ITEMID: 001-81618
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NANNING v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;No violation of Art. 8
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1961 and lives in Düsseldorf.
5. The applicant is the mother of E, born on 16 July 1984. Her husband, the father of E, died in 1986. In 1987 the applicant got acquainted with R, his wife G and their four children, who were also living in Dresden. The applicant and R started an intimate relationship which was tolerated by G. During that period, E was regularly taken care of by R and G. In November 1989 the applicant and R moved to Duisburg while E stayed in Dresden with G and the other children. The applicant and R regularly spent the weekends in Dresden with G and the children.
6. In 1991 R and G moved with their children and E into a house in Ratingen while the applicant stayed in an apartment in Duisburg.
7. In June 1991 the applicant concluded an agreement with R and G concerning E's care. The agreement indicated that E should continue to live with R and G as she had already done for three years. Subsequently, the relation between the applicant, R and G deteriorated and the applicant's attempts to visit E led to conflicts between them.
8. In November 1991 the applicant filed an action with the Ratingen District Court (Amtsgericht) and requested that R and G be ordered to return E. In an expert opinion submitted on 20 July 1993 the court-appointed expert O., having examined the applicant, E, R, G and three of their children, considered that E repudiated the applicant and any relation to her family of origin. The expert considered that E had not formed any solid relations within the foster family and that the foster parents did not support her in her psychological development. The child's problems had not been caused by the fact that her mother, who had originally deserted her, now laid claims on her, but by the fact that the child had been torn into the adults' conflicts. She felt compelled to completely identify with the foster family and to suppress any individual emotions. This was aggravated by the fact that the foster family rejected the applicant, which was clear to the child even if it was not openly discussed within the family. The expert concluded that E was completely unable to cope with the current situation and that her stay with the foster family highly jeopardised her welfare. As there was no indication that R and G would change their attitude even if offered expert support, they were unfit to act as E's foster parents. The expert strongly recommended that E should be taken from the foster family and placed in a therapeutic environment where her return to her mother could be prepared.
9. On 11 May 1994 the Ratingen District Court rejected the applicant's action and ordered that E should remain with the foster family (“Verbleibensanordung” pursuant to section 1632 § 4 of the Civil Code, see relevant domestic law, below). It considered that E suffered from severe personality disorders which originated from the fact that her mother had left her in 1989. In order to prevent E's absolute dislocation, she should stay with the foster family and undergo out-patient psychological treatment.
10. On 22 August 1994 the Düsseldorf Regional Court (Landgericht) rejected the applicant's appeal. After having heard E, the court estimated that the foster parents had become E's reference persons. E had indicated that she wished to stay with the foster parents whom she called “mum and dad” and that she regarded the applicant merely as the person who had given birth to her. The court held that a break with the environment she had become familiar with during the last years would definitely endanger her welfare.
11. On 20 May 1996 the Düsseldorf Court of Appeal (Oberlandesgericht) rejected the applicant's further appeal.
12. On 2 June 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit her constitutional complaint. It pointed out that the impugned decisions did not meet the constitutional standards as the courts had not sufficiently justified why they had decided contrary to the expert recommendations. There were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality. However, having regard to the fact that the case was meanwhile pending again before the Regional Court and that the latter had ordered a new expert opinion (see paragraph 15, below), the rejection of her constitutional complaint would not entail any significant disadvantages. The new procedure was likely to respect the applicant's rights as a parent and to observe the principle of proportionality.
13. On 24 May 1997 the applicant filed a further action with the Ratingen District Court requesting that the foster parents be ordered to return E and, alternatively, a decision granting her access to E.
14. On 11 June 1997 the Ratingen District Court rejected the applicant's requests, withdrew her custody rights regarding the determination of the child's place of residence, her representation at school, her health care, the right to apply for public assistance and child benefits, and transferred these rights to the Ratingen Youth Office. The court observed that E had been living with the foster parents for eight years and that she considered the foster family as her own family. Since 1991, E had persistently refused to have any contact with the applicant and turned her back to her on the occasion of visiting contacts. Bearing in mind that E was thirteen years old, the court considered her will as a decisive factor in the decision-making process. The apprehensions raised in the expert opinion dated 20 July 1993 had been eliminated by the fact that the representative of the Youth Office attested that E had developed normally and that her current behaviour showed no disturbances. E's recent development confirmed that she benefited from the current situation because she was well-integrated in her family as well as in school. The court pointed out that a further expert opinion in this respect was thus not necessary. Furthermore, it had refrained from hearing E in order to spare her a further appearance before court. E had already testified on several occasions and – as the latest report of the Youth Office revealed – had not changed her attitude. In order to ensure E's proper medical care and her representation at school, it was necessary to transfer partial custody to the Youth Office pursuant to Section 1666 of the Civil Code (Bürgerliches Gesetzbuch – see relevant domestic law, below). Moreover, as the numerous attempts in the past to establish a contact between E and the applicant had failed, even with psychological supervision, the court refused to lay down any rules as to the applicant's visiting rights. It deemed it impossible to force the thirteen-year old child to have contact with her mother.
