ITEMID: 001-67582
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF GÜMÜŞTEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1952 and lives in Mardin.
9. On 22 December 1980 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation.
10. On 10 March 1981 the Diyarbakır Martial Law Court ordered the applicant's detention on remand.
11. On 14 September 1981 the public prosecutor's office at the Diyarbakır Martial Law Court filed a bill of indictment with the latter, accusing the applicant of membership of an illegal organisation. The public prosecutor's office requested that the applicant be convicted and sentenced under Article 168 § 1 of the Criminal Code.
12. On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant as charged and sentenced him to twenty-four years' imprisonment. Before the Diyarbakır Martial Law Court, the applicant was tried together with 624 co-suspects.
13. Following the applicant's appeal, his case was referred to the Military Court of Cassation.
14. On 10 April 1990 the Military Court of Cassation quashed the judgment of the Diyarbakır Martial Law Court on the ground that latter had misinterpreted the domestic law in respect of the offence in question.
15. On 29 July 1990 the applicant was released from detention.
16. Subsequent to promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Diyarbakır Assize Court acquired jurisdiction over the applicant's case.
17. On 13 July 1998 the Diyarbakır Assize Court held that the offence fell within the scope of Article 168 § 2 and consequently the statutory timelimit under Articles 102 and 104 of the Criminal Code had expired. It accordingly ordered that the criminal proceedings against the applicant be terminated.
18. On 10 September 1998 the judgment became final in respect of the applicant.
19. A description of the relevant domestic law and practice can be found in Şahiner v. Turkey, no. 29279/95, ECHR 2001-IX.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-127616
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF NEZİR ADIYAMAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant was born in 1978 and lives in Istanbul.
6. On 4 September 2005, at 10.30 p.m., the applicant was arrested and taken to the Beyazıt police station on suspicion of using explosives during a demonstration.
7. According to the arrest and seizure report, at around 10 p.m., the police had been informed of a gathering which needed to be monitored. Upon their arrival, they had noticed a group of people who had gathered in the middle of the street, holding Molotov cocktails. The group had dispersed when they saw the officers. The report further indicated that the applicant, who had been among the group, had started to run away, threatened to throw a Molotov cocktail at the officers and resisted when the police tried to arrest him. According to the report, the police had used gradual force within legal limits in order to keep the applicant under control and had finally handcuffed him. They had also seized the Molotov cocktail which was ready to explode and had found a piece of fabric in his pocket which could be used as a fuse for the Molotov cocktail.
8. At 11.50 p.m. the applicant underwent a medical examination at the Haseki Training and Research Hospital. The report drawn up afterwards indicated no sign of physical violence on his body.
9. Following the examination, the applicant was taken back to the Beyazıt police station. In the meantime, the Istanbul public prosecutor ordered that he should be handed over to the Anti-Terrorist Branch of the Istanbul Security Directorate.
10. The applicant underwent a second medical examination at the Haseki Training and Research Hospital before he was taken to the AntiTerrorist Branch. The second report issued there on 5 September 2005, at 1.14 a.m., noted once again that there was no sign of ill-treatment on his body.
11. Upon his arrival at the Anti-Terrorist Branch, the applicant was transferred to the Istanbul Forensic Medicine Institute and was examined by a doctor at 2.25 a.m. Before the examination, he claimed that he had been sworn at, stripped naked, and punched on the chin and shoulders at the Beyazıt police station. The interim forensic medical report issued afterwards noted that the applicant’s general health condition was good and that he was conscious. It stated that beside a bleeding scratch on his left hand, which he noted had occurred before his arrest, the applicant had two scratches of 1.2 x 0.8 cm and 2.5 x 1.2 cm and a lightly bleeding bruise of 2.5 x 0.8 cm on his right elbow, hyperaemia on both his wrists probably caused by the use of handcuffs and some other small scratches on his elbows, chest and shoulders. The report further noted that the movement of the applicant’s chin was found to be normal. It concluded that the applicant had several soft-tissue lesions, which did not put his life at risk and could be treated with simple medical attention.
12. Another medical report drawn up at around 8 p.m. the same day indicated that the applicant had two scratches of 3 x 0.7 cm on both elbows, had difficulty in opening his jaw and pain on the frontal area of his head. This report concluded that the applicant needed to be examined by orthopaedic and neurosurgical departments in a hospital for more accurate results.
13. Subsequently, at 9.30 p.m., the applicant was examined by doctors in the orthopaedics and general surgery departments of the Bakırköy State Hospital. The doctors reported that he had three 1 x 1 cm scratches on his left shoulder and right elbow and a scratch measuring 0.5 x 0.5 cm on his left side. They further stated that no urgent orthopaedic or osseous pathology could be determined.
14. After that examination, the Istanbul Forensic Medicine Institute issued a final report, stating that as there was no orthopaedic or neurosurgical pathology, the superficial scratches and bruises on the applicant’s body did not put his life at risk and could be cured with simple medical attention.
15. Finally, on 6 September 2005 the applicant underwent two examinations at the Beşiktaş Branch of the Forensic Medicine Institute. The medical report repeated the findings of the first examination performed in the Istanbul Forensic Medicine Institute. It also referred to a dental report, made on the same day on account of the applicant’s allegations of having been punched on the chin, which stated that there was no indication that such external force had been applied to his mouth. Consequently, the applicant was diagnosed as suffering from a soft-tissue lesion which could be cured with simple medical attention.
16. On the same day, following the medical examinations, the applicant made his submissions before the Istanbul public prosecutor, to whom he complained that he had been ill-treated while in police custody. He also denied the contents of the arrest and seizure report and stated that when the police had arrested him, he had been on his way to inform his employees’ families that the employees would stay late that night.
17. Later on, the applicant was questioned by the investigating judge at the Istanbul Assize Court. Repeating the statements he had given before the public prosecutor, he maintained that he had been walking along with three of his employees when the police had pushed him to the ground and handcuffed him. He added that the piece of fabric found in his pocket, which the police claimed was a fuse, was merely a sample he had carried with him for an order, as he worked in the textile business. The investigating judge decided to remand the applicant in custody on suspicion of being a member of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party), and of threatening to cause fear and panic.
18. On 15 September 2005 the Istanbul public prosecutor separated the investigation into the applicant’s allegation of ill-treatment from that regarding the applicant.
19. On 6 October 2005 the Istanbul public prosecutor invited thirteen police officers from the Beyazıt police station to attend within fifteen days at the prosecutor’s office, in order to give their statements on the matter.
20. On 12 October 2005 the Istanbul public prosecutor questioned the applicant once again. The applicant submitted that he had been punched, slapped and pushed against the wall by ten to fifteen officers for about twenty minutes during his time at the Beyazıt police station. He added that he had not been subjected to ill-treatment during his arrest and while at the Anti-Terrorist Branch.
21. On 1 and 2 December 2005 respectively, five police officers, who had carried out the applicant’s arrest, were questioned by the Istanbul public prosecutor. Denying the applicant’s allegations, they maintained that they had arrested the applicant using gradual force and had taken him to the police station in order to draw up an arrest report. They added that subsequently they had taken the applicant for a medical examination, brought him back to the police station and left. The other officers, who had been at the station while the applicant had been there, denied the allegations as well and maintained that no one at the station had inflicted physical violence on the applicant. Two of them further referred to the second medical examination, performed right before the applicant had been transferred to the Anti-Terrorist Branch, and maintained that the second report did not indicate any sign of ill-treatment on the applicant either. The officers noted, lastly, that the injuries to the applicant must have occurred during his arrest as he had resisted the officers.
22. On 29 June 2006 the applicant checked photographs of some of the police officers before the Tekirdağ public prosecutor. He maintained that he could not identify the officers who had beaten him from the photographs that were shown to him. He added that he still suffered from pain in his ear as a result of the ill-treatment.
23. On 31 May 2007 the Istanbul public prosecutor’s office asked the director of the Beyazıt police station to provide him with the names and photographs of all officers on duty at the police station on 4 September 2005 between 8 p.m. and midnight. The prosecutor’s office further wrote to various security headquarters in other cities, to which some of the police officers had been assigned, and requested their photographs.
24. Subsequently, on an unspecified date and on 5 November 2007 respectively, the applicant was taken twice to the Tekirdağ public prosecutor’s office with a view to checking the photographs of all the officers on duty at the time of the alleged incident. The applicant maintained that he had failed to identify the officers who had ill-treated him from their photographs on account of the passage of time but that he was certain that some, with whom he had been acquainted before his arrest, had not been among them. He added that he would have been able to identify the officers who had beaten him, in person, through an identification parade.
25. On 3 October and 13 December 2007 respectively, two officers from the Istanbul Anti-Terrorist Branch gave their statements before the public prosecutor. They indicated that before the applicant had been handed over to them, they had asked the police officers from the Beyazıt police station to obtain a medical report and had placed the applicant in custody only after that report had been provided.
