ITEMID: 001-61799
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF L. v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 7. The applicant was born in 1975 and lives in Breda. He had a relationship with Ms B. from mid-1993. On 14 April 1995 a daughter, named A., was born to Ms B. and the applicant.
8. Pursuant to Article 1:287 § 1 of the Civil Code (Burgerlijk Wetboek), as then in force, Ms B. obtained guardianship (voogdij) of A. The applicant was appointed as A.’s auxiliary guardian (toeziend voogd) on 19 May 1995 by the Enschede District Court judge (kantonrechter). The applicant’s auxiliary guardianship ended on 2 November 1995, when an amendment to the Civil Code came into force abolishing that function.
9. The applicant and Ms B. did not formally cohabit, but the applicant visited her and A. on a regular basis. He also babysat and took care of A. on several occasions. Ms B. sometimes consulted the applicant about A.’s hearing problems. The applicant did not formally recognise (erkenning) A., as Ms B. refused to give her permission and her family also opposed such recognition. Although the applicant could have sought judicial consent for recognising A. (see paragraph 17 below), he did not avail himself of this possibility, considering that it would stand little chance of success. Moreover, the applicant preferred to respect the position adopted by Ms B. and her relatives, and maintain the de facto family ties he had with his daughter rather than establish formal legal ties with her.
10. In August 1996 the applicant’s relationship with Ms B. broke down. On 23 January 1997 the applicant requested the Almelo Regional Court (arrondissementsrechtbank) to grant him access (omgangsregeling) to A. one weekend every fortnight and some weeks during the holiday period. In those proceedings Ms B. argued primarily that the applicant’s request should be declared inadmissible in that there had never been any family life within the meaning of Article 8 of the Convention between the applicant and A. and, in so far as family life had existed, it had ceased to exist after the end of her relationship with the applicant. In the alternative, Ms B. argued that to grant the applicant access would not be in A.’s interests. Ms B. further submitted that the applicant had behaved badly towards her (violence and financial abuse) and had shown little interest in A. She indicated, lastly, that A.’s hearing was impaired and that her daughter thus required a special approach of which she deemed the applicant incapable.
11. By a decision of 26 February 1997, the Almelo Regional Court accepted that there was family life within the meaning of Article 8 of the Convention between the applicant and A., and that this family life had not ceased to exist since the breakdown of the applicant’s relationship with Ms B. It consequently declared the applicant’s request admissible. However, given the difficulties between the applicant and Ms B., the Regional Court decided to order the Child Care and Protection Board (Raad voor de Kinderbescherming) to conduct an investigation and to report to it on the feasibility of an access arrangement.
12. Ms B. filed an appeal against this decision with the Arnhem Court of Appeal (gerechtshof). By a decision of 16 September 1997, the Court of Appeal quashed the decision of 26 February 1997 and declared the applicant’s request inadmissible. In its decision, the Court of Appeal stated:
“3.1 Out of the parties’ relationship (lasting from mid-1993 to August 1996), A. was born. Mr L. is the biological father of A. He has not recognised the child. The mother holds parental authority over A. by law.
...
4.5 In addition to what is stated under 3.1, the following, as contended by one side, and not, or insufficiently, disputed by the other, has been established or become plausible.
The father was present at A.’s birth. He has never been formally registered at the mother’s address, but (up to August 1996) regularly visited the mother. He has also changed A.’s nappy a few times [enkele malen] and has babysat her once or twice [een enkele keer], but not since August 1996. Further, the mother has on several occasions [verschillende keren] had contact by telephone with the father about (the hearing problems of) A.
4.6 In the light of the above facts and circumstances, it has been insufficiently established that the father has a close personal relationship with the child – who at the time of the breakdown of the parties’ relationship was one year old – or that there is a link between him and the child that can be regarded as ‘family life’ within the meaning of Article 8 of the Convention. The further circumstances relied on by the father, from which it would appear that he has a close personal relationship with the child, have – in contrast to the substantiated denial thereof by the mother – not been established. The terminology used by the mother in the proceedings (she spoke about ‘a relationship until October 1996’ and ‘my ex-partner’) cannot, either in itself or in connection with the above circumstances, lead to a different conclusion.
...
5.1 On the basis of the above considerations, the impugned decision is quashed, and the father’s request is declared inadmissible.”
13. The applicant’s subsequent appeal on points of law was dismissed by the Supreme Court (Hoge Raad) on 5 June 1998. The Supreme Court rejected the argument that the mere biological link between the applicant and A. was sufficient to attract the protection of Article 8 of the Convention. It held that “family life” for the purposes of Article 8 implied the existence of further personal ties in addition to biological paternity. As to the lack of existence of such further personal ties, it accepted the findings of the Court of Appeal.
14. A child born out of wedlock had the status of the natural child of its mother. It became the natural child of its father after being recognised by the latter – the “father”, for the purposes of this provision, being the man who recognised the child, whether he was the biological father or not (Article 1:221 of the Civil Code).
15. A child born out of wedlock automatically had legally recognised family ties (familierechtelijke betrekkingen) with its mother and her relatives. Recognition by the father entailed the creation of a legally recognised family tie between him and the child, as well as between the child and the father’s relatives (Article 1:222 of the Civil Code). At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child, and the mother’s surname if not (Article 1:5 § 2 of the Civil Code).
16. Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by the Registrar of Births, Deaths and Marriages or a notary public (Article 1:223 of the Civil Code). A deed of recognition drawn up by the registrar was entered in the register of births (Article 1:21 § 3 of the Civil Code). At the request of an interested party, the regional court could order that a deed be entered in the appropriate registers (Article 1:29 § 1 of the Civil Code).
17. Recognition without the mother’s prior written consent was void (Article 1:224 § 1 (d) of the Civil Code). However, in view of the right of the father and the child to respect for their “family life”, as guaranteed by Article 8 of the Convention, the Supreme Court construed this provision in such a way that the mother’s effective right of veto could be overridden, if she abused it, by alternative judicial consent. However, such judicial consent could only be sought by a biological father whose relationship with his child was such that it should be considered to amount to “family life” within the meaning of Article 8 of the Convention (see Hoge Raad, 8 April 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – (NJ)) 1989, no. 170). In a situation where the mother was raising the child alone, judicial consent would only be given if the mother had no interest warranting protection in refusing to give her permission (see Hoge Raad, 22 February 1991, NJ 1991, no. 376, and Hoge Raad, 17 December 1999, NJ 2000, no. 121).
18. On 1 April 1998 a new Article 1:204 of the Civil Code came into force. It still provides that, for a man to recognise a child who is not yet 16 years old as his, the prior written consent of the mother is required (Article 1:204 § 1 (c)). If the mother has not given her consent, it may be replaced by the consent of the regional court (Article 1:204 § 3). However, the man who seeks alternative judicial consent must be the child’s biological father; in addition, recognition must not be detrimental to the mother’s relationship with the child or to the child’s own interests (ibid.). Furthermore, the child’s written permission is required if he or she has reached the age of 12 (Article 1:204 § 1 (d)).
