ITEMID: 001-60542
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DELIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 in respect of nine sets of proceedings;No violation of Art. 6-1 in respect of one set of proceedings;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. During 1992 the applicant lent various sums of money to a number of companies in Zagreb for periods ranging from three to twelve months at a rate of interest ranging from 5 to 31% (so-called financial engineering). As these companies failed to repay the loans, the applicant instituted ten different sets of proceedings for re-payment of his loans.
9. On 29 June 1993 the applicant filed an action with the Zagreb Municipal Court against A.K.M and its owner, A.K for re-payment of his loan in the amount of 70,000 Austrian schillings (ATS).
10. At the preliminary hearing on 22 November 1993 the applicant's counsel withdrew the claim in respect of A.K.M. He also requested leave to file additional submissions within eight days.
11. On 1 December 1993 the applicant's counsel filed additional submissions specifying the claim.
12. According to the Government, following the resignation of the judge in charge of the case a certain period of time elapsed before the case was assigned to another judge.
13. The next hearing, scheduled for 15 September 2000, was adjourned due to maintenance work on the court building's electrical circuit.
14. At the next hearing, on 14 December 2000, the court exempted the applicant from paying the court fees. The documents showed that A.K. was unknown at the address indicated.
15. The hearing scheduled for 23 March 2001 was adjourned because A.K. did not appear. The court invited the applicant to adjust his claim to the monetary system in Croatia and to specify his interest claim, which the applicant did on 10 October 2001. The case is presently pending before the court of first instance.
16. On 12 October 1993 the applicant, together with four other plaintiffs, filed an action with the Zagreb Municipal Court against T.I.A. and its owner, I.A for re-payment of their loans. The applicant claimed the sum of ATS 70,000.
17. On 14 December 1993 the court refused to allow the plaintiffs' representative to represent him as he had, in other proceedings, been charged with providing unlicensed legal services. The plaintiffs appealed against that decision. On 24 May 1994 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the plaintiffs' appeal.
18. According to the Government, the judge in this case resigned from her duties. The judge to whom the case was transferred was on maternity leave. The case was therefore re-transferred to another judge.
19. At the next hearing, on 28 June 2000, the defendants' counsel replied to the applicant's claim stating that the same claim had already been decided by the Zabok Municipal Court (Općinski sud u Zaboku).
20. At the hearing on 10 December 2001 the court exempted the applicant from paying the court fees. It appears that the proceedings are still pending before the Zagreb Municipal Court.
21. On 15 October 1993 the applicant, together with two other plaintiffs, filed an action with the Zagreb Municipal Court against T.T.B. and its owner, T.B for re-payment of their loans. The applicant claimed the sum of 6,000 German Marks (DEM).
22. A preliminary hearing scheduled for 13 January 1994 was adjourned because T.B. did not appear. The documents showed that the address indicated on the notice of the hearing date did not exist.
On 17 January 1994 the plaintiffs submitted T.B.'s correct address.
23. A hearing scheduled for 8 April 1994 was adjourned because T.B. again did not appear. The documents showed that she had failed to collect the notice of the hearing date.
24. A hearing scheduled for 10 June 1994 was also adjourned due to T.B.'s absence. The documents showed that she had changed her address.
On 15 June 1994 the plaintiffs submitted T.B.'s new address.
25. At a hearing on 10 October 1994 the court stayed the proceedings because the plaintiffs failed to appear.
On 19 January 1995 the plaintiffs requested the court to resume the proceedings.
26. Hearings scheduled for 18 September 1995 and 18 January 1996 were adjourned due to T.B.'s absence. The court requested the Ministry of the Interior to submit T.B.'s address.
27. A hearing scheduled for 20 May 1996 was adjourned because T.B.'s counsel did not submit a letter of authorisation.
28. At a hearing on 7 September 2000 the plaintiffs stated that they wished to produce additional evidence.
29. On 10 January 2001 T.B. filed her reply to the plaintiffs' claim.
30. At the hearing on 19 January 2001 the court exempted the applicant and one other plaintiff from paying the court fees and the remaining plaintiff did not appear. The court served T.B.'s reply on the plaintiffs and invited them to submit their comments within thirty days.
31. The next hearing, scheduled for 12 June 2001, was adjourned due to the illness of the presiding judge. It appears that the proceedings are presently pending before the court of first instance.
32. On 15 October 1993 the applicant, together with fifteen other plaintiffs, filed an action with the Zagreb Municipal Court against M.B.B. and its owner, B.B for re-payment of their loans. The applicant claimed the sum of 5,000 DEM.
According to the Government, the applicant failed to submit any evidence concerning the relationship between the company M.B.B. and its alleged owner, B. B.
33. At a hearing on 8 September 2000 a number of plaintiffs and B.B. did not appear. The court severed the proceedings in respect of the plaintiffs who did appear at the hearing, including the applicant, and invited them to specify their claims.
34. At a hearing on 14 September 2001 the court exempted the applicant from paying the court fees.
35. The next hearing was held on 18 October 2001. It appears that the proceedings are presently pending before the court of first instance.
36. On 15 October 1993 the applicant, together with three other plaintiffs, filed an action with the Zagreb Municipal Court against company A.Š.M. and its owner, A.Š for re-payment of their loans. The applicant claimed the sum of DEM 12,000.
37. A preliminary hearing scheduled for 16 June 1994 was adjourned because A.Š. did not appear. The documents showed that she had changed her address. The court invited the plaintiffs to submit her new address within thirty days.
38. A hearing scheduled for 5 April 1995 was adjourned because A.Š. again failed to appear. The documents showed that the address indicated on the notice of the hearing date did not exist.
39. At the hearing on 9 May 1995 the court pronounced judgment by default.
40. On 20 September 1996 a lawyer, M.P., informed the court that he was the legal representative of A.Š. and requested the court to re-open the proceedings. Following the hearing on whether A.Š. had received the judgment, the court annulled its judgment by default on 24 March 1998 and resumed the proceedings.
41. At a hearing on 15 September 1998 the court requested the plaintiffs to submit evidence in support of their claim.
42. At a hearing on 11 December 1998 the court heard three plaintiffs.
43. At a hearing on 12 February 1999 the court heard the remaining plaintiff.
44. A hearing scheduled for 15 April 1999 was adjourned due to A.Š.'s absence. Her counsel informed the court that she had given birth. The court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of A.Š.M. On 23 April 1999 the court repeated that request.
On 17 May 1999 the requested certificate was submitted.
45. A hearing scheduled for 24 June 1999 was adjourned because A.Š. did not appear. Her counsel informed the court that she was ill.
46. A hearing on 2 November 1999 was adjourned because A.Š. was absent again. She telegraphed the court to inform it that her child was ill.
47. At a hearing on 1 February 2000 the court heard A.Š. The plaintiffs asked the court to hear several witnesses but failed to provide their names.
On 8 February 2000 the plaintiffs submitted the names of the witnesses.
48. At the next hearing, on 11 October 2000, the proceedings were concluded and the court gave judgment awarding the applicant's claim in part and rejecting it in part. On 11 June 2001 A.Š. appealed against the judgment. On 14 June 2001 the court attempted to serve the appeal on the applicant in order for him to submit his reply, but he did not collect it.
On 10 October 2001 the applicant informed the court that he had received a copy of A.Š.'s appeal.
On 23 October 2001 the case-file was sent to the Zagreb County Court as the appellate court, where it is presently pending.
49. On 3 June 1993 the applicant filed an action with the Zagreb Municipal Court against T.M.T. and its owner, M.T for re-payment of his loan in the amount of DEM 10,000.
50. The preliminary hearing was held on 21 October 1993.
51. On 4 July 1994 the court refused the applicant's counsel the right to represent the applicant.
52. The judge in that case subsequently resigned from her office and the case was transferred to another judge.
53. A hearing scheduled for 12 November 1997 was adjourned because of M.T.'s absence.
54. At a hearing scheduled for 18 February 1998, the court stayed the proceedings because the applicant failed to appear.
On 22 May 1998 the applicant requested the court to resume the proceedings.
55. A hearing scheduled for 10 March 1999 was adjourned.
56. At a hearing on 4 June 1999 the applicant gave testimony.
57. Due to the applicant's absence from the hearing on 15 October 1999, the court struck the case out. According to the Government, the court had attempted to deliver that decision to the applicant fifteen times since then but he did not collect it. Finally, on 6 September 2000 the decision was served on the applicant by the court's process server.