15. On 16 June 1997 the applicant lodged an appeal against the District Court's decision. On 20 November 1997 the Regional Court held an oral hearing. On 9 January 1998 the Regional Court commissioned the psychological expert V to examine whether the child E should remain with the foster family and which access rights could be granted to the applicant without jeopardising the child's well-being. On 26 January 1998 the foster parents' counsel brought a motion for bias against the expert V, which was dismissed by the Regional Court on 19 February 1998. On 9 May 1998 the Düsseldorf Court of Appeal quashed this decision on the ground that the Regional Court had failed to hear the expert with respect to all of the allegations supporting the motion for bias. On 9 September 1998 the Regional Court, having heard the expert, once again dismissed the motion for bias. The foster parents' complaint against this decision was rejected by the Court of Appeal on 9 February 1999.
16. Meanwhile, on 5 November 1998 and 28 December 1998, the applicant's counsel had asked for time-limits to be extended.
17. On 4 March 1999 the Regional Court appointed a curator ad litem to represent E in the proceedings before that court. On 17 March 1999 the Regional Court rejected the foster parents' complaint. On 10 August 1999 the Court of Appeal quashed the Regional Court's decision on the ground that E's interests were sufficiently safeguarded by her being represented by the social worker H.
18. On 22 March 1999 the expert V was delivered the case-file. On 22 March 1999 the social worker H, acting on E's behalf, lodged a complaint against the order to take evidence, which was rejected by the Regional Court on 11 June 1999 and by the Court of Appeal on 10 August 1999. Between 13 April and 13 December 1999 the expert held interviews with R, G, the child's curator at the Youth Office, the social worker H and E's school director and class teacher. E refused to take part in the examination. The foster parents attempted to avoid examination and many appointments had to be postponed.
19. On 31 January and 11 April 2000 the Regional Court asked the expert when she would submit her expert opinion.
20. On 17 May 2000 the expert submitted her opinion. She noted, at the outset, that the examination could only yield limited results because of the foster parents' refusal to let her inspect the family home and E's consistent refusal to take part in the examination. The expert further noted that E's class teacher described her as a quiet child who appeared to be absent and seemed to be unable to express her emotions. The expert considered that E felt deserted by the applicant and therefore denied any relationship to her. The foster parents appeared to have enforced her negative attitude towards her natural mother and to have, as early as 1991, done everything to keep E permanently within their family. It appeared that the foster parents had failed to encourage contacts between E and the applicant, but had rather tried to prevent such contacts. The adults' actions had not always been guided by the child's best interests, but rather by their desire to hurt one another. The expert further considered that the applicant understood and regretted her past shortcomings, but that she was not ready to respect E's wish to stay with the foster family. R and G, on the other hand, did not acknowledge any misconduct on their side. In spite of certain doubts, the expert considered that R and G were in principle capable of taking care of E. It appeared, however, that E, while experiencing some sort of continuity in the foster family, had not built up stable relationships and that she suppressed any relation to her family of origin.
21. By way of conclusion, the expert considered it indispensable for the child's development that she was given the opportunity to face her past. It was of utmost importance for E's well-being to arrange contacts with her natural mother. The expert considered that E would be more open to such contacts if her wish to remain with the foster family was respected and if the judicial proceedings came to an end. Accordingly, the expert advised the court to order that E should remain with the foster family and to arrange supervised and gradually increasing contacts between E and the applicant. She further recommended that E be personally heard by the Regional Court, as it had not been possible to hear her during the examination.
22. On 24 August 2000 the Regional Court held an oral hearing. As the foster parents had lodged a motion for bias against the expert, the Regional Court refrained from hearing the expert, as originally planned. The motion for bias was rejected on 2 November 2000.
23. On 19 May 2001, following a further oral hearing held on 15 March 2001, the Düsseldorf Regional Court rejected the applicant's appeal. Referring to the expert opinion, the Regional Court considered that it was in E's best interest to remain with the foster family, where she had experienced, for the first time in her life, continuity. It further considered that this was also in accordance with E's own wishes and that E would reach her majority in little more than a year. On the basis of the expert opinion and taking into account E's refusal to have any contacts with the applicant, the Regional Court further considered that it would merely lead to further irritations if E was forced to have contact with her mother and therefore refrained from determining any visiting regulations. The Regional Court further noted that E had been originally willing to be heard by the court but had felt offended by a statement made by the applicant's counsel during a court hearing on 24 August 2000, who had alleged that the child would “end up in prostitution, alcohol- or drug addiction” if she remained in the foster family, and refused any further cooperation. Under these circumstances, the fact that E refused to be heard was at least partly imputable to the applicant's counsel's conduct.
24. On 12 February 2002 the Düsseldorf Court of Appeal rejected the applicant's further appeal. The Court of Appeal noted, at the outset, that the proceedings before the Regional Court had lasted unduly long. This could, in general, not be accepted, in particular in proceedings which primarily concerned a child's well-being. The court considered, however, that many requests, motions for bias, requests for extensions of time-limits and complaints lodged both by the applicant and the foster parents considerably delayed the proceedings. In any event, an excessive length of the proceedings could not influence the outcome of the applicant's complaint.
