ITEMID: 001-61121
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PANTEA v. ROMANIA [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3 on account of ill-treatment;Violation of Art. 3 on account of the lack of an effective investigation;Violation of Art. 5-1 on account of unlawful detention;Violation of Art. 5-1 on account of the fact that the applicant remains in custody after the order expired;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 14. The applicant is a former public prosecutor who now works as a lawyer. He was born in 1947 and lives in Timişoara.
15. During the night of 20 to 21 April 1994 the applicant was involved in an altercation with D.N., who was seriously wounded. According to the report of the medical examination carried out after the incident in question, D.N. sustained several fractures on this occasion, requiring 250 days of medical care. Without appropriate medical treatment, these injuries could have proved life-threatening.
16. By a resolution of 7 June 1994 public prosecutor D. from the prosecution service at the Bihor County Court decided to open a criminal investigation with regard to the applicant.
17. On 7, 14, 16, 23 and 30 June and 5 July 1994 D.N. (the victim) and twenty-one witnesses were interviewed by the prosecution service in connection with the incident.
18. On 23 June 1994 the applicant was questioned by public prosecutor D. on the subject of his altercation with D.N. During this interview the applicant was not assisted by a lawyer.
19. By an order of 5 July 1994 public prosecutor D. instituted criminal proceedings against the applicant and decided that he should be placed in pre-trial detention. He issued a committal warrant against the applicant for a period of thirty days from the date of his arrest by the police. Relying on Article 148, sub-paragraphs (c), (e) and (h), of the Code of Criminal Procedure (“the CCP”), the prosecutor mentioned in his order that the applicant was wanted by the police, whom he was wilfully evading, and that his continued liberty represented a threat to public order.
20. On 13 July 1994, on an application by public prosecutor D., the applicant was committed for trial before the Bihor County Court for attempted homicide, an offence prohibited under the second paragraph of Article 174 of the Criminal Code. The prosecutor stated in his application that he had ordered the applicant’s arrest on the ground that the latter had evaded the criminal proceedings brought against him. The prosecutor pointed out that the applicant had failed to appear for the reconstruction of the events of the night of 20 to 21 April 1994 and had also failed to appear before the prosecution service, which had summoned him to provide a further statement.
21. On 20 July 1994 the applicant was arrested and detained in Oradea Prison.
22. In the medical record established at the time of his imprisonment, the doctor noted that the applicant weighed 99 kg and was suffering from a duodenal ulcer, cholelithiasis and paranoid personality disorder.
23. On 21 July 1994, pursuant to Article 152 of the CCP, the applicant, assisted by a lawyer of his choice, was brought before Judge M.V., Section President at the Bihor County Court. At a private hearing the judge informed the applicant that the prosecution service had decided that he should be committed for trial, and read him the prosecution’s submissions word for word. On this occasion, when questioned about a statement he had made to the prosecution service, the applicant complained that the prosecutor had not allowed him to write the statement himself, arguing that it was late and that he did not have time. The applicant also complained that he had been “terrorised” by the prosecutor, who had made him wait for two days in the corridor of the prosecution service, threatening not to record his statement and to have him arrested. Finally, he stressed that he had responded to the prosecution service’s summonses and had not evaded criminal proceedings. It does not appear from the verbatim record of the hearing that the issue of the lawfulness of the applicant’s detention was discussed or that Judge M.V. considered it on 21 July 1994.
24. On 5 September 1994 the applicant appeared for the first time before the Bihor County Court, sitting with two judges. In the presence of public prosecutor K.L. and two lawyers of his choice, the applicant asked that the charges brought against him be amended to assault causing grievous bodily harm and pleaded self-defence. It does not appear from the verbatim record of the hearing that the issue of the lawfulness of the applicant’s detention was discussed or that the bench considered it on 5 September 1994.
25. Other hearings were held before the Bihor County Court on 3 and 17 October and 14 November 1994, at which the court, sitting in the same composition and in the presence of the same public prosecutor K.L., the applicant and his lawyers, heard evidence from fifteen or so witnesses. It does not appear from the verbatim records of the hearings of 3 and 17 October and 14 November 1994 that the issue of the lawfulness of the applicant’s detention was examined.
26. The court delivered its judgment on 28 November 1994. It stated that the investigation carried out by the prosecution service had been incomplete and sent the file to the Bihor County Prosecution Service for additional investigative measures. In addition, the court decided to prolong the applicant’s pre-trial detention, considering that, given the gravity of the offence, there was a risk that he would commit other crimes.
27. On 9 December 1994 the applicant appealed against this judgment. He alleged a lack of impartiality on the part of public prosecutor D., who, since the beginning of the investigation, had deprived him of his fundamental defence rights and had violated the presumption of innocence by describing him as a “habitual offender” although he had never previously been convicted. The applicant also expressed his fear that, were his pre-trial detention to continue, he was likely to be the target of further misuse of authority by public prosecutor D. and be subjected to ill-treatment by prisoners. Further alleging the unlawfulness of his detention, he requested his release and an urgent examination of his appeal. With regard to substantive issues, he also requested that the charge against him be amended to assault causing grievous bodily harm and that he be acquitted.
28. On 16 February 1995, at a public hearing before the Oradea Court of Appeal attended by an officially appointed lawyer representing the applicant, the prosecution service requested an adjournment in order to be able to summon the applicant. This request was allowed by the Court of Appeal, which set the date of the next hearing for 6 April 1995.
29. On that date, the Oradea Court of Appeal raised of its own motion and submitted to the parties for comment the issue of the lawfulness of the steps taken in the criminal proceedings against the applicant, including the prosecutor’s application, having regard to the fact that he had not been assisted by a lawyer while being interviewed by the prosecution service and that he had not been given notice of the official record of the end of the investigation. By a final judgment delivered on the same date the Court of Appeal allowed the applicant’s appeal and quashed the part of the judgment of 28 November 1994 concerning his continued pre-trial detention for the following reasons.
(i) It ruled that the applicant’s arrest on 20 July 1994 had been unlawful. In this connection, it stressed that the applicant had not evaded criminal proceedings but had complied with every summons from the prosecution service, and that the prosecutor had in fact left him to wait in vain in the corridor.
(ii) It further considered that the applicant’s detention after 19 August 1994 had been unlawful. In this regard, it noted that an arrest warrant had been issued against the applicant on 5 July 1994, to run for a period of thirty days from the date of his arrest, and that he had been apprehended on 20 July 1994. The court noted that this period had expired on 19 August 1994 and that the measure to maintain the applicant in pre-trial detention had not subsequently been prolonged in accordance with a procedure prescribed by law.
