Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant met PERSON , a NORP citizen , in GPE in DATE . They lived together in GPE .

On DATE a son , DATE , was born to them . TIME is a NORP citizen .

In DATE V.T. went with the child to visit her family in GPE . After DATE , the father went to GPE to fetch them . They all returned to GPE . In DATE the mother and their son went back to GPE for DATE . In DATE the mother wrote to the applicant stating that their relationship was over . She went to GPE shortly afterwards to collect their son ’s belongings and returned to GPE , where she remained with the boy . On DATE V.T. registered her and her son ’s permanent residence at her GPE address in GPE , GPE district in GPE .

The applicant claimed that his son had been abducted and held in GPE without his consent . He initiated proceedings before ORG , asking that the child be returned to GPE , which was his son ’s usual permanent place of residence .

By a decision of DATE , ORG dismissed the applicant ’s request . The applicant , GPE , CARDINAL of her lawyers and representatives of the NORP child care authorities were present at the hearing . The child care specialist asked the court to resolve the issue of the child ’s return to his country of birth as it saw fit . This notwithstanding , the authorities observed that the child had good living conditions in GPE and was growing up in a secure environment among loving people .

The court acknowledged that since his birth the boy ’s parents had taken care of him together and that consequently his permanent place of residence was GPE . Both of the parents had custody rights in respect of the boy . ORG also dismissed PERSON ’s allegation that the applicant had agreed that the child could settle permanently in GPE . Moreover , PERSON had no legal basis on which to decide to change the child ’s permanent place of residence on her own . Her refusal to return the child to the country of his birth after DATE could not be recognised as being justified .

ORG nevertheless ruled that the child should stay in GPE . In setting out its reasons , the court held that before arriving in GPE the child had lived in GPE for DATE . It was therefore his mother , who did not go out to work , who had predominantly taken care of him during that time . Moreover , his living conditions in GPE were worse than those in GPE . In particular , the boy and his parents had lived in GPE in CARDINAL small room , with construction work going on close by . By contrast , in GPE the child lived at GPE ’s GPE house where , according to a child care representative , the boy felt happy and was spry , active , communicative and loved . The court also observed that the boy ’s mother had taken care of him the entire time since birth , that they were very close and that the boy had never been left with a nanny or any other person . Furthermore , even though there was no evidence that the applicant had ever behaved improperly in front of the child , or that he had abused alcohol , used drugs or resorted to violence , the applicant had not demonstrated that he had the skills to take care of such a small child . Accordingly , the boy ’s separation from the mother and transfer to the father would not be in the child ’s interests . It followed that the child could be returned to GPE only with the mother . Given that the mother could not survive financially in GPE on her own and that the applicant refused to guarantee having enough money to maintain the child ’s mother or to guarantee living conditions for her if she were to come back with the child to GPE , the applicant ’s request that the child be returned to GPE had to be denied .

The applicant then started new court proceedings in ORG in GPE and GPE ( hereinafter DATE “ LOC ) . In DATE that court appointed a guardian ad litem for TIME

NORP In DATE the boy ’s guardian recommended that he remain in the care of his mother . The guardian also recommended to the HCJ that there be a period of contact between the father and his son , so that they could rebuild their relationship .

During these proceedings , the applicant appeared in person , and PERSON gave evidence in person ; she was also represented by her lawyers .

On DATE the HCJ ruled that the child should permanently reside in GPE with his mother . The option for GPE to come to GPE and take up a job there was not in the child ’s best interests , given that the child would be placed in a nursery and would have CARDINAL parents who were emotionally distant . Moreover , PERSON did not wish to live in GPE , even if she were to be supported by the applicant . Having acknowledged that the father had a genuine and serious interest in his son , the court held that the “ central underlying problem ” thus related to the promotion and preservation of a good relationship between the CARDINAL of them .

