ITEMID: 001-122459
LANGUAGEISOCODE: ENG
RESPONDENT: AUT;ITA
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ABUBEKER v. AUSTRIA AND ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Guido Raimondi;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Mr Mohammed Abubeker, stateless, was born in 1967 and resides at present in Traiskirchen. He is represented by Mrs N. Lorenz, a lawyer practising in Vienna.
2. The Austrian Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs. The Italian Government were represented by their Agent, Ms. E. Spatafora, and their co-agent, Ms. P. Accardo.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant entered Italy on 3 August 2007, where his fingerprints were taken firstly at the Questura in Crotone. It was noted that the applicant was born in Eritrea in 1967 and that he had entered the European Union illegally. He was then transferred to the “S. Anna” Reception Centre at Isola di Capo Rizzuto, where his fingerprints were taken again on 29 August 2007 and where he was registered as an asylum seeker.
5. On 14 September 2007 the Territorial Commission for the Recognition of International Protection decided that the applicant was not entitled to the status of a recognised refugee, but that he met the requirements to obtain protection on humanitarian grounds. Thereupon, the applicant was granted leave to remain on humanitarian grounds and a travel document, both valid until 13 September 2008. According to the records of the authorities, the applicant left the reception centre of his own volition after he had collected his papers.
6. It seems that the applicant then left for Germany. On 8 February 2008 Italy was requested by Germany to take the applicant back under Article 16 § 1 c of the Council Regulation (EC) No 343/2003 (“the Dublin II Regulation”, hereinafter “the Dublin Regulation”). Italy accepted jurisdiction, and on 22 April 2008 the applicant was transferred to Italy.
7. From 22 May 2008 until 17 May 2009, the applicant was an inmate in a facility of the “Sistema di Protezione per Richiedenti Asilo e Rifugiati” (Protection System for Asylum Seekers and Refugees, hereinafter “SPRAR”), which he left voluntarily. According to the files, the applicant was staying on 1 August 2008 at a residence belonging to the Jesuit Refugee Service in Rome.
8. On 7 July 2009 the Questura in Rome granted the applicant leave to remain on the basis of subsidiary protection, which was valid until 7 July 2012.
9. In November 2010 the applicant came to Austria and was taken into detention with a view to expulsion. On 19 February 2011 he lodged an asylum claim in Austria. The applicant stated that he did not want to return to Italy, and that he would have been forced to sleep in the streets there and would not have had any access to financial subsistence, housing or food. He had had leave to remain in Italy on humanitarian grounds, but had returned his ID card to the authorities because he wanted full asylum status. He explained that he was suffering from diabetes, asthma and a dust mite allergy, and had psychological problems.
10. On 9 April 2011 the Federal Asylum Office (Bundesasylamt) rejected the applicant’s asylum request and declared that Italy had jurisdiction regarding the asylum proceedings pursuant to Article 16 § 2 of the Dublin Regulation. It also ordered that the applicant be transferred to Italy. The Federal Asylum Office dismissed the applicant’s claims that he had severe medical and psychological problems. Referring to country reports on Italy it concluded that the applicant would have access to financial subsistence in Italy and that being sent there would not breach Article 3 of the Convention.
11. The applicant lodged an appeal against that decision. On 2 May 2011 the Asylum Court (Asylgerichtshof) awarded suspensive effect to the applicant’s appeal.
12. On 12 May 2011 the Asylum Court quashed the decision of the Federal Asylum Office and ordered it to complement the country information on Italy in fresh proceedings, to make enquiries about what the applicant’s residential status in Italy would be if he were returned there, and to establish further facts about the applicant’s health.
13. Thereupon, on 20 June 2011, the Federal Asylum Office contacted the Dublin Unit in Italy and asked for information on what the applicant’s residence status would be in Italy and if he would have access to the medication Metamorphin in Italy. It repeated and detailed its requests for information on 6 July, on 21 July and on 1 August 2011. The Dublin Unit Italy responded to the Austrian authorities that asylum seekers and persons with subsidiary protection had access to subsistence and health support.
