ITEMID: 001-57897
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF OTTO-PREMINGER-INSTITUT v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Preliminary objections rejected (victim, estoppel);Preliminary objection rejected (six month period);No violation of Art. 10
JUDGES: R. Pekkanen
TEXT: 9. The applicant, Otto-Preminger-Institut für audiovisuelle Mediengestaltung (OPI), is a private association under Austrian law established in Innsbruck. According to its articles of association, it is a non-profit-making organisation, its general aim being to promote creativity, communication and entertainment through the audiovisual media. Its activities include operating a cinema called "Cinematograph" in Innsbruck.
10. The applicant association announced a series of six showings, which would be accessible to the general public, of the film Das Liebeskonzil ("Council in Heaven") by Werner Schroeter (see paragraph 22 below). The first of these showings was scheduled for 13 May 1985. All were to take place at 10.00 p.m. except for one matinée performance on 19 May at 4 p.m.
This announcement was made in an information bulletin distributed by OPI to its 2,700 members and in various display windows in Innsbruck including that of the Cinematograph itself. It was worded as follows:
"Oskar Panizza’s satirical tragedy set in Heaven was filmed by Schroeter from a performance by the Teatro Belli in Rome and set in the context of a reconstruction of the writer’s trial and conviction in 1895 for blasphemy. Panizza starts from the assumption that syphilis was God’s punishment for man’s fornication and sinfulness at the time of the Renaissance, especially at the court of the Borgia Pope Alexander VI. In Schroeter’s film, God’s representatives on Earth carrying the insignia of worldly power closely resemble the heavenly protagonists.
Trivial imagery and absurdities of the Christian creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated."
In addition, the information bulletin carried a statement to the effect that, in accordance with the Tyrolean Cinemas Act (Tiroler Lichtspielgesetz), persons under seventeen years of age were prohibited from seeing the film.
A regional newspaper also announced the title of the film and the date and place of the showing without giving any particulars as to its contents.
11. At the request of the Innsbruck diocese of the Roman Catholic Church, the public prosecutor instituted criminal proceedings against OPI’s manager, Mr Dietmar Zingl, on 10 May 1985. The charge was "disparaging religious doctrines" (Herabwürdigung religiöser Lehren), an act prohibited by section 188 of the Penal Code (Strafgesetzbuch - see paragraph 25 below).
12. On 12 May 1985, after the film had been shown at a private session in the presence of a duty judge (Journalrichter), the public prosecutor made an application for its seizure under section 36 of the Media Act (Mediengesetz - see paragraph 29 below). This application was granted by the Innsbruck Regional Court (Landesgericht) the same day. As a result, the public showings announced by OPI, the first of which had been scheduled for the next day, could not take place.
Those who attended at the time set for the first showing were treated to a reading of the script and a discussion instead.
As Mr Zingl had returned the film to the distributor, the "Czerny" company in Vienna, it was in fact seized at the latter’s premises on 11 June 1985.
13. An appeal by Mr Zingl against the seizure order, filed with the Innsbruck Court of Appeal (Oberlandesgericht), was dismissed on 30 July 1985. The Court of Appeal considered that artistic freedom was necessarily limited by the rights of others to freedom of religion and by the duty of the State to safeguard a society based on order and tolerance. It further held that indignation was "justified" for the purposes of section 188 of the Penal Code only if its object was such as to offend the religious feelings of an average person with normal religious sensitivity. That condition was fulfilled in the instant case and forfeiture of the film could be ordered in principle, at least in "objective proceedings" (see paragraph 28 below). The wholesale derision of religious feeling outweighed any interest the general public might have in information or the financial interests of persons wishing to show the film.
14. On 24 October 1985 the criminal prosecution against Mr Zingl was discontinued and the case was pursued in the form of "objective proceedings" under section 33 para. 2 of the Media Act aimed at suppression of the film.
15. On 10 October 1986 a trial took place before the Innsbruck Regional Court. The film was again shown in closed session; its contents were described in detail in the official record of the hearing.
Mr Zingl appears in the official record of the hearing as a witness. He stated that he had sent the film back to the distributor following the seizure order because he wanted nothing more to do with the matter.
It appears from the judgment - which was delivered the same day - that Mr Zingl was considered to be a "potentially liable interested party" (Haftungsbeteiligter).
The Regional Court found it to be established that the distributor of the film had waived its right to be heard and had agreed to the destruction of its copy of the film.
16. In its judgment the Regional Court ordered the forfeiture of the film. It held:
"The public projection scheduled for 13 May 1985 of the film Das Liebeskonzil, in which God the Father is presented both in image and in text as a senile, impotent idiot, Christ as a cretin and Mary Mother of God as a wanton lady with a corresponding manner of expression and in which the Eucharist is ridiculed, came within the definition of the criminal offence of disparaging religious precepts as laid down in section 188 of the Penal Code."
The court’s reasoning included the following:
"The conditions of section 188 of the Penal Code are objectively fulfilled by this portrayal of the divine persons - God the Father, Mary Mother of God and Jesus Christ are the central figures in Roman Catholic religious doctrine and practice, being of the most essential importance, also for the religious understanding of the believers - as well as by the above-mentioned expressions concerning the Eucharist, which is one of the most important mysteries of the Roman Catholic religion, the more so in view of the general character of the film as an attack on Christian religions ...
... Article 17a of the Basic Law (Staatsgrundgesetz) guarantees the freedom of artistic creation and the publication and teaching of art. The scope of artistic freedom was broadened (by the introduction of that article) to the extent that every form of artistic expression is protected and limitations of artistic freedom are no longer possible by way of an express legal provision but may only follow from the limitations inherent in this freedom ... . Artistic freedom cannot be unlimited. The limitations on artistic freedom are to be found, firstly, in other basic rights and freedoms guaranteed by the Constitution (such as the freedom of religion and conscience), secondly, in the need for an ordered form of human coexistence based on tolerance, and finally in flagrant and extreme violations of other interests protected by law (Verletzung anderer rechtlich geschützter Güter), the specific circumstances having to be weighed up against each other in each case, taking due account of all relevant considerations ...
The fact that the conditions of section 188 of the Penal Code are fulfilled does not automatically mean that the limit of the artistic freedom guaranteed by Article 17a of the Basic Law has been reached. However, in view of the above considerations and the particular gravity in the instant case - which concerned a film primarily intended to be provocative and aimed at the Church - of the multiple and sustained violation of legally protected interests, the basic right of artistic freedom will in the instant case have to come second.
..."
17. Mr Zingl appealed against the judgment of the Regional Court, submitting a declaration signed by some 350 persons who protested that they had been prevented from having free access to a work of art, and claiming that section 188 of the Penal Code had not been interpreted in line with the guarantee of freedom of art laid down by Article 17a of the Basic Law.