25. With regard to the substance of the applicant's complaint, the Court of Appeal considered that the decision that E should stay with her foster parents was in accordance with section 1632 § 4 of the Civil Code, because her removal would jeopardise the child's welfare, taking into account the further period of time which had elapsed since the Regional Court had given its decision and the fact that E would reach her majority within five months. The court did not approve that – ever since E's refusal to be heard by the Regional Court in August 2000 – the latter had failed to make further attempts to hear her and had failed, in particular, to summon her to the hearing in March 2001. The Court of Appeal presumed, however, that E's consistent refusal to see her mother since the time when she had been ten years old had been sufficient to convince the Regional Court that E would not be ready to accept any compromises. As E maintained her attitude before the Court of Appeal, that court also refrained from hearing E pursuant to section 50 b § 3 of the Act on Non-Contentions Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit – see relevant domestic law, below). The Court of Appeal further noted that the Federal Constitutional Court, in its decision given on 2 June 1999, had not given any binding guidelines for the present proceedings.
26. The Court of Appeal finally considered that there was no room for a regulation on access rights for the remaining months until E would reach majority. It noted that E consistently rejected her mother and did not wish to have any contact with her. The Court of Appeal observed that the Regional Court might have given up prematurely in this respect and that it had failed to set a time-limit to the exclusion of access rights. However, given the lapse of time, it was not suitable to correct this decision, as the remaining five months would not suffice to start a pertinent therapy and instigate contacts between mother and daughter.
27. On 9 July 2002 the Federal Constitutional Court refused to admit the applicant's constitutional complaint. It pointed out that the length of the proceedings was very critical. It observed furthermore that the courts had failed to appoint an independent curator ad litem to represent E in the proceedings as provided for in Section 50 of the Act on Non-Contentious Proceedings. However, in view of the fact that E would reach her majority on 16 July 2002, the rejection of the constitutional complaint would not entail any significant disadvantage for the applicant. This decision was served on the applicant's counsel on 20 July 2002.
28. On 30 October 2002 the Ratingen District Court decreed E's adoption by R and G. The applicant contested this decision before the Federal Constitutional Court.
1. The Civil Code
29. Pursuant to Section 1632 § 1 of the Civil Code (Bürgerliches Gesetzbuch) parental responsibility (Personensorge) comprehends the right to order anybody – who unlawfully deprives the parents or one parent of their child – to have their child returned.
30. Section 1632 § 4 provides that – if the parents intend to take away a child from the foster parents the child has been living with for some time – the Family Court may order the child's stay with the foster parents if and as long as the child's removal would jeopardise his or her welfare.
31. According to section 1684, a child is entitled to have access to its parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child's well-being would be endangered (section 1684 § 4).
32. Section 1666 provides that in cases of a danger to the child's welfare the court shall order the necessary measures.
2. The Act on Non-Contentious Proceedings
33. Section 50 § 1 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) determines that in proceedings concerning a minor child, the Family Court may appoint a curator ad litem (Verfahrenspfleger) for that child to assist him or her if this should be necessary for the protection of his or her interests.
Section 50 b stipulates that in cases regarding custody issues, a child aged fourteen or above shall always be heard. The court is only allowed to refrain from hearing the child if this is justified by serious reasons (section 50 b § 3).
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-83625
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF EVCİMEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant was born in 1971 and lives in Edirne.
5. At the material time, the applicant was the owner and editor of a local newspaper published in Trabzon, the Özgür Karadeniz (“The Free Black Sea”).
6. On 15 January 1995 the applicant was taken into police custody on suspicion of membership of an illegal organisation.
7. On 20 January 1995 he was brought before a judge who ordered his detention on remand.
8. On 10 March 1995 the public prosecutor at the Erzincan State Security Court filed a bill of indictment against the applicant, along with twenty-one other persons. The applicant was accused of membership of an illegal organisation, the DHKP-C (the Revolutionary People's Liberation Party- Front). According to the indictment, following his arrest, the applicant's house was searched by police officers who found illegal periodicals, newspapers, books and a bullet. The public prosecutor also alleged that the applicant had published a newspaper containing propaganda in support of the DHKP-C, participated in illegal demonstrations, put up posters, distributed leaflets supporting the DHKP-C and carried out activities in the Karadeniz University for the recruitment of new members for the illegal organisation.
9. On 13 March 1995 the applicant was transferred to the Erzurum special type prison.
10. On different dates in 1995, five other criminal proceedings were brought against the applicant before various courts, with charges of disseminating separatist propaganda and incitement to hatred and hostility through the medium of his newspaper.
11. The cases against the applicant and his co-accused were subsequently joined before the Erzincan State Security Court.
12. Following promulgation of the Law no. 4210, which abolished the Erzincan State Security Court and established the Erzurum State Security Court, in 1997 the Erzurum State Security Court acquired jurisdiction over the case and the case-file was sent to it.
13. On 27 November 1998 the Erzurum State Security Court convicted the applicant under Article 168 § 2 of the Criminal Code of membership of an illegal organisation, namely the DHKP-C. The court found that two articles published in Özgür Karadeniz on 15 November 1994 and 1 March 1995 contained separatist propaganda and incitement to hatred. It further found it established that the applicant had participated in illegal demonstrations, put up posters, distributed leaflets supporting the DHKP-C and carried out activities in the Karadeniz University for the recruitment of new members for the illegal organisation. The court sentenced the applicant to twelve years and six months' imprisonment.
