ITEMID: 001-101976
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF Z. v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (locus standi);No Violation of Art. 8;Remainder inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The first applicant, S.Z., is a Slovenian national who was born in 1955 and lives in Celje. The first applicant is the father of the second applicant, N.Z.
6. The first applicant lived in an unmarried partnership (zunajzakonska skupnost) with O.Č. for several years. On 18 July 1997 their daughter, the second applicant, was born.
7. Following the separation of the first applicant and O.Č. in 2001, the second applicant lived with O.Č., her mother.
8. In 2001 and 2002 O.Č. was suffering from a mental disorder and was consequently treated in a psychiatric hospital in Vojnik. While she was hospitalised the first applicant took care of the second applicant.
9. On 22 June 2004 O.Č. brought an action in the Celje District Court (Okrožno sodišče v Celju) seeking sole custody of the second applicant.
10. On 18 August 2004 the court requested the Celje Social Work Centre (Center za socialno delo Celje) to deliver an opinion establishing with which parent the child's interests would be better protected. The court received the report on 21 September 2004. The Celje Social Work Centre informed the court that the first applicant and O.Č. had not come to an agreement concerning the custody issue before 22 June 2004, the date the action was brought to the court by O.Č. It also observed that O.Č. had been taking care of the second applicant properly and that the first applicant had not expressed any objection to the second applicant's staying with her mother, on condition that he was granted contact rights. The Celje Social Work Centre also found that O. Č. was not preventing contact between the applicants.
11. On 7 March 2005 the court received an additional report from the Celje Social Work Centre. The latter informed the court that the first applicant wished to have joint custody of the second applicant. However, he would agree for O. Č. to be granted sole custody only if O. Č. informed him daily about how the second applicant was. On this occasion the Celje Social Work Centre also informed the court that a report had been requested from the second applicant's school as well as from O. Č.'s psychiatrist. In this connection, on 14 March 2005, the court received a report from O. Č.'s psychiatrist, stating that O. Č. was refusing treatment. The psychiatrist further considered that the question of capacity to take care of the second applicant was very complex and that therefore only an expert in psychiatry could compile a credible report.
12. Also on 14 March 2005 the court held a hearing and decided to appoint an expert in psychiatry.
13. On 17 March 2005 the first applicant requested to be exempted from paying the court fees. On 28 March 2005 the court upheld the first applicant's request.
14. On 4 April 2005 the court appointed an expert in psychology, D.T., in order to determine which parent should be granted custody.
15. Subsequently, on 8 April 2005, O.Č. requested that the expert D.T. be relieved of his duties since he had previously treated her medically.
16. On 11 April 2005 the court appointed a new expert in clinical psychology, M.G.V.
17. On 9 May 2005 the court received a letter from O.Č.'s psychiatrist, stating that O.Č., who had been suffering from a productive psychosis, had been refusing treatment.
18. Relying on that letter, the first applicant, on 8 June 2005, requested that an interim contact order be issued pending the outcome of the main civil proceedings.
19. On 20 June 2005 the expert M.G.V. submitted her report. Assisted by a psychiatrist who was invited to participate in the examination process, the expert observed that both parents suffered from a mental disorder. She concluded that custody could nevertheless be granted to O.Č. on condition that she received appropriate medical treatment, while regular contact should be granted to the first applicant.
20. Also on 20 June 2005 the court requested the Celje Social Work Centre to inform it about the progress on the contact agreement between the first applicant and O.Č.
21. On 30 June 2005 the Celje Social Work Centre submitted a report in which it informed the court that the first applicant had, on 6 April 2005, requested a formal contact arrangement, claiming that O.Č. had, since 31 March 2005, prevented him from having contact with the second applicant. Subsequently, the Celje Social Work Centre had prepared a draft agreement but O.Č. had refused to sign it, claiming that the court would in any event arrange contact rights in contentious civil proceedings. In addition, the Celje Social Work Centre informed the court that O.Č. and the second applicant had recently moved out of their flat and had been living in special sheltered accommodation for homeless mothers (materinski dom).
22. On 5 July 2005, further to the above-mentioned report by the Celje Social Work Centre and relying on the fact that the second applicant had been living in sheltered accommodation, the first applicant again requested that an interim measure be ordered granting him regular contact with the second applicant.
23. Meanwhile, on 1 July 2005, the court gave a decision concerning the expert's fees.
24. On 12 July 2005 the first applicant brought a counterclaim, seeking sole custody of the second applicant and child maintenance. He also proposed that contact should be granted between O.Č. and the second applicant.
25. On 23 August 2005 the first applicant cancelled the power of attorney in respect of his lawyer.
26. On 27 September 2005 the first applicant, represented by a new lawyer, lodged preliminary written submissions which modified and extended his claim seeking sole custody of the second applicant and child maintenance, granting, on the other hand, regular contact in respect of O.Č. As an alternative, he sought regular contact with the second applicant and also requested that other relatives have contact with the second applicant. He moreover asked that an interim measure be taken in respect of all his requests.
27. On 28 September 2005 the court held a hearing. Subsequently, the court gave a decision, finding that the first applicant's request concerning contact between the second applicant and other relatives as well as his request for an interim measure to that effect should have been considered in non-contentious proceedings. That part of the claim was thus declared to be outside the court's jurisdiction.
28. Meanwhile, on an undetermined date O.Č. lodged a criminal complaint against the first applicant alleging sexual abuse of the second applicant. It seems that, also on an undetermined date, the first applicant lodged a criminal complaint against O.Č. for neglecting the child.
29. On 4 October 2005 the court requested O.Č.'s psychiatrist to inform it whether O.Č. was receiving treatment. It further requested the Celje Social Work Centre to inform it as regards O.Č.'s state of health and also the fact that she was living in sheltered accommodation for homeless mothers. The court also requested the District Public Prosecutor's Office to update it on the progress of the criminal proceedings instituted against the first applicant.
30. Subsequently, on 19 October 2005, the District Public Prosecutor's Office informed the court that an expert would be appointed in order to determine whether the second applicant had been sexually abused.
31. On 24 October 2005 the court received a report from O.Č.'s psychiatrist stating that O.Č. had been refusing treatment. The psychiatrist also observed that she had been calmer since she and the second applicant had been living in sheltered accommodation.
32. On 25 October 2005 the first applicant lodged preliminary written submissions urging the court to order the interim measure sought on 27 September 2005.
33. On 28 November 2005 the court rejected the first applicant's request for an interim measure in respect of custody and child maintenance as well as his alternative claim to have contact granted with the second applicant (see paragraph 26 above). Nevertheless, the court, of its own motion and in different terms, granted contact between the two applicants (each Wednesday for one hour).
34. On 13 December 2005 the first applicant appealed against this decision.
35. On 14 December 2005 the court received a report from the Celje Social Work Centre in which the latter observed, inter alia, that contact between the applicants was in the child's best interest. It further observed that contact was taking place in accordance with the court decision of 28 November 2005.
36. On 5 January 2006 the Celje Higher Court (Višje sodišče v Celju) quashed the first-instance court's decision concerning the interim order and remitted the case for re-examination.
37. On 19 and 26 January and 3 February 2006 the first applicant urged the court to re-examine the case and order the requested interim measure.
38. Meanwhile, on 24 January 2006, O.Č. lodged a preliminary written submission in which she informed the court that her state of health had improved. As a result, she requested the court to again appoint an expert or to order an additional report to be drawn up. In addition, she submitted that, since criminal proceedings had been initiated against the first applicant, who was suspected of sexual abuse of a minor, he should not be trusted with long-term custody of the second applicant.
39. On 2 February 2006 the court scheduled a hearing. On the same day it requested the Celje Social Work Centre to inform it, inter alia, about the conditions in which the first applicant was living, O.Č.'s state of health, the second applicant's performance at school, and also to interview the second applicant. The court requested a swift response. In addition, the court requested O. Č.'s psychiatrist to provide information on her treatment and inquired at the District Public Prosecutor's Office about the criminal proceedings instituted against the first applicant. The District Public Prosecutor's Office responded on 6 February 2006. In its report it submitted that investigating measures against the first applicant for sexual assault were still in progress. They also informed the court about criminal proceedings instituted against O.Č. for fraud and forgery of documents. The Celje Social Work Centre responded on 7 February 2006, observing that the second applicant had expressed the wish to live with her mother. O.Č.'s psychiatrist responded on 10 February 2006 stating that O.Č. was continuing with her treatment and that her health had not worsened. The psychiatrist also expressed the view that O.Č. was a good mother and was emotionally attached to the second applicant.