26. On 17 January 2008 another police officer from the Istanbul AntiTerrorist Branch was questioned by the public prosecutor, in order to clarify why the applicant had undergone several medical examinations in two days. The officer claimed that the applicant must have been taken to the doctor several times because of his requests to that effect.
27. On 5 February 2008 the Istanbul public prosecutor asked the Istanbul Forensic Medicine Institute to explain whether the injuries to the applicant could have occurred as a result of the use of handcuffs during his arrest and whether they might have become visible only later on, so that the doctors at the Haseki Training and Research Hospital, who had conducted the initial examinations, could not have noticed them.
28. In response to the public prosecutor’s request, on 7 February 2008 the Istanbul Forensic Medicine Institute assessed all the medical reports and concluded that the lesions on the applicant’s body could not have occurred merely from the use of handcuffs and that he must have been subjected to trauma. The report also noted that such lesions might have been unnoticeable during the initial medical examinations as it was usual for them to become visible only after twenty-four hours.
29. After having examined the last report, the Istanbul public prosecutor requested further clarification from the Istanbul Forensic Medicine Institute, maintaining that its conclusion referring to trauma conflicted with the previous findings, which indicated that the lesions on the applicant’s body merely necessitated simple medical attention. Subsequently, on 10 March 2008 the Forensic Medicine Institute reported that the lesions must have resulted from injuries which had occurred before the applicant’s police custody and that such lesions might not have been immediately visible. The Institute also added that the last medical reports issued in respect of the applicant noted a reduced number of lesions.
30. On 11 March 2008 the Istanbul public prosecutor issued a decision not to prosecute. He stated that the police officers had denied the accusations and that the applicant had not been able to identify any of the officers involved even though he had been shown pictures of all the suspects along with several other officers from the Beyazıt police station. He further indicated that the applicant’s injury must have been caused by force lawfully employed by the officers during his arrest, which was within the scope of their duties and proportionate to the danger caused by the applicant as he was threatening to throw a Molotov cocktail at the officers. The public prosecutor concluded that the evidence obtained was not sufficient to conclude that members of the security forces had ill-treated the applicant.
31. The applicant lodged an objection with the Beyoğlu Assize Court against the decision of the public prosecutor.
32. On 28 May 2008 the Assize Court rejected the objection. The final decision was served on the applicant on 8 September 2008.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-100135
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ABABEI v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1946 and lives in Bucharest.
5. On 8 February 1998 the applicant was arrested under suspicion of fraud and remanded in custody until 12 February 1998. His detention was not extended as it was already covered by the arrest warrant issued in another proceeding (see paragraph 9 below).
6. The Bucharest County Court examined the facts of the case, heard evidence – notably expert reports and witness testimony – proposed by the parties, including the applicant.
On 3 March 2000 the County Court convicted the applicant of fraud (înşelăciune) and sentenced him to fifteen years' imprisonment; it also noted that the applicant was remanded in custody in connection with another investigation (the proceeding described below at paragraphs 9-15) and maintained his continued detention.
7. On appeal, on 29 December 2000 the Bucharest Court of Appeal reduced the sentence to ten years' imprisonment.
8. Deciding on the appeal on points of law, in a final decision of 10 April 2002 the Supreme Court of Justice reduced the sentence to eight years.
9. On 12 February 1998 the applicant was arrested under suspicion of having falsified documents.
10. On 22 June 1998 the prosecutor attached to the Bucharest Court of Appeal indicted the applicant on several accounts of fraud and forgery.
11. In a judgment of 13 September 1999 the Bucharest County Court convicted the applicant of fraud.
On 13 April 2000 the Bucharest Court of Appeal modified the sentence on appeal, and on 24 October 2002 the Supreme Court of Justice quashed both previous decisions and sent the case back to the first-instance court. The Supreme Court considered that the lower courts had made errors in their judgments and had examined superficially the facts and evidence.
12. The County Court held some thirty hearings in the case, at steady intervals of approximately one month. About six hearings were postponed because defence counsel was absent or asked for more time to prepare the defence. The other hearings were mainly postponed because of errors in the summonsing procedure or absence of the civil parties.
On 20 April 2006 the applicant was again convicted by the County Court and sentenced to eight years, two months and thirteen days' imprisonment. The court noted that he had already served the sentence and ordered his release.
13. On the same day, he was released from detention.
14. On 27 April 2006 the applicant lodged an appeal. The Court of Appeal held almost thirty hearings, at steady intervals of approximately one month; the defence requested about five postponements.
The decision on appeal was adopted on 18 June 2008; the court upheld the first instance judgment.
15. On 3 December 2008 the High Court of Cassation and Justice adopted the final decision in the case, upholding the previous decisions.
16. In 1991 the applicant and three other persons founded company A. On 7 March 1996 the applicant bought the shares from the other individuals and became the sole owner of the company.
17. While the criminal proceedings described above were pending against the applicant, company A.'s creditors initiated the insolvency proceedings against it. It appears that the applicant empowered A.I. to represent the company in some of the litigation with the creditors.
A.I. represented the company in the insolvency proceedings as well. He hired counsel and on several occasions objected to the measures taken by the liquidators.
18. On 8 December 2000 the Bucharest County Court allowed the creditor's request and started the insolvency proceedings. The company's representative was present at the hearing. He did not appeal against the interlocutory judgment rendered by the court at that date.
19. On 21 March 2003 the County Court took account of the liquidator's final report on the distribution of the sums obtained from the sale of the company's assets. It ordered that the company be dissolved and that notice of dissolution be entered in the Trade Record (Registrul Comerţului). It then closed the proceedings. No objections were raised.
20. By the same judgment of 21 March 2003 the County Court decided to examine separately the action in tort lodged by one of the creditors against the applicant and another individual. The applicant participated in the proceedings and on 6 January 2004 he lodged a defence.
On 12 March 2004 the action was rejected by the County Court as inadmissible. In a final decision of 24 February 2005 the Bucharest Court of Appeal upheld the judgment.
21. On 16 February 2007 the Bucharest County Court dismissed the applicant's request for the annulment of the 21 March 2003 decision (contestaţie în anulare). The court noted that the applicant lost the right to administer the company's assets when the insolvency proceedings started, and therefore he no longer had standing in the proceedings.
In a final decision of 19 June 2007 the Bucharest Court of Appeal declared the appeal lodged by the applicant null and void, as the latter failed to submit the reasons for appeal within the time-limit set by law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86597
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BUGAYEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1965 and lives in Lysychansk.
5. On 18 October 2000 the applicant obtained a judgment of the Lysychansk Court (Лисичанський міський суд Луганської області) against the Lysychansk Thermo-electric Plant (Лисичанська ТЕЦ), awarding him 13,270 hryvnyas (UAH) in salary arrears and other payments.
6. This judgment was not appealed against, became final and the enforcement proceedings were instituted to collect the judgment debt.
7. On numerous occasions the bailiffs notified the applicant that they were unable to collect the full amount of the debt, citing insufficiency of the debtor’s funds and referring to the bankruptcy proceedings pending against it. They further explained that, since the State owned more than 25% of the debtor’s share capital, it was therefore subject to the Law of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of the State Property”.
8. On 19 January 2005 the bailiffs took a decision to terminate the enforcement proceedings, having determined that the applicant had received the full amount of the judgment debt due to him.
9. According to the applicant, fraction of the amount due to him remained outstanding.
10. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).
VIOLATED_ARTICLES: 6


ITEMID: 001-59080
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GLASER v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 9
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1946 in India and lived for a period in South Africa, where he married in January 1979 and had three children: PM. born in 1982, A. born in 1984 and F. born in 1985. The family moved to England in 1986 but, following marital difficulties, the applicant’s wife left the family home with the children in September 1991. She agreed to return in November when the applicant agreed to move out. Divorce proceedings were instituted on 24 October 1991 and the divorce became final on 10 June 1993.
9. Contact between the applicant and his children was arranged by agreement with the mother present between November 1991 and March 1992. However, in March 1992, contact was stopped by the mother who claimed that the children no longer wanted to see their father. In April 1992, the applicant’s former wife made allegations that the applicant had sexually abused the children, but these allegations were not substantiated in investigations carried out by the Child Protection Unit in June 1992. It was however considered that the patterns of behaviour of the children were consistent with the behaviour of children under considerable stress and, with the consent of both parents, the family were referred to the Child, Adolescent and Family Centre for therapeutic intervention. Meanwhile, in May 1992, an application by the applicant for a residence (custody) order was refused.
10. On 2 September 1992, an interim contact order was made by the Kingston-Upon-Thames County Court providing for weekly supervised access. This contact never took place.
11. On 6 November 1992, the same County Court made a further interim order for supervised access, with Christmas access to be by arrangement. Two periods of supervised access took place on 21 November and 12 December 1992. The children were reported as showing no signs of distress and the two younger children as appearing to enjoy seeing the applicant. The Christmas access did not take place as the mother took the children to Wales.
