ITEMID: 001-114659
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ČADEK AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: André Potocki;Angelika Nußberger;Dean Spielmann;Helena Jäderblom;Karel Jungwiert;Mark Villiger
TEXT: 5. Under the Land Ownership Act, restitution claimants were entitled to restitutio in integrum of land which had been confiscated from them before 1990. If it was not possible, for various reasons indicated in the Act, to restore a particular plot of land, they were entitled to receive compensatory land of equivalent value (“restitution claim”). The Land Fund (pozemkový fond), a public body under the Ministry of Agriculture (hereinafter “the Fund”), deals with these restitution claims. Some original restitution claimants transferred their claims to other persons, a practice which was allowed by law. The restitution claims had a nominal value, which was based on the price of the confiscated land in 1991.
6. Act no. 253/2003 amending the Land Ownership Act (“the Amendment Act”) was passed on 6 August 2003 (see paragraph 41 below). It provided that if the Fund had not settled a claim for a substitute plot of land by 31 December 2005 – or within two years if the claim had been purchased after entry into force of the Amendment Act – the claim would be extinguished and the restitution claimant would retain only the right to financial compensation in the amount of the nominal value of the claim. By the end of 2005 many restitution claims were still outstanding.
7. On 7 June 2005 the board of directors of the Fund adopted a confidential internal directive in accordance with which the Fund would draw up contracts for the transfer of plots of land with persons who, like some of the applicants, had instituted proceedings against it. This practice was terminated on 1 July 2005. When the media discovered this month-long practice in autumn 2005, they portrayed it as scheming with restitution claims within the Fund. According to them, those who had profited from it had been mostly people who had known about the directive and instituted proceedings after 7 June 2005, including some friends of managers of the Fund. As a result of the disclosure of this practice, four managers of the Fund were dismissed and on 16 November 2005 the Minister of Agriculture resigned. Subsequently, the Fund started to institute proceedings in order to have those transfer contracts rendered null and void.
8. Between 7 March and 29 April 2005 the applicant purchased a number of restitution claims for substitute plots of land. On 30 June 2005 he instituted proceedings against the Fund, claiming the transfer of particular plots of land in settlement of his restitution claims.
9. On 6 October 2006 the Prague 8 District Court (obvodní soud) rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 28 March 2007 the Prague Municipal Court (městský soud) upheld the judgment but on a different ground. It found that the applicant was not entitled to settlement of his restitution claims through legal proceedings, as the Fund’s priority was to settle the original restitution claims. On 10 August 2007 the Supreme Court (Nejvyšší soud) dismissed an appeal on points of law lodged by the applicant, thereby endorsing the opinion of the District Court. On 6 March 2008 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below).
10. Between 7 March and 29 April 2005 the applicant purchased several restitution claims for substitute plots of land. On 30 May 2005 he instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of his restitution claims.
11. On 22 September 2006 the Prague 10 District Court rejected his claims, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 12 April 2007 the Municipal Court upheld that judgment. On 28 August 2007 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 10 July 2008 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below).
12. On 11 May 2005 the applicant purchased several restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of his restitution claims.
13. On 14 August 2006 the Prague 4 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 17 January 2007 the Municipal Court upheld that judgment. On 30 June 2008 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 18 September 2008 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below).
14. Between 11 and 19 May 2005 the applicant purchased a number of restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of his restitution claims.
15. In a judgment of 27 November 2006 the Prague 9 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 11 July 2007 the Municipal Court upheld that judgment. On 30 June 2008 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 25 June 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS6/05 (see paragraph 42 below).
16. On 11 May 2005 the applicant purchased several restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of his restitution claims.
17. In a judgment of 2 October 2007 the Prague 5 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 10 February 2008 the Prague Municipal Court upheld that judgment. On 5 March 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 8 July 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below).
18. The restitution claims purchased by the applicant in the five applications cost a total of 12,184,153 Czech korunas (CZK) (487,366 euros (EUR)). The claims were settled by financial compensation of CZK 6,651,909 (EUR 266,076), which constituted their nominal value.
19. The applicant has been a farmer since 2003. She purchased several restitution claims for substitute plots of land between 2004 and 2005, and one on 17 June 2003. The total nominal value was CZK 2,030,605 (EUR 81,224); but the applicant paid CZK 2,984,824 (EUR 119,393). On 14 July 2005 she instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of her restitution claims.
20. In a judgment of 31 July 2006 the Klatovy District Court rejected her claim, holding that her restitution claims had expired on 31 December 2005 under the Amendment Act. On 8 November 2006 the Plzeň Regional Court (krajský soud) upheld that judgment. On 23 August 2007 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 12 March 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS6/05 (see paragraph 42 below).
21. The applicant received financial compensation of CZK 1,307,740 (EUR 52,310) for her restitution claims and she had the right to receive the rest of the nominal value of her restitution claims.
22. The applicant is a corporation established under Czech law. On 19 April and 3 June 2005 respectively, the applicant company concluded two contracts by which it purchased for an unspecified amount restitution claims for substitute plots of land. On an unspecified date the applicant company instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of its restitution claims. On the basis of a contract concluded on 1 July 2005, the Fund transferred to the applicant company the ownership of a plot of land valued at CZK 277,903 (EUR 11,579). Consequently, the court proceedings were terminated as the matter had been resolved.
23. On an unspecified date the Fund instituted proceedings against the applicant company for the determination of property rights to the transferred plot of land, claiming that the contract was null and void.
24. On 9 June 2006 the Cheb District Court decided that the Fund was the owner of the plot of land. It held that the contract was null and void because the Fund had not offered the sale of the land publicly before transferring it to the applicant company and had thereby unlawfully excluded other eligible persons from acquiring it. On 23 May 2007 the Plzeň Regional Court upheld the judgment, endorsing the District Court’s ruling. On 7 May 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant company. On 6 August 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant company as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below).
25. The applicant company has not requested financial compensation to settle its restitution claims.
26. Between 2 February and 31 March 2005 the applicants purchased several restitution claims for substitute plots of land in order to acquire land in Prague to set up a health centre. The total nominal value of the restitution claims was CZK 5,084,404 (EUR 211,850); they paid CZK 14,092,500 (EUR 563,700). On 25 May 2005 they instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of their restitution claims.
27. In a judgment of 23 May 2007 the Prague 4 District Court rejected their restitution claims, holding that they had expired on 31 December 2005 under the Amendment Act. On 17 April 2008 the Prague Municipal Court upheld this judgment. On 18 November 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicants. On 18 March 2010 the Constitutional Court dismissed a constitutional appeal lodged by them as manifestly ill-founded.
28. The first applicant received financial compensation of CZK 2,351,442 (EUR 94,050) and did not ask for financial compensation for his outstanding restitution claims. The second applicant did not ask for financial compensation.
29. The applicant is an agricultural company. On 27 May 2005, it concluded a contract by which it purchased, for an unspecified amount, restitution claims for substitute plots of land, the nominal value of which was CZK 1,247,292 (EUR 51,971). On the basis of a contract concluded on 1 July 2005 the Fund transferred to the applicant company the ownership of plots of land valued at CZK 733,906 (EUR 29,356) in partial settlement of the claim. The application refers only to that part of the claim.
30. On 17 December 2005 the Fund instituted proceedings against the applicant company for determination of property rights to the transferred plot of land, claiming that the contract was null and void. On 30 October 2007 the Jindřichův Hradec District Court decided that the Fund was the owner of the plots of land. It held that the contract was null and void because the Fund had not offered the sale of the land publicly and had thereby unlawfully excluded other eligible persons from acquiring it. On 27 February 2008 the České Budějovice Regional Court upheld the judgment, endorsing the District Court’s ruling. On 17 March 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant company. On 10 June 2010 the Constitutional Court dismissed a constitutional appeal lodged by them as manifestly ill-founded.