(iii) It also noted that the applicant’s right to be assisted by a lawyer had been violated by the prosecutor responsible for the investigation and that the prosecution service had failed to draw up an official record of the end of the investigation, in violation of Article 171 of the CCP.
Accordingly the Court of Appeal ordered the applicant’s release and quashed all the procedural steps taken by the prosecution service, including its application, and returned the case file to the prosecution service for resumption of the investigation.
30. On 7 April 1995 the applicant was released.
...
38. By an application of 16 April 1997 the applicant was committed for trial before the Beiuş Court of First Instance on a charge of assault causing grievous bodily harm, an offence prohibited under the first paragraph of Article 182 of the Criminal Code. The prosecution service granted the applicant the extenuating circumstance provided for in Article 73, sub-paragraph (b), of the Criminal Code, namely that the offence had been committed under the influence of the strong emotion which he would have experienced when the victim threw a brick towards him.
...
43. By a decision of 12 December 1997 the Supreme Court of Justice allowed the applicant’s request and referred the case to the Craiova Court of First Instance.
...
55. By a judgment of 12 May 1999 the court sentenced the applicant to 262 days’ imprisonment for serious violence committed under the influence of emotion, an offence punishable under the first paragraph of Article 181 of the Criminal Code.
56. On 18 May and 3 June 1999 respectively the applicant and the victim appealed against this judgment.
...
61. By a decision of 13 March 2000 the Dolj County Court upheld the judgment delivered by the Craiova Court of First Instance on 12 May 1999 (see paragraph 55 above).
...
66. By a judgment of 13 September 2000 the Craiova Court of Appeal allowed the applicant’s appeal and quashed in its entirety the judgment of 12 March 1999 of the Craiova Court of First Instance, together with the Dolj County Court’s decision of 13 March 2000. The Court of Appeal found that, bearing in mind the prosecution’s application and the evidence in the file, the lower courts had convicted the applicant without establishing a causal link between the applicant’s actions in respect of the victim and the latter’s injuries. Accordingly, it sent the case back to the Craiova Court of First Instance for a fresh examination of the merits.
...
72. According to the information available to the Court, the case is still pending before the Craiova Court of First Instance. The Court has no further information regarding any procedural steps taken since 17 May 2001.
...
142. On 18 November 1999 the applicant instituted civil proceedings against the State, represented by the Directorate-General of Public Finances, in the Timiş County Court. Relying on Articles 504 and 505 of the CCP, taken together and as interpreted by a decision of the Constitutional Court dated 10 March 1998, and on Article 5 §§ 1 to 5 of the Convention, he requested 2,000,000,000 Romanian lei as compensation for his pre-trial detention from 5 July 1994 to 6 April 1995, which had been ruled improper and unlawful by the final decision of 6 April 1995 (see paragraph 29 above). In particular, he asserted that during the period in issue he had experienced assaults resulting in multiple cranial and costal fractures.
143. By a judgment of 7 July 2000 the court dismissed the applicant’s action on the ground that it was premature, in that the proceedings brought against him were still pending before the national courts.
144. By a decision of 23 November 2000 the Timişoara Court of Appeal allowed the applicant’s appeal and, quashing the judgment of 7 July 2000, sent the case back to the same court for a new judgment. The Court of Appeal held that the damages claimed by the applicant were related to his detention, which had been ruled unlawful, and that consequently the fact that the criminal proceedings against the applicant were still pending was irrelevant to the case in issue. The Court of Appeal concluded that the first-instance court had been wrong to dismiss the applicant’s action on the ground that it was premature.
145. On a date which has not been specified proceedings resumed before the Timiş County Court. At the hearing on 30 March 2001 the State asked the court to dismiss the applicant’s action since the limitation period had expired. It noted that, under the second paragraph of Article 504 of the CCP, an action for damages could be brought within one year of the date on which the final decision to acquit or discontinue proceedings was delivered. Further, it considered that in the present case this period had begun on 26 November 1996, the date on which the Oradea Court of Appeal’s decision of 6 April 1995, finding that the applicant’s pre-trial detention had been unlawful, had become final. It submitted that the applicant had brought his action on 18 November 1999, almost three years after the date of the decision in his favour.
The applicant raised an objection alleging the unconstitutionality of the second paragraphs of Articles 504 and 505 of the CCP and asked that the case be referred to the Constitutional Court.
146. By an interlocutory decision of 27 April 2001 the court referred the case to the Constitutional Court for a decision on the objection raised by the applicant.
147. On 20 September 2001 the Constitutional Court allowed the limb of the objection concerning the second paragraph of Article 504 of the CCP, ruling that this provision was unconstitutional in so far as it limited the cases in which the State’s liability for miscarriages of justice in criminal proceedings could be engaged.
However, the Constitutional Court dismissed the plea of unconstitutionality with regard to the second paragraph of Article 505 of the CCP as follows:
“Neither the constitutional rules in force nor the international treaties to which Romania is a party guarantee that there is to be no limitation on the right of persons who have been wronged by unlawful detention to bring an action for the damage they have sustained, nor do these rules or treaties guarantee a prescribed time-limit within which this right may be exercised. ... The time-limit of one year provided for in the second paragraph of Article 505 of the Code of Criminal Procedure is a reasonable period of limitation on the right to bring proceedings and guarantees the injured party the best possible conditions for bringing an action to obtain full reparation.”
148. By a judgment of 18 January 2002 the Timiş County Court dismissed the applicant’s action on the ground of limitation. It held that in the present case the limitation period of one year provided for in the second paragraph of Article 505 of the CCP had begun on 26 November 1996, the date on which the Oradea Court of Appeal’s decision finding that the applicant’s pre-trial detention had been unlawful had become final. The applicant’s action having been brought on 18 November 1999, the court held that it was out of time.
149. Although this judgment could have been appealed, the applicant did not use this remedy since he considered that, given the contradictory decisions of the national courts, he had no prospect of success. Accordingly, the judgment of 18 January 2002 became final and could no longer be challenged by ordinary appeal.
150. The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide:
“In cases concerning offences which are punishable by a prison sentence, and in order to ensure the proper conduct of the criminal trial and prevent the suspect or accused from evading criminal proceedings ..., one of the following preventative measures may be taken against him or her:
...
(c) pre-trial detention.
The measure provided for in (c) may be ordered by the prosecutor or by a court.”
“The legal instrument by which an interim measure is adopted must list the facts which gave rise to the charges, their legal basis, the sentence provided for in the legislation concerning the offence in question and the specific reasons which determined the adoption of the interim measure.”
