Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in GPE .

In DATE the applicant married E. In DATE their daughter , ORG , was born . In DATE the applicant and E. separated . In DATE the applicant moved out of the family home .

After the separation , the applicant and PERSON agreed on access arrangements ( DATE , DATE during DATE , and DATE ) .

On DATE the applicant lodged a divorce petition with ORG ( PERSON ) together with an application for an interim contact order .

On DATE ORG ordered a local assessment ( wywiad środowiskowy ) to be conducted at the mother ’s home by a courtappointed guardian with a view to establishing ORG ’s situation and the parenting skills of the mother and father . The guardian submitted her report on DATE . The guardian established that ORG loved both parents but was more attached to the mother . The applicant had frequent contact with his daughter . However , the parents were in conflict with each other and had negative feelings about each other . The applicant had authorised M.T. , his new partner , to collect ORG from the nursery , which was a source of great conflict between the parents . The guardian concluded that the access arrangements should be speedily determined by the court in order to minimise the negative consequences of the divorce on ORG The child should stay with the mother and the father should be allowed frequent visits . He should , however , inform the mother of the child ’s whereabouts as he had taken ORG abroad without the mother ’s knowledge .

A hearing scheduled for CARDINAL DATE did not take place as the case file had not been returned from ORG ( where maintenance proceedings had taken place ) and because the applicant had been in pre - trial detention in connection with a corruption case against him .

On DATE and DATE the applicant again applied for interim contact orders , specifying different arrangements . On DATE the mother replied , setting out her own request for contact arrangements .

NORP In DATE the applicant moved in with M.T. and in DATE a son was born .

On DATE ORG issued an interim contact order . It decided that the applicant was allowed to see his daughter every second weekend TIME on DATE and TIME on DATE , and also TIME on DATE and TIME on DATE . In addition , he could spend DATE , DATE and every GPE DATE with her . The applicant was allowed to take DATE for DATE and DATE .

On DATE ORG issued a writ of execution in respect of that decision .

On DATE PERSON asked the court to restrict contact between the applicant and ORG owing to the child ’s fragile emotional condition . N. had therapy with a psychologist DATE .

A hearing scheduled for DATE was adjourned after the applicant lodged an application for the judge to step down . That application was dismissed on DATE . A further appeal by the applicant was dismissed on DATE .

On DATE the psychologist treating ORG suggested a change in the contact order so that ORG would not have to stay TIME at the applicant ’s house , as that was apparently causing her a lot of stress .

On DATE ORG ordered another local assessment . The guardian submitted her report on DATE . She established that contact visits with ORG had taken place as agreed by the parents after their separation , with the exception of the period DATE ( when the applicant had been detained on remand on corruption charges ) . Contact meetings had resumed in DATE and had continued regularly until DATE . Subsequently , after the court had begun supervising the contact visits , the conflict between the parents had escalated . The mother had been of the opinion that the applicant had wanted the contact meetings to take place regardless of the child ’s needs and her after - school activities ( ice skating practice ) . On the other hand , the father was convinced that the practice schedule had been manipulated by the mother so that it took place during his contact visits . As of DATE , the contact visits had not taken place according to the interim contact order . The applicant saw his daughter on her birthday and on a few occasions after school .

On DATE the guardian submitted a supplementary report to the court . She noted that ORG did not enjoy the way the contact with the applicant was taking place . She did not mind seeing him more often than scheduled , but she did not want to stay TIME at his house .

On DATE a hearing took place during which the applicant and PERSON agreed on access arrangements . On DATE , ORG issued a divorce decree . The court ordered that in the period DATE the applicant could see his daughter every DATE TIME ; every second DATE and DATE between TIME and TIME ; as well as on GPE DATE TIME , the applicant could see his daughter DATE from TIME on DATE until TIME on DATE ; DATE from TIME until DATE TIME ; for the whole of the period DATE ; DATE ; DATE of GPE ; and on DATE .

On DATE the applicant appealed . On DATE ORG upheld the first - instance judgment .

On DATE and DATE and on CARDINAL DATE the applicant complained to the court that the mother had refused to comply with the access arrangements .

On DATE the applicant lodged CARDINAL applications for the court to impose a fine on the mother for failing to comply with the interim contact order of CARDINAL DATE .

NORP The applicant subsequently lodged CARDINAL applications on DATE , CARDINAL on DATE and CARDINAL on DATE .

The court scheduled a hearing for CARDINAL DATE . However , PERSON failed to appear on that date ( she was on leave to take care of her sick child ) .

The applicant lodged numerous further applications for the court to impose fines on PERSON In particular , he lodged CARDINAL applications on DATE , CARDINAL on DATE , CARDINAL on DATE , CARDINAL on DATE , CARDINAL on DATE and CARDINAL on DATE .

The next hearing took place on DATE .

At a further hearing held on DATE , with reference to the applicant ’s motion of DATE , ORG ordered the mother to comply with the interim contact order within DATE on pain of a fine of MONEY ( PLN ) . On DATE ORG dismissed an appeal by PERSON against that decision .

The applicant made further requests to the court to impose fines on E. : on DATE , DATE , DATE , DATE ( CARDINAL motions ) ; DATE ( CARDINAL motions ) ; and on DATE ( CARDINAL motions ) .

On DATE PERSON severed to a separate set of proceedings the applicant ’s application of DATE ( see paragraph CARDINAL above ) . It was subsequently dismissed on DATE . Upon further appeal , ORG quashed that decision on DATE . On DATE the proceedings were further severed and the part concerning the applicant ’s application of CARDINAL DATE was assigned a new case number . It was subsequently transferred to ORG on account of a change of address by PERSON The proceedings were eventually discontinued on DATE .

On DATE , in reply to the applicant ’s claim of DATE , ORG imposed a fine of ORG MONEY on PERSON ( which she subsequently paid ) . It further ordered her to comply with the interim contact order within DATE , on pain of another fine of ORG CARDINAL,CARDINAL .

On DATE a court - appointed guardian submitted a report to the court on arrangements for the applicant ’s contact with his daughter . She observed that contact visits were not taking place in accordance with the contact order . N. sometimes met the applicant on DATE after school , staying with him until TIME She further noted that while PERSON did not want to stay TIME at the applicant ’s home , she did not mind seeing him more often after school during DATE . The guardian suggested that the parents and the child undergo an assessment at ORG ( GPE ośrodek diagnostyczno - konsultacyjny ) ( “ the RODK ” ) .

On DATE the court imposed another fine of CARDINAL PLN on PERSON However , on DATE ORG discontinued the proceedings on the grounds that the interim contact order of CARDINAL DATE was no longer in force .

The court - appointed guardian submitted CARDINAL reports to ORG , dated DATE . She noted in the reports that the contact arrangements set out in the latest interim contact order were not being enforced . From DATE the father had only been able to see his daughter for TIME at occasional meetings . In the guardian ’s opinion , the father was ready and able to take care of his daughter and organise interesting activities for their meetings . However , when questioned by the guardian , ORG had been unenthusiastic about seeing her father and had said only negative things about him . The guardian concluded that a family assessment at the RODK was required .

Meanwhile , the applicant lodged numerous applications for a forcible removal of ORG for various visits ( in DATE and DATE , and in DATE ) . ORG issued orders for a forcible removal of the child by the guardian on DATE ( for DATE ) , on CARDINAL DATE ( for DATE ) and on DATE . In the latter decision , the court stressed that under no circumstances should physical force be used when collecting ORG as that would be against her best interests .

On the first occasion , the guardian found that PERSON was not living at the address she had submitted to the court and he was therefore unable to collect the applicant ’s daughter . On DATE occasions , the guardian tried to mediate between the parents and talk to the child in order to make her change her mind , but the child refused to go with the father .

During the divorce proceedings , both the applicant and PERSON asked the police to intervene on several occasions . In particular , on DATE the applicant arrived at PERSON ’s home to collect ORG However , ORG was crying and refused to go with him . PERSON called the police because the applicant was allegedly behaving in an aggressive manner . On DATE the police again intervened at PERSON ’s home . On that occasion , PERSON refused to allow the applicant to take ORG for a court - scheduled contact visit as the child was allegedly afraid of him .

On DATE the applicant complained to ORG that the mother had failed to comply with the interim contact order and asked the court to order her to give an undertaking related to her behaviour ( odebranie przyrzeczenia określonego zachowania ) .

A hearing planned for DATE was adjourned owing to the absence of both parents . The following hearings took place on DATE and CARDINAL DATE .