40. In the meantime, on 9 February 2006 the court held a hearing and requested the Psychiatric clinic (Psihiatrična klinika) to appoint an expert in psychiatry. Furthermore, the court issued a decision whereby it rejected the first applicant's request for an interim measure concerning custody and child maintenance but upheld his subsidiary request to have contact with the second applicant.
The decision was in the relevant part worded as follows.
“The child may see her father every Monday, Wednesday and Friday after school. Her father is to collect her from her mother's place at 4 p.m. and be with her until 6 p.m.
The child may also see her father every other Saturday; her father is to collect her from her mother's place at 9 a.m. and be with her until 6 p.m.
The child shall spend the winter holidays with her mother, the spring holidays (prvomajske počitnice) with her father, the autumn holidays (krompirjeve počitnice) with her mother, the Christmas holidays, from 24 December to 29 December, with her father and from 29 December to 2 January with her mother.
During the school summer holidays the child shall spend four weeks with her father (two weeks in July and two weeks in August)”
41. On 22 February 2006 O.Č. lodged a preliminary written submission in which she submitted to the court a lease contract for the new apartment in which she was now living with the second applicant.
42. On 25 April 2006, further to the court's request, the Celje Police Station informed the court that they had dealt with several matters concerning the second applicant. For example, O.Č. had alleged that the second applicant had been kidnapped when she was taken out of kindergarten by the first applicant. On another occasion she expressed the fear that the first applicant, who wanted to take the second applicant for a walk, would take her to an unknown destination. As to the first applicant, he has twice alleged that O.Č. took the first applicant away without telling him where.
43. On 11 and 24 May 2006 the first applicant lodged preliminary written submissions, in which he requested to be informed of the name of the expert appointed by the Psychiatric clinic (see paragraph 40 above).
44. On 15 May 2006 the court received a report from the Celje Social Work Centre in which the latter observed that O.Č.'s apartment was adequately furnished and clean.
45. On 7 June 2006 the first applicant requested the court to fine O.Č., since she had not complied with the court's decision of 9 February 2006 in that she had prevented contact between 27 April and 5 June 2006. On 20 June 2006 O.Č. lodged a preliminary written submission concerning the first applicant's allegations in this regard. She claimed that the first applicant himself did not want to have contact with the second applicant.
46. Further to the first applicant's request to fine O.Č., the court requested the Celje Social Work Centre to draw up a report concerning the execution of the first applicant's contact rights. The report was submitted on 29 June 2006. The Celje Social Work Centre informed the court that it did not keep any official records in this regard. However, the first applicant had appeared on their premises, claiming that on 28 April 2006 the contact had not taken place. Furthermore, the Celje Social Work Centre informed the court that O.Č. had been counselled by a social worker and that she had been trying hard to ensure the healthy development of the second applicant. It appears from the report that during counselling O.Č. had told the social worker that the second applicant had not spent the whole period of the spring holidays (prvomajske počitnice) with the first applicant. On another occasion, on 12 May 2006, O.Č. alleged abusive behaviour by the first applicant towards the second applicant. It seems that the first applicant took the second applicant to the hairdresser, where they cut her hair. On 22 May 2006 O.Č. informed the Celje Social Work Centre that the contact had taken place as agreed, but that the second applicant did not wish to spend a night at the first applicant's place. The Celje Social Work Centre also pointed out that fining O.Č. would be an unnecessary burden on O.Č.'s financial situation.
47. On 21 August 2006 the first applicant lodged preliminary written submissions in which he stated that O.Č. was suffering from a mental illness and therefore had a distorted sense of reality. He again sought sole custody of the second applicant and requested the court to urge the appointed expert to submit a report.
48. On 25 September 2006 the first applicant for the second time requested the court to fine O.Č. as she had again prevented contact, on twenty-three occasions between 9 June and 22 September 2006.
49. On 5 October 2006 the appointed expert in clinical psychology, (B.Z.), submitted his report. He found that the second applicant wished to have unrestricted contact with the first applicant and that any change in existing circumstances would complicate the situation.
50. On 25 October 2006 the court again requested the Celje Social Work Centre and the District Public Prosecutor's Office to provide similar information to that which had been requested on 4 October 2005 and 2 February 2006 (see paragraphs 29 and 39 above). In addition, the court asked the Celje Social Work Centre to interview the second applicant with a view to ascertaining where would she want to live and whether she would want to have contact with the first applicant.
51. On 8 November 2006 the District Public Prosecutor's Office informed the court that the request for a criminal investigation in connection with the alleged sexual abuse of the second applicant had been dismissed, but the District Public Prosecutor's Office had lodged an appeal. All the charges against O.Č. concerning neglect of the child were dropped.
52. On 4 December 2006 the Celje Social Work Centre submitted its report concerning two interviews with the second applicant. During the first interview, the second applicant expressed the wish to live with her mother and to have regular contact with the first applicant, as she loved both her parents. The second interview was not successful, since the second applicant left the room in tears. The Celje Social Work Centre concluded that the second applicant was vulnerable and anxious; a psychological assessment would therefore be helpful to her. Further, the Celje Social Work Centre informed the court that the second applicant had been absent from school on several occasions. As regards O.Č.'s state of health, it observed that according to the O.Č.'s psychiatrist, her state of health had not worsened in the last year since she had been following the treatment.
53. On 5 December 2006 the first applicant lodged preliminary written submissions. He requested the court to explain why an expert in psychology had been appointed although the court had decided to appoint a psychiatrist.
54. On 6 December 2006 the court held a hearing. It decided to transfer the file again to the Psychiatric clinic, which submitted a report of an expert in psychology, in contradiction to the court's decision. On 12 December 2006 the court gave a decision ordering the Psychiatric clinic to appoint a psychiatrist. However, on 31 January 2007, the Psychiatric clinic informed the court that an expert in clinical psychology would be appointed. Further to the court's additional request, the Psychiatric clinic, on 22 February 2007, finally appointed a psychiatrist, M.Ž.T.
55. On 28 February 2007 the court again requested the Celje Social Work Centre to enquire about the second applicant, in particular whether she was absent from school. In its response of 13 March 2007 the Celje Social Work Centre observed that the second applicant was no longer absent from school and that O.Č. was taking good care of her. In addition, it submitted that O.Č. had bought a new apartment and that, according to O.Č., the first applicant had not paid child maintenance for several years.
56. In the meantime, on 2 March 2007 the first applicant lodged a supervisory appeal under the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) in order to accelerate the proceedings.
57. On 6 March 2007 the expert M.Ž.T. submitted her report. She made a synthesis of O.Č.'s state of health: the latter had been suffering from a paranoid psychosis and who for that reason had been hospitalised five times between 1998 and 2007. The expert also observed that O.Č. had been refusing treatment for a long time and was not aware of her medical condition. In O.Č.'s interview the latter stated that she had not allowed the second applicant to have contact with the first applicant from 31 January 2007 on, as the second applicant was afraid of her father. The expert further examined the second applicant, who told her that she liked spending time with the first applicant. The first applicant did not attend the interview with the psychiatrist. After the examination, the expert concluded that O.Č. had been taking good care of the second applicant, who could be in danger only if she was exposed to the active phase of O.Č.'s illness. However, if O.Č. followed her treatment the prognosis would be good for her. As far as the contact between the applicants is concerned she established that they should continue to have contact as they have up to now, or even spend more time together if the second applicant so wished. However, in the expert's view, the first applicant should be more creative and should share more activities with the second applicant.
58. On 26 March 2007 the court again requested the Celje Social Work Centre and O.Č.'s psychiatrist to provide similar information to that which had been requested on 2 February 2006 (see paragraph 39 above). In addition, the court asked the Celje Social Work Centre to make a recommendation as to which of the parents should be awarded custody and to establish whether the contact the non-custodial parent, whichever that may be, would have with the second applicant would be in the child's best interests. The Celje Social Work Centre's report of 23 May 2007 did not contain an answer as to which of the parents should be awarded custody. It stated that the opinion in this connection should have relied on the report concerning O.Č.'s state of health.
