ITEMID: 001-122420
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: SOHBY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
TEXT: 1. The applicant, Ms Camellia Sohby, is a dual British and United States national, who was born in 1956 and lives in London. Her application was lodged on 26 July 2007. She was represented before the Court by Mr M. Berkin, a barrister practising in London.
2. The United Kingdom Government (“the Government”) were represented successively by their Agents, Ms L. Dauban and Ms M. Addis of the Foreign and Commonwealth Office.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The case relates to a domestic civil claim brought by the applicant in respect of an incident that occurred in July 1995, in which the applicant claims that she was unlawfully detained and assaulted by officers of the Metropolitan Police (“the defendant”). In June 2001 the applicant was granted legal aid to pursue a claim for damages in respect of these allegations. She was initially represented by Moss & Co Solicitors (“Moss & Co”).
5. The applicant’s claim was issued at Central London County Court (“the CLCC”) on 26 July 2001. Her particulars of claim (the document setting out the basis of her claim) were filed with the CLCC and served the defendant on 20 November 2001. On 3 January 2002 the CLCC recorded that the parties had agreed an extension of time for service of the defendant’s defence to the claim to 15 January 2002. On 15 January 2002 the defence was served on the applicant, although it is not clear whether this defence was ever filed with the court. On 20 March 2003 a telephone call was received by the CLCC from the applicant’s solicitors advising that they would fax the defence to the court. There is, however, no record that the defence was received or that the solicitors followed up their telephone conversation.
6. The parties agreed their own directions regarding the progress of the case (that is, the procedural timetable for the case) and, consequently, documents were disclosed and witness statements exchanged. In the meantime nothing was heard from the court. In December 2002, the applicant withdrew instructions from Moss & Co and, in January 2003, instructed Coninghams Solicitors (“Coninghams”). Transfer of legal aid funding from Moss & Co to Coninghams was confirmed on 26 February 2003.
7. On 22 August 2003 the applicant’s solicitors wrote to the CLCC seeking to progress the case. On receipt of the letter the CLCC wrote to the defendant on 9 September 2003 requesting that a copy of the defence be filed with the court, which the defendant did on 15 September 2003. On 7 October 2003 an allocation questionnaire was sent to the parties. (An allocation questionnaire is a document the parties must complete and return to the court so that the court can give appropriate directions as to where, when and how the case should be heard). The applicant filed her questionnaire on 24 October 2003 and a case management conference (a conference between the court and the parties to agree procedural directions and identify the issues in the case: “a CMC”) was listed for 5 January 2004. At the CMC the applicant was refused permission to rely on her own expert medical evidence, directions were given for the instruction of a single joint expert, and a trial window was set for between 21 June 2004 and 10 September 2004. The CLCC subsequently listed the case for trial on 5 July 2004.
8. On 22 January 2004 the applicant made an application to amend her claim and an application to vacate (that is, adjourn) the trial date set for 5 July 2004. In February 2004 the applicant withdrew instructions from Coninghams. In the meantime, the CLCC duly listed her applications for hearing on 12 March 2004 and 27 May 2004 respectively but the applicant, stating that she would not be able to attend the hearing of her application as a litigant in person, did not attend on 12 March 2004 and sought an adjournment (with which the defendant agreed) of the hearing set for 27 May 2004.
9. On 29 April 2004 the applicant applied to have her application of 22 January 2004 re-considered and/or for a stay of the order of 12 March 2004. On 29 April 2004 she also applied for the trial date of 5 July 2004 to be vacated on the basis that she had to instruct new solicitors who required time to prepare her case and on the basis that she was not medically fit to represent herself. This application was listed for 27 May 2004. At some time in May 2004 the applicant instructed new solicitors, Kaim Todner, who applied for a transfer of the applicant’s legal aid certificate. On 24 May 2004 the applicant applied to adjourn the hearing listed for 27 May 2004 on the ground that funding had not yet been transferred to Kaim Todner and that she was unable to represent herself. On 8 May 2004, with neither party in attendance but with the defendant’s agreement, the CLCC ordered that the application be adjourned generally with permission to apply to restore. The applicant found the order confusing and thought that it meant that the trial date had been vacated.
10. On 2 July 2004 the applicant made a further application to vacate the trial date to allow her new solicitors time to prepare the case. There is no record of a response to this application. The applicant did not attend the trial on 5 July 2004. She stated that this was due to reasons of ill-health. The trial judge ordered the applicant to attend the following day. The applicant claimed that she did not receive notice of this order, although it appears that the trial judge was satisfied that it had been communicated to her by the court clerk. The applicant did not attend court on 6 July 2004 and her claim was dismissed.
11. In September 2004 the applicant withdrew instructions from Kaim Todner.
12. On 21 October 2004 the applicant applied to have her claim reinstated, arguing that the trial should have been adjourned and that she had good reasons for not attending. She failed to enclose with her application the prescribed application fee, although the applicant, in her submissions to this Court, maintains that this was because she believed she was entitled to an exemption from paying the fee. Therefore, on 4 November 2004, the CLCC returned the application to the applicant notifying her of her failure to pay the fee. The applicant paid the fee on 17 February 2005. The application was then listed and heard on 13 April 2005. The applicant was represented at the hearing of this application by counsel on a direct access basis (that is, a barrister directly instructed by a lay person without the need for that person to first instruct a solicitor). The judge held that the applicant had good reason for failing to attend the trial and reinstated her claim. A CMC was listed for 27 May 2005 but on 24 May 2005 the applicant applied for an adjournment. The defendant agreed to this request. At a hearing before the judge – attended only by the applicant – the hearing was adjourned until 29 July 2005.
13. In or around May 2005 the applicant states that she re-instructed Coninghams. It appears that Coninghams applied for a new legal aid certificate but were refused. The applicant stated that her application was “bungled” and that the Legal Service Commission (“the LSC”) “lost or mysteriously returned” her papers. Two letters were sent by the LSC to the applicant. The first, dated 28 September 2005, stated that “you have provided insufficient information/documentation to enable the application to be fully considered... you may apply for review by 12 October 2005”. The second, dated 26 October 2005, stated that the “file has been closed... because the application was rejected more than 90 days ago as it was not properly completed and we have not received the correctly completed application... If public funding is still required, a fresh application must be made”. Coninghams offered to represent the applicant on a private client basis. However, the applicant stated that she was unable to afford their fees.
14. On 29 July 2005 the CMC was again adjourned, at the request of one or both of the parties for 9 September 2005. On 9 September 2005 a CMC was held at which no order was made as to medical evidence and a trial window was set for between 16 January 2006 and 24 February 2006. On 2 November 2005 the case was listed for trial on 13 February 2006. At the defendant’s request, the trial was re-listed for 13 March 2006.
15. The applicant claimed not to have been informed of this new trial date until 10 February 2006 when she applied to have it vacated on grounds that, although she was available, her solicitor had gone on holiday without notifying her and that she could not represent herself on health grounds. The application to vacate was heard and rejected on 10 March 2006. The defendants relied at this hearing on a letter from Coninghams, dated 9 March 2006, which stated that the file handler had gone away for just one week between 23 January and 31 January and that, in any event, Coninghams were no longer instructed by the applicant.
16. The applicant instructed counsel on a direct access basis to renew on the first day of the trial her application to vacate. Counsel was not instructed in relation to the trial itself for which he had no time to prepare. The applicant did not attend the trial on 13 March 2006, again for health reasons. The judge refused the renewed application to vacate and dismissed the applicant’s claim in its entirety. He ordered that any application to set aside his judgment be made without notice in the first instance.
17. On 14 March 2006 the applicant applied to have the judgment set aside. The applicant did not pay the prescribed fee until 18 May 2006. On 26 May 2006 the applicant telephoned the CLCC to ask for her application to be listed after the second week of July 2006. The hearing was listed and took place on a without notice basis on 9 August 2006 when she was granted leave to apply on notice to the defendant.
18. The hearing was listed for 22 September 2006. On 16 August 2006 the defendant requested that the hearing be relisted as counsel was unavailable for the original date. On 25 August 2006 the CLCC agreed and requested that the parties informed the court of the dates which they wished to avoid. The defendant did so by letter dated 29 August 2006. The applicant did not and instead lodged a complaint over the decision to relist the hearing. On 7 September 2006 she applied to have the hearing date of 22 September 2006 reinstated. This application was dismissed by the CLCC on 15 September 2006.
19. On 10 October 2006 the applicant requested the CLCC not to relist the hearing until further notice. She then requested by letter dated 10 October 2006 that the CLCC list the hearing in December 2006. The CLCC sought dates to avoid from the parties and, following receipt of correspondence, listed the hearing for 14 December 2006. The defendant subsequently notified the CLCC that it was unable to attend on that date and, following further correspondence, the court required the attendance of both parties on 21 December 2006 to set a date, emphasising that once the hearing had been fixed it would not be relisted again. The case was then relisted for the first agreed date when both parties could attend, 31 January 2007.
