ITEMID: 001-23457
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: EGGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicants, Mr Walter Egger and Mrs Adelheid Egger, are Austrian nationals living in Salzburg (Austria). They are represented before the Court by Mr F. Unterasinger, a lawyer practising in Graz (Austria).
On 4 March 1985 the applicants filed an application for a building permit for a weekend cottage.
On 2 May 1988 the Mayor of Predlitz-Turrach dismissed the applicants’ application for a building permit. The applicants appealed against this decision.
On 3 June 1989 the Mayor granted the building permit. On 30 August 1989 the Steiermark Regional Government declared the decision null and void as the building permit was contrary to the area zoning plan (Flächenwidmungsplan).
On 28 February 1993 the Mayor issued a demolition order. He found that the applicants had to stop the construction works and to demolish these parts of their cottage already built and to recultivate their plot of land within seven months.
On 27 July 1993 the applicants appealed against this decision and stressed that the construction works had already been terminated in August 1989 and that the revocation of the building permit granted on 4 June 1989 had occurred only after the construction of their cottage.
On 18 March 1999 the Municipal Council (Gemeinderat) modified the demolition order and found that the applicants had to demolish their cottage within five months.
On 23 April 1999 the Steiermark Regional Government dismissed the applicants further appeal (Vorstellung) and found that the applicants’ cottage had been constructed contrary to the applicable law, and that the order to declare the building permit null and void had been issued only three months after the building permit was wrongly granted.
On 10 June 1999 the applicants lodged a complaint with the Constitutional Court.
On 11 October 1999 the Constitutional Court declined to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court.
On 30 November 1999 the Administrative Court ordered the applicants to amend their complaint. On 4 January 2000 they complied with this order. On 15 March 2000 the Predlitz-Turrach Municipality submitted its observations.
On 5 December 2000 the Administrative Court dismissed the applicants’ complaint and found that no building permit existed for their cottage and that, therefore, the demolition order was lawful. This decision was served on the applicants’ counsel on 2 January 2001.
Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows:
“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay, and at the latest six months after the application or appeal has been lodged.
(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request (Devolutionsantrag). ...This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority.
(3) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it.”


ITEMID: 001-69214
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TOĞCU v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Feyyaz Gölcüklü
TEXT: 15. The applicant, a Turkish citizen of Kurdish origin, was born in 1944 and lives in the town of Silvan within the administrative jurisdiction of the province of Diyarbakır, in south-east Turkey.
16. The facts of the case, particularly concerning events which took place on or about 21 April 1992 and on or about 30 June 1992, are disputed between the parties.
17. The facts as presented by the applicant are set out in Section B below (paragraphs 18-32). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 33-36). Documentary evidence submitted by the Government and by the applicant are summarised in Sections D (paragraphs 37-61) and E (62-67) respectively.
18. The applicant's son Ender Toğcu was the manager of the Sento hotel and the Arzu club in Diyarbakır. He had no relations with the Kurdistan Workers' Party (the PKK) or any other similar organisations.
19. On an unspecified date, Ender's maternal cousin Mehmet Kartal was taken into custody in relation to a criminal case and when Ender's photograph was found on him, he apparently made a statement to the effect that he and Ender were partners in the alleged crime. The cousin was subsequently released without charge.
20. The applicant stated in the application form submitted to the Commission that, on 29 November 1994, Ender Toğcu's wife Güler was in Diyarbakır Hospital, giving birth. The applicant's wife was with her. At about 3 p.m. Ender Toğcu left his older brother Ali Toğcu to go to the hospital. However, Ender never arrived at the hospital and had not been seen since.
21. In reply to a query from the Court into details of the hospital records showing the date of birth, the applicant replied on 31 January 2000 with the correction that the woman who had been in hospital giving birth on the day of Ender's disappearance was not Ender's wife but the wife of his brother Ali. On the day in question Ender and Ali had had a meal together at a restaurant near their house before Ender had left for the hospital to visit Ali's wife. Although the applicant submitted that he would obtain hospital records and send them to the Court, he failed to do so.
22. In his memorial of 16 October 2001, the applicant submitted that on the day of his disappearance, his son Ender had been with his wife Güler, who was pregnant and had been taken to the maternity ward of the hospital as she was feeling unwell. Ender never returned from the hospital. The applicant also informed the Court that Ender had one child, born on 12 March 1993.
23. At about 10.30 p.m. on 29 November 1994, seven or eight plainclothes police officers came to the applicant's home in Diyarbakır and beat the applicant and his younger son. The police officers enquired about Ender's whereabouts. The applicant told them, although he knew that this was untrue, that Ender had left for Kayseri three days earlier. The police officers then told him that his son was in the hands of the police and that they would hand over his body in three days.
24. The police officers moved on to the house of Ali Toğcu, where they arrived at about midnight and conducted a search without finding anything. Ali told the police officers that he had not seen his brother Ender since 3 p.m. that day. The police officers took Ali to the applicant's house, where they told the applicant that there was a firearm in his house and ordered him to hand it over. Both the applicant and Ali denied the existence of any gun. After having conducted a conversation over the wireless, the police officers told the applicant and Ali that the firearm was in the woodshed of the applicant's house. The police officers told the applicant's wife that Ender had told them where he had hidden the gun. The police officers then found the firearm hidden in the woodshed, and left.
25. On 30 November 1994, Ali was apprehended by police in a café in Diyarbakır and taken to the Security Directorate. He was subsequently taken to the official detention centre of the Rapid Reaction Force where he was detained for four to five hours, during which he was interrogated and tortured intensely. He was questioned about Ender's whereabouts. When he told the police officers that he did not know where his brother was, he was told that Ender had been apprehended and that a price-list of walkie-talkies and batteries had been found on him. Ali was also asked where Ender's rifle was. During his interrogation, Ali, despite having been told by the police officers that his brother Ender had “gone to the mountains”, could hear the screams of Ender. After having been interrogated and tortured for about four to five hours and believing that he was dead, the police officers left Ali on a dump in Ergani, about 50 kilometres from Diyarbakır.
26. After his release, Ali Toğcu made inquiries about Ender at the Çarşı Police Station, where he was told that his brother was being held by the police and that he would be released after interrogation.
27. On an unspecified date, Ali Toğcu made further inquiries about Ender with the Chief Commissioner at the Homicide Department, taking with him a photograph of his brother, a photocopy of his brother's identity card and the applicant's home telephone number. These inquiries had not yielded any results.
28. On an unspecified date, the applicant and Ali Toğcu were apprehended and detained for six days. The police accused them of helping and meeting with Ender, whom they alleged was in the mountains. They were both released after six days without having been brought before a court.