The Innsbruck Court of Appeal declared the appeal inadmissible on 25 March 1987. It found that Mr Zingl had no standing, as he was not the owner of the copyright of the film. The judgment was notified to OPI on 7 April 1987.
18. Prompted by the applicant association’s lawyer, the then Minister for Education, Arts and Sports, Dr Hilde Hawlicek, wrote a private letter to the Attorney General (Generalprokurator) suggesting the filing of a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof). The letter was dated 18 May 1987 and mentioned, inter alia, Article 10 (art. 10) of the Convention.
The Attorney General decided on 26 July 1988 that there were no grounds for filing such a plea of nullity. The decision mentioned, inter alia, that the Attorney General’s Department (Generalprokuratur) had long held the view that artistic freedom was limited by other basic rights and referred to the ruling of the Supreme Court in the case concerning the film Das Gespenst ("The Ghost" - see paragraph 26 below); in the Attorney General’s opinion, in that case the Supreme Court had "at least not disapproved" of that view ("Diese Auffassung ... wurde vom Obersten Gerichtshof ... zumindest nicht mißbilligt").
19. There have been theatre performances of the original play in Austria since then: in Vienna in November 1991, and in Innsbruck in October 1992. In Vienna the prosecuting authorities took no action. In Innsbruck several criminal complaints (Strafanzeigen) were laid by private persons; preliminary investigations were conducted, following which the prosecuting authorities decided to discontinue the proceedings.
20. The play on which the film is based was written by Oskar Panizza and published in 1894. In 1895 Panizza was found guilty by the Munich Assize Court (Schwurgericht) of "crimes against religion" and sentenced to a term of imprisonment. The play was banned in Germany although it continued in print elsewhere.
21. The play portrays God the Father as old, infirm and ineffective, Jesus Christ as a "mummy’s boy" of low intelligence and the Virgin Mary, who is obviously in charge, as an unprincipled wanton. Together they decide that mankind must be punished for its immorality. They reject the possibility of outright destruction in favour of a form of punishment which will leave it both "in need of salvation" and "capable of redemption". Being unable to think of such a punishment by themselves, they decide to call on the Devil for help.
The Devil suggests the idea of a sexually transmitted affliction, so that men and women will infect one another without realising it; he procreates with Salome to produce a daughter who will spread it among mankind. The symptoms as described by the Devil are those of syphilis.
As his reward, the Devil claims freedom of thought; Mary says that she will "think about it". The Devil then dispatches his daughter to do her work, first among those who represent worldly power, then to the court of the Pope, to the bishops, to the convents and monasteries and finally to the common people.
22. The film, directed by Werner Schroeter, was released in 1981. It begins and ends with scenes purporting to be taken from the trial of Panizza in 1895. In between, it shows a performance of the play by the Teatro Belli in Rome. The film portrays the God of the Jewish religion, the Christian religion and the Islamic religion as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. He is also portrayed as swearing by the Devil. Other scenes show the Virgin Mary permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between the Virgin Mary and the Devil. The adult Jesus Christ is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting. God, the Virgin Mary and Christ are shown in the film applauding the Devil.
23. Religious freedom is guaranteed by Article 14 of the Basic Law, which reads:
"(1) Complete freedom of beliefs and conscience is guaranteed to everyone.
(2) Enjoyment of civil and political rights shall be independent of religious confessions; however, a religious confession may not stand in the way of civic duties.
(3) No one shall be compelled to take any church-related action or to participate in any church-related celebration, except in pursuance of a power conferred by law on another person to whose authority he is subject."
24. Artistic freedom is guaranteed by Article 17a of the Basic Law, which provides:
"There shall be freedom of artistic creation and of the publication and teaching of art."
25. Section 188 of the Penal Code reads as follows:
"Whoever, in circumstances where his behaviour is likely to arouse justified indignation, disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to a prison sentence of up to six months or a fine of up to 360 daily rates."
26. The leading judgment of the Supreme Court on the relationship between the above two provisions was delivered after a plea of nullity for safeguarding the law filed by the Attorney General in a case concerning forfeiture of the film Das Gespenst ("The Ghost") by Herbert Achternbusch. Although the plea was dismissed on purely formal grounds without any decision on the merits, it appeared obliquely from the judgment that if a work of art impinges on the freedom of religious worship guaranteed by Article 14 of the Basic Law, that may constitute an abuse of the freedom of artistic expression and therefore be contrary to the law (judgment of 19 December 1985, Medien und Recht (Media and Law) 1986, no. 2, p. 15).
27. A media offence (Medieninhaltsdelikt) is defined as "[a]n act entailing liability to a judicial penalty, committed through the content of a publication medium, consisting in a communication or performance aimed at a relatively large number of persons" (section 1 para. 12 of the Media Act). Criminal liability for such offences is determined according to the general penal law, in so far as it is not derogated from or added to by special provisions of the Media Act (section 28 of the Media Act).
28. A specific sanction provided for by the Media Act is forfeiture (Einziehung) of the publication concerned (section 33). Forfeiture may be ordered in addition to any normal sanction under the Penal Code (section 33 para. 1).
If prosecution or conviction of any person for a criminal offence is not possible, forfeiture can also be ordered in separate so-called "objective" proceedings for the suppression of a publication, as provided for under section 33 para. 2 of the Media Act, by virtue of which:
"Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment ..."
29. The seizure (Beschlagnahme) of a publication pending the decision on forfeiture may be effected pursuant to section 36 of the Media Act, which reads:
"1. The court may order the seizure of the copies intended for distribution to the public of a work published through the media if it can be assumed that forfeiture will be ordered under section 33 and if the adverse consequences of such seizure are not disproportionate to the legitimate interests served thereby. Seizure may not be effected in any case if such legitimate interests can also be served by publication of a notice concerning the criminal proceedings instituted.
2. Seizure presupposes the prior or simultaneous institution of criminal proceedings or objective proceedings concerning a media offence and an express application to that effect by the public prosecutor or the complainant in separate proceedings.
3. The decision ordering seizure shall mention the passage or part of the published work and the suspected offence having prompted the seizure ...
4-5. ..."
30. The general law of criminal procedure applies to the prosecution of media offences and to objective proceedings. Although in objective proceedings the owner or publisher of the published work does not stand accused of any criminal offence, he is treated as a full party, by virtue of section 41 para. 5, which reads:
"[In criminal proceedings or objective proceedings concerning a media offence] the media owner (publisher) shall be summoned to the hearing. He shall have the rights of the accused; in particular, he shall be entitled to the same defences as the accused and to appeal against the judgment on the merits ..."
