an arson attack carried out against police officer W. during a demonstration held in Frankfurt on 10 May 1976. Police officer W. survived, but had been very seriously injured.
In February 1999 the Frankfurt Public Prosecutor’s Office re-opened criminal investigations into the 1976 incident directed against Ms J. H. on suspicion of attempted murder.
In January and February 2001 German public television broadcasted two of the applicant’s films dealing with different aspects of the events in 1976 and her own investigations.
On 31 May 2001 the Frankfurt District Court (Amtsgericht) issued a warrant to search the applicant’s apartment, which read as follows:
“In the context of the preliminary investigations against
...[J.H.]
on suspicion of an offence pursuant to sections 211, 22, 23 of the Criminal Code [attempted murder],
on request of the Frankfurt Public Prosecutor, the search of the residential and side premises of Brigitte Röhl pursuant to sections 103, 105 of the Code of Criminal Procedure are ordered.
According to the present results of investigations, there are facts to suggest that the search will allow the seizure of the following objects:
Documents concerning the incident of 10 May 1976 in Frankfurt/Main which shed light on the relevant course of events.
The evidence found has to be placed in official custody or to be secured otherwise. If section 98 § 2 applies, the seizure has to be confirmed within three days by court order.
Reasons:
As a result of police investigations, the accused J. H. is suspected of having, on 10 May 1976, during a demonstration on the occasion of the death of Ulrike Meinhof, thrown explosives on a police car and of thus having inflicted life-threatening injuries on police officer W.
The above-mentioned documents may be of importance as evidence for the investigation.
The journalist Röhl is supposed to be in possession of extensive documentation concerning the demonstration which took place on 10 May 1976 in Frankfurt/Main. This is supposed to lead to indications as to the identity of the offender.
The search may be averted by handing over the documents voluntarily.”
By decision of 13 July 2001 the applicant’s forename was corrected into “Bettina”.
The search of the applicant’s apartment was carried out on 18 July 2001 in the presence of the applicant and an officer of public prosecution. Several documents, data carriers and the hard disk of the applicant’s personal computer were seized.
The applicant objected to the search and appealed against the search and seizure decision on that same day. She stated that she relied on her journalist’s right to refuse to give evidence. She further pointed out that she had deposited all relevant material outside her apartment, so that it had not been found during the search. She emphasised that the seized material, which related to her book project, should be returned in order to avoid further damage.
On 19 July 2001 the applicant’s personal computer was returned to her, while the Public Prosecutor retained a copy of the hard disk.
By further letters of 19 and 23 July 2001 the applicant pointed out, inter alia, that the Public Prosecutor’s Office had expressly acknowledged her journalist’s right to refuse to give evidence. She further emphasised that she had been willing to co-operate with public prosecution.
By letter of 27 July 2001 to the Frankfurt Public Prosecutor’s Office the applicant, represented by counsel, referred to her appeal of 18 July 2001 and requested to be granted access to the case-file.
On 30 July 2001 the Public Prosecutor informed the applicant’s counsel that he could not grant that request, because the case-file had been dispatched to the Regional Court.
On 31 July 2001 the Frankfurt Regional Court (Landgericht) rejected the applicant’s appeal, finding that the applicant’s own statements as a witness had justified the assumption that the search of her apartment would yield evidence relevant for clearing up a serious criminal offence committed by a third person, namely the attempted murder of police officer W. in 1976. The measure was proportionate with regard to the seriousness of the offence. The applicant’s documents were not exempt from seizure pursuant to section 97 § 5 of the Code of Criminal Procedure (Strafprozessordnung, see relevant domestic law below). According to this provision, the seizure of documents was inadmissible if they were found in the possession of a journalist who had the right to refuse to give evidence under section 53 § 1 of the Code of Criminal Procedure. The applicant did not belong to this group of persons, because the seized documents had not been acquired in the course of preparation of an article in a periodical newspaper or broadcast. According to the applicant’s own submissions, the material had been researched by the applicant in the course of her book project. It followed that the applicant did not have the right to refuse to give evidence in this respect.
This decision was served on the applicant’s counsel on 7 August 2001.
In the meantime, on 2 August 2001, the applicant’s counsel, in a letter to the Frankfurt Public Prosecutor, submitted that the applicant had been for years professionally active in the preparation, production or dissemination of periodically published material and television broadcasts and that this had been known both to the Public Prosecutor and to the Frankfurt District Court. She was currently not only working on her book project, but also on periodicals and, in particular, on television broadcasts relating to the events in 1976.
By letter of 4 September 2001, which reached the applicant on 11 September 2001, the Frankfurt Regional Court informed the applicant that her request to be granted access to the case-file had to be directed to the Public Prosecutor, to whose offices the case-file had been returned following the termination of the complaint proceedings.
On 7 September 2001 the applicant lodged a complaint combined with a request for an interim measure against the Frankfurt Regional Court’s decision of 31 July 2001 with the Federal Constitutional Court, in which she gave an account of the proceedings before the domestic authorities and complained that the search of her apartment and the seizure of her documents violated her journalist’s right to refuse to give evidence. She alleged that the Frankfurt Public Prosecutor’s Office had been fully informed about the scope of her journalistic work and that her investigations into the incident on 10 May 1976 did not relate to her book-project. She further submitted that the domestic authorities purposefully denied her access to the case-file.
On 13 September 2001 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for adjudication as being inadmissible. This decision was served on the applicant on 21 September 2001.
In September and October 2001 the applicant requested access to the case-file relating to the search of her premises. By letter of 21 October 2001 the Public Prosecutor’s Office informed her that she did not have a right of access to the files of the main proceedings – as she herself was not charged of any offence – and that a separate case-file concerning the search of her apartment did not exist.
On 12 October 2001 the Frankfurt District Court refused to return a file, which had been seized during the search, to the applicant. It noted that a copy of the file had been handed out to the applicant and that the examination of the content of the file had not been terminated.
On 16 June 2006 the remainder of the applicant’s seized property was handed out to the applicant’s counsel.
Section 103 of the Code of Criminal Procedure (Strafprozessordnung) provides that the home and other premises of a person who is not suspected of a criminal offence may be searched by order of a judge only in order to apprehend a person charged with an offence, to investigate the traces of an offence or to seize specific objects, provided always that there are facts to suggest that such a person, trace or object are to be found on the premises to be searched.
Section 53 § 1, number 5 as in force until 22 February 2002 provided that individuals who are or were professionally involved in the preparation, production or dissemination of periodically published material or radio broadcasts had the right to refuse to give testimony concerning the author, contributor or informant providing contributions and documentation and concerning information received by them in their professional capacity insofar as this concerned contributions, documentation and information for the editorial element of their activity.
On 23 February 2002 a second sentence and third sentence were added to section 53 § 2. The second sentence provides that persons as defined by § 1, number 5 do not have a right to refuse to give testimony with respect to their own research materials, if their testimony is destined to contribute to investigations concerning a crime or another specified offence and if the investigation into the facts would otherwise lack prospect of success or would be seriously obstructed. According to the third sentence of that same paragraph, the witness retained the right to refuse to testify if he would otherwise reveal his sources.
Pursuant to section 97 § 5, the seizure of documents, audio, visual and data recording media, illustrations and other images in the custody of persons referred to in Section 53 § 1, number 5, shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify.
All first instance court decisions relating to the search and seizure are subject to an appeal (section 304 of the Code of Criminal Procedure).
According to sections 23 § 1 and 92 of the Rules of Procedure of the Federal Constitutional Court a constitutional complaint has to be submitted in written form. The applicant has to name the right which has allegedly been violated and the action or omission which allegedly let to the violation.
Section 92 § 2 stipulates that a constitutional complaint can only be raised following exhaustion of prior legal remedies.


ITEMID: 001-61211
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF R.W. v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1940 and lives in Warsaw.