29. On another occasion, Ali Toğcu was approached by police officers who asked him for money in exchange for which Ender would not be killed. One police officer asked Ali for one billion Turkish Lira to be given to a third person. In return, Ender would be released.
30. The applicant and his family filed many petitions with the State of Emergency Governor, the City Governor and other authorities. None of these petitions were accepted. On 6 April 1995, the applicant's wife filed a petition with the office of the Public Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”). On 7 April 1995, she was informed by the authorities that the name of Ender Toğcu did not appear in their records.
31. The applicant was heard by the Prosecutor for the first time on 19 July 1996. On 6 November 1996 the Diyarbakır Prosecutor issued a decision not to prosecute anyone in relation to the disappearance (Takipsizlik Kararı).
32. The investigation was apparently reopened in October 1999. The applicant gave a second statement to the Diyarbakır Prosecutor and, for the first time, statements were taken from the spouses of the applicant and Ender. As the applicant and his wife did not speak any Turkish, their grandson Mehmet was present when their statements were taken. According to Mehmet, the official court interpreter distorted the statements given by the applicant and his wife. For example, although the applicant stated that he would recognise the police officers who came to the house, the interpreter translated this as “I don't know the people who took my son away”. After he objected to this, Mehmet was removed from the Prosecutor's office and he was not allowed to read the recorded statements.
33. On 30 November 1994, at about 12.30 a.m., the homes of the applicant and his son Ali Toğcu were searched pursuant to a request made on 29 November 1994 by the Commander of the Diyarbakır Gendarmerie to the Diyarbakır Security Directorate. The aim of the search was to find Ender Toğcu, who was suspected of involvement with the PKK. Police officers carrying out the search did not manage to find Ender Toğcu. However, a firearm and a charger with bullets were found in the applicant's house. As the applicant stated that it belonged to his nephew Mehmet Kartal, the police officers took the firearm and left the applicant's home without detaining anyone.
34. Neither Ali nor Ender Toğcu was taken into detention on 29 or 30 November 1994. The applicant and Ali were detained, however, on 4 July 1995 on suspicion of involvement in a terrorist organisation and released on 8 July 1995 on account of the lack of sufficient evidence. Ali Toğcu was arrested once again by police on 7 August 1997 and released on 8 August 1997, after having given a statement.
35. The applicant's wife submitted a petition to the Prosecutor's office at the Diyarbakır Court. No other petitions were submitted to any Prosecutor. An investigation into the disappearance of Ender Toğcu was carried out by the Diyarbakır Prosecutor who, in the course of his investigation, checked the custody records of the detention facilities in Diyarbakır and its districts. In the absence of any evidence implicating any State agent in the disappearance, the Prosecutor decided on 6 November 1996 not to prosecute anyone.
36. The Diyarbakır Prosecutor instigated a second investigation at a later stage. In the course of this investigation, statements were taken from the applicant and his wife and also from Ender's wife. The Prosecutor further made attempts to take statements from the police officers who had searched the applicant's house on 29 November 1994. This second investigation was ongoing.
37. The following information appears from documents submitted by the Government.
38. On 29 November the deputy commander of the Diyarbakır Provincial Gendarmerie Headquarters (hereinafter “the Gendarmerie Headquarters”) requested the Diyarbakır Police Headquarters to assist the personnel from the Gendarmerie Headquarters to apprehend “the persons who had been aiding and abetting the PKK in Diyarbakır”.
39. According to a report of “house search and confiscation”, a number of police and gendarme officers, acting on the above mentioned request, went to the applicant's house in Diyarbakır in the early hours of 30 November 1994. They were looking for the applicant's son Ender Toğcu whom they wanted to arrest. However, Ender was not at home. During the search conducted at the house, a 7.45 millimetre calibre pistol with its bullets were found in the attic and confiscated by the officers. The applicant told the officers that the pistol belonged to his nephew, Mehmet Kartal.
40. It appears from another report, drawn up and signed by the same officers, that after having searched the applicant's house they had gone to Mrs Sabahat Toğcu's house and unsuccessfully looked for Ender there.
41. Custody records which, according to the Government, were from Diyarbakır's Çarşı Police Station and the Anti-Terror Branch of the Diyarbakır Police Headquarters, showed that neither Ender nor his brother Ali or their father Hüseyin – that is the applicant – were detained by the police on 28, 29 or 30 November 1994.
42. According to copies of the custody records of a number of police and gendarmerie stations in and around Diyarbakır, no member of the Toğcu family was arrested and detained in November 1994.
43. It appears from the custody records of the Silvan Central Gendarmerie Station that the applicant's nephew Mehmet Kartal was arrested on 22 November 1994 and released the next day (see paragraph 19 above). He was re-arrested on 8 December 1994 and an order for him to be remanded in custody was issued by the Diyarbakır Court on 21 December 1994.
44. On 4 July 1995 the applicant and his son Ali Toğcu were arrested at their homes by a number of police officers. As they could not be linked to any illegal organisation, they were released on the orders of the Prosecutor on 8 July 1995.
45. On 1 February 1996 Ramazan Sürücü, the chief of the Anti-Terror Branch of the Diyarbakır Police Headquarters, sent a reply to a letter which had apparently been sent to him from the Diyarbakır Police Headquarters on 30 January 1996. In his letter Mr Sürücü referred to another letter sent by his office on 24 January 1996. He informed the Headquarters that Ender Toğcu had not been detained at the Anti-Terror Branch on 29 October 1994. Hüseyin Toğcu and Ali Toğcu had been arrested on 4 July 1995 and then released on 8 July 1995.
46. On 8 February 1996 the Diyarbakır Prosecutor replied to a letter sent to him by the Ministry of Justice's International Law and Foreign Relations Directorate (hereinafter “the Directorate”) on 22 January 1996, informing that Directorate that Hüseyin and Ali Toğcu had been detained on 4 July 1995 and released on 8 July 1995.
47. On 25 June 1996 the Diyarbakır Prosecutor asked the Prosecutor at the Diyarbakır Court whether an investigation into the applicant's allegations concerning Ender Toğcu was in progress.
48. On 27 June 1996 the Prosecutor at the Diyarbakır Court replied to the Diyarbakır Public Prosecutor that Ender Toğcu's name did not feature in the records of the Diyarbakır Court.
