ITEMID: 001-87156
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF MASLOV v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;András Sajó;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Riza Türmen;Snejana Botoucharova;Sverre Erik Jebens
TEXT: 10. The applicant was born in October 1984 and currently lives in Bulgaria.
11. In November 1990, at the age of six, the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents, who were lawfully employed, acquired Austrian nationality. The applicant attended school in Austria.
12. In late 1998 criminal proceedings were instituted against the applicant. He was suspected of, inter alia, having broken into cars, shops and vending machines; having stolen empties from a stock ground; having forced another boy to steal 1,000 Austrian schillings from the latter’s mother; having pushed, kicked and bruised this boy; and of having used a motor vehicle without the owner’s authorisation.
13. On 8 March 1999 the applicant was granted an unlimited settlement permit (Niederlassungsbewilligung).
14. On 7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant on twenty-two counts of aggravated gang burglary and attempted aggravated gang burglary (gewerbsmäßiger Bandendiebstahl), forming a gang (Bandenbildung), extortion (Erpressung), assault (Körperverletzung), and unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs), offences committed between November 1998 and June 1999. He was sentenced to eighteen months’ imprisonment, thirteen of which were suspended on probation. The sentence was accompanied by an order to undergo drug therapy.
15. On 11 February 2000 the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed between June 1999 and January 2000. The applicant and his accomplices were suspected of having broken into shops or restaurants, where they stole cash and goods. On 11 February 2000 the Vienna Juvenile Court remanded him in custody.
16. On 25 May 2000 the Vienna Juvenile Court convicted the applicant on eighteen counts of aggravated burglary and attempted aggravated burglary, and sentenced him to fifteen months’ imprisonment. When fixing the sentence the court noted the applicant’s confession as a mitigating circumstance, and the number of offences committed and the rapid relapse into crime after the last conviction as aggravating circumstances. It also observed that the applicant, though still living with his parents, had completely escaped their educational influence, had repeatedly been absent from home and had dropped out of school. It further noted that the applicant had failed to comply with the order to undergo drug therapy. Consequently, the suspension of the prison term imposed by the judgment of 7 September 1999 was revoked. Following the Vienna Juvenile Court’s judgment, the applicant served his prison term.
17. On 3 January 2001 the Vienna Federal Police Authority (Bundespolizeidirektion), relying on section 36(1) and 2(1) of the Aliens Act 1997 (Fremdengesetz), imposed a ten-year exclusion order on the applicant. Having regard to the applicant’s convictions, it found that it was contrary to the public interest to allow him to stay in Austria any longer. Considering the applicant’s relapse into crime after his first conviction, the public interest in the prevention of disorder and crime outweighed the applicant’s interest in staying in Austria.
18. The applicant, assisted by counsel, appealed. He submitted that the exclusion order violated his rights under Article 8 of the Convention as he was a minor who had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. He also referred to section 38(1)(4) of the Aliens Act 1997, pursuant to which an exclusion order could not be issued against an alien who had been lawfully residing in Austria from an early age.
19. By a decision of 19 July 2001, the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the appeal. It confirmed the Federal Police Authority’s finding.
20. On 17 August 2001 the applicant lodged complaints both with the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court (Verfassungsgerichthof). He stressed that he had come to Austria at the age of six, had attended school in Austria and could not speak Bulgarian. He had no relatives or other social contacts in Bulgaria. He also stressed the fact that he was still a minor.
21. On 18 September 2001 the Administrative Court dismissed the complaint and found that the exclusion order was justified under Article 8 § 2 of the Convention. It observed that the applicant had come to Austria only at the age of six, whereas – according to its constant case-law – section 38(1)(4) of the Aliens Act 1997 prohibited an exclusion order only in respect of aliens who had been legally resident from the age of three or younger. Considering the gravity and number of offences committed by the applicant, the fact that the first conviction had rapidly been followed by a second one and the severity of the penalties imposed, it found that the exclusion order did not constitute a disproportionate interference with the applicant’s rights under Article 8, despite his lengthy residence and family ties in Austria.
22. By a decision of 19 September 2001, the Constitutional Court suspended the effects of the exclusion order pending its decision.
23. The applicant was released from prison on 24 May 2002 not having benefited from early release. According to the information given by counsel at the hearing, the applicant finished school during his prison term and helped in his father’s transport business after his release.
24. On 25 November 2002 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success.
25. In December 2002 a number of unsuccessful attempts were made to serve an order on the applicant to leave Austria.
26. On 18 August 2003 the Vienna Federal Police Authority issued a fresh order requiring the applicant to leave Austria.
27. On 14 October 2003 the order was served on the applicant at his parents’ address and subsequently the Vienna Federal Police Authority ordered his detention with a view to his expulsion. He was arrested on 27 November 2003.
28. On 22 December 2003 the applicant was deported to Sofia. According to information given by counsel at the hearing, the applicant did not commit any further offences in Bulgaria and has found employment there.
29. At the hearing, the Government informed the Court that the exclusion order will expire on 3 January 2011, that is ten years after its issue (see paragraph 17 above).
30. At the material time the Aliens Act 1997 (Fremdengesetz) was in force. Sections 36 to 38, in so far as relevant, read as follows:
“(1) An exclusion order can be issued against an alien if it can justifiably be supposed, on the basis of specific facts, that his residence
1. endangers public peace, order and security; or
2. runs counter to other public interests specified in Article 8 § 2 of the European Convention on Human Rights.
(2) The existence of specific facts within the meaning of paragraph 1 shall be made out, in particular, if an alien
1. has been sentenced by a domestic court to an unsuspended term of imprisonment of more than three months; to a term of imprisonment partly suspended on probation; or to a term of imprisonment of more than six months suspended on probation; or has been convicted by final judgment more than once for the same pernicious tendency to commit criminal acts.”
“(1) Should there be an interference with the alien’s private or family life on account of ... an exclusion order, such a deprivation of the right of residence shall be permissible only if necessary as a matter of urgency in furtherance of one of the aims set out in Article 8 § 2 of the European Convention on Human Rights.
(2) ... an exclusion order shall not in any case be issued if its effects on the alien and his family’s situation outweigh the adverse consequences of not taking such a measure. In weighing the above factors, regard shall be had in particular to the following circumstances:
1. the period of residence and the extent to which the alien or members of his family have integrated;
2. the strength of family or other ties.”
“(1) An exclusion order shall not be issued if
...
4. the alien has grown up in the host country from early childhood and has been lawfully settled there for many years.”
31. The Administrative Court held that only aliens who had grown up in Austria from the age of three or younger had grown up there “from early childhood” within the meaning of section 38(1)(4) of the Aliens Act (see, for instance, decision of 17 September 2001, no. 96/18/0150; judgment of 2 March 1999, no. 98/18/0244; and judgment of 21 September 2000, no. 2000/18/0135).
32. Article 21 § 2 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides:
“Minors are persons who have not yet reached the age of 18 years. ...”
This version of Article 21 of the Civil Code entered into force on 1 July 2001. Before that date the age of majority was 19 years.
33. The following two Recommendations of the Committee of Ministers of the Council of Europe are of particular interest in the context of the present case.
34. The first one is Committee of Ministers Recommendation Rec(2000)15 concerning the security of residence of long-term migrants, adopted on 13 September 2000, which states, inter alia:
“4. As regards the protection against expulsion
(a) Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria:
– the personal behaviour of the immigrant;
– the duration of residence;
– the consequences for both the immigrant and his or her family;
– existing links of the immigrant and his or her family to his or her country of origin.
(b) In application of the principle of proportionality as stated in paragraph 4 (a), member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled
– after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; and
– after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years’ imprisonment without suspension.