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-90549
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KLIBER v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1938 and lives in Otwock.
5. The applicant lives in a block of flats in Otwock.
6. In 1981 (according to the applicant) or in 1985 (according to the applicant’s neighbour) the applicant’s neighbour fitted bars to his balcony in such a way that they could serve as a ladder to the applicant’s apartment on the first floor, and subsequently, in 1994, he adapted part of the staircase as a cellar by constructing a wall, allegedly without the required permit.
7. On 27 June 1994 the applicant informed the competent administrative authority about the construction works and requested that his neighbour be ordered to dismantle the bars and the wall on the staircase.
8. On 28 February 1995, following numerous letters from the applicant seeking to accelerate the proceedings, the Otwock District Office (Urząd Rejonowy) ordered the applicant’s neighbour to carry out some reconstruction works on the bars. It did not refer to the wall on the staircase.
9. On an unspecified date the applicant appealed to the Warsaw Governor (Wojewoda).
10. The Warsaw Governor did not give a decision within the statutory fourteen-day time-limit. Therefore, on 12 March 1995, the applicant complained to the Chief Building Inspectorate (Główny Urząd Nadzoru Budowlanego).
11. On 18 July 1995 the Chief Building Inspector allowed the complaint and ordered the Governor to give a decision within fourteen days.
12. On 7 August 1995 the Warsaw Governor upheld the first-instance decision. The Governor did not refer to the wall.
13. On 7 September 1995 the applicant lodged a complaint with the Supreme Administrative Court (Najwyższy Sąd Administracyjny).
14. On 13 February 1997 the Supreme Administrative Court quashed the challenged decision and the decision of the first-instance authority.
15. Apparently the Supreme Administrative Court scheduled another hearing to deal with a second part of the applicant’s complaint, concerning the wall constructed on his staircase.
16. On 4 June 1997 the Supreme Administrative Court gave another judgment and ordered the Otwock District Office to give a decision in the matter of the wall constructed by the applicant’s neighbour, within one month of the date of delivery of the judgment.
17. From the day on which the Supreme Administrative Court gave its second judgment, the administrative proceedings were split into two separate sets of proceedings.
18. On 6 November 1997 the Otwock District Office ordered that expert opinions concerning fire regulations be obtained and imposed on the applicant’s neighbour an obligation to produce, within three months, a new specification for the installation of the bars on his balcony.
19. The applicant’s neighbour failed to comply with the abovementioned order and, on 10 June 1998, the Otwock District Office sent him a reminder, set an additional three-week time-limit to carry out the necessary works and informed him that failure to comply with the order within the new time-limit would result in compulsory demolition of the bars.
20. The applicant’s neighbour again did not comply with the order.
21. On 16 September 1998 the Otwock District Office ordered compulsory demolition of the bars.
22. On 28 September 1998 the applicant appealed against that decision holding that the demolition order should have concerned not only the bars, but also the canopy over the applicant’s neighbour’s balcony.
23. On 17 February 1999 the applicant complained to the Supreme Administrative Court of inactivity on the part of the administration.
24. On 24 July 2002 the applicant again lodged with the Supreme Administrative Court a complaint of inactivity on the part of the administrative authorities.
25. On 21 October 2002 the Supreme Administrative Court acknowledged that “unreasonable delay” had occurred between 28 September 1998 (the date on which the applicant had lodged his appeal against the first-instance decision) and 9 October 2002 (the date on which the appellate administrative authority gave its decision, see below). However, the court, finding that the decision following the applicant’s appeal had just been given by the Mazowsze Regional Inspector of Construction Supervision, discontinued the proceedings and refused to impose a fine on the authority for delay.
26. On 9 October 2002 the Mazowsze Regional Inspector of Construction Supervision quashed the Otwock District Office’s decision of 16 September 1998 and discontinued the proceedings, finding that the challenged decision had been founded on a wrong legal basis.
27. On 9 November 2002 the applicant appealed.
28. On 25 June 2004 the Warsaw Regional Administrative Court quashed the challenged decision, which meant that the decision ordering demolition of the bars remained in force.
29. On 6 October 2004 the Mazowsze Regional Inspector of Construction Supervision upheld the decision of 16 September 1998, which had ordered the compulsory demolition of the bars.
30. On 10 October 2004 the applicant lodged with the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego), a complaint of inactivity on the part of the Warsaw Regional Building Inspector, who had failed to enforce the final judgment of the Regional Administrative Court.
31. On an unspecified date the applicant’s neighbour appealed against the decision of 6 October 2004 to the Warsaw Regional Administrative Court.
32. On 10 January 2005 the Warsaw Regional Administrative Court ordered the applicant’s neighbour to rectify some procedural shortcomings of his appeal. He failed to do so within the prescribed time-limit and consequently on 7 February 2005, the Warsaw Regional Administrative Court dismissed his appeal.
33. On 6 January 2005 the Chief Inspector of Construction Supervision found the applicant’s complaint of inactivity ill-founded and informed the applicant that the competent authority to enforce the final judgment and order demolition of the bars was the Otwock Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego).
34. On 12 July 2008 the applicant informed the Registry that the bars had been dismantled in 2005.
35. On 29 September 1997, relying on the Supreme Administrative Court’s judgment of 4 June 1997, the Otwock District Office discontinued the proceedings in respect of the wall constructed on the applicant’s staircase, finding that, at the relevant time, no building permit for such a wall had been necessary.
36. On 27 October 1997 the applicant appealed.
37. On 6 February 1998 the Warsaw Governor upheld the challenged decision.
38. On 25 March 1998 the applicant lodged a complaint with the Supreme Administrative Court.
39. On 4 July 2002 the Supreme Administrative Court ordered the Mazowsze Regional Inspector of Construction Supervision (Wojewódzki Inspektor Nadzoru Budowlanego), who had meanwhile become the authority with jurisdiction to deal with that case, to send it the file concerning the challenged decision.
40. On 24 July 2002 the applicant lodged with the Supreme Administrative Court a complaint of inactivity on the part of the administrative authorities.
41. On 7 October 2002 the Supreme Administrative Court dismissed the applicant’s complaint against the Warsaw Governor’s decision of 6 February 1998.
42. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the Court’s judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-110195
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: M. AND S. v. ITALY AND UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 1. The applicants, Mrs F.M. and Ms A.S., are Italian nationals who were born on 25 August 1962 and 10 September 2004 respectively and live in Milan. They were initially represented before the Court by Ms L. Cossar, a lawyer practising in Milan, who later gave up her mandate. The first applicant is the mother of the second applicant and is acting in her own name and on her child’s behalf.
2.