31. The applicant company received CZK 733,906 (EUR 29,356) as financial compensation for its restitution claim.
32. On 17 September 1997 the applicant purchased a restitution claim for substitute plots of land for CZK 56,248 (EUR 2,344), corresponding to its nominal value. She intended to acquire a plot of land on which she could breed horses for private purposes.
33. On 21 January 1998 the Fund accepted the applicant’s request for the transfer of a particular plot of land, but informed her that it could not carry out the transfer until it had all the necessary materials regarding the relevant zoning plan. On 2 February 1998 the applicant wrote to the Fund asking it to settle her claim without further delay.
34. On 8 November 2005 the applicant instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of her restitution claim.
35. On 12 December 2005 the Fund transferred the ownership of the plot of land to the City of Tanvald. Consequently, the applicant brought proceedings against the Fund, claiming that the transfer contract should be declared null and void.
36. On 27 April 2007 the Jablonec nad Nisou District Court upheld her claim and declared the transfer contract null and void. In a judgment of 26 June 2008 the Ústí nad Labem Regional Court rejected the applicant’s claim, however, holding that her restitution claim for the transfer of land had expired on 31 December 2005 under the Amendment Act and thus she had no interest in having the contract declared null and void. On 12 May 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 14 September 2010 the Constitutional Court dismissed a constitutional appeal lodged by her as manifestly ill-founded.
37. This Act provides, inter alia, for the restitution of certain agricultural and other properties, which were ceded or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990.
38. Section 11 provides that if the actual property cannot be restored to its rightful owner, for example because the land has been built on, the Fund will transfer other equivalent State-owned property, preferably located in the same area, to the rightful claimant, if the latter consents.
39. In accordance with section 16, if property cannot be restored to its rightful owners and the latter cannot be compensated by the transfer of other property to them, they have a right to financial compensation under certain conditions.
40. Under section 28a, financial compensation is based on the value of the confiscated property on 24 June 1991, estimated in accordance with the regulations in force at that time.
41. Act no. 253/2003 amending the Land Ownership Act (“the Amendment Act”) entered into force on 6 August 2003, having been approved by the Lower Chamber of Parliament on 22 May 2003. It provided that any right to the transfer of substitute plots of land by the Fund under section 11 that had not been settled within two years from the date the restitution claim had been established would be extinguished, and claimants would be entitled only to financial compensation under section 28a. Concerning claims that were established before the Amendment Act entered into force, the right to substitute plots of land would be extinguished on 31 December 2005.
42. The Constitutional Court repealed the time-limit introduced by the Amendment Act for settling the claims of the original restitution claimants by transferring a substitute plot of land on the basis that it breached Article 1 of Protocol No. 1. It held that given that the Fund had not been effectively settling outstanding claims – it had not been offering enough plots of land for transfer and there had been no effective legal remedy for enforcing those claims – the time-limit in effect deprived restitution claimants of their claims, which constituted legitimate expectations under Article 1 of Protocol No. 1. However, the court distinguished between original restitution claimants and persons who had acquired restitution claims from them by deed. It said that only the rights of the original restitution claimants had been breached, because the transferees must have been aware of the difficulties in settling restitution claims and of the risks that accompanied them, so they could not be said to have legitimate expectations.
43. The Supreme Court, enlarging on the above decision of the Constitutional Court, held that the time-limit for settling claims for substitute plots of land did not apply to farmers who needed the land for their own farming, even if they were not original restitution claimants. It held that the right to substitute plots of land constituted “possessions” under Article 1 of Protocol No. 1 and that the Amendment Act, which in practice had deprived farmers of this right, had not struck a fair balance between the competing interests. It distinguished between the situation of a farmer who needed the land for his or her own farming, which was in compliance with the object and purpose of the Land Ownership Act, and those dealing in property, whose commercial activities involved certain risks.
44. In 2002 and 2003 the Supreme Audit Office conducted an audit of the Fund and found, inter alia, several irregularities in the way in which it dealt with restitution claims. It noted that the Fund’s offer of plots of land to settle restitution claims had been limited and that the Fund had favoured the sale of land before using it to settle the restitution claims. It found some further irregularities in the way in which the ownership of land had been transferred under the Land Ownership Act.
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-70138
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OSTROVAR v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violations of Art. 8;Violation of Art. 13+3;No violation of Art. 13+8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1974 and lives in Chişinău. He is the former senior assistant to the prosecutor of the Centru District of Chişinău.
9. On 24 July 2002 the applicant was arrested by the Moldovan Secret Services on charges of bribe-taking. Later the charges were modified to corruption (trafic de influenţă).
10. On 15 August 2002 the Chişinău Regional Court ordered the remand of the applicant for a period of thirty days. The remand was later prolonged by the decisions of the Buiucani District Court of 2 September 2002 and 10 October 2002.
11. On 15 November 2002 the Court of Appeal ordered the applicant's release from detention.
12. On 4 April 2003 the applicant was convicted by the Court of Appeal and sentenced to ten years' imprisonment. He was immediately put in detention. The applicant appealed against that decision. The outcome of the proceedings is unknown to the Court.
13. The applicant's complaints regarding the conditions of detention relate to two periods of detention served in the Remand Centre No. 3 of the Ministry of Justice (Izolatorul Anchetei Preliminare Nr. 3), namely between 18 October 2002 and 15 November 2002, and between 4 April 2003 and 13 December 2003.
14. The applicant claims to have been detained in a 25 m² cell together with at times more than twenty people. There were twenty metal bunk-beds, with no mattresses or covering and it was not always possible to have access to a bed because of overcrowding. After lodging his application with the Court, he was transferred to a smaller cell of 15 m², where he claims to have had to take turns in sleeping, because of overcrowding, and where the conditions were allegedly considerably worse than before.
15. Smoking inside the cells was not prohibited by the internal regulations of the prison, and because of lack of alternative smoking facilities, the inmates had to smoke inside the cells. The applicant suffered from asthma and the prison administration was aware of this since he had been arrested and brought to prison immediately after undergoing asthma treatment in hospital, where he was arrested. Because of the exposure to cigarette smoke the applicant suffered many asthma attacks, which usually happened two or three times a day.
16. There was no adequate medical assistance. Although there were medical personnel in the penitentiary, their ability to help was limited because of lack of medication. The applicant asked the prison doctor on many occasions for medical assistance, but he was refused. He was told that the prison did not have the necessary medication. Because of the lack of medication he had to endure the attacks and wait for them to pass, being obliged to sit in a vertical position. His attacks became more frequent and started to last longer. While the prison doctor knew that the applicant suffered from asthma, he gave his permission for the applicant to be placed in a cell with smokers. The applicant had to rely entirely on the supply of medication from his family.
17. His situation was worsened by the fact that the cell's window was closed by shutters and there was no fresh air coming through it. Moreover, the cell was not provided with a ventilation system, and was therefore very damp.
18. Because of lack of heating and insulation the cell was very cold during the winter and very hot during the summer.
19. The shutters on the windows prevented daylight from coming in. Nevertheless, the prison administration limited the electricity supply to the cells to only six hours per day; therefore the inmates had to live in darkness and had great difficulty in preparing food.
20. Water was provided to the cell for only ten hours per day, sometimes less. Access to warm water was limited to only once in fifteen days. There were no facilities for washing and drying clothes. The inmates had to dry their clothes in the cell.