12. A psychiatric report dated 7 January 1993 noted that the children had felt terrified of the applicant and raised concerns of emotional abuse. It found that the oldest child, PM., who suffered intrinsic learning difficulties, had been clearly disturbed by the applicant’s behaviour and distressed by his mother’s difficulties in the marriage. A. had been stressed and troubled, with the knowledge of the applicant’s suicide attempts adding to his emotional burden. The youngest child F. was the least troubled, though the memories of hitting and shouting were clearly also frightening and disturbing for her. All three children separately indicated that they wanted to live with their mother and were worried about contact with the applicant. There was evidence of a fairly ritualised and damaging cycle of events with the applicant being unreasonably harsh with his children on repeated occasions. Any further contact would have to be handled judiciously and it was of paramount importance to avoid further undue stress to the children.
13. The County Court made a further interim order for supervised access on 12 January 1993. This order was, in the main, complied with. A further order was made by the County Court on 16 March 1993 for weekly contact to take place in the presence of a mutual friend or in a public place. In a welfare report before the court at that time, the court welfare officer concluded that a break in contact would be unhelpful in counteracting the children’s negative views of their father and it was also noted that, if no contact order was made, then contact was unlikely to occur, whatever the children’s wishes. A psychiatric report dated 12 March 1993 suggested that there should be an increase in contact, unsupervised, and that there was no reason why overnight stays with the father could not be permitted. The report noted that the applicant had acknowledged hitting the children with a belt in the past, had provided a reason for it (his illness) and had apologised to the children for it. The applicant states that he represented himself in the hearings leading up to the June 1993 order.
14. On 15 June 1993, a contact order was made by the County Court including weekly access, overnight stays and making provision for Summer and Christmas holidays. This contact order has never been complied with. In July 1993, the applicant’s former wife left the family home with the children and moved, it subsequently transpired, to Scotland.
15. On 25 July 1993, the applicant brought to the attention of the County Court that the order of 15 June had not been complied with and applied for an order to compel his former wife to comply, failing which such penal action as the court deemed fit should be imposed. At the hearing of his application on 2 August 1993, the applicant appeared in person and his former wife was represented by counsel. The judge was told that the mother was very unhappy about contact, that the telephone was disconnected, that the house appeared to be occupied and that the door was unanswered. The applicant informed the judge that the mother might be suffering from depression. The applicant stated in his memorial that the County Court judge said that he had power to make an order requiring the mother to be brought before the court, but suggested instead that the matter should be dealt with by the High Court (Family Division) because of its greater powers. Therefore on the same day the applicant applied to the High Court ex parte.
16. The applicant’s application to the High Court requested that the contact order of 15 June be enforced. He stated that he effectively asked the judge to take such action as was necessary to enforce the order for contact, and that he did not make a specific application because he was following the suggestion of the County Court judge and did not know what to do. The applicant appeared in person. Mr Justice Singer invited the Official Solicitor to act as guardian ad litem for the children and, if accepted, granted leave to the Official Solicitor to submit documents in the case to such experts as he chose, and for those experts to carry out such examinations and investigations concerning the children as they thought appropriate.
17. The Official Solicitor accepted the invitation to act on or about 3 September 1993. He wrote to the mother at her last known address on 2, 9 and 14 September to arrange for an interview with the children. He received no response. On 13 September, he instructed enquiry agents in Edinburgh to seek to ascertain the location of the mother and children. They were unsuccessful.
18. Meanwhile, it appears that the applicant hired a private detective who traced the children to Edinburgh in August 1993. However, the mother moved them again to an unknown address.
19. The applicant applied ex parte to make the children wards of court and was represented at this stage by counsel. His application requested that the children be located immediately and that the mother be restrained from moving the children from their current address without the leave of the court and that arrangements be made for the children’s schooling. On 1 October 1993, the High Court issued an injunction prohibiting the children’s mother from removing them from jurisdiction without leave of the court and made the three children wards of court. It also directed the Tipstaff to seek and locate the children and to notify the applicant’s solicitors of their address. (The Tipstaff is a court official who executes orders of the court.)
The Tipstaff was given a description of the children and addresses at which they might be living. He passed the information to the police who found no trace of them at those addresses. The police placed the names of the children and their mother on the police national computer so that, if they came to the attention of the police, their location would be notified to the Tipstaff.
20. On 26 October 1993, the Official Solicitor wrote to the Department of Social Security Contributions Agency (DSS) seeking an address for the mother. On 1 November 1993, the DSS forwarded a letter to the mother. The mother did not respond.
21. As however no progress was apparently being made, the applicant, who was still receiving advice from solicitors, made a further application ex parte to the High Court for information to be provided by particular bodies. On 17 December 1993, the High Court ordered the DSS (including the Child Support Agency), Kingston and Richmond Health Services, National Health Service Records and the Open University to divulge to the court any information which it had on the location of the children.
22. On 13 January 1994, the Official Solicitor wrote again to the DSS, asking them to forward a letter to the mother. She responded on 30 January 1994, declining to disclose her address or to take up the invitation to arrange interviews.
23. An address was provided to the High Court by the Child Support Agency during January 1994. The applicant’s solicitors wrote to the court requesting disclosure of this address. On 25 January 1994, leave was given by the High Court to disclose the address of the applicant’s former wife to the applicant’s solicitor on an undertaking that the solicitor would not disclose the same to the applicant. The applicant stated that this never happened, as his former wife and the children had changed address again. The Government disagreed, saying that the address was supplied but that the applicant’s enquiry agents were unable to locate the children who had been moved again.
24. As the applicant felt that he was not making any progress, he applied to the High Court again, this time in person. On 21 February 1994, the High Court again ordered the relevant authorities to disclose any information which they had as to the current address or whereabouts of the children. The High Court also ordered that any address or information would not be disclosed to the applicant without leave of the court, but that the court would notify him as soon as possible after receipt of relevant information for the purpose of enabling him to seek further directions. The applicant was informed by the court on 24 March 1994 that they had new addresses.
25. The applicant stated that the District Judge refused to disclose the address, so he applied in person ex parte to the High Court. The application was adjourned on 28 March 1994 pending the Official Solicitor agreeing to act for the children in the wardship proceedings. At the adjourned hearing on 12 April 1994, the applicant again appeared in person. The High Court disclosed the address to the Official Solicitor, the children were joined as defendants to the proceedings and the matter was adjourned until 10 May 1994 to allow the Official Solicitor to report on any information which he had on the whereabouts and welfare of the children. On 15 April 1994, the Official Solicitor wrote to the mother. As issued on 26 April 1994, the terms of the High Court order indicated that the children’s address (received from the National Health Service Central Register) be disclosed to the Official Solicitor only.
26. On 10 May 1994, the applicant again appeared in person before the High Court. He was granted indirect contact with the children, by way of letters, cards and presents, to be monitored by the Official Solicitor. Details of the address of the children and the social workers involved in the case were ordered not to be disclosed to the applicant. The matter was adjourned by the High Court for further directions in four weeks.
27. On 7 June 1994, the High Court disclosed to the applicant, who appeared in person, that his children were resident in Scotland although, despite his request, he was not informed of their address so as not to unsettle his former wife. Also on this date the High Court ordered the Official Solicitor to identify for the applicant the appropriate court in which he should issue proceedings in Scotland in order to enforce the order for contact made on 15 June 1993. The High Court also agreed that, upon receiving notice that the father has issued proceedings, it would forward to the relevant court in Scotland the address of the children and the social worker instructed in the case, it being for that court to decide whether, and if so when, to disclose this information to the applicant. It then adjourned the proceedings.
28. On 17 June 1994, following the applicant’s application of 14 June 1994 to the High Court to forward a copy of the contact order of 15 June 1993, that order was registered in the Court of Session in Scotland. This permitted the order to be treated as an order made by a Scottish court, which would enjoy the available powers to enforce it but did not confer any jurisdiction on the Scottish courts to vary the order. They had power to act immediately for the welfare of the children (section 12 of the Family Law Act 1986) or to issue interim directions to secure their welfare pending the determination of the application to enforce the contact order (section 29(2) of the 1986 Act).
29. On or about 12/13 July 1994, the applicant commenced proceedings for the enforcement of the English court order. The applicant stated that he was told that he had to have a solicitor in order to commence proceedings, unless he applied to waive this which would have meant further delay. He therefore instructed solicitors. The Government have submitted that this is not the correct position. There was no requirement for a solicitor to act in these type of proceedings, save that an advocate or solicitor advocate had to sign the petition for enforcement or permission (though permission could be obtained from the court to proceed in the absence of a signature). An order was made on 13 July 1994 for the service of the proceedings on the mother, and forbidding the mother from removing the children from Scotland, pursuant to the applicant’s request.
30. On 20 July 1994, the mother filed her answers to the proceedings alleging that it was not in the children’s interests for there to be contact and that the children would be at risk. The mother applied for an order staying the enforcement proceedings pending the commencement by her of proceedings to vary the June 1993 contact order. The applicant states that the allegations made by the mother in her answers had all been adjudicated on already by the English courts.