58. On 20 September 2000 the applicant filed a motion to resume the proceedings (prijedlog za povrat u prijašnje stanje) and also appealed against the above decision.
59. At a hearing on 12 March 2001 the court dismissed the applicant's motion.
60. On 8 June 1993 the applicant filed an action with the Zagreb Municipal Court against D. and its owner, D.T for re-payment of his loan in the amount of DEM 10,000.
61. At a hearing scheduled for 21 October 1993 the court decided to stay the proceedings because the applicant did not apear.
On 7 February 1994 the applicant requested the court to resume the proceedings.
62. The judge in that case subsequently resigned from her duties and the case was transferred to another judge.
63. On 18 May 1999 the court invited the applicant to adjust his claim and to submit further evidence. The letter was sent by registered mail but the applicant did not collect it.
64. On 24 September 1999 the court invited the applicant to submit the defendants' addresses.
65. On 6 November 1999 the court requested the Zagreb Commercial Court to submit a certificate from its registry regarding the legal status of D.
66. A hearing scheduled for 3 February 2000 was adjourned since neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date.
67. The next hearing, scheduled for 13 June 2000, was adjourned due to D.T.'s absence. The documents showed that D. had ceased to exist while D.T. had received the notice of the hearing date. The applicant's counsel asked the court to allow him to submit the defendants' addresses within sixty days.
On 11 July 2000 the applicant's counsel informed the court that he had not been able to verify the required addresses.
68. On 22 November 2000 the court stayed the proceedings in respect of D. The proceedings concerning D.T. are still pending.
69. On 12 October 1993 the applicant filed an action with the Zagreb Municipal Court against E. and its owner, F.Š for re-payment of his loan in the amount of ATS 70,000.
70. A preliminary hearing scheduled for 2 April 1996 was adjourned because the defendants did not appear.
71. A hearing scheduled for 5 July 1996 was adjourned because the applicant had informed the court that he was ill.
72. The next hearing, scheduled for 24 September 1996, was adjourned because the judge was appointed to another court.
73. On 15 April 1999 the court invited the applicant to inform it whether he wanted to proceed with his claim. The letter was sent three times by registered mail but the applicant did not collect it. The court then attempted to serve the letter on the applicant through its process server, but the applicant was absent. The process stuck a notice to the applicant's door informing him that the letter would be served on him on 6 July 1999. As the applicant was absent again the letter was left at his door.
74. The next hearing, scheduled for 9 February 2000, was adjourned because neither party appeared. The documents showed that the applicant had not collected the notice of the hearing date.
75. Due to the applicant's absence at a hearing on 17 September 2001 the court terminated the proceedings.
76. On 22 April 1993 the applicant filed an action with the Zagreb Municipal Court against L.K.M. and its owner, K.L for re-payment of his loan in the amount of DEM 10,000.
77. As the defendants did not appear at the hearing on 18 October 1993 the court pronounced judgment by default.
Subsequently, the defendants filed a motion to resume the proceedings.
78. At a hearing on 1 February 1994 the court annulled its judgment by default. It also stayed the proceedings because the applicant did not appear.
As the applicant did not file a request to the court to resume the proceedings within four months, on 14 June 1994 the court struck the case out.
The applicant appealed against the above decision and also filed a motion to resume the proceedings.
79. On 15 July 1994 the Zagreb Municipal Court sent the case-file to the Zagreb County Court. That court remitted the case to the Zagreb Municipal Court in order to determine the applicant's motion.
80. At a hearing on 12 June 1995 the Zagreb Municipal Court annulled its decision of 14 June 1994.
81. Hearings scheduled for 21 November 1995 and 14 March 1996 were adjourned because K.L. did not appear.
82. A hearing scheduled for 16 September 1996 was adjourned because the judge in the case had not been re-appointed.
83. The next hearing, scheduled for 10 September 1998, was adjourned because K.L. did not appear.
84. At a hearing on 19 March 1999 the applicant gave testimony. The court invited the Zagreb Commercial Court to submit a certificate from its registry concerning the legal status of L.K.M..
On 29 September 1999 the Zagreb Commercial Court submitted the requested certificate.
85. Subsequently, the presiding judge died and the case-file lay dormant for a certain period before it was assigned to another judge.
86. At a hearing on 28 June 2000 the applicant's counsel withdrew the claim in respect of L.K.M. As K.L. did not appear the hearing was adjourned.
87. A hearing scheduled for 26 September 2000 was adjourned because K.L. again failed to appear.
88. The next hearing was scheduled for 5 April 2001 but the applicant asked the court to re-schedule it because he was unable to attend.
It appears that the proceedings are pending before the court of first instance.
89. On 28 October 1993 the applicant filed an action with the Zagreb Municipal Court against F.C.F. and its owner, K.F. for re-payment of his loan in the amount of DEM 14,500 and ATS 5,000.
90. The preliminary hearing, scheduled for 8 March 1994, was adjourned because neither party appeared. The documents showed that the applicant had received the notice of the hearing date, but K.F.'s address was incorrect.
On 13 March 1995 the court invited the applicant to submit K.F.'s correct address.
On 28 March 1995 the applicant submitted the requested address.
91. A hearing scheduled for 15 June 1995 was adjourned since K.F. did not appear. The documents showed that his address had been incorrect again. The court again invited the applicant to submit K.F.'s correct address. The court repeated that request on 9 December 1996.
92. The next hearing, scheduled for 5 June 1997, was adjourned as neither party appeared.
On 6 June 1997 the court again invited the applicant to submit K.F.'s correct address. The applicant did not collect the letter, sent by registered mail on three occasions.
On 25 June 1999 the applicant submitted K.F.'s address in the United States.
93. The hearing scheduled for 2 March 2000 was adjourned as neither party appeared.
94. The hearing scheduled for 14 December 2000 was adjourned because K.F. was absent. The proceedings are presently pending before the court of first instance.
95. Section 59 (4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 - hereinafter “the Constitutional Court Act” - Ustavni zakon o Ustavnom sudu) reads as follows:
“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party's constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79763
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: JOHN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Lutz John, is a German national who lives in Calbe. He was represented before the Court by Mr Schindler, a lawyer practising in Frankfurt.
, may be summarised as follows.
The applicant is the operator of a service-station in Calbe. In 1994-1995, he concluded a service-station agreement with an oil company which contained an exclusive purchasing clause, according to which the applicant is obliged to buy petrol from the company for a period of twenty years.
In 1998, after the applicant’s legal counsel had challenged the contract, the oil company sued the applicant before the Hamburg Regional Court in order to declare the contract between the parties as being valid and to order the applicant to refrain from purchasing, storing and selling other companies’ petrol.
On 13 November 1998, the Hamburg Regional Court dismissed the oil company’s claim. It held that the agreement was prohibited by Article 81 § 1 EC Treaty (then Article 85 § 1) and was therefore void pursuant to Article 81 § 2 of the EC Treaty. The Hamburg Regional Court found that the exclusive purchasing agreement restricted the competition within the European common market and that the contract with its twenty-year duration formed part of a number of agreements designed to hamper the market entry for potential competitors. The Hamburg Regional Court also found that this provision applied even though the contract had described the applicant’s position as that of a sales agent (Handelsvertreter), because his contractual obligations did not support such a qualification.
The oil company subsequently lodged an appeal with the Hanseatic Court of Appeal. In the appeal proceedings, the applicant asked the court to dismiss the appeal and, alternatively, to make a referral to the European Court of Justice under Article 234 EC Treaty regarding the following question:
“Is Article 81 EC Treaty to be interpreted in such a way that the obligation for the exclusive purchase of petrol in a service-station contract with the owner of the service-station, like the contract between the parties to the present dispute, -even if the contract is phrased as a sales agent agreement- is capable to distort competition within the relevant market of the sale of petrol by service-stations and to noticeably affect trade between member states and is such an agreement consequently void pursuant to Article 81 § 2 EC Treaty?”
On 13 April 2000, the Hanseatic Court of Appeal set aside the Hamburg Regional Court’s judgment of 13 November 1998 and ordered the applicant to refrain from purchasing, storing or selling other oil company’s petrol in his service-station. The Court of Appeal concluded that the applicant had to be regarded as a sales agent under European Law and that Article 81 EC Treaty was therefore not applicable. Finally, the Court of Appeal stated that it had not been obliged to seek a preliminary ruling by the European Court of Justice under Article 234 EC Treaty since the applicant could still lodge an appeal on points of law with the Federal Court of Justice.