21. Because of poor medical assistance and bad hygienic conditions, the cells were infected with bed bugs, lice and ants. The inmates were exposed to infectious diseases like tuberculosis, skin and respiratory infections.
22. The toilet was situated at 1.5 metres from the dining table and was permanently open. It was impossible to prevent the bad smell because of the lack of adequate water supply and lack of cleaning products.
23. There was no library in the prison and the inmates did not have access to newspapers or other publications. There were no appropriate facilities for recreation and exercise.
24. The food served to the inmates was of a very bad quality. It consisted of boiled water with a bad smell and was almost inedible. The applicant submitted that the Government spent 2.16 Moldovan Lei (MDL) (the equivalent of 0.14 euros (EUR) at the time) for one detainee's food per day, while the price of a loaf of bread was more than MDL 3.
25. The applicant was detained in cell no. 16 with a surface of 28.4 m², designed for fourteen detainees, and in cell no. 138 of 19.3 m², designed for ten detainees.
26. In accordance with Article 17 of the Law on Pre-Trial Detention, the applicant could have asked the prison authorities to be removed to another cell with non-smokers.
27. The detainees were provided with medical assistance in accordance with the law. When a prisoner needed medical assistance that could not be provided by the prison doctors, he could be taken to a regular hospital. The prison was provided with medication by the State; however, in cases when the prison lacked certain medication, the detainees had the right to receive it from their relatives. Since the applicant was provided with all the necessary medication, no medical report prescribing other medication was drafted.
28. The prison authorities were aware of the applicant's asthma. According to the Government, the prison register stated that the applicant requested medical assistance only twice, on 2 September and 5 November 2003. In their observations of 31 May 2004, the Government stated that on 5 November 2003 a doctor consulted him and prescribed medication. The Government did not present to the Court a copy of the prison register.
In their supplementary observations on the merits of 10 May 2005, the Government stated that medical assistance and medication were provided to the applicant on both days that he requested them. The Government provided a copy of a hand-written report of 13 May 2004, in which a prison doctor informed the chief medical doctor of the prison that the applicant had been examined by him on those dates and that medication had been provided to him.
29. Ventilation of the cells was effected by opening the windows and fanlights during the detainees' exercise period and by the common ventilation system.
30. Heating was provided by the prison's own heating system which used natural gas and coal.
31. The cells had access to daylight, and electricity was provided continuously.
32. The cells were permanently provided with tap water, and accordingly the inmates enjoyed an adequate level of hygiene. The Government also stated that the detainees had access to warm water.
33. The toilets were separated from the rest of the cell by a wall in order to ensure the privacy of the detainees.
34. The cells were equipped with radio sets, sometimes with television sets.
35. The applicant enjoyed the right to a daily walk outside for one hour with the possibility of exercising.
36. The detainees were provided with free food in accordance with the norms provided by the Government and the quality of food was satisfactory. The prison was provided on a daily basis with bread, vegetable oil, vegetables, tea and sugar. Because of insufficient funding, the provision of meat, fish and dairy products was not always possible. However, the detainees were allowed to receive once a month a parcel with food from their families. Moreover, the detainees had the right to buy food from the prison shop at least once a month, and to spend up to MDL 18 (the equivalent of EUR 1.2 at the time).
37. There was no intention to humiliate or to debase the applicant and the prison authorities did not undertake any action in order to humiliate him.
38. The letters sent to him by his mother did not always reach him. In support of this submission the applicant sent the Court a receipt of a registered letter with acknowledgement of receipt sent to him by his mother on 1 October 2003, which never reached him.
39. According to Article 18 of the Law on Pre-Trial Detention, detained persons needed a written authorisation from the body in charge of their cases in order to be able to correspond with their families. The applicant did not have an authorisation to correspond with or communicate by telephone with his relatives because of the seriousness of the offence he was charged with and in the interests of justice.
40. The applicant also submits that he was precluded from seeing his wife and his daughter and that he could not have telephone contact with them.
41. On 30 June 2003 the applicant together with other cellmates lodged a complaint with the Prosecutor General, in which the applicant complained inter alia about the ban on receiving visits, including long term visits, from his family and other persons. The prisoners asked the Prosecutor General to order the prison authorities to allow them have long term visits, telephone conversations and other kinds of contact with their relatives.
42. On 7 July 2003, the Prosecutor General's Office informed the applicant that his complaint had been forwarded to the Prosecutor's Office of Chişinău.
43. On 25 August 2003 the applicant and his cellmates wrote a new letter to the Prosecutor General's Office complaining about the lack of reply from the Prosecutor's Office of Chişinău to their letter. The prisoners repeated their complaints about the ban on visits by relatives and on telephone conversations with them and complained about an alleged breach of Article 3 of the Convention.
44. On 28 August 2003 the applicant received a letter from the Prosecutor's Office of Chişinău dated 9 August 2003 by which his complaints about the ban on visits were dismissed. In particular it stated: “...all the rights of remanded persons are provided for by Article 16 of the Law on Pre-Trial Detention. Such rights as telephone conversations and long or short term visits by relatives or other persons are not provided for in that law. The fact that these rights are not expressly forbidden does not mean that they are guaranteed”.
45. On 1 September 2003 the applicant and his cellmates challenged the Prosecutor's refusal of 9 August 2003 before the Râşcani District Court. Relying on Article 8 of the Convention and on domestic legislation, they complained about the prison authority's and prosecutor's denial of their right to have visits, including long term visits, from their relatives, telephone conversations and other kinds of contact with relatives and other persons. They asked the court to oblige the prosecutor to solve their problem. They also asked the court to hear the case in their presence.
46. On 11 September 2003 the Prosecutor General's Office wrote the applicant a letter dismissing the complaints.
47. On 3 November 2003 the applicant and his co-detainees lodged a supplementary application with the Râşcani District Court asking it to examine their application of 1 September 2003. They argued that in accordance with the Code of Criminal Procedure, the Court was obliged to examine their application within ten days of receipt. The court's failure to comply with that deadline constituted a breach of their right to an effective remedy under Article 13 of the Convention.
48. In the meantime, on 23 October 2003, judge V.M. from the Râşcani District Court examined the applicant's and his cellmates' application of 1 September 2003 in their absence and dismissed it. The court considered that the application had a general character and did not refer to any specific events. The court issued a decision with the application number 13-69/03 dated 23 October 2003.
49. On the same date, the same judge from the Râşcani District Court examined an application of other detainees from Cricova prison concerning alleged abuses by police during a prison riot and dismissed it. The court's decision had exactly the same application number and the same date as the decision in respect of the applicant and his cellmates.
50. On 29 January 2004 the Râşcani District Court informed the applicant and his co-detainees that their application had been dismissed on 23 October 2003.
51. On 4 March 2004 the applicant and his co-detainees wrote a letter to the Râşcani District Court and asked for a copy of its decision of 23 October 2003.
52. On 10 March 2004 the applicant and his co-detainees appealed against the decision of 23 October 2003 to the Chişinău Court of Appeal. In their appeal application they stated inter alia that the Râşcani District Court had examined their case in their absence and that it had not even sent them a copy of its decision.
53. On 26 March 2004 the Râşcani District Court sent the applicant and his cellmates a copy of its decision of 23 October 2003 which referred to the riot at Cricova prison.
54. On 14 April 2004 the applicant and his cellmates sent a new letter to the Râşcani District Court and informed it that the decision sent to them on 26 March 2004 did not refer to their case and asked for a copy of their decision. The Court does not have information as to whether the applicant and his cellmates received a reply to this letter.