After twenty years of residence, a long-term immigrant should no longer be expellable.
(c) Long-term immigrants born on the territory of the member State or admitted to the member State before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of 18.
Long-term immigrants who are minors may in principle not be expelled.
(d) In any case, each member State should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”
35. The second one is Committee of Ministers Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification, adopted on 26 March 2002. It states that where the withdrawal of or the refusal to renew a residence permit, or the expulsion of a family member, is being considered:
“... member States should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and well-being of children.”
36. The United Nations Convention on the Rights of the Child of 20 November 1989, to which Austria is a State Party, provides:
“For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.”
“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 recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”
37. The Committee on the Rights of the Child, in its concluding observations on the second periodic report of Austria (see CRC/C/15/Add. 251, 31 March 2005, §§ 53 and 54), expressed its concern about the increasing number of persons below the age of 18 placed in detention, a measure disproportionately affecting those of foreign origin, and recommended with regard to Article 40 of the Convention on the Rights of the Child that appropriate measures to promote the recovery and social integration of children involved in the juvenile justice system be taken.
38. In its General Comment no. 10 (2007) on children’s rights in juvenile justice (see CRC/C/GC/10, 25 April 2007, § 71), the Committee on the Rights of the Child emphasised with regard to measures in the sphere of juvenile justice:
“... that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in Article 40 § 1 of CRC [Convention on the Rights of the Child] ... In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration”.
39. Given the membership of Austria to the European Union (as from 1 January 1995) and of Bulgaria (as from 1 January 2007) the following two directives should be noted among those dealing with matters of migration, including the requirements for expulsion of nationals of another member State and third-country nationals.
40. The first one is Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. It provides:
“1. Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security.
2. The decision referred to in paragraph 1 shall not be founded on economic considerations.
3. Before taking a decision to expel a long-term resident, member States shall have regard to the following factors:
(a) the duration of residence in their territory;
(b) the age of the person concerned;
(c) the consequences for the person concerned and family members;
(d) links with the country of residence or the absence of links with the country of origin.
...”
41. The second one is Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States. It provides:
“1. Subject to the provisions of this chapter, member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
...”
“1. Before taking an expulsion decision on grounds of public policy or public security, the host member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member State and the extent of his/her links with the country of origin.
2. The host member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member States, if they:
(a) have resided in the host member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”
42. The case-law of the Court of Justice of the European Communities (ECJ) shows that measures of non-admission or expulsion have to rely on the individual conduct of the person concerned and on an assessment of whether the person concerned presents a genuine, present and sufficiently serious threat to public policy, public security or public health.
43. In its Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land Baden-Württemberg judgment of 29 April 2004 (Joined Cases C–482/01 and C493/01, operative part, points 3-5) the ECJ stated:
“3. Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.
4. Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another member State who has received a particular sentence for specific offences is ordered to be expelled, in spite of family considerations being taken into account, on the basis of a presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for the requirements of public policy.
5. Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another member State who has received a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host member State and can plead family circumstances against that expulsion, provided that the assessment made on a case-by-case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life.”
44. In its Commission of the European Communities v. Spain judgment of 31 January 2006 (Case C-503/03, operative part, point 1) the CJEU stated:
“... by refusing entry into the territory of the States Parties to the Agreement on the gradual abolition of checks at their common borders, signed on 14 June 1985 at Schengen, to Mr Farid, and by refusing to issue a visa for the purpose of the entry into that territory to Mr Farid and Mr Bouchair, nationals of a third country who are the spouses of member-State nationals, on the sole ground that they were persons for whom alerts were entered in the Schengen Information System for the purposes of refusing them entry, without first verifying whether the presence of those persons constituted a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 to 3 of Council Directive 64/221 of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.”
VIOLATED_ARTICLES: 8


ITEMID: 001-113930
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MAJCHRÁK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1958 and lives in Bratislava.
6. On 28 January 1996 the applicant, in his capacity as an architect, concluded a contract with the Customs Directorate of the Slovak Republic (Colné riaditeľstvo Slovenskej republiky) in which he agreed to produce project documentation for a border crossing between Slovakia and Hungary in return for a fee.
7. On 20 April 2000 the Customs Directorate brought a civil action against the applicant for late completion of the documentation, seeking an order for the payment of a contractual penalty as well as late-payment interest on that penalty.
8. On 24 September 2003 the Bratislava V District Court (Okresný súd) dismissed the action, but its judgment was quashed by the Bratislava Regional Court (Krajský súd) following an appeal (odvolanie) by the applicant. At the same time, the case was remitted to the District Court for re-examination.
9. On 6 June 2005 the District Court allowed the action. It found that the applicant and the defendant had agreed on a contractual penalty amounting to 0.1% of the agreed fee per day of delay on the part of the applicant. It also found that the deadline for the applicant to fulfil his obligations under the contract had been 31 July 1997 and that the applicant had not done so until 8 March 1998. The applicant appealed.
10. On 19 October 2005 the Regional Court declared the appeal inadmissible as having been lodged outside the statutory appeal period. It applied a legal fiction under Article 47 § 2 of the Code of Civil Procedure (Law no. 99/1963 Coll., as applicable at the relevant time), pursuant to which the commencement of the appeal period in the given circumstances is determined with reference to the third day after a written copy of the contested decision has been deposited for the appellant at the local post office, irrespective of when the decision is actually received by the appellant (see paragraph 37 below). The applicant challenged the decision of the Regional Court by way of an appeal on points of law (dovolanie) to the Supreme Court (Najvyšší súd).
11. The applicant’s appeal on points of law per se had no suspensive effect and, consequently, the judgment of 6 June 2005 was considered final and binding (see section D on “Enforcement” below).
12. However, on 19 April 2006, the Supreme Court made a separate ruling suspending the effects of the judgment of 6 June 2005 pending the outcome of the appeal on points of law.
13. On 7 December 2006 the Supreme Court, having found that the statutory requirements for applying the above-mentioned legal fiction had not been met, quashed the decision of 19 October 2005 and remitted the applicant’s appeal against the District Court’s judgment of 6 June 2005 to the Regional Court.
14. It was then incumbent on the Regional Court to re-examine the applicant’s appeal against the judgment of the District Court of 6 June 2005.
15. On 20 June 2007 the Regional Court upheld the judgment of 6 June 2005 in so far as the applicant had been ordered to pay the contractual penalty. However, it reversed the ruling that the applicant should pay interest on the contractual fine. It held that a contractual fine and latepayment interest had both the nature of a sanction and that cumulating these two sanction mechanisms was excluded by the nature of things.
16. A written version of the Regional Court’s judgment of 20 June 2007 was received by the District Court on 12 July 2007. It was then incumbent on the District Court to ensure that the judgment was served on the parties in person (do vlastných rúk).
17. According to the law, once the judgment of 20 June 2007 had been served on both parties, the matter was resolved with final and binding effect (právoplatnosť).
18. The actual service of the written version of the judgment of 20 June 2007 was carried out as follows:
On 23 and 24 July 2007 the postal service was unable to reach the applicant’s lawyer. Accordingly, on the latter date, a written version of the judgment was deposited at the local post office and a notice to that effect was left in her mailbox.
On 24 July 2007 the judgment was served on the Customs Directorate.
On 7 August 2007 the applicant’s lawyer collected the applicant’s copy of the judgment from the post office.
19. As to the effective service of the judgment of 20 June 2007 on the applicant, the Government have submitted – and it has not been disputed by the applicant – that it occurred on 27 July 2007, by virtue of the legal fiction (see paragraph 10 above and paragraph 37 below), three days after the deposition of the judgment at the local post office (see the preceding paragraph).
