ITEMID: 001-90480
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NEULINGER AND SHURUK v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 8 The applicants were born in 1959 and 2003 respectively and live in Lausanne (Canton of Vaud, Switzerland).
9 The facts as submitted by the parties may be summarised as follows.
10. The first applicant, who is Jewish, decided in 1999 to settle in Israel. There she met an Israeli national, who is also Jewish, and married him on 23 October 2001 in Israel. They had a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli and Swiss nationality.
11. According to the applicants, in the autumn of 2003 the child's father joined the Jewish “Lubavitch” movement, which they have described as an ultra-orthodox, radical movement that is known for its zealous proselytising.
12. Marital difficulties then arose, and the first applicant, fearing that her husband would take her son to a “Chabad-Lubavitch” community abroad for religious indoctrination, applied to the Tel Aviv Family Court for a ne exeat order to prevent Noam's removal from Israel. On 20 June 2004 the court made a ne exeat order that was to expire when the child attained his majority, that is to say on 10 June 2021, unless annulled by the court in the meantime.
13. In an interim decision of 27 June 2004, the same court granted “temporary custody” of the child to the mother and requested the Tel Aviv social services to draw up an urgent welfare report. The “guardianship” of the child was to be exercised jointly by both parents.
14. In a decision of 17 November 2004, the court, on the recommendation of a social worker, confirmed the first applicant's “temporary custody” of the child and granted a right of “visitation” to the father.
15. On 10 January 2005 the Israeli social services were obliged to intervene. They instructed the parents to live apart, in the interest of the child. That same day, the first applicant filed a complaint with the police accusing her husband of assault.
16. In an injunction of 12 January 2005 the competent judge of the Tel Aviv Family Court, upon an urgent application lodged earlier that day by the first applicant, prohibited the father from entering the child's nursery school or the first applicant's flat, from disturbing or harassing her in any manner whatsoever, and from carrying or possessing a weapon. Restrictions were also imposed on the visitation right granted to the father, who was now only authorised to see the child twice a week under the supervision of the social services at a contact centre in Tel Aviv.
17. The couple's divorce was pronounced on 10 February 2005 with no change in the attribution of guardianship.
18. As the father had defaulted on his maintenance payments to the first applicant, an arrest warrant was issued against him on 20 March 2005.
19. In a decision of 27 March 2005 the competent judge of the Tel Aviv Family Court dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from Israel.
20. On 24 June 2005 the first applicant secretly left Israel for Switzerland with her son.
21. On 27 June 2005 Noam's father contacted the Israeli Central Authority, which was unable to locate the child until 21 May 2006, when Interpol Jerusalem forwarded him a note from Interpol Berne indicating that the first applicant was in Switzerland.
22. On 22 May 2006 the Israeli Ministry of Justice transmitted to the Swiss Federal Office of Justice a request for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”). In support of its request it indicated, among other things, that Interpol Berne had notified it only the day before that Noam and his mother were living in Lausanne and that the latter had applied for the renewal of her Swiss passport.
23. In a decision of 30 May 2006, delivered upon an application by the child's father, the Tel Aviv Family Court observed that the child was habitually resident in Tel Aviv and that, as of 24 June 2005, the date of the applicants' departure, the parents remained joint guardians of their son, with the mother having temporary custody and the father a right of visitation. The court held that the child's removal from Israel without the father's consent had been wrongful within the meaning of Article 3 of the Hague Convention.
24. On 8 June 2006 the child's father lodged an application with the Lausanne District Justice of the Peace seeking an order for his son's return to Israel. He requested in particular, as an extremely urgent measure, that the Lausanne Passport Office be ordered to retain the applicants' Swiss passports.
25. On 12 June 2006 the Justice of the Peace made an order allowing the application by Noam's father for an extremely urgent measure.
26. Following a new application for an extremely urgent measure, faxed by the child's father on 27 June 2006, the Justice of the Peace, in a provisional measures order made that same day, ordered the first applicant to deposit her and Noam's passports in the registry of the District Justice of the Peace immediately, on pain of criminal sanctions for refusal to comply with the decision of an authority.
27. The first applicant, assisted by counsel, and the legal representative of the father, whose obligation to appear in person had been waived, made representations to the Justice of the Peace on 18 July 2006.
28. In a decision of 29 August 2006, after a hearing, the father's application was dismissed by the Lausanne District Justice of the Peace. The court took the view that, whilst the child's removal had been wrongful within the meaning of Article 3 of the Hague Convention, it had to apply Article 13, first paragraph, sub-paragraph (b), of that Convention, as there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
29. On 25 September 2006 the father appealed against that decision before the Guardianship Division (chambre des tutelles) of the Vaud Cantonal Court, which ordered an expert's report and for that purpose appointed Dr. B., a paediatrician and child psychiatrist. In his report, delivered on 16 April 2007, he stated that the child's return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their repercussions for the child; that the return of the child without his mother would expose him to a risk of major psychological harm; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term.
30. On 30 November 2006, as the first applicant had left the country, the competent judge in Tel Aviv cancelled the indictment for domestic violence that she had initiated in January 2005.
31. On 22 May 2007 the Guardianship Division of the Vaud Cantonal Court dismissed the father's application. Having carried out an additional investigation, and taking into account the expert's report by Dr. B. dated 16 April 2007, it took the view that the child's return carried a grave risk of psychological harm, whether or not he was accompanied by his mother, and would also place him in an intolerable situation. It therefore considered that the conditions of Article 13, first paragraph, sub-paragraph (b), of the Hague Convention were met. Finding however that the child could not be deprived of all relations with his father, it prescribed measures with a view to rebuilding the personal relationship between them.
32. The father lodged a civil appeal with the Federal Court seeking the quashing of the Cantonal Court's judgment and the return of the child to Israel. He alleged that the court had misapplied Article 13, first paragraph, sub-paragraph (b), of the Hague Convention, principally, and Article 3 of the United Nations Convention on the Rights of the Child, secondarily.
33. In a decision of 27 June 2007, the President of the appropriate division of the Federal Court granted the father's request for immediate suspension of the judgment.
34. In a judgment of 16 August 2007, served on the first applicant's lawyer on 21 September 2007, the Federal Court allowed the father's appeal. The relevant passages of its judgment read as follows:
“3. The object of the Hague Convention on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any Contracting State (Article 1, sub-paragraph (a)). The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, sub-paragraph (a)). 'Rights of custody' include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence (Article 5 (a)). In the present case it is not in dispute that the child's removal to Switzerland was wrongful, since the father retained, jointly with the respondent, the right of 'guardianship', which under Israeli law includes the right to decide on the child's residence. Moreover, since the request for return was presented within a period of one year after the removal, the respondent cannot deny either that, in principle, pursuant to Article 12 of the Hague Convention, the child's prompt return should be ordered. The only matter in dispute is therefore the question whether an exception to that return may be applied under Article 13, first paragraph, sub-paragraph (b), of the Hague Convention.
4. According to the appellant, by refusing to order the child's return to Israel, the Cantonal Court misapplied Article 13, first paragraph, sub-paragraph (b), of the Hague Convention.
4.1 Under Article 13, first paragraph, sub-paragraph (b), of the Hague Convention, in respect of which the Federal Court is entitled to examine matters of compliance freely (section 95(b) Federal Court Act), the judicial authority of the requested State is not bound to order the child's return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The exceptions to return provided for under Article 13 of the Hague Convention must be interpreted restrictively; the parent who has abducted the child cannot take advantage of his or her unlawful conduct (judgment 5P.71/2003 of 27 March 2003 recital 2.2, in FamPra.ch 2003 p. 718). Only grave risks must be taken into consideration, excluding any grounds relating to the parents' educational capacities, as the purpose of the Hague Convention is not to attribute parental authority (Federal Court judgment 131 III 334 recital 5.3; 123 II 419 recital 2b p. 425). An exception to return under Article 13, first paragraph, sub-paragraph (b), of the Hague Convention, is therefore not open to consideration unless the child's intellectual, physical, moral or social development is under serious threat (judgment 5P.65/2002 of 11 April 2002 recital 4c/bb in FamPra.ch 2002 p. 620 and the reference cited therein). The burden of proof lies with the person who opposes the child's return (ibid., recital 4b, in FamPra.ch 2002 p. 620 and the reference cited therein).
