ITEMID: 001-87644
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF X v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1972 and lives in Zagreb.
5. On 15 December 1998 the S. Welfare Centre (Centar za socijalni rad S., “the Centre”) instituted proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) with a view to divesting the applicant of her capacity to act (to perform acts with legal effect; poslovna sposobnost). On 9 December 1998 the Centre temporarily appointed the applicant’s mother as her guardian so that she could represent her daughter in the above proceedings. The Centre based its request on the notice from the V. Psychiatric Hospital of 27 October 1998 in which it was stated that the applicant was suffering from schizophrenia. The relevant part of the notice read as follows:
“[The applicant] has been recurrently treated at the V. Psychiatric Hospital, on the last occasion from 4 to 26 September this year, and diagnosed [as suffering from] schizophrenia (depressive disorder), after a suicide attempt.
During the last few treatments [at the hospital] the patient had left the hospital of her own will. While being in a phase of exacerbation she returned [to the hospital] on several occasions, after swallowing a large quantity of pills. We are aware that the patient has had problems with her mother and also that she is occasionally inclined to take drugs. As regards the main disease (sch[izophrenia]), we have not observed productive psychotic symptoms for a long period, but her behaviour and functioning has lately been compromised with so called deficiency symptoms which impede a more structured therapeutic process to a significant degree. We consider that the above indicates the need to deprive the patient of her capacity to act...”
6. On 4 June 1999 the applicant was heard by the Municipal Court’s judge for the first time. The transcript of her statement reads as follows:
“The [applicant] says that her problems started when she went to London where she felt lost and begun to consume pot [meaning marijuana]. Since then she’s been suffering from hallucinations which at that time seemed tolerable to her. After 4 years, in 1993, she returned to Zagreb where she started her treatment. She is presently receiving therapy. Her latest hospitalisation was in September last year. She is presently receiving Depot and Haldol. She sells environmentally-friendly carrier bags. She neither wishes to be placed under guardianship nor does she wish to have her mother as her guardian, for private reasons. She is presently two months pregnant and ever since she learned of this she has not taken any drugs. Most lately she has been taking pot but no heavy drugs. She is planning to terminate the pregnancy. She does not feel good on Haldol, she feels depressed and in particular it bothers her at work. She has finished elementary school but has never been employed. She went to London when she was seventeen with a group of people. She now lives in a flat owned by her mother. She lives alone since her mother lives with her new husband. However, her mother is paying the bills and the rest she earns herself. It is true that she attempted suicide by [swallowing] pills, most recently in March last year. She is aware that she has been diagnosed with paranoid schizophrenia.”
In view of the opinion given by the medical expert and the fact that the applicant was undergoing psychiatric treatment, the court stayed the proceedings.
7. On 25 December 1999 the applicant gave birth to a daughter, A.
8. In his letter to the Centre of 11 April 2000, a psychiatrist of the V. Psychiatric Hospital stated as follows:
“... we consider it necessary that the proceedings for divesting the patient of her capacity to act be resumed because her behavioural disorder has become exacerbated lately owing to her uncontrolled intake of psychoactive substances by which she has endangered her own safety and in particular the safety of her child.”
9. On an unspecified date in 2000 the court resumed the proceedings and on 7 November 2000 paid a visit to the applicant’s home, in the presence of the applicant and her mother as her guardian, a judge conducting the proceedings and her secretary, a representative of the Centre and a psychiatrist. The relevant parts of the report of the visit read as follows:
“The [applicant] in the company of her mother and child is met at the premises. The representative of the Centre states that a decision to place the child in foster care was issued and that the [applicant]’s mother was appointed as carer. The [applicant] states that she agrees to that as well as to being placed under guardianship in the best interests of her child since she is aware that she is unable to care for the child or for herself. However, she asks whether she can apply to have her capacity to act restored if her condition improves. In the meantime she has twice been admitted to hospital but does not see any results and does not know what to do with herself. From time to time she says that she might go back to London to earn some money. It is true that she has been taking drugs, though rarely and only pot and also larger quantities of Plivadon together with the prescribed therapy. In fact, she is not working, she is mostly at home caring for the child. Only after being asked by her mother and the representative of the Centre does she admit that she is still receiving company at home and that she gave some kitchen cupboards to Caritas because she did not like them (the mother says that she sold them). The father of the child, living in the same building, occasionally visits her and the child, but she has no committed relationship although two weeks ago she terminated another pregnancy. Although she expresses a wish to do any job, she admits that so far she has taken no steps to that end.”
10. The court also ordered a psychiatric assessment of the applicant’s mental condition. The assessment was carried out by the psychiatrist present at the visit to the applicant’s home. The conclusion of the report drawn up on 25 November 2000 read as follows:
“... The patient suffers from a chronic mental illness with progressive tendency.
Addiction to opiates has also been fixed and motivation for abstention is weak. Prognosis quoad sanationem is exceptionally unfavourable.
The patient is unable to protect herself or her rights and interest and might endanger the rights and interests of others.
I propose that she be entirely divested of the capacity to act.”
11. On 14 May 2001 the Zagreb Municipal Court divested the applicant of the capacity to act. The operative part of this decision reads as follows:
“X ... is entirely divested of her capacity to act.”
In its reasoning the Municipal Court summarised the findings of the applicant’s psychiatric assessment and concluded as follows:
“... this court has established without doubt that the [applicant], owing to her mental illness and addiction to opiates, is not able to care for her personal needs, rights and interest, and therefore also endangers the rights and interests of others. Accordingly, she has to be entirely divested of her capacity to act under section 182 of the Family Act.”
The applicant did not appeal against that decision, and it became final on 8 October 2001. An ex lege consequence was that the applicant was also deprived of her parental rights although the decision to divest the applicant of her capacity to act did not state it expressly. The court appointed her mother as her guardian. Following a request made by the applicant’s mother, on 27 December 2001 the applicant was placed under the guardianship of N.J., an employee at the Centre.
12. On 16 February 2004 the applicant applied to the Zagreb Municipal Court in order to have her capacity to act restored. On 23 April 2004 the court asked the V. Psychiatric Hospital to make an assessment of the applicant’s mental condition. The relevant parts of the report drawn up by a different psychiatrist on 8 September 2004 read as follows:
“... Psychiatric expertise in this case commenced in June this year when the patient answered the Centre’s invitation. However, during the first interview she showed transparent psychosis with delusional elements and disjointed breathless speech, and when an attempt was made to carry out a urine test for psychoactive substances the patient did not appear at the interview scheduled for the next day. ...
The second interview was held on 2 September at the time of her hospitalisation in the V. Psychiatric Hospital, unrelated to these proceedings, and being the result of the evident exacerbation and bad condition of the main illness. The patient was hospitalised on 21 August 2004. During the present interview, despite the therapy administered, just the same as during the interview held in June, she manifests florid psychosis with all elements of schizophrenic psychosis. Paranoid manic ideas, relational delusions as well as delusions of persecution and bizarre manic ideas are dominant. Her interpretation of reality, of herself and others is completely distorted. [The patient] represents a typical phenomenon of derealisation and depersonalisation. Her emotions are engaged only with regard to her manic perception; otherwise she is emotionally cold and aloof. Emotional resonance is lacking during the interview. Her overall behaviour has a manic quality. There is no doubt that her everyday functioning is also determined by the above-described psychopathological perception. ...
In my opinion the problems associated with the intake of addictive substances, those being cannabis, are at the time being of secondary importance. She took other psychoactive substances only experimentally and occasionally and her psychotic picture, clinically manifested for a long time, cannot be associated with it. However, it is clear that her previous intake of cannabis had a role in forming her behaviour, possibly even in inducing her psychotic behaviour and her overall clinical picture.
In comparison to the previous psychiatric assessments, her psychopathology, that is to say her clinical picture of schizophrenic psychosis became more pronounced, delusions are now barely susceptible to any corrections, dislocation of the thought process is noticeable, emotional coldness and aloofness, loss of the reality test, utmost lack of critical insight towards herself. Owing to her psychopathological drives she is aggressive, hostile and paranoid towards others.