20. The Government have also submitted – this has not been disputed by the applicant either – that the judgment actually became final and binding on the day of its effective service on the last of the parties, that is to say the applicant, on 27 July 2007.
21. On 7 September 2007, on the applicant’s request, the District Court stamped (doložka právoplatnosti) his copy of the judgment of 6 June 2005 certifying that, together with the Regional Court’s judgment of 20 June 2007, it had become final and binding on “28 July 2005”.
22. On 25 September 2007, the District Court provided the Constitutional Court (Ústavný súd) on its request (see paragraph 25 below), with a different copy of the judgment of 6 June 2005 with a similar stamp certifying that, together with the judgment of the Regional Court of 20 June 2007, it had become final and binding on 24 July 2007.
23. The applicant then lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd).
As to the date of commencement of the two-month period for lodging the complaint (see paragraph 34 below), the applicant took as decisive the date stamped on his copy of the judgment of 6 June 2005, that is to say “28 July 2005” (see paragraph 21 above), assuming that the reference to year 2005 was an obvious typographical error actually meaning 2007, and submitted his stamped copy of that judgment to the Constitutional Court.
Accordingly, the applicant dated and mailed his complaint on 24 and 25 September 2007, respectively. The complaint was received at the Constitutional Court on 26 September 2007.
24. The applicant relied on Article 6 § 1 of the Convention and challenged the Regional Court’s judgment of 20 June 2007 as being contrary to his right to a fair hearing and the general prohibition of discrimination. In substance, the applicant contested the assessment of the facts and the application of the law by the ordinary courts.
25. On 6 December 2007 the Constitutional Court declared the complaint inadmissible. It noted that it had procured of its own initiative a copy of the contested decisions with a stamp concerning their final and binding effect. This stamp indicated that the matter had been resolved with final and binding effect on 24 July 2007 (see paragraph 22 above).
As the applicant’s constitutional complaint had only been mailed on 25 September 2007, it had been lodged outside the two-month time-limit laid down in section 53(3) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended) (see paragraph 34 below).
26. The applicant subsequently complained to the President of the Constitutional Court that, according to his stamped copy, the challenged decisions had become final and binding on 28 July 2007, the mention of the year 2005 (see paragraph 21 above) being an obvious typographical error actually meaning 2007. He had lodged his constitutional complaint on 25 September 2007 and had therefore met the deadline.
27. In a letter of 25 April 2008 the President of the Constitutional Court notified the applicant that the two-month time-limit for filing his constitutional complaint had commenced on 24 July 2007 when the contested decisions had become final and binding. It had accordingly ended on 24 September 2007. The applicant’s complaint had only been mailed on 25 September 2007 and had therefore failed to meet the deadline. Nevertheless, if the applicant had sustained any damage as a result of the incorrect information in the stamped copy he had received, it was open to him to claim compensation under the State Liability Act (Law no. 514/2003 Coll., as amended).
28. On 24 January 2006 a lawyer lodged a petition on behalf of the Customs Directorate with a judicial enforcement officer (súdny exekútor) for enforcement of the judgment of 6 June 2005 against the applicant.
29. The enforcement proceedings were first authorised, but eventually discontinued in view of the Supreme Court’s judgment of 7 December 2006 (see paragraph 13 above).
30. Nevertheless, on 11 May 2005, while the enforcement was still pending, the District Court ordered the applicant to pay the court fees for objections (námietky) that he had lodged earlier.
31. On 31 August 2007 the Regional Court upheld the District Court’s decision of 11 May 2005 following the applicant’s appeal.
32. On 28 February 2008 the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which the applicant had relied on Articles 6 § 1 and 13 of the Convention and had challenged the decision on fees for his objections as being arbitrary and contrary to his rights to a fair hearing and an effective remedy.
The Constitutional Court found that the applicant’s duty to pay the court fees had its legal basis in section 5(1) of the Court Fees Act and that the contested decision had been legally and factually correct.
33. Article 127 of the Constitution, subsumed under Section (Oddiel) One (dealing with Judicial Power) of Part (Hlava) Seven (dealing with the Constitutional Court), provides:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
34. Section 53(3) of the Constitutional Court Act provides that a complaint to the Constitutional Court must be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the complainant’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a reasonable opportunity to become aware of them.
35. Under section 31a, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure are to be applied accordingly in proceedings before the Constitutional Court, except where otherwise provided or where the nature of the matter at hand precludes their application.
36. The service of summonses and other documents is regulated by Articles 45 et seq. of the Code of Civil Procedure. Documents are to be served in person if so provided by statute or so ordered by a court (Article 47 § 1).
37. If the addressee of a document to be served in person cannot be reached, even though he or she stays at the address provided, the deliverer must notify the addressee in an appropriate manner when a new attempt at service takes place. If the new attempt at service fails, the deliverer must deposit the document at a post office or municipal office and advise the addressee accordingly in an appropriate manner. If the addressee does not collect the document within three days of its deposition, the last day of that period is deemed to be the date of effective service, irrespective of whether the addressee has actually learned of the deposition (Article 47 § 2, as applicable at the relevant time).
38. The relevant provisions of the State Liability Act are summarised, for example, in the Court’s judgment in the case of Ištván and Ištvánová v. Slovakia (no. 30189/07, §§ 30-35, 12 June 2012).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23949
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: LAUKKANEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ari Laukkanen, is a Finnish national, who was born in 1953 and apparently lives in Hämeenlinna without a permanent address. He is represented before the Court by Mr Jukka Juntunen, a lawyer practising in Hämeenlinna. The respondent Government are represented by 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.
On 18 August 1997 the applicant was arrested together with another person who was subject to an order of arrest. An unlawful gas pistol was found in the applicant's possession. Later the applicant became suspected of other, mainly property offences. Several bags were seized from the car in which the applicant was when arrested. The bags contained, inter alia, several car keys, some of which had been filed, and a skeleton key.
On 19 September 1997 the applicant was charged with several offences before the District Court (käräjäoikeus, tingsrätt) of Jämsä. This included a charge of being in possession of objects which could be used for committing property offences. This charge was based on Chapter 44, section 19 of the Penal Code (rikoslaki, strafflag) and read as follows:
“[The applicant] and M. [a co-defendant], who must be regarded as vagrants within the meaning of Chapter 44, section 19 of the Penal Code, had on 28 August 1997 in Mikkeli in their possession 27 car ignition keys, some of which had been filed, a skeleton key of Russian origin and other equipment suitable for lock picking.”
In the District Court the public prosecutor recalled that although the Act on Vagrants (irtolaislaki, lagen om lösdrivare; 57/1936) had been abolished, the concept of “a vagrant” was still maintained in Chapter 44, section 19, of the Penal Code. The prosecutor claimed that the applicant and his co-accused had both admitted to have been wandering around for weeks and maintained that they should be regarded as “vagrants” within the meaning of the Penal Code.
The applicant denied being “a vagrant”. During the proceedings the applicant also submitted, inter alia, that he had been living in Riihimäki in an apartment he had been renting since 1995 and that as one of the charges concerned a provision of law which could only be applied to people without a permanent address (i.e. to so-called vagrants), it could not be applied to him.
According to the public prosecutor Chapter 44, section 19, of the Penal Code was to be interpreted as applying to persons wandering around, i.e. “a vagrant”, and in possession of objects which could be used when committing a burglary (i.e. keys or skeleton keys). In the final hearing the public prosecutor further interpreted the said section as prohibiting a person who regularly committed property crimes from possessing objects such as skeleton keys.