“The authority responsible for criminal proceedings may detain a person in police custody if there is cogent direct or indirect evidence that he or she has committed an offence prohibited by the criminal law.
...
Cogent evidence exists where, in , the person who is subject to criminal proceedings may be suspected of having committed the alleged offences.”
“Where the requirements of Article 143 are met, and in one of the cases provided for in Article 148, the prosecutor may, of his or her own motion or at the request of the prosecuting authority, order that the suspect be placed in pre-trial detention by a reasoned order indicating the legal grounds for such detention, for a period not exceeding five days.
...”
“Pre-trial detention of the accused may be ordered [by the prosecutor] where the requirements set out in Article 143 are met and if one of the following conditions is satisfied:
...
(h) the accused has committed an offence for which the law prescribes a prison sentence of more than two years and his or her continued liberty would constitute a threat to public order.
...”
“The length of pre-trial detention of the accused [ordered by the prosecution service] may not exceed one month, except where it is prolonged in accordance with a procedure prescribed by law. ...
...”
“...
Where the accused’s arrest was ordered in his or her absence, the committal warrant shall be transmitted ... to the police authority for enforcement.
The police authority shall apprehend the person whose name appears on the warrant ... and bring him or her before the authority which issued the warrant.
Where the committal warrant was issued by the prosecutor, the latter shall note on the warrant the date on which the accused was brought before him, shall interview him or her immediately and then rule by resolution on whether the accused should be placed in pre-trial detention. If the case has been referred to the court in the interim the prosecutor shall send the arrested person to the court.
The president of the court shall hear the accused and, if he or she raises objections which require a rapid solution, immediately set a date for a hearing.”
“Where necessary, pre-trial detention of the accused may be extended if reasons are given.
Extension of pre-trial detention may be ordered by the trial court ...”
“The trial court shall be presided over by the president of the court or a judge appointed by him or her; the prosecutor’s participation is compulsory.
The investigation file shall be lodged [at the court] by the prosecutor at least two days prior to the hearing and may be consulted by the lawyer on request.
The accused shall be brought before the court, assisted by a lawyer.
...
If the court grants extension [of the detention], such extension may not exceed thirty days.
...
The prosecutor or the accused may appeal against the interlocutory decision by which the court decides on extension of the pre-trial detention. The time-limit for an appeal shall be three days, starting from delivery of the judgment for those who are present and, for those who are not present, from the date of notification. An appeal against a decision to extend pre-trial detention has no suspensive effect ...
... The court may grant further extensions of pre-trial detention, but none of these may exceed thirty days.”
“...
In cases where the accused is arrested, the court is obliged of its own motion and at the first hearing to confirm the lawfulness of the adoption and prolongation of the detention measure [against the accused].”
151. The relevant Articles of the CCP state:
“Anyone who has been finally convicted is entitled to compensation from the State for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that the offence was not committed.
Anyone against whom a preventative measure has been taken, and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for damage sustained.
...”
“...
The claim [for compensation] must be lodged within one year of the date of the final acquittal or order discontinuing the proceedings.”
“For the awarding of compensation, the person concerned may apply to the court in his or her place of residence by instituting proceedings against the State ...”
152. In a decision of 10 March 1998 the Romanian Constitutional Court, to which an objection had been submitted alleging that the first paragraph of Article 504 of the CCP was unconstitutional, ruled as follows:
“Under Article 48 of the Constitution, the State is liable for damage caused by miscarriages of justice committed in criminal proceedings. It follows that the principle of the State’s liability with regard to persons who have been victims of a miscarriage of justice in a criminal trial must be applied to all victims of such a miscarriage. ... The Court notes that the legislature has not brought the provisions of Article 504 of the Code of Criminal Procedure into conformity with those of Article 48 § 3 of the Constitution. ... Consequently, bearing in mind that Article 504 of the Code of Criminal Procedure provides for only two cases in which the State’s responsibility for miscarriages of justice committed in criminal proceedings may be engaged, it follows that this restriction is unconstitutional, since Article 48 § 3 of the Constitution does not allow for any such limitation.”
153. The relevant parts of Article 1000 of the Civil Code read as follows:
“...
Masters and principals [shall be liable] for damage caused by their servants and agents in the exercise of the duties entrusted to them.
...”
...
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
5-5
6-1
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-23702
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BURG and OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Brigitte Burg, Régine Baumann, Véronique Gafanesch, Evelyne Pirro, Jean-Michel Plas and Dalila Bouherrou, are French nationals who were born in 1963, 1959, 1956, 1955, 1949 and 1961 respectively and live in Mulhouse, Flaxlanden, Rixheim, Ruelisheim and Illzach. They were represented before the Court by Mr F. Gaston, a lawyer practising in Poitiers.
On 21 September 1995 the applicants applied to an employment tribunal in a dispute between themselves and their employer, contesting the grade in which they had been placed under an additional clause modifying a workplace agreement.
On 29 April 1997 the employment tribunal gave judgment in their favour.
On 24 June 1997 their employer appealed. On 16 December 1999 the Colmar Court of Appeal varied the first-instance judgment.
On 26 March 2002 the Employment Division of the Court of Cassation dismissed an appeal on a point of law lodged by the applicants, ruling that their ground of appeal was “not such as to warrant admitting the appeal”, thus applying Article L. 131-6 of the Code of Judicial Organisation, as amended by Law no. 2001-539 of 25 June 2001, which had introduced a special procedure for the consideration of appeals on points of law.
The relevant part of Article L. 131-6 of the Code of Judicial Organisation, as amended by Law no. 2001-539 of 25 June 2001, provides:
“After pleadings have been filed cases before a civil division shall be tried by a bench of three judges of the division to which they have been assigned.
The bench shall refuse to admit appeals which are inadmissible or not founded on a serious ground of cassation.”


ITEMID: 001-71988
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MIHAILOVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
JUDGES: Christos Rozakis;Georgieva
TEXT: 7. The applicant was born in 1975 and lives in Dobrich. She married in June 1994 and in November 1995 gave birth to a girl.
8. In 2000 the applicant instituted divorce proceedings. On 14 July 2000 the spouses separated. The applicant moved out of the apartment where the family used to live. Thereafter, she lived in her sister's apartment in Dobrich but also spent time in the nearby village Z., where her boyfriend lived.
9. The applicant's husband also moved out after the separation and returned to his parents' house.
10. Ever since the spouses' separation in July 2000, the applicant's daughter lived with her father and his parents who looked after her but she also spent short periods of time with the applicant. In particular, during the summer she spent one week in Z., where the applicant, her boyfriend and his parents looked after her. The child visited the applicant again, in Z. and in her apartment in Dobrich. The frequency of those meetings is unknown.