55. On 28 June 2004 the Chişinău Court of Appeal examined the applicant's appeal against the decision of the Râşcani District Court and dismissed it by a final judgment. In its judgment the Court of Appeal indicated that the applicant and his lawyer had been present at the hearing. However, the facts and the law part referred to the Cricova prison riot and did not have any connection with the applicant's case.
56. The Government submit that according to Article 19 of the Law on Pre-Trial Detention, a detained person needed a written authorisation from the investigation body in charge of his case in order to be able to receive visits from family or from other persons.
57. They claim, and the applicant does not deny, that he received visits from his mother on 30 May 2003, 12 November 2003 and 12 December 2003.
58. The relevant parts of the CPT's report concerning the visit to Moldova between 11 and 21 October 1998 read as follows:
“77. Prisoners were accommodated primarily in five buildings. Buildings I, II and VII for the most part accommodated remand prisoners. Male juveniles were held in a section of building III, the basement of which was reserved for prisoners in transit. Women had a separate detention area, situated in Building V. Sentenced prisoners were scattered among the various buildings, except for the buildings housing the detachment of convicted prisoners employed as workers, situated in Building VIII. It should also be noted that all prisoners sentenced to life imprisonment were accommodated in the basement of Building II.
...
80. In contrast, in all the other detention areas, living conditions of the vast majority of the prison population left a considerable amount to be desired. In most of the cells, the living space per prisoner was well below the minimum standard set and the cramming in of persons had reached an intolerable level. For example, in Buildings I and II, up to 16 people were accommodated in cells of 24 m², 24 people had to share a cell of 32 m², and 29 people were packed into a cell of 52 m². In the juveniles' section in Building III, 12 young people were placed in a cell of 21 m² and 16 in a cell of 23 m². In addition, the delegation observed that cells of 8 m² to 9 m² accommodated up to four people.
Furthermore, in these cells access to natural light was very limited, artificial lighting was mediocre, and the air polluted and rank. For prisoners still under investigation (i.e. over 700 prisoners), the situation was even worse, their cells being virtually totally without access to natural light because of the thick external metal blinds covering the windows. By force of circumstances, the equipment was reduced to the bare minimum, comprising metal or bunk beds which were extremely rudimentary and in a poor state, and a table and one or two benches. Furthermore, in many cells, there were not enough beds and prisoners had to share them or sleep in turns. In addition, the bedding was in a bad condition; the very small stocks of mattresses, blankets and sheets was not enough and many prisoners without family or resources had to sleep just on the bed frame.
The cells had a sanitary annex, a real source of infection. Above the Asian toilet was a tap which served both as a flush and as a source of water which prisoners could use to freshen up or wash. Moreover, this area was only partially partitioned by a small low wall less than one metre high, which meant that it was not possible to preserve one's privacy.
The state of repair and cleanliness in the cell blocks, overall, was also of considerable concern. In addition, many of the cells were infested with cockroaches and other vermin and some prisoners also complained that there were rodents.
To sum up, the living and hygiene conditions for the vast majority of the prison population were execrable and, more particularly, constituted a serious health risk.
81. The three transit cells in use at the time of the visit in Building III deserve particular mention. The situation in terms of living space in the cells was without a doubt the worst seen. Up to 18 prisoners were crammed into cells of 18 m². Half of the surface was taken up by a two level wooden platform (without mattress and blankets) completely blocking the window. In addition, the artificial lighting was mediocre and the atmosphere there was suffocating. As the remaining surface of the cell was filled up with the detainees' belongings and an Asian toilet, the detainees had no other choice but to pile onto the two levels of the platform. A number of detainees had been accommodated in these intolerable conditions for three to four months.
82. As regards washing facilities for prisoners, they had weekly access to the showers. However, the number of showers was notoriously inadequate for the male population (23 showers for approximately 1400 detainees, and moreover, its functioning was unreliable). In addition, prisoners who were not in a position to receive the basic washing necessities from their families were totally left without because of the lack of soap and towels in the prison.
83. The material conditions described above were further aggravated by another major inconvenience. Prisoners had to put up with very loud and repetitive music which was ongoing throughout the day and broadcast by loud speakers in the yard from 6 o'clock in the morning to 10 o'clock at night. The reason given for this measure was to ensure that the various categories of prisoners had no contact with each other. Many prisoners complained about this situation and the delegation was able to see for itself how obtrusive it was. For example, in many of the cells it was virtually impossible to hold a conversation.
...
98. The health care staff in prison No. 3 comprised nine full-time doctors, assisted by seven assistants, 11 nurses and a psychologist. The nine doctors were as follows: one doctor in charge of the prison medical service, two general practitioners, two pneumologists, a psychiatrist, a dermatologist, a radiologist and a dentist. In addition to providing a consultation facility, the medical staff was responsible for an infirmary with a capacity of 70 beds, although in reality, this area accommodated 200 patients, primarily patients suffering from tuberculosis.
The medical team could at a pinch be considered sufficient. However, such is not the case for the team of assistants and nurses.”
59. The relevant parts of the CPT's report concerning the visit to Moldova between 10 and 22 June 2001 read as follows:
“69. The visited penitentiary establishments were severely affected by the country's economic situation. The budget ceiling for spending on the prison service under the 2001 Finance Act had been set at 48.7 million Lei (approximately 4.2 million Euros) or 38,9% of the resources needed per year. As a result, prisons suffered from severe shortages from every standpoint. For example, the daily budget for feeding a prisoner was 2.16 Lei, just 38.8% of the current statutory norm. Prisons also suffered form cuts in electricity, water and heating, not to mention the unavailability of medicines necessary for treating prisoners.
In their letter of 5 November 2001, the Moldovan authorities refer to the efforts made at the beginning of 2001 by the Department of Prison Administration to obtain humanitarian aid from international organizations and individuals, in order to resolve the most urgent problems of the prison system (2.3 million Lei have been obtained in this way).
The CPT recognizes the laudable efforts made by the Moldovan prison administration and these deserve to be supported. Nevertheless, the Committee has already recalled on several occasions that there are certain basic necessities of life that must, in all circumstances, including in a serious economic situation, be assured by the state in respect of persons for which it is responsible. Nothing can ever exempt the state from this responsibility.
As a consequence, the CPT calls upon the Moldovan authorities, at the highest political level, to take without delay the necessary measures in order that all prisons in Moldova may adequately assure the basic necessities of life for all detainees.
...
78. The description of Prison No. 3 in Chişinău in paragraph 77 of the report on the 1998 visit is still valid. As previously indicated, this establishment suffered from severe overcrowding: 1,892 prisoners (mainly remand prisoners), including 127 women and 122 juveniles, for 1,480 places.
82. For example, the follow-up visit to Prison No. 3 in Chişinău revealed positive changes which the CPT welcomes. It particularly approves of the removal of the heavy blinds covering the windows of cells looking onto the interior of the establishment. It is also planned to replace the blinds on the windows looking onto the street with an alternative arrangement that will let in sufficient natural light.
...
...Major repairs had also been made to the heating with, in particular, the installation of a new boiler, while the prison's central showers had been completely renovated (three shower rooms were operational and a fourth was being repaired) with the help of former prisoners and prisoners' families. This made it possible for male prisoners to take a shower, with hot water, every ten days. In certain buildings, moreover, repair work on the electrical system and painting of the corridors had been completed. A few cells were currently undergoing refurbishment.
