André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lived in GPE . He is represented before the ORG by Mr PERSON ORG , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG . ORG did not make use of their right to intervene under LAW .

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

NORP The applicant and ORG are the parents of PERSON , born on CARDINAL DATE out of wedlock . The parents were married on CARDINAL DATE and PERSON thereby acquired the status of having been born in wedlock with both parents having joint custody of him . On DATE ORG applied to ORG for sole custody of PERSON and announced that she was planning a divorce . She stated that the child ’s best interests would not be guaranteed if she stayed with the applicant . ORG then moved out of the flat , together with PERSON The parents were divorced on DATE . After the divorce the parents maintained joint custody of their child , even though PERSON was living with his mother .

On DATE the applicant lodged an application seeking that he be awarded sole custody of PERSON He argued that ORG tried to alienate the child from him and that she actually failed to fulfil her parental duties . On DATE ORG appointed an expert in respect of the question of custody .

On DATE the expert submitted her report . She concluded that , provided that adequate contact between PERSON and the applicant was ensured , it was in the interests of the well - being of PERSON that custody of him be awarded to ORG In the event that the court were to grant joint custody , the principal residence of PERSON should be with his mother .

On DATE the applicant and ORG reached an agreement on the applicant ’s contact rights in respect of PERSON before ORG . That agreement was modified on DATE .

On DATE PERSON reiterated her application for sole custody , stating that the applicant avoided any communication with her and that she could not see how DATE given this fact DATE joint custody was practicable or feasible .

On DATE ORG awarded ORG sole custody and based this decision on the recommendation of a psychological expert . Moreover , the court referred to the fact that PERSON , who was living with his mother , had stated that he wished to continue to do so and had shown a strong emotional link to her . ORG furthermore noted that the applicant had not respected the agreement on contact rights and had on various occasions visited PERSON at DATE conduct which could increase the psychological strain on PERSON and could entail a risk to the wellbeing of the child if joint custody were to be maintained . Since it was not possible under LAW to maintain joint custody after a divorce if the parents did not agree on it the court had to award sole custody , which , for the reasons set out above , had to be granted to ORG

On DATE the applicant appealed . He argued that the proceedings had been defective because an additional expert report should have been ordered . He furthermore argued that Article CARDINALa of LAW was unconstitutional and in violation of his LAW rights and asked ORG to apply to ORG for judicial review of the constitutionality of this provision .

On DATE the ORG dismissed the applicant ’s appeal and upheld the reasoning of ORG . It held in particular that there was no indication of a risk to the child ’s best interests if ORG were to hold sole custody of PERSON The applicant had not submitted sufficient reasons for custody not to be granted to ORG , as the mere fact that she was assisted in caring for PERSON by her mother and the fact that PERSON was having difficulties in adapting to his new kindergarten did not cast any doubt on the capacity of ORG to care for PERSON In so far as the applicant made further allegations of misconduct on the part of the mother without offering any evidence , such allegations were not sufficient to necessitate the supplementing of the expert report in the file . The court furthermore held that there were no concerns in terms of constitutional law regarding the fact that it was not possible to maintain joint custody after a divorce if the parents did not agree on it ; thus , it held that the transfer of custody rights was only possible in the event that the child ’s best interests were at risk . The court noted , moreover , that the present case was not comparable with the case of ORG v GPE ( no . CARDINAL , DATE ) , since PERSON had been born in wedlock and the parents had held joint custody in the past . In such a case neither of the parents held a privileged position as regards the award of custody , and LAW was therefore not discriminatory . In any event there was no room for dismissing the application for sole custody lodged by ORG , as the applicant himself had also lodged an application for sole custody and the court therefore had to decide .

On DATE ORG rejected the applicant ’s extraordinary appeal since it did not raise any important questions of law . Moreover , ORG found that the ORG ’s judgment in the case of ORG v GPE had to be distinguished from the present case because the underlying facts were fundamentally different . ORG had concerned custody of a child born out of wedlock ( in which case LAW did not provide for joint custody but granted sole custody of the child to the mother ) ; in the present case , PERSON had been born in wedlock , so the parents had initially had joint custody , but that arrangement had failed and as a consequence the courts had had to grant sole custody to CARDINAL of the parents . That decision was served on the applicant on CARDINAL DATE .

Following the DATE amendment to LAW , which entered into force on DATE , the applicant did not lodge an application for joint custody of PERSON According to a statement by the local youth office ( ORG ) of CARDINAL DATE , the applicant no longer availed himself of his right to visit PERSON as he had moved to GPE on an unspecified date .

Article CARDINAL and CARDINALa of LAW , as in force at the material time , read as follows :

“ ( CARDINAL ) If the marriage of the parents of a minor legitimate child is dissolved or annulled , the custodial rights of both parents remain intact . However , they may present an agreement to the court DATE even modifying an existing agreement – regarding custodial responsibility . In this connection it may be agreed that CARDINAL parent alone or both parents shall have custody . Where both parents have custodial powers , those of CARDINAL parent may be limited to specific matters .

( CARDINAL ) Where both parents have custody , they must submit an agreement to the court regarding the parent with whom the child is to stay primarily . This parent must always be put in charge of all custodial matters .

( CARDINAL ) The court must approve the agreement of the parents if it serves the interests of the child . ”

“ ( CARDINAL ) If an agreement in accordance with LAW on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled , or if it is incompatible with the interests of the child , the court must decide which parent shall henceforth have sole custody , if all attempts to reach an amicable solution fail .

( CARDINAL ) NORP If both parents have custody under LAW after their marriage has been dissolved or annulled , and if one parent applies for the withdrawal of that custody , the court must decide which parent shall have sole custody , if all attempts to reach an amicable solution fail . ”

The relevant provisions of LAW were amended significantly on DATE . The relevant sections read as follows :

“ ( CARDINAL ) If the marriage or the common household of the parents is dissolved , joint custody is maintained . They can , however , conclude an agreement before a court under which CARDINAL parent is entrusted with sole custody , or the custody of CARDINAL parent is limited to certain matters .

( CARDINAL ) ) In the case that both parents have joint custody after the dissolution of their marriage or the common household , [ the parents ] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for . ”

“ ( CARDINAL ) Provided that it is in the best interests of the child , the court has to decide on the provisional regulation of parental responsibility ( “ the phase of provisional parental responsibility ” ) , if

after the dissolution of the marriage or the common household the parents can not concur on an agreement , pursuant to section CARDINAL , within a reasonable time limit , or

CARDINAL parent applies for sole custody or his / her participation in custodial rights .

( CARDINAL ) After [ the phase of provisional responsibility , which lasts DATE ] , the court has to take a final decision on custody ( on the basis of what transpired during the phase of provisional parental responsibility ) – including payment of statutory maintenance – [ which is in the best interests of the child . ] ... If the court awards joint custody , it also has to decide in whose household the child will predominantly be cared for . ”


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Ganna Yudkivska;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE . When he lodged his application he was being detained in FAC , GPE . He now lives in GPE /Surami , GPE .

On TIME of DATE the applicant and an unidentified accomplice robbed PERSON and NORP , CARDINAL NORP nationals , in the women ’s apartment in GPE .

The perpetrators were aware that the apartment was used for prostitution and expected its CARDINAL female occupants to keep valuables and cash there . They passed by the apartment in TIME in order to make sure that no clients or a procurer were present . Shortly afterwards they returned and overpowered PERSON , who had answered the doorbell . The applicant pointed a gas pistol which resembled a real gun at both women and threatened to shoot them if they did not disclose where their money was kept . While his accomplice watched over the women , the applicant partly collected in the apartment and partly forced the women to hand over to him QUANTITY ( ORG ) and CARDINAL mobile phones .

On DATE the applicant , acting jointly with several accomplices , robbed O. and P. , CARDINAL female NORP nationals who were temporarily resident in GPE and working as prostitutes , in their apartment in PERSON .

On TIME the offence , CARDINAL of the applicant ’s co - accused had passed by O. and P. ’s apartment in PERSON together with an accomplice , NORP , an acquaintance of NORP and P. They intended to verify whether the CARDINAL women were the apartment ’s only occupants and whether they kept any valuables there , and discovered a safe in the kitchen .