4.2 The Cantonal Court observed that the case concerned a very young child in the custody of his mother, who had always provided for him. The father, for his part, lived in a religious community where he was fed, and from his activity as a sports and art teacher he had a monthly income of only 300 [Swiss] francs. The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home. For the same reason, the Israeli courts ordered him to live separately and prohibited him from approaching the mother's flat. Before the child's removal to Switzerland he had only had a restricted right of visitation, limited to two hours twice a week, under the supervision of the Israeli social services. Concerning the conditions of a possible return of the child without his mother, according to the information provided by the Israeli Ministry of Justice on 12 March 2007, the father, who now shares a flat with one other tenant and still works in an institution for religious education, would be prepared to take care of the child. Taking into account the laconic and not very reassuring nature of this information, together with the expert's report by Dr [...], a psychiatrist, the Cantonal Court considered that a return to Israel involved a risk of psychological harm for the child and might place him in an intolerable situation, whether or not he was accompanied by his mother. The court added that, in view of the father's low income, the return to Israel of the respondent would also undermine the child's economic stability and the mother would have to find a job in order to provide for them both.
In his appeal, the appellant does not criticise the Cantonal Court's finding that there was a grave risk that the child would be exposed to psychological harm if he returned to Israel without his mother. He is of the opinion, however, that such a risk would not exist if the child's mother accompanied him to Israel, as could be reasonably expected of her. As regards that latter hypothesis, the judgment of the Cantonal Court fails to adduce any evidence of such a grave risk of harm, or of any intolerable situation for the child. The expert psychiatrist failed, in particular, to address that question, simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return. As to the appellant's aggressive behaviour towards the respondent, it does not appear from the Cantonal Court's judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother. She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well. The social worker appointed to supervise the right of visitation had described as marvellous the father-son relationship as established just before the child's abduction by his mother. She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her. As to the considerations relating to the father's low income and his ties with the religious community 'Lubavitch', as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of Article 13, first paragraph, sub-paragraph (b), of the Hague Convention. Whilst such considerations may help to determine which of the two parents offers the best educational capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence (Article 16 of the Hague Convention) – they are not pertinent, however, for a decision about the return of a child after a wrongful abduction (see recital 4.1 above).
As to the mother's threat not to return to Israel, the judgment of the Cantonal Court did not deal at all with the reasons for her refusal, whereas it should have established the existence of objective circumstances justifying that attitude. The Cantonal judges quoted the expert psychiatrist who had referred to the 'judicial risks' that would be incurred in the event of a return to Israel, without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction. Supposing that such a risk were proven, she could not be expected to return to Israel with the child – and that would accordingly rule out the return of [the child] in view of the major psychological harm that would be caused to him by the separation from his mother. She made no comment on that question in her reply to the Federal Court; in particular, she has not claimed that immediate imprisonment, or even any criminal sanction at all, would be imposed on her. Neither has she argued that in the event of her return to Israel it would be impossible or very difficult for her to integrate, or, in particular, to find a new job. Consequently, it cannot be said that the mother's return, and therefore that of the child, would be unbearable for economic reasons either. Therefore, as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to Israel, it must be accepted that she could reasonably be expected to return to that State of origin accompanied by the child. In these circumstances, it is of no import that the information provided by the Israeli Central Authority (see recital 4.2 above) on which the Cantonal Court based, in particular, its justification of the exception to the child's return as provided for by Article 13, first paragraph, sub-paragraph (b), of the Hague Convention, was deemed not very reassuring, because that information was based only on the hypothesis of the child's return without his mother.
Accordingly, the Cantonal judges breached Article 13, first paragraph, sub-paragraph (b), of the Hague Convention in finding that they were entitled to apply an exception to the child's return to the State of his habitual residence. The appeal must therefore be allowed and the judgment of the court below quashed, without it being necessary to examine the complaint concerning a violation of Article 3 of the Convention on the Rights of the Child. It is incumbent on the respondent to secure the return of the child ... to Israel by the end of September 2007. ...
The Federal Court therefore finds as follows:
1. The appeal is allowed and the judgment of the court below is quashed.
2. The respondent is ordered to secure the return of the child ... to Israel by the end of September 2007.
...”
35. On 20 August 2007, the child's father, through counsel, lodged an application with the Lausanne District Justice of the Peace, who was responsible for the enforcement of the return decision, seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure. On 1 October 2007, after the Court had decided on 27 September 2007 to indicate interim measures to the Government, the father withdrew his application of 20 August 2007.
36. The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, which entered into force in respect of Switzerland on 1 January 1984, read as follows:
“Preamble
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:”
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
“For the purposes of this Convention –
(a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ...”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
...
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”
37. On 21 December 2007 the Swiss Federal Parliament enacted the “Federal Act on International Child Abduction and The Hague Conventions on the Protection of Children and Adults”, for the purpose of clarifying certain notions, especially in relation to the application of the Hague Convention of 1980. To date the Act has not entered into force. The sections relied on by the applicants read as follows:
“The return of a child places him or her in an intolerable situation, within the meaning of Article 13, first paragraph, sub-paragraph (b), of the Hague Convention, in particular where the following conditions are met:
(a) placement with the parent who lodged the application is manifestly not in the child's interest;
(b) the abducting parent is not, given the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction, or this cannot reasonably be required of that parent; and
(c) placement in the care of a third party is manifestly not in the child's interest.”
“The court dealing with the application for the return of the child shall decide, as required, on the child's personal relations with his or her parents and order the measures necessary to ensure his or her protection.
Where the application for return has been received by the Central Authority, the competent court may, at the request of the Central Authority or any of the parties, order the appointment of a representative or a guardian for the child, or take other protective measures even if the application for return is not yet pending before the court.”
38. In connection with the Federal Decree concerning this Act, the Federal Council submitted to Parliament a “dispatch” (Feuille Fédérale 2007, pp. 2433-2682) of which the relevant passages read as follows:
“6.4 Return and interest of the child (section 5)
In order to ensure an application of the Hague Convention of 1980 that is better adapted to the interests of the child, it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation. The rule in section 5 is not supposed to supersede the provision of Article 13, first paragraph, sub-paragraph (b), of the Hague Convention of 1980. The term 'in particular' means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention.
Firstly, sub-paragraph (a) refers to the situations in which the child's accommodation by the parent who requested the return is manifestly not in the child's interest. If that is not so, in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility, there will not, in principle, be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused. This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child.
Sub-paragraph (b) governs cases in which the appropriateness of the child's return can be assessed only from the standpoint of his or her relationship with the abducting parent. Where the child's accommodation by the parent who requested the return is manifestly not to be taken into consideration, the problem of his or her return to the State of origin will be addressed differently, depending on whether the person who wrongfully removed or retained the child (usually the mother) is or is not in a position to return to that State. If the said parent is not able to do so because, for example, he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in Switzerland (for example following remarriage or on account of a situation of hardship suffered by another family member living in Switzerland), the child's psychological and physical stability may be at stake, because the child would, after the return, be obliged to live apart from his or her parents. Such separation is tolerable only in exceptional cases and must constitute an ultima ratio.
Second type of situation: where, given all the circumstances, it cannot reasonably be required of the abducting parent that he or she take care of the child in the State where it had its habitual residence immediately before the abduction (section 5(b)). It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that State. He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there, with the child, the court's final decision on the attribution of custody. In that context, we have in mind especially those cases in which the mother cannot be guaranteed safe or affordable accommodation outside the home of his or her former partner. One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order, whilst the abducting parent is clearly the child's primary carer. In such a case the child would only be taken to the State of origin to await the final attribution of the right of custody to the abducting parent, before coming back to Switzerland again with that parent. Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former State of residence. Such a solution would be inadmissible according to the spirit and purpose of the Hague Convention, because it would be incompatible with the child's interest. But the situation would have to be beyond doubt for the Swiss court dealing with the request for return. Unless the circumstances can be established clearly, the court will have to rule that the return to the parent's State of origin is bearable and that, accordingly, the child will not be placed in an intolerable situation such as to justify a decision denying the return under Article 13, first paragraph, sub-paragraph (b), of the Hague Convention.
Sub-paragraph (c) refers to placement with third parties. If the child's return were to lead to separation from the parent who wrongfully removed or retained the child (because return is impossible for that parent or cannot reasonably be required of him or her), it could only be carried out in appropriate conditions if the child were placed with a third party in the State of origin. However, such a solution should only be sought, with the resulting possibility for the competent Swiss court to order the child's return, if placement with a third party is not manifestly contrary to the child's interest. That third condition can be satisfied only if separation from the parent remaining in Switzerland is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent – and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child. In any event, such a situation should only be envisaged as an ultima ratio.
