Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE . Prior to his arrest in DATE he resided in GPE , in ORG . He is currently detained in the special detention facility in GPE , in LOC .

NORP Until DATE the applicant lived in GPE . His family members , including a minor son , live in GPE . From DATE TIME he went to GPE on several occasions , in order to earn money .

On DATE the applicant arrived in GPE to look for employment . On DATE the period of the applicant ’s lawful residence in GPE expired .

On DATE he was fined for failure to comply with immigration laws . He did not leave the country at that point .

On DATE the investigator at ORG of GPE of GPE charged the applicant with establishing , leading or participating in religious extremist , separatist , fundamentalist or other prohibited organisations ( Article CARDINAL - CARDINAL of LAW ) . The applicant was accused , in particular , of membership of a banned religious extremist organisation , “ ORG ” , and a terrorist organisation , “ O’zbekiston PERSON ” , DATE and DATE . According to the relevant investigator ’s decision , the applicant , together with his brother and CARDINAL other persons , “ planned to destroy the constitutional order of GPE ” and then “ to create an NORP State on the territory of PERSON , GPE ” . For these purposes they had moved to GPE and started to “ study the ideology of the head of the terrorist movement , PERSON , and PERSON , also known as ORG ” . Further , together with other members of O’zbekiston PERSON , they had planned an attack with intent to destroy the constitutional order of GPE and other countries in order to create an NORP State there . They had also attempted to “ carry out terrorist attacks ” . The investigator stated that there was sufficient evidence against the applicant , without giving further details .

On DATE , ORG of GPE ordered the applicant ’s arrest and his name was put on a cross - border wanted list .

On DATE the applicant was arrested in the town of GPE in LOC , pursuant to a request by the NORP authorities , and was detained pending extradition .

On DATE the Deputy Prosecutor General of GPE submitted a formal request for the applicant ’s extradition . The request contained assurances that the applicant would be prosecuted only for the offences for which he was extradited , that he would be able to freely leave GPE when he had stood trial and served any sentence , and that he would not be expelled or extradited to a third State without the consent of the NORP authorities . The NORP prosecutor ’s office further assured its NORP counterpart that the applicant would not be prosecuted in GPE on political or religious grounds , that he would not be subjected to torture or other inhuman or degrading treatment , that he would be provided with an opportunity to defend himself , inter alia through legal assistance , and that the criminal proceedings against him would be conducted in compliance with the domestic law of GPE . It was pointed out in the letter that all forms of inhuman and degrading treatment were prohibited in the destination country .

On DATE the lawyer representing the applicant in the domestic proceedings filed objections against the extradition request . He argued that according to independent international observers , illtreatment was widespread in the NORP prison system and fair trial guarantees were not respected . Referring to the ORG ’s case - law on the matter , he submitted that the applicant , who was charged with a religious offence , would run a risk of illtreatment and would be deprived of the minimum fair trial guarantees if extradited to the requesting country .

On DATE ORG Office of GPE refused the NORP authorities’ extradition request . It appears that the decision was not appealed against , and the extradition proceedings were discontinued . The parties did not submit a copy of the decision .

By a letter of CARDINAL DATE the Prosecutor ’s ORG , in reply to a letter from the applicant ’s lawyer , notified the applicant of the decision to refuse his extradition to GPE .

On DATE , that is , DATE after the applicant ’s arrest , ORG authorised his detention pending extradition . It appears that the decision was not appealed against .

On DATE ORG extended the period of his detention to a total of DATE , that is , until DATE . That decision was upheld by ORG on appeal on DATE . Until DATE the applicant was detained in remand prison ORG SIZO-CARDINAL in LOC of ORG .

On DATE , that is , DATE before the date when he was due to be released , the applicant was transferred to the GPE police station . On DATE the authorised term of his detention pending extradition expired , and the GPE town prosecutor ordered the applicant ’s release .

According to the applicant , at TIME on DATE he was let out into the internal yard of the police station . He was not provided with any documents confirming his release from custody . Immediately afterwards , at CARDINAL a.m. on DATE , he was arrested in the yard by officers of the local department of ORG in connection with a violation of immigration laws ( Article CARDINAL of LAW ( “ the CAO ” ) ) and taken into custody .

The Government submitted that “ according to the [ case ] materials on the applicant ’s detention ” he had had to be released from custody at TIME on DATE .

According to the custody register at the GPE police station , the applicant was released from detention at TIME on DATE , on account of the expiry of the time - limit for his detention .

According to ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) , the applicant was arrested at QUANTITY near the GPE police station in the course of an “ extraordinary check ” by ORG unit of ORG of ORG .

At CARDINAL a.m. on DATE an officer of ORG of the ORG drew up a record of the applicant ’s arrest “ for the establishment of the circumstances of an administrative offence following a request by ORG of ORG . ” At some point in TIME of DATE an administrative - offence record was drawn up in respect of the applicant in connection with his failure to leave GPE after DATE . At some point on DATE the applicant was interviewed by the head of the Arzamas unit of ORG and submitted , inter alia , that he had not applied for refugee status in GPE and had not had valid reasons not to leave GPE .

On DATE ORG of the Nizhniy Novgorod Region examined the applicant ’s case . During the hearing the applicant acknowledged that he had not left GPE after DATE , contrary to the requirements of the immigration laws . However , his representative submitted that , in accordance with Article CARDINAL of the ORG , administrative proceedings should have been brought against him immediately upon the obtaining of sufficient data indicating the occurrence of an administrative offence . The applicant had been arrested on CARDINAL DATE , and by DATE the authorities had been in possession of sufficient information on the applicant ’s immigration status . However , administrative proceedings had been brought against him DATE , once the term of his detention pending extradition had expired . In these circumstances , the defence considered that the administrative removal of the applicant , if ordered , would amount to a form of extradition in disguise .

The defence further referred to reports by the ORG , international nongovernmental organisations , and the ORG ’s case - law , arguing that the applicant was wanted by the NORP authorities in connection with charges relating to a religious offence , and thus he would run a risk of illtreatment if expelled to GPE .

Finally , they submitted that in any event his expulsion could not be ordered , since refugee - status proceedings were pending in respect of him . They pointed out in this connection that he had appealed against the refusal of CARDINAL DATE to grant him refugee status ( see paragraph CARDINAL below ) and had received no response by the time of the events .

ORG found that the applicant had been residing in GPE in breach of the immigration laws . The court established that at CARDINAL a.m. on DATE at the address of the GPE police station “ the applicant had failed to leave GPE after the expiry of the registration term , that is , CARDINAL DATE ” . The court established that there were no circumstances precluding his administrative removal from GPE . The court dismissed the applicant ’s argument as regards the refugeestatus proceedings , observing that “ according to the letter of DATE by ORG ( “ the NORP FMS ” ) , his relevant application had been rejected ” ( see , for the contents of the letter , paragraph CARDINAL below ) . It also noted , without giving further details , that the defence ’s submissions as regards the risk of torture in GPE “ could not be accepted as wellfounded ” . In accordance with LAW of the ORG the court found the applicant liable to pay a fine in the amount of MONEY ( RUB ) and ordered his administrative removal from GPE . Citing the provisions of the ORG on controlled forced removal ( see paragraphs CARDINAL below ) , the court decided that the applicant should be detained in a special detention centre at ORG of the Interior ( « специальный приемник PERSON по PERSON области PERSON ) until his administrative removal . No specific timelimit for the applicant ’s detention was given by the court .

On DATE the ORG indicated to the ORG , under Rule CARDINAL of ORG , that the applicant ’s administrative removal and extradition should be suspended until further notice .

On DATE the defence appealed against the decision of CARDINAL DATE . In addition to their initial arguments , they submitted that the first - instance court had incorrectly established the facts of the case , including in respect of the applicant ’s arrest . Contrary to the case materials , they submitted , on CARDINAL DATE the applicant had only been let out into the yard of the police station and , in any event , he had not been provided with any documents confirming his release from custody . Therefore , at CARDINAL a.m. on DATE he had not been at liberty and thus had been unable to deliberately “ avoid leaving GPE ” . They further maintained that the applicant ’s expulsion would amount to his “ extradition in disguise ” . The extradition proceedings in respect of him had been pending at the material time . The applicant , if removed to GPE , would be unable either to challenge any decision taken within the extradition proceedings , or to benefit from the minimum guarantees in such proceedings .