19. According to the Supreme Court’s case-law under Article 1:204 § 3 of the Civil Code, the procedure for obtaining judicial consent must entail a judicial balancing exercise between the interests of the persons concerned, the point of departure being that both the child and its biological father should in principle be entitled to have their relationship acknowledged in law as a legally recognised family relationship (familierechtelijke betrekking). However, the judge must balance the father’s interests in obtaining recognition against any conflicting interests of the mother or the child or both. The mother’s interest is defined in Article 1:204 § 3 as having an undisturbed relationship with the child (see Hoge Raad, 16 February 2001, Rechtspraak van de Week (Weekly Law Reports) 1989, no. 52).
20. Also on 1 April 1998, Article 1:207 was introduced into the Civil Code, pursuant to which a child may request the regional court to issue a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap) in order to have a legal tie established between him or her and the biological father. No time-limit applies for lodging such a request.
21. Pursuant to Article 1:392 of the Civil Code, parents – namely, the persons who have become a legal parent of a child either ipso jure, or through recognition, a judicial declaration of paternity, or adoption – are obliged to provide for the maintenance of their minor children. The absence of recognition of a child does not absolve the biological father of his maintenance obligations towards this child. Pursuant to Article 1:394 of the Civil Code, the biological father of an unrecognised child remains liable to pay maintenance until the child has come of age. Until 1 April 1998, when this provision was amended as a consequence of the introduction of the possibility of seeking a judicial declaration of paternity, Article 1:394 § 3 provided that the supposed biological father of an illegitimate, unrecognised child was the man who had had intercourse with the mother between the 307th and 179th day before the birth of the child.
22. Access rights are regulated by Articles 1:337a-h of the Civil Code.
23. The relevant part of Article 1:377a of the Civil Code provides as follows:
“1. The child and the parent who does not have custody are entitled to have access to each other [omgang met elkaar].
2. The judge shall, at the request of the parents or of one of them, establish an arrangement, for a definite or indefinite period, for the exercise of the right of access or shall deny, for a definite or indefinite period, the right of access.
3. The judge shall only deny the right of access if:
(a) access would seriously impair the mental or physical development of the child;
(b) the parent is deemed to be manifestly unfit for or manifestly incapable of access;
(c) the child is at least 12 years old and has, when being heard, manifested serious objections against allowing the parent access; or
(d) access would for another reason be contrary to the weighty interests [zwaarwegende belangen] of the child.”
24. The relevant part of Article 1:377f of the Civil Code reads as follows:
“1. Without prejudice to the provisions of Article [1:]377a [of the Civil Code], the judge may, on request, establish an access arrangement between the child and the person having close personal ties with it. The judge may reject the request where the interests of the child oppose granting it, or where the child is at least 12 years old and objects to it.”
25. According to the case-law of the Supreme Court, a request by a biological father for access to a child whose paternity he has not recognised is to be examined under Article 1:337f, and not under Article 1:337a, of the Civil Code, in that he is not a “parent” within the meaning of Article 1:337a. Where the father of a child born out of wedlock has recognised the child, a request for access is to be examined under Article 1:377a of the Civil Code (see Hoge Raad, 15 November 1996, NJ 1997, no. 423, and Hoge Raad, 26 November 1999, NJ 2000, no. 85).
26. In several cases in which a biological father has claimed a right of access to his child under Article 8 of the Convention, the Supreme Court has held that mere biological fatherhood in itself is insufficient to establish the existence of “family life”. According to the Supreme Court, such a relationship can only be regarded as involving “family life” where there are additional circumstances, such as regular contact with the child, from which it ensues that the tie with the father can be regarded as constituting “family life” (see Hoge Raad, 26 January 1990, NJ 1990, no. 630; Hoge Raad, 19 May 2000, NJ 2000, no. 545; and Hoge Raad, 29 September 2000, NJ 2000, no. 654).
VIOLATED_ARTICLES: 8


ITEMID: 001-23440
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CHISHTI v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Mueen Chishti, is an United States national of Pakistani origin, born in 1958 and residing in Montclair, California (USA).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 December 1995, the applicant was arrested in Portugal. He was suspected, with 11 other persons, of fraud, consisting in encoding information of credit cards, belonging to other people, on the magnetic bands of blank plastic cards using a personal computer and an encoding/decoding device. These plastic cards were then used at P.O.S. (“point of sale”) terminals, with the collaboration of their owners, to draw sums to be paid by the banks in question.
On 11 November 1997, the Lisbon Criminal Court sentenced the applicant to seventeen years’ imprisonment for computer fraud (burla informática), falsification of credit cards and corruption.
The applicant appealed to the Supreme Court (Supremo Tribunal de Justiça) complaining, inter alia, of a violation of his rights of defence.
In a judgment of 4 June 1998, served on the applicant on 8 June 1998, the Supreme Court rejected the appeal against conviction. It however reduced the sentence of the applicant to fourteen years ‘imprisonment.
Some of the defendants, but not the applicant, appealed to the Constitutional Court. According to the applicant, the Constitutional Court gave its judgment in October 1999.
After an initial period of detention at the prison of Caxias, the applicant was transferred, on 23 March 1998, to the prison of Pinheiro da Cruz.
On 10 May 1998, a member of the prison staff handed back to the applicant a letter that he had written in Urdu (Pakistani) to his family in Pakistan. It was explained to the applicant that he could not use the Urdu language in his correspondence for “security reasons”.
On 11 May 1998, the applicant complained about the situation to the prison governor. He was then informed that some other letters that his family had send to him in Urdu had been confiscated and filed in his individual file.
Following the subsequent complaints of the applicant concerning his impossibility to correspond in Urdu, the prison governor requested, on 30 July 1998, advice from the Directorate General of Prisons. The Court was unable to find in the individual file of the applicant, submitted by the Government at the Court’s request, any reply from the Directorate General to the prison governor’s request.
At Christmas 1998, the prison governor exceptionally authorised the applicant to send a letter in Urdu to his parents in Pakistan.
According to the applicant, he registered his name twice to complain about the ban concerning his correspondence to the prison judge (juíz de execução de penas) but never had a reply. The Court was however unable to find any of these alleged requests in the applicant’s individual file.
Informed by the applicant, the United States Embassy offered, on March 1999, its services in order to solve the problem. The Embassy found a translator willing and able to translate from English into Urdu and vice-versa, without costs to the applicant, all the necessary incoming and outgoing mail. According to the Embassy, this solution would meet with the approval of the prison governor. However, in May 1999, the applicant declined the offer.
The applicant was again authorised to send a letter in Urdu at one occasion, at Christmas of 1999.
On 6 December 2000, the applicant was transferred to the United States to serve the remainder of his sentence.
On 15 March 2001 the applicant was released conditionally.
The execution of prison sentences is regulated by the Decree Law No 265/79 of 1 August 1979.
Section 43 of this Decree Law provides, in its paragraph 1, that the prison governor can order the stopping of inmates’ outgoing and incoming mail if written in an unknown foreign language and without special reasons justifying the use of such language. The letters in question are filed in the individual file of the person concerned.
The provisions of this Decree Law were supplemented by a Circular No 3/94/DEP/1 issued by the Directorate General of Prisons on 11 November 1994. Under this Circular, correspondence is withheld only after being scrutinised in accordance with the provisions of Decree Law No 265/79.