9. In March 1982 the applicant became divorced.
10. On 30 September 1982 his former wife filed with the Warsaw District Court (Sąd Rejonowy) a request for the partition of the property of the spouses. The request related to 147 items and a shared flat in a housing co-operative building.
11. The Government submitted that between 27 December 1982 and 2 December 1987 the court held 19 hearings. The applicant stated that one of the hearings referred to by the Government had never been held and four others had been only in camera sittings.
12. In 1985 and 1986 the court ordered six expert opinions. According to the Government, on an unspecified date after 2 December 1987 the case-file was lost.
13. In 1992 the applicant lodged a further request for the partition of the property. He informed the Warsaw District Court that the place of residence of his former wife was unknown and it was impossible to bring her before the court. The applicant maintained that he had had difficulties in establishing her place of residence. The court appointed a guardian ad litem for her. On 22 May 1992 it gave judgment.
14. The Government submitted that after the completion of those proceedings the applicant had formally reported his former wife's departure to Germany.
15. In December 1992, after her return to Poland, the applicant's former wife requested the re-opening of those proceedings, relying on the applicant's misinformation as to the alleged lack of knowledge of her residence in Germany. On 22 July 1993 the Warsaw District Court quashed the decision issued in those proceedings.
16. In January 1994 the lost case-file was found. The court held hearings on 14 January, 4 March, 16 May, 5 August and 14 November 1994. The Government submitted that the applicant had failed to attend the hearings of 14 January, 4 March and 16 May 1994. The applicant maintained that he had been present at the hearing on 14 January 1994 and that his absence on 16 May 1994 had been justified.
17. The court held a hearing on 12 June 1995.
18. On 18 July 1995 the court ex officio made attempts aimed at converting the disputed flat into smaller ones. Between July 1995 and January 1996 it enquired with various authorities as to possible solutions to the dispute.
19. The hearing scheduled for 30 September 1996 was adjourned because of the absence of the applicant's lawyer. The applicant submitted that his lawyer had had an operation on his heart.
20. Further hearings were held on 6 January, 14 April and 18 September 1997. According to the applicant, the hearing of 18 September 1997 was in fact an in camera sitting.
21. The applicant requested the adjournment of the hearing scheduled for 30 January 1998.
22. Subsequent hearings were held on 25 May 1998 and 25 February 1999, as well as on 7 January and 3 March 2000.
23. On several occasions the applicant's former wife failed to attend hearings or her lawyer failed to submit certain documents or pleadings. The court ordered expert opinions concerning the value of objects located in the flat of the applicant and his former wife, their cars and jewellery.
24. On 25 May 2000 the applicant learnt that the case-file had been lost again. It was subsequently found.
25. The applicant failed to attend the hearing scheduled for 18 December 2000.
26. According to the Government, the hearing scheduled for 19 April 2001 was adjourned at the applicant's request. He submitted that no hearing had been scheduled for that day.
27. The court held a hearing on 11 May 2001.
28. At the hearing held on 21 September 2001 it ordered an expert opinion.
29. Hearings were held on 11 February and 14 November 2002, as well as 17 January 2003.
30. On 31 January 2003 the court gave judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23598
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PURSIHEIMO v. FINLAND
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Matti Pursiheimo, is a Finnish national, who was born in 1946 and lives in Rauma. He is represented before the Court by Mr Pekka Lankinen, a lawyer in Tampere. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1997 as well as in January and June 1998 the applicant was apprehended by the police in his home after having disturbed his wife and grown-up daughter in a drunken state. On 4 September 1998 the Rauma police authority revoked his licences to keep nine rifles and four pistols and seized them. The decision was based on section 67, subsection 2 (4), of the 1998 Firearms Act (ampuma-aselaki, skjutvapenlag 1/1998) which had entered into force on 1 March 1998. On the strength of this provision a licence may be withdrawn due to the holder’s state of health or dangerous lifestyle or behaviour such that it endangers the safety of himself and others and renders him unsuitable to possess guns, ammunition or related parts. The reason indicated in the decision was, in extenso, “the applicant’s repeated, disturbing behaviour while drunk”.
The applicant appealed, requesting an oral hearing of himself as well as his wife and daughter so as to prove that there was no causal link between his being drunk and the purported risk that he might use the firearms while under the influence of alcohol. His heavy alcohol consumption had been due largely to conflicts between himself and his daughter, who had moved away from home after the incidents leading to his apprehension. He had never assaulted her or anyone else and had never touched the firearms while drunk. The firearms had furthermore been locked. He further denied abusing alcohol continuously such that his behaviour met the condition in the Firearms Act for withdrawing his licences. That law required, in addition, that his behaviour was so problematic as to engender a risk that he might use his firearms for other than permissible purposes. The police authority’s position that he was an alcohol abuser had not been backed up by any medical evidence. The revocation and seizure order had come as a surprise as he had not been warned that this might be the consequence of the behaviour which had led to his apprehension for drunkenness. Some of the firearms had been inherited by the applicant and had been in the family for three generations.
In its decision of 23 March 1999 the County Administrative Court (lääninoikeus, länsrätten) of Turku and Pori refused the request for an oral hearing, considering that the applicant “had accepted the basis” for the revocation and seizure order, i.e. that he had behaved in a disturbing manner while drunk. Even though it had been contended that he had never been violent, in the circumstances at hand and given “the other information emanating from the documents”, it was manifestly unnecessary to hold a hearing, whether for the purpose of examining whether the legal conditions for the order had been met or for any other reason.
The court went on to uphold the revocation and seizure order, noting that it had been based on the applicant’s “repeated, disturbing behaviour while drunk”. The court recognised that no attempt had been made to establish whether he had acted violently but noted that the order had been based not on his violence but on his alcohol abuse which in itself could be considered a lifestyle endangering the safety of others and thus warranting a withdrawal of his licences.
In its decision of 31 December 1999 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), by three votes to two, dismissed the applicant’s complaint about the lack of an oral hearing before the County Administrative Court. It also refused his request for an oral hearing before the Supreme Administrative Court. The highest court, like the lower court, noted that the applicant had accepted the basis of the decision made by the police, namely his alcohol problem and disturbing behaviour, adding that he had been apprehended in his home in December 1997 as well as in January and in June 1998. In view of this and “other information emanating from the documents” a hearing was unnecessary.
The Supreme Administrative Court also upheld the revocation and seizure order, essentially relying on the lower court’s reasons. The justices in the minority would have remitted the case for an oral hearing before the lower court. They considered that the evidence which the applicant had wished to present as to the effect of his use of alcohol on his suitability to possess guns concerned a fact of relevance to the assessment of whether the legal conditions for the revocation of his licences were met. Considering also the importance of the licences for him, it was not “manifestly unnecessary” to hold an oral hearing.
Under section 67, subsection 2 of the Firearms Act a licence for the acquisition or possession of a firearm, firearm component, cartridges and specially dangerous projectiles may be revoked if, inter alia, the licence holder is to be deemed unsuitable to acquire or possess such objects, given that due to his state of health or his way of life or his behaviour he is endangering his own safety or that of others.
According to the Government Bill (no. 183/1997) for the enactment of the Firearms Act, a licence could for example be revoked for reasons relating to the licence-holder’s health, way of life or behaviour. Before a licence can be revoked for reasons relating to the licence-holder’s way of life or behaviour, this way of life or behaviour should endanger the licence-holder’s own safety or that of others. Continued abuse of intoxicants – alcohol or drugs – may be considered such a way of life endangering safety as gives reason to revoke the licence. Thus, the danger caused thereby would not necessarily have to be related to firearms but even violent, dangerous or threatening behaviour without use of guns could constitute a ground for revoking the licence. However, in cases where the licence-holder’s way of life was considered problematic to the extent that there was a risk of misuse of guns, it would always be necessary to revoke the licence.