11. On an unspecified date in 2000 the applicant's husband brought an action against her seeking alimony payments for the upbringing of their daughter. By judgment of 24 November 2000 the Dobrich District Court ordered the applicant to pay alimony.
12. On 18 April 2001 the Dobrich District Court pronounced the couple's divorce. The court approved the parties' agreement according to which the applicant would have custody of their daughter but the child would remain with her father until 24 May 2001 since she attended an elementary school in the area of the father's home. The agreement further stated that the child would move in with the applicant at 8 a.m. on 25 May 2001. Thereafter, the father would take the child to his home every second weekend and also for five or six weeks per year during three or four holiday periods. The father undertook to pay alimony.
13. In the following weeks the applicant saw her child often and spent time with her, including in the village Z. According to Mrs N., a psychiatrist who held therapeutic sessions with the child in June and July 2001, the father's report that the child had returned tense and worried from some of those meetings was plausible since the child had been frustrated from the fact that her wish to be with both parents and to have all her mother's attention and affection had not realised.
14. On 25 May 2001 an argument erupted when the applicant, accompanied by her boyfriend and her lawyer, came to collect her daughter. The child was terrorised and refused to leave. It appears that from that moment on, all meetings between the applicant and her daughter were very short and often in the presence of other persons.
15. On 29 May 2001 the applicant instituted enforcement proceedings before the Dobrich District Court.
16. On 25 June 2001 the enforcement judge sent a summons to the applicant's former husband inviting him to appear on 28 June 2001. The summons was not served for reasons which are unclear. In a statement made later, the enforcement judge stated that the father was hiding.
17. On an unspecified date the enforcement judge appointed medical experts to examine the child.
18. On 25 June 2001 the applicant complained about the inactivity of the enforcement judge. On 28 June 2001 the Dobrich Regional Court examined the applicant's appeal against delays in the enforcement proceedings and found that there had been unjustified delays. In particular, insufficient efforts had been made to summon the father. Apparently implying that the failure to serve the summons was difficult to understand, the Dobrich Regional Court remarked that the mother of the applicant's former husband, in whose house the child lived with her father, worked as clerical staff of the Dobrich District Court. The court ordered the enforcement judge to speed up the proceedings.
19. On 28 June 2001 the enforcement judge invited a representative of the social services in Dobrich to attend the hearings in the enforcement proceedings. On 3 July 2001 the applicant wrote to the social services seeking their assistance and asking them to establish the circumstances in which her daughter lived with her father. That prompted an inquiry by Mr K., an employee of the social services, which were also in charge of matters of protection of children. Mr K. conducted an inquiry into the conditions in which the applicant's daughter lived and the social circumstances of the applicant and on 5 July 2001 drew up a report. Mr K. stated in his report that, inter alia, the applicant lived with her sister and their father in Dobrich in a four-room apartment in good conditions. At that time the applicant had been a student in a school for medical personnel. During the summer months she worked in her boyfriend's restaurant in the village Z. Mr K. also described as good the conditions in the father's home, where the child lived. As to the child, Mr K. had spoken with her and had learned that she wanted to live with both parents or with her father but also wanted to see her mother often. She did not want to live in the village Z.
20. On 13 July 2001 the enforcement judge attempted again to summon the father for 20 July 2001. The officer responsible for serving the summons was given two addresses for the respondent father. However, the officer noted that the father could not be located at either address and, according to a neighbour, had left on holidays.
21. The applicant filed another appeal against the delays in the enforcement proceedings which was examined on 25 July 2001 by the Dobrich Regional Court. The court found that insufficient efforts had been made to locate the respondent and that attempts should be made to summon him at his place of work.
22. On 26 July 2001 an attempt was made to serve a summons on the respondent father ordering him to appear on 30 July 2001. For that purpose, two court officers and a police officer visited three addresses indicated by the applicant including her former husband's workplace. It was established that he was on holidays until 1 August 2001.
23. On 7 August 2001 the father was eventually found at his address and summoned to appear before the enforcement judge to transfer the custody of the child on 23 August 2001.
24. In June and July 2001 the applicant sent several complaints to the local prosecutor, to the police and other institutions seeking assistance and police protection for her daughter. The police replied that the case did not fall within the scope of the regulations on police protection of children as there was no indication that the child had disappeared or was in danger. On 6 July 2001 the applicant's former husband received a police warning to comply with his obligation to transfer the custody of the child. In July and August 2001, upon the applicant's complaints that the father was hiding, the local prosecuting office conducted an inquiry. The father, his parents and the applicant were questioned and visits were made to their homes. On 18 August 2001 the prosecutor refused to open criminal proceedings. On an unspecified date the mother of the applicant's former husband complained to the local prosecutor that the applicant's lawyer had repeatedly disturbed them in their home and had used offensive language. On 6 July 2001 the applicant's lawyer received a police warning to abstain from threatening the family of the applicant's former husband. According to statements made later by persons involved in the proceedings, offensive remarks and groundless allegations were not uncommon in the complaints submitted by the parties.
25. On 7 August 2001 the applicant's former husband submitted to the enforcement judge a request that Mrs N., a psychiatrist who had monitored his daughter's health, be present during the transfer of custody on 23 August 2001. He enclosed a certificate dated 1 August 2001 issued by the psychiatrist. Mrs N. had seen the child in June and July 2001 as the father had noted that his daughter had become nervous, had no appetite, could not sleep well, tended to remain alone and cried. That was apparently caused by the changes in the child's life as a result of her separation from “part of her family circle”. Having held therapeutic sessions with the child, the psychiatrist stated that an improvement was noted. However, the psychiatrist considered that it was essential to avoid future situations which could cause psychological trauma.
26. On 16 and 17 August 2001 the applicant requested further psychiatric examinations of the child. She also stated that a paediatrician and Mr. K., the employee of the local social service who had previously seen her daughter, should also be present during the transfer of custody on 23 August 2001.
27. On 23 August 2001 the enforcement judge heard the applicant, her former husband, the child, Mrs N., Mr K. and the parties' lawyers. The applicant was asked to leave when the child was being heard.
28. According to the minutes, the child stated that she wanted to be with her mother, but also wanted to be with her father and preferred to stay with her father and to pay visits to her mother.
29. Mrs N., the psychiatrist, stated that the child needed to spend more time with her mother and that favourable conditions had to be created so as to avoid any traumatic incidents for the child, who was suffering as a result of the conflict between her parents. The child needed to receive more affectionate attention from her mother. Changes in the child's home and school environment could be dangerous. Mrs N. also expressed the view that the child was not sufficiently prepared for the transfer of custody and should not be forced.