On DATE at TIME the applicant and a further accomplice , PERSON , gained access to O. and P. ’s apartment by pretending to be potential clients , while CARDINAL of their co - accused waited in a car parked close to the apartment building and another waited in front of the building . Once inside the apartment B. produced a knife that he had been carrying in his jacket . P. , in order to escape from the perpetrators , jumped from the balcony located QUANTITY off the ground and ran away . The applicant jumped after her but abandoned the chase after TIME when some passers - by appeared nearby on the street . He then called the co - accused who had been waiting in front of the women ’s apartment building on his mobile phone and told him that one of the women had jumped from the balcony and that he had unsuccessfully chased her . The applicant agreed on a meeting point with his co - accused where they would pick him up by car once PERSON had left the crime scene and joined them .

In the meantime inside the apartment , PERSON , after having overpowered O. , threatened to kill her with his knife if she did not disclose where the women kept their money or if she refused to open the safe for him . Fearing for her life , PERSON opened the safe , from which B. removed LAW , and also handed over the contents of her wallet , LAW . B. left the apartment at TIME , taking the money and P. ’s mobile telephone as well as the apartment ’s landline telephone with him , and joined the coaccused . The coaccused and PERSON then picked up the applicant at the agreed meeting point in their car . At TIME O. in the apartment .

O. and PERSON gave an account of the events to their neighbour E. the morning after the offence . They then left their PERSON apartment out of fear and stayed for DATE with their friend PERSON , one of the victims of the offence committed in GPE , to whom they had also described the offence in detail DATE after it occurred .

On DATE L. informed the police of the offence committed against O. and P. in PERSON . CARDINAL DATE O. and PERSON were repeatedly questioned by the police as to the events of CARDINAL and QUANTITY DATE . In those interviews they described the course of events as set out above . The police , having checked O. and P. ’s papers , found their residence and occupation in GPE to be in compliance with NORP immigration and trade law .

As the witnesses had explained during their police interviews that they intended to return to GPE in DATE to come , on DATE the prosecution asked the investigating judge to question the witnesses in order to obtain a true statement which could be used at the subsequent trial ( “ eine[r ] i m späteren PERSON ] wahrheitsgemäße[n ] Aussage ” ) .

Thereupon , on DATE , O. and P. were questioned by an investigating judge and again described the course of events as set out above . At that time , the applicant had not yet been informed about the investigation proceedings initiated against him , so as not to put the investigation at risk . No warrant for his arrest had yet been issued and he was not yet represented by counsel . The investigating judge excluded the applicant from the witness hearing before him in accordance with LAW ( see paragraph CARDINAL below ) since he was concerned that the witnesses , whom he had found to be considerably shocked and distressed by the offence , would be afraid of telling the truth in the applicant ’s presence . The witnesses confirmed at that hearing that they intended to return to GPE as soon as possible .

Witnesses O. and PERSON returned to GPE shortly after that hearing . The applicant was subsequently arrested on DATE .

The Göttingen Regional Court summoned NORP and P. by registered mail to appear at the trial on DATE . However , both witnesses refused to attend the hearing before ORG , relying on medical certificates dated DATE which indicated that they were in an unstable , post - traumatic emotional and psychological state .

On DATE ORG therefore sent letters by registered mail to both witnesses informing them that the court , while not being in a position to compel them to appear at a court hearing in GPE , nonetheless wished to hear them as witnesses at the trial . The court stressed that they would receive protection in GPE and that all costs incurred in attending the hearing would be reimbursed and , proposing several options , asked in what circumstances they would be willing to testify at the trial . While an acknowledgement of receipt was returned for both letters , no response was obtained from PERSON , for her part , informed ORG in writing that she was still traumatised by the offence and would therefore neither agree to appear at the trial in person nor would she agree to testify by means of an audio - visual link . O. further stated that she had nothing to add to the statements she had made in the course of the interviews carried out by the police and the investigating judge in DATE .

ORG nevertheless decided to request legal assistance from the NORP authorities under LAW of DATE , as supplemented by ORG between the Member States of ORG of CARDINAL DATE ( see paragraphs CARDINAL - CARDINAL below ) , taking the view that O. and P. were obliged under NORP law to appear before a court in GPE following a request for legal assistance . It asked for the witnesses to be summoned before a court in GPE and for an audio - visual link to be set up in order for the hearing to be conducted by the presiding judge of ORG ( audiovisuelle GPE ) . It considered , by reference to LAW ( d ) of the LAW , that defence counsel and the accused , just like the judges and the prosecution , should have the right to put questions to the witnesses for the first time .

NORP However , the witness hearing of O. and P. scheduled by the competent NORP court for DATE was cancelled shortly before that date by the presiding NORP judge . The latter found that the witnesses , again relying on medical certificates , had demonstrated that they were still suffering from post - traumatic disorder as a consequence of the offence and that further confrontation with the events in PERSON would risk aggravating their condition . O. had further claimed that , following threats by the accused , she feared possible acts of revenge .

NORP By letter dated DATE ORG , which had obtained copies of the medical certificates the witnesses had submitted to the NORP court at ORG request , informed its NORP counterpart that , according to the standards of NORP criminal procedure law , the witnesses had not sufficiently substantiated their refusal to testify . The court suggested to the competent NORP judge that the witnesses be examined by a public medical officer ( ORG ) or , alternatively , that they be compelled to attend the hearing . The letter remained unanswered .

By decision of CARDINAL DATE ORG , dismissing an objection to the admission of the witnesses’ pre - trial statements raised by counsel for CARDINAL of the co - accused , ordered that the records of O. and PERSON ’s interviews by the police and the investigating judge be read out at the trial in accordance with LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) . It considered that , as required by the said provisions , there were insurmountable obstacles which made it impossible to hear the witnesses in the foreseeable future as they were unreachable . It had not been possible to hear witnesses O. and P. in the course of the trial since they had returned to their home country , GPE , shortly after their interviews at the investigation stage , and all attempts to hear their evidence at the main hearing , which the court had no means of enforcing , had been to no avail . Pointing out that the courts were under an obligation to conduct proceedings involving deprivation of liberty expeditiously , and in view of the fact that the accused had already been in custody for a considerable period of time , the court was of the opinion that it was not justified to further delay the proceedings .

ORG emphasised that at the investigation stage there had been no indication that O. and P. , who had testified on several occasions before the police and then before the investigating judge , would refuse to repeat their statements at a subsequent trial . It considered that , notwithstanding the resulting restrictions for the defence on account of the admission of O. and P. ’s pre - trial statements as evidence in the proceedings , the trial as a whole could be conducted fairly and in compliance with the requirements of LAW ( d ) of the LAW .

By judgment of DATE ORG , considering the facts established as described above , convicted the applicant of CARDINAL counts of aggravated robbery combined with aggravated extortion involving coercion , committed jointly with other perpetrators in GPE on DATE and in PERSON on DATE , respectively . It sentenced the applicant , who had been represented by counsel at the trial , to DATE and CARDINAL months’ imprisonment .

ORG based its findings of fact concerning the offence committed by the applicant in GPE on the statements made at the trial by the victims L. and PERSON , who had identified the applicant without any hesitation . It further noted that their statements were supported by the statements made at the trial by the police officers who had attended the crime scene and had interviewed PERSON and NORP in the course of the preliminary investigation . In view of these elements , ORG considered that the submissions made by the applicant , who had initially claimed his innocence and had then admitted that he had been in PERSON and ORG flat but had only secretly stolen LAW , alone , after a quarrel with the women , had been refuted .

In the establishment of the facts concerning the offence in PERSON , ORG relied in particular on the pre - trial statements made by the victims O. and PERSON , whom it considered to be key witnesses for the prosecution ( maßgebliche[n ] Belastungszeuginnen ) , in the course of their police interviews and before the investigating judge .

In its judgment , which ran to CARDINAL pages , ORG pointed out that it was aware of the reduced evidentiary value of the records of O. and P. ’s pre - trial testimonies . It further took into account the fact that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses to the offence in PERSON at any stage of the proceedings .