On 17 October 1997 the District Court convicted the applicant on several counts, including the count under Chapter 44, section 19 of the Penal Code. The applicant was sentenced to one year and two months' imprisonment. The court also ordered that, inter alia, twenty-seven car keys and a skeleton key be confiscated from the applicant.
As to Chapter 44, section 19 of the Penal Code the District Court found the provision applicable and in force even though the comparable provision of the old Act on Vagrants had been abolished. According to the court, the notion of “vagrant” had its own independent meaning in the Penal Code. The relevant provision prohibited a person who was wandering around and living rough from being in the possession of certain equipment, if that equipment could, in the light of that person's behaviour and other circumstances, be considered as in his possession for the purpose of committing an offence.
The applicant's co-defendant was convicted on several counts. He was however not convicted of possession of skeleton keys pursuant to Chapter 44, section 19 of the Penal Code due to lack of evidence.
On 17 November 1997 the applicant appealed to the Court of Appeal, maintaining, inter alia, that he was not “a vagrant” as he had had a permanent address since January 1995 and could therefore not be convicted under Chapter 44, section 19 of the Penal Code.
On 17 February 1998 the Court of Appeal upheld the District Court's judgment. As to the applicant's conviction as “a vagrant” within the meaning of Chapter 44, section 19 of the Penal Code, the Court of Appeal recalled that the old Act on Vagrants was revoked on 1 January 1987. According to the travaux préparatoires of the Act on Welfare for Intoxicant Abusers (päihdehuoltolaki, lag om missbrukarvård; 41/1986), which replaced the Act on Vagrants, Chapter 44, section 19 of the Penal Code was not to be amended. The Court of Appeal, thus, found that the revoked Act on Vagrants and the practice built on it had not lost its relevance for the interpretation of Chapter 44, section 19 of the Penal Code. According to Section 1, subsection 1(4) of the revoked Act on Vagrants “a vagrant” was, inter alia, a person who by his way of life endangered public order or safety. The Court of Appeal noted that the applicant had been convicted and sentenced to imprisonment for, inter alia, offences against property on numerous occasions during the last ten years. It therefore found that the applicant endangered public order and safety by his criminal way of life and was, accordingly, to be regarded as “a vagrant” within the meaning of Chapter 44, section 19 of the Penal Code.
On 20 April 1998 the applicant applied for leave to appeal to the Supreme Court and requested that the conviction be quashed or, at least, that the case be referred back to the District Court or the Court of Appeal for an oral hearing. On 17 September 1998 the Supreme Court refused the applicant leave to appeal.
Section 8 of the Constitution (perustuslaki, grundlagen; 731/1999) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed, which has not been determined to be punishable by an Act at the time of its commission. The penalty imposed for an offence shall not be more severe than that provided by an Act at the time of commission of the offence. This section corresponds to section 6a (969/1995) of the repealed Constitution Act (hallitusmuoto, regeringsformen), in force at the relevant time.
Chapter 44, section 19 of the Penal Code (as in force at the relevant time) provided that a vagrant who was found with a lock pick or a skeleton key should be sentenced to a fine. The said provision was enacted in 1889, when the existing Penal Code entered into force, and has not been amended until 1 September 2002.
The Parliament passed a Bill for the amendment of Chapter 44 of the Penal Code (Parliament Reply 35/2002). The amendment entered into force on 1 September 2002. In this context, section 19 was repealed.
According to the new Chapter 28, section 12a (2002/400) of the Penal Code, concerning possession of tools used for burglary, a person who without an acceptable reason has in his/her possession a key to the lock of another or a skeleton key or other implement that can justifiably be suspected as intended for use primarily for entry into closed premises in the possession of another for the commission of an offence, shall be sentenced to a fine for possession of a burglary implement.
Section 1 of the Act on Vagrants provided until 31 December 1986 that a vagrant pursuant to the Act was, inter alia, a person fit to work who was unemployed without sufficient sustenance and wandered around from one locality to another without the purpose of seeking employment, and a person who acquired income by morally unacceptable or indecent means, or who by his or her way of life otherwise manifestly endangered public order, safety or morality.
The Committee which had been set up to assess the effects of repealing the Act on Vagrants (Committee Report 1986:46, p. 96) held that “[section 19 in Chapter 44 of the Penal Code] was never intended to refer to “vagrants” within the meaning of the Act on Vagrants or the earlier Decree”. The Committee maintained that most of the referrals in the legislation to the concept of “a vagrant” had lost their meaning after the repealing of the Act on Vagrants. The concept of “a vagrant” in Chapter 44, section 19 of the Penal Code was however regarded as being originally independent from the concept pursuant to the Act on Vagrants. The Committee recommended that the provision should be clarified in connection with the general reform of the Penal Code.
At the relevant time there were some references in the legislation to the concept of “a vagrant”. Firstly, the Decree containing Regulations for Rural Areas (asetus joka sisältää maaseudun yleisen järjestyssäännön; förordning innefattande allmän ordningsstadga för landsbygden; 219/28) was in force until 30 September 2003. Its section 39, subsection 2 provided, inter alia, that nobody was allowed to hide a vagrant in his/her home.
Secondly, the Act on the Publicity of Official Documents (laki yleisten asiakirjain julkisuudesta; lag om allmänna handlingars offentlighet; 83/1951) was in force until 30 November 1999, i.e., at the time of the offence in question. In the said Act there was an outdated reference to 'vagrants register' (irtolaisrekisteri, registret över lösdrivare), which register no longer existed.
In the Government's Bill No. 246/1984 on the Act on Welfare for Intoxicant Abusers (päihdehuoltolaki, lag om missbrukarvård; 41/1986), which replaced the Act on Vagrants, it is stated that characteristics of a vagrant are a drifting life, rejection of work, begging and an indecent life. It was held that the Act was largely based on the Decree on Vagrants from 1883 and that there were significant regional differences in applying the Act on Vagrants. It was maintained that the characteristics of a vagrant could no longer be regarded as appropriate criteria for admitting people to involuntary health care.
In the subsequent Government's Bill No. 17/2001 concerning the amendment of the provisions of Chapter 44 of the Penal Code it was held that “[T]he concept of “a vagrant” lacks an appropriate meaning in the contemporary language of a modern society.” It was also held that the existing provisions of Chapter 44, section 19 provided a certain justification for the prohibition of possession of burglary implements albeit it was regarded as limited in nature and, more particularly, was open to interpretation.


ITEMID: 001-58154
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF DAUD v. PORTUGAL
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-3-e;Non-pecuniary damage - finding of violation sufficient
JUDGES: C. Russo;Feyyaz Gölcüklü;John Freeland
TEXT: 9. At the time of lodging his application with the Commission in 1993 Mr Daud, an Argentinian citizen born in 1944, was in prison at Vale de Judeus (Portugal). On 4 August 1995 he died in Caxias prison hospital.
10. On 10 March 1992 the applicant, as he arrived from Rio de Janeiro, was arrested at Lisbon Airport; he was carrying a false passport and a suitcase containing 1.5 kg of cocaine.
11. On 11 March 1992 the judge of the Lisbon Criminal Investigation Court (tribunal de instrução criminal) to whom the case had been allocated interviewed Mr Daud in the presence of an officially assigned lawyer and an interpreter, Mr C.M., an educational and welfare counsellor working in the police criminal investigation department. After verifying that the applicant had been arrested lawfully, the judge ordered that he should be detained pending trial.
12. On 9 July 1992 the Supreme Court (Supremo Tribunal de Justiça) refused an application for a writ of habeas corpus made by the applicant in person.
13. On 9 October 1992 the public prosecutor made his submissions. These were served on the lawyer on 12 October and on the applicant on the 13th.