They also stated that , contrary to the court ’s findings , no final decision in the refugee - status proceedings had been taken on CARDINAL DATE , as clearly confirmed by the letter of the NORP ORG . Where an application for refugee status was made , domestic law prohibited the expulsion of an applicant in the absence of a final decision on his refugee status . They stressed that the first - instance court had failed to make any assessment of their ill - treatment argument , and reiterated their submissions as regards the risk of ill - treatment if the removal order were to be enforced . Finally , they submitted that the decision ordering the applicant ’s detention did not contain any time - limit and was therefore in breach of LAW .

On DATE the ORG upheld the administrative removal order , finding that the first - instance court had correctly established the facts of the case , assessed the admissibility of various items of evidence and applied the domestic law . The appeal court upheld the administrative sanction as lawful and found no grounds to amend it . As regards the applicant ’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner , the court noted that the administrative - offence record had been drawn up in accordance with the domestic procedure . The court found nothing in the applicant ’s submissions to suggest that his family members had been persecuted in GPE . Finally , it noted the applicant had not been granted refugee status in GPE . The administrative removal order became final .

After DATE the applicant was detained in the special detention facility in GPE . At some point before DATE he was transferred to the special detention facility in GPE , in LOC . He remains detained there to date .

On DATE , when interviewed by the GPE town prosecutor after his arrest , the applicant stated that he had moved to GPE to look for work . Since DATE , the date of his arrival in GPE , he had not registered as a foreign national temporarily residing in the country . He stated that he had not been persecuted on political grounds in GPE , and had not applied for refugee status in GPE . He had learned that a criminal case was pending against him in his home country from his parents , since at some point local police had searched their home . However , he had been unaware of the nature of the charges and the basis on which the criminal case had been brought against him until his arrest in GPE . He made similar submissions when interviewed by the GPE district prosecutor of ORG on DATE .

On DATE the applicant lodged an application for refugee status with ORG on the ground of fear of persecution on account of fabricated charges relating to a religious offence . He stated that he did not have any religious beliefs . However , he had learned after his arrest that he had been charged with a religious offence . He submitted that the accusations against him were unfounded . He feared that in GPE he would be tortured , forced to incriminate himself and sentenced to imprisonment for religiously motivated anti - State offences he had not committed .

On DATE the ORG Novgorod ORG rejected the application . They referred to the applicant ’s own submissions , as well as the results of checks conducted by the local ORG and ORG . It also noted that ORG of ORG had recommended that the applicant should not be granted refugee status . The decision also contained a reference to an unspecified undated report on the ORG system and the social and economic situation in GPE . It was stated in the report , inter alia , the NORP authorities exercised close control over the religious life of the population , that GPE had ratified several ORG human rights treaties and that the use of any unlawful investigative methods was prohibited in the requesting country . The Nizhniy Novgorod ORG observed , with reference to the applicant ’s own submissions , that he had applied for refugee status after learning , at the time of his arrest , that he had been placed on the wanted list . Thus , there were grounds to consider the applicant ’s request as an attempt to avoid extradition . The GPE further found that the applicant had not had any problems with the authorities in his home country prior to his departure to GPE . Overall , ORG concluded that the applicant had not produced any “ objective evidence to the effect that he would be persecuted on national , religious or political grounds ” and that he had left GPE in order to look for employment , that is , for a reason falling outside the scope of an admissible refugee request .

On DATE the applicant lodged an appeal against the refusal with the NORP ORG office , referring to the risk of illtreatment and imprisonment in his home country . He cited reports by various NGOs for DATE pointing to serious human rights problems in GPE and stated that ORG had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case .

The NORP ORG received the applicant ’s appeal on DATE and by a letter of CARDINAL DATE advised him that it would be considered upon receipt of documents from the Nizhny Novgorod FMS .

On DATE the NORP ORG dismissed his appeal . It upheld the decision of ORG , finding that the latter had examined all the relevant individual , social and political aspects of the case and had reached a well - founded conclusion . The NORP ORG found that there was no evidence that the criminal proceedings against the applicant “ had a political background ” . It noted that neither the applicant nor his wife , child , mother or father , who resided in GPE , had received any threats or been subjected to any kind of persecution , and reiterated that the applicant had only applied for refugee status after his arrest . It further found that the applicant did not fit the definition of a refugee , since a fear of criminal prosecution did not constitute a ground for granting refugee status .

By a letter of CARDINAL DATE the NORP ORG sent its decision to the applicant by post at the address of the remand centre in GPE . Having received the decision on DATE , he challenged it on CARDINAL DATE before ORG of GPE . He argued , in particular , that the NORP ORG had failed to address his arguments or to assess the circumstances of his case . He reiterated , in addition to his initial submissions , that the thrust of his grievance was not simply the fact of the criminal prosecution , but the fear of being subjected to torture in detention in GPE with a view to a confession being extracted in respect of offences he had not committed .

On DATE ORG dismissed the appeal and endorsed the NORP ORG ’s decision as lawful , noting the applicant ’s failure to adduce “ convincing arguments to support his allegations of fear of being persecuted for reasons of race , religion , nationality or membership of a particular social group ” . The court noted from the questionnaire completed by the applicant on the date of the submission of his application that he had not been a member of any political , religious or military organisations in his home country and had not had any problems with the authorities prior to his departure for GPE . Nothing in the statement of charges drawn up by the NORP authorities revealed any political motivation . The court reiterated that the applicant ’s family members were living in GPE and were not subject to any kind of persecution . The actual purpose of his application was to avoid criminal prosecution in GPE . Further , the applicant had not complained of a risk of persecution in GPE and had not expressed his wish to remain in GPE as a refugee until after his arrest . Moreover , there existed no medical reasons precluding his departure from GPE . The court concluded that the applicant did not meet the “ refugee ” definition .

The court also refused the defence ’s request to have Ms LOC questioned as an expert on the human rights situation in GPE .

The applicant appealed , reiterating his earlier arguments and submitting that the first - instance court had failed to assess the risk on the basis of all the available information , as well as to address his counterarguments to the NORP ORG ’s decision . He maintained that the charges against him were politically motivated and emphasised the risk of illtreatment , with extensive references to reports by ORG and ORG , as well as to the ORG ’s case - law . As regards the court ’s finding that none of his family members had been persecuted , he noted that on DATE his brother had also been arrested in GPE , but had then been released because his extradition had been refused by the NORP authorities .

On DATE ORG upheld the judgment of DATE . The applicant in his observations of CARDINAL DATE provided a copy of the information note on the case progress from the city court ’s website containing the case references and indicating that the appeal had been rejected and the judgment had been upheld . The parties did not submit a copy of the decision .

In their letter of CARDINAL DATE the Government submitted that at some point the applicant had applied for temporary asylum in GPE , and on DATE the ORG NORP FMS had refused his application , the refusal being upheld on DATE by the Sormovskiy ORG of Nizhniy Novgorod .

The applicant stated that he had not applied for temporary asylum and enclosed a letter from ORG of CARDINAL DATE confirming that the authority had not received any such application from him .


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , from the “ Documentation and Advisory Centre on Racial Discrimination ” ( DACoRD ) , an NGO in GPE ,

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG , and their Co - agent , PERSON , from ORG .

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

The applicant was born in GPE . In DATE , when he was DATE , he was granted asylum in GPE as an unaccompanied minor . In that connection he was provided with a travel document in accordance with LAW .

He acquired proficiency in the NORP language and eventually graduated from ORG . Currently he is studying at university to become a civil engineer .

The applicant maintained that on leaving GPE , he lost contact with his family . DATE , in DATE , he regained contact with his parents and siblings , who had been granted residence permits in GPE .

In the meantime , on DATE , the applicant applied for naturalisation . His request was refused on DATE because he did not fulfil all the criteria for being granted NORP nationality .

Based on a renewed application , on DATE the then ORG ( Ministeriet for flygtninge , indvandrere og integration ) informed the applicant that his name would be on the next bill of naturalisation , which was expected to be presented in ORG by DATE and to be passed by the ORG in DATE . It was stated that , before the passing of the law , ORG would reassess whether he still satisfied the criteria for obtaining NORP citizenship ( on DATE the tasks pertaining to nationality were transferred to ORG . Henceforth , both ministries will be referred to as “ the Ministry ” ) .

On DATE the Ministry informed the applicant that he was not eligible to have his name on the said bill and that he could not at that time become a NORP national . His name was therefore not listed on the bill introduced to ORG on DATE . The applicant was informed that he could not expect to have a re - application examined within DATE . Referring to the principles set out in section CARDINAL , subsection CARDINAL , and section CARDINAL of LAW ( Forvaltningsloven ) , it was stated that no grounds could be given for the decision . No appeal lay against the decision by ORG .