20. The application to set aside the judgment of 13 March 2006 dismissing the applicant’s claim was heard on that date. The applicant was again represented by counsel on a direct access basis. After reciting the procedural history of the case and the reasons advanced by the applicant for her absence at the 13 March 2006 trial date, the judge hearing the application concluded:
“Taking all those matters into consideration, both the history and the discrepancies which are evident in the versions given by the [applicant] and the documentation [and] the similarity of her reliance upon the same excuses for not attending in the past strongly suggest to me that [the applicant] cannot come anywhere near satisfying this court that there were good reasons for not attending and that those reasons were genuinely honest. I am fully satisfied that they were not in relation to the trial fixed for 13 March last year”.
The applicant maintains that the CLCC had lost the case file and the applicant’s bundle, and that the judge should not have proceeded without them.
21. On 17 April 2007 the applicant filed an appeal notice with the High Court out of time. In that notice she claimed that an earlier notice of appeal had been filed in time on an old form, although no evidence of an application on this old form was provided. The applicant attributed the delay in appealing to those of the CLCC in obtaining the judge’s signature on the relevant order (one month) and in providing a transcript of his judgment (five months). On 14 June 2007 the High Court refused permission to appeal, holding that no reasons had been given to explain the delay in issuing the appeal notice and that, in any event, the proposed appeal had no prospects of success.


ITEMID: 001-114841
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF JOOS v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1945 and lives in Samedan (canton of Graubünden). He practises as a lawyer in Switzerland.
6. The applicant is the owner of a house built in 1599 in the centre of Samedan which is subject to a number of measures aimed at the protection of the historical heritage.
7. On 21 March 2006, the company I.G.W. requested the Municipality of Samedan to issue a building permit for the construction of a “wellness centre” on the plot of land adjacent to the applicant’s house. The building plan envisaged, inter alia, the construction of a swimming pool on top of the building. The applicant objected to the issuing of the building permit.
8. On 23 May 2006 the Municipal Council of Samedan rejected the objection. The applicant lodged a motion with the administrative court of the canton of Graubünden which was rejected by judgment of 27 November 2006. The administrative court considered, inter alia, that the municipality did not have an obligation to hear expert submissions by the Federal Commission for the protection of historic buildings or by the Federal Commission on nature and homeland protection, because the instant case did not fall within the Federal State’s competencies.
9. On 15 January 2007 the applicant lodged an appeal under public law as well as an administrative appeal with the Federal Tribunal. He complained that the swimming pool would create emissions of steam and noise which exceeded the limits allowed under the regulations for the protection of the environment and that the presence of such an installation in the quarter was contrary to the rules for the protection of historic buildings, to which the applicant’s house belonged. He further alleged that the remainder of the planned building would not respect the pertinent legal regulations. Finally, he complained that the proceedings before the Samedan Municipal Council had been unfair.
10. By letter of 13 February 2007, the Federal Tribunal invited the Federal Department of Interior to submit comments on the applicant’s appeal. On 13 April 2007, the General Secretary of the Federal Department of Interior submitted two pages of comments to the tribunal. He considered, in particular, that the building permit did not violate the provisions of the Federal Law on Nature and Homeland protection, because the building project did not fall within the Federal State’s competence. In the 1960s, the Federal State had subsidised archaeological searches and restoration work on the Samedan church. However, these subsidies did not constitute Federal tasks and did not establish the Federal State’s competency. It followed that the Federal provisions necessitating further expert examination were not applicable in this case. Furthermore, the Federal Department considered that the building project did not have a relevant impact on the centre of Samedan. On 20 April 2007 the Federal Tribunal forwarded a copy of the comments to the applicant for information. The applicant received it on 23 April 2007.
11. By judgment of 16 May 2007 the Federal Tribunal rejected the applicant’s appeals as being admissible, but unfounded. With regard to the admissibility of the appeal under public law, it noted that the applicant contested the lawfulness of a building permit and that he complained, in particular, about the arbitrary application of the town planning law. Under the pertinent case-law, an appeal under public law was only admissible if the legal provisions relied upon also protected the applicant’s own interests. In view of the fact that the applicant’s building marked the historical centre of Samedan, the Tribunal concluded that the provisions serving the protection of the overall appearance of the locality also served the protection of the applicant’s building. With regard to the admissibility of the administrative appeal, the Tribunal considered that the applicant’s building was situated at a distance of only a few metres from the place where the impugned wellness centre was to be constructed, leading to the conclusion that the applicant had an “interest warranting protection”. The Federal Tribunal considered, however, that the appeals were unfounded because the pertinent legal provisions had not been breached in the instant case. With regard to the applicability of the Federal Law on Nature and Homeland protection, the Federal Tribunal considered that the fact that the church had been restored with the help of federal subsidies did not mean that all building projects in the church’s vicinity fell within the competency of the Federal State.
12. The relevant provisions of the Federal Law on Judicial Organisation (Organisationsgesetz) as applicable at the time of the instant proceedings read as follows:
“1. If the tribunal orders an exchange of written submissions, it serves the appeal on the authority which had issued the impugned decision or act, on the adverse party and on other possible parties. It sets an adequate time-limit for submitting the case-file and comments.
2. If the reasons for the judgment or decision are contained for the first time in the authority’s submissions, the applicant may be granted a time-limit allowing him or her to submit supplementary observations.
3. A further exchange of submissions takes place only exceptionally.”
“1. If the tribunal orders an exchange of written submissions, it serves the appeal on the previous court instance and possible other parties ...
2. At the same time, it sets a time-limit for submissions and orders the previous instance to submit the case-files within that same time-limit.
3. ...
4. A second exchange of submissions takes place only exceptionally.”
13. By judgment of 22 November 2005 (published in the official collection (BGE) 132 I 42, summarised in Schaller-Bossert v. Switzerland, no. 41718/05, § 20, 28 October 2010), the Federal Tribunal considered that, in proceedings which provided, as a rule, for a simple exchange of submissions, it was sufficient to send the respective submissions to the adverse party for information, without expressly inviting him or her to submit comments. That way, the party had the possibility to examine the need to comment on the new submissions. If, in such a case, the party did not react after having taken notice of the new submissions, the tribunal could assume that he or she had waived their right to comment. The Federal Tribunal considered that this approach was “a pragmatic way of implementing Article 6 § 1 of the Convention”. Referring to a previous judgment, the tribunal further considered that an applicant, who deemed it necessary to submit comments on submissions which had been served on him for information, was obliged, without undue delay, to submit his comments or to request leave to submit such comments.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61931
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BALOGH v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Préliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;No violation of Art. 13;No violation of Art. 6-1;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1958 and lives in Miskolc, Hungary. He is of Roma ethnic origin.
9. On 9 August 1995 the applicant, accompanied by Ms B. and Mr S., was selling coal from a truck on a door-to-door basis in Orosháza. After an aborted transaction, some would-be purchasers reported to the local police that the three had left their yard without having returned their fuel vouchers. At about 5.45 p.m. two local police officers halted the applicant’s truck and instructed the applicant and his companions to report to the Orosháza Police Station. The applicant was interrogated there by police officers S. and K.
10. The applicant stated that during the interrogation one of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder. The officers demanded that he reveal where the stolen vouchers had been hidden.
11. On being released after two hours of interrogation, the applicant was met on the ground floor of the police station by Ms B. and Mr S., as well as by Mr B. and Mr M., both of whom were acquaintances of the applicant and his companions.
The applicant stated that when he and his companions were leaving the police station, a police officer issued the following warning to them: “Tell the Miskolc gypsies that they had better not set foot in Orosháza”.
12. Having returned to his home in Miskolc on 11 August 1995, the applicant consulted Dr V., the local doctor, who advised him to report to the Ear, Nose and Throat Department of Diósgyőr Hospital. On 14 August 1995 Dr C. carried out an operation to reconstruct the applicant’s ear drum which had been damaged as a result of a traumatic perforation. On 16 August 1995 Dr C. reported the case to the police.
13. On 28 August 1995 the applicant was discharged from hospital. His medical report stated, without reference to any precise date, that he had sustained a traumatic perforation of the left tympanic membrane. This conclusion also figured in two further medical reports issued later by Dr C. on 25 August 1995 and by Dr V. on 29 September 1995. The applicant’s injury was described in a follow-up medical report dated 10 September 1997 as “low-to-medium-grade loss of sound perception” in the left ear.