14. On 15 October 1992 Mr Daud himself requested that a judicial investigation should be commenced. On 26 October the investigating judge, citing Article 92 § 1 of the Code of Criminal Procedure, refused the request, on the ground that it did not satisfy the minimum formal requirements laid down by law, in particular because it was written in Spanish.
15. On 16 November 1992 the file, together with the public prosecutor’s submissions, was sent to the Third Division of the Lisbon Criminal Court (tribunal criminal).
16. In an order of 30 November 1992 that was served on Mr Daud on 9 December the judge in charge of the case set it down for hearing on 26 January 1993. He also ordered that the applicant should remain in detention pending trial.
17. In a letter of 15 December 1992, which was registered on 22 December, the applicant asked the court to hear a number of witnesses and to order an examination of the suitcase in issue, which he denied was his. He also sought the assistance of an interpreter other than Mr C.M. and asked to meet his officially assigned lawyer, who had not yet contacted him.
18. In an order of 22 December the judge in charge of the case, citing Article 92 § 1 of the Code of Criminal Procedure, declined to consider the application, on the grounds that it was “difficult to read”, written in Spanish and unaccompanied by any translation.
19. On 14 January 1993 the officially assigned lawyer asked to be relieved of her duties on health grounds. On 18 January 1993 the judge assigned another lawyer, Ms C.G. Mr Daud was notified of that order on 23 January 1993.
20. The trial began on 26 January 1993 with an interpreter, Mr E.P., present and continued on 1 February 1993. At those hearings the court heard witnesses and, at the request of the officially assigned lawyer, formally identified the suitcase.
21. On 8 February 1993, the court sentenced the applicant to nine years’ imprisonment for drug trafficking and using a false passport and made an order for costs against him.
22. On the very same day that he was convicted, the applicant, represented by his officially assigned lawyer, appealed to the Supreme Court. In his pleadings, drawn up and submitted by Ms C.G., he complained that the court below had not acceded to his request for a judicial investigation. In his submission, the investigating judge had misinterpreted the relevant provisions of the Code of Criminal Procedure; his refusal to consider the request and the lack of an investigation rendered the proceedings null and void.
23. In a judgment of 30 June 1993 the Supreme Court, relying on Article 412 of the Code of Criminal Procedure, held that the appeal was inadmissible on account of an inadequate presentation of the grounds. The submissions did not indicate either the statutory provisions that had allegedly been contravened or the way in which, in the appellant’s view, they should have been interpreted or applied.
24. Article 20 of the Constitution provides:
“1. Access to the law and to the courts to defend one’s rights and legitimate interests is guaranteed to all. Justice cannot be refused for lack of financial resources.
2. Everyone is entitled, in accordance with the law, to information, legal advice and legal aid.”
25. Article 32 § 3 of the Constitution provides:
“Every person charged with a criminal offence is entitled to choose a legal representative and to be assisted by him in all procedural steps. The law shall lay down the circumstances in which and the stages at which such assistance is compulsory.”
26. The relevant provisions of the Code of Criminal Procedure are the following:
“1. The accused may instruct counsel at any stage of the proceedings.
2. Where it is provided by law that the accused must be represented and the accused has not appointed or does not propose to appoint a person to defend him, the judge shall assign one officially, preferably a member or trainee member of the Bar; but the officially assigned representative shall cease to have authority to act if the accused instructs counsel of his own choosing.
…”
“The accused may revoke any act carried out on his behalf by the person defending him, provided that he expressly declares that intention before any decision has been taken in respect of the act in question.”
“1. The assistance of a representative is compulsory
(a) when an accused in custody is first examined by the judge;
(b) during the investigation and at the hearing, except in proceedings which cannot entail a custodial sentence or a preventive measure;
(c) for any step in the proceedings if the accused is deaf, dumb or illiterate or does not know Portuguese, if he is under the age of 21 or if the issue of his lack of criminal responsibility or his diminished responsibility has been raised;
…
“1. Where a representative is assigned officially, the accused shall be notified of the fact if he was not present at the material time.
2. The officially assigned representative may be excused from assisting the accused if he puts forward a ground that the court considers valid.
3. The court may replace the officially assigned representative at any time on an application by the accused that contains a valid ground.
4. Until such time as he is replaced, an officially assigned representative shall continue to act in respect of subsequent steps in the proceedings.
5. The representative shall always be remunerated for his services; the terms and the amount shall be determined by the court, within the limits laid down in a scale approved by the Ministry of Justice or, failing that, in the light of the fees normally paid for services of a similar nature and of equal importance.
Payment shall be the responsibility of, as the case may be, the accused, the assistente, the civil parties or the Ministry of Justice.”
“…
2. If the representative is replaced during the judicial investigation or the hearing, the court may, of its own motion or on an application by the new representative, grant a pause to enable the new representative to consult with the accused and study the file.
3. Instead of the pause mentioned in the preceding paragraphs the court may decide, where absolutely necessary, to adjourn the relevant step in the proceedings or the hearing, provided, however, that such an adjournment shall not exceed five days.”
“1. To be valid, all steps in the proceedings, whether written or oral, must be made in Portuguese.
2. Where a person who cannot understand or speak Portuguese has to take part in proceedings, an appropriate interpreter shall be appointed free of charge…
3. An interpreter shall likewise be appointed if it proves necessary to translate a document in a foreign language which is not accompanied by a certified translation.
…”
“An accused, even if at liberty, may submit observations, pleadings or applications at any stage of the proceedings, even if they are not signed by his representative, provided that they relate to the subject matter of the proceedings or are intended to protect his fundamental rights. Such observations, pleadings or applications shall always be placed in the case file.”
“1. The purpose of the judicial investigation shall be to provide judicial confirmation of the indictment or of the decision whereby proceedings in the case have been discontinued, so that the case may go to trial or not.
2. The judicial investigation shall be optional…”
“1. A judicial investigation may be applied for within five days from the serving of the indictment or of the decision to discontinue the proceedings
by the accused, in relation to facts covered by the indictment drawn up by the public prosecutor’s office, or by the assistente if the criminal proceedings have been brought by the latter;
(b)…
2. Such an application may only be dismissed if it is out of time, if the judge has no jurisdiction or if a judicial investigation is statutorily inadmissible.
3. The application shall not have to satisfy any formal requirements but it must contain a summary of the reasons of fact and law for challenging the indictment or the failure to bring an indictment, together with, if appropriate, some indication either of the judicial investigation measures which the applicant would like to see taken and of any evidence not considered during the preliminary inquiries or of facts which it is hoped to prove by such means.”
“1. The pleadings shall set forth in detail the grounds of appeal and end with submissions, set out point by point, in which the appellant summarises the reasons for his appeal.
2. If the reasons concern the law, the submissions shall also indicate the following, failing which the appeal shall be dismissed:
the legal provisions that have been infringed;
…”
27. The relevant provisions of Decree no. 387-B/87 of 29 December 1987 are the following:
“The appointment of an officially assigned representative and his withdrawal, replacement and remuneration shall be governed by the Code of Criminal Procedure…”
“The judicial authority responsible for assigning the representative shall request the Bar Council competent for the district concerned to nominate a member or trainee member of the Bar for official assignment; where it considers it appropriate, it may ask the Bar to nominate only a member of the Bar.
The Bar Council shall make the required nomination within five days.
Where no such nomination is made …, the judicial authority may appoint a representative as it sees fit.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-103526
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF PALIĆ v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 5-1
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people were killed and more than two million people were displaced. It is estimated that almost 30,000 people went missing and that one third of them is still missing. The major parties to the conflict were the ARBH (mostly made up of Bosniacs and loyal to the central authorities of Bosnia and Herzegovina), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace (“the Dayton Peace Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). The Brčko District, under the exclusive sovereignty of the State and international supervision, was formally inaugurated on 8 March 2000.
7. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) headquartered in The Hague. Although the ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia. More than 60 individuals have been convicted and currently more than 40 people are in different stages of proceedings before the ICTY. Two accused are still at large (Mr Goran Hadžić and Mr Ratko Mladić).
8. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. In addition to its work in the former Yugoslavia, the ICMP is now actively involved in helping governments and other institutions in various parts of the world address social and political issues related to missing persons and establish effective identification systems in the wake of conflict or natural disaster. Reportedly, the ICMP has so far identified by DNA around 13,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified by traditional methods around 7,000 missing persons.
9. After the war, the ARBH, HVO and VRS forces merged into the Armed Forces of Bosnia and Herzegovina.
10. The applicant was born in 1967 and lives in Sarajevo.
11. The applicant’s husband, Mr Avdo Palić, was a military commander of the ARBH forces in the United Nations “safe area” of Žepa during the war. On 27 July 1995, shortly after the VRS forces had taken control of that area, Mr Palić went to negotiate the terms of surrender with the VRS forces and disappeared.
12. Following many fruitless attempts to obtain any official news about her husband, on 18 November 1999 the applicant lodged an application against the Republika Srpska with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the Dayton Peace Agreement.
13. On 5 September 2000 the Human Rights Chamber held a public hearing and heard several witnesses, including Mr Abdurahman Malkić and Mr Sado Ramić who had been detained together with Mr Palić in a military prison in Bijeljina in August 1995. The Republika Srpska maintained at the hearing that it had no knowledge of the arrest and detention of Mr Palić.
14. In its decision of 9 December 2000, the Human Rights Chamber held that Mr Palić had been a victim of “enforced disappearance” within the meaning of the Declaration on the Protection of All Persons from Enforced Disappearance and found a breach of Articles 2, 3 and 5 of the Convention in respect of Mr Palić and Articles 3 and 8 of the Convention in respect of the applicant. The Republika Srpska was ordered: (a) to carry out immediately a full investigation capable of exploring all the facts regarding the fate of Mr Palić with a view to bringing the perpetrators to justice; (b) to release Mr Palić, if still alive, or to make available his mortal remains to the applicant; and (c) to make all information about the fate and whereabouts of Mr Palić known to the applicant. The applicant was awarded, for non-pecuniary damage, 15,000 convertible marks (BAM – 7,669 euros (EUR)) and, in respect of her husband (which sum was to be held by the applicant for her husband or his heirs), BAM 50,000 (EUR 25,565). The decision was delivered on 11 January 2001 and entered into force on 8 March 2001 when the full Chamber rejected the Republika Srpska’s request for review.
15. On 14 November 2001 the Republika Srpska acknowledged that Mr Palić had been held in Vanekov mlin, a military prison in Bijeljina administered by the VRS forces, between 4 August and 5 September 1995 and that on the latter date Mr Dragomir Pećanac, Security Officer of the Main Staff of the VRS, had taken Mr Palić from that prison.
16. Having found that Mr Pećanac had meanwhile settled in Serbia, in February 2002 the Republika Srpska authorities issued a domestic arrest warrant against him. In March and April 2002 they interviewed the entire war-time personnel of Vanekov mlin, including its governor.
17. On 12 June 2003 the Bijeljina District Prosecutor (answerable to the Prosecutor of the Republika Srpska) asked the State Prosecutor to take over this case. On 25 December 2003 the latter decided that the case should remain with the Bijeljina District Prosecutor and returned the case file.
18. On 7 September 2005 the Human Rights Commission, which had replaced the Human Rights Chamber, rendered another decision in this case: while noting that the monetary award had been paid, it held that the decision of 9 December 2000 had not yet been fully enforced. The Republika Srpska was given an additional three-month period in which to do so.
19. From October until December 2005 the authorities of the Republika Srpska and Serbia, at the request of the Republika Srpska, interviewed eighteen people in connection with this case, including Mr Pećanac.
20. On 16 January 2006 the Human Rights Commission repeated in another decision that the core element of the decision of 9 December 2000 had not been enforced: the Republika Srpska had not released Mr Palić, if still alive, or otherwise had not made available his mortal remains to the applicant and no prosecution had been brought. This decision was submitted to the State Prosecutor (non-enforcement of the decisions of the Human Rights Chamber constitutes a criminal offence, see paragraph 36 below).
21. On 25 January 2006 the Republika Srpska, at the request of the High Representative, established an ad hoc commission to investigate this case. It included Mr Milorad Bukva who had allegedly attended the meeting of 27 July 1995 mentioned in paragraph 11 above (see paragraph 61 below). The applicant appointed her representative to that commission.
22. On 17 March 2006 the Sarajevo Municipal Court, at the applicant’s request, issued a declaration of presumed death with respect to Mr Palić (see paragraph 39 below).
23. On 20 April 2006 the ad hoc commission adopted a report. Having interviewed numerous people, it established that Mr Palić had been captured by the VRS forces (that is, by Mr Radomir Furtula of the Rogatica Brigade) and handed over to Mr Zdravko Tolimir, Assistant Commander for Intelligence and Security of the Main Staff of the VRS. By order of Mr Mladić, the Commander of the VRS, he was held in a private flat in Rogatica (belonging to Mr Zoran Čarkić, Security Officer of the Rogatica Brigade) for a week or so and then in Vanekov mlin, the military prison mentioned above. He was interrogated daily by security officers of the VRS. It was also established that Mr Pećanac and his driver, Mr Željko Mijatović, had taken Mr Palić from that prison on the night of 4/5 September 1995. While questioned by the Serbian authorities, at the request of the Republika Srpska, Mr Pećanac and Mr Mijatović said that they had taken Mr Palić to Han Pijesak and handed him over to the late Mr Jovo Marić. However, the report established that Mr Marić had not been in Han Pijesak at that time.
24. On 13 December 2006 the Prime Minister of the Republika Srpska established another ad hoc commission to investigate this case. He also met the applicant who appointed her representative to that commission.
25. On 20 December 2006 the Court of Bosnia and Herzegovina issued international arrest warrants against Mr Pećanac and Mr Mijatović on suspicion of having committed an enforced disappearance as a crime against humanity.
26. In March 2007 the second ad hoc commission established that Mr Palić had been buried in a mass grave in Rasadnik near Rogatica and, having searched the area in vain, that he could have been transferred to a secondary mass grave in Vragolovi near Rogatica (where nine unidentified bodies had been exhumed on 12 November 2001) or elsewhere in that area.
27. On 31 May 2007 the authorities of Bosnia and Herzegovina arrested Mr Tolimir and transferred him to the custody of the ICTY.
28. On 5 August 2009 the ICMP established that one of the unidentified bodies from the mass grave in Vragolovi (which had been exhumed on 12 November 2001 and reburied in a nameless grave in Visoko on 14 March 2002) was that of Mr Palić. The Sarajevo Cantonal Court then ordered that the body be exhumed. On 20 August 2009 the ICMP confirmed through DNA tests that the body indeed belonged to Mr Palić.
29. On 26 August 2009 Mr Palić was finally buried on the grounds of the Ali Pasha’s Mosque in Sarajevo with military honours.
30. On 16 December 2009 the ICTY amended the indictment against Mr Tolimir. He is charged with the participation in joint criminal enterprise to forcibly transfer and deport the Muslim populations of Srebrenica and Žepa, a natural and foreseeable consequence of which was the killing of Mr Palić and two other Muslim leaders from Žepa by the VRS (the third category of joint criminal enterprise). His trial commenced on 26 February 2010.
