ITEMID: 001-114969
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: M.I. AND OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney
TEXT: 1. The seven applicants, Mrs M.I., her adult son and her five other minor children (“the applicants”) are Finnish nationals. The President of the Section decided of his own motion to grant the applicants anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). The applicants, who had been granted legal aid, were represented by Ms Leeni Ikonen, a lawyer practising in Kerava, and by Ms Anu Suomela.
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant mother, born in 1968, and her husband were married in 1987. They have six children: D., born in 1987, S., born in 1996, I., born in 1997, R., born in 1999, L., born in 2003 and B., born in 2005. In July 2005 the applicant mother suffered a stroke which paralysed her left side. She was able to return home from hospital only nine months later. During that time her husband took care of the children and the home. He continued to do so even after her return as she could hardly walk and usually used a wheelchair.
5. In November 2005 the oldest child D. reached the age of majority.
6. In July 2006 the husband was killed in a car accident. The applicant mother and the children lived at first with her parents but moved back to their home in January 2007. As of 1 December 2006 and during 2007 the applicant mother received considerable help from the social services. A team of 4 to 6 social workers worked with the family practically round the clock.
7. On 23 August 2007, a family worker made an evaluation of the situation in the applicant’s family. According to the evaluation, the applicant mother used a wheelchair whenever she moved from one place to another and managed to get into and out of the wheelchair independently. She was quite capable of writing but needed help with opening envelopes. As to everyday routines, the report noted that the applicant mother could eat her food independently if it was already portioned. For dressing and undressing she needed verbal support and also physical help and she could not button or zip up her clothes. She was able to go to the toilet independently. When washing herself she needed help only with washing her back and feet and rinsing her hair. Regarding the applicant mother’s understanding and memory, the evaluation stated that the applicant mother lived in an imaginary reality and could not see the real situation of her family. She misunderstood things and could even understand some things quite in reverse. The applicant mother had problems with her memory and sense of time: she confused days of the week and the children’s schooldays and could not always remember when she had washed herself last, for example. The family worker reported that the applicant mother’s mental ability varied from day to day and she easily became anxious.
8. The family workers found their work in the family challenging and tiring in all respects because each of the five youngest children showed various symptoms due to their traumatic past. The applicant mother’s parents took an active part in the everyday life of the family, and this caused occasional conflicts. The family workers also experienced threats from the applicant mother’s eldest child, D., who disturbed their work. The family workers had said that they would not continue working with the family until the problems were solved.
9. On 9 October 2007 the child welfare authorities decided, as a support measure, to place the children in foster care, either in family care or in support families, until 20 October 2007.
10. As there were a lot of problems in the family, on an unspecified date the social services asked a private firm to evaluate the parenting in the family.
11. On 14 December 2007 the five minor children were taken into emergency public care. These decisions were reasoned by the fact that the social workers could no longer cope with the family. The children were also afraid of their grandparents and feared that they would be kidnapped and taken abroad by them. The grandparents treated the children unequally and used corporal punishment. The grandfather drank a lot of alcohol. The children showed excessive sexual behaviour, and they had all wanted to stay in their support families rather than returning home. According to the preliminary results of the on-going evaluation by the private firm, the applicant mother was unable to meet the emotional needs of the children and they had suffered from insecurity for a long time. The children violated each other’s limits sadistically but the applicant mother did not intervene. Before taking the decisions, S., I. and R. had been heard and none of them opposed the taking into public care. All the children were placed in different families.
12. On 20 December 2007 the social welfare authorities received the evaluation made by the private firm. According to the evaluation, the children were, inter alia, left on their own, even when in the company of their mother. They tried as individuals to obtain attention and care from any adult but their mother was not the primary option for any of them. The mother was mentally and physically dependent on the social workers and she was not able to cope with the children’s aggression or other feelings. She was not in practice capable of adequate parenting. The social workers had to bear too much responsibility for the children’s safety. It was more important to provide an adult to care for each child than to keep all the siblings together.
13. By letter dated 22 December 2007 the applicant mother sought rectification of this decision and proposed that the grandparents could help her to take care of the children.
14. On 31 December 2007 the emergency taking into public care was maintained by the child welfare authorities.
15. On 14 January 2008 the Director of social services submitted a request to the Administrative Court (hallinto-oikeus, förvaltnings-domstolen) for a care order for each of the children.
16. By letter dated 15 February 2008 the applicant mother appealed to the Administrative Court.
17. On 20 February 2008 the request for rectification was rejected by the child welfare authorities. All of the children had integrated well in their foster families and were concerned about their possible return home. Taking into account what the children had said about their grandparents, they could not be considered as persons with whom the children could be placed.
18. On 13 March 2008 the Administrative Court held an oral hearing in the case. The oldest children S. and I. were heard separately by the court and it met the youngest children, R., L. and B., in their respective foster homes.
19. On 28 March 2008 the Administrative Court confirmed the taking into public care and the placement of the children. Two of the children were placed in the same foster home. The court found that the taking into public care was needed due to the lack of parenting and the circumstances at home. The lack of care endangered seriously the health and development of the children. The aid provided in different forms by the social workers had proved to be insufficient. Taking the children into public care was in their best interest.
20. By letters dated 10 April and 6 May 2008 the applicant mother appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that an oral hearing be held. She claimed that the authorities had neglected to evaluate the role of the grandparents who were able and willing to take care of the children. The grandmother had previously worked in a children’s day-care centre. Also, her brother had promised to help her with the children.
21. On 16 April 2008 the emergency public care order was continued in the best interest of the children.
22. On 30 April 2008 the local social welfare authority requested the Local Registry Office (maistraatti, magistraten), in accordance with section 22 of the Child Welfare Act, to appoint the children a guardian. From the documents submitted by the applicants it appears that such a guardian was appointed.
23. On 23 June 2009 the Supreme Administrative Court rejected the request for an oral hearing as well as the appeal. Concerning the former, it found that the Administrative Court had already organised an oral hearing and that a new oral hearing was not needed to clarify the matter. As to the appeal, it found that the criteria for taking into public care had been fulfilled and that there was no reason to change the outcome reached by the Administrative Court.
24. On 22 June 2009 the child welfare authorities decided to change the placement of the youngest child. This decision was based on the fact that the former foster family was exhausted and could no longer continue to cope with the youngest child.
25. The applicant mother appealed against this decision to the Administrative Court, demanding that the child be placed with her. She also requested that an oral hearing be held. She referred, inter alia, to the Convention and demanded that the authorities actively work to reunite the family.
26. On 20 October 2009 the Administrative Court rejected the appeal. It found that it was not possible to place the child with his mother as he had no affectionate relationship with his mother. As the same difficulties as before still existed, it was not in the best interest of the child to place him with his mother. It was in his interest to be placed in another foster home which could provide him a model of normal family life.
27. By letter dated 11 November 2009 the applicant mother appealed against this decision to the Supreme Administrative Court.
28. On 14 June 2011 the Supreme Administrative Court rejected the applicant mother’s appeal, confirming the reasoning of the Administrative Court in its decision of 20 October 2009.
29. The children have been able to meet each other only a couple of times during their placement. Since being taken into public care, they have been able to meet their mother only occasionally under supervision. There were no visits between February and May 2008.
30. On 11 February 2009 the child welfare authorities decided that none of the children could meet their mother or otherwise contact her at all during the period from 9 February to 31 May 2009. This decision was reasoned by the fact that forensic psychiatric examinations of the children were on-going and that they required the creation of stable and clear conditions. No meetings were held during the validity of the decisions. Letters or other mail or confidential messages sent by the children or addressed to them were withheld. The applicant mother appealed against these decisions to the Administrative Court.