14. On 25 September 1995 the Szeged Investigation Office informed the applicant that criminal proceedings had been opened against the police officers involved on the basis of information submitted by Dr C. on 16 August. The police officers were charged with the offences of “forced interrogation” and “ill-treatment committed in the course of official proceedings”.
15. The Investigation Office heard the applicant and several witnesses. Four persons were heard from the applicant’s side.
Mr S. stated as follows:
“[In the building of the police station] I met [the applicant] [...] whose face had a bluish colour in the area under his left ear and was somewhat swollen. I then asked him if they had hurt him. He answered that they had hurt him a little and pointed to the left side of his face saying that it was hurting there. He said that he had no hearing on that side.”
Ms B. stated as follows:
“[When the applicant was escorted down to the ground floor], it struck me that the left side of his face and his left ear were swollen. I thought that he had been beaten. I asked him about it, to which he only answered that he had been beaten a little. [...] I remember well that the left side of his face was red and I even saw the traces of fingers on it.”
Mr M. stated as follows:
“[When at last the applicant came down to the ground floor], it struck me immediately that his skin was reddish-bluish around his left ear and even underneath his neck. I had no doubt that his face was swollen as a result of a blow. I then asked him if they had hurt him, [...], he only answered: ‘A little’.”
Mr B. stated as follows:
[When the applicant was escorted down to the ground floor], it was apparent at once that the left side of his face and his left ear were red. It was obvious that he had been hit. Ms. B. even asked him if he had been hurt. He first answered in the negative. Then I asked him the same question. Then he answered: ‘A little’.”
The Investigation Office also heard Dr V. and four police officers who had been on duty at the police station at the time of the applicant’s interrogation.
The police witnesses denied any knowledge of ill-treatment having been inflicted on the applicant.
The suspected police officers S. and K. consistently denied the applicant’s accusations when questioned on 15 November 1995.
Police officer S. stated, inter alia, as follows:
“I remember [the applicant] having said something of the sort that he was working for those persons as a lorry-driver [...] to set off debts incurred by his wife. [...] He was blaming [his companions] for forcing him to work a lot more than if he had been working for money; and he even mentioned to one of my colleagues that they would either leave him behind or beat him up on the way home because of this.”
Police officer K. stated, inter alia, as follows:
“After the interrogation police officer S. told me that [the persons interrogated] had also quarrelled amongst themselves, maybe they had not properly paid [the applicant], they had a dispute about money or something of the sort [...]”
16. On 16 November 1995 a medical expert appointed by the Investigation Office expressed the opinion that it could not be excluded that the applicant’s injury had been caused as alleged. However, in the expert’s opinion it could not be determined whether the injury in question had been caused to his ear before, during or after the applicant’s interrogation.
17. On 30 November 1995 the Investigation Office discontinued the criminal proceedings against police officers K. and S. for lack of any conclusive evidence. On 12 December 1995 the applicant filed a complaint against the discontinuation order.
18. On 24 January 1996 the Orosháza District Public Prosecutor’s Office ordered the investigation to be resumed and that confrontations be organised between the applicant and the police officers concerned and between various witnesses. It also ordered that further witnesses be heard.
19. In the framework of the resumed proceedings, the Csongrád County Investigation Office, on 1 March 1996, confronted the applicant with the suspected police officers as well as a third police officer who had been heard as a new witness.
20. On 6 March 1996 the Investigation Office discontinued the investigation.
Relying on the testimonies given, on the one hand, by the applicant – who had consistently maintained his assertions during the proceedings – and by his companions and, on the other hand, by the police officers concerned, as well as on a confrontation involving all three of them, the Investigation Office found that although the applicant’s injuries might have been inflicted as alleged, it could not be excluded beyond all doubt that the injuries had been sustained before or after his interrogation.
Since there was no direct witness to the alleged incident and the medical opinion in the case was not conclusive as to the time when the applicant’s injury had been inflicted, the Investigation Office was obliged to dismiss the applicant’s accusations as unsubstantiated and to discontinue the proceedings.
The order drew the applicant’s attention to his right to file a complaint with the Public Prosecutor’s Office under section 148 §§ 1 and 4 of the Code of Criminal Procedure if he wished to challenge the decision to discontinue the case. This order was served on the applicant on 11 March 1996.
The applicant did not file a complaint against this order.
As of 1 August 1996 the applicant’s working capacity was declared to have diminished by 50% on account of asthma bronchiale and impaired hearing; the respective significance of these two factors was not specified. As a consequence, he was unable to have his lorry driver’s licence renewed or to obtain employment as a driver.
21. On 30 March 1998 the applicant claimed damages from the Ministry of the Interior. In reply, on 16 April 1998 he was informed by the competent Békés County Police Department that he was not eligible for compensation because he had failed to file a complaint against the discontinuation order of 6 March 1996 and thus to avail himself of an ordinary legal remedy, which was a precondition for establishing official liability.
22. On 22 April 1998 the applicant appointed the NEKI to take his case. A further medical opinion obtained by the NEKI on 19 August 1998 stated that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear. Although he did not have the earlier medical expert’s opinion at hand, the expert went on to qualify the applicant’s version of how he had sustained his injury as plausible.
23. Relying on this new evidence, the NEKI lodged on 25 August 1998 a complaint against the decision of 6 March 1996 with the Attorney General’s Office requesting that the criminal proceedings be re-opened in accordance with section 141 of the Code of Criminal Procedure.
24. On 5 October 1998 the Csongrád County Public Prosecutor’s Office finally dismissed this complaint. In its reasoned decision, the Public Prosecutor’s Office stated that:
“[it] had thoroughly examined all the documents in the case file.”
The decision mentioned that in the absence of coherent testimonies or a conclusive medical expert opinion it was impossible to prove either that the applicant’s injury had been caused during his police detention or that it had been inflicted by the suspected police officers. The Public Prosecutor’s Office noted the delay between the applicant’s interrogation on 9 August and his decision to seek medical help only on 11 August 1995. The decision stated that the new expert opinion did not contain any new facts which warranted the continuation of the investigation or the laying of charges against the suspects. The Public Prosecutor’s Office concluded that the case should be discontinued since it was impossible to prove the applicant’s allegations. The decision was served on the NEKI on 14 October 1998.
25. Section 55 § 1 of Act no. 1 of 1973 on the Code of Criminal Procedure (now repealed), as in force in the relevant period, provided:
“A civil party is a victim who lays a civil-law claim for determination in criminal proceedings.”
Section 141 of the Code of Criminal Procedure provided:
“(1) The discontinuation of an investigation does not preclude that criminal proceedings in the same case may be later continued.”
Section 148 of the Code of Criminal Procedure provided:
“Remedy during investigation
(1) Anyone aggrieved by the authority’s decision, measure or omission, is entitled to file a complaint.
(...)
(4) Such a complaint may be lodged with the authority within a period of eight days from the date of the notification of the decision or from the date on which the complainant becomes aware of the measure or omission.
(5) If the authority itself does not accept the complaint, it shall transfer the case file and its own statement concerning the complaint to the competent public prosecutor within twenty-four hours. The public prosecutor shall decide on the complaint within eight days.
(6) A complaint may be rejected if it has been lodged outside the [above] time-limit or by an unauthorised person.”
26. Section 339 § 1 of Act no. 4 of 1959 on the Civil Code, as amended, provides:
“Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. He shall be exculpated if he proves that he proceeded in such manner as can generally be expected in the given situation.”
Section 349 of the Civil Code provides:
“(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage.
(...)
(3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.”
27. Section 3 § 5 of Act no. 3 of 1952 on the Code of Civil Procedure, as amended, provides:
“Unless the law provides otherwise, in the civil procedure, the court shall not be bound, when taking evidence, by any formal rule or given method or application of specific means; it may freely use the parties’ submissions and may use any other evidence which is suitable for establishing the facts (...)”
Section 4 § 1 of the Code of Civil Procedure provides:
“When taking its decision, the court shall not be bound by a decision of another authority or by a disciplinary resolution, or the findings of fact contained therein.”
Section 152 § 1 of the Code of Civil Procedure provides:
“If the adjudication of a case depends on a preliminary matter on which a criminal court ... must decide, the [civil] court may suspend its proceedings until that procedure has been finally concluded (...)”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 13
14
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79402
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SAARENPAAN LOMA KY v. FINLAND
IMPORTANCE: 4
CONCLUSION: No violaton of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant is a limited liability company whose main field of activity consisted of building and hiring holiday cottages as well as providing accommodation and travel services. It is owned by Mr Kari Saarenpää and Mrs Eevaliisa Saarenpää, who live in Valkeala.