31. Mr Pećanac and Mr Mijatović live in Serbia. They were granted Serbian citizenship on 4 January 1999 and 17 September 1998, respectively.
32. Armed conflicts often lead to the disappearance of hundreds or even thousands of people. Pursuant to Articles 32-34 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, families have the right to be informed of the fate of missing relatives; the parties to a conflict must search for persons reported missing by an adverse party and facilitate enquiries made by members of families dispersed as a result of the conflict so as to help them restore contact with one another and try to bring them together again; and lists showing the exact location and markings of the graves, together with particulars of the dead interred therein, must be exchanged. The International Committee of the Red Cross (ICRC), with the assistance of its Central Tracing Agency, has long experience in searching for soldiers and combatants who go missing during military operations (“missing in action”) and for civilians who are reported missing as a consequence of armed conflict.
33. This is a much narrower concept. A recent definition of “enforced disappearance” is set out in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance of 20 December 2006:
“For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”
34. The widespread or systematic practice of enforced disappearance is described as a crime against humanity in Article 7 of the Rome Statute of the International Criminal Court of 17 July 1998.
35. The Agreement between Bosnia and Herzegovina and Serbia on Mutual Assistance in Civil and Criminal Matters (published in Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 11/05 of 8 December 2005, amendments published in Official Gazette no. 8/10 of 29 July 2010) entered into force on 9 February 2006. Under Article 39 thereof, when a citizen or resident of one Contracting State is suspected of having committed an offence in the territory of the other Contracting State, the latter may request the former to take proceedings in the case. While such a request is pending, the requesting State may not prosecute the suspected person for the same offence. Moreover, a person in respect of whom a final criminal judgment has been rendered in the requested State may not be prosecuted for the same offence in the requesting State if he or she has been acquitted or if the sanction imposed has been enforced or the subject of a pardon or amnesty (Article 41 of the Agreement). Lastly, when one State intends to request the transfer of proceedings, it may also request the other State to provisionally arrest the suspected person (Article 40a of the Agreement).
36. The 2003 Criminal Code (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010) entered into force on 1 March 2003.
The relevant part of Article 172 of the Code provides as follows:
“1. Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack perpetrates any of the following acts:
...
i) enforced disappearance of persons;
...
shall be punished by imprisonment for a term not less than ten years or long-term imprisonment.
2. For the purpose of paragraph 1 of this Article the following terms shall have the following meanings:
...
h) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with an aim of removing them from the protection of the law for a prolonged period of time.
...”
Furthermore, in accordance with Article 239 of the Code, non-enforcement of a decision of the Human Rights Chamber is an offence:
“An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term between six months and five years.”
37. The 2003 Code of Criminal Procedure (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of 21 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004, 13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006, 76/06 of 25 September 2006, 29/07 of 17 April 2007, 32/07 of 30 April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of 25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009, 16/09 of 24 February 2009 and 93/09 of 1 December 2009) entered into force on 1 March 2003.
Article 247 of the Code reads as follows:
“An accused may never be tried in absentia.”
38. War Crimes Sections of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina have been set up pursuant to the Court of Bosnia and Herzegovina Act 2000 (a consolidated version thereof published in Official Gazette of Bosnia and Herzegovina no. 49/09 of 22 June 2009, amendments published in Official Gazette nos. 74/09 of 21 September 2009 and 97/09 of 15 December 2009).
39. Any person or body demonstrating a legitimate interest may lodge a request for a declaration of presumed death with respect to those who went missing during the 1992-95 war as from the expiry of the waiting period, which is one year from the cessation of the hostilities (the Non-Contentious Procedure Act 1989, published in Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 10/89 of 23 March 1989, which was in force in the Federation of Bosnia and Herzegovina until 28 January 1998 and in the Republika Srpska until 15 May 2009; the Non-Contentious Procedure Act 1998, published in Official Gazette of the Federation of Bosnia and Herzegovina no. 2/98 of 20 January 1998, amendments published in Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005; and the Non-Contentious Procedure Act 2009, published in Official Gazette of the Republika Srpska no. 36/09 of 7 May 2009).
Pursuant to section 27(1) of the Missing Persons Act 2004, a declaration of presumed death will automatically be issued with respect to all those recorded as missing in the Central Records (see paragraph 40 below).
40. The Missing Persons Act 2004 (published in Official Gazette of Bosnia and Herzegovina no. 50/04 of 9 November 2004) entered into force on 17 November 2004. It provides, in so far as relevant, as follows:
“Families of missing persons have the right to know the fate of their missing family members and relatives, their place of (temporary) residence, or if dead, the circumstances and cause of death and location of burial, if such location is known, and to receive the mortal remains.”
“The status of missing person is terminated on the date of identification, and the process of tracing the missing person is concluded.
In the event that a missing person is proclaimed dead, but the mortal remains have not been found, the process of tracing shall not be terminated.”
The Missing Persons Institute and, within that Institute, the Central Records have been set up as domestic institutions pursuant to that Act. The Missing Persons Fund, although envisaged, has not yet been set up.
41. The War Crimes Act 2003 (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal have been set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). A number of persons have been convicted in Serbia for war crimes committed during the 1992-95 war in Bosnia and Herzegovina. As an example, at the request of Bosnia and Herzegovina, the Serbian authorities have taken proceedings and convicted Mr Nenad Malić of war crimes committed against Bosniacs in Stari Majdan in 1992 and sentenced him to 13 years’ imprisonment. As another example, they have recently convicted Mr Slobodan Medić, Mr Branislav Medić, Mr Pero Petrašević and Mr Aleksandar Medić of war crimes committed against Bosniacs in Trnovo in 1995 and sentenced them to 20, 15, 13 and 5 years’ imprisonment respectively.
42. The Mutual Assistance in Criminal Matters Act 2009 (published in Official Gazette of the Republic of Serbia no. 20/09) entered into force on 27 March 2009. Under section 16 of this Act, Serbian citizens may not be extradited. This Act repealed the corresponding provision of the Code of Criminal Procedure 2001 (published in Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) which was in force between 28 March 2002 and 27 March 2009.
NON_VIOLATED_ARTICLES: 2
3
5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-117135
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF B.B. AND F.B. v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award
JUDGES: Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 5. The applicants, who were originally of Turkish origins, were born in 1966 and 1976 respectively and live in Duisburg.
6. On 23 May 2008 the Municipal Authority of Krefeld lodged a request with the Krefeld Family Court to withdraw the applicants’ parental rights over their two children, a daughter (born in 1996) and a son (born in 2000). According to information provided by the girl’s headmistress, their father systematically beat both children if they did not achieve good school grades. The school had already received information during the previous semester that the girl had been beaten. As the girl’s parents appeared to be well adjusted and overly polite, the school did not react immediately, but decided to observe the child more closely. It was thus observed that the children’s family closely supervised the girl via her mobile phone. Furthermore, the father had taken the girl out of biology class because the curriculum provided for sexual education. The girl was not allowed to leave on a school trip and was reported sick instead.
7. When a teacher caught the girl in the act of manipulating the marks of a school exam, she opened up to her teacher. The girl further reported that her brother was under even more pressure to achieve good grades and was punished “draconically” if he did not comply. The headmistress contacted the Society for the Protection of Children in Krefeld, which had informed the Youth Office.
8. By interim order of 23 May 2008 the Krefeld District Court, in its capacity as a family court, and referring to the reasons submitted in the Municipal Authority’s request, temporarily withdrew the applicants’ parental rights over their two children and transferred them to the Youth Office.
9. On 28 May 2008, the Youth Office fetched the two children from their respective schools and brought them to a children’s home. On that same day, the Youth Office informed the second applicant by telephone and in person about the reasons for the placement. The children’s whereabouts were not disclosed to the applicants. The second applicant insisted that they had never beaten the children.