49. On 19 July 1996 a statement was taken from the applicant by the Diyarbakır Prosecutor. The applicant acknowledged that he had lodged an application with the European Commission of Human Rights and confirmed the accuracy of the contents of the statement he had given at the Human Rights Association (see paragraph 63 below). He recounted that on 29 November 1994 he and his sons, Ender and Ali, had been arrested outside his house by plain-clothes members of the Anti-Terror Branch of the Police Headquarters. Prior to his arrest, Ender had just returned from the hospital, where his pregnant wife had been giving birth. The reason for Ender's arrest was his suspected involvement with the PKK. The police officers arresting Ender had told the applicant to go and collect Ender's body in Fiskaya in three days' time.
50. The applicant further stated that he had been kept in detention for a week before being released. Ali had been detained twice; on the first occasion he had been detained for a week and on the second he had been detained for three days. The firearm had been handed over to the police officers who had come to his house to search for it. Nothing had been heard from Ender since he had been detained on 29 November 1994, and the enquiries made by the applicant with the Prosecutor's office at the Diyarbakır Court and with the Anti-Terror Branch of the Police to obtain information about his son's fate had yielded no results. He told the Prosecutor that he wished to press charges against members of the AntiTerror Branch of the Police.
51. On 2 September 1996 a Prosecutor (no. 34973) sent a reply to a letter sent from the Diyarbakır Prosecutor of 26 August 1996. He enclosed copies of the documents contained in investigation file no. 1996/4211.
52. On 6 November 1996 the Diyarbakır Prosecutor decided not to prosecute anyone in connection with the applicant's allegations concerning the detention of his son. The Prosecutor based this decision on a letter sent to him on 16 October 1996 by the Anti-Terror Branch in which, according to the decision, that Branch had denied taking Ender Toğcu into custody.
53. Ali Toğcu was once more arrested at his house on 7 August 1997.
54. On 14 October 1999 the Diyarbakır Prosecutor sent letters to the Diyarbakır Police Headquarters and the Gendarmerie Headquarters, asking them to submit to his office the custody records of 29 November 1994. He also instructed them to search for Ender.
55. On 20 October 1999 the Gendarmerie Headquarters informed the Prosecutor that Ender had not been detained by them. Copies of their custody records, in which Ender's name did not feature, were forwarded to the Prosecutor with this letter.
56. On 1 November 1999 the Diyarbakır Prosecutor took a statement from the applicant. The applicant recounted that his son Ender had been living with him prior to his disappearance. On the evening of 29 November 1994, seven or eight plain-clothes police officers had come to his house and told him that Ender, who was in their hands, had told them that there was a firearm in the house. The applicant had replied that he did not know anything about a firearm. The officers had then found it in the attic of the house and left. He had not heard from Ender since that day. His other son Ali had been arrested and detained three to four days after the disappearance of Ender and had been ill-treated whilst in custody. Ali had also told him that he had heard a person's screams while he was in custody. Ali had thought it might be his brother Ender. Two months after the disappearance of Ender, the applicant and Ali had been arrested and detained once more, this time for a period of six days during which they had been questioned about the petition in which they had complained about police officers.
57. The applicant further submitted that his son Ender had not had any involvement with the PKK. The applicant had never been told by anyone to go and find the body of his son in Fiskaya (see paragraph 49 above). Finally, the applicant had asked the Prosecutor to find his son.
58. Also on 1 November 1999 the Diyarbakır Prosecutor took a statement from Güler Tuncel, the wife of Ender Toğcu. She stated that, while pregnant, she had become unwell on 29 November 1994 and her husband Ender had taken her to hospital. They had then returned home in the early afternoon and Ender had gone to his café at around 3 p.m. Ender would normally return home at 11 p.m. or midnight. At around midnight on 29 November 1994 seven or eight plain-clothes police officers had come to their house and had asked her and her father-in-law, the applicant, about a firearm. She knew that her husband owned a gun but she did not know where he kept it. The police officers then found it in the attic. She had not known that it was hidden there and, had they not been told by Ender where it was hidden, the police officers would not have been able to find it. She had not heard from Ender since that day.
59. Finally, on 1 November 1999 the Diyarbakır Prosecutor questioned Soliye Toğcu, the wife of the applicant. Mrs Toğcu stated that on 29 November 1994 she had gone to hospital together with her daughter-in-law Güler. Her son Ender had also been at the hospital for some time, but he was at home when she had returned. Ender had left at 3 p.m. to go to the café which he was running and had not returned. At around midnight the same day, seven or eight police officers had arrived at their house and asked for Ender. According to the officers, Ender had told them that there was a firearm in the house. The officers had found the gun and left. She had subsequently petitioned the Prosecutor about the disappearance of her son but had never been informed about his fate.
60. On 30 November 1999 the Diyarbakır Prosecutor reminded the Diyarbakır Police Headquarters and the Gendarmerie Headquarters of his requests of 14 October 1999 (see paragraph 54 above) and urged them to submit to his office copies of the custody ledgers and to search for Ender.
61. Also on 30 November 1999 the Diyarbakır Prosecutor sent a letter to the Anti-Terror Branch of the Police and summonsed the police officers who had gone to the applicant's house on 30 November 1994 (see paragraph 39 above) to his office. He also asked whether any action had been taken in relation to the firearm found in the applicant's house. The Prosecutor finally asked whether Ender, Ali and the applicant had been detained on 30 November 1994. He asked for copies of the custody records to be sent to his office.
62. On 6 April 1995 the applicant's wife submitted a petition to the Prosecutor's office at the Diyarbakır Court (see paragraphs 30 and 35 above). She informed the Prosecutor that her son Ender Toğcu had been taken into custody by members of the security forces in Diyarbakır on 29 November 1994. Plain-clothes police officers who had raided her house on the evening of 29 November 1994 had told her that her son was in their hands. She had not heard from her son since that date. She asked the Prosecutor to give her information about her son. A handwritten note on this petition reads “his name was not found in the examination of our records”.
63. On 10 April 1995 the applicant made a written statement, addressed to a “Human Rights Project”. He submitted that at around 3 p.m. on 29 November 1994, his son Ender had left his brother Ali to go to the hospital where Ender's wife was giving birth. The applicant's wife, who was staying at the hospital to look after her daughter-in-law, had told the applicant that their son Ender had never arrived at the hospital. Ali had been arrested the following day by police officers from the Çarşı Police Station and been questioned for three days. On the third day he had been released on the Ergani Road.
64. In a letter forwarded to the Court on 31 January 2000, the applicant's son Ali Toğcu submitted that on 30 November 1994 he had been arrested by police officers and been taken to the Security Directorate, from where he had been taken to the Rapid Reaction Force. While at the Rapid Reaction Force, Ali had been questioned about his brother Ender and been told by police officers that Ender had gone to the mountains to join the PKK. While in custody, Ali had heard the screams of his brother Ender. Ali had been severely tortured and, believing that he was dead, the police officers had left him at a dump near Ergani. Following that incident, he had been detained a total of five times and on each of these occasions he had been accused of meeting with his brother Ender, whom, the police officers insisted, had joined the PKK.