14. On 20 October 2011 the Federal Asylum Office again rejected the applicant’s asylum request pursuant to the Dublin Regulation and ordered the applicant’s removal to Italy. Referring to country reports on Italy from 2009, 2010 and 2011, it found that the “SPRAR” offered lodgings and other support for approximately 3,000 asylum seekers for the duration of six months. There were also 2,000 places in centres in which asylum seekers were supposed to stay for a maximum of six months, although there were exceptions for vulnerable persons. Outside those structures, private initiatives and municipalities organised sleeping places and accommodation for asylum seekers. The reports also stated that asylum seekers had access to subsistence and medical support, at least at the preliminary examination stage. However, only after registration of an asylum request would an asylum seeker have a right to accommodation and subsistence. A “Dublin returner” was requested to present himself before the Questura for his or her legal status to be identified. Asylum seekers had to initially register with a health unit, after which they had access to medical treatment in public hospitals. However, asylum seekers without an address had difficulty in registering for medical treatment and subsistence. The Federal Asylum Office also referred to the fact that the applicant had undergone a psychiatric examination in May 2011 that showed an “adjustment disorder” (Anpassungsstörung). Therapeutic consultations had been recommended. However, the applicant had not taken up the psychiatric treatment offered. It could not be shown that the applicant’s mental health would worsen. In any event, the applicant would have access to subsistence if returned.
15. The applicant appealed against that decision. On 14 November 2011 the Asylum Court again awarded suspensive effect to the applicant’s appeal.
16. On 23 November 2011 the Federal Asylum Office sent an email to the association Arciconfraternita San Trifone informing them of the rejection of the applicant’s asylum request in the first instance and of the pending guardianship proceedings (see below, paragraphs 22-25) in view of a possible removal of the applicant to Italy, in which case the association might wish to put in place “appropriate safeguards”. It also informed the Dublin Unit Italy of the pending guardianship proceedings.
17. On 28 November 2011 the Asylum Court dismissed the applicant’s appeal as unfounded. It referred to the Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection, and of the content of the protection granted, to the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and to the Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, which were all also applicable in respect of Italy, and concluded that Italy had an unobjectionable asylum practice and offered access to accommodation, subsistence and medical treatment for asylum seekers.
18. With regard to the applicant’s representative’s argument, claiming that the deadline for Italy to resume jurisdiction for the applicant’s asylum proceedings had expired, it found that with the decision of suspensive effect taken on 14 November 2011 the deadline had not expired, and that Italy had jurisdiction regarding the applicant’s asylum claim.
19. The Asylum Court further stated that, in contrast to the situation in Greece, there was no recommendation from the United Nations High Commissioner for Refugees ( “the UNHCR”) to refrain from removals to Italy, and that the overall reports did not show a comparable situation for asylum seekers with the one in Greece. With regard to the applicant’s physical illnesses, it stated that he had access to the Italian health system. It stated that it had ordered the Federal Asylum Office to contact the Italian authorities in the event of a transfer, to ensure that the applicant was welcomed in Italy and would receive the necessary medical help.
20. With regard to the critical report of the association Pro Asyl [a German NGO] from 2011 about the situation of refugees in Italy, it alleged that the authors of that report worked in the field of counselling of refugees and had an agenda which favoured a critical approach to Italy as a host state. Furthermore, the situation of boat refugees in the south of Italy was not comparable to that of Dublin-returners. With regard to the applicant’s mental health, the Asylum Court stated again that he had access to treatment in Italy, referred to the Court’s case-law in that matter, and concluded that removal would not be in breach of Article 3.
21. The Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s request for legal aid on 2 March 2012, and refused to deal with his complaint due to lack of prospects of success.
22. On 25 October 2011 the applicant’s representative applied to the Baden District Court (Bezirksgericht Baden) for guardianship proceedings to be initiated in respect of the applicant. He claimed that he had become aware of a severe aggravation of the applicant’s mental health status during legal counselling, and that there was a risk that the applicant would not be able to pursue his asylum proceedings in his own best interests.
23. On 1 December 2011, and after an initial hearing on 21 November 2011, the Baden District Court appointed a provisional guardian for the applicant for the course of the guardianship proceedings and for representation in proceedings before authorities and courts, with particular regard to asylum proceedings. On the same day, the Baden District Court commissioned a psychiatric report on the applicant, to be submitted to the court within eight weeks.
24. On 22 December 2011 the applicant’s representative supplied a power of attorney in which the applicant’s guardian entrusted him to represent the applicant in the proceedings before the European Court of Human Rights.
25. On 20 March 2012 the Baden District Court appointed a guardian for the applicant’s representation before authorities and courts. It based its decision on an expert opinion that diagnosed the applicant with a severe psychological impairment whose clinical status display was comparable to florid paranoid schizophrenia. The applicant suffered from a bizarre delusion that absorbed his feeling and thinking. He was very irritable and completely occupied by a delusion that he was being pursued by Satanists suffering from Aids. At least in the past the applicant had linked his psychotic status with hallucinations of being tortured and manipulated by spirits. The applicant was further the victim of hallucinations of a lioness as Satan.