31. The applicant applied again to the High Court in England, which remained the court of primary jurisdiction, for an order directing the mother to appear before the court to show cause why the contact order should not be amended to provide for further staying and visiting contact at Christmas 1994 and Easter 1995 and thereafter in place of that originally ordered; why a penal notice should not be attached to the order; and to provide for an early hearing of the matters. On 27 July 1994, the High Court refused the application as the applicant had engaged in proceedings in Scotland to enforce the contact order and it would be a duplication of those proceedings to consider the same matters. The High Court considered it appropriate for the courts of Scotland to adjudicate concerning enforcement of the contact order and/or to make their own order for such contact.
32. On 5 August 1994, the applicant lodged a motion asking the Scottish court to make an order enforcing the June 1993 order. This application was heard on 9 August 1994. Though it was not opposed, it was not proceeded with by the applicant. The applicant says that when it became clear that the judge was not going to grant enforcement of the order, as the judge did not consider the order made sense, the applicant’s counsel withdrew the application (without the applicant’s specific instructions) fearing that a refusal of the order would make it difficult for any other judge to disagree.
33. On 17 August 1994, the applicant lodged another motion asking the Scottish court to make an order enforcing the June 1993 order. On 19 August 1994, the matter was heard before a different judge and this time the application was defended. In the light of allegations of sexual abuse (which had been rejected following investigation in England) made by the applicant’s former wife, a new report was ordered to be prepared quam primum by an advocate. The order stated that a named advocate was to enquire into and report on all the circumstances of the children and the proposed arrangements for their care and upbringing, with particular reference to the question of access. The applicant appealed this order but leave to appeal was refused on 1 September 1994. The applicant stated that he had to appear in person as his lawyer would not act.
34. An advocate, Ms J., was appointed on 27 September 1994 to carry out enquiries and submit a report. The advocate visited the mother at home on 22 October 1994 and on 23 January 1995, and saw the children alone on 22 October 1994 and 31 January 1995. She spoke to the applicant on the telephone at the beginning of November and arranged to see him on 11 November 1994, when they spoke for three hours. On 21 November 1994, the advocate visited the doctor, Dr C., who had reported on the children in the family proceedings in England, seeing the videos of meetings and also the social worker, Mrs T., involved with those proceedings. She visited the teachers of the younger children and saw the guidance teacher of the oldest child on 5 December 1994. On 12 January 1995, she spoke to Mrs N., a Scottish social worker involved with the family from June 1994, when the mother’s doctor had made a referral for the family to be assessed as a matter of urgency by the Royal Hospital for Sick Children, Edinburgh, due to concerns that the children were showing disturbed behaviour. She noted that Mrs N. had talked to the social worker Mr P., who had told her that only PM. had told him that he did not want to see the applicant. The hospital team had not completed its assessment of the children due, inter alia, to the mother’s failure to respond to an invitation for a further interview.
The advocate also incorporated in her report the report of May/June 1994 prepared for the Official Solicitor by the social worker Mr P., who had carried out two interviews with the children, two interviews with the mother and interviews with the children’s head teacher and class teachers. The advocate submitted her report to the court on 31 January 1995.
35. The advocate’s report recounted the history of the proceedings and her own contact with the children, their mother and the applicant. It concluded:
“This is a complex case. One fact that I think is established is that these children were found by a number of professionals ... in the period 1992 and 1993 to be under stress. What was never established to anyone’s apparent satisfaction was the reason for that. It seems to me from my investigations ... that the stress is likely to have been brought on by their parents’ relationship and the way that impinged on them. I think it is also most probable given the children’s (particularly <A.>’s) accounts of being belted by the <applicant> that that behaviour was at least part of the cause of their stress. I accept the <applicant’s> point that the children’s stance may have been influenced a great deal even if only indirectly by the fact that they live with and now rely on <their mother>. I have to give the children some credit however particularly at their age for knowing their own minds. They seem to have quite clearly determined to communicate to me both by words and deed that they did not wish to see their father and that they were in <A.’s> words ‘better with their mother than they were with both of them’.
... The question is what is the best way forward for them ... . The <applicant> however accepts that at this stage some eighteen months since the order and since he last saw them that it would not be appropriate for him to have the access that was ordered in June 1993. It would not be in their interests for him simply to turn up and take them over the times ordered. If there were to be access it would have to be as he acknowledged built up over time starting with supervised access of some sort possibly with some sort of counselling.
... I also accept to some extent what he suggests to the effect that the <mother> has made it her business to ensure the children will not see him. What is difficult to get to the bottom of is her motive. I think I accept that she is motivated by what she believes is in the best interests of the children even if she may on occasions be misguided. I think she has not always told the truth ... . Effectively she did not want to do anything to make access work. She was only keen to take those steps which she had to show that it would not work.
... The <mother> has also been good at passing certain anxieties which could perhaps have been kept from ... the children whether deliberately or otherwise <Her suspicion that the applicant had killed the children’s guinea pig, that they were being tracked down by a private detective> ... She has thus instilled fear in the children which she has fuelled by changing their Christian names ... .
... I also accept that some of the evidence I heard and saw appeared to contradict the <mother’s> absolute view that the children were always terrified about seeing the <applicant>.
It may be that my only role in this Petition is to report to your Lordship on the circumstances of the children and I think I have done that in perhaps more detail than might be desired. If I am to give a recommendation with regard to disposal of this Petition it is clear as stated above that it would not be in the best interests of the children that it be immediately granted in the terms sought.
I am not clear if I am expected thereafter to give a view as to whether any access should be awarded in this or any other Process. If I were to be expected to do so it would clearly be the most difficult task. On the one side I accept that the <mother> has managed to manipulate the situation to a great extent and has deliberately flouted the English order and kept the children from their father for eighteen months. I also accept that it is generally thought to be preferable, other things being equal, for children to grow up seeing both parents ... . But if I were to have to give a view I think I would have to allow myself to be influenced by what I saw of these children and of their parents. The <applicant> appeared to have an obsessive personality and be particularly obsessed by his relationship with the <mother>. His attitude and intensity would be wearing on anyone including his children. Further I did gain the impression even at this stage that he was more interested in the <mother> than the children.
The <mother> was certainly pleasant in demeanour even if she was obviously much more determined and hardnosed than she appeared. She certainly had manipulated the situation effectively. But ultimately I think the only course which it would be in this case appropriate to take would be to listen to and observe the children. They not only told me and meant it ... that they did not wish to see their father. They also seemed ... to be genuinely much happier than they had been and to be very much more settled and confident than they ever have been. It would be unfortunate if this were to be disturbed by a further attempt to re-establish a relationship with their father ... particularly when it seems in all the circumstances that it would probably be unsuccessful. For these reasons ... I would humbly recommend ... with some hesitation, that the children be allowed to continue as they are and not be asked to go through further arranged visits with their father at this stage.”
36. Following extended discussion and correspondence between the applicant and his legal advisers, on 11 May 1995 the applicant applied, it appears with the assistance of a lawyer, for a hearing of his petition which the court on 16 May 1995 listed for June 1995. On 29 May 1995, the applicant applied for leave to amend the order sought by him - firstly, to insert a plea that the mother’s answers should be rejected and the orders sought by the applicant be granted in full and, secondly, for an order that the mother deliver the children into the care and control of the applicant between 9 am and 7 pm on one weekday forthwith, and on every second weekend thereafter between 9 am on Saturday until 7 pm on Sunday, and between 9 am and 7 pm on one weekend day every four weeks after the said initial access period. This arguably would have had the effect of increasing the contact from two out of four weekends to three out of four weekends.
37. On 14 June 1995, the mother applied for an order withdrawing her answers to the applicant’s petition, which was unopposed by the applicant and granted by the court on 16 June 1995.
38. On 22 June 1995, an order was made by the court allowing the applicant’s petition to be amended and an order for contact was made in the amended terms.
39. On 5 September 1995, the applicant commenced proceedings seeking to have the mother punished for contempt for failure to comply with the order of 22 June 1995. On 25 September 1995, the mother applied for the rescission of the order of 22 June 1995 on the basis that it was incorrect because it was at variance with the order of June 1993, lacked clarity and contained material errors.
40. The applicant returned to the High Court in England requesting that the original order of June 1993 be varied. This approach was taken on the basis that the Court of Session could not refuse to enforce a fresh order. However, given the change in circumstances, the applicant decided in December 1995 that the chances of getting any court to enforce the order of 15 June 1993 were remote, and he decided to withdraw the action for enforcement.