59. On 30 March 2007 the court was informed that criminal proceedings had been brought against the first applicant for endangering public safety and against O.Č. for fraud.
60. On 13 April 2007 the president of the court, relying on section 5, subsection 1, and section 6, subsection 4, of the 2006 Act, responded to the supervisory appeal (see paragraph 56 above), stating that a hearing would be held within four months of receipt of the supervisory appeal, namely on 7 May 2007. In the meantime, on 13 April 2007, the court called off that hearing since O.Č.'s attorney was not able to keep his appointment.
61. Also on 13 April 2007 the first applicant lodged preliminary written submissions. He requested an interim measure granting him custody to be issued immediately, while the contact between O.Č. and the second applicant be ceased or carried out under supervision.
62. On 16 April 2007 the court received a report from O.Č.'s psychiatrist, which revealed that O.Č. had been seeing her regularly and that the medical treatment she had been following had no impact on her cognitive or mental capacities and had therefore not impeded her relations with the second applicant.
63. On 18 April 2007 the court was informed that the first applicant had been told by the Celje Social Work Centre that it could not ensure that contact would take place in the way the court had determined it should. Subsequently, O.Č. lodged a written preliminary submission, emphasising, inter alia, that she had not been preventing contact; but that it was rather the second applicant who had refused to have contact with the first applicant.
64. On 26 April 2007 the O.Č.'s psychiatrist informed the court that O.Č.'s mental illness seemed to be developing further and that she had been again refusing treatment.
65. In the meantime, the court scheduled an informal interview with the second applicant for 7 May 2007. However, the interview was adjourned sine die at the first applicant's request as the second applicant was in a state of shock owing to her mother's placement in a mental institution two days before the interview was due to take place. Subsequently, the court requested the mental institution where O.Č. had been placed to inform it as to how long the treatment would take and about her state of health when she was admitted to the hospital. The hospital was also requested to give an opinion as to whether O.Č. was capable of caring for the second applicant, given her state of health before she was admitted to hospital.
66. The hearing scheduled for 25 May 2007 was adjourned because the first applicant fell ill.
67. However, later on the same day and outside the hearing, the court interviewed the second applicant. The latter told the court that she did not like to spend time with the first applicant because there were no toys at his place, and that she did not want to stay with him while O.Č. was hospitalised. She preferred staying with her grandmother or her older brother. She also said that after the first applicant took her to the hairdresser to have her hair cut, she had refused to see him on two occasions. She was however willing to see him in future in order to ensure contact. Further to the interview, the court requested the Celje Social Work Centre to find a third person willing to step in as a foster parent as well as to prepare the second applicant psychologically for this possibility.
68. In the meantime, on 21 May 2007, O.Č. was released from the hospital.
69. On 12 June 2007 the court requested the expert, M.Ž.T., to draw up an additional report. The expert was asked to interview the first applicant and to determine whether it would be in the child's best interest to award him custody. The court also requested the expert to invite in the examination process an expert in psychology who should examine and interview the second applicant. In its request the court emphasised that the matter was very urgent.
70. On 16 August 2007 the expert M.Ž.T. submitted an additional report by which she informed the court that the first applicant had refused to appear at the interview. She also observed that the second applicant was emotionally attached to O.Č. Taking into consideration O.Č.'s state of health and the second applicant's attachment to her mother, the expert did not advocate placing the second applicant in foster care. She recommended that the second applicant stay with O.Č. and be cared for by the first applicant during acute episodes of O.Č.'s illness.
71. The hearing scheduled for 29 August 2007 was called off due to the fact that the expert in psychology had not yet been able to examine the second applicant.
72. On 28 August 2007 the Celje Social Work Centre submitted a supplementary report to the one submitted on 23 May 2007 (see paragraph 58 above) and informed the court that O.Č. had in the meantime been examined by her psychiatrist, who had observed a deterioration in O.Č.'s state of mental health but however had the impression that O.Č. was willing to follow the treatment. The Celje Social Work Centre also informed the court that the first applicant had failed to appear at the interview scheduled to determine whether he could take care of the second applicant or whether the second applicant should rather be put in foster care, to which O.Č. was not opposed. Having regard to the fact that the first applicant refused to appear at the interview, that he had been preventing the second applicant from being included in the psychological assessment, and that O.Č.'s health was not stable, the Celje Social Work Centre concluded that the second applicant should preferably be put in foster care.
73. In September 2007, an expert in psychology, T.P., who had been invited to join the examination process (see paragraph 69 above), experienced difficulties in interviewing the second applicant, as O.Č. had twice failed to keep appointments.
74. On 19 September 2007 the first applicant lodged preliminary written submissions contesting the expert reports from 6 March 2007 and 16 August 2007 (see paragraphs 57 and 70 above) and requested that an interim measure be ordered granting him custody of the second applicant.
75. The hearing scheduled for 21 September 2007 was called off because the first applicant fell ill. The court scheduled a new hearing for 22 November 2007.
76. On 11 October 2007 O.Č. appeared at the court, stating that she had wanted to take the second applicant to the assessment but the first applicant had prevented her from doing so and had taken the second applicant to school.
77. On 7 November 2007 the Celje Social Work Centre informed the court that the person who had been summoned to the hearing scheduled for 22 November 2007 could not attend it due to an accident. The court immediately requested the Celje Social Work Centre to inform it who was replacing her in the case.
78. On 12 November 2007 the court again requested O.Č.'s psychiatrist to inform it whether she had been following the treatment and about her current state of health. The court also requested information concerning the criminal complaint lodged against the first applicant by O.Č. for having the second applicant's hair cut. On 16 November 2007 the District Public Prosecutor's Office informed the court that the charges against the applicant had been dropped, as the request for prosecution made by O.Č. had been lodged out of time. O.Č.'s psychiatrist responded on 20 November 2007. In her letter she observed that O.Č.'s state of health had worsened since she had moved to a new apartment, where she constantly felt threatened.
79. The second applicant was again invited to attend an interview with the expert T.P., scheduled for 12 November 2007. However, the second applicant again failed to appear. Subsequently, the expert suggested interviewing the first applicant to establish whether he understood the role of a parent and the needs of a growing child, as well as to make a personal assessment. The expert also informed the court that he would not be able to attend the hearing scheduled for 22 November 2007.
80. On 22 November 2007 the court held a hearing at which the parties concluded a temporary settlement of the case. The first applicant was granted provisional custody of the second applicant pending the outcome of the proceedings, while O.Č. was granted regular weekly contact.
81. On 14 December 2007 the expert M.Ž.T., who had interviewed the first applicant in the meantime, submitted an additional psychiatric report, observing that it would be in the second applicant's best interest to have contact with both parents, as O.Č. did not seem to be reliable enough due to her illness, while the first applicant's personal characteristics made him unsuitable to raise a ten-year-old traumatised child.
82. Further to the interview with the second applicant on 21 December 2007, the expert T.P. submitted a report. He observed that the second applicant's best interests would be ensured by placing her in foster care, while retaining for both parents the opportunity to have contact with her.
83. On 6 February 2008 the court appointed a special representative to the second applicant (for the appointment of a special representative, see “Relevant domestic law” below, Civil Procedure Act, section 409) – hereinafter “the special representative”.
84. On 21 February 2008 the court requested information on the second applicant's school performance and on O.Č.'s health. The second applicant's school submitted its reply on 14 March 2008. It informed the court that the second applicant's school performance had improved and that the first applicant had been helping the second applicant a lot. O.Č.'s psychiatrist responded on 21 March 2008, informing the court that O.Č. had been seeing her regularly but refusing treatment.
85. On 8 April 2008, further to the request of the special representative, the court ordered the re-examination of the second applicant by the expert in psychology. However, on 30 April 2008, the expert informed the court that both applicants had failed to appear. He explained that, having regard to the considerable documentation in the case, he could reach conclusions even without interviewing the second applicant. Nevertheless, he expressed willingness to interview the second applicant if the court deemed it necessary. Further to this information, the court did not insist on interviewing the second applicant.