Inmates can submit complaints concerning the withholding of their correspondence, or any other matter, to the inspectors of the Directorate General of Prisons and to the prison judge. According to Section 139 of the Decree Law No 265/79, inmates should register their names in a special book in order to see the prison judge during the latter’s monthly visits to the prison. The prison judge should then try to solve the matter in agreement with the prison governor. If there is no agreement, the issue is submitted to the Technical Council of the prison in question (Section 139). The Technical Council is composed of the prison judge, who presides, the prison governor and five other members of the prison staff. According to Section 139 § 5, each of the members of the Technical Council has a right of appeal against the Council’s decisions to the Minister of Justice.


ITEMID: 001-97049
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CHRISTIAN DEMOCRATIC PEOPLE'S PARTY v. MOLDOVA (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The Christian Democratic People’s Party (“the CDPP”) is a political party in the Republic of Moldova which was represented in Parliament and was in opposition at the time of the events.
6. On 3 December 2003 the applicant party applied to the Chişinău Municipal Council for an authorisation to hold a protest demonstration in the Square of the Great National Assembly, in front of the Government’s building, on 25 January 2004. According to the application, the organisers intended to express views on the functioning of the democratic institutions in Moldova, the respect for human rights and the Moldo-Russian conflict in Transdniestria.
7. On 20 January 2004 the Chişinău Municipal Council rejected the applicant party’s request on the ground that “it had convincing evidence of the fact that during the meeting, there will be calls to a war of agression, ethnic hatred and public violence”.
8. The applicant party challenged the refusal in court and argued, inter alia, that the reasons relied upon by the Municipal Council were entirely baseless.
9. On 23 January 2004 the Chişinău Court of Appeal dismissed the applicant party’s action. The court found that the Municipal Council’s refusal to authorise the CDPP’s demonstration was justified because the leaflets disseminated by it contained such slogans as “Down with Voronin’s totalitarian regime” and “Down with Putin’s occupation regime”. According to the Court of Appeal, these slogans constituted a call to a violent overthrow of the constitutional regime and to hatred towards the Russian people. In this context, the court recalled that during a previous demonstration organised by the applicant party to protest against the presence of the Russian military in Transdniestria, the protesters burned a picture of the President of the Russian Federation and a Russian flag.
10. The applicant party appealed against the above decision arguing, inter alia, that the impugned slogans could not have reasonably been interpreted as a call to a violent overthrow of the Government or as a call to ethnic hatred and that the refusal to authorise the meeting constituted a breach of its rights guaranteed by Articles 10 and 11 of the Convention.
11. On 21 April 2004 the Supreme Court of Justice dismissed the applicant party’s appeal and confirmed the judgment of the Court of Appeal.
12. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows:
(1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property.
Assemblies shall be suspended in the following circumstances:
(a) denial and defamation of the State and of the people;
(b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, territorial separatism or public violence;
d) acts that undermine the constitutional order.
(1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings.
(2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors’ offices, the courts or companies with armed security.
(3) It shall be forbidden to conduct assemblies:
(a) within fifty metres of the parliament building, the residence of the president of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice;
(b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions.
(4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed.
(5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.
(1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act.
(2) The prior notification shall indicate:
(a) the name of the organiser of the assembly and the aim of the assembly;
(b) the date, starting time and finishing time of the assembly;
(c) the location of the assembly and the access and return routes;
(d) the manner in which the assembly is to take place;
(e) the approximate number of participants;
(f) the persons who are to ensure and answer for the sound conduct of the assembly;
(g) the services which the organiser of the assembly asks the Municipal Council to provide.
(3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.”
(1) The prior notification shall be examined by the local government of the town or village at the latest 5 days before the date of the assembly.
(2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation.
(...)
(6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society.
(1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing. It shall contain reasons for refusing to issue the authorisation...
(1) The organiser of the assembly can challenge in the administrative courts the refusal of the local government.”
VIOLATED_ARTICLES: 11


ITEMID: 001-78412
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRAVCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1940 and lives in the town of Krasnyy Luch, Lugansk region, Ukraine.
5. In 2003 the applicant instituted proceedings in the Krasnolutskyy Town Court against her former employer, the Knyagininska State Mining Company (Шахта «Княгинінська» ДХК «Донбасантрацит»), for salary arrears and compensation for moral damage. On 5 June 2003 the court awarded the applicant 3,300.02 Ukrainian hryvnias (“UAH”) (Рішення Краснолуцького міського суду Луганської області).
6. In July 2003 the Krasnolutskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Краснолуцького міського управління юстиції) initiated the enforcement proceedings.
7. By letter of 2 June 2004, the Bailiffs' Service informed the applicant that the debtor's accounts had been frozen, that it was impossible to seize the debtor's property because the debtor was a State enterprise.
8. On 25 March 2005 the Lugansk Regional Commercial Court initiated bankruptcy proceedings against the debtor enterprise.
9. The applicant received UAH 1,187.98; according to her, the rest of the debt remains unpaid.
10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98646
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KLOCEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Andrzej Klocek, is a Polish national who was born in 1934 and lives in Kraków. He is represented before the Court by Ms M. Juśkiewicz, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 August 1982 Ś., with whom the applicant had had sexual contact earlier but to whom he was not married, gave birth to a son, P.
It seems that as the applicant had denied being the father of P., on 16 March 1983 Ś. initiated civil proceedings before the Kraków District Court (Sąd Rejonowy) for a judicial determination of his paternity.
On 18 January 1984, based on the results of a blood-group test (“badanie grupowe krwi”) on the applicant and Ś., the Faculty of Forensic Medicine of the Medical Academy (Katedra Zakładu Medycyny Sądowej Akademi Medycznej) in Kraków drew up a report, in which it stated that the features of the applicant's and Ś's blood were identical and therefore it was neither possible to exclude the paternity of the applicant on the one hand, nor to confirm it on the other.
At a hearing on 13 April 1984 the applicant confirmed that he had had sexual intercourse with Ś., but in August 1981, that is some twelve months before the date of birth of P.
On 24 February 1986 the Kraków District Court declared that the applicant was P's father. The court also ordered him to contribute to his maintenance on a monthly basis.
The judgment of 24 February 1986 became final and binding. The applicant submits that he complied with the court's decision and the maintenance order. He did not lodge an appeal due to the fact that he already had his own family, did not wish to be involved in possible lengthy proceedings and that his financial situation allowed him to provide support for Mrs. Ś. and P.
It appears that on an unknown date the applicant and P. had a dispute, after which the applicant ceased to provide P. with financial support.
On 9 May 2006 the Kraków Regional Court annulled the maintenance order.
On 20 December 2005 the applicant sought to contest his paternity before the Kraków District Court. He relied on the fact that his paternity had been determined in 1986 on the basis of expert evidence corresponding to the state of science at that time, which neither confirmed nor excluded his paternity and that new methods of establishing paternity, such as DNA testing, allowed for its precise determination.