NORP On DATE the Kraków - Nowa Huta District Court dismissed the applicant ’s application because the interim contact order was no longer in force . That decision was quashed on appeal on DATE . ORG held that ORG had focused on the application to fine PERSON and had failed to consider the applicant ’s other requests .

On DATE the Kraków - Nowa Huta District Court again discontinued the proceedings relating to the applicant ’s application to impose a fine on the mother because the interim contact order was no longer in force after the divorce judgment had become final . As of the date of the submission of the Government ’s observations to the ORG , the remainder of the applicant ’s request ( proceedings for the mother to give an undertaking ) was still pending .

On DATE PERSON applied for a change of the access arrangements which were specified in the divorce judgment . She submitted that PERSON did not want to stay TIME at the applicant ’s house .

On DATE the Kraków - Nowa Huta District Court issued an interim contact order and allowed PERSON ’s request . The court ruled that the applicant could meet his daughter every other DATE TIME and CARDINAL p.m. The court held that the modification of the access arrangements was in the best interests of the child at that moment and that it was essential to rebuild the emotional ties between ORG and the applicant .

On DATE the court ordered another local assessment and an examination of the parents and the child by the RODK experts .

On DATE a psychologist submitted his opinion to the court . The expert stated that the weakening of the emotional bond between the applicant and ORG had been caused by a series of events . Those were , in particular , the applicant ’s arrest in ORG ’s presence and his subsequent detention on remand ; the applicant ’s new relationship and new child ; the applicant ’s attempt to enforce the contact order , without any regard to ORG needs ; and the escalation in the conflict between PERSON and the applicant . The expert concluded that family therapy was needed in order for family ties to be re - established . In addition , changes to contact arrangements , such as an increased frequency of visits , were not in the child ’s best interests at that time .

At a hearing held on DATE , the applicant informed the court that DATE , when he had arrived to see his daughter , she had not wanted to go with him . Apparently , ORG had gone outside to talk to the applicant but when she had seen PERSON ( his new partner ) she had returned home crying and had refused to go with her father . In reply to a question from the court whether he would participate in family therapy , the applicant stated that he would have to think about it , as in his view the problems with enforcing the contact arrangements were the mother ’s fault .

On DATE ORG allowed the applicant ’s appeal against the interim order of DATE . It considered that the access arrangements specified in the ORG contact order had gone beyond what the mother had requested in her application .

On DATE the RODK submitted its opinion to the court . Firstly , the experts observed that both parents loved ORG and were able to attend to her needs . The father was determined to have a place in her life and play an important role . The mother had not been right to cut off contact between PERSON and her father . While she claimed that she had not obstructed the contact arrangements , she was not aware that her passive approach and clear animosity towards her ex - husband had impeded father - daughter contact . The experts stressed that ORG had a strong emotional bond with the mother and remained under her influence . She did not feel loved by her father and was afraid of having contact with him . The experts concluded that ORG was not able to cope with the emotional consequences of the conflict between her parents and that family therapy was indispensable . Furthermore , despite her negative reaction to the applicant , she should have contact with him . However , contact visits should not take place in the mother ’s presence as that would increase ORG ’s negative attitude towards her father and prevent her from re - establishing a bond with him . Contact meetings should take place on neutral ground in the presence of a neutral person .

DATE . On DATE ORG issued a contact order . According to that decision , the applicant could meet PERSON second DATE TIME and TIME , with the exception of DATE and the period DATE and DATE . In addition , he could see PERSON on DATE of GPE TIME and TIME , and on DATE every even year and on DATE . The court held that contact meetings should take place in the presence of a court - appointed guardian .


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE and GPE . On DATE the President of the Third Section granted the applicant ’s request for her identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) .

The NORP and NORP Governments ( “ the NORP ” ) were represented by their Agents , PERSON and PERSON , from ORG and ORG , respectively .

The facts of the case , as submitted by the parties , may be summarised as follows .

DATE the applicant was in a relationship with ORG On DATE their son S.I.P. was born . From DATE to DATE they all lived together in the same apartment in GPE .

In DATE the applicant took the decision to move to GPE to work there . According to the applicant it was a joint decision , taken because of financial difficulties of the family , and after she moved she kept in touch by telephone with ORG and her son on an almost DATE basis and sent her son money and clothes .

( a ) ORG proceedings

On DATE ORG brought proceedings against the applicant and the ORG mayor ’s office , acting as ORG ( ORG ) , seeking inter alia custody of PERSON He claimed that the applicant ’s decision to move to GPE was taken without consulting him and once she had moved he was unaware of her whereabouts although he had tried to find her . In contrast , according to the applicant , ORG had been aware of her address in GPE but had not informed the court . In result , the proceedings were held in the applicant ’s absence . The summons issued by the court in the applicant ’s name did not reach her , and she remained unaware of the proceedings .

On DATE the Bistriţa - ORG allowed ORG ’s application and awarded him custody of the child . Relying on witness statements and ORG social investigation and recommendation , the court held that ORG had been the child ’s main caregiver since birth and provided the child with the emotional support he required for his development .

According to the applicant she had become aware of the judgment of DATE on DATE and only by chance . Following a request lodged by the applicant ’s lawyer , PERSON communicated a copy of the judgment to the applicant by fax on DATE . The applicant did not appeal and she did not request the statutory time - limit for lodging an appeal to be reinstated .

( b ) ORG proceedings

On DATE the applicant applied to the same court for contact with her son .

On an unspecified day in DATE ORG left GPE together with the applicant ’s son and they both settled permanently in GPE . According to the applicant she learned about this fact on DATE .

On DATE , in the course of the contact proceedings in GPE , the applicant requested the court to reschedule a hearing set for DATE to an earlier date , given the circumstances of the relationship between her and ORG and the urgency of the matter being examined by the court .

By a final interlocutory judgment of DATE the court allowed the applicant ’s request for an earlier hearing and set a new date of CARDINAL DATE .

On DATE the court allowed the applicant ’s application in part and ordered that she be allowed contact every other weekend , DATE during DATE in DATE or DATE and every second GPE DATE . Taking into account the best interests of the child , the court held that the full contact schedule requested by the applicant was excessive , given the young age of the child and his DATE routine . It also dismissed ORG ’s request that she only be allowed supervised contact in his presence . The applicant appealed , arguing that the contact schedule established by the court was restrictive , and that the court had failed to consider that the child was entitled to know his mother ’s relatives as well .

On DATE ORG allowed the applicant ’s appeal in part , taking into account the best interests of the child and the GPE needs , and the fact that they were living in CARDINAL different GPE , namely GPE and GPE . It ordered that she be allowed contact for DATE , DATE of the LOC holidays and from DATE to CARDINAL DATE . It also allowed her to take the child away from his father ’s home , and upheld the judgment of the lower court in respect of the contact DATE . The applicant appealed on points of law ( recurs ) .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law on the grounds that the full contact requested by the applicant was unjustified and did not consider the best interests of the child , given his age and DATE routine .

On DATE , at the request of the applicant , ORG issued a certificate of enforceability under LAW ( see ORG below ) , attesting that the judgments of DATE and DATE were enforceable . It also noted that all parties had the opportunity to be heard , except for the child on account of his age .

( c ) Return proceedings

On DATE the applicant brought proceedings against ORG , seeking the immediate return of the child to GPE , custody , psychological counselling for her and the child in a specialist ORG - run centre , child allowance , contact rights for ORG and rules for the child travelling abroad accompanied by either parent . She argued , inter alia , that the child ’s father was denying her contact with her son , and relied on LAW DATE on ORG ( “ LAW ) . In addition , she asked for legal aid on account of her limited financial resources and international judicial cooperation .

On DATE the Bistriţa - ORG dismissed the proceedings and decided to examine its competence ratione loci of its own motion . It held that ORG had been granted sole custody of the child by the NORP courts and had moved to GPE , taking his son with him . Under the relevant NORP legislation , a parent entrusted with sole custody of a child had the right to take the child out of the country , even without the other parent ’s consent . Consequently , the child ’s departure to GPE had been , in principle , lawful . Moreover , after GPE joined ORG , the courts’ jurisdiction in matters of recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility was regulated by LAW . Under LAW , matters of parental responsibility came under the jurisdiction of the courts of the child ’s ORG country of habitual residence . Under LAW , the courts of the Member State where the child was habitually resident prior to a wrongful removal retained jurisdiction until the child acquired habitual residence in another Member ORG . From DATE the applicant ’s son ’s habitual residence was in GPE , therefore , regardless of whether his removal from the country had been lawful or not , competence ratione loci for examining the applicant ’s application belonged to the NORP courts . The applicant appealed . She argued , inter alia , that the NORP courts had jurisdiction to examine the merits of her case as the parties to the proceedings were NORP nationals , the child had close connections to GPE , and ORG had implicitly accepted their jurisdiction by taking part in the proceedings and submitting observations .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal . It held that ORG had been granted sole custody and had therefore been entitled to lawfully decide on his son ’s residence without her consent . In addition , the child ’s habitual residence was in GPE , and the NORP courts therefore retained competence in respect of the proceedings . The NORP courts had previously examined the applicant ’s application for contact because in DATE ORG and the child had still been living in GPE . The exception provided for by LAW invoked by the applicant required , however , that the proceedings should have been opened before the competent NORP courts and to concern the administration of the child ’s property and not the child himself .