7. On 22 November 1993 the applicant requested the Kymi County Administrative Board (lääninhallitus, länsstyrelse) to grant it an exemption permit (poikkeuslupa, undantagstillstånd) to erect four cabins and one sauna building on a piece of land called Mustalamminvuori, situated within the Penttimäki property 1:464 in the Repovesi wilderness area in the municipality of Valkeala. The intended cabins were to be located in an area which was not covered by a shore plan (rantakaava, strandplan) adopted in January 1986 upon Mr Kari Saarenpää’s application.
8. The County Administrative Board refused the application on 16 December 1994, noting, inter alia, that part of the Penttimäki property was located within an area included in the nationwide shore protection programme (rantojensuojeluohjelma, strandskyddsprogrammet), adopted in December 1990, and that the intended construction would hamper significantly the implementation of a shore plan and the overall settlement of the area.
9. The applicant’s appeal was rejected by the Ministry of the Environment (ympäristöministeriö, miljöministeriet, “Ministry”) on 7 December 1995.
10. Following the applicant’s further appeal the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) conducted an inspection in situ and held an oral hearing. On 24 March 1997 it quashed the decisions and remitted the matter to the Environmental Centre of South-East of Finland (Kaakkois-Suomen ympäristökeskus, Sydöstra Finlands miljöcentral), which had succeeded the County Administrative Board as the competent first-instance body. The Supreme Administrative Court noted, inter alia, the small-scale nature of the project and found that the intended construction would not hamper significantly the implementation of planning regulations or the overall settlement of the area. The legal conditions for granting the exemption permit had therefore existed.
11. On 20 October 1997 the Environmental Centre nevertheless refused the applicant the exemption permit. It considered that it was not expedient to grant an exemption permit as a national park or a nature conservation area might be established in that area.
12. Upon the applicant’s appeal, the Ministry granted the exemption permit on 16 November 1998. It referred to the Supreme Administrative Court’s decision of 24 March 1997 and observed that the application could not be rejected on the sole ground that no final decision had been made on the establishment of a nature conservation area. Subsequently, on 24 June 1999 the Valkeala municipality granted the building permit. The last-mentioned decision acquired legal force on 13 July 1999.
13. On 9 July 1999, however, the Environmental Centre, of its own motion and without hearing the applicant, prohibited any activity which could jeopardise the natural state or landscape of the area. The prohibition on activity (toimenpidekielto, åtgärdsförbud) was enforceable immediately and was to remain in force for two years. The Environmental Centre noted the building permit which had just been granted to the applicant but recalled the decision on the shore protection programme, according to which the authorities should attempt to preserve the areas designated in the programme - such as Repovesi - in their natural and undeveloped state. The undeveloped Repovesi area was exceptionally large and its nature conservation value had been recognised in various national nature inventories.
14. The applicant did not appeal to the Kymi Administrative Court.
15. On 4 May 2001, i.e. before the prohibition on activity had expired, the Environmental Centre initiated expropriation proceedings with a view to acquiring the Repovesi area. The area, consisting of 82.5 hectares belonging to the applicant, was expropriated by the State under a decision made by the Ministry on 24 July 2001. On 4 June 2002 the Supreme Administrative Court rejected the applicant’s appeal.
16. Subsequently, on 7 August 2002 the compensation proceedings began. On 14 February 2003 the Expropriation Committee (lunastustoimikunta, inlösningskommissionen) decided on the amount of compensation. The decision was upheld by the Mikkeli Land Court (maaoikeus, jorddomstolen) on 22 August 2003. It appears that the applicant did not lodge a further appeal. On 22 September 2003 the compensation awarded was paid to the applicant.


ITEMID: 001-80924
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NAYDENKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1966 and lives in the town of Taganrog, the Rostov Region.
5. In the 1980s the applicant took part in a rescue operation on the site of the Chernobyl nuclear disaster. As of the late 1990s the applicant has been in receipt of social benefits in this connection.
6. On 1 December 1998 the Taganrog Town Court (“the Town Court”) granted the applicant's claim for unpaid social benefits and ordered the pension authority to make him monthly payments of 1,850.55 Russian roubles (RUR approximately 69 euros (EUR)) and a one-time payment of RUR 32,457 (approximately EUR 1,210). This judgment came into force on 17 April 1999. The sums due pursuant to the judgment of 1 December 1998 were paid in full on 8 May 2002.
7. By a judgment of 4 October 1999 the Town Court granted the applicant's claim for other unpaid social benefits and ordered the authority to pay him RUR 1,850.55 (approximately EUR 69) monthly and also to make him a one-time payment of RUR 85,650 (approximately EUR 3,172).
8. It appears that the judgment was not appealed against by the parties and came into force on 14 October 1999. The respective award was paid in full on 8 May 2002.
9. On 29 August 2000 the Town Court examined and granted the applicant's claim to index-link the social benefits in line with the minimum monthly wage using coefficient “1,581”. It does not appear that the parties challenged the judgment on appeal and on 8 September 2000 it came into force. It appears that the authority disagreed with the judgment and refused to enforce it.
10. On 6 March 2003 the Regional Court, acting by way of supervisory review upon the application of the President of the Rostov Regional Court under the old Code of Civil Procedure which, in its relevant part, remained in force until 30 June 2003, set aside the judgment of 29 August 2000 and remitted it to the first instance court for a fresh examination on the ground of a serious breach of substantive law.
11. It appears that on 5 May 2003 the domestic courts re-examined and eventually rejected the applicant's claim. The respective judgment came into force on 30 June 2003.
12. By a judgment of 5 December 2002 the Town Court examined and granted the applicant's claim for damages in respect of delays in the enforcement of the judgment of 29 August 2000.
13. The court ordered the authority to make him a one-time payment of RUR 39,446.93 (approximately EUR 1,240) and monthly payments of RUR 8,007.74 (approximately EUR 251) starting from 1 January 2003. This judgment was rectified by the Town Court decision of 29 January 2003 and later approved by the Rostov Regional Court on 19 February 2003.
14. It appears that eventually the authority was ordered to pay the applicant RUR 43,102.62 (approximately EUR 1,353) one-time and RUR 8,086.95 (approximately EUR 253) on a monthly basis.
15. It appears that the judgment was re-opened and quashed on the ground of new circumstances by the Town Court on 10 October 2003. The court considered that the quashing of the judgment of 29 August 2000 constituted a new relevant fact and quashed the judgment of 5 December 2002 accordingly. Subsequently, the court decided to reject the applicant's claims.
VIOLATED_ARTICLES: 6


ITEMID: 001-108161
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FERENCNE KOVACS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1925 and lives in Budapest.
6. The applicant was prosecuted for having assaulted an official on 8 March 2001. Between 21 March 2003 and 20 October 2008 she failed to attend, without a due excuse, seven hearings scheduled in the case. Several bench warrants were consequently issued, but in vain.
7. Eventually, on 5 March 2009 the Tatabánya District Court ordered her pre-trial detention in her absence, implicitly relying on section 281(6) of the Code of Criminal Procedure. It is not clear whether this act took place at a hearing (tárgyalás) or a session (ülés). The applicant’s appeal against her detention to the Komárom-Esztergom County Regional Court was to no avail.
8. On 17 March 2009 the applicant was apprehended. On 17 April 2009 her detention was terminated.
9. Section 281(6) of the Code of Criminal Procedure (Chapter 13: The first-instance court hearing), as in force until 7 March 2007, provided as relevant:
“If a bench warrant has been issued in the procedure due to the non-attendance of the accused, an arrest warrant shall be issued or pre-trial detention ordered, provided that the offence in question is punishable with imprisonment.”
10. By decision no. 10/2007. (III.7.) AB, the Constitutional Court deleted the phrase “pre-trial detention ordered” from the above provision. The Constitutional Court reasoned in essence that the impugned provision, in its original form, constituted a basis for a disproportionate measure: the accused’s mere non-attendance after the issuance of a bench warrant, caused by any reason, led to the assumption of wrongful omission on his/her side, entailing, without any further examination, the ordering of pre-trial detention. The Constitutional Court went on to conclude as follows:
“[T]he Constitution ... prescribes as a statutory guarantee in the procedure with a view to deciding [on pre-trial detention] that the accused must be heard. To hear the accused is part of the [constitutional] requirement of due process which is relevant in every stage of the proceedings. There is no such constitutional interest or aim which would allow a limitation on the accused’s [constitutional] right to be heard by a court, without a breach of the latter’s right to a due process.”
11. In reply to further arguments challenging the constitutionality of the remainder of section 281(6), the Constitutional Court nevertheless upheld the provision in its part allowing for an arrest warrant to be issued, holding that such a measure was still within the boundaries of proportionality, as opposed to the ordering of pre-trial detention which is the most stringent coercive measure in this field. It argued that once the absconding or unavailable accused was arrested, the court would be in a position to examine the merits of those circumstances which might require the imposition of pre-trial detention.