On 10 March 2006 the Kraków District Court dismissed the applicant's claim on the grounds that his case was res iudicata, that the possible conditions for re-opening the proceedings had not been fulfilled, and finally, that he did not have the right to bring an action to challenge his paternity. In this connection, the court relied on Article 63 of the Family and Custody Code (“Kodeks Rodzinny i Opiekuńczy”) according to which only a man married to the mother could lodge such an application.
On 29 June 2006, following the applicant's appeal, the Kraków Regional Court (Sąd Okręgowy) upheld the first-instance judgment and its reasoning.
On 11 January 2007 the Supreme Court refused to entertain a cassation appeal lodged by the applicant.
1. Relevant provisions of family law
According to Article 72 of the Family and Custody Code (“the Code”), if there is no legal presumption indicating that the mother's husband is the father of her child, or if such presumption has been rebutted, the paternity of the child may be established by the recognition of paternity by the father or by a decision of a court.
In respect of children born out of wedlock, Article 85 of the Code provides for the presumption that a man who had intercourse with the mother no more than 300 and no less than 181 days before the birth of a child is the father.
A husband can deny paternity in court within 6 months of learning that his wife had given birth to a child (Article 63). Under Article 69 § 1 of the Code the wife may contest her husband's paternity within 6 months of the birth. Similarly, according to Article 70 § 1 of the Code a child may deny paternity of a husband of his/her mother within three years of reaching the age of majority.
According to Article 71 of the Code a denial of paternity is excluded after the child's death.
Finally, under Article 86, paternity may be challenged by a prosecutor at any time, as long as the child is alive.
According to Article 363 § 1 of the Code of Civil Procedure (Kodeks postępowania cywilnego) a judgment which can no longer be appealed against is final and binding (prawomocny).
Under Article 403 § 2 a party to proceedings can request the re-opening of the proceedings where facts or evidence have come to light which could have an influence on the result of the original proceedings but which the requesting party could not use in the original proceedings.
Article 4011 provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution, a ratified international agreement, or a law or an act by virtue of which a judicial decision was given.
Article 47 of the Constitution provides that
“(e) everyone shall have the right to legal protection of his private and family life, of his honour and good reputation, and to make decisions about his personal life.”
The relevant parts of Article 190 of the Constitution provide as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”.
4. The Constitutional Court's judgment of 28 April 2003
On 28 April 2003 (K 18/02) the Constitutional Court ruled on a similar issue concerning the lack of standing of a biological father to lodge with a court an action to have his paternity recognised in respect of a child born out-of-wedlock. Before the respective provisions of the Family and Custody Code were repealed as a result of the judgment, such action on behalf of a father could only be brought by the public prosecutor. The Constitutional Court reached the conclusion that the lack of standing before a court of the biological father in proceedings to have his biological paternity recognised in law was in breach of Article 72 of the Constitution, which provided for protection of children's rights as a constitutional principle. It was further stated that this was also in breach of the father's right to respect for his private and family life, guaranteed by Article 47 of the Constitution. Moreover, these provisions breached Article 45 of the Constitution, which guaranteed the right of access to a court. The relevant extracts from the judgment can be found in the Court' s judgment in the case of Różański v. Poland, no. 55339/00, §§ 47-52).


ITEMID: 001-98168
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SERIYEVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants, who are father and daughter, were born in 1936 and 1975 respectively. They are the husband and the daughter of Bilkis Askhabayeva, who was born in 1942, and the father and sister of Sarali Seriyev, who was born in 1980. At the material time the applicants and their relatives lived in Belgatoy, Chechnya; the applicants currently live in Shali, Chechnya.
6. On 26 December 2002 a projectile struck the applicants' house, hit Bilkis Askhabayeva and severely wounded her. She died on the same day from the injuries.
7. On 27 December 2002 the district prosecutor's office instituted an investigation into the death of Bilkis Askhabayeva under Article 105 § 2 of the Criminal Code (aggravated murder). The case file was given number 59281.
8. On 29 December 2002 the first applicant was granted victim status in the criminal case. On 30 December 2002 the investigative authorities ordered a forensic examination of Bilkis Askhabayeva's body.
9. At some point between January 2003 and November 2004 the investigation of the criminal case was transferred to the military prosecutor's office of military unit no. 20116 (the military prosecutor's office), where the case file was given number 34/35/0191-03.
10. On 25 November 2004 the military prosecutor's office terminated the proceedings in the criminal case. The decision stated that the investigation had established that on 26 December 2002 military unit no. 23132 had participated in a special operation against illegal armed groups. At about 8 p.m. an illuminating shell launched by a cannon 2C3 No. 221 from the position of the military unit, due to a technical malfunction, had hit the house at 41 Kirova Street in Belgatoy, Chechnya. The death of Bilkis Askhabayeva was a result of an accident and therefore no personal responsibility could be established for it. The decision further stated that the criminal investigation in case no. 34/35/0191-03 should be terminated for lack of corpus delicti in the actions of the military servicemen.
11. On 7 December 2004 the military prosecutor's office informed the first applicant about the decision to terminate the criminal proceedings. The applicants did not appeal this decision.
12. On 13 June 2005 the military prosecutor's office took another decision to terminate the proceedings in the criminal case on the grounds of lack of corpus delicti and the amnesty act applied to the military officers. The applicants did not appeal this decision either.
13. On 29 March 2005 the first applicant brought proceedings against military unit no. 23132. He demanded compensation for pecuniary and nonpecuniary damage caused by his wife's death.
14. On 13 June 2005 the Shali town court partially granted the claim. The court granted the applicant 168,105 Russian roubles (RUB - about 5,000 euros (EUR)) in respect of pecuniary damage and RUB 10,000 (about EUR 300) in respect of non-pecuniary damage.
15. On an unspecified date the first applicant lodged a request with the town court asking for an extension of the time-limits for appeal of the judgment. The applicant submitted that he had not complied with the time-limits for the appellate procedure because of illness.
16. On 25 August 2005 the Shali town court rejected his request. The court stated that the applicant had failed to provide any evidence, such as a medical certificate, to justify his failure to comply with the statutory timelimits for the appeal.
17. On an unspecified date the first applicant again brought proceedings against military unit no. 23132 demanding compensation for pecuniary and non-pecuniary damage caused by the actions of the military in December 2002.
18. On 23 June 2008 the Shali town court granted the applicant's claim and awarded him a total of RUB 532,000 (about EUR 15,200) in damages, of which RUB 232,000 were granted in respect of pecuniary damage and RUB 300,000 in respect of non-pecuniary damage suffered in connection with the death of Bilkis Askhabayeva. The applicant did not appeal against this decision.
19. On 3 September 2008 the judgement was enforced and the applicant received the amount due.
20. In 2000 as a result of an accident Sarali Seriyev (also spelled as SarAli Serbiyev) lost his right hand, three fingers on the left hand and vision in his right eye. At the material time he was wearing a prosthesis.
21. On 1 June 2004 the applicants, Sarali Seriyev and their relative Imali Seriyev were at home at 41 Kirova Street in Belgatoy, Chechnya. The area was under the full control of the Russian federal forces; military checkpoints were located on the roads leading to and from the village.
22. At about 5 p.m. eight or nine silver-coloured vehicles, including a van and VAZ cars, arrived at the applicants' house. Only one of them had a registration number, which was 516 95.