( d ) Criminal proceedings opened by the applicant against ORG

On DATE the applicant ’s legal representative opened criminal proceedings against ORG for obstructing the applicant ’s contact with her son and for his unlawful removal within the meaning of LAW on account of him being domiciled in GPE by ORG without the applicant ’s consent .

By an order of CARDINAL DATE the ORG prosecutor ’s office dismissed the criminal complaint . It held that from the moment of her departure , the applicant had contacted her son only by telephone and there was no evidence that ORG had obstructed their conversations . It was noted that ORG and CARDINAL other witnesses on his behalf had been questioned . The applicant had not been questioned because she lived abroad and had informed the authorities that her financial situation prevented her from travelling to GPE .

On DATE the applicant challenged the prosecutor ’s office order of CARDINAL DATE to the hierarchically superior prosecutor . She argued , inter alia , that her chosen legal representative had failed to notify her of the order prior to CARDINAL DATE and requested that her appeal be considered as having been lodged in due time and allowed . Also , she argued that the prosecutor ’s office had wrongly assessed the evidence and had misinterpreted the applicable law . Moreover , she could have been interviewed by CARDINAL of the NORP police officers working in GPE through international judicial cooperation proceedings , but such proceedings had not been initiated in her case .

By a final order of DATE the hierarchically superior prosecutor attached to the ORG prosecutor ’s office dismissed the applicant ’s challenge as time - barred . It held , inter alia , that the relevant rules of criminal procedure did not provide for the possibility of a party ’s appeal being reinstated once the time - limit for a challenge against a prosecutor ’s order had expired . Moreover , the applicant could lodge a new criminal complaint against the child ’s father . It does not appear that the applicant appealed against that order .

On DATE the applicant brought criminal proceedings against ORG and other third parties for fraud , obstruction of justice , perjury and destruction of evidence committed during the custody proceedings . She stated that although the child ’s father was aware of her whereabouts , he had failed to inform the court of her correspondence address . Moreover , he and other third parties had committed perjury by declaring to the NORP authorities that she had abandoned her son and family home and that the father was the only parent raising and supporting him . Furthermore , she was being prevented by ORG and his new wife from enforcing the judgment recognising her contact rights .

On DATE the applicant was interviewed by the ORG police as part of the criminal investigation opened following her complaint of DATE . She insisted that the NORP authorities question ORG ; however , her request to have him questioned in GPE was allegedly refused .

By a judgment of CARDINAL DATE ORG dismissed part of the criminal proceedings opened on DATE on the grounds that no unlawful act had been committed . The court referred the remaining complaints to the ORG prosecutor ’s office . The proceedings still appear to be pending .

( e ) Contact with other relevant authorities

On CARDINAL DATE the applicant asked ORG for legal aid in respect of all the proceedings required for the final resolution of her predicament , and informed them that she was unable to enforce her contact rights . Moreover , relying on LAW , she requested ORG to take all the necessary steps to have the NORP authorities acknowledge and enforce the judgment . She also asked the NORP authorities to ensure that her son was returned to GPE urgently and to provide them both with counselling so that they could rebuild their relationship .

On DATE ORG replied to the applicant , informing her that after GPE joined ORG , the courts’ jurisdiction in matters of recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility between Member GPE was regulated by LAW . Under the Regulation , matters of parental responsibility , including contact rights , came under the jurisdiction of the courts of the child ’s ORG country of habitual residence . The NORP courts had retained their jurisdiction for changing contact rights from a national to an international level for DATE from the date the applicant ’s son had moved to GPE lawfully . After DATE had expired , the courts of the Member State where the child was habitually resident retained jurisdiction for applications concerning cross - border contact . In PERSON ’s case , jurisdiction was therefore retained by the NORP courts . Moreover , the applicant ’s son had left GPE lawfully , as under the relevant legislation in force at the time , a child accompanied by a parent granted full custody by a final court order could leave the country without the other parent ’s consent . In order to change her son ’s legal status , the applicant had to therefore lodge an application with the court which retained jurisdiction in order to be able to change her contact rights or to gain custody of the child . ORG was unable to represent the applicant or to intervene in the proceedings on her behalf . It was for the applicant and her potential legal representative to litigate the case . In addition , they stated that the NORP court which retained jurisdiction in the applicant ’s case was ORG . Lastly , they informed the applicant that given that she was living in GPE , she could notify ORG in order to organise and secure contact between GPE and GPE under LAW .

On DATE the applicant asked ORG for ORG to inform her about the status of an application lodged with ORG attached to ORG on DATE . Also , she asked for free legal assistance and support in order to overcome the challenges she had been facing . Moreover , she requested information on whether her son had been living lawfully in GPE , copies of the relevant documents granting ORG custody and the conclusions of any potential social investigation reports carried out at her son ’s home . Lastly , she stated , inter alia , that although she had been granted contact rights by the domestic courts , ORG had refused to allow her access to her son .

On DATE ORG informed the applicant through ORG attached to ORG that , according to an investigation carried out by ORG in GPE and a social investigation carried out by the NORP authorities , her son was residing legally in GPE with his father and his new family . The home they all lived in was large and clean . The child was attending kindergarten . His father ’s family was very attached to the child and he was able to develop well . Also , all of that information had been sent to the applicant ’s legal representative on DATE .

On DATE ORG issued a certificate attesting that the applicant ’s son had his main registered domicile in GPE , in the town of GPE .

On DATE the Knittelfeld prefect ’s office produced a social investigation report in respect of the child ’s living arrangements at his home in GPE . The social workers who produced the report interviewed the child , his father and his stepmother . According to the report , the child arrived in GPE with his father in DATE . In DATE the child ’s father married another NORP national living in GPE . They all lived in a large and clean home . The child attended kindergarten and was well looked after by the family . According to ORG ’s statements , the child ’s mother left them in DATE and they had not had contact with her for DATE , although ORG had tried to find her . He raised the child on his own , and on DATE was granted full custody by the NORP courts . Afterwards , ORG left GPE with his son and settled in GPE . He remarried , and the child ’s mother contacted him soon afterwards because she wanted to see the child . She was allowed to see him on his birthday and spent DATE with him , but he no longer recognised her . She then did not contact them for some time , but in DATE she was granted contact twice a month at the child ’s home . She never took advantage of that opportunity , instead contacting her son by telephone DATE . She never expressed the desire to take the child to her home . The report concluded that the child was well integrated into his family and was being well looked after . He had the opportunity to develop well . Although his mother could contact him , there was no real bond between them because of their past relationship . As far as the child was concerned , his father was the main caregiver .

( a ) Proceedings regarding the applicant ’s contact rights

On DATE ORG came to FAC and informed the ORG that the mother had been granted contact rights by the NORP courts and that she had informed ORG that CARDINAL DATE she would take the child away to GPE for DATE . In DATE she had only seen the child once for TIME in his presence . The child did not know the applicant as his mother anymore and did not want to be away from his family . V.I.P. therefore requested FAC to allow the applicant only supervised contact at a child protection centre on DATE to be determined . Until a stronger motherchild bond was established the mother should not be allowed to take the child away . TIME statement made before FAC as well as his request were sent to the applicant .

The applicant misinterpreted the documents received as a court order prohibiting her from contacting her son .

On DATE the applicant came to GPE . She saw her son at ORG ’s home . According to the applicant , ORG and his wife used force and harmed her bodily to end the visit of her son . After DATE the applicant did not see her son anymore .

On DATE the applicant came to ORG and was heard by judge PERSON The judge informed the applicant that ORG had asked for her to only be allowed to see her son at a child protection centre , in his and an interpretor ’s presence . According to the applicant , the judge refused to accept any of the evidence she had had translated into NORP and notarised in respect of the contact rights she had been granted by the NORP courts . During the discussion with judge PERSON the applicant said that she would reach an agreement with ORG and she agreed to contact the child first via ORG . The applicant was asked to turn to the child protection centre for any visiting arrangements and an information brochure was handed out to her .