41. On 31 October 1995, the mother applied to the courts in England for an order removing proceedings to Scotland and, on 7 November 1995, the applicant applied again for a contact and/or residence order. The mother mistakenly lodged her application with the County Court that issued the original contact order, which on 24 November 1995 declined to hear the matter as it was now a High Court case. In a judgment handed down on 31 January 1996 by the High Court, Mr Justice Singer found it appropriate that the decisions as to contact be considered by the Scottish courts, and made an order under section 2(A)4 of the 1986 Act. This decision was taken with particular regard to the statement by the former wife’s Scottish lawyers that they could issue proceedings within a week in Scotland to determine custody and contact. The children were however to remain wards of court and it would be open to the applicant to apply to lift the stay on proceedings in England if the proceedings in Scotland were not pursued. The judge noted that the applicant claimed that he would be disadvantaged by the change of jurisdiction, as he was not conversant with Scottish procedures and as it would be more expensive for him to travel to Scotland for hearings and to consult with lawyers. However, he found that the mother and children were firmly settled in Scotland and that any difficulties posed by the mother in filing evidence or co-operating with interim orders would be more speedily dealt with if the proceedings were before the Scottish courts. He commented that to some extent the Scottish courts had already entered into the merits and that the reporter, who had been unclear as to her role, may have gone beyond her remit in assisting the court in its enforcement role when indicating that the June 1993 order was not one which she would subscribe to.
42. On 16 April 1996, the mother commenced proceedings in the Court of Session in which she sought an order that there should be no contact between the children and the applicant. The applicant sought an order for contact by a defence lodged on 29 April 1996. A hearing was set down in Scotland for November 1996.
43. On 19 July 1996, the order of 22 June 1995 was rescinded by the Scottish court on the joint application of the mother and the applicant.
44. On 23 September 1996, the applicant applied for interim contact, which application came before the court on 27 September 1996 but was not proceeded with by the applicant’s counsel. The hearing set for November 1996 was deferred by agreement of both parties, following the mother’s voluntary co-operation in seeing a psychologist, allowing the children to be seen by the psychologist and permitting the applicant to send the children cards and presents.
45. On 27 May 1997, an order was made by consent that the applicant should have contact as agreed between the applicant and his former wife and as consented to by the children. The applicant stated that as a result he has had indirect contact on a handful of occasions when either the applicant’s sister or sister-in-law were allowed to see the children and convey messages, an indirect means of getting letters, presents and pocket money to the children and, very recently, via e-mail. A contact meeting was arranged, for the first time, since June 1993, for the afternoon of February 2000.
46. In determining applications for contact, as with any question with respect to the upbringing of a child, the courts’ paramount consideration is the welfare of the child - section 1(1) of the Children Act 1989 (“the 1989 Act”) for England and Wales and sections 3(2) of the Law Reform (Parent and Child) Act 1986 and subsequently section 11(7) of the Children (Scotland) Act 1995 for Scotland.
The case-law recognises that the rights of the parents should only be interfered with when required by the welfare of the child (e.g. In re K.D. [1988] A.C. 806) and that it is almost always in the interests of the child that he or she should have contact with the non-custodial parent where the parents are separated (e.g. Re H [1992] 1 FLR 148, Re R [1993] 2 FLR 762, Re P (Contact: Supervision) [1996] 2 FLR 314).
47. The courts may issue orders relevant to altering the residence of the child or the general powers of enforcement available in respect of failure to comply with a court order. In particular, they can commit a parent to prison or sequester their assets.
48. The Court of Appeal has stated that the courts should not hesitate to use their powers of enforcement where it will overall promote the welfare of the child but that cases may arise, if infrequently, where a court may be compelled to conclude that in the existing circumstances an order for immediate direct contact should not be ordered where to do so would injure the child (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124).
49. The County Court has power pursuant to section 34 of the Family Law Act 1986 to authorise an officer of the court or police constable to take charge of a child and deliver him or her to a person to whom an order requires that the child be given up for, inter alia, purposes of contact.
50. The High Court may make a “seek and find” order, requiring that the Tipstaff find the relevant child and take him or her into custody for the purposes of delivering as directed by the court; or a “seek and locate” order requiring that the child be located only.
The Tipstaff is a court official who executes orders of the Court. He does not fulfil the role of an investigator or enquiry agent. It is not his function to set up independent lines of enquiry of his own. The Tipstaff acts on information provided to him by the parties in a case and will be assisted by the police, including a special department of New Scotland Yard which conducts investigations on his behalf.
51. The orders that the High Court makes depend on the nature of the application made to the court by a party in the case and on the evidence provided. The court does not determine what order to make independently of this.
52. The types of order include :
i) permitting publicity, through the media, about the child and the fact that there is a court order trying to locate the child;
ii) requiring any one who has relevant information about the child’s whereabouts, to disclose it to the Tipstaff, and the Court; and
iii) requesting the disclosure of addresses from Government departments.
53. The Official Solicitor is Official Solicitor only to the Supreme Court of England and Wales (section 90 of the Supreme Court Act 1981). He or she has no legal powers or role in Scotland nor any independent power to enforce any order, any such step having to be taken through the court and subject to the court’s control. The court can invite the Official Solicitor to act for children but cannot require him or her to do so. When the Official Solicitor is invited to act as guardian ad litem for children in proceedings he or she does not have any role independent of the proceedings, only being there to represent the children in those proceedings. He or she collects evidence and participates in the proceedings as considered appropriate. The Official Solicitor is not in the position of a court welfare officer and is not part of the social welfare authorities.
54. The Family Law Act 1986 (“the 1986 Act”) confers on the court dealing with the matrimonial affairs the primary jurisdiction over the granting of children orders except where it considers it would be “more appropriate” for matters to be determined in another part of the United Kingdom (sections 2A(4) and 13(6)).
55. Section 25 of the 1986 Act provides for the recognition of children orders made in any part of the United Kingdom. The procedure requires the court which made the order to send the relevant documents to the appropriate court in the other part of the United Kingdom, where the prescribed officer of the receiving court on receiving the certified order must forthwith cause the order to be registered. The new court in which the order is registered has the “same powers for the purpose of enforcing the order as it would have if it had itself made the order” (section 29). The decision of how to enforce the order must depend on what “will overall promote the welfare of the child” (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124). In balancing the competing interests of those involved, the courts retain jurisdiction to refuse an order if satisfied, for example, that enforcement would result in physical or moral injury to the child (Woodcock v. Woodcock 1990 SLT 848 at 853B).
NON_VIOLATED_ARTICLES: 6
8
9
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57837
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF PARDO v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo
TEXT: 8. Mr Pardo lives in Marseilles, where he used to run a business in his own name, "Les Techniques du Son", at the same time as being the de facto manager of the limited company Telec. This state of affairs continued until the two undertakings were compulsorily wound up, on 28 October 1981 for the latter and 27 January 1982 for the former.
9. On an application by the trustee representing the interests of Telec’s creditors (le syndic de la liquidation), the Marseilles Commercial Court decided on 27 June 1983 to apply to Mr Pardo Article 99 of Law no. 67-563 of 13 July 1967 (see paragraph 19 below) and ordered him to pay 5,000,000 francs as a contribution to the deficiency in the assets.
10. Mr Pardo, on 26 July 1983, and the trustee, on 12 October, filed appeals. On 7 February 1984 Mr Pardo lodged his final submissions.
11. On 26 October 1984 the judge responsible for preparing the case declared the investigation closed.
12. On 30 October 1984 the applicant requested the Aix-en-Provence Court of Appeal to revoke that decision and to stay the proceedings pending the conclusion of proceedings brought against him for criminal bankruptcy.
13. According to the applicant, at the hearing on 9 November 1984 - the record of which was produced before the Court by the Government - his lawyer confined his pleadings to the request for a stay of the proceedings.
14. The Court of Appeal gave judgment in open court on 15 January 1985 without having held another hearing.
It first rejected the applicant’s request on the ground that there was no link between the criminal proceedings and the legal issues raised by the application of the above-mentioned Article 99. It considered that, whatever the outcome of the criminal trial, it would not have any bearing on the question of the applicant’s liability qua manager of the company.
On the merits, the Court of Appeal noted, inter alia, like the Marseilles court, that the company had aimed to conquer the telecommunications market without having the financial resources to put this ambition into effect and that the applicant had devoted considerable energy to obtaining bank loans, and had unrealistically and imprudently adopted a course of action which had been bound to aggravate the situation and increase the deficit. It took the view that the applicant had been at fault in blindly pursuing a fanciful objective without the slightest hope of redressing the situation; it confirmed the decision requiring him to make good part of the deficit in the company’s assets. The Court of Appeal also ordered Mr Pardo’s brother and sister to pay respectively 1,000,000 and 1,500,000 francs as a contribution to the debts; it found that they too bore responsibility, whereas the judgment of 27 June 1983 had exonerated them.
15. In a letter of 24 January 1985 to the First President of the Court of Appeal Mr Pardo criticised this judgment. He explained that at the hearing on 9 November his lawyer "had requested that the proceedings be stayed, on which request ... the President of the 8th Chamber had agreed to deliberate, even envisaging the possibility that, if necessary, a day would subsequently be set aside to hear the case again and to take argument on the merits". On this account he asked the First President to accord him an interview.
The First President replied in a letter of 28 January 1985 that there had been no irregularity in the proceedings and that, in any event, the interview sought by Mr Pardo was not appropriate.