86. On 13 May 2008 the expert T.P. submitted an additional report. He concluded that the first applicant seemed to be a more suitable guardian of the second applicant than O.Č. or a foster family as the second applicant seemed to be happy, tidy and had good grades since she had been living with the first applicant. However, he refused to speculate as to what extent the first applicant would be able to offer the second applicant a warm and loving environment. On the contrary, on 28 May 2008, the Celje Social Work Centre submitted its report in which it came to the conclusion that neither of the parents was suitable to be granted custody and as a result the second applicant should be placed temporarily in foster care. In this connection, they also indicated a suitable person.
87. On 29 May 2008 the court held a hearing. The first applicant and O.Č. came to an agreement to change part of the temporary court settlement concluded at the hearing of 22 November 2007 (see paragraph 80 above), as far as the contact between the second applicant and O.Č. was concerned.
88. On 30 May 2008 the court again ordered an additional expert opinion to be drawn up by the expert T.P. He was requested to assess the emotional state of the second applicant as well as the relationship between the applicants and between the second applicant and O.Č.
89. On 2 September 2008 O.Č.'s psychiatrist informed the court that she had had no contact with O.Č. for several months.
90. On 3 September 2008 the second applicant's school informed the court that the second applicant's school performance had improved and that she had told her teacher that she wanted to live with the first applicant.
91. Also on 3 September 2008 the court was informed about O.Č.'s hospitalisation in the psychiatric stabilisation unit. It appeared that she had been taken to the hospital on 18 August 2008.
92. On 4 September 2008 the court held a hearing. The first applicant and O.Č. concluded an enforceable court settlement by which the first applicant was awarded full custody of the second applicant and O.Č. was ordered to pay child maintenance. She was also granted contact every weekend, on Saturdays from 9 a.m. to 4 p.m. and on Sundays from 10 a.m. to 2 p.m.
93. On 23 December 2008 the applicants lodged a claim for just satisfaction in respect of unreasonable length of proceedings with the State Attorney's Office. Their claim contained explicit reference to section 26 of the Constitution (see “Relevant domestic law” below).
94. On 6 February 2009 the State Attorney's Office responded to the applicants, observing that an identical claim for just satisfaction had already been lodged with the Court. They further informed the applicants that new domestic legislation had been enacted (“the 2006 Act”) in order to remedy any alleged unreasonable length of proceedings. As a result, the applicants were requested to confirm whether they wish the State Attorney's Office to examine the claim under the 2006 Act. On 18 February 2009 the applicants responded that the just satisfaction claim lodged with the State Attorney's Office was only a subsidiary one and that they wished to maintain their just satisfaction claim made before the Court. Consequently, the State Attorney's Office dismissed their claim. The part of the claim concerning the second applicant was dismissed because the second applicant was not party to the proceedings in question and could therefore not be considered a victim of the violation in respect of the undue length of the proceedings. The State Attorney's Office further dismissed the claim as a whole due to the fact that the claim was made under section 26 of the Constitution, which was from 1 January 2007, when the 2006 Act was enacted, no longer a legal basis for a claim for just satisfaction.
A. The 1991 Constitution
95. The relevant provisions of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) read as follows:
Article 26
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public officeLP. ...”
96. On 23 April 2003 the Constitutional Court delivered a landmark decision by which it found several provisions of the Marriage and Familiy Relationship Act (“the MFR Act”, Zakon o zakonski zvezi in družinskih razmerjih, Official Gazette SRS, no. 15/1976) concerning custody and contact arrangements to be unconstitutional. Subsequently, an amendment was enacted by Parliament in January 2004 (Official Gazette of the Republic of Slovenia, no. 16/2004). It entered into force on 1 May 2004.
97. Further to the above-mentioned legislative changes, the courts acquired jurisdiction to adjudicate on these issues. Since then, parents may reach agreements (outside divorce proceedings) in non-contentious civil proceedings. If an agreement cannot be reached, the issue of custody is determined in contentious civil proceedings. The issue of contact arrangements can be determined in non-contentious civil proceedings if it is not raised together with the issue of custody (sections 78, 105 and 106 as amended in 2004). In particular, sections 105 and 106 provide, as far as relevant:
“...
If the parents, with the assistance of the Social Work Centre, cannot reach an agreement on the custody of children (varstvo in vzgoja otrok), the court shall decide at the request of one or both parents that all the children are in the custody of one of them or that some children are in the custody of one and the others in the custody of the other parent. The court may, of its own motion, decide to place all or some of the children in the custody of a third person. Before the decision is taken by the court, the opinion of the Social Work Centre shall be obtained. The court shall take the child's view into account if the child expresses his or her view ....
“A child has the right to have contact with both parents. Both parents have the right to have contact with their children. Contact should be in the child's interest first and foremost.
The parent with whom the child lives ... shall avoid anything that hinders or prevents such contact. He or she must strive to maintain an appropriate attitude in the child in respect of contact with the other parent...
...
The court can withdraw or limit the right to contact only if this is necessary for the protection of the child's interests...”
98. Section 106 of the amended MFR Act also states that, if the custodial parent denies the non-custodial parent contact with the child and contact cannot be secured with the assistance of the Social Work Centre, the court shall, at the request of the non-custodial parent, transfer custody to him or her if this is in the interests of the child.
99. Section 107 of the amended MFR Act provides, as far as relevant:
“Minors shall be represented by their parents.
(...)
100. Section 113 provides that both parents shall mutually and in accordance with the child's best interests exercise parental rights. If they cannot reach an agreement, the Social Work Centre shall assist. It further states that when the parents do not live together and do not have joint custody, they shall decide mutually on all issues which are decisive for the child's development in accordance with the child's best interest. If they cannot reach an agreement, the Social Work Centre shall assist. However, all questions concerning the child's everyday life shall be decided by the custodial parent. Finally, if the parents, even when assisted by the Social Work Centre, cannot reach an agreement, the court decides on these issues in non-contentious proceedings.
101. Section 116 states the circumstances in which parental rights can be withdrawn:
“The parent who abuses his or her parental rights or abandons a child or demonstrates unwillingness to take care of the child or in any other way neglects his or her responsibilities shall be deprived of his or her parental rights by a court judgment.”
102. Lastly, section 10a of the amended MFR Act provides that cases covered by the MRF Act should be processed as a matter of priority.
103. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999, as amended on 15 January 2004) read as follows:
“In marital disputes and disputes concerning relationships between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children...
In disputes concerning custody and maintenance of children and in disputes concerning contact between children and parents or other persons, the panel is not bound by the parties' requests. Where so provided by the law, the panel may take decisions even without any request being made.
For the protection of the interests of persons mentioned in the first paragraph, the panel may investigate matters which have not been raised by the parties, and collect information necessary for its decision...”
“...
If there is a conflict of interests between the child and his or her statutory representative (zakoniti zastopnik), the court shall appoint a special representative for the child. 's interests.”
“When deciding in disputes concerning custody and maintenance of children and in disputes concerning contact between children and parents or other persons, the court shall inform the child, if he or she is able to understand and assess the meaning of the proceedings and the consequences of the court's decision, that proceedings have been instituted and about his or her right to express an opinion. Taking into account the age of the child concerned and other circumstances of the case, the sitting judge may invite the child to be interviewed in the court's chambers or, if necessary, outside the court, with the assistance of the of Social Work Centre or school counsellor...”
“During proceedings concerning marital disputes and disputes relating to relationships between parents and children, the court may, at the request of one of the parties or of its own motion, make interim orders (začasne odredbe) concerning child custody and maintenance as well as interim orders withdrawing or restricting contact arrangements.
...”
104. The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006 – “the 2006 Act”) has been implemented since 1 January 2007.
105. The 2006 Act provides for remedies to expedite pending proceedings – a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog). In addition to these acceleratory remedies, the 2006 Act also provides for the possibility of obtaining redress through a compensatory remedy, by instituting the proceedings for just satisfaction (zahteva za pravično zadoščenje) within nine months of the “final resolution” of the case.
106. For a detailed presentation of the 2006 Act, see Nezirović v. Slovenia (dec.) no. 16400/06, 25 November 2008.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-77379
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: FATULLAYEV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Tofik Fatullayev, is an Azerbaijani national who was born in 1936 and lives in Baku. He was represented before the Court by Mr T. Eminov, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov.