The HCJ accepted that the applicant felt vulnerable in GPE but rejected his allegations about concerted attempts by the NORP authorities to act against him . That notwithstanding , the HCJ also held :

“ CARDINAL . ( ... ) it seems to me that in GPE [ the applicant ] will have very real difficulties in engaging in the contact in an appropriate way because of the pressures he will have in GPE . ( ... ) I see real advantage in the contact being here [ in GPE ] so that the child gets to know his father in the father ’s own environment . ”

The HCJ thus considered that the correct place for their contact would be GPE . Furthermore , the preferred timing was “ clearly as soon as possible ” .

Accordingly , the child ’s mother was to come to GPE and spend DATE there , during which time a regime of contact between the father and the child would take place . Afterwards the mother was free to return to GPE with the child and to live there permanently . The HCJ also “ wished to make it abundantly clear ” to both parents that “ albeit the issues relating to the welfare of children could change with circumstances , it was going to take a very significant change for there to be any re - visiting of the overarching plan described above ” .

Once the child had settled permanently in GPE , the applicant would have a right to ongoing contact : essentially , CARDINAL times a year there would be CARDINAL to CARDINAL days’ residential contact between him and his son . The first CARDINAL meetings would take place in GPE , once the mother had brought the child there . That was contingent upon the father paying a sum to fund the trip , namely MONEY ( GBP ) for each visit . Thereafter the father would have the choice as to where this contact was to take place and he could travel to GPE , pick up the child and communicate with him in any location worldwide that he wished .

The applicant attended the court hearing . At the end thereof the judge informed the applicant that the judgment would be enforceable in GPE subject to applications being made there in respect of the contact order after the child had returned to live there permanently .

On DATE the HCJ adopted a revised judgment and order , reiterating that the applicant and ORG were not on good terms with each other and that it had thus had to take a difficult decision on CARDINAL DATE when it ruled that the mother should have permission to take the child to live in GPE permanently . There was a risk , as portrayed by the applicant , that the applicant could be shut out of the child ’s life by the mother ’s family . However , in the meantime no significant or dramatic change of circumstances had occurred which would necessitate amending the custody decision . On this point the HCJ also expressed its confidence in the NORP courts :

“ An additional point is that it seems to me that it is not open to me to proceed on the basis that the NORP courts will do anything other than deal with this matter pursuant to [ child ’s ] welfare principle . They are subject to PERSON revised . Albeit I understand that the father was unhappy with the conclusions reached in the NORP court , to my mind I can not accept his submission that even if the mother and her family demonstrate the hostility he asserts , the NORP court will join in and will not seek to promote the underlying theme of my judgments , namely , that there should be a contact between this father and son ” .

As regards the jurisdiction of the NORP courts for further examination of issues relating to parental responsibility and thus contact , the HCJ held :

“ ( a ) recognising and intending that , subject to LAW ( ORG ) No CARDINAL/CARDINAL , upon the ORG , A.M. , leaving the jurisdiction of GPE and GPE to live permanently in GPE pursuant to paragraph CARDINAL of this Order , the courts of GPE will have jurisdiction in matters of parental responsibility , and thus contact ... ”

The contact order established by the HCJ on DATE and revised by it on DATE set out CARDINAL stages of contact :

– the first stage covered the period from DATE until DATE , when the mother was to bring the child to GPE for paternal contact , subject to and conditional upon the applicant paying the sum of ORG CARDINAL to the mother of the child ;

– the second stage of the parental contact covered CARDINAL periods of contact – DATE and DATE within the jurisdiction of GPE and GPE ; DATE before they were to take place , the applicant was to pay GBP CARDINAL to the mother ’s solicitors for the purpose of meeting the costs incurred by the mother when travelling with the child to the jurisdiction of GPE and GPE ;

– the third stage covered CARDINAL periods of paternal contact from DATE and DATE , when the applicant was to pick up his son at ORG in GPE and was allowed to choose any location worldwide to be with his son ; as of DATE , the applicant could take his son from GPE and travel with him worldwide CARDINAL times a year , for DATE on each occasion .

Lastly , the applicant raised the argument that from a practical point of view it would be easier for him to travel with his son if the boy had a passport from the same country . The HCJ thus ordered that after DATE V.T. would provide the NORP and/or GPE authorities with relevant documents and information to enable the applicant to obtain NORP and/or NORP passports and/or travel documents for the child . Should the mother fail to comply , the applicant could lodge a complaint with the HCJ , which retained jurisdiction on this sole issue of passports / travel documents .