3. The first applicant lived and worked in the United Kingdom from 1996 and became resident there in 2000. The parents of the second applicant (“A.S.”), who are both Italian citizens, married in the United Kingdom on 22 September 2000, and registered their marriage in Italy in November 2000. The parents separated before the child’s birth and judicial separation proceedings were issued by the first applicant in the Milan Civil Tribunal on 15 June 2004. They were eventually linked to subsequent child care proceedings which were commenced upon A. S.’s birth.
4. On 17 March 2005, custody of the child was granted to the mother by the Milan Tribunal. Regular (initially supervised) contact, to be held in the mother’s house, was also granted to the father (“X.”), who was ordered to pay maintenance.
5. On 31 May 2005, the first applicant complained about X.’s violent behaviour and the effects this was having on the child. She further requested authorisation to return, with the child, to the United Kingdom for work purposes.
6. By a judgment of the Milan Youth Tribunal (Tribunale per i minorenni) of 5 August 2005, the applicants were granted permission to return to the United Kingdom and the second applicant was inscribed on the first applicant’s passport. They moved to Reading, England, in the United Kingdom.
7. By a decision of 13 September 2005, the Milan Civil Tribunal altered the visiting arrangements, holding that the child should spend alternate weekends with the father, in Italy and the United Kingdom, in the presence of a nanny, but not including overnight stays. Visits to the United Kingdom would be unlimited as long as announced in advance.
8. On 13 January 2006 a CTU (psychiatric assessment) report was filed, stating that the time was not ripe for joint custody but that arrangements for more visits with the father were to be made gradually. The second applicant’s contact with her father was regular and became unsupervised through progressive contact orders issued by the Milan Tribunal.
9. On 13 March 2006 the court confirmed the mother’s custody of the child.
10. On 29 September 2006 the first applicant made submissions reiterating her concerns regarding the father’s behaviour and its effects on the child.
11. On 30 October 2006, the second applicant returned to the United Kingdom following a weekend with her father. She had a heavy rash in her genital area and displayed disturbed behaviour. On 4 November 2006 the emergency doctor noted a small tear in her anus but could not determine its cause. On 13 May 2007, again following a weekend with her father, the second applicant returned with a rash in her genital area and according to her mother displayed uncharacteristic behaviour such as heavy kissing on the mouth, and profound physical and psychological discomfort. The emergency doctor noted the rash and inflammation and reported these to the appropriate authorities as suspicious and indicative of possible sexual assault. However, he also considered it could be due to a lack of hygiene or to masturbation and was surprised that a congenital malformation of the girl’s genitalia had not been brought to his attention. On 17 May 2007 a detective constable of Thames Valley Police informed the first applicant that there was insufficient evidence to pursue a criminal investigation. On the same day A.S.’s nursery reported that A.S. had been found masturbating on the potty and that her behaviour the previous days had been strange.
12. On 11 June 2007, following accusations made against him, the father lodged an emergency request with the Italian Civil Tribunal asking for sole custody of the child and for her to be resident with him.
13. On 18 June 2007 a British social worker reported on the mother’s good qualities and noted the possibility that sexual abuse had taken place. She thought it was possible that the child’s travelling to Italy might be causing stress and advised that A.S. be accompanied by a nanny on these journeys. On this basis the first applicant requested the Italian courts to order supervised visits and submitted a detailed account of the situation in her pleadings of 25 June 2007.
14. On 28 June 2007, the Italian court found that the inquiry into the claim of sexual abuse did not provide any evidence substantiating the claims brought solely by the mother, who suffered from a state of extreme anxiety. Moreover, no official action had been taken by the British authorities. The court, therefore, dismissed the claims as unfounded. It noted that the mother had systematically and continuously denigrated the child’s father, even if no concrete elements that could suggest he was an inadequate parent had been revealed. This brought into question the appropriateness of the mother’s behaviour. For these reasons the custody regime had to be altered. Joint custody was therefore granted to the mother and the father to underscore the importance of both parental figures for securing the healthy psychological growth of the child, making both parties aware that they must assume responsibility for overcoming their parental conflict, in which the child was heavily involved. It confirmed the previous visiting arrangements and residence mainly with the mother. The applicant alleged that she had not been heard before this decision.
15. On 5 July 2007, the mother applied to the English courts for an emergency protection order under the 1989 Children’s Act, with a suspension of visiting rights. On 6 July 2007 the Principal Registry of the Family Division in London ruled that nobody could remove the child from the mother or from British jurisdiction until the case had been heard, and that the father should have supervised visits. The father issued a crossapplication to enforce the existing Italian orders. On 24 July 2007 the Milan Tribunal issued the certificate needed for the enforcement of the Italian orders regarding visiting arrangements. This was delivered to the United Kingdom authorities on 1 August 2007.
16. In the meantime, the British police had interviewed the father. He was also informed that the social services and the police felt supervised access would be appropriate while the Italian social services made an assessment of the situation.
17. On 2 August 2007, before the High Court it was accepted that the Italian courts had primary jurisdiction (according to the Brussels II Regulation) in matters of legal separation and child care. The mother’s applications were therefore withdrawn and the orders of the Milan Tribunal were recognised and enforced.
18. In October 2007, the mother stopped all contact between the child and her father due to suspicions that the father had sexually abused the child after a contact visit in Italy. The mother had taken the child to a doctor in an Accident and Emergency department in a hospital in the United Kingdom. However, contrary to the mother’s claims, the doctor found that the child was healthy save for a slight rash; no lesions had been found on her external genitalia and her anus was intact. However, child protection referrals were made to the United Kingdom police and social services. The police conducted two interviews with the child, recorded on video, where A.S. spoke of her father touching her. They advised the mother not to allow any unsupervised contact between the child and her father in order not to prejudice the criminal investigation. However, a letter of the Director of Childhood and Education, Reading Borough Council, to X., informed him of the events and concluded that there was no evidence of harm or risk of danger. Thus, the department’s intervention had not been necessary.
19. On 6 November 2007 the applicant submitted documents related to the alleged abuse and requested the Milan Tribunal to terminate the father’s visiting rights. On 23 November 2007 the father lodged his defence arguments, requesting that the child be placed with him or alternatively with a foster family under the control of the Milan Municipality, and for the relevant physical and psychological reports to be drawn up.
20. On 28 November 2007 the British police wrote to the Milan Tribunal informing it that criminal investigations were taking place in respect of the suspicion of sexual abuse.
21. On 29 November 2007 the Milan Tribunal held that there was no reason to change the provisional custody and visiting arrangements in place. It ordered a new CTU, which would also investigate whether it was possible that any sexual abuse had taken place.