16. The applicant then obtained the testimony of lawyers who had been present at the hearing of 9 November.
His lawyer, Mr de Chesse, wrote to him on 25 March 1985 certifying that the President had stated that the case would be adjourned either to a much later date, if the request for a stay was granted, or to a date in the near future when it would be the only case on the list in view of the number of documents to be examined. According to the lawyer, the court had had before it only his two sets of final submissions, whereas the file of his pleadings had comprised thirteen folders 14cm thick. Mr Davin, the counsel for one of the other directors of the company, also implicated in the case, confirmed, in his reply dated 22 April 1985 to a letter which Mr de Chesse had sent to him on 25 March, a copy of which the applicant was, however, unable to produce, that the hearing in issue had indeed followed the course described by the applicant’s lawyer in his letter.
Another lawyer, Mr Roussel, who was not present when the cases were called but who had been due to plead for the applicant, confirmed by a letter of 29 April 1985 that on 9 November 1984, at about 9 a.m., his client had telephoned him to advise him against attending as the case was going to be adjourned.
The applicant twice asked to be sent documents relating to the hearing (record and list of cases), but to no avail.
17. Mr Pardo filed an appeal on points of law. He complained that the Court of Appeal had not answered his submissions on the merits of the case; in addition, he alleged a violation of the rights of the defence inasmuch as the hearing had dealt exclusively with the request for a stay of the proceedings.
18. The Commercial Division of the Court of Cassation dismissed the appeal on 15 July 1986. It found that, in the light of the statements made on the merits of the case and without disregarding the rights of the defence, the Court of Appeal had, in assessing the part of the company’s liabilities to be borne by the management, replied to the submissions put forward; the two grounds for appeal were therefore not founded.
19. Article 99 of Law no. 67-563 of 13 July 1967 on composition proceedings, compulsory winding-up, bankruptcy and fraudulent bankruptcy, which was in force at the material time, was worded as follows:
"Where the composition proceedings or the liquidation of the assets of a legal person reveal a deficiency in the assets, the court may order, at the request of the trustee, or even of its own motion, that the company’s debts be borne, in whole or in part, individually or jointly, by all the persons responsible for managing the company, de jure or de facto, whether openly or secretly, whether remunerated or not, or by some of them.
...
The persons concerned shall not incur liability if they can show that they displayed all the necessary vigour and vigilance in the management of the company’s affairs."
As amended by Law no. 85-98 of 25 January 1985, this provision, now Article 180, states as follows:
"Where the composition proceedings or the liquidation of the assets of a legal person reveal a deficiency in the assets, the court may, where negligent management has been a factor in that deficiency, order that the company’s debts be borne, in whole or in part, individually or jointly, by all the individuals responsible for managing the company, de jure or de facto, whether remunerated or not, or by some of them.
..."
20. The relevant provisions of the new Code of Civil Procedure in force at the material time are as follows:
"The purpose of an appeal is to have a first-instance judgment varied or set aside by the Court of Appeal."
"An appeal reopens in the Court of Appeal a case in which judgment has been given so that it can be retried on questions of fact and law."
"In order to substantiate on appeal the claims made at first instance, the parties may invoke new submissions, produce new documents or propose to adduce new evidence."
"The investigation (instruction) of the case is conducted by a member of the division to which the case has been allotted.
The judge in question has the responsibility of ensuring the proper conduct of the proceedings, in particular that submissions are exchanged and documents communicated in good time.
He may interview the lawyers and communicate to them any documents or information which he considers useful. He may also, if necessary, issue directives to them."
"As soon as the investigation is sufficiently advanced, the judge responsible for preparing the case shall refer the case to the court to be pleaded on a date fixed by the president or by himself, if he has been duly delegated to that effect.
The aforementioned judge shall declare the investigation closed. The date of the order closing the investigation shall be as near as possible to the date fixed for the hearing.
He shall remain responsible for the proceedings until the opening of the hearing."
"The closure of the investigation ... shall be decided by an order which shall not give reasons and against which no appeal shall lie. A copy of this order shall be communicated to the lawyers."
"Once the order closing the investigation has been made, no submission may be filed and no document may be produced at the hearing; any such submissions and documents shall be declared inadmissible by the judge responsible for preparing the case or by the court, of their own motion.
Applications to have the order closing the investigation revoked shall however be admissible ...
..."
"The order closing the investigation may be revoked only if a serious reason has come to light since it was adopted ...
...
The order closing the investigation may be revoked either by a reasoned order by the judge responsible for preparing the case or, once the hearing has opened, by decision of the court, on the judge’s or the court’s own motion or on application by a party."
"Except as otherwise provided, the parties are required to appoint lawyers as their compulsory legal representatives (avoués); such appointment also constitutes communication of an address for service."
"The final submissions shall be notified and the documents communicated by the lawyer (avoué) of each party to the lawyer of the other; where there is more than one plaintiff or defendant, such submissions and documents must be communicated to the lawyers of all the parties.
A copy of the final submissions shall be filed with the registry with proof of their notification."
"The investigation of the case shall be effected under the supervision of a member of the division to which it has been allotted, under the conditions set out in Articles 763 to 787 and in the provisions which follow."
"The appeal submissions must formulate expressly the parties’ claims and the grounds on which those claims are founded.
A party seeking to have the judgment overturned must set out expressly the grounds relied on and may not simply refer to its submissions at first instance.
A party which, without submitting new grounds, calls for the judgment to be upheld, is deemed to endorse the reasoning set out in the judgment."
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111374
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BATUZOV v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Andrej Batuzov, is a national of Latvia and Greece who was born in 1964 and lives in Riga. His application was lodged on 24 April 2007. He was represented before the Court by Mr A. Küster and Mr O.Wallasch, lawyers practising in Wiesbaden.
On 14 February 2000 the Koblenz District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had offered to instigate a third person to commit a murder of a public prosecutor and that he had agreed with a third person to commit a further murder. The warrant was further based on the strong suspicion that he had committed six offences under the Federal Weapons Act. The court found that the applicant was likely to abscond as he had to expect a severe sentence and had family ties in Eastern Europe.
On 17 February 2000 the applicant was arrested.
On 28 August 2000, 23 April 2001 and 25 July 2001 the Koblenz Court of Appeal ordered that the applicant’s detention on remand was to continue.
On 2 November 2000 the Koblenz District Court extended the facts of the warrant of arrest to the suspicion that the applicant had been dealing with drugs (500 kg of cannabis) to a considerable extent (Handeltreiben mit Betäubungsmitteln in nicht geringer Menge).
On 29 January 2001 the Koblenz Public Prosecutor’s Office charged the applicant with attempting to instigate a third person to commit a murder and with conspiracy to commit a murder (Verabredung eines Mordes). He was further accused of dealing with drugs to a considerable extent and with five offences under the Federal Narcotics Act. Moreover, he was charged with four offences under the Federal Weapons Act and three counts of human trafficking committed by a gang. Finally he was charged with five counts of forging official documents. The bill of indictment consisted of some 230 pages and named 73 witnesses living in five different countries.
On 25 May 2001 the Koblenz Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 August 2001.
On 13 January 2004 the Koblenz Regional Court adapted the warrant of arrest. It found that the applicant was likely to abscond as his son and partner had moved to Lithuania and as he had to expect a severe prison sentence.
On 1 September 2004, after the trial had taken place on 156 days, the Koblenz Public Prosecutor’s Office and the applicant came to an agreement. They agreed on a minimum sentence of eight years and six months´ imprisonment and that all other pending criminal proceedings against the applicant were to be terminated. Further, the Prosecutor’s Office agreed to apply for the conditional release of the applicant when he would have served two thirds of his sentence provided that the applicant’s conduct during the detention would be without reproach and that he would not commit any further offences. The agreement was noted in the minutes.
On the same day the Koblenz Regional Court sentenced the applicant to eight years and six months´ imprisonment for conspiracy to commit a murder, for drug trafficking with a considerable amount of drugs and for three offences under the Federal Weapons Act. The Koblenz Regional Court took into consideration the length of the criminal proceedings as well as the length of the applicant’s detention on remand as mitigating factors. The applicant was acquitted of the remaining offences he had been accused of. Simultaneously, the Koblenz Regional Court ordered that the applicant’s detention on remand was to continue.
On 8 September 2004 the applicant appealed on points of law against the Koblenz Regional Court’s judgment.
On 4 May 2005 the complete reasoning of the judgment was taken to the file. On 3 June 2005 the minutes were completed and taken to the file.
On 12 May 2005 the applicant appealed against the arrest warrant. On 14 June 2005 the Koblenz Regional Court dismissed the appeal against the arrest warrant. On 23 June 2005 the Koblenz Court of Appeal confirmed this decision. On 19 July 2005 the applicant filed a request for reconsideration (Gegenvorstellung). On 27 July 2005 the Koblenz Court of Appeal dismissed the request. On 6 July 2005 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decision of the Koblenz Court of Appeal, finding it inadmissible due to the applicant’s failure to submit all court decisions.
On 14 September 2005 the applicant applied again to the Koblenz Regional Court and requested to lift the warrant of arrest or to suspend its execution.