30. Mr K, the social services employee, stated that the child was not at risk with her father. She enjoyed a good social environment and her situation would continue to be monitored by the social services.
31. The father's lawyer stated that an assessment should be made of the applicant's ability to provide satisfactory conditions for her daughter.
32. The enforcement judge instructed Mrs N. and Mr K. to provide additional information in writing before 30 August 2001 and adjourned the proceedings.
33. On 24 and 27 August 2001 the applicant complained to the health authorities about Mrs N., to the social services about Mr K., to the police about her former husband and to the District Court about the enforcement judge. The applicant alleged that her daughter's expressed reluctance to come with her had been the result of psychological manipulation and the administration of drugs on her by the enforcement judge and other persons. In her view, the enforcement judge should have immediately proceeded to handing the child to her. The applicant also filed a formal appeal against the adjournment of the proceedings and requested the recusal of the enforcement judge.
34. On 27 August 2001 Mr K. submitted a written opinion in which he stated that in his view the child, despite her low age, had grown to understand that her parents had separated and had formed a clear opinion in favour of staying with her father. She also wanted to see her mother more often. Mr K. also confirmed that the child lived in good conditions with her father and grandparents.
35. On 29 August 2001 Mrs N., the psychiatrist, filed additional assessments. She stated, inter alia, that the child's condition improved as she gradually adjusted to the circumstances. However, it was of utmost importance that the parents maintained better relations, which would allow a possibility for the child to see her mother more often. The child needed her mother's care and affection. At the same time any changes in the child's environment must be very carefully prepared.
36. On 11 September 2001 the applicant complained about the delay in the enforcement proceedings.
37. On 17 September 2001 the Dobrich Regional Court found that there were no undue delays in the proceedings in August and September 2001.
38. During the relevant period the applicant made several visits to her daughter's elementary school. In her submission, she could not see her daughter at the home of her former husband as he had threatening behaviour and did not allow normal contacts. His parents allegedly used offensive language against her. According to statements made by the applicant's former husband before the relevant authorities, the applicant seldom sought contact with her daughter, was unable to demonstrate affection for her and tried to achieve the enforcement of the court order through legal means only, as a result of which the child was repeatedly confronted with representatives of the authorities and with the applicant's lawyer and thus suffered stressful situations.
39. On 27 September 2001 the applicant and her lawyer visited the elementary school attended by the applicant's daughter, with the apparent intention to collect her. The applicant's daughter started crying and explained to the teacher that she did not want to go. The applicant was upset by her daughter's reaction. On 5 October 2001 the applicant's former husband complained to the prosecution authorities and to the local Bar against the behaviour of the applicant's lawyer, who had allegedly made repeated visits to his daughter's school and had insisted that the child be given to the applicant. In his written opinion given later, Mr K., the social service employee who worked on the applicant's case, stated that the presence of the applicant's lawyer and the applicant's boyfriend had negative effect on the meetings between the applicant and her daughter.
40. It appears that an attempt to summon the applicant's former husband at the end of September or the beginning of October 2001 was unsuccessful.
41. In mid-October 2001 a hearing in the enforcement proceedings was scheduled for 29 November 2001. The applicant complained, stating that this long delay was unnecessary.
42. On 29 November 2001 the applicant, her former husband, their daughter, their lawyers, two employees of the child protection service and a police officer appeared before the enforcement judge. Apparently with the aim to put pressure to bear on the authorities, the applicant invited journalists from the local television station and the press who came with their cameras.
43. The judge spoke to the child and told her that she would live with her mother. The child stated that she did not want to go with her mother and, according to testimony given later by Mr K., one of the social service employees, uttered rude words at her. Thereupon, the judge decided that the applicant should be left alone with her daughter for an hour. When the hearing resumed the child still refused to go. The social service employees expressed the view that there was no valid reason why the applicant should not have the custody of her daughter. The enforcement judge decided that the applicant could take her daughter home in execution of the custody agreement. The hearing was closed.
44. As the parties walked out of the courtroom, the applicant's former husband grabbed the child and ran away. A police officer who was present did not intervene.
45. The applicant complained to the prosecution authorities about the enforcement judge and the police. By decisions of 15 and 18 February 2002 they refused to open criminal proceedings.
46. On 6 December 2001 the applicant complained to the Dobrich Regional Court that the father had taken the child away.
47. Upon the applicant's request, the enforcement judge renewed the efforts to transfer the custody of the applicant's daughter to her. On 7 February 2002 the Dobrich District Court issued directions regarding the enforcement proceedings. On an unspecified date the applicant's former husband appealed against the acts of the enforcement judge, arguing that the proceedings should be terminated as the custody of the child had already been transferred on 29 November 2001. On 26 July 2002 the Dobrich District Court dismissed the appeal, considering that the enforcement proceedings could continue as the father had unlawfully taken his daughter away from her mother.
48. On 17 December 2001 the applicant's former husband instituted proceedings before the Dobrich District Court for a revision of the custody and contact measures, seeking the custody of his daughter (see the chronology of those proceedings in paragraphs 62-69 below).
49. He also requested a stay in the enforcement proceedings. On 10 January 2002 that request was refused on grounds that a stay of execution would constitute a de facto partial revision of the custody measures while any decision on the matter had to cover all relevant aspects, including contact arrangements. The court also stated that the execution of the April 2001 custody agreement would not prejudge the matter or otherwise impede the execution of any custody order that may be issued in the revision proceedings.
50. Apparently in reaction to the applicant's complaints against several judges, on an unspecified date all of the enforcement judges at the Dobrich District Court withdrew from the case, which was then transmitted to the Balchik District Court.
51. Upon the applicant's complaints to the Child Protection Agency and in reaction to other complaints concerning other persons, on 8 February 2002, the Agency appointed a three-member commission to examine the work of the local agencies in Dobrich and Rousse. The commission conducted meetings with several persons and examined documentary material. On an unspecified date in March 2002 it delivered a report in which it stated, inter alia, that in the applicant's case Mr K., the local social service employee, had only had two meetings with the child, that his conversations with the parents had not been documented, that a psychologist had never met the child and that more could be done to facilitate the enforcement of the judicial order on the custody of the child. The commission further stated that the delays in the enforcement proceedings had complicated and exacerbated the situation. The commission recommended, inter alia, the elaboration of a plan for meetings between the child and the parents in the presence of a social service employee and more active involvement of the agency employees in the efforts to facilitate the enforcement of the judicial order, including issuing directions to the father in case of non-compliance on his part.