12. Consequently, from 7 March 2007 and at the material time, section 281(6) read as follows:
“If a bench warrant has been issued in the procedure due to the non-attendance of the accused, an arrest warrant shall be issued, provided that the offence in question is punishable with imprisonment.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-23241
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HALLGREN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Josefin Hallgren, is a Swedish national, who was born in 1974 and lives in Enskede, Sweden. She is represented before the Court by Mrs R. Harrold-Claesson, a lawyer practising in Olofstorp, Sweden.
The respondent Government are represented by their Agent, Mrs Eva Jagander of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 April 1994, when the applicant was 19 years old, she moved from her mother’s house to an apartment of her own. At that time the applicant had finished school and had a temporary job as a trainee at a radio station. On 5 April 1994 she lodged an application with the Social District Council (sociala distriktnämnden -hereinafter “the Council”) of Kungsbacka, requesting a supplementary social allowance under section 6 of the Social Services Act (Socialtjänstlagen, lag 1980:620) for her living expenses and for her rent.
On 20 April 1994 the Council rejected her request, finding that the applicant’s mother, who stood surety for the applicant on her rental contract, could provide for her needs or else the applicant could return to live at her mother’s home. She appealed against this decision to the County Administrative Court (länsrätten) of the County of Halland. Before transmitting the appeal to the court, the Council, on 25 May 1994, reviewed its decision without, however, coming to a different conclusion.
By a judgment of 1 September 1994 the County Administrative Court found for the applicant. It observed that, since she had attained the age of majority and was not studying anymore, her parents were not obliged to support her financially. Moreover, her trainee salary did not give her a reasonable standard of living.
The Council appealed against the judgment to the Administrative Court of Appeal (kammarrätten) of Gothenburg and also requested it to stay the enforcement of the County Administrative Court’s judgment, which was granted on 29 September 1994. On 7 November 1994, after having held an oral hearing on 29 October 1994, the Administrative Court of Appeal overturned the lower court’s decision and upheld the Council’s rejection.
On 18 November 1994 the applicant submitted an appeal to the Supreme Administrative Court (regeringsrätten) which received it on 2 December 1994. The court noted that the case was not of an urgent nature since the social welfare assistance requested by the applicant concerned only the period from April to August 1994; thereafter the applicant had been able to support herself. Thus, the case was not given priority according to the court’s rules of procedure.
On 12 June 1995 the Supreme Administrative Court received another case involving a very similar issue. On 21 November 1996 and 9 January 1997 it received two further such cases. It was decided that these three cases and the applicant’s case should be examined simultaneously, in order to ensure a uniform development of the Supreme Administrative Court’s case-law.
On 28 January 1997 the Supreme Administrative Court granted the applicant leave to appeal and, on 27 February 1997, it ordered the Council to submit its observations on the appeal. The Council, by letter of 26 March 1997, contested the appeal. The court then, on 8 April 1997, invited the applicant to respond to the Council’s observations, which she did by 23 April 1997. On 26 May 1997 the applicant’s observations were transmitted to the Council for information.
On 11 December 1997 the Supreme Administrative Court upheld the Administrative Court of Appeal’s judgment rejecting the applicant’s request. The court found that her financial problems had started when she moved to an apartment of her own and that, at the relevant time, such a move had not been necessary in order to ensure her a reasonable standard of living. Therefore, the applicant was not entitled to social welfare assistance under section 6 of the Social Services Act.


ITEMID: 001-70623
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: LANSFORSAKRINGAR SKARABORG v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Länsförsäkringar Skaraborg, is a Swedish insurance company. It was represented before the Court by Mr S. Larsson, a lawyer practising in Eksjö. The respondent Government were represented by Ms A. Linder, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Falköpings missionsförsamling, a religious congregation, had taken out a fire insurance policy with the applicant company for a piece of property it owned. On 1 April 1993 H.J. commenced work development training (ALU-utbildning) at the congregation. On 5 April he set fire to the house on the property which burnt down completely. H.J. was later convicted of arson.
The applicant company paid an indemnity to the congregation of about 6 million Swedish kronor (SEK) and later claimed compensation from the National Labour Market Board (Arbetsmarknadsstyrelsen; hereinafter “the AMS”), relying on the Ordinance on Compensation from Public Funds for Damage Caused by Participants in Certain Vocational Training or Vocationally-Oriented Rehabilitation (Förordningen om ersättning av allmänna medel för skada orsakad av deltagare i viss arbetsmarknads-utbildning eller yrkesinriktad rehabilitering m.m., 1980:631; hereinafter “the 1980 Ordinance”).
By a decision of 7 April 1994 the AMS rejected the applicant’s claim. It found that no right of recourse for the indemnity paid could be derived from the provisions of the 1980 Ordinance.
The applicant company appealed to the Government, maintaining that section 25 of the Insurance Contracts Act (Lagen om försäkringsavtal; 1927:77) and the terms of the insurance policy in question entitled it to succeed to any right of compensation of the policy-holder in relation to the perpetrator or anyone else liable to damages.
In an opinion to the Government, the Chancellor of Justice (Justitie-kanslern) stated that predominant reasons spoke in favour of there not being any right of the applicant to compensation from the State under section 25 of the Insurance Contract Act or the 1980 Ordinance.
On 9 October 1995 the Government upheld the decision of the AMS. It stated that the 1980 Ordinance regulated the State’s undertaking to assume responsibility, under certain conditions, for damage caused to the provider of vocational training by participants in such training. The Ordinance did not, however, regulate the general legal liability to pay compensation for damage that occurred. Section 25 of the Insurance Contracts Act was not therefore applicable in relation to the State’s undertaking under the Ordinance. Moreover, there was no other basis for granting the applicant company’s compensation claim.
The applicant company then instituted proceedings for damages against the State before the District Court (tingsrätten) of Stockholm. It claimed that the State was liable for any damage caused by a participant in vocational training, either 1) pursuant to the provisions on compensation of the 1980 Ordinance, 2) according to a contractual responsibility deriving from the Ordinance and the placement of participants in vocational training, or 3) on the basis of a responsibility as employer (principalansvar) allegedly assumed by the State. The congregation had transferred its right to compensation to the applicant, according to the terms of the insurance policy.
The State maintained, inter alia, that the 1980 Ordinance was of a public-law character and that, in the absence of express rules on the transfer of claims, a right of compensation could thus not be transferred until the compensation was available for disbursement. Further, the applicant company could not, on the basis of the insurance policy, claim any right of recourse from the State for the indemnity paid but only from the perpetrator of the act causing the damage. Moreover, a participant in vocational training not being comparable to an employee, there was no employer’s responsibility.
By a judgment of 10 April 1997 the District Court rejected the applicant company’s claims. The court considered that the right of compensation under the 1980 Ordinance rested with the injured party – in this case the congregation – and that it could not be transferred until the compensation amount had been fixed and was available for disbursement. In so finding, the court had regard to the procedure for claiming compensation under the Ordinance, which prescribed that a public authority, upon application by the employer, determined in an administrative decision whether the conditions laid down in the Ordinance were fulfilled.
The applicant appealed to the Svea Court of Appeal (Svea hovrätt). On 24 November 1998 the appellate court quashed the District Court’s judgment in so far as it had determined the applicant company’s first two grounds and rejected the applicant’s claim based on the third ground.
The appellate court considered that the State, under the 1980 Ordinance, had assumed a certain economic responsibility for damage caused by participants in vocational training for which they would normally be liable themselves under general tort liability principles. This responsibility was, however, normally limited to SEK 100,000 for damage to property under section 4 of the Ordinance. Noting further that the Ordinance prescribed that compensation claims were to be examined by the AMS and, upon appeal, by the Government, the court concluded that that examination involved a comprehensive and final determination of the claims. Consequently, the District Court had had no jurisdiction to examine the applicant company’s claims in so far as they were based on the Ordinance. It made no difference that the applicant had added a contractual element to its second ground. The first two grounds for the applicant’s claim were therefore dismissed without an examination on the merits.
As regards the applicant company’s third alternative ground, the Court of Appeal found that there was no basis for finding that the State had assumed an employer’s responsibility under chapter 3 of the Tort Liability Act (Skadeståndslagen, 1972:207) or any other similar responsibility. In so far as the claim was based on this ground, it was accordingly rejected.
On 6 July 2000 the Supreme Court (Högsta domstolen) refused the applicant company leave to appeal.
The 1980 Ordinance sets out the State’s liability for damages caused by persons in vocational training who receive benefits whilst undergoing training with a private employer. The relevant provisions, as they stood at the material time, read as follows:
Section 1:
“Compensation is given out of public funds in accordance with the provisions of this Ordinance to employers and other providers of rehabilitation or vocational training outside the regular school system for damage caused by a person who
1. participates in vocational training and receives an education allowance,
...”