According to the applicant , she telephoned ORG DATE and was informed that a meeting could be set up between her and her son within DATE .

The applicant claims that she contacted the ORG again on DATE to enquire about the first meeting with her son . She stated that it was explained to her that she would have to bear the costs of a NORP social worker and that meetings had to be approved by judge PERSON

According to the Government , ORG would have been able to organise a NORP - speaking assistant , but the applicant and ORG would have had to bear the costs jointly .

According to the Government , ORG withdrew his application for a decision on the applicant ’s contact rights on DATE . However , they did not submit any documents to this effect .

The applicant submitted that she had had a meeting with the President of ORG on DATE , at which she had attempted to lodge an application for custody and contact with her son . She stated that she had tried to give the President an application for enforcement of the NORP judgments , and the certificate of enforceability dated DATE issued under LAW bis PERSON regarding the NORP judgments of DATE and DATE . According to the applicant , the President refused to accept the documents and referred her to PERSON , the judge in charge . However , according to the applicant , PERSON also refused to accept these documents and referred the applicant to ORG ) . According to the applicant , PERSON explained to her that she had no contact rights on the territory of GPE and that she would have to be represented by counsel in order to lodge a new application for contact . Furthermore , the applicant submitted that PERSON had informed her that she would have to accept ORG ’s refusal to allow her contact .

On DATE , the applicant sent a request with a number of documents to the President of the NORP ORG for the enforcement of her contact rights . On DATE the President of that court informed the applicant that as an administrative judicial body , it had no jurisdiction in the matter and had thus forwarded her written request and documents to ORG as the court with jurisdiction .

On DATE the applicant submitted a request to ORG to have the NORP judgments regarding her contact rights enforced . She enclosed the certificate of enforceability dated DATE issued under LAW .

On DATE the applicant applied for legal aid .

In DATE the applicant applied to ORG for additional contact . In addition , she asked for counselling sessions for her and her son and cross - border cooperation between GPE and GPE in order to enforce the contact rights granted by the NORP judgments . In addition , she requested legal aid and the presence of a translator in case she had to give evidence .

On DATE the court awarded the applicant legal aid in respect of any court fees or translation costs . However , she did not receive legal aid for a lawyer and , legal representation not being obligatory , was unrepresented in the course of the proceedings . The court also summoned the applicant and ORG to a hearing on DATE .

On DATE the hearing took place , at which ORG and an interpreter for the applicant were present . The applicant was not present .

Subsequently , on DATE , the same court dismissed the applicant ’s application for contact , inter alia because ORG had been living in GPE for DATE .

DATE . On DATE the applicant appealed against that decision , stating that she had never received a summons . She objected to judge PERSON and stated that she was seeking enforcement of the NORP decisions and was not requesting a new decision on her contact rights in GPE . She further stated that the child ’s father had taken an active part in the proceedings in GPE , and had been represented by a lawyer .

On DATE the ORG stayed the appeal proceedings while waiting for a decision on the objection .

On DATE ORG dismissed the applicant ’s objection to Judge PERSON as unfounded . Judge PERSON had stated that she had seen no reason to exclude herself from the proceedings . She had only met the applicant once and had stated in that meeting that she mediated with parents to find an out - of - court solution for contact with the child . She also had no personal relationship with the child ’s father . The court found that the applicant had not given any specific reasons for her objection to the judge . The applicant did not appeal .

On DATE the ORG allowed the applicant ’s appeal and quashed the decision of DATE . It found that the summons to the applicant had been sent to the wrong address in GPE . The proceedings had to be continued at the same level of jurisdiction with a hearing with the applicant to establish whether she was requesting enforcement of the NORP judgments in accordance with LAW or a declaration of enforceability of these judgments in accordance with LAW , or whether she wanted to apply for contact in GPE considering the current circumstances . ORG held that the latter was reasonable as ORG was living in GPE .

On DATE the applicant was summoned to ORG . An interpreter was present at this hearing . The applicant informed the court of an address in GPE to which any court documents could be sent . The transcript of the hearing indicates that the applicant stated that she did not want to speak on her contact rights , because she did not recognise the jurisdiction of the NORP courts , and that in her opinion there was nothing to clarify before the NORP courts . She only wanted the court to confirm the enforceability of the NORP documents that conceded her custody of her son and she only wanted the NORP courts to enable her to enjoy her existing rights . According to a file note , in the course of this hearing the applicant explicitly stated that although her last contact with her son had been in DATE she wanted to have the custody of her son , to live in GPE with him and the NORP courts had enabled her to do so . Judge PERSON informed the applicant that this would not be correct because in the present situation international and NORP law was applicable and that ORG had jurisdiction in the case . She informed the applicant several times that as the competent NORP judge she could decide on her contact rights , but only after having requested an expert opinion of a child psychologist . The applicant , after having first been happy about this possibility , then changed her mind and reiterated that she did not recognize the jurisdiction of the NORP courts .

The Government submitted that because the applicant had declared that she did not recognise the jurisdiction of GPE , ORG had interpreted this as a withdrawal of her application for contact and closed the file without any further decision . In any case the applicant did not take further actions to clarify the case , to obtain a decision on the execution of the NORP judgment in GPE or to get in contact with her son .

( b ) Proceedings regarding child support

On CARDINAL DATE ORG brought proceedings against the applicant before FAC , seeking child support starting from DATE until the child became financially independent .

On CARDINAL DATE ORG issued a temporary injunction against the applicant , ordering her to pay child support of ORG CARDINAL pending the outcome of the child support proceedings . This decision was served on the applicant on DATE . The applicant appealed on points of law ( PERSON ) .

On DATE the ORG rejected the applicant ’s appeal on points of law as lodged out of time .

On an unspecified date the applicant contested the proceedings brought against her by ORG on CARDINAL DATE . She argued , inter alia , that the NORP courts did not have jurisdiction to decide on child support pending the outcome of the proceedings opened by her before the NORP courts . She also contested the lawfulness of the evidence obtained by the NORP authorities through the NORP courts in respect of her case and the lawfulness of her son being domiciled in GPE .

By a decision of CARDINAL DATE ORG allowed ORG ’s child support claim . It ordered the applicant to pay DATE child support of ORG CARDINAL from DATE until the child became financially independent , on the grounds that the applicant had sufficient income to pay that amount . It also lifted the temporary injunction delivered by the same court on DATE pursuant to which the applicant had had to pay ORG CARDINAL in DATE child allowance . It also held that LAW , NORP law applied to the present case , because the child ’s habitual permanent residence was in GPE . The applicant appealed on points of law on the grounds that the court had assessed the evidence incorrectly and she had fulfilled her obligations under the ORG judgment of DATE to pay child support , so she could only be ordered to pay child support from the date of the court ’s judgment . Moreover , the applicant alleged that the court had failed to consider the best interests of the child , as he did not have contact with her ; the court had also failed to take into account the parties’ nationality when determining the lawful domicile of the child and the timelimit for the appeal on points of law .

( c ) Other proceedings

On an unspecified date the applicant lodged a criminal complaint against ORG with ORG for unlawful residence in GPE . She argued that ORG was living and working unlawfully in GPE , had removed her son from GPE without her consent , and in spite of all the sets of proceedings she had brought before the NORP authorities to have her son returned to GPE , they had failed to assist her . In addition , relying on the provisions of LAW , she urged the NORP authorities to help her and take the measures required by law to protect her son .

According to the Government , the NORP public prosecutor ’s office discontinued the preliminary investigation against ORG on DATE . The applicant did not lodge a request to reopen these proceedings ( PERSON ) with ORG .

On an unspecified date , relying on most of the above - mentioned arguments , the applicant also asked ORG attached to GPE mayor ’s office to assist her with a social investigation in her son ’s case .

By a letter of CARDINAL DATE the applicant informed the ORG that she was still unable to see her son .

The relevant legal provisions of LAW DATE on ORG , ratified by GPE and GPE , namely ORG DATE , are to be found in PERSON ORG v. GPE , no . CARDINAL/CARDINAL , DATE and PERSON v. GPE , no . CARDINAL , § DATE , DATE .

The relevant provisions of ORG ( ORG ) No . CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( known as “ the Brussels II bis Regulation ” ) read as follows :

“ CARDINAL . This Regulation shall apply , whatever the nature of the court or tribunal , in civil matters relating to :

( b ) the attribution , exercise , delegation , restriction or termination of parental responsibility .