14. On 18 November 1999 the Court of Cassation upheld the judgment of 27 November 1998 in respect of the applicant.
15. On 29 May 2004 the applicant was conditionally released from prison.
16. The relevant domestic law and practice in force at the material time are outlined in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
17. By Law no. 5190 of 16 June 2004, published in the official journal on 30 June 2004, the State Security Courts were abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107255
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BAJCETIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: The applicant, Ms Branka Bajčetić, is a Croatian national who was born in 1954 and lives in Zagreb. The present application was lodged by the applicant’s guardian and daughter, G.B., on behalf of her mother – the applicant. She was represented before the Court by Ms Lovorka Kušan and Mr Zlatko Kušan, lawyers practising in Ivanić Grad. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
By a decision of the Zagreb Municipal Court (Općinski sud u Zagrebu) of 10 July 2003 the applicant was divested of her legal capacity on account of her mental illness. She did not participate in those proceedings but was represented by her father.
By a decision of the Zagreb Welfare Centre, Peščenica Office (Centar za socijalnu skrb Zagreb, Ured Peščenica – “the Centre”) of 16 September 2003 the applicant’s mother, J.S., was appointed her legal guardian. On 28 August 2006 the Centre appointed the applicant’s brother M.S. her new legal guardian. The change was due to M.S.’s statement that their mother, J.S., was no longer able to take care of the applicant’s interests owing to her own illness.
On 1 October 2006 the applicant’s father died and inheritance proceedings were instituted before a public notary in Zagreb. The applicant did not participate in these proceedings in person, but was represented by her brother, M.S. The written record of a hearing held on 29 November 2006 states that the present heirs, that is, the applicant’s mother J.S. and her brother M.S., agreed that J.S. would inherit all movables from her husband, while M.S. and the applicant would inherit a flat in Zagreb, Ivanićgradska Street, so that M.S. would become the owner of two-thirds of the flat and the applicant of one-third. On the same day a decision on inheritance was issued confirming that agreement.
On 27 August 2007 the applicant’s daughter, G.B., submitted a request with the Centre, asking that she be appointed her mother’s legal guardian. She explained that for the past five years she had been studying in France and had now returned to Croatia and was willing to care for her mother and fully capable of doing so. She added that all the family members supported her request.
On 2 October 2007 G.B. informed the Centre that on 1 October 2007 M.S. had thrown the applicant out of the flat where she had been living up to then (the one left by her late father) and changed the lock. G.B. asked the Centre to take urgent measures to protect the interests of the applicant. She reiterated this request again on 4 October and on an unspecified date. She requested the Centre to bring a civil action against M.S. for disturbance of possessions.
On 4 October 2007 G.B. also lodged a request for supervision of the Centre’s work with the Ministry of Health and Social Care (Ministarstvo zdravstva i socijalne skrbi – the “Ministry”). She complained that her request of 27 August 2007 to be appointed the applicant’s legal guardian had not been registered or processed. A lawyer of the Centre had kept the request in a drawer and had only handed it back to G.B. on 1 October 2007 at G.B.’s insistence; G.B. had then had it recorded in the Centre’s incoming mail register. She further alleged that M.S. had thrown the applicant out of the flat where she had been living, had moved into the flat himself and had been showing it to potential buyers. G.B. also maintained that the Centre had not protected the applicant’s interests but on the contrary had already sent an expert to estimate the value of the flat.
On 5 October 2007 the Centre employees visited the flat and found the applicant and M.S there. The applicant said that she had no problems with her brother.
On 11 October 2007 the Ministry asked the Centre to reply to G.B.’s allegations.
On 17 October 2007 the Centre asked M.S. to reply to G.B.’s allegations.
On 8 January 2008 G.B. again urged the Centre to take measures to protect the applicant’s interests. She alleged that the applicant had been released from a psychiatric hospital on 13 December 2007. Although M.S. had given the applicant the keys to the flat in mid December 2007, he continued to take the keys away and give them back to her as he wished. He had also locked all but one of the rooms of the flat, including those where items necessary for the applicant’s daily life were kept, such as her clothes, the washing machine and the switch that regulated the heating. Furthermore, he had prevented G.B. from living in the flat with the applicant, despite the applicant not being capable of taking care of herself because of her mental condition. Since M.S. no longer lived in the flat, the applicant lived alone. Thus, she had lived in the flat for a week with no supervision, after which her condition had worsened and she had had to be hospitalised again.
G.B. further maintained that M.S. had been shouting at and threatening the applicant, which had caused her intense fear and worsened her condition. He had forbidden the applicant to visit their mother, J.S., in an old people’s home, threatening to beat her up if she did otherwise. G.B. continued that on 3 January 2008, on the applicant’s birthday, M.S. had forbidden the applicant to invite her for lunch, and after that had again taken the keys to the flat from the applicant and had not returned them to her.
He had also been receiving the applicant’s pension payments and spending them as he wished. G.B. asked as a matter of urgency that he be dismissed as the applicant’s legal guardian.
On 10 January 2008 a hearing was held in the Centre on the subject of changing the applicant’s legal guardian. On the same day G.B. made a statement in the Centre that she objected to the sale of the flat where the applicant had lived unless M.S. provided another, smaller flat for the applicant.