It must further be noted that, for the return to be compatible with the child's interests and, in particular, for the conditions of Article 13 of the Hague Convention to be fulfilled, the authority ruling on the matter has to be apprised of the situation prevailing in the State of origin and of the legal provisions in force there. Thus, the parties, and in particular the parents, have a duty to participate in the establishment of the facts. The hearing of the parties in person by the court (section 9(1) and (2)) is therefore of great importance. The new provisions concerning the procedure and the cooperation with the competent authorities of the State of origin also play an essential role. The court must be able to verify whether, and in what manner, it is possible to ensure the child's return (section 10(2)). If it does not succeed in that task, or succeeds only partially, it will not be in a position to weigh up all the consequences that a return might have for the child. The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child's reception and protection, in particular when there is some doubt about the requesting parent's capacity to look after the child properly. In this respect, section 10 is thus directly related to the practical application of section 5.”
39. The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Switzerland on 26 March 1997, read as follows:
“... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...”
“1. The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents. ...”
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...”
“1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ...”
“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...”
40. Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe on a European Charter on the Rights of the Child states the following as the first of a number of general principles:
“a. Children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs; ...”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-59413
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PEERS v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;No violation of Art. 6-2;Violation of Art. 8;Non-pecuniary damage - financial award
JUDGES: András Baka;John Freeland
TEXT: 8. On 19 August 1994 the applicant, who had been treated for heroin addiction in the United Kingdom, was arrested at Athens Airport for drug offences. He was transferred to the central police headquarters of Athens in Alexandras Avenue, where he was detained until 24 August 1994.
9. On 24 August 1994 the applicant was transferred to Koridallos Prison and was admitted in a comatose state to the prisoners’ psychiatric hospital.
10. On 30 August 1994 he was discharged from the psychiatric hospital. The certificate of discharge described him as a drug user. He was immediately taken to Koridallos Prison proper.
11. The applicant was placed in the segregation unit of the “Delta” wing of the prison. Subsequently, he was transferred to the “Alpha” wing.
12. On 28 July 1995 the applicant was found guilty of drug offences by the three-member Court of Appeal (Τριμελές Εφετείο) of Athens, which, due to the nature of the charges, sat as a first-instance court. The court acknowledged that the applicant was a drug addict and sentenced him to thirteen years’ imprisonment and a fine of 5,000,000 drachmas. The applicant appealed.
13. In November 1995 there was a riot in Koridallos Prison.
14. On 30 August 1996 Ms Vasiliki Fragathula, a social worker of Koridallos Prison, reported to the prison governor, inter alia, the following facts. The applicant, after his conviction, shared a cell with one other convict. Letters sent by the applicant were not opened. Letters sent to the applicant by the European Commission of Human Rights were opened by a prison officer in front of the applicant. Foreigners who did not speak Greek could not participate in the vocational training courses organised in Koridallos Prison. A programme for learning Greek had once been available in the prison library but was destroyed during the riot. However, it was the intention of the welfare office to replace it in due course. According to the Penitentiary Code, remand prisoners did not have the right to work. However, the applicant, after his conviction, started working as a cleaner. Almost immediately after his arrival at Koridallos Prison the applicant started being treated by Dr P., a psychiatrist. He continued to participate in the awareness and self-help therapeutic programmes for the foreign prisoners of two organisations, Drug Addicts Anonymous and Over 18. He was also individually treated by a psychologist who was a member of Drug Addicts Anonymous. After the applicant’s arrival at Koridallos Prison, his case was followed by the prison’s welfare office. It was true that no distinctions were made between remand prisoners and convicts.
15. In September 1996 the applicant was transferred from Koridallos to Tirintha Prison. According to a letter by the governor of Tirintha Prison dated 20 November 1996, this was done “to ensure better conditions of detention for the applicant”. From Tirintha Prison the applicant was transferred at his request to Agias Prison in Canea.
16. In November 1997 a court of appeal upheld the applicant’s conviction but reduced his sentence to nine years’ imprisonment and ordered his expulsion from Greece.
17. On 2 June 1998 the applicant applied for release on probation. On 10 June 1998 a Chamber of the Canea First-Instance Criminal Court granted his application. The applicant was released from prison and was transferred to the Canea deportation centre. From there he was taken to Piraeus and expelled from Greece immediately after his appearance before the Commission’s delegates at Koridallos Prison on 22 June 1998.
18. The evidence of the applicant and the three witnesses who appeared before the delegates at Koridallos Prison on 22 June 1998 may be summarised as follows.
19. The applicant was admitted to Koridallos prisoners’ psychiatric hospital on 24 August 1994. Initially, he was detained in a single cell for three days. He slept all the time due to medication. It was another prisoner who told him how long he had been there. When he woke up, he was moved to a cell with eight to ten “very disturbed” persons. They slept on mattresses on the floor. It was hot, but the windows were open. Occasionally, the door would open and they would be allowed out to go to the toilet or have a shower or walk in the yard. Meals were served in plastic containers on the floor. He stayed for four to five days and nights in the second cell.
20. Subsequently the applicant was taken to the prison proper. He asked to be kept somewhere quiet and he was immediately placed in the segregation unit of the Delta wing. At first, the applicant did not know that he was in a segregation unit.
21. The cell was very small and high. It had two doors and there were two beds. One could hardly walk between them. During the entire period of his stay in the segregation unit he was detained with another person, Mr Petros Papadimitriou. There was only one window in the roof which did not open and which was so dirty that no light could pass through. There was just one electric bulb which did not provide sufficient light for reading. There were no other windows apart from a peephole in one of the two doors, which could be opened. There was an Asian-type toilet in the cell. There was no screen or curtain separating the toilet from the rest of the cell. Sometimes the toilet would flush and sometimes not. There was only one shower in the unit, which contained nine cells with up to three prisoners in each. There was no sink in the cell.
22. It was August when the applicant was placed in the segregation unit. It was very hot. During the day the door of his cell would be open. The segregation unit was unsupervised and “anything could happen”. However, the applicant had not been ill-treated by any particular person. There were two small high-walled yards, “ten steps forward, ten steps back”. At night the door of his cell would be locked. As there was no ventilation the cell became so hot that the applicant would wake up drenched. In order to have water in his cell, the applicant would fill a bottle from the tap near the shower and sometimes from the toilet flush.
23. After maybe two weeks in the segregation unit, the applicant was offered the possibility of going to the ordinary cells in the Delta wing. However, he had to turn this offer down because the Delta wing was for drug addicts and “he wanted to stay away from drugs”. There were no drug addicts in the segregation unit.
24. The applicant did not remember exactly when he left the segregation unit – perhaps two or two and a half months later, at the end of October or the beginning of November. He was moved to the Alpha wing where mainly economic offenders were kept. Mr Papadimitriou was moved with him and they continued to share the same cell.
25. Alpha was the best wing in the prison. However, it was still dirty and overcrowded. There were three beds in each cell: two bunk beds, one on top of the other, and a third bed. Usually, there were three prisoners in each cell. There was a sink and an Asian-type toilet. There was a plastic screen on one side of the toilet, part of which was broken. Although one could not see the inmate using the toilet, one could smell and hear him. The cell had a window. Sometimes there was a table and a chair in the cell.
26. The doors of the cells were locked between 1 p.m. and 3 p.m. and between 8.30 p.m. and 8 a.m. This schedule differed by one hour between summer and winter. The cells were very noisy due to fellow inmates’ television and radio sets. The prisoners had no control over the light switches. In winter, the cells were very cold as they were heated for only two hours a day. Sometimes the applicant had to stay in bed under his blankets to keep warm. After the riot, several windows were broken and it was freezing in the prison. In the summer, the cells were unbearably hot, as there was no through-draught when the doors were shut. Sometimes the applicant had to wait until three or four o’clock in the morning before he could fall asleep. When the door of the cell was open, the situation improved but there was no ventilation in the wing in general. Occasionally, there were problems with the plumbing and the toilet would not always flush.
27. At one point, when the applicant was sharing his cell with only one other prisoner, three Chinese inmates were brought in for one night. They slept on two mattresses on the floor.
28. The only thing the applicant was ever given were blankets. He was not given any clothes, sheets, pillows, toiletries (including soap) or toilet paper. He had to buy toiletries and toilet paper from the canteen. Occasionally he did not have any money and had to ask other prisoners. The social services and certain charitable organisations would also help. However, there were times when he was left with no toilet paper, in particular when he had to use the toilet often, due to problems with his stomach. On these occasions, in order to keep clean, he had to use water from the Asian-type toilet. Despite all that, he managed “to keep himself clean”. Eventually, he managed to get hold of sheets and a pillow, which he inherited from other prisoners. However, it took him a long time, perhaps a year.