65. The applicant forwarded to the Court a letter which he had dictated on 14 September 2001. In this letter the applicant submitted that there were no eye-witnesses to the abduction of his son Ender. No one at Ender's workplace had witnessed his arrest. He himself had not witnessed it either. He had been arrested, together with his other son Ali, one day in the summer and detained for six days. He had been asked why he had complained about the police officers and he had replied that his son had been detained by police officers and, for that reason, he had applied to the Prosecutor and to the Human Rights Association. He had then been told by police officers that his son had not been in their hands but that he had gone to the mountains.
66. In a letter, drawn up by Ali Toğcu's son Mehmet Toğcu on 18 September 2001, Mehmet Toğcu submitted that he had accompanied his grandparents – that is the applicant and his wife – and the wife of his uncle Ender (see paragraph 32 above) to the Prosecutor's office and had acted as the interpreter for his grandparents who did not speak any Turkish. His aunt Güler – Ender's wife – could speak Turkish. When he had begun translating word by word what his grandfather was saying, the Prosecutor had interrupted him and had asked another person working at the courthouse to take over the interpretation. However, this person had distorted his grandfather's words and, when Mehmet had objected, he had been removed from the office. He had later wanted to see the statements taken from his grandparents but his request had been refused by the Prosecutor.
67. In a letter dated 13 October 2001, Mrs Sabahat Toğcu (see paragraph 40 above) submitted that on the day of the incident she had gone to the hospital, where the wife of her brother-in-law was giving birth. Afterwards she had gone to the house of her brother-in-law Ali Toğcu. At 3 a.m. the following morning, a number of police officers had come to the house and told the people present that Ender had a large number of weapons in the house of a certain person named Yavuz. She and Ali had then accompanied the police officers to her house where, because she had forgotten the keys, the police officers had broken the door and had entered, and searched the house. Nothing had been found.
68. The relevant domestic law and practice are set out in the judgment in the case of Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 186-197, ECHR 2004).
VIOLATED_ARTICLES: 13
2
38
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 2
3
34
5
NON_VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-89410
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CARLSON v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant, Mr Scott Norman Carlson, is a United States national who was born in 1962 and lives in Washington.
7. On 4 August 2001 the applicant married D., a Swiss national who was born in 1969. They decided to live in the United States of America (District of Columbia).
8. On 3 July 2004 their son, C., was born there. He is a national of the United States and of Switzerland. Parental responsibility was exercised jointly by both parents.
9. Between February and July 2005 D. made several trips to Switzerland, sometimes accompanied by C. She decided to settle there with the child, in the municipality of Stansstad (Canton of Nidwalden), from 1 August 2005 onwards.
10. On 16 September 2005, D. and C. moved to Obersiggenthal (Canton of Aargau).
11. On 28 September 2005 D. petitioned for divorce before Baden District Court (Canton of Aargau) and at the same time requested interim measures for the duration of the divorce proceedings, particularly with a view to obtaining custody of the child.
12. On 29 September 2005 the applicant petitioned for separation before a US court.
13. In a decision of 30 September 2005, the President of the appropriate division of Baden District Court provisionally granted D. custody of C.
14. On 31 October 2005 the applicant started proceedings in Baden District Court. Relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”, see paragraph 38 below), he sought an order that his son be returned promptly to the United States. In support of his request he stated that his wife had gone to Switzerland in July 2005, accompanied by the child, for a holiday and also for health reasons. The applicant had joined her for a two-week holiday in September 2005 and had agreed with his wife that he would return alone to the USA on 28 September 2005. Just before his departure D. had, however, presented him with a divorce agreement. He had found it unacceptable and had thus refused to sign it. He then returned to the USA without his child.
15. In a decision of 14 November 2005 the President of the appropriate division of Baden District Court ordered D. to surrender C.'s passport and prohibited her from leaving Switzerland. At the same time, he decided to join the proceedings concerning the child's return to the divorce proceedings, including the determination of rights of custody and access.
16. On 21 November 2005 D. deposited the child's Swiss passport.
17. On 3 December 2005 D. submitted her observations on the request for the child's return to the USA, arguing that the parties had decided to move to Switzerland at the start of 2005. Thus, she alleged, the provisions of the Hague Convention were not applicable to the present case.
18. On 17 February 2006 the President of Baden District Court dismissed the applicant's request for the child's return to the USA. He found that the situation admittedly appeared to be one of wrongful removal or retention within the meaning of Article 3, sub-paragraph (a), of the Hague Convention, given that parental responsibility for C. had been exercised jointly by both parents under the applicable laws of the District of Columbia where the child had habitually resided before his removal. The President further acknowledged that the decision of 14 November 2005 to join the proceedings concerning the child's return and the divorce proceedings had not complied with Article 16 of the Hague Convention, which precluded any decision on the merits of rights of custody before the ruling on the child's return.
19. The court nevertheless refused to grant the request for the child's return to the USA, finding that the applicant had consented to the removal and retention of the child, thus removing any wrongfulness from D.'s conduct for the purposes of Article 3, sub-paragraph (a), of the Hague Convention.
20. In the absence of witnesses, the President of the appropriate division of the court examined whether the applicant's allegations could be regarded as sufficiently credible (hinreichend glaubhaft). He found that the applicant had been unable to submit evidence in support of his allegation that, whilst he had agreed to the mother's temporary stay in Switzerland, this had only been on the condition that she return the child to the United States once her visit to Switzerland for medical treatment had ended. Moreover, the judge took the view that the applicant had failed to show that the mother's health problems had been resolved in September 2005 and that D.'s residence in Switzerland was thus no longer justified from that time. On the contrary, the applicant could not reasonably have believed that his wife and child were only going to remain in Switzerland for a short time, as the mother had had herself registered in two Swiss municipalities in succession and had taken steps to find work there. The applicant had been kept informed of all these developments by his wife, whom he had in fact visited on several occasions.
21. In view of the above, the judge of Baden District Court found, first, that the child's removal to Switzerland had not been unlawful under Article 3, sub-paragraph (a), of the Hague Convention, since the applicant had given his express consent, and, secondly, that there was insufficient evidence to substantiate the allegation of the child's wrongful retention.