26. On 14 May 2012 the Asylum Court, at the applicant’s request, ordered the Federal Asylum Office to reopen the applicant’s proceedings. It referred at length to the psychiatric expert opinion obtained in the guardianship proceedings, which had further established that the applicant’s psychotic symptoms had started in summer or autumn 2011 and that the applicant claimed to have been suffering from psychological problems since 1998. The expert had also stated that as regards the applicant’s fitness to be questioned his answers would be coloured by his psychotic status and that thus, he was not fit to be questioned, especially in the context of guardianship proceedings, asylum proceedings and his personal situation. Overall, the guardianship proceedings had shown that the applicant was not able to take care of his own affairs without the risk of suffering a disadvantage.
27. The Asylum Court concluded that in the former proceedings it had wrongly acted on the assumption that the applicant was legally capable (prozeßfähig) to follow the proceedings adequately. The Asylum Court, again in the former proceedings, would have needed to either appoint a guardian for the applicant or to stay the proceedings until the guardianship proceedings before the District Court had been concluded. It was not doubted that the applicant’s psychological disorder was already manifest at the time of the Asylum Court’s decision of 28 November 2011, which was why the proceedings had had to be reopened. It stated further that because of the necessary further investigations and further interviews, the Asylum Court itself could not rule on the asylum request, possible subsidiary protection and a possible expulsion order. Therefore, the proceedings had to be continued by the Federal Asylum Office.
28. The reopened asylum proceedings in Austria are still pending.
29. On 9 December 2011 the Court applied the interim measure under Rule 39 and requested the Austrian Government to stay the applicant’s expulsion to Italy until further notice.
30. The relevant European and Italian law, instruments, principles and practice have only recently been exhaustively summarised, in Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013. In the following, only information that is particularly relevant for the present case will be repeated.
31. Under the Regulation, the member States must determine, on the basis of a hierarchy of objective criteria (Articles 5 to 14), which member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single member State.
32. Where it is established that an asylum seeker has irregularly crossed the border into a member State, having come from a third country, the member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place.
33. Where the criteria in the regulation indicate that another member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum (Article 17).
34. By way of derogation from the general rule, each member State may examine an application for asylum lodged with it by a third-country national, even if such an examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the member State responsible and assumes the obligations associated with that responsibility.
35. Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. When rendering a decision rejecting an application, the authority shall specify which State has jurisdiction in the matter.
36. Section 12 establishes de facto protection against deportation (faktischer Abschiebeschutz) for aliens who have lodged an application for asylum. However, section 12a provides that a person whose asylum application has been rejected pursuant to lack of jurisdiction under the Dublin Regulation (section 5 of the Asylum Act) is not entitled to such de-facto protection against deportation in the event that he or she lodges a second asylum application.
37. Again, reference is taken to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41.
38. In particular it is noted (see ibid., § 36) that the Territorial Commission for the Recognition of International Protection can:
- grant asylum by recognising the petitioner as a refugee within the meaning of the 1951 Geneva Convention relating to the Status of Refugees;
- not recognise the petitioner as a refugee but grant subsidiary protection under the terms of Article 15c of the Council Directive 2004/83/EC of 29 April 2004, on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”) as implemented by the Legislative Decree (decreto legislativo) no. 251/2007;
- not grant asylum or subsidiary protection but grant leave to remain for compelling humanitarian reasons under the terms of Law Decree (decreto legge) nos. 286/1998 and 25/2008; or
- not grant the petitioner any form of protection.
39. A person granted subsidiary protection will be given leave to remain with a validity of three years, which can be renewed by the Territorial Commission that granted it. This leave can further be converted into a residence permit for the purposes of work in Italy, provided this is requested before the expiry of the validity of the leave to remain, and provided the person concerned holds an identity document. Leave to remain granted for subsidiary protection entitles the person concerned, inter alia, to an aliens’ travel document, to work, to family reunion and to benefit from the general schemes for social assistance, health care, social housing and education under Italian domestic law.
40. A person granted leave to remain for compelling humanitarian reasons will be provided with a residence permit with a validity of one year which can be converted into a residence permit for the purposes of work in Italy, provided the person concerned holds a passport. Leave to remain granted on humanitarian grounds entitles the person concerned to work, to health care and, if he or she has no passport, to an aliens’ travel document (see ibid., §§ 38-39).