29. There were ten showers – described by the applicant as pipes – in the basement for the 250 to 360 prisoners held in the wing. There was hot water for two hours a day or perhaps longer. There were no curtains and no windows. After the riot there was no hot water. In winter, the showers were used by the cats as toilets.
30. He had to wash his clothes himself and this was made difficult because of the shortage of hot water. He would dry his clothes by hanging them on the bars of his cell window.
31. Food was served in such a manner that the cats could play around with it. Before entering prison he had been a vegetarian but he had to change his eating habits as there were no vegetarian menus in Koridallos.
32. The applicant “lived in a vacuum”. He could not communicate with the prison staff, who did not speak English. The social worker knew English. In order to see her, he had to make a request. He would see the social worker three times a week, usually for between two and five minutes. Ten minutes was the maximum.
33. There were no vocational activities, courses or library.
34. At first, the applicant was allowed only one telephone call a week, in the evening. However, the social worker subsequently arranged for him to be able to use the telephone in the morning.
35. The witness was the governor of Koridallos Prison between 14 December 1994 and 15 September 1997.
36. The witness did not know of any improvements that had been made in the Alpha wing since the applicant’s transfer from Koridallos Prison. There had been some improvements made to the segregation unit. Now, there were screens separating the toilets from the rest of the cell in the segregation unit, but he did not want to contradict the applicant in this regard. It was possible that there had been no screen in his cell. There were sinks in the cells of the segregation unit.
37. It was as hot in the segregation unit as in the rest of the prison. In summer it could be hot. During the winter, there was central heating.
38. The prison administration provided inmates with pillows. However, it was possible that the applicant did not receive any because at times there were shortages. There was a problem with sheets, especially for foreign prisoners. The latter could get sheets from the welfare office, which had a stock built up from donations or acquisitions through grants from the Ministry of Justice. The prison administration did not provide prisoners with toiletries. Such items were provided by charitable organisations via the welfare office. Toilet paper could be obtained from the welfare office or another prisoner or the chief warden. It was more difficult to find sheets than toilet paper.
39. Food was not served in an unhygienic manner. While it was being transported, the pan was 60 to 70 cm from the floor, although the witness was not 100% sure about that.
40. It was possible that the applicant had slept in the cell with four other prisoners. Usually, each prisoner had his own bed. It was very rare that he did not. However, accommodating four prisoners in a cell had been known to happen.
41. There was no problem with the showers. However, those who had to wash their clothes in prison were faced with problems.
42. Prisoners communicated with the social workers whom they could see upon request either on the same day or the day after. Those who did not speak Greek could face problems. However, in the witness’s experience, they managed to adapt. There was always somebody, a member of staff or another prisoner, who could speak English.
43. All announcements and notices were in Greek. Foreign prisoners were informed of their rights orally upon arrival. However, this was not done systematically. An information pamphlet in English entitled “Everyday life in the prison establishment” was distributed to newcomers in 1996 but the witness did not remember whether this was before or after the applicant had left Koridallos Prison.
44. The witness was the social worker of the Delta wing of Koridallos Prison. She met the applicant there and followed his case throughout his stay in prison.
45. On his arrival in Koridallos Prison proper (after his detention in the prisoners’ psychiatric hospital), the applicant was placed in the segregation unit. This had been decided by the prison governor and the chief warden as a result of his condition – he had withdrawal symptoms. The applicant did not have advance knowledge of the conditions in the segregation unit. Shortly afterwards, the applicant complained of the conditions there and the witness arranged for him to meet the governor, Mr Costaras. The latter gave instructions for the applicant to be moved to another wing. However, this would have been the Delta wing, which was for drug addicts. The applicant was aware of this. He had found out through his contacts with other inmates. He refused to go there. He considered that staying in the segregation unit would help him stay away from drugs. The witness would not confirm that there were drugs in the Delta wing. However, she accepted that “the Delta wing was problematic for someone who wanted to free himself from drugs”. In her view, the segregation unit was not appropriate for prisoners. However, the applicant, who was suffering from withdrawal symptoms, could not be moved to the Alpha wing immediately. This wing was reserved for persons convicted of economic offences and other prisoners whose conduct had been good. So the applicant had a choice between the segregation unit and the Delta wing. The witness did not advise the applicant to choose one or the other because she did not want to influence what she regarded as a purely personal choice. The applicant chose to remain in the segregation unit. He was subsequently moved to the Alpha wing, together with all the inmates of the segregation unit, when it was decided to accommodate in the segregation unit prisoners who were serving disciplinary terms.
46. The witness would communicate with the applicant in English. The applicant did not speak Greek and this exacerbated his adaptation problems at the beginning, since most of the prison staff did not speak English. However, several of the Greek prisoners spoke some elementary English. Gradually, the applicant managed, through his personal efforts, to establish a rudimentary level of communication with the prison staff in Greek. There were no information notices in English. The pamphlet to which Mr Athanassopoulos referred was distributed in Koridallos in 1997.
47. The welfare office had a storage room in the prison with toilet paper, razors, detergent, soap, etc. These were funded by the Ministry of Justice and charitable organisations. Destitute prisoners could get supplies from this storage room once a week. However, during the summer there were often shortages. The welfare office did not provide prisoners with sheets and blankets. These were provided to newcomers by the prison administration, but it was impossible to replace them. The witness did not know whether the applicant had received any sheets. The applicant would receive clothes, toiletries and toilet paper from the welfare office in so far as this was possible, given the restrictions with which it was faced. In the witness’s view, given the extended period of the applicant’s detention in Koridallos, it was possible that he had been confronted with shortages of toiletries and toilet paper. The applicant had also been given assistance by charitable organisations with which the witness had put him in touch.
48. The witness was an inmate of Koridallos Prison. He spent one year in the same cell as the applicant, four months in the segregation unit of the Delta wing and eight months in the Alpha wing. The witness was in the segregation unit of his own free will because he was a new prisoner and wanted some peace and quiet. They were both moved to the Alpha wing, probably when the prison administration decided to accommodate in the segregation unit prisoners who were serving disciplinary terms.
49. The segregation unit of the Delta wing contained nine cells, each occupied by two or three prisoners. While in the segregation unit, the witness shared his cell with the applicant and nobody else. There were two beds with mattresses and blankets. They were not given sheets or pillows. The toilet had no curtain.
50. While he was in the segregation unit the applicant would often complain. As it was very hot and he had respiratory problems, he would wake up at two o’clock in the morning coughing. He would bang on the door because he could not breathe.
51. There were usually three prisoners in the cells in the Alpha wing. The witness could not remember more than three prisoners in his cell. He remembered one Chinese inmate sleeping in their cell but not three. He did not remember anybody sleeping on the floor. The toilet screen was always there and was not broken. The witness kept a cat in the cell.
52. As regards the conditions of detention in Koridallos Prison in general the witness stated the following. The food was bad and risked being contaminated by cats. It was easy to take a shower and one did not have to queue. However, there was not enough water and no curtains. He spoke to the applicant in English and sometimes in Greek. He would also act as a mediator for him. The prison administration would only provide soap. The welfare office would sometimes hand out certain things, but it was difficult. The witness would buy toiletries and toilet paper himself. The applicant would buy them whenever he had money. He would also ask the witness for toothpaste and toilet paper, which the witness would give him. Sometimes it was possible to find a pillow.
53. The delegates of the Commission visited the segregation unit of the Delta wing where the applicant had been detained in cell no. 9. The description given by the applicant was on the whole accurate. All the cells were approximately the same size. Cell no. 9 measured 2.27 by 3 m. Given that there was practically no window, the cell was claustrophobic. At the time of the delegates’ visit, the prisoners were locked in their cells. Cells where two persons were held were very cramped. Prisoners were virtually confined to their beds. There was no screen separating the toilet from the rest of the cell. The toilet was adjacent to the beds. Some prisoners had put up curtains themselves. The entire unit was very hot. Due to the lack of ventilation, the cells were unbearably hot, “like ovens”. The air was stale and a stench came out of the cells. The cells were all in a state of disrepair and they were very dirty. Some prisoners complained about rats in the cells. There was no sink in cell no. 9. There was a tap. According to the applicant, who accompanied the delegates during their inspection, the tap had recently been installed. On the doors of some cells there were signs saying “WC”. When asked, the prisoners said that the signs would be put up during the day when the cell doors were not locked to ensure that the cell-mate did not enter the cell while the toilet was being used. The applicant’s cell could be compared to a medieval oubliette. The general atmosphere was repulsive.