The applicant sought leave to appeal against the HCJ judgment and order of DATE , but on DATE ORG and GPE refused his application .

The first stage of the contact order adopted by the HCJ was implemented . The applicant paid PERSON the sum of ORG CARDINAL for the costs incurred by her when taking their son to GPE , and PERSON took the child to GPE for CARDINAL GPE paternal contact , which should have lasted from DATE until DATE .

During that visit , on DATE the boy ’s guardian ad litem informed the HCJ that she was concerned about the risk factors in relation to ensuring the boy ’s safety and his return to his mother ’s care in the light of their imminent return to GPE . The guardian noted that she had been made aware that the applicant had made an application to ORG for leave to appeal against the HCJ judgment and order of DATE . In the words of the boy ’s guardian , the applicant had made abundantly clear his “ obdurate attitude ” to the judgment and order issued by the HCJ and his “ steadfast view ” that his son should live in GPE , irrespective of the child ’s needs and best interests , which , as agreed by the HCJ court and the child care specialists , were best met on DATE to day basis by his mother . The guardian also noted that DATE the applicant had informed GPE authorities of his intention to leave GPE following the last session of his DATE contact period . Furthermore , the HCJ order of DATE had allowed for the applicant to apply for a NORP or NORP passport . In that connection , in DATE the applicant ’s solicitor had urged ORG solicitor to sign her son ’s NORP passport application form immediately . For the above reasons , the boy ’s guardian ad litem had serious concerns that there was an increased risk of DATE being abducted by his father . She thus recommended that the order of DATE be varied and that the court suspend the last session of contact scheduled for DATE , allowing the boy and his mother to return to GPE before the expected time .

In addition to that , in an email of DATE to the applicant from ORG ( hereinafter DATE “ LOC ) of GPE , a ORG lawyer wrote :

“ Dear Mr Manic

I understand you have been served with the passport and tipstaff orders . I am concerned to note that you initially informed the tipstaff you only had one passport but after further discussions handed over CARDINAL passports . The tipstaff have also reported to us that you had several passport photos of A.M. , again this is of concern .

I realise you are not legally represented and I think it would be advisable for you to obtain legal advice before we next attend court . I can however impress upon you that if you breach the current orders and DATE is not returned to his mother at the conclusion of contact then there will be very serious implications on your future contact with A.M. I therefore hope that you enjoy the following DATE of contact and that you return him to his mother at the appropriate time and date . ”

On DATE the HCJ found the ORG communication ill - advised . The GPE and NORP embassies were nonetheless ordered to advise GPE ’s solicitors if the applicant had made any application for travel documents in respect of the child and to refrain from issuing any such document . Having in DATE been informed by those CARDINAL embassies that they had not been approached for a passport for the boy , the HCJ then ordered that GPE make the boy available for the full visit in DATE . The boy ’s mother afterwards took the boy to live with her in GPE .

On DATE PERSON ’s lawyer wrote to the applicant stating that PERSON was not proposing to bring their son to GPE so that the boy could see his father . PERSON believed that it would be too stressful for the boy and that the child was not ready to spend DATE away from his mother . The applicant was also informed that jurisdiction over contact arrangements had now passed to the NORP courts . PERSON ’s lawyer also enclosed a cheque for GBP CARDINAL by way of reimbursement of the sum the applicant had paid in relation to GPE ’s travel and accommodation expenses for the staying contact in DATE .

On DATE the applicant contacted ORG , the LOC authority within the meaning of ORG ( ORG ) No . CARDINAL in GPE , as regards the non - enforcement of the second stage of the HCJ mandate of DATE . The applicant noted that even though the GBP CARDINAL for the DATE visit had been returned to him , he was ready to pay it again at any time should the contact go ahead .