52. In May 2002 the applicant complained that the custody agreement had not been enforced and that the recommendations of the Child Protection Agency had not been followed.
53. On an unspecified date the enforcement proceedings were transferred to the Kavarna District Court. A hearing was listed for 22 May 2002. The applicant was busy with her studies and was unable to attend. The case was adjourned until 20 June 2002.
54. On 20 June 2002 the applicant and her former husband appeared before the enforcement judge. As the father had not brought the child, the parties and the enforcement judge went to the father's home. The judge, the applicant and the child had a conversation. The child refused to follow her mother. On the same day the judge imposed a fine of 30 Bulgarian levs (“BGN”) on the father on the ground that he had failed to abide by his obligation to prepare the child for the transfer of custody. The father was instructed to do so before 2 July 2002.
55. On unspecified dates the enforcement judge imposed additional fines on the applicant's former husband for failure to abide by a final judgment. The total amount of the fines was BGN 200 (approximately 100 euros). On 9 July 2002 the applicant complained to the Regional Court that the fine had not been enforced. On an unspecified date the applicant's former husband appealed against the fine stating, inter alia, that the applicant had been unavailable for several months which had impeded the preparation of the child for the transfer.
56. The enforcement judge listed a hearing for 2 September 2002, with the purpose to effect the transfer of custody. The father and the child did not appear. The judge adjourned the matter. On 5 September 2002 the applicant complained of delays in the proceedings.
57. The enforcement judge scheduled the transfer of custody for 20 September 2002. The applicant's former husband did not comply. On 1 October 2002 he was ordered to pay another fine of BGN 200.
58. On 2 October 2002 the applicant's former husband reported to the local social services that his daughter did not want to live with her mother and stated that he would not force her. On 10 October 2002 the social service conducted an inquiry and recommended that it was in the interest of the child to see her mother more often.
59. During the relevant period the applicant saw her daughter several times when she visited her at her elementary school. In the applicant's submission, since the beginning of 2002 she has been prevented from seeing her daughter or speaking to her on the telephone. In his submissions to the relevant authorities, the applicant's former husband repeatedly stated that the applicant was calling seldom and did not come to see her daughter. In its judgment of 16 January 2004 (see paragraph 67 below) the Dobrich Dstrict Court, having heard several witnesses and examined documentary material, including all complaints submitted by the parties to various authorities and the files opened by the prosecuting authorities, found that the applicant had sought contacts with her daughter, but that her allegation that her former husband had prevented those contacts was groundless. The tense relations between the parents had been the main obstacle to normal contacts between the applicant and her daughter.
60. On 3 February 2003 the applicant wrote to the District Prosecutor stating that on 30 January 2003 she had visited her daughter at her school, whereupon her former husband had appeared, shouting offensive expressions. He had hit her and threatened to batter her if she continued seeing their daughter. On 11 February 2003 the applicant's former husband was summoned by the police and was ordered to cease obstructing the exercise of the applicant's parental rights.
61. On 11 February 2003 the applicant requested the assistance of the social services for securing her right to meet her daughter. A meeting was organised on 19 February 2003 between the applicant and her daughter in the presence of Mr K., employee of the social service, at the premises of the social service. The meeting ended at the request of the child.
62. On 17 December 2001 the applicant's former husband instituted proceedings under Article 106 § 5 of the Family Code before the Dobrich District Court for a revision of the custody and contact measures, seeking the custody of his daughter. A judge at the District Court in Dobrich examined the file on 18 December 2001 and scheduled a hearing for 4 March 2002.
63. The hearings listed for 4 March, 17 May and 27 September 2002 could not proceed as the applicant had not been summoned properly. She had not been found at her address in Dobrich. The attempts to notify the summons to her at the address of her boyfriend in the village Z., where she apparently moved in December 2001, were also unsuccessful. The lawyer of the applicant's former husband alleged that the mayor of the village obstructed the efforts to summon the applicant.
64. The first hearing was held on 11 November 2002. The applicant sought a stay of the proceedings pending the outcome of her application to the European Court of Human Rights. That was refused. The court commissioned a report on the child's living conditions at his father's place and the applicant's living conditions. The next hearing was listed for 24 January 2003.
65. In January 2003 the social services in Dobrich submitted to the District Court their report on the parents' living conditions. At the hearing on 24 January 2003 the court admitted the report and other evidence. The hearing was adjourned until 31 March 2003 to allow the examination of witnesses.
66. On 31 March 2003 the court heard several witnesses and decided to commission a report on the child's psychological state, sensitivities and attitude towards her parents. The report was submitted to the court in July 2003. The court held a hearing on 28 July 2003. The psychologists who had drawn up the report and an employee of the social services were heard. The last hearing in the case was held on 13 October 2003.
67. By judgment of 16 January 2004 the Dobrich District Court revised the custody measures as agreed upon by the parties in 2001 and granted the custody of the child to the applicant's former husband. The applicant was granted the right to take her daughter home every second weekend and for five weeks during three holiday periods.
68. The judgment contained detailed reasoning. The court noted that in accordance with Article 106 § 5 of the Family Code a change of circumstances could justify a revision of the custody and contact measures and examined all events since April 2001. The court stated that the custody dispute had to be decided primarily on the basis of the best interest of the child. It noted that according to the report of the psychologists, the child had suffered distress as a result of her separation from her mother but had stabilised with the passage of time. She loved her mother, did not express negative attitudes towards her and it was in her interest to see her more often and to restore normal contacts with her. However, the child felt safe and well in her current environment, where her father and her grandparents looked after her. She developed well and was offered good living conditions. A new change of environment would have a negative effect on the child's development. The court further took into consideration that the child had repeatedly expressed her preference for staying with her father. The court rejected as unproven the applicant's allegation that the father had been aggressive and had prevented the applicant from seeing her daughter. The main obstacle to the contacts between the applicant and her daughter had been the extremely tense relations between the parents who had filed numerous complaints against each other. That atmosphere was harmful for the child.
69. On appeal, on an unspecified date in 2004 the Dobrich Regional Court upheld the District Court's judgment. The applicant filed an appeal on points of law. As of December 2004 the case was pending before the Supreme Court of Cassation.
70. The Code of Civil Procedure 1952, which governs, inter alia, execution of final judgments, does not contain provisions setting out rules specifically applicable to transfer of custody of children.