31. On 8 and 19 May 2009 the Administrative Court rejected the applicant mother’s appeals against the decisions of 11 February 2009. It found that contact restrictions were necessary due to the on-going forensic psychiatric examinations of the children and were in their best interest.
32. On 16 June 2009 the child welfare authorities decided that, during the period from 9 June to 31 October 2009, three of the children, S., I. and L., could meet their mother every six weeks in the foster home for one and a half hours at a time in the presence of the foster parent. The meetings for the two other children, R. and B., were cancelled until 31 October 2009. The applicant mother appealed against these decisions to the Administrative Court.
33. On 15 October 2009 the child welfare authorities decided that, during the period from 5 October 2009 to 31 January 2010, the youngest child B. could meet his mother under supervision for one and a half hours at a time, every three weeks. The applicant mother appealed against this decision to the Administrative Court.
34. On 15 October 2009 the child welfare authorities also prohibited contact between B. and his grandparents until 31 January 2010.
35. On 20 October 2009 the Administrative Court decided the applicant mother’s appeal against the decisions of 16 June 2009. As concerned S., I. and L., the court quashed the decisions of 16 June 2009, finding that there had been no reasons to restrict contact of the applicant mother with S., I. and L. between 9 June and 31 October 2009. The court considered, however, that it had been in the best interest of the children to implement the visits under supervision. As concerned R., the court noted that he had repeatedly expressed his unwillingness to meet with the applicant mother. Given that R. was already 10 years old, his opinion had to be taken into account. R. had had severe symptoms and his behaviour had changed considerably after having met with his family members. It was thus in the best interest of R. to have the underlying reasons for his symptoms examined so that adequate therapy could be provided. Therefore, the contact restrictions were necessary until 31 October 2009. Finally, as concerned the youngest child B., the court noted that his excessively sexual behaviour called for forensic psychiatric examination. It was in his best interest to have the underlying reasons for his symptoms examined, and it was therefore necessary to keep his circumstances stable during the examinations. Interaction with his mother might have disturbed his physical and mental development and jeopardised the purpose of the foster care. Therefore, the court found that the contact restrictions applicable until 31 October 2009 had been necessary.
36. On 21 October 2009 the child welfare authorities decided to restrict the contact between the second youngest child L. and his mother until 28 February 2010 on the ground that contact would endanger his health, development and safety as well as the fulfilment of the purpose of the foster care. The applicant mother appealed against this decision to the Administrative Court.
37. On 26 October 2009 the child welfare authorities also prohibited contact between L. and his grandparents until 28 February 2010.
38. On 29 October 2009 the child welfare authorities decided to continue restricting the contact between R. and his mother between 29 October 2009 and 31 March 2010 on the same grounds as earlier and because R. himself opposed meetings. On the same date the child welfare authorities also prohibited contact between R. and his grandparents until 31 March 2010.
39. On 6 November 2009 the child welfare authorities ordered that meetings between S. and I. and their mother were to take place under supervision. This decision was valid from 6 November 2009 to 31 January 2010. On the same date the child welfare authorities also prohibited contact between S. and I. and their grandparents until 31 January 2010.
40. On 4 March 2010 the Administrative Court rejected the applicant mother’s appeals against the decisions of 15 and 21 October 2009.
41. On 6 August and 23 December 2010 the restrictions concerning the contacts between the applicant mother and L. were continued for the period of 2 July 2010 to 31 May 2011. An additional ground for this was that contact with the mother could endanger L.’s health because the meetings between them might cause psychological stress to L. and thus risk worsening his psychotic symptoms. The applicant mother apparently appealed only against the decision of 6 August 2010 to the Administrative Court which rejected her appeal on 31 December 2010. It is not known whether she appealed further against this decision.
42. On 27 May 2011 the restrictions on contact between the applicant mother and R. were further continued for the period from 23 March to 7 September 2011 due to R.’s child psychiatric examinations. During that period R. met with his mother on 18 April and 29 August 2011. The applicant mother appealed against this decision to the Administrative Court where it is apparently still pending.
43. On 14 June 2011 the Supreme Administrative Court rejected the applicant mother’s appeal against the decisions of the Administrative Court on 8 and 19 May 2009, 20 October 2009 and 4 March 2010. The court found restrictions imposed between 9 February and 31 May 2009 in respect of all the children justified. As concerned the visits between 9 June and 31 October 2009, the court noted that the dispute concerned only, as far as S., I. and L. were concerned, whether those meetings needed to be held under supervision. The court noted that, on 9 June 2009, the applicant mother had agreed on a visiting schedule, according to which she had met S. and I. in the foster home and L. in the foster family at approximately six week intervals. Visits had been supervised by the staff of the foster home or a foster parent. The applicant mother had also had the possibility to telephone S., I. and L., and they had had a possibility to make supervised telephone calls to the applicant mother. In addition, S. and I. could send her letters. The court thus found that there had been legitimate reasons to keep the visits supervised. As concerned R., the court found that the restrictions on contact had been legitimate as such restrictions had been necessary due to R.’s forensic psychiatric examinations. Taking into account R.’s age, his severe symptoms and the fact that he had repeatedly expressed his unwillingness to meet his mother, the restrictions on contact had been essential for his treatment. Finally, as concerned B., the court found that the restrictions on contact between B. and his mother had been essential for his treatment.
44. The supervised meetings between the applicant mother and S. and I. have been quite regular. Since 2010 there have also been regular supervised meetings with B. Since 11 February 2009 the applicant mother has apparently met R. five times and L. eight times under supervision. The last meeting with L. was on 9 January 2010. The oldest child D. has apparently only been able to meet his five younger siblings once since the emergency care order.
45. On 17 July 2008 the social worker responsible for the children’s affairs requested the police to investigate whether the five minor children of the family had been sexually abused. Suspicion had been raised during the family work as some of the children had shown excessively sexual behaviour. Even after their placement, such behaviour had become more pronounced when the children had met with their mother or other relatives.
46. The criminal investigation concerning the alleged sexual abuse of the children was finalised in September 2010, and the case was transmitted to the public prosecutor.
47. On 21 April 2011 the public prosecutor brought charges against the grandmother and the grandfather for having assaulted the children. The prosecutor decided not to bring charges against the applicant mother for aggravated sexual abuse of the children.
48. On an unspecified date the applicant mother requested the child welfare authorities to terminate the care or, alternatively, change the placement of L. and R. As concerned L., she stated in her application that L.’s psychological well-being had been deteriorating in the current foster family. Also the cooperation between her and the foster family had been complicated. As far as R. was concerned, the applicant mother stated in her application that the foster parent had isolated R. from his biological family and manipulated him.
49. On 7 March 2011 the Director of Social Services rejected the applicant mother’s application. She found in her decisions that the applicant mother’s situation had not changed and that the legitimate reasons for care continued to exist in relation to both L. and R. Terminating the care at this stage or changing their placement would not have been in the best interest of either of the children.
50. By letter dated 31 March 2011 the applicant mother appealed against these decisions to the Administrative Court where they are apparently still pending.
51. Section 47 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 417/2007) stipulates, as regards the duration and termination of care, as follows:
“Taking into care is valid indefinitely. When the need for care and substitute care under section 40 no longer exists, the municipal officeholder determined under section 13(1) must make a decision on terminating the care when the social worker responsible for the child’s affairs has prepared the case. Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection 3.
The social worker responsible for the child’s affairs must assess the conditions for continuing care when the client plan is reviewed, when a child or custodian applies for termination of care or when it otherwise proves necessary.