22. A comprehensive CTU was drawn up which included interviews with all the parties involved, including the nanny, the father’s partner and her son. No interviews were, however, held with the child together with the father, since the first applicant denied the father access. Medical examinations and reports were also taken into account. According to the report, while talk about genitalia and sexual attitudes was recurrent in the child, it was mostly associated with the images of the British police and the mother and not those of the father and his new family. The child repeatedly stated that certain terminology which she used had only been used with these figures (the police constable and the mother) and she was unable to explain certain of the terminology she herself used. It emerged that the child missed the father and the united family unit, she felt uncared for and that she needed to be left alone in tranquillity. The report concluded that there existed “a possible sexual trauma and in any event a suffering exacerbated when confronting the subject of an alleged abuse, in addition to the suffering from the continuous conflict between the parents which aggravated the family dynamics and harmed the child’s equilibrium”. However, the report could not confirm that such a state was due to an actual abuse, as it could have been the result of a sexually charged environment in which the child was brought up.
23. After protracted proceedings in which both parties were represented and extensive expert evidence was submitted, and following a collegial hearing of 14 January 2009, the Milan Tribunal issued a (48 page) partial decision, filed in the relevant registry on 26 January 2009. It pronounced the couple’s separation. Furthermore, having considered the parties’ submissions, the expert evidence – particularly the medical reports –, the CTUs, the reports of the British police and of the British social services, and confirming its jurisdiction, it ordered, inter alia, that custody of the child be assigned to the Municipality of Milan; that the mother return the child to Italy immediately, if necessary with the assistance of the public forces; that the child’s name be removed from the passport of the nanny who had previously accompanied her on her travels; that the Municipality of Milan place the child, if possible with her mother (should she be so willing), in a protected place, and instigate a course of therapy, making available to the parents every form of therapy and support that might assist with parenting and meetings between father and daughter, which had to resume; that the mother pay compensation to the father and the child for breaching the previous contact orders and causing a sudden interruption in the relationship between father and child (by also forbidding any telephone communication), with the ensuing repercussions on the child’s equilibrium and the moral suffering caused to both.
24. On 2 February 2009, the first applicant appealed to the Milan Court of Appeal, requesting the suspension of the partial decision.
25. On 24 February 2009, the father registered the Milan Tribunal’s order of 26 January 2009 in the High Court of England and Wales, requesting its enforcement. On the same day the High Court ordered the registration of the order and the securing of the passports and identity cards of both the mother and her child. The first applicant, in her application to the Court, stated that she could request from the father the restitution of her documents for periods relevant to work-related travel.
26. On 1 April 2009 the first applicant requested permission to appeal against the High Court decision, and requested that the decision be stayed in the meantime.
27. On 17 April 2009 X. released the first applicant’s identity card.
28. By a judgment of 22 April 2009, filed in the relevant registry on 29 May 2009, containing a reasoning of more than twenty pages, the Court of Appeal in Milan dismissed the mother’s appeal against the Milan Tribunal’s decision of 26 January 2009. It noted that the proceedings had been long and complex, marked by various decisions, based on pleadings and evidence submitted by both parties, who had effectively participated (contradittorio). It dismissed her application for the case to be transferred to the jurisdiction of England noting, inter alia, that all of the parties were Italian. The child had been born in Italy, where she had remained for the first year of her life; the child had only left Italy due to her mother’s work and had regularly returned on multiple and extensive visits; the child’s mother tongue was Italian and she had only just started to learn English; and the British courts could not be said to be better suited to deal with the application given the stage of the proceedings in which extensive investigative measures had been ongoing for many years, including two expert witnesses, psychiatric assessments of the parties and huge amounts of evidence.
On the merits, considering all of the different evidence before the court, including the child’s testimony also through expert reports, but excluding video recordings which had been made with unknown technologies and which had not been open to challenge by the father, it held that the medical evidence was not conclusive and that the advice given by the English police on the basis of the mother’s unilateral statements could not be regarded as determinative of the father’s guilt, though it was not yet excluded as investigations in Italy were still ongoing. The Court of Appeal was seriously concerned about the level of acrimony between the parents and the damage to the child. It clearly emerged from the report of the court-appointed expert witness, the reports of the expert witnesses of the parties and the report of British social services that the child was in a serious situation of psychological distress. In particular, it referred to the damage relating to the sexual and corporeal sphere and also the suffering caused by the current conflict between her parents, and her need, which had been denied, to maintain a network of connections with members of the father’s family and her father. The position of the child, the fact that she had not seen her father since October 2007, was considered to be grave. It was considered necessary to clarify once and for all this position given the confusion caused by the accusations of the mother and the damage produced by an invasive investigative approach aimed exclusively and obsessively at finding abuse – and deliberately designed to remove the child from the father – with no respect for the consequences upon the child, who was clearly unhappy and displaying physical and psychological suffering.
The court therefore endorsed the decision of the Milan Tribunal to order the return of the child to Italy and her placement in a neutral environment, with the mother, if the mother wished, or alone, if she did not, with a course of therapy and the reinstatement of contacts with the father in a protected and monitored fashion. The court considered this to be an inevitable solution, given the increasingly serious and poisonous situation, which could only be sorted out in a neutral place, where the nature and origin of the child’s fundamentally sexual compulsive behaviour, her eroticisation and the minor’s adult expressions, with sexual content, could finally be fully deciphered, and the family dynamics and parenting skills of the mother and father could be observed. Indeed, the mother appeared anxious and showed little empathy towards her daughter (according to CTU reports), she was not in favour of allowing father-child contact and her actions were of emotional harm to the daughter. With regard to the suffering that the child would undoubtedly experience if the order were carried out, it was pointed out that the mother had the possibility of reducing this alleged suffering by agreeing to be placed in the home with her daughter for the limited period of time needed to sort out the family dynamics, a choice that was compatible with her activity as a university researcher entitled to periods of sabbatical or leave to conduct research in other countries.
29. On 16 June 2009, the English Court of Appeal ordered that the Family Division of the High Court was the correct court to consider the mother’s appeal against the execution of the Milan Tribunal’s order in which she relied on Article 23(a) and (b) of Brussels II (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility). It ordered that a CAFCASS (Children and Family Court Advisory and Support Service) report be presented. In the CAFCASS report dated 27 July 2009, concerns were set out about the enormous effect of the enforcement of the Italian court’s order which would remove the child from the United Kingdom and into institutional care in Italy with or without her mother. It suggested that A.S.’s position in the proceedings be safeguarded by a guardian to be appointed. This suggestion was rejected by the court on 29 July 2009.