Section 2:
“Compensation is awarded for personal injury or damage to property inflicted on the employer, whether or not the person causing the damage is liable for it. The same rule applies in relation to pure economic loss inflicted on the employer by way of a criminal offence. ...”
Section 4:
“Unless otherwise prescribed in subsection 2, compensation of no more than SEK 2,000,000 for personal injury, no more than SEK 100,000 for damage to property and no more than SEK 100,000 for pure economic loss caused by crime is awarded for one and the same incident to every injured party.
Upon the Government’s approval, an agreement allowing for the award of compensation for personal injury, damage to property and pure economic loss with higher amounts than those laid down in subsection 1 may be concluded.”
Section 5:
“If the compensation does not exceed SEK 100,000
1. the National Labour Market Board decides on compensation for damage caused by a person referred to in section 1, subsection 1 (1) ...
...
If the authority finds that compensation should be awarded in a higher amount than that mentioned in subsection 1 or if the matter involves questions of principle, it shall refer the matter, together with its opinion and the necessary investigation, to the Government for decision.”
According to section 13 of the later repealed Ordinance on Work Development (Förordningen om arbetslivsutveckling, 1992:1333), section 1, subsection 1 (1) of the 1980 Ordinance was applicable to a person undergoing work development training.
Section 25 of the Insurance Contracts Act regulates an insurer’s right of recourse. Subsection 1 provides:
“If an insurer, as compensation for damage pursuant to a liability insurance policy, has paid an amount of money which the policy-holder had the right to claim as damages from another person, the insurer succeeds to the right against that other person, if the latter has caused the damage with intent or gross negligence or is under a statutory obligation to pay damages whether or not he has caused the damage. However, such a right of recourse does not apply against someone who, under chapter 3, sections 1 or 2 of the Tort Liability Act, is responsible for the damage solely on account of another person’s actions.
Chapter 3, sections 1 and 2 of the Tort Liability Act provide that private employers as well as State and local authorities are liable for personal injuries, damage to property and pure economic loss caused in the course of their activities.
According to the preparatory works of the Insurance Contracts Act (Government Bill 1972:5, pp. 491 and 634), the right of recourse in section 25 of the Act should be restricted and only apply in relation to someone who is liable to pay damages on account of culpable fault or strict liability. Any extension of the right of recourse should be prevented.
The Government have decided on a few applications from insurance companies which have claimed compensation under the 1980 Ordinance on the plea of the right of recourse. In decisions of 14 March 1996 and 27 August 1998, the Government rejected two such applications where the companies had paid indemnities due to damage to property, the first one on the ground that the insurance company had no right to compensation under the Ordinance and the second one on the ground that the application was unfounded. However, by a decision of 28 May 2003, the Government granted compensation of 257,889 Swedish kronor to an insurance company which had paid an indemnity of that amount for personal injury sustained by a person in vocational rehabilitation.


ITEMID: 001-78213
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF V.S. v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1953 and lives in the village of Vladimirivka, the Donetsk region, Ukraine.
5. The applicant is an employee of the Pivdennodonbaska State Mine (hereinafter - the SMP Mine). On 24 June 1996 he suffered an industrial injury.
6. In October 1998 the applicant instituted proceedings in the Volnovakha City Court against the SMP Mine seeking compensation for the injury. On 16 June 2000 the court found in part for the applicant.
7. On 6 December 2000 the Presidium of the Donetsk Regional Court allowed the protest lodged by the Deputy President of the Donetsk Regional Court and quashed the decision of 16 June 2000. The case was remitted for a fresh consideration to the Vugledar City Court.
8. On 7 June 2001 the Vugledar City Court found that the applicant had been injured due to the fault of the SMP Mine and ordered it to pay him UAH 37,465.41 in compensation and UAH 800 of costs and expenses (рішення Вугледарського міського суду Донецької області). The court also awarded the applicant a monthly allowance of UAH 162.57 in compensation for loss of earnings for the period of 8 May – 8 September 2001.
9. On 6 August 2001 the Vugledar City Bailiffs' Service instituted enforcement proceedings in respect of the judgment of 7 June 2001.
10. According to the Government, the judgment was fully enforced in instalments: during the periods of April – December 2002 and August – December 2003 the applicant received a total of UAH 10,227, and in 2004 he received the remaining amount of the judgment debt (UAH 27,238). The last payment took place in May 2004. The applicant was also paid UAH 800 for his legal expenses.
11. On 1 June 2004 the Bailiffs' Service terminated the enforcement proceedings as the judgment of 7 June 2001 was enforced in full. The applicant never challenged the Bailiffs' decisions of 1 June 2004. Nevertheless, he maintains that the debtor still owes him UAH 515.27.
12. In July 2004 the applicant lodged a new claim with the Voroshilovskiy District Court of Donetsk against the State Enterprise “Donetsk Coal Energy Company” (Державне підприємство „Донецька вугільна енергетична компанія”), seeking compensation for the substantial delay in the enforcement of the judgment of 7 June 2001. Within the course of the proceedings the court appointed a forensic accounting expertise to calculate the amount of compensation due to the applicant. In their conclusions of 14 July 2005 the experts mentioned, inter alia, that, out of the total amount of the judgment award, UAH 515.27 remained unpaid.
13. On 1 November 2005 the court partly allowed the applicant's claim as, according to the domestic legislation then in force, untimely paid salary had to be recalculated if a price index had increased for more than 1 % during the relevant period of delay in payment. The court also found that the applicant had sustained moral damage as the result of the lengthy non-enforcement of the judgment in his favour. The court awarded the applicant the total of UAH 8,609.88, including UAH 500 in compensation for moral damage.
14. On 28 November 2005 the Voroshilovskiy District Bailiffs' Service of Donetsk instituted enforcement proceedings in respect of the judgment of 1 November 2005.
15. On 6 December 2005 the enforcement proceedings were terminated in accordance with the Law of Ukraine “On measures to ensure the stable operation of fuel and energy sector enterprises” (Закон України „Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу»).
16. The judgment of 1 November 2005 remained unenforced.
17. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98552
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VISLOGUZOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3 (substantive aspect);Violation of Art. 8;Violation of Art. 13;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1965 and lives in Frunze, in the Kherson region.
5. On 13 February 2001 the applicant was transferred to Pivnichna Correctional Colony no. 90 (“Colony no. 90”) to serve a prison sentence. The applicant was held in Colony no. 90 for the duration of his post-conviction detention except for several periods during which he was placed in prison hospitals and the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”), as specified below.
6. On 7 December 2005 the applicant was released.
7. At the time of his arrival at Colony no. 90 the applicant was suffering from tuberculosis, weight loss, and chronic hepatitis.
8. Following a medical examination in Colony no. 90, the applicant was prescribed a special diet in view of the weight loss. According to the applicant, the diet was unsatisfactory.
9. In May and August 2001 and February 2002 the applicant was medically examined, X-rayed, and diagnosed with a dormant form of tuberculosis.
10. On 11 May 2002, in response to complaints by the applicant, he was transferred to the hospital at Correctional Colony no. 10, where he was treated for chronic hepatitis for one month.
11. In October 2002 and February and March 2003 the applicant was X-rayed but, apparently, no treatment followed.
12. According to the Government, following complaints made by the applicant on 2 and 19 January and 17 September 2003, the medical department of Colony no. 90 diagnosed him with a neurological disorder and provided him with ambulatory treatment. According to the applicant, on several occasions during that period of time he was administered a psychotropic agent by force, which was detrimental to his health. The applicant did not complain to the domestic authorities on this account.
13. Between 2 and 23 April 2003 the applicant was held in the hospital at Colony no. 10 and provided with medical treatment for weight loss.
14. In October 2003 and May 2004 the applicant was again X-rayed without any further specific treatment being provided.
15. Between September and November 2004 the applicant was held in the hospital at Colony no. 7 and treated for tuberculosis.
16. According to the applicant, the medical treatment provided to him while in post-conviction detention did not improve his health in any manner.
17. According to the Government, while in detention in Colony no. 90 the applicant was held with 15 other detainees in a unit measuring 60.1 m2. The unit was supplied with the required number of bunks and other furniture. The applicant had sufficient access to daylight, fresh air, and washing facilities. The nutrition was appropriate and complied with the domestic requirements.
18. According to the applicant, in Colony no. 90 he was primarily held in a unit measuring 150 m2 with a total number of 200 detainees. Subsequently he was transferred to a unit measuring 50 m2 and was held there with 15 other detainees. He had to sleep on a worn-out mattress and pillow; the water supply and catering were inadequate. Overall, the hygienic and sanitary conditions were unsatisfactory.