The matters referred to in paragraph CARDINAL(b ) may , in particular , deal with :

( a ) rights of custody and rights of access ;

“ In case of wrongful removal or retention of the child , the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member ORG and :

( b ) the child has resided in that other Member ORG for a period of DATE after the person , institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and CARDINAL of the following conditions is met :

( i ) within DATE after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child , no request for return has been lodged before the competent authorities of the Member ORG where the child has been removed or is being retained ;

( ii ) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph ( i ) ;

( iii ) a case before the court in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to LAW ;

( iv ) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention . ”

“ A judgment given in a Member State shall be recognised in the other Member GPE without any special procedure being required . ”

“ A judgment relating to parental responsibility shall not be recognised :

( c ) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally ... ”

“ CARDINAL . This Section shall apply to :

( a ) rights of access ;

“ CARDINAL . The rights of access referred to in Article CARDINAL ) granted in an enforceable judgment given in a Member ORG shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member ORG of origin in accordance with paragraph CARDINAL .

Even if national law does not provide for enforceability by operation of law of a judgment granting access rights , the court of origin may declare that the judgment shall be enforceable , notwithstanding any appeal .

The judge of origin shall issue the certificate referred to in paragraph CARDINAL using the standard form in GPE ( certificate concerning rights of access ) only if :

( a ) where the judgment was given in default , the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defense , or , the person has been served with the document but not in compliance with these conditions , it is nevertheless established that he or she accepted the decision unequivocally ;

( b ) all parties concerned were given an opportunity to be heard ;

and

( c ) the child was given an opportunity to be heard , unless a hearing was considered inappropriate having regard to his or her age or degree of maturity .... ”

“ CARDINAL . A party seeking enforcement of a judgment shall produce :

( a ) a copy of the judgment which satisfies the conditions necessary to establish its authenticity ;

and

( b ) the certificate referred to in LAW ) ... ”

“ CARDINAL . The enforcement procedure is governed by the law of the Member State of enforcement .

Any judgment delivered by a court of another Member ORG and declared to be enforceable in accordance with LAW or certified in accordance with LAW ) [ ... ] shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member ORG .

In particular , a judgment which has been certified according to LAW ) [ ... ] can not be enforced if it is irreconcilable with a subsequent enforceable judgment . ”

“ CARDINAL . The courts of the Member State of enforcement may make practical arrangements for organising the exercise of rights of access , if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the courts of the Member ORG having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected .

The practical arrangements made pursuant to paragraph CARDINAL shall cease to apply pursuant to a later judgment by the courts of the Member State having jurisdiction as to the substance of the matter . ”

“ In relations between Member GPE , this Regulation shall take precedence over the following LAW in so far as they concern matters governed by this Regulation :

( e ) LAW of DATE on ORG . ”

The relevant NORP law is set out in the cases of GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) , and GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) . The role and responsibilities of the NORP local public authorities in respect of social assistance and child protection , as well as the relevant provisions of LAW ( no . CARDINAL ) , are described in the case of GPE , ( no . CARDINAL , § § DATE and DATE , CARDINAL DATE ) .

DATE . As regards the relevant NORP law , it is noted that the applicant was not represented by counsel before the NORP courts . The court was therefore obliged to give her guidance on conduct and instruction on the law ( Anleitungs- und ORG ) . Under LAW of LAW ) the courts have to inform the parties about possible contentions and applications and guide them to take the appropriate steps . The courts have to inform parties not represented by counsel about possible actions and applications and the legal consequences of each step . They have to be instructed about the actions which are favourable to them . The instruction and guidance has to be noted in the transcript of the hearing ( PERSON / GPE , PERSON CARDINAL [ Rz CARDINALff ] ) .

According to the NORP practice concerning LAW , in the Member State of enforcement there is no examination under the ordre public , there being no proceedings through which the decision is recognised and declared enforceable ( ORG , ORG ( DATE ) Art CARDINAL EuEheVO , AnmCARDINAL ) .

The enforcement of decisions on contact rights is based on section CARDINAL of the Non - Contentious Proceedings Act ( Außerstreitgesetz ) . This provision also applies to the enforcement of decisions on contact rights under LAW . Section PERSON ) , taken in conjunction with section GPE ) , provides for the imposition of fines or imprisonment as coercive measures for contempt of court . As a more lenient measure , the court may also reprimand a party or threaten to take coercive measures .

Section CARDINAL(CARDINAL ) provides that the court may refrain from continuing with the enforcement if and so long as it constitutes a risk for the well - being of the child .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

The background facts relating to the planning , conduct and dispersal of the public event at FAC are set out in more detail in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) and GPE v. GPE ( nos . CARDINAL and QUANTITY , DATE ) . The parties’ submissions on the circumstances directly relevant to the present case are set out below .

On DATE a public event entitled the “ DATE of CARDINAL ” was held in central GPE to protest against the allegedly rigged presidential elections . The event had been approved by the city authorities in the form of a march followed by a meeting at FAC which was supposed to end at TIME The march was peaceful and held without any disruptions , but when the marchers arrived at FAC it turned out that barriers installed by the police had narrowed the entrance to the meeting venue allegedly restricting the space allocated for the meeting . To control the crowd the police cordon forced the protestors to remain within the barriers . There were numerous clashes between the police and protesters . At TIME the police ordered that the meeting finish early and began to disperse the participants . It took them TIME to clear the protestors from the square .

On DATE the GPE city department of ORG opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) . On CARDINAL DATE the file was transferred to the headquarters of ORG for further investigation . On DATE an investigation was also launched into the criminal offence of organising acts of mass disorder ( Article CARDINAL § CARDINAL of LAW ) . The CARDINAL criminal cases were joined on DATE .

The applicant is a human rights activist and a lawyer of an ORG , ORG ( PERSON за гражданские права ) . On DATE he arrived at FAC to participate in the demonstration and during its dispersal kicked an unidentified police officer in the arm . After these events the applicant continued to live at his usual address and to pursue his normal activities , including taking part in authorised public events .

On DATE the applicant ’s flat was searched ; the police seized the applicant ’s clothes , domestic and international passports , other documents and his computer . On DATE the applicant was arrested on suspicion of having participated in acts of mass disorder on DATE .

On DATE ORG ordered the applicant ’s pre - trial detention until DATE on the following grounds :

“ The prosecution bodies suspect [ the applicant ] of having committed a serious offence punishable with imprisonment of over DATE .

... the court concludes that there are grounds to consider that [ the applicant ] , if at liberty , is likely to abscond from the investigation and trial , to act in person or through proxy with the aim of avoiding criminal liability , to continue [ his ] criminal activity , to destroy evidence and otherwise obstruct the investigation , which is at its initial phase .

Operational - search activities are now underway , aimed at establishing [ the applicant ’s ] possible connections with other active participants of the mass disorders which took place at FAC in GPE and its environs , therefore , if at liberty , [ he ] might co - ordinate his position with unidentified accomplices .

... No factual information excluding the detention of [ the applicant ] on health grounds has been submitted to the court . The court takes into account that [ the applicant ] may request medical assistance in the detention facility , if necessary ... ”

ORG dismissed an application by the applicant for an alternative preventive measure , such as house arrest , and stated that his state of health did not preclude him from detention . On DATE ORG upheld the detention order .

On DATE the applicant was charged with the offence laid down in LAW ( participation in mass disorder accompanied by violence ) and accused , in particular , of having kicked a police officer .

On DATE ORG extended the applicant ’s detention until DATE , having found that the circumstances that had justified the detention order had not changed . ORG dismissed the applicant ’s allegations of lack of medical assistance in the remand prison as unsubstantiated . It stated that the applicant ’s state of health was satisfactory and did not warrant his release . On DATE ORG upheld the extension order .

On DATE GPE extended the applicant ’s detention until DATE on essentially the same grounds as earlier . On CARDINAL DATE ORG upheld the extension order .

On DATE ORG examined a new application for an extension of the applicant ’s pre - trial detention . The applicant complained of exacerbation of chronic diseases in detention . He asked to be released on bail and presented personal guarantees from CARDINAL prominent public figures , including a human - rights activist , who vouched for him . On DATE ORG extended the applicant ’s detention until DATE . It considered that a milder preventive measure , including release on bail , would not prevent the applicant from obstructing the proper administration of justice . The applicant ’s allegations in respect of the deterioration of his health were dismissed ; the court relied on the medical statement from the remand prison , according to which his health was satisfactory . On DATE ORG upheld the extension order .