When a child’s interests are being considered in a case concerning termination of care, in addition to what is said in section 4(2), the following must be taken into account: the duration of substitute care, the quality of the affection between the child and the party providing substitute care, interaction between the child and the parents and the child’s views.
Care is terminated when the child concerned reaches 18 years of age.”
52. According to section 62 of the Act, the rights of children in substitute care to keep in contact with their parents or other persons close to them may be restricted by a decision if it has not been possible to reach agreement on contact and if:
“1) the contact endangers the purpose of a child’s substitute care and the restriction is necessary for the child’s care and upbringing; or
2) the contact endangers a child’s life, health, development or safety; or
3) the restriction is necessary because of the safety of the parents or other children in the family or the family care home or other children or personnel in an institution; or
4) a child of 12 years of age or more opposes contact; the same applies to children under 12 years of age if they are sufficiently developed for their views to be taken into account.”
It is possible 1) to restrict children’s rights to meet their parents or other people close to them; 2) to restrict children’s rights to keep in contact with persons close to them by telephone or using other devices or means of contact; 3) to read and withhold private letters sent by children or addressed to them or other similar confidential messages or inspect and withhold some other delivery; and 4) for the place of substitute care to confiscate for the duration of the restriction all communication means or equipment held by the children concerned or restrict their use. Restriction of contact can only be applied to the extent necessary in each individual case to achieve the purpose laid down in law.
53. According to section 63 of the Act,
“A decision must be made concerning restrictions on contact referred to above in section 62 which must be issued for a fixed term and last for a maximum of one year at a time. The decision must include the reason for the restriction, the persons restricted, the kind of contact the restriction concerns and to what extent the restriction is enforced.
Decisions on restricting contact are made by the officeholder ... Restrictions on contact must be lifted as soon as they are no longer necessary in the manner referred to in section 62.”


ITEMID: 001-100029
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF AKHMATKHANOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants are:
1) Ms Bilat Akhmatkhanova, who was born in 1956,
2) Mr Sharpudi Akhmatkhanov, who was born in 1952,
3) Ms Toita Akhmatkhanova, who was born in 1989, and
4) Ms Taisa Akhmatova, who was born in 1986.
The applicants live in Shali, Chechnya. The first and the second applicants are the parents of Artur Akhmatkhanov (also spelled Akhmetkhanov), who was born in 1980. The third applicant is his sister and the fourth applicant is his wife.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. At the material time Artur Akhmatkhanov was a third-year student at the Grozny Oil Institute; he received positive character references from his neighbours, the head of the Shali district department of the interior (the ROVD) and the imam of the Shali district.
7. At about 9 a.m. on 2 April 2003 the first applicant went with Artur Akhmatkhanov to the Shali town centre to run errands. In the centre the first applicant realised that she had left a document at home. She returned to the family house, situated at 86 Melnichnaya Street in Shali, whereas her son remained in the town centre as he was going to talk to his cousin Mr A.A., who worked in the ROVD.
8. About ten minutes after the applicant returned home she heard shooting coming from the former medical storehouse located about 250 metres from her house. The first applicant thought the Russian military were conducting a special operation to catch one of their neighbours, Mr R.Ch., who was an active member of illegal armed groups.
9. Having fetched the document, the applicant walked back to the town centre. On her way there she approached the storehouse and saw that the area was cordoned off by Russian military servicemen, who were not letting people in or out of the cordon. About half an hour later the applicant saw the military leaving in four APCs (armoured personnel carriers). About ten masked soldiers in new camouflage uniforms with white stripes on their sleeves were on each vehicle. One of the APCs was painted in camouflage colours.
10. As soon as the military left, the applicant and other locals went to the site. There the applicant found a white bandage with traces of blood on it and blood spattered around it on the ground.
11. After that the first applicant went to the town centre where she was supposed to meet her son. She did not find him there and decided to ask their relative Mr A.A. whether Artur Akhmatkhanov had called in at his office. She went to the ROVD, where she was told that her son had stopped off, looking for Mr A.A., but the latter had not been in the office and the applicant's son had left.
12. Meanwhile, the second applicant informed the ROVD that his son's yellow cap had been found at the site of the shooting. When the first applicant returned home, she was told that her son's cap had been found on the site of the medical storehouse.
13. After that one of the applicants' neighbours, Mr A.Sh., told the applicants that at about 10.30 a.m. he had been walking through the yard of the medical storehouse when he had met Artur Akhmatkhanov and had a brief conversation with him. According to Mr A.Sh., after that he had continued walking to the town centre when, about a minute later, he had heard shooting coming from the direction in which Artur Akhmatkhanov had gone.
14. According to the applicant's neighbour, Ms L.Yu., at about 10 a.m. on 2 April 2003 she was walking home when she saw a group of masked armed men in camouflage uniforms surrounding the medical storehouse. These men were in four APCs; they were shooting and not letting anybody on to the site. From a distance she saw that the armed men were dragging a young man in black clothing with a sack over his head. They forced the man into one of the APCs and drove away.
15. According to another resident of Shali, Ms R.Kh., at about 10.30 a.m. on 2 April 2003 she was walking down the applicants' street when she saw military servicemen in four APCs. The servicemen were surrounding the former medical storehouse and were shooting. Then the witness had seen the servicemen putting a young man with a plastic bag over his head into one of the APCs; after that they had driven away in the direction of the town centre.
16. According to the applicants' neighbours, the family L., on the day of Artur Akhmatkhanov's abduction they were driving home in a tractor when they saw the military servicemen who had surrounded the former medical storehouse. The servicemen were taking one young man to an APC and dragging another one. They put both men into the APC and drove away.
17. In support of their statements the applicants submitted the following documents: a statement by the first applicant dated 21 February 2007; a statement by Mr A.Sh. dated 21 February 2007; a statement by Ms L.Yu. dated 13 December 2006; a statement by Ms R.Kh. dated 13 December 2006; a statement by Ms T.M. dated 6 September 2006, and a statement by Mr D.A. dated 6 September 2006.
18. The Government did not dispute the matter as presented by the applicants.
19. At about 3 p.m. on the same date, 2 April 2003, representatives of the ROVD and the Shali district prosecutor's office (the district prosecutor's office) visited the applicants' house. In the documents submitted the date was also referred to as 3 April 2003.
20. After that the investigators went to the former medical storehouse with the applicants and other local residents. There they collected cartridge cases left by the servicemen after the shooting and found two spots of blood, one of them containing just a few drops of blood and the other looking like a puddle of blood. The investigators from the district prosecutor's office collected the blood for forensic examination. A child from Shali also found a service identification document which he handed over to the investigators.
21. On the following day, 3 April 2003, two investigators from the district prosecutor's office, Mr Ka. and Mr Bu., returned to the medical storehouse and examined it again together with the applicants and other local residents. According to the first and second applicants investigator Ka. told them that the cartridge cases collected by the investigators from the scene of the shooting would assist the authorities in identifying the weapon and the officer to whom it belonged.
22. On 4 April 2003 the district prosecutor's office initiated an investigation into the disappearance of Artur Akhmatkhanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 22054 (in the submitted documents it was referred to as 22055).
23. On 6 April 2003 the second applicant was granted victim status in the criminal case.
24. On 15 May 2003 the Chechnya Ministry of the Interior (the Chechnya MVD) forwarded the applicants' complaint about the abduction of Artur Akhmatkhanov to the ROVD for examination. In response, on 29 January 2004 the ROVD informed the applicants that they were “taking measures to establish his whereabouts”.