19. Between 4 November 2003 and 26 February 2004 the applicant was held in the Simferopol SIZO.
20. According to the Government, in that facility the applicant was held in cells measuring:
- 28.5 m2, in which the number of detainees varied from 10 to 14;
- 27.5 m2, in which the number of detainees varied from 8 to 13;
- 20.1 m2, in which the number of detainees varied from 3 to 5;
- 15 m2, in which the number of detainees varied from 2 to 3;
- 26.8 m2, in which the number of detainees varied from 8 to 14;
- 26.5 m2, in which the number of detainees varied from 10 to 13;
- 30 m2, in which the number of detainees varied from 11 to 14.
All the cells were supplied with a sufficient number of bunks. The ventilation system was in good working order.
21. According to the applicant, during his detention in the Simferopol SIZO he was placed in a cell measuring 30 m2, while the number of detainees amounted at least to 40. They had to take it in turns to sleep owing to the lack of bunks. Because the cell was overcrowded there was always a lack of fresh air.
22. According to the applicant, while he was in post-conviction detention he filed complaints with State authorities on various issues. He did not send some of these letters through the prison administration, as required by the domestic law, but passed them to his wife who then posted them to the addressees. The applicant did so allegedly in order to avoid interception of the letters by the prison officials.
23. On 25 February 2003 he was allegedly punished with fifteen days' confinement in a disciplinary cell for breaching the procedure for sending letters.
24. On 31 July 2002 the applicant's wife sent a letter to the Court expressing intention to submit a formal application with the Court on behalf of the applicant. She indicated her home address only.
25. On 4 September 2002 the Registry of the Court provided her with a copy of the Convention, application and authority forms as well as explanatory notes.
26. On 21 October 2002 when visiting the applicant his wife handed the Court's letter to him. Shortly after that the prison officials seized the letter from the applicant on the ground that it had been obtained unlawfully.
27. According to the Government, on the same day the letter was seized the prison officials examined all the documents contained therein and invited the applicant to take the seized items back, which he refused to do. In support of their contention, the Government provided a report drawn up by the prison officials documenting the applicant's refusal to collect the seized items. The report was signed by the applicant who added a comment that the facts described therein had been distorted.
28. According to the applicant, the prison officials never attempted to return the letter despite his requests to that effect.
29. By letter of 22 November 2002 the applicant's wife complained to the Court of the seizure and asked for assistance. The Court sent a new set of documents necessary for lodging an application.
30. On 15 October 2003 the applicant submitted a completed application form and a letter authorising his wife to act on his behalf (dated 7 October 2003), and supporting materials.
31. In accordance with Article 28 and 44 of the Code prisoners' correspondence was subject to monitoring by prison officials. Prison officials were not allowed to review only those of the prisoners' letters which were addressed to the prosecutor or the Ombudsman.
32. Section 17 of the Act provides that persons suffering from tuberculosis detained in prisons should be treated in specialised prison hospitals.
33. According to paragraph 31.2 of the Rules prisoners were allowed to send letters through the prison administration only.
34. Under paragraph 35.7 of the Rules prisoners were forbidden to receive any documents, notes, drafts etc. from visitors during meetings.
35. The relevant international reports and other materials concerning treatment of tuberculosis in Ukraine are summarised in the judgment in the case of Melnik v. Ukraine (no. 72286/01, §§ 47-53, 28 March 2006).
VIOLATED_ARTICLES: 13
3
34
8


ITEMID: 001-84571
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF E.B. v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Article 14+8 - Prohibition of discrimination (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award
JUDGES: Antonella Mularoni;Christos Rozakis;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Loukis Loucaides;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Riza Türmen;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1961 and lives in Lons-le-Saunier.
8. She has been a nursery school teacher since 1985 and, since 1990, has been in a stable relationship with a woman, Ms R., who is a psychologist.
9. On 26 February 1998 the applicant made an application to the Jura Social Services Department for authorisation to adopt a child. She wanted to investigate the possibility of international adoption, in particular in Asia, South America and Madagascar. She mentioned her sexual orientation and her relationship with her partner, Ms R.
10. In a report dated 11 August 1998 the socio-educational assistant and paediatric nurse noted the following points among others:
“Ms B. and Ms R. do not regard themselves as a couple, and Ms R., although concerned by her partner's application to adopt a child, does not feel committed by it.
Ms B. considers that she will have to play the role of mother and father, and her partner does not lay claim to any right vis-à-vis the child but will be at hand if necessary.
...
Ms B. is seeking to adopt following her decision not to have a child herself.
She would prefer to explain to a child that he or she has had a father and mother and that what she wants is the child's happiness than to tell the child that she does not want to live with a man.
...
Ms B. thinks of a father as a stable, reassuring and reliable figure. She proposes to provide a future adopted child with this father figure in the persons of her own father and her brother-in-law. But she also says that the child will be able to choose a surrogate father in his or her environment (a friend's relatives, a teacher, or a male friend ...).
...
CONCLUSION
“On account of her personality and her occupation, Ms B. is a good listener, is broad-minded and cultured, and is emotionally receptive. We also appreciated her clear-sighted approach to analysing problems and her child-raising and emotional capacities.
However, regard being had to her current lifestyle: unmarried and cohabiting with a female partner, we have not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child's stable and well-adjusted development.
Opinion reserved regarding authorisation to adopt a child.”
11. On 28 August 1998, in her report on the interviews she had had with the applicant, the psychologist examining her application recommended in the following terms that authorisation be refused:
“ ...
Ms [B.] has many personal qualities. She is enthusiastic and warm-hearted and comes across as very protective of others.
Her ideas about child-rearing appear very positive. Several question marks remain, however, regarding a number of factors pertaining to her background, the context in which the child will be cared for and her desire for a child.
Is she not seeking to avoid the “violence” of giving birth and genetic anxiety regarding a biological child?
Idealisation of a child and under-estimation of the difficulties inherent in providing one with a home: is she not fantasising about being able to fully mend a child's past?
How certain can we be that the child will find a stable and reliable paternal referent?
The possibilities of identification with a paternal role model are somewhat unclear. Let us not forget that children forge their identity with an image of both parents. Children need adults who will assume their parental function: if the parent is alone, what effects will that have on the child's development?
...
We do not wish to diminish Ms [B.]'s confidence in herself in any way, still less insinuate that she would be harmful to a child; what we are saying is that all the studies on parenthood show that a child needs both its parents.
Moreover, when asked whether she would have wanted to be brought up by only one of her parents, Ms B. answered no.
...
A number of grey areas remain, relating to the illusion of having a direct perception of her desire for a child: would it not be wiser to defer this request pending a more thorough analysis of the various – complex – aspects of the situation?...”
12. On 21 September 1998 a technical officer from the children's welfare service recommended that authorisation be refused, observing that the applicant had not given enough thought to the question of a paternal and male role model, and assumed that she could easily take on the role of father and mother herself, while mentioning a possible role for her father and/or brother-in-law, who lived a long way away, however, meaning that meetings with the child would be difficult. The officer also wondered about the presence of Ms R. in the applicant's life, noting that they refused to regard themselves as a couple and that Ms R. had not at any time been involved in the plan to adopt. The reasoning of the opinion ended as follows:
“I find myself faced with a lot of uncertainties about important matters concerning the psychological development of a child who has already experienced abandonment and a complete change of culture and language...”.
13. On 12 October 1998 the psychologist from the children's welfare service, who was a member of the adoption board, recommended that authorisation be refused on the ground that placing a child with the applicant would expose the child to a certain number of risks relating to the construction of his or her personality. He referred among other things to the fact that the applicant lived with a girlfriend but did not consider herself to be in a couple, which gave rise to an unclear or even an unspoken situation involving ambiguity and a risk that the child would have only a maternal role model. The psychologist went on to make the following comments:-
“...
It is as though the reasons for wanting a child derived from a complicated personal background that has not been resolved with regard to the role as child-parent that [the applicant] appears to have had to play (vis-à-vis one of her sisters, protection of her parents), and were based on emotional difficulties. Has this given rise to a feeling of worthlessness or uselessness that she is trying to overcome by becoming a mother?
Unusual attitude towards men in that men are rejected.
In the extreme, how can rejection of the male figure not amount to rejection of the child's own image? (A child eligible for adoption has a biological father whose symbolic existence must be preserved, but will this be within [the applicant's] capabilities?) ...”
14. On 28 October 1998 the Adoption Board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation to adopt in the following terms:-
“...From my personal experience of life with a foster family I am now, with the benefit of hindsight, in a position to assess the importance of a mixed couple (man and woman) in providing a child with a home.
The role of the “adoptive mother” and the “adoptive father” in the child's day-to-day upbringing are complementary, but different.
It is a balance that will be shaken by the child to a degree that may sometimes vary in intensity according to how he or she experiences the realisation and acceptance of the truth about his or her origins and history.