22. In parallel the applicant brought an action for unjustified delay before the Court of Appeal (Obergericht) of the Canton of Aargau. He requested, firstly, an immediate decision on his application of 31 October 2005 for the child's return to the United States, and, secondly, the opening of a disciplinary procedure and the taking of appropriate measures against the President of Baden District Court.
23. In a decision of 27 February 2006 the Court of Appeal's supervisory panel (Inspektionskommission des Obergerichts) observed that the impugned decision, concerning the child's return to the USA, had been given in the meantime, on 17 February 2006. It noted that the District Court had exceeded the six-week time-limit provided for in Article 11 of the Hague Convention for a decision on the child's return. It further found that there had been an unjustified delay in the proceedings brought by the applicant. As regards the requested disciplinary measures against the President of Baden District Court, the panel found that such measures were not appropriate having regard to the circumstances that had led to the delay. It pointed out that the President of the District Court was required to adhere to a calendar that the panel itself had imposed, requiring disposal of older cases and the holding of hearings that could not be adjourned. Other factors came into play, such as the absence of a greffière and the busy end-of-year period. The panel also found that there were no indications to suggest that the delay could be attributed to other grounds, of a political nature, as the applicant had claimed.
24. On 7 March 2006 the applicant lodged a second appeal before the Canton of Aargau Court of Appeal against the District Court's decision of 17 February 2006, arguing among other things that the latter had reversed the burden of proof, in patent disregard of Article 13 of the Hague Convention.
25{0>. Par une décision du 10 avril 2006, la cour d’appel rejeta ce recours.<}79{>. In a decision of 10 April 2006 the Court of Appeal dismissed the applicant's appeal.<0} Whilst it acknowledged that the President of Baden District Court had wrongly reversed the burden of proof against the applicantapplicant had, in a sufficiently unequivocal manner, consented to the child's retention for an indefinite period.
26. On 11 May 2006 the applicant lodged a public-law appeal with the Federal Court, seeking the prompt return of his child to the United States. He alleged that there had been numerous violations of the right to be heard, in particular because the District Court had not duly taken into account or had misconstrued his offers to adduce proof to show that he had not consented to his child's retention. Moreover, he criticised the fact that the District Court had merged the proceedings concerning the child's return with the divorce proceedings and that its decision on the child's return had by far exceeded the time-limit provided for under Article 11 of the Hague Convention. Lastly, he argued that the reversal of the burden of proof clearly constituted a violation of Article 13 of the Hague Convention.
27. {0>. Par un arrêt du 13 juillet 2006, le Tribunal fédéral rejeta le recours de droit public du requérant.<}74{>InIn a judgment of 13 July 2006, the Federal Court dismissed the public-law appeal.<0} It did not call into question the fact that the District Court had wrongly merged the two sets of proceedings. However, it failed to address the question of the time taken by the court below to reach its decision.
28. The Federal Court shared the District Court's view that the child's removal and retention had a priori been capable of breaching the applicant's right of custody within the meaning of Article 3 of the Hague Convention.
29. However, the Federal Court rejected the allegations concerning the right to be heard, indicating in detail the reasons why it considered unfounded the arguments put forward by the applicant to prove that he had not consented to his child's retention in Switzerland. By contrast, the Federal Court regarded it as established that the parties had decided, in the summer of 2005, that the mother and her child would settle in Switzerland on a long-term basis. It was proven, according to the Federal Court, that the applicant had agreed that the mother would find employment and buy a car there. Moreover, it could not be argued that the Court of Appeal had reached its conclusions only by reversing the burden of proof against the applicant. Thus, the Federal Court found that the Court of Appeal had properly applied Article 13, sub-paragraph (a), of the Hague Convention. Accordingly, it refused to order the child's return to the United States.
30. On 12 and 18 December 2006 the applicant lodged a request with the Federal Court for the revision of the judgment of 13 July 2006. He alleged in particular that he had suffered discrimination as the child's father.
31. In a judgment of 6 February 2007 the Federal Court declared the request for revision inadmissible, because the allegation about discriminatory treatment did not constitute a valid ground for revision under the applicable law.
32. On 13 September 2007 the supervisory panel of the Aargau Canton Court of Appeal found that there had been no unjustified delay in the revision proceedings.
33. On 18 September 2007 the District Court of Baden declared inadmissible a request for the revision of the 10 April 2006 judgment of the Aargau Canton Court of Appeal.
34. According to a letter from the United States Embassy in Berne, dated 20 November 2007, its staff had attempted in vain to make contact with the child's mother.
35. On 26 November 2007 the applicant lodged a request for a right of access.
36. On 29 November 2007 Baden District Court ordered that the applicant be granted a right of access.
37. On 4 December 2007 the Aargau Canton Court of Appeal declared inadmissible another request for the revision of the judgment that it had given on 10 April 2006. That decision was served on the applicant, according to him, on 15 December 2007.
38. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which entered into force in respect of Switzerland on 1 January 1984, read as follows:
“Preamble
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:
Article 1
The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
...
Article 3
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.
Article 4
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.
Article 5
For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Article 6
A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
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 –
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
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;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Article 8
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.
The application shall contain –
a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
b) where available, the date of birth of the child;
c) the grounds on which the applicant's claim for return of the child is based;
d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by –
e) an authenticated copy of any relevant decision or agreement;
f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
g) any other relevant document.
...
Article 11
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
...
Article 13
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.
...
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
...
Article 19
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
39. In a recent case that is largely comparable to the present one, the Federal Court upheld the appeal of a mother, a Swiss national, who opposed a request for the return of her child made by the child's father, a French national living in France. The court took the view that the father had “subsequently acquiesced”, within the meaning of Article 13, sub-paragraph (a), of the Hague Convention, in the child's retention, especially because he had taken to Switzerland items belonging to the mother that were to be used by her in her professional activities in Switzerland (see Federal Court judgment of 17 November 2006, 5P.380/2006 ). Generally speaking, the Federal Court finds it easier to accept the existence of a tacit agreement as to the removal or retention of a child where the party requesting the child's return has actively contributed to the settlement of the child and the accompanying parent in the destination country (ibid., see also the Federal Court judgment of 15 November 2005, 5P.367/2005).
VIOLATED_ARTICLES: 8


ITEMID: 001-4949
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OCIC v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Croatian citizen, born in 1932 and living in Zagreb. He is a lawyer.
A.
The applicant lodged a constitutional complaint with the Croatian Constitutional Court (Ustavni sud Republike Hrvatske) on 4 December 1996, claiming that the Act on compensation for and restitution of assets taken under the Yugoslav communist regime, as a whole, violated the constitutional guarantees of right to property, social justice, rule of law and right to inheritance. Furthermore, he claims that the provisions of the Act prevented him from protecting his own legal interests as well as the interests of clients whom he represented as an attorney at law.