That said, the appalling living conditions and state of hygiene in buildings I, II and III, including the transit cells, described in paragraphs 80 and 81 of the previous report, had not changed (except as far as access to natural light is concerned). Indeed, the acute overcrowding in these buildings exacerbated matters still further. In the few cells viewed that were properly equipped and fitted out, this was due to the prisoners themselves, who had been able to procure what was needed from their families.
...
87. The absence of organised activity programmes was a common feature of the establishments visited. This was undoubtedly a consequence of the economic situation and overcrowding, but also of the restrictive legislation governing the categories of prisoners accommodated there. Only a minute fraction of the prison population had work: some sixty in Bender and Chişinău and twenty-seven in Cahul. The majority of these prisoners formed part of the workforce allocated to the various prison duties. Other forms of activity were almost non-existent. It should be noted, however, that some efforts had been made in Prison No. 3, following the CPT's recommendations. For example, the outdoor exercise areas had been equipped with modest sports facilities. In this context, management plans to fit out two sports halls as soon as possible deserve particular support. Improvements had also been made to the juvenile detention regime: a television room had been provided and a few activities organised, such as music, singing and group discussions/debates. However, these early attempts to meet the needs of young persons remain an isolated example. In the other establishments, they were left entirely to their own devices.
...
92. The follow-up visit to Prison No. 3 showed that compared with 1998 (see paragraph 98 of the report) the situation regarding health staffing levels had deteriorated. In particular, the number of nurses had fallen (from eleven to eight) added to which, two of these posts were vacant. The number of doctors and medical assistants remained the same, 9.5 and 7 respectively, but the post of head doctor was vacant. Such a team is not sufficient to meet the needs of almost 2,000 prisoners, a significant number of which were in the prison hospital (149), particularly as far as the care staff is concerned (medical assistants and nurses). The number of complaints received concerning access to medical staff and medical care is therefore hardly surprising.
...
95. As indicated in the preliminary remarks, the supply with necessary medication was problematic in the visited establishments. The detainees mostly depended on their families or on non-governmental organisations in order to obtain the necessary medication (for example, Pharmaciens sans Frontières at Prison No. 3)...
98. From the standpoint of medical confidentiality, medical examinations and consultations did not take place in appropriate conditions in any of the establishments. As a rule, everything took place in the custody areas at cell doors (through the hatch), in the presence of guards. If prisoners had to be treated in a consultation room, guards were also in attendance. The situation in Prison No. 3, in the so-called "procedure" room in the infirmary, was particularly undignified. Treatment was administered through a closed door with bars, with an opening measuring 37 cm². The patients concerned then had to present the relevant part of the body, be it forearm or buttocks, in full view of other prisoners and staff.
99. There also needs to be a review of access to a doctor and a medical assistant. The delegation observed that when they were doing their daily rounds, the medical assistants only had minimal contact with prisoners, and always in the presence of guards. As a result, it proved very difficult to request consultations, which had to be done through guards. Many complaints were received about the considerable delays in gaining access to care staff and the barriers erected by guards. The CPT recommends that this situation be remedied.
100. There are several indicators to suggest that the situation regarding tuberculosis, already a matter of concern in 1998, is deteriorating. For example, in Prison No. 3, there has been a constant increase in the number of recorded active cases, from 54 in January 2000 to 121 in June 2001. Moreover, according to statistics supplied, tuberculosis accounts for 42% of the deaths in prison.
121. The CPT notes the improvements made in Prison No. 3 to the conditions in which visits take place, with the refurbishment of the booths used for short visits and rooms fitted out for convicted prisoners' long visits. Nevertheless, the visiting areas remain insufficient, given the capacity of the establishment. ... The CPT invites the Moldovan authorities to develop the facilities for visits in the establishments visited at the earliest possible opportunity.”
60. In paragraph 87 of its report concerning the visit to Azerbaijan between 24 November and 4 December 2002, the CPT recommended that prison authorities should offer a minimum of 4 m² per prisoner.
61. The relevant provision of the Constitution of the Republic of Moldova reads as follows:
“(1) The State shall ensure the privacy of letters, telegrams and other postal dispatches, of telephone conversations and of the use of other legal means of communication”.
62. This principle is restricted in relation to detainees. Specific provisions relating to the privacy of prisoners' correspondence were set out in the Code for the Execution of Criminal Sentences.
63. The relevant provisions of the Code for the Execution of Criminal Sentences read as follows:
“(1) A convicted prisoner shall enjoy rights established in the legislation on the execution of criminal sanctions in accordance with the nature of the sanction and the restrictions of any of his rights imposed upon him by the sentencing court.
(2) A convicted prisoner shall be entitled:
(c) to receive and send mail, and to submit explanations, proposals and complaints in his language, and, if necessary, to use the services of an interpreter.”
“(1) A convicted prisoner shall be entitled to receive and send an unlimited number of letters and telegrams.
(2) A convicted prisoner's outgoing and incoming correspondence ... shall be subject to censorship. A petition addressed to an ombudsman by a detained person shall not be verified by the prison administration and shall be transmitted to the addressee within twenty-four hours (as amended by Law no. 18-XIV of 14 May 1998).
(4) A convicted prisoner's proposals, requests and complaints addressed to an hierarchically higher legal authority shall be dispatched to such authority within three days.”
64. The relevant provisions of the Law on Pre-Trial Detention No. 1226-XIII read as follows:
“1. Remanded prisoners have the right to:
d) to be visited by their lawyer, relatives and other persons;
f) to correspond with their relatives and with other persons, to send complaints, requests and letters to public authorities and to public servants in accordance with the provisions of Article 18;”
“(1) Remanded prisoners can correspond with their relatives and with other persons on the basis of a written authorisation by the person or the authority in charge with their case. Letters written or received by the remanded persons are sent to the addressees or handed by the prison authority to the remanded persons within three days.”
65. By virtue of Law No. 206-XV of 29.05.2003 which entered into force on 18 July 2003 the following was added at the end of the first sentence:
“who can limit the correspondence in the interest of the criminal investigation or in the interest of justice, as well as in the interest of security and order in the detention facility.”
66. By virtue of the same law the words “within three days” were replaced with “within twenty-four hours”.
“(1) The administration of the remand centre allows the remanded person to have contact with his or her relatives or other persons, if the contact is authorised by the investigating body charged with the remanded person's case. As a rule, the remanded person has this right once a month. The length of a meeting shall be from one to two hours.”
VIOLATED_ARTICLES: 13
3
8
NON_VIOLATED_ARTICLES: 13
8


ITEMID: 001-81087
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ZAYARNYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Aleksandr Zayarnyy, is a Ukrainian national who was born in 1939 and lives in the city of Donetsk. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 February 1998 the applicant instituted proceedings in the Kyivskyi District Court of Donetsk (hereinafter “the Kyivskyi Court”) against his neighbours Mrs B. and Mr D. seeking compensation for pecuniary and non-pecuniary damage. The applicant alleged that his flat had been flooded on a number of occasions due to the defendants’ negligence.
On 16 September 1998 the Kyivskyi Court found in part for the applicant.
On 26 October 1998 the Donetsk Regional Court (hereinafter “the Regional Court”) quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court
On 10 February 1999 the Kyivskyi Court found in part for the applicant.
On 29 March 1999 the Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to take into account the instructions contained in its decision of 26 October 1998.
On 12 August 1999 the proceedings were resumed before the Kyivskyi Court. Following the applicants request, the court ordered a forensic technical examination in the case.
On 16 November 1999 the hearings were resumed. The applicant lodged an additional claim, which he modified on 15 February and 26 May 2000.
On 6 September 2000 the Kyivskyi Court found in part for the applicant.