On DATE the applicant ’s criminal case was transferred to the ORG of GPE for the determination of criminal charges .

On DATE that court granted another extension of the applicant ’s detention , until DATE . The decision concerned CARDINAL defendants . Along with the seriousness of the charges , the court based its decision on the findings that “ the reasons which had initially warranted the detention have not changed ” and that “ no other measures of restraint would secure the aims and goals of the judicial proceedings ” . ORG upheld this extension order on DATE .

On DATE the ORG of ORG examined the supervisory appeal lodged by the Ombudsman of GPE . It rectified the extension orders of DATE and DATE , and DATE and DATE as well as ORG decision of DATE . The ORG found that the applicant ’s detention had been unjustified and that the detention orders had not been supported by relevant facts ; it also took account of his worsening health . The ORG lifted the detention order and placed the applicant under the house arrest until DATE under the following conditions : prohibition from leaving his house or changing his place of residence ; prohibition from communicating with co - defendants and witnesses ; prohibition from sending and receiving correspondence ; prohibition from using any means of communication . On DATE the applicant was released from pre - trial detention .

On DATE ORG extended the applicant ’s house arrest until DATE . It referred to the seriousness of the charges and considered that as a human - rights activist the applicant could communicate with different authorities and persons and thus obstruct the course of criminal proceedings . On DATE ORG upheld this decision on appeal .

On DATE ORG passed LAW , which exempted people suspected and accused of criminal offences under LAW and CARDINAL of LAW from criminal liability .

On DATE the applicant applied for the termination of the criminal proceedings against him under LAW . On DATE the Zamoskvoretsky District Court granted his application and lifted the house arrest .

Prior to his detention , the applicant was diagnosed with an organic lesion of the central nervous system , hypertensive syndrome , tonsillitis , chronic gastritis , atopic dermatitis , osteochondrosis and dorsopathy ( back pain ) . According to the applicant , these diseases required regular medical supervision , diet and lifestyle adjustments .

From DATE to CARDINAL DATE the applicant was held in remand prison GPE in GPE . Upon his admission to the prison he underwent a health check which revealed no health issues except atopic dermatitis and scoliosis . The applicant provided the detention facility with his medical records which stated his chronic ailments .

On DATE the applicant underwent a medical examination by a general practitioner ( “ GP ” ) . He was diagnosed with vegetative - vascular dystonia , dorsopathy , osteochondrosis , kyphoscoliosis , and first- or seconddegree obesity . He received a prescription for a special diet limiting intake of fats and quickly - absorbed carbohydrates .

The applicant was subsequently examined by a ORG on DATE , DATE and CARDINAL DATE , and DATE , CARDINAL and DATE , and DATE . The examinations revealed no negative dynamics in the state of the applicant ’s health ; the prescriptions for the special diet were renewed each time .

NORP By letter of CARDINAL DATE the head of the GPE informed the applicant ’s father that chronic gastritis was not on the list of diseases which allow patients to receive additional nutrition .

On DATE the applicant ’s lawyer complained to the prison chief of the deterioration of his client ’s health , in particular , of his regular headaches , back pain and weight - gain . He alleged that the applicant had put on QUANTITY over DATE in detention and requested an inpatient medical examination .

On DATE the applicant was examined by a neurologist and received a prescription for treatment in relation to vegetative - vascular dystonia . At the regular check - up by a GPE on DATE the applicant stated that his condition had improved ; he was recommended to continue the prescribed treatment .

On DATE the applicant ’s lawyer reiterated his application for a medical examination and asked to give the applicant access to a gym .

On DATE a medical commission composed of a ORG , an infection specialist , a surgeon and CARDINAL administrators examined the applicant and his medical history . In addition to the previous diagnoses , they established chronic liver disorder and recommended that he continue the special diet .

On DATE the applicant was temporarily transferred to the medical wing of IZ-CARDINAL/CARDINAL . Upon his admission he was found to be suffering from second- or third - degree obesity ( at this stage he weighed QUANTITY and was QUANTITY in height ) and was prescribed the same diet as before .

In IZ-CARDINAL/CARDINAL the applicant underwent series of medical examinations and tests , including an abdominal ultrasound , a thyroid echography , an electrocardiogram , roentgenofluorography , X - ray examinations of his skull and spine , and blood tests . He was regularly examined by a ORG who adjusted the treatment according to the results of the tests . The applicant also had a consultation with a dermatologist .

NORP The public commission for the monitoring of detention facilities visited the applicant on CARDINAL and DATE and CARDINAL DATE . According to the journal of their visits , the applicant did not complain of inadequate medical assistance in IZ-CARDINAL/CARDINAL .

The discharge summary ( выписной эпикриз ) from the medical wing of IZ-CARDINAL/CARDINAL , issued on CARDINAL DATE , contained the results of the applicant ’s medical examinations . He was diagnosed with osteochondrosis , dorsopathy , fatty liver , hypercholesterolemia , vegetative - vascular dystonia , acne and first - degree obesity . The applicant received a prescription for physiotherapy and a special diet ; he was also recommended to undergo a magnetic resonance imaging procedure in relation to a suspected cerebral condition , which had to be carried out in a different hospital equipped with the appropriate scanning device . On DATE the applicant was transferred back to IZCARDINAL/CARDINAL .

On DATE the applicant lodged a complaint about the authorities’ failure to carry out his medical examination to ORG of GPE . On DATE the ORG refused to examine this complaint .

The magnetic resonance imaging procedure had not been carried out before the applicant ’s release from the detention facility on DATE .

After release the applicant had a medical examination at the town hospital and a consultation with a prominent gastroenterologist . The doctor confirmed the applicant ’s previous diagnoses related to the digestive system and prescribed him medical treatment , a special diet and physical exercise .

The applicant ’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of GPE ( cited above , § § CARDINAL ) .

On DATE court proceedings began in hearing room no . CARDINAL and at DATE moved to hearing room no . CARDINAL of ORG . The defendants , including the applicant , were held in glass cabins in both hearing rooms , as described in GPE ( cited above , § § DATE ) . From DATE the applicant was no longer placed in the glass cabin owing to a change in the measure of restraint for him .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Conviction;Criminal offence)

Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and is currently detained in the centre for persons in preventive detention on the premises of FAC ( hereinafter the “ PERSON preventive detention centre ” ) .

DATE , the applicant was convicted by the criminal courts CARDINAL times . He was found guilty of sexual assault of a DATE girl and attempted rape of a DATE girl , committed under the influence of alcohol , and of attempted sexual acts with a DATE boy . He was found to have committed other unlawful acts , including arson and strangulating a DATE boy during a burglary , but was not held criminally liable because he had been drunk . He was sentenced , in particular , to terms of imprisonment ranging from DATE .

On DATE ORG convicted the applicant of CARDINAL counts of attempted murder , combined with attempted rape in CARDINAL case , and of CARDINAL counts of dangerous assault . It sentenced him to CARDINAL years’ imprisonment and ordered his preventive detention under LAW § CARDINAL of LAW ( see paragraph DATE below ) .

ORG found that DATE and DATE , the applicant had stabbed a DATE female cyclist in the back in a life - threatening manner for sexual gratification ; had stabbed a male cyclist he had mistaken for a woman twice in the back and at the temple , again for sexual gratification ; and had stabbed a twentythree CARDINAL woman CARDINAL times in a life - threatening manner in an attempt to rape her . He had committed those offences under the influence of alcohol in a park in GPE . Still drunk , he had then broken into a house , strangulated a DATE girl and had injured her with a knife below the waist for sexual gratification . He was arrested on DATE .

Having consulted CARDINAL medical experts , ORG found that at the time of committing the offences , the applicant had been in a state of diminished criminal responsibility ( LAW , see paragraph CARDINAL below ) . He was diagnosed with sexual deviance , a personality disorder and psycho - organic syndrome , which was probably a consequence of his longstanding alcohol abuse . As long as the applicant did not drink alcohol , those abnormalities did not affect his criminal responsibility as he was able to control his aggression . However , combined with the consumption of alcohol , they led to his criminal responsibility being diminished .

ORG decided to order the applicant ’s preventive detention under LAW of LAW . It considered that as a result of his personality disorder , the applicant had a propensity to commit serious offences which seriously harmed the victims both physically and mentally . As confirmed by the CARDINAL medical experts , there was a high risk that if released , the applicant would commit further violent offences for sexual gratification under the influence of alcohol , similar to those of which he had been found guilty . He therefore presented a danger to the general public .