On 29 September 2005 the Koblenz Regional Court ordered that the applicant’s detention on remand was to continue.
On 21 November 2005 the Koblenz Court of Appeal dismissed the applicant’s appeal against this decision.
On 29 December 2005 the Federal Constitutional Court quashed the decision of the Koblenz Court of Appeal and remitted the case to that court. It stated that the detention on remand violated the applicant’s constitutional right to liberty as the courts had failed to adhere to the principle to hear cases more speedily in which the accused is detained (Beschleunigungsgebot in Haftsachen). The Federal Constitutional Court scrutinized the various stages of the applicant’s trial that had taken place so far. It had regard to the fixing of the hearing schedule by the Koblenz Regional Court and found that the conduct of one hearing per week only contradicted the case-law of the Koblenz Court of Appeal in similar voluminous cases which disclosed that two hearings per week had to be conducted. The Federal Constitutional Court found that the scheduling of the trial alone was likely to constitute a violation of the constitutional principle to have one’s case heard more speedily. The Federal Constitutional Court evaluated the further delays that had occurred after the pronouncement of the verdict as a whole. It noted, inter alia, that the Regional Court had taken the reasoning of its judgment to the case file only after 35 weeks had passed since its pronunciation. It attributed a further delay of six weeks to the judicial authorities as the applicant was notified of the judgment only after this period. The Federal Constitutional Court stated that the Koblenz Court of Appeal had therefore failed to strike a fair balance between the applicant’s right to liberty under Article 2 § 2 second sentence of the German Basic Law on the one hand and the state’s duty to prosecute crimes on the other hand. Referring to the case of Erdem v. Germany (no. 38321/97, ECHR 2001VII (extracts)) the Federal Constitutional Court argued that the more the detention on remand lasted the more reasoning it required. It stressed, inter alia, that the applicant’s detention on remand had lasted already more than two thirds of the sentence imposed on him and that the Koblenz Prosecutor’s Office had agreed to favour his release when 2/3 of the sentence had been executed. It further ordered the Koblenz Court of Appeal to reconsider the applicant’s appeal. Simultaneously it stressed that the established breaches of the principle to more speedily hear cases in which the accused is detained did not justify a further detention on remand.
On 3 January 2006 the Koblenz Court of Appeal quashed the decision of the Koblenz Regional Court dated 29 September 2005. The applicant was released.
On 17 July 2005 counsel filed the reasons for the applicant’s appeal. On 22 July 2005 the Regional Court sent the case file to the Koblenz Prosecutor’s Office. However, some parts of the case file had not been attached by mistake and were sent later on demand of the Public Prosecutor’s Office. On 4 August 2005 the Public Prosecutor received the missing parts of the case file. On 20 September 2005 the Koblenz Public Prosecutor finished his observations on the applicant’s appeal on points of law (Revisionsgegenerklärung). On 24 September 2005 the case file was sent to the Federal Public Prosecutor General. On 2 November 2005 the case file was sent to the Koblenz Regional Court in order to rectify errors in the minutes. The Koblenz Regional Court returned the case file on 11 November 2005.
On 24 April 2006 the Federal Court of Justice confirmed the judgment of the Koblenz Regional Court as to the conviction. Simultaneously, it reduced the cumulative sentence imposed on the applicant from eight years and six months to eight years and two months of imprisonment. The remainder of the applicant’s appeal was dismissed
The Federal Court of Justice found that the law enforcement authorities had violated Article 6 § 1 of the Convention by unreasonably delaying the criminal proceedings against the applicant. It referred in so far to the judgment of the Federal Constitutional Court dated 29 December 2005. The Federal Court of Justice also stressed that the main proceedings before the Regional Court had lasted very long. It noted that although the Regional Court had taken account of the length in its fixing of the sentence it could not have considered any delays which had occurred after the pronouncement of the verdict. In order to compensate for the delay in the proceedings, the Federal Court of Justice reduced each separate sentence imposed on the applicant for one month and the cumulative sentence for four months.
The applicant lodged a constitutional complaint against the judgment of the Federal Court of Justice. On 27 September 2006 the Federal Constitutional Court found that the constitutional complaint was inadmissible and refused to admit it for consideration. The Federal Constitutional Court found that the applicant had failed to challenge the length of the proceedings before the Federal Court of Justice in a sufficient manner.


ITEMID: 001-80910
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GUTU v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 6-1;Not necessary to examine Art. 6-3;Violation of Art. 8;Violation of Art. 13+5;Violation of Art. 13+8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant, Mrs Tatiana Guţu, is a Moldovan national who was born in 1952 and lives in the village of Cojuşna.
5. Her minor son M., who was twelve years old at the time of the events, was frequently suspected of committing petty thefts and was taken to the police station on numerous occasions. No criminal proceedings were ever instituted against him because of his age. On several occasions he complained about being beaten up by police officers R.D. and I.B. and his mother lodged criminal complaints against them. On 28 December 2001 the applicant complained to the Prosecutor's Office that on 4 December 2001 her son had been ill-treated by police officers R.D. and I.B., as a result of which he had sustained concussion and multiple bruises.
6. On Sunday 30 December 2001 at noon, police officer R.D. came to the applicant's house and demanded that her son accompany him to the police station because he was suspected of being involved in a theft from a neighbour, which had taken place on 29 December 2001. According to the Government, the police officer demanded that both the applicant and her son accompany him to the police station. The applicant refused to let her son go unless he was properly summonsed.
7. A quarter of an hour later the same police officer came to her house accompanied by police officer I.B. and two neighbours. Since the gate was locked, the police officers asked one neighbour to climb over and unlock it from the inside.
8. One of the police officers announced to the applicant that she was being taken to the police station on a charge of committing the administrative offence of disobeying the lawful orders of a police officer, provided for by Article 174 § 1 of the Code of Administrative Offences (“the CAO”).
9. The applicant was taken by the two police officers to the village police station. They did not let her change her clothes or slippers, although she did put on a coat.
10. On the way to the police station, according to statements of witnesses, as they appear in the domestic case file, the applicant was attacked by the neighbour who was the victim of the alleged theft and fell down during the altercation. The police officers intervened and handcuffed the applicant. The Government argued that the applicant had attacked her neighbour and that her fall was a result of the altercation.
11. When they arrived at the police station she was asked to sign a declaration written by one of the police officers, but she refused. Two witnesses, who came along with them, signed declarations written by the police officers, allegedly without reading them.
12. She was then taken by car to the town of Străşeni and placed in a cell at the local remand centre, where she was held from 8 p.m. on 30 December 2001 until 10 a.m. on 31 December 2001.
13. While in detention she was not given the opportunity to wash herself or to change her clothes. She was not provided with food or water or with a blanket. She was not questioned, informed about the reasons for her detention or provided with a lawyer.
14. On Monday 31 Decembe 2001 the applicant was taken to the Străşeni District Court for the hearing in respect of the alleged offence of disobeying the lawful orders of a police officer in accordance with Article 174 § 1 of the CAO.
15. According to the applicant, she was taken to the court wearing her slippers and her clothes, still covered in mud. During the hearing the applicant asked for a lawyer and a pro bono lawyer was provided to her.
16. At her lawyer's request the hearing was adjourned until 4 January 2002. On 4 January 2002, witnesses were heard by the judge.
17. In a judgment of 4 January 2002 the Stăşeni District Court found the applicant guilty of disobeying the lawful orders of the police officers and imposed a fine of 90 Moldovan Lei (MDL) (the equivalent of 7.6 euros (EUR) at the time). The Court found that on 30 December 2001 at noon two police officers had asked the applicant to come with her minor son to the police station in order to be questioned in connection with a theft in which her son was suspected of having been involved. By refusing to accompany the police officers, she had committed the offence provided for in Article 174 § 1 of the CAO.
18. On 11 January 2002 criminal proceedings were formally instituted in respect of the theft allegedly committed by the applicant's son.
19. On an unspecified date the applicant lodged an appeal on points of law with the Chişinău Regional Court against the judgment of 4 January 2002. She submitted, inter alia, that the actions of the police officers had been motivated by a desire for revenge following her complaint lodged with the Prosecutor's Office against them on 28 December 2001 in connection with the unauthorised search and the alleged beating of her son. She also submitted that the police officers' orders were unlawful because she had not been summonsed to appear at the police station; however, when the police officers had insisted that she follow them she had not shown any resistance and had obeyed them.
20. On 16 January 2002 the Chişinău Regional Court heard the applicant's appeal in her absence and dismissed it as being unfounded, without stating any reasons. It appears from the case file that the applicant was not summonsed to appear before the court and was not legally represented during the proceedings.
21. On 2 January and 25 October 2002 the applicant complained to the Prosecutor General's Office about the illegal actions of the two police officers. She argued, inter alia, that they had illegally entered the front garden of her house and that they had subjected her to inhuman and degrading treatment, and asked the Prosecutor General's Office to institute criminal proceedings against them.