The applicant, represented by legal counsel, lodged an appeal on points of law with the Federal Court of Justice on 25 September 2000, requesting the Federal Court of Justice to set aside the judgment of the Hanseatic Court of Appeal of 13 April 2000 and to decide in accordance with his motions lodged in the appeal proceedings (“nach den Schlußanträgen der Revisionklägerin in der Berufungsinstanz zu erkennen”). Those motions thus also included his alternative motion to request a preliminary ruling under Article 234 EC Treaty. However, his submissions to the Federal Court of Justice did not contain an express request for a reference under Article 234 EC Treaty, nor did the applicant give any express reasons for the necessity of a preliminary ruling. On 26 June 2002 the Federal Court of Justice refused to admit the applicant’s appeal on points of law, finding that the case was neither of fundamental importance, nor that it had reasonable prospects of success. No further reasons for the dismissal were given by the Federal Court of Justice.
On 7 November 2002, the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint without giving any reasons.
(1) The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
(2) Any agreements or decisions prohibited pursuant to this Article shall be automatically void. (...)
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty; (...)
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
Article 101 § 1 of the German Basic Law (Grundgesetz) provides:
“(...) No one may be removed from the jurisdiction of his lawful judge.”
It is settled case-law of the Federal Constitutional Court that the European Court of Justice is a “lawful judge” within the meaning of Article 101 § 1 of the Basic Law (see BVerfGE 73, p. 339, at p. 366; BVerfG, 2 BvR 2248/03). The Federal Constitutional Court finds a violation of that provision if a court against whose decisions there is no judicial remedy basically fails to recognise its obligation to seek a preliminary ruling under Article 234 EC Treaty (BVerfG, decision of 9 January 2001, 1 BvR 1036/99, EuGRZ 2001, p. 152). The same applies in the instance that there does not yet exist any case-law by the European Court of Justice concerning a decisive question on the application or interpretation of European Community law, or the existing case-law has not yet exhaustively answered that question (BVerfG, decision of 9 January 2001, cited above, p. 152).


ITEMID: 001-101471
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RABAN v. ROMANIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The first applicant, Mr David Raban, is an Israeli and Dutch citizen, who was born in 1957 and lives in Yehud, Israel. The second and third applicants are his children, Ela Raban, born in 2003, and Ilan Matzliah Raban, born in 2004. They currently live in Romania with A.R., their mother.
6. The first applicant and A.R. got married in 2002 in Cyprus. The two had already lived together as a couple in Israel for six months before the wedding. In 2003 and 2004 respectively, their two children, Ela and Ilan Matzliah, were born in Israel. Their last place of residence in Israel was Bat Hefer.
7. In 2006, as explained by the applicant, the couple, who had joint custody of the children, agreed that the mother and the two children would visit the mother's family in Romania for six months. On 27 April 2006, the mother and the children left for Romania; according to their roundtrip airline tickets, they were scheduled to be back on 24 October 2006.
However, they never returned to Israel; on 3 November 2006, A.R.'s mother informed the first applicant that A.R. and the children would remain in Romania.
8. Subsequently, the first applicant filed for the return of his children, under the Hague Convention (proceedings described under no. 1 below), while A.R. filed for divorce and custody of the children with the Romanian courts (proceedings described under no. 2 below).
9. On 8 November 2006 the first applicant filed a request for the return of his children under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was submitted through the Israeli Ministry of Justice to the Romanian Ministry of Justice (“the Ministry”). The first applicant claimed that his wife was wrongfully retaining their children in Romania, without his consent.
On 14 February 2007 the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the first applicant before the Bucharest District Court of the Fourth Precinct.
10. On the basis of the evidence adduced in the case, which included a “psychological evaluation of the children”, the District Court found on 11 October 2007 that the retention of the children in Romania was illegal under Article 3 of the Hague Convention, as at the time of the retention the father had lawful custody rights. It also held that the allegations of A.R. according to which the first applicant had agreed that the children should remain in Romania as his financial situation in Israel was precarious, confirmed by the witness M.-A. T., who stated that neither the applicant, nor A.R. had a job in Israel, were however unsubstantiated, as the first applicant had proved that he had made attempts to rent a house for the family, had enrolled the children in a local kindergarten and was regularly in contact with the children by phone.
The defence raised by A.R. under Article 13 § 1 b) of the Hague Convention was also dismissed by the court; it considered that the “state of insecurity” invoked and the “general threat of terrorist attacks” arising in Israel had not proved to be an obstacle to the family living in Israel for more than five years prior to the children's removal, and could not be regarded as having developed to a dangerous degree at that time. The court ordered that the children be returned to their habitual residence in Israel no later than three weeks after the judgment became final.
11. A.R. filed an appeal against this decision, which was allowed by the Bucharest Court of Appeal in a final judgment of 7 January 2008. Out of the panel of three judges, Judge M.H. gave a dissenting opinion, favouring the reasoning of the first-instance court.
The majority's decision was based on two conclusions: firstly, that Article 3 of the Hague Convention was not applicable to the case, in so far as the children, Romanian citizens, had left Israel and remained in Romania upon the agreement of the parents; secondly, that in any event, the exception provided for by Article 13 1 b) of the Convention was substantiated, as it had been proved that, if returned to Israel, the children would risk exposure to physical or psychological harm.
12. The appellate court thus found that the children had left Israel and remained in Romania with the consent of their father, due to the worsening of his financial situation. The agreement between the parents was for the children to stay in Romania until the first applicant's financial situation improved –in that respect, even the fact that they had bought roundtrip tickets, which were cheaper than one-way tickets, only underlined the financial difficulties the family was undergoing; however, as time passed, the evidence showed that this situation had kept worsening, since the first applicant had sold the house where they had lived as a family, after the departure of A.R. with the children, and gone to live with his mother. Also, the first applicant had not produced any evidence to support his claim that he had sent money to his children.
The court further held that the first applicant had not proved that he had maintained contact with his children; in the file there was only evidence of one visit paid by the first applicant to his children, on 3 October 2007; the phone calls allegedly made by the first applicant to his children in Romania had been made from the house of the first applicant's mother, which was interpreted as meaning that the conversations had been between the children and their paternal grandmother.
Hence, the agreement between the spouses regarding the children remaining in Romania proved to be real and such an agreement could by no means be regarded as breaching Article 3 of the Hague Convention.
13. Moreover, the evidence in the file showed that the two children had integrated into the Romanian community successfully – they had good results at kindergarten and positive psychological evaluations – arguments which supported a dismissal of the first applicant's action. The court also held that “the evaluation of the children carried out by the General Department for Social Assistance and Child Protection in the presence of a counsellor revealed that no assessment could be made of the possible effects of the separation of the father from his children, insofar as there was insufficient information with regard to the father-children relationship”.
14. The defence under Article 13 § 1 b) of the Hague Convention, namely, that there was a grave risk of exposing the children to intolerable physical harm if returned to Israel, was also allowed. The court based their reasoning, inter alia, on “the reports produced by Amnesty International”, which stated according to the court, that Bat Hefer was located in a conflict area, where citizens feared for their safety. At the same time, the court based its reasoning on travel advice issued in January 2008 by the US State Department, in which warnings were allegedly made about “potential conflicts which could arise between the Israelis and the Palestinians”, and “signs of possible terrorist attacks in the area” were referred to.
In a dissenting opinion to the judgment, Judge H.M. underlined that the above-mentioned documents “did not actually refer specifically to Bat Hefer, but to other regions of Israel”.
15. The applicant was never given a copy of the above-mentioned reports. In a certificate issued by the Ministry of Justice on 29 May 2008 to the applicant it was mentioned that neither the Amnesty International reports, nor the US State Department release were to be found in the domestic case file.
16. On 6 March 2007, A.R. filed for divorce, custody of the children and maintenance before the Bucharest District Court of the Fourth Precinct.
17. On 24 September 2008 the first applicant (defendant), represented by an appointed lawyer, presented his observations in reply to A.R.'s claims. He contended that the Romanian courts did not have general jurisdiction in such proceedings, in so far as the marriage was registered in Cyprus, the defendant was an Israeli and Dutch citizen, the couple's children were Israeli citizens, and the last marital home had been in Israel.
He also lodged counterclaims asking the courts to either grant him full custody of the two children, or to order their return to their habitual residence in Israel.
18. On 18 November 2008, the court rejected the first applicant's plea regarding the lack of jurisdiction, considering that “the Romanian courts did have full jurisdiction in such cases, pursuant to 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”.