The facts of the case, as submitted by the parties, may be summarised as follows.
By an order of 21 January 1992, the Binagadi District Executive Authority (hereinafter “BDEA”) granted the applicant the right of use of a small plot of land measuring 2x4 meters. The applicant constructed a small workshop on this plot of land, which he used for providing repair services for small household items. According to the applicant, he paid all the relevant taxes and levies related to the plot of land and the business.
On 3 March 2001 BDEA withdrew the plot of land from the applicant’s use and destroyed his workshop based on an order of the Baku City Executive Authority concerning the dismantling of small workshops and other constructions which violated the architectural integrity of the city. As a result, the applicant lost his business.
The applicant filed a lawsuit against BDEA, claiming that he had been unlawfully deprived of his possessions and demanding the restoration of his workshop.
On 25 June 2002 the Binagadi District Court dismissed the applicant’s claim, finding that the workshop had been removed in accordance with the city planning rules and in the public interest. On 6 September 2002 the Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment. On 10 December 2002 the Supreme Court dismissed the cassation appeal and upheld the lower courts’ judgments.
The applicant filed an additional cassation complaint with the President of the Supreme Court, requesting the reopening of the proceedings. The proceedings were reopened and the case was examined by the Plenum of the Supreme Court. On 6 May 2004 the Plenum quashed the Supreme Court’s decision of 10 December 2002 and the related judgment of the Court of Appeal of 6 September 2002. The Plenum found that the courts had not properly assessed the lawfulness of the destruction of the applicant’s workshop in the light of the fact that the order granting him the right to use the plot of land had not been repealed. The case was remitted to the Court of Appeal.
On 5 August 2004 the Court of Appeal ruled in the applicant’s favour and awarded him a compensation of 37,664,000 Azerbaijani Manats (AZM). The court found that the applicant had been deprived of his possessions and his business without any lawful compensation.
Both the applicant and BDEA filed cassation appeals against this judgment. The applicant claimed that the compensation was too low and demanded 100,000 euros (EUR). BDEA claimed that the compensation was too high and that the applicant had failed to substantiate his claim. On 5 October 2004 the Supreme Court upheld the Court of Appeal’s judgment.
Both the applicant and BDEA filed cassation appeals against this decision, reiterating their arguments. On 27 January 2005 the Plenum of the Supreme Court quashed the Supreme Court’s decision of 5 October 2004 and the related Court of Appeal’s judgment of 5 August 2004. The Plenum found that the amount of compensation had not been supported by sufficient evidence and that the courts had not properly substantiated their decision to award this amount. The case was again remitted to the Court of Appeal.
On 24 February 2006 the Court of Appeal found that the applicant’s compensation claim was too high and largely unsubstantiated. The court awarded the applicant 1,000 New Azerbaijani Manats (AZN) in compensation. The applicant appealed in cassation against this judgment to the Supreme Court. As of the date of the present decision on admissibility, the Supreme Court has not delivered its final decision.


ITEMID: 001-72481
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZHERDIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 8. The applicant was born in 1961 and lives in Kramatorsk, Ukraine.
9. On 13 April 2000 the Kramatorsk City Court (the “Kramatorsk Court”) ordered the OJSC “Teploenergomontazh” (the “TEM”) to pay the applicant UAH 5,949.11 in compensation for salary arrears.
10. On 27 July 2000 the Donetsk Regional Court (the “DRC”) upheld this judgment.
11. According to the documents submitted by the Government, the judgment of 13 April 2000 was enforced in full on 30 November 2000. The enforcement proceedings were terminated on the same date.
12. On 13 December 2000 the Presidium of the DRC allowed the protest filed by its President, following the defendant company’s request for a supervisory review, quashed the judgment of 13 April 2000 and the ruling of 27 July 2000, and remitted the case to the Kramatorsk Court for a fresh consideration.
13. The relevant domestic law and practice in relation to supervisory review proceedings is summarised in the case-law of the Court (see Svetlana Naumenko v. Ukraine, no. 41984/98, § 65, 9 November 2004; Tregubenko v. Ukraine, no. 61333/00, §§ 29-30, 2 November 2004; Poltorachenko v. Ukraine, no. 77317/01, § 21, 18 January 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23524
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NOVOTKA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Tibor Novotka, is a Slovakian national, who was born in 1963 and lives in Pezinok. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant submits that on 8 August 1995 he waited for a visitor in front of a house in which his flat was situated. Two policemen approached him and asked for his citizen’s card (,,občiansky preukaz”). The applicant replied that the term citizen’s card used by the police was incorrect and that in accordance with Section 18(1) of the Police Corps Act they should have asked him for a document permitting his identification (,,doklad totožnosti”). The applicant further stated to the police that they should respect Section 9(1) of the Police Corps Act. The policemen informed the applicant that he would be brought (,,predvedený”) to a police station and called a police car. The applicant submits that prior to the arrival of the car he spoke with two neighbours one of whom had indicated to the policemen who the applicant was.
The applicant was transported to a police station where he was searched and placed in a cell. He was released approximately one hour later after his identity had been checked.
A police report established on the same day indicates that the police on duty spotted a man who moved among parked cars and then crossed the street at 6.15 p.m. As they considered his behaviour to be suspicious, the police decided to check his identity. The man informed the police that he was standing in front of the house in which he lived and that he had no document on him permitting to show his identity. He told the police that they had no right to control him and that he would file a complaint about them. The police then called a police car and informed the man that he would be brought to a police station in accordance with the Police Corps Act. Upon the arrival at the police station the man was searched for security reasons. According to the report, the police checked the applicant’s identity in the relevant register and released him on 7.10 p.m.
On 7 February 1996 the applicant complained about the incident to the Bratislava City Prosecutor’s Office. He alleged, in particular, that the police had proceeded unlawfully, and that he had been subjected to degrading treatment in that he had been searched and placed in a cell. The applicant further expressed the view that his apprehension related to the fact that the Prime Minister had filed a criminal complaint against him in 1994. That criminal complaint concerned the alleged applicant’s attempt on the Prime Minister’s life.
On 12 June 1996 the Inspection Department of the Police Corps dismissed the applicant’s complaint as being unsubstantiated. The letter stated that the policemen had committed no offence and that there was no reason for taking any further action on the applicant’s complaint.
On 22 August 1996 the applicant filed a complaint with the Bratislava I District Prosecutor’s Office. On 21 October 1996 the latter sent the case back to the Inspection Department of the Police Corps with the instruction to carry out further investigation into the case.
According to a police report, on 6 May 1997 a police officer asked eleven persons living in the same house, including the next door neighbour of the applicant, whether they knew the latter. No one admitted knowing the applicant.
On 12 May 1997 the Inspection Department of the Police Corps informed the applicant that no criminal offence had been committed in the context of his transport to a police station on 8 August 1995, and that any minor offence which might have been committed on that occasion had become statute-barred.
On 4 August 1997 a public prosecutor of the Bratislava I District Prosecutor’s Office dismissed the applicant’s complaint of 22 August 1996 on the ground that the applicant lacked standing to file it. The decision stated that the public prosecutor had nevertheless examined the facts of the case and concluded that the Inspection Department of the Police Corps had acted in accordance with the law.
On 13 September 1997 the applicant challenged this conclusion before the Bratislava Regional Prosecutor’s Office.
On 7 November 1997 the latter dismissed the complaint. The letter stated, with reference to the documents included in the case file, that two policemen had asked the applicant to prove his identity, on 8 August 1995 at 6.15 p.m., while he was standing in the street in front of the entry of a house. The public prosecutor further established that the applicant had refused to comply with the request and that he had indicated to the policemen that they had no right to do so. The policemen therefore transported the applicant to a police station with a view to establishing his identity.
The public prosecutor’s letter further indicates that the police were entitled to check the applicant’s identity in accordance with Section 18(1) of the Police Corps Act, and that the two policemen did so as they considered that the applicant had moved in a suspicious manner in the vicinity of parked cars and because he wore torn jeans. As the applicant had refused to establish his identity, the policemen had brought him to a police station in accordance with Section 18(3) of the Police Corps Act. The applicant was released on the same day at 7.10 p.m., after his identity had been established. The public prosecutor further found unsubstantiated the applicant’s allegation that his neighbours had informed the two policemen who the applicant was.