On DATE the aforementioned GPE authority contacted ORG in GPE ( NORP vaiko teisių apsaugos ir įvaikinimo tarnyba , hereinafter – “ the Service ” ) regarding the non - enforcement of the HCJ judgment and order . All the relevant documents ‒ including the HCJ contact order of DATE , the letter from ORG solicitor ( see paragraph CARDINAL above ) and the application form where the applicant stated that he was ready to pay GBP CARDINAL so that a future visit would take place ‒ were transferred to the NORP authority .

On DATE the Service informed ORG in GPE that certificates issued in ORG member states were directly enforceable in GPE , and they had therefore been submitted to a bailiff for execution ( see paragraph CARDINAL below ) . The ORG also provided its counterpart in GPE with a list of the bailiffs acting in GPE region , where GPE and the applicant ’s son lived , and advised the applicant to contact CARDINAL of the suggested bailiffs directly so that the HCJ order could be executed . The ORG also noted that the procedural activity of the bailiff responsible for the enforcement of a foreign contact order was supervised by a regional court .

On DATE the applicant contacted a bailiff working in GPE district of GPE . As is evidenced by the documents in the ORG ’s possession , DATE and DATE the applicant wrote DATE emails to the bailiff . The emails were written in LANGUAGE , with a ORG translation into NORP . In his very first email to the bailiff , the applicant noted that he had a certificate for a contact order under LAW ( ORG ) No . CARDINAL . As explained in his emails of CARDINAL and DATE , he attached the enforcement certificate , a letter to ORG authority , the letter from ORG ’s solicitors ( see paragraph CARDINAL above ) and proof that he had paid CARDINAL NORP litai ( ORG , MONEY ( ORG ) ) for the execution of the HCJ judgment in GPE , and promised to send other relevant information . The applicant also asked the bailiff to notify him if she was missing any documents and to inform him about the enforcement procedure . In his email of DATE the applicant also indicated that , if it made it easier for the bailiff , she could reply to the applicant in LANGUAGE , a language he declared that he could understand .

In those emails to the bailiff , the applicant wrote , in particular , that he had sent the documents needed for the execution of the HCJ judgment by post ( email of DATE ) , and that ORG had assured him that the documents as posted by him to GPE were in order ( email of DATE , also attaching his email correspondence with ORG ) . It is apparent that the applicant and the bailiff spoke on the phone on DATE , when the bailiff confirmed to the applicant that she had received the documents by ORG delivery DATE , but stated that the documents were not “ original ” . On DATE the applicant again sent the documents to the bailiff via ORG post . He explained that the courts in GPE used black ink for the stamps but that , even so , the documents were marked as “ original ” . The same day the bailiff emailed the applicant saying that she needed the original paperwork , not photocopies . The applicant then asked the court in GPE to seal the HCJ order and posted the documents to the bailiff again .

By emails of CARDINAL and DATE the applicant asked the bailiff to inform him how the bailiff ’s meeting with the child ’s mother had gone , as regards the execution of the HCJ order , and mentioned that he was ready to make the payments according to the ORG order , so that the next visit [ that of DATE ] would take place . By email of DATE the applicant asked the bailiff to update him in writing about the steps she had taken to enforce the contact order . He mentioned that time was passing and this would cause damage to his relationship with his son . The applicant also asked the bailiff a number of times at what stage the enforcement procedure was ( email of DATE ) . In the applicant ’s view , even though the bailiff ’s assistant had told him over the phone that the matter had been passed over to the NORP court , the applicant had received no explanation in writing as to which court that was and when the NORP court decision was to be taken . The applicant wrote that “ the blackout of information was leading me to believe that there was something wrong in the middle . I do not want to speculate and would be grateful if you wrote me a few lines to explain what is going on ” ( email of DATE ) . Later on , the applicant wrote that the bailiff ’s “ silence was agonising ” ( email of CARDINAL DATE ) . On DATE the applicant reiterated his complaint that the bailiff had not informed him why the case was “ dragged out ” . He also asked the bailiff to provide him with answers in writing as well as with information about what he named “ Complaints and Procedures ” . Further , as is evident from the applicant ’s emails of CARDINAL and DATE , the bailiff had told him over the phone that the NORP court wanted the applicant to be present in the courtroom in GPE . He asked the bailiff what would be the reason for his appearance in court , but the bailiff did not respond . In an email of DATE the applicant also wrote that , according to the bailiff , ORG had not complied with the contact order because he had not paid her the GBP CARDINAL . The applicant explained however , that he had paid that sum , as mentioned in the letter of DATE from DATE PERSON ’s lawyers , and asked the bailiff whether that evidence had been put before the NORP court . Lastly , by an email of QUANTITY DATE the applicant wrote that he could not understand the bailiff ’s silence and why his emails went unanswered . He asked whether the bailiff had received instructions from her superiors or from Government agencies not to engage in any correspondence with him .

