ITEMID: 001-57618
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF UNIÓN ALIMENTARIA SANDERS S.A. v. SPAIN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: J.A. Carrillo Salcedo
TEXT: 8. Unión Alimentaria Sanders is a limited company in the food industry and has its registered office in Madrid.
9. In 1974, it concluded a contract whereby it would finance the rearing of pigs belonging to it on a farm owned by another company, Linconin SA. In return, Linconin SA was to pay the price of the animals and the administrative costs. Owing to its insolvency, however, it was unable to honour its commitments; and in the meantime it had sold the pigs.
Criminal proceedings were brought against Linconin SA and its directors but were subsequently discontinued following a general amnesty.
10. On 2 May 1979, Unión Alimentaria Sanders SA brought an action in the Barcelona Court of First Instance (juzgado de primera instancia) for payment of the sum it considered was owed to it by Linconin SA and one of its directors, Mrs P. Since it thought the company and Mrs P. to be insolvent, it also brought two actions based on the principle of subrogation against them and three other persons, for the enforcement of contracts for the purchase of land and a farm by the first two defendants and the registration of the purchase in the land register.
11. The case was assigned to the Barcelona Court of First Instance no. 9, which summoned the defendants to appear before it. Only one of these, Mrs B., appeared, however; the others could not be found. Mrs B. raised preliminary objections and submitted observations on the merits.
On 27 November 1980, the court requested the parties to produce their evidence, and this they did from 17 December 1980 to 26 March 1981. Once that was done, it asked them to make their submissions, since they were not seeking a hearing. The applicant company did so on 29 October, and Mrs B. on 12 November.
12. In an order (providencia) of 28 December 1981, the court declared the case ready for decision (declaró los autos conclusos para sentencia). By Article 678 of the Code of Civil Procedure, judgment had to be given within twelve days, or within fifteen days if the file contained more than a thousand items.
13. On 10 July 1983, Unión Alimentaria Sanders SA wrote to the court to complain of a breach of Article 24 para. 2 of the Constitution, which guarantees "the right to a public trial without undue delay (sin dilaciones indebidas) and with all safeguards".
On 21 October 1983, the company applied to the Constitutional Court for a declaration that there had been undue delay in the proceedings in question, an order requiring the trial court to give judgment and a declaration that the applicant company was entitled to compensation for the damage ensuing from the delay. The Constitutional Court dismissed the appeal (recurso de amparo) on 23 January 1985 (see paragraphs 17-19 below).
14. On 17 December 1983, the Court of First Instance no. 9 found partly in favour of the applicant company. It ordered Linconin SA and Mrs P. jointly and severally to pay the plaintiff the sum of 1,852,343.67 pesetas with statutory interest, and two of the defendants who were sued on the principle of subrogation to perform the contract for the sale of certain land and have it entered in the land register. On the other hand, the court dismissed the applicant company’s claims against Mrs B.
In one of the recitals of fact, it acknowledged the delay in giving judgment but gave no reason for it.
15. On 23 December 1983, Unión Alimentaria Sanders SA appealed against the judgment. The file was sent to the Barcelona Court of Appeal (Audiencia Territorial) on 25 April 1984, and in May the case was allocated to the First Civil Chamber of that court.
On 5 June, the applicant company stated that it was ready for the trial; on 10 July, the Court of Appeal held that the defendants had forfeited their right to submit written observations as they had not appeared.
On 13 September 1984, after the file had been studied by the reporting judge, the court declared the case to be ready for trial, without however setting any date for the hearing.
16. A third civil chamber had been established in the meantime, and the case was transferred to it on 27 September 1985, pursuant to a decision of 4 September. On 17 March 1986, it appointed a new reporting judge and set the case down for trial on 6 May.
On 12 May 1986, the Third Civil Chamber partly allowed the applicant company’s appeal and ordered Mrs B. to repay Linconin SA a specified sum paid for the purchase of the land; it upheld the remainder of the judgment of the court below. The appeal court’s judgment was notified to the applicant company by the Court of First Instance on 13 September.
17. During the proceedings in the Court of Appeal, the Constitutional Court was considering the application brought by Unión Alimentaria Sanders SA on 21 October 1983 (see paragraph 13 above).
It declared the application admissible on 30 November and subsequently received observations from Crown Counsel (ministerio fiscal), the applicant company and counsel representing the Government (Abogado del Estado).
Crown Counsel recognised that there had been undue delay, which was not explained by the Court of First Instance, but considered that once the normal course of the trial had been resumed and judgment given, the constitutional appeal no longer had any purpose except to obtain compensation. Counsel for the Government submitted that the case had become devoid of purpose.
18. In its judgment of 23 January 1985 dismissing the appeal, the Constitutional Court first rejected these submissions by Crown Counsel and counsel for the Government and then concluded as follows on the merits:
"... Having reviewed the criteria relating to the complexity of the case and to the conduct of the judicial authorities and the parties, the Court must examine the consequences of the trial for the rights and interests at stake. This is one of the factors to be considered, as has often been pointed out by the European Court of Human Rights (Buchholz judgment). In its claim for compensation, the appellant company has given no indication of any consequences of the delay other than the precautionary entry which, in order to cover itself against the outcome of the trial, it had made [in the land register] against security at the time of the civil proceedings, so as to provide for possible compensation of the defendants if they should succeed at trial. Nothing was said about the practical consequences of the length of the trial for the rights and interests of the plaintiff. The latter confined itself in its submissions to noting the aforementioned effect of the precautionary step provided for in section 42 of the Mortgages Act and ‘non-pecuniary damage’, about which it remained vague. It thus appears that the time factor was not of primary importance in the instant case. Seeing that only court costs and the amount of the security were involved, it does not seem that this case before the Barcelona court merited any priority. If other, more urgent cases were pending, nothing precluded giving them priority and provisionally postponing the decision which is the subject of the present appeal.
Consideration must also be given to what is regarded as the norm in respect of a court’s level of activity and output in the light of the number of cases to be dealt with. This was the factor to which counsel for the Government referred when he set out the position not only of the court which had to deal with the case under appeal but also of the other Barcelona courts dealing with ordinary - and other - cases within their jurisdiction. He stressed the temporary backlog of cases and saw that as one of the reasons for the length of the trial in issue. This Court must consider that factor, just as the European Court of Human Rights has done, which has given judgment, under Article 6 para. 1 (art. 6-1) of the Convention, on delays found to have occurred in different types of trial. The Buchholz judgment may be cited as an example.
The length of an ordinary trial of a case which is complex and much disputed but does not merit any priority must be assessed on the basis of all these factors and in the light of the total time taken up by the trial. Inasmuch as the right to a trial without undue delay is not the same thing as strict compliance with court deadlines and does not necessarily mean that there is no abnormal situation, the delays during the civil proceedings in issue are not sufficient to warrant the conclusion that there has been a breach of Article 24 para. 2 of the Constitution ..." (Boletín de Jurisprudencia Constitucional no. 46, February 1985, p. 152).
19. One of the judges, however, dissented:
"...
In the absence of any justification duly advanced by the trial court, we must ascertain whether or not the dilatoriness of which it is accused amounts to ‘delay’ within the meaning of Article 24. Even accepting the relevance of the criteria adopted in the judgment of this Court, the signatory of this separate opinion does not approve the manner in which they have been applied. The action was brought on 2 May 1979 and judgment given on 17 December 1983. A total duration of more than four and a half years is in principle excessive if we take into account ... the ‘total time taken up by the trial’ and particularly if we remember that the trial court did not indicate to us any special feature of the case justifying such dilatoriness. In the absence of any detailed justification, it is likewise not possible ... to consider ‘what is regarded as the norm in respect of a court’s level of activity and output’. Since normality is what corresponds to the norm and not what departs from it, even if the norm is more often honoured in the breach than in the observance, the traditional slowness of the system of justice cannot be regarded as ‘normal’. Furthermore, if the length of trials were to continue to grow longer, if the failure to comply with the norms of ‘output of the system of justice’ were to become widespread and if such ‘abnormal’, but commonplace, circumstances always had to be taken as a basis for assessing whether or not the right to a trial without undue delay had been respected, the protection of this fundamental right would by that very fact be reduced to nought ..." (ibid., p. 154).
20. On 18 October 1986, Unión Alimentaria Sanders SA applied to the Barcelona Court of First Instance no. 9 for enforcement of the Court of Appeal’s judgment and seizure of the defendants’ assets, which it listed. That application is still pending.
21. In its report for 1982 the General Judicial Council noted that each of the Barcelona courts of first instance had had to deal with an average of 1,800 cases.
The same courts continued to lack judges for periods that recurred more and more often, despite the use of substitutes for urgent matters. This was the case with Court of First Instance no. 9: the judge had to be replaced on several occasions in 1982/83 for health reasons. He retired on 27 July 1983 and his successor was not installed until 21 September 1983. Two months later, however, the new appointee left the post, which again remained vacant. Until 22 February 1984, when the new incumbent took up his duties, the judge of the Barcelona Court of First Instance no. 1, acting as a substitute, dealt with the cases assigned to Court no. 9, and he it was who gave the judgment in the instant case (see paragraph 14 above).