In these circumstances I consider that the conditions for restoring the capacity to act to X do not exist. On the contrary, the psychopathological reasons which led to her being divested of the capacity to act are now even more conspicuous and more numerous. Owing to her mental disturbances (schizophrenia) the patient is still not able to look after her personal needs, rights and interests and moreover she is endangering the rights and interests of others. Therefore, I propose that the court maintain [its decision] that she be entirely divested of the capacity to act and placed under guardianship.
...”
13. At the hearing on 12 October 2004, the applicant objected to the above assessment and requested a new one. The second psychiatric assessment carried out by the Psychiatric Clinic of the Zagreb Medical School supported the first one. The relevant parts of the report drawn up by a psychiatrist, M.K., on 27 January 2005 read as follows:
“...
Mental status: conscious, uncertain about time, well oriented in space, auto and allopsychic orientation preserved. Contact is easily established, she answers questions without latency. Psychomotorically tense, worried about the outcome of the proceedings. Affected behaviour. Basic disposition slightly uneasy. Emotionally distant. Thought flow regular in its form, in content [includes] description of previous manic experiences and sensory delusions, currently without florid psychopathological deviations. [She] denies delusions and none are perceived. Her intellectual and mnestic capacities are devoid of strong deviations. Her will-instinct dynamism is preserved. She is neither aggressive nor suicidal.
4. Opinion
The patient ... has been suffering for ten years from chronic mental illness, schizophrenic psychosis. In addition, as is commonly found with such an illness, she is also an addict, she has been consuming various opiates and even today her abstinence cannot be established with certainty. She has been hospitalised on more than ten occasions. The [medical] documentation and the information obtained from the patient both show that there was no single period of systematic clinical monitoring after her release from hospital or a sustained period of social functioning. Therefore, we can fully agree with the above assessment of our colleagues who gave their opinion of the patient’s mental health and agree that it is good for her not to have her capacity to act restored.
There has been no improvement of her clinical picture or her social functioning in relation to the opinion expressed at the latest assessment, which is understandable given the nature of her disorder, i.e. chronic mental illness.
5. Conclusion
[The applicant] is suffering form schizophrenic psychosis of paranoid disposition and in addition is still consuming opiates, which altogether indicates that the disorder, which is in any case chronic, has also been progressing and renders X incapable of taking care of her interests, rights and responsibilities, so that there is no ground for restoring her capacity to act, of which she has been divested since 2001.”
14. On 10 March 2005 the court, relying on the above psychiatric assessment, refused the applicant’s request to restore her capacity to act. The applicant did not appeal against that decision.
15. In a decision of 13 July 2000 the Centre placed the applicant’s child in foster care, relying on section 99(1) of the 1998 Family Act, and also appointed the applicant’s mother as a carer. The relevant operative parts of the decision read as follows:
“1. A. (personal data of the child) has the right to foster care outside her own family – placement in the foster family of [maternal grandmother] ..., beginning from 13 July 2000.
2. ...
3. ...
4. Contacts between the child A. with her mother X shall be arranged in consultation with the foster carer and with her father R. every Tuesday and Thursday from 5 p.m. to 7 p.m. and every Sunday from 4. p.m. to 7. p.m.
...”
The relevant part of the reasoning reads as follows:
“... The following has been established in these proceedings:
The child A. is registered with this Centre as having parents of asocial behaviour. She was born out of wedlock. Her mother X, born on 10 March 1972 is chronically ill, under treatment for mental problems and addiction. In 1998 proceedings with a view to divesting her of the capacity to act were instituted and her mother, [the child’s maternal grandmother], was appointed her temporary guardian. The proceedings are still pending.
The father (his personal data) is a minor who has left school and is unemployed and a drug addict ...
The quality of the parents’ relationship has significantly deteriorated lately, including frequent verbal and physical conflicts requiring police intervention. The parents have neglected the child.
On 13 July 2000 the expert panel of this Centre decided to allow placement of the child A. in the foster family of ..., maternal grandmother, who has helped [the parents] both by providing care for the child and financially.
Contacts [between the child and her parents] are [to be] arranged according to the agreement between the parents and the foster carer.”
16. In a decision of 22 November 2001 the Centre deprived the applicant of the right to live with her daughter, ordering that she be placed in SOS – Children’s Village L., in the care of one of their employees, M.V. The contacts between the child and her parents were to be arranged with the custodian and according to the House Rules of the above institution. The relevant part of the decision reads as follows:
“The proceedings have been instituted by the Centre of its own motion.
The interviews with the child’s mother, X, and maternal grandmother, ..., as well as an on-the-spot inspection and the relevant documents show the following facts:
The S. Welfare Centre’s decision ... of 13 July 2000 ordered placement of the child A. under the foster care of her maternal grandmother ... since the child’s parents had been assessed as persons who, owing to their asocial behaviour and consumption of opiates, were not capable of caring for the child. In respect of the child’s mother, X, proceedings with a view to divesting her of the capacity to act were instituted owing to her mental problems and problems with addiction. She was divested of her capacity to act in a final judgment (no. ...) of 8 October 2001 on the ground that, owing to her disturbed mental state (schizophrenia) and addiction to opiates, she had been incapable of caring for her personal needs, rights and interests and was endangering the rights and interests of others ...
Supervision of the child’s family circumstances, however, revealed that the child, although placed in her grandmother’s foster care, had continued to live in the same household with her mother, who had interfered with her upbringing and taken part in caring for the child, which the foster carer could not prevent ...
The child’s mother had not allowed the foster carer to care for the child. She was often under the influence of opiates which made her behave in an aggressive and unpredictable manner.
The child’s mother X admitted to consumption of opiates but considered that the child had not been at risk since, when feeling that she could not care for the child, she had been in the habit of taking the child to her paternal great-grandmother who then cared for the child since she, the mother, did not trust her own mother. She was aware of the overall situation and that the child’s surroundings were not beneficial for her but she blamed her mother and was looking for a solution (statement given on 8 November 2001).
The child’s father is currently doing his military service and is therefore not in a position to care for the child.
Bearing in mind the overall family circumstances, the expert panel for family protection considered that the current living conditions endangered the child and that her placement under the foster care of M.V. in Institution L. was urgent (the expert panel’s conclusion of 22 November 2001).
The decision on [the child’s] contacts with [her] parents has been adopted in view of the mother’s opposition to the taking of the child and her placement in an institution as well as the child’s need for regular contacts with her parents, which contacts, having regard to the parents’ state of health, shall take place under expert supervision.”
According to the applicant, she continued to visit her daughter on a regular basis. According to the Government, the applicant visited her daughter once in two months.
17. On 4 July 2003 the Centre placed the applicant’s child, A., under the guardianship of M.B. The relevant part of this decision reads as follows:
“These proceedings have been instituted by the Centre of its own motion.
The following has been established in the proceedings:
- that A is a child without parental care since her father R. died on 16 April 2003 and her mother X was entirely divested of her capacity to act in the Zagreb Municipal Court’s decision ... of 8 October 2001;
- that a social worker, Ms N.J., an employee of this Centre is currently a guardian of X ...;
- that the child A. has been placed in Institution L.;
- that [the Centre’s employees] paid a visit to L;
-that a social worker, Ms M.B., an employee of L, was heard and agreed to be appointed as a guardian of A.;
- that the prescribed conditions for her guardianship have been fulfilled.”
18. The above decision was not served on the applicant. In 2003 the Centre instituted proceedings for the adoption of A. of its own motion, without the applicant’s knowledge. On 21 August 2003 M.B., as A.’s guardian, gave her consent to the adoption. The Government submitted that on 25 August 2003 the applicant’s mother and the child’s paternal grandmother had been informed about the ongoing adoption proceedings. They also submitted that the applicant had been informed thereof during a telephone conversation on 26 August 2003.
19. On 2 September 2003 the Centre issued a decision authorising the adoption of A. That decision became final on 11 September 2003.
20. Under the domestic legislation in force, the applicant, being a person divested of the capacity to act, was not a party to the adoption proceedings, nor was she informed that they had taken place. Only later did the applicant find out that her daughter had been given up for adoption.
21. The Family Act (Obiteljski zakon, Official Gazette no. 162/1998 of 22 December 1998), in so far as relevant, read as follows:
“(1) Parental rights encompass protection of a child’s personal and economic interests and parental responsibility for his or her wellbeing.