22. On 25 November 2002 the Prosecutor's Office decided not to institute criminal proceedings. It found that since the applicant had been convicted by a final judgment of the offence of disobeying the lawful orders of police officers, the officers' actions could not be considered illegal.
23. Article 29 of the Constitution of the Republic of Moldova provides as follows:
“Inviolability of the home
(1) The home is inviolable. No one may enter or stay on the premises of a home without the owner's consent.
(2) The law shall allow for derogation from the provisions of paragraph (1) under the following circumstances:
(a) for executing an arrest warrant or a decision of a court of law;
(b) for forestalling an imminent danger threatening the life, physical integrity or property of a person;
(c) for preventing the spread of an epidemic disease.
(3) Searches and questioning at a person's home may be ordered and carried out only in accordance with the rule of law.
(4) Except for cases where an obvious offence has been committed, night searches are forbidden.”
24. The Code of Criminal Procedure, as in force at the material time, provided in Article 93 that after receiving a complaint about a criminal offence the investigating body could only request supplementary material or explanations but could not conduct any investigative measures until after criminal proceedings had been formally instituted. It had to decide within three days whether or not to institute criminal proceedings. In exceptional cases such a decision was to be taken within 15 days. The provision that a preliminary investigation could only be commenced after the formal institution of criminal proceedings was also contained in Articles 96 and 109.
Article 105 provided that a suspect was to be summonsed to appear before the investigating body by means of a summons handed to him, and the receipt containing the date of service had to be returned to the criminal investigator. The summons could also be effected by telephone or telegram. Article 129 provided that a suspect who failed to appear before the investigating body without good reason could be forcibly brought before the investigating body. Only suspects who were in hiding or did not have a permanent home address could be taken to the police without a summons.
25. The relevant provisions of the CAO, as in force at the material time, read:
“Non-compliance in bad faith with the lawful orders of a police officer or of an agent of the internal affairs authorities ... shall be punishable by a fine of up to MDL 180 or by administrative detention of up to fifteen days.
...
“Persons who ... disobey in bad faith the lawful orders of police officers... may be detained until the case is examined by a court... ...”
26. The Police Act of 18 December 1990, in so far as relevant, read at the material time as follows:
“The police have the right to:
(19) enter at any time of the day the premises of homes... front gardens ... and inspect them with a view to putting an end to criminal offences, pursuing persons suspected of having committed criminal offences, persons hiding from the investigating authorities and from courts, or persons who are seeking to avoid executing a criminal or administrative sentence or an order for forced detoxification treatment. [The police may also enter] if they have sufficient grounds to believe that an offence has been committed or is being committed on the premises, or in the event of natural disasters and in other circumstances which endanger the public order and the safety of persons. A prosecutor must be informed about all cases in which police officers have been forced to enter the premises of homes ... within 24 hours.”
27. The relevant provisions of Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigating authorities, prosecuting authorities and courts read as follows:
“(1) In accordance with the present law, individuals and legal entities are entitled to compensation for the non-pecuniary and pecuniary damage caused as a result of:
(a) illegal detention, illegal arrest, illegal indictment or illegal conviction;
(b) illegal searches carried out during the investigation phase or during trial, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the person's rights;
(c) illegal administrative arrests or orders to perform community service, illegal confiscation of property or illegal fines;
(d) the carrying out of unlawful investigative measures;
(e) the illegal seizure of accounting documents, other documents, money or stamps and the freezing of bank accounts.
(2) The damage caused shall be fully compensated, irrespective of the degree of fault of the criminal investigating authorities, prosecuting authorities and courts.
“A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:
(a) delivery of a judgment acquitting him/her;
(b) the dropping of charges or discontinuation of the investigation on the ground of rehabilitation;
(c) the adoption of a decision by which an administrative arrest is annulled on the grounds of rehabilitation;
(d) the adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly-settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly-settlement agreement shall be approved by the Government of the Republic of Moldova; ...”
VIOLATED_ARTICLES: 13
5
6
8
VIOLATED_PARAGRAPHS: 5-1
6-1


ITEMID: 001-81317
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TSOMARTOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Nikolay Valeryevich Tsomartov, is a Russian national who was born in 1975 and lives in Vladikavkaz, the Republic of North Ossetia-Alania. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a former serviceman of the Ministry of the Interior of the Republic of North Ossetia-Alania. He instituted civil proceedings against the Ministry of the Interior to recover the remuneration for his participation in military operations.
On 19 April 2002 the Leninskiy District Court of Vladikavkaz (“the District Court”) granted his claim. The court awarded the applicant 233,640 Russian roubles (RUR). The judgment was not appealed against and acquired legal force on 29 April 2002. On the same date the District Court issued a writ of execution.
On 5 March 2005 the judgment of 19 April 2002 was fully enforced.
By a decision of 11 July 2005 the District Court granted the applicant’s action for compensation of inflation losses sustained as a result of the delayed enforcement of the judgment of 19 April 2002. The court acknowledged that the judgment of 19 April 2002 had been enforced with a substantial delay and awarded the applicant RUR 91,814.51. No appeal was lodged against the decision and it entered into force on 22 July 2005.
On 7 December 2005 the applicant received the amounts awarded to him by the decision of 11 July 2005.


ITEMID: 001-61143
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CHOVANCIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. On 8 February 1977 affiliation proceedings were brought in respect of the applicant before the then Košice City Court.
5. On 30 November 1988 the Košice Regional Court quashed the first instance judgment delivered on 15 September 1987.
6. The Košice II District Court, to which the case fell to be examined, experienced difficulties in obtaining the evidence. This was mainly due to the fact that the person who was supposed to be the applicant’s father was a Belgian national and that he had refused to co-operate with the court.
7. On 22 September 1995 the Constitutional Court found, in proceedings under Article 130 (3) of the Constitution, that the Košice II District Court had violated the applicant’s constitutional right to have the case examined without undue delays.
8. On 16 January 1996 the Košice II District Court dismissed the action. On 6 May 1997 the Košice Regional Court quashed the judgment and sent the case back to the first instance court.
9. On 16 June 2000 the Košice II District Court delivered a new judgment by which it dismissed the action. On 17 July 2000 the applicant appealed.
10. On 16 August 2002 the Košice Regional Court overturned the first instance judgment in that it found that the defendant was the applicant’s father. As to the remainder of the action including the maintenance and the court fee, the Regional Court quashed the District Court’s judgment and sent the case back to the latter.
11. On 5 November 2002 the defendant filed an appeal on points of law.
The proceedings are pending.
12. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
13. Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated.
14. According to its case-law under the former Article 130 (3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 (2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
15. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in case that it founds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
16. According to an explanatory letter by the President of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. The letter further states that where the Constitutional Court earlier found a violation of Article 48 (2) of the Constitution, a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of the Constitutional Court. However, when deciding on such cases the Constitutional Court will, as a rule, take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48 (2) of the Constitution.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97739
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HOFMANN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Roland Hofmann, is a German national who lives in Rosenberg. He was represented before the Court by Mr D. Herrmann, a lawyer practising in Karlsruhe.
The applicant’s fiancée died in 2002 after having given birth to the couple’s second child.
The applicant’s and the deceased’s children claimed damages from the gynaecologist (“the respondent”) who had performed a caesarean section on the deceased prior to her death; the case was settled before the Stuttgart Court of Appeal.
The applicant also claimed damages from the respondent.
On 5 October 2005 the Ellwangen Regional Court dismissed the claim. It held that the applicant could not claim damages from the respondent pursuant to Section 844(2) of the Civil Code (see “Relevant domestic law”) because the deceased had not been obliged by law to provide maintenance to the applicant. Section 844(2) of the Civil Code could furthermore not be applied analogously to fill a lacuna in the law. The situation of partners living together out of wedlock, even if they raised their children together, was not comparable to that of spouses. Unlike spouses they were not obliged by law to provide maintenance to one another. The legislator had also been aware of calls for a widening of the application of Section 844(2) of the Civil Code to other forms of partnership but had repeatedly refused to do so.
On 5 January 2006 the Stuttgart Court of Appeal informed the parties of its intention to dismiss the applicant’s appeal for the reasons given by the Regional Court. On 7 February 2006 the Court of Appeal dismissed the appeal and noted that Section 844(2) of the Civil Code was not linked to the notion of family but to the existence of an obligation by law to provide maintenance.
On 1 July 2008 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication (no. 1 BvR 649/06).
Section 844(2) of the Civil Code provides that the person responsible for the death of a person must pay a third person damages by payment of an annuity for the presumed duration of the deceased’s life to the extent that the deceased would have been obliged to provide maintenance to the third person under the conditions that the deceased, at the time of the injury, was obliged or might become obliged by law to provide maintenance to the third person and if the third person has as a result of the death been deprived of his right to maintenance.
An obligation by law to provide maintenance exists between lineal relatives (Section 1601 of the Civil Code), spouses (Sections 1360 et seqq. of the Civil Code), former spouses following a divorce (Sections 1569 et seqq. of the Civil Code) and partners of registered same-sex partnerships (Section 5 of the Registered Partnership Act).