30. On 4 November 2009, the mother’s appeal was dismissed by the High Court after a three day final hearing, the appointment of an advocate to assist with interpretation of Brussels II (Council Regulation (EC) No 2201/2003) of 27 November 2003, and the consideration of over 1200 pages of evidence, including the evidence before the Italian courts and of the court-appointed expert. It was accepted that the Italian courts had jurisdiction in relation to the child, and that under Article 31 of the Regulations the court in the United Kingdom could only refuse to enforce the order for one of the reasons specified in Articles 22, 23 and 24 of the Regulations, and could not review the substance of the Italian order. The issues were limited to whether the decision of the Milan Tribunal of 26 January 2009 was manifestly contrary to public policy of the Member State in which recognition was sought, taking into account the best interests of the child (Article 23 (a)), or whether it was taken without the child having been given an opportunity to be heard, in violation of the fundamental principles of procedure in England (Article 23 (b)). It was not accepted that the policy adopted by the Italian courts in any way differed from that which would have been adopted by the United Kingdom courts, as the welfare considerations of the child plainly lay behind their decision. The order could therefore not be considered to be manifestly contrary to public policy. In addition, it was considered clear that the child’s voice had been put before the Italian courts through the expert witness who had prepared a thorough report which went conscientiously through a mass of material and involved a series of interviews with all parties. It was also abundantly clear that the expert was highly concerned about the child and had highlighted the child’s welfare in the clearest possible terms. The Italian courts had set out clearly why further assessments of the child, which all parties agreed were necessary, could not be done in England, making their orders even more understandable. In addition, the order was not a final order and was only for a limited time solely to address the problems that had caused the child to suffer to the extent that she had. It was clear that if sexual abuse by the father was established, relations with the father would be stopped. It was noted that the Italian court was faced with two difficult problems – on the one hand to discover the truth behind the mother’s allegations and on the other hand to prevent the child suffering further, as set out by the expert, as a result of the atmosphere created by the mother denigrating the father, and refusing to comply with court orders despite warnings. It was accepted that the order requiring mother and child to move to Italy even for a short time would cause the child upset, and might impact on the mother’s employment. Nevertheless, it was considered to be wrong to ignore the significant part that the mother’s attitude and actions had played in bringing about the present situation and the order of the Italian courts. Overall, the solution chosen by the Italian courts placed in such a dilemma was considered to have particular benefits including, inter alia, allowing the mother to remain with the child, the fact that it was only a short term measure, the fact that contact with the father was dependent upon the determination of the mother’s allegations, and that any decisions which followed would be taken by the same court that had heard this matter extensively since 2004. The High Court therefore made an order for recognition of the Italian court order, dismissed the mother’s application for a stay of the proceedings and dismissed her application for a transfer of the proceedings to the English High Court.
31. By a decision of 24 November 2009, filed in the relevant registry on 31 May 2010, the Italian Court of Cassation rejected the first applicant’s appeal on the basis that the appeal grounds were unfounded. It noted, however, that in respect of jurisdiction the Court of Appeal’s decision had been based on the application of the Brussels II Regulation, which at the time had not been applicable. In respect of other grounds of appeal it considered that the impugned decision had been comprehensive, took account of all the pleadings of the parties and appeared wholly legitimate. As to the merits, namely the admissibility and assessment of evidence, the Court of Cassation considered that the Court of Appeal had given ample, logical and correct reasons justifying its decision.
32. On 4 December 2009, the High Court in England issued a further judgment to clarify aspects of the previous judgment and ordered the execution of the Italian order by 16 December 2009. It clarified that the mother’s application for a stay of the proceedings had been dismissed together with her application that the High Court should not enforce the decision of the Italian court. The Italian authorities had provided information about where the assessment would take place, the accommodation that would be provided and further details of the plans for the mother and the child in Italy. Whilst sympathetic to the fact that the child would have to be taken out of school two days before the end of term, it was noted that proceedings in the United Kingdom had been ongoing since February 2009, and the date of enforcement continually delayed. It was noted in particular that the mother had accepted that she would be obliged to go and stay with the child in Italy to undertake assessments. This would give the child the enormous advantage of having her mother with her when she went to an unfamiliar setting. Finally, the High Court refused to extend the time-limit to appeal, but in any event refused to grant leave to appeal, as not only was the decision under consideration not contrary to public policy, but it was one which the British courts might well have followed.
33. On 11 December 2009 the first hearing in the divorce proceedings took place in Milan. The judge offered to “withdraw” the order for the placement of the child in an institution if the child entered Italy voluntarily.
34. On 16 December 2009, the English Court of Appeal dismissed the mother’s further application for a stay of the execution of the Italian order, confirming that the mother should return the child to Italy by 18 December 2009.
35. On 17 December 2009, following attempts to reacquire their travel documents, the applicants returned to Milan. On 18 December 2009, in the context of the divorce proceedings, the judge held that A.S. should remain under the custody of the Milan Municipality but that she could live with her mother for the limited time the latter was in Italy, the father to pay an allowance for the renting of an apartment.
36. In December 2009 A.S. regularly met with the doctors from Spazio Neutro (a service aiding the exercise of access rights according to Article 9 of the Convention on the Rights of the Child). From then up to June 2010 supervised access with the father took place once every two weeks and thereafter on a weekly basis.
37. On 11 January 2010, following the father’s refusal to pay the deposit for rent of an apartment, the applicants moved to Venice, although arrangements were in progress for the child to start school in Milan. On 26 January 2010 the first applicant removed A.S. from her passport following complaints by the father.
38. On 12 April 2010 the Italian inquiry into allegations of sexual abuse was discontinued, having become time-barred.
39. In the meantime, proceedings were pending in respect of the first applicant’s financial situation and the financial obligations of the parents, and various decrees were issued, including in respect of the child’s schooling. On 14 July 2010 A.S. was allowed to go on holiday to the United Kingdom with her mother. They went to England from 7 to 22 August 2010.
40. On 1 October 2010 the British police discontinued the investigation regarding sexual abuse. By a letter of 10 November 2010 the first applicant was informed that the case had also been reviewed by the Child Abuse Investigation Unit and after a careful consideration of all the facts and the recent changes in circumstances surrounding A.S. and her father’s supervised contact, it had been decided that no further active investigation would ensue.
41. The first applicant alleged that the father had again abused the child on a particular occasion when the child went to buy an ice-cream with her father with no supervision. She claimed that although she had urged the social services and medical staff to implement A. S.’s therapy, no action had been forthcoming.
42. Following the first applicant’s proposal for settlement in the context of the separation proceedings, on 16 November 2010 the father agreed to drop the judicial separation proceedings. Access decrees continued to be delivered according to the needs and in the best interests of the child, and from March 2011 A.S. was spending one weekend every fortnight at her father’s residence.