(2) Parental rights may be restricted or divested only by a decision of a competent body for the reasons and in the procedure prescribed under this Act.”
“(1) Where parents do not live together a Social Welfare Centre shall designate the parent with whom the child shall live and arrange contacts between the child and the other parent except where this Act has placed such decisions within the jurisdiction of the courts.
...
(5) In the case mentioned in paragraph (1), where both parents are incapable of caring for their child or are otherwise unable to do so or are putting the child’s wellbeing at risk by their acts a Social Welfare Centre shall place the child [under the care of] another person or an institution.
(6) Where a Social Welfare Centre makes a decision under paragraph (5) it shall establish the duties and rights of each parent in respect of their care for the child.”
“(1) Where parents incapable of caring for their child, owing to their absence or health or other grounds, have not placed the child under the care of a person fulfilling the conditions for a guardian, a Social Welfare Centre is empowered to place the child under the care of another person or an institution without the parents’ consent.
(2) Placement or care of the child under paragraph (1) shall not exceed three months in duration.”
“(1) A Social Welfare Centre shall deprive of the right to live with his or her child a parent who seriously neglects or puts at risk the upbringing and education of the child and shall place the child under the care of another person or an institution.
...
(4) Deprivation of rights under paragraph (1) ... does not terminate other duties and rights of a parent in respect of his or her child.”
“(1) Measures under [section 112] ... shall not exceed one year in duration.
...”
“(1) A parent who abuses or gravely neglects parental duties and rights shall be divested of these rights by a decision of a court adopted in non-contentious proceedings.
...”
“(1) An adult who, owing to mental damage or illness, addiction to opiates, senility (dementia) or on other grounds, is incapable of taking care of his or her personal needs, rights and interests or is endangering the rights and interests of others shall be partly or entirely divested of the capacity to act.
...”
22. The Family Act (Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows:
“(1) Once adoption has been established parental custody [of the adopted child] shall cease.
...”
“(1) Adoption may be established if it is in the interest of the child.
...”
“(1) Adoption shall require the consent of both parents, except where otherwise provided.
...”
“Adoption shall not require consent of a parent who is...
2. Divested of the capacity to act...”
“(1) Adoption proceedings shall be carried out of its own motion by the competent welfare centre...”
...
“(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.”
“If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.”
“(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease.
...”
23. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant reads as follows:
24. The European Convention on Adoption of Children of 24 April 1967, in so far as relevant, reads as follows:
1. “...an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:
a. the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect;
b. the consent of the spouse of the adopter.
2. The competent authority shall not:
a. dispense with the consent of any person mentioned in paragraph 1 of this article, or
b. overrule the refusal to consent of any person or body mentioned in the said paragraph 1,
save on exceptional grounds determined by law.
3. If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent. ”
25. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows:
“Principle 2 — Flexibility in legal response
1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations. [...]
4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.
Principle 3 — Maximum reservation of capacity
1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. [...]
Principle 6 — Proportionality
1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. [...]
Principle 13 — Right to be heard in person
The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.
Principle 14 — Duration review and appeal
1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. [...]
3. There should be adequate rights of appeal.”
VIOLATED_ARTICLES: 8


ITEMID: 001-85679
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KORETSKYY AND OTHERS v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 4. Mr Koretskyy was born in 1955, Mr Tolochko and Mr Lobytskyy were born in 1975, and Mr Gorbal was born in 1978. All the applicants live in Kyiv.
5. On 7 June 2000 the applicants and two other persons founded an association named “Civic Committee for the Preservation of Wild (Indigenous) Natural Areas in Bereznyaky” (“Громадянський Комітет за збереження дикої (корінної) природи Березняків”, the “Civic Committee”). Mr Koretskyy was elected as the Civic Committee’s head.
6. On 27 July 2000 the applicants filed an application for the State registration of the Civic Committee together with a copy of its articles of association with the Kyiv City Department of Justice (the “City Department”).
7. The Civic Committee’s articles read, in so far as relevant, as follows:
“1.1. The Civic Committee ... (hereafter – the Committee) is a voluntary association of citizens, non-governmental organisations, and other legal entities, which unite their efforts in joint activities [aiming at the] preservation of wild (indigenous) natural systems in cities and towns.
1.2. The Committee is a non-governmental, non-profit organisation.
...
1.4. The activities of the Committee are to be carried out on the territory of Kyiv. The Committee may have representative offices in other cities and towns of Ukraine.
...”
“2.1. The Committee’s activities shall be based on the principles of:
a) democracy;
b) legality;
c) self-government;
d) equality of members;
e) openness;
f) combination of local actions with global thinking;
g) active creative initiative of the broader community.”
“3.1. The Committee was founded with the aim of protecting natural systems from their complete destruction in the process of urbanisation and from their replacement by artificial biomes in the process of urban development and growth.
3.2. The aim of the Committee is to preserve the remaining indigenous natural areas on the territory of the contemporary residential area of Bereznyaky.”
“4.1. The Committee ... shall have the task of taking concrete action to raise awareness among urban planners, members of bodies of local self-government, and the general public about ... the difference between indigenous natural systems and artificial natural systems in cities and towns, of the possible consequences of the loss of samples of natural ecosystems, as well as [the task of] coordinating joint activities of public authorities, non-governmental organisations, and the general public [aimed at] the prevention of such consequences, the result of which should be the preservation of indigenous biomes as natural samples.
4.2. According to [its] aim and tasks the Committee shall perform its activities in the following areas:
a) collection of information concerning the indigenous nature of Bereznyaky;
b) collection and study of world experience of coexistence of cities and natural systems;
c) creation and development of a publicly accessible electronic database;
d) cultural, educational, publishing, and informational activities;
e) lobbying of issues connected with the preservation of natural ecosystems with the national and local authorities;
...”
“5.1. ... the Committee shall have the right:
a) to take part in civil law relations, to acquire pecuniary and non-pecuniary rights;
...
d) to [disseminate] propaganda, and [carry out]cultural and educational activities;
...
h) to set up entities and organisations, to set up media, and to perform publishing activities;
i) to carry out non-governmental ecological expert examinations;
...
5.2. In order to fulfil its tasks the Committee shall have the right to carry out the necessary economic (“господарську”) and other commercial activities by means of establishing legal entities.”
“6.1. Membership in the Committee may be individual, collective, honorary, as well as [through] voluntary participation (“в якості волонтерів”);
...
6.4. Citizens of Ukraine and other States who share the ideology and participate in certain projects and actions [of the Committee] for free, may become volunteers of the Committee;
...”
“...
7.11. The Executive Board of the Committee shall be responsible for the financial administration of projects, the accounting of the Committee, and manage everyday administrative (“господарчу”) and financial activities to ensure the implementation of projects.
...”
8. On an unspecified date the application and articles of association were returned to the applicants and they were advised to make changes to the text, which were noted down by the City Department in the same documents. In particular, several sentences and paragraphs were crossed out, including paragraphs 3.1, 5.1 (d), and 6.4. Some other parts of the articles were rephrased or amended, like, for instance, the word “lobbying” in paragraph 4.2 (e) was replaced by “submission of propositions” and the phrase “to carry out non-governmental ecological expert examinations” in paragraph 5.1 (i) was reformulated to the effect that the Civic Committee could carry out ecological expert examination on a “voluntary basis”.
9. According to the applicants, on 6 September 2000 they submitted the redrafted version of the articles of association, in which the Department’s corrections were only partially accepted. The Government denied this.
10. By letter of 18 September 2000, the City Department informed the applicants of its refusal to register the Civic Committee on the ground that its articles had not been drafted in accordance with the domestic law. In particular, the Civic Committee’s status was not indicated; the provision that the Civic Committee could have representative offices in other cities and towns of Ukraine did not correspond to the provision that its activities were to be carried out on the territory of Kyiv; the articles listed two aims of the organisation instead of one aim and tasks; the Executive Board of the Civic Committee was entrusted with economic (“господарські”) functions while section 24 of the Associations of Citizens Act envisaged that the economic activities of an association could only be carried through separate legal entities which it could establish for that specific purpose; and the provisions that the Civic Committee could carry out publishing activities on its own and involve volunteers in its activities as members were contrary to the same law. Finally, the applicants had not taken into account all the corrections made to the text of the articles of association and they had submitted a copy of the document showing that they had paid registration fees, while the original was required.
