ITEMID: 001-71942
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HARAZIN v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1979 and lives in Tychy.
5. On 13 July 2000 the applicant was arrested by the police on suspicion of having committed burglary.
6. On 15 July 2000 the Tychy District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody for a period of three months in view of the strong suspicion that he had committed five counts of burglary. It considered that there was a reasonable risk that the applicant would tamper with evidence, given the fact that he had only partly confessed. Further, the court referred to the risk that the applicant might obstruct the proper conduct of the proceedings by going into hiding. In that regard, the court relied on evidence from one of the applicant’s co-suspects, who had stated that, shortly before having been arrested, the applicant had tried to leave for Germany in order to evade serving a sentence of imprisonment which had been previously imposed on him. Finally, the court had regard to the severity of the anticipated penalty.
7. Subsequently, the applicant was charged with 8 counts of burglary. He confessed to 2 counts.
8. On 30 January 2001 the District Prosecutor terminated the investigation. On the same day he filed a bill of indictment with the Tychy District Court. The applicant had been indicted on 8 charges of burglary and one charge of assault. There were 6 other defendants in the case. The prosecution asked the court to hear evidence from 42 witnesses.
9. From 1 June 2001 to 19 December 2002 the trial court listed 10 hearings (for 1 June, 6 July, 9 November and 7 December 2001 and 30 January, 20 March, 17 May, 17 July, 27 September and 19 December 2002). All those hearings were cancelled for various reasons, usually because the police had failed to bring the accused from prison.
10. The trial began on 17 January 2003. The subsequent hearings were held on 30 January, 21 February and 20 and 21 March 2003. At the hearing held on the latter date the District Court fined 5 witnesses who had failed to appear.
11. The District Court several times prolonged the applicant’s detention, holding that there was a reasonable suspicion that he had committed the offences in question and that, given his attempt to leave Poland and the resultant risk that he might go into hiding or tamper with evidence, as well as the fact that he had only partly confessed, keeping him in custody was necessary to secure the proper conduct of the proceedings. The court also relied on the serious nature of the charges against the applicant and the severity of the anticipated penalty. Lastly, the court had regard to the fact that the applicant had a previous conviction.
12. The relevant decisions were given on 12 October 2000 (prolonging his detention until 5 January 2001), on 28 December 2000 (ordering his continued detention until 13 February 2001), on 8 February 2001 (extending his detention until 13 May 2001), on 10 May 2001 (prolonging that period until 13 August 2001), on 10 August 2001 (ordering his continued detention until 13 November 2001), on 5 November 2001 (extending his detention until 13 February 2002), on 13 February 2002 (prolonging his detention until 13 May 2002) and on 13 May 2002 (ordering his continued detention until 7 July 2002).
13. In its decision of 10 April 2002 dismissing the applicant’s appeal against the prolongation of his detention, the Katowice Regional Court (Sąd Okręgowy) instructed the District Court to take determined measures with a view to speedily terminating the trial.
14. On 14 June 2002 the District Court made an application to the Katowice Court of Appeal (Sąd Apelacyjny) pursuant to Article 263 § 4 of the Code of Criminal Procedure (Kodeks postępowania karnego), asking for the applicant’s detention to be prolonged beyond the statutory time-limit of 2 years. The court stressed that, due to the complex nature of the case, it had so far been impossible for it to open the trial and that the applicant should be kept in custody since the grounds originally given for his detention were still valid.
15. On 26 June 2002 the Court of Appeal prolonged the applicant’s detention until 30 December 2002. It relied on the same grounds as previously invoked by the District Court. It noted that the applicant had attempted to flee the country. Furthermore, the Court of Appeal considered that the trial court had not been responsible for the delays incurred in the proceedings to date. In this respect, it referred, inter alia, to the fact that 7 hearings had been cancelled since the police had failed to bring the accused from prison. On the other hand, it considered that prolongation of the applicant’s detention until 30 December 2002 would give the District Court sufficient time to conclude the proceedings, provided that it accelerated its examination of the case.
16. On 14 November 2002 the Tychy District Court made yet another application under Article 263 § 4 of the Code of Criminal Procedure, asking the Court of Appeal to prolong the applicant’s detention until 30 June 2003. It stressed that it had still been impossible for it to begin the trial and that the grounds previously given for keeping the applicant in custody were still valid.
17. On 27 November 2002 the Court of Appeal partly granted the application and ordered that the applicant be held in custody until 31 March 2003. It drew the District Court’s attention to the fact that it had not stated any concrete reasons to justify the fact that the proceedings had not been terminated within the time-limit of 2 years specified in Article 263 § 3 of the Code of Criminal Procedure. In the Court of Appeal’s view, the laconic statement of the District Court that the trial had not been concluded for reasons which could not be attributed to it, was not sufficient. The Court of Appeal also criticised the fact that between June 2002 and 30 December 2002 the District Court had listed only two hearings. A hearing scheduled for 17 July 2002 was cancelled because not all of the victims had been properly summoned, while the hearing listed for 27 September 2002 was cancelled due to the holiday of one of the counsel. The Court of Appeal further noted that on 6 November 2002 a new judge had been assigned to the case. However, it noted that the District Court had not taken any significant measures aimed at concluding the proceedings, as had been indicated in the earlier decisions of the Regional Court and the Court of Appeal. It lastly stressed that the case was not particularly complex and suggested that the District Court should properly organise the trial and terminate it by the end of March 2003.
18. The applicant was released on 21 March 2003. All the applicant’s earlier applications for release and appeals against decisions prolonging his detention had been to no avail.
19. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).
20. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”
21. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
22. The Code sets out the conditions governing the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
23. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date of the first conviction at first instance may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
24. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. In addition, new paragraph 5 was added. It provides:
“A decision of the Court of Appeal taken pursuant to paragraph 4 may be appealed against to the Court of Appeal sitting in a panel of three judges.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-104998
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GUSAK v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1940 and lives in Sochi.
6. On 13 May 2002 the applicant’s husband entered into an agreement with a building company. Under the terms of the contract the company had to build within twelve months an individual house in accordance with the approved project, and the applicant’s husband had to pay them the price of the house in monthly instalments.
7. On 25 January 2003 the applicant’s husband died.
8. The building company sued the applicant and her daughter (heirs to the applicant’s husband) seeking to recover the contract arrears and to invalidate their title to the unfinished construction project.
9. On 20 December 2004 the Tsentralniy District Court of Sochi (“the District Court”) granted the company’s claims. The applicant appealed. The appeal hearing was scheduled for 21 April 2005.
10. During the hearing of 21 April 2005 the Krasnodar Regional Court (“the Regional Court”) decided to postpone the appeal hearing at the request of the plaintiff. The applicant’s representative was present. According to the applicant, the Regional Court did not specify the date of the next hearing.
11. On 27 April 2005 the court notified the applicant that the hearing had been adjourned to 12 May 2005. The applicant received that notification on 12 May 2005, the very date of the hearing. The postmark on the envelope submitted by the applicant showed that it had reached her on 12 May 2005. The Regional Court upheld the judgment on appeal in the absence of the applicant and her representative. It follows from the appeal decision of 12 May 2005 that the other party was present at the hearing and made oral submissions.
12. On 9 June 2005 the applicant requested the Regional Court to re-examine the case, alleging that she had not been duly notified of the appeal hearing of 12 May 2005.
13. On 29 September 2005 the Regional Court dismissed the applicant’s request, finding that the materials of the case contained evidence that she had been properly notified. However, the Regional Court did not specify what evidence the case file contained.
14. In 1999 the applicant’s husband joined a building partnership with a view to acquiring a flat. From 1999 to 2002 he paid construction fees.
15. Following her husband’s death in January 2003 the applicant brought proceedings against the partnership, seeking to join it as a member in her husband’s stead.
16. On 17 October 2003 the District Court granted the applicant’s claim. On 2 December 2003 the Regional Court upheld that judgment on appeal.
17. On 10 June 2004 the Presidium of the Regional Court quashed the above decisions by way of supervisory review and remitted the case for a fresh examination.
18. On 19 April 2005 the District Court granted the applicant’s claim. However, on 21 June 2005 the Regional Court quashed the judgment on appeal and remitted the case for a fresh examination.
19. On 21 August 2006 the District Court dismissed the applicant’s claims. On 26 October 2006 the Regional Court upheld the judgment on appeal.
20. The Code of Civil Procedure of the Russian Federation (“the CCP”, in force from 1 February 2003) reads as follows:
“1. Parties ... are to be summoned to court by a letter sent via registered mail with an acknowledgment of receipt, a court summons with an acknowledgment of receipt, a telegram, by phone or fax or by any other means of communication which guarantees recording of the fact that the court summons or notifications were received by the parties.