19. In its judgment of 19 December 2008, the district court granted A.R a divorce on the grounds of exclusive fault by the first applicant.
Based on the conclusions of a social enquiry report on the children's concrete situation, which held that they were well taken care of and benefited from a good standard of living, and taking into consideration their ages (5 and 4, at that time), the court awarded custody of the children to the mother. The court found that it was in their best interest to remain with their mother, her care and presence being a psychological factor which was absolutely essential for their intellectual, moral and physical development.
In the absence of any proof regarding the first applicant's employment and/or income, the court referred to the national minimum wage scale and ordered him to pay monthly maintenance in the amount of 90 RON in respect of each child, starting on 6 March 2007 and until they reached the age of majority.
Neither the first applicant, nor A.R. have lodged any appeals against this judgment, which thus became final and enforceable.
20. The relevant legal provisions of the Hague Convention on the Civil Aspects of International Child Abduction are to be found in Iosub Caras v. Romania, no. 7198/04, 27 July 2006 and Deak v. Romania and the United Kingdom, no. 19055/05, § 58, 3 June 2008.
The Hague Convention was ratified by Romania by Law no. 100 of 16 September 1992.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-5639
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GRAMS v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: Werner and Ruth Grams, who are German nationals, were born on 26 June 1925 in Kreuz (Pomerania) and on 28 August 1924 in Markshöfen (East Prussia) respectively.
They were represented before the Court by Mr T. Kieseritzky, of the Frankfurt am Main Bar, and Mr A. Groß, of the Wiesbaden Bar.
The applicants are the parents of Wolfgang Grams, a suspected member of the Red Army Faction (Rote Armee Fraktion) who died on 27 June 1993 following an operation carried out on that day by “GSG-9”, a special unit of the Federal Border Police (Bundesgrenzschutz), at Bad Kleinen station (Mecklenburg-West Pomerania). The purpose of the operation was to arrest Grams and an accomplice, Birgit Hohefeld. There was an exchange of fire during which Grams and a police officer were killed and another police officer and a railway employee were wounded. B. Hohefeld was arrested. Afterwards Grams’s body was taken to Lübeck Hospital, where he was pronounced dead.
On 28 June 1993 Professor Oehmichen of the Forensic Institute of Lübeck University submitted his autopsy report to the Schwerin Public Prosecutor’s Office. He stated in his report that Grams had died from a bullet which had passed through his brain from right to left and from loss of blood due to three other bullets fired through his abdomen.
On 1 July 1993 the applicants filed an application to join criminal proceedings (Nebenklage) against persons unknown for the murder of their son.
The public prosecutor’s office then instructed Professor Oehmichen to prepare eight further expert reports on the firearms used during the operation in question and on certain particular aspects of Grams’s wounds. Those reports were submitted between 2 and 12 July 1993.
On 5 July 1993 Professor Geserick of the Forensic Institute of Humboldt University in Berlin submitted a second autopsy report (Nachsektion), at the request of Grams’s parents, in which he too concluded that Grams had died as a result of a shot fired through his head. He also agreed with the conclusions of the first autopsy report.
On the same day the Düsseldorf police submitted an interim ballistics report.
The Schwerin Public Prosecutor’s Office also instructed Professor Brinkmann of the Forensic Institute of Münster University to prepare four further interim expert reports on Grams’s injuries and imprints (Spurengutachten). Those reports were filed between 5 and 14 July 1993.
On 10 August 1993 the Schwerin Public Prosecutor’s Office began an investigation in respect of two members of GSG-9 who, according to a witness named Baron, had been right next to Grams when he was lying on one of the tracks at Bad Kleinen station after falling to the ground.
On 18 August 1993 Professor Brinkmann submitted a supplementary expert report on the marks found on the clothes of the police officers who had taken part in the operation (Spurengutachten). According to him, only one jacket had traces of Grams’s blood on it, but it had not been possible to determine with certainty how they had appeared.
On 10 September and 14 and 18 October 1993 the Zürich police forensic laboratory submitted interim reports on, among other things, the projectiles found at the place where the operation had been carried out and the cause of Grams’s wounds.
On 19 September 1993 Professor Brinkmann submitted his general report in which he addressed, among other things, the question whether the fatal gunshot had been fired by Grams himself or by another person. He concluded that the trajectory of the bullet was typical of a suicide and that the evidence did not point to an accident (unfallbedingte Entstehung). In his opinion, the fact that there were very few traces of blood on Grams’s gun, from which the fatal shot had been fired, meant that it had fallen to the ground before it could be sprayed with the blood and tissue (Spray aus Blut- und Gewebsteilen) caused by the penetration of the bullet. It necessarily followed that his hand had been immediately paralysed, as was usual after this type of suicide. Furthermore, if the fatal shot had been fired by another person, that person’s clothes would have been spattered with blood and tissue, whereas the investigations had not yielded any findings of that kind.
In a letter of 25 September 1993 Professor Sellier, a ballistics expert, stated that the bullets which had hit Grams in the abdomen had been fired from a distance of several metres. In a further expert report (of 12 December 1993) he concluded that the grazes found on the victim’s hand had in all likelihood been caused by the ballast on which he was lying.
On 15 November 1993 Professor Bär, Director of the Forensic Institute of Zürich University, submitted an expert report in which he concluded that, having regard to the results of the autopsy carried out on Grams, he would still have been capable, after falling onto the track, of shooting himself in the head with the bullet which killed him.
On 16 November 1993 the Zürich police forensic laboratory submitted a full expert report on the circumstances of Grams’s death.
On 13 January 1994 the Schwerin Public Prosecutor’s Office decided to discontinue the proceedings under Article 170 § 2 of the Code of Criminal Procedure (“CCP”). It drew the conclusion that the police officers had shot Grams in self-defence and that Grams had himself fired the bullet which went through his head, with the intention of killing himself. The public prosecutor’s office based that conclusion on a 210-page report (Abschlußvermerk) in which the special unit in charge of investigating the case had given an account of all its inquiries. The report stated, among other things, that during the course of those inquiries evidence had been heard from more than sixty witnesses.
On 20 and 22 January 1994 the applicants appealed to the Principal Public Prosecutor of the Land of Mecklenburg-West Pomerania (“the Principal Public Prosecutor”) against the decision to discontinue the case. On 6 June 1994 they filed pleadings in support of their appeal, attaching two expert reports prepared at the request of the applicants by Professor Bonte, Director of the Forensic Institute of Düsseldorf University.
In the first report, dated 29 March 1994, Professor Bonte concluded that as a result of a certain number of serious flaws in the investigation it was no longer possible to determine with certainty whether the fatal shot had been fired by Grams himself or by another person. With regard to the arguments advanced by Professor Brinkmann, he considered that, since the gun in question had indeed been spattered with blood after the shot had been fired, it was scientifically impossible to conclude that Grams had committed suicide; as for the finding that no clothes had been spattered with blood or tissue, this had been contradicted by Professor Bär. In short, it was impossible to prove that Grams had committed suicide and impossible to rule out the theory that another person had fired the fatal shot. As the evidence stood, it was not possible to reach a definite conclusion. Lastly, Professor Bonte suggested examining how the grazes on the back of Grams’s right hand had been caused and checking how the distance from which the shots had been fired had been measured, as this appeared open to criticism from a scientific point of view.
In his second expert report (Ergänzungsgutachten), dated 19 May 1994, Professor Bonte concluded that the grazes and redness found on the back of Grams’s right hand could have been inflicted by the tip of the hammer of Grams’s gun while someone was attempting to wrest it from him (streifender Kontakt mit dem Hahnende im Rahmen eines Entwindungsgriffs).
Furthermore, in their pleadings filed in support of their appeal, the applicants complained of certain flaws in the investigation which proved, in their opinion, that there had been a deliberate attempt to cover up evidence as to what had actually happened. They gave as examples the fact that Grams’s hands had been washed on his arrival at Lübeck Hospital, that an analysis of the fingerprints on Grams’s gun had been ordered too late – after they had been obliterated – and that the jacket of one of the police officers, which had bloodstains on it, had disappeared.
On 30 August 1994 Professor Brinkmann made observations, at the request of the Schwerin Public Prosecutor’s Office, on the expert reports submitted by Professor Bonte on 29 March and 19 May 1994. According to Professor Brinkmann, Professor Bonte had based his conclusions on numerous inaccurate findings (Anknüpfungspunkte) and there were a number of contradictions in his reasoning, so there were no grounds for revising the conclusions of the expert report of 19 September 1993.