11. In a letter of 20 September 2000, received by the City Department on 25 September 2000, Mr Koretskyy, acting on behalf of the Civic Committee as its head, stated that the Department had not taken into account the amended version of the Civic Committee’s articles lodged with it on 6 September 2000. He asked the Department to reconsider its decision in the light of the amended version of the articles of association, the additional copies of which he could submit if the Department wished.
12. By letter of 24 October 2000, the City Department acknowledged receipt of the applicants’ letter of 20 September 2000 and, referring to its letter of 18 September 2000, informed them that the articles of association could not be examined if they had not been re-drafted in compliance with the law. The Department also informed them that its refusal to register the Civic Committee could be challenged before the courts.
13. The applicants continued to carry out certain activities of the Civic Committee, in particular, publishing articles on its behalf in various newspapers.
14. On 30 November 2000 the applicants lodged a complaint with the Pecherskyy District Court of Kyiv, seeking the annulment of the City Department’s decision not to register the Civic Committee. They alleged a violation of their right to form an association and the right to freely choose its aims and areas of activities. They also argued that the reasons for the refusal to register their association had been based on an incorrect interpretation and application of the relevant law by the City Department. Furthermore, according to them, the City Department had failed to take into account the amended version of the articles of association, which they annexed to their complaint to the court.
15. On 13 March 2001 the court rejected the applicants’ complaint as unsubstantiated. On 28 August 2001 the Kyiv City Court of Appeal upheld the first-instance court’s decision.
16. The courts held that the refusal to register the Civic Committee had been lawful, since the articles of association contained textual discrepancies with the relevant provisions of the domestic legislation. In particular, the aim of the Civic Committee was not defined correctly and did not correspond to the requirements of sections 3 and 13 of the Associations of Citizens Act. The provisions of paragraphs 1.4, 5.1, and 7.11 of the articles of association authorising the Executive Board of the Civic Committee to carry out “everyday administrative and financial” activities and envisaging that the Civic Committee could perform publishing activities were not in compliance with sections 9 and 24 of that law. The wording of paragraphs 6.1 and 6.4 of the articles of association as regards the participation of volunteers in the Civic Committee’s activities contravened the principle of equality of members of an association embodied in section 6 of the law.
17. The courts also noted that the applicants had failed to submit a corrected version of the articles of association, while the versions they had filed with the courts had not been drafted in compliance with the law.
18. On 14 March 2002 a panel of three judges of the Supreme Court rejected the applicants’ request for leave to appeal in cassation, finding no grounds for examination of the case by the Civil Cases Chamber of the Supreme Court.
19. On 7 July 2002 the applicants decided to liquidate the Civic Committee and discontinued its activities.
20. The relevant provisions of the Constitution of Ukraine read as follows:
“The legal order in Ukraine is based on the principles according to which no one shall be forced to do what is not envisaged by legislation.
State and local self-government bodies and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.”
“Citizens of Ukraine have the right to freedom of association in political parties and non-governmental organisations for the exercise and protection of their rights and freedoms and for the satisfaction of their political, economic, social, cultural and other interests, with the exception of restrictions established by law in the interests of national security and public order, the protection of the health of the population or the protection of rights and freedoms of other persons.
...”
“The founding and activities of political parties and non-governmental organisations are prohibited if their programme goals or actions are aimed at the liquidation of the independence of Ukraine, the change of the constitutional order by violent means, the violation of the sovereignty and territorial indivisibility of the State, the undermining of its security, the unlawful seizure of Sate power, the propaganda of war, violence, the incitement of inter-ethnic, racial, [or] religious enmity, and encroachments on human rights and freedoms and the health of the population.
Political parties and non-governmental organisations shall not have paramilitary formations.
...
The prohibition of the activities of associations of citizens shall be exercised only through judicial procedure.”
21. Article 187-8 of the Code provides:
“Leadership of an association of citizens which was not legalised in the order envisaged by law, or the legalisation of which was refused, or which was dissolved by a court decision, but which continues to act, as well as participation in the activities of such associations within a year following the application of the administrative sanction for the same offence, -
shall be punishable by the deprivation of liberty for a term of up to five years.”
22. With the entry into force of the new Criminal Code on 1 September 2001, the above offence was decriminalised.
23. Article 186-5 of the Code reads:
“Leadership of an association of citizens which was not legalised in the order envisaged by law, or the legalisation of which was refused, or which was dissolved by a court decision, but which continues to act, as well as participation in the activities of such associations -
shall be punishable by a fine [in the amount] of twenty-five to one hundred and thirty times the statutory non-taxable monthly income.”
24. The relevant provisions of the Act read as follows:
“A non-governmental organisation is an association of citizens for the satisfaction and protection of their lawful social, economic, creative, age-related, national and cultural, sporting and other mutual interests.”
“Associations shall not be legalised, or the activities of legalised associations shall be prohibited through judicial procedure if their aim is:
to change the constitutional order by violent means and the territorial integrity of the State by any illegal means;
to undermine State security by means of activities in favour of foreign States;
to propagate war, violence or brutality, fascism and neo-fascism;
to incite national and religious enmity;
to restrict generally recognised human rights.
...”
“Associations shall be established and shall act on a voluntary basis and on the principles of equality of their members (participants), self-government, legality and openness. They shall be free to choose the direction of their activities.
Restrictions on the activities of associations may be introduced only by the Constitution and the laws of Ukraine.”
“Associations shall have pan-Ukrainian, local or international status.
Pan-Ukrainian associations include associations the activities of which cover the entire territory of Ukraine and which have local branches in the majority of the regions [of Ukraine].
Local associations include associations the activities of which cover the territory of the respective administrative-territorial unit or region. Associations shall designate the territory of their activities independently.
A non-governmental organisation shall be international if its activities cover the territory of Ukraine and of at least one other State.
...”
“An association shall act on the basis of its articles of association.
The articles of association shall include:
1) the name of the association (which shall differ from the names of existing associations), its status and address;
2) the aim and tasks of the association;
3) the conditions of and rules governing the granting of membership of the association, [and of] termination of membership;
4) the rights and duties of the members (participants) of the association;
5) the rules governing the founding and activities of the bodies of the association, local branches and their powers;
6) the sources of, and rules governing the use of, funds and other assets of the association, rules governing reporting, control, and conducting economic and other commercial activities necessary to fulfil the tasks [of the association];
7) the procedure for changing and amending the articles of association;
8) the procedure for the liquidation of the association and settlement of property related issues connected with its liquidation.
The articles of association may contain other provisions concerning the peculiarities of the founding and activities of the association.
The articles of association shall not contradict the legislation of Ukraine.”
“Legalisation (official recognition) of an association shall be compulsory and may be effected through the (association’s) registration or the notification of [its] foundation. The activities of an association which has not been legalised or which has been dissolved by a court decision shall be illegal.
In the event of its registration the association shall become a legal entity.
Political parties and international non-governmental organisations shall be registered by the Ministry of Justice.
Legalisation of a non-governmental organisation shall be carried out by the Ministry of Justice, local bodies of State executive power, [or] executive committees of village and town councils.
If the activities of a local non-governmental organisation cover the territory of two or more administrative territorial units, its legalisation shall be carried out by the relevant higher authority.
The local bodies of State executive power and the executive committees of village and town councils shall register the local branches of registered pan-Ukrainian and international associations, provided such registration is envisaged by the articles of association of these associations.
The body [of State power] responsible for the legalisation [of associations] shall make an act of legalisation (official recognition) of an association public through the media.”
“The founders of associations shall submit an application for their registration...
The application for registration shall be accompanied by the articles of association, minutes of the constituent meeting (conference) or general meeting of founders, information about the composition of the central [managing] bodies, information about local branches, documents confirming the payment of registration fees, save for cases when a non-governmental organisation is exempted from the payment of registration fees in accordance with the laws of Ukraine.
...