The applicant noted that section CARDINAL of Circular Letter No . CARDINAL of DATE on ORG contained a possibility of excluding an applicant from being listed in a naturalisation bill for a specific period if ORG ( NORP Efterretningstjeneste , PET ) considered that he or she was a danger to national security . Accordingly , since he was excluded from re - applying for DATE , he was convinced that the Minister of ORG had received information from ORG that the applicant was considered to be a danger to national security , and that therefore a security assessment had been submitted to ORG with a recommendation that the applicant be excluded from being listed in a naturalisation bill for DATE . In his view , though , there was no reason to consider him a danger to national security .

Before the Court , the Government have submitted that they can neither confirm nor deny that the decision to exclude the applicant from being listed in the naturalisation bill was taken on the basis of section CARDINAL of the said Circular Letter .

NORP On DATE the applicant requested that ORG grant him access to the documents concerning him , which was refused on DATE with the information that ORG would neither confirm nor deny whether it had any information about him .

The applicant complained about that decision to ORG , which upheld it on DATE .

In the meantime , the applicant ’s request of CARDINAL DATE that ORG grant him access to the documents concerning him was granted on DATE for the major part . A few documents were withheld with reference to the “ excepted information ” set out under LAW , subsection CARDINAL , of LAW ( Forvaltningsloven ) , which includes considerations for national security or defence .

The applicant did not bring the refusal to grant him NORP nationality , or the refusals to grant him access to information , before the NORP courts .

DATE set out that “ no alien shall be naturalised except by LAW ” .

Article CARDINAL , section CARDINAL , of the LAW reads as follows :

“ The courts of justice shall be empowered to decide any question relating to the scope of the executive ’s authority ; though any person wishing to question such authority shall not , by taking the case to the courts of justice , avoid temporary compliance with orders given by the executive authority . ”

Under LAW ( CARDINAL ) of Act No . CARDINAL of DATE on NORP nationality , NORP nationality may be acquired through naturalisation granted by virtue of LAW .

The procedure for applying for nationality involves an interview with the police , preparation of the bill by a Ministry ( currently ORG ) , a debate and a decision by ORG , which is made up of CARDINAL members of ORG , and finally the passing of the bill by ORG .

The debates and votes of ORG are confidential and only ORG members can participate in the meetings . The decision to grant or refuse nationality is discretionary and not subject to any form of judicial review ( however , see below ) .

CARDINAL bills are usually passed per year , in DATE . The passing of naturalisation bills in ORG follows the same procedure as other bills , which means CARDINAL readings of the bill before it is passed by ORG . The LAW is then promulgated in LAW ) .

The initial examination of applications for naturalisation by Act of ORG is carried out by ORG . When preparing naturalisation bills and assessing whether applicants can be listed in a naturalisation bill , ORG is obliged to adhere to ORG contained in a circular ( ORG om dansk indfødsret ved naturalisation ) , in force at the relevant time , as agreed by the majority in ORG ( Circular Letter No . CARDINAL of DATE at the relevant time ) . The guidelines stipulate the requirements that must be satisfied in order for applicants to be listed in a naturalisation bill without prior submission of their application to ORG . Applicants listed in a naturalisation bill therefore have either satisfied the requirements of the LAW or have been exempted from certain requirements following the submission of their application to the ORG . On this basis , the parties in Government who agreed on the Guidelines will vote in favour of the ORG ’s naturalisation bill at the readings of the bill in ORG . If an applicant fails to meet CARDINAL or more of the requirements set out in ORG , the Ministry will refuse the application in accordance with the authorisation given to ORG . The decisions by ORG to submit or refuse to submit cases to ORG , as well as the decisions of ORG , are not made pursuant to a statute , but are classified as preparation of a statute . Hence the procedure can not be characterised as an administrative process . Nevertheless , in resolution no . CARDINAL of DATE , ORG instructed ORG to comply with international conventions , and the rules of LAW and other principles of public administration to the extent possible , when preparing naturalisation bills .

By virtue of LAW , section CARDINAL , of the LAW , review by the courts of the administration ’s general and specific decisions is a common legal remedy . The courts can not review the exercise of administrative discretion ( see , for example , ORG ( ORG ) for DATE , p. CARDINAL ( U.CARDINAL.CARDINALH ) ) , but they can conduct a judicial review of the competence of the authority , the observance of formal rules , and the legal basis of an administrative decision , including whether it is in accordance with GPE ’s obligations under the Convention .

Thus , in various cases the NORP courts have reviewed whether the administrative authorities’ decision was in accordance with LAW , alone or taken in conjunction with LAW ( see , for example , PERSON v. GPE [ ORG ] , no . CARDINAL , § § DATE , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE and PERSON v. GPE ( dec . ) , CARDINAL , DATE , referring to ORG , p. DATE , concerning respectively family reunification , the lapse of a residence permit and a deportation order ; moreover , although a decision by ORG ( PERSON ) is final pursuant to section CARDINAL , subsection CARDINAL , of LAW ( GPE ) , an alien may , by virtue of LAW , bring the case before the courts for a review of the legality of the administrative decision , including the compliance with LAW see , inter alia , PERSON v. GPE ( dec . ) , CARDINAL , CARDINAL DATE , referring to numerous ORG judgments DATE ) .

On DATE , ORG ( Højesteret ) passed a judgment ( U.CARDINAL.CARDINALH ) concerning the right to judicial review under LAW relating to the process of granting nationality . ORG stated , among other things :

“ ORG agrees with the view that the Minister ’s decisions to refrain from listing an applicant in a naturalisation bill or to refrain from submitting an application to ORG are elements of the legislative process . LAW , according to which the courts are empowered to decide any questions relating to the scope of the executive authority , does not apply to such decisions as no authority is exercised by the executive , see in this respect ORG judgment , reproduced on page CARDINAL of the NORP Weekly Law report ( GPE ) DATE .

GPE has acceded to LAW and several other international conventions that may be significant to the processing of applications for or to the grant of nationality . Accordingly , GPE has assumed a number of obligations under international law , compliance with which is assumed , also in the preparatory works of LAW ( Indfødsretsloven ) , when ORG and ORG exercise their discretion as to whether NORP nationality should be granted to an applicant , see in this respect PERSON , ORG on Parliamentary Proceedings ( GPE ) DATE , supplement A , column DATE . An applicant who has not been included in a naturalisation Act can therefore request the courts to review whether obligations under international law have been breached , and whether the applicant has a claim for damages or compensation in that connection . Such judicial review will not be contrary to the authority of the ORG or ORG under Articles CARDINAL and CARDINAL ) of LAW , regarding the introduction of bills , or under LAW ) on naturalisation by law . By contrast , these provisions precluded any judicial review of claims to the effect that the applicant must be listed in a naturalisation bill or must be granted nationality by an LAW . ” ...

In the case in question , ORG ruled in favour of the appellant and remitted the case to ORG for retrial on the merits ( whether the appellant , on the ground of his diagnosis ( PTSD ) , had suffered discrimination in violation of LAW in conjunction with LAW .


Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

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

Following the delivery of the judgment by ORG in the applicant ’s case , the applicant lodged an application with ORG of GPE , asking it to review the judgment of DATE as upheld on DATE by the ORG whereby ORG had revoked the applicant ’s title to the flat located at MONEY , GPE , ordered his eviction and returned the flat to GPE .

On DATE ORG dismissed the applicant ’s application . The applicant appealed . The parties have not informed ORG outcome of the proceedings .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s wife , PERSON . , gave birth to a son , A.

The family lived at the applicant ’s flat , where ORG had his registered residence . He received ongoing paediatric care at the neighbourhood children ’s clinic and attended a neighbourhood nursery school .

NORP In DATE PERSON . decided to leave the applicant . She moved back to her GPE residence and took PERSON with her . A. has been living with her ever since .

On DATE the applicant applied to the Justice of the Peace of ORG of GPE of GPE for a residence order under which A. would live with him . He was instructed to make corrections to his claim , which he did on DATE . On DATE the case was transferred to ORG of GPE . It registered the case on DATE and scheduled the first hearing for CARDINAL DATE .

On DATE PERSON . lodged a counterclaim , asking for a residence order under which A. would live with her , and for an interim measure pending the proceedings . She claimed , in particular , that there was a risk that the applicant might kidnap A. and take him to GPE , where his stepfather had a house . She stated that he had already tried to take GPE away from her and had in particular attempted to pick him up from the boy ’s nursery school .