On 19 June 1995 the applicants sent the Rostock Public Prosecutor’s Office observations (Stellungnahme) by Professor Bonte, dated 3 April 1995, on the expert report submitted by Professor Brinkmann on 30 August 1994. Professor Bonte confirmed his previous conclusions that it was impossible to prove that it had been suicide just as it was impossible to rule out the theory that another person had been involved. He also maintained that someone could have wrenched Grams’s gun out of his grasp.
On 23 August 1995 the Principal Public Prosecutor confirmed the decision to discontinue the case. For murder to be made out, it would, in his opinion, have been necessary for one of the police officers to have grabbed hold of Grams’s gun during the exchange of shots between Grams and the police quad chasing him. None of the witnesses, however, had made a statement to that effect. Despite the fact that the evidence of certain police officers had to be treated with care and despite a number of residual doubts, the conclusion drawn by the Schwerin Public Prosecutor’s Office, namely that Grams had committed suicide, appeared not only possible, but highly probable. It did not, in any event, contradict the available evidence. Moreover, the investigation had not revealed any evidence on which to bring a charge against one of the police officers or any other person. Lastly, there was nothing to suggest that a further investigative measure – and, in particular, a further expert report – would reveal conclusive fresh evidence.
With regard to Professor Bonte’s conclusions in particular, the Principal Public Prosecutor considered that they were not such as to justify reopening the investigation. The forensic experts disagreed about the course of events and Professor Bonte himself had merely stated that his conclusion was more likely than the others, without thereby suggesting that the others were wholly improbable. Given those reservations, the situation did not merit reversing the decision of the Schwerin Public Prosecutor’s Office to discontinue the case.
The Principal Public Prosecutor acknowledged that the statements of the police officers heard as witnesses contradicted each other on many points, but considered that the situation could no longer be remedied at that stage by ordering a further investigative measure. He also accepted that an error had been committed in not ordering a thorough examination of Grams’s hands, which had instead been washed as soon as he had arrived at the hospital. Likewise, an inquiry as to why Grams’s hands had been washed before they could be examined should have been ordered. However, a further investigative measure would not, in the Principal Public Prosecutor’s view, remedy the consequences of those errors.
The same was true of the fact that a biological test had been carried out on Grams’s gun before the fingerprints had been taken, since a further investigative measure could not bring back fingerprints which had disappeared as a result of an error. Lastly, the Principal Public Prosecutor did not consider it conclusive that the jacket of one of the police officers had disappeared from the premises of the Zürich police laboratory since it had disappeared after that department had carried out all the scientific tests.
On 30 August 1995 Professor Sellier made observations, at the request of the Schwerin Public Prosecutor’s Office, on the expert reports submitted by Professor Bonte. According to Professor Sellier, the grazes found on Grams’s hand could not have been caused merely by someone seizing his gun. They were more likely to have been caused by sharp objects, in this case the ballast on which Grams had been lying after his fall and against which his hand had rubbed while he was being picked up so that he could be taken to hospital.
On 2 November 1995 Professor Bonte made observations on the decision of the Principal Public Prosecutor upholding the decision to discontinue the case. He explained and confirmed the theories set out in his previous expert reports.
On 9 November 1995 the applicants appealed to the Rostock Court of Appeal under Article 172 § 2 CCP against the decision of the Principal Public Prosecutor. They requested that six members of GSG-9 be charged.
On 29 March 1996 the Court of Appeal dismissed the applicants’ appeal. It pointed out that under Article 174 § 1 CCP there had to exist a sufficient suspicion (hinreichender Tatverdacht) against a person for a prosecution to be brought. For that to be established there had to be a greater probability, in the light of the results of the preliminary investigation, that the person in question would be convicted than acquitted, which was not so in the present case.
The Court of Appeal took as the point of departure for its reasoning the fact that the victim had been killed by a shot fired from his own gun, which had been placed against the victim’s right temple or in that immediate area. For murder to be made out, someone would have to have seized the gun. There was nothing in the investigation to show that that had happened. The investigation had established that throughout the police officers’ pursuit of Grams they had been at a distance of at least 1.50 metres from the victim. The gun could not therefore have been seized from him during that stage of the events. Furthermore, it had not been established that someone had seized the gun while Grams was lying on the track following his fall after the shots had been fired at him: none of the witnesses had seen anyone take hold of the victim’s gun and none of the experts – who had, moreover, come to diverging conclusions – had been able to state, on the balance of probabilities (mit der hier erforderlichen überwiegenden Wahrscheinlichkeit), that that was what had happened. Whereas Professor Brinkmann had ruled out the possibility that the grazes on the back of Grams’s hand had been caused by someone violently seizing his gun, Professor Bonte had come to the opposite conclusion, while acknowledging that another possible explanation for the wounds was that in order to take Grams to the hospital it had first been necessary to free his right hand, which was trapped between the ballast and his buttocks. Professor Bär, for his part, had mooted a third explanation relating to a subsequent phase in the events, while Professor Sellier had concluded that it was “highly unlikely” (höchst unwahrscheinlich) that someone had violently seized Grams’s gun.
Even if it were conceded, the Court of Appeal went on, that someone had violently seized the gun, it would still be necessary, in order to explain the injury to Grams’s temple, for that person to have shot him by placing the barrel of the gun against his temple while he was lying on the track, a scenario which had not been confirmed by the investigation either. Most of the witnesses had stated that after the exchange of shots between the police officers and Grams and Grams’s fall they had heard no further shots. Moreover, the investigation had revealed that the victim had been hit by five bullets fired from a distance of at least 1.50 metres: four bullets had gone through the victim horizontally and one had travelled upwards through his body. In order to have fired the shot which hit the victim’s temple, a police officer would have to have been right next to him on his left-hand side after he had fallen down. None of the witnesses, however, had seen a police officer bend down to the left of Grams at that moment. On the contrary, all of them had stated that the two police officers posted next to Grams at that moment had been holding their guns well above Grams’s head.
Admittedly, three witnesses claimed to have seen those two police officers use their guns at that moment. Their evidence, however, was both incomplete and in blatant contradiction with other aspects of the investigation and therefore unreliable. This was particularly the case of witness B., who, during questioning, had given four different and contradictory versions of events. Furthermore, each version had contained elements which were incompatible with objective and verified evidence gathered in the investigation. With regard to witness J., whose statement had consisted merely in a telephone call to the Schwerin Public Prosecutor’s Office, it had not been possible to establish his identity with certainty and it had therefore not been possible to check his evidence, parts of which, moreover, blatantly conflicted with some of the objective evidence. Lastly, witness G. claimed to have seen everything without, however, being able to give a plausible explanation for his presence at Bad Kleinen station at the material time. The explanation he had given, namely that he was on his way to a friend’s house, had been contradicted by the friend.
The Court of Appeal held, on the other hand, that all the evidence in its possession supported the conclusion that Grams had committed suicide. This was borne out by, among other things, the quantity of blood found on the gun and the position of Grams’s head. Furthermore, the traces of blood on the victim’s temple suggested that the shot had been fired before he was lying completely flat, which supported the supposition that he had killed himself while falling backwards under the effect of his wounds. That theory was confirmed by the fact that, according to all the witnesses, Grams had remained motionless after his fall. The fact that none of the witnesses had seen the victim shoot himself in the head could be explained by the fact that many events had been happening at the same time (Reizüberflutung) and that from where they were standing the witnesses could see only the victim’s left arm whereas he had used his right hand to fire the shot.
Lastly, the Court of Appeal considered that even if Grams’s hands had been examined, that would not have provided evidence on which to bring a charge of murder since they had necessarily borne the traces (Schmauchspuren) of the ten shots he had fired at the police officers. As for any fingerprints which might have been found on Grams’s gun, they would not necessarily have proved that someone had shot him because they might also have been placed there while the gun was being carried away. Lastly, it was of no consequence that the jacket of one of the police officers had disappeared in Zürich since the other evidence gathered during the investigation had ruled out the possibility that the shot could have been fired by a person other than Grams himself.
In conclusion, the Court of Appeal found that it had been proved with a degree of probability approaching certainty (mit an Sicherheit grenzenden Wahrscheinlichkeit) that Grams had killed himself as he fell onto the track. The argument advanced by the applicants therefore lacked the degree of probability necessary for a reopening of the investigation to be ordered.
On an appeal by the applicants, the Federal Constitutional Court decided on 17 July 1996 not to examine the case.