25. On 22 December 2003 and 3 February 2004 the Chechnya prosecutor's office forwarded the applicants' requests for assistance in the search for Artur Akhmatkhanov to the district prosecutor's office for examination. In response, on 16 January and 2 April 2004 the investigators informed the applicants that the operational-search measures aimed at establishing Artur Akhmatkhanov's whereabouts were under way.
26. On 14 January 2004 the military prosecutor's office of the United Group Alignment (the UGA) forwarded the applicants' complaint about the abduction to the military prosecutor's office of military unit no. 20116. In response, on 20 February 2004 the latter informed the applicants that military unit no. 20116 had not participated in a special operation on 2 April 2003 and had not detained Artur Akhmatkhanov. On 11 March 2004 the military prosecutor's office of the UGA confirmed this information.
27. On 3 June 2004 the Chechnya prosecutor's office informed the applicants that the operational-search measures aimed at establishing Artur Akhmatkhanov's whereabouts and identifying the culprits were under way.
28. On 4 June 2004 the Main Department of the Ministry of Justice in the Rostov Region informed the applicants that Artur Akhmatkhanov was not being held in their detention centres.
29. On 26 July 2004 the Chechnya prosecutor's office forwarded the applicants' request for assistance in the search for Artur Akhmatkhanov to the district prosecutor's office for examination. In response, on 10 August 2004 the district prosecutor's office informed the applicants that on 10 July 2004 they had suspended the investigation in the criminal case.
30. On 15 August 2004 the Shali district military commander's office (the district military commander's office) informed the applicants that they, with the ROVD and the district prosecutor's office, were searching for Artur Akhmatkhanov.
31. On 17 May 2005 the Chechnya prosecutor's office again forwarded the applicants' request for assistance in the search for Artur Akhmatkhanov to the district prosecutor's office for examination. In response, on 3 July 2005 the district prosecutor's office informed the applicants that on 3 July 2004 they had suspended the investigation in the criminal case.
32. On 19 October 2005 the district prosecutor's office informed the applicants that their complaint had been examined and included in the investigation file.
33. On 20 March 2006 the Chechnya prosecutor's office again forwarded the applicants' request for assistance to the district prosecutor's office for examination.
34. On 5 May 2006 the Russian Federal Service of the Execution of Punishment informed the applicants that Artur Akhmatkhanov was not being held in their detention centres.
35. In December 2006 the first applicant visited the district prosecutor's office to request information about the progress of the investigation. The investigator, who was in charge of the case at the time, Mr R.Ya., told her that the investigation file did not contain any information about the collection of the blood samples and the cartridge cases from the crime scene.
36. On 10 January 2007 the second applicant wrote to the district prosecutor. He described in detail the circumstances of his son's abduction and stated that during the crime scene examination the investigators had collected cartridge cases and blood samples; that the investigator, Mr Ka., had told him that this collected evidence had been forwarded to the expert evaluation centre in Rostov-on-Don and that the results were supposed to be received in forty-five days; that the investigator had explained to him that the cartridge cases would allow the experts to identify the weapons used during the shooting, as the latter were supposed to be individually registered. The applicant requested the district prosecutor to provide him with a copy of the crime scene examination report of 3 April 2003 and a copy of the decisions ordering the expert evaluation of the evidence collected at the crime scene.
37. On 16 January 2007 the Chechnya prosecutor's office informed the applicants that on the same date they had resumed the investigation in the criminal case.
38. On 25 January 2007 the ROVD informed the applicants that on 13 April 2002 (it appears that the date is incorrect) they had opened search file no. 71442 to establish the whereabouts of Artur Akhmatkhanov and that a search for the applicants' relative was under way.
39. On 26 February 2007 the second applicant again wrote to the district prosecutor. He stated that in spite of the numerous pieces of evidence, such as the cartridge cases left by the perpetrators, the APCs and the fact that on 2 April 2003 the Shali law enforcement agencies had conducted a special operation to find a leader of illegal armed groups, Mr R.Ch., the investigators had failed to identify the servicemen who had conducted this operation and abducted Artur Akhmatkhanov. He further stated that his son's whereabouts had not been established for several years and that the investigation file in the criminal case did not contain the evidence collected from the crime scene on 3 April 2003. The applicant requested the prosecutor to provide him with access to the investigation file, to allow him to make a copy of its contents and to resume the investigation in the criminal case. No reply was received from the authorities.
40. On 2 April 2003 the second applicant complained to the district prosecutor's office that his son had been abducted “by military servicemen in four APCs”. He wrote that the servicemen had been masked, armed and that they had had white strips on the sleeves of their uniforms. He further stated that his son's cap, with bloodstains next to it, had been found at the scene after the abductors had driven away.
41. On 4 April 2003 the district prosecutor's office initiated an investigation into the disappearance of Artur Akhmatkhanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping).
42. On 6 April 2003 the second applicant was granted victim status in the criminal case and questioned. He stated that his son had been abducted by servicemen who had been masked, armed with automatic weapons, had white strips on the sleeves of their uniforms and had been driving around in APCs.
43. On 4 June 2003 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. The applicants were not informed about this decision.
44. On 3 May 2004 the investigation in the criminal case was resumed and the decision concerning the suspension of the criminal proceedings was overruled by the supervising prosecutor as unlawful for the following reasons:
“...The examination of the investigation file demonstrated that the investigation in the criminal case had not been actually conducted at all as the investigator had taken only two investigating steps: he granted the father of the disappeared man victim status in the criminal case and questioned him.
No witnesses had been identified and questioned, the crime scene had not been examined, no replies had been received to the requests forwarded to various law-enforcement bodies and a number of other investigating steps had not been taken...”
45. On the same date the supervising prosecutor issued orders for the investigators of the criminal case who were to take, inter alia, the following steps:
“1. Make a plan of investigating steps to be taken...
2. Examine the crime scene...
3. From the witness statement of A. Akhmatkhanov [the second applicant] it follows that he learnt from his acquaintance named Ali that his son [Artur Akhmatkhanov] had been detained by military servicemen who had arrived in four APCs. In connection with this, it is necessary to identify the man named Ali and question him about the circumstances of the abduction.
4. Identify other witnesses of the crime, including the woman (the father of the abducted man knows her) who had also seen the military servicemen detaining and taking away Artur Akhmatkhanov and another man...it is necessary to question her about the events.
5. Take measures to identify where the APCs were from...
6. If the involvement of military servicemen in the abduction is established, it is necessary to forward the criminal case to the military prosecutor's office for further investigation...”
46. On 10 July 2004 (in the submitted documents the date was also referred to as 10 July 2005) the investigation in the criminal case was suspended for failure to identify the perpetrators.
47. On 20 July 2004 the investigators conducted the crime scene examination. Nothing was collected from the scene.
48. On 25 July 2004 the investigators questioned Mr A.M., who stated that in the morning of 2 April 2003 he had seen a group of armed men in camouflage uniforms and masks in four APCs. The men had dragged Artur Akhmatkhanov into one of the vehicles and had then driven away.
49. On 28 July 2004 the investigators questioned Ms Z.P., who stated that in the morning of 2 April 2003 several military APCs had arrived in her street with men who were armed, masked and in camouflage uniforms. They had put Artur Akhmatkhanov and another man into one of the APCs and taken them away.