The revocation should nonetheless take account of all particular circumstances, the decisive matter being to what extent the act or conduct in question impacts on the license holder’s suitability to handle firearms.
In its decision no. 1998:16 the Supreme Administrative Court found that a case concerning the revocation of a licence to possess firearms involved no right or obligation within the meaning of section 16, subsection 1 (969/1995) of the Constitution (perustuslaki, grundlagen) or Article 6 § 1 of the Convention. The case concerned a prohibition to appeal against a decision under section 1 of the former Act on Firearms and Ammunition (33/1933) and sections 24 and 19 of the Decree on Firearms and Ammunition. Under those provisions, the police had the right to revoke a licence to possess firearms if it was found necessary. The Supreme Administrative Court voted on the case (5-3). According to the dissenting members of the Court, the revocation of a firearms licence involved the determination of a “right” or “obligation” within the meaning of section 16, subsection 1, of the Constitution.
Under section 38 of the Act on Administrative Court Procedure (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996), in its then form, the applicant was in principle entitled to a hearing once he had requested one, but this request could be refused if a hearing would have been manifestly unnecessary in light of the subject-matter or for any other reason.
Under the Firearms Act the applicant was entitled to designate or accept someone else as the owner of his firearms provided that person had been granted the requisite licence to that end. There is no indication that the applicant availed himself of this right within the prescribed three months (possibly extended to six) or whether the firearms were sold at a public auction the yield of which was to be passed onto the applicant following a deduction of administrative costs. Any firearms that could not be sold were automatically transferred into State ownership without any compensation (sections 99-100).


ITEMID: 001-67795
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SUPREME HOLY COUNCIL OF THE MUSLIM COMMUNITY v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 9;No violation of Art. 13;Not necessary to examine Arts. 6 and 14;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant, the Supreme Holy Council (Висш духовен съвет) of the Muslim Community, headed by Mr Nedim Gendzhev, was the officially recognised leadership of Muslims in Bulgaria, at least between 1995 and 1997. In reality, at the relevant time it was one of the two rival Muslim religious leaderships in Bulgaria. Mr Nedim Gendzhev, a Bulgarian citizen born in 1945 and residing in Sofia, was its leader. He was the Chief Mufti at least between 1988 and 1992 and the President of the Supreme Holy Council at least between 1995 and 1997.
8. At the end of 1989 a process of democratisation commenced in Bulgaria. Soon thereafter some Muslim believers and activists of the Muslim religion in the country sought to replace the leadership of their religious organisation. They considered that Mr Gendzhev, who was the Chief Mufti at that time, and the members of the Supreme Holy Council had collaborated with the communist regime. The old leadership, with Mr Gendzhev as Chief Mufti of Bulgarian Muslims, also had supporters. This situation caused divisions and internal conflict within the Muslim community in Bulgaria.
9. At the end of 1991 a new Government, formed by the Union of Democratic Forces (Съюз на демократичните сили – “the SDS”) and the Movement for Rights and Freedoms (Движение за права и свободи – “the DPS”), took office.
10. On 10 February 1992 the Directorate of Religious Denominations (Дирекция по вероизповеданията - “the Directorate”), a governmental agency attached to the Council of Ministers, declared the election of Mr Gendzhev in 1988 as Chief Mufti of the Muslims in Bulgaria null and void and proclaimed his removal from that position. This decision was based on findings, inter alia, that Mr Gendzhev’s election in 1988 had been politically motivated.
11. The Directorate appointed a three-member interim governing body of the Muslims’ religious organisation, considering that that was “the only possible means of preventing the organisational disintegration of the Muslim denomination”.
12. A national conference of Muslims, organised by the interim leadership, took place on 19 September 1992. It elected Mr Fikri Sali Hasan as Chief Mufti and also approved a new statute, which was registered in accordance with sections 6 and 16 of the Religious Denominations Act. After September 1992 the supporters of Mr Hasan obtained full control over the property and activities of the Muslim community.
13. Mr Gendzhev, who claimed that he remained the Chief Mufti, challenged the decision of 10 February 1992 before the Supreme Court. The proceedings ended with a final judgment of 7 April 1993. The Supreme Court, while considering that the impugned decision was not amenable to judicial review, nevertheless commented that the Directorate’s decision to declare Mr Gendzhev’s election null and void had been within its competence. In so far as the impugned decision had also proclaimed “the removal” of Mr Gendzhev from his position of Chief Mufti, this had been ultra vires. However, it was unnecessary to annul this part of the Directorate’s decision as in any event it had no legal consequences.
14. The leadership dispute between Mr Gendzhev and Mr Hasan continued throughout 1993 and 1994. The official position of the Directorate of Religious Denominations remained that Mr Hasan was the legitimate Chief Mufti of the Bulgarian Muslims. At the same time the Directorate apparently sought to “resolve” the dispute through the “unification” of the two factions under a common leadership.
15. On 2 November 1994 the supporters of Mr Gendzhev held a national conference, which proclaimed itself the legitimate representative of Muslim believers. The conference elected a leadership and adopted a statute. Mr Gendzhev was elected President of the Supreme Holy Council. After the conference the newly elected leaders applied to the Directorate for registration as the legitimate leadership of Muslims in Bulgaria.
16. At the end of 1994 parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party (Българска социалистическа партия – “the BSP”) obtained a majority in Parliament and formed a new government, which took office in January 1995.
17. On 22 February 1995 the Deputy Prime Minister issued a decree approving the statute of the Muslim denomination as adopted by the supporters of Mr Gendzhev on 2 November 1994. On 23 February 1995 the Directorate registered the leadership elected at that conference and effectively removed Mr Hasan and his supporters. In the following months the faction led by Mr Gendzhev assumed full control over the property and activities of the Muslim community in Bulgaria.
18. Mr Hasan appealed to the Supreme Court against the decision of the Directorate registering Mr Gendzhev’s leadership. Mr Hasan submitted, inter alia, that the conference of 2 November 1994 had been organised by people outside the Muslim religious organisation presided over by him. Accordingly, they could register their own religious organisation but could not claim to replace the leadership of another. Mr Hasan asked the Supreme Court either to proclaim the February 1995 decision null and void as being contrary to the law or to declare that it constituted the registration of a new religious community, the existing Muslim organisation being unaffected. The State did not have the right, he argued, to impose a single leadership on the Muslims.
19. On 27 July 1995 the Supreme Court dismissed the appeal. The court stated that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision as to whether or not to register the statute of a given religion. The Supreme Court’s jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with. In that respect the decision of February 1995 was lawful.
20. As regards the request for interpretation of the February 1995 decision, it was not open to the Supreme Court, in the context of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations.
21. Following the removal of Mr Hasan, in 1995 the Muslim believers who supported him held their own assembly and re-elected him Chief Mufti, while introducing changes in the organisation’s statute and leadership. Mr Hasan then applied to the Directorate of Religious Denominations for registration of the amended statute and the new leadership. Not having received any response, Mr Hasan appealed to the Supreme Court against the tacit refusal of his application.
22. On 14 October 1996 the Supreme Court delivered its judgment. It noted that in 1992 the Chief Mufti’s Office as represented by Mr Hasan had been duly registered as a religious denomination and had thus obtained legal personality of which it had not subsequently been deprived. Therefore, the Council of Ministers was under an obligation, pursuant to sections 6 and 16 of the Religious Denominations Act, to examine a request for registration of a new statute or of changes in the leadership of the existing religious denomination. Accordingly, the Supreme Court ruled that the Council of Ministers’ tacit refusal had been unlawful and remitted the file to the Council of Ministers, which was required to examine it.