43. In February 2011 the parents commenced a mediation process at the local department in Milan.
44. On 13 May 2011 Spazio Neutro handed in another report suggesting the continuation of the current arrangements in Milan. The applicant complained that no mention was made of the fact that she would lose her job if she did not return to the United Kingdom.
45. Divorce proceedings continued in June 2011. By a decision of 13 July 2011, A.S. was to spend part of her summer holidays (24 July – 15 August) in the United Kingdom with her mother and another part (1628 August) with her father. A request lodged on 17 August by the first applicant for the child to have an extended period of summer holidays with her in the United Kingdom was rejected on 29 August 2011 on the ground that there had been no time for the Milan Municipality, to whom the child was entrusted, to give its approval. Moreover, it was noted that since the lodging of the request coincided with the first day of the father’s period of vacation with the child, it appeared that the request had been made with the intention of disrupting this already ordered period of holiday with the father. Furthermore, the child would have been unable to attend the visits with the social services and the municipality, if away from Italy.
46. In a social services’ report dated 26 August 2011, it was considered that the current arrangements were adequate to the minor’s needs and it would not be necessary to limit the parents’ rights any further in respect of medical and schooling issues. The report further noted with concern the repetitive requests of the parents regarding matters not related to the custody of the minor, which were taking precedence over the main issues and increasing conflict between the parents.


ITEMID: 001-106041
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PHOCAS v. FRANCE
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa
TEXT: The applicant, Mr Christian Phocas, is a French national who was born in 1943 and lives in Pierrevert. He was represented before the Court by Mr Frédéric Weyl, a lawyer practising in Paris.
.
The applicant is a civil servant and the father of three children. His pension was calculated on 2 September 2003 by an order of 7 July 2003. However, the calculation did not take account of the service credits for children established in Article L. 12 of the Civil and Military Pensions Code then in force, which provided:
“Under conditions determined by a regulation of the Prime Minister, the following service credits shall be added to the periods of service actually completed: ... (b) A service credit granted to female civil servants for each legitimate child, each natural child of established paternity and each adopted child, and, subject to the condition that they have been brought up for at least nine years before reaching their twenty-first birthday, for each of the other children listed in paragraph II of Article L.18.”
By a judgment of 29 November 2001 the Court of Justice of the European Communities held that Article L. 12 was contrary to the principle of equal pay as laid down in the Treaty establishing the European Community. Following that judgment, the Conseil d’Etat held, in a judgment of 29 July 2002 concerning Mr G., a litigant other than the applicant, that Mr G. was entitled to the service credit provided for in Article L. 12.
On 4 August 2003 the applicant requested a review of his pension with a view to obtaining the service credits to which he considered he was entitled in respect of his three children. He submitted that he should be awarded three years of service credits in respect of his three children, by strict reference to the Conseil d’Etat’s analysis in its judgment in favour of Mr G. on 29 July 2002, and also the principle of equal pay for men and women, which precluded civil servants being refused entitlement to the benefit of the provisions on the ground of their sex.
On 21 August 2003 a new Act amended the provisions of Article L.12 of the Pensions Code. Section 48 I stated:
“Under the conditions determined by a decree of the Conseil d’Etat, the following service credits shall be added to the periods of service actually completed: ... (b) For each legitimate child and each natural child born before 1 January 2004... civil servants and military personnel shall receive a service credit fixed at one year, in addition to the periods of service actually completed, provided that they have interrupted their employment in the conditions determined by the decree of the Conseil d’Etat ....”
Section 48 II was worded as follows:
“The provisions of Article L. 12(b) of the Civil and Military Retirement Pensions Code resulting from the wording of [sub-subsection] 2 of [Part] I shall apply to pensions calculated from 28 May 2003.”
The above-mentioned decree of the Conseil d’Etat was adopted on 26 December 2003.
On 15 September 2003 the Minister for the Economy and Finance rejected the applicant’s request in the following terms:
“...
Given the date of calculation of your pension, a service credit is payable only if you can provide evidence of having interrupted your employment on the birth of your children.
If that condition is satisfied, it will then be necessary to consider whether the duration of that interruption does in fact correspond to the duration due to be fixed by the forthcoming decree.”
On 23 September 2003 the applicant lodged an application with the Marseilles Administrative Court, seeking judicial review of the order of 7 July 2003 awarding the pension and of the decision of the Minister for the Economy and Finance refusing to review the applicant’s pension entitlement. He alleged that since the order of 7 July 2003 containing the calculation of his pension had failed to take account of his situation as a father of three children, it had disregarded his rights under Article L.12b of the Pensions Code, which was intended to apply to both female and male civil servants, and was thus discriminatory. He also maintained that, given the refusal to review his pension, the new Act had been applied retrospectively. When the Constitutional Council had decided that there could be no retrospective effect for female civil servants, the resulting situation had established discrimination, since, for the same retirement date, women continued to be covered by the old provisions whereas men were subject to the new, retrospective provisions. The applicant concluded that there had been a violation of Article 1 of Protocol No. 1 and of the principle of non-discrimination.
In a number of judgments, in particular that of 29 December 2004, the Conseil d’Etat adjudicated in cases identical, both in law and in fact, to the applicant’s case. On the complaint based on Article 1 of Protocol No. 1, the Conseil d’Etat held that, while section 48 II of the Act of 21 August 2003 “retrospectively [deprived] civil servants whose pension [had been] calculated after 28 May 2003 of entitlement to the credit, the principle and the amount of which were certain..., that retrospective effect, applicable to a period of less than three months, constitute[d] an interference with the asset in question which was justified, in line with the legislature’s intention, by public-interest considerations related to the desire to ensure that the announcement of the tabling of the Bill did not lead to an increase in litigation.” It concluded that “this interference, which [did] not affect the substance of the right to a pension but only one of the elements of its calculation, [was proportionate] to the aim thus pursued.”
As for the complaint based on Article 6 § 1 of the Convention, the Conseil d’Etat considered that the enactment of section 48, on a date preceding the application submitted by the litigants, at a time when no dispute existed between them and the State concerning the calculation of their pensions, had had neither the aim nor effect of influencing the outcome of pending judicial proceedings and that it had thus not deprived those concerned of their right of access to a court in order to assert their rights.
On the basis of those considerations, the Marseilles Administrative Court dismissed the applicant’s application on 24 October 2005.
In view of the aforementioned judgments of the Conseil d’Etat, the applicant did not lodge an appeal on points of law.