The application for the registration shall be dealt with within two months following the receipt of the documents. If necessary, the body performing the registration shall verify the data contained in the submitted documents. The applicant shall be informed in writing about a decision to register or about a refusal to register within ten days.
...”
“The registration of an association may be refused if its articles of association or other documents submitted for the registration contravene the legislation of Ukraine.
A decision refusing the registration shall contain reasons for the refusal. This decision may be challenged before the courts.
The body [of State power] responsible for the registration shall make public the refusal to register an association through the media.”
“Non-governmental organisations and their unions may be legalised by giving written notice to the Ministry of Justice, local bodies of State executive power, [or] executive committees of village and town councils.”
“To accomplish the goals and tasks set out in the articles of association, registered associations shall enjoy the [following] rights:
to take part in civil law relations, to acquire pecuniary and non-pecuniary rights;
to represent and protect their lawful interests and the lawful interests of their members (participants) before public and non-governmental bodies;
to take part in political activities, hold public events (meetings, demonstrations etc.);
to provide ideological, organisational, and financial support to other associations, to assist in their founding;
to found entities and organisations;
to receive information necessary for the fulfilment of their tasks from State and local self-government bodies;
to disseminate information and to propagate their ideas and aims;
to found media.
Non-governmental organisations shall have the right to found enterprises necessary for the fulfilment of their tasks.
...”
“To accomplish the goals and tasks set out in the articles of association, registered associations may carry out the necessary economic and other commercial activities by means of establishing separate legal entities, founding enterprises in accordance with the procedure envisaged by the legislation.
...”
“Leadership of the association which was not legalised in the order envisaged by law, or the legalisation of which was refused, or which was dissolved by a court decision, but which continues to act, as well as participation in the activities of such associations shall be punishable by administrative or criminal law.”
VIOLATED_ARTICLES: 11


ITEMID: 001-91790
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LYUBIMENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1979 and lives in Volgograd.
7. On 17 July 2003 the applicant was arrested on suspicion of aggravated murder and harbouring criminals.
8. On 18 July 2003 the Tsentralniy District Court of Volgograd remanded him in custody, referring to the gravity of the charges and the risk that he might abscond or interfere with the investigation.
9. On an unspecified date the applicant’s case was joined with the cases of five other persons, who had allegedly acted in conspiracy with the applicant.
10. In October 2003 the applicant and his co-defendants were charged with organising an armed criminal gang, several counts of aggravated robbery, kidnapping, extortion, infliction of serious injuries and murder.
11. On 3 December 2003 the Tsentralniy District Court extended the applicant’s detention, referring to the gravity of the charges, the previous criminal record and the risk of his absconding or re-offending.
12. On 12 April 2004 the investigation was completed and six defendants, including the applicant, were committed for trial before the Volgograd Regional Court.
13. The defendants asked for a trial by jury.
14. On 20 April 2004 the Volgograd Regional Court fixed a preliminary hearing for 27 April 2004 to examine the request. It further held that the defendants should meanwhile remain in custody.
15. On 27 April 2004 the Volgograd Regional Court ordered that the defendants be tried by jury and that they remain in custody pending trial.
16. On 13 October 2004 the Volgograd Regional Court extended the defendants’ detention until 12 January 2005, referring to the gravity of the charges.
17. On 12 January 2005 the Volgograd Regional Court extended the defendants’ detention, referring to the gravity of the charges and the risk that they might put pressure on witnesses and jurors.
18. On 7 April 2005 the Volgograd Regional Court extended the defendants’ detention until 12 July 2005. The Regional Court found that, in view of the gravity of the charges, it was “opportune” to keep the defendants in custody. It rejected their requests to release them under an undertaking not to leave the town, as it could not exclude the risk that they might put pressure on witnesses or jurors.
19. On 29 June 2005 the Volgograd Regional Court extended the defendants’ detention until 12 October 2005. It found that the defendants might interfere with the proceedings, as they were charged with serious criminal offences, including the charge of being members of an armed criminal gang.
20. On 4 October 2005 the Volgograd Regional Court extended the defendants’ detention until 12 January 2006 for the same reasons as before.
21. On 22 December 2005 the Volgograd Regional Court extended the defendants’ detention until 12 April 2006 for the same reasons as before.
22. The applicant appealed against the extension order of 22 December 2005. In his grounds of appeal he complained that the Regional Court’s conclusions had been hypothetical and had not been supported by relevant facts. The court had relied essentially on the gravity of the charges against him, disregarding his arguments that he had permanent residence and employment, and was the only breadwinner for his elderly parents. On 4 April 2006 the Supreme Court upheld the extension order on appeal, finding that it had been lawful and justified.
23. On 5 July 2006 the Volgograd Regional Court extended the defendants’ detention until 12 October 2006 for the same reasons as before.
24. On 2 October 2006 the Volgograd Regional Court extended the defendants’ detention until 12 January 2007, referring to the gravity of the charges and the defendants’ “characters”. The court also indicated that the purpose of the detention was to eliminate any risk of the defendants’ absconding, re-offending or hampering the court proceedings.
25. The applicant appealed, claiming that the Regional Court had used a stereotyped formula to justify his detention and that its conclusions that he might abscond, reoffend or interfere with the proceedings were not supported by relevant facts. He had a permanent place of residence and employment and was taking care after his elderly parents.
26. On 28 December 2006 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. The defendants were charged with serious criminal offences, and they might therefore abscond, re-offend or obstruct the proceedings. The allegedly excessive length of their detention, their poor health, elderly parents or permanent place of residence were not sufficient reasons to warrant release.
27. On 27 December 2006 the Volgograd Regional Court extended the defendants’ detention until 12 April 2007 for the same reasons as before.
28. On 10 April 2007 the Volgograd Regional Court extended the defendants’ detention until 12 July 2007 for the same reasons as before.
29. On 9 July 2007 the Volgograd Regional Court extended the defendants’ detention until 12 October 2007, finding that there was no reason to vary the preventive measure.
30. On 11 October 2007 the Volgograd Regional Court extended the defendants’ detention until 12 January 2008, referring to the gravity of the charges and the risk that they might abscond or intimidate the witnesses or jurors.
31. On 9 January 2008 the Volgograd Regional Court extended the defendants’ detention until 12 April 2008 for the same reasons as before.
32. On 8 April 2008 the Volgograd Regional Court rejected the applicant’s request to be released under an undertaking not to leave the place of residence and extended the defendants’ detention until 12 July 2008. The decision reads as follows:
“As the trial has not yet been completed, it is necessary to extend the defendants’ detention.
The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention.
However, in addition to the gravity of the charges - namely organisation of an armed gang ... and commission of assaults on citizens and murders - carrying a sentence of up to twenty years’ imprisonment for each of the defendants, the court also takes into account other factors.
Thus, the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors.
The defendants’ argument that their detention had been excessively long is not in itself sufficient to warrant release.
The defendants have not produced any material showing the existence of factors making impossible [sic] their stay in detention facility conditions.
The court is not convinced by the defendants’ argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension. The court has at its disposal only the materials from the criminal case file, which had been studied by the defendants.
The court considers that the grounds for the detention of the defendants, charged with serious and particularly serious criminal offenses, are relevant and sufficient. Their detention serves the interest of society, as it prevents the commission of similar criminal offences and ensures high-quality and effective examination of the present criminal case.
The criminal case file contains sufficient evidence against each defendant justifying an extension of their detention...”
33. On 7 July 2008 the Volgograd Regional Court extended the defendants’ detention until 12 October 2008, repeating verbatim the decision of 8 April 2008.
34. On 10 October 2008 the Volgograd Regional Court extended the defendant’s detention until 12 January 2009, repeating verbatim the decision of 8 April 2008.
35. The proceedings are still pending before the trial court.
36. Since 25 July 2003 the applicant has been detained in detention facility SIZO no. 1 (IZ-34/1) in Volgograd.
37. According to a certificate of 18 March 2008 issued by the facility administration and submitted by the Government, from 25 July to 10 November 2003 the applicant was held in cells nos. 135, 99 and 113, measuring 10.9 sq. m, 8.4 sq. m and 9.6 sq. m respectively. It was not possible to establish the number of inmates in each cell, as the detention facility registers for that period had been destroyed on expiry of the statutory storage time-limit.