22. Similar difficulties prevailed in the Barcelona Court of Appeal, to the point that the Ombudsman (Defensor del Pueblo) devoted a chapter of his report for 1985 to them. He stressed the large number of complaints about the length of proceedings in the Court of Appeal’s civil chambers and mentioned the inquiry into them which had been instituted (Boletín oficial de las Cortes Generales, 15 September 1986, p. 125).
Between 1981 and 1984 the volume of cases to be dealt with by the two chambers had increased by 62%. Two new judgeships were created in 1983; but as this measure proved inadequate, a new chamber was established in 1985 and cases pending before the other two chambers were transferred to it - 964 from the First Chamber and 586 from the Second Chamber. The parties had to be informed, new reporting judges appointed and a new timetable prepared in order to deal with the backlog of cases, priority being given to the most urgent.
23. In June 1985, the Council (Junta de Gobierno) of the Barcelona Bar launched a campaign to secure an improvement in the system of justice in the city with a manifesto which by January 1986 had already been signed by a thousand lawyers.
24. More generally, in his reports for 1983 and 1984 the Ombudsman drew the attention of the Chamber of Deputies (Congreso de Diputados) to the frequency of complaints about the law’s delays and the difficulty of obtaining enforcement of judgments. In the following year he described the situation as alarming. In his view, the main reasons for it were the shortage of staff and the continual changing of judges.
25. The Spanish State indeed took several relevant steps at national level. An institutional Act of 10 January 1980, for example, established the General Judicial Council, and the Judicature Act of 1 July 1985 reorganised the system. Between the two, a royal decree of 3 July 1981 set up four new courts of first instance in Barcelona, which have been in operation since September 1981; and an Act of 21 May 1982 established new judicial districts there.
Lastly, an Act of 28 December 1988 completely reorganised the administration of justice. Between 1989 and 1992 the number of judges is planned to rise from 2,000 to 3,570. In Barcelona 10 additional courts are to be set up by converting district courts (tribunales de distrito) into courts of first instance, which will increase the number of the latter to 44 by 1992; and the Barcelona Provincial Court should have 64 judges.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-118383
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF ROZHENKO AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Ann Power-Forde;Helena Jäderblom
TEXT: 6. On the dates set out in the appended tables domestic courts delivered judgments according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The judgments became final and enforceable. However, the applicants were unable to obtain the enforcement of the judgments in due time because of State’s failure to comply with these decisions.
7. Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-93113
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SOKOREV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1964 and lives in the village of Bolshaya Rechka, Irkutsk Region.
5. As an employee of a State-owned company, in 1987 the applicant and his family were granted a room in a shared flat. After his dismissal in 1992, the company sought his eviction. In 1993 the company was reincorporated as a limited liability company.
6. On 1 October 1993 the applicant brought proceedings against the company asserting his right to live in the room. According to the Government, the applicant’s claim was received by the Sverdlovskiy District Court of Irkutsk on 12 November 1993. The respondent sought the applicant’s eviction.
7. By a judgment of 1 February 1994, the District Court rejected the applicant’s claim and ordered his eviction. On 13 April 1994 the Irkutsk Regional Court upheld the judgment. The applicant obtained a stay of execution of the eviction order. On 20 June 1994 the Presidium of the Regional Court quashed the above judgments by way of supervisory review and remitted the case for fresh examination.
8. Thereafter the District Court examined the case twice and rendered two judgments. Each time the Regional Court quashed the judgments and remitted the case for fresh examination. It appears that in the meantime the applicant resettled and the respondent company withdrew their claim for eviction.
9. On 5 May 1998 the Convention entered into force in respect of Russia.
10. In yet another round of the resumed proceedings, the applicant confined his claim to asking the court to require the respondent to provide him with housing. By a judgment of 23 November 1998, the District Court granted this claim and ordered the company to provide the applicant with a flat. On 12 March 1999 the Regional Court upheld the judgment. The respondent sought supervisory review. On 12 April 1999 the Presidium of the Regional Court quashed the above judgments by way of supervisory review and remitted the case for re-examination.
11. In the resumed proceedings, the applicant amended his claim and sought to substitute the respondent by the new company. On 2 July 1999 the District Court required the company to provide the applicant with housing. On 1 December 1999 the Regional Court quashed the judgment on appeal and remitted the case for fresh consideration.
12. On 24 April 2000 the District Court issued a new judgment in the applicant’s favour. On 30 June 2000 the Regional Court set aside this judgment on appeal and ordered a new examination of the case. The district judge was on annual leave from 26 July to 5 September 2000. One hearing was adjourned due to the applicant; two hearings were adjourned at the respondent’s request. On 20 February 2001 the District Court dismissed the applicant’s claim. On 23 May 2001 the Regional Court upheld the judgment. The applicant sought supervisory review. On 19 August 2002 the Presidium of the Regional Court quashed the above judgments and remitted the case for fresh examination.
13. Between October 2002 and January 2004 a number of hearings were scheduled and adjourned mostly because the respondent failed to attend or sought adjournments. Several hearings were adjourned because of the applicant. One hearing was adjourned in view of the judge’s illness. By a judgment of 12 February 2004, the District Court rejected the applicant’s claim. On 21 April 2004 the Regional Court upheld the judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-58017
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF FOUCHER v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. Mr Frédéric Foucher, a French national who was born in 1972, lives in Argentan in the Orne département.
7. On 24 July 1991 the applicant and his father were summoned to appear before the Argentan Police Court under the direct committal procedure (Article 531 of the Code of Criminal Procedure - see paragraph 16 below). They were charged with having used insulting and threatening words and behaviour towards public-service employees - two national game and wildlife wardens - on 13 February 1991 in Fontenai-sur-Orne. This offence is classified as a fifth-class minor offence under Article R. 40-2 of the Criminal Code, punishable by a term of imprisonment of between ten days and a month and by a fine of between 2,500 and 5,000 French francs (FRF), or by one of these penalties only.
8. The applicant decided to conduct his own case and his mother went to the police court registry on 25 July 1991 to consult the case file and procure copies of the documents it contained. In a note that same day the Argentan public prosecutor stated that copies could not be issued to individuals except through a lawyer or an insurance company.
On 26 July 1991 the applicant and his father went to the registry for the same purpose. In a second note, dated 26 July, the public prosecutor informed them that copies of official reports could not be issued to individuals.
9. At the police court hearing on 2 October 1991 the applicant and his father argued that the proceedings against them were unlawful. They relied on a breach of Article 6 of the Convention (art. 6) in that they had been denied access to the criminal file and had been refused copies of the documents from the file.
10. In a judgment of 2 October 1991 the police court upheld their submissions and set aside the proceedings against the applicant and his father on the ground that the rights of the defence had been infringed. It declared inadmissible applications by the National Field Sports Board and the two game wardens to join the proceedings as civil parties. It gave the following reasons:
"...
Article 6 (art. 6) of the European Convention on Human Rights provides that everyone charged with a criminal offence has the right, among other things, to be informed in detail of the accusation against him, to have adequate time and facilities for the preparation of his defence, and to defend himself in person. In the instant case the public prosecutor’s office in no way disputed the fact that the defendants were not allowed access to their case file when they requested it prior to the hearing. That the defendants attempted to secure such access is confirmed by two notes of 25 and 26 July 1991, although these documents refer only to the refusal to hand over copies.
The defendants should have been allowed access to their case file in order to prepare their defence. The value of such access is sufficiently demonstrated by the use legal representatives make of it. No discrimination adversely affecting the rights of the defence can be justified by the fact that a defendant prefers to conduct his own defence. Furthermore, however detailed the inquiry into the facts carried out at the hearing is, the defendant cannot be deprived of the opportunity to see and actually to familiarise himself with the documents concerning him.
It follows that the rights of the defence were infringed during the criminal proceedings against Mr Gérard Foucher and Mr Frédéric Foucher and that the proceedings must accordingly be set aside."
11. On 30 October 1991 the public prosecutor’s office and the civil parties appealed against this judgment.
12. On 2 March 1992 a summons was served on the applicant at his home. He did not, however, appear at the hearing in the Caen Court of Appeal on 16 March 1992.
According to him, his mother went to the registry of the Court of Appeal to obtain information on how to gain access to the case file, but met with the registrar’s refusal.
13. In a judgment of 16 March 1992, given after proceedings that were adversarial in the case of the applicant’s father and deemed to have been adversarial in the case of the applicant, the Court of Appeal reversed the judgment of 2 October 1991 and refused the application for the proceedings to be set aside for having violated the rights of the defence. It ruled as follows:
"...
Gérard Foucher [the applicant’s father] has pleaded that the proceedings should be set aside as they are in breach of the rights of the defence.
He argued that he had not had access to the case file in order to prepare an effective defence and that this constituted a violation of the European Convention on Human Rights.