54. The delegates also visited a cell on the third floor of the Alpha wing where the applicant had been detained. According to the chief warden of Koridallos Prison, who accompanied the delegates during their inspection, Mr Papadimitriou was still detained in this cell. The cell measured approximately 4.5 by 2.5 m. The description by the applicant was again accurate, except that the toilet screen was not in disrepair. The cell had windows of an adequate size.
55. The delegates saw the shower area in the basement. It was reasonably clean, although the applicant claimed that during his time it had been much dirtier. Most shower cubicles had curtains. However, some did not.
56. In the prison storage room, there were small bags containing toilet paper and toiletries that were given to new prisoners. However, the delegates were told that these bags had arrived only very recently. There were no sheets. The inmate in charge claimed that they had all been distributed or that they were at the laundry. There was a cupboard which contained mainly soap.
57. The welfare office storage room was closed at the time. There was a sign indicating that each wing was served once a week. It was opened at the delegates’ request. It contained a lot of used clothes. The delegates were shown toilet paper and one sheet. There was a book showing that prisoners came to the room and were provided with various items, such as toiletries, shoes, etc.
58. The kitchen was quite spacious and clean. The trolleys on which food was transported, however, did not correspond to Mr Athanassopoulos’s description. They were rather low.
59. In one corner of a corridor outside the kitchen a cat had defecated. The delegates also had the opportunity of seeing the inmates queuing to use the telephones. The queues were rather long.
60. According to the chief warden, no prisoners’ location charts dating from the applicant’s detention in Koridallos Prison had been kept. Nor were there books showing the movement of prisoners from one cell to another. The only books that had been kept indicated the last cell in which each prisoner had been kept before leaving Koridallos Prison.
61. On 29 November 1994 the CPT published a report following its visit to Greece in March 1993 [Koridallos Prison was also visited by the CPT in May 1997] which contains the following findings and recommendations concerning Koridallos Prison.
“...
91 ... Koridallos Prison for men was built to accommodate 480 prisoners in four separate blocks, each having 120 cells on three floors. On the first day of the delegation’s visit, the establishment was holding 1410 prisoners, approximately 800 on remand and the remainder sentenced. The total prison staff complement was 170, of which some 110 were prison officers. Perimeter security was the responsibility of armed police.
...
95. In the following paragraphs, the CPT shall make a number of specific recommendations concerning the prison establishments visited by its delegation. However, it wishes to emphasise at the outset that the act of depriving someone of his liberty brings with it the responsibility for the State to detain him under conditions which respect the inherent dignity of the human person. The facts found during the course of the CPT’s visit demonstrate that as a consequence of the present level of overcrowding in prisons, the Greek authorities are not in a position to fulfil that responsibility vis-à-vis many prisoners.
The CPT therefore recommends that a very high priority be given to measures to reduce overcrowding in the Greek prison system.
...
105. As already indicated (cf. paragraph 91), at the time of the delegation’s visit to the Koridallos Prison for men the number of inmates amounted to almost three times the establishment’s official capacity. A standard cell measured 9.5 m2 and was equipped inter alia with a screened Asian-type toilet and a hand-basin. Originally designed for individual occupancy, the cells are just about large enough for two prisoners; with more than two, conditions become very cramped. In practice, only a handful of prisoners had their own cells; the majority of the cells were accommodating two or three prisoners, and a number were accommodating four. The level of overcrowding was somewhat lower in A wing (approximately 300 prisoners) than in B, C and D wings (each of which were accommodating 350 or more inmates).
The prisoner distribution chart indicated that three cells (one in C wing and two in D wing) were holding five prisoners. The delegation visited the relevant cell in C wing, in which it found five prisoners of Indian origin; they claimed to have been held under such conditions for some six weeks.
106. Inevitably, the high level of overcrowding had extremely negative repercussions upon the conditions of detention: living space was very poor, ventilation inadequate, and cell cleanliness and hygiene wanting. In many cells prisoners were to all intents and purposes confined to their beds, there being no room for other furniture. In some of the most over crowded cells, there were more prisoners than beds. Further, the toilet and washing facilities in certain cells were in need of repair.
Despite the overcrowding, prisoners apparently did have ready access to the shower facilities located in the basement of each wing. However, some of the shower cubicles were in a poor state of repair and decoration.
107. The negative aspects of the overcrowding were mitigated to some extent by reasonable out-of-cell time. Between 8.30 to 11.30 and 14.30 to sunset, inmates were allowed to circulate freely and associate with other prisoners within their detention wing and its courtyard; the wing courtyards were of a good size. It must be stressed, however, that the free circulation of prisoners in their detention wings could have undesirable effects in the absence of proper control by prison staff; with the manning levels at the time of the delegation’s visit (3 to 4 prison staff on duty during the day in a wing accommodating some 350 prisoners), it is difficult to see how such control could be guaranteed (cf. also paragraph 96).
108. Activities in any meaningful sense of the term were scarce. There were only 236 work places (i.e. 1 work place for 6 prisoners), practically all in the area of general services (kitchen, laundry, cleaning, maintenance, stores, etc.); no workshops were in operation. However, a printing and bookbinding vocational training centre, with places for 30 prisoners, was due to open in 1993. The shortage of work places was particularly resented by many sentenced prisoners, as it prevented them from taking advantage of the system of earning remission through work.
No educational classes were available and the prison library was both small and ill-equipped. Further, there was no prison gymnasium and, as far as the delegation could ascertain, no organised sporting activities. However, the exercise yards were sufficiently large for certain games (e.g. volleyball), and arrangements were in hand to provide a separate weight-training area in each of the yards (at the time of the visit, a few prisoners did weight training in the wing basements).
To sum up, the vast majority of prisoners at the Koridallos Prison for men (including a majority of the sentenced prisoners) were offered no work or educational activities, and possibilities for sport were very limited. Most prisoners spent their day walking around their detention wing or courtyard, talking with fellow prisoners, or watching television in their cell. Such a monotonous and purposeless existence is quite inconsistent with the objective of social rehabilitation set out in the Greek Code of basic rules for the treatment of prisoners (cf. paragraph 94).
109. As regards material conditions of detention at the Koridallos Prison for men, the CPT recommends:
– that immediate steps be taken to ensure that no more than three prisoners are held per cell;
– that serious efforts be made to reduce as soon as possible the occupancy rate to two prisoners per cell (Naturally, the long-term objective should be to have one prisoner per cell, save for specific situations when it is not appropriate for a prisoner to be left alone);
– that every prisoner be provided with his own bed and mattress;
– that shower cubicles, toilets and washing facilities be restored to a good state of repair and maintained in a hygienic condition.
As regards out-of-cell activities, the CPT recommends:
– that current efforts to augment the number of work and vocational training places be intensified;
– that a thorough examination of the means of improving the prison’s activity programmes in general (including education, sport and recreational activities) be undertaken without delay and that fuller programmes be progressively introduced as overcrowding is brought down.
...
133. The segregation unit at Koridallos Men’s Prison consisted of two groups of 10 cells, all of which were apparently used for both disciplinary confinement and other segregation purposes. The cells measured approximately 7 m2; they were equipped with a bed, but no other furniture (e.g. table or chair). There was adequate ventilation and artificial lighting; however, access to natural light was, at best, mediocre. Each cell possessed an asian toilet, and some cells had a wash basin. The adjacent exercise yards measured approximately 40 m2. The whole unit required to be – and was being – redecorated.
134. No-one was being confined as a punishment at the time of the delegation’s visit. A number of transvestite prisoners had been held in the unit for several months at their own request. Other prisoners were being held in the unit involuntarily, presumably under Rule 93 or 94 of the Code (the absence of a segregation unit register made it difficult to ascertain the precise grounds); certain of them appeared to have psychological or psychiatric problems.
The prisoners were allowed to move freely within the unit and exercise areas during much of the day, and they had TV sets and other personal possessions in their cells (though staff indicated that a prisoner undergoing disciplinary confinement would remain in his cell and would not be allowed personal possessions).
135. The conditions of detention in this segregation unit are on the whole acceptable for prisoners undergoing the disciplinary sanction of confinement in a special cell. However, the CPT considers that it would be desirable for the cells accommodating such prisoners to be fitted with a table and chair, if necessary fixed to the floor.
The CPT also recommends that all prisoners, including those confined to a special cell as a punishment, be allowed at least one hour of exercise in the open air everyday.
136. Conditions of detention in the unit are far less suitable for prisoners subject to segregation for non-disciplinary reasons, in particular if that measure is applied for a lengthy period.
As regards more particularly prisoners who are segregated because of personality disorders and/or for their own protection, the CPT invites the Greek authorities to explore the possibility of creating special units organised along community lines.