23. On 19 November 1996 the Deputy Prime Minister refused to register the 1995 statute and leadership of the Chief Mufti’s Office as represented by Mr Hasan. He sent him a letter stating, inter alia, that the Council of Ministers had already registered a leadership of the Muslim community in Bulgaria, which was that elected by the November 1994 conference with Mr Gendzhev as President of the Supreme Holy Council. The Deputy Prime Minister concluded that the request “[could not] be granted as it [was] clearly contrary to the provisions of the Religious Denominations Act”.
24. On 5 December 1996 Mr Hasan appealed to the Supreme Court against the refusal of 19 November 1996.
25. On 13 March 1997 the Supreme Court quashed the refusal of the Deputy Prime Minister to register the 1995 statute and leadership headed by Mr Hasan on the ground that it was unlawful and contrary to Article 13 of the Constitution. That refusal was, moreover, “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration.
26. Despite the Supreme Court judgments of 1996 and 1997 the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan.
27. In February 1997 the government of the BSP stepped down and an interim cabinet was appointed. At the general elections that followed in April 1997 the SDS obtained a majority in Parliament and formed a new government.
28. The new Deputy Prime Minister and the Directorate of Religious Denominations urged the two rival leaderships, of Mr Hasan and of Mr Gendzhev, to negotiate a unification.
29. On 12 September 1997, in a letter to the Deputy Prime Minister and the Directorate, the religious leadership presided over by Mr Hasan demanded the removal of Mr Gendzhev.
30. On 18 September 1997 the Supreme Holy Council headed by Mr Gendzhev, also in a letter addressed to the Deputy Prime Minister and the Directorate, proposed the holding of a unification conference to be organised by a joint committee composed of representatives of the opposing factions. The Deputy Prime Minister was asked to serve as guarantor of the unification process and to ensure full representation at the conference of all Muslim religious communities. The letter also indicated that the current official leadership presided over by Mr Gendzhev agreed to freeze any movements of staff or disposals of community property pending the conference.
31. On 30 September 1997 the contact groups elected by the rival factions – composed of five members each – signed an agreement to convene a national conference of all Muslim believers. The agreement was also signed by the Deputy Prime Minister and the Director of Religious Denominations. It provided, inter alia:
“1. The all-Muslim conference shall be organised on the basis of full representation of the Muslim denomination. It shall not be based on the two existing statutes [of the rival leaderships]. [The] Deputy Prime Minister ... and the Director of Religious Denominations undertake to guarantee the implementation of this principle.
2. ... The [rival groups] undertake not to obstruct the spirit of unification underlying the conference, failing which the Directorate shall take appropriate administrative measures against the persons suspected of [obstruction].
3. Pending the conference, the [leadership headed by Mr Gendzhev] undertakes to refrain from any administrative decisions, [such as] appointments ...
4. The [leadership headed by Mr Gendzhev] consents to a freeze on all bank accounts ... and declares that pending the conference it will not enter into any transaction ...
7. The joint committee shall draw up rules and a procedure for the organisation of the conference...”
32. On an unspecified date the joint committee ruled that the assembly of each local community attending a mosque should elect two delegates to the national conference. It also decided that the minutes of the assemblies’ proceedings had to be entered on a form provided by the Directorate of Religious Denominations and certified by the local mayor.
33. On 6 October 1997 the joint committee decided that the conference should be held on 23 October 1997 and also agreed on the distribution of expenses.
34. Local assemblies for the election of delegates were held on 17 October 1997 throughout the country. The local mayors issued letters certifying the results of the elections.
35. The applicant organisation has submitted copies of two complaints to the Directorate dated 21 October 1997, one by a local religious leader and one by the mayor of a village. The letters stated that persons connected with the DPS had used threats to take possession of the results of the elections of delegates in the two localities concerned.
36. On 21 and 22 October 1997 Mr Gendzhev and those who had signed the unification agreement on behalf of the Supreme Holy Council headed by him wrote to the Prime Minister and the Directorate of Religious Denominations stating that the conference planned for 23 October was not being organised in accordance with the statute of the Muslim religious organisation and that it was therefore unlawful. Those who had signed the agreement of 30 September 1997 stated that they had been forced to do so by the Director of Religious Denominations and declared the withdrawal of their support for that agreement. The letter signed by Mr Gendzhev further described the participation of the Directorate in the preparation of the conference as unacceptable State interference in the Muslims’ internal affairs.
37. On 23 October 1997 more than one thousand delegates attended the conference. Only those whose election had been certified by the mayors were allowed to participate. According to the press, the verification of the delegates’ credentials was carried out by employees of the Directorate of Religious Denominations. Its Director addressed the conference, stating, inter alia, that Mr Gendzhev, who did not attend, had “failed the test”. With these words the Director apparently blamed Mr Gendzhev for having withdrawn from the unification process.
38. According to the applicant organisation, the DPS, a political party with a large majority of ethnic Turks among its members, was involved in the organisation of the conference. The party was allegedly very close to the ruling SDS and was implementing the political decision to replace the leadership of the Muslim community. According to the applicant organisation, about one hundred of the delegates on 23 October 1997 were mayors elected on the DPS ticket.
39. The conference adopted a new statute of the Muslim denomination in Bulgaria and unanimously elected a new leadership comprising six members of the leadership of Mr Hasan and other persons. It appears that no leader of the applicant organisation was among the newly elected leadership. The conference passed a resolution authorising the new leadership to conduct an audit and to seek the prosecution of Mr Gendzhev for alleged unlawful transactions.
40. On 28 October 1997 the Deputy Prime Minister registered the newly elected leadership, relying on sections 6 and 16 of the Religious Denominations Act. The new leadership took over all the organisational aspects and assets of the Muslim community in Bulgaria.
41. Mr Gendzhev, who claimed that he remained the President of the Supreme Holy Council, appealed on its behalf to the Supreme Administrative Court against the Government’s decision to register the new leadership. He claimed that the persons who had signed the agreement for the holding of a unification conference on behalf of the applicant organisation had never been officially authorised to do so; that the conference had been unlawful because of that fact and since those persons had in any event withdrawn; and that the authorities had interfered in an inadmissible manner in the internal affairs of the Muslim community. That was so because the Directorate of Religious Denominations had prepared the forms on which the results of the local elections for delegates had been recorded and also because those results had been certified by the mayors. Furthermore, among the elected delegates there had been a number of persons who were local mayors or active members of one political party, the DPS. Finally, the applicant organisation argued that there had been irregularities and manipulation in the election of delegates.
42. On 4 May 1998 the Supreme Administrative Court held a hearing. It admitted in evidence the material submitted by the applicant organisation but refused its request for a disclosure order against the Council of Ministers. That request apparently concerned documents about the preparation of the October 1997 conference and the election of delegates. The court also refused to hear witnesses.
43. On 16 July 1998 the Supreme Administrative Court, sitting as a bench of three judges, rejected the appeal as being inadmissible. It found that the Supreme Holy Council headed by Mr Gendzhev had no locus standi to lodge an appeal as it had never been validly registered. The registration acts of 22 and 23 February 1995 had been based on a decision by a Deputy Prime Minister who had not, however, been duly authorised by the Council of Ministers to approve the statutes of religious denominations. As a result the Supreme Holy Council headed by Mr Gendzhev had never legally existed and all its acts between 1995 and 1997 were null and void.
44. On an appeal by the applicant organisation, on 9 October 1998 a five-member bench of the Supreme Administrative Court quashed the decision of 16 July 1998 and remitted the case for examination on the merits. The bench noted that by judgment of 27 July 1995 the Supreme Court had found that the 1995 registration of the Supreme Holy Council headed by Mr Gendzhev had been lawful. That finding was final and binding. Therefore, the applicant’s appeal could not be rejected for lack of locus standi.
45. In the reopened proceedings a three-member bench of the Supreme Administrative Court examined the appeal on the merits and dismissed it on 3 May 1999. The presiding judge was the same person who had presided over the previous examination of the case, which had ended with the inadmissibility decision of 16 July 1998. He was also one of the three judges who had delivered judgment on 28 April 1992 in the case concerning Mr Gendzhev’s removal in 1992.