41. The reception scheme and the reception conditions in Italy are summarised again in Mohammed Hussein, cited above, §§ 42-50.


ITEMID: 001-96020
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZAUNEGGER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8;Non-pecuniary damage - finding of violation sufficient
JUDGES: Bertram Schmitt;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 7. The applicant was born in 1964 and lives in Pulheim.
8. The applicant is the father of a daughter born out of wedlock in 1995. The applicant and the mother of the child separated in August 1998. Their relationship had lasted five years. Until January 2001, the daughter lived with the applicant, whereas the mother had moved to another flat which was located in the same building. As the parents did not make a joint custody declaration (gemeinsame Sorgerechtserklärung), the mother obtained sole custody (alleinige Personensorge) pursuant to Article 1626a § 2 of the German Civil Code (Bürgerliches Gesetzbuch, see Relevant domestic law and practice below).
9. In January 2001, the child moved to the mother’s flat. Subsequently, the parents started to argue about the applicant’s contact with the child. In June 2001 they reached an agreement with the assistance of the Cologne-Nippes Youth Welfare Office (Jugendamt Köln-Nippes), according to which the applicant would have contact with the child every Wednesday afternoon until Thursday morning, every Sunday from 10 a.m. to Monday morning and half of each holiday, amounting in total to approximately four months per year. In 2001, the applicant applied for a joint custody order, as the mother was unwilling to agree on a joint custody declaration, although otherwise both parents were cooperative and on good terms.
10. On 18 June 2003, the Cologne District Court (Amtsgericht Köln) dismissed the applicant’s application. It found that there was no basis for a joint custody order. Under German law, joint custody for parents of children born out of wedlock could only be obtained through a joint declaration, marriage or a court order under Article 1672 § 1 of the Civil Code, the latter requiring the consent of the other parent. The Cologne District Court considered Article 1626a of the Civil Code to be constitutional and referred to a leading judgment of the Federal Constitutional Court (Bundesverfassungsgericht) of 29 January 2003 (see §§ 18-21, below). Having regard to the fact that the pertinent legal provisions did not allow for a different decision, the District Court did not consider it necessary to hear the concerned parties in person.
11. The applicant appealed and on 2 October 2003 the Cologne Court of Appeal (Oberlandesgericht Köln) dismissed the appeal. It reasoned that, as the applicant and the mother were unmarried, the applicant’s participation in the exercise of custody was only possible in accordance with Article 1626a of the Civil Code. The applicant and the mother had, however, not submitted the required joint custody declaration. In its judgment of 29 January 2003, the Federal Constitutional Court had found that Article 1626a of the Civil Code was constitutional with regard to the situation of parents of children born out of wedlock who had separated after 1 July 1998. The Cologne Court of Appeal noted that the applicant and the mother of the child had separated in August 1998. Thus, they had had a period of one and a half months before they separated in which they could have made a joint custody declaration. The Cologne Court of Appeal further noted that the new legislation, which had entered into force on 1 July 1998, had received public attention for a considerable period. Unmarried parents might have been expected therefore to have shown an interest in the matter and to have noticed the new legislation.
12. On 15 December 2003 the Federal Constitutional Court, referring to the pertinent provisions of its Rules of Procedure, declined to consider the applicant’s constitutional complaint, without giving further reasons.
13. The statutory provisions on custody and contact are to be found in the German Civil Code (the “Civil Code”). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child.
14. As regards children born out of wedlock, custody was pursuant to the former Article 1705 of the Civil Code automatically obtained by the mother. That provision was however declared unconstitutional by the Federal Constitutional Court in 1996. On 1 July 1998, the amended Law on Family Matters of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette 1997, p. 2942), entered into force to implement the Federal Constitutional Court’s judgment of 1996. The relevant law in the Civil Code was changed as follows: under Article 1626a § 1, the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect (joint custody declaration) or if they marry. Otherwise Article 1626a § 2 provides that the mother obtains sole custody.
15. If the parents have not merely temporarily separated and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that the family court may transfer sole custody to the father if he lodges the relevant application with the consent of the mother. The application is to be granted if the transfer serves the child’s interest. Article 1672 § 2 of the Civil Code provides that in the case of a transfer of the right to custody under Article 1672 § 1 of the Civil Code, the family court may subsequently order joint custody on the application of one parent with the consent of the other parent unless it would be to the detriment of the child. The same applies if the transfer of custody under Article 1672 § 1 of the Civil Code is later annulled.