The unit is a totally unsuitable place in which to accommodate someone in need of psychiatric care. Neither the material environment nor the staff (ordinary prison officers) are appropriate. The CPT recommends that no such prisoner be placed in the unit. If, exceptionally, prisoners who are emotionally or psychologically disturbed have to be held temporarily in the segregation unit, they should be kept under close observation.
Further, the CPT recommends:
– that the cells in the unit used to accommodate prisoners segregated for a non-disciplinary reason be equipped in the same way as an ordinary prison cell;
– that the respective regimes applicable, on the one hand, to persons undergoing disciplinary confinement and, on the other hand, to persons held in the segregation unit for other reasons, be expressly laid down.”
62. According to Article 51 §§ 2 and 3 of the Penitentiary Code, a prisoner’s correspondence may be controlled if this is required by reasons of security or if there is a risk of commission of especially serious crimes or a need to establish whether such crimes have been committed.
VIOLATED_ARTICLES: 3
8
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-77541
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TUNC v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Yusuf Tunç, is a Turkish national who was born in 1955 and lives in Elazığ. He was represented before the Court by MM. A. C. Zülfikar, K. Çetin and M. Gündoğdu, lawyers practising in Elazığ.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until 1994 the applicant and his family lived in the Çambulak village, a hamlet of the Balveren village in the district of Ovacık in Tunceli province, where he owned property. The applicant submitted documentary evidence, proving his ownership of the property which bears the stamp of the relevant municipality of 16 August 2001. He submitted another document proving ownership of properties belonging to his father, bearing the stamp of the relevant municipality of 25 December 2001.
In October 1994 security forces forcibly evacuated the Çambulak village on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Elazığ where they currently live.
In 1994 the applicant filed petitions with the offices of the public prosecutor in Ovacık, the State of Emergency Region Governor and the Ovacık District Governor, requesting redress for the damage he had suffered and sought permission to return to his village. However, he did not receive any response from these authorities.
On unspecified dates, he filed petitions with the Ministry of Public Works and Settlement and the Ministry of Interior requesting permission to return to his village and compensation for the damage he suffered.
On 2 February 1999 he lodged petitions with the offices of the District Governor, the Presidency of the National Assembly, the Prime Minister’s office and the President’s office in order to be provided with government aid. He further asked the authorities to permit him to return to his village.
On 24 August 2001, the applicant filed a petition with the Office of the Ovacık Governor regarding the alleged forced evacuation.
On 31 October 2001 the Office of the Ovacık Governor replied to the applicant’s petition, stating that the applicant’s request would be considered under the scope of the “Return to the Village and Rehabilitation Project” and that he would be informed of the developments.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection, Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The Government further maintained that there are already thousands of applications lodged before these Commissions seeking compensation and that any villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).


ITEMID: 001-104859
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ANNA TODOROVA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (susbtantive aspect);Non-pecuniary damage - award
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 8. The applicant was born in 1949 and lives in Seraing, Belgium.
9. On 24 October 1994 her son, Mr Zhivko Todorov Todorov, who was born in 1972 and lived in Plovdiv, Bulgaria, was involved in a road traffic accident. On 2 November 1994 he died from his injuries.
10. In the autumn of 1994 Mr Todorov befriended S.N. On the morning of 24 October 1994 the two travelled from Plovdiv to Varna. They were travelling by car, a BMW 5 Series belonging to a company owned by S.N.’s family. In the afternoon they left Varna and headed back to Plovdiv. On their way back, they passed through the town of Chirpan at about 10 p.m., where they met S.N.’s brother and two friends of his, I.M. and I.I. According to later statements of S.N. and a friend of his, S.S. (see paragraphs 27 and 28 below), shortly after that on the road to Plovdiv they saw S.S., whose car was stopped at the side of the road because he had a flat tyre. They lent him the BMW’s spare tyre and continued on their way.
11. When, some time after 11 p.m., they were passing through the village of Plodovitovo, where the speed limit was fifty kilometres per hour, they started overtaking a lorry with a trailer. The lorry, driven by P.P., reached a crossroad and started turning left. The BMW was moving behind it at about one hundred kilometres per hour. It did not slow down and collided headon with the lorry’s trailer. Immediately after the crash the BMW caught fire. P.P., who had not sustained any injuries, got out of the lorry and, with the help of the driver of a Lada Niva with registration plates from the town of Yambol, took Mr Todorov and S.N. out of the burning BMW.
12. At about midnight Mr Todorov and S.N. were taken to a hospital in Chirpan. Mr Todorov was in a very bad condition and unconscious. S.N.’s injuries, although serious, were not as critical. Some time later a police officer came to the hospital. He was unable to interview Mr Todorov or S.N., the former being unconscious and the latter apparently being in a state of shock and incapable of making coherent statements. After that the officer visited the scene of the accident and took notes and pictures.
13. On 28 October 1994 Mr Todorov was transferred to a hospital in Plovdiv. He did not regain consciousness and died on 2 November 1994.
14. On 3 November 1994 a doctor from the forensic medicine department of the Plovdiv Medical University performed an autopsy on Mr Todorov’s body. He found numerous traumatic injuries to his head, limbs and internal organs. The doctor’s conclusion was that he had died from his brain injuries. In his opinion, these injuries had been caused by the impact of the collision.
15. On the night of the accident the police opened an inquiry into the actions of S.N. on suspicion that, by breaching road traffic regulations, he had caused the accident and had thus negligently inflicted bodily injury on Mr Todorov.
16. On 25 October 1994 the police interviewed P.P. He described the accident and said that he had taken the two injured men out of the BMW with the help of other drivers who had stopped nearby. The same day he gave a blood sample. The sample was analysed on 1 November 1994 and it was determined that his blood had no alcohol content.
17. On 16 December 1994 the officer investigating the case asked an expert to determine whether Mr Todorov’s death had been a result of the accident.
18. On 3 January 1995 the police sent the case to the Chirpan District Prosecutor’s Office, proposing to convert the inquiry into a fully fledged homicide investigation. The case was then forwarded to the Stara Zagora Regional Prosecutor’s Office, which on 20 January 1995 opened a criminal investigation.
19. On 9 February 1995 the investigator to whom the case had been assigned asked an expert to determine whether P.P. had manoeuvred properly. In his report, filed on 5 March 1995, the expert said that P.P. had carried out the left turn correctly and that the accident had occurred because of the BMW’s high speed, well above the maximum allowed on that part of the road.
20. On 1 March 1995 the investigator interviewed P.P. again.
21. On 7 March 1995 the investigator asked an expert to determine (a) the exact spot where the BMW and the lorry’s trailer had collided; (b) the BMW’s and the lorry’s exact speed before the accident; (c) the distance between the BMW and the lorry at the time the lorry began its left turn; and (d) whether it had been possible for the BMW’s driver to avoid the accident. In his report, filed on 13 March 1995, the expert said that (a) the collision had taken place on the road; (b) the lorry had been travelling at thirteen kilometres per hour and the BMW at about one hundred kilometres per hour; (c) the BMW had been eightythree metres behind the lorry at the time the lorry had started to turn; and that (d) the BMW’s driver could have stopped before the collision point.
22. It seems that no procedural steps were taken during the following months.
23. On 6 September 1995 the investigator sent the file to the Stara Zagora Regional Prosecutor’s Office with a recommendation to discontinue the proceedings. On 26 September 1995 that Office referred the case back, noting that, although more than half a year had passed following the opening of the proceedings, the inquiries had not been comprehensive and thorough. No steps had been carried out with the participation of S.N. and various other pieces of evidence had not been gathered.
24. In the meantime, on 14 September 1995 the applicant and her husband, who later passed away, brought a civil party claim against S.N.
25. On 23 October 1995 the investigator interviewed S.N. He described the events of 24 October 1994 and asserted that, although the BMW had belonged to his and his brother’s company, Mr Todorov had been the one driving it at the time of the accident. He also said that he would be able to find witnesses who could confirm that assertion.
26. On 17 November 1995 the investigator interviewed P.P. once again. He mentioned the driver of the Lada Niva (see paragraph 11 above), but said that he did not remember his name or the exact number of his registration plates. He described how the two of them had taken the two injured men out of the BMW, and said that the one behind the wheel had been S.N. After that the investigator organised an identity parade at which P.P. identified S.N. as the BMW’s driver.
27. On 22 November 1995 the investigator interviewed S.S. He said that he knew S.N. well, but had not known Mr Todorov at all. He also said that when S.N. and Mr Todorov had stopped to help him with the flat tyre, the one driving the BMW had been Mr Todorov.