On 9 October 2000 the Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to determine whether Mr D. had been liable for the damage caused to the applicant’s flat, and to examine the grounds of the applicant’s claim for compensation for non-pecuniary damage.
On 2 July 2001 the Kyivskyi Court found in part for the applicant.
On 22 November 2001 the Donetsk Regional Court of Appeal upheld the decision of the first instance court.
On 15 April 2002 the panel of three judges of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation finding no appearance of any procedural or substantive omissions in the applicant’s case.


ITEMID: 001-82701
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RIESS-PASSER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Susanne Riess-Passer, is an Austrian national who was born in 1961 and lives in Salzburg. She was represented before the Court by Gheneff-Rami, a law firm in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 September 2002 the applicant who, at that time, was the Vice-Chancellor of the Republic of Austria, brought proceedings under the Media Act (Mediengesetz) against Verlagsgruppe News, a limited liability company which is the owner of the weekly “Format”, since it had published an article accusing her of corruption. The applicant was represented by counsel in these and the subsequent proceedings.
By judgment of 13 February 2003 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) found that the accusations voiced against the applicant amounted to defamation and ordered Verlagsgruppe News to withdraw the issue of “Format”, to publish the judgment and to pay compensation to the applicant. That judgment was upheld by the Vienna Court of Appeal (Oberlandesgericht) on 15 September 2003.
On 5 December 2003 the applicant requested the Vienna Regional Criminal Court to impose a fine on Verlagsgruppe News under Section 20 of the Media Act, arguing that it had not duly published the judgment of 13 February 2003. In particular, she claimed that, although the judgment had been published in “Format” on 5 December 2003, the heading had been incorrect and the publication was smaller and less visible than the incriminated article had been. Subsequently, the applicant filed further identical requests each time a new issue of “Format” was published without rectifying these shortcomings.
By decision of 31 December 2003 the Vienna Regional Criminal Court dismissed the applicant’s requests, finding that the change of heading was irrelevant and that the publication of the judgment was equivalent to the impugned publication in terms of visibility. Upon the applicant’s appeal the Vienna Court of Appeal quashed the decision on 17 February 2004. It considered that the change of heading was indeed misleading and that the judgment had therefore not been duly published as required by Section 20 of the Media Act. It ordered Verlagsgruppe News to pay the applicant 1,200 euros (EUR).
On 9 March 2004 Vienna Regional Criminal Court granted the applicant’s requests made after its initial decision of 31 December 2003. It ordered Verlagsgruppe News to pay EUR 3,800 to the applicant. Verlagsgruppe News appealed against this decision.
On 14 April 2004 the Vienna Court of Appeal partly granted the appeal, dismissing those of the applicant’s requests which had been made after the decision of 31 December 2003 but before the service of the appeal judgment of 17 February 2004. Consequently, it reduced the fine to be paid to the applicant.
Throughout the proceedings under section 20 of the Media Act, the courts took their decisions sitting in camera. The applicant did not request a hearing nor did she complain about the lack of a hearing in her appeals.
In cases in which publication of a judgment has been ordered but has not been duly and/or timely complied with, Section 20 of the Media Act provides that the court shall, upon the claimant’s request and after having heard the media owner, impose a fine on the latter which is payable to the claimant.
The Media Act does not provide for the holding of hearings in proceedings concerning the imposition of fines. The courts’ practise is to take decisions under Section 20 of the Media Act in camera.
In the light of the Court’s Werner v. Austria judgment of 24 November 1997 (Reports of Judgments and Decisions 1997VII) the Supreme Court found in a judgment of 30 June 1999 (13Os86/99) that the relevant provision, namely section 6 § 3 of the Criminal Proceedings Compensation Act, which required the courts to hear the claimant but was silent as regards the holding of a public hearing, had to be interpreted in conformity with the requirements of Article 6 § 1 of the Convention. The courts were therefore required to hold a public hearing. In a judgment of 12 December 1999 (G 259/98) the Constitutional Court confirmed that such an interpretation of section 6 § 3 of the said Act was in conformity with the constitution.


ITEMID: 001-23809
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VAMOSI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Sándor Vámosi, is a Hungarian national, who was born in 1955 and lives in Budapest. He is represented before the Court by Mr E. Petruska, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1989 the Buda Central District Court pronounced the divorce of the applicant and his wife, I.T., who was granted custody of their daughter, K., born in 1986.
On 11 October 1990 the Budapest Regional Court changed the first instance decision and granted custody to the applicant.
After a first unsuccessful motion in 1992 to reclaim custody, in 1995 I.T. requested the Budapest II District Child-Care Authority to transfer, as an interim measure, the custody of K. to her. The Authority inspected the child's environment and found that she enjoyed herself in the family of the father, with whom she had a 'warm, loving and ideal' relationship. On 13 May 1996 it dismissed the request.
On 18 May 1996 K. suffered an accident while visiting her mother. She broke her elbow and needed surgery. According to I.T., the child wished to stay with her until her recovery. Despite the applicant's opposition, I.T. refused to return K. to him.
On 29 May 1996 the applicant requested the Buda Central District Court to enforce the court decision on custody. On 12 June 1996 an enforcement order was issued and the case was transferred to the competent Pest Central District Court.
The bailiff's attempt, on 8 July 1996, to return K. to the applicant was unsuccessful, since I.T.'s new husband did not let him into their flat.
On 16 July 1996 the Budapest XIV District Child-Care Authority attempted in vain to return K. to the applicant, as their officer did not find anyone at I.T.'s home.
On 22 July 1996 I.T. promised the Child-Care Authority to return K. by the end of her usual period of access, between 15 and 28 July. On the latter date the applicant went to fetch K. who refused to go with him.
On 30 July 1996 the District Court ordered its decision to be enforced with the assistance of the police.
On 2 August 1996 an officer of the Budapest II District Child-Care Authority and the bailiff, assisted by the police, attempted to return K. to the applicant. K. was hiding from the officials in the attic of I.T.'s home and refused to join the applicant. The child-care officer considered that forcible execution would risk injury to K. In the circumstances, the applicant himself agreed to the suspension of the execution.
On 3 September 1996 the Child-Care Authority contacted K.'s school in order to facilitate a meeting between K. and the applicant.
On 9 September 1996 the applicant and I.T. signed an agreement before the Child-Care Authority to avoid K.'s forcible return to the applicant. I.T. promised not to prevent K. from returning to the applicant, if she wanted to do so.
On 10 September 1996 the applicant attempted to fetch K. from school. K. was reluctant and requested 'protection' from the school director. On 27 September 1996 she requested the director to tell the applicant to refrain from coming to her school. Nevertheless, the applicant did so on several occasions and in a manner which interfered with her school life.
I.T. meanwhile brought an action before the Budapest II/III District Court seeking a change of the custody order. On 1 October 1996 the District Court heard K. The child said that she did not want to live with her father and that she would escape from home, if forced back to live with the applicant.
On 10 December 1996 an expert psychologist, Á.H., examined the child, her parents and their new partners. (The applicant had by this time started a new family, from which the child had felt excluded.)
On 7 March 1997 the applicant requested the Budapest II District Child-Care Authority to continue with the earlier enforcement procedure. Subsequently a competence dispute arose between the Budapest II and XIV District Child-Care Authorities. In June 1997 the case file was transferred to the latter. On 18 July 1997 the Budapest Administrative Office provided guidance to the Child-Care Authority as to the potential enforcement measures. It explained that the police might only use force against I.T. and that it was for the Child-Care Authority to consider whether the circumstances required the use of force against K. herself.