ORG noted that the records of O. and P. ’s interviews at the investigation stage showed that they had given detailed and coherent descriptions of the circumstances of the offence . Minor contradictions in their statements could be explained by their concern not to disclose their residence and activities to the authorities and by the psychological strain to which they had been subjected during and following the incident . The witnesses had feared problems with the police and acts of revenge by the perpetrators . This explained why they had not reported the offence immediately after the events and why the police had only been informed on DATE by their friend PERSON

ORG further took note of the fact that O. and P. had failed to identify the applicant when confronted with several photos of potential suspects during the police interviews . It observed that the ORG attention during the incident had been focused on the other perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment . Their inability to identify the applicant also showed that , contrary to the defence ’s allegation , the witnesses had not testified with a view to incriminating him . The court further considered that the fact that the witnesses had failed to attend the trial could be explained by their unease at having to recall , and being questioned about , the offence and therefore did not as such affect their credibility .

In its establishment of the facts , ORG further had regard to the following additional evidence : the statements made at the trial by several witnesses to whom O. and PERSON had reported the offence shortly after it happened , namely the GPE neighbour PERSON and their friend PERSON , as well as the police officers and the investigating judge who had examined O. and PERSON at the pre - trial stage ; geographical data and information obtained by tapping the applicant ’s and his co - accused ’s mobile telephones and by means of a satellite - based global positioning system ( “ GPS ” ) receiver in the car of CARDINAL of the co - accused ; the applicant ’s admission in the course of the trial that he had been in the GPE apartment at the relevant time ; and the similarity in the way in which the offences in GPE and PERSON had been committed .

ORG stressed that , once witnesses PERSON and P. had proved to be unavailable , it had ensured that as many as possible of the witnesses who had been in contact with NORP and P. in relation to the events at issue were heard at the trial , in order to verify the GPE credibility .

In ORG opinion the fact that the detailed description of the events given in GPE and P. ’s pre - trial statements was consistent with the account they had given the TIME after the offence to their neighbour PERSON was a strong indication of their credibility and the veracity of their statements . PERSON had further testified that , on TIME of CARDINAL DATE at TIME , another neighbour , an elderly woman who became scared and angry when she saw PERSON running around in front of her window , had called on her and asked her to accompany her to the women ’s apartment to investigate what had happened . O. and PERSON had , however , not answered the door when the neighbours rang the doorbell .

ORG further observed that O. and P. ’s description of the events was also consistent with their friend PERSON ’s recollection of her conversations with NORP and PERSON after the offence .

NORP In addition , ORG noted that the CARDINAL police officers and the investigating judge who had examined O. and P. at the pre - trial stage had all testified at the trial that they had found NORP and PERSON to be credible .

ORG stressed that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at the trial or during examination by means of an audio - visual link , it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge . The court further emphasised that , when taking into account the testimonies given by the ORG neighbour PERSON and their friend PERSON , it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully .

In this context it had been of relevance that O. and P. ’s testimonies as well as the statements of the additional witnesses heard at the trial had been supported by further significant and admissible evidence such as data and information obtained by tapping the applicant ’s and the co - accused ’s mobile telephones and by means of GPS . The information in question had been gathered in the context of police surveillance measures carried out at the relevant time in the criminal investigation initiated against the accused on suspicion of racketeering and extortion on the PERSON drug scene .

It transpired from the geographical data and the recordings of CARDINAL mobile telephone conversations between CARDINAL of the co - accused and the applicant on TIME of CARDINAL DATE at TIME and TIME that the latter had been present in the GPE apartment together with PERSON , and that he had jumped from the balcony in order to chase one of the escaping victims , whom he had failed to capture , while PERSON had stayed in the apartment . Furthermore , an analysis of the GPS data showed that the car of CARDINAL of the co - accused had been parked near the crime scene from TIME to CARDINAL p.m. on TIME of CARDINAL DATE , a period that coincided with the timeframe in which the robbery in question had occurred .

Furthermore , while the applicant and the co - accused had denied any participation in the robbery as such or any premeditated criminal activity , their own statements at the trial had at least confirmed that CARDINAL of the coaccused together with NORP had visited the GPE apartment in PERSON on TIME before the offence and that they had all been present in the car parked close to the GPE apartment at the time of the offence . The accused had initially stated that a different perpetrator and NORP had been in the apartment at the time of the incident the following day . The applicant had subsequently amended his submissions and claimed that it had been he and PERSON who had gone into the GPE apartment on DATE with a view to making use of the women ’s services as prostitutes . He had further conceded that he had followed P. when she escaped over the balcony . He explained that he had done so in order to prevent her from calling the neighbours or the police , since , in view of his criminal record , he had been afraid of getting into trouble and because of the problems he had previously encountered with prostitutes on a similar occasion in GPE .

Finally , ORG considered that the very similar way in which the offences had been committed against CARDINAL female victims , foreign nationals working as prostitutes in an apartment , was an additional element indicating that the applicant had also participated in the offence committed in PERSON .

In ORG view , the body of evidence , taken together , gave a coherent and complete overall picture of events which supported the version provided by witnesses PERSON and PERSON and refuted the contradictory versions of events put forward by the applicant and his co - accused in the course of the trial .

On DATE the applicant , represented by counsel , lodged an appeal on points of law against the judgment of ORG . He complained that he had not been able to examine the only direct and key witnesses to the offence committed in PERSON at any stage of the proceedings , in breach of LAW and CARDINAL ( d ) of the LAW . As the prosecution authorities , contrary to the case - law of ORG ( the applicant referred to a judgment dated DATE , see paragraphs DATE and CARDINAL below ) , had not requested that defence counsel be appointed for him prior to NORP and P. ’s hearing before the investigating judge , their statements ought to have been excluded at the trial .

In written submissions dated DATE ORG General requested that the applicant ’s appeal on points of law be dismissed by ORG as manifestly ill - founded in written proceedings , under LAW ( see paragraph CARDINAL below ) . ORG argued that while it was true that the proceedings had been characterised by a “ complete loss ” of the applicant ’s right to examine O. and PERSON ( “ GPE des Fragerechts ” ) , they had as a whole been fair and there had been no reason to exclude the witness statements of ORG and P. as evidence .

ORG General considered that ORG had assessed the content of the records of the witnesses’ testimonies read out at the trial particularly carefully and critically . Furthermore , the ORG statements had been neither the sole nor the decisive basis for the applicant ’s conviction by ORG , as the latter had based its findings on further significant evidence . In view of the various layers of corroborating evidence the applicant had had ample opportunity to challenge the credibility of the CARDINAL prosecution witnesses and to defend himself effectively .

Endorsing ORG reasoning , ORG General further pointed out that there was nothing to demonstrate that the restrictions on the defence ’s right to examine witnesses O. and PERSON had been imputable to the domestic authorities . The prosecution authorities had not been obliged to appoint counsel for the applicant in order for counsel to participate in the hearing by the investigating judge . In view of the ORG consistent cooperation , the authorities had had no reason to expect that , despite their return to their home country , they would no longer be available for questioning at the trial , especially as they had been obliged under NORP law to at least participate in a hearing via video link .

By decision of DATE ORG , referring to LAW , dismissed the applicant ’s appeal on points of law as manifestly ill - founded .

In its decision of DATE rejecting the applicant ’s complaint concerning a violation of his right to be heard ( Anhörungsrüge ) ORG pointed out that any decision dismissing an appeal on the basis of LAW necessarily entailed a reference to the reasoned application by ORG .

In a constitutional complaint dated DATE against the decisions of ORG of DATE and DATE , the applicant complained , in particular , that there had been a breach of his right to a fair trial and of his defence rights under LAW ( d ) of the LAW . He argued that neither he nor his counsel had had the opportunity to question O. and P. at any stage of the proceedings .

By decision of CARDINAL DATE ORG , without providing reasons , declined to consider the applicant ’s complaint ( file no . CARDINAL ) .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in PERSON .

On DATE the applicant ’s father , PERSON , applied to ORG and their Family Members ( PERSON hrvatskih branitelja i članova njihovih obitelji PERSON županije , područna jedinica PERSON ; hereinafter “ the Rijeka Office ” ) for recognition of the status of a disabled war veteran , on the grounds that he had contracted tuberculosis and developed psychosis during his military service in DATE .

On DATE PERSON died and the applicant took over the proceedings as his heir .