10. On 2 June 2008 the applicants, in the main proceedings, represented by counsel, submitted to the District Court that it was true that they considered it important that their children performed well at school. However, they had never been violent towards the children. They further submitted two medical attestations by their family physician Dr D. dated 29 May 2008, certifying that she had seen both children regularly in her medical practice. Both children had made a balanced, stable and cheerful impression. There was no indication that they had suffered from any violent acts. The physician further noted that she had further examined the boy by sonograph. There were no indications of any use of force against the boy, there had been neither hematoma, nor injuries nor bruises. The applicants further submitted medical attestations to demonstrate that the girl had indeed been ill at the dates she had not attended the school trip. They further submitted a number of school reports in order to demonstrate that the children had good grades, showed adequate social behaviour and had rarely been absent from school. They finally submitted that the children regularly attended sports classes. The applicants suggested that there was the possibility that the girl had made the whole story up when she was caught in the act of manipulating school grades.
11. On 8 July 2008, during a first hearing before the District Court, the parties agreed that the court should hear the children in person.
12. On 16 July 2008, the District Court judge heard the two children in the absence of the other parties to the proceedings. According to the court minutes, both children were heard separately. The girl stated that the applicants exerted considerable pressure on her to achieve good school grades. As soon as she did not deliver the requested results, her father beat her both with his hands and with objects. In the previous years, her father had beaten her on the soles of her feet with an iron rod. Following this, she had to put her feet into cold water in order to avoid marks. At one occasion, her mother had whipped her legs. She further submitted that she was feeling at ease in the children’s home and that she did not want to return home for fear of further violence.
13. The boy stated that, since entering school, he had been permanently beaten if he did not achieve the best school grades. His father had also used objects like an iron rod. He did not want to return home as long as his father remained violent.
14. On 22 July 2008, the applicants wrote a letter to the District Court in which they denied having ever beaten the children. They submitted that their daughter was lying and that she manipulated her brother. Doctors who could confirm that they had never detected any sign of physical abuse had regularly examined both children. They had regularly attended school and sports classes without the teachers detecting any sign of abuse. The applicants further referred to a staff member of the municipality’s psychological service who had repeatedly examined the boy without detecting any physical abuse.
15. On 4 August 2008, the Krefeld District Court, in the main proceedings, withdrew the applicants’ parental authority over their two children and transferred it to the Youth Office. Based on its own examination, in particular the hearing of the two children, the court was convinced that the applicants had repeatedly acted violently towards their children. Following the children’s entry into school, the parents had exerted considerable pressure that culminated in corporal punishment if the children did not achieve the expected school results. Both children had inter alia been beaten on the soles of their feet with an iron rod.
16. As the court was convinced that the children’s statements reflected the truth, it did not deem it necessary to obtain expert opinion on their credibility. Both children had confirmed their statements in their mother’s presence before the Youth Office. It could be excluded that the boy had been influenced by his older sister, as the Youth Office employees had paid express attention that the children were not in a position to discuss the events before the boy had also been interrogated. Even taking into account that the girl might be endowed with a vivid imagination, the court ruled out that the girl could have falsely accused her parents over such a long period of time. Her statements were rather characterised by a tendency to exculpate her parents.
17. Having regard to these facts, the court considered that the applicants were currently incapable of raising their children and that it would seriously jeopardise the children’s welfare to return them to the applicants’ household.
18. On 17 September 2008, the applicants, represented by counsel, lodged an appeal. On 8 October 2008, the applicants submitted that the impugned decision was based on incorrect facts. In particular, the children had never been interrogated in their mother’s presence. Furthermore, the District Court had failed sufficiently to examine the relevant facts before taking the decision on the definite withdrawal of parental rights. In the present case, it was indispensable to hear expert opinion on the children’s credibility.
19. At no point in time had there been any objective facts such as bruises, injuries, frequent absences from school etc., which might indicate physical abuse. Any medical practitioner could confirm that even the submersion in cold water could not prevent the appearance of bruises if the children had indeed been beaten with an iron rod. Furthermore, such treatment would entail reduced mobility, feelings of numbness and pain. No such symptoms had ever been observed on the children.
20. As the parents vehemently denied having ever beaten their children, there was no objective indication for the alleged abuse other than the children’s own statements. Before taking such a drastic decision as the withdrawal of parental authority, the applicants thus deemed it necessary to assess the children’s credibility by hearing expert opinion.
21. On 6 November 2008, the Düsseldorf Court of Appeal rejected the applicants’ appeal. The Court of Appeal considered that the District Court, having heard the applicants and the children in person, had put forward relevant reasons justifying the withdrawal of parental authority under section 1666 of the Civil Code (see relevant domestic law, below).
22. The Court of Appeal confirmed the District Court’s assessment of the evidence. It did not consider it decisive that the District Court had assumed that the statements had also been made in the mother’s presence.
23. There were no indications that the children, in particular the girl, would wrongly accuse the applicants. This followed from the reasons relied upon by the District Court and in particular from the fact that the children, who were fully aware of the consequences of their allegations, repeated these allegations over a longer period of time in a self-consistent way. Under these circumstances, it could be ruled out that the children had invented and maintained their allegations merely because they had been afraid of the teacher’s reaction to the girl’s attempts to manipulate her school marks.
24. According to the Court of Appeal, the District Court had not been obliged further to examine the facts. It was, in particular, irrelevant whether the attending medical practitioners had detected any injuries in the course of regular consultations, as the abusive acts need not have provoked any visible signs, furthermore as such signs could have been overlooked or could have occurred at times when no medical consultation was imminent.
25. Neither was the District Court obliged to hear expert opinion on the children’s trustworthiness. According to the Federal Court of Justice’s case law, it was up to the courts to assess witness evidence and to establish the trustworthiness of witnesses. Expert opinion was only necessary if there were concrete indications that could call into question the reliability of a witness statement and if specific expert knowledge was necessary to establish these factors and their impact on the witness statement’s content. Such a concrete indication could not be derived from the mere fact that the witness was a child or juvenile. In the absence of any concrete circumstances to the contrary, both the District Court and the Court of Appeal were in a position to assess the credibility of the statements made by the children before the District Court without having recourse to expert help.
26. On 3 March 2009, the Federal Constitutional Court refused to accept the applicants’ constitutional complaint for adjudication without giving further reasons.
27. On 17 March 2009, the applicants lodged a request with the District Court to be granted contact rights with the children. During a hearing before that court on 7 July 2009, a first meeting between the parents, the children and the Youth Office was arranged for 16 July 2009.
28. During the meeting on 16 July 2009, the daughter confessed that she had lied and that the allegations she had made the previous year had not been true. The son confirmed this. The daughter further submitted one letter to her parents and one to the District Court, in which she confessed to having lied and in which she expressed her wish to return to her family.
29. On 28 August 2009, both children confirmed before the District Court Judge that their parents had never beaten them. The parties agreed to extend contacts between the applicants and their children with a view to return the children to the parental household.
30. On 9 October 2009, the children returned to the applicants’ household. On 13 April 2010, the District Court lifted its decision of 4 August 2008 and restored the applicants’ parental authority.
31. Section 1666 of the Civil Code provides that in cases of a danger to the child’s welfare the court shall order the necessary measures. Pursuant to section 1666a § 1 measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities. The complete care for the child (gesamte Personensorge) may only be withdrawn if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger (section 1666a § 2).
32. Under section 26 of the Rules of Procedure on Family Affairs, the family courts are obliged to carry out on their own motion all investigations necessary to establish the relevant facts.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1