23. About thirty heavily-armed masked servicemen in uniforms got out of the vehicles. Two or three of them were in helmets. The men neither identified themselves nor produced any documents. They communicated in Russian, although a few spoke Chechen. The applicants thought that the intruders were federal servicemen as the vast majority of them spoke unaccented Russian and just a few spoke Chechen.
24. Upon entering the applicants' yard, the servicemen demanded that the residents of the house hand their weapons to them and state who had spent the night in the house. After that the men forced the second applicant and her brother Imali into different rooms.
25. The intruders sprayed some kind of thick liquid into the room where the second applicant was placed. Two of the officers entered Imali's room, where he was forced to stay, beat him and searched the place.
26. Meanwhile other intruders took Sarali out from the house, forced him into the yard and then into one of the cars in the street. As this was happening the first applicant was trying to explain to the servicemen that Sarali was a disabled person and to show them his and Sarali's identity documents. One of the servicemen took them from the first applicant and told him that they did not need any identity documents.
27. The second applicant and Imali ran after the servicemen in an attempt to prevent them from detaining Sarali, but one of the intruders pushed the applicant and sprayed her with the thick liquid, causing her eyes to burn. They also sprayed Imali in the left eye and he ran to rinse his eye under an outdoor water tap. The first applicant also attempted to prevent the soldiers from taking Sarali away. The applicant threw himself onto one of the cars, but a soldier sprayed a liquid into his eyes. A group of the applicants' neighbours witnessed the abduction of Sarali Seriyev.
28. The first applicant followed the abductors' vehicles by car with an officer from a local department of the interior. They drove up to the local military checkpoints; however, the applicant could not obtain any information there about Sarali's abductors.
29. The description of the circumstances surrounding Sarali Seriyev's abduction is based on an account by the first applicant dated 20 May 2005, on an account by the second applicant, dated 6 February 2006, and on documents submitted with the application.
30. On 1 June 2004 the applicants started their search for Sarali Seriyev. They contacted, both in person and in writing, various official bodies, such as the Shali administration, the Chechen administration, the Shali district military commander's office and the prosecutors' offices at different levels, describing in detail the circumstances of their relative's abduction and asking for help in establishing his whereabouts. The applicants retained copies of a number of their complaints and the authorities' replies and submitted them to the Court. An official investigation had been opened by the local prosecutor's office. The relevant information is summarised below.
31. Immediately after his son's abduction, in the late afternoon of 1 June 2004, the first applicant invited the investigators of the Shali district prosecutor's office (the district prosecutor's office). They arrived at the house about half an hour after the events. In the yard they took down the statements of the applicants, their relatives and neighbours and drew a map of the house. When the second applicant told the investigators about the spray used to disable her, one of them dismissed her statement as irrelevant. The investigators refused to go inside and examine the house for evidence.
32. On 2 July 2004 the district prosecutor's office instituted an investigation into the abduction of Sarali Seriyev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 36076.
33. On 2 July 2004 the district prosecutor's office granted the first applicant victim status in the criminal case.
34. On 21 July 2004 the Chechnya prosecutor's office informed the first applicant that the investigation in the criminal case was taking operational search measures to establish the whereabouts of Sarali Seriyev and identify the perpetrators of his kidnapping.
35. On 21 July 2004 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for his son to the district prosecutor's office for examination.
36. On 17 September 2004 the head of the criminal search division of the Chechnya department of the interior (the Chechnya MVD) informed the first applicant that his son's abduction was being investigated by the district prosecutor's office.
37. On 20 September 2004 the first applicant requested the military prosecutor office's of the United Group Alignment (the military prosecutor's office of the UGA) to assist in the search for his son.
38. On 15 October 2004 the military prosecutor's office of the UGA informed the first applicant that information concerning the investigation into his son's abduction was available either at the district prosecutor office or the Chechnya prosecutor's office. The letter also stated “... it has been established that federal military servicemen were not involved in your son's abduction”.
39. On 1 December 2004 the district prosecutor's office informed the first applicant that his complaint about the abduction had been included into the investigation file.
40. On 2 February 2005 the first applicant addressed the Shali district military commander's office (the district military commander's office) with a request for assistance in the search for his son.
41. On 3 February 2005 the district military commander's office informed the first applicant that they had forwarded information requests concerning Sarali Seriyev's whereabouts to a number of law enforcement agencies.
42. On 5 February 2005 the Chechnya prosecutor's office informed the first applicant that the investigation in the criminal case had been resumed on an unspecified date.
43. On 22 February 2005 the military prosecutor's office of military unit no. 20116 informed the first applicant that they had not received his request.
44. On 8 March 2005 the district military commander's office provided the first applicant with a copy of their information request concerning the search for Sarali Seriyev.
45. On 14 March 2005 the first applicant complained to the district military commander's office about the lack of information concerning the investigation into his son's abduction.
46. On 6 June 2005 the applicants' representatives wrote to the district prosecutor's office. They asked about the measures taken in the criminal case and the progress of the investigation and requested that the first applicant be provided with copies of documents from the investigation file.
47. On 29 June 2005 the Chechnya prosecutor's office informed the applicants' representatives that the investigation into the abduction of Sarali Seriyev had taken all measures to identify the perpetrators; that the first applicant was entitled to familiarise himself with the documents in the investigation file; that he could obtain information on the progress of the investigation and receive copies of the requested documents at the district prosecutor's office.
48. On 28 July 2005 the Chechnya prosecutor's office informed the applicants' representatives that information concerning the investigation in the criminal case was a secret and was not a subject to disclosure.
49. The Government submitted that “... at about 5 p.m. on 1 June 2004 in Kirov Street in Belgatoy, in the Shali district of Chechnya, about fifteen unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted Sarali Seriyev and took him away to an unknown destination in a VAZ-21099 vehicle. The whereabouts of S. Seriyev have not been established since”. In connection with this, the district prosecutor's office had opened criminal case no. 36076 under Article 126 § 2 of the Criminal Code (aggravated kidnapping).
50. On 10 June 2004 the investigators conducted the crime scene examination at 41 Kirova Street, Belgatoy. Nothing was collected from the scene.
51. On 2 July 2004 the first applicant was granted victim status in the criminal case. The text of the decision included the following:
“...the investigation established: on 1 June 2004 unidentified persons in camouflage uniforms, with firearms, had arrived during the daytime in VAZ-21099 cars at the house of S. Seriyev in Kirova Street, Belgatoy and detained him; after that they had taken him away to an unknown destination...”
52. On the same date, 2 July 2004, the applicant was questioned by the investigators. According to a partial copy of his witness statement furnished by the Government, in the late afternoon of 1 June 2004 he had been at home with his relatives. His son Sarali was in the house while his daughter, the second applicant, was in the yard. At about 5 p.m. a masked man in camouflage uniform armed with an automatic weapon had entered the room where the first applicant was resting. The man asked the applicant in Russian whether any other men were in the house. The applicant responded that his children were on the second floor of the house and then followed the man outside. In the yard he saw a group of about eight masked men in camouflage uniforms, armed with automatic weapons; the second applicant was showing her brother's documents to them. One of the men sprayed the second applicant's face with a liquid from a spray can and took Sarali Seriyev to a VAZ-21099 car which was parked in the street. The applicant did not see how many cars were in the street. He further stated that his son had a first-degree disability owing to the amputation of his hand.