On DATE , DATE , ORG allowed PERSON . ’s request for an interim measure and forbade the applicant from contacting PERSON or picking him up from the nursery school without PERSON . ’s prior permission . It held as follows :

“ The subject matter of the case is the residence of a child [ A. ] born in DATE . The parents have been unable to come to an agreement on this matter . The child is now living with his mother [ PERSON . ] . The court therefore considers that the requested interim measure would be proportionate to the claim . Otherwise , failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment . ”

NORP The applicant learned of the interim measure on DATE . On DATE he came to visit A. at the nursery school and the teachers refused to let him see the boy , citing the interim order .

NORP In DATE and DATE the FAC and PERSON childcare authorities examined the applicant ’s and PERSON . ’s flats and found their living conditions satisfactory and suitable for a small child .

The first hearing was scheduled for DATE but it was adjourned until DATE at the applicant ’s request . The next hearing was scheduled for DATE but it was also adjourned until DATE for the purposes of “ obtaining evidence ” .

On DATE the FAC childcare authority issued its report on the case . It considered that , by reason of his very young age , A. should reside with his mother . The childcare authority considered that it was particularly important for a child to be raised by the mother until DATE . A lack of maternal care during that period , and in particular during the behavioural crises that a DATE typically undergoes , could result in the child developing negative character traits , such as stubbornness , surliness , hysterical reactions and inadequate social adaptation . The residence arrangements could be reconsidered after A. had reached DATE .

On DATE GPE ordered an expert psychological examination and adjourned the proceedings . The experts were asked their opinion on what residence arrangements would be in PERSON ’s best interests .

On DATE the applicant lodged an appeal with ORG against the decision of DATE ordering an expert examination . The appeal hearing was scheduled for DATE but was adjourned until CARDINAL DATE because the parties did not appear . On DATE ORG upheld on appeal the decision of CARDINAL DATE . The case file was sent to the experts on DATE .

Meanwhile , as PERSON . had prevented him from seeing PERSON , the applicant applied to the childcare authority for a contact order . On DATE the childcare authority rejected the application , referring to the interim measure imposed by ORG .

On DATE ORG received by post the applicant ’s appeal , dated DATE , against the decision of DATE ordering the interim measure . The applicant submitted that there had been no justification for the interim measure , which had been motivated solely by the prevailing belief that a child should be raised by the mother rather than the father . He further submitted that the interim measure was contrary to A. ’s best interests . A lack of contact with his father and the paternal family PERSON grandparents , uncle , aunt and cousins DATE to whom he was very attached might cause A. psychological trauma . It might , moreover , result in A. ’s estrangement from his father or , given his very young age , even his forgetting his father altogether . It also created a risk that PERSON . might turn PERSON against his father . It might in turn mean that the results of any future expert examinations – and , by extension , any future judicial decision on the child ’s residence DATE would be biased against the applicant . Lastly , the applicant submitted that the interim measure breached his right to maintain contact with his son .

On DATE the Justice of the Peace of ORG of LOC of GPE convicted PERSON . of assault and battery , a criminal offence under LAW . In particular , the court found it established that on DATE the applicant had approached PERSON . and PERSON while they were playing at the local public beach and had hugged his son . PERSON . had immediately snatched the boy away from him and had hit the applicant CARDINAL times , causing him bodily injuries , before carrying the boy away . A fine was imposed on her .

On DATE the experts issued their report . They found that it would be beneficial for A. to maintain contact with both parents . He was equally attached to both of them . Both parents were equally capable of raising the child . The serious conflict currently persisting between the parents could negatively affect ORG ’s psychological development .

On DATE the proceedings were resumed . Hearings were scheduled for DATE and DATE but could not take place because some of the participants did not appear .

On DATE the PERSON childcare authority issued its report on the case . It found that A. should reside with his mother , referring to A. ’s young age and the fact that he had lived with his mother for some time already and was attending a neighbouring nursery school .

During the hearing of DATE the applicant lodged an objection against the judge of ORG , submitting that she ( that is to say the judge ) had stated on several occasions that she would rule against the applicant because according to the established practice of GPE a residence order was always made in favour of the mother . The judge dismissed the applicant ’s objection .

On DATE ORG allowed a request lodged by the applicant for the proceedings to be stayed ; it accordingly stayed the residence order proceedings pending the criminal proceedings against PERSON .

On DATE ORG upheld PERSON . ’s criminal conviction on appeal . The conviction acquired binding force .

On DATE ORG quashed on appeal the decision of CARDINAL DATE ordering the interim measure . It found that the interim measure had been unconnected to the subject matter of the case and had therefore been disproportionate . There had been no evidence that the execution of the forthcoming judgment might be complicated or impossible . By applying the interim measure , the judge had prejudged the case . ORG remitted PERSON . ’s request for an interim measure for fresh examination by ORG , which rejected it on DATE as unsubstantiated .

Meanwhile , on DATE the childcare authority instructed PERSON . that she should stop preventing PERSON from seeing his paternal family .

On DATE the ORG granted the divorce of the applicant and PERSON .

On DATE ORG , acting by way of supervisory review , quashed the judgment of CARDINAL DATE upholding PERSON . ’s conviction and remitted the criminal case for fresh examination by the appellate court .

On DATE the ORG resumed the residence order proceedings and held a hearing .

During the hearings the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighbourhood , with parks and schools in the vicinity . Before the applicant ’s separation from his former wife , PERSON had attended a nursery school in that neighbourhood . The applicant also had a countryside residence . Being the owner of his own business , he had flexible working hours and could therefore devote a lot of time to his son . He had always paid child maintenance and his income permitted him to give the child a good education . There was a strong personal attachment between the applicant and his son ; PERSON was also very attached to his paternal family – especially his cousin , who was of the same age . The applicant had positive character references : he was calm , polite and affectionate towards his son . By contrast , PERSON . was aggressive and irresponsible . She had physically assaulted him in front of A. and had been criminally convicted in connection with that incident . She had also been convicted of the administrative offence of leaving the scene of a road accident and had had her driving licence suspended for DATE . As could be seen from the documents submitted by the applicant to the court , she lived in a severely polluted and criminally unsafe neighbourhood in the vicinity of an oil refinery plant and a prison . Moreover , PERSON . shared her flat with her mother , who smoked and abused alcohol and could therefore have a bad influence on A. Until recently , PERSON . had prevented the applicant and his relatives from seeing PERSON , and currently she allowed occasional contact only .

The applicant ’s mother and sister stated that PERSON . prevented them from seeing PERSON . was often aggressive and occasionally abused alcohol . All her family smoked , even in the child ’s presence . A. was very attached to his father and obviously suffered from their forced separation .

Ch . stated that the applicant would have no time to take care of the child as he was managing a business , was following a distance - learning course at a university and had earlier stated his intention of building a countryside residence . PERSON . had a higher education and was working . The alleged defects in her character and behaviour to which the applicant had referred had been confirmed by his relatives only .

A teacher from ORG ’s current nursery school stated that she had seen the applicant once and that he had made a bad impression on her . On DATE he had come to the nursery school and had told her that he wanted to take A. home with him . When she had refused to let him in , referring to the court order prohibiting any contact between them , he had become agitated and had talked about taking A. away with him when the children went out for a walk .

The director of the nursery school gave a similar description of the incident . She said that the applicant had become angry when he had learned of the court decision ordering the interim measure , had asked for a copy of that measure and had called his lawyer .

The following documents were submitted by the parties for the court ’s examination : ( i ) the applicant ’s and PERSON . ’s pay statements , ( ii ) documents showing that the district where PERSON . lived was among the most polluted districts of GPE , ( iii ) documents from the criminal case file against PERSON . , and ( iv ) documents relating to A. ’s medical history and PERSON ’s pre - school education both at the applicant ’s place of residence prior to his GPE separation and at the mother ’s place of residence after the separation .

On DATE the ORG granted PERSON . ’s application for a residence order in her favour and dismissed a similar application by the applicant . It held as follows :

“ Having examined the entirety of the evidence , the court finds that there is a very serious conflict between the parties as regards the child ’s residence arrangements , ... which has a negative impact on the child by creating a psychologically unhealthy and tense atmosphere around him . At the same time , each parent , taken alone , possesses moral , personal and other qualities rendering each of them capable of raising a small child . According to the expert report , the child is equally attached to both of them . It also follows from the expert report that the GPE improper behaviour towards each other may have negative psychological consequences for the child .