The public prosecutor’s letter of 7 November 1997 also indicates that the police subsequently contacted the applicant’s neighbours and that the latter denied knowing the applicant. As to the search of the applicant, it was in conformity with Section 22(1) of the Police Corps Act. There was no indication that there was a link between the applicant’s above apprehension and the activities of the Prime Minister or of the secret service as alleged by the applicant.
On 5 December 1997 the applicant filed a complaint to the General Prosecutor’s Office. He alleged, inter alia, that he had been identified by a neighbour at the moment of his apprehension. The applicant further stated that he had thus offered assistance to the police with a view to establishing his identity. He requested that the neighbour be heard and maintained that his deprivation of liberty had been contrary to Article 5 of the Convention in that, in particular, the police had deprived him of liberty without any relevant legal ground.
The complaint was transferred to the Regional Prosecutor’s Office which informed the applicant, on 18 December 1997, that his further submissions would not be dealt with unless they contained relevant new information.
On 28 May 1998 the applicant filed a constitutional petition pursuant to Article 130 of the Constitution. He claimed that his constitutional right to freedom of movement and his rights under Article 5 of the Convention had been violated as a result of the above incident of 8 August 1995. The applicant proposed that the Constitutional Court hear two persons who had witnessed his apprehension on 8 August 1995.
On 12 August 1998 the Constitutional Court dismissed the applicant’s complaint as being manifestly ill-founded. The relevant part of the decision states:
“... the fact that the police availed themselves of their statutory right (Section 18 of the Police Corps Act of 1993) to ask a person to prove his identity where it is necessary for carrying out their statutory duties cannot result in a violation of Article 5 of the Convention.”
Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (,,podnet”) presented by any individual or a corporation claiming that their rights had been violated.
According to its case-law under Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights. It could neither grant damages to the person concerned nor quash the relevant decision or impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
Under Section 2(1) and (3), the duties of the police comprise, inter alia, the protection of the security of persons and of property and identification of criminal offences and of minor offences as well as of their perpetrators. The police shall also take preventive action within the limits of their competence as defined by the Police Corps Act.
Section 9 provides that the police shall act within the limits specified in the Police Corps Act when an offence or a minor offence is being committed or when there is a justified suspicion that an offence or a minor offence will be committed.
Under Section 18(1), the police are entitled to ask a person to prove his or her identity by means of a relevant document (,,doklad totožnosti”) when it is necessary for the fulfilment of their duties under the Police Corps Act.
Paragraph 3 of Section 18 provides that a person who refuses to prove his or her identity by means of a relevant document may be brought to the police premises with a view to establishing his or her identity.
Pursuant to paragraph 4 of Section 18, the police are also entitled to proceed in accordance with Section 18(3) when the person concerned is unable to prove his or her identity by means of a relevant document, and when such a person is unable to reliably indicate his or her name, date of birth and place of residence despite the fact that he or she was given an opportunity to do so. The police shall assess whether an indication of the name, date of birth and place of residence of the person concerned is reliable in the light of the reasons for which the identity of such a person is to be checked.
Paragraph 9 of Section 18 provides that the police shall draw up a report when a person is brought to their premises with a view to establishing his or her identity.
Under Section 22(1) the police are entitled to check whether a person who is about to be brought to their premises or who was apprehended or arrested carries a weapon.


ITEMID: 001-81503
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KANALA v. SLOVAKIA
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1964 and lives in Rožňava. He is a businessman.
7. In 1991 the applicant acquired, at an auction held in the context of denationalisation of State property, real property located in the centre of Rožňava town. The opening price at the auction had been fixed at 245,000 Czechoslovak korunas (Kčs) in accordance with the relevant price regulation. The applicant purchased the property for Kčs 560,000.
8. The applicant took out a bank loan with a view to paying the purchase price. Subsequently, in the course of 1992, he took out further loans including one for 190,000 Slovakian koruans (SKK) for the purpose of reconstructing the buildings.
9. In 1993 the District Court in Spišská Nová Ves determined that the applicant had acquired the above real property in association with his partner Mr T., and that they each owned one half of the property. As a result, Mr T. started running his business in the re-constructed part of the premises. Since he was not able to benefit from the use of a part of the premises, the applicant submitted that he was unable to pay the instalments to the bank.
10. On 17 February 1997 the Rožňava District Court ordered the applicant and a third party who had guaranteed the applicant's debt to pay a sum to the creditor bank. The judgment became final on 20 August 1997. On 11 August 1997 the Rožňava District Court issued a payment order against the applicant and the guarantor ordering them to pay different parts of the debt. The payment order became final on 4 November 1997.
11. On 12 March 1998 the Rožňava District Court, at the creditor's request, authorised an executions officer to execute the above decisions. The creditor bank agreed to the recovery of the debt by selling the applicant's share in the above real property. Both executions were carried out simultaneously as they concerned the same persons.
12. The applicant submitted that the executions officer and the applicant's brother had reached an agreement under which the latter would start paying off the debt and that no sale of the property would be ordered.
13. On 8 June 1998 the applicant filed an objection to the execution on the ground that he had requested the re-opening of the proceedings concerning the ownership of the property. On 16 June 1998 the District Court dismissed the objection.
14. On 24 July 1998 the executions officer ordered the sale of the applicant's share in the real property in issue. On 18 August 1998 the applicant requested that the execution be adjourned. On 17 September 1998 the District Court dismissed the request.
15. On 14 October 1998 the executions officer informed the applicant that an expert had valued the whole property at SKK 390,590 on 30 September 1998.
16. Both the applicant and the creditor bank objected to the valuation. In particular, in a letter of 19 October 1998 the bank's representatives referred to an expert opinion of 11 January 1992 elaborated for the purpose of the applicant's loan request. In it the expert had valued the property, in accordance with the relevant price regulations including Regulation No. 465/1991, at Kčs 656,679. The bank's letter further stated that the value of real property had increased several times in the meantime and that the applicant had reconstructed the property. Reference was made to the loan of SKK 190,000 and the relevant bills. The property was situated in the centre of the town whereby its value was increased.
17. The executions officer asked for a second expert opinion. In it a different expert assessed the value of the property at SKK 439,280 on 23 November 1998. The property was valued pursuant to Regulation No. 465/1991. That valuation did not reflect the market value of the property.
18. On 21 December 1998 the executions officer announced that the applicant's share in the property would be sold at an auction on 22 January 1999. The opening price was to be SKK 219,640 which corresponded to half of the value of the whole property as determined by the second expert.
19. On 28 December 1998 the other co-owner of the property availed himself of his pre-emption right and deposited SKK 219,640 with the executions officer.
20. On 15 January 1999 the executions officer informed the District Court and the applicant that the real property would not be sold at an auction as the co-owner of the property had deposited a sum corresponding to its value. Reference was made to section 166(2) of the Executions Order.
21. On 25 January 1999 the applicant filed objections to the execution. He complained that an auction had been scheduled in disregard of the fact that his brother had undertaken to pay off the debt and that three payments had been made between September and December 1998. The applicant further objected that the value of the property as determined by experts was disproportionately low. In particular, the applicant argued that a different expert had established a report, in 1992, according to which the value of the property had been Kčs 656,679 at that time, and that more than SKK 400,000 had subsequently been invested in the building. The applicant submitted that the actual value of the property was approximately double the sum established by the experts. He requested that another expert assess the value of the property.
22. On 26 March 1999 the Rožňava District Court judge informed the executions officer that he had proceeded erroneously. The letter stated, in particular, that the market value of the property should have been established for the purpose of the execution. Reference was made to section 144(4) of the Executions Order. The judge requested the executions officer to have the assessment modified by an expert accordingly.
23. On 15 July 1999 the executions officer informed the District Court that experts were bound by Regulation No. 465/1991 and that they could not, therefore, take into account the market value of the property in issue.