Under Article 170 § 1 and Article 170 § 2 of the Code of Criminal Procedure (Strafprozeßordnung – “CCP”) the public prosecutor’s office must prosecute (Erhebung der öffentlichen Klage) a suspect if the results of the investigation justify instituting criminal proceedings. It does so by lodging an indictment (Anklageschrift) with the appropriate court. If the results of the investigation do not justify instituting criminal proceedings, the public prosecutor’s office discontinues the case (Einstellung des Verfahrens).
Article 172 CCP governs appeals which, in proceedings to enforce a prosecution (Klageerzwingungsverfahren), can be brought by a civil party against a decision to discontinue a case. The civil party can first lodge an appeal (Beschwerde) with the member of the public prosecutor’s office immediately superior to the one who decided to discontinue the case. If that appeal is dismissed, the civil party can request the Court of Appeal to rule on whether a charge can be brought (Antrag auf gerichtliche Entscheidung).


ITEMID: 001-76183
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KAMILE UYANIK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1939 and lives in Ankara.
5. On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place.
6. Following the applicant’s request, on 27 September 1994 the Ankara Civil Court awarded her additional compensation plus interest at the statutory rate applicable.
7. On 29 January 1996 the Court of Cassation upheld that judgment.
8. On 9 February 1998 the amount of 2,800,000,000 Turkish liras (TRL) was paid to the applicant.
9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).


ITEMID: 001-82394
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PARADIS AND OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The application was lodged with the Court by a mother, Susanne Paradis, on behalf of herself and her four children Vanessa, Nina, Joshua and Sasha. Ms Paradis, born in 1966, is a German national. Her four children were born in 1985, 1994 and 1996 and are German and Canadian nationals. Ms Paradis currently lives in Hördt, Germany, while the children’s whereabouts are unknown.
The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
This application is closely related to application no. 4783/03, declared inadmissible by the Court on 15 May 2003.
That application had been lodged by Ms Paradis on behalf of her four children. The Court left open the question as to whether Ms Paradis had to be regarded as an applicant in her own right.
Ms Paradis, a German national, had been married to a Canadian national, Mr O., with whom she has three children (Nina, Joshua and Sasha). She has another daughter by a first marriage (Vanessa). After having left Mr O. in 1997, the Windsor Superior Court (Canada) granted Ms Paradis sole custody of Nina, Joshua and Sasha, while Mr O. was granted access. The court ordered Ms Paradis not to remove the children from Canada, unless Mr O. consented to it. In summer 2000 Ms Paradis and the applicants travelled to Germany for a two-week’s stay after having obtained Mr O.’s consent. However, they did not return to Canada after those two weeks had lapsed. Ms Paradis filed a petition for divorce in Germany and requested the sole custody of Nina, Joshua and Sasha. However, the Windsor Superior Court then granted Mr O. the children’s sole custody. On 28 September 2001 the Zweibrücken District Court (Germany) rejected Mr O.’s request to return Nina, Joshua and Sasha under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). On 26 June 2002 the Court of Appeal revoked that decision and ordered Ms Paradis to return the children to Mr O. On 8 August 2002 the Federal Constitutional Court refused to admit the complaint lodged by Ms Paradis on behalf of Nina, Joshua and Sasha.
On 17 February 2003 the District Court ordered the court bailiff to execute the Court of Appeal’s decision of 26 June 2002. However, on 18 March 2003 his attempts failed due to the applicants’ explicit refusal. On 9 April 2003 the Court of Appeal vested the court bailiff with the right to use force against the applicants.
On 30 April 2003 the Federal Constitutional Court refused to admit the applicants’ complaint.
On 15 May 2003 the Court found that there was no violation of the applicants’ rights under Article 8 of the Convention and declared the application inadmissible as being manifestly ill-founded.
On 19 May 2003 the court bailiff again tried in vain to execute the Court of Appeals’ decision of 26 June 2002. Ms Paradis declared that she had already brought the children to France four weeks ago and refused to disclose their whereabouts. On 21 May 2003 the Zweibrücken District Court ordered Ms Paradis’ coercive detention (Zwangshaft) according to section 33 §§ 1 and 3 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) in order to obtain the children’s whereabouts (see “Relevant domestic law” below). It elaborated that the Court of Appeal had already decided in June 2002 that the children should be returned to Mr O. and that any further delay in executing this decision had to be avoided. The court furthermore found that the other coercive measure under section 33 of the Act on Non-Contentious Proceedings, a penalty payment, would not prove to be successful. Under those circumstances the court concluded that Ms Paradis’ detention was proportionate, but clarified that she would be released immediately once the children were returned. It furthermore held that due to the urgent nature of the case it had not been called for to hear Ms Paradis in advance. In this respect the court also pointed out that it had expected Ms Paradis to thwart her coercive detention.
On 27 May 2003 the Court of Appeal rejected the applicants’ complaint and confirmed the lower court’s reasoning.
On 31 July 2003 the Federal Constitutional Court refused to admit Ms Paradis’ complaint.
The applicant Ms Paradis was detained for six months from 2 June 2003 to 1 December 2003. She did not disclose the children’s whereabouts and they appear to be still in hiding.
“(1) If somebody is obliged by court order to carry out an action which merely depends on his will, to omit an action or to tolerate an action, the court may, unless the law provides differently, impose a penalty payment in order to ensure the compliance with its order. If a person has to be returned, the court may order coercive detention independently from the penalty payment. ...
(3) .... Coercive detention (section 1) shall be announced, unless the execution of the court order is particularly urgent or if it has to be expected that the execution of coercive detention will be thwarted. ... Sections 901, 904 to 906, 909 § 1 and 2 and sections 910 and 913 of the Civil Procedure Law Code apply accordingly to the execution of coercive detention. ...”
Section 913
“The detention may not exceed six months. After the completion of six months the obligor (Schuldner) is to be released ex officio. “


ITEMID: 001-109104
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DJAPARIDZE v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi
TEXT: 1. The applicant, Mr Malhaz Djaparidze, was a stateless person who had been born in 1964 and until his death on 26 April 2008 lived in Chişinău. The applicant is represented before the Court by Mr V. Ţurcan and Mr A. Beruciaşvili, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. On 30 April 2008 the Registrar was informed of the applicant’s death. On 23 November 2009 the applicant’s son, Mr Gheorghii Djaparidze, informed the Registrar that he wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyers as his representatives. For practical reasons, Mr Malhaz Djaparidze will continue to be referred to in this decision as “the applicant”, although Mr Gheorghii Djaparidze is now to be regarded as having this status (see the Vocaturo v. Italy 24 May 1991, § 2, Series A no. 206-C).
3. The applicant was accused of consuming narcotic drugs while serving a sentence. On 12 July 2007 the Buiucani District Court discontinued the criminal proceedings against him and ordered his immediate release.
4. After leaving the court building the applicant was arrested again by the police. The reason was that he had been found walking in the street without documents and had no permanent abode or means of support. The applicant then gave personal details, including his permanent address in Chişinău, to a police officer. He indicated that he did not have any identity documents, which were all still with the prison administration.
5. The applicant was placed in a centre for homeless people (“the Centre”). His lawyers complained that he had been detained unlawfully.
6. On 17 July 2007 the applicant’s lawyers made a complaint of unlawful detention to the Rîşcani District Court. The court postponed two hearings (on 19 and 24 July 2007) at the request of the applicant’s lawyers, who had asked for documents concerning the reasons for the applicant’s arrest from the prosecution.
7. On 17 July 2007 the applicant signed an authority form for his lawyers to represent him before the Court.
8. On 18 July 2007 it became clear that he was no longer at the Centre. A criminal investigation was opened against two officers, who were accused of taking the applicant out of the Centre during the night of 17-18 July 2007 to a place on the outskirts of Chişinău, from where he had fled. At the same time, the applicant was declared a wanted person.
9. On 1 August 2007, the Rîşcani District Court found that the applicant’s arrest and detention had been unlawful since none of the legal grounds cited by the prosecution applied. The court relied expressly on Articles 5 and 13 of the Convention. That decision was final.
10. On 13 February 2008 the applicant was expelled from Ukraine at the border with Moldova, even though his extradition to Moldova had been refused by the Odessa County Appeal Court on 24 March 2008. On 25 March 2008 he was arrested when crossing the border with Moldova.