On 4 February 2008 the Centre appointed G.B. the applicant’s legal guardian. On the same day the Centre appointed an attorney, B.L., the applicant’s guardian ad litem in the proceedings concerning the sale of the flat in Ivanićgradska Street. He was expressly authorised to take all actions in order to sell the flat.
At a hearing held on 3 March 2008 in the Centre G.B. said that the applicant had been discharged from a psychiatric hospital on 20 February 2008 and that since then they had been living together in a rented flat, because M.S. had prevented them from living in the flat in Ivanićgradska Street. She also stated that M.S. was still receiving the applicant’s pension payments and asked that they be paid to her and her mother.
An appeal lodged by G.B. against the decision of 4 February 2008 concerning the authorisation given to B.L. as regards the sale of the flat in Ivanićgradska Street was dismissed on 17 April 2008 by the Ministry.
At a hearing held on 21 May 2008 in the Centre, G.B. was informed that in the meantime M.S. had returned a bank card for the bank account into which he had been receiving the applicant’s pension payments. The card was handed over to G.B. However, M.S. had not handed over the applicant’s pension for October, November and December 2007 and January 2008.
At a hearing held in the Centre on 23 June 2008 an offer made by M.S. to buy the applicant’s share of the flat in Ivanićgradska Street was accepted by the Centre.
By a decision of 27 June 2008 the Centre authorised B.L. to conclude a sale agreement with M.S. and to deposit the sum of 24,000 euros (EUR) in the applicant’s bank account. On 3 August 2008 G.B. lodged an appeal against that decision, arguing that a decision on inheritance had already been adopted unlawfully, since M.S. had represented the applicant in these proceedings although he was an interested party. She further argued that the price did not correspond to the market value of the applicant’s share of the flat.
On 20 May 2009 the Ministry dismissed the appeal. On 27 July 2009 G.B. lodged an administrative action with the Administrative Court (Upravni sud Republike Hrvatske) against the Ministry’s decision.
At a hearing held on 11 November 2009 in the Centre G.B. was informed that M.S. had paid an amount of 174,250 Croatian kunas (HRK) into the applicant’s bank account.
The proceedings concerning the sale of the flat are still pending before the Administrative Court.
The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read:
“(1) An adult who, on account of mental illness or other reasons, is unable to care of his or her own needs, rights and interests, or who presents a risk to the rights and interests of others, shall be partially or completely divested of his or her legal capacity by a court of law in non-adversarial proceedings.
...”
“The competent social welfare centre shall place under guardianship a person ... divested of his or her legal capacity ...”
“(1) The guardian shall care for the person, rights, obligations and well-being of the ward with due diligence, manage his or her assets and take measures aimed at enabling the ward to have an independent professional and personal life.
...”
“(1) The guardian represents the ward.
...”
“In order to take more important measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.”


ITEMID: 001-4737
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OMAR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, who qualified as a doctor in Cairo, worked as a general practitioner (“GP”) in Hampstead, London from 1978 until the events described below. In the second half of 1994 he developed a depressive illness as a result of financial pressures.
On 2 June 1995 an incident occurred when a patient, Ms H, then aged 27, was consulting the applicant at his surgery. The applicant had been treating Ms H for, inter alia, pelvic infection, irritable bowel syndrome and lower back pain, and on the day in question examined her internally and asked her to perform a back exercise on the floor (referred to by Ms H as “the cat”). On 3 or 4 June 1995 Ms H complained to the police that the applicant had indecently assaulted her during a consultation at his surgery on 2 June 1995, and on a number of other occasions over the preceding four years. She alleged, inter alia, that on 2 June 1995 the applicant had conducted an improper examination on the couch, inserting his fingers into her anus and vagina simultaneously while pressing his erection against her, and that he had rubbed her vagina while she, naked from the waist down, was carrying out the “cat” exercise on the floor. On 16 June 1995 Ms H, wearing a concealed tape recorder fitted by the police, visited the applicant and complained about the incident in question. The relevant parts of the transcript of the tape recording of this conversation read as follow:
“O: ... Are you coming just for a check-up or there's a new problem you want to tell me about?
H: Erm I've come to ask you erm a few questions.
O: Surely.
H: Erm it's about my internal examinations.
O: Mm.
H: Erm when you, I like feel a bit funny about when you do them. Erm you do the front and then you do the back,
O: Mm.
H: and then sometimes you do the front as well and I feel like it's causing me to -
O: Infection.
H: Yeah.
O: No, doesn't because I use different fingers to start with. [Further discussion about likelihood of examinations causing infection]


ITEMID: 001-114479
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MANUKYAN v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Karen Manukyan, is a Georgian national, who was born in 1982 and lives in Rustavi. He was represented before the Court by Mr Zaza Khatiashvili and Mr Levan Javakhadze, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 2 September 2004 a married couple, Mr E.M. and Mrs N.K, lodged a criminal complaint with the police, alleging that they had been victims of kidnapping and extortion. On 7 September 2004 criminal proceedings were initiated under Articles 143 § 2 (a) and (b), 181 § 2 (a) and (b) and 236 §§ 1 and 2 of the Criminal Procedure Code of Georgia for aggravated unlawful deprivation of liberty, extortion and unlawful purchase and possession of firearms.