53. On 5 July 2004 the investigators questioned the second applicant. According to a partial copy of her witness statement furnished by the Government, she stated that Sarali Seriyev had a disability: he had lost his hand as a result of a mine explosion. On 1 June 2004 she had been at home when she had heard from the hallway an order to put her hands up. She saw a man in camouflage uniform holding a machine gun, and her brother Sarali next to him. The man asked whether anyone else, other than the family members, were in the house. When the applicant responded that only family members were in the house, the man asked what had happened to her brother's hands. The applicant explained that a mine had exploded in his hands and that there were medical documents certifying it. Several more men entered the house and asked her to fetch the documents. After the applicant returned with the papers, they sprayed her in the eyes with tear gas, pushed her into a room and dragged her brother downstairs. She attempted to follow them, but one of the abductors pointed his gun at her and ordered her to get back in the room. Then the applicant decided to call for help from the window; from there she saw several more armed men in camouflage uniforms in the yard and five or six VAZ-21099 cars. All the vehicles were silver-coloured, except for one, which was white. The intruders put Sarali into one of the cars and drove away.
54. On 5 July 2004 the investigators questioned the applicants' neighbour, Mr V.S. According to a partial copy of his witness statement furnished by the Government, he stated that on 1 June 2004 he had been at home when he had heard screams coming from the applicants' house. He went outside and heard the second applicant screaming. Then the witness went to the applicants' house. On the way there he saw a boy who told him that Sarali Seriyev was being taken away. A silver VAZ-21099 with tinted windows was in the street; its registration number was 516, region 95. Four masked men in camouflage uniforms, armed with 5.45 mm machine guns and APS pistols (“automatic Stechkin pistol”) walked towards the car from the vegetable garden. Judging by the way the men moved, the witness concluded that they were about twenty to twenty-five years old; they were wearing white training shoes. Three men got in the VAZ-21099 car, whereas the fourth one pointed his gun at the witness and said in Russian: “Stop or I will shoot”. After that the man also got into the car, which drove away down the street in the direction of the Rostov-Baku auto route. According to the witness, three more silver VAZ-21099 cars, a white VAZ2110 car and a white minivan GAZ, all with tinted windows, had been parked next to the Seriyevs' house; these vehicles followed the VAZ-21099 in the direction of the Rostov-Baku motorway.
55. On an unspecified date the investigators questioned Mr M.K. who stated that in June 2002 he and other residents of Belgatoy had been on their way back to the village from haymaking. On the road they had seen some objects. Sarali Seriyev picked up one of them. The objected exploded in his hands. He was immediately taken to the nearest military checkpoint and from there to the hospital. As the result of the incident Sarali Seriyev had lost his hand.
56. On 8 July 2004 the investigators requested that the Road Traffic Department of the Chechnya Ministry of the Interior (the Chechnya GIBDD) informed them about the owners of vehicles which had numbers 516-95 on their registration plates. According to the response from the authorities, four persons, Mr I.B., Mr S.M., Mr L.Yu. and Mr Kh.V., owned cars with the numbers 516-95 on the plates.
57. In response to the investigators' request, in July 2004 the Shali district department of the Federal Security Service (the FSB) submitted that they had not conducted special operations on 1 June 2004 in Belgatoy and had no information which discredited Sarali Seriyev. A similar response was received in August 2004 from the Security Service of the Chechen President.
58. On 28 July 2004 the investigators forwarded a request to the military prosecutor's office of the UGA and the Shali district department of the interior (the Shali ROVD) asking whether they had conducted a special operation in Belgatoy on 1 June 2004 and whether Sarali Seriyev had been detained in either the UGA detention centre or the ROVD premises. According to their replies, these authorities had no information either concerning a special operation in Belgatoy on 1 June 2004 or detention of the applicants' relative.
59. In February 2005 the investigators forwarded requests to the Achkhoy-Martan district prosecutor's office and the Shelkovskoy district prosecutor's office asking the authorities to question the owners of the four vehicles. According to their responses, it was impossible to question Mr I.B. as his whereabouts had not been established; a neighbour of Mr Kh.V. had stated that the latter had moved to the Shatoi district of Chechnya and therefore could not be questioned. Mr S.M. stated that for three months in 2002 he had owned a dark red 1976 VAZ-21099 with the registration number X516 AX-95, which he had sold to Mr A. from the Samashki village, Chechnya. As for Mr L.Yu., he stated that in December 2003 he had purchased a silver 2003 VAZ-21099 with the registration number T 516 PC95. In February 2004 he had sold the car to a man from Dagestan who had been introduced to him by the owner of a local service station, Mr M.
60. On an unspecified date the head of the criminal search division of the Shelkovskoy ROVD informed the investigators that they could not establish the identity of the new owner of the car which had belonged to Mr L.Yu.
61. The investigators forwarded a number of requests to various detention centres and the district prosecutors' offices in Chechnya asking whether these authorities had detained Sarali Seriyev and whether they had opened criminal proceedings against him. According to the replies received by the investigation, the applicants' relative had not been detained and no criminal proceedings had been opened against him.
62. On an unspecified date the investigation received a letter from the Special Group of the Ministry of the Interior (the MVD) which stated that Sarali Seriyev was listed by the criminal search police as a member of an illegal armed group.
63. According to the Government, the investigation failed to establish the whereabouts of Sarali Seriyev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of Russian military servicemen in the crime, nor did they find any evidence that the applicants' relative was dead.
64. The Government further submitted that the investigation had been suspended and resumed on a number of occasions and that the applicants had been duly informed of all decisions taken during the investigation.
65. Despite specific requests by the Court the Government did not disclose most of the contents of the investigation file in criminal case no. 36076. They provided copies of only a few documents, including only partial copies of the applicants' witness statements to the investigators, and requested the Court to apply Rule 33 § 3 of the Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the submitted documentation. In their request the Government stated that the criminal investigation was still in progress and that public disclosure of the documents could be detrimental to the interests of participants in the criminal proceedings.
66. The Government further stated that a copy of the entire investigation file could not be submitted to the Court owing to the absence of any guarantees on the part of the Court of non-disclosure of the secret data contained in the investigation file. In this respect the Government referred to Article 161 of the Criminal Procedure Code, since the file contained information concerning participants in criminal proceedings. They also cited, by way of comparison, the Rome Statute of the International Criminal Court of 17 July 1998 (Articles 70 and 72) and the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 15 and 22) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality.
67. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-4773
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PERRE v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicant, Francesco Perre, is an Italian national, born in 1961 in Platí (Catanzaro). He is currently detained in Viterbo, where he is serving a sentence of 24 years’ imprisonment.
He is represented before the Court by Mrs Antonietta Denicoló Gigliotti and Mr. Roberto Catanzariti, who are both lawyers, practising respectively in Catanzaro and Rome.
The facts of the present case, as presented by the parties, may be summarised as follows.