On the last day of I.T.'s usual summer period of access, 23 July 1997, execution was attempted again, but K. refused to follow the applicant and asked him to 'leave her alone'.
The Budapest II District Child-Care Authority organised a reconciliatory meeting for the parties on 31 July 1997. However, neither parent appeared.
On 21 August and 5 September 1997 two further attempts at police-assisted execution took place but failed, since the officials did not find anyone at I.T.'s home.
On 2 October 1997 a guardianship officer went to see K. in order to explain that she was to live with the applicant. K. did not allow anyone to lay a hand on her and refused to join the applicant. It was considered that enforcement would only have been possible by applying force.
On instruction by the Budapest Public Prosecutor's Office, the Child-Care Authority imposed a fine of 7,000 Hungarian forints (HUF) on I.T., apparently in October 1997. Her appeal was finally dismissed on 9 February 1998.
Meanwhile, on 21 January 1998 the Budapest II/III District Court dismissed I.T.'s action for custody together with the applicant's counter-claim for the termination of I.T.'s parental rights. The applicant's appeal was finally dismissed on 24 February 1999.
Further fines of HUF 10,000 and 50,000 were imposed on I.T. on 23 April 1998 and 30 December 1998, respectively.
In a statement addressed to the Pest Central District Court on 27 October 1998, the National Institute for the Protection of Families and Children observed that, inexplicably, the competent authorities could not, for two years, restore the lawful situation and thus, in their view, the child's fundamental rights were being infringed.
On 1 March 1999 K., accompanied by I.T., made a declaration before the Budapest Administrative Office. She said that she did not wish to return to the applicant, although she was ready to maintain contacts with him on condition that he dropped the execution measures.
On 6 April 1999 I.T. renewed her action to reclaim custody.
On 11 October 1999 the Budapest Administrative Office instructed the Budapest II District Child-Care Authority to impose fines repeatedly on I.T. until she complied with the court decision.
On 19 October 1999 the Child-Care Authority arranged for K. to be returned to the applicant at her school. The girl again refused to follow her father. She explained to the officials present that she was afraid of her father, because the latter had attempted to fetch her with the assistance of the police on several occasions.
On 3 December 1999 a fine of HUF 90,000 was imposed on I.T. On 25 January, 1 March, 4 April and 15 May 2000 fines of HUF 100,000 were imposed on her.
On 16 February 2000 the Pest Central District Court dismissed I.T.'s action for custody.
In reply to the applicant's complaint, on 25 February 2000 the Ministry of Justice took the view that the principal reason for the failure of the execution was the Child-Care Authority's reluctance to have recourse to coercive measures.
On 8 May 2000 I.T. appeared before the Child-Care Authority with K., who had her 14th birthday on that day. K. declared that she did not wish to live with her father.
On 29 August 2000 the Child-Care Authority informed the Budapest Public Prosecutor's Office that, of a total of HUF 557,000 imposed on her in fines since 1997, I.T. had thitherto only paid HUF 57,000 and was HUF 500,000 in arrears. On 26 October 2000 a further fine of HUF 100,000 was imposed on her.
On appeal, on 27 October 2000 the Budapest Regional Court changed the decision of 16 February 2000 and granted the custody of K. to I.T.
On 13 December 2000 the applicant complained to the Child-Care Authority that his right of access was not respected. In reply to his allegations, I.T. stated that she had explained to K. that she was to spend the weekend of 2 December with the applicant. However, on that day K. had returned from the meeting with the applicant within an hour, and was upset because of the applicant's conduct.
On 10 January 2001 the applicant renewed his complaint about access. On 23 January the Child-Care Authority requested the Service for Family Assistance and Child Welfare to mediate.
On 5 April 2001 the Child-Care Authority granted I.T. leave to pay the outstanding fines in six monthly instalments, but refused to reduce the total payable. I.T. did not comply with this decision, although on 21 August 2001 she paid HUF 50,000.
On 4 September 2001 the Supreme Court dismissed the applicant's petition for review.
In its reasoning, the Supreme Court recapitulated the reasons for the first and second instance decisions as follows:
“In the criminal proceedings [instituted by the applicant against the mother, see below] the police obtained the opinions of expert psychologists on the child and the parties. In the course of these examinations the child recounted, in concrete terms, what she had experienced in the defendant's environment, which made her feel hurt or ignored.
Expert psychologist Z.S. concluded from the explorations that the stress “caused by the parents' conflict had, since the early age of three, overwhelmed the child. The stress, however, did not cause any neurotic distortion, as her psychological defence mechanisms worked well. For this reason she opted for the mother's less strained environment and rejected her father's environment. She did everything she could to prevent the conflicts between her parents and to escape, in general, from any conflict, which caused emotional stress. However, those conflicts, which she was unable to digest, would affect the development of her personality disadvantageously and suppress the frustration, which her separation from her relatives caused. Her negative attitude towards her father's family would change if she did not fear being taken out of her present environment, with which she increasingly identifies herself, and if she could determine on her own how often and where to meet her father.”
Expert psychologist Z.V. concluded that the emotional relationship between the father and the girl had deteriorated to such a degree that the girl almost seemed to keep fleeing from her father. The situation would be much better if the child did not perceive it as a constraint to maintain contact with her father. She also concluded that, between the mother and the girl, a good mother-child relationship had developed from the very beginning and that this prime and privileged relationship remained the same later on. The expert emphasised that the child's healthy development would be endangered if – by disregarding this very close mother-child relationship and the child's emotions – she were forced back into an environment where she did not like to live because she felt neglected.
According to the statements of the parties, no fundamental change had occurred in their relationship since the termination of the proceedings instituted in 1996. The defendant continued receiving the family allowance in respect of the child and the maintenance payment deducted from the plaintiff's salary and, according to him, he used these sums to cover the costs of the litigation. He in no way contributed to the maintenance of the child; he did not even give her a single present.
On the basis of the above facts, the first instance court dismissed the plaintiff's renewed claim. According to the reasoning of the court, the defendant's personality and circumstances made him fit to bring up the child. Assessing the circumstances, the court found that a change in placement would not serve the interests of the child, who had completely taken over the plaintiff's argumentation and whose environment, in which she had been enveloped since May 1996, was therefore unsuitable to preserve her respect and love for the other parent. Since that time the plaintiff, whether intentionally or not, had contributed to the alienation of the child from the defendant and – in direct opposition to the previous court decision – she had continued to keep the child with her. The court held that the child could not, on account of her age and situation, be regarded as a person having full capacity to make sound judgments; it stressed that the parties had in vain claimed that they had acted in the child's interests; the child was in fact the victim of the parents' struggle for and over her, and it was to be feared that this situation would cause her serious mental damage.
By its final decision, the second instance court modified the first instance decision and placed the child with the mother. As from 31 October 2000, it transferred the obligation to pay maintenance to the defendant and regulated contact between the defendant and the child in the usual way.
In its reasoning, the appellate court agreed with the findings of the first instance court as to the negative evaluation of the plaintiff's unlawful conduct and declared this conduct to be contrary to the long-term interests of the child. At the same time, it observed that “there was no possibility” to enforce the previous court decision; enforcement against the will of the 14-year-old girl was hopeless. Although the situation was imputable to the plaintiff, the relationship between the child and the father had, even in the latter's opinion, deteriorated to such a degree that the change of placement would not serve the interests of the child or reduce her negative emotions towards her father. If she were placed with her mother, there could be some hope that, after some time, she might realise and appreciate her father's affection for her.”