11. Following his arrest the applicant was placed in the detention facility of the Operational Services Department of the Ministry of Interior (“the DSO”). On 31 March 2008 his lawyers complained to the Prosecutor General’s Office that the DSO administration had refused to allow him to receive any food or clothes. They noted that he was suffering from hepatitis and required a special diet and that there was a risk of deterioration of his state of health. They asked for their client to be transferred to prison no. 13 so that he could obtain appropriate medical treatment.
12. On 4 April 2008 the applicant’s lawyers complained to the Prosecutor General’s Office, noting the risk to his state of health in the inhuman conditions of detention of the DSO detention facility. On 10 April 2008 the applicant was transferred to prison no. 13 in Chişinău.
13. On 18 April 2008 the applicant’s lawyers asked the authorities at prison no. 13 to inform them of the reasons for placing their client in a solitary cell. On 12 May 2008 they were informed that upon his arrival the applicant had been placed in solitary confinement for fifteen days, in order for him to undergo examinations aimed at establishing the state of his health and for medical treatment to be prescribed if found to be necessary. On 25 April 2008 the applicant was transferred to an ordinary cell.
14. In the morning of 26 April 2008 two detainees who shared the cell with the applicant alerted the prison guards that he was not showing any signs of life. Thereafter the prison doctor pronounced the applicant dead.
15. Between 29 April and 15 July 2008 a medical expert examined the applicant’s body. He found that the cause of death had been cardiac-pulmonary deficiency which had been caused by ischemic cardiopathy and pulmonary fibrocavital tuberculosis. The medical expert also found marks on the cadaver’s back which were interpreted as light injuries caused while the applicant was alive. He was also found to have been under the influence of a minor degree of alcohol intoxication at the time of his death.
16. On 30 April 2008 the applicant’s lawyers informed the Court of their client’s death.
17. On 25 July 2008 a Chişinău Prosecutor’s Office prosecutor decided not to initiate a criminal investigation in the absence of any evidence that a crime had been committed. The prosecutor referred to the statements made by the applicant’s cellmates and the head of the detention block in which he had died. He also cited the findings of the medical and toxicology experts and relied on video recordings, which showed that nobody had entered or left the cell during the night. He noted the presence of marks on the cadaver’s back, without making any comment in that respect.
18. On 11 August 2008 the applicant’s lawyers asked the Prosecutor General’s Office to revoke the decision of 25 July 2008. They mentioned, inter alia, that important questions had not been answered during the preliminary investigation, such as whether their client’s life could have been saved had he been correctly diagnosed and treated in prison no. 13.
19. On 15 September 2008 the Chişinău Prosecutor’s Office replied that the decision of 25 July 2008 had been taken correctly.
20. The applicant’s lawyers challenged the decisions of 25 July and 15 September 2008 before the Centru District Court.
21. On 7 November 2008 the Centru District Court rejected the complaint, on the ground that it had not established that any breaches of fundamental rights had occurred. One of the applicant’s lawyers was present at the hearing. That decision was final.
22. On 23 November 2009 the applicant’s son expressed his wish to continue with the case lodged by his father and raised in essence a complaint under Article 2 concerning the incompletely established circumstances of his father’s death.


ITEMID: 001-91042
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AMUTGAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1970 and is serving his prison sentence in the Gaziantep H-type Prison.
5. On 27 April 1998 the applicant was taken into custody during a military operation carried out by the Turkish armed forces on suspicion of being a member of an illegal armed organisation, namely the PKK (the Workers’ Party of Kurdistan). The applicant was detained at a gendarme station, where he was questioned in the absence of a lawyer and his detailed statement was recorded verbatim.
6. In the statement the applicant was quoted as having said that he had joined the PKK on 13 February 1995 and that he had carried out a number of armed activities since that date.
7. On 6 May 1998 the applicant was brought before the public prosecutor and subsequently the investigating judge. When questioned by the prosecutor and the judge, in the absence of a lawyer, the applicant confirmed the accuracy of the information contained in the statement he had made at the gendarme station, and repeated that he had carried out a number of armed activities. The applicant was placed in detention on remand on the order of the investigating judge.
8. On 15 June 1998 the public prosecutor at the Diyarbakır State Security Court filed an indictment, charging the applicant with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.
9. The trial of the applicant and his seven co-defendants began on 20 August 1998 before the Diyarbakır State Security Court. In the course of the trial, the applicant was represented by his lawyer. He informed the court that he had joined the PKK in 1995 and had received military training. He further admitted to certain charges brought against him. The applicant also stated, during the hearings, that he had been forced to put his thumbprint on the statement taken from him at the gendarme station.
10. On 28 November 2002 the Diyarbakır State Security Court found the applicant guilty as charged and sentenced him to death. The death penalty was commuted to a life sentence. The court found it established, on the basis of, inter alia, the statements taken from the applicant after his arrest and the testimony given by him during the trial, that he had carried out a number of illegal activities and had been involved in the killing and kidnapping of a number of village guards.
11. On 16 September 2003 the Court of Cassation dismissed the applicant’s appeal.
12. A description of the relevant domestic law may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27-31, 27 November 2008).
VIOLATED_ARTICLES: 6


ITEMID: 001-101534
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: V.C. v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms V.C., is a Moldovan national who was born in 1976 and lives in Chişinău. She was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
In June 2002 the police arrested three women for engaging in prostitution. Following questioning it was discovered that they were part of an organised group headed by a pimp. In particular, it appeared that the pimp, L., had rented an apartment for that purpose, hired three other persons to answer telephone calls from clients and arrange meetings and placed ads in a local newspaper advertising dates with female partners. The police found the ads in the newspaper and identified the persons responsible for answering telephone calls from clients. One of those persons was the applicant.
On 28 June 2002 a search was conducted in the applicant's apartment and a journal containing seventy-three pages of telephone numbers, lists of clients, amounts of money and a black list of clients was seized. The journal also contained the telephone number of L. and of the apartment where the three prostitutes who allegedly worked for L. carried out their activity. Later that day the applicant was questioned at the police station as a witness. She admitted to having worked for L. and gave details about the functioning of their group. Her duty was to answer telephone calls from clients in search of sex services and to set-up meetings between them and prostitutes. She was to inform clients about the rates and the exact description of the services provided by the prostitutes. She was also to ask for a description of the clients' appearance and to indicate to them the time and place for meeting the prostitutes. After that she was to call L. and provide her with the information concerning the time of the meeting and details about the particular client's appearance. L. would then provide the information to the prostitutes who would later approach the client, if he appeared acceptable to them or if they did not find him suspicious. The applicant also gave details about the division of the revenue among all the members of the group and stated that she was entitled to twenty percent of each successful transaction set-up by her. The sums indicated by the applicant in her declaration were consistent with the amounts indicated in the journal seized from her apartment.
The police also questioned the two other telephone operators, the prostitutes and the alleged pimp, L. All except for L. admitted to having been part of the group and gave details about the group's activity. The police also obtained a detailed transcript of the telephone communications of all the members of the group over a period of several months from which it appeared that the pattern of communication between them and the clients was consistent with the scheme described by them during questioning. The police also questioned a client, who had been caught red-handed and who confirmed the story provided by the prostitutes and the telephone operators. The police obtained copies of the applications for placing ads in the newspaper. It appeared from them that the ads containing the applicant's telephone number had been placed by L. Some of the ads concerning other telephone numbers belonging to the two other telephone operators had also been placed by L.
After the criminal investigation was terminated by the police, the file was transmitted to the Prosecutor's Office which indicted all the members of the criminal group, except for the prostitutes, with the offence of trading in prostitution. In the first round of questioning following her indictment the applicant, assisted by a lawyer, admitted to having worked for L. by answering telephone calls and arranging meetings, but stated that she had not been aware that the persons in question were prostitutes and possible clients. Later the applicant hired another lawyer and, during the second round of questioning, rejected the charges against her and refused to make any statements. The prostitutes reiterated their statements made at the police station according to which L. was their pimp. They identified L. from numerous pictures presented to them. One of them was confronted with L.
During the court proceedings the applicant changed her defence and argued that she had been working as an independent prostitute and that the ads in the newspaper had been placed in order to find clients for herself. She did not explain why the ads had been placed by L. According to the applicant she met clients at her home while her husband was away or at the clients' homes. She emphasised that she did not seek clients for other prostitutes. When asked to explain her relationship with L. she submitted that they had been acquaintances and often telephoned each other because she was sewing a costume for L.'s daughter. The journal seized by the police on 28 June 2002 was hers and she had noted down information in it about her own clients. The applicant did not explain why the telephone numbers of L. and of the three prostitutes were contained in the journal. She stated that she had been intimidated during the questioning by the police and that her statements given to the police had not been true. As to her statements made during the first round of questioning at the Prosecutor's Office, she maintained that they were also false because her lawyer had advised her to lie.