38. Since 10 November 2003 the applicant has been held in sixteen different cells. Cells nos. 107 and 108 measured 9.6 sq. m and housed two to nine inmates. Cells nos. 43, 50, 87, 91, 92 and 94 measured 9.8 sq. m and housed four to ten inmates. Cell no. 106 measured 8.2 sq. m and housed eight to nine inmates. Cells nos. 26 and 87 measured 29.8 sq. m and housed from five to twenty-five inmates. Cell no. 121, where the applicant was held from 22 to 25 September 2006 and from 22 to 26 June 2007, measured 16.7 sq. m. and housed two inmates, including the applicant. Cell no. 119 measured 7.8 sq. m and housed two to five inmates. Cell no. 51 measured 10.3 sq. m and housed six to nine inmates. Cell no. 25 measured 31.2 sq. metres and housed sixteen to twenty-five inmates. From 1 to 17 November 2007 the applicant was held alone in punishment cell no. 16.
39. Relying on certificates of 18 and 19 March 2008 from the facility administration, the Government further submitted that the applicant had at all times had a separate bunk and had been provided with bedding. The cells were naturally illuminated and ventilated through the windows and were also equipped with fans and fluorescent lamps which functioned during the day and at night. The average temperature inside was 18 to 20º C in winter and 24 to 26º C in summer. Inmates had an hour-long daily walk.
40. It follows from the same certificates that all cells were equipped with a lavatory bowl. This was separated from the living area by a brick partition of 1.5 in height. The dining table was situated at least two metres away from the toilet bowl. There were no insects or rodents in the detention facility, as all the cells were disinfected every month. The inmates were allowed to take a shower once a week and were provided at that time with clean bedding and towels. Finally, the Government submitted that inmates were provided with food three times a day. Boiled drinking water was distributed daily.
41. The applicant did not dispute the cell measurements or the number of inmates per cell. He stated, however, that there were not sufficient bunks for the inmates and that they had to take turns to sleep. He also disagreed with the Government’s description of the sanitary conditions. The cells were smoky and noisy. The artificial light was never switched off, disturbing the applicant’s sleep. There was no ventilation and it was extremely hot in summer. In winter it was very cold. There was no lavatory bowl; instead, there was a hole in the floor which inmates used to relieve themselves. The partition separating the toilet facilities from the living area did not offer sufficient privacy and the person using the toilet was in view of the other inmates and the wardens. The dining table was very close to the toilet. Only two persons could sit at it, and the other inmates ate sitting on the floor.
42. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the CCrP).
43. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
44. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
45. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9).
46. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
47. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-96055
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DARMON v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Marian Darmoń, is a Polish national who was born in 1947 and lives in Cracow. He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1972 the applicant got married and on 18 May 1973 the applicant’s wife gave birth to a girl, J.
The applicant did not try to rebut the legal presumption that he was J’s father. Subsequently, a second daughter was born of the applicant’s marriage.
In 1984 the applicant divorced from his wife. The court awarded custody of the children to the applicant’s former wife and ordered the applicant to pay child maintenance for them. No doubts as to the applicant’s paternity were raised in the divorce proceedings.
The applicant submitted that he had had doubts as to his paternity of his older daughter since the beginning of his marriage which had been reinforced during the divorce proceedings when his wife had admitted to infidelity. However, the applicant had neither brought an action denying paternity after the birth of J nor raised doubts as to his paternity in the divorce proceedings, considering that at the material time there had been no reliable scientific method of ascertaining that he was not the biological father of J. When DNA evidence had become possible in Poland and the applicant had decided to bring an action denying paternity, J had refused to undergo the test.
On 24 November 2003 the applicant requested the Cracow District Prosecutor (Prokurator Rejonowy) to initiate civil proceedings by which he could deny his paternity of J. The applicant based his application on his personal conviction that J was not his daughter and on his suspicion that a certain Z.M. could be her biological father.
On 5 April 2004 the applicant supplemented his application by submitting documents that had been requested by the prosecutor.
Subsequently, the prosecutor obtained the case file of the applicant’s divorce proceedings from 1984 and heard testimonies from the applicant’s former wife. She denied having had an affair with Z.M., who had been her employer at the material time, and confirmed that the applicant was the father of her children. She also refused to submit to DNA testing.
On three occasions in May and June 2004 the prosecutor attempted to hear evidence from the applicant, but he failed to reply to the summons.
On 30 June 2004 the prosecutor sent him a letter refusing to initiate such proceedings. The prosecutor based that decision on the statements by the applicant’s former wife that the applicant was the biological father of J. As the applicant himself had failed to appear for interview with the prosecutor and his former wife had refused to undergo a DNA test, the prosecutor concluded that there was no evidence supporting the applicant’s request.
The applicant contested this decision. On 27 July 2004 the Cracow Regional Prosecutor (Prokurator Okręgowy) informed him that he fully agreed with the findings of the District Prosecutor. On the same day the applicant appeared before the prosecutor without being summoned.
On 16 November 2004 the Regional Prosecutor questioned the applicant and again dismissed his request to bring civil proceedings denying his paternity. The prosecutor considered that it was not possible to grant the applicant’s request solely on the basis of his statement. The prosecutor pointed to the fact that the applicant had not denied his paternity in the divorce proceedings twenty years ago and that his former wife had confirmed that he was the biological father of J. In those circumstances only genetic evidence could cast doubt on the presumption that the applicant was the father of J. Such a medical test could be ordered by the prosecutor; however, in the instant case it had not been possible given the lack of consent of all the parties involved, including his former wife.
The applicant again contested the above decision.
On 8 December 2004 the Cracow Appeals Prosecutor dismissed his complaint as groundless.
Under Article 62 of the 1964 Family and Custody Code (Kodeks Rodzinny i Opiekunczy – “the Code”), if a child was born in wedlock there is a legal presumption that the mother’s husband is the father of her child. That presumption can be rebutted by bringing a civil action denying paternity (zaprzeczenie ojcostwa) (Article 62 § 3 of the Code).
Under Article 63, an action denying paternity can be brought by the husband of the mother within six months of learning that his wife has given birth to a child.
Finally, Article 86 of the Code provides that paternity may at any time be challenged by a prosecutor.


ITEMID: 001-61897
LANGUAGEISOCODE: ENG
RESPONDENT: SMR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BENEFICIO CAPPELLA PAOLINI v. SAN MARINO [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 concerning the length of proceedings;Violation of Art. 6-1 concerning the right to a court;Violation of P1-1;Just satisfaction reserved (pecuniary damage and costs and expenses of domestic proceedings);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 8. The applicant church is a San Marinese church institution.
9. On 7 March 1985 the San Marinese government issued an expropriation order in respect of certain plots of land belonging to the applicant church. The latter was awarded 114,790,590 Italian lire (about 59,284 euros) in compensation. The land, which was earmarked for urban development projects that were scheduled for completion by 31 December 1987, was only partially used. On 16 February 1987 the applicant church applied to the government seeking to recover possession of the unused land. On 20 October 1987 the government refused the application on the ground that the land in question could still be used in the interests of the community.
10. On 10 November 1988, relying on section 14(3) of Law no. 18 of 25 March 1980 (“Law no. 18/1980”), which provides that expropriation orders lapse in the event of expiry of the deadline set for completion of the relevant work, the applicant church brought an action before the first-instance civil judge (Commissario della Legge) to recover possession. The first hearing, which was set for 19 January 1989, could not be held on that date as the government had not been notified. The government joined the proceedings on 5 May 1989. At a hearing on 23 September 1989, the government requested that a particular witness be heard. That request was granted on 12 January 1990. On the date in question, namely 5 April 1990, the witness failed to attend the hearing. On 26 September 1990 the government waived its right to have the witness heard. The parties submitted their written pleadings on 23 May 1991. Preparation of the case was concluded on 14 November 1991.
11. By a judgment of 14 January 1992, deposited at the registry on the same date, the court dismissed the applicant church’s request on the grounds that, firstly, the expropriation order of 20 October 1987 was an administrative act and thus fell outside the civil court’s jurisdiction and, secondly, that the applicant church could not bring an action to recover possession, since the disputed land had been lawfully expropriated and had not been obtained by the State without title.