However, although Article [6] (art. 6) of that Convention states that everyone charged with a criminal offence has the right, among other things, to be informed in detail of the nature and cause of the accusation against him, the right to have adequate time and facilities for the preparation of his defence and the right to defend himself in person, the Convention does not require that the case file be made available to the applicant himself.
Moreover, Gérard Foucher was informed, by means of the summons in due form, of the offences with which he was charged and of the legal provisions relating thereto.
Under these circumstances the objection that the proceedings were vitiated fails."
Relying on the official report drawn up on 13 February 1991 by the two game wardens and on the statements made by another hunter, the Court of Appeal fined the applicant and his father FRF 3,000 each for insulting the game wardens.
14. On 10 April 1992 the applicant lodged an appeal on points of law against the judgment of 16 March 1992. In his grounds of appeal, which he drafted himself, he cited Article 6 of the Convention (art. 6). His father did not appeal.
15. On 15 March 1993 the Court of Cassation (Criminal Division) dismissed the applicant’s appeal on the following ground, among others:
"In holding that the European Convention for the Protection of Human Rights and Fundamental Freedoms did not require that the case file be made available to the defendant himself, and that he had been informed, by means of the summons in due form served on him, of the charges against him and the relevant legal provisions, the Court of Appeal did not breach the provisions of that Convention."
16. The relevant Articles of the Code of Criminal Procedure concerning institution of proceedings in the police court and the rules of evidence as regards minor offences are as follows:
"Cases concerning offences within the jurisdiction of the police court shall be brought before it by referral from the investigating authority, by the parties’ voluntary appearance or by the direct committal of the defendant and of the person civilly liable for the offence."
"Minor offences shall be proved by official reports or, where there are no such reports, or in support thereof, by evidence taken from witnesses.
Save where the law provides otherwise, official reports by law-enforcement officers or their deputies, or by public servants responsible for carrying out certain police duties and authorised by law to draw up reports of minor offences, shall be good evidence in the absence of proof to the contrary.
Proof to the contrary must be established by either written or witness evidence."
17. According to the Code of Criminal Procedure, it is only compulsory for a defendant to be represented by a lawyer in the Assize Court (Article 317). In all other criminal courts the person placed under investigation - Law no. 93-2 of 4 January 1993 reforming criminal procedure substituted the expression "mise en examen" (placing under judicial investigation) for "inculpation" (charging) - can choose whether or not to be represented by a lawyer.
18. There are no regulations in the Code of Criminal Procedure governing consultation of the case file or the release of documents to lawyers except in relation to the investigation:
"The case file shall be made available [to lawyers] at least four working days prior to each examination of the person under investigation or each interview with the civil party. Following the first appearance of the person under investigation or the first interview with the party claiming damages the case file shall likewise be made available to lawyers at any time on working days, in so far as this does not interfere with the smooth running of the investigating judge’s office. Pursuant to the final paragraph of Article 80-1, the case file shall be made available to the lawyer, in so far as this does not interfere with the smooth running of the investigating judge’s office, fifteen days after dispatch of the registered letter or after serving of the statement of charges, where a first appearance has not been made in the interim.
Following the first appearance or the first hearing, the parties’ lawyers may request, at their expense, copies of the documents, or parts of documents, in the case file, exclusively for their own use and subject to a ban on copying."
"During this period, the case file shall be lodged with the registry of the Indictment Division and shall be made available to the accused’s counsel and to the civil parties. On a written request, they shall receive copies forthwith, at their expense. These copies may not be made public."
19. In a judgment of 30 June 1995 (Recueil Dalloz Sirey 1995, JP 417) the Court of Cassation (full court) clarified the scope of Article 114, fourth paragraph, of the Code of Criminal Procedure as regards a preliminary inquiry:
"However it is clear from both Article 114, paragraph 4, of the Code of Criminal Procedure, which is not contrary to the provisions of Article 6-3-b of the Convention (art. 6-3-b) already cited, and from Article 160 of the decree of 27 November 1991 governing the lawyers’ profession that, although a lawyer is authorised to receive copies of the investigation file and may examine these in the presence of his client in order to prepare his defence, he may not, on the other hand, entrust his client with these documents which he received `exclusively for his own use’ and which must remain subject to the requirement of confidentiality of the investigation."
20. In police court proceedings, there are no particular rules governing consultation of the case file at the registry. However, the Code of Criminal Procedure has two Articles governing the release of documents to the parties and to others:
"In proceedings relating to serious crimes or major or minor offences, and without prejudice to the provisions of Articles 91 and D.32 (where applicable), the following documents may be released to the parties at their expense:
1. At their request, a copy of the criminal complaint filed by the victim or a third party, `orders that have become final, judgments and fixed penalty and enforcement orders provided for under Article L. 27-1, paragraph 2, of the Highway Code’.
2. With the authorisation of the Public Prosecutor or Principal Public Prosecutor (as applicable), a copy of any of the other documents on the file, including those relating to an inquiry resulting in a decision to take no further action."
"In proceedings relating to serious crimes or major or minor offences, no copy of any document other than judgments, final fixed penalty orders and enforcement orders may be released to any person not party to the proceedings without the authorisation of the Public Prosecutor or the Principal Public Prosecutor (as applicable), including those documents relating to an inquiry resulting in a decision to take no further action.
However, in the cases referred to in this Article and in the previous Article the authorisation of the Principal Public Prosecutor is required where the documents sought have been filed with the court registry or relate to proceedings terminated by a finding that there was no case to answer or to a case which is to be heard in camera.
In the cases referred to in this Article and the previous Article, where authorisation is withheld, the judicial officer concerned shall give notice of his decision in due form and shall state the reasons for his refusal."
21. In a judgment of 12 June 1996 reproduced by the Government in the annex to their memorial the Court of Cassation (full court) gave a new interpretation of the Articles in question, based on Article 6 para. 3 of the Convention (art. 6-3), in relation to proceedings in which the case has already been sent for trial:
"Articles 114 and 197 of the Code of Criminal Procedure, according to which only the parties’ lawyers are entitled to receive a copy of the documents contained in the file of a case under investigation, are not applicable to proceedings where the case has already been sent for trial, which are therefore not subject to the rule of confidentiality of the inquiry or investigation laid down in Article 11 of the same Code.
Everyone charged with a criminal offence thus has the right, under Article 6 para. 3 (art. 6-3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, not to the immediate communication of the documents on the file but to the release, at his expense and, where appropriate, acting through his lawyer, of copies of the documents submitted to the court he has been summoned to appear before.
According to the impugned judgment, René Pascolini was directly committed before the criminal court for misleading advertising;
Having refused the assistance of an officially appointed defence counsel and as he had not been authorised by the public prosecutor’s office to receive a copy of all the evidence in the case file, before putting forward any defence on the merits the defendant raised an objection complaining that the proceedings were vitiated because they were in breach of Article 6 (art. 6) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and asked the trial court to order that he receive a copy of the case file.
The appellate court’s judgment upheld the lower court’s decision and dismissed René Pascolini’s objection and request, both repeated on appeal. Referring to new grounds and to grounds cited from the earlier decision, it stated that it had not been established that failure to issue copies of the documents on the case file to the defendant constituted an infringement of the rights of the defence where lawyers, successively appointed to act for the defendant who had inspected the case file and obtained a copy of it had suggested the defendant consult it in their presence, an offer the latter had declined. It found that the provisions of the Convention cited (art. 6) did not require that the defendant receive a copy of the case file where he could gain access to it through the intermediary of a lawyer. It also stated that the caution observed in issuing copies to the parties could be justified by the ‘requirements of civil liberties and of security’.
However, in ruling in this way and given that the relevant provisions of Article R. 155-2 of the Code of Criminal Procedure, requiring the authorisation of the public prosecutor’s office for the release of copies of the documents on the case file to the parties, may not impede the exercise of the rights of the defence, the Court of Appeal misdirected itself as to the provisions and principles reiterated above.
The judgment should therefore be quashed."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-101458
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF AUNE v. NORWAY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;Remainder inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1976 and lives in Stjørdal. Together with Mr G., she has a son A, who was born on 21 February 1998. From another relationship she also has a son, B (born in 1995). Both children have been in foster care since 1998. The present application relates to a decision of 25 April 2005 by the Southern and Northern Trøndelag County Social Affairs Board (hereinafter “the County Board”) to deprive the applicant and G. of parental responsibilities in respect of A and to authorise his adoption. The proceedings before the County Board had been brought by the child welfare services following an initiative by G.
6. The taking into care of A - first as an emergency measure on 26 August 1998, then on a permanent basis on 29 December 1998 - had been decided on the grounds both of suspicion that he had been subjected to ill-treatment and of his parents' drug abuse problems (a decision by the County Board which Trondheim City Court upheld on 22 September 1999, whilst limiting the applicant's contact with A to four hours four times a year; these measures became final after the applicant had withdrawn her appeal to the Frostating High Court in part due to a worsening of her drug abuse problem). The measure had been taken in light of A's hospitalisation in July 1998, after G. had found him unconscious in his bed and had resuscitated him. A had arrived unconscious at the hospital and had been placed in intensive care. The examinations, in which large amounts of liquid had been found in his brain, had required operations on A involving the placement of a drain in his brain. Suspecting that A had repeatedly been subjected to ill-treatment, the hospital reported both parents to the police. Because of this suspicion and the parents' appearing intoxicated at the hospital, the child welfare authorities were contacted.