2. A court summons is one of the forms of court notification. Parties are notified by court summons of the date and place of a court hearing or of particular procedural actions ...
3. A summons or another form of notification is to be served on parties in such a way [as to ensure] that they have enough time to prepare their case and to appear at the hearing.
4. A court notification addressed to a party is to be sent to the address indicated by that party or his/her representative. If the party does not reside at the indicated address, the court summons may be sent to his or her place of work ...”
“1. Court summons and other notifications are to be sent by mail or delivered by a person authorised by the court to deliver them. The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court.
2. With a party’s consent, a judge can serve him/her with summons or notifications to be delivered to another party. A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee’s signature recording receipt.”
“1. A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons, which is to be returned to the court ...”
“1. Upon the receipt of the statement of appeal ... the judge shall:
1) send to the parties copies of the statement of appeal and the enclosed written documents not later than the day after their receipt;
2) notify the parties of the time and place of the appeal hearing ...”
“1. If a party to the case fails to appear and there is no evidence that the party was duly summoned, the hearing is to be adjourned ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92439
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ČESKÝ AND KOTIK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Mr Libor Český (application no. 76800/01, “the first applicant”) and Mr Ota Kotík (application no. 78801/01, “the second applicant”), are Czech nationals who were born in 1962 and 1955 respectively, and live in Roudnice and Prague respectively. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first round of criminal proceedings
At the beginning of October 1990 the Czech authorities investigated a case of two missing persons. On 16 and 18 October 1990 a certain B. was heard, who stated that he and the applicants had decided to rob these people in the flat of one of them. B. did not know how the two persons had been killed, but he saw their bodies being removed from the apartment. According to B. the applicants had removed the bodies. Between 17 and 19 October 1990 seven witnesses (Ms M., Ms Ch., Mr Š., Mr R., Ms P., Mr B. and Ms Z.) were heard in absence of the first applicant and his lawyer. On 19 October 1990 the applicants were charged with complicity in robbery. On the same day, the second applicant was placed in custody. On 22 October 1990 the Prague Municipal Court (městský soud) ordered the first applicant's arrest. At the same time, a lawyer was appointed to him.
On 6 February 1993 the first applicant was arrested in Italy and, pursuant to an extradition warrant, he was extradited on 18 February 1993. On the next day, he was placed in custody.
On 2 July 1993 the Prague Municipal Prosecutor (městský státní zástupce) charged the applicants and B. with robbery before the Municipal Court. He requested the court to hear sixty-two witnesses and to consider further evidence taken during the investigation.
On 10 March 1994 the first applicant's lawyer requested the hearing of further witnesses and the appointment of a medical expert.
On 10 June 1994 the Municipal Court convicted the applicants and B. of robbery. It sentenced the first applicant to fifteen years' imprisonment, ordered the confiscation of his car and fined him CZK 4,372,000 (EUR 166,710), and sentenced the second applicant to ten years' imprisonment. The applicants declined to give evidence. The court found it established that in October 1990 the applicants and B. had killed the two persons and stolen CZK 8,750,000 (EUR 333,649). It stressed that the first applicant had already been convicted of robbery in 1987.
On 16 January 1995 the Prague High Court (vrchní soud) quashed the first instance judgment and remitted the case to the Municipal Prosecutor for further investigations. It considered that the Municipal Court had not established all the relevant facts of the case with sufficient certainty.
2. The second round of criminal proceedings
On 14 April 1995 the investigator ordered a medical examination of the first applicant's mental health and appointed two experts for that purpose.
On 31 May 1996 the Municipal Prosecutor informed the applicants and B. that, having re-assessed the charges, he had decided to charge them with murder. At trial, the applicants and B. proposed that further evidence be produced.
On 17 December 1996 the Municipal Court convicted the applicants and B. of robbery and sentenced the first applicant as a very dangerous recidivist to thirteen years' imprisonment and ordered that his car be confiscated, and sentenced the second applicant to ten years' imprisonment and B. to fifteen years' imprisonment.
On 17 February 1997 the High Court quashed this judgment and remitted the case to the Municipal Court for a new decision on the merits. It considered that the lower court had not properly assessed the evidence, had not established all the relevant facts and had based its judgment on evidence which had not been produced before it. The High Court determined the evidence which had to be assessed.
3. The third round of criminal proceedings
On 8 July 1997 the Municipal Court again convicted the applicants and B. of robbery and sentenced the first applicant to thirteen years' imprisonment and ordered the confiscation of his car, again sentencing B. to fifteen years' imprisonment and the second applicant to ten years' imprisonment.
On 1 October 1997 the High Court quashed this judgment and sent the case back to the first instance, ordering that the case be heard by another chamber. It found, inter alia, that the Municipal Court had not respected the High Court's decision of 17 February 1997 and had practically copied its previous judgment.
4. The fourth round of criminal proceedings
In a judgment of 20 January 2000 comprising eighty-two pages, the Municipal Court convicted the applicants and B. of theft of CZK 5,837,143 (EUR 222,578), sentenced the first applicant as a very dangerous recidivist to twelve years' imprisonment and ordered the confiscation of his car, the second applicant to nine years' imprisonment and B. to fourteen years' imprisonment.
The court heard eight witnesses and read out statements of 109 other witnesses (including (Ms M., Ms Ch., Mr Š., Mr R., Ms P., Mr B. and Ms Z.)'s decision of 17 February 1997. Among other things, the court did not take into account the first two hearings of B. held on 16 and 18 October 1990.
At the trial, the first applicant requested that three further witnesses be heard to clarify his financial situation at the relevant time. The court rejected his request, stating that the proposed witness evidence would not affect its view of the applicant's guilt, its finding being based on completely different and more relevant facts.
The second applicant argued that the bank strips, with which wads of banknotes handled by him and the first applicant had been bundled together, had disappeared from the case file. The court accepted that there were some gaps in the file, which contained 6,000 pages. It was, however, of the opinion that this did not affect the state of the evidence, which had been based on the witness statements and other material evidence.
On 28 July 2000 the High Court, having held a hearing on 26 and 28 July 2000, quashed the first-instance judgment and decided anew finding the three accused guilty of theft of at least CZK 5,837,143 (EUR 222,578). It stated that the first-instance court had established all the relevant facts of the case and had assessed the evidence in an exhaustive and convincing manner. Nevertheless, it considered that the first applicant and B. could not be classified as extremely dangerous recidivists within the meaning of Article 41 § 1 of the Criminal Code referring in this respect to a significant delay which had elapsed between the crime and the conviction of the three accused, which reduced the degree of danger the crime presented for society. It therefore reduced the applicants' prison sentence to eight years.
On 19 September 2000 the second applicant filed a constitutional appeal (ústavní stížnost) alleging a violation of Article 8 § 2 (right to liberty), Article 36 § 1, Article 38 § 2 and Article 40 §§ 2, 3 and 4 (presumption of innocence, defence rights and right to remain silent) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).
On 9 October 2000 the first applicant lodged a constitutional appeal in which he alleged a violation of Article 8 § 2 (right to liberty) and Article 40 § 4 (right to remain silent) of the Charter.
On 8 February and 9 March 2001 respectively, the Constitutional Court (Ústavní soud) found the applicants' appeals clearly unsubstantiated.
On 28 February and 18 November 2003 respectively, the Municipal Court rejected the applicants' requests for re-opening of the criminal proceedings. On 15 April and 18 December 2003 respectively, the High Court dismissed the applicants' complaints against these two decisions.
On 7 December 2004 the Minister of Justice filed a complaint in the first applicant's favour, alleging a breach of law (stížnost pro porušení zákona). The Minister's complaint was dismissed by the Supreme Court (Nejvyšší soud) on 28 April 2005.
The relevant domestic law and practice concerning remedies as regards the length of judicial proceedings are stated in the Court's decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).²


ITEMID: 001-22970
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MIKIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Dobrivoje Mikić, is a Croatian citizen, who was born in 1931 and lives in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
During 1992 the applicant lent the following sums of money to two different companies:
- on 28 November and 8 December 1992 to F.I.M., a company in Zagreb, DEM 5,600 and DEM 3,000, respectively, for a period of 3 months at an interest rate of 30%.
- on 1, 9 and 14 October, 14 November and 10 December 1992 to Y., a company in Zagreb, 180,000 Croatian kunas (HRK), HRK 130,000, HRK 179,000, HRK 181,000, HRK 492,000, respectively, for a period of 3 months at an interest rate of 35%.