The court notes that [ ORG . ’s ] criminal conviction for assaulting [ the applicant ] has not yet acquired binding force . It however takes into account the criminal charges brought against her . It is clear that the incident was prompted by the personal hostility [ between the applicant and PERSON . ] caused by a disagreement on the issue of their son ’s residence and education . In the court ’s opinion , these charges can not constitute a decisive reason for making a residence order in favour of the father . There is an accumulation of reasons on the basis of which the court considers that the child should live with the mother .

In the present case the court is guided by the best interests of child [ A. ] , who at the moment of the judgment has not yet reached DATE and who has an established way of life . For a long time the child has lived with his mother at her place of residence and has attended a nursery school there . Given his age , a change of residence and a separation from the mother will have a negative impact on the child ’s general and psychological state .

The court considers that [ the applicant ’s ] arguments that the district where [ ORG . ] lives is polluted and that close members of her family smoke can not serve as a basis for making a residence order in favour of the father because , as mentioned above , a change of residence will have a negative impact on the child . [ The applicant ’s ] arguments that he has better living conditions and a better financial situation than [ PERSON . ] are not decisive for granting a residence order to the father either .

The childcare authorities are unanimous that it is in [ A. ’s ] interests to live with the mother . The court agrees with that finding .

The court also finds that [ the applicant ’s ] request for a residence order is at the moment premature . [ The applicant ] is entitled to apply for a reconsideration of the issue after ORG has reached a more conscious age [ по достижению сыном более сознательного возраста ] . ”

The applicant appealed , repeating the arguments he had raised before ORG . He relied , in particular , on the right to equality between spouses .

On DATE ORG upheld the judgment of CARDINAL DATE on appeal , finding that it had been lawful , well - reasoned and justified .

On DATE the ORG of GPE found it established that PERSON . was preventing the applicant and his family –namely his mother , brother and sister – from seeing A. It held that PERSON was entitled to maintain contact with his father and his paternal family and determined the contact schedule as follows . The applicant should be able to have contact with PERSON ( i ) on DATE from TIME on DATE until TIME on DATE at the applicant ’s place of residence , in the mother ’s absence and with the right to attend outdoor activities for children , and ( ii ) for DATE during DATE during DATE on dates agreed with the mother , provided that the child is in good health , with the right to leave GPE and to go abroad . The applicant ’s mother , brother and sister should be able to have contact sessions with A. from TIME until TIME on DATE at the applicant ’s place of residence .

On an unspecified date ORG upheld that judgment on appeal .

On DATE the ORG upheld PERSON . ’s conviction for assault and battery on appeal .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Just satisfaction);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

In DATE his former employer , company PERSON , transferred him to another company .

On DATE the applicant instituted proceedings against the company GPE before ORG , complaining about his transfer .

On DATE the ORG came into force in respect of GPE .

In DATE the applicant ’s case was transferred to the ORG division of ORG .

DATE the court held CARDINAL hearings .

On DATE ORG established that the applicant ’s transfer had never taken effect and that his employment with the defendant had continued . It ordered company GPE to re - employ the applicant and to pay him the salary due and the applicable benefits backdated to DATE of his transfer . It dismissed the remainder of the claim . The applicant appealed .

NORP In a decision of DATE the NORP Pensions and ORG recognised the applicant ’s right to a pension as of DATE . His employment relationship with GPE , which as of that date had still not re - employed him , hence terminated .

On DATE the judgment of CARDINAL DATE was upheld by ORG and became final .

As GPE had not executed the court ’s judgment , on DATE the applicant instituted enforcement proceedings before ORG .

On DATE the court suspended the enforcement proceedings pending a final resolution of bankruptcy proceedings which had been instituted in the meantime against GPE ( see below ) .

On DATE the court decided to terminate the enforcement proceedings , since the applicant ’s claims had been recognised in the bankruptcy proceedings . The decision became final on DATE .

On DATE the FAC decided to institute bankruptcy proceedings against the company GPE

On DATE the applicant lodged a claim in the bankruptcy proceedings , seeking CARDINAL NORP tolars ( SIT , MONEY ( ORG ) ) payable under the judgment of DATE ( see paragraph CARDINAL above ) .

On DATE the court held the first main hearing in order to review the claims lodged by the creditors . It was decided that a committee of creditors would not be appointed . According to the applicant , both the receiver and the insolvency panel had assured him and his son , GPE , who represented him , that they would inform them of any progress in the case , in particular of the scheduling of hearings concerning the distribution of the estate . On DATE the insolvency panel acknowledged part of the applicant ’s claims and referred him to the contentious proceedings in respect of the remainder of the claims . The applicant appealed .

On DATE ORG upheld the applicant ’s appeal and overturned ORG decision by instructing the receiver to institute proceedings in respect of the disputed part of the applicant ’s claim .

On DATE the official receiver instituted proceedings before the Slovenj ORG , requesting it to declare that the disputed part of the applicant ’s claim did not exist .

On DATE the receiver reported to the insolvency panel that the conclusion of the proceedings was dependent on the conclusion of bankruptcy proceedings in respect T. , a company that had been operated by GPE It was expected that a large proportion of ORG property would be transferred back to GPE , including a hotel and spa complex , ORG The receiver estimated that until that had been done , the property available for sale would not even cover the costs of the bankruptcy proceedings .

On DATE the receiver withdrew his claim against the applicant .

As a result , on CARDINAL May CARDINAL the ORG stayed the contentious proceedings .

On DATE the receiver accepted the applicant ’s claim in the full amount .

On DATE the applicant demanded the payment of his claim .

In his regular reports to the insolvency panel submitted DATE , the receiver emphasised that the termination of the present proceedings was dependent on the termination of the bankruptcy proceedings in respect of company ORG , which in turn were dependent on the pending denationalisation proceedings in respect of the ORG hotel complex .

In DATE ownership of the hotel complex , ORG , was transferred to the company GPE According to the receiver ’s reports , it could not be sold until the termination of the denationalisation proceedings .

On DATE the denationalisation proceedings were finally resolved .

On DATE the insolvency panel ordered the sale of the ORG hotel complex .

At a public auction held on DATE , ORG was sold for ORG CARDINAL . Reports on the sale were published online on the Bajta.si web portal , on a web portal for accountants , Racunovodja.si , on ORG website , and in the DATE financial newspaper , ORG .

On DATE the receiver submitted to the court a draft proposal on the main distribution of the estate . The receiver further proposed that the court issue a decision on the priority payment of the claim of the first creditor , ORG , concerning compensation for damage sustained at work , which had been recognised by a court decision .

On DATE the Slovenj ORG issued a decision on the compensation to be paid to ORG and posted it on the court ’s notice board .

On DATE the insolvency panel of ORG endorsed a draft proposal on the distribution of the bankrupt company ’s estate to the CARDINAL remaining creditors . It was proposed that each of them receive PERCENT of the claim acknowledged in the proceedings , which in the applicant ’s case amounted to ORG . The court scheduled a further hearing for DATE to confirm the distribution of the estate .

On DATE , DATE , ORG published its decision and posted the notification of the hearing on the court ’s notice board . It informed the creditors that they could lodge their objections in respect of the distribution proposal at the hearing itself or in writing before the hearing .

On DATE the notification of the hearing , with its date and venue , was published in ORG .

On DATE ORG held the hearing on the distribution of the estate and confirmed the receiver ’s distribution proposal . Its decision was posted on the court ’s notice board on DATE and could have been challenged within DATE .

As no appeal was lodged against the decision of DATE , it became final on DATE .

DATE the applicant became aware that the decision on distribution had already been issued . On DATE he sent a letter to ORG , asking it to serve him with the decision of DATE so that he could lodge an appeal against it .

NORP In its reply of DATE ORG asked the applicant to specify whether it should consider his letter as an appeal against the aforementioned decision .

On DATE the court decided to terminate the proceedings . It ruled that since the applicant had refused to accept the sum awarded to him , it should be deposited with the court .

On DATE the applicant amended his submission in accordance with the court ’s inquiry of DATE , specifying that he was complaining against the decision of DATE ( see paragraph CARDINAL above ) .

On DATE the applicant appealed against the decision of CARDINAL DATE to terminate the bankruptcy proceedings ( see paragraph CARDINAL above ) . He argued that he had not been properly informed about the hearing of DATE on the distribution of the estate ( see paragraph CARDINAL above ) and that it was unrealistic to expect him to follow for DATE the notices posted on the court ’s board and to read all ORG in order to be informed of the progress in the proceedings . Moreover , he maintained that he should have been awarded the full amount claimed in the bankruptcy proceedings , since , like all the other employees to whom the company owed salary arrears , he had been a priority creditor in those proceedings .