By a judgment of 29 November 2001, the Court of Justice of the European Communities held that the principle of equal pay precluded limiting to women credits granted for the purpose of calculating a retirement pension to persons who had raised their children, whilst men who had raised their children were excluded from entitlement to the credit. It held that Article L. 12(b) of the Civil and Military Retirement Pensions Code, which introduced, for the calculation of pensions, a service credit of one year for each child, limited to female civil servants, was incompatible with the principle of equal pay as laid down in the Treaty establishing the European Community and the Agreement annexed to Protocol No. 14 on Social Policy annexed to the Treaty on European Union.
On 29 July 2002 the Conseil d’Etat, which had stayed proceedings pending the ruling of the Court of Justice, held that in so far as provisions were maintained which were more favourable to female civil servants who had raised their children, Mr G., who had raised [his] children himself, was entitled to the credit provided for in Article L. 12(b) of the Pensions Code.


ITEMID: 001-77871
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KALAJZIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Davor Kalajžić, is a Croatian national who was born in 1950 and lives in Split. He was represented before the Court by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
In March 1991 the applicant was dismissed from work. In May 1991 the applicant instituted civil proceedings challenging the decision on his dismissal. He sought reinstatement, compensation of salary and lost earnings.
Following two remittals, on 26 November 1997 the Split Municipal Court (Općinski sud u Splitu) gave a partial judgment ordering the applicant’s reinstatement and awarding him compensation of salary. The judgment also stated that the compensation for lost earnings and the litigation costs were to be decided on later.
On appeal by the employer, on 14 November 1998 the Split County Court (Županijski sud u Splitu) upheld the first instance judgment in part concerning the applicant’s reinstatement. It quashed and remitted in part the decision on compensation for salary.
On 11 January 1999 the employer filed a request for revision on points of law (revizija) against that decision. On 11 September 2002 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed that request.
The first instance court not having decided a part of his claim, on 18 November 2002 the applicant filed a constitutional complaint concerning the length of the proceedings.
On 26 April 2004 the Split Municipal Court held a hearing.
During the next hearing held on 1 April 2005 it adopted a judgment by default.
On 27 April 2005 the defendant paid the applicant the sum ordered by the judgment.
On 4 May 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) found that the applicant’s right to a determination of his civil claim within a reasonable time had been violated and awarded him 8,200 Croatian Kunas (HRK) as just satisfaction.
The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request


ITEMID: 001-80119
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GLUSHAKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Loukis Loucaides
TEXT: 4. The applicant was born in 1927 and lives in the town of Shakhty of the Rostov Region.
5. In the 1980s the applicant's son took part in the emergency operation at the site of the Chernobyl nuclear plant disaster. Until March 1996 the Shakhty Town Social Security Service (hereafter - the Service) made monthly payments to the son as a compensation for health damage.
6. After the Service stopped payments, the applicant's son sued it for arrears and a penalty. On 28 February 1997 the Shakhty Town Court awarded him 30,640,341 Russian roubles (“RUR”) in arrears and the same amount as the penalty.
7. On 24 April 1997 the arrears, but not the penalty, were paid.
8. After the son's death, on 26 March 1999 a notary public issued the applicant with an inheritance certificate certifying her right to one half of the penalty awarded by the judgment of 28 February 1997. The applicant's grandson was issued with a certificate confirming his right to the second half of the penalty.
9. As the penalty had not been paid, the Shakhty Town Court, upon the applicant's and her grandson's request, ordered the following increases of the penalty to take account of the inflation:
- in the judgment of 14 February 2000, by RUR 57,165.71;
- in the judgment of 13 August 2001, by RUR 29,764.6; and
- in the judgment of 29 March 2002, by RUR 17,254.96.
Those judgments were not appealed against and became effective.
10. On 30 May 2002 the Service paid the penalty in the original amount established in the judgment of 28 February 1997, but not the amounts awarded in the subsequent judgments.
11. In 2003 the applicant and her grandson asked the Shakhty Town Court to reconfirm their right to the sums awarded by the judgments of 14 February 2000, 13 August 2001 and 29 March 2002.
12. On 14 March 2003 the Shakhty Town Court held that the applicant and her grandson each should receive RUR 52,092.63 (approximately 1,540 euros), representing one half of the amounts awarded by the judgments of 14 February 2000, 13 August 2001 and 29 March 2002. The judgment of 14 March 2003 was not appealed against and became final.
13. On 20 December 2004 the money due to the applicant and her grandson under the judgments of 14 February 2000, 13 August 2001 and 29 March 2002, as pronounced by the judgment of 14 March 2003, were paid to them in full.
14. On 11 November 2002 the Shakhty Town Court accepted the applicant's action against the Service and awarded her RUR 23,619.55 (approximately 733 euros). That judgment was upheld on appeal on 23 July 2003 and enforced in full on 16 August 2004.
15. In 2002 the applicant sued the Service and the Shakhty Town Council for an increase of her pension, payment of arrears and compensation for damage.
16. On 8 May 2003 the Shakhty Town Court partly accepted her action and ordered that the Service should adjust her pension to take account of increases in the minimum subsistence level. The Town Court also awarded her RUR 9,563.92 (approximately 271 euros) in arrears. The judgment became final on 16 July 2003 after the Rostov Regional Court upheld it.
17. On 11 December 2003 the Service paid the applicant RUR 9,563.92, but it did not increase her pension in line with the subsistence level.
18. In November 2003 the applicant asked the President of the Rostov Regional Court to initiate a supervisory review in respect of the judgment of 8 May 2003. On 30 April 2004 her request was disallowed.
19. In 2004 the applicant asked the Shakhty Town Court to clarify the judgment of 8 May 2003. She complained that the judgment had not been enforced in full because the monthly pension payments had not been increased.
20. On 15 November 2004 the Shakhty Town Court confirmed the applicant's right to the pension in the increased amount. It held that from 1 January to 31 December 2002 the applicant should have been paid RUR 2,255.65 per month and from 1 March 2003 she should have been paid RUR 2,842.11 per month. The Town Court also ordered that the Service should subsequently increase pension payments in accordance with the law.
21. According to the Government, the judgment of 8 May 2003, as clarified by the judgment of 15 November 2004, was enforced in full in December 2005.
22. On 11 and 29 June, 23 August, 2 and 22 September 2004 the Shakhty Town Court accepted the applicant's actions against the Service for the adjustment of various unrelated judgment awards made in her favour in 1997, 1999, 2000 and 2003 and awarded her RUR 720.5 (approximately EUR 21), RUR 11,628.63 (approximately 331 euros), RUR 7,545.76 (approximately EUR 210), RUR 5,803.24 (approximately 162 euros), RUR 6,183.69 (approximately 172 euros), and RUR 2,524.42 (approximately 70 euros). The judgments were not appealed against and became final.
23. The judgments were enforced in full on 2 November 2005 when the sums were credited to the applicant's account.
VIOLATED_ARTICLES: 6