As the said companies failed to repay the loans, the applicant instituted the following proceedings before the Zagreb Municipal Court:
On 28 January 1994 the applicant filed an action seeking re-payment of DEM 16,330.
Before 5 November 1997, when the Convention entered into force in respect of Croatia, the first instance court held several hearings.
The hearing scheduled for 11 September 1998 was adjourned.
At the hearing on 4 February 1999 the court invited the applicant to submit a certificate from he Registry of the Commercial Court in order to verify Đ.M.’s position in respect of F.I.M.
On 9 March the applicant submitted the requested certificate and on 14 May 1999 he asked the court to hear two witnesses.
At the hearing on 24 May 1999 the court heard the applicant and Đ.M.
On 24 May 1999 the court gave judgment rejecting the applicant’s claim.
On 1 July 1999 the applicant appealed against the judgment.
It appears that the applicant also challenged the presiding judge for bias. This motion was dismissed by the President of the Zagreb Municipal Court on 15 October 1999.
On 10 May 2000 the case-file was forwarded to the Zagreb County Court (Županijski sud u Zagrebu) as the appellate court.
The proceedings are presently pending upon the applicant’s appeal.
On 4 March 1996 the applicant filed an action for re-payment of DEM 5,180 against L.L. and Đ.L. who took over the loans from company Y.
On 26 April 1996 the applicant’s claim was dismissed. The decision was served on the applicant on 3 may 1996 and became final on 16 May 1996.
The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows:
(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.


ITEMID: 001-89275
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CYNARSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1976 and lives in Warsaw.
6. On 12 November 2003 the applicant was arrested by the police.
7. On 14 November 2003 the Warsaw District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had stolen four Jaguar cars as a member of an organised criminal gang. The applicant appealed against this decision.
8. On 15 January 2004 the Warsaw Regional Court (Sąd Okręgowy) dismissed his appeal.
9. The applicant’s pre-trial detention was prolonged on 4 February, 16 April and 28 September 2004. The court relied on the reasonable suspicion against the applicant and on the severity of the penalty that might be imposed, making it probable that the applicant would obstruct the proceedings and attempt to put pressure on witnesses.
10. The applicant appealed against all those decisions and applied to be released from detention, but to no avail.
11. On 26 July and 27 October 2005 the Warsaw District Court further prolonged the applicant’s detention on remand, giving identical reasons for its decisions as on previous occasions.
12. As the length of the applicant’s detention had reached the statutory time-limit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego) the District Court made several applications to the Warsaw Court of Appeal for the applicant’s detention to be prolonged beyond that term. On 8 November 2005 and 10 March 2006 the Court of Appeal granted the application. The court justified its decisions with reference to the reasonable suspicion that the applicant had committed the offences and the complexity of the case, which concerned an organised criminal gang. The court also held that the measure was justified by the severity of the sentence to which the applicant was liable. On both occasions, however, the court decided to prolong the applicant’s detention for a period shorter than had been requested by the trial court and instructed it to intensify its efforts to finish the trial, given that the most severe preventive measure had been applied to the applicant for a lengthy period.
13. On 9 June 2006 the Warsaw Court of Appeal prolonged the applicant’s detention until 11 November 2006, reiterating the grounds given previously.
14. On 26 October 2006 the Warsaw District Court decided to release the applicant from detention and to place him under the supervision of the police. The court considered that it could not be excluded that the applicant would be sentenced to a prison term amounting to the period he had already spent in detention on remand. The court also found that police supervision would secure the proper course of the proceedings. On the same day the applicant was released from detention.
15. In 2006 the trial court held 18 hearings. On 31 January 2007 it gave a judgment. The applicant was convicted of membership of an organised criminal gang involved in stealing cars and of having stolen three Jaguars. He was sentenced to four years and six months’ imprisonment.
16. The applicant lodged an appeal against the judgment. On 19 March 2008 the Warsaw Regional Court quashed the impugned judgment and remitted the case.
17. The proceedings are still pending before the trial court.
18. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5


ITEMID: 001-119703
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF GROSS v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 6. The applicant was born in 1931 and lives in Greifensee in Switzerland.
7. For many years, the applicant has expressed the wish to end her life. She explained that she is becoming more and more frail as time passes and is unwilling to continue suffering the decline of her physical and mental faculties.
8. In 2005, following a failed suicide attempt, the applicant received inpatient treatment for six months in a psychiatric hospital. This treatment did not, however, alter her wish to die. As the applicant was afraid of the possible consequences of another failed suicide attempt, she decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted-death association, EXIT, for support, which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug.
9. On 20 October 2008 a psychiatrist, Dr T., having examined the applicant on 13 and 19 August 2008, submitted an expert opinion on the applicant’s capacity to form her own judgment (Urteilsfähigkeit). He noted that the applicant had never been seriously ill and did not have to undergo major surgery. However, in recent years, the applicant had noted a decline in her physical and, to a certain degree, her mental faculties. Her memory, her capacity to concentrate and her attention span were not what they used to be. She had difficulty undertaking long walks and her range of activities and her circle of friends had diminished. Accordingly, it had been her strong desire for several years to be allowed to end her life, which she felt was becoming more and more monotonous. She could hardly bear her physical decline. Furthermore, she increasingly suffered from eczema and back aches and every change in her environment terrified her. Her quality of life was constantly decreasing, and she also suffered from the fact that she could not talk openly about her wish to die with her friends.
10. On the basis of his psychiatric examination, Dr T. observed that there was no doubt that the applicant was able to form her own judgment. He further noted that her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness. From a psychiatric/medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the necessary prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician.
11. By letters of 5 November 2008, 1 December 2008 and 4 May 2009 the applicant’s representative submitted the applicant’s request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription. In a letter dated 3 December 2008 medical practitioner Dr B. explained that she felt prevented by the code of professional medical conduct (aus standesrechtlichen Gründen) from issuing the requested prescription, given that the applicant was not suffering from any illness. In a letter dated 11 May 2009 medical practitioner Dr S. stated that she considered the applicant’s wish to die to be understandable. She stated that she would be ready to examine the applicant and to consider her request to issue the required prescription, provided that the applicant’s counsel could guarantee that she would not risk any consequences from the point of view of the code of professional medical conduct. When the applicant’s counsel replied that he could not give such a guarantee, Dr S. declined the request on the grounds that she did not wish to be drawn into lengthy judicial proceedings.
12. On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. She submitted that she could not reasonably be expected to continue her search for a physician who was ready to issue the required medical prescription.
13. On 29 April 2009 the Health Board rejected the applicant’s request on the grounds that neither Article 8 of the European Convention on Human Rights nor the Swiss Constitution obliged the State to provide a person who wished to end his or her life with the means of suicide of their choice.
14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009, the Administrative Court rejected the appeal. The Administrative Court noted, at the outset, that assisting someone to commit suicide was only subject to criminal liability under Article 115 of the Swiss Criminal Code if it was carried out for selfish motives. Accordingly, a physician who provided a patient suffering from a terminal illness with the means to commit suicide was not subject to criminal liability (the Administrative Court referred to the case-law of the Swiss Federal Supreme Court, judgment of 3 November 2006, BGE 133 I 58, summarised in Haas v. Switzerland, no. 31322/07, §§ 15-16, ECHR 2011). The prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention and with the Swiss Constitution. It ensured that a medical practitioner had examined all pertinent aspects of the matter and thus served the general interest in public health and safety and – in connection with assisted suicide – the prevention of crime and combating the risk of abuse. The medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned.
15. The Administrative Court observed that Dr T., in his expert opinion, had stated that he did not have any objection from a psychiatric/medical point of view to the applicant being prescribed a lethal dose of sodium pentobarbital. However, Dr T. had merely examined whether the applicant was able to form her own free will and whether her wish to die was well thought out and persistent. He had not, however, considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. Neither had he examined whether the applicant’s wish to die might be the manifestation of a disease which could be medically treated. The wish to die taken on its own, even if it was wellconsidered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination.
16. Under these circumstances, there was no sufficient reason to dispense the applicant from the necessity of a thorough medical examination and of a medical prescription.
17. The applicant lodged an appeal against the Administrative Court’s judgment. She repeated her request to be provided with 15 grams of sodium pentobarbital, alternatively through a pharmacy. She further asked the Federal Supreme Court to establish that the provision of a lethal dose of this substance to a person who was able to form her own judgment and was not suffering from a mental or physical illness did not constitute a violation of a medical practitioner’s professional duties.
18. Relying, explicitly or in substance, on Articles 2, 3 and 8 of the Convention, she alleged that the impugned decisions had rendered her right to decide by which means and at what point her life would end illusory. She averred that the State was under an obligation to provide the necessary means allowing her to exercise this right in a concrete and effective way.