71. In 1962, the Supreme Court set out several guiding principles in its interpretative decree No. 4 (462PPVS). According to these principles, the enforcement judge should organise the physical transfer of custody without delay but should act with care and seek where necessary the assistance of local social services. The interests of the child are paramount. The child should not be coerced but should be prepared for the change so as to avoid psychological trauma. Each case must be treated on an individual basis, with due regard to the child's age, personal circumstances and emotional links with his or her parents. All possible methods of persuasion must be exhausted. Parents should be warned that refusal to co-operate may result in a modification of custody and contact orders. Police assistance should be used as a last resort, and only where the interests of the child require immediate execution. In exceptional cases, where the custody order has not been enforced for a long time and the relevant circumstances have changed, the enforcement judge may adjourn the case and propose to the competent court to re-examine the custody order. In cases where a parent's refusal to comply constitutes a criminal offence, the matter should be referred to the prosecution authorities.
72. An enforcement judge has no power to order preparatory meetings, provisional contact arrangements or other measures with a view to achieve transfer of child custody if they are not provided for expressly in the judicial decision to be enforced. A parent considering that a change of circumstances requires a revision of the custody and contact measures fixed in a judicial decision may bring proceedings under Article 106 § 5 of the Family Code for revision of custody and contact measures. In such proceedings all relevant matters may be decided, including the use of the family home (Decision No. 1225 of 23.12.1993 in case 544/93, Supreme Court, II Chamber).
73. In September 2003 an amendment to the Code of Civil Procedure (new Article 423a) provided that in child custody cases the enforcement judge should apply the provisions concerning execution of orders to fulfil a particular act (Article 421 et seq.). According to those provisions, the only possible method of coercion is the imposition of fines on the debtor. It appears that in practice the guiding principles set out in Interpretative Decree No. 4 of 1962 are considered still valid after September 2003.
74. The Child Protection Act, in force since June 2000, empowers the Child Protection Agency and local social services to act in situations of children whose wellbeing is under threat or whose rights are violated. The Agency has supervisory functions, whereas the local social services are in charge of concrete cases. In cases of children at risk, the social services may seek police protection for the child and initiate proceedings with a view to placing the child with a foster family or into public care. Social service employees take part in all judicial proceedings affecting children's rights, in defence of the child's interest. In all cases where the child's rights are at stake, the social services may intervene through measures such as counselling and assistance and may also issue binding directions (section 21 § 1 (3) of the Act). It appears, however, that there is no practice of issuing binding directions by the social services on questions relating to the enforcement of child custody judgments. It is considered that in such matters the judicial authorities are in charge. The social services have no power to order preparatory meetings or provisional contact arrangements that are not provided for expressly in a judicial decision.
75. Failure to abide by a final decision concerning custody of children may be punishable under Article 182 of the Penal Code.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-57910
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF HIRO BALANI v. SPAIN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 6. Mrs Rita Hiro Balani was at the material time an Indian national; she subsequently obtained Spanish nationality. She lives in Madrid.
7. In 1985 the Japanese company "Orient Watch Co. Ltd" - which specialised in the manufacture and distribution of clocks - filed an application in the Madrid no. 8 First-Instance Court for the removal of the Spanish trade mark "Orient H.W. Balani Málaga" (no. 544.606) from the industrial property register. The trade mark in question concerned "all types of clocks" and had been registered by the applicant’s husband in 1970. It had at a later stage been transferred to her name. The plaintiff company claimed that, by virtue of the Paris Convention (see paragraph 14 below), the registration in Japan in 1951 of its trade name had conferred on it the ownership of that designation in all the countries which were parties to that Convention - including Spain - and therefore protected it from the subsequent lodging of any identical or similar trade mark.
8. Mrs Hiro Balani adduced several submissions to contest the application. They were based on the following considerations:
1. The period of three years within which the cancellation of trade mark no. 544.606 could have been sought had expired and the trade mark was consequently "established".
2. Any action was time-barred.
3. The trade name relied on by the plaintiff company was not a genuine one.
4. A trade mark "Creacions Orient", for imitation articles, that had been registered in 1934 under no. 97.541 and transferred to the applicant’s name in 1984, had priority.
9. By a judgment dated 9 May 1988, the Madrid Audiencia Territorial, the court with jurisdiction for this type of dispute (see paragraph 15 below), accepted the contention that Mrs Hiro Balani’s mark was "established" and dismissed the plaintiff’s application. It did not rule on the merits of the applicant’s other submissions.
10. The plaintiff company appealed on points of law. In a judgment of 30 April 1990 the Supreme Court (Tribunal Supremo) held that the contested trade mark was not "established" because its registration was void and quashed the decision of the Audiencia Territorial. Giving a ruling on the merits of the dispute (see paragraph 18 below), the Supreme Court expressly rejected the submissions based on the allegedly non-genuine character of the trading name and the general time bar and allowed the application. However, it made no reference to the applicant’s submission that the trade mark "Creacions Orient", registered in Spain in 1934, should have priority over the trading name "Orient" registered in Japan in 1951.
11. The applicant filed an amparo appeal (see paragraph 19 below) in the Constitutional Court (Tribunal Constitucional). It was declared inadmissible on 29 October 1990 on the ground that the various complaints adduced did not raise constitutional issues. On the matter of the submission relating to the priority of the trade mark "Creacions Orient", the Constitutional Court expressed the following view:
"... as this issue was not put forward as a ground of appeal, the Chamber [of the Supreme Court] could hardly be expected to address it directly. Moreover, there is extensive case-law from this Court to the effect that the Constitution does not require courts to give a specific reply to all the arguments of the parties but only their claims. In the instant case [the applicant’s] submission was rejected when the appeal on points of law filed by the plaintiff against the first-instance judgment was allowed."
As decisions of the Constitutional Court finding an appeal inadmissible may be reconsidered only on an application by State counsel, a further appeal lodged by Mrs Hiro Balani was likewise declared inadmissible on 8 November 1990.
12. The rules governing trade marks and trade names which were in force at the material time were set out in the Industrial Property Regulation (Estatuto de la Propiedad Industrial, "EPI") of 26 July 1929, approved by the Royal Legislative Decree of 30 April 1930. The enactment in 1988 of a new law on trade marks did not affect the applicability of that regulation to the facts of the present case.
13. The registration in Spain of a trade mark or a trade name confers on its holder standing to bring proceedings in the civil and criminal courts against those who infringe his right (Articles 6 and 7 EPI). The priority of rights deriving from a trade mark or a trade name takes effect from the filing of the application for registration in the industrial property register (Article 12 EPI).
The holder of a registered trade name has the same rights as those conferred on the holder of a trade mark (Article 207 EPI). He may, inter alia, seek the removal from the register of any mark (Article 268 EPI) whose similarity with the trade name might give rise to an error or create confusion in the market (Article 124 para. 1 EPI). In order to make such a finding of incompatibility, the court will examine not only the phonetic or graphic similarity of the two competing designations; it will also consider whether the protected products belong to the same commercial sector.