28. On 24 November 1995 the investigator charged S.N. and interviewed him. S.N. asserted that the person driving the BMW at the time of the accident had been Mr Todorov. On the way from Varna they had switched several times, but at the time of the accident the one behind the wheel had been Mr Todorov. This had been witnessed by several people in Chirpan. It had also been witnessed by his friend, S.S., on the road between Chirpan and the place of the accident.
29. The same day the investigator interviewed I.M. and I.I., who said that they had been having dinner with S.N.’s brother in Chirpan when they had met S.N. and Mr Todorov. They also said that they were acquainted with S.N., but had known Mr Todorov only by sight. Both of them stated that the one driving the BMW at the time of their meeting had been Mr Todorov.
30. On 7 December 1995 the investigator sent the case to the Stara Zagora Regional Prosecutor’s Office, recommending that the proceedings be discontinued. He noted that the technical expert report and the inspection of the site of the accident showed that the accident had been the fault of the BMW’s driver. The only contentious issue was whether this had been S.N. or Mr Todorov. P.P. had stated that the one behind the wheel had been S.N. However, the latter had disputed this assertion and had provided three witnesses – I.M., I.I. and S.S. – who had all asserted that the one driving the BMW had been Mr Todorov. It could therefore be concluded that the BMW had been driven by Mr Todorov.
31. On 10 January 1996 the Stara Zagora Regional Prosecutor’s Office referred the case back to the investigator for additional investigation.
32. On 18 January 1996 the investigator interviewed the police officer who had started the inquiry. He said that he had first gone to the hospital and then to the scene of the accident, but was unable to say which of the two persons in the BMW had been the driver.
33. On 4 April 1996 the investigator asked two medical experts to assess the extent of S.N.’s injuries and to express an opinion on whether he had indeed been unable to make coherent statements after the accident. In their report, filed on 9 May 1996, the experts said that it was impossible to determine this solely from the materials in the file because shortly before the accident S.N. had been involved in another road traffic accident. It was necessary to examine him personally.
34. On 11 July 1996 the investigator asked five experts to express their opinion on whether Mr Todorov or S.N. had been driving the BMW at the time of the accident. However, the experts were unable to examine S.N., who had gone missing, and the report could not be completed. On 30 December 1996 the experts sent the file back to the investigator and asked him to order that S.N. be compelled to appear.
35. On 11 April 1997 the Stara Zagora Regional Prosecutor’s Office, to which the file had been sent, returned it for further investigation. It ordered that S.N. be compelled to submit to an examination by the experts.
36. On 24 April 1997 the investigator requested the police to trace S.N. with a view to summoning him. The police supplied information about his address on 2 May 1997. On 13 May 1997 he was summoned for 20 May 1997, but failed to appear. Accordingly, on 9 July 1997 the investigator ordered that he be brought by force. On 23 July 1997 the Stara Zagora Regional Prosecutor’s Office decided to place him in custody. On 21 November 1997 instructions were given for him to be found.
37. On 30 March 1998 S.N. appeared before the investigator. He was charged, interviewed and allowed to examine the file with his counsel. He said that he stood by his previous statements.
38. On 13 October 1998 the investigator sent the case to the Chirpan District Prosecutor’s Office, recommending that S.N. be brought to trial.
39. On 26 January 1999 the Stara Zagora Regional Prosecutor’s Office sent the case back to the investigator, noting, among other things, that he had not properly worded the charge, that no information had been gathered on any previous road traffic offences committed by S.N., and that the medical expert report ordered on 11 July 1996 had not been finalised. It instructed the investigator to examine whether P.P. had made the left turn in line with road traffic rules and, if he found that this was not the case, to charge him as well.
40. On 9 February 1999 the investigator asked an expert to determine whether P.P. had turned left properly. In his report, filed on 5 March 1999, the expert stated that P.P. had not breached any road traffic rules.
41. On 11 March 1999 the investigator asked five experts to determine, on the basis of the injuries sustained by Mr Todorov and S.N., which of the two had been driving the BMW at the time of the accident. The experts studied the documents in the file, including the medical report drawn up when Mr Todorov had been admitted to the hospital in Chirpan, his autopsy report, and a medical report on S.N.’s condition on the day after the accident. On 8 June 1999 they examined S.N. and on 11 June 1999 subjected him to an X-ray and a CAT scan. However, they were not able to inspect the BMW, as it had apparently disappeared.
42. On 14 July 1999 the investigator interviewed S.N. in relation to the BMW’s whereabouts. He said that he had left it on a street in the village of Gradina. Somebody had later removed it from there and he had no idea where it was.
43. In their report the experts said that, without inspecting the BMW and on the basis of the medical data alone, they could not reach a definite conclusion as to which of the two had been driving it at the time of the accident.
44. On 23 August 1999 the investigator charged S.N. anew and interviewed him, and on 7 September 1999 ordered that the applicant be allowed to participate in the proceedings as a civil claimant.
45. On 15 September 1999 the investigator sent the case to the Stara Zagora Regional Prosecutor’s Office, proposing that S.N. be brought to trial.
46. However, on 27 September 1999 the Stara Zagora Regional Prosecutor’s Office decided to discontinue the proceedings, reasoning that it had not been conclusively established who had been driving the BMW at the time of the accident. According to I.M., I.I. and S.S., it had been Mr Todorov, whereas P.P. maintained that it had been S.N. The experts had been unable to arrive at a categorical conclusion on this point. It was also unclear whether the line in the middle of the carriageway had been continuous or dotted. Therefore, the accusation had not been proved. On 19 May 2001 the prosecutor’s office sent the case of its own motion to the Stara Zagora Regional Court.
47. In a decision of 6 June 2001 the Stara Zagora Regional Court, noting that in accordance with an intervening legislative amendment the decision to discontinue an investigation was no longer subject to automatic review by the courts, but could only be reviewed pursuant to an application by those concerned, referred the case back to the prosecution authorities with instructions to inform the applicant of the discontinuance.
48. On 27 June 2001 a prosecutor of the Stara Zagora Regional Prosecutor’s Office again discontinued the investigation. He described the circumstances of the accident and said that it was clear that the BMW’s driver had breached road traffic regulations, whereas P.P. had properly made a left turn. However, despite taking all the necessary steps, the investigation had been unable to ascertain who had been driving the BMW at the time of the accident. Three witnesses – I.M., I.I. and S.S. – were categorical that the BMW had been driven by Mr Todorov. The experts were unable to arrive at a definite conclusion on this point. The police officer who had inspected the scene could not say who had been driving the BMW either. On the other hand, P.P., when interviewed, had stated that the BMW had been driven by S.N., and had identified him as the driver during an identity parade. It was also unclear whether the line in the middle of the carriageway had been continuous or dotted. Therefore, the accusation had not been proved.
49. This decision was sent to the applicant on 2 January 2003.
50. On 10 January 2003 the applicant sought judicial review by the Stara Zagora Regional Court. She argued that the conclusion that it could not be determined whether S.N. had been behind the wheel at the time of the accident was based on incomplete evidence. The authorities’ preference for the testimony of I.M., I.I. and S.S., who had not witnessed the accident, over the testimony of P.P., who had taken the victims out of the burning BMW, was unwarranted. The discrepancy between their versions should have been elucidated through a confrontation. She further pointed out that it would not have been very hard to establish the identity of the Lada Niva’s driver and then interview him, which had not been done.
51. On 24 January 2003 the court, observing that the prosecution authorities had failed to serve a copy of the application on S.N., referred the case back to them with instructions to do so. They apparently complied with these instructions and re-sent the file to the court.
52. After holding a hearing on 7 May 2003, in a decision of 23 May 2003 the court upheld the decision to discontinue the proceedings. It held that when hearing a challenge against a decision discontinuing a criminal investigation it could not scrutinise the manner in which the prosecution authorities had assessed the evidence, nor take their place and fill in the gaps in their reasoning. It was not competent to gather fresh evidence either; its assessment had to be based on the available material. Accordingly, even if it were to find gaps in it, it could not set aside the discontinuance decision on that ground.
53. The applicant appealed, but, following a legislative amendment effective from 3 June 2003 and providing that firstinstance court decisions reviewing prosecutor’s decisions to discontinue criminal investigations were final, the court terminated the proceedings on 23 June 2003.
54. Throughout the proceedings the applicant wrote many letters to the prosecuting authorities, urging them to expedite the processing of the case. On some of those occasions the Chief Prosecutor’s Office sent letters to the lower prosecutor’s offices, instructing them to finalise the case promptly.