19. On 12 April 2010 the Federal Supreme Court rejected the applicant’s appeal. Relying on its own case-law and on the Court’s judgment in the case of Pretty v. the United Kingdom (no. 2346/02, ECHR 2002III), the Federal Supreme Court considered, in particular, that there was no (positive) obligation enjoining the State to guarantee an individual’s access to a particularly dangerous substance in order to allow him or her to die in a painless way and without the risk of failure. The Federal Supreme Court observed that proceedings in the Haas case were pending before the European Court of Human Rights. Accordingly, it was up to that Court to examine whether the Federal Supreme Court had correctly interpreted Article 8 of the Convention in this context. Pending these proceedings, the Federal Supreme Court did not see any reason to revise its reasoning in the Haas judgment.
20. The Federal Supreme Court furthermore held that the requirement of a medical prescription pursued the legitimate aims of protecting the individual concerned from making a hasty decision and of preventing abuse. The restriction on access to sodium pentobarbital served the protection of public health and safety. In view of the ethical questions relating to medically assisted suicide, it was primarily up to the democratically elected legislature to decide if and under which circumstances the purchase, transport and storage of sodium pentobarbital should be allowed. The Federal Supreme Court observed in this context that a reform of the law on assisted suicide was currently the subject of political debate.
21. The Federal Supreme Court further observed that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences (“SAMS”, see paragraphs 32-33 below), as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had considered in its previously cited decision that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor’s professional duties, this exception had to be handled with “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could n
ot be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription.
22. The relevant provisions of the Swiss Criminal Code are worded as follows:
Article 114 – Homicide at the victim’s request
“Any person who for commendable motives, and in particular out of compassion, causes the death of a person at that person’s own genuine and insistent request shall be liable to a custodial sentence not exceeding three years or to a monetary penalty.”
Article 115 – Inciting and assisting suicide
“Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall, if that other person thereafter commits or attempts to commit suicide, be liable to a custodial sentence not exceeding five years or to a monetary penalty.”
23. The Federal Law on Drugs (“the Drugs Act”) of 3 October 1951 regulates the use and supervision of drugs. The Federal Law on Medicinal Products and Medical Devices (“the Therapeutic Products Act”) of 15 December 2000 applies to drugs covered by the Drugs Act where they are used as therapeutic products (section 2, subsection (1)(B) of the Therapeutic Products Act). The Drugs Act remains applicable, however, if the Therapeutic Products Act does not regulate a specific matter or if its regulation is less extensive (section 2, subsection (1) bis of the Drugs Act).
24. Under section 1 of the Drugs Act and the Order of 12 December 1996 on Drugs and Psychotropic Substances issued by the Swiss Institute for Therapeutic Products, sodium pentobarbital is considered to be a drug within the meaning of the Drugs Act. In addition, it appears from the Federal Court’s judgment of 3 November 2006 that sodium pentobarbital is categorised as a category B medicinal product within the meaning of the Therapeutic Products Act.
25. Section 9 of the Drugs Act lists the members of the medical professions who may obtain drugs without authorisation. Section 9(1) is worded as follows:
“Doctors, dentists, veterinary surgeons and those managing a public or hospital pharmacy who practise as self-employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to the Federal Law of 19 December 1877 on the practice of the professions of doctor, pharmacist and veterinary surgeon in the Swiss Confederation may obtain, hold, use and issue drugs without authorisation, within the limits justified by their practice, in conformity with the requirements of their profession. This shall be without prejudice to cantonal provisions regulating direct dispensing by doctors and veterinary surgeons...”
26. Pursuant to section 10(1) of the same Act, only doctors and veterinary surgeons are authorised to prescribe drugs. Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally (section 11(1) of the same Act, and regulation 43(1) of the Order on Drugs of 29 May 1996).
27. Sections 24 and 26 of the Therapeutic Products Act are worded as follows:
Section 24 – Dispensing of medicinal products subject to prescription
(1) The following persons shall be entitled to dispense prescription-only medicinal products:
(a) pharmacists, on presentation of a doctor’s prescription and, in justified exceptional cases, without a doctor’s prescription;
(b) all other medical professionals in accordance with the provisions on dispensing physicians;
(c) all duly trained professionals, under the supervision of a person specified in subsections (1) (a) and (b).
...”
Section 26 – Principle of prescription and dispensing
“(1) The recognised rules of pharmaceutical and medical sciences must be respected when prescribing and dispensing medicinal products.
(2) A medicinal product may only be prescribed if the state of health of the consumer or patient is known.”
28. Chapter 8 of the same Act contains criminal-law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by the Act. Section 86 of the Act provides:
Section 86 – Offences
“"(1) Unless an offence carrying a more severe penalty under the Criminal Code or the Narcotics Act of 3 October 1951 has been committed, any person who wilfully endangers human health by:
(a) neglecting his duty to exercise diligence in dealing with therapeutic products;
(b) manufacturing, placing on the market, prescribing, importing or exporting, or trading in a foreign country, medicinal products without authorisation or licence or while infringing other provisions of this Act;
(c) dispensing medicinal products without authorisation;
...
shall be liable to a term of imprisonment or to a fine not exceeding 200,000 francs.
(2) If the person concerned acts in his professional capacity, he or she shall be liable to a term of imprisonment not exceeding five years and to a fine not exceeding 500,000 francs.
(3) If the person concerned acts through negligence, he or she shall be liable to a term of imprisonment not exceeding six months or a fine of up to 100,000 francs.“
29. On 28 October 2009, the Swiss Federal Council submitted two alternative legal projects aimed at regulating organised assisted suicide. It proposed two options that would change Swiss criminal law: the determination in the Criminal Code of clear duties of care for employees of assisted suicide organisations, or a complete ban on organised assisted suicide per se (see the press release issued by the Federal Department of Justice and Police on 28 October 2009). The consultation of the cantons, political parties and other interested parties (Vernehmlassung) demonstrated that no consensus on the issue could be reached. While a majority of the consulted parties considered that the federal law should define specific duties of care within the context of assisted suicide, they could not agree on the concrete implementation. On 29 June 2011 the Federal Council decided to refrain from including specific regulations on organised assisted suicide in criminal law, while expressing its intent on fostering suicide prevention and palliative care in order to reduce the number of suicides (see the press release issued by the Swiss Federal Council on 29 June 2011).
30. On 3 November 2006 the Federal Supreme Court was called upon to examine a request to be granted a lethal dose of sodium pentobarbital lodged by a plaintiff who had been suffering from a serious bipolar affective disorder and considered that as a result, he could no longer live in a dignified manner. Since that substance was only available on prescription, he approached several psychiatrists to obtain it, but was unsuccessful. In its judgment (published in the Official Collection of Decisions of the Federal Supreme Court, BGE 133 I 58, summarised in Haas, cited above, §§ 15-16), the Federal Supreme Court considered that sodium pentobarbital could not be issued without a medical prescription. It noted, in particular, that section 24(1)(a) of the Therapeutic Products Act had to be interpreted narrowly and did not allow for an exemption in the event that no doctor could be found who was ready to issue a prescription. The Federal Supreme Court further considered that the following prerequisites had to be met before a doctor could issue a medical prescription for sodium pentobarbital: a thorough and considered examination; a medical indication; and, with regard to the genuineness of the wish to die and capacity for discernment in this connection, monitoring over a certain period by a medical specialist. Following that judgment, in May 2007 the plaintiff wrote to 170 psychiatrists setting out his case and asking each of them whether they would agree to produce a psychiatric report on him with a view to issuing a prescription for sodium pentobarbital. None of the doctors responded positively to his request.
31. On 16 July 2010 the Federal Supreme Court examined the validity of an agreement concluded by the General Public Prosecutor of the canton of Zurich and the assisted-death organisation EXIT aimed at lying down specific rules to be observed in assisted-death cases. The Federal Supreme Court considered that the agreement was invalid as it lacked a legal basis and was not in accordance with the domestic law (BGE 136 II 415).
32. In its judgment given on 3 November 2006, the Federal Supreme Court referred to the medical ethics guidelines on the care of patients at the end of life which were adopted on 25 November 2005 by the Swiss Academy of Medical Sciences (SAMS), an association of the five medical faculties and the two veterinary faculties in Switzerland. According to the case-law of the Federal Supreme Court (judgment of 26 August 2010, BGE 136 IV 97), the guidelines issued by SAMS do not have the formal quality of law. As they prescribe a number of precautionary measures, they can be classed as a code of conduct — the value of which is generally accepted by the practitioners bound by it. Furthermore, these guidelines may serve to define the duty of diligence in criminal proceedings or in proceedings concerning civil liability.