Lastly , ORG decided not to order the applicant ’s detention in a psychiatric hospital under LAW ( see paragraph CARDINAL below ) . The court endorsed the experts’ finding that the applicant ’s personality disorder could no longer be treated because his sexually deviant aggressive behaviour had lasted for DATE and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity . Public security could therefore be better safeguarded by placing the applicant in preventive detention .

NORP The applicant served his full term of imprisonment , and on DATE he was placed for the first time in preventive detention , for which he was held in a wing of GPE prison . By DATE he had served DATE in preventive detention .

The courts responsible for the execution of sentences ordered the continuation of the applicant ’s preventive detention at regular intervals . In particular , ORG ordered the continuation of his detention on CARDINAL DATE and DATE .

On DATE ORG , sitting as a chamber responsible for the execution of sentences , ordered the continuation of the applicant ’s preventive detention . ORG further ordered FAC authorities to offer the applicant , within DATE on which its decision became final , a specific anti - hormonal therapy with medication aimed at reducing his sadistic fantasies and his libido , and thus his dangerousness . The court had consulted ORG authorities and the prosecution and had heard the applicant in person as well as his counsel , who represented him throughout the proceedings before the domestic courts .

ORG considered that the requirements for ordering the continuation of the applicant ’s preventive detention laid down in the second sentence of section CARDINALf(CARDINAL ) of LAW to LAW ( see paragraph CARDINAL below ) had been met .

ORG confirmed that the said transitional provision was applicable to the applicant ’s case . It noted that at the time of his last offence on DATE , the applicant ’s first placement in preventive detention could not exceed DATE . It was only following the entry into force of ORG and Other LAW on DATE ( see paragraph CARDINAL below ) that the courts responsible for the execution of sentences could prolong preventive detention without any maximum duration . The applicant therefore fell within the category of detainees whose preventive detention had been prolonged retrospectively , as defined by ORG in its judgment of CARDINAL DATE ( see paragraphs CARDINAL below ) . ORG further noted that the second sentence of section CARDINALf(CARDINAL ) of LAW to LAW had regard to , and had taken up , the standards set up by ORG in the above - mentioned judgment for the continuation of retrospectively ordered or retrospectively prolonged preventive detention .

ORG considered that , in accordance with section CARDINALf(CARDINAL ) of LAW to LAW , the applicant suffered from a mental disorder for the purposes of LAW ( see paragraph CARDINAL below ) . It endorsed the findings made on that point by PERSON , an external psychiatric expert it had consulted , in his report dated DATE . The expert had been obliged to draw up his report on the basis of the case files as the applicant had refused to be examined . Expert PERSON had confirmed that the applicant suffered from sexual sadism , a sexual deviance , and was addicted to alcohol , even though he had not drunk since being detained . ORG stressed that expert PERSON ’s assessment confirmed the findings made by a number of previous experts , notably those made in DATE and DATE by CARDINAL experts who had diagnosed the applicant with a sexual preference disorder with sadomasochistic , fetishist and paedophiliac elements and with an alcohol addiction without current consumption of alcohol .

Furthermore , ORG found that , as required by section CARDINALf(CARDINAL ) , second sentence , of LAW to LAW , there was still a very high risk that , owing to specific circumstances relating to his personality and his conduct , the applicant would if released commit the most serious sexually motivated violent offences , similar to those of which he had been convicted . Endorsing the findings of expert PERSON , in accordance with the above - mentioned previous expert reports , the court noted that the applicant had admitted to his sadistic fantasies but had been unable to address them through therapy . In FAC , he had stopped participating in any activities for persons in preventive detention . The ORG stressed that , in his assessment of the applicant ’s dangerousness , the expert had taken into consideration his advanced age of DATE . However , he had convincingly explained that the applicant ’s sexual deviance had not yet been considerably alleviated thereby . Furthermore , his alcohol addiction had not yet been treated adequately . However , the consumption of alcohol further increased the high risk that the applicant would commit sexual or violent offences again if released .

ORG considered that the prolongation of the preventive detention of the applicant , who had been detained for DATE , was still proportionate in view of the considerable threat he posed to the public . It noted in that context that the applicant ’s detention in a supervised residence , which it had suggested in its previous decision , was not possible in practice .

As regards the order issued by ORG , based on LAW , read in conjunction with LAW § CARDINAL sub - paragraph CARDINAL of LAW ( see paragraphs DATE and DATE below ) , that FAC authorities offer the applicant specific anti - hormonal therapy , the court found that that order was necessary to guarantee the applicant sufficient care while in preventive detention . Expert PERSON had stressed – as he had already done in DATE that the prison authorities must at least attempt to treat the applicant , who was willing to undergo treatment with medication . The anti - hormonal therapy to be offered had proved to diminish sadistic fantasies and the libido , and could therefore reduce the applicant ’s dangerousness .

On DATE the applicant lodged an appeal against ORG decision , for which he submitted reasons on DATE . He argued , in particular , that his preventive detention , a penalty which had been prolonged retrospectively , failed to comply with the Convention .

On DATE ORG dismissed the applicant ’s appeal . Endorsing the reasons given by ORG , it confirmed that the requirements laid down in section CARDINALf(CARDINAL ) , second sentence , of LAW to LAW for ordering the continuation of the applicant ’s preventive detention had been met .

Taking into account the report submitted by expert PERSON , ORG held that the applicant was suffering from a mental disorder as defined in section CARDINAL(CARDINAL ) of LAW . Referring to ORG case - law ( see paragraphs CARDINAL below ) , it found that a mental disorder under that Act did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles DATE of LAW ( see paragraphs CARDINAL below ) . Specific disorders affecting a person ’s personality , conduct , sexual preference and control of impulses were covered by the notion of “ mental disorder ” in section CARDINAL(CARDINAL ) of LAW . The applicant ’s sexual sadism and his alcohol addiction without current consumption of alcohol amounted to a mental disorder within the meaning of that provision .

NORP Moreover , there was still a very high risk that , if released , the applicant would commit the most serious violent and sexual offences , similar to those of which he had been convicted , owing to specific circumstances relating to his personality and his conduct . The applicant ’s dangerousness had not been reduced through therapy ; nor had he become less dangerous by his advancing age . He currently did not participate in any serious therapeutic activities and kept trivialising his offences . Moreover , expert PERSON had confirmed that his mental illness was difficult to treat . ORG further endorsed ORG finding that the applicant ’s continued detention was still proportionate , despite the considerable overall length of his detention .

On DATE the applicant lodged a constitutional complaint with ORG against the decisions of ORG and ORG . He claimed that the order for the continuation of his preventive detention violated his constitutional right to liberty , read in conjunction with the constitutional right to protection of legitimate expectations guaranteed in a ORG governed by the rule of law .

The applicant argued that under ORG Rights’ well - established case - law ( he referred to PERSON GPE , no . CARDINAL , ECHR DATE ) , the retrospective prolongation of a person ’s preventive detention DATE a penalty DATE beyond the former DATE time - limit breached the prohibition on retrospective punishment under LAW and did not comply with sub - paragraph ( a ) of LAW . Moreover , his continuing preventive detention could not be justified under sub - paragraph ( e ) of LAW either . He did not suffer from a mental disease as required by that provision . In addition , the notion and scope of “ mental disorder ” under the applicable provisions of domestic law and in the domestic courts’ case - law was unclear .

The applicant further stressed that ORG had recommended his placement in a supervised residence . In those circumstances , his continued preventive detention on the LOC of FAC was no longer proportionate . He conceded , however , that his detention in the new preventive detention centre on the LOC of FAC complied with the constitutional requirement to differentiate between preventive detention and detention for serving a term of imprisonment .

On DATE ORG declined to consider the applicant ’s constitutional complaint without giving reasons ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .

On DATE ORG , civil section , ordered the applicant ’s placement in ORG under LAW . It found that the applicant suffered from a mental disorder for the purposes of LAW and that there was a high risk that , if released , he would commit further serious offences . On DATE ORG quashed that decision on the grounds that detention under LAW could only be ordered once the preventive detention of the person concerned had been terminated by a final decision .

On DATE ORG , in a decision reviewing the continuation of the applicant ’s preventive detention , ordered the continuation of the applicant ’s preventive detention . It noted that the applicant had repeatedly refused treatment with medication to diminish his libido .