On DATE ORG dismissed the application . The relevant part of that decision reads as follows :

“ The case file was resubmitted to ORG , which established the following :

- G.B ... served in the Homeland War ... from DATE to DATE , from DATE to CARDINAL DATE and from DATE to DATE ;

- during military service he contracted tuberculosis ;

- his mental health issues had been recognised much earlier ;

- ORG is of the opinion that his tuberculosis and psychosis have not been caused by his military service . ”

The applicant lodged an appeal against that decision . On DATE the Ministry in charge of the Homeland War Veterans affairs ( ORG hrvatskih branitelja iz DATE ; later ORG obitelji , branitelja i međugeneracijske solidarnosti ; hereinafter : the “ Ministry ” ) dismissed the applicant ’s appeal holding that the proceedings should have been terminated as ORG had meanwhile died .

The applicant challenged that decision before ORG ( Upravni sud PERSON ) .

On DATE ORG accepted the applicant ’s administrative action , quashed the decision of the Ministry and remitted the case .

On DATE the Ministry allowed the applicant ’s appeal , quashed the decision of ORG ( see paragraph CARDINAL above ) but declared PERSON ’s application inadmissible . It held that such application could only be lodged after a claimant had been discharged from the army , which was not the case in PERSON ’s case .

The applicant lodged an administrative action against that decision . On DATE ORG quashed the decision of the ORG and remitted the case . The relevant part of that judgment reads as follows :

“ The administrative bodies’ decisions ... were rendered while the [ old ] Act on LAW Homeland War Veterans and their Family Members ( ORG nos . CARDINAL and CARDINAL ) was still in force .

In the meantime , since the action was lodged and before this judgment was rendered , a new LAW on LAW Homeland War Veterans and their Family Members entered into force and was published in ORG no . CARDINAL of DATE .

Pursuant to section CARDINAL(CARDINAL ) of that LAW , which entered into force on DATE , the proceedings instituted while the old legislation was still in force and in which the final decision has not yet been rendered should be decided under LAW if more favourable for the Croatian Homeland War veteran .

In the present case , on DATE , the date the LAW on LAW Homeland War Veterans and their Family Members entered into force , the disputed decision of the defendant body was not final . The court therefore finds that the defendant body must decide the application in accordance with section CARDINAL(CARDINAL ) ... It is a specific legislative provision which requires the impugned decision to be quashed ...

The defendant body shall decide , in the light of the provisions of the LAW that govern the conditions and methods of recognition of disabled NORP Homeland War veteran status , if more favourable for the claimant . ”

On DATE the Ministry allowed the applicant ’s appeal , quashed the decision of ORG ( see paragraph CARDINAL above ) and remitted the case for re - examination . The relevant part of that decision reads as follows :

“ This Ministry has reconsidered the case and found that the appeal is well - founded , albeit for different reasons .

Section CARDINAL of the by - law on the Procedure before ORG for the Determination of Rights under LAW on LAW Homeland War Veterans and their Family Members provides that ORG shall issue its opinion after examining the person [ concerned ] and the relevant medical and other documentation ...

As [ G.B. ] was not examined in person before the First - Instance Medical Committee and can not be examined , the first - instance body shall , in the fresh set of proceedings , terminate the proceedings relying on LAW . ”

On DATE the social services department of ORG ( Ured državne uprave u Primorsko - goranskoj županiji , Služba za društvene djelatnosti ; hereinafter “ the County Office ” ) , which meanwhile became competent to examine the case , terminated the proceedings concerning PERSON ’s recognition as a disabled war veteran on the grounds that due to his death , certain relevant facts could no longer be established .

The applicant appealed against that decision . On DATE the Ministry allowed the applicant ’s appeal and reversed the decision of ORG . The relevant part of the decision reads as follows :

“ III : The deceased G.B ... is hereby recognised as a fourth category disabled Homeland War [ veteran ] , with PERCENT damage to his body ... on the grounds that he contracted tuberculosis while defending the sovereignty of GPE .

PERSON is entitled to :

Personal disability benefit

Supplementary benefit

IV . The application for recognition of Homeland War [ veteran ] status on the grounds of psychosis is hereby denied .

The case file was submitted to the competent ORG on appeal which , in its opinion ... of DATE established PERCENT permanent damage to the body ... ”

This decision was served on the applicant in DATE .

On DATE ORG ( PERSON ) , in a single - judge formation , found a violation of the applicant ’s right to a trial within reasonable time concerning the proceedings before the administrative authorities and ORG and awarded her compensation in the amount of CARDINAL NORP kunas ( HRK ) . The applicant did not lodge further appeal against this decision before a panel of judges of ORG .

On DATE the applicant applied before ORG for recognition as the family member of a fallen war veteran and family disability benefit .

On DATE ORG declared the applicant ’s application inadmissible as lodged out of time . The relevant part of that decision reads as follows :

“ Upon examining the case file it was established that the claimant lodged her application after the time - limit [ set forth in ] section CARDINAL of the LAW [ on LAW Homeland War Veterans and their Family Members ] had expired .

Section CARDINAL(CARDINAL ) of the Act [ stipulates that ] where a Homeland War veteran has , before the entry into force of the LAW , died of illness directly caused by his defence of the sovereignty of GPE , applications for recognition of status and ... disability benefit must be lodged within DATE of the date of entry into force of the Act .

The LAW entered into force on DATE , which means that the deadline for lodging the application expired on DATE . ”

The applicant appealed against that decision . On DATE the ORG dismissed the applicant ’s appeal , endorsing the reasoning of the first - instance administrative body . The relevant part of that decision reads as follows :

“ Upon appeal , and after examining the case file , it was established that the [ first - instance ] decision is valid and had a basis in law .

That is to say , after examining the evidence in the case file , it was established that the claimant lodged her application ... on DATE , arguing that her father died from GPE , and from the death certificate it is clear that he died on DATE .

... section CARDINAL(CARDINAL ) of the LAW stipulates that where a Homeland War veteran has , before the entry into force of the LAW , died of illness directly caused by his defence of the sovereignty of GPE , applications for recognition of status and for disability benefit must be lodged within DATE of the date of entry into force of the LAW ( that is to say , on DATE at latest ) .

As the claimant lodged her request on DATE , that is to say after the ( preclusive ) statutory time - limit , which can not be prolonged upon a party ’s request or of [ the administrative body ’s ] own motion , and the appeal reasons do not influence the reasoning in this case , the appeal is hereby dismissed . ”

The applicant challenged that decision before ORG , arguing that the decisions of the administrative bodies had been unfair and overly formalistic , effectively depriving her of her right to disability benefit . Specifically , she argued that the final decision on her father ’s status had only been rendered on DATE and had been served on her on DATE . In her view , she was only able to lodge her request after DATE , as an earlier request would have been premature and ill - founded .

On DATE ORG dismissed the applicant ’s action , endorsing the reasoning of the administrative bodies . The relevant part of that judgment reads as follows :

“ ... the claimant lodged her application ... on DATE . Section CARDINAL(CARDINAL ) of the ... Act stipulates that where a Homeland War veteran has , before the entry into force of the LAW , died of illness directly caused by his defence of the sovereignty of GPE , applications for recognition of status and for disability benefit must be lodged within DATE of the date of entry into force of the LAW . As the LAW entered into force on DATE the application could have been lodged by DATE . It was not disputed that the claimant lodged her application on DATE , that is to say after the expiry of the time - limit stipulated in section CARDINAL(CARDINAL ) of the LAW , and therefore this ORG finds that the decision of the defendant body was well - founded . The claimant ’s allegations in her administrative action are therefore ill - founded and irrelevant .

In addition , it is noted that the claimant took over proceedings from her late father ... However , they were separate proceedings establishing the claimant ’s late father ’s status as a disabled Homeland War veteran , and not the proceedings establishing the status of a family member of a fallen Homeland War veteran and the right to family disability benefit ... ”

The applicant further lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) against that judgment . She reiterated her arguments from the administrative action , adding that the domestic authorities had spent DATE trying to establish her late father ’s status , which could have only been used as the legal basis for her request after DATE . She also argued that her status was de facto recognised when she had been allowed to take over the proceedings after her late father , and that she was only lacking a declaratory recognition of her factual status .

On DATE ORG , endorsing the reasoning of ORG , declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded . This decision was served on the applicant on DATE .


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and is detained in PERSON , GPE .