On DATE the bailiff established that ORG had not delivered the child for paternal contact which , in accordance with the order of the HCJ , was due to take place CARDINAL . For that reason , on DATE the bailiff initiated court proceedings against GPE concerning the non - enforcement of the GPE court ’s order .

On DATE the ORG sent to the applicant ’s address in GPE a notification that court proceedings regarding non - execution of the HCJ judgment about his contact rights had been opened in GPE . The court wrote to the applicant that his “ participation in the oral court hearing was not obligatory ” . It was also explained to the applicant that he should nominate a representative in GPE on whom all the procedural documents could be served . Failing that , all procedural documents intended for the party residing abroad would remain in the case file and would be deemed to have been served .

In DATE the NORP authorities granted the applicant legal aid for DATE for the proceedings concerning non - execution of the HCJ order in GPE .

On DATE the ORG - appointed lawyer wrote to the applicant that she had become acquainted with the case regarding the non - execution of the PERSON judgment . She wrote that PERSON had not taken the son for the visit [ of DATE ] because the applicant had not transferred ORG , and asked him to explain the situation and send her a copy of the document confirming the transfer of that sum .

DATE the applicant wrote to the ORG - appointed lawyer stating that both the bailiff and ORG had the relevant documents . The applicant also attached to the letter some documents detailing the facts . He further attached the letter of DATE ( see paragraph CARDINAL above ) as proof that the child had not been taken to GPE in DATE , even though he had sent the money for that visit to materialise . Lastly , the applicant expressed his willingness to provide any other information , if needed .

On DATE ORG dismissed the bailiff ’s complaint . The applicant did not take part in that hearing , but had a ORG - appointed lawyer . As the court decision reads , “ from ORG ’s explanations , information existing in the case - file , the explanations of the bailiff , and those of the [ applicant ’s ] lawyer , it is clear that [ V.T. ] failed to execute the [ HCJ ] judgment , i.e. DATE she did not take the child A.M. , born on DATE , for the contact visit with his father , because the father of the child had not paid GBP CARDINAL , and GPE is unemployed and has no funds to take the child to GPE ” . The PERSON court also noted that by interim protective measures ( laikinosios apsaugos priemonės ) of CARDINAL DATE imposed by the same court , the applicant was prohibited from removing the child from NORP territory ( see paragraphs DATE below ) . The decision stated that it could be appealed against within DATE .

On CARDINAL DATE the ORG legal aid office informed the applicant by email about the court decision of DATE and sent him its unofficial translation into LANGUAGE . DATE the applicant emailed the ORG - appointed lawyer asking for an explanation as to what had happened in the courtroom on DATE . In an email of CARDINAL May he asked that lawyer to appeal against the decision of DATE , so that the CARDINAL days’ time - limit to appeal was not missed . On DATE the lawyer acting under the legal aid scheme posted the decision of DATE to the applicant . The ORG stated that the applicant had not appealed against the DATE decision .

According to the medical documents dated DATE , DATE and DATE , after the child ’s and his mother ’s visit to GPE for the contact visit , the boy returned very anxious , he could not sleep at night and he was afraid of people . The boy was also very active , irritable and required exceptional attention from his mother . As of CARDINAL September CARDINAL the boy had been visiting a mental health centre . He had been diagnosed with emotional disorder , manifested as increased anxiety and frequent mood change .

On DATE PERSON addressed to ORG a request that the child contact arrangements as set out in the HCJ judgment of DATE be changed and that she be awarded child support and child support arrears ( skola už vaiko išlaikymą ) by the applicant . In support of her request , ORG included the aforementioned medical records .