46. The court found that the acts of the authorities did not constitute an interference with the internal organisation of the Muslim community. The decision to hold a unification conference had been taken freely by representatives of the two rival groups. The rules and procedures for the election of delegates and for the holding of the October 1997 conference, including those concerning the results of the local elections for delegates and their certification, had been drawn up by the joint committee. The Directorate of Religious Denominations had contributed to the organisation of the conference purely at the parties’ request. It had acted in accordance with the agreement between the two leaderships and the decisions of the joint committee. The Directorate’s task had been to contribute to and guarantee tolerance and respect in inter-religious relations as well as in the relations between different groups belonging to one and the same religion. The fact that the Supreme Holy Council presided over by Mr Gendzhev had withdrawn at the last minute did not call into question the validity of the conference, which had taken place in accordance with the negotiated rules. It was true that these rules derogated from the statute of the Muslim community as in force at the relevant time but the derogation had been decided upon freely by the two leaderships in order to resolve the conflict within the community. It followed that the impugned act, the decision of 28 October 1997 registering the newly elected leadership of the Muslim community, was in accordance with the law.
47. The applicant organisation submitted a cassation appeal against the judgment of 3 May 1999. It alleged, inter alia, that not all the relevant evidence had been collected and examined.
48. On 15 March 2000 the appeal was dismissed by a five-member bench of the Supreme Administrative Court, which upheld the reasoning of the impugned judgment. It also found that the relevant facts had been clarified and that the additional evidence submitted by the applicant organisation in the cassation proceedings had been the same as that submitted earlier. The applicant organisation was legally represented in the above proceedings.
49. The divide within the Muslim community in Bulgaria continued. It appears that the legitimacy of a community assembly held in November 2000 was disputed by some leaders. Divisions also persisted at local level. In a letter of February 2001, the Directorate of Religious Denominations certified that it had not registered the local leadership of the Muslim community in Plovdiv as two separate local assemblies had elected their leaderships and were in dispute. Similar problems occurred in Haskovo and Russe in the end of 2000 and the beginning of 2001.
50. In July 2004 the Sofia City Court appointed three persons to represent the Muslim community in Bulgaria temporarily, pending judicial proceedings concerning the validity of the election of a new leadership at a national conference held in December 2003.
51. The relevant provisions of the 1991 Constitution read as follows:
“(1) Religions shall be free.
(2) Religious institutions shall be separate from the State...
(4) Religious institutions and communities, and religious beliefs shall not be used for political ends.”
“(1) The freedom of conscience, the freedom of thought and the choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers.
(2) The freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.”
52. The Constitutional Court’s judgment no. 5 of 11 June 1992 interpreting the above provisions states, inter alia, that the State must not interfere with the internal organisation of religious communities and institutions, which must be regulated by their own statutes and rules. The State may interfere with the activity of a religious community or institution only in the cases contemplated in Articles 13 § 4 and 37 § 2 of the Constitution. An assessment as to whether there is such a case may also be undertaken at the time of registration of a religious community or institution.
53. The Religious Denominations Act 1949 was amended several times. The relevant provisions of the Act, as in force at the time of the events at issue, read as follows.
“(1) A religious denomination shall be considered recognised and shall become a legal person upon the approval of its statute by the Council of Ministers, or by a Deputy Prime Minister authorised for this purpose.
(2) The Council of Ministers, or a Deputy Prime Minister authorised for this purpose, shall revoke the recognition, by a reasoned decision, if the activities of the religious denomination breach the law, public order or morals.”
“(1) Every religious denomination shall have a leadership accountable to the State.
(2) The statute of the religious denomination shall establish its governing and representative bodies and the procedure for their election and appointment... “
“(1) The national governing bodies of the religious denominations shall register with the Directorate of Religious Denominations of the Council of Ministers, and local governing bodies with the local municipalities, and they shall submit a list of the names of all members of these governing bodies.”
54. The Act also laid down rules regarding the activities of a religious denomination, imposed requirements as regards its clergy and gave the Directorate of Religious Denominations wide supervisory functions. In its judgment no. 5 of 11 June 1992 the Constitutional Court, while agreeing that certain provisions of the Religious Denominations Act were clearly unconstitutional (the court cited as examples several provisions concerning the powers of the Directorate to dismiss clergymen and to control the activities of religious organisations), found that it was not its task to repeal legal provisions adopted prior to the entry into force of the 1991 Constitution, the ordinary courts being competent to declare them inapplicable.
55. Under Decree No. 125 of the Council of Ministers of 6 December 1990, as amended, the competence of the Directorate of Religious Denominations includes “contacts between the State and religions denominations”, assistance to central and local administrative authorities in solving problems which involve religious matters and assistance to religious organisations as regards education and publications.
56. In accordance with the Regulations on the registration of the local leadership of religious denominations, issued by the Government in 1994 (State Gazette no. 87 of 25 October 1994), such registration is only possible if the election of a local leadership has been approved by the registered national leadership of the religious denomination.
57. The Religious Denominations Act 1949 has been interpreted in the administrative practice of the Directorate and the Council of Ministers as requiring that each religious denomination must have a single leadership and that parallel organisations of the same religious denomination are not allowed. The judicial practice during the relevant period evolved from the initial position that the Council of Ministers and the Directorate enjoyed unfettered discretion in the registration of the leadership and statute of a religious denomination (see paragraphs 13 and 19 above) to the position that the courts, when asked to rule on the lawfulness of a Government decision registering a new religious leadership, had to examine whether the new leadership had been appointed in compliance with the religious denomination’s statute, in its version as registered by the Directorate (see paragraphs 22 and 25 above and also the following judgments of the Supreme Administrative Court: judgment no. 4816 of 21 September 1999 in case no. 2697/99, judgment no. 2919 of 28 April 2001 in case no. 8194/99 and judgment no. 9184 of 16 October 2003 in case no. 6747/02).
58. The Religious Denominations Act 1949 was repealed with effect as from 1 January 2003, upon the entry into force of the new Religious Denominations Act 2003.
59. The new Act provides for judicial registration of religious denominations as legal persons. Before deciding, the court may request an expert opinion from the Directorate of Religious Denominations.
60. Section 15(2) provides that no more than one registration may be made concerning a religious denomination with the same name. Section 36 provides that a person who acts on behalf of a religious denomination without authorisation is to be fined by the Directorate of Religious Denominations. Paragraph 3 of the transitional provisions to the Act provides that persons who had seceded from a registered religious institution before the Act’s entry into force in breach of the institution’s government-registered internal rules are not entitled to use the name of the religious institution or its assets.
61. In February 2003 fifty members of Parliament asked the Constitutional Court to repeal certain provisions of the new Act as being unconstitutional and contrary to the Convention. The Constitutional Court gave judgment on 15 July 2003.
62. Sections 15(2) and 36 were not among the provisions challenged but paragraph 3 of the transitional provisions was (see paragraph 60 above).
63. The Constitutional Court could not reach a majority verdict, an equal number of judges having voted in favour and against the request to declare that provision unconstitutional. According to the Constitutional Court’s practice, in such circumstances the request for a legal provision to be struck down is considered to be dismissed by default. The judges who voted against the request considered, inter alia, that the principle of legal certainty required that persons who had seceded from a religious denomination should not be allowed to use its name. Further, it was obvious that they could not claim part of its assets, as the assets belonged to the religious denomination as a legal person. The judges who considered that the provision was unconstitutional stated that it purported to regulate issues that concerned the internal organisation of religious communities and thus violated their autonomy. Those judges further stated that the provision, applied in the context of existing disputes, favoured one of the groups in a divided religious community and, therefore, did not contribute to maintaining tolerance but rather frustrated that aim. It thus violated Article 9 of the Convention.