According to the indictment , on DATE PERSON , who had not been previously known to the applicant , invited him and PERSON to the apartment of Mr X. In the apartment they found Mr X. lying on the floor in a state of heavy alcoholic intoxication . For reasons which the investigation failed to ascertain , the applicant demanded X. ’s passport , but the latter did not react to the demand in any way . Enraged by X. ’s inaction , the applicant and PERSON A. started violently kicking him in the shoulder , chest , stomach and legs until he stopped breathing . The applicant told PERSON , who witnessed the attack , to “ forget everything ” and gave her MONEY ( RUB ) ( CARDINAL ( ORG ) ) .

On DATE PERSON , aged CARDINAL at the time , was voluntarily hospitalised for treatment of alcohol - induced psychosis and seizures after she had an epileptic seizure on the street .

On DATE , while undergoing treatment , PERSON was taken to an investigator for questioning . Prior to the interview , the investigator had received permission to interview PERSON from the head doctor of the medical facility and satisfied herself as to the witness ’s ability to testify , relying on the opinion of the doctor treating her . According to a medical certificate , PERSON was “ conscious , accessible for contact , answer[ed ] questions following their direction ” and had “ no acute psychiatric disorders ” .

According to the interview records , PERSON alleged that on DATE her encounter with Mr X. had resulted in a drinking spree , which had lasted DATE until DATE , when Mr X. had refused to consume any more alcohol because he could no longer stand up . On DATE of the attack , she had witnessed the applicant entering the apartment with PERSON and immediately starting to violently kick Mr X. , who had been lying on the floor . After an unsuccessful search for X. ’s passport , they had resumed the attack and had kicked the victim CARDINAL times until he died .

On DATE the applicant and PERSON were arrested and detained on suspicion of manslaughter . On DATE confessed to manslaughter committed together with the applicant . On DATE during questioning , he stated that the applicant ’s insistence on obtaining X. ’s passport had been induced by the desire to coerce the latter to sell his apartment and to share the proceeds .

In the course of questioning on CARDINAL and DATE the applicant admitted his presence in X. ’s apartment during the attack , but denied any involvement in it . In his opinion PERSON had committed perjury for an unknown reason .

NORP The criminal case against the applicant and PERSON was examined by ORG районный суд г. PERSON ) ( hereinafter “ the ORG ” ) .

On DATE during a pre - trial hearing ORG granted applications lodged by the applicant ’s defence lawyer to have the medical records of PERSON produced in court at trial .

On DATE ORG received extracts of PERSON medical history provided by a regional psychiatric hospital . According to the medical records , she suffered from long - term alcohol abuse and had a tendency of having compulsive heavy drinking episodes . In DATE , during the sixth hospitalisation since DATE , she had been hallucinating , anxious , aggressive , rude and unaware of DATE . When discharged from hospital in DATE , the symptoms of withdrawal syndrome had receded and there were no signs of acute psychiatric disorders .

On DATE ORG received a certificate from a regional psychoneurology clinic . According to the certificate , in DATE PERSON had been diagnosed with an organic mental disorder of complex origin ( perinatal and alcohol induced ) , hallucino - paranoid syndrome with mild personality changes , and alcohol - withdrawal symptoms .

On DATE and CARDINAL DATE ORG heard several prosecution witnesses , mostly relatives , neighbours and acquaintances of the persons involved . The witnesses either attested to the reputation or character of the victim and the accused , or provided hearsay and circumstantial evidence on the events prior and subsequent to the alleged crime . PERSON was duly summoned to both hearings , but did not appear and provided no reasons for her absence .

On DATE at the request of the defence ORG issued a subpoena ordering the bailiffs to ensure PERSON presence at the next hearing .

On DATE the bailiffs submitted to the trial court a report that the witness could not be found at her place of residence and according to her mother “ might be undergoing treatment ” in a psychoneurology clinic .

On DATE ORG examined a prosecution witness , Ms NORP , an investigator during the pre - trial stages of the proceedings . She testified to the circumstances of PERSON interview on DATE and her identification of the applicant , as well as to her psychological state and ability to give answers at the time . Ms NORP stated that the witness had been “ rational ” , had given coherent testimony , had correctly recounted the events and , according to the doctor treating her at the time , had been capable of answering questions .

During the hearing the trial court was notified over the phone that the applicant had been undergoing in - patient treatment for alcohol dependency since DATE . The prosecutor ’s request that PERSON pre - trial statements be read out in court was denied and the hearing was adjourned until further information on the witness ’s health had been received from the doctors .

On DATE the psychoneurology clinic sent a letter to ORG confirming the information previously submitted and stating that PERSON was due to be discharged in DATE .

On DATE during the hearing , the prosecutor , referring to the above - mentioned letter , repeatedly requested that PERSON pre - trial statements be read out in court on account of her in - patient treatment , the fact that her presence at trial could not be ensured , and because the date of her discharge from the clinic was unclear . The applicant ’s defence lawyers objected , referring to LAW , which proscribed the reading out of witness statements except in cases of “ grave illness ” . ORG , without providing further reasons , allowed the reading out of the testimony with reference to LAW .

DATE and DATE ORG held CARDINAL further hearings . During those hearings the applicant and his coaccused were examined and essentially confirmed their conflicting pre - trial statements . ORG also heard CARDINAL character witnesses called by the defence , who attested to PERSON bad reputation and speculated about his involvement in illegal activities . The trial court also considered the following documentary evidence presented by the prosecution : ( a ) crime scene inspection records ; ( b ) the confession of PERSON and verification records ; ( c ) records of identification procedures ; and ( d ) reports of the medical examiner and forensic experts on the victim ’s injuries and the cause of death .

On DATE during the closing argument the applicant ’s defence lawyer , PERSON , argued that the statements of PERSON , which were “ the only evidence ” , could not qualify as eyewitness statements due to her state of mental health . He submitted that in the absence of a forensic psychiatric examination , it was impossible to rely on the testimony of a person suffering from an organic mental disorder and alcohol dependency . Her hospitalisation in a psychiatric facility in a delusional state and her interrogation DATE after the alleged crime had made any testimony unreliable . He further stated that in any event , the reading out of her testimony had been unlawful under LAW as interpreted by ORG of GPE , and in violation of the applicant ’s right to examine witnesses LAW CARDINAL § CARDINAL ( d ) of the LAW . Accordingly , her testimony could not be used as evidence in the case against the applicant .

On DATE ORG convicted the applicant and Mr A. of manslaughter and sentenced them to CARDINAL and DATE imprisonment respectively in a high - security correctional facility . ORG , confronted with the conflicting positions of the CARDINAL coaccused , referred several times to PERSON testimony as a significant , if not decisive , factor . In respect of the reliability of the testimony and its reading out , it stated :

“ ... The statements of PERSON made during the pre - trial investigation were read out under LAW ...

The court does not accept PERSON argument that [ according to the medical records ] the mental state of PERSON casts doubt on her ability to correctly perceive and recount the events and that [ her questioning during treatment in a psychoneurology facility ] also casts doubt on the veracity and reliability of her testimony ...

The medical records referred to by the defence do not suggest that PERSON has any psychiatric disorder . [ Moreover , the available certificates state that she was accessible for contact , answered questions following their direction and had no acute psychiatric disorders . This fact is further confirmed by the testimony of PERSON , the investigator , given at trial . ]

The court also considers that PERSON statements are consistent with the confession of PERSON

The applicant ’s defence lawyers lodged an appeal , restating among others their arguments concerning the reading out of PERSON pre - trial statements .

On DATE ORG ( Тверской областной суд ) upheld the judgment on appeal . In respect of PERSON statements ORG stated :

“ ... The involvement of PERSON [ the applicant ] in the committed crime is steadfastly confirmed by the testimony of PERSON

[ The appeal court ] like the trial court finds no grounds to doubt the testimony of this witness , because it is coherent , detailed , logical and authentic .

[ From ] the information provided by PERSON on the victim ’s state before and after the infliction of bodily injuries by PERSON and PERSON , the sequence of events is consistent with [ expert evidence and the testimony of other witnesses and the co - accused ] .

Accordingly there are no reasons to consider that the witness could not correctly perceive or recount the events .

Moreover [ her ] mental state received consideration during the hearing . [ According to the investigator ’s statements she was rational , gave coherent testimony , correctly recounted the events , and according to her doctor was capable of answering questions . ] ... [ Therefore ] the trial court reached a correct conclusion that this evidence was admissible .