After fourteen months, the applicant requested the speeding up of proceedings before the Constitutional Court and received no answer.
The Constitutional Court gave its decision on 21 April 1999, which was published in the Official Gazette (Narodne novine). The Constitutional Court quashed or changed several provisions of the Act in question as not being in conformity with the Croatian Constitution. Firstly, changes were made so as to recognise the capacity of persons of foreign (non-Croatian) nationality to be entitled to the rights stemming from the Act in question. Secondly, the former owner's priority right to buy a flat where there existed previously a specially protected tenancy (stanarsko pravo) was abolished.
B. Relevant domestic law before the amendments made by the Constitutional Court (see above)
The relevant provisions of the Act on compensation for and restitution of assets taken under the Yugoslav communist regime provide the following:
Article 9: the Act applies to former owners and their statutory heirs who are relatives of the first degree, excepting those of foreign nationality.
Article 22: most of the flats that were let under a specially protected tenancy shall not be returnable to their original owners. Compensation may be due.
Article 45: company property shall not be returnable. It provides for compensation for such property.
Article 48: only movable property of cultural, artistic or historical value will be returned to former owners. Where such property is presently considered as a part of the cultural heritage and is in the ownership of collections, museums, galleries or similar institutions, only compensation may be awarded.
Article 53: real property which formed part of the assets of a company shall not be returnable, but compensation may be due.
Article 54 excludes from restitution property presently in the possession of legal entities in the fields of health, social welfare, education, culture, science, etc. It provides, however, that the Croatian Government may decide to return such property in exceptional circumstances.
Article 55 excludes from restitution a variety of property belonging to legal persons performing public services or dedicated to public use or property extra commercium. Restitution is likewise excluded where it would entail damage to the environment or would prejudice the operation of industrial complexes.
Article 58 establishes the sum of 3,700,000 Croatian kunas as the maximum amount of compensation.


ITEMID: 001-91470
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SENGER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Peter Senger, is a German and Russian national who was born in 1961 and lives in Mannheim.
The applicant is in detention in the Mannheim penal institution.
On 28 and 29 August 2003, the Mannheim prison authorities stopped letters and refused to hand them over to the applicant pursuant to section 31(1)(6) of the Penal Code (Strafvollzugsgesetz) on the ground that they were written in Russian. Pursuant to the said provision, the head of the penal institution may halt letters to inmates that are written in a foreign language without a compelling reason (see Relevant domestic law below).
The applicant lodged an appeal against the decision of the prison authorities alleging that the letters were written by his aunt and cousin who, despite having dual German and Russian nationality, were not capable of corresponding in German. He further submitted that both of the said relatives had been allowed to communicate with him in Russian on the occasion of previous visits to the Mannheim prison.
On 28 January 2004 the Mannheim Regional Court rejected the appeal. It noted that it was undisputed that the applicant himself had full command of the German language and that the senders of the letters had both German and Russian nationality and had been residing in Germany for some years. The Regional Court found that since the applicant had failed to make any submissions as to why the authors of the letters were not capable of corresponding in German – for example personal data relating to their age, the length of their residence in Germany or their language skills - , there was nothing to establish that there existed a compelling reason for them to write in Russian. The mere fact that it would be easier for them to correspond in Russian could not be regarded as a compelling reason in this regard. The Regional Court further observed that the applicant had extensive contacts with the outside world by means of visits and telephone calls. The Regional Court clarified that the general decision whether the correspondence of the applicant had to be monitored had already been the subject of previous court decisions in 2002 and was not the subject of the instant appeal.
On 17 November 2004 the Karlsruhe Court of Appeal rejected an appeal by the applicant and upheld the decision of the Mannheim Regional Court. The Court of Appeal also found that the applicant had not substantiated that there were compelling reasons for the authors of the letters to write in Russian. It pointed out that should the applicant wish to have the entire correspondence with the said relatives excluded from monitoring, he would be free to lodge a pertinent request with the prison authorities.
On 27 July 2005 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant.
Section 31 (1)(6) of the Penal Code reads as follows:
“§ 31 Stoppage of Letters
The leader of the institution may halt letters,
1. if the purpose of the imprisonment or the security or order of the penal institution would be jeopardised,
2. if the transmission of the letters in knowledge of their content constituted a criminal offence or summary offence,
3. if they contain grossly incorrect or seriously distorting descriptions of prison conditions,
4. if they contain gross insults,
5. if they might jeopardise the integration of another prisoner,
6. if they are drafted in a secret language, illegible, incomprehensible or drafted in a foreign language without a compelling reason.
...”


ITEMID: 001-110717
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF M.S. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1970. At the time of filing his application, he was resident in a psychiatric clinic. According to an expert report drawn up during the domestic proceedings in this case, the applicant has a diagnosis of mental impairment and, prior to the facts giving rise to this case, had been admitted to psychiatric hospitals twice. He also had a number of convictions against him, including for indecent assault, burglary and theft.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. In the early hours of 6 December 2004, police in Birmingham were called out to deal with the applicant, who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner. He was arrested at 4.20 a.m. and transferred to a police station, where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required. His detention was authorised under section 136 of the Mental Health Act 1983 (see paragraph 28 below). The police also went to the applicant’s address, where they found his aunt with serious and extensive injuries to her face and upper body, inflicted by the applicant. She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung.
9. The applicant was examined in his cell at approximately 5 a.m. by the Forensic Medical Examiner, Dr T. In view of the applicant’s behaviour, speech and appearance, he assessed him as not fit to be interviewed or charged with any criminal offence. A formal assessment under the Mental Health Act 1983 was requested. This was done at approximately 7 a.m. by the psychiatric specialist registrar on call, Dr O. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons.
10. A second assessment was carried out shortly after 11 a.m. by another psychiatric specialist, Dr. O’D. He too advised that the applicant be formally admitted to hospital for assessment. He also advised that the applicant be observed via closed circuit television, since the presence of a police officer outside his cell was causing him to become agitated. For the remainder of his time at the police station, the applicant remained under continuous observation by this means.
11. At around midday, the applicant was visited by an approved social worker, Mr G. He was also seen by a community psychiatric nurse, Mr J. Both noted that the applicant was displaying clear signs of mental illness. The social worker filled out the relevant form for admission to a mental hospital, omitting just one point, the name of the establishment, which had yet to be determined.