50. On 26 May 2005 the supervising prosecutor overruled the decision to suspend the investigation of 10 July 2004 as premature and unsubstantiated. The investigation was resumed owing to the need to take additional investigative measures. The prosecutor criticised the investigation and ordered the following measures to be taken:
“...the examination of the investigation file demonstrates that the investigation is being conducted passively and that investigating and operational-search measures are of a formal nature. There is no control over the execution of the investigators' requests and orders. The decision to suspend the investigation was taken prematurely, without the necessary steps having been taken...
It is necessary that the investigation take the following steps:
-... request information concerning the vehicles which left the premises of the Shali military commander's office on 2 April 2003;
- identify witnesses to the abduction from among the residents living near the place of the events;
...
- establish the identity of the second man who had been abducted with Artur Akhmatkhanov...”
51. On 18 June 2005 the Shali department of the Federal Security Service (the FSB) informed the investigators that they did not have any information concerning Artur Akhmatkhanov's involvement in illegal armed groups and that they had not conducted any special operations in the town on 2 April 2003.
52. On 28 June 2005 the investigators again questioned the second applicant, who stated that his acquaintance Mr Ali had told him that he had clearly seen military servicemen placing Artur Akhmatkhanov in an APC and that Mr Ali had already provided this information to the investigators. Then the applicant provided the investigators with detailed information about Ms R.L., who had witnessed the abduction of his son by military servicemen in APCs.
53. On 28 June 2005 the investigators also questioned the first applicant, who stated that her son had been abducted on 2 April 2003 by armed men in camouflage uniforms; that she had learnt from the witnesses that he had been taken away in an APC. The applicant described the events of the day of the abduction; her description was the same as the one provided to the Court (see paragraphs 7-15 above).
54. On the same date the investigators also questioned Mr Kh.I. who stated that late in the morning of 2 April 2003 he had been at home when his wife had told him that military servicemen had been conducting a special operation in their street. He had gone out on the street where in about 300 metres on the premises of the former medical storehouse he had seen a military APC with groups of armed servicemen in camouflage uniforms. A number of local residents had gone outside of their houses and witnessed the events. After that he had gone back in the house. Later, after the military had left, he had learnt that the servicemen had taken away Artur Akhmatkhanov and that his cap had been found afterwards in the storehouse area.
55. On the same date the investigators also questioned Mr S.A., who stated that at about 11.30 a.m. on 2 April 2003 he had been outside his house when he had seen a group of about thirty masked men in military camouflage uniforms surrounding the site of the former medical storehouse. The men had been armed with automatic weapons; they had had white stripes on the left sleeves of their uniforms. The men had arrived in two or three APCs and one other armoured military vehicle of a khaki colour. None of the vehicles had had registration or hull numbers. Then the men had opened fire on the storehouse. The witness had heard the men speaking among themselves in unaccented Russian. From their conversations he had understood that they were servicemen working in the police and that they were taking part in a special operation. The operation lasted for about two hours; local residents had not been allowed to access the cordoned-off area. The servicemen had detained Artur Akhmatkhanov on the site of the storehouse and taken him away.
56. On 29 June 2005 the investigators questioned the applicant's neighbour Mr R.A., who stated that on the morning of 2 April 2003 he had been at work in the ROVD when Artur Akhmatkhanov had dropped by, looking for his relative Mr A.A. The latter had not been in the office and Artur had left. In the evening the witness had learnt that military servicemen had abducted Artur Akhmatkhanov.
57. On the same date the investigators questioned Ms R.G., who stated that at about 10 a.m. on 2 April 2003 she had seen a group of armed men in camouflage uniforms; the men had been of Slavic appearance and had been in APCs. They cordoned off her street along the perimeter of the former medical storehouse. Then she had seen the men beating and forcing her neighbour Artur Akhmatkhanov into one of the APCs. It appeared that Artur had been wounded in the leg.
58. On 3 July 2005 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
59. On 12 April 2006 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigative steps and ordered that the investigation be resumed.
60. On 14 May 2006 the investigators again suspended the investigation in the criminal case for failure to identify the perpetrators.
61. On 16 January 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigating steps, such as:
“... The investigation file contains information concerning the use of automatic weapons by the abductors. However, the investigation did not take measures to establish whether any of the cartridge cases had been found [at the scene] by the relatives and the neighbours of the disappeared man;
The investigators failed to request and include in the file information concerning the possible conduct of a special operation in Shali on 2 April 2003 by military units stationed in Chechnya.
The investigators did not take steps to establish the identity of the man who had been abducted with Artur Akhmatkhanov...”
62. On 10 January 2007 the second applicant complained to the Shali prosecutor and requested to be granted access to the investigation file (see paragraph 36 above).
63. On 19 January 2007 the investigators rejected his request, stating that the applicant was entitled to have access to the file only on completion of the investigation.
64. On 12 February 2007 the investigators granted the first applicant victim status in the criminal case and questioned her. She stated that on 2 April 2003 her son Artur Akhmatkhanov had been abducted from the former medical storehouse by armed men in APCs; that she and her relatives had complained about it to the prosecutor's office and that the investigators had arrived at the scene on the same date. She further stated that in her presence and that of a number of her neighbours the investigators had collected from the scene a number of cartridge cases and that at some point later the investigator Ka. had told her that the collected evidence would enable the authorities to identify the firearms used by the abductors and would assist in establishing their identities. The applicant stated that her son had most probably been abducted as a result of a special operation conducted against Mr R.Ch., a leader of illegal armed groups, who lived near the storehouse.
65. On 27 February 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
66. On 13 March 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to verify whether the evidence had been collected from the crime scene and that they had not complied with the orders of the supervisory prosecutor of 16 January 2007 (see paragraph 61 above).
67. On 19 March 2007 the investigators collected from the first applicant Artur Akhmatkhanov's cap, found at the crime scene by his relatives, for inclusion in the investigation file as evidence.
68. On 20 March 2007 the investigators questioned Mr M.A., who stated that on the morning of 2 April 2003 military servicemen had conducted a special operation in a nearby street; that they had cordoned off the area and that local residents had not been allowed to move within its perimeter. Later on the same date he had learnt that his neighbour Artur Akhmatkhanov had been taken away by armed men in military uniforms in APCs. He further stated that a group of investigators had arrived at the scene and that they had collected cartridge cases and pieces of bloody bandage for the expert evaluation.
69. On 26 February 2007 the second applicant again complained to the Shali prosecutor and requested to be allowed access to the investigation file (see paragraph 39 above).
70. On 21 March 2007 the investigators refused the request, stating that the applicant was entitled to have access to the file only on completion of the investigation. The applicant was not informed about the refusal.
71. On 19 April 2007 the supervisory prosecutor overruled the decision of 21 March 2007 and partially allowed the applicant's complaint, stating that the applicant was entitled to familiarise himself with the transcripts of the investigative actions taken with his participation.
72. On 26 March 2007 the investigators questioned the applicant's neighbour Mr A.Ch., who stated that on 2 April 2003 he had learnt that armed men in military uniforms who had arrived in APCs had abducted his neighbour Artur Akhmatkhanov. He further stated that on the same date the investigators had arrived at the scene, found a pool of blood there and collected a number of cartridge cases left by the abductors.
73. On 30 March and 3 April 2007 the investigators questioned the applicant's neighbours Ms L.A. and Mr S.Yu., whose statements about the events were similar to the one given by Mr A.Ch.
74. On 5 April 2007 the investigators questioned the applicant's relative Mr S.Sh., whose statement concerning the events was similar to the one given by Mr A.Ch. In addition, the witness stated that he had seen the cartridge cases which had been collected from the scene by the investigators. According to the witness, the cartridge cases were black, of 5.54 mm. calibre and numbered. He thought that they probably belonged to a special type of weapon. The investigators had also collected a white sleeve stripe from the scene. The crime scene examination had been conducted in the presence of a number of local residents and that the investigators had been taken there by Mr A.-S.P., who worked in the ROVD.