24. In a decision of 13 September 1999 the Rožňava District Court confirmed that the co-owner had acquired the applicant's share in the property in that he had deposited the above sum of SKK 219,640 with the executions officer. The District Court further dismissed the applicant's objections concerning the valuation of the property. It held that the experts had been bound by Regulation No. 465/1991. The fact that the executions officer had disregarded the above agreement according to which the applicant's brother would start paying off the debt was irrelevant as such agreement was subject to approval by the creditor. No such approval had however been given. No appeal lay against the District Court's decision.
25. Subsequently the applicant's brother claimed the sum of money which he had paid to the executions officer in order to pay off the applicant's debt. On 11 February 2002 the District Court in Rožňava dismissed the action holding that the money paid had been transferred to the applicant's creditors with a view to paying off the latter's various debts.
26. On 14 March 2006 the Government requested an expert to determine the market value of the property in issue as of December 1998. In an opinion comprising 16 pages and dated 20 March 2006 the expert found that the general value of the whole property had been SKK 518,047 at the relevant time. The fact that the property had been co-owned by two persons could have affected its value. At that time similar real property had been sold at a price between SKK 500,000 and 550,000.
27. On 5 May 2006 a different expert valued the property at the applicant's request of 9 April 2006. His opinion indicates that, in December 1998, the general value of the property in issue had been SKK 1,758,727. On 9 April 2006 it amounted to SKK 2,451,179.
28. Section 139(1), as in force until 8 November 1999, provided for the value of property to be established in an expert opinion.
29. Pursuant to section 142(2), as in force until 8 November 1999, the lowest bid at a sale by auction of real property equalled the price as established in an expert opinion.
30. Section 144(4) provides, inter alia, that the purchase price of property obtained as a result of its sale at an auction is not limited by price regulations.
31. Pursuant to section 157(4), where the proceeds of the sale exceed all claims to be satisfied in the context of the execution, the executions officer shall, after having satisfied all justified claims, transmit to the debtor the remainder of the proceeds of the sale.
32. Under section 166(2), a co-owner of an object which is to be sold in the context of an execution can prevent its sale if he or she deposits with the executions officer, prior to the start of the auction, a sum corresponding to the value of the share which is to be sold. The executions officer shall use the sum thus obtained as income from the sale.
33. As from 9 November 1999, section 139(1) was amended in that an expert opinion on the value of real property should comprise both the price established pursuant to the relevant price regulation and the market price of the real property in question.
34. Pursuant to amended section 142(2), the lowest bid at a sale by auction of real property equals the market value of the property as determined by an expert under section 139(1).
35. Regulation No. 465/1991 of 25 October 1991 governed, inter alia, the valuation of buildings and of plots of land. It was repealed with effect from 1 January 2004.
36. Section 1(a) provided that the Regulation extended, inter alia, to the determination of the opening price for the purpose of the sale of property at public auctions unless the law otherwise provided.
37. Regulation No. 86/2002 governs the determination of the general value of property and became operative on 31 December 2003.
38. Section 1(2) provides that it applies to determining the general value of property in the context of proceedings under, inter alia, the Executions Order.
39. Pursuant to section 3(2)(a) and (b), the general value of property is its final value determined in an objective manner by an expert and corresponding to a price for which the property could be realised in normal circumstances at a given place and time. It should include, as a rule, value-added tax. The state of the property, influence of the market, economic situation and other specific factors should be taken into account.
40. In opinion Cpj 30/97 of 20 October 1997 the Civil-law Section of the Supreme Court held that courts should take into account the general value of property (that is the price for which it could actually be sold) when deciding on the dissolution of joint ownership and on adequate compensation for a part of such property. Such general value of property could not be determined on the basis of the price regulations in force. The opinion stated that the general value should also be applied where a co-owner availed himself or herself of the pre-emptory right to buy the property. The constitutional principle of equality of rights was thereby respected.


ITEMID: 001-61757
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PRODAN v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Preliminary objections dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 10. The applicant was born in 1924 and lives in Chişinău.
11. In June 1946 the Soviet authorities nationalised the applicant's parents' house. In 1949 her parents were deported to Siberia.
12. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of the Soviet repression to claim their confiscated or nationalised property.
13. In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which she sought the restitution of her parents' house. At the material time the disputed house consisted of six apartments: nos. 3, 6, 7, 8, 12 and 13. Since apartments nos. 3, 6, 7, 8 and 13 had been purchased by their former tenants, the applicant sought to declare null and void the contracts by which they had been purchased from the State. She also sought the eviction of all the occupants of the house.
14. On 14 March 1997 the Centru District Court found in favour of the applicant and ordered the restitution of the house. It declared null and void the contracts by which apartments nos. 3, 6, 7, 8 and 13 had been sold to their tenants. The court further ordered the Municipal Council to evict all the occupants, including those of apartment no. 12, and indicated that the Municipal Council was to provide all the tenants with alternative accommodation.
15. The Municipal Council and the occupants lodged an appeal with the Chişinău Regional Court (Tribunalul Municipiului Chişinău) against the judgment of the Centru District Court. On 17 October 1997 the Chişinău Regional Court allowed the appeal and quashed the judgment of the Centru District Court.
16. The applicant lodged an appeal in cassation against the judgment of the Chişinău Regional Court. On 31 March 1998 the Court of Appeal (Curtea de Apel) rejected the appeal in cassation and upheld the judgment of the Chişinău Regional Court.
17. Following a request by the applicant, the Procurator General's Office applied for annulment of the judgments of the Chişinău Regional Court and the Court of Appeal with the Supreme Court of Justice (Curtea Supremă de Justiţie).
18. On 19 August 1998 the Supreme Court of Justice quashed the judgments of the Chişinău Regional Court and of the Court of Appeal, and upheld the judgment of the Centru District Court of 14 March 1997 on the ground that both the Chişinău Regional Court and the Court of Appeal had failed to observe the provisions of Law no. 1225-XII of 8 December 1992 (see paragraph 30 below).
19. On an unspecified date in 1998, after having obtained the enforcement warrant, the applicant asked the Municipal Council to execute the judgment of 14 March 1997. In a letter of 14 January 1999, the Municipal Council informed the applicant that due to a lack of funds for the construction of apartments for the evicted tenants, it could not execute the judgment.
20. In 1999 the applicant lodged a request with the Chişinău Land Register (Organul Cadastral Teritorial Chişinău) to issue her a certificate of ownership for the disputed house. In a letter of 15 September 1999, the Land Register informed the applicant that it would issue the ownership title only on the basis of an “act of delivery and receipt of the house” (act de predare-primire) issued by the Municipal Council.
21. In October 1999 the applicant lodged an action with the Centru District Court against the Municipal Council seeking damages for the delay in enforcing the judgment of 14 March 1997. On 17 November 1999 the Centru District Court rejected the action as unfounded. The applicant did not lodge an appeal against that judgment and it became final.
22. In 2000 the applicant lodged an action with the Centru District Court seeking a partial change in the manner in which the enforcement of the judgment of 14 March 1997 was to be carried out. In particular, she claimed money from the Municipal Council in lieu of restitution of apartments nos. 3, 6, 7, 12 and 13. On 7 February 2000 the Centru District Court ordered that a valuation of the apartments be carried out by the experts of the Chişinău Land Register. Following a request from the applicant, on 24 February 2000 the Centru District Court ordered that the valuation be carried out by independent real estate experts.
23. On 3 October 2000 the Centru District Court decided partially to change the manner of enforcement of the judgment of 14 March 1997 and ordered the Municipal Council to pay the applicant 488,274 Moldovan Lei (MDL), the market value of apartments nos. 3, 6, 7, 12 and 13.
24. The Municipal Council lodged an appeal with the Chişinău Regional Court against the above judgment. On 10 January 2001 the Chişinău Regional Court rejected the appeal and upheld the judgment of the Centru District Court of 3 October 2000.
25. In 2001 the applicant asked the Housing Division of the Municipal Council to execute the judgment of 14 March 1997 in so far as it concerned the eviction of the occupants of apartment no. 8. In a letter of 26 March 2001, the Municipal Council informed the applicant that due to a lack of funds for the construction of apartment buildings and available alternative accommodation for the evicted tenants, it could not enforce the judgment of 14 March 1997.