12. On 12 March 1992 the applicant church brought an action before the judge of civil appeals (Giudice delle Appellazioni Civili) to establish title to land, seeking to obtain restitution of the land in question in accordance with section 14(3) of Law no. 18/1980. It also alleged that the authorities’ conduct had breached Article 1 of Protocol No. 1. The first hearing was held on 9 April 1992. On 21 May 1992 the applicant church filed a number of documents. On 29 May 1992 the proceedings were adjourned on the ground that an attempt to reach a friendly settlement was in progress. On 2 December 1992, noting that the negotiations had failed, the Commissario della Legge, the official responsible for preparing appeal cases, ordered that the proceedings be resumed. At a hearing on 25 February 1993, the applicant church requested that an expert be appointed and a witness questioned in order to determine exactly which parts of the land had not been used. By decisions of 2 March and 6 April 1993, the Commissario della Legge allowed both requests. Evidence was heard from the witness on 24 June 1993 and the expert report was filed on 7 November 1993. The parties lodged their final submissions on 10 February and 24 March 1994. Preparation of the case was concluded on 27 April 1994.
13. In December 1994 the appeal Judge C.P. died. No other judge could replace him, as the organisational structure of the court of civil appeals provided for only one judge. On 17 January 1995 the General Grand Council (Consiglio Grande e Generale) enacted Law no. 2/1995, section 1 of which provided: “If the judge of civil appeals dies or if, following a serious impediment, he or she is unable to perform the duties of investigating judge, those duties shall be carried out by one of the judges of criminal appeals, who shall carry out any urgent measures until such time as a replacement is appointed or the serious impediment is removed ...”
14. On 25 April 1995 the General Grand Council appointed Judge P.G.P. to replace the deceased judge. However, P.G.P. asked the Council of the XII for leave to withdraw from the proceedings in question on the ground that he had been involved as the first-instance civil judge. Under section 17 of Law no. 2/1995, the Council of the XII, which acted as a third-instance judicial body in cases where the appeal court did not uphold the decision of the first-instance court, was also responsible at the material time for ruling on requests to withdraw or applications challenging a judge.
15. On 26 September 1995 the Council of the XII granted the request and sent the case in question to P.G., an appeal judge in criminal cases (Giudice delle Appellazioni per le cause penali).
16. He dismissed the appeal in a judgment of 18 December 1998, which was deposited at the registry on the same date. He found that section 14(3) of Law no. 18/1980 provided that expropriation orders would lapse where the deadline for execution of the relevant work had expired, but not in the event of failure to use all of the expropriated assets; that, in any event, the administrative courts had jurisdiction to rule on the merits of expropriation proceedings; and that the appellant sought restitution of its title to the assets, whereas at first instance it had sought merely to recover possession of the land. He concluded that the request could not be granted since, according to the established case-law, “requests made for the first time on appeal [were] manifestly inadmissible” (judgment of the Giudice delle Appellazioni Civili, 20 July 1970, no. 147).
17. In the meantime, after a new land-use plan had taken effect, changing the designated use of the land in question from industrial to agricultural, the applicant church had asked the government on 3 March 1992 to return its assets. On 24 November 1992, having received no reply, it sent the government a formal notice asking it to adopt the necessary measures for restitution. On 20 April 1993 it applied to the first-instance administrative court. A hearing took place on 3 August 1993. By a judgment of 17 August 1993, deposited at the registry on the same date, the court stated that it did not have jurisdiction to “recognise the existence of a possible right to restitution of unused land”, as the administrative courts could only examine legitimate interests. It found that the General Grand Council alone was entitled to rule on what was to be done with the said property. Noting finally that the new land-use plan had changed the designated use of the unused land, it declared the expropriation order of 7 March 1985 void in so far as it had lapsed in respect of that particular property, but pointed out that declaring it void did not create a right to reconveyance.
18. The government then lodged an appeal, disputing the existence of an implied refusal which would legitimise an application to the first-instance administrative courts, and also the latter’s jurisdiction to declare the expropriation order partially void. The appeal hearing, initially fixed for 13 January 1994, was adjourned to 24 May 1994 because the judge of administrative appeals was unable to attend. He allowed the appeal in a judgment of 26 May 1994, which was deposited at the registry on the same date. The judge found that the State had acquired ownership of the plots of land in accordance with a procedure prescribed by law, on payment of compensation for expropriation, and that no legislative provision obliged the government to return that property. Accordingly, he concluded that the applicant church’s request of 20 April 1993 was inadmissible, since the government’s behaviour could not be described as an implied refusal. Finally, he stated that, in declaring the expropriation order partially void – an order which, moreover, had never been contested – the first-instance administrative court had exceeded its jurisdiction, which only permitted it, where appropriate, to declare unlawful the government’s alleged implied refusal.
19. On an unspecified date, the administrative court of appeal ordered that the case file be sent to the Council of the XII. After taking expert advice, that body gives rulings in administrative disputes where first-instance and appeal judgments reach opposite conclusions (section 21 of Law no. 68 of 28 June 1989 establishing the administrative courts). On 27 September 1994 the Council of the XII upheld the appeal court’s judgment, thus endorsing the expert’s conclusion that, while the public-interest declaration in connection with the urban development work had transformed Beneficio Cappella Paolini’s right of property into a mere legitimate interest, section 14(3) of Law no. 15/1980 conferred not only a legitimate interest in the lawfulness of the authorities’ actions but an actual right to apply to the civil courts and obtain a declaration that the expropriation order had lapsed because the deadline for completion of the work had expired.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106173
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: G. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 1. The applicant, “G”, is a British national who was born in 1988 and lives in Sudbury. He was represented before the Court by Mr M. Boyd, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban, Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In September 2004, when the applicant was 15, he had sexual intercourse with a 12 year-old girl (“the complainant”) at his home, using a condom.
4. Two 17 year-old friends of the complainant became concerned when she admitted to them that she had had sexual intercourse with the applicant. They took her to a family planning clinic. The clinic called the police. In a video-recorded interview the complainant gave the following account of what had occurred. After a casual meeting she spoke to the applicant on a couple of occasions by mobile telephone and they arranged to meet again. Because it was raining they went to the applicant's home. They went into his bedroom “to talk”. The door was closed, and possibly locked. The applicant quizzed her about her school. Suddenly he took down her trousers and flung them across the room. She understood what was about to happen and, alarmed, made clear her objections. Despite these, the applicant proceeded to have vaginal intercourse with her. They remained about ten minutes in the room, then parted. They had no further contact.
5. On the basis of this evidence, the applicant was charged with rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003 (“the2003 Act”: see below). He was advised that he had no defence to the charge.
6. On 20 April 2005 he pleaded guilty on the following basis, as recorded in writing:
“i) The complainant willingly agreed to have sexual intercourse with the defendant.
ii) At the time the defendant believed that the complainant was 15 years old. She told him so on an earlier occasion.
iii) The defendant nonetheless pleads guilty to the ... offence having been advised that, by reason of the fact that the complainant was under 13 at the relevant time, the offence is committed irrespective of:
a) consent
b) reasonable belief in consent
c) a reasonable belief as to age.”
7. The prosecution were not, initially, prepared to accept this basis of plea and a “Newton” hearing was fixed for 9 and 10 June 2005 in order to determine the correct factual basis for the purpose of sentence. The complainant was, however, terrified of attending court and so, with the support of her mother, decided that she was content with the basis of plea. On 25 May 2005, however, the prosecution informed the applicant's solicitors that they had decided to accept the basis of plea advanced because the complainant had accepted that she had told the applicant that she was 15 and she was reluctant to attend court to give evidence. The prosecution declined to consider, as they were invited to do by those representing the applicant, whether it was in the public interest to proceed with the prosecution.
8. On 8 July 2005 the applicant was sentenced to a 12-month detention and training order. He was detained for approximately five months before being granted bail on being given permission to appeal against sentence.