VIOLATED_ARTICLES: 9
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-104361
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KIJOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 8
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1966 and lives in Kraków.
6. The applicant married in 1996 and has two sons, A, born on 3 December 1996, and B, born on 4 February 2003.
7. In November 2002 the applicant's wife moved to her parents' house, taking A with her. One month later she instituted divorce proceedings. The applicant visited them on several occasions. However, most of these visits were disrupted by the couples' mutual hostility. In February 2003 the applicant's wife informed him that she would not allow further visits, but the applicant continued to go to her flat, sometimes with other members of his family.
8. On 3 August 2003 the applicant, during one of the visits, took his son A away with him, without his wife's consent and apparently by force. Afterwards A lived with the applicant in Kraków until 8 March 2007.
9. The applicant submitted that A had been neglected and that he had acted in the best interests of his son. A subsequently received dental treatment, psychological support and speech therapy, and started going to school.
The Government submitted that the child's psychological problems had been caused by the trauma of being kidnapped by his father, which had also led to the aggravation of his stutter. They relied on the reasoning of the Regional Court judgment of 30 June 2006 (see paragraph 16 below).
10. In August 2003 the applicant's wife informed the prosecutor that her son had been kidnapped by the applicant.
The applicant's wife also applied to the court for sole residence of A; however, on 19 November 2003 the Kraków Regional Court decided to make a temporary residence order for A with the applicant. The applicant's wife was granted contact rights. The Government submitted that the applicant had been hindering her contact with A; the applicant denied this.
11. In May 2004 the parties and A were examined by experts from the RODK (Regional Family Consultation Centre). Their opinion was that A should live with his mother, although the applicant should enjoy extensive contact rights.
12. On 22 November 2004 the court changed its decision of 19 November 2003 and made a residence order for A with the applicant's wife. The applicant was granted contact rights and was ordered to return the child to his wife. An appeal by the applicant against this decision was dismissed on 22 March 2005.
13. The applicant failed to comply with this decision and refused to return A.
14. On 8 December 2004 the Brzesko District Court dismissed in the light of DNA tests the applicant's action contesting his paternity of B. Subsequently, the applicant attempted to visit B; however, his wife apparently hindered his contact with his younger son.
15. The applicant continued to live with A, who changed schools; they apparently moved house more than once. The applicant's wife complained to the prosecutor and attempted to have the decision of 22 November 2004 enforced.
16. On 30 June 2006 the Kraków Regional Court granted the applicant's petition for divorce. The court further decided to limit the applicant's parental responsibility for A and to deprive him altogether of parental responsibility for B. Residence of both children was ordered to be with the applicant's former wife. The court also allowed the applicant contact rights in respect of both his sons.
17. An appeal by the applicant against the judgment was dismissed on 28 December 2006 by the Kraków Court of Appeal. The reasoned judgment was notified to the applicant on 15 February 2007.
18. The applicant's former wife made contact with B impossible for the applicant. However, he failed to institute enforcement proceedings against his former wife or to apply to the court for a fine to be imposed on her.
19. On 8 March 2007 the applicant was arrested by the police in view of the reasonable suspicion that he had kidnapped A and kept him, in spite of the final judgment of 30 June 2006 and the previous order of 22 November 2004. He remained in pre-trial detention for six months and was released in September 2007. On 25 May 2007 the applicant was indicted before the Kraków District Court. Subsequently, the applicant and his mother were found guilty of keeping A with them, in breach of domestic decisions. On 4 December 2009 the Krakow Regional Court quashed that judgment. It appears that the proceedings are pending before the trial court.
20. A was only returned to residence with his mother three months after the applicant's arrest, because between 8 March and 8 July 2007 he had been living with the applicant's mother.
21. On 25 January 2008 A was heard by the prosecutor in the criminal proceedings against the applicant. The child stated that he preferred to live with his father and that his mother had been threatening him and had forbidden him to call his father.
22. In March 2008 A ran away from his mother's and went to his father's house, located 100 kilometres away. The applicant took him to the police station and A was returned to his mother.
23. On 1 April 2008 A ran away again and joined his father in Kraków. They have been living together since then.
24. On 8 April 2008 the applicant applied to the Dąbrowa Tarnowska District Court for a new decision regarding parental responsibility and for an order for A's residence with him.
25. On 10 April 2008 the court guardian visited the applicant and A. According to her opinion, A did not want to live with his mother, had good living conditions with his father and paternal grandmother in Kraków and preferred to stay with his father.
26. On 14 April 2008 the court dismissed the applicant's request for an interim order changing the child's place of residence (o zabezpieczenie wniosku).
27. On 23 June 2008 the Tarnow Regional Court made an interim order suspending contact between the applicant and B, which had been ordered in the divorce judgment of 30 June 2006.
28. At a hearing on 6 October 2008 the Dąbrowa Tarnowska District Court heard, inter alia, the director of A's former school, which he had been attending while living at his mother's. She testified that A had very often spoken to her complaining about his situation at home, in particular that his mother had prohibited him from visiting his father as well as from calling the applicant or using a computer for the purpose of contacting him. During the stay at his mother's the child apparently felt that he had been treated differently from his brother B and that his mother had threatened that he would be taken to a children's home and that his father would be arrested again.
29. On 6 October 2008 the court again dismissed the applicant's request for an interim order allowing A's place of residence to be with him. The court established that A had had de facto residence with the applicant between August 2003 and March 2007 and since April 2008. The child obviously had a stronger attachment to his father. However, the court did not consider that there was enough evidence to issue an interim order changing the earlier decision of A's place of residence before the case was ready for a decision on the merits.
30. At the hearing on 27 April 2009 the court heard A, who was then twelve years old, for the first time.
31. On the same date the court dismissed the applicant's request for the interim residence of A to be with him. The court again considered that without a thorough examination of the case it would not be possible to assess whether the best interests of the child required him to stay with his mother or with his father. Therefore the court decided to first hear experts and to obtain their opinion in order to establish the reasons for A's hostility towards his mother. An appeal by the applicant against this decision was dismissed on 20 July 2009.
32. On 11 August 2009 the Dąbrowa Gornicza District Court ordered an opinion to be prepared by the RODK. The opinion was finally submitted to the court on 16 December 2009. According to the experts the best interests of A required that the residence order be changed to allow A to live with the applicant. The experts took into account the feelings and choices made by A and the family situation characterised by a prolonged conflict between his parents, with A caught in the middle of that conflict. Nevertheless the experts noticed that A had been influenced by the applicant, who had enlisted him in a coalition against his mother and expected absolute loyalty from him. Such behaviour worked against the applicant's ability to be a good parent and violated the child's right to express his feelings freely and to form views about the family and the world on the basis of his own experience.
33. On 15 February 2010 the Kraków District Court allowed the applicant's request of 8 April 2008, granted him full parental responsibility and ordered A's residence with him. It limited the parental responsibility of the applicant's former wife in respect of A.
The court considered that A's negative attitude towards his mother, which manifested itself during the period when he was under her care in 2007, had been caused by the lengthy period of total deprivation of any contact between them and during which the applicant had isolated A from his mother. Moreover, for a prolonged period of time the applicant had the undisturbed opportunity to influence his child and create a very strong bond between them.
Nevertheless, the court considered that the situation of the child had substantially changed since the divorce judgment of 30 June 2006. A had been living with the applicant, who has been securing his emotional and material needs. The court also took into account the wish of the child as to his preferred place of residence, given his age and level of maturity. Regard being had to the above, the court decided that the best interests of the child required the previous decisions to be modified and an order made for A's place of residence to be with the applicant.
34. The applicant's former wife appealed against the decision, but on 15 July 2010 the Tarnów Regional Court dismissed the appeal.