[ The appeal court ] can not consider justified the arguments of the defence that criminal procedure legislation had been breached by the reading out of PERSON pretrial statements , [ since her presence at hearings was impossible as she was undergoing treatment in a clinic ] . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

All applicants were former employees of “ GPE u stečaju ( the debtor ) , which was , at the relevant time , a company predominantly comprised of socially - owned capital .

NORP Since the debtor failed to fulfil its contractual obligations towards its employees , on an unspecified date , the applicants instituted civil proceedings against it .

On DATE ORG ordered the debtor to pay the applicants specified amounts on account of salary arrears , plus the costs and expenses of the civil proceedings .

On DATE the above judgment became final .

DATE and DATE all applicants filed separate requests for the enforcement of the above judgment .

ORG ultimately accepted the applicants’ requests and issued the enforcement orders , respectively . The essential information as to the enforcement proceedings in respect of each application is outlined in the ORG to this judgment .

On DATE ORG opened insolvency proceedings in respect of the debtor ( St. CARDINAL/CARDINAL ) .

The applicants duly submitted their respective claims .

On an unspecified date the ORG claims based on the judgment of DATE were formally recognised .

The insolvency proceedings against the debtor are still ongoing .

On DATE , the applicants lodged a constitutional appeal .

On DATE ORG dismissed the appeal in respect of all applicants except the applicants PERSON ( application no . CARDINAL/CARDINAL ) , PERSON ( application no . CARDINAL/CARDINAL ) and PERSON PERSON ( application no . PERSON ) .

On DATE ORG also found a violation of the right to a hearing within a reasonable time , in respect of Ms ORG , PERSON and PERSON . It further awarded each of them MONEY ( ORG ) as just satisfaction for non - pecuniary damage and ordered the court in Leskovac to expedite the proceedings .


Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in DATE and lives in GPE .

While he was in judicial separation proceedings from his wife ( PERSON ) , a provisional residence order was issued to both parents in respect of the couple ’s CARDINAL children ( GPE and PERSON ) .

On DATE the applicant asked the guardianship judge to issue him with a new passport , requesting that the name of his son , PERSON , also be entered in it . His former wife objected , arguing that the applicant was not making the maintenance payments ordered by the president of the court at the time of the judicial separation .

By a decree of CARDINAL DATE , the guardianship judge rejected the applicant ’s request , holding that it was inappropriate to issue the requested passport , given the imperative of protecting the children ’s right to receive the maintenance payments . In this regard , he emphasised that the applicant , who was supposed to make a maintenance payment of MONEY ( ORG ) per month , paid only a small amount ( ORG DATE ) and that there was a risk that he would shirk his obligation completely if he were to travel abroad .

By a decision of CARDINAL DATE , the guardianship judge ordered that PERSON ’s name be removed from the applicant ’s passport .

On DATE the GPE Police Commissioner ( questore ) ordered the applicant to hand in his passport to the police station and amended his identity card , making it invalid for foreign travel .

The applicant appealed to ORG against the guardianship judge ’s decision . He alleged that :

– under the measures ordered by the president of the court at the time of the judicial separation , the children had been due to spend the period of CARDINAL to CARDINAL DATE , during the school holidays , with him ; on that basis , he had planned to take them to GPE by plane ; however , this required that the names of his CARDINAL children be included in his passport ;

– on account of his former wife ’s objection and the guardianship judge ’s decree , he and his children had been unable to go on holiday ;

– the children ’s names were included in the mother ’s passport ;

– the dismissal of his request amounted to a penalty that was not prescribed by law .

On DATE the applicant asked the GPE guardianship judge to issue him with a new passport , explaining that his former wife had retained his identity card and his passport in the family home .

By a decree of DATE , the GPE guardianship judge dismissed the applicant ’s request on the ground that he had not paid the maintenance sums due in respect of his children , and that it was to be feared that he was leaving the country only in order to evade his obligation entirely .

The applicant also appealed against that decision to ORG , alleging a breach of his right to freedom of movement .

By a decision of DATE , ORG joined the appeals and dismissed them . The court noted , firstly , that the legal basis for the guardianship judge ’s decision was PERSON no . CARDINAL of DATE , as amended by LAW ( Law no . CARDINAL ) .

The court found that the guardianship judge did indeed have jurisdiction to rule on the applicant ’s request for a passport and on the inclusion in it of his son ’s name . As to the merits of the appeal , the court noted that the applicant was not complying with his obligation to pay maintenance and that this circumstance was one of the lawful grounds for refusing to issue a passport , in the children ’s interests , in accordance with section CARDINAL of LAW .

On DATE PERSON was ordered to pay a fine of ORG CARDINAL for failing to bring the children to an appointment with the applicant .

By a decree of DATE , the guardianship judge issued ORG , at her request , with a passport in which the names of the CARDINAL children were included .

On DATE the applicant asked the GPE guardianship judge to issue individual passports to his children , in application of Legislative Decree no . CARDINAL of DATE .

PERSON objected , arguing that the children did not need these passports ; that the applicant had made no maintenance payments since DATE ; and that , indeed , criminal proceedings were pending in that regard .

By a decision of DATE , the guardianship judge rejected the applicant ’s request . He considered that the proceedings for the separation of the applicant and ORG were still pending and that , in the light of the considerations put forward by PERSON , with whom the children resided , it was appropriate to stay any issue of passports to the children . The applicant did not appeal against that decision .


Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , Mr ORG , is an NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr M. Salmon , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their then Agent , Ms S. Ms S. Mëneri of ORG and , subsequently , by PERSON of ORG .

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

NORP On DATE the applicant ’s father and uncle ( A. ) jointly bought a plot of land measuring QUANTITY . m from GPE . On unspecified dates DATE the applicant ’s father and A. sold QUANTITY . CARDINAL parties .

On DATE ORG recognised the joint ownership of a house erected on that plot of land : since the CARDINAL brothers had jointly erected the frame structure of the house , they owned it in equal shares . It further rejected ORG ’s argument that he was the sole owner of the plot of land as no relevant notary deed had been submitted to the court . On DATE ORG upheld the decision .

By a note of CARDINAL DATE the mortgage office certified that the property had been jointly purchased in DATE by the applicant ’s father and A. and that it was registered as co - owned .

On an unspecified date the plot of land was nationalised .

On DATE ORG on ORG and Compensation of Properties ( “ the Commission ” ) recognised DATE ’s heirs property rights to the plot of land measuring CARDINAL : QUANTITY . m were to be restored ; compensation was to be provided for the remaining QUANTITY m and the remaining plot had been previously sold to third parties . The applicant ’s father ’s name did not appear on the decision .

On an unspecified date in DATE the applicant challenged the Commission decision before ORG ( “ the ORG ” ) arguing that A. and his father were co - owners in equal shares of the relevant plot of land .

On DATE the head of ORG , in a letter addressed to the applicant , stated , inter alia , that the Commission had wrongly taken its decision given that the applicant ’s father and A. were co - owners .

On DATE ORG , following the remittal of the case , dismissed the applicant ’s civil action . Even though the plot of land had been jointly purchased by the applicant ’s father and A. in DATE , CARDINAL cadastre documents of DATE showed that the applicant ’s father and PERSON each owned a plot of land , so that A. was the sole owner of the relevant plot of land following the division of the property . Both PERSON and the applicant ’s father had paid taxes separately and had registered their titles in the civil registrar ’s office separately . As to the decision of CARDINAL DATE as upheld by ORG on DATE ( see paragraph CARDINAL above ) , ORG found that it did not change the status of separate property titles that ORG and the applicant ’s father had .

On DATE and CARDINAL DATE ORG and ORG , respectively , upheld the decision and rejected the applicant ’s appeals .

On DATE the applicant filed a supervisory review request with ORG .

On DATE ORG decided to refer the case to its ORG .

On DATE ORG quashed the decisions on the ground that they had been taken contrary to the law . The courts had not given reasons as to how the property had been voluntarily divided up between the applicant ’s father and A. No notary deed or other act , as required by law , had been submitted by A. ’s heirs to the courts . The fact that the applicant ’s father and PERSON had been registered separately in the civil registrar ’s office and that they were economically independent was not sufficient to conclude that the property had been divided or that its coownership had ceased to exist . Having regard to the fact that the property certificates submitted by the parties originated from different offices , ORG directed that only documents originating from the mortgage office ( zyrat e hipotekës ) were to be relied upon . The courts had not taken into account the findings of the decision of DATE as upheld by ORG on DATE , which not only recognised the coownership to the house but also ruled that “ the siblings had jointly erected the frame structure of the house on the plot of land ” . It finally ordered the remittal of the case to ORG for a fresh consideration .