7. In view of the state of the evidence, the police subsequently decided to discontinue the investigation in respect of both parents.
8. Although a vulnerable child due to trauma in early life, A developed well in foster care, first with Mr and Mrs R. and then, from October 1999, when he was one year and eight months old, with Mr and Mrs O., whom he considered his psychological parents and with whom he developed particularly strong links.
9. At the same time as A, B was taken into public care and was placed with the applicant's father and his cohabitant partner, who later became his foster parents. They protested against A being placed in a different foster home from his brother.
10. The child welfare services had had contact with the applicant because of concerns about hers and G.'s drug abuse as early as 1996. The extent of the applicant's drug abuse before A's birth was uncertain but, according to her, she had started using heroin after A was taken into care in August 1998. Since 2000 she had spent periods of varying duration in detoxification centres. In the autumn of 2005 she started methadone treatment (medically based rehabilitation). She lived with her mother and received disability benefit, then got a new cohabitant, with whom she set up a renovation business and worked in addition to receiving disability benefit.
11. From the time A was compulsorily taken into care in August 1998 until the autumn of 2003, the applicant attended six of the fifteen visits that had been arranged for her to have contact with A. For approximately a year no visits took place, because of her drug abuse problem. From the autumn of 2003 contact visits resumed and the applicant, with her mother, also spent nights at the foster home. The applicant, her mother and the foster parents agreed that contact functioned very well in 2003. There was also regular access in 2004, including in December 2004 at the farm where the applicant lived. The applicant, her mother and B spent the weekend of 22 to 24 April 2005 at the foster home.
12. On 29 October 2005 the foster parents travelled with A to Trondheim for him to meet B. The applicant was prevented from taking part as she was undergoing detoxification before starting methadone treatment.
13. In its decision of 25 April 2005 to deprive the applicant of her parental responsibilities in respect of A and to authorise his adoption by his foster parents, the County Board gave, inter alia, the following reasons:
“[A.] has been described to the County Board as a boy with many good qualities. He is described as cheerful, sociable, sensitive, imaginative, thoughtful and philosophical. At the same time, he is a boy who has a background that makes him especially vulnerable and with special care needs. It should be noted that [A] was born prematurely and during the first months of his life experienced serious neglect which, inter alia, resulted in his sustaining brain damage. He has several times experienced close relationships being broken up, first having to move from his parents to the emergency foster home and then on to the foster home. [A]'s development in the foster home has been very positive and today his functioning is normal for a person of his age. In his assessment of [A]'s vulnerability, the appointed expert [Z] stated as follows on page 8:
'... Nevertheless, it will continue to be necessary for many years to come to take account of the fact that he is a high-risk child in every area, in other words that he may react more strongly than normal to new pressures and one must expect that his development could be more vulnerable to stress and strain from everyday life. He will therefore continue to need care providers who are more sensible, responsible and loving than would be the case for a normal child.'
Psychologist [Z] expanded on this to the County Board and reiterated his assessment. He considered that [A] had a conditional sense of security, meaning that he functioned well as long as he knew he was safe. [A]'s insecurity manifested itself in the fact that he was concerned about whether or not he would remain with his foster parents. Psychologist [Z] was of the opinion that [A] was unusually concerned with this issue and that he expended energy on keeping this subject at arm's length. His vulnerability to further negative developments meant that he would be continuously dependent on the presence of secure adults who he knew would be there for him. He was dependent on the calm and structure provided by the foster parents.
The expert's assessment has been emphasised by the statements given by the case officer of the Child Welfare Services, the foster parents, the supervisor and a teacher. The descriptions of [A] received by the County Board show that he needs a great deal of calm and predictability and that he is particularly vulnerable to stress. He needs a great deal of time to do things at his own pace. He is a thoughtful and philosophical boy who is absent-minded, remote and dreamy. It is precisely because his character is not superficial that the County Board is concerned about the strain caused by uncertainty about the future. Generally, foster children need reassurance. However, the County Board finds that this is a very prominent feature in [A] and that it takes a form that is harmful to him. The supervisor told the County Board about a contact visit in [X] with his maternal grandfather and [B] at which the foster parents had not been present. [B] had then told [A] that [the applicant] was his mother. Although [A] already knew this, he crept behind a chair and hid. When they returned to T, the foster parents were waiting for them. The supervisor's description of [A]'s reunions with the foster parents was an intense description of the way in which [A] clung to his foster father and how he sought assurances that he would be staying with them. The foster parents had stated that both before and after contact visits, [A] needed constant reassurance that they would always love him and that he would always live with them.
...
In the County Board's assessment, [A]'s need to know that he would always remain in the foster home has not been met to a satisfactory degree. There has been continuous conflict in relation to [A]'s placement. It is understandable that the mother's family should react to the placement. However, the approach used towards [A]'s foster parents have not been in [A]'s best interest. Letters and cards have been written and cooperation between the maternal grandfather and his cohabitant and the foster parents has been strained; it is the County Board's understanding that this conflict is still ongoing, although it is no longer as pronounced. The maternal grandfather and his cohabitant openly express a negative attitude towards the foster parents and have difficulty in appreciating that they are contributing to the conflict. The mother and maternal grandmother have gradually come to work well with the foster parents on the question of contact visits, but express a sceptical attitude towards the foster parents on the subject of contact even when adoption is only a possibility. The County Board also finds that the mother and her family envision the return of [A] in the longer term. The County Board was told that this question had been put on hold. It was impossible for the County Board to elicit an acknowledgment that [A] would remain in the foster home until he reached the age of eighteen.
The County Board's opinion, having heard the evidence, is also supported by [the applicant's lawyer] Mrs Thiis' response of 1 March 2005, from which it is apparent that it is not possible to establish with certainty that the applicant will never be in a position to care for the child. It would be most unsatisfactory for [A] and his foster parents to have this question hanging over them at all times. The County Board finds that the foster parents too must be safeguarded in relation to the unpredictability of what might happen, because A picks up on their uncertainty. He expressed to psychologist [Z] that it was his wish that the foster parents should take all decisions in his life. ...
The County Board considers that [A]'s need for security and secure ties to the foster family are more important than maintaining contact with a father and a mother whose lives are very unstable. There has been no improvement in the circumstances of the lives of the father and the mother over the last seven years. In the assessment of the County Board the foster parents are undoubtedly best placed to make the choices that are right for [A] today and in the future. An adoption would also provide [A.] with the necessary assurance that there would be no future proceedings in relation to returning him to the parents. [A] is a very vulnerable boy who needs the security that the foster home and the environment around it represent for him. This, combined with an open question about future proceedings to return [A], the level of conflict between the mother's family, in particular the maternal grandfather and his cohabitant, and the foster parents and the conflict between [A]'s mother and father, induce the County Board to draw the conclusion that there are strong grounds for granting consent to adoption.”
14. The applicant lodged an appeal against the County Board's decision of 25 April 2005 at Trondheim City Court, which by a judgment of 14 December 2005 upheld the decision.
15. On a further appeal by the applicant the Frostating High Court, sitting with three judges and four lay members, including two psychologists, and after hearing the applicant, G., a representative of the Municipality, expert Z, a guardian representing A and fourteen witnesses, unanimously overturned the City Court's judgment on 3 October 2006.
16. The High Court observed that the removal of parental responsibilities and adoption would entail severing A's ties to his biological origins. These were particularly far-reaching measures that would have irreversible consequences and ought to be supported with strong reasons.
17. The High Court found no reason to doubt that the condition in section 4-20(3)(a) of the Child Welfare Act, that it was probable that the parents would permanently be unable to provide proper care for A, had been fulfilled. The applicant had also conceded that this was the case.
18. Nor did the High Court doubt that the condition in section 4-20(3)(c) had been met, namely that the foster parents were fit to bring up A as their own child.
19. The central issue was whether adoption would be in A's best interest as required by section 4-20(3)(b). Under any circumstance, in order for adoption to be authorised it ought to be in the child's best interest. Moreover, the measure should not be incompatible with Article 8 of the Convention.
20. In this regard, the High Court noted the various factors pertaining to A's attachment to his foster parents and the foster home environment, notably that he had been with his foster parents since he was approximately one year and eight months old, that he considered them as his psychological parents, called them “mama” and “papa”, and that he did not consider himself different because he was a foster child. In the same way as a child would benefit from favourable conditions of upbringing, it would be in A's best interest too to grow up in a well-functioning home such as his foster home. He was also a very vulnerable child with a particular need for foreseeability, framework and structure. These considerations alone suggested that he would benefit from adoption, in that he would be ensured an upbringing under particularly favourable conditions.