33. The scope of application of these guidelines is defined as follows:
1. Scope of application
“(1) These guidelines concern the care of patients at the end of life. These are patients whose doctor has arrived at the conclusion, on the basis of clinical signs, that a process has started which, as experience indicates, will lead to death within a matter of days or a few weeks.”
Section 4 of these guidelines reads as follows:
4. The limits of medical intervention
“Respect for the patient’s wishes reaches its limit if the patient asks for measures to be taken that are ineffective or to no purpose, or that are not compatible with the personal moral conscience of the doctor, the rules of medical practice or applicable law.”
4.1. Assisted suicide
“According to Article 115 of the Penal Code, helping someone to commit suicide is not a punishable offence when it is done for altruistic reasons. This applies to everyone.
With patients at the end of life, the task of the doctor is to alleviate symptoms and to support the patient. It is not his task to directly offer assistance in suicide, rather he is obliged to alleviate any suffering underlying the patient’s wish to commit suicide. However, in the final phase of life, when the situation becomes intolerable for the patient, he or she may ask for help in committing suicide and may persist in this wish.
In this borderline situation a very difficult conflict of interests can arise for the doctor. On the one hand assisted suicide is not part of a doctor’s task, because this contradicts the aims of medicine. On the other hand, consideration of the patient’s wishes is fundamental for the doctor-patient relationship. This dilemma requires a personal decision of conscience on the part of the doctor. A decision to provide assistance to commit suicide must be respected as [a decision of that sort]. In any case, the doctor has the right to refuse help in committing suicide. If he decides to assist a person to commit suicide, it is his responsibility to check the following preconditions:
- The patient’s disease justifies the assumption that he is approaching the end of life.
- Alternative possibilities for providing assistance have been discussed and, if desired, have been implemented.
- The patient is capable of making the decision, his wish has been well thought out, without external pressure, and he persists in this wish. This has been checked by a third party, who is not necessarily a doctor.
The final action in the process leading to death must always be taken by the patient himself.”
4.2. Killing on request
“Even if requested seriously and insistently, the killing of a patient must be refused by the doctor. According to Article 114 of the Penal Code, killing on request is a criminal offence.”
34. The research conducted by the Court in the context of the Haas case (cited above, §§ 29-31) indicates that certain member States of the Council of Europe have specific regulations covering access to substances liable to facilitate suicide.
35. In Belgium, for example, the Law of 28 May 2002 defines euthanasia as an act carried out by a third party which intentionally ends an individual’s life at that individual’s request (section 2 of the Law). A pharmacist who issues a “lethal substance” does not commit an offence where this is done on the basis of a prescription in which the doctor has explicitly stated that he or she is acting in accordance with the law. The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issuing of such substances; the necessary measures must also be taken to ensure the availability of the lethal substances.
36. In Luxembourg, the Law of 16 March 2009 decriminalised euthanasia and assisted suicide. Under that Law, access to a substance enabling suicide is only lawful for a doctor if he or she is playing an integral part in the process of euthanasia or assisted suicide.
37. Sodium pentobarbital is listed in Schedule III of the Convention on Psychotropic Substances of 21 February 1971, to which the Swiss Confederation acceded on 22 April 1994. Article 9 of that Convention reads as follows:
Article 9: Prescriptions
“1. The Parties shall require that substances in Schedules II, III and IV be supplied or dispensed for use by individuals pursuant to medical prescription only, except when individuals may lawfully obtain, use, dispense or administer such substances in the duly authorized exercise of therapeutic or scientific functions.
2. The Parties shall take measures to ensure that prescriptions for substances in Schedules II, III and IV are issued in accordance with sound medical practice and subject to such regulation, particularly as to the number of times they may be refilled and the duration of their validity, as will protect the public health and welfare.
3. Notwithstanding paragraph 1, a Party may, if in its opinion local circumstances so require and under such conditions, including record-keeping, as it may prescribe, authorize licensed pharmacists or other licensed retail distributors designated by the authorities responsible for public health in its country or part thereof to supply, at their discretion and without prescription, for use for medical purposes by individuals in exceptional cases, small quantities, within limits to be defined by the Parties, of substances in Schedules III and IV.”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-79922
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: VIDAKOVIC and MATIC v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant, Mr Zlatko Vidaković, was born in 1968. The second applicant, Mr Dario Matić, was born in 1972. Both being nationals of Serbia, they live in Novi Sad, Serbia. They were represented before the Court by Mr Z. Ristić, a lawyer practising in Novi Sad. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
In September 1996 the applicants took part in a motor-bikers’ meeting in Mindszent, Hungary, organised in the park of an open-air swimming pool. They slept in a tent under a tree when, due to the heavy rain, a branch broke and fell on them causing them several injuries.
On 9 June 1998 the first applicant instituted proceedings in the Hódmezővásárhely District Court seeking the payment of damages from the owner of the swimming pool, the Mindszent Municipality. On 10 June 1998 the second applicant filed a similar action.
The second applicant’s case was stayed on 15 October 1998 and statutorily ceased to exist on 16 April 1998. He reintroduced his claim on 22 March 2002.
Meanwhile, after having held three hearings and suspending the proceedings at the parties’ request between 8 April and 9 August 1999, on 21 October 1999 the District Court dismissed the first applicant’s action, holding that the respondent was not liable. The court relied largely on the opinions of two experts. On 4 January 2000 the Csongrád County Regional Court dismissed the first applicant’s appeal. On 27 September 2001 the Supreme Court’s review bench quashed the first and second instance decisions and remitted the first applicant’s case to the District Court, holding that it had failed to examine whether the Municipality had any contractual liability.
After several hearings held in the resumed proceedings and the joinder of the two cases on 23 May 2002, on 23 May 2003 the District Court dismissed the applicants’ joint action, holding the respondent had neither contractual nor delictual liability.
On 7 October 2003 the Regional Court finally dismissed the applicants’ appeal.
On 15 April 2004 the Supreme Court rejected the applicants’ petition for review as inadmissible, without examining it on the merits, observing that they had failed to specify any appropriate legal grounds for their motion, as required by section 270 of the Code of Civil Procedure. This decision was served on the applicants’ representative on 23 May 2004.


ITEMID: 001-78630
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GAVRANIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: John Hedigan
TEXT: The applicant, Mrs Kata Gavranič, is a national of Bosnia and Herzegovina who was born in 1965 and lives in Velenje. She was represented before the Court by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 November 1994 the applicant was injured while leaving the building where she was working. The applicant’s employer had taken out insurance with the insurance company ZT.
On 22 July 1996 the applicant instituted civil proceedings against ZT in the Celje Local Court (Okrajno sodišče v Celju) seeking damages in the amount of 355,538 tolars (approximately 1,480 euros) for the injuries sustained.
On 1 July 1997 the court held a hearing.
On 3 July 1997 the applicant lodged preliminary written submissions.
On 26 November 1997 and 29 March 1998 the applicant requested that a date be set for a hearing.
On 14 May 1998 the court held a hearing and heard five witnesses.
On 14 September 1998 the applicant requested that a date be set for a hearing.
On 26 November 1998 the court held a hearing, heard the applicant and two witnesses. The court decided to issue a written judgment concerning the liability for damages.
The judgment finding in favour of the applicant was served on her on 10 December 1998. The decision concerning the amount of damages to be awarded was severed for further examination.
On 28 December 1998 ZT appealed to the Celje Higher Court (Višje sodišče v Celju).
On 23 June 1999 the court dismissed the ZT’s appeal.
The judgment was served on the applicant on 26 August 1999.
On 17 September 1999 ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 24 May 2000 the court allowed the ZT’s appeal in part and decided that both parties are equally liable for the accident.
The judgment was served on the applicant on 12 July 2000.
On 28 July 2000 the applicant lodged a constitutional appeal.
On 11 June 2001 the Constitutional Court (Ustavno sodišče) declared the applicant’s appeal inadmissible. The decision was served on the applicant on 4 July 2001.
In the meanwhile, on 9 October 2000, the applicant lodged preliminary written submissions with the Celje Local Court concerning the amount of damages to be awarded.
On 26 October 2000 the court held a hearing and decided to appoint a medical expert.
On 3 November 2000 the court appointed a medical expert.
On 5 February 2001 the applicant lodged preliminary written submissions.
On 12 April 2001 the court held a hearing. The court decided to issue a written judgment.
The judgment, upholding the applicant’s claim for damages in part, was served on the applicant on 25 April 2001.