On 14 June 2004 the Rascani District Court convicted L. of trading in prostitution but acquitted the applicant and two other co-accused. L.'s conviction was based, inter alia, on the testimonies of the three prostitutes made to the Prosecutor's Office during the investigation stage of the proceedings which were read out in court. None of the witnesses was heard in court because the court had failed to obtain their attendance even with the help of the police. At the same time, the court considered that the testimonies of the three prostitutes given during the investigation stage could not be used against the applicant because they did not contain anything to incriminate her and the two other co-accused telephone operators. The court considered that the applicant's confession made during the investigation stage could not be relied upon and that the prosecution had failed to prove that the applicant's statement that she had been an independent prostitute was incorrect. The Prosecutor's Office appealed against this judgment.
On 27 October 2004 the court of appeal, following an oral hearing, upheld the prosecutor's appeal and reversed the judgment of the lower court in respect of the applicant and the two other telephone operators. It found the applicant guilty as charged on the strength of her own admission during the first round of questioning by the Prosecutor's Office, namely that she had been working for L. by answering telephone calls and arranging meetings between interested persons. The court dismissed the applicant's defence that she had been an independent prostitute. The court also considered relevant the applicant's testimony made to the police in her capacity as a witness in which she gave details about her duties in the criminal group. The court also gave weight to the journal seized from the applicant's apartment on 28 June 2002, the detailed transcript of her telephone communications and other evidence contained in the case file, without specifying the nature of that evidence. According to the court of appeal's judgment, the testimonies of the three prostitutes used against L. were not the basis of the applicant's conviction. The applicant was exempted from serving a prison sentence on the basis of an amnesty law.
The applicant lodged an appeal on points of law against this judgment and argued mainly that the witnesses whose testimonies had been relied upon in the court of appeal's judgment had not been heard by that court and that she did not have a chance to put questions to them.
On 19 January 2005 the Supreme Court of Justice rejected the applicant's appeal on points of law, finding that the court of appeal had correctly established her guilt on the strength of the evidence in the case file and the witness testimonies relied upon.
Under the Moldovan legislation prostitution is not considered to be a criminal offence but an administrative misdemeanour punishable by a fine or administrative detention. The same is not the case of the offence of trading in prostitution (“proxenetism”) and obtaining revenue from prostitution practiced by other persons. The latter is considered to be a criminal offence and is punishable by up to seven years' imprisonment.


ITEMID: 001-5793
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SIEMINSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish citizen born in 1943, residing in Łódź.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 May 1995 in the morning the applicant’s husband lost consciousness. The applicant’s neighbour called an ambulance from the local emergency station. As it was not equipped with necessary resuscitation appliances, a second one was called. Despite resuscitation measures taken by the doctor, the applicant’s husband died at 10.45 a.m.
On 12 July 1995 the applicant requested that criminal proceedings be instituted against the medical personnel involved in the incident, alleging that they had been negligent in dealing with her husband.
On 6 September 1995 the Łódź District Prosecutor discontinued the investigation finding that no criminal offence had been committed. It had been established that the ambulance had been called by the applicant’s neighbour who had failed to inform the dispatchers at the local emergency station that the applicant’s husband had an infarctus in 1990 and that he had been unconscious. Immediately after the ambulance arrived at 9.48 a.m., the physician had ordered at 10.02 a.m. that a resuscitation ambulance be called. This ambulance arrived at 10.08 a.m. and resuscitation measures had been taken, to no avail.
The applicant filed an appeal with Łódź Regional Prosecutor against this decision.
On 18 October 1995 the Łódź Regional Prosecutor quashed the decision under appeal, considering that the evidence gathered in the case had to be completed. In particular, copies of the dispatching documents of the emergency station on which the lower prosecutor had relied, were unreadable and nothing could reasonably have been established on this basis in respect of the exact time when the ambulance had been called and when the applicant had urged the station to speed up their action. There were also certain discrepancies between these documents, which had not been explained. Moreover, the neighbour who had first called the ambulance should have been questioned. The prosecutor emphasised that the dispatching document had shown that the first call referred to the applicant’s husband as “dying”. Thus, it was necessary to establish why an ordinary ambulance had been sent to a person qualified as dying. It was further necessary to find exact times when the applicant and her neighbours had called the emergency station. Moreover, it was necessary to explain whether it was indeed the case that under existing regulations only a physician was entitled to call a resuscitation ambulance.
On 14 December 1995 Łódź District Prosecutor again discontinued the investigations. It was established that on 20 May 1995 the applicant’s neighbour called the ambulance. As the applicant was in a state of shock, she did not give precise information concerning her husband’s state. The neighbour was consequently unable to provide details as to his medical past. J.M., dispatcher at the emergency station, noted information she obtained stating that the applicant’s husband was “dying and conscious”. A decision was taken by two dispatchers E.W. and A.T. to send an ordinary ambulance. It was noted that a regulation was in force at that time which allowed for dispatching a resuscitation ambulance only on the order of a physician. Exceptions from this rule were allowed only if the calling person provided medical details allowing for such a decision. The ambulance left the station at 9.48 a.m. and arrived at the applicant’s address at 10 a.m. In the meantime, at 9.50 approximately, the applicant’s neighbour had urged the emergency services to send the ambulance. After the ambulance arrived, physician G.B. ordered the driver at 10.02 to call a resuscitation ambulance and proceeded to the resuscitation with the equipment available at the ordinary ambulance. The resuscitation ambulance arrived at 10.08. Subsequently, further resuscitation efforts had been made with the use of a special cardiological equipment, but to no avail. At 10.45 a.m. the applicant’s husband died. The prosecutor concluded that in the light of the evidence there were no grounds on which to find that the medical staff was negligent or too slow in their actions in such a manner as could contribute to the applicant’s husband’s death.
The applicant appealed again, complaining that the evidence taken during the investigations was insufficient for the proceedings to be discontinued.
On 31 January 1996 the Łódź Regional Prosecutor upheld the decision of 14 December 1995, considering that in the light of the evidence there were no grounds on which to accept that the staff of the emergency station had acted in breach of any regulations in force at the material time. It was true that certain doubts could be expressed as regards the fact that no resuscitation ambulance had been sent after the second phone call by which the applicant’s neighbour provided more detailed information about the state of the applicant’s husband. However, on the whole, the manner in which the staff had acted confirmed the conclusion of the lower prosecutor that they had no case to answer.
The applicant subsequently requested the Appellate Prosecutor to reopen the proceedings, to no avail. The prosecutor, in its letter of 5 April 1996 stated that the case-file had been re-examined. It was further emphasised that the first ambulance was called at 9.45 a.m. approximately, it left the station at 9.48 a.m. and arrived at the applicant’s address at 9:55. The second ambulance, carrying resuscitation equipment, was called at 10.02 a.m. and arrived at 10.08. There were numerous documents concerning the calling, dispatching and arrival of the ambulances and a number of persons were involved in making these documents. They were acting independently in this respect. This in itself cast doubt on the applicant’s arguments that the relevant documents had been forged so that the staff could evade criminal responsibility. The evidence given by the applicant’s neighbours corresponded with the conclusions which had been drawn from the testimony of other witnesses. The evidence was also concordant in that the applicant’s neighbour, in the first phone call for the ambulance to be sent did not give details concerning the state of the applicant’s husband at that time, which in turn entailed a decision to send the ordinary ambulance.
The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of the Chambers is mandatory. Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Disciplinary Court are elected by the National Congress of Physicians, composed of delegates of local chambers.
Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking out of the register of physicians.
The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989.
Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. While investigating such a complaint, the agent may question physicians charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which he or she deems relevant.
If information existing at the time the investigations are instituted, or gathered in the course thereof, is sufficient to charge a physician with professional misconduct, the agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of the alleged offence and written grounds.
Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered does not suffice for drawing up a motion for a penalty to be imposed.
A complainant may lodge an appeal against that decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Disciplinary Court.
Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date.
Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent’s decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file but the agent can limit this access to documents that are not covered by medical confidentiality.
Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians.
Under Article 417 of the Polish Civil Code, the State and local municipalities are liable for damage caused by its agents in the exercise of their functions. There is established case-law of Polish courts to the effect that this liability of the State includes also liability for damages caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.