21. The High Court observed that A had had contact with his biological family, namely his paternal grandmother and great-grandmother, his mother (“mama Lise”), his brother and his maternal grandmother and grandfather. He knew them well and knew that they were his biological family. In the same way as he had expressed a definite wish to live in the foster home he had stated that he wished to have contact with the applicant and his brother B.
22. The High Court noted that since last year, when the applicant had started methadone treatment, there had been several positive contacts between the applicant, B and A. Previously there had been long interruptions of contact, partly because of the applicant's drug abuse, but also because of a lack of coordination and facilitation on the part of the child welfare services. The fact that, despite this, there had been so many instances of contact, not least in 2004 when five contact visits had been arranged, ought to a large extent be ascribed to the foster parents, who had actively contributed to the facilitation of contact. In 2005 only one meeting with the applicant had taken place. However, while awaiting methadone treatment she had been prescribed the drug Dolcontin. In October 2005 she had been unable to take part in contact visits while undergoing detoxification before starting the methadone treatment. Since last year, the contact visits had been drug free.
23. As regards the Municipality's concern that the applicant and her family, especially her father, had conducted a major battle against the child welfare services and against A's placement in the foster home, the High Court observed the following. The pressure did not subside until the adoption case was opened. According to the Municipality there had been reason to believe that there would be new pressures aimed at the foster parents unless adoption was authorised. The High Court agreed that in so far as the family had acted directly against the foster parents and children, this was blameworthy and an undesirable situation. The High Court had nonetheless based itself on the applicant's statement that, despite her preference that the boys be brought up together, she agreed that A was doing very well in the foster home. She had no wish to change this situation. The High Court found that such an attitude on her part contributed to the creation of a secure environment for A in his care situation. The High Court further found reason to rely on the applicant's statement in court that she to a greater extent than before would be able to confront her father in respect of his initiatives regarding A's placement.
24. The High Court further observed that both the child welfare services and the foster parents regarded it as desirable and positive for A's development that his contact with the applicant and the remainder of his biological family be maintained after any adoption. Before the High Court the foster parents had expressed that they were prepared to allow as much contact as would be natural. The High Court found no reason to doubt this and emphasised that it was largely thanks to them that A had had contact with the biological family at a level which went beyond the minimum.
25. The High Court reiterated that the Supreme Court had on several occasions emphasised that the relationship between the child and its biological parents ought to carry great weight in the wider discretionary assessment. In both of the judgments reported in Norsk Retstidende, 1997534 and Norsk Retstidende, 2001-14, the Supreme Court had concluded, each time by a majority, that adoption should not be authorised. In both cases it had been deemed desirable that contacts between mother and child be maintained.
26. The last-mentioned judgment had contained reasoning which could be transposed to the present case. A had an established attachment to his mother and brother which ought to be continued. The applicant had previously been a heavy drug abuser and had currently started rehabilitation, which according to experience would be long and difficult and involved a risk of relapse. That risk would increase if adoption were to be authorised, especially in the period after such an authorisation. During the year in which the applicant had been drug-free she had developed positively. She currently lived with a cohabitant in their own house; the couple had registered their own company and were working legally in addition to receiving a disability pension.
27. In the first-mentioned judgment it had also been the case that the children had a need for contact with their mother. The Supreme Court majority had held that authorising adoption was questionable in that it would leave it to the adoptive parents to decide on contact. This ruling, the High Court pointed out, had been a clear invitation to consider whether the law should be amended so as to confer a right to contact between children and biological parents after an adoption had been effected without the parents' consent. On this point the High Court quoted the conclusion of Report No. 40 to the Storting [Parliament] in 200 1-2002, point 9.9.3:
“The Ministry of Children and Family Affairs monitors thoroughly any developments regarding these issues and assesses continuously whether there are reasons for amending the Act. In the view of the Ministry, there is nonetheless insufficient basis for making such amendments at present. An adoption under section 4-20 of the Child Care Act is a particularly far-reaching measure and one should be cautious about making amendments that could lead to an increase in the number of such adoptions. In the report referred to it is maintained that authorisation of adoption under the Child Welfare Act should not be granted in cases in which it is considered to be beneficial for the child to maintain contact with his or her biological parents. The Ministry of Children and Family Affairs shares this view and is concerned as to how best to ensure that consent to adoption not be granted where contact with the biological parents is desirable. The Ministry is considering whether guidelines for such situations should be introduced.”
28. In light of the above, the High Court held that as a main rule adoption should not be authorised when continued contact between a child and its biological parents was desirable. The reasons adduced for A's adoption were insufficient to justify a departure being made from this main rule in the instant case.
29. The Municipality, joined by G., appealed to the Supreme Court against the High Court's assessment of the evidence and application of the law.
30. The Supreme Court appointed two experts. Mrs H., a specialist in clinical psychology, submitted a report whilst the other expert withdrew.
31. On 20 April 2007 the Supreme Court unanimously upheld the City Court's judgment, disagreeing with the High Court's interpretation and application of the law.
32. Mrs Justice Coward's reasoning, which the other four Justices on the panel endorsed in the main, could be summarised as follows.
33. It was undisputed that the foster parents fulfilled the condition in section 4-20(3)(c) of the Child Welfare Act that they had been shown to be suited to raise the child as their own.
34. However, unlike before the lower courts, before the Supreme Court the applicant argued that it was not probable that she was permanently unable to provide proper care for A for the purposes of section 4-20(3)(a); she only conceded that the alternative ground for authorising adoption under that provision, namely A's attachment to the foster home, had been fulfilled.
35. In this regard Mrs Justice Coward observed that both parents had a long history of drug abuse problems. The applicant had been on a rehabilitation scheme since October 2005 and had been drug-free during the entire treatment. She had established an individual enterprise with her current cohabitant, had obtained a driving licence and had plans to pursue studies. Despite this positive development, the court-appointed expert had stated a clear opinion to the effect that the applicant was unable to provide A with proper care. Mrs Justice Coward, like the High Court, found no reason to doubt either that the condition of inability to provide care was fulfilled. And G. had at no time alleged that he was capable of providing care for his son. Over the years he had spent several periods in prison for drug offences and violent assault.
36. Mrs Justice Coward found no doubt that the further condition in section 4-20(3)(c), that the foster parents be able to raise A as their own child, had been fulfilled. Only positive remarks had been made about them by the experts and by the lower courts. Nothing had emerged before the Supreme Court which weakened these observations made by the High Court:
“[Mr and Mrs] O. had been described as caring, resourceful, generous and warm people who had a solid network. They had contributed to A's maintaining contact with his biological family. Over the years they had also contributed to contact being arranged beyond the minimum level and ... in connection with [the applicant's] own home at [X]. They had both appeared and given statements before the High Court which bore out the way they had been described by other courts. The High Court relies on their assurances that they love A as their own child, that they only wish the best for him and that as far as they are concerned A should stay with them.”
37. The central issue was whether authorising adoption would be justified in A's best interest (section 4-20(3)(b)). Mrs Justice Coward observed:
“(47) As regards the general meaning of this condition, it has been stated in several Supreme Court judgments that, in order for an authorisation of adoption to be granted against the will of the biological parents, there must be pressing reasons. Moreover, it is clear that the decision must be based on a concrete assessment of the individual case. However, the assessment must also be based on general experience, including experience from research into child psychology or child psychiatry.
(48) The relationship between general experience and special considerations has been discussed in a number of Supreme Court judgments. In its judgment reported in Norsk Retstidende, 1991-557 it held at page 562 that the decision on the deprivation of parental responsibilities
'... must depend on an overall and concrete assessment of the competing interests. Some of these considerations are of a general nature, namely considerations that normally — but to varying degrees — apply in cases of this type, whereas other considerations are particular to the case. In my view, there is only limited scope for drawing up general principles on how these considerations should be balanced against one another.'
(49) In Norsk Retstidende, 2001-14 (23), the Supreme Court held that:
'Thus, it is mainly the general empirical doctrine, that long-term foster relationships are best served by a transition to adoption, that militates in favour of adoption in this case. As a starting point, general assumptions — based on comparative investigations into how foster children who have been adopted have fared in comparison with children who have not been adopted or who have been returned to their biological parents — cannot be entirely decisive in a specific instance. Such general considerations will, to varying degrees, need to be supplemented by specific and individual circumstances. In the present case, such circumstances appear to be present only to a limited extent.'
(50) In my view, no clear distinction can be drawn between general experience and individual considerations: general experience may be formed with greater or lesser degrees of nuance, for example, on the basis of the child's age when placed in the foster home and the duration to date and future duration of the placement. In this case, the expert had stated that according to general experience a foster home was not to be preferred for long-term placement of a child who had come to the foster home before it had established ties to a biological parent; in such instances adoption would offer the best solution for the child's development. In my view, a general but nuanced experience of this nature must carry considerable weight. In any event, individual factors — for or against adoption — must be assessed against general experience.