On DATE the Slovenj ORG , considering the applicant ’s submissions of DATE and DATE as an appeal against the decision of DATE , rejected the appeal as being out of time .

On DATE the applicant lodged an appeal against the above decision . He argued that he had not been properly informed about the bankruptcy proceedings , that he should have been treated as a priority creditor , and that the bankruptcy court should have ruled ex officio on whether his claims had been ranked correctly and granted him the full amount claimed .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE ( see paragraph CARDINAL above ) , holding that he should have challenged the ranking of his claims at the hearing before the first - instance court . Relying on section CARDINAL of the Compulsory Composition , Bankruptcy and Liquidation Act ( see paragraph CARDINAL below ) , it further concluded that the hearing on the distribution of the estate had been correctly scheduled .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE .

On DATE the applicant lodged a constitutional complaint against the decisions of ORG DATE and DATE , reiterating in substance his complaints before the lower courts .

DATE . On DATE ORG rejected the applicant ’s constitutional complaint .


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

Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva

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

On DATE ORG ( Sąd Rejonowy ) ordered the applicant ’s detention on remand for DATE . He was charged with a number of offences committed with an armed organised criminal group .

NORP In its decision , ORG relied on a reasonable suspicion that the applicant had committed the offences in question . The court further emphasised the gravity of the offences in question , the applicant ’s active role in the criminal group and the likelihood of a heavy prison sentence being imposed on him after conviction . In the domestic court ’s view the fact that the applicant was at the time detained pending other criminal proceedings against him did not guarantee the proper course of the proceedings since the applicant could had been released at any time from the pre - trial detention without the relevant authorities , responsible for the impugned proceedings , being notified . Moreover , the necessity to obtain further evidence justified remanding the applicant in custody .

The applicant ’s appeal against the decision of DATE was dismissed by ORG ( PERSON ) on DATE . The court emphasised that the applicant ’s detention on remand was necessary even though at the relevant time he was in any event detained pending another set of criminal proceedings against him .

On DATE and DATE ORG extended the applicant ’s pre - trial detention . Subsequently , ORG ( Sąd Apelacyjny ) extended the applicant ’s detention on DATE , DATE , DATE , DATE , CARDINAL DATE and on DATE .

On DATE ORG ( Prokurator PERSON ) lodged a bill of indictment against the applicant with ORG . The applicant was charged with several counts of extortion and robbery committed in an organised and armed criminal group and with participation in an organised and armed criminal group . The bill of indictment comprised CARDINAL charges brought against CARDINAL defendants . The prosecution authorities requested that CARDINAL witnesses be heard before the court .

On DATE the ORG extended the applicant ’s detention on remand until DATE . Subsequently , the same court ordered prolongation of his detention on DATE ( detention extended until DATE ) , on DATE ( detention extended until DATE ) and on DATE ( detention extended until DATE ) . The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre - trial detention , all in vain .

In their decisions the courts repeated the grounds previously given for the applicant ’s detention .

On DATE the applicant ’s lawyer lodged an appeal against CARDINAL of the decisions extending the applicant ’s detention . The lawyer argued that the reasons for continued pre - trial detention ceased to exist since the applicant had started serving a CARDINAL years’ prison sentence imposed by ORG in the case no . PERSON .

Meanwhile , the court scheduled QUANTITY hearings for DATE . Due to sick - leaves of the presiding judge and of some of the accused those hearings did not take place .

The trial was eventually opened on DATE . Subsequent scheduled hearings were adjourned due to absences of some of the co - accused and due to problems with sound system in the court room .

In DATE ORG gave a severance order and decided to determine charges against CARDINAL co - accused separately .

The bill of indictment was finally read out to the defendants at the hearing held on DATE .

At the hearing of CARDINAL DATE ORG started taking evidence from the accused . It subsequently held CARDINAL hearings until DATE , during which some of the accused gave evidence . CARDINAL of the scheduled hearings were adjourned due to sick - leaves of the accused . CARDINAL hearing was adjourned because of the motion for disqualification of the presiding judge lodged by CARDINAL of the co - accused .

In DATE ORG continued taking evidence from the defendants . Of the CARDINAL hearings scheduled for DATE , CARDINAL took place . The trial court adjourned DATE hearings due to justified absences of the parties , QUANTITY hearings were cancelled due to sick - leaves of the presiding judge and the lay judges .

Meanwhile , on CARDINAL DATE ORG lodged a motion with ORG to extend the applicant ’s pre - trial detention . On DATE ORG dismissed the lower court ’s motion .

Consequently , the applicant ’s pre - trial detention was lifted on DATE .

ORG scheduled CARDINAL hearings for DATE , of which CARDINAL hearings were eventually held . At the hearing of DATE the trial court started taking evidence from wit

nesses .

Of the CARDINAL hearings cancelled DATE , CARDINAL were adjourned because of a sick - leave of the presiding judge , CARDINAL because of absences of witnesses , and the remaining QUANTITY hearings – because of absences of the parties .

Until DATE ORG scheduled CARDINAL hearings for DATE , of which CARDINAL were adjourned due to justified absences of the defendants .

The criminal proceedings against the applicant are still pending before the first - instance court .

On DATE the applicant lodged a complaint with ORG under LAW on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki DATE “ the CARDINAL Act ” ) . He sought a finding that the length of the criminal proceedings against him had been excessive and MONEY ( ORG ) in compensation .

On DATE the ORG dismissed the applicant ’s complaint . The court found that , considering the complexity of the case and the number of co - accused who had actively tried to obstruct the proceedings , ORG had conducted the proceedings in a correct and timely manner . Consequently , the appellate court refused to award the applicant compensation .


CASE OF PARADISO AND CAMPANELLI v. ITALY

Preliminary objection allowed (Article 35-3 - Ratione personae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in DATE and DATE respectively and live in LOC .

The applicants are a married couple . In the application form , they indicated that , after unsuccessful attempts at in vitro fertilisation , they decided to resort to gestational surrogacy in order to become parents . To that end , they contacted a GPE - based clinic which specialised in assisted reproduction technology . They entered into a gestational surrogacy agreement with the company PERSON . After a successful in vitro fertilisation on DATE , CARDINAL embryos “ belonging to them ” were implanted in the womb of a surrogate mother on DATE . There was no genetic link between this woman and the embryos .

The baby was born on DATE . The surrogate mother gave her written consent to the child being registered as the applicants’ son . Her written declaration , dated DATE , and read aloud at the hospital in the presence of her doctor , the head doctor and the head of the ( hospital ) department , is worded as follows ( LANGUAGE translation of the original LANGUAGE version ) :

“ I , the undersigned ... gave birth to a boy in the ... maternity hospital in GPE . The child ’s parents are an NORP married couple , PERSON , born on ... and PERSON , born on ... , who expressed in writing their wish to have their embryos implanted in my womb .

On the basis of the foregoing and in accordance with section CARDINAL(CARDINAL ) of LAW and LAW , I hereby give my consent for the above couple ’s entry in the birth record and the birth certificate as parents of the child to whom I gave birth ... ”

This statement , in the NORP translation appended to the original , reads as follows ( in LANGUAGE ) :

“ I , the undersigned ... gave birth to a boy in the ... maternity hospital in GPE . The child ’s genetic parents are an NORP married couple , PERSON , born on ... and PERSON , born on ... , who expressed in writing their wish to have their embryos implanted in my womb .

On DATE , in accordance with NORP law , the applicants were registered as the baby ’s parents . The NORP birth certificate , which contained no reference to the gestational surrogacy , was certified in accordance with the provisions of LAW of DATE ( hereafter , “ the LAW ” ) Abolishing the Requirement of Legalisation for Foreign Public Documents .

On DATE the first applicant went to FAC in GPE to obtain the documents that would allow the baby to leave for GPE with her . The applicant answered questions and submitted the paperwork concerning the child ’s birth . ORG issued the documents enabling the boy to leave for GPE with the first applicant .

On DATE the first applicant and the child arrived in GPE . DATE the second applicant contacted the ORG , requesting that the particulars of the birth certificate be entered in the register .

In a note of CARDINAL DATE which is not included in the ORG ’s casefile CARDINAL the NORP FAC in GPE indicated to ORG , ORG and ORG and municipality that the paperwork in respect of the child ’s birth contained false information .