By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child’s birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child’s best interest pursuant to Article 1671 of the Civil Code.
16. Under Article 1666 of the Civil Code, the family court may order the necessary protective measures if the child’s physical, psychological or mental well-being is threatened by negligence and if the parents are unwilling to take those measures themselves. Measures which result in the separation of the child from one parent are admissible only if the child would be at risk otherwise (Article 1666a of the Civil Code).
17. On 29 January 2003, the Federal Constitutional Court found that Article 1626a of the Civil Code was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in 1996 but who had separated before the amended Law on Family Matters entered into force on 1 July 1998 (that is, those who were unable to make a joint custody declaration before 1 July 1998). In order to resolve the above-mentioned constitutional flaws, the German legislator introduced Article 224 (2) (a) of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch), on 31 December 2003, according to which a court may substitute the mother’s consent to joint custody if an unmarried couple have a child born out of wedlock, have lived together with the child and were separated before 1 July 1998, provided that joint custody would serve the best interests of the child (Kindeswohl).
18. In its judgment of 29 January 2003, the Federal Constitutional Court also held that Article 1626a § 2 of the Civil Code, apart from the lack of a transition period, did not breach the right to respect for the family life of fathers whose children were born out of wedlock. Parents who were married had obliged themselves on marriage to take responsibility for each other and their children. In contrast to this, the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other. There was insufficient evidence that a father of a child born out of wedlock would want to bear joint responsibility as a general rule. The child’s well-being therefore demanded that the child had a person at birth who could act for it in a legally binding way. In view of the very different life conditions into which those children were born, generally it was justifiable to grant sole custody to the mother, and not to the father or to both parents. This legislation could also not be objected to from a constitutional point of view because the legislature had given both parents of children born out of wedlock the possibility of obtaining custody through a joint declaration.
19. The Federal Constitutional Court found that the legislator could legitimately assume that joint custody which was exercised against the will of one parent would have more disadvantages than advantages for a child born out of wedlock. Joint custody required a minimum of agreement between the parents. If the parents were unable or unwilling to cooperate, joint custody might run counter to the child’s well-being. The legislator assumed that the will to exercise joint custody which parents explicitly expressed upon marriage also showed their will to cooperate. Unmarried parents could express this will to cooperate through a joint custody declaration. The father’s right to custody indeed depended on the mother’s willingness to exercise joint custody, but the mother in turn could not demand joint custody without the father’s consent. The parents could thus only exercise joint custody if they both wanted to. That limitation on the father’s right to respect for his family life was not unjustified, given that the joint custody exercised by a married couple was based on their marriage. The applicable law gave unmarried couples the possibility of exercising joint custody, in particular, if they lived together with the child and not after the couple had separated. The legislator could legitimately assume that, if the parents lived together but the mother refused to make a joint custody declaration, the case was an exceptional one in which the mother had serious reasons for the refusal which were based on the child’s interest. Given this assumption, the applicable law did not infringe the father’s right to respect for his family life by not providing for a judicial review. In the event of such serious reasons it could not be expected that the courts would consider joint custody to be in the child’s best interest.
20. In view of the fact that this legal structure had only recently been established, it had not been possible to ascertain whether there was a substantial number of similar cases where joint custody was in dispute or crucially, to reach conclusions as to why this should be the case.
21. The Federal Constitutional Court stated that the legislator was obliged to keep developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in the face of reality. If this proved not to be the case, the legislator was obliged to revise the legislation and to provide fathers with the adequate possibility of obtaining custody rights.
22. A survey on comparative law taking into account the national laws of a selection of Member States of the Council of Europe shows that basically all Member States included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock. The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the parents’ agreement to exercise joint authority.
23. However, the solutions in the Member States vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect.
24. In only a limited number of countries do the statutory regulations explicitly address this issue. In a few countries, such as Austria, Norway and Serbia, the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non-consenting parent has a right of veto. By contrast, the laws in Hungary, Ireland and Monaco appear to provide for a joint exercise of parental authority even without the parents’ consent.
25. In some Member States such as the Czech Republic and Luxembourg, while the law itself is not clear on the subject, the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents, whereas for example the Dutch Supreme Court has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees. A similar approach seems to be followed in Spain.
26. With the exception of the few countries where a right of veto of one parent is explicitly stipulated in national law, the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of one of the parents bearing in mind the best interests of the child. All Member States emphasise the importance of the child’s best interest in decisions regarding the attribution of custody. In determining the child’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child, as regards, inter alia, the demonstrable interest in and commitment to the child by the respective parent.