(51) Moreover, in Norsk Retstidende, 2001-14 (22)— on the basis of the case-law of the European Court of Human Rights — there appears to be a requirement that authorisation of adoption against the will of the parents should be granted only 'in exceptional circumstances'. Reference has in particular been made to the first case of Adele Johansen v. Norway [Johansen v. Norway, 7 August 1996, Reports of Judgments and Decisions 1996 III]. Of course, doubt can be raised about whether such a requirement in fact follows from the case-law of the European Court of Human Rights, inter alia in view of the admissibility decision on 10 October 2002 in the second case of Adele Johansen v. Norway [Johansen v. Norway (dec.) 12750/02, 10.10.2002]. I, at least, find it unclear what such a requirement should entail; a long-term foster home placement would normally occur precisely when the child would be in a situation that would otherwise be characterised as exceptional. In my view, from the case-law of the European Court of Human Rights hardly anything more could be deduced than that an adoption requires particularly weighty reasons.
(52) After adoption, the biological parents would no longer have a legal right to contact. Against this background, the High Court held that as a main rule authorisation for adoption should not be granted if contact with the biological parents is desirable. Particular reference is made to Report No. 40 to the Storting [Parliament] in 200 1-2002, page 145, where a discussion concluded as follows:
'In the report referred to it is maintained that authorisation of adoption under the Child Welfare Act should not be granted in cases in which it is considered to be beneficial for the child to maintain contact with his or her biological parents. The Ministry of Children and Family Affairs shares this view and is concerned as to how best to ensure that consent to adoption not be granted where contact with the biological parents is desirable. The Ministry is considering whether guidelines for such situations should be introduced.'
(53) I attach little weight to this statement. It was not made in connection with the legislative procedure and accordingly has little value as a source of law. Moreover, the statement is lacking in nuance so that it is by no means clear that it is intended to apply to situations in which it is assumed that contact will continue after an adoption. Neither the wording of the Act nor the Supreme Court case-law suggests that adoption should be ruled out if contact with the biological parents is desirable. It is true that in two judgments dealing with issues under the 1992 Child Welfare Act — reported in Norsk Retstidende, 1997- 534 and Norsk Retstidende, 2001-14 — the Supreme Court refused to authorise adoption in two such cases. However, neither of these judgments, which were both rendered with dissenting opinions (3-2), concluded that adoption was precluded in law in such cases. In the 1997 judgment, the majority raised strong doubts as to whether contact would in fact take place after an adoption. The issue of contact was viewed as an element in the overall assessment of the best interests of the child.
(54) As regards the points of departure in law, I am otherwise in agreement with the Municipality that it follows from section 6-3 of the Child Welfare Act and Article 12 of the Convention on the Rights of the Child that the child's own wishes are of importance.
(55) Moreover, it is not clear to me that the case-law under the European Convention on Human Rights makes any contribution to the resolution of a case such as the present one beyond what follows from the case-law of the Norwegian Supreme Court. Decisions in which the European Court has found adoption to be incompatible with the Convention have concerned cases with very little in common with this case. Moreover, the aforementioned admissibility decision in the second Johansen case indicates that the European Court too attaches weight to the child's own wishes and the child's special need for secure and calm conditions to prevail in the foster family.
(56) Having conducted a review of the situation in law, I will now move on to the assessment of the present case.
(57) This case concerns a foster home placement that has already been of considerable duration and is intended to continue for many years, and has no 'connection' in a narrow sense to his biological parents. I refer to the passages quoted from the expert witness's report on the subject of the discussion of [the applicant's] ability to care for the child. The general experience outlined by the court-appointed expert is that in such cases adoption would be better for the child than a continuing foster home arrangement.
(58) That the general experience is also pertinent to our case is in my view apparent from a number of intertwined elements. As a result of what [A] underwent during the first year of his life, he is a vulnerable child. He was born seven weeks prematurely, experienced serious neglect and was severely ill-treated on several occasions to the degree that he sustained cerebral haemorrhage. In addition, he underwent the strains of being moved several times during the early months of his life. He has a need for security, including certainty that he belongs to his foster parents. One problem in this context is that [the applicant's] wish has been that [A] should live with her father and his cohabitant, and there has been considerable unrest around the placement with the foster parents. It is hard to ignore the possibility that the biological family, particularly [A]'s father and his cohabitant, will play a part in creating further unrest around [A] if he is not adopted.
(59) A sense of belonging is important to [A] today and could become even more important to him during his teenage years, when he will have to deal, inter alia, with the fact that his biological parents have been involved in drug abuse and that his father has also been involved in crime. I refer to the court-appointed expert's comments on this point:
'[A] is generally described as a confident child, although I also found him to be rather small and careful. It is worth noting the supervisor's statement that she as a nurse continued to view him as a vulnerable child about whom she was concerned, but that her worries did not materialise for as long as he remained with his foster parents. I share this view: his, in part, dramatic start in life as a premature baby and the subsequent neglect in the care and life-threatening ill-treatment he suffered made him vulnerable, but it is only when he is under pressure that this vulnerability manifests itself. In this context, the identity of the person(s) responsible for the ill-treatment is not of significance. What matters is his experience.
Notwithstanding his current sense of security within the foster family, adoption would offer an extra element of protection. He may well need this in the coming years since, in psychological terms, the teenage years are a period in which early problems and experiences more readily come to the surface and need to he tackled. With time, he would also need to tackle issues of drug abuse and crime. I would also strongly emphasise the importance of absolute emotional security when he is told/becomes aware that his mother and his father were both heavy drug users, that they are on methadone, that he has been exposed to gross ill-treatment and that his parents are suspected of this ill-treatment, and that his father has served a total of over six years in prison. This will need to be integrated in his self- perception/identity.'
(60) The parties disagree about the extent to which [A] himself wishes to be adopted. As has already been noted, the wishes of the child must be an element in the overall assessment of the best interests of the child. It is, of course, not easy for a nine-year-old to grasp the difference between being adopted and being in a foster home. However, [A] had at least said to the court-appointed expert that he wanted his foster parents to decide everything, including when he should see his mother and half-brother, and accordingly that the Child Welfare Services should not have anything to do with the question of contact. And I agree with the expert that in [A]'s situation it might be natural to view this as an expression of a wish to be adopted.
(61) This leads on to the question of contact with the biological family. There is no disagreement that contact is desirable, particularly with [A]'s mother and half-brother. In the event of adoption, the biological parents would no longer have any legal right of contact, and this could militate against adoption, as can be seen above in the discussion of the legal points of departure. However, in the present case the foster parents have granted the biological family contact far beyond their legal entitlement, both in terms of the persons involved and the extent of the contact. In earlier periods, [the applicant] was unable to take part in contact visits. However, the foster parents can of course not be blamed for this. G, who had also been granted contact rights, has not wished to exercise this right as long as his life was burdened by drugs and crime. His mother and grandparents, however, have established a good relationship with the foster parents and keep in contact with them and with [A].
(62) [The applicant] has raised doubts as to whether the foster parents would continue to be open to contact in the event of an adoption. The County Board, the City Court, the High Court and the experts who interviewed the foster parents have been in no doubt that this openness to permitting contact will continue; the City Court found this to be the case 'with great certainty, bordering on absolute certainty'. I agree that this must be accepted and, accordingly, that the fact the legal right to contact will cease to apply in the event of an adoption will not constitute a major factor in the assessment of [A]'s best interests.
(63) Despite this, [the applicant] might feel concern about the question of contact, and [A.]'s adoption would at the very least be emotionally difficult for her. She submitted that this might adversely affect [A]. I consider that this argument against adoption does not outweigh the factors suggesting that adoption would be in [A.]'s best interest. I also refer to [the applicant's] contact person in the methadone project, who stated that she now 'has mature strategies for handling adversity'.
(64) Finally, I would point to the fact that it is apparent that G. is now in favour of [A.]'s being adopted by the foster parents. Both the County Board and the City Court found that this view had been reached after a full assessment of the best interests of the boy, and I see no reason to doubt this.
(65) As will be apparent from the comments above, my view is that the County Board's decision to deprive the parents of parental responsibilities and to authorise adoption ought to be upheld. I will quote the expert's closing remarks on what message society would convey to [A] through the Supreme Court judgment: authorisation to adopt entails 'acknowledging his full right to be the child of his parents':
'A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the Child Welfare Service — the public authorities — and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. His biological parents, who abused drugs and may have exposed him to serious ill-treatment and with whom he has established no ties, continue to be regarded by society as his true parents whose rights must be protected. If the outcome is that authorisation is granted for adoption to proceed, the message communicated to him would be that the injustice he suffered as an infant would be remedied in the only way that remains possible, that is to say by acknowledging his full right to be the child of his parents.'”
38. After the meeting arranged on 29 October 2005 described under sub-heading 2 above, several visits were arranged for the applicant and A to have contact.
39. From 10 to 11 March 2006 the applicant and her mother visited A at Mr and Mrs O's home. On 6 May and 5 August 2006 A visited the applicant, his brother B and members of the applicant's family. From 3 to 4 November 2006 the applicant and B visited A.