On 9 May 2001 the applicant appealed to the Celje Higher Court.
On 19 June 2002, the court allowed the applicant’s appeal in part and remitted the case for fresh examination of the claim concerning the costs and expenses.
On 10 July 2002 the Celje Local Court issued a new decision concerning the costs and expenses.
The applicant appealed against this decision to the Celje Higher Court which, on 20 December 2002, allowed the applicant’s appeal in part and increased the amounts awarded in terms of costs and expenses.
The decision was served on the applicant on 16 January 2003.


ITEMID: 001-92069
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ŽIČKUS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1950 and lives in the Vilnius area.
6. On 4 March 1992 the applicant was awarded a Commemorative “13 January” Medal (bestowed upon persons who distinguished themselves when defending the freedom and independence of Lithuania during the period January-September 1991). By the Presidential order of 30 September 1996 the applicant was awarded the Medal of Founding Volunteers of the Lithuanian Army.
7. On 12 September 2000 a special governmental commission (“the Commission”) found that the applicant had been a “former secret collaborator” (slapta bendradarbiavęs asmuo) under the Law on registering, confession, entry into records and protection of persons who have admitted to secret collaboration with special services of the former USSR, and decided to publish this information in the “Official Gazette” (Valstybės žinios).
8. The applicant brought proceedings before the Vilnius Regional Administrative Court requesting it to quash the Commission’s conclusion as to his former collaboration. On 7 May 2001 the court partly granted the applicant’s claim, establishing that there had been a lack of evidence of the applicant having been a KGB collaborator.
9. On 3 July 2001 the Supreme Administrative Court quashed the lower court’s decision. It was found that the applicant had indeed been a KGB collaborator while working as a sports journalist and travelling abroad in the 1980s.
10. On 23 July 2001 the Commission published information in the “Official Gazette” to the effect that, in the past, the applicant had collaborated with the special services of the former USSR, namely with the KGB.
11. On 27 July 2001 the applicant was dismissed from his post as an official at the Human Resources Department of the Ministry of the Interior. The decree by which he was dismissed stipulated that the reason for the dismissal was the information regarding his collaboration, which the Commission had published on 23 July 2001.
12. The applicant again challenged the Commission’s conclusions in its decision of 12 September 2000 as being null and void. On 31 October 2001 the Vilnius Regional Administrative Court dismissed the action on procedural grounds, finding that there had been a final court decision on the issue. The case was discontinued.
13. On 12 December 2001 the Supreme Administrative Court reopened the proceedings to have the evidence better examined and to establish guidelines for a common judicial practice in similar future cases.
14. On 16 January 2002 the Supreme Administrative Court examined the merits of the applicant’s complaints, dismissing his request to quash the decision of the Vilnius Regional Administrative Court of 31 October 2001. The Supreme Administrative Court found that the lower courts had reasonably concluded that the applicant had secretly collaborated with the secret services of the former USSR. The court noted that the applicant’s rights in examining the evidence and questioning the witnesses had not been curtailed. That decision was final.
On an unspecified date the applicant submitted a request to the Supreme Administrative Court seeking the reopening of the procedure, alleging violations of material legal norms in the decisions in his case. On 16 May 2002, the court dismissed his request as unfounded.
15. The applicant alleged that he had been disbarred from practising as a barrister as a result of the impugned domestic decisions.
16. The Law on registering, confession, entry into records and protection of persons who have admitted to secret collaboration with special services of the former USSR (hereafter “the Law”) was enacted on 23 November 1999, and came into effect on 1 January 2000. The Law provided for the creation of a special governmental Commission responsible for the assessment of the activities of persons who had secretly collaborated with such services and the registration of those persons as “former secret collaborators”. The Law, in so far as relevant in this case, reads as follows:
“1. The provisions of the Law on the Basics of National Security, whose aim is to create a system of national security protecting the State and its population, human and citizens’ rights and freedoms, and also personal safety, shall be implemented by the present Law, providing protection against the influence, blackmail and recruitment, or attempts to draw into any illegal activity, by the special services of foreign States. The Law shall also ensure the implementation of the State’s right to apply the principle of loyalty and trustworthiness to civil servants and other employees of State government and administration, local government, national defence, the interior affairs system, the Prosecutor’s Office, courts, the Department of State Security, the diplomatic service, customs, State controlled institutions and other State institutions which implement control and management, to attorneys and notaries, and to employees of banks and other credit institutions, or in strategic economic entities, communication systems, protection services and structures thereof, and in other structures providing detective services. ...”
“1. A person, who has secretly collaborated with the special services of the former USSR means ... a person ... who has actually and deliberately carried out the tasks and assignments of the special services of the former USSR according to a written or unwritten commitment to collaborate in secret, where the activity is not regulated by statutory regulations or labour laws (agent, resident, confidant, retainer of conspiracy quarters, retainer of a rendezvous flat, non-staff operational employee or other person who has secretly collaborated with the secret services of the former USSR). ...”
“1. A ... Commission ... shall be established to assess the activities of persons who secretly collaborated with the special services of the former USSR and to adopt decisions whether to include persons in a report or publication of data concerning secret collaboration. ...
2. Pursuant to the present Law the Commission shall:
1) assess the activities of persons involved in secret collaboration with the special services of the former USSR;
2) adopt decisions concerning the inclusion in the report of persons who have admitted to secret collaboration with the special services of the former USSR;
3) adopt decisions concerning the publication of information about the secret collaboration of persons with the special services of the former USSR, in the instances specified in Article 8 of this Law;
4) ensuring total personal confidentiality, shall encode the secret information transferred to the Commission and adopt decisions concerning the provision of information for research work; ...”
“In accordance with the present Law, the State Security Department shall: ...
4) upon the request of persons who have admitted to collaboration in secret with the special services of the former USSR, employ measures to protect them from blackmail and recruitment attempts or efforts to involve them in any illegal activity; ...”
“1. Persons who have secretly collaborated with the special services of the former USSR must present themselves within six months of the registration and confession acceptance date, as announced by the Commission in the “Official Gazette”, to register and voluntarily confess in writing, to the State of Lithuania, to have secretly collaborated with the special services of the former USSR, reveal all of the information known to them concerning the activities of the special services, and hand in the documents or objects linked to the special services of the former USSR. ...”
“1. Persons who have secretly collaborated with the special services of the former USSR shall be entered in the records by a decision of the Commission if they have voluntarily confessed to having secretly collaborated with the special services of the former USSR, and have submitted all the information within their knowledge in connection with the activity of the special services.
2. The fact of confession and the data submitted by the person who has confessed shall comprise information which constitutes a State secret and which shall be classified as secret and used and declassified according to the procedure established by law ...”
Article 8. Protection of persons who have confessed and instances of information publication
“1. Information supplied by persons who have been registered, have confessed and have been entered in the records, and the data regarding them, shall be classified and stored according to the procedure established by law.
2. Persons indicated in paragraph one of this Article shall inform the State Security Department if they experience blackmail and recruitment offers or attempts to draw them into any illegal activities, and the State Security Department, on the basis of a request by the persons who have made confessions, shall take measures to protect them and to uncover criminal activity. The entry of persons in records and the information submitted by them shall be declassified if these persons have been convicted by a final judgment of having committed actions that have been acknowledged as acts against humanity, war or crimes of genocide, and by other instances established by law for the declassification of classified information. ...
4. The information regarding secret collaboration with the special services of the former USSR shall be published in the ‘Official Gazette’ in those instances where a person who had secretly collaborated with the special services of the former USSR has failed to admit within six months of the beginning of registration and reception of confessions announced by the Commission, to having secretly collaborated with the special services of the former USSR, and also if he has furnished false information about himself, other persons and the activities of the special services, or has concealed such information. The person who secretly collaborated with the special services of the former USSR shall be given written notice of the decision adopted by the Commission to publicise such information. He may appeal against this decision to the administrative court, within fifteen days of receipt of such notice. The implementation of the decision to make the information public shall be suspended until the court judgment becomes effective.”
“1. Persons who have secretly collaborated with the special services of the former USSR, whose data has been made public according to the procedure established in paragraphs 3 or 4 of Article 8 of the present Law, for a period of ten years from the date of publication, may not be employed as teachers in educational institutions, educators or heads of such institutions, occupy positions requiring the carrying of a weapon, or work as Republic of Lithuania civil servants or other employees of State government and administration, municipal authorities, national defence, the interior affairs system, customs, the Prosecutor’s office, courts, the State Security Department, the diplomatic service, State controlled and other State institutions engaged in control and supervision, as attorneys and notaries, or as employees of banks and other credit institutions, or in strategic economic functions, communications systems, protection services and structures thereof and other structures providing detective services.