On DATE ORG upheld the applicant ’s action . It ruled that co - ownership could exist irrespective of the civil status of households . No document had been submitted to the effect that the relevant property had been divided between the parties . While the cadastre documents of DATE indicated that the applicant ’s father and ORG owned each a separate plot of land , this did not constitute evidence of the transfer of the property title . The lower courts had incorrectly disregarded the court decisions of DATE which recognised the co - ownership of the house and the plot of land .

On DATE ORG quashed the ORG of Appeal decision of DATE and upheld the findings of ORG decision of CARDINAL DATE . No arguments had been advanced about the continuation of co - ownership after DATE . Following the conduct of the agrarian reform , A. ’s heirs had proved that the co - ownership had terminated : the brothers had registered as separate owners of CARDINAL different plots of land , they had paid taxes and dues separately and their family status had been registered separately . According to the law in force , the division of property was made by oral accord and registered with the competent authority .

The applicant lodged a constitutional appeal arguing that ORG decisions of DATE and DATE were contradictory . He further complained that ORG bench had overstepped its powers by reassessing the evidence and re - examining the merits of his case .

On DATE ORG , sitting in full bench , dismissed the applicant ’s appeal . It reasoned that the appeal concerned the interpretation of domestic law , which was outside its competence .

Article CARDINAL § CARDINAL of the LAW states that ORG bench may relinquish jurisdiction to ORG to harmonise or change the legal practice ( case - law ) .

DATE , as in force at the material time , provided that ORG sat in benches ( kolegje ) of CARDINAL judges and in ORG ( kolegje të bashkuara ) of all judges . At the material time , ORG was composed of CARDINAL judges .

According to Article CARDINAL , the President of ORG may decide that the court sit in ORG as regards appeals submitted by the parties , in so far as there exist conflicting decisions given by the ordinary bench of CARDINAL judges .

Under LAW , following the examination of the case , ORG , sitting as a bench of CARDINAL judges or as ORG , may decide : to uphold the decision , to quash ORG decision and uphold ORG decision , to quash ORG decision and remit the case to that court for fresh examination by a different bench , to quash ORG and ORG decisions and remit the case to ORG for fresh examination by a different bench , to amend ORG and ORG decisions , or to quash the decisions and dismiss the case ( pushimin e gjykimit të çështjes ) .

The proceedings concerning supervisory review were described in Vrioni and Others v. GPE , no . CARDINAL/CARDINAL , DATE .

“ DATE . According to the provisions in force at the material time , supervisory review was an extraordinary remedy which enabled courts to reopen proceedings following a final judgment ( rekurs në interes të ligjit ) . DATE and its repeal in DATE by PERSON no . CARDINAL of CARDINAL DATE , the supervisory review procedure was the subject of several legislative changes .

Article CARDINAL – Review in the interests of the law ( Law no . CARDINAL of DATE )

‘ Final judgments , decisions and rulings of the divisions of ORG shall be amenable to supervisory review in the interests of the law for the reasons set forth in section CARDINAL(a ) , ( b ) and ( c ) on an application lodged by the parties to the proceedings within DATE from the date on which the decision becomes binding .

The application for supervisory review will first be examined by a preliminary review panel of CARDINAL judges and then by the full ORG ( Joint Benches ) . ... Judges of ORG who sat as members of the division that delivered the judgment , decision or ruling or as members of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment ... ’ ”


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Romania);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Romania);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) (Bulgaria)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Yonko Grozev

The applicant was born in DATE and lives in GPE , GPE .

On DATE , in GPE , the applicant gave birth to a girl . The father was ORG , a NORP national . In DATE the couple split up .

The child lived with her parents in GPE until DATE , when she was sent to her paternal grandparents in GPE . She remained there until DATE . From DATE until DATE the couple again lived together with their daughter in GPE ; then , with the father ’s consent , the applicant returned with her daughter to GPE for what was meant to be a short stay with the child ’s maternal grandmother . The applicant remained with her daughter in GPE until DATE and subsequently returned to GPE to work , leaving the child in GPE with her maternal grandmother .

On DATE the child ’s paternal grandparents visited the child in GPE . With the maternal grandmother ’s consent , they took the child to town for ice - cream , accompanied by her aunt ( the wife of the applicant ’s brother ) . They stopped the car on the side of the road , expelled the aunt from the car and then returned to GPE , taking the child with them without the knowledge or consent of the applicant or her family . The child has been living in GPE with her paternal grandparents ever since .

On DATE the applicant , represented by counsel , lodged a request for full custody of the child with the ORG ( “ the ORG ” ) . She initially indicated that ORG was living in GPE with her family . However , during the proceedings the applicant told the court that ORG no longer lived in GPE and that she did not know his whereabouts . As a summons could therefore not be served on him , it was posted at the court ’s LOC and published in a newspaper . Later on the applicant provided an address in GPE , which turned out to be incomplete .

The court postponed CARDINAL times the examination of the case , mainly on account of attempts made by the applicant and her lawyer to establish ORG ’s whereabouts and to secure his presence in court . On DATE the ORG heard CARDINAL witnesses for the applicant . On DATE , the applicant informed the court that her daughter had been kidnapped by the paternal grandparents .

On DATE the ORG awarded custody of the child to the applicant , on the basis of the evidence in the case file , including the witness evidence and a report made by ORG following a visit in the applicant ’s home . The parties had DATE to appeal .

NORP In DATE ORG sought leave to appeal outside the time limit ( cerere de repunere PERSON termenul de apel ) , submitting that he had been living in GPE with his parents throughout the period of the proceedings and that the applicant had known of that fact . On DATE ORG ( “ the ORG ” ) quashed the decision of DATE ( see paragraph CARDINAL above ) on the ground that ORG had not been legally summoned to appear . It sent the case back to ORG .

On DATE the case file was again registered with ORG . CARDINAL hearings were held and the applicant and/or her counsel were present at all of them . The court heard evidence from the CARDINAL parents and from CARDINAL witnesses ( CARDINAL for each party – ORG summoned his neighbours from GPE ) and ordered the child protection agencies in GPE and GPE to investigate the living conditions both in the applicant ’s mother ’s home and in the paternal PERSON home in GPE . The latter investigation was ordered by the court on DATE ; the court order arrived at ORG ’s counsel ’s office on CARDINAL DATE and the latter added to the case file the final report of that investigation in both NORP and NORP on DATE .

In a decision of CARDINAL DATE ORG again awarded custody to the applicant . The court also noted that on DATE ORG had instituted similar proceedings in GPE . Given that he had lodged his application for full custody of the child with the NORP courts only after the applicant had lodged her request with the NORP courts , ORG considered that it had jurisdiction to deal with the matter . On the merits , the court considered that while the living conditions offered by the father and paternal grandparents were superior to the ones available in the applicant ’s home , the father and the paternal grandparents did not set the child a satisfactory moral example . Regarding this point , the court referred to ORG ’s criminal past and to the manner in which the paternal grandparents had kidnapped the child .

The father lodged an appeal and the case was heard by ORG . CARDINAL hearings took place before ORG and both the applicant and her counsel were present at all of them . He ( that is to say the father ) asked the court to interview the child , who was aged DATE at that time . On DATE the court granted that request . On DATE the applicant gave notarised consent for her daughter to obtain travel documents and to cross the border into GPE . On DATE ORG informed the applicant that the said notarised consent was not sufficient for the NORP authorities . The applicant offered to travel to GPE to assist in the formalities necessary to obtain a passport . On DATE ORG acknowledged the situation and ordered the applicant to travel to GPE . It also ordered ORG to allow contact between the mother and the child for the purposes of making travel arrangements . After the applicant ’s visit to GPE , the child was brought before the court on DATE . The child told the court in a private hearing , with the help of a NORP translator , that she would prefer to stay with her father and paternal grandparents in GPE ; that she spoke on the phone with her mother occasionally ; that she could not remember her maternal grandmother ; and that she did not like being in GPE .

On DATE ORG granted custody of the child to the father on the grounds that the child was already integrated into her environment in GPE , where she had lived for DATE , and that she did not speak NORP .