40. On 23 March 2007 (which was the correct date according to the applicant) there was a contact visit to celebrate her mother's birthday. From 21 to 22 July 2007 the applicant, her mother and B visited A.
41. From 1 to 2 February 2008 the applicant and B visited A. From 11 to 12 October 2008 A visited the applicant. B and the applicant's mother were also present.
42. Between 3 and 5 April 2009 A went to watch B competing in a cross-country race. Hospitalised due to pregnancy, the applicant was unable to attend. On 2 August 2009 A attended the baptism of his new brother (“C.”, born on 9 May 2009).
43. A has in addition maintained contact with the applicant through telephone calls and SMS messages.
44. Section 4-20 of the Child Welfare Act 1992 (lov om barneverntjenester) provided in relevant parts:
“If the County Board has made a care order, the Board may also decide that the parents shall be deprived of their parental responsibilities. [...]
When an order has been made depriving the parents of parental responsibilities, the County Board may give its consent for a child to be adopted by persons other than the parents.
Such consent may be given if
(a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, it is determined that removing the child may lead to serious problems for him or her and
(b) adoption would be in the child's best interests and
(c) the applicant adoptive parents have been the child's foster parents and have shown themselves fit to bring up the child as their own and
(d) the conditions for adoption under the Adoption Act have been fulfilled.”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-78858
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: VAN DER VELDEN v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Hendrik Jan van der Velden, is a Netherlands national who was born in 1965 and lives in Dordrecht. He was represented before the Court by Mr G. van Buuren, a lawyer practising in Weert.
On 22 April 2003 the Roermond Regional Court (arrondissementsrechtbank) found the applicant guilty of having committed five bank robberies and of having stolen four cars. It convicted him of extortion and theft by means of breaking and entering, and sentenced him to six years’ imprisonment. It further ordered his confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege). In its decision to issue this order, the Regional Court had regard to two reports drawn up by a neuropsychologist and a psychiatrist, according to whom the risk of the applicant reoffending was high.
In view of the applicant’s extortion conviction, and pursuant to section 8 in conjunction with section 2, subsection 1, of the DNA Testing (Convicted Persons) Act (Wet DNA-onderzoek bij veroordeelden; “the Act”), the public prosecutor, on 8 March 2005, ordered that cellular material be taken from the applicant – who was at that time detained in a penitentiary institution in Dordrecht – in order for his DNA profile to be determined. A mouth swab was taken from the applicant on 23 March 2005.
The applicant lodged an objection (verweerschrift) against the decision to have his DNA profile determined and processed, that is, entered into the national DNA database. He submitted that his DNA profile had never played any role in the investigation of the offences of which he had been convicted. Although it was true that he had threatened to use violence, he had never actually done so. He was therefore of the opinion that his DNA profile could not serve any useful purpose in the prevention, detection, prosecution and trial of criminal offences he might have committed. According to the applicant, the determination and storage of his DNA profile amounted to the imposition of an additional penalty after he had already been convicted, and moreover on the basis of a law which was not in force at the time of his conviction. He alleged a breach of Article 7 of the Convention. He further relied on the right to respect for his private life as guaranteed by Article 8 of the Convention, arguing that, even having regard to the interests of public order and of the prevention of crime, there was no strict necessity in his case for the authorities to have his DNA profile at their disposal. Finally, there was no single good reason why the applicant had to be distinguished from other persons in the Netherlands who were not required to have their DNA profile entered into the national database. To this extent there was thus discrimination as prohibited by Article 14 of the Convention.
Having heard the public prosecutor and counsel for the applicant, the Roermond Regional Court dismissed the objection on 21 April 2005. It considered that the exception contained in section 2(1)(b) of the Act (see below) did not apply: the applicant had a lengthy criminal record and two confinement orders imposed on him were still in place. It did not follow from the fact that no DNA profile of the applicant had been drawn up in previous investigations that his DNA could not serve any investigatory interests at the present time. Moreover, it could not be maintained that the risk of the applicant reoffending was so negligible that on that basis the compilation and processing of a DNA profile could not possibly serve any useful purpose.
The Regional Court, noting that at the hearing counsel for the applicant had conceded that the obligation to provide cellular material did not constitute a punishment, considered that the applicant could not successfully rely on the principle of nulla poena sine lege. It further held in this connection that the impugned measure did not place the applicant in a more disadvantageous position than that to which he had exposed himself when he committed a criminal offence, since the seriousness of the intervention (the manner in which cellular material was taken) was not sufficiently burdensome. Although the entry of a DNA profile in a DNA database might lead to a more speedy prosecution of the applicant in respect of criminal offences (to be) committed by him, this did not justify protecting him against a retroactive application of the Act.
The Regional Court was further of the opinion that the impugned order was not in breach of Article 8 of the Convention. The order had been given in accordance with the law and, bearing in mind that the aim of the Act was to be able to solve more crimes and to prevent recidivism as much as possible, it was necessary in the interests of public safety, the prevention of criminal offences and the protection of the rights and freedoms of others.
Finally, the Regional Court found that there was no question of a violation of the principle of equality, since the Act provided that a DNA profile would be compiled of every convicted person who satisfied the criteria laid down in the Act. The applicant was no worse off than a person whose DNA profile was not included in the database, given that the fact that perpetrators of criminal offences could be traced sooner if their DNA profile was contained in the database did not constitute an interest worthy of legal protection, and since neither category were allowed to commit criminal offences.
No appeal lay against this decision.
The statutory maximum prison sentence is nine years for the offence of extortion, and six years for theft by means of breaking and entering (Articles 317 and 311 of the Criminal Code – Wetboek van Strafrecht).
The Criminal Code provides for the following principal penalties (hoofdstraffen): imprisonment, detention, and fine; and for the following additional penalties (bijkomende straffen): deprivation of certain rights, forfeiture, and publication of the court judgment. Furthermore, the following measures (maatregelen) may be imposed pursuant to the Criminal Code: withdrawal from circulation of seized goods, confiscation of illegally obtained advantage, order to pay compensation, committal to a psychiatric hospital, a TBS order (terbeschikkingstelling; see Brand v. the Netherlands, no. 49902/99, §§ 23-24, 11 May 2004), and placement in an institution for persistent offenders.
The DNA Testing (Convicted Persons) Act came into force on 1 February 2005.
Section 2(1) of the Act requires the public prosecutor at the Regional Court that has given judgment at first instance to order a sample of cellular material to be taken from a person who has been convicted of an offence carrying a statutory maximum prison sentence of at least four years. Section 8(1) stipulates that the Act applies to persons on whom a custodial sentence or measure had been imposed at the time when the Act came into force, unless the validity of this sentence or measure had already expired at that time.
According to the explanatory memorandum to the Act (Memorie van Toelichting; Lower House of Parliament, no. 28,685, 2002-03 session, no. 3), the seriousness of the offence(s) involved justified determining and processing a DNA profile of the convicted person in order to contribute to the detection, prosecution and trial of criminal offences committed by him or her and, if possible, to prevent him or her from committing criminal offences again.
Section 2(1)(b) sets out an exception: no order for sample collection will be made if, in view of the nature of the offence or the special circumstances under which it was committed, it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention, detection, prosecution and trial of criminal offences committed by the person in question. It appears from the explanatory memorandum to this provision that the first exception of subsection (1)(b), relating to the nature of the offence, may apply when a person has been convicted of a crime for the resolution of which DNA investigations can play no meaningful role; perjury or forgery, for instance. The second exception, relating to the special circumstances under which the offence was committed, may apply to a convicted person who is highly unlikely to have previously committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in future, for example due to serious physical injury. It may also apply to the case of a woman who has never had any dealings with the law and who, after having been ill-treated by her husband for years, finally inflicts grievous bodily harm on him or kills him.
Section 2(5) of the Act stipulates that DNA profiles are only to be processed for the purpose of the prevention, detection, prosecution and trial of criminal offences. It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by Order in Council (algemene maatregel van bestuur), after the Dutch Data Protection Agency (College Bescherming Persoonsgegevens) has been heard. The rules in question are set out in the DNA (Criminal Cases) Tests Decree (Besluit DNA-onderzoek in strafzaken). It regulates how and by whom samples are to be taken; how they are to be kept, sealed and identified; how and by whom the DNA profile is to be drawn up; and which authorities are allowed to make use of the data stored in the DNA database. The Decree further lays down rules on the duration of the retention of a DNA profile and cellular material. This depends on the offence of which the individual concerned has been convicted. The data of persons convicted of an offence carrying a statutory sentence of six years or more is retained for thirty years. For less serious offences carrying sentences of up to six years, cellular material and DNA profiles may be retained for a maximum period of twenty years.
If execution of the order for the taking of cellular material so requires, the public prosecutor may issue a warrant for the arrest of the individual concerned (section 4(1)). Clothing worn, and objects carried, by the arrested person may be examined if this is necessary for the establishment of his or her identity. For the same purpose, the prosecutor may also order the detention of the arrested person for two periods of six hours each (outside the hours between 12 midnight and 9 a.m.). Once the identity of the arrested convicted person has been established, he or she may be detained for a maximum of six hours in order for the cellular material to be taken (section 4(1), (5) and (6)).