14. The Paris Convention for the protection of industrial property of 20 March 1883, as amended in Stockholm on 14 July 1967 - which version was ratified by Spain on 13 December 1971 -, provides that a trade name registered in one of the countries of the Union is to be protected in all the other countries of the Union without necessity of deposit or registration (Article 8). Since such a trade name is entitled to the same protection as if it had been registered in Spain, its holder may seek the removal from the register of any Spanish mark registered after the trade name in question and incompatible with it.
15. Article 270 EPI makes provision for a special procedure for applying for the removal of a trade mark from the official register. The first-instance court prepares the file and transmits it to the Audiencia Territorial, which seeks the opinion of the legal department of the industrial property register and holds a hearing.
16. Judgments given at first instance by the Audiencia Territorial concerning the removal of trade marks from the register may be challenged only by an appeal on points of law to the Supreme Court (Article 270 para. 12 EPI).
The complaints concerning the impugned judgment must be expressed in the form of grounds for cassation (motivos de casación - Article 1707 of the Code of Civil Procedure), of which there are a limited number, for instance failure to comply with essential procedural requirements and violation of the law (Article 1692, nos. 3 and 4 of the Code of Civil Procedure).
17. Argument is presented on the submissions declared admissible, at a public hearing if all the parties so request or if the court considers it necessary. The respondent may appear and plead for the dismissal of the appeal and the confirmation of the impugned judgment (Articles 1711 in fine and 1713 of the Code of Civil Procedure).
18. Except in respect of purely formal or procedural matters, the Chamber which allows an appeal submission does not merely quash the judgment. It must rule on the merits of the case, taking account of all the arguments adduced by the parties in the course of the proceedings (Article 1715 para. 1, third paragraph, of the Code of Civil Procedure).
19. Under Article 120 para. 3 of the Constitution, "judgments shall always contain a statement of the grounds on which they are based and be delivered in public". As an aspect of the effective protection of individuals by the judiciary and the courts, recognised as a fundamental right by Article 24 para. 1 of the Constitution, the obligation to state the reasons for judicial decisions may be the subject of an individual appeal to the Constitutional Court (recurso de amparo).
20. According to Article 359 of the Code of Civil Procedure:
"Judgments must be clear and precise and must address specifically the applications and other claims made in the course of the proceedings; they must find for or against the defendant and rule on all the disputed points which have been the subject of argument.
Such points must be dealt with separately in the judgment."
When a court gives a decision on the merits it must therefore rule on all the submissions adduced by the parties, otherwise the judgment will be flawed for failure to give an adequate statement of the grounds (incongruencia omisiva). However, according to the case-law, the court is not under a duty to deal expressly in its judgment with each of the submissions made by the parties where its decision to allow one of the claims entails by implication the rejection of the submission in question.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108588
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SZERDAHELYI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 7. The applicant was born in 1943 and lived in Budapest.
8. On 24 November 2006 the applicant announced, as required by the Assembly Act 1989, to the Budapest Police Department his intention to organise a demonstration on 9 December 2006 on Kossuth Square in Budapest, in front of Parliament.
9. On 26 November 2006 the Budapest Police Department refused to deal with the application. It observed that on 23 October 2006 the area in question had been declared, by the Police Department itself and for an indefinite period of time, a “security operational zone” (biztonsági műveleti terület), in view of the tumultuous events in Budapest in September 2006. It was as such outside the Police Department’s jurisdiction as regards the prohibition of, or acquiescence in, a demonstration. On 6 December 2006 the Budapest Regional Court dismissed the applicant’s request for judicial review, observing in essence that no decision on the merits of the case had ever been adopted by the administrative authorities – which excluded such a review.
10. On 11 December 2006 the Deputy Head of the National Police Department dismissed the applicant’s further complaint. On 19 December 2006 the applicant filed an action with the Budapest Regional Court, challenging the decisions of both 23 October and 11 December 2006.
11. On 11 January 2007 the Head of Budapest Police dismissed the applicant’s renewed complaint. On 12 February 2007 the Deputy Head of the National Police Department partly reversed this decision and instructed the Budapest Police Department to substitute the indefinite measure in question with one of definite duration. On 5 March 2007 the Regional Court dismissed the applicant’s ensuing action, essentially endorsing the police authorities’ earlier reasoning. It pointed out that the proceedings only concerned the police’s decision on non-competence and did not constitute review of the police’s original decision declaring Kossuth Square a “security operational zone”.
12. Upon a further complaint, on 18 March 2008 the Regional Court quashed the decisions of 11 January and 12 February 2007 and remitted the case to the National Police Department. In reaction to the applicant’s petition for review, on 29 April 2009 the Supreme Court quashed the decision of 18 March 2008 and remitted the case to the Regional Court. The latter’s procedure was then interrupted on 1 October 2009 on account of the applicant’s death. The applicant’s son and heir joined the proceedings as successor on 25 August 2011.
13. The Government submitted that the subject matter of the litigation pending before the Regional Court was the police’s original decision declaring Kossuth Square a “security operational zone”.
14. In another case concerning the same area, on 29 January 2007 a Mr K. challenged the police’s very decision to declare Kossuth Square a “security operational zone”. On 14 March 2007 the Budapest Police Commander rejected his complaint, but this decision was quashed by the National Commander on 16 April 2007. In the resumed administrative proceedings, on 22 June 2007 the Budapest Commander again rejected the complaint. On 19 July 2007 the National Commander upheld this decision. Mr K. challenged this ruling in court.
15. Mr K.’s action was dismissed by the Budapest Regional Court. However, on appeal the Supreme Court quashed this decision, together with the one of 19 July 2007.
16. In the resumed second-instance administrative proceedings, on 23 December 2009 the National Commander again upheld the Budapest Commander’s decision. Mr K. requested judicial review.
17. On 11 November 2010 the Regional Court quashed, in judgment no. 27.K.31.354/2010/9., both the first- and the second-instance administrative decisions and remitted the case to the Budapest Commander. The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “security operational zone” after the prolongation of 22 November 2006. Nor did they address the plaintiff’s suggestion that the mere fencing-off of Parliament’s immediate vicinity – rather than the global ban on Kossuth Square – would have been sufficient in the circumstances.
18. In the resumed first-instance administrative proceedings, on 4 April 2011 the Budapest Commander partly sustained Mr K.’s complaint, noting that, in the absence of evidence to the contrary, the proportionality of the impugned measure had successfully been challenged.
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1