75. On 14 April 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
76. On 17 April 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to comply with the orders of the supervisory prosecutor of 16 January 2007 (see paragraph 61 above), as well as to question former investigator Ka. about the circumstances of the collection of the evidence from the crime scene on 2 April 2003.
77. On 18 April 2007 the investigators questioned Mr S.M., an expert from the Chechnya Expert Evaluation Centre. He stated that on 2 April 2003 he had arrived at the crime scene in Shali with the investigators from the district prosecutor's office and the ROVD and that cartridge cases had been left by the abductors, as well as a cap with traces of blood next to it. The witness did not remember whether the investigators had collected the evidence from the scene, but he had personally taken photographs. He did not know whether the expert evaluation of the collected evidence had been carried out at all, but stated that no such evaluation had been carried out by the Shali expert evaluation centre, where he worked at the time.
78. On 18 and 19 April 2007 the investigators questioned the applicants' relatives, Ms Z.A. and Ms T.M., whose statements concerning the events were similar to the ones given by Mr A.Ch. and Mr S.Sh. (see paragraphs 72 and 74 above).
79. On 17 April 2007 the investigators collected from the first applicant a photograph of Artur Akhmatkhanov for inclusion in the investigation file.
80. On 13 June 2007 the MVD of the Russian Federation informed the investigators that no special operations had been conducted by their branches in Shali on 2 April 2003.
81. On 11 May 2007 the investigators questioned the applicants' relative Ms B.Sh. whose statement concerning the events was similar to the one given by Mr S.Sh.
82. On 9 and 15 May 2007 the investigators questioned police officers Mr A.M., Mr S.Sh. and Mr V.S., who stated that in April 2003 they had worked in the Shali ROVD, but they did not remember whether they had participated in the crime scene examination on 2 April 2003.
83. On 7 August 2007 the investigators questioned the former investigator of the district prosecutor's office Mr Ka., who stated that due to the passage of time he did not remember the details of the crime scene examination of the place where Artur Akhmatkhanov was abducted, and that he did not remember the conversation with the applicants concerning the collected evidence.
84. On 17 May 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
85. On 2 November 2007 the supervisory prosecutor issued a decision “On remedial actions to be taken in connection with violations of the federal criminal procedure regulations during the investigation of the criminal case”. He criticised the investigation of the abduction and ordered the investigators to take the following measures:
“... the investigation of the criminal case has been conducted superficially, without taking all necessary steps... in violation of Article 208 § 5 of the Code of Criminal Procedure.
... it has not been established for what reasons the investigator Ka., who had visited the crime scene on 3 April 2003, had subsequently conducted a crime scene examination only on 22 July 2004...
... the investigators still have not questioned the officers of the ROVD who had gone to the crime scene [on 2 April 2003] , that is Mr R.Kh., Mr T. and Mr R.M.
....from the witnesses' statements it is clear that there had been gunfire during the special operation of the military servicemen and the abduction of Artur Akhmatkhanov... a large number of local residents had witnessed the military servicemen cordoning off the area around the former medical storehouse. However, the investigators did not take any steps to identify additional witnesses and obtain information about special operations conducted by the military units...
....no instructions were issued for Mr D.Sh., the member of the investigators' team from the military prosecutor's office of military unit no. 20116, in order to check the theory of the involvement of military servicemen [in the abduction]...”
86. On 22 November 2007 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigative actions and ordered the steps be taken (see the above paragraph) and that the investigators found and included in the investigation file the cartridge cases collected from the crime scene.
87. On 23 December 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
88. On 6 February 2008 the supervisory prosecutor overruled the decision to suspend the investigation as premature and unsubstantiated. He pointed out that the investigators had failed to take a number of investigative actions and ordered that those actions be taken (see paragraph 85 above).
89. On 18 February and 1 June 2008 the investigators questioned Mr R.Kh. and Mr N.T., officers of the ROVD, who stated that due to the passage of time they did not remember the details of the crime scene examination of the place where Artur Akhmatkhanov was abducted.
90. On 29 February 2008 the investigators again questioned the second applicant, who provided them with the names of Artur Akhmatkhanov's closest friends.
91. On 1 March 2008 the investigators questioned the applicants' neighbours Mr A.T. and Mr A.Ch. Both of them stated that they had learnt from their neighbours about Artur Akhmatkhanov's abduction by military servicemen.
92. On 7 March 2008 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
93. On 21 March 2008 the supervisory prosecutor again issued a decision “On remedial actions to be taken in connection with violations of the federal criminal procedure regulations during the investigation of the criminal case”. He criticised the investigation of the abduction and ordered the investigators to take a number of investigative actions.
94. On 13 April 2008 the investigators resumed the investigation in the criminal case.
95. On 24 April 2008 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators.
96. The investigating authorities sent numerous requests for information to the relevant State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of Russian servicemen in the crime. The law-enforcement authorities had never arrested or detained Artur Akhmatkhanov on criminal or administrative charges; no criminal proceedings had been initiated against him. No special operations had been carried out in respect of the applicants' relative.
97. The Government further stated that even though the investigation had failed to establish the whereabouts of Artur Akhmatkhanov, it was still in progress.
98. Despite specific requests by the Court the Government did not disclose the full contents of criminal case no. 22054, providing only “the main documents” from the investigation file, running to up to 222 pages. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained personal data concerning witnesses or other participants in the criminal proceedings.
99. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-121774
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ANGHEL v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Peer Lorenzen
TEXT: 6. The applicant was born in 1961 and currently lives in Qatar. He was married to M. and they had a son, A., born in March 2003 in Bucharest, Romania.
7. Following A.’s birth, M. occasionally worked in Italy for short periods of time, in order to ensure an income for the family. In 2005, after M. had obtained a regular job, the applicant agreed for A. to travel to Italy with his mother. A formal notarial deed of 26 April 2005, submitted to the Court, states that Mr Anghel Aurelian, residing in Bucharest, gave his consent that his under-age son, Anghel A., born in March 2003, residing at the above-mentioned address, travel to the Republic of Moldova and Italy, in the course of the year 2005, accompanied by his mother, Anghel M. The applicant submitted that such agreement had only been given for a limited period of time in order to allow ongoing contact with M. The case file shows that M. challenged this statement, alleging that she had taken the child with her because of the adverse effect that living with his father was having on A.’s development.
8. In January 2006 the applicant travelled to Italy in order to bring A. back to Romania. He claimed that he had found the child living in very poor conditions. M. had resisted the applicant’s requests to take the child back to Romania or alternatively for all of them to move to Qatar, where he had found a job.
9. Once the applicant had returned to Romania, he filed a criminal complaint under Article 301 of the Romanian Criminal Code, alleging that his wife was detaining A. in Italy without his consent.
10. On an unspecified date, the applicant moved to Qatar. On 6 December 2006 he travelled to Italy to visit his son. He alleged that A.’s health and social conditions had worsened. On 13 December 2006 father and son travelled together to Romania. On 8 January 2007 M. joined them. On 15 January 2007 they all travelled to Moldova to pay a visit to M.’s family. On 20 January 2007, M. and A. “disappeared”. The applicant eventually found out that they had returned to Italy.
11. On 9 February 2007, the Romanian Prosecutor General’s Office decided not to institute criminal proceedings against M., as there was insufficient evidence to establish a punishable offence. The applicant contested the afore-mentioned decision on 28 December 2007. It appears that a district court dismissed the challenge as unfounded on 31 March 2008. The applicant filed an appeal with a higher court. No further information has been provided in relation to these proceedings.