2. In the event that the data concerning persons who secretly collaborated with the special services of the former USSR has been published in the ‘Official Gazette’ or in other mass media by decision of the Commission, an employer or his representative must, no later than the next working day following the publication of this information, dismiss the employee from his job, without paying him severance pay ...
3. Should the published information regarding a person who secretly collaborated with the special services of the former USSR concern a person who is engaged in legal practice, the Bar Association of Lithuania shall revoke the decision to accredit the person as a lawyer. At the conclusion of a ten-year term, the person shall have the right to be accredited as a lawyer in accordance with the procedure established by law.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-104561
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VELJKOV v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Ireneu Cabral Barreto
TEXT: 5. The applicant was born in 1958 and lives in Jadranska Lešnica.
6. The applicant lived with her partner, P.J., in Belgrade from May 2001 until January 2006, when she moved to her parents’ house, as a result of alleged “psychological abuse” by her partner. Their daughter M.J., who was born in 2002, continued to live with her father.
7. On 20 February 2006 the applicant lodged a civil claim against P.J. (“the respondent”) with the First Municipal Court (Prvi opštinski sud) in Belgrade (“the Municipal Court”), seeking sole custody of M.J. and child maintenance (vršenje roditeljskog prava i izdržavanje).
8. On 1 March 2006 the respondent lodged a separate claim against the applicant, with the Municipal Court, also seeking sole custody of M.J. and child maintenance.
9. On 16 May 2006 the Municipal Court obtained an opinion from the Palilula Social Care Centre (Gradski centar za socijalni rad, Odeljenje Palilula), which stated that the custody should be given to the mother.
10. On 17 May 2006 the applicant requested the court to issue an interim measure regulating her right of access to M.J.
11. At the hearing held on 8 June 2006, the respondent also requested an interim measure awarding him temporary custody of M.J.
12. On 15 June 2006 the Municipal Court ordered the respondent to allow the applicant access to M.J. by bringing their daughter at 2 p.m. every last Friday of the month to the Loznica Social Care Centre and collecting her from the applicant in Belgrade at the same time the following Friday.
13. On 20 June 2006 the respondent objected to the Social Care Centre’s opinion of May 2006 and subsequently, on 10 July 2006, appealed against the interim access order. It would appear that the latter appeal was forwarded to the District Court (Okružni sud) in Belgrade on 27 August 2006.
14. The next hearing, scheduled for 3 July 2006, was adjourned because the Municipal Court had failed to secure the presence of lay judges (sudija porotnika) for family matters as required under the relevant provisions of the domestic law.
15. The hearing scheduled for 5 September 2006 was also adjourned, because at that time the case file was physically in the possession of the District Court, which was about to rule in respect of the adopted interim access order.
16. On 14 September 2006 the District Court in Belgrade rejected the respondent’s appeal and upheld the interim access order of 15 June 2006.
17. On 30 November 2006 the Municipal Court considered whether to join the two sets of civil proceedings into a single case file, and adjourned the case until 30 January 2007.
18. Meanwhile, on 6 November 2006 the Palilula Social Care Centre informed the Municipal Court that the respondent’s objection to their first opinion of 16 May 2006 had been accepted, because the competent Ministry had found irregularities in its work. The Centre also warned the court that it could not have reliably assessed whether the conclusion of this opinion had been in the best interest of the child, in particular due to the need to ascertain the applicant’s state of mental health.
19. Following the Centre’s additional updated opinion of 4 December 2006 (see paragraph 52 below), on 11 December 2006 the Municipal Court issued a new interim access order, restricting the applicant’s access to M.J. to two hours on Fridays at the premises of the Palilula Social Care Centre in Belgrade, thereby rendering the interim access order of 15 June 2006 obsolete.
20. On 22 December 2006 the applicant appealed against the new interim access order, while on 9 January 2007 she informed the court that she had not been and would not be going to Belgrade to see her daughter, because she was afraid of the respondent’s abusive behaviour and intimidation.
21. On 30 January 2007 the Municipal Court noted that the applicant had appeared in person but that the hearing had been scheduled for the following day and that she would not be able to attend it." (see paragraph 17 above).
22. The interim access order was confirmed by the District Court in Belgrade on 14 February 2007.
23. On 27 April 2007 the Municipal Court formally joined the two sets of proceedings, while the applicant submitted that an opinion of the Loznica Social Care Centre could also be obtained and interim custody be granted to her.
24. On 7 May 2007 the Municipal Court granted interim custody in respect of M.J. to the respondent, pending the final outcome of the ongoing civil suit. It also requested the Palilula Social Care Centre to produce an expert opinion as to how custody should be determined in the best interests of the child, as well as on the access rights of the non-custodial parent. The interim access order of 11 December 2006 remained in force as regards the applicant’s contact with her daughter.
25. On 6 June 2007 the District Court upheld this decision on appeal. On 13 July that court forwarded the case file to the Municipal Court.
26. On 18 June 2007 the Palilula Social Care Centre produced a report, giving its recommendation on how the custody and access rights should be determined (see paragraph 58 below).
27. On 27 September 2007 the Loznica Social Care Centre issued a report on the applicant’s visits to that centre.
28. The hearing scheduled for 22 November 2007 was adjourned because of a strike by the judicial authorities.
29. On 12 December 2007 the applicant requested withdrawal of the Municipal Court judge, but on 19 December 2007 the President of the court dismissed her request.
30. At the next hearing, held on 20 December 2007, the Municipal Court decided to hear both parties in person on 28 January 2008.
31. Further hearings were held on 28 January and 4 March 2008. On the latter date the applicant requested the Municipal Court to obtain an expert opinion on the psychological and physical ability of both her and the respondent to take care of the child.
32. After both parties had made an advance payment of the costs of the expert opinion, on 3 April 2008 the Municipal Court ordered the Committee of the Belgrade Medical Faculty to prepare the expert report.
33. However, at a hearing held on 1 October 2008, the court reversed its decision and ordered that the expert report be prepared by the Dr Laza Lazarevic Institute of Neuropsychiatry.
34. On 19 March 2009 the Board of Experts of the Institute of Neuropsychiatry informed the Municipal Court that due to the negative attitude of the applicant towards this institution and the allegation of previous forgery of her health certificates by the Institute’s doctors, it would not be able to obtain expert testimony at the hospital. On the same date the Municipal Court requested the Social Care Centre to enable the Board of Experts to have the applicant and the child observed at the Centre.
35. Following the examinations of the parties and M.J. on 19 and 24 March 2009, on 27 April 2009 the Board of Experts submitted its report on the parties’ ability to exercise parental rights and responsibilities. It also submitted an additional report on 15 May 2009 in which it recommended that custody be granted to the respondent.
36. The hearing scheduled for 8 July 2009 was adjourned, because the applicant had appointed a lawyer, who needed some time to study the case file.
37. The next hearing, scheduled for 30 September 2009, was adjourned at the request of the applicant’s lawyer. He was ordered by the court to respond to the expert report within fifteen days.
38. The hearing scheduled for 11 November 2009 was not held, because of a strike by the Bar Association.
39. The hearing scheduled for 9 December 2009 was adjourned indefinitely, due to an ongoing reform of the judiciary.
40. The applicant submitted objections to the expert report on 11 November and 9 December 2009. The respondent replied to the applicant’s objections on 31 December 2009. On 3 March 2010, the applicant commented on the respondent’s observations.
41. The Board of Experts replied on 30 March 2010 to the applicant’s comments on its report. On 9 June 2010 the respondent commented on both the experts’ and the applicant’s observations.
42. On 17 June 2010 the Court of First Instance held its first hearing after the reform of the judiciary had been concluded.
43. On the 18 June 2010 the Court of First Instance ordered M.J.’s school psychologist to provide an assessment of the psycho-physical state of the child. It also ordered the Palilula Social Care Centre to provide an updated opinion on the determination of custody and to inform it about the results of the pending corrective monitoring of the parties’ exercise of parental rights by the Marriage and Family Counselling Office (see paragraph 65 below).
44. On 19 July 2010 the court received the assessment from the school psychologist.
45. The Court of First Instance scheduled the next hearing for 15 September 2010 in order to hear both parties.
46. It would appear that the proceedings are still pending before the first-instance court.
47. Following the adoption of the interim access order on 15 June 2006, the first attempt to reunite the applicant with M.J. took place on 7 July 2006, at the Loznica Social Care Centre. According to the Centre’s report, the respondent had not prepared M.J. for the reunion and was verbally aggressive throughout the meeting. M.J. was initially reluctant to approach the applicant, but she ultimately “came closer” and accepted gifts from her mother. The Centre proposed that future meetings be scheduled on Fridays, in a park not far from the respondent’s flat in Belgrade, before the applicant and M.J. started spending an entire week together. The applicant stated that she feared being left alone with the respondent. It was the first and last time that the respondent brought M.J. to Loznica, refusing to do so afterwards.