The applicant appealed on points of law . ORG held CARDINAL hearing , at which the parties and their respective counsel were present . ORG re - examined the facts and concluded that ORG had interpreted the situation erroneously and had disregarded the child ’s “ best interests ” . It therefore quashed ORG decision and upheld the decision rendered by ORG . ORG delivered its final ruling in the case on DATE .

On DATE the applicant , seeking temporary custody of her daughter pending the outcome of the custody proceedings , lodged a request for interim measures . On DATE her application was rejected by ORG on the ground that as at that time the child had already been living with her paternal grandparents in GPE for over DATE , it would not be in her interests to temporarily remove her from her usual environment and place her with her mother until the end of the custody proceedings .

The applicant appealed ; on DATE ORG dismissed her appeal , upholding ORG decision .

The applicant sought recognition in GPE of DATE judgment of the first - instance NORP court that had given custody of the child to her ( see paragraph CARDINAL above ) . ORG granted her request on CARDINAL DATE , finding that the NORP judgment had become final in the absence of an appeal within the statutory time - limit ( as indicated in paragraph CARDINAL , the judgment was appealed later , outside the statutory limits ) . On DATE ORG upheld this decision , which – as it was not appealed against – became final on an unspecified date . The applicant was issued with a writ of enforcement on DATE .

On DATE the applicant applied to a NORP enforcement officer , who brought enforcement proceedings immediately . The authorities unsuccessfully attempted on several occasions to personally serve an invitation for voluntary compliance on ORG Having noted that he was working abroad for an indefinite period , the summons was posted twice – on CARDINAL and DATE on the entrance gate at ORG ’s address . On DATE the enforcement officer appointed a lawyer to represent ORG as he had not been located .

On DATE the enforcement officer scheduled the handover of the child to the applicant for CARDINAL DATE and asked the police and the social services to assist him on DATE . Notice of the handover was personally served on ORG on CARDINAL DATE . On DATE lawyers acting on behalf of ORG brought judicial review proceedings in respect of the enforcement officer ’s actions ; those proceedings were dismissed by ORG on DATE .

Following the unsuccessful attempt on CARDINAL DATE to locate the child at the address of her paternal grandparents with whom she lived , the enforcement officer fined ORG MONEY ( ORG ) for failure to cooperate and scheduled DATE as the new date for the child ’s transfer to the applicant . The enforcement officer also directed the social services to help to ensure for the child a smooth transition to life with the applicant by , inter alia , arranging a meeting with a psychologist . On DATE the social services drew up a report on the child , which concluded that abruptly removing the child from her usual environment – and thus separating her from the adults who provided her with emotional and physical security – would be detrimental to her development . The report noted that the child needed to be assisted in the process of re - establishing a relationship with her mother .

Upon a request of ORG , on DATE ORG suspended the enforcement proceedings brought by the applicant . It did so following ORG ’s request for the reopening of the proceedings for the recognition of the NORP judgment on custody .

Following the suspension of the enforcement proceedings brought by the applicant in GPE ( see the preceding paragraph ) , on DATE , within the context of the reopening of the proceedings for recognition of the NORP judgment , ORG quashed the decision of ORG of DATE ( see paragraph CARDINAL above ) . ORG found that ORG had not been summoned in accordance with the applicable procedural rules and as a result had been unable to take part in the proceedings for the recognition and enforcement of the NORP judgment which had determined custody of his daughter . More specifically , he had only learned of those proceedings on DATE , when he had received notice to hand the child over . In the same decision of CARDINAL DATE ORG remitted the case to ORG for a new examination and decision .

On DATE , in response to the applicant ’s request for the recognition and enforcement of the NORP judgment of CARDINAL DATE granting custody to her ( see paragraph DATE above ) , which had become final and enforceable on DATE ( see paragraph CARDINAL above ) , ORG recognised that judgment and authorised its execution in GPE . Upon an appeal by ORG , ORG upheld that decision on DATE . On DATE ORG rejected ORG ’s cassation appeal ; the decision therefore became final on that date .

Thereafter , on an unspecified date , the applicant brought new enforcement proceedings in GPE seeking implementation of the final NORP judgment granting custody to her .

On DATE , upon ORG ’s request ( see paragraph CARDINAL below ) , ORG suspended the enforcement . The court observed that ORG had in the meantime brought proceedings in GPE for a change of custody in respect of the child . It then noted that the child had settled well in GPE , both in terms of emotional and material comfort , having been living there uninterruptedly since DATE . The child only spoke NORP , had adapted to and quite enjoyed her schooling environment , and showed interest in the extra - curricular activities she attended . Also , she enjoyed a particularly close and warm relationship with her paternal grandparents , who were caring remarkably well for her . The court found that , in view of the above and the fact that proceedings for a change of custody were pending before the NORP courts , a sudden change in the child ’s environment would not be in her interests . The court then granted ORG ’s request and suspended the enforcement .

Following a telephone conversation between the applicant and an employee of ORG , the applicant was invited to lodge a request for the return of her daughter under LAW on the Civil Aspects of International Child Abduction of DATE ( “ the LAW ” ; see paragraph CARDINAL below ) . Accordingly , on DATE the applicant lodged a request for the return of the child with ORG , ORG for the purpose of LAW .

On DATE ORG requested further clarification from the applicant , in particular asking her to explain why she had waited for such a long time before lodging her request . They informed her that any application lodged DATE after the abduction could be rejected . On DATE the Ministry of Justice further informed the applicant that she could request the return of her child either under the terms of LAW or under the terms of ORG ( see paragraph CARDINAL below ) . They advised her to lodge her request either directly with the competent NORP authority or through ORG .

On CARDINAL DATE the applicant ’s initial request was transmitted by ORG to ORG , ORG for the purpose of LAW .

On DATE ORG informed the applicant that the request had been refused as LAW had not entered into force between GPE and GPE ( see paragraph CARDINAL below ) .

On DATE ORG also informed the applicant and her counsel about the outcome of the proceedings before ORG . They advised the applicant to apply directly to the NORP courts ( under LAW ) or to ORG ( either directly or through ORG , under the provisions of LAW and on Restoration of Custody of Children – “ FAC ” – see paragraph CARDINAL below ) .

On DATE ORG transmitted to ORG a request lodged by the applicant under LAW , which in its view took precedence over LAW . In the absence of any response to that request , on DATE ORG repeated the request to ORG .

On DATE ORG informed its NORP counterpart that it had refused the request . In its view LAW did not apply , as the child had entered NORP territory before the entry into force of that LAW and GPE . Consequently , the Brussels II bis Regulation did not apply either , as it was not meant to be applicable outside the scope of LAW .

On DATE ORG unsuccessfully brought proceedings in GPE seeking custody of the child . Those proceedings were terminated on DATE by ORG ; the decision became final on DATE .

At DATE ORG brought a second set of proceedings in GPE before ORG in which he sought custody of the child . His request for interim measures , namely for the child to live with his parents in GPE and for him to have custody of her , as well as for the suspension of the enforcement proceedings brought in DATE in GPE by the applicant , was refused by the same court in DATE . The court suspended the proceedings on DATE as it had determined that another set of proceedings – between the same parties concerning the same issue – was pending in GPE ( see paragraphs CARDINAL to CARDINAL above ) .

Following the CARDINAL DATE final judgment of the NORP courts granting custody of the child to the applicant ( see paragraph CARDINAL above ) , on DATE ORG brought a third set of proceedings before ORG , seeking a change of custody due to a change in circumstances . ORG terminated these proceedings on CARDINAL DATE as it found that the second set of proceedings ORG had brought before it ( see the preceding paragraph ) concerning the same issue and involving the same parties was still pending , as those proceedings had only been suspended on DATE and not terminated .

Subsequently ORG asked the court to terminate the second set of proceedings he had brought , and the court did so on DATE . On DATE ORG appealed against the termination of the third set of proceedings he had brought . In a final decision of CARDINAL DATE the ORG granted his request , quashed the termination of those proceedings and remitted the case to the first - instance court for examination . Within the context of those proceedings , in DATE ORG sought as a protective measure ( обезпечителна мярка ) the suspension of the enforcement proceedings of the NORP judgment granting custody to the applicant . His request was granted on DATE ( see paragraph CARDINAL above ) . No information is available regarding developments in those proceedings .