27. In summary, and as also pointed out by the Government, the survey confirms that while different approaches exist in the Member States, the majority provide for paternal participation in custody if the parents were not married to each other, either irrespective of the mother’s will or at least by court order following an evaluation of the child’s interests.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-5034
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: MURDOCK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen, born in 1995 and currently serving a life sentence in Maghaberry Prison, Northern Ireland.
A.
The applicant was convicted in a jury trial for a murder committed on 6 October 1993 and sentenced to life imprisonment. The murder was not connected with the conflict in Northern Ireland.
Following the Good Friday Peace Agreement, which was part of the ongoing peace process in Northern Ireland, the Government passed the Northern Ireland (Sentences) Act 1998, which includes provisions permitting the early release on licence of eligible prisoners convicted of scheduled offences (those offences defined in emergency legislation enacted in response to terrorism).
B. Relevant domestic law and practice
Pursuant to the Northern Ireland (Sentences) Act 1998, a prisoner who has committed scheduled offences (offences tried under emergency legislation relating to terrorism), is no longer the supporter of an organisation concerned in terrorism, on release would not be likely to support such an organisation or become involved in acts of terrorism and would not be a danger to the public, may apply to Sentence Review Commissioners, for a declaration that he is eligible for release (section 3). Where life prisoners are concerned, the Commissioners, when granting a declaration must specify a day which they believe marks the completion of about two thirds of the period which he would have been likely to spend in prison, which date is to be taken as the date of release, with certain exceptions (section 6).


ITEMID: 001-102846
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF MILOSEVIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
JUDGES: András Sajó;Kristina Pardalos
TEXT: 4. The applicant was born in 1956 and lives in Niš.
5. Following the applicant's arrest in 1999 and detention in 2000, there were two sets of criminal proceedings brought against him. By 17 February 2004 the applicant was convicted for the crimes charged with.
6. On 24 November 2005, in view of all applicant's convictions and sentences, the competent domestic court imposed a single sentence (jedinstvena kazna zatvora) against the applicant. The applicant did not appeal against this judgment.
7. It would appear that the applicant served incarceration alternating between Požarevac-Zabela Correctional Institution and Niš Penitentiary.
8. The applicant's letters to the District Courts in Kraljevo and Šabac, the Supreme Court, the Public Prosecutor's Office and the Serbian Ministry of Justice, of 4 March 2004, 15 March 2004, 31 March 2004, 13 April 2004, 7 October 2004, 3 December 2004, 10 September 2005, 26 September 2005 and 25 October 2005, all bore prison stamps dated 4 March 2004 (24-2879/2004), 15 March 2004 (24-3211/2004), 1 April 2004 (24-4105/2004), 13 April 2004 (24-4557/2004), 7 October 2004 (1-713-3064/2004), 3 December 2004 (713-12568/2004), 10 September 2005 (1-713-1965/2005), 26 September 2005 (1-071-2172/2005) and 25 October 2005 (1-071-2419/2005), respectively.
9. The Supreme Court's letter of 25 March 2004, addressed to the applicant, bore the prison stamp of 31 March 2004 and registration number 1-713-4038/2004. Furthermore, the decisions of the District Court in Šabac of 25 November 2004, the Supreme Court of 8 February 2005, as well as the District Court in Kraljevo of 23 August 2005 and 24 November 2005, also bore the prison stamps dated 1 December 2004 (713-12391/2004), 18 April 2005 (713-4624/2005), 7 September 2005 (713-9801/2005) and 5 December 2005 (713-13783/2005), respectively.
10. The applicant's letter of 26 April 2004, sent to the Court, bore the prison stamp dated 26 April 2004, as well as registration number 24-5086/2004.
11. In its own letter of 22 December 2004, inter alia, the Court's Registry therefore informed the applicant in Serbian of the said stamp, assuming that he may not have been aware of it.
12. In his subsequent letter of 18 January 2005, the applicant acknowledged that his letter addressed to the Court had born the prison stamp and stated that he would like to additionally complain about the State's ongoing interference with his correspondence. This letter did not bear any prison stamp or registration number.
13. In his letter of 24 November 2005, the applicant informed the Court that, as of 1 November 2005, prisoners were allegedly allowed to send their letters without leaving them opened to be stamped by the prison authorities.
14. The relevant domestic law is set out in the Court's judgment of Stojanović v. Serbia (no. 34425/04, §§ 37-43 and 48-49, 19 May 2009).
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1