On DATE ORG , having consulted medical expert PERSON , again ordered the continuation of the applicant ’s preventive detention under Article CARDINAL § CARDINAL of LAW , read in conjunction with section CARDINALf(CARDINAL ) , second sentence , of LAW to LAW ( see paragraphs CARDINAL below ) . On DATE ORG dismissed an appeal lodged by the applicant against the decision of ORG .

Until DATE the applicant had been held in preventive detention in a wing of FAC . He had participated in therapy with a psychologist DATE , but had then stopped that therapy . He had refused to participate in the alcohol addiction treatment programme offered to him or any other treatment measures .

On DATE the applicant was transferred with his consent to a wing of FAC for persons in preventive detention where a transitional concept had been adopted . The aim was to improve the available treatment options in the light of the duty to differentiate preventive detention and detention for serving a term of imprisonment , by reference to ORG Rights’ judgment in PERSON v. GPE ( cited above ) and ORG judgment of CARDINAL DATE ( see paragraphs CARDINAL below ) . The applicant participated in group therapy sessions run by a doctor and in a social skills training course . He stopped attending the group for addicts and refused to take medication to reduce his libido for fear of side effects .

Since DATE the applicant has been detained in the new PERSON centre for persons in preventive detention , a separate building constructed on the premises of FAC .

NORP The conception of preventive detention in the centre was developed in order to comply with the constitutional requirement to differentiate between preventive detention and imprisonment , as defined in ORG judgment of CARDINAL DATE ( see CARDINAL and DATE below ) and as further specified in the newly enacted Article CARDINALc of LAW and in FAC ( see DATE , CARDINAL and CARDINAL below ) .

Up to CARDINAL persons can be detained in the PERSON centre . Detainees are placed in apartment units measuring QUANTITY containing CARDINAL furnished rooms and a bathroom . With the exception of detainees posing a particular security risk , the detainees can move freely within the preventive detention building and on its outdoor LOC from CARDINAL TIME They may furnish and paint their rooms , to which they have their own keys . The rooms are equipped with a controlled access to the internet including e - mail , telephone , television , CD and DVD player and radio . There are common rooms for residential groups consisting of CARDINAL detainees , which include a kitchen , a dining room , a television room and rooms for games , handicraft work and exercise . The outdoor LOC , measuring QUANTITY , can be used for sports , recreation or gardening .

Persons in preventive detention in the PERSON centre may wear their own clothes . They can either take meals prepared by the centre ’s staff or prepare their own meals ( in which case they receive an allowance for purchasing food in the centre ’s supermarket ) . Persons in preventive detention may work , but are not obliged to do so . They may receive visits regularly .

According to information furnished by the ORG , at the relevant time the applicant was CARDINAL of CARDINAL persons detained in the PERSON preventive detention centre . In order to comply with the duty to provide the necessary therapy and care and to motivate detainees to participate in the relevant therapies and treatment , the centre ’s staff comprised CARDINAL psychiatrist , CARDINAL psychologists , CARDINAL social workers and CARDINAL members of the general prison service . The staffing situation was similar to that of ORG , situated in the same Land and where persons were detained under LAW .

Detainees are examined at the beginning of preventive detention in order to determine the necessary therapy and care . A personal treatment plan ( NORP ) is then drawn up .

According to the personal treatment plan drawn up for the applicant by the PERSON centre on DATE , it was noted that in the past , from DATE until DATE , the applicant participated in group sessions aimed at preventing detainees from relapsing into excessive alcohol consumption . He then stopped attending the meetings . He also regularly participated in group sessions at which detainees discussed their experiences during leave from detention . He stopped participating in those meetings in DATE too , arguing that the participants were not granted sufficient additional leave . In addition , he had motivation meetings with a psychologist DATE until DATE , when he stopped attending the meetings , alleging that the psychologist lacked experience . He took part in DATE residential group meetings from DATE until DATE , when he stopped attending the meetings , arguing that his treatment plan did not meet his expectations . He did not take part in any structured leisure activities and spent most of DATE alone watching television . He declined repeated invitations to take part in group sessions of the treatment programme for offenders . Thus , as from DATE the applicant no longer participated in any therapy measures . He proved reliable during leave from the detention centre under escort on a number of occasions .

According to the PERSON centre ’s treatment plan for the applicant of DATE and an internal note from a staff member of the centre , the applicant has refused regular and repeated offers to start a treatment with medication to reduce his libido , which had been recommended by expert PERSON in DATE , for fear of side effects . In DATE he showed willing for the first time to take up such treatment .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in DATE and is currently detained in LOC .

On DATE an investigation was opened against the applicant for embezzlement , forgery and abuse of his official position as Minister for Agriculture . The criminal investigation ended on DATE with the applicant ’s indictment together with CARDINAL other co - accused .

On DATE the applicant was convicted of the above - mentioned crimes by ORG and ORG and sentenced to DATE imprisonment .

On CARDINAL DATE the applicant ’s appeal against the above - mentioned judgment was rejected with final effect by a CARDINAL - judge panel of ORG and ORG . The full text of the judgment became available to the applicant on DATE .

The applicant started serving his sentence in FAC on CARDINAL DATE . On DATE he was transferred to LOC where he is currently serving his sentence . On admission to prison , the applicant was already suffering from type NORP diabetes , which was being treated with insulin , hypertension , ischaemic heart disease , biliary lithiasis and lumbar discopathy .

According to the report drawn up on the applicant ’s arrival in FAC on CARDINAL DATE the applicant was allowed to take with him to his cell , among other items , CARDINAL glucometer with CARDINAL test strips and needles as well as several drugs .

During his DATE stay in FAC the applicant was taken to the medical ward CARDINAL times . He was given a special diet for diabetics and was allowed to work . He was taken to diabetes specialists outside the prison system on several occasions where he was prescribed a special diet , medication and constant self - monitoring of his glycaemia level . According to the applicant ’s medical chart in FAC his glycaemia levels were measured CARDINAL , CARDINAL times per day at the prison ’s infirmary . Copies of the same medical chart also show that the applicant regularly received medication from the prison infirmary . On DATE his signature confirmed the receipt of CARDINAL drugs including vitamin C and omega CARDINAL .

Forensic medical examinations conducted in DATE and DATE concluded that the applicant ’s diseases could be treated within the prison system .

In LOC the applicant was examined at the prison ’s infirmary CARDINAL times DATE . In addition , he was taken for specialist diabetes and nutrition examinations at ORG CARDINAL times between CARDINAL DATE and CARDINAL DATE .

According to the Government ’s submissions and copies of the applicant ’s medical chart , throughout his detention in LOC the applicant was given , as needed and according to ORG prescriptions , insulin and drugs for his hypertension as well as neurotrophic , gastric protective , hypercholesterol and other drugs .

According to the information provided by ORG the applicant made no complaints concerning his medical treatment . On DATE the applicant ’s lawyer was informed that the complaint against the applicant ’s placement in the closed prison regime had been rejected . On DATE the applicant ’s lawyer was informed by ORG administration that the applicant could not be compensated for the work he had performed in detention with permission to leave the prison .

The applicant alleged that he had been transported in conditions which had not allowed him to take his insulin . In addition , the food provided during transport had not been adapted to his diabetes . The vehicles in which he had been transported lacked air conditioning and other prisoners had been smoking during the trips .

From the Government ’s submissions it appears that the applicant was transferred CARDINAL times between detention facilities , to the hospital or to the courts , in special vehicles ( ORG , ORG or ORG vans ) which were well - maintained and met the legal comfort requirements . They were fitted with windows , lights , heating and sunroofs . Some of them also had air - conditioning . The number of detainees transported never exceeded the number of available seats . Detainees were provided with food and water during transfers , and were allowed bathroom breaks . Smoking was strictly prohibited in the vehicles .

According to the information provided by ORG , the applicant was allowed to take with him his personal glycaemia kit and medication and was therefore able to measure his glycaemia . Moreover , during long drives a number of breaks were taken allowing the applicant to administer his treatment . As regards the food received during transport , the applicant was provided with a diabetic menu as follows : during transport to and from ORG the applicant received QUANTITY of biscuits , QUANTITY of cheese , CARDINAL egg and QUANTITY of bread ; during transport to and from FAC the applicant received QUANTITY of unsalted cheese , CARDINAL eggs , QUANTITY of processed poultry meat , QUANTITY of semi - white bread and QUANTITY of apples . Copies of the prison menus were submitted in support of these assertions .

According to the prison visits record the applicant often received food packages which included sweets , fruits and vegetables as well as bottles of juice , all of which he was allowed to take with him during transport .

The Government submitted that the prison authorities had received no complaints or requests from the applicant in connection with the conditions of transport .