12. At around 3 p.m. two members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to Reaside Clinic, which had a medium secure unit. The police thereupon contacted Reaside to inform them of the situation. Shortly after 6 p.m., Dr M., a consultant forensic psychiatrist at Reaside, called back and was informed of the situation concerning the applicant. According to the custody record, he stated that someone would be sent over from the clinic. According to Dr M.’s own notes on the situation, which the Government have provided, he then consulted with a number of colleagues. Believing that the applicant would be charged and remanded in custody and that an assessment from Reaside would be required only afterwards, they considered that there was no need for their involvement before such time. At 7.24 p.m. the police received a call from Reaside informing them that the clinic would not be sending anyone to the station, but would liaise with the social worker.
13. The custody record for the applicant’s first day at the police station refers at several points to his disturbed behaviour: clapping loudly, shouting, banging on the door, lowering his trousers and waving his testicles about, and licking the wall of his cell. Dr T. noted that the applicant repeatedly hit his head against the wall, causing himself bruising. He was provided with, and accepted, food and drink at intervals throughout the day.
14. The next day, 7 December, there were further telephone contacts between the police station and Reaside regarding the applicant’s case. The police also contacted other mental health officials, but admission to Reaside remained the only viable solution. During the morning Dr M. spoke with the duty solicitor of the Crown Prosecution Service, who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody. In the event of no charge being brought, they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant the previous day. In discussion with the clinical director of Reaside, Dr M. noted that at that point there was no immediate action to be taken. He was later told by Dr O. that the applicant would be charged with assault, and arranged an appointment to assess the applicant on 9 December at HMP Birmingham.
15. An entry in the custody record at 1.46 p.m. states that the duty solicitor of the Crown Prosecution Service had concluded that there was insufficient evidence to charge the applicant. An entry at 5.01 p.m. states that there was an “internal argument” between doctors and the social services regarding the applicant. At 8.41 p.m. an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant.
16. The applicant’s behaviour was observed to deteriorate over the course of the day. By midday he had removed all of his clothing. Later he drank water from the bowl of the toilet in his cell. He accepted three meals, in the early morning, mid-morning and in the mid-afternoon. He accepted a drink at 4.17 p.m., but, according to the custody record, refused all further offers of food and drink for the remainder of the day.
17. On the third day of the applicant’s detention, 8 December, the duty Inspector made an entry in the custody record at 8.53 a.m. noting his concern at the environment in which the applicant was detained, given his obvious illness. The applicant was still naked and was observed during the morning rocking to and fro on a bench, talking to himself, banging his chest and ranting.
18. Dr M. arrived at the police station shortly before 11 a.m., accompanied by other mental health professionals from Reaside to assess the applicant. The police refused to open the door of the applicant’s cell on the ground that this would endanger everyone’s safety. The assessment was conducted through the hatch. Dr M. noted that the applicant appeared agitated and was shouting loudly, and that his naked body appeared to be smeared with food or faeces. The applicant was elated, and his speech was incoherent at times. Dr M. concluded that the applicant was clearly unwell and required inpatient treatment in a medium-secure setting with adequate nursing resources and a clear and effective care plan. He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems. The police indicated that their advice from the Crown Prosecution Service was that there could be no charge at that point in time, given the impossibility of interviewing the applicant. Dr M. said he would endeavour to get a place for the applicant at Reaside, although it would not be possible to receive him there until the following morning, i.e. beyond the 72-hour limit laid down by the Mental Health Act 1983. That afternoon, the Chief Superintendent spoke to the clinical director of Reaside, who agreed to receive the applicant the same evening.
19. Informed of this, Dr M. discussed the situation with nursing staff at Reaside. He was informed that the resources needed to admit the applicant could be made available for the following morning at 8 a.m. at the earliest. He considered that an admission in the middle of the night, i.e. just before the expiry of the permitted period of detention, would pose unmanageable risks for all concerned. He suggested to the Chief Superintendent that the applicant could be transferred to Reaside at the end of the 72-hour period, but that police assistance would be required to maintain him in safe conditions until it was possible to admit him. He was informed that the presence of the police could not be guaranteed for the whole period.
20. At 7.46 p.m. a call was received from Reaside to say that the applicant could not be taken until the following morning. Late that night, an Approved Social Worker from Reaside came to the police station to complete the necessary forms for the application’s admission under the Mental Health Act 1983.
21. The applicant was provided with food and drink at 8.18 a.m., and further drinks of water during the day (9.34 a.m. and 2.28 p.m.). At the end of the afternoon a meal was not offered because the applicant was sleeping. He requested food at 7.08 p.m., which was provided but which he dropped on the floor. He refused an offer of a meal and a drink at 10.56 p.m.
22. On the fourth day, 9 December, the applicant was released from police custody at 7.27 a.m. and escorted, in handcuffs, to Reaside. According to the Government, it took eight members of the nursing staff to restrain him once admitted. He was assessed as having pressure of speech, flight of ideas, a labile mood, thought disorder and persecutory delusions. The diagnosis was of a manic episode with psychotic features. The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive, threatening manner. He received continued medication over the following days and showed sustained improvement.
23. On 5 June 2006, the applicant lodged claims against the Birmingham and Solihull Mental Health NHS Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office. The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding. A hearing was held on 14 March 2007 before a District Judge. The applicant’s counsel submitted a report prepared by a Consultant Forensic Psychiatrist, Dr E., who had not interviewed the applicant but had reviewed the relevant documents. Dr E. considered that Dr M. should have assessed the applicant within 24 hours of being made aware of the situation, since by that stage the applicant had been detained for about 12 hours. The delay in assessing him and in admitting him to Reaside had in turn delayed the applicant’s treatment and recovery.
24. The judge granted the order for summary judgment. He held that although the defendant had owed the applicant a duty of care, and that that duty had been breached, it had not caused the applicant any physical or psychological injury. The action in negligence therefore failed on causation and loss. In any event, any loss had been absolutely minimal. A delay of 31 hours in the hospitalisation of the applicant could only lead to minimal damages. The judge also rejected the claim based on the Human Rights Act on the grounds that Dr M. could not be seen as a public authority for the purposes of the Act, and that the situation did not meet the minimum level of severity inherent in Article 3 of the Convention. The applicant’s claim for damages based on Article 8 of the Convention was also dismissed, the judge finding that this was not an exceptional case in which compensation would be justified. The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant, which he had not done.
25. The applicant was granted permission to appeal. The case was heard at Birmingham County Court by Judge M., who dismissed the appeal in a judgment of 14 November 2007. The judge described the applicant’s claim in negligence as “hopeless”, there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant. It was unrealistic to suggest that a delay of a given number of hours (the applicant’s counsel having conceded that the delay was considerably less than 31 hours) in some way caused that number of hours of psychosis.