35. On 7 April 2010 the Dąbrowa Tarnowska District Court modified the judgment of 30 June 2006 and banned any contact between the applicant and his younger son B. The court found that the applicant had never wanted his second child, contested his paternity of him and had seen B only twice: once after B's birth in 2003 and once in connection with the preparation of a psychological opinion at the RODK. In consequence B, seven years old, had not developed any emotional ties with the applicant, and in fact was afraid of him and perceived him as a threat to the stability of his family. The court concluded that the best interests of the child required all contact between him and the applicant to cease.
36. The applicant appealed against this decision, but on 11 June 2010 the Dabrowa Tarnowska District Court rejected the appeal for failure to lodge it in accordance with formal requirements, namely by lodging it out of time. A further appeal against the latter decision was dismissed on 20 July 2010 by the Tarnów Regional Court.
37. Under Article 106 of the Family and Custody Code, a final court decision as to parental responsibility and contact arrangements can be modified at any time if the interests of the child so require, either upon an application by either parent or by the court acting of its own motion.
38. Pursuant to Article 730 of the Code of Civil Procedure a party can request the court to issue an interim order in order to secure a claim concerning, for instance, contact arrangements.
39. The relevant domestic law concerning the enforcement of a parent's contact rights is set out in the Court's judgment in the case of P.P. v. Poland (no. 8677/03, §§ 6974, 8 January 2008).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-97938
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: WULFF v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Henrik Munkholm Wulff, is a Danish national who was born in 1981 and lives in Perth, Australia. He was represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr Thomas Winkler, of the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.
On 16 December 2002, the applicant and his girlfriend of three years duration had a daughter, A, of whom the applicant formally acknowledged fatherhood.
The couple separated in March 2003.
The applicant maintained access to A every second weekend and paid child support.
In the United States of America the applicant obtained a private DNA test, which showed that he could not be A’s father. The test is dated 12 May 2005, but the applicant did not receive the results until 5 December 2005.
Thereafter he stopped seeing A, and on 14 December 2005 he requested that the paternity case be reopened and his established fatherhood of A be annulled. His request was refused by Vejle County (Statsamtet Vejle) on 30 January 2006.
The applicant brought the case before the City Court (Retten Vejle), before which he and A’s mother, M, were heard. On 29 March 2006, the City Court passed judgment, which included the following:
“[The applicant] has explained that the couple were lovers and cohabited in Vejle from February 2002 until March [2003]. M was not using the contraceptive pill. In March 2002, they went on a skiing holiday. They had a row, whereupon M slept overnight in another flat. Four or five weeks later she discovered she was pregnant. When the relationship broke up around 20 March 2003, he had a nagging doubt. He did not tell M about this. He has had access to the daughter A every second weekend. In October 2005 they had a big row during which M accused him of being a poor father. This caused him to order a paternity test on the Internet which has been submitted to Vejle County. Through his job as a policeman he knew how to provide a saliva sample, which he did for the purpose of this test. He took a saliva sample with a cotton swab from both his own cheeks and A’s. The samples were sent to the US laboratory, which concluded that he could not be the father. He received the reply in December 2005. He has no name of any other possible father. However, with his present knowledge he believes that he cannot be the father of A. M has confirmed [the applicant’s] statement about the course of events. She is also unable to give the name of any other possible father.
Findings of the Court:
M and [the applicant] were cohabiting lovers when A was born. Since the termination of their cohabitation in March [2003], [the applicant] has had access to A. The request for reopening of the proceedings was made by him. M did not object to the reopening of the proceedings, but stated in a letter of 7 January 2006 to Vejle County: “Of course, an official test should be made as I have no clue as to who the father could otherwise be”. [The applicant] has submitted a privately performed DNA test according to which he cannot be the father of A. The conditions for reopening paternity proceedings are stated in section 24 of the Child Act. According to this provision, it must be considered of importance whether the paternity of the child is likely to be established if the proceedings are reopened. Pursuant to section 22 of the Child Act, paternity proceedings may be reopened if the father and mother so request in agreement, and only if it is proved on a balance of probabilities that another man can become the child’s father. As the request for reopening of the proceedings was made by [the applicant] alone, the Court finds that the request should be assessed under section 24 of the Child Act. Although, according to the DNA test produced by [the applicant] it is precluded that he is the father, the Court finds that the paternity proceedings should not be reopened as it must be considered of decisive importance that the request for reopening was made almost three years after the child’s birth, that [the applicant] has had ordinary weekend access to A also since the termination of cohabitation, and that it must be considered a fact on the basis of [the applicant’s] and M’s statements that A cannot be expected to be acknowledged by another father if the proceedings were reopened.”
The applicant appealed to the High Court of Eastern Denmark (Vestre Landsret), hereafter the High Court, which on 28 September 2006 passed judgment, which included the following:
“[The applicant] has additionally stated that M had been out partying and came home early in the morning just before they went on holiday. He and M did not use contraception around the time of the conception, but their sexual practice was such that he found it improbable that he had made M pregnant. M did not say at the termination of their cohabitation that he was not the father. He said during the pregnancy that he wanted a DNA test, but M opposed that. He has not cohabited with A since she was three months old. He has seen A approximately four times a month. It was only in October 2005 during a row that he became aware of the incidents when M could have been together with somebody else. They were on a skiing holiday from 23 March until 1 April 2002. He received the test results in December 2005. For reasons of anonymity, the declaration from the American firm does not bear any names. He last saw A in December 2005. A has not had any contact with his parents since then. He acknowledged the paternity after A’s birth and did not question it then. A was born at the due time.
M has explained that they became lovers in 2000 after having met in 1999. They had a normal sex life also at the time around the conception. She did not remember having been out partying before the skiing holiday. She was not together with other men during the period of their cohabitation. They had not fallen out that evening on the skiing holiday, but she was unable to return to the hotel room as she had no key. She had something to drink with young people, and she was probably rather intoxicated. They were Danes, including a girl. She woke up at 9 a.m.. She had not had intercourse with others that night. However, due to her intoxication she cannot rule out that it may have happened. But she was wearing her clothes when she woke up, and she felt no sign of having had intercourse. The first time that [the applicant] questioned his paternity was on 12 December 2005. A has asked for her father and his parents since the connection was broken off. M has no current plans to marry her boyfriend, who has, however, been playing with the idea of adopting A. She expects to marry her boyfriend eventually. Her boyfriend is fond of A. She still thinks that a DNA test should be performed, also because A is entitled to know. However, she is in no doubt that [the applicant] is the father.
Reasoning and decision of the High Court:
It must be considered a fact that, prior to acknowledging paternity, [the applicant] had knowledge of the circumstances that made him obtain a DNA test and cast doubts about the paternity almost three years after A’s birth. For this reason and for the reasons stated by the District Court, the High Court upholds the judgment.”
Leave to appeal to the Supreme Court was refused by the Appeals Permission Board (Procesbevillingsnævnet) on 7 March 2007.