12. On 2 April 2007 the applicant applied to the Minister of Justice, designated by Romania as the Central Authority responsible for discharging the duties imposed on Romania by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He asked the Minister to assist him in securing the return of his son, whom the child’s mother had, he alleged, wrongfully removed to Italy on 20 January 2007.
13. Following the steps undertaken by the Romanian and Italian authorities in accordance with the provisions of the Hague Convention, the Bologna Prosecutor’s Office initiated return proceedings before the Bologna Youth Court (Tribunale per i minorenni).
14. On 18 June 2007 a hearing took place in the applicant’s presence.
The following appears from the hand-written procès-verbal submitted by the Government.
Following statements by the applicant and M., the president of the court noted the existence of divorce proceedings brought by M. in Romania, together with an application for custody of the child (objected to by the applicant), which were still pending. He further noted that while the couple had cohabited from 2004 until the end of 2006, the applicant had often been absent during 2006 as he had been working in Qatar.
M. submitted that until the end of 2006 the parents had been in agreement on the whereabouts of the child, particularly in view of her employment in Italy and the fact that the child had obtained a residence permit there, started attending school and was being seen by the social and community health services. M. argued that according to changes in Romanian law she had not needed to extend the [validity of the] notarial deed (mentioned above) to subsequent years. She claimed that the child had previously had health problems and that his father had always known where they were. M. asked the court to admit in evidence a psychologist’s report on the child’s conditions and submitted written pleadings accompanied by evidence substantiating her claim.
The applicant submitted that the notarial deed between him and M. had only given consent to A. travelling to Italy for tourist purposes for the period May-December 2005 and thus he had not consented to the child’s removal after that. In the absence of a custody decision the child could have lived with him in Qatar, instead of in Italy with his mother without his consent. However, M. had failed to consent to this, despite the fact that he could give the child a better standard of living. He explained that he had tried to reach a friendly settlement, but when this had appeared impossible he had pressed charges against M. and those proceedings were still pending. Only at the end of 2006 had M. agreed to take the child back to Romania following a medical visit, which the applicant had insisted upon and which had found that the child was in poor health.
The Public Prosecutor asked the court to accept the return application, noting that the child had possibly been in Italy for more than a year and making reference to Article 17 (sic) of the Hague Convention. He further asked the court to order a report on the child’s psychological condition.
15. On 5 July 2007 the applicant wrote to the Romanian Minister of Justice, informing him of the conduct of the hearing. The applicant explained that he had not been given the opportunity to challenge the statements made by his wife’s attorney, in particular regarding: (i) the time it had taken the applicant to institute proceedings after the date of the wrongful removal or retention of the child, which according to the applicant had been 20 January 2007 and not – as the court had assumed – January 2006; the result of the court using the latter date was that Article 12 of the Hague Convention came into play, to the effect that after a period of one year a child may not be returned if he has integrated into society; (ii) the contention that the child’s health and psychological problems were imputable to the time he had spent with his father before moving to Italy, which finding had been based on medical documents to which the applicant had had no access; (iii) the allegation that M. had had his consent up to 1 January 2007, the date on which such consent was no longer necessary (Romania having joined the European Union), thus ignoring the notarial deed, which had stated a specific period of consent; and (iv) the fact that M. had changed their son’s residence without his father’s consent, as required by law. The applicant further explained that the Bologna Youth Court was considering custody issues in violation of its competence under the Hague Convention, custody issues being within the exclusive competence of the courts of the country of domicile, Romania. It would, moreover, not decide the case until the Romanian courts had made a decision in the divorce and custody proceedings. He further contested the evaluation of the potential harm for the child in the event of his return to Romania which had been made by the social services, stating that it had only made reference to the biased account of the child’s mother, without any direct evaluation of the relationship between father and son and of the social environment if A. were to live in Romania. The applicant asked the Minister to forward his letter to the competent authority in Italy and to the Bologna Youth Court.
16. By a decision of 6 July 2007, filed with the court registry on 9 July 2007, the Bologna Youth Court refused the application for return. It noted that divorce and custody proceedings were still pending in Romania; that M. had claimed that she and the child had lived in Italy since 2006; and that since June 2006 A. had been known to the Infant Neuropsychiatric Services (“NPI”) of the Parma Local Health Agency (“AUSL”). Moreover, it noted that M. had claimed to have had the required permission from her husband to keep the child in Italy in accordance with a notarial deed of 2005 and that the applicant had contested this on the basis that he had only given permission for A. to travel to Italy for tourist purposes, and that, albeit he had moved to Qatar in 2006, he wanted the child to be with him. In that light, the court considered that there were no grounds for returning A. and that, in view of the relevant international law, it could not be held that the mother had arbitrarily taken A. away from his father as legitimate custodian of the child. The Bologna Youth Court noted that the Romanian authorities had not yet taken a decision on custody, thus the parents had joint custody, and therefore the applicant did not have exclusive custody rights. Moreover, the applicant had consented to A.’s transfer to Italy and had eventually moved to Qatar. Furthermore, the Bologna Youth Court observed that the child had been in Italy for more than a year and was integrated into Italian society, albeit with some problems. In this light, the court considered that psychological harm would ensue as a result of his return. Thus it was not obliged, according to Article 13 of the Hague Convention, to order his return. Indeed, from the social services report ordered by the court, it appeared that A. had arrived at the NPI’s premises, accompanied by his mother, on the advice of his general practitioner and that since then A. had been subject to psychotherapy which included joint interviews with his mother. The doctor entrusted with the report had noted that the need for A.’s psychotherapeutic treatment was due to early and prolonged periods of separation from his parents, frequent changes of residence, and continuous parental conflict. It was therefore necessary to give A. reference points and daily routines. Overall, his psychological condition had been improving, save for a worrying regression following his return from Romania and Moldova in January 2007, from which he had recovered.
The decision was notified to the Public Prosecutor on 13 August 2007.
17. On 25 July 2007 the Italian authorities informed the Romanian authorities about the Bologna Youth Court’s decision of 6 July 2007, filed with the court registry on 9 July 2007.
18. On 30 July 2007 the Romanian Ministry of Justice informed the applicant of the decision and told him that it had also requested information from the Italian Ministry of Justice about the available remedies with which to challenge the decision.
19. By letter of 6 August 2007, the Italian Ministry of Justice informed the Romanian Ministry of Justice that the decision could be appealed against through an appeal on points of law to the Court of Cassation, to be lodged within sixty days of the date of the decision – if such rejection was pronounced during a hearing at which the requesting party was present (according to Law no. 64 of 1994) – through an advocate qualified to plead before that court. Alternatively, he could bring an action in accordance with Article 11 of EC Regulation 2201/2003 (“Brussels II bis”).
20. The following day, the Romanian Ministry of Justice informed the applicant of the above and that it had requested further information on the final date to lodge the appeal on points of law and on the applicant’s ability to obtain legal aid.
21. The applicant repeatedly contacted the Romanian Ministry of Justice to obtain the response to those queries, together with the documents which would have allowed him to appeal.
22. On 13 September 2007 the Romanian Ministry of Justice forwarded to its Italian counterpart the applicant’s application for legal aid in order to file an appeal on points of law. The application for legal aid was filed on 25 October 2007.
23. On 29 October 2007 the Council of the Bologna Bar Association granted the applicant legal aid to file an appeal, indicating the Bologna Court of Appeal as the competent court and not the Court of Cassation. It further noted that it was not sure that an appeal was still possible – it being unknown whether the decision had been served, the relevant time-limit could not be calculated. On 30 October 2007 the decision was sent to the Italian Ministry of Justice.