26. On 10 April 2001 the Centru District Court dismissed the Municipal Council's request seeking to stay the enforcement of the judgment of the District Court of 3 October 2000. On 19 June 2001 the Chişinău Regional Court, in its final judgment, rejected the Deputy Mayor's appeal against the above judgment.
27. Following a request by the Municipal Council, the Procurator General's Office applied to the Supreme Court of Justice for annulment of the judgments of the Centru District Court of 3 October 2000 and the Chişinău Regional Court of 10 January 2001.
28. On 12 September 2001 the Supreme Court of Justice dismissed the Procurator General's request for annulment.
29. On an unspecified date the applicant lodged a fresh request with the Municipal Council for the enforcement of the judgments of 14 March 1997 and 3 October 2000. In a letter of 23 October 2001, the Municipal Council informed the applicant that due to a lack of funds and alternative accommodation for the occupants of apartment no. 8, it could not enforce the judgment of 14 March 1997. As regards the enforcement of the judgment of 3 October 2000, the Municipal Council replied that the money would be paid after other court orders had been paid.
30. On 20 November 2002 the Municipal Council paid the applicant MDL 488,274 (the equivalent of EUR 29,238 at the time) in accordance with the judgment of 3 October 2000. The judgment of 14 March 1997 in respect of the eviction of the tenants from apartment no. 8 remained un-enforced.
31. The relevant provisions of Law no. 1225-XII of 8 December 1992, as amended on 23 November 1994, read as follows:
“Article 12. Restitution of property to persons who were subjects of repression
(1) Any citizen of the Republic of Moldova, who has been the subject of political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way. (...)
(5) Any act of sale-purchase or other form of transfer of houses, buildings or other constructions and goods confiscated, nationalised or taken away from a person who was the victim of repression, concluded after his rehabilitation, can be declared null through the courts following a request lodged by the victim of repression or his heirs.”
In 1998 a new paragraph was added to the above Article by virtue of Law No. 84-XIV of 8 July 1998, which reads as follows:
“(6) Any person to be evicted from a restituted house shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities, in accordance with the legislation.”
Article 426 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, reads as follows:
“The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings. (...)”
Article 478 of the Civil Code, in force between 26 December 1964 and 12 June 2003, reads as follows:
“Damage caused to a natural or legal person by the illegal actions of the criminal investigation organs, prosecution or the courts, shall be entirely repaired by the State, in the manner prescribed by law, regardless of the fault of any public servant from the criminal investigation organs, prosecution or the courts.”
On 12 June 2003 a new Civil Code entered into force. Article 1404 of the Civil Code reads as follows:
“(1) Damage caused by an unlawful administrative decision or as a result of a failure to act upon a request within a statutory time limit by a public authority or by a public official shall be compensated by the public authority (...).
(2) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph 1 of the present Article. (...)”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103418
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF MARCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1963, 1983 and 1988, respectively, and live in Makariv. Ms Lyudmyla Marchenko is the mother of the other two applicants.
5. From 1987 onwards Ms Lyudmyla Marchenko lived in a house together with Mr M., her husband, Mrs O.N., her mother in law, and Ms Svitlana Marchenko. In 1988 Ms Bozhena Marchenko was born. In 1989 Mrs O.N. acquired a property title over the said house. In 1992 Mr M. died. In 2000 Mrs O.N. concluded a deed of gift with Mr O.O. and transferred the ownership over the house to him.
6. In August 2000 Ms Lyudmyla Marchenko instituted proceedings in the Makariv Court against Mrs O.N. and Mr O.O. on her own behalf and on behalf of the other two applicants seeking division of the house and partial invalidation of the deed of gift.
7. On 20 October 2000 the court ordered a forensic examination and suspended the proceedings.
8. Having received the results of the examination on 3 May 2001, the court resumed the proceedings on 28 May 2001.
9. On 6 August 2001 the court found in part for the applicants.
10. On 31 August 2001 Mrs O.N. and Mr O.O. appealed.
11. On 12 October and 14 December 2001 the Kyiv Regional Court of Appeal returned the appeal to the first instance court due to procedural shortcomings. On 6 November and 16 December 2001 the first instance court allowed the appellants time to rectify their appeal. Finally, on 13 February 2002 the first instance court rejected that appeal without examination due to its procedural shortcomings.
12. On 21 May 2002 the court of appeal quashed that decision and remitted the case to the first instance court for a decision on the admissibility of the appeal lodged by Mrs O.N. and Mr O.O.
13. Following a decision on admissibility, on 1 July 2002 the Makariv Court sent the appeal to the court of appeal for consideration.
14. On 11 October 2002 the Kyiv Regional Court of Appeal quashed the judgment of 6 August 2001 and remitted the case to the Makariv Court for a fresh consideration.
15. On 18 April 2003 the court suspended the proceedings in the case upon the applicants' request.
16. On 22 August 2003 the Makariv Court ordered resumption of the proceedings.
17. On 13 February 2004 the court found in the applicants' favour.
18. On 10 March 2004 Mrs O.N. and Mr O.O. appealed. On 4 June 2004 the court of appeal quashed the first instance court judgment and found against the applicants.
19. On 5 July 2004 the applicants appealed in cassation.
20. On 9 November 2006 the Supreme Court rejected that appeal as unsubstantiated.
21. Out of sixteen hearings in the case four were adjourned upon the applicants' request or due to their failure to appear, four were adjourned upon the respondents' requests or due to their failure to appear, and three were adjourned due to the necessity to call a witness or to examine proof or information.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105935
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LONNBERG v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicant, Mr Tino Ari-Pekka Lönnberg, is a Finnish national who was born in 1981 and lives in Tampere. He was represented before the Court by Mr Mikko Lehti, a lawyer practising in Tampere.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 October 2009 the applicant was running errands with his friends when the police stopped his car. They suspected him of drunken driving and tested him for alcohol and drugs on the spot. The alcohol test was negative, but the drug test was positive for amphetamines and cannabis. The applicant was taken to a laboratory for blood and urine tests as well as for a clinical test.
On the same date the applicant was also questioned as a suspect by the police at the police station. A temporary driving ban was imposed and his driver’s licence was confiscated.
Subsequently, on 3 November 2009, the laboratory tests showed no trace of drugs in the applicant’s blood or urine.
On 4 November 2009 the driving ban was lifted by the police and the applicant’s driver’s licence was returned to him. An appeal against this decision lay to the Administrative Court.
On 4 November 2009 the police decided to terminate the pre-trial investigation in the matter. On 22 November 2009 the police concluded that the applicant had not committed any crime.
According to section 11 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen, Act no. 450/1987, as amended by Act no. 646/2003), a bodily search including the taking of bodily samples (henkilönkatsastus, kroppsbesiktning) can be made on a person suspected on reasonable grounds of, inter alia, drunken driving or drug abuse.
According to section 12 of the Act, the provisions concerning search of premises are mutatis mutandis applied to the bodily search. If the bodily search is thorough, it needs to be conducted in a location intended for that purpose. If the bodily search is conducted by a person other than medical personnel, a witness should be present, if possible. An examination requiring medical expertise can only be conducted by a medical doctor. The bodily search cannot be conducted by a person of the opposite sex to the person searched, unless he or she is a member of the medical personnel. The only exception is the taking of a saliva sample for a DNA-test. Persons of the opposite sex, except the guardian of a minor, may not be present, unless the bodily search concerns taking blood or saliva samples or clinical examination of the state of intoxication. The bodily search may not cause significant inconvenience to the person to be searched.
An official with the power of arrest shall decide on a bodily search and giving of bodily samples. However, a police officer may carry out such measures without a warrant in urgent cases.
According to section 118, subsection 3, of the Constitution anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be punished and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided for in more detail by an Act.
Chapter 40, section 9, subsection 1, of the Penal Code (rikoslaki, strafflagen, as modified by Act no. 604/2002), provides that if a public official, when acting in office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for violation of official duties to a fine or to imprisonment for a maximum period of one year.
Chapter 40, section 10, of the Penal Code (as modified by Act no. 604/2002) provides that if a public official, when acting in office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty offence, he shall be sentenced for negligent violation of official duties to a warning or to a fine.
According to Chapter 1, section 14, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, as modified by Act no. 647/2003), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.
Under Chapters 3 and 4 of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or negligence by its employees in the performance of their duties.