A warrant of arrest against the applicant and 39 co-accused was issued at the beginning of 1992 at the request of the public prosecutor of Bolzano following investigations into drug trafficking. While many co-accused were arrested on 11 February 1992, the applicant escaped arrest.
The trial commenced on 19 April 1993 before the Court of Bolzano. During this initial stage of the proceedings the applicant was tried in absentia.
The applicant was arrested on 15 November 1993 in Calabria. He was brought to trial with 28 co-accused and was charged with being at the head of an armed criminal organisation dealing with drug trafficking.
At the 13 December 1993 hearing, at which only the applicant’s lawyer was present, a co-accused, L.P., participated by means of a video-conference and confirmed the contents of a tape and of some other written documents previously sent by himself to the police. In the statements L.P. asserted that the applicant was at the head of the organisation. He refused to answer any other questions. The applicant’s lawyer did not react.
On 22 March 1994 the Court of Bolzano sentenced the applicant to 27 years’ imprisonment, the grounds for the decision being:
the reports of the Carabinieri (military corps also carrying out police duties) confirming the applicant’s participation in meetings with other members of the organisation ;
the recordings obtained by tapping the houses of the applicant and of the co-defendants and tapping their telephones, from which it appeared that a drug-trafficking organisation existed and that the applicant had a prominent position in it ;
the tape-recorded statements made by L.P. (supporting evidence).
The following further elements against the applicant were considered: the fact that, although officially he had a job, he never appeared to be working, thus it was not clear where his income came from; the fact that some relatives of his had already been arrested for drug trafficking; the fact that the co-accused, and, remarkably, those older than him, would address him using "voi", a typical form of respect towards those in command in mafia-like organisations.
On 30 July 1994 the applicant filed an appeal with the Court of Appeal of Trento on several grounds, notably:
that the recorded conversations were in the dialect spoken in Calabria and that the translations from that dialect into Italian were unreliable (the translator was a policeman and therefore, according to the applicant, he could not be considered as an independent expert and furthermore it was not proved that he could understand the dialect); besides, the applicant alleged that the recordings had not been properly transcribed as in several parts they had actually been summarised; the applicant asked for a comparison of voices to ascertain whether his was the same as the one in the recordings;
that the statements made against him by the co-defendant had been considered evidence even though tape-recorded, i.e. without an actual testimony given in court; therefore the applicant explicitly asked the Court of Appeal to arrange a direct confrontation with his accuser;
that there was not sufficient evidence for considering the applicant as being at the head of the organisation.

The Court of Appeal of Trento dismissed the applicant’s requests for a voice comparison and for a direct confrontation with the co-accused (L.P.).
On 21 January 1995 the Court of Appeal upheld the judgment of the Court of Bolzano, with the exception of one count of aggravation, which led to a sentence of 24 years’ imprisonment. The judgment of the Court of Appeal was based mainly on the reports made by the Carabinieri. According to these reports, the applicant had been seen by several Carabinieri officials taking part in meetings with the other members of the organisation, both at the applicant’s apartement and in other places. Besides, electronic surveillance during such meetings had permitted to ascertain that their purpose was closely related to drug trafficking. Thus, during the recorded conversations reference was made inter alia to : a previous transfer of cocaine ; the transfer of four guns ; 2 kilos of “stuff” (roba) that one of the members would “cut”; the transfer of significant amounts of money ; the criticism against the delay in the delivery of some “stuff”, increasing the risk of an arrest. Even though the poor quality of the registrations from the electronic surveillance did not allow to determine to whom each phrase recorded was to be attributed, the Court of Appeal considered that the participation of the applicant in such meetings, eyewitnessed by several Carabinieri officials who all recognised the applicant, and their scope, resulting from the electronic surveillance, was sufficient to prove that the applicant was a member of the organisation. Furthermore, the Court pointed out that the testimony by another witness, G.P., concerning the applicant’s behaviour, confirmed the leading position of the applicant within the organisation and that the declarations made by L.P. suggested that the organisation became very dynamic after the applicant had joined in.
As to the complaints about the translation and transcription of the recordings, the Court of Appeal held that there was no reason to question the translator’s impartiality and his knowledge of the dialect, that he was not alone in carrying out the task, thus others could verify the accuracy of the operations, that the translator was not asked for a proper translation since the main part of the recordings consisted of numbers and short sentences understandable by an Italian-speaking person, the translation being necessary only to comprehend some of the more obscure passages, and that the right of the defendants to ask for a copy of the recordings and to verify, on their own or through other experts, the exactitude of the translations and transcripts was never restricted.
As to the request for a voice comparison, the Court of Appeal maintained that, the Court of Bolzano having ordered a voice comparison at an early stage of the proceedings and the vast majority of the defendants having refused to cooperate to that end, the refusal of the Court to grant a second voice comparison could not be criticised, also in view of the considerable amount of time it would require.
As far as the complaint related to the accusatory tape-recorded statements by L.P., the Court of Appeal stated that despite the fact that the suspicious behaviour of L.P. called for great caution, the fact that the tape was listened to at a hearing at which L.P. was present - although by means of a video-conference - and that he confirmed his statements, was sufficient as to his credibility, also considering that previous statements made by him had been confirmed in the course of the investigations. The court added that these statements were not considered as the main evidence but only as supporting evidence.
Finally, as to the lack of impartiality of the Court due to the fact that some of the judges who decided his case had also sat on the Court which reviewed the regularity of the detention on remand of some of his co-defendants, the Court of Appeal stated that the relevant provisions of the Code of criminal procedure did not rule out this possibility and added that the Constitutional Court had already considered that no issue in this respect arose in the light of the Constitution. The Court of Appeal added that the situation the applicant complained of was not in breach of Article 6 § 1 of the Convention, given that it limits itself to provide that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...”.
The applicant appealed to the Court of Cassation against the above judgment. He complained inter alia about the lack of impartiality of the first instance judges, of the fact that the experts charged with transcribing the results of the telephone tapping and electronic surveillance relied upon the rough notes drafted by the police and also of the fact that the records were “translated” into Italian from the dialect of Calabria by a policeman. The Court of Cassation, in a decision dated 3 November 1995, dismissed the appeal, maintaining that the way in which the Court of Appeal had assessed the evidence was a matter of discretion provided that it was based on logical arguments, which, in the Court of Cassation’s view, was the case. As to L.P.’s statements, the Court underlined that the Court of Appeal had not given them an important weight.
Concerning the alleged lack of impartiality of the Court of Bolzano, the Court of Cassation reiterated the arguments put forward by the Court of Appeal, based on the relevant provisions of the Code of criminal procedure as well as on the Constitutional Court’s case-law. As far as the recordings were concerned, the Court of Cassation noted that the experts had personally re-listened to the recordings without relying exclusively on the rough notes made by the police. Finally, as to the translation of the records the Court held that apart from the fact that there was nothing suggesting that the police officer was not competent to translate, the applicant had not availed himself of the possibility of checking the translation by requesting copies of the recordings pursuant to article 268 § 8 of the Code of criminal procedure.


ITEMID: 001-92565
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KORELC v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1946 and lives in Ljubljana.
42. The Act on the Protection of the Right to a Trial without undue Delay was enacted on 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
43. Section 25 lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party has lodged a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest.