55. On 7 December 1998 the applicant brought a tort claim against S.N. in the Plovdiv Regional Court. After holding a hearing on 5 February 1999, on 16 March 1999 the court stayed the proceedings pending the outcome of the criminal investigation. On several occasions between 2001 and 2003 it enquired about the investigation’s progress. On 22 December 2003, following the upholding of the investigation’s discontinuance, it resumed the examination of the claim.
56. The court then held two hearings, on 11 February and 9 April 2004. The applicant could not be found and summoned for the first of those at her home, and was regarded as summoned under a rule allowing constructive summoning where a party failed to inform the court of a change of address. The court summoned the applicant for the second hearing through the counsel who represented her before the proceedings were stayed. However, neither the applicant nor the lawyer appeared. The court admitted in evidence the prosecutor’s decision to discontinue the criminal proceedings and the decision whereby the Stara Zagora Regional Court had upheld the discontinuance (see paragraphs 48 and 52 above).
57. The Plovdiv Regional Court dismissed the applicant’s claim on 10 May 2004. It held as follows:
“[The] prosecutor’s decision [of 27 September 1999 – see paragraph 46 above] and [the] Stara Zagora Regional Court’s decision [of 23 May 2003 – see paragraph 52 above] were admitted in evidence without being challenged. The prosecutor’s decision shows that the criminal proceedings against [S.N.] under Article 343 § 1 (c), read in conjunction with Article 342 § 1 of the Criminal Code [see paragraph 60 below] have been discontinued for lack of evidence. The reasons for the discontinuance are that it was not established in a categorical manner who had driven the car at the time of the road traffic accident, and that there was a lack of categorical findings as to whether the line in the middle of the carriageway at the area of the accident had been continuous or dotted.
In those circumstances, the [court] finds that the claims under section 45(1) of the Obligations and Contracts Act [see paragraph 61 below] are unfounded and should not be allowed. ...”
58. Notice of the court’s judgment was sent to the applicant’s address in Bulgaria, but could not be delivered because she no longer lived there. Another notice was sent to the abovementioned lawyer; it was received by a colleague of his on 8 June 2004.
59. There is no indication that the applicant appealed against the judgment.
60. Article 343 § 1 (c), read in conjunction with Article 342 § 1 of the Criminal Code 1968, makes it an offence to cause the death of another by driving in reckless disregard of road traffic regulations. The penalty on conviction is up to six years’ imprisonment.
61. The civillaw consequences of road traffic accidents are governed by the general law of torts. The relevant provisions are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (Закон за задълженията и договорите). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. In all cases of tortious conduct, fault is presumed unless proved otherwise (section 45(2)). Compensation is due for all damage that is a direct and proximate result of the tortious act (section 51(1)). The amount of compensation in respect of nonpecuniary damage is to be determined by the court in equity (section 52).
62. The law concerning civilparty claims in criminal proceedings and separate civil claims is set out in the Court’s admissibility decision in the case of Tonchev v. Bulgaria ((dec.), no. 18527/02, 14 October 2008) and in paragraphs 29 and 30 of the Court’s judgment in the case of Dinchev v. Bulgaria (no. 23057/03, 22 January 2009).
63. The provisions governing discontinuance of criminal proceedings before trial are set out in the Court’s decision in the case of Nenkov v. Bulgaria ((dec.), no. 24128/02, 7 October 2008).
64. The rules governing stays of civil proceedings and the effects of a decision to discontinue a criminal investigation on the examination of a separate civil claim arising out of the same events were at the relevant time contained in Articles 182, 183 and 222 the Code of Civil Procedure 1952. They provided as follows:
“The court shall stay the proceedings:
...
(d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings.”
“Proceedings which have been stayed shall be resumed on the court’s own motion or upon a party’s request after the respective obstacles have been removed...”
“The final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated, whether it was unlawful, and whether the perpetrator was guilty of it.”
65. The former Supreme Court has given a number of rulings as to the effect of the above provisions.
66. In a decision of 1 December 1966 (тълк. реш. № 142 от 1 декември 1966, ОСГК на ВС), the General Meeting of the Civil Chambers of the former Supreme Court, in giving a binding interpretation of Articles 182 § 1 (e) and 222 of the Code, held that a prosecutorial decision discontinuing a criminal prosecution on the ground that the accused has not committed the impugned act is, unlike a judgment of conviction or acquittal, not binding on the civil court that rules on the civil consequences of that act.
67. In a judgment of 18 January 1980 (реш. № 3421 от 18 януари 1980 г. по гр. д. № 1366/1979 г., ВС, I г. о.), the First Civil Division of the Supreme Court held:
“In principle, the fact that a criminal offence [has been committed] may be established only in proceedings under the Code of Criminal Procedure. That is why, by Article 182 [§ 1] (d) of the Code of Civil Procedure [1952], where an alleged civil right derives from a fact which amounts to an offence under the Criminal Code, the civil court is bound to stay the civil proceedings. That is necessary in order to follow the judgment of the criminal court. This is mandatory for the civil courts in all cases, regardless of the criminal offence to which [the proceedings] relate. The binding force of the judgments of criminal courts is set out in Article 222 of the Code of Civil Procedure [1952].
Under [that provision], the final judgment of a criminal court is binding on the civil court which examines the civil consequences of the criminal act in relation to the points whether the act was perpetrated, whether it was unlawful, and whether the perpetrator was guilty of it. The law does not allow the [civil] court freely to assess the evidence and requires that court, in order to abide by the criminal judgment, to regard as established the facts that that judgment has found to have occurred or otherwise. The criminal court’s judgment is res judicata in relation to the matters mentioned in Article 222. That res judicata effect has to be taken into account by all courts and State authorities. It cannot be challenged when the criminal court’s judgment has taken effect. It presupposes that the act that forms the subject matter of the criminal judgment and the act that needs to be established in the civil proceedings coincide. It does not matter whether the act has been perpetrated by the defendant to the civil action or is an act by a third party that has an effect on the defendant’s liability. [The court] must treat as binding not only convictions, but also acquittals, in cases where they have established the lack of elements of the tort [in question]: for instance, the lack of an tortious act, [or] the lack of a causal link between the act and the damage [suffered by the claimant]. However, a criminal court’s judgment does not need to be treated as binding where it has acquitted the defendant on the ground that his or her act was not criminal – an act, although not amounting to a criminal offence, may still be a tort. The binding effect of the criminal court’s judgment relates to all elements of the criminal offence. When the amount of the damage is an element of the offence, the criminal court’s findings as to that amount are binding on the court which rules on the civil claim. When the criminal court has made findings in relation to the amount of the damage caused because it was an element of the criminal offence of which a person has been accused, those findings are binding on the court determining the civil claim. [For instance,] in the case of a theft, where the sum of money stolen is an element of the criminal offence, the criminal court’s findings as to that sum are binding in the civil case. [Similarly, in] the case of the offence of wilful mismanagement ..., the amount of damage caused is an element of the offence; in order for the impugned act to have constituted an offence, it must have caused significant damage. In order to determine whether the damage is significant, the criminal court must make findings as to its amount. That is why the amount of the damage featuring in the criminal court’s judgment is binding [on the civil court].”
68. In a judgment of 13 December 1988 (реш. № 817 от 13 декември 1988 г. по гр. д. № 725/1988 г., ВС, IV г. о.), concerning a claim for damages arising out of a road traffic accident, the Fourth Civil Division of the former Supreme Court held:
“In dismissing the claim, the [lower] court found that the only party responsible for the accident was the claimant, who, at a distance of about ten metres, suddenly jumped in front of the car in order to cross the street and that therefore, despite the steps taken by the driver, the collision was not avoided.
That conclusion was based on the fact that the criminal investigation against the driver had been discontinued on the grounds of lack of evidence, lack of some of the elements rendering the act a criminal offence, and lack of guilt.
By basing its findings on the discontinuance of the criminal investigation, the [lower court] acted in breach of Article 222 of the Code of Civil Procedure, which provides that only the final judgment of a criminal court is binding on the civil court which deals with the civil consequences of the impugned act ... The prosecutor’s decision to discontinue the investigation has no evidential value and his or her findings are not binding on the court dealing with the civil consequences of the act. Where there is no judgment of a criminal court finding the accused not guilty of causing the claimant’s injuries, the civil court must establish whether or not the defendant has committed the alleged act on the basis of all types of evidence admissible under the Code of Civil Procedure. The prosecutor’s decision to discontinue the investigation has no evidential value and does not show that the defendant is not responsible for the road traffic accident.”
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