4. On 13 September 2004 the applicant was arrested in connection with the above proceedings. As disclosed by the record of a search of the applicant’s vehicle, which according to the applicant had been falsified, several items of evidence were found in the vehicle and collected for further examination, including one hand grenade, several cartridges and a face mask.
5. The applicant alleges that on the same date several police officers subjected him to ill-treatment upon his transfer to the Ministry of Internal Affairs of Georgia, with the aim of obtaining a confession to the charges against him. The police officers allegedly tied the applicant to a chair and beat him for five hours, the applicant receiving a particularly large number of blows to the head. The beatings were allegedly encouraged and supervised by two senior police officers, Mr B. Kh. and Mr. J. J., who threatened to kill the applicant if he did not plead guilty.
6. Subsequently, the applicant was transferred to a temporary detention centre, where, upon admission, he was visually examined by a duty officer in the presence of another prison officer. According to the record drawn up by the duty officer and duly signed by the applicant (“the record of 13 September 2004”), multiple scratches and reddened areas were identified on the applicant’s neck. The record also stated that the applicant had said that he had sustained those injuries prior to his arrest.
7. At a photo identity parade held on 14 September 2004, the victims identified the applicant as one of their kidnappers.
8. On 17 September 2004 a department head of the Tbilisi City Prosecutor’s Office, relying on the record of 13 September 2004, instructed the Vake-Saburtalo district prosecutor to inquire into the origin of the applicant’s injuries and take any lawful actions required. As disclosed by the case file, the above request has not resulted in any actual investigative actions.
9. On 25 April 2006 the applicant and three co-accused were convicted on multiple charges of aggravated kidnapping, extortion, hostage-taking, unlawful purchase and possession of firearms, and causing both grave and minor bodily injuries, committed while acting in an organised, armed criminal gang. The applicant was sentenced to thirteen years’ imprisonment. The applicant’s conviction was primarily based on the victims’ statements, the results of the identity parade, the record of the search of the applicant’s vehicle, statements from the police officers who had conducted the search, and an analysis of the incoming and outgoing mobile phone calls of the applicant and his three co-accused. According to the transcript of the trial hearing, both victims identified the applicant in court as the perpetrator. The court rejected the applicant’s alibi and supporting witness testimonies as unsubstantiated, reasoning that the alibi had been made up with the sole purpose of evading criminal responsibility.
10. In his appeal dated 30 May 2006, the applicant reiterated all the arguments made by him at the first-instance hearing. Notably, the applicant challenged the results of the search of his vehicle and complained of inaccurate assessment of evidence by the trial court and also about the dismissal of his alibi. The applicant did not make allegations of ill-treatment.
11. On 29 January 2007 the Tbilisi Court of Appeal, whilst whilst rejecting one of the aggravating circumstances modifying the qualification of the offences, maintained the applicant’s conviction and his sentence of thirteen years’ imprisonment. The appellate court endorsed the reasoning of the first-instance court concerning the conclusiveness of the incriminating evidence. On 25 July 2007 the Supreme Court of Georgia rejected the applicant’s appeal on points of law.
12. On 10 October 2007 the applicant’s lawyer lodged a criminal complaint with the General Prosecutor of Georgia and, relying on Article 3 of the Convention, requested the initiation of a criminal investigation of the applicant’s allegations of ill-treatment. The lawyer denounced the failure of the prosecuting authorities to carry out the prosecutor’s instructions of 17 September 2004, and to conduct an inquiry into the circumstances in which the applicant had sustained his injuries. The lawyer particularly stressed the relevant authorities’ failure to question the applicant in connection with his injuries. In support of the above request, the lawyer provided the General Prosecutor of Georgia with a copy of the record of 13 September 2004 assessing the applicant’s injuries, the applicant’s statement describing ill-treatment he stated he had suffered – including the names of some of the alleged perpetrators, and a copy of the prosecutor’s decision of 17 September 2004.
13. The above complaint was forwarded to the Tbilisi City prosecutor on 20 October 2007 with a request to report back.
14. On 1 November 2007 criminal proceedings were initiated by the prosecuting authorities in connection with the applicant’s allegations of ill-treatment on 13 September 2004. On 5 January 2008, while being questioned as a witness, the applicant maintained his allegations of ill-treatment and named the key suspects again. On 24 January 2008 a forensic examination established that the applicant’s injuries as described in the record of 13 September 2004 were of a minor nature, causing no damage to his state of health.
15. As disclosed by the relevant criminal case file submitted by the Government, several witnesses were questioned, including two of the alleged suspects named by the applicant and the two investigators and the prosecutor in charge of the criminal case against the applicant. They all denied the applicant’s allegations. Several other investigative actions were also carried out for the purpose of verifying the applicant’s claims. According to the Government, no evidence was found to substantiate the applicant’s allegations.
16. On 6 February 2005 the applicant was transferred to the psychiatric wing of the prison hospital with symptoms of post-traumatic stress disorder. By that time he had developed insomnia, frequent headaches and dizziness. He complained in particular of depression, irritability and tinnitus. Following a psychiatric evaluation, the applicant was diagnosed as suffering from emotionally unstable personality disorder and post-traumatic nonpsychotic cerebral syndrome. The medical report of the applicant’s treatment in the prison hospital between 6 February and 4 May 2005 noted that the applicant had suffered from concussion several times in the past. The report also noted that the applicant had never been registered with any psychiatric hospital in the past and that his parents did not suffer from any genetically transmissible diseases.