The Supreme Court's reasons for upholding the second instance decision were as follows:
“The petition for review is well-founded to the extent that the impossibility to enforce the previous court decision must not have any bearing on the decision on the merits of the case, i.e. on the statutory evaluation of the aspects to be taken into account when deciding on the question of placement: unenforceability in itself cannot result in the alteration of the placement.
However, the fact that, at the date of the delivery of the final decision, the child had already passed the age of 14 amounts to a substantial difference in the circumstances, as opposed to the earlier situation.
Section 74 of the Act on Family Law provides – in accordance with Article 12 of the UN Convention on the Rights of the Child (done at New York on 20 November 1989), incorporated into Hungarian law by Act no. 64 of 1991 – that if a child has reached the age of 14, no decision concerning his/her placement shall be taken without his/her consent, except when the placement chosen by the child endangers his/her development. Therefore, section 72/A § 2 of the Act, which provides the possibility of changing the placement in the interests of the child, must be interpreted in conjunction with section 74; accordingly, the child's placement as s/he wishes would not run counter to his/her interests unless it would put him/her in danger. Consequently, the court had to examine whether the girl's placement with her mother, which has been ordered by the court after considering the child's firm and express wish, would endanger her physical, mental or moral development.
The first instance court based itself on the fact that the plaintiff had unlawfully kept the child since May 1996. The court found that, with the passage of time, the mother's influence, directed against the defendant, had been decisive in turning the child against the father and in completely detaching her from the other parent emotionally. In the court's view, her placement with the plaintiff would endanger the child's future development, despite her objective and subjective fitness for the child's upbringing.
This position, however, attributes unrealistic and excessive significance to the plaintiff's harmful influence in the flow of events, and disregards the concurring findings of [two] expert psychologists, as laid down in their [respective] opinions of 14 October 1998 and 21 June 1999, which were corroborated by other findings of fact.
Both the opinions of the appointed experts and the statements of the child demonstrate that, after the defendant had established a new relationship, the child became alienated primarily from her environment, i.e. her foster mother and grandmother; since her early childhood, she has adopted defence mechanisms in order to resist the distressing impact of her parents' conflict and, after her accident in the spring of 1996, she chose her mother's care. The defendant, however, was not attentive to this temporary wish of the child; he tried to enforce his rights through coercive measures, as a result of which the parents' conflict appeared to the child as an oppressive experience, with which she could not cope.
The Supreme Court agrees with the reasoning of the appellate court in that, after the child's recovery, the plaintiff should have prepared her psychologically for her return to the defendant and that she should have provided the emotional stability and support needed by the child within the framework of regular contact. Instead, the plaintiff did not comply with her obligations flowing from the final decision and, by leaving the decision partly to the child, she actively contributed to the failure of the child's return to the defendant and the maintenance of undisturbed contact. This conduct amounts to influencing the child, has led to the alienation of the child from her father and is, therefore, imputable to the plaintiff.
However, as to whether this extremely embittered situation has been brought about by the plaintiff alone, which amounted to endangering the healthy development of the now fourteen-year-old child, the lower courts took a one-sided and, therefore, incorrect position by overemphasising certain factors while disregarding others.
According to the elements of the case file, the contact between the father and the child had already loosened prior to the child's accident in 1996. This was the result of the change which had taken place in the defendant's environment; the defendant's new family created an atmosphere which made the child realise their malice and criticism towards her beloved mother. This attitude severely distressed the then ten-year-old child and caused her to feel isolated. In this situation her accident and subsequent longing for motherly care was the turning point, which resulted in her resistance to adapting herself to the defendant's family.
It is also a fact that the defendant is fond of his child and that he is able to ensure the objective conditions of her placement. However, in his present family, the emotional harmony between him and the now adolescent child, which was referred to as a decisive factor when her placement was decided, is missing. Being emotionally reserved and inflexible, as pointed out by all the expert opinions, the defendant tried to substitute this missing harmony by firmness, rationally planned official procedures and coercive measures. This, however, further deteriorated his relationship with the child – who, because of her age, has been more vulnerable – and provoked resistance in her.
It follows that the plaintiff's influence on the child has not in itself led to the present situation, which is undoubtedly unfavourable for the child. Rather, her influence has only been one factor in the above-mentioned circumstances; therefore, it cannot be argued that the child's placement with the plaintiff – which the child has consistently chosen and which meets the objective conditions of placement – would endanger the child's future development. In the absence of such danger, the final decision is in compliance with section 74 of the Act on Family Law and does not contradict section 72/A (2) It is, therefore, not unlawful.”
On 20 May 1996 the applicant initiated criminal proceedings against I.T. charging her with unlawfully changing a minor's placement.
On 9 September 1996 the applicant brought further charges against I.T. accusing her of the offences of endangering a minor and failure to pay maintenance.
On 29 January 1997 the Budapest XIV/XVI District Public Prosecutor's Office preferred a bill of indictment against I.T. charging her with having unlawfully changed a minor's placement.
On 14 October 1998 expert psychologist Z.S., who was appointed by the criminal court, examined K.
On 6 May 1999 the Pest Central District Court convicted I.T. of having unlawfully changed a minor's placement, but refrained from imposing a sentence pending a probationary period of two years.
On 21 June 1999 expert psychologist Z.V. examined K. and her parents.
On 5 November 1999 the Budapest Public Prosecutor's Office preferred a bill of indictment charging I.T. with endangering a minor.
On 30 June 2000 the Budapest Regional Court quashed I.T.'s conviction of 6 May 1999 for procedural shortcomings and remitted the case to the first criminal instance.
On 8 January 2001 the Pest Central District Court joined the two criminal proceedings. In the ensuing proceedings, the District Court found the opinions of Z.S. and Z.V. incomplete and contradictory. Consequently, it appointed an expert psychiatrist, I.K., to examine the child, which she did on 26 September 2002.
On 22 May 2003 the court heard all four experts.
On 27 June 2003 the Pest Central District Court convicted I.T. of the offences of 'endangering a minor' and 'unlawfully changing a minor's placement'. In its reasoning, of the altogether four opinions – which included that of Á.H., prepared in the civil case in 1996 – the court accepted the latter, along with that of I.K., as completed and amended orally.
The court noted that, according to the earliest assessment made by Á.H., the then ten-and-a-half-year-old K., instinctively frank, had displayed rough traces of her mother's influence:
“At that time, the girl expresses her feelings to the expert openly; she almost takes pride in the advantages, from which she benefits on the part of the better-off mother and her new family, in contrast with the severe and puritan fatherly environment ...”
The court also noted the conclusion of the latest expert opinion of 2002, prepared by I.K., according to which it could not be established that K.'s estrangement from her father was the consequence of the mother's influence. For the court, this held true only for the teenage girl, whose personality had inevitably changed:
“The girl's very intense emotional link to her mother has grown into a strong symbiosis, an alliance of interests, which, for the court, has camouflaged the actual state of mind of the 1996 personality.
The two opinions are exact and authentic, but momentary, records of one and the same person, against different backgrounds. Common elements are the attachment to the mother and the rejection of the father. Then [in 1996,] the [mother's] manipulation predominantly underlay this [choice]; by now [2002,] this background has changed; and it is the sovereign and final decision of the teenage girl, who has grown into a 'competent person', to live with her mother. Moreover, both experts agreed that the litigation and, in particular, the child's involvement therein, is very harmful for the child and constitutes mental abuse in itself, which the parent actually taking care of the child is significantly more likely to exert than the other parent, who has been almost completely isolated from her.”
I.T. was sentenced to one year's imprisonment, execution being suspended for one year.