On CARDINAL DATE the applicants were placed under formal investigation for “ altering civil status ” within the meaning of LAW and forgery within the meaning of ORG CARDINAL and CARDINAL of the Criminal Code ; and also for breaching section CARDINAL of LAW ( Law no . CARDINAL/CARDINAL ) , since they had brought the child into the country in breach of the law and had circumvented the condition set out in the adoption authorisation obtained by them on DATE , which prohibited them from adopting such a young child .

On CARDINAL DATE ORG attached to ORG asked that proceedings to free the child for adoption be opened , since the child ought to be considered , for legal purposes , as having been abandoned . On DATE ORG appointed a guardian ad litem ( curatore special ) within the meaning of LAW no . CARDINAL and opened proceedings to free the child for adoption . On CARDINAL DATE ORG asked for a court - appointed adviser ( curatore ) to be named within the meaning of sections CARDINAL and CARDINAL of Law no . CARDINAL . A court - appointed adviser was named . It appears from the case file that the applicants protested against the measures in respect of the child and had asked to be able to adopt him .

On DATE the first applicant , assisted by a lawyer of her own choosing , was questioned by the Larino carabinieri . She stated that she had travelled to GPE alone in DATE , carrying with her seminal fluid that had previously been collected from her husband . She had concluded a contract with the company PERSON , which had undertaken to find a surrogate mother willing to have implanted in her womb genetic material from the first applicant and her husband , through ORG in GPE . This practice was perfectly legal in GPE , and made it possible to obtain a birth certificate which identified the applicants as parents . In DATE the first applicant had been contacted by the NORP company , which stated that a surrogate mother had been found and had agreed to the medical procedure . On DATE the first applicant had travelled to GPE . In DATE , with a birth certificate issued on DATE by the NORP authorities , she had gone to ORG in GPE to obtain the documents that would enable the child to leave GPE and travel to GPE . The birth certificate showed the applicants’ names and identified them as the parents .

On DATE the applicants were heard by ORG . The first applicant stated that , after CARDINAL unsuccessful attempts at in vitro fertilisation , which had endangered her health , she had resorted to the NORP clinic , since it had been possible in GPE to use ova from a donor , which were subsequently implanted in the surrogate mother ’s womb .

At the same time , the child ’s court - appointed adviser asked the court to suspend the applicants’ parental responsibility within the meaning of section QUANTITY of Law no . CARDINAL .

On DATE the court ordered that DNA testing be carried out in order to establish whether the second applicant was the child ’s biological father .

On DATE ORG asked ORG to refuse to enter the particulars of the birth certificate in the civil - status register .

On DATE the second applicant and the child underwent DNA testing . The result of those tests showed that there was no genetic link between them .

On DATE ORG refused to register the birth certificate . The applicants lodged an appeal with ORG against this refusal . ORG asked the court to give the child a new identity and to issue a new birth certificate .

ORG having ruled on DATE that it did not have jurisdiction , the proceedings resumed before ORG . The applicants demanded that the particulars of the NORP birth certificate be entered in the NORP register .

On DATE , on the basis of the genetic testing and the submissions of the parties , including those of the child ’s court - appointed adviser , ORG decided to remove the child from the applicants . This decision was immediately enforceable . In reaching its decision , the court took account of the following factors : the first applicant had stated that she was not the genetic mother ; the ova came from an unknown woman ; the DNA test carried out on the second applicant and the child had shown that there was no genetic link between them ; the applicants had paid a large sum of money ( MONEY ( ORG ) ) ; contrary to his allegations , there was nothing to prove that the second applicant ’s genetic material had indeed been transported to GPE . The only thing that was certain in this story was the identity of the surrogate mother , who was not the biological mother and who had relinquished the child just after his birth . The biological parents remained unknown . That being the case , the situation was not CARDINAL of subrogated maternity , since the child had no biological link with the applicants . The latter were steeped in illegality : they had brought a child into GPE by passing him off as their son . In so doing , they had , in the first place , breached the provisions on international adoption ( PERSON no . CARDINAL of CARDINAL DATE ) , section DATE of which made such breaches a criminal offence , the assessment of which was not , however , a matter for the youth court . Secondly , the agreement entered into by the applicants with the company PERSON was contrary to the Medically Assisted Reproduction Act ( Law no . CARDINAL of DATE ) , section CARDINAL of which prohibited heterologous assisted fertilisation . This illegal situation had to be brought to an end , and the only way to do so was to remove the child from the applicants . The child would admittedly suffer harm as a consequence of the separation but , given the short period spent with the applicants and his young age , the child would be able to surmount this . Steps would be taken immediately to find a couple of adoptive parents . In addition , given that the applicants had preferred to circumvent the adoption legislation , notwithstanding the authorisation they had received , it could be thought that the child resulted from a narcissistic desire on the part of the couple or indeed that he was intended to resolve problems in their relationship . In consequence , the court cast doubt on whether they were genuinely capable of providing emotional and educational support . As the child had neither a biological family nor his surrogate mother , since she had relinquished him , the court considered that the NORP legislation on adoption was applicable to this case ( within the meaning of CARDINAL of PERSON no . CARDINAL ) , entrusted the child to the social services and appointed a guardian ( tutore ) for his defence .

The child was placed in a children ’s home ( casa famiglia ) in a locality that was unknown to the applicants . They were forbidden from having contact with the child .

The applicants lodged an appeal ( reclamo ) with ORG . They argued , inter alia , that the NORP courts could not call into question the birth certificate . They further requested that no measures be taken concerning the child while the criminal proceedings brought against them and the proceedings challenging the refusal to enter the birth certificate in the NORP register were pending .

By a decision of CARDINAL DATE , ORG dismissed the appeal . It transpires from this decision , among other points , that section CARDINAL of Law no . CARDINAL ( LAW ) did not prevent the NORP courts from refusing to comply with certified information from a foreign ORG . There was no issue of lack of jurisdiction , since LAW of LAW ( Law no . CARDINAL ) provided that NORP law was applicable if the alien minor had been abandoned , and that was the situation in this case . Moreover , it was unnecessary to await the outcome of the criminal proceedings , since the applicants’ criminal liability was irrelevant . On the contrary , it was necessary to take an urgent measure in respect of the child , in order to put an end to the illegal situation in which the applicants existed . It was not possible to lodge an appeal on points of law against this decision .

It appears from a memorandum dated CARDINAL DATE , sent by the youth court to ORG , that the child had not yet been declared available for adoption , since the proceedings with regard to the transcription of the child ’s birth certificate were pending before ORG .

In the meantime , on DATE ORG attached to ORG had ordered the interim attachment of the NORP birth certificate , on the ground that it was an essential piece of evidence . It appeared from the case file that not only had the applicants probably committed the offences with which they were charged , but that they had attempted to conceal them . Among other things , they had stated that they were the biological parents , and had corrected their versions of the events over time as those versions had been proved inaccurate .

The applicants appealed against the interim attachment order .

By a decision of DATE , ORG dismissed the ORG appeal . The decision indicates that there existed serious suspicions that the offences in question had been committed . In particular , the first applicant had put about a rumour that she was pregnant ; she had gone to the FAC and implied that she was the natural mother ; she had then admitted that the child had been born to a surrogate mother ; she had stated to the carabinieri on DATE that the second applicant was the biological father , although the DNA tests had disproved this , and had therefore made false statements ; she had been very vague as to the identity of the genetic mother ; the documents concerning the surrogate motherhood stated that the CARDINAL applicants had been seen by the NORP doctors , which did not accord with the fact that the second applicant had not been in GPE ; the documents about the birth did not have a precise date . All that was known was that the child had been born and that he had been handed over to the first applicant against payment of almost EUR CARDINAL . Accordingly , the hypothesis that the applicants had conducted themselves illegally with a view to having the particulars of the birth certificate entered in the register of births , marriages and deaths and to circumventing the NORP legislation appeared sound .

In DATE the decision regarding the interim attachment was transmitted to the youth court by ORG , since it had the following implications . The charges under section CARDINAL of Law no . CARDINAL deprived the applicants of the possibility of fostering ( affido ) the child and of adopting him or other minors . There was therefore no other solution but to proceed with the adoption procedure for the child . The temporary placement with a foster family had been requested by virtue of sections CARDINAL and CARDINAL of Law no . CARDINAL . ORG repeated his request and emphasised that the child had been removed DATE previously , and that he had since been living in a children ’s home ( casa famiglia ) , where he had developed meaningful relationships with the persons responsible for looking after him . Thus , the child had not yet found a replacement family environment for the home that had been illegally provided by those who had brought him to GPE . He seemed destined for yet another separation , even more painful than that from the mother who had given birth to him and from the woman who was claiming to be his mother .