24. By letter of 8 November 2007, the applicant was informed by the Italian authorities that his application had been received on 16 October 2007 and forwarded to the Council of the Bologna Bar Association. No mention was made of the decision of 29 October 2007.
25. According to the documents produced, on 22 November 2007 the decision granting the applicant legal aid was forwarded to the Romanian Ministry of Justice, together with an invitation to inform the applicant, as well as to adduce proof that he had received the decision. It is unknown whether this notification ever reached the Romanian Ministry of Justice, and the information was not transferred to the applicant.
26. On 13 December 2007 upon the applicant’s complaint that he had not been informed of any decision on his application, the Romanian Ministry of Justice urged the Italian authorities to provide an answer.
27. In the absence of a reply, on 3 January 2008 the applicant sent an e-mail to the Romanian Consulate in Rome asking for support in obtaining information on the matter. By letter of 17 January 2008, the General Division of Consular Affairs of the Romanian Ministry of Foreign Affairs informed the applicant that a favourable decision on his application had been taken on 29 October 2007 and that it had been communicated to the Romanian Ministry of Justice on 22 November 2007.
28. On 27 January the applicant wrote to the Romanian Consulate again confirming that to date he had not received a copy of the decision and asking it to ascertain who had sent it on behalf of Italy and who had received it at the Romanian Ministry. On 28 January 2008 the Division of Consular Relations forwarded a copy of the correspondence pertaining to his file to the applicant.
29. On 15 February 2008 the Italian Ministry of Justice asked the Council of the Bologna Bar Association to provide, urgently, a list of the advocates qualified to plead the applicant’s appeal within the legal aid scheme. On 19 March 2008 such a list was sent by the Italian authorities to the Romanian Ministry of Justice, which forwarded it to the applicant on 24 April 2008. On 6 May 2008 the applicant wrote to the Italian Ministry of Justice and to the Council of the Bologna Bar Association indicating his choice.
30. On 16 June 2008 the appointed legal aid lawyer (MCA) made a request to the registry of the Bologna Youth Court to view the relevant files. By letter dated 23 June 2008, addressed to the applicant and the Italian and Romanian authorities (apparently faxed on 2 or 8 July 2008 to the Italian authorities, receipt date for all recipients unknown), MCA indicated that she was not in a position to represent the applicant as she was not qualified to plead before the Court of Cassation and, contrary to the indication given by the Council of the Bologna Bar Association, the only available remedy was an appeal to the Court of Cassation under Article 7 of Law no. 64 of 15 January 1994, such appeal to be lodged within sixty days of notification. She also mentioned that, as it did not appear that the applicant had been notified of the impugned decision, the time-limit to appeal in his case would expire one year and forty-five days after the date of the lodging of the decision with the court registry and, therefore, she advised the applicant to appoint an advocate qualified to plead before the Court of Cassation as soon as possible in order to be able to file the appeal.
31. On 15 July 2008, the applicant wrote to the Council of the Bologna Bar Association asking for a list of advocates qualified to plead in cassation proceedings. On 23 July 2008, the applicant received such a list by e-mail and replied indicating the name of his chosen lawyer.
32. On 12 August 2008, the applicant wrote again to the Council of the Bologna Bar Association requesting further contact details (telephone numbers and e-mail address) for his chosen lawyer. He alleged that the information contained in the list was inaccurate and that he had not been able to establish any contact with the lawyer. No reply was received.
33. The applicant eventually obtained the relevant information from personal contacts and on 23 September 2008, he wrote an e-mail to the lawyer, explaining the situation, and asking whether she had been informed of her appointment. The same day, the lawyer replied stating that she had not been informed and requesting the case documents and a copy of the decision granting legal aid, in order for her to decide whether to take up the appointment. The day after, the applicant reached the lawyer by phone and replied to her by e-mail, giving the information and documents requested.
34. On 25 September 2008 the lawyer informed the applicant that the time-limit of one year and forty-five days to appeal against the decision of 6 July 2007 had expired and that, consequently, she was not in a position to assist him.
35. According to Article 7 of Law no. 64 of 1994, an appeal against a decree of a Youth Court regarding the repatriation of a minor is to be lodged with the Court of Cassation.
36. According to Article 325 of the Code of Civil Procedure (“CCP”), as applicable at the time of the facts of the present case, an appeal to the Court of Cassation was to be lodged within sixty days of notification. In so far as relevant, according to Article 326 of the CCP the time-limit mentioned in Article 325 starts to run from the day on which the decision is served/notified. According to Article 327 of the CCP, as applicable at the time of the present case, in the event that the decision was not served/notified, the appeal is required to be introduced not later than a year from the filing of the decision in the relevant court registry.
37. Article 1 of Law no. 742 of 7 October 1969 regarding the suspension of time-limits during holiday periods reads as follows:
“Time-limits for ordinary and administrative proceedings are legally suspended from 1 August to 15 September of every year and start to run again at the end of the suspension period. Where the time-limit is to start to run during a holiday period, the relevant time-limit shall start to run from the end of that holiday period.”
38. According to Italian jurisprudence (see for example Court of Cassation judgment no. 25702 of 9 December 2009), when, after a first suspension, the original term has not entirely come to an end before the start of a new holiday period, a double computation of the suspension is applied.
Article 3 of Law no. 742 of 7 October 1969 reads as follows:
“In civil matters, Article 1 does not apply to causes and proceedings mentioned in Article 92 of Law no. 12 (1941) on the judicial system and controversies arising under Article 409 (labour cases) and 442 (welfare benefits) of the Code of Civil Procedure.”
Article 92 of Law no. 12 (1941) reads as follows:
“During the holiday period courts of appeal and ordinary courts deal with cases regarding alimony/maintenance, labour law, interim measures, adoptions, temporary interdiction, interdiction, incapacitation, restraining orders for protection against a family member, eviction and oppositions to enforcement, bankruptcy, and other cases in respect of which a delay could cause prejudice to the parties in the proceedings. In the latter case, a declaration of urgency is made by the president at the bottom of the application, by final decree, and for causes already being heard by order of a judge.”
According to Court of Cassation judgments no. 28 of 5 January 1996 and no. 2946 of 20 March 1998, the suspension of time-limits for holiday periods applies to both adoption and paternity proceedings before a Youth Court.
39. Legal aid is provided for by Law no. 115 of 30 May 2002. The relevant Articles read as follows:
“(2) Free legal assistance is also available in respect of civil, administrative, fiscal and tax proceedings, as well as matters related to voluntary jurisdiction, for the defence of a poor citizen when the claims at issue are not manifestly ill-founded.”
“An application [for legal aid] must be submitted to the Council of the Bar Association by the applicant or his lawyer, by means of a registered letter.
The competent Council of the Bar Association is that of the place within which the magistrate of the pending case has his or her seat. If the proceedings are not pending, it is that of the place holding the seat of the magistrate competent to hear the case on the merits. In the event that it relates to the Court of Cassation, the Supreme Administrative Court, or (...) the Court of Auditors, the competent Council of the Bar Association is that of the seat of the magistrate who has delivered the impugned decision.”
40. The relevant articles of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, ratified by Romania and Italy, read as follows:
“The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]”
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures – [...]
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [...]”
“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. [...].”
“If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
“The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”
“This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.”
41. The provisions of the Hague Convention are enforceable in the Italian courts by virtue of Law no. 64 of 15 January 1994.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1