48. On 14 August 2006 the applicant formally requested enforcement of the interim access order of 15 June 2006. On 17 August 2006 the Municipal Court dismissed the applicant’s request as incomplete, since the interim access order bore no stamp certifying that it had become final.
49. On appeal, on 13 November 2006 the District Court quashed this decision and remitted the case. It would appear that this decision was served on the applicant on 11 May 2007.
50. The applicant continued going to the premises of the Loznica Social Care Centre on Fridays, stating that she was afraid to meet her daughter in the presence of the respondent in Belgrade and insisting on meeting her in Loznica. Following her query about the possible presence of social workers during those meetings, she was informed that this was not the usual practice.
51. On 24 November 2006 the applicant called on the Loznica Social Care Centre to request the enforcement of the interim access order as rendered by the Municipal Court. She was informed that the Centre was not in charge of the case, as M.J. lived in Belgrade.
52. On 4 December 2006 the Centre submitted an additional updated opinion to the Municipal Court, stating that, taking into account that there had been no regular or substantial contact between the applicant and M.J. in recent months, it was in the child’s best interests to remain temporarily living with the father. The Centre suggested providing a new final report upon putting more efforts into restoring the bond between the mother and daughter.
53. On 11 December 2006 the Municipal Court issued a new interim access order, restricting the applicant’s contact with M.J. to two hours each Friday at the Palilula Social Care Centre in Belgrade.
54. On 18 December 2006 the Loznica Social Care Centre sent its opinion to the Palilula Social Care Centre, indicating that the respondent might be being manipulative about the alleged problematic mental health of the applicant. It proposed that a medical institution examine the applicant and give an opinion on both parties’ capacity to exercise parental rights and responsibilities.
55. On 9 January 2007 the applicant informed the court that she had not been and would not be going to Belgrade to see her daughter as she was afraid of the respondent’s alleged threats and promises to “send her to bedlam”.
56. It appears from a letter from the Palilula Social Care Centre dated 9 April 2008 that the applicant had not up to that point attended any of the scheduled meetings with her daughter in Belgrade.
57. On 7 May 2007 the Municipal Court granted interim custody in respect of M.J. to the respondent, while the interim access order of 11 December 2006 remained in force as regards the applicant’s contact with her daughter.
58. On 18 June 2007 the Palilula Social Care Centre recommended that custody be granted to the respondent, while the applicant’s access rights were to be limited to one hour every Friday, at the Palilula Social Care Centre. The access ruling was subject to change and extension once the emotional and caring links between the applicant and her daughter had been restored. The Centre’s experts pointed out that the applicant had not contacted them in order to be able to see M.J., and offered professional assistance to facilitate contact between the mother and child, as well as with the respondent in order to motivate M.J. to maintain contact with the applicant. They noted that the respondent had inquired about the applicant’s interest in seeing M.J and had been allowing regular visits to M.J. by her older stepbrother (the applicant’s son).
59. On 18 and 19 September 2007 the applicant contacted both social care centres, stating that the respondent had not been allowing her any contact with M.J., even indirectly by phone. She requested both centres to initiate proceedings for deprivation of the respondent’s parental rights.
60. On 31 December 2007 the applicant informed the Palilula Social Care Centre that she had remarried and changed her surname. When the Centre asked her to attend the scheduled meetings with M.J., she said she did not have enough money to travel to Belgrade and was afraid of the respondent.
61. Despite the fact that the interim access order of 15 June 2006 was no longer valid, the applicant requested its enforcement in six written pleadings to the Fourth Municipal Court in Belgrade between September 2007 and January 2008. On 18 January 2008 this court issued an enforcement order in this respect. However, that court subsequently, following the respondent’s objection, suspended the enforcement proceedings.
62. At the hearing on 1 October 2008, the applicant stressed that she had not seen her daughter since 7 July 2006 and urged the Municipal Court to change the location of their scheduled meetings to the applicant’s place of residence. She repeated that she did not have enough money to travel to Belgrade each week to see her daughter. When asked by the court whether she wished to have a meeting with her daughter that same day, the applicant stated that she was afraid of the respondent, as well as of her daughter’s reaction on seeing her.
63. According to the report of the Palilula Social Care Centre dated 16 August 2010, on 6 May 2009 the applicant had requested the Palilula Social Care Centre to organise a meeting with M.J. for the first time in accordance with the second interim access order of 11 December 2006. Despite the Centre’s warning about the need to take appropriate steps to prepare M.J. for the forthcoming visits after a lengthy absence of care and contact between them, the applicant allegedly insisted on having contact with M.J. starting from 8 May.
64. It would appear that since 8 May 2009 the applicant has been meeting with M.J. regularly. However, the Social Care Centre experts reported that the applicant was not really aware that a mother’s absence could have a profound impact on her daughter and could alienate her daughter’s affection towards her. While she insisted on emotional reciprocation from her daughter, the contact was a significant source of stress for the child, who cried, hid behind her father, persistently avoided to look at her mother, refused the applicant’s gifts and asserted that she had been beaten by her. Nevertheless, the applicant systematically accused the respondent of abusing his position as the parent with interim custody and of inculcating M.J.’s attitude towards her.
65. The Centre also reported a severely dysfunctional parental relationship and an ambivalent approach on the part of the respondent to the importance of M.J.’s contact with her mother. In order to improve the parental and parent-child relationships, on 10 May 2010 the Centre adopted of its own motion a decision on corrective monitoring of the parties’ exercise of parental rights by the Marriage and Family Counselling Office, for a minimum of six months. The Office was supposed to work with the parents to help them acquire a better understanding of their parental rights and responsibilities, as well as of the needs of their daughter. After they had undergone this therapy, the Centre was to evaluate changes in their attitudes and approaches in exercising parental roles, as well as to assess the need for further measures for the protection of M.J.’s rights. The respondent was also supposed to bring M.J. regularly to the Counselling Office, which would work on improving her motivation in order to try to salvage her contact with the applicant.
66. On 4 December 2006 the applicant instituted proceedings against P.J., requesting that he be deprived of his parental rights (“roditeljsko pravo”) because of his behaviour in respect of their daughter. It would appear that P.J. lodged the same claim against the applicant and that the competent court eventually joined the two proceedings.
67. In the course of those proceedings, on 11 September 2007 the applicant sought an interim injunction against domestic violence. She claimed that P.J. had threatened her, which is why she was afraid to attend the scheduled meetings with her daughter.
68. On 3 December 2007 the court granted her request and issued an interim measure prohibiting P.J. from approaching or further disturbing the applicant.
69. However, on 6 November 2008 the District Court quashed this interim measure on appeal and returned the case for reconsideration.
70. On 2 February 2009 the court decided to separate the proceedings for protection against domestic violence from those for deprivation of parental rights.
71. As regards the proceedings for protection against domestic violence, on 21 October 2009 the First Municipal Court in Belgrade granted an injunction against domestic violence, i. e. “insulting or any other insolent, unscrupulous or malevolent behaviour” as defined in the Article 197 § 6 of the Family Law. In particular, it banned the respondent from disturbing the applicant for one year, as well as from coming within 500 metres of her and her place of residence, other than when necessary to allow contact between the applicant and the child.
72. On 13 May 2010 the Court of Appeal upheld the former part of this decision, quashed the latter due to the lack of valid and convincing reasons and remitted it for re-examination.
73. It would appear that these proceedings are still pending.
74. In 1993 the applicant had been diagnosed with interstitial lung disease, having subsequently become depressive and occasionally in need of psychiatric treatment.
75. Article 110 states that a competent authority may exempt a party to administrative proceedings from paying the costs of the proceedings, including witnesses’ and experts’ costs and expenses, if it finds that paying those expenses would affect the individual and his/her family’s well-being and ability to maintain themselves.
76. Other relevant provisions are set out in the cases of V.A.M. v. Serbia (no. 39177/05, §§ 56-59 and 65-75, 13 March 2007), and Tomić v. Serbia (no. 25959/06, §§ 55-62 and 68-71, 26 June 2007).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88034
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BEASLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Derek Beasley, is a British/Canadian national who was born in 1939 and lives in Canada. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 6 August 1997. In June 2000, the applicant made his second claim for widows’ benefits. On 22 November 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant appealed and on 1 August 2001 his appeal was rejected. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.