It appears from the file that the child was placed in a foster family on DATE .

In DATE , at the guardian ’s request , an expert examination was carried out to determine the child ’s age . It found that the child was probably DATE , with a margin of error of DATE .

In addition , at DATE the guardian asked the juvenile court to give the child a formal identity , so that he could be registered for school without difficulty . He stated that the child had been placed in a family on DATE , but that he did not have an official identity . This “ lack of existence ” had a significant impact on administrative matters : it was unclear under what name the child was to be registered for school , for vaccination records , or for residence . Admittedly , this situation corresponded to the aim of preventing the original family , that is , the applicants , from discovering the child ’s whereabouts , for his own protection . However , a temporary formal identity would enable the secrecy surrounding the child ’s real identity to be maintained , while simultaneously enabling him to have access to public services ; for the time being , he was entitled only to use emergency medical services .

By an immediately enforceable decision of DATE , ORG ruled in respect of the birth certificate and on whether an order should be made for it to be entered in the register of births , marriages and deaths ( within the meaning of LAW ( “ ORG ” ) no . CARDINAL ) . It dismissed the objection raised by the guardian to the effect that the applicants did not have standing before the court ; it acknowledged that the applicants had capacity to act in legal proceedings , in so far as they were indicated as the “ parents ” in the birth certificate that they wished to have transcribed . However , it was clear that the applicants were not the biological parents . There had not therefore been a gestational surrogacy , although the applicants had referred in their pleadings to heterologous artificial fertilisation ; the parties agreed that the NORP legislation presupposed a biological link between the child and CARDINAL of the potential parents before the term surrogate motherhood could be used . The birth certificate was therefore fraudulent ( ideologicamente falso ) . Further , given that there was nothing to show that the child had NORP citizenship , the ORG argument that NORP law was inapplicable ran counter to section CARDINAL of Law no . CARDINAL , which stated that the legal parent - child relationship was determined by the national law governing the child at the time of his or her birth . In addition , it was contrary to public order to enter the particulars of the disputed birth certificate in the register of births , marriages and deaths , since it was fraudulent . The applicants had pleaded their good faith , alleging that they were unable to explain why the second applicant ’s seminal fluid had not been used in the NORP clinic ; however , this did not alter the situation , and did not rectify the fact that the second applicant was not the biological father . In conclusion , it was legitimate to refuse to enter the particulars of the NORP birth certificate in the register of births , marriages and deaths , and to grant ORG request that a new birth certificate be issued . The court therefore ordered that a new birth certificate be issued , indicating that the child was the son of persons unknown , born in GPE on DATE , and that he be given a new name ( determined within the meaning of ORG no . CARDINAL ) .

The proceedings relating to the child ’s adoption were resumed before ORG . The applicants confirmed their opposition to the child ’s placement with third persons . The guardian asked the court to rule that the applicants no longer had locus standi . ORG asked the court not to rule on its request to declare that the child was available for adoption using the child ’s original name , on the ground that , in the meantime , he had opened a second set of proceedings requesting that the child be declared available for adoption using his new identity as a child of unknown parents . On DATE , in the light of the material in the file , ORG held that the applicants no longer had capacity to act in the adoption proceedings brought by them , given that they were neither the child ’s parents nor members of his family , within the meaning of section CARDINAL of Law no . CARDINAL . The court stated that it would decide on the question of the child ’s adoption in the context of the other adoption proceedings , referred to by ORG .


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

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and is currently being detained in FAC . He is married and has CARDINAL children . His wife resides in GPE together with their children .

On DATE ORG convicted the applicant of aggravated murder and sentenced him to DATE imprisonment . ORG also decided that the applicant would be deported to GPE at the end of his prison term .

NORP In his letters to the Court , which he began sending on DATE , the applicant complained of the inhuman conditions in which he was being detained , first in FAC and then in FAC . He described a severe lack of hygiene in both prisons , with insufficient cleaning and personal hygiene products being provided by the prison authorities . He alleged that he could not sleep at TIME because of bed bugs . He also complained that the food was not adapted to his diabetes .

The applicant further alleged that throughout his detention in both prisons he had not been included in any educational activities and had not been allowed to do any work . He had thus been unable to integrate , to be re - educated or to have the term of his prison sentence reduced .

In DATE the applicant was diagnosed with type II diabetes and a sleep disorder .

In LOC the applicant was detained in cells measuring CARDINAL sq . m , which he shared with CARDINAL other prisoners ( QUANTITY . m of personal space ) . The cells contained CARDINAL beds , a window measuring CARDINAL by QUANTITY and their own bathroom with a shower , a sink and a toilet . LOC water was always available and hot water was available twice per week . Heating was provided during the DATE up to a maximum temperature of CARDINAL

The Government submitted that , whenever the presence of bugs was noticed , disinfection operations took place without delay . They submitted documents showing that disinfection had been performed CARDINAL or CARDINAL times per year in DATE , DATE and DATE in the cells occupied by the applicant in LOC .

NORP The food provided to the applicant was adequate and adapted to his diabetes by substituting pork with beef .

The applicant participated in educational and recreational activities whenever necessary . The Government further indicated that the applicant ’s reduced participation in the above - mentioned activities was due to his state of health .

The Government submitted that on DATE the applicant had been transferred to FAC where he was currently being held in a cell measuring QUANTITY m together with CARDINAL other prisoners ( QUANTITY m of personal space ) . The cell contained CARDINAL beds , QUANTITY bedside tables , one bench , one table and a box for shoes . It had a window measuring CARDINAL by QUANTITY and a bathroom with a shower , a sink and a toilet . During DATE , a temperature of CARDINAL was ensured in all the cells . Hot water was provided twice per week .

With respect to the ORG personal hygiene , once per month the prison administration provided each prisoner with CARDINAL bars of soap , CARDINAL tube of toothpaste , CARDINAL tooth brush , CARDINAL tube of shaving cream , CARDINAL razor , and toilet paper . Concerning the hygiene in the cell , the Government submitted that prisoners were responsible for cleaning the cells and were provided with cleaning products by the prison administration . Regular disinfection was conducted once DATE .

The applicant received a menu adapted for his diabetes , which included QUANTITY grams of meat per day .

With respect to activities in FAC , the Government submitted that in DATE the applicant had watched a folk music concert and in DATE he had taken part in a discussion on religious themes conducted by the orthodox priest . Also , once in DATE and once in DATE the applicant had taken part in a quiz on NORP history .

In DATE the applicant lodged a request with ORG based on the provisions of the LAW between GPE and GPE on the transfer of convicted persons , seeking to serve the rest of his sentence in a NORP prison . According to the applicant , he wanted the transfer in order to be closer to his family , who lived in a NORP village in humble conditions and did not have the means to travel to GPE .

ORG acted on the applicant ’s request and initiated the transfer proceedings . As a result , on DATE ORG acknowledged the judgment of the NORP court which had convicted the applicant and decided that the rest of the applicant ’s sentence should be served in GPE .

On DATE the applicant ’s transfer request was brought before ORG . The applicant claimed before the court that such a transfer would be in accordance with the convention signed between GPE and GPE and would allow him to see his children and to receive visits from his family , who would provide him with adequate food and treatment for his diabetes .

In a judgment of DATE ORG rejected the applicant ’s transfer request , on the ground that GPE had less severe legal provisions on conditional release , which might lead to the applicant ’s release in a shorter period of time . The punitive and educational purpose of his sentence would thus fail to be achieved .

On DATE ORG rejected with the same reasoning a new transfer request lodged by the applicant .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement 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

The applicant was born in DATE and lives in GPE .

The applicant was employed by “ PIM – bagerovanje i vodni transport ” , a socially - owned company based in GPE ( “ the debtor ” ) .

On DATE ORG ( Drugi opštinski sud u ORG ) ordered the debtor to pay the applicant specified sums in respect of salary arrears , social security contributions and procedural costs . This judgment became final on the same date .

On DATE ORG ( PERSON opštinski sud u ORG ) issued an enforcement order with regard to the said judgement .

On DATE , acting upon the applicant ’s constitutional appeal , ORG held that the applicant had suffered a breach of the “ right to a trial within a reasonable time ” with regard to the enforcement proceedings . The court ordered the acceleration of the proceedings and declared that the applicant was entitled to compensation for the non - pecuniary damage suffered in the amount of LAW , converted into the national currency at the rate applicable at the date of settlement .

The enforcement proceedings instituted on the basis of the judgment rendered by ORG on DATE continued and are still pending .