9. The applicant appealed to the Court of Appeal against conviction and sentence on the grounds inter alia that (1) the conviction violated his right to a fair trial and the presumption of innocence under Article 6 of the Convention, because the offence was one of strict liability, and (2) it violated his right to respect for private life under Article 8 because it was disproportionate to charge him with rape under section 5 when he could have been charged with a less serious offence under section 13 of the 2003 Act, which deals with sex offences committed by persons under 18 (see below). On 12 April 2006 the Court of Appeal (Lord Phillips CJ, Andrew Smith J, Wilkie J) dismissed the appeal against conviction but allowed the appeal against sentence, substituting a conditional discharge (see G v R [2006] EWCA Crim 821).
10. The Court of Appeal held that the offence under section 5 of the 2003 Act was committed by a person having vaginal, anal or oral sexual intercourse with a victim under 13, whether or not the victim consented and regardless of whether the defendant reasonably believed that the child was 13 or over. It found that no issue arose under Article 6 § 2 of the Convention, which did not prevent a State from creating offences of strict liability. The Court of Appeal accepted that prosecution of a minor for an offence under section 5 of the 2003 Act in respect of “consensual” sexual intercourse might in certain cases give rise to a violation of Article 8 of the Convention. To prevent this, it would be possible for the trial judge to substitute a charge under section 13 of the 2003 Act (see below) once the full facts had emerged. Moreover, the judge's sentencing powers in relation to the conviction of a child of an offence under section 5 ranged from absolute discharge to detention for life. If it transpired that the facts of the offence were less serious than those that originally justified the charge, the judge should normally, by an appropriate sentence, be able to ensure that there was no unjustified interference with the defendant's Article 8 rights. On the facts of the applicant's case, the judge did not infringe Article 8 by proceeding to sentence the applicant under section 5.
11. On 30 October 2006, the Appellate Committee of the House of Lords granted leave to appeal. On 18 June 2008, their Lordships (Lords Hoffmann, Hope of Craighead, Mance and Carswell and Baroness Hale) dismissed the appeal (see G v R [2008] UKHL 37).
12. The House of Lords unanimously held that Article 6 §§ 1 and 2 guaranteed fair procedure and the presumption of innocence but did not place any obligation on States as regards the substantive contents of domestic law, including the mental or other elements of offences under domestic criminal law.
13. They also rejected the applicant's complaint under Article 8 by a majority of 3 to 2 (Lords Hoffmann and Mance and Baroness Hale in the majority, Lords Hope and Carswell dissenting). The majority held that, even if the applicant's Article 8 rights were engaged, his prosecution, conviction and sentence were proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.
14. Baroness Hale observed as follows:
“44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; secondly, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this 'rape'. ... This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.
45. ... It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13 it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.
...
48. ... There was a great deal of anxiety in Parliament about criminalising precocious sexual activity between children. The offences covered by section 13 in combination with section 9 cover any sort of sexual touching however mild and however truly consensual. As sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted. Indeed, section 9 expressly contemplates that the person penetrated may be the offender. Obviously, therefore, there will be wide variations in the blameworthiness of the behaviour caught by sections 9 and 13. Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate. In many cases, there will be no reason to take any official action at all. In others, protective action by the children's services, whether in respect of the perpetrator or the victim or both, may be more appropriate. But the message of sections 9 and 13 is that any sort of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believed that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.
49.
...
54...The concept of private life 'covers the physical and moral integrity of the person, including his or her sexual life' (X and Y v The Netherlands, para. 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.”
15. In his dissenting judgment, Lord Hope (with whom Lord Carswell agreed) observed as follows:
34. Article 8(1) guarantees to everyone the right to respect for his private life, and a teenager has as much to respect for his private life as any other individual. It is unlawful for a prosecutor to act in a way which is inconsistent with a Convention right. So I cannot accept Lord Hoffmann's proposition that the Convention rights have nothing to do with prosecutorial policy. How an offence is described and the range of sentences that apply to it are matters for the contracting state. But where choices are left to the prosecutor they must be exercised compatibly with the Convention rights. ...
36. ... The offences which the 2003 Act has created are expressed in very broad terms. They recognise that the circumstances in which mutual sexual activity may take place between children of the same or the opposite sex, and the acts that they may perform on one another as fashions change, will inevitably vary greatly for case to case. But there is great force in the point that McLachlin J made in R v Hess; R v Nguyen [1990] 2 SCR 906 about the need for children to be protected. Their need to be protected against themselves is as obvious as is their need to be protected from each other. There is much to be said for the view that where acts are perpetrated on children under 13 by children of a similar age intervention of some kind is necessary for the protection of their physical and moral health. My noble and learned friend Baroness Hale of Richmond offers a unique insight into these issues, and I agree with all she says about the dangers of under age sexual activity. The fact that there was consent is to this extent simply irrelevant. ...
38. The Children's Hearing system provided for in Chapters 2 and 3 of the Children (Scotland) Act 1995 is not available in England and Wales. So sexual activity between children of the kind described in this case cannot be dealt with outside the criminal law. I am not suggesting that it should be decriminalised here. That would be to condone it which, as McLachlin J's observations about the risks to vulnerable young people so clearly indicate, would not be acceptable. But this still begs the question whether sexual crimes committed by children should be dealt with in the same way as sexual crimes committed by adults. There are grounds for thinking that the sanctions that can be imposed under section 13 for mutual sexual activity by a person under 18 with a child under 13 provide all that is needed by way of punishment that is proportionate to the offence. The message that this is an offence can be conveyed to children as well as adults very effectively by the use of these sanctions, as anyone who has exercised the responsibility of sentencing children in cases of that kind knows.
39. Section 5, the rape of a child under 13, on the other hand is designed for a different and much more serious situation. The offence is one which only a male person can commit. It may be committed by a male person of any age, and he is liable on conviction to life imprisonment. The description of the offence as rape, and all the consequences that go with that description, are entirely appropriate where the act has been committed upon a child under 13 by a person over the age of 18. It may also be appropriate where the person who committed it was under that age. But the lower the age, the less appropriate it will be. The question in such a case, given the choice that is available, must be whether in all the circumstances to proceed under section 5 would be proportionate. The Court of Appeal said that the judge should have taken the view, having regard to the basis of the plea, that the offence in this case fell properly within the ambit of section 13 rather than section 5: para 51. I agree, but I would go further. I think that it must follow that, as the offence fell properly within the ambit of section 13, the appellant's conviction of rape under section 5 was disproportionate.”
16. Section 5 of the 2003 Act provides:
“Rape of a child under 13
(1) A person commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.
(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.”
17. Section 13 provides:
“Child sex offences committed by children or young persons
(1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 [sexual activity with a child] if he were aged 18.
(2) A person guilty of an offence under this section is liable –
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.”
18. The judge's sentencing powers in relation to the conviction of a child under section 5 of the 2003 Act range from absolute discharge to detention for life. Conviction under section 13 is subject to a maximum sentence of five years' detention.
19. In R v Corran and other appeals [2005] EWCA Crim 192 the Court of Appeal gave guidance as to sentencing in respect of the offence created by section 5, as follows:
“6. Against that background, we turn to the offence of rape of a child under 13, contrary to section 5 of the Act. We say, at once, that no precise guidance can be given. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them. ...
8. Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases ... a noncustodial sentence may be appropriate for a young defendant. If the offender is much older than the victim a substantial term of imprisonment will usually be called for.”
20. In relation to the 2003 Act, legal guidance contained in the Code for Crown Prosecutors provides that, insofar as child defendants (under 18) are concerned:
“[P]rosecutors may exercise more discretion where the defendant is a child. The overriding public concern is to protect children. It was not Parliament's intention to punish children unnecessarily or for the criminal law to intervene where it is wholly inappropriate. During the passage of the bill, Lord Falconer said:
'Our overriding concern is to protect children, not to punish them unnecessarily. Where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest. Nor would it be in the best interests of the child....'
21. The Code sets out a number of factors that prosecutors should take into account in deciding whether or not to prosecute, including inter alia the age and understanding of the offender, whether the complainant entered into sexual activity willingly, the relationship between the parties, whether there was any element of exploitation, coercion or threat, deception, grooming or manipulation in the relationship and the nature of the activity. In addition, the best interests and welfare of the complainant and defendant must be taken into account.