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party made its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph has not been acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
Article 14
“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.
All are equal before the law.”
Section 6
“Close family members under this Act are the spouse of an owner or a person with whom the owner lives in a long-lasting life community, their children or adopted children, parents and adoptive parents and persons whom they are obliged by law to support.
The provisions of the previous paragraph shall also be used mutatis mutandis for the determination of close family members of a tenant.”
Section 56
“If the tenant dies, the owner of the apartment is obliged to conclude a contract of lease with the tenant’s spouse or with a person who lived with the tenant in a long-lasting life community or with one of the close family members stated in the contract of lease...”
44. On 14 October 2003 the new Housing Act (Stanovanjski zakon (SZ-1), Official Journal 69/2003) entered into force and replaced the 1991 Housing Act. In its Section 109, among other changes, the words “a person who lived with the tenant in a long-lasting life community” were replaced by “a person who lived with the tenant in an extramarital relationship”.
Section 12
“A long-lasting life community of a man and a woman, who have not entered into a marriage, shall have for them the same legal consequences enshrined in this Act as if they had entered into [a marriage] if no such reason existed which would render the marriage between them void; and it shall have effect in other areas if the law so provides.
If a decision concerning rights or obligations depends on the existence of a life community referred to in the previous paragraph, this existence shall be established in the proceedings concerning these rights or obligations. The decision on this question will only have legal effect in the matter in which it was resolved.”
45. In 2005 Slovenia adopted the Registration of Same-Sex Civil Partnership Act, which regulates in entirety partnerships of same-sex couples.
Section 37
“If the partners cannot agree after the cessation or annulment of the partnership on who will remain in housing to which one or both have leasing rights, a court shall decide the claim of the other partner, at his request
If a partner who is a tenant of the housing dies or is declared deceased, the other partner who is stated in the contract of lease and actually lives in the property has the right to claim the conclusion of a contract of lease from the lessor.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83374
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GAULT v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;No separate issue under Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 6. The applicant was born in 1967 and lives in Lisburn, Northern Ireland.
7. On 19 May 2000 the applicant’s husband was murdered. On 18 August 2001 the applicant was charged with aiding and abetting Mr G, her former lover, to murder her husband. She was released on bail pending trial to her home where she lived with her three children, who were 6 years of age at the time (triplets). Neither the police nor the prosecution objected. The trial judge permitted the applicant to remain on bail throughout the trial: no objection was formulated by the prosecution. She continued to reside at home with her children.
8. On 20 November 2002 the jury unanimously convicted Mr G of murder but failed to agree on a verdict on the applicant. The trial judge granted her bail pending the prosecution’s decision whether to prosecute her further. The prosecution did not object to bail and she remained at home with her children. Subsequently, the prosecution elected to prosecute the applicant again but did not object to her remaining on bail.
9. The applicant’s second trial began on 17 February 2003. The second trial judge also allowed bail, no objection being made by the prosecution. On 20 March 2003 she was, by a majority verdict of the jury, convicted of murder. The trial judge sentenced her to life imprisonment and committed her to custody. The period of imprisonment that the applicant had to serve before she could have been considered for release was set at fifteen years. Leave to appeal was rejected by a single judge of the Court of Appeal of Northern Ireland.
10. On 9 July 2004 the full Court of Appeal allowed her appeal. It found that the second trial judge had misdirected the jury as to the state of mind necessary to make the applicant an accessory to murder. While the prosecution case had been that the applicant had facilitated the killing of her husband by Mr G knowing that he intended to kill and intending that Mr G should do so, that was not the matter put by the second trial judge to the jury: that trial judge had directed the jury as follows:
“If you’re satisfied beyond reasonable doubt that [the applicant] participated in a joint venture with [Mr G], realising that in the course of that venture [Mr G] might use force with intent to kill or to cause really serious injury to her husband and Mr G did so, then she would be guilty of murder.”
The Court of Appeal found that that ruling effectively opened to the jury the possibility of convicting the applicant for murder on the basis of matters not part of the prosecution case and not canvassed during trial and, notably, on the basis that the applicant had engineered a meeting between her husband and Mr G without any firm intention that he be killed. The Court of Appeal quashed her conviction and, having heard further submissions, ordered that she be returned upon a fresh indictment for murder before the Crown Court.
11. The applicant applied for bail and the prosecution did not object. The summary form of order of the Court of Appeal of 9 July 2004 indicates that her application was refused and that she was to remain in detention until retrial. In her application form and subsequent observations the applicant stated that there were two grounds for that refusal: she had been convicted by a jury of murder on 20 March 2003 and any retrial would take place soon. In correspondence, she submits that the reasoning of the appeal court was not committed to writing, that her representative’s contemporaneous note was mislaid in the Taxing Master’s office but that the Belfast Telegraph newspaper had accurately reported the reasons for refusing her bail request. The relevant extract reads as follows:
“Refusing the application the Lord Chief Justice said he had taken her circumstances into consideration. But he said that the situation was now different in that she had been found guilty by the majority verdict of the jury.”
In their written observations, the Government submitted a copy of the contemporaneous notes of the senior law clerk present at the hearing. The final paragraph of her notes reads as follows:
“ CS [Counsel for the prosecution]: no opposition to bail – did attend.
LCJ [Lord Chief Justice]: on bail before trial, course of trial, honoured all condits [conditions] prosecution doesn’t oppose. Material difference here – found guilty by jury quashing material irregularity on charge. Doesn’t sound directly an issue on bail. Be a prompt retrial. Refused.
In her application to the Court of Appeal for leave to appeal against the refusal of bail to the House of Lords, the applicant argued, inter alia, that the reasons for refusing bail on 9 July 2004 were not relevant, sufficient or lawful within the meaning of Article 5 of the Convention. On 22 July 2004 the Court of Appeal refused leave.
12. The applicant remained in custody until 6 September 2004 when she was granted bail by the third trial judge, during which period of time her children were cared for by her elderly and infirm parents.
13. She remained on bail throughout the third trial. On 8 October 2004 she was acquitted and released.
14. The grant of bail in Northern Ireland is governed by common law rather than statute. There is a discretion to grant bail in any case but the court is obliged to pay regard to certain considerations before doing so and may not do so if satisfied of other matters. The grounds on which bail may be refused include: where there are good reasons for believing that the defendant will not turn up for his or her trial; where there is a serious likelihood that the defendant will interfere with witnesses or evidence or otherwise obstruct the course of justice; and when the defendant is likely to commit further offences if set at liberty. In deciding whether there are good reasons for believing that the defendant will not turn up for his or her trial, the relevant factors to be taken into account by the court include: the nature and seriousness of the alleged offence; the probable method of dealing with the defendant in the event of a conviction; and the strength of the evidence against the defendant. The attitude of the prosecution is one factor to be taken into account by the court.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-86526
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CHURCHILL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Alan Churchill, is a British national who was born in 1938 and lives in Somerset. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 1 August 1991. On 30 January 2001, the applicant made a claim for widows’ benefits. On 9 April 2001 the applicant was sent a further application form under the new system in place as from 9 April 2001. He duly completed and returned the application form on 17 April 2001. On 30 April 2001 the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before 9 April 2001.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.