I therefore think it necessary, in the interests of the child, for there to be a solid balance between an “adoptive mother” and an “adoptive father” where adoption is being envisaged. ...”
15. On 4 November 1998 the Board's representative from the Family Council, present on behalf of the union of family associations for the département (UDAF), referring to the Convention on the Rights of the Child of 20 November 1989, recommended that authorisation be refused on the ground of the lack of a paternal referent and added:
“ ... It appears impossible to build a family and bring up a child without the full support of this partner [R.] for the plan. The psychologists' and welfare reports show her clear lack of interest in Ms [B.]'s plan ...
In the further alternative, the material conditions for providing a child with a suitable home are not met. It will be necessary to move house, solve the issue of how to divide expenses between both partners, whose plans differ at least in this respect.”
16. On 24 November 1998 the head of the children's welfare service also recommended that authorisation be refused, noting expressly that
“Ms [B.] lives with a female partner who does not appear to be a party to the plan. The role this partner would play in the adopted child's life is not clearly defined.
There does not appear to be room for a male referent who would actually be present in the child's life.
In these circumstances, there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well-being.”
17. In a letter of 26 November 1998 the decision of the president of the council for the département refusing authorisation to adopt was served on the applicant. The following reasons, among others, were given:
“... in examining any application for authorisation to adopt I have to consider the child's interests alone and ensure that all the relevant safeguards are in place.
Your plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child.
Moreover, the place that your partner would occupy in the child's life is not sufficiently clear: although she does not appear to oppose your plan, neither does she seem to be involved, which would make it difficult for the child to find its bearings.
Accordingly, all the foregoing factors do not appear to ensure that an adopted child will have a sufficiently structured family framework in which to flourish. ...”
18. On 20 January 1999 the applicant asked the president of the council for the département to reconsider the decision refusing her authorisation to adopt.
19. The children's welfare service asked a clinical psychologist to prepare a psychological assessment. In her report of 7 March 1999, drawn up after an interview with the applicant, the psychologist concluded that “Ms B. ha[d] plenty to offer in providing a home for a child (patience-values-creativity-time)”, but considered that adoption was premature having regard to a number of problematic points (confusion between a non-directive and laissez-faire attitude, and ignorance of the effects of the introduction of a third person into the home set-up).
20. On 17 March 1999 the president of the council for the département of the Jura confirmed the refusal to grant the request for authorisation.
21. On 13 May 1999 the applicant applied to the Besançon Administrative Court seeking to have the administrative decisions of 26 November 1998 and 17 March 1999 set aside. She also contested the manner in which the screening process in respect of her request for authorisation had been conducted. She pointed out that many people involved in the process had not met her, including the psychologist from the adoption board.
22. In a judgment of 24 February 2000 the Administrative Court set aside the decisions of 26 November 1998 and 19 March 1999, ruling as follows:
“... the president of the council for the département of the Jura based his decision both on “the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child” and on “the place [her] partner would occupy in the child's life”. The reasons cited are not in themselves capable of justifying a refusal to grant authorisation to adopt. The documents in the case file show that Ms B., who has undisputed personal qualities and an aptitude for bringing up children, and who is a nursery school teacher by profession and well integrated into her social environment, does offer sufficient guarantees – from a family, child-rearing and psychological perspective – that she would provide an adopted child with a suitable home. ... Ms B. is justified, in the circumstances of this case, in seeking to have the decisions refusing her authorisation set aside ...”
23. The département of the Jura appealed. The Nancy Administrative Court of Appeal, in a judgment of 21 December 2000, set aside the lower court's judgment. It found, first, that “B. maintain[ed] that she ha[d] not been sent a personality test, but [did] not allege that she [had] asked for the document and that her request [had been] refused” and that the 4th paragraph of Article 63 of the Family and Social Welfare Code “[did] not have the effect of precluding a report from being drawn up on the basis of a summary of the main points of other documents. Hence, the fact that a psychologist [had drawn] up a report just on the basis of information obtained by other people working on the case and without hearing submissions from the applicant [did] not invalidate the screening process carried out in respect of Ms B.'s application for authorisation to adopt ...”.
24. The court went on to find that
“... the reasons for the decisions of 26 November 1998 and 17 March 1999, which were taken following an application for reconsideration of the decision of the president of the council for the département of the Jura rejecting the application for authorisation to adopt submitted by Ms B., are the absence of “identificational markers” due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child. It can be seen from the documents in the file, and particularly the evidence gathered during the examination of Ms B.'s application, that having regard to the latter's lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, she did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child...;
... contrary to Ms B.'s contentions, the president of the council for the département did not refuse her authorisation on the basis of a position of principle regarding her choice of lifestyle. Accordingly, and in any event, the applicant is not justified in alleging a breach ... of the requirements of Articles 8 and 14 of the Convention...”.
25. The applicant appealed on points of law. On 5 June 2002 the Conseil d'Etat dismissed her appeal in a judgment giving the following reasons:
“... Regarding the grounds for refusing Ms B. authorisation:
...
Firstly, the fact that a request for authorisation to adopt a child is submitted by a single person, as is permitted by Article 343-1 of the Civil Code, does not prevent the administrative authority from ascertaining, in terms of child-rearing and psychological factors that foster the development of the child's personality, whether the prospective adoptive parent can offer – in her circle of family and friends – a paternal “role model or referent” where the application is submitted by a woman ...; nor, where a single person seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home for the purposes of the above-mentioned provisions, does this fact prevent the authority from determining – even if the relationship in question is not a legally binding one – whether the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home. Accordingly, the Administrative Court of Appeal did not err in law in considering that the two grounds on which the application by Ms [B.] for authorisation as a single person was refused – namely, the “absence of identificational markers due to the lack of a paternal role model or referent” and “the ambivalence of the commitment of each member of the household to the adoptive child” – were capable of justifying, under the above-mentioned provisions of the decree of 1 September 1998, the refusal to grant authorisation;
Secondly, with regard to Ms [B.]'s assertion that, in referring to her “lifestyle” to justify the refusal to grant her authorisation to adopt, the Administrative Court of Appeal had implicitly referred to her sexual orientation, it can be seen from the documents submitted to the tribunals of fact that Ms [B.] was, at the time of the examination of her application, in a stable homosexual relationship. As that relationship had to be taken into consideration in the needs and interests of an adopted child, the court neither based its decision on a position of principle in view of the applicant's sexual orientation nor breached the combined requirements of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; nor did it breach the provisions of Article L. 225-2 of the Criminal Code prohibiting sexual discrimination;
Thirdly, in considering that Ms [B.], “having regard to her lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child”, the Administrative Court of Appeal, which did not disregard the elements favourable to the applicant in the file submitted to it, did not distort the contents of the file;
It follows from the foregoing that Ms [B.] is not justified in seeking to have set aside the above-mentioned judgment, which contains adequate reasons ...”.
26. The relevant provisions at the material time read as follows:
“Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age.”
“Adoption may also be applied for by any person over twenty-eight years of age. ...”
27. The relevant provisions at the material time read as follows:
“Children in State care may be adopted either by persons given custody of them by the children's welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt ...
Authorisation shall be granted for five years, within nine months of the date of the application, by the president of the council for the relevant département after obtaining the opinion of a[n] [adoption] board. ...”
“Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.”
28. The relevant provisions of the decree read as follows:
“Any person wishing to obtain the authorisation contemplated in the first paragraph of Article 63 and Article 100-3 of the Family and Social Welfare Code must submit an application to that end to the president of the council for the département in which he or she resides. ...”
“Before issuing authorisation, the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family, child-rearing and psychological perspective.
To that end, he shall order inquiries into the applicant's circumstances ...”
“The decision shall be taken by the president of the council for the relevant département after consulting the adoption board ...”
29. The relevant provisions of this draft Convention, currently being examined by the Committee of Ministers of the Council of Europe, provide inter alia:
“1. The law shall permit a child to be adopted:
a. by two persons of different sex
i. who are married to each other, or
ii. where such an institution exists, have entered into a registered partnership together;
b. by one person.
2. States are free to extend the scope of this convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this convention to different-sex couples and same-sex couples who are living together in a stable relationship.”
30. The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and which came into force on 2 September 1990 read as follows:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”
“States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.”
“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”
“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.”
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. ...”
31. The relevant provisions of the Hague Convention of 29 May 1993 provide:
“An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State:
a) have determined that the prospective adoptive parents are eligible and suited to adopt;
b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and
c) have determined that the child is or will be authorized to enter and reside permanently in that State.”
“1. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.
2. It shall transmit the report to the Central Authority of the State of origin.”
VIOLATED_ARTICLES: 14
8
VIOLATED_PARAGRAPHS: 8-1