The individual concerned may lodge an objection against the determination and processing of his or her DNA profile with the Regional Court within fourteen days after the sample has been taken or after he or she has been served with the notification, required by section 6(3) of the Act, that sufficient cellular material has been collected for a DNA profile to be determined and processed (section 7(1)).


ITEMID: 001-96741
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HUOLTOASEMA MATTI EURÉN OY AND OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant company has its seat in Nastola and the second and third applicants live in Villähde and Orimattila respectively.
5. The applicant company has operated a service station in Nastola since 1965. The service station is located in the industrial zone of the municipality which is situated in a groundwater basin. The second and third applicants are the only owners of the applicant company.
6. In 1998 new regulations concerning handling and storage of dangerous chemicals (including fuels for motor vehicles) entered into force and service stations needed to comply with these new requirements by 31 December 2002. In order to comply with the new regulations, the applicant company had to undertake some restructuring works.
7. On 1 March 2000 the Environmental Protection Act (ympäristönsuojelulaki, miljöskyddslagen, Act No. 86/2000) entered into force requiring, inter alia, an environmental permit to be held for activities which might cause environmental pollution. As the activities of the applicant company fell within the scope of application of the Act, it applied for an environmental permit for the restructuring works on 8 December 2000. More specifically, the application concerned an environmental permit for enlarging the storage capacity of liquid fuel.
8. On 20 March 2001 the Nastola Environmental Board (ympäristölautakunta, miljönämnden) granted the applicant company the permit and set several conditions for the restructuring works.
9. By letter of 17 April 2001, the Häme Regional Environment Centre (ympäristökeskus, miljöcentralen) appealed against the Board’s decision to the Vaasa Administrative Court (hallinto-oikeus, förvaltningsdomstolen) claiming that, despite the proposed protective measures, there was still a risk that the quality of groundwater could be jeopardised and that the environmental permit should therefore be withdrawn.
10. On 26 October 2001 the Administrative Court rejected the Centre’s appeal but amended one of the conditions for the permit.
11. By a letter of 22 November 2001, the Centre appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal relied on before the Administrative Court.
12. On 11 February 2003 the Supreme Administrative Court quashed the decisions of the Board and the Administrative Court and referred the case back to the Board, ordering it to clarify whether it was possible to eliminate the risk of pollution of groundwater by using more efficient protective measures. The court found that the activity in question was to be compared to a new activity as regards the environmental permit as this was the first time that the effects of the activities on groundwater were being assessed. The environmental permit could not be granted as the applicant company had not shown that the proposed protective measures would eliminate the risk of pollution of the groundwater.
13. On 29 April 2005 the applicant company lodged an amended application for an environmental permit with the Nastola Environmental Board. More specifically, this application concerned an environmental permit for reducing the storage capacity of liquid fuel. On 13 December 2005 the Board decided to grant the permit with several conditions.
14. By letter dated 18 January 2006 the Häme Regional Environment Centre again appealed against the Board’s decision to the Vaasa Administrative Court, claiming that the environmental permit should be withdrawn.
15. On 29 December 2006 the Administrative Court rejected the appeal, considering that sufficient protective measures were included in the permit.
16. By letter dated 29 January 2007 the Centre appealed to the Supreme Administrative Court, reiterating the grounds of appeal relied on before the Administrative Court.
17. On 19 December 2007 the Supreme Administrative Court quashed the decisions of the Board and the Administrative Court. It found that, even though the protective measures proposed by the company diminished the risk of pollution of groundwater, they could not guarantee the protection of groundwater under all circumstances.
18. As the applicant company was refused the permit, it was ordered to close down the service station by 31 December 2008.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87150
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BRAZHNIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Vladimir Dmitriyevich Brazhnikov, is a Russian national who was born in 1946 and lives in Rostov-On-Don. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant accident. In March 1995 a medical board found that, as a result of exposure to radioactive emissions, he had a “category 2” disability.
The applicant brought proceedings against the Military Service Commission of the Rostov Region (Военный Комиссариат Ростовской области – “the Commission”) seeking to obtain compensation for damage to his health.
On 28 January 2000 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant’s claim and obliged the Commission to pay him 368,028.76 Russian roubles (RUB) in respect of arrears for the period from 1 February 1997 to 1 February 2000, and RUB 10,223.02 in respect of monthly compensation for health damage as from 1 February 2000, subject to further indexation.
The Commission did not lodge an ordinary appeal against the above judgment, and it became binding and enforceable ten days later.
In June 2002 the applicant brought proceedings before the court seeking to have his monthly compensation recalculated to take account of inflation.
On 29 July 2002 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant’s claim and obliged the Commission to pay him RUB 327,551.43 in respect of arrears for the period from 1 July 2000 to 1 August 2002, and RUB 27,473.65 in respect of monthly compensation for health damage as from 1 August 2002, subject to further indexation.
The judgment was not appealed against and became binding and enforceable on 8 August 2002.
On 17 February 2003 the Commission requested the court to reconsider the judgment of 29 July 2002. The request read as follows:
“[The applicant] receives [social benefits] in accordance with the Law on social protection of the victims of the Chernobyl nuclear plant accident.
The Law on social protection of the victims of the Chernobyl nuclear plant accident obliges the welfare authorities to index-link the sums in question in accordance with the law.
In view of the newly discovered circumstances related to indexation of [social benefits] in line with the increase of the minimum cost of living, previously unknown to the Commission, ..., [the Commission] requests the court to quash the judgment of the Oktyabrskiy District Court of 29 July 2002 and reconsider the case due to the discovery of new circumstances.”
On 19 February 2003 the Oktyabrskiy District Court of Rostov-on-Don decided to grant the Commission’s request. The court held that when the judgment of 29 July 2002 was pronounced, there was no court practice concerning indexation of sums of compensation for health damage, which had led to an incorrect interpretation of the decision of the Constitutional Court of 19 June 2002. However, in the meantime, on 31 October 2002 the Rostov Regional Court took a decision in another individual case, subsequently upheld on appeal by the Supreme Court of Russia, whereby it determined the mechanism of indexation of social benefits to Chernobyl victims in compliance with the existing legislation. Therefore, in accordance with Articles 392 and 397 of the Code of Civil Procedure, the court quashed the judgment of 29 July 2002 and remitted the case for reconsideration. No appeal lay against this decision.
On 19 February 2003, after the fresh examination of the case, the Oktyabrskiy District Court of Rostov-on-Don partly granted the applicant’s claim and determined that his monthly compensation should amount to RUB 24,922.66 as from 1 March 2003.
On 4 June 2003 the Rostov Regional Court upheld the judgment of 19 February 2003 on appeal.
On 20 January 2005 the applicant lodged an application for supervisory review of the judgment of 19 February 2003, as upheld on appeal on 4 June 2003.
On 29 December 2005 the Presidium of the Rostov Regional Court granted the applicant’s request, quashed the judgment of 19 February 2003, as upheld on appeal on 4 June 2003, by way of supervisory review and remitted the case for a fresh examination. Until the quashing of the judgment of 19 February 2003 the applicant continued to receive his monthly compensation in the amount established by the judgment of 29 July 2002.
As a result of the fresh examination of the case, on 28 August 2006 the Oktyabrskiy District Court of Rostov-on-Don partly granted the applicant’s claim and determined that the applicant’s monthly compensation should amount to RUB 33,000 as from 1 September 2006.
On 13 November 2006 the Rostov Regional Court quashed the above judgment on appeal and remitted the case for a fresh examination.
On 22 December 2006 the Oktyabrskiy District Court of Rostov-on-Don determined that the applicant’s monthly compensation should amount to RUB 54,126.70 as from 1 January 2006. The court also obliged the defendant to pay the applicant RUB 772,454.67 in arrears for the period from 1 January 2002 to 31 December 2005.
On 5 March 2007 the Rostov Regional Court upheld the above judgment on appeal.
The Code of Civil Procedure of the Russian Federation (“the CCivP”), in force as from 1 February 2003, provides as follows:
“1. [Judgments] which have come into force may be re-considered on the basis of newly discovered circumstances.
2. The grounds for reconsideration ... shall be:
1) significant circumstances which were not and could not have been known to the party who applies for reconsideration; ...”
“... [An application for reconsideration of a [judgment] due to the discovery of new circumstances] shall be lodged within three months after the discovery of the circumstances.”
“The time-limit for lodging an application for reconsideration of a [judgment] due to the discovery of new circumstances shall be calculated from the day of the discovery of such circumstances...”
“1. Following the examination of an application for reconsideration of a [judgment] due to the discovery of new circumstances, the court may either grant the application and quash the [judgment], or dismiss the application.
2. The court decision by which an application for reconsideration of a [judgment] due to the discovery of new circumstances is granted shall not be subject to appeal.
3. Provided that a [judgment] is quashed, the case shall be examined in accordance with the rules of this Code.”