17. The applicant was discharged from the prison hospital after four months of treatment and returned to Tbilisi no. 1 Prison on 4 June 2005.
18. On 30 October 2007 the applicant’s lawyer wrote a letter to the governor of Tbilisi no. 1 Prison, where the applicant was an inmate at the material time, inquiring about the availability of a psychiatrist in the prison. In a reply of 5 November 2007, the prison governor informed the lawyer that the applicant had been transferred to Rustavi no. 6 Prison. He further maintained in general terms that a psychiatrist from the prison hospital was asked to attend whenever the need arose.
19. In September 2010 the applicant raised new medical grievances with the prison authorities. Notably, he complained of pain in the waist area and after a medical check-up was diagnosed with radiculopathy. The applicant was prescribed relevant drug-based treatment on an out-patient basis.
20. As disclosed by his medical file, the applicant subsequently had periodic consultations with various specialists, including a psychiatrist. The most recent consultation, on 15 August 2011, indicated that the applicant’s mental condition was stable, with no signs of psychosis.
21. The relevant provisions of the Code of Criminal Procedure, as in force at the material time, read as follows:
Article 261 – Obligation to initiate a preliminary investigation
“Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...”
Article 263 – Information concerning the commission of a crime
“1. A preliminary investigation shall be opened on the basis of information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation ...”


ITEMID: 001-57968
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF G. v. FRANCE
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (complaint inadmissible);No violation of Art. 7-1
TEXT: 7. Mr G., a driving test examiner, was charged on 14 December 1980 with accepting bribes. It was alleged that he had issued driving licences in exchange for payment of a sum of money (Article 177 of the Criminal Code, see paragraph 12 below).
In the course of the investigation and following additional submissions from the prosecuting authority, the investigating judge charged him with "corruption in the form of soliciting sexual favours" and indecent assault with violence or coercion (see paragraph 13 below) on the person of P., a driving test candidate. The investigating judge based the second charge on Article 333 of the Criminal Code as amended by the Law of 23 December 1980 (see paragraph 14 below). It was specifically alleged that G. had, on 14 November 1980, constrained a young woman who suffered from a slight mental handicap to submit to acts of buggery. At the material time such acts were classified as indecent assault rather than rape.
8. On 18 November 1982 the Rennes Criminal Court sentenced him to five years' imprisonment, two of which were suspended, for accepting bribes as a citizen responsible for a public service and indecent assault with violence or coercion by a person in authority. In so doing, the court was applying the Law of 23 December 1980 (see paragraph 14 below).
The Rennes Court of Appeal upheld that decision in a judgment of 14 November 1983.
On 26 February 1985 the latter judgment was quashed by the Court of Cassation on the ground that no reply had been given to the pleas of nullity. The case was remitted to the Angers Court of Appeal.
9. In a judgment of 22 January 1987 that court rejected the pleas of nullity. It dismissed the charge of corruption in the form of soliciting sexual favours, but found the applicant guilty of accepting bribes and of indecent assault with coercion and abuse of authority. It reduced his sentence to three years' imprisonment by virtue of Law no. 80-1041 of 23 December 1980, whose entry into force postdated the commission of the offences in question (see paragraph 14 below).
10. The applicant lodged a further appeal on points of law with the Court of Cassation. The fourth and last ground of this appeal was formulated as follows:
"Violation of Article 7 of the Declaration of the Rights of Man and the Citizen, of Articles 4, 332 and 333 of the Criminal Code as applicable to the alleged offences and Article 593 of the Code of Criminal Procedure, failure to state reasons and lack of a legal basis; In so far as the impugned judgment found the defendant guilty of indecent assault on the person of P. on 14 November 1980;
...
Before the entry into force of Law no. 80-1041 of 23 December 1980, under the Criminal Code the offence of indecent assault with coercion was not committed where no violence had been practised on the person who had been the object of that coercion; no one may be convicted in respect of acts which the law did not regard as an offence before they were carried out and the alleged indecent assault with coercion of which the appellant is accused did not, at the material time, constitute any criminal offence; nor did the mental deficiency of the `victim' constitute an aggravating circumstance. The acts in question could not therefore be punished under this head. By ruling as it did, the Court of Appeal violated the principle that no act may be classified as a punishable offence unless the law makes prior provision to that effect."
11. On 25 January 1989 the Court of Cassation dismissed the appeal. It explained its rejection of the above-mentioned ground in the following terms:
"The finding of guilt on the count [of accepting bribes] justified the sentence imposed; in accordance with Article 598 of the Code of Criminal Procedure [see paragraph 15 below] it is therefore unnecessary to rule on the fourth ground of appeal put forward by the appellant."
12. Article 177 1° of the Criminal Code is worded as follows:
"Anyone who has solicited or accepted offers or promises, solicited or received gifts or presents shall be liable to a term of imprisonment of from two to ten years and a fine equal to double the value of the promises accepted or the articles received or requested, such fine not being less than FRF 1,500, where he has done so
1° as a person holding elected office, being a public servant in the administrative or judicial branch of the civil service, a member of the armed forces or having equivalent status, the agent or representative of a public administrative authority or of an administrative authority placed under the control of the public authorities or a citizen responsible for a public service, in return for performing or refraining from performing one of his duties or one of the tasks attaching to his post, whether fair or not, but not covered by his salary."