26. In relation to the claim under the Human Rights Act, the judge considered that Dr M. should be viewed in that context as a “public authority”. However, the claim failed because the situation did not fall within Article 3. The applicant had been lawfully detained and his basic needs had been met. The fact that he had spent an extra 12-24 hours at the police station did not make the situation so appalling as to breach Article 3. The judge found that there had been no breach of Article 8 because there had been no arbitrary or deliberate interference with the applicant’s rights. As regards the claim for malfeasance, he concurred with the decision of the District Judge.
27. In light of these findings, the applicant’s legal representatives advised him that legal aid would not be available for him to appeal the decision further.
28. Section 136 of the Mental Health Act 1983 provides:
“Mentally disordered persons found in public places.
(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.
(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.”
A “place of safety” is defined in section 135(6) as follows:
“In this section “place of safety” means residential accommodation provided by a local social services authority..., a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.”
29. The Code of Practice issued under the Mental Health Act 1983 provided at the relevant time:
“The place of safety
10.5 The identification of preferred places of safety is a matter for local agreement. However, as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station. Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment. Once the person has been removed to a particular place of safety, they cannot be transferred to a different place of safety.
...
10.8.c. Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital.”
30. Extract from Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 November to 1 December 2008:
“148. The CPT also has concerns with respect to the availability of appropriate psychiatric care for persons detained by the police. More than once, members of the CPT’s delegation were told that the behaviour of some detained persons became so erratic that custody officers considered it necessary to tie them naked to a chair in order to prevent any acts of self-harm. Such treatment is clearly unacceptable and should be stopped immediately. In such cases police officers should immediately call a doctor and act in accordance with his instructions. Further, detained persons who display severe psychiatric disorders should be transferred without delay to a mental health facility.
The CPT recommends that immediate steps be taken to ensure that detained persons with mental health disorders, held in police stations, are provided with appropriate care and treatment, until they are transferred to a mental health facility.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-60035
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MIKULIĆ v. CROATIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 8. The applicant is a child born out of wedlock on 25 November 1996. On 30 January 1997 the applicant and her mother filed a civil suit against H.P. before the Zagreb Municipal Court (Općinski sud u Zagrebu) in order to establish paternity.
9. At the hearing on 17 June 1997 the Municipal Court pronounced judgment by default against the defendant. The adoption of such a judgment, however, is expressly prohibited by the Marriage and Family Act (Zakon o braku i porodičnim odnosima – 1977, 1980, 1982, 1984, 1987, 1989, 1990, 1992 and 1999) in “civil-status matters” (statusni sporovi). On 1 July 1997 the defendant appealed against that judgment.
10. At the hearing on 6 October 1997 the Zagreb Municipal Court annulled its own judgment. The next hearing was scheduled for 9 December 1997.
11. Meanwhile, H.P. filed a motion accusing the presiding judge of bias, which was allowed on 27 January 1998 by the President of the Zagreb Municipal Court. Consequently, on 23 February 1998 the case was transferred to another judge.
12. The hearing scheduled for 18 June 1998 was adjourned owing to the absence of H.P.'s counsel.
13. The hearing scheduled for 14 July 1998 was adjourned as H.P.'s counsel had died.
14. At the hearing on 14 October 1998 H.P.'s new counsel argued that the applicant's mother had had relations with persons other than H.P. at the relevant time (exceptio plurium concubentium) and invited the court to summon several witnesses.
15. At the hearing on 21 January 1999 only two witnesses were heard, as the other witnesses failed to appear.
16. At the next hearing on 18 March 1999 the court ordered a DNA blood test. The appointment at the relevant clinic was scheduled for 21 May 1999, but H.P. failed to appear.
17. The next appointment was scheduled for 18 June 1999, but H.P. informed the court that he would be absent from 1 June 1999 until 15 September 1999.
18. On 19 July 1999 the court ordered another appointment for the blood test, which was scheduled for 27 September 1999, but H.P. again failed to appear.
19. On 13 October 1999 the court ordered a fourth appointment, scheduled for 22 October 1999, but H.P. informed the court that he would be absent that day.
20. On 28 November 1999 the court ordered a fifth appointment, scheduled for 6 December 1999, and once again H.P. failed to appear.
21. The next hearing scheduled for 17 February 2000 was adjourned as H.P. did not appear.
22. At the hearing on 29 February 2000 the court heard testimonies from the parties and scheduled the sixth appointment for the DNA tests for 25 April 2000, at which H.P. failed to appear.
23. The next hearing, scheduled for 5 June 2000, was adjourned, as H.P. did not appear.
24. On 12 July 2000 the court concluded the trial.
25. On 3 October 2000 the applicant's counsel received the Municipal Court's judgment of 12 July 2000 establishing the defendant's paternity and granting the applicant maintenance. The first-instance court found that the fact that the defendant had been avoiding DNA tests supported the applicant's claim. On 27 November 2000 H.P. appealed against the judgment.
26. On 3 April 2001 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case for retrial. The appellate court found that the first-instance court had failed to establish all the relevant evidence and that H.P.'s paternity could not have been established primarily on his avoidance of DNA tests. It ordered the first-instance court to hear several witnesses who, as alleged by H.P., had had intimate relationships with the applicant's mother during the critical period.
27. On 15 May and 13 July 2001 the applicant requested the President of the Supreme Court to speed up the proceedings.
28. The hearings scheduled for 26 July and 30 August 2001 in the Zagreb Municipal Court were adjourned because H.P. and his counsel did not appear.
29. At the hearing on 27 September 2001 H.P.'s counsel accused the presiding judge of bias.
30. On 19 November 2001 the court of first instance concluded the trial and gave judgment, establishing the defendant's paternity and granting the applicant maintenance. It found that H.P.'s avoidance of DNA tests corroborated the applicant's mother's testimony that H.P. was the applicant's father.
31. On 7 December 2001 the applicant filed an appeal against the first-instance judgment, objecting to the amount of maintenance H.P. would have to pay her. H.P. also appealed against the judgment.
32. It appears that the proceedings are currently pending before the appellate court.
33. Section 8 of the Civil Procedure Act (Zakon o građanskom postupku – Official Gazette nos. 53/1991, 91/1992 and 112/1999) provides that courts are to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole and taking into consideration the results of the overall proceedings.
34. Section 59(4) of the Constitutional Act on the Constitutional Court (which entered into force on 24 September 1999 – “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
8
VIOLATED_PARAGRAPHS: 6-1
8-1