The purpose of the Danish paternity rules laid down in the Child Act, (Børneloven), Act no. 460 of 7 June 2001, as amended, is to ensure the mutual rights of the child and the father. The most important legal effects of paternity are that the father has a duty to maintain the child according to specific rules, that the father and the child have a right to inherit from each other, that the child may take the father’s surname, and that the child may have the same nationality as the father if the relevant conditions are met. In addition, paternity is generally a condition for allowing the father to have a share in the custody of the child and a condition for the right to access of a man who does not have the child living with him. The Child Act is based on Report No. 1350/1997 on the legal rights of children issued by the Child Act Committee of the Danish Ministry of Justice. The Child Act Committee was appointed by the Ministry of Justice in 1992 and was to make proposals for a revision of the Child Act, including considering new paternity rules. In 1997, the Committee issued an interim report on paternity. According to the interim report, the Committee had worked on the basis of the fundamental assumption that a child should be entitled to have both a mother and a legal father to the widest extent possible. The report also states that the Committee found that an attempt should be made to design the rules on reopening paternity proceedings so that permanent stability concerning the child’s situation could be provided as rapidly as possible. The Committee also found that it should generally not be possible to revoke paternity unless the child was acknowledged by another father. The Child Act Committee also proposed enactment of the non-statutory doctrine of acknowledgement on which case-law had been based prior to the Act. The doctrine of acknowledgement implies that a party can be barred from instituting paternity proceedings even when the statutory time-limits have not expired. This is the case if the father or mother has treated the child as being the father’s even though they know or suspect that the father is not the genetic father of the child. Application of the doctrine is based on a specific assessment of the individual case. The relevant provisions on institution and reopening of paternity proceedings are laid down in sections 5, 24 and 25 of the Child Act, which read as follows:
Where paternity has been recorded by or acknowledged before the Regional State Administration, proceedings may be instituted by the mother, the father or the child’s guardian within six months of the child’s birth.
The preparatory notes set out that the reason behind section 5 was to give the mother and the father a “cooling-off” possibility. Recordings and acknowledgements covered by the provision are therefore not final until six months after the child’s birth. The fairly short period was laid down in order to provide stability concerning the child’s situation. The right to institute paternity proceedings within the six months is free and is thus not conditional upon proof on a balance of probabilities that another man is the child’s father, and the doctrine of acknowledgement is not applied either.
If the six-month time-limit set out in section 5 has expired, the proceedings can only be re-opened if the following conditions, set out in section 24 of the Child Act, are met:
1. If the fatherhood of a child is registered, or established by acknowledgment or by judgment; the mother or her estate, the guardian or the child’s estate, the father or his estate; may within three years after the child’s birth request that the paternity case be reopened, provided that facts have come to light which may result in another outcome, or in other respects there is a special reason to believe that the paternity case may turn out differently.
2. When deciding under subsection 1, importance should be attached in particular to the following:
i) the length of time elapsed since the child’s birth;
ii) whether the father, with actual or presumed knowledge of the circumstances which raise doubts as to his fatherhood, has [nevertheless] acknowledged the child by treating it as his own;
iii) whether the mother, with actual or presumed knowledge of the circumstances mentioned under ii) has let the father treat the child as his own;
iv) whether a party, with actual or presumed knowledge of the circumstances which raise doubts as to who is the child’s father, failed within a reasonable time to request a reopening of the case; and
v) whether in case of a reopening, it can be expected that fatherhood of the child will be established.
It appears from the preparatory notes that it is a condition for reopening the proceedings under section 24 that information has come to light about circumstances that will presumably result in another outcome to the proceedings, or that there is otherwise a special reason to assume that the proceedings will now have another outcome. This is particularly aimed at cases where another potential father turns up. Moreover, the provision does not confer a right of reopening even though the said conditions have been met. The decision to reopen the proceedings thus depends on an overall assessment, particularly including the circumstances listed in subsection 2.
If the three-year time-limit set out in section 24 has expired, the proceedings can only be reopened if exceptional reasons exist, see section 25 of the Child Act:
Reopening of proceedings under sections 23 and 24 may be permitted after the expiry of the time-limit stipulated by those provisions if exceptional reasons for not making the request earlier can be given, if the circumstances otherwise make reopening of the proceedings appropriate to a high degree, and if a renewed review of the proceedings will presumably not imply material nuisance to the child.


ITEMID: 001-79271
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BOCZON v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1969 and lives in Gorlice.
5. The applicant served in the army between 1988 and 1989 and was dismissed due to his health problems. He maintained that his physical and mental health problems resulted from his military service.
6. On 27 December 1995 he applied for a military disability pension. On 8 February 1996 the Social Insurance Authority refused to grant his request. On 20 February 1996 the applicant appealed against this decision to the Kraków Regional Court.
7. On 19 March 1996 the Regional Court requested an expert opinion concerning the applicant’s health. On 8 May 1996 the expert submitted his opinion. Subsequently, the court requested that two additional medical opinions be prepared.
8. On 14 June 1996 the applicant’s lawyer requested the court to admit another expert opinion.
9. On 25 June 1996 another expert submitted her opinion to the court.
10. On 24 July 1996 the Regional Court forwarded two expert opinions to the applicant for comment. The applicant’s lawyer submitted his observations on 14 August 1996.
11. On 20 August 1996 the Regional Court held a hearing. The applicant submitted documentation on his medical treatment, which was subsequently forwarded to the medical experts. On 24 September 1996 and 5 November 1996 two experts submitted their supplementary opinions.
12. On 2 December 1996 a hearing was held.
13. On 18 December 1996 the applicant’s lawyer challenged the experts’ opinions and demanded a new opinion to be prepared by the Institute of Forensic Medicine in Krakow.
14. On 22 January 1997 the Regional Court requested that the applicant be examined by specialists in laryngology, neuropsychiatry and internal medicine of the Institute of Forensic Medicine in Krakow.
15. On 14 July 1997 the court requested the Institute to accelerate the preparation of their opinion and to return the applicant’s medical records to the court. On 8 August 1997 the Institute of Forensic Medicine submitted their opinion.
16. On 14 August 1997 the court forwarded the opinion to the applicant’s lawyer for comment.
17. On 22 September 1997 the applicant’s lawyer requested the court to extend the time-limit for submitting his observations due to his illness.
18. On 2 October 1997 a hearing was held.
19. On 18 October 1997 the applicant challenged the expert opinion of 8 August 1997 and requested an additional medical examination. He also submitted an opinion prepared by a privately commissioned expert. The court refused to admit this opinion as evidence in the case.
20. On 25 November 1997 the Institute of Forensic Medicine submitted a supplementary opinion in which they maintained their previous conclusions. On 9 January 1998 the applicant’s lawyer requested the court to extend the time-limit for submitting his observations as the applicant was to undergo another examination.
21. A hearing was held on 16 February 1998.
22. On 20 February 1998 the applicant challenged the presiding judge. The court rejected his motion on 10 March 1998.
23. On 23 February 1998 the applicant informed the court that he had revoked his lawyer’s power of attorney as he could no longer afford private legal representation.
24. On 18 May 1998 applicant requested that the hearing scheduled for 28 May 1998 be adjourned because of his medical examination planned for that day. On 28 May 1998 the court adjourned the hearing until 26 June 1998.
25. On 10 June 1998 the Nowy Sącz Regional Court requested the Kraków Regional Court for the case file of the proceedings as its examination was necessary to conduct proceedings for compensation against the State Treasury instituted by the applicant and pending at that time before the Nowy Sącz Regional Court.
26. On 16 June 1996 the Kraków Regional Court rejected the request because the next hearing in the case would be held very shortly.
27. On 26 June 1998 the Regional Court held a hearing and delivered a judgment, dismissing the applicant’s appeal against the decision of the Social Insurance Authority of 8 February 1996.
28. On 31 August 1998 the applicant appealed against the judgment.
29. The Regional Court in Krakow transferred the case file to the Krakow Court of Appeal on 21 September 1998.
30. Between 10 and 23 March 1999 the case file was forwarded to the Przemysl District Court before which another of the applicant’s claims for compensation was pending at that time
31. On 14 April 1999 the applicant requested the Court of Appeal to accelerate the examination of his appeal. On 20 April 1999 the President of the court replied that since his case concerned pension matters, the hearing would be scheduled sooner than would normally have been the case.
32. On 8 June 1999 the Kraków Court of Appeal dismissed the applicant’s appeal. On 28 July 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court.
33. On 19 April 2000 the Supreme Court dismissed his cassation appeal as being ill-founded.
34. For a detailed presentation of the relevant domestic law concerning the available remedies against excessive length of proceedings, see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Barszcz v. Poland, no. 71152/01, 30 May 2006, §§ 26-35.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1