13. The relevant provisions of the Criminal Code were as follows:
"Any indecent assault committed or attempted without violence on the person of a child of either sex under the age of fifteen years shall be punished by between five and ten years' imprisonment.
The same penalty shall be imposed in respect of indecent assault by any relative in the ascending line carried out on the person of a minor, even if the victim is aged over fifteen years provided that he or she is unmarried.
Without prejudice to the more severe penalties laid down in the foregoing paragraphs or in Articles 332 and 333 of the present Code, whosoever shall commit an indecent or unnatural act with a person of the same sex aged less than twenty-one years shall be punished by between six months' and three years' imprisonment and a fine of between FRF 60 and FRF 15,000."
"Whosoever shall commit the crime of rape shall be sentenced to between ten and twenty years' imprisonment.
If the offence has been committed on the person of a child not having fully attained fifteen years of age, the offender shall receive the maximum penalty available.
Whosoever shall commit or attempt to commit indecent assault with violence on individuals of either sex shall be sentenced to between five and ten years' imprisonment.
If the crime has been committed on the person of a child not having fully attained fifteen years of age, the offender shall be sentenced to between ten and twenty years' imprisonment."
"If the offenders are relatives in the ascending line of the person on whom the indecent assault was carried out, if they belong to the class of those who have authority over that person, if they are his or her schoolteachers or hired servants, or hired servants of the above-mentioned persons, if they are officials or ministers of a religion, or if the offender, whoever he may be, was assisted in his offence by one or more persons, the penalty shall be between ten and twenty years' imprisonment in the case provided for in the first paragraph of Article 331 and life imprisonment in the cases provided for in the preceding Article."
As there was no statutory definition of the notions of rape and indecent assault, the case-law delimited the scope of those terms. Thus coercion or non-physical violence has been treated as equivalent to physical violence. Consequently the offences were constituted where they had been committed without the victim's consent (see judgments of the Criminal Division of the Court of Cassation of 5 July 1838, Bulletin no. 191; of 27 September 1860, Bulletin no. 219; of 25 June 1857, Bulletin no. 240; of 27 December 1883, Bulletin no. 295; and of 17 November 1960, Bulletin no. 528).
14. Articles 332 and 333 of the Criminal Code were amended by Law no. 80-1041 of 23 December 1980, which entered into force on 24 December 1980. They now read as follows:
"Any act of sexual penetration, of whatever nature, committed on the person of another by violence, coercion or by taking the victim unawares shall constitute rape. Rape shall be punished by between five and ten years' imprisonment. However, rape shall be punished by between ten and twenty years' imprisonment where it has been committed either on a person who was especially vulnerable owing to pregnancy, sickness, infirmity or physical or mental deficiency, or on a person under the age of fifteen years, or with the threatened use of a weapon, or by two or more assailants or accomplices, or by a legitimate, natural or adoptive ascendant of the victim or by a person in a position of authority over the victim or by a person who has abused the authority conferred by his duties."
"Any other indecent assault committed or attempted with violence, coercion or by taking the victim unawares on a person other than a minor under the age of fifteen years shall be punished by between three and five years' imprisonment and a fine of between FRF 6,000 and FRF 60,000 or by one of these penalties alone.
However, indecent assault as defined in the first paragraph shall be punished by between five years' and ten years' imprisonment and a fine of between FRF 12,000 and FRF 120,000 or one of these penalties alone where it was committed or attempted either against a person who was particularly vulnerable owing to sickness, infirmity or physical or mental deficiency or pregnancy, or with the threatened use of a weapon, or by a legitimate, natural or adoptive ascendant of the victim or by a person in a position of authority over the victim, or by two or more assailants or accomplices, or by a person who has abused the authority conferred on him by his duties."
The new law downgraded the offence of indecent assault from serious offence (crime) to less serious offence (délit).
15. Article 5 of the Criminal Code provides that "in the event of conviction for several serious offences and less serious offences, only the heaviest penalty available for one of the individual offences shall be imposed". This principle that sentences are not to be imposed consecutively is part of the basis for the doctrine of justified penalty laid down in Article 598 of the Code of Criminal Procedure, according to which:
"Where the penalty imposed is the same as that which would be imposed under the law that applies to the offence, any application to have the judgment quashed on the basis that there has been an error in the citation of the relevant provision shall fail."
Thus the Court of Cassation will declare the operative part of a judgment imposing a sentence to be justified where the sentence imposed is identical to that which the trial court would have ordered if the error of classification had not been committed. Where the appellant has been convicted of several offences, the court will not examine the ground based on the error and directed against one of the offences if the penalty imposed is justified by the other offences (see judgments of the Criminal Division of the Court of Cassation of 25 September 1890, Bulletin no. 196; of 30 October 1925, Recueil Dalloz 1926, p. 6; of 25 March 1927, Recueil Dalloz 1927, p. 287; of 7 November 1931, Recueil Dalloz 1931, p. 559).
NON_VIOLATED_ARTICLES: 7
NON_VIOLATED_PARAGRAPHS: 7-1