She submitted a modified claim on CARDINAL DATE . On DATE she also applied to the court for interim protective measures to suspend execution of the contact order of the HCJ , and not to allow the applicant to be alone with his son . PERSON stated that the applicant had not paid the sum of money mentioned in the HCJ judgment and that the contact visits between him and the child had therefore not taken place . It was also her belief that the child did not recognise his father . Moreover , it was not in the child ’s interests to communicate with the applicant in GPE , as the HCJ had ordered , because that environment was unfamiliar to the boy . She attached to her request what appears to be the PERSON email of DATE and the HCJ decision of DATE . PERSON insisted that the boy should never communicate with his father without her being present .

On DATE the ORG accepted for examination ORG request for the change of parental contact . On DATE the court decided to examine ORG request for interim protective measures on DATE , and not to inform the applicant about that oral hearing , without indicating in the text of the decision the reason why the applicant should not know about the hearing beforehand . The child care authority and ORG were invited to attend the hearing . Moreover , the court deemed ORG participation at the hearing to be obligatory . The court further held that , as the applicant resided in GPE and the question of interim protective measures had not yet been decided , for reasons of procedural economy any procedural decisions should be sent to the applicant only once the issue of interim protective measures had been examined . This procedural ruling was not appealable .

On DATE PERSON submitted to ORG further written clarifications as to the necessity of interim protective measures . She claimed that the applicant might kidnap and not return their son should the boy be taken to GPE for a contact visit . She also stated that the applicant had also been prohibited from having contact with the boy for DATE of the contact period in DATE . It is apparent that GPE relied on an email of DATE from ORG to the applicant as evidence ( see paragraph CARDINAL above ) . PERSON also stated that after his last meeting with his father , the boy had been nervous and afraid of other people .

By a decision of CARDINAL DATE the ORG granted in part ORG request for interim protective measures . At the hearing the child ’s mother was present , as was a representative of the child care authorities , who observed that the applicant ought to retain the right to have contact with his son in GPE . The authority nevertheless took the view that the applicant should not be allowed to remove the child from GPE for fear that he might flee with his son . In GPE , the boy was spry and PERSON took good care of him . As the record of the hearing reads , PERSON ’s request was essentially based on her fear that the applicant would not return the child to her if he was allowed to take his son from GPE . She also stated that after the staying visit of DATE the boy had been nervous and exhausted and would not leave her side .

ORG noted a conflict between the applicant and PERSON over the child ’s contact arrangements . On the basis of the email from ORG dated DATE ( see paragraph CARDINAL above ) , ORG found :

“ The documents submitted prove that the [ applicant ] was going to take the son away from GPE and prepared other personal documents for him for that purpose ; during his contacts with the child , the latter ’s personal documents were therefore taken from him and he was prohibited from removing the child from the jurisdiction of GPE and GPE . Taking this into account , there is a real risk that the execution of the [ NORP ] court decision might become more complicated ( if it were to become necessary to apply to a national court of a foreign ORG for acknowledgment and permission to execute a NORP court decision , if one were to be made in GPE ’s favour ) or even impossible ( if , for example , the applicant were to conceal the child ’s whereabouts or change them periodically ) . The risk that the execution of the court decision might become more complicated or even impossible constitutes a basis for ordering interim protective measures ( ... ) . It was also taken into account that the child ’s domicile is in GPE , where he attends a kindergarten , and a sudden change in the environment might therefore have a negative impact on a child . ”

ORG nevertheless acknowledged that a child whose parents were separated had the right to have constant and direct contact with both parents irrespective of their places of residence . It was also of paramount importance to avoid the alienation of the child from his father . Given that the applicant resided outside GPE and this could make it problematic for him to have contact with his son on DATE , the court determined that the applicant had the right to have contact with the child on DATE on the premises of the PERSON region child care authorities and in the presence of their representative . With prior notice , the applicant could see the child every day from TIME was obliged to make the child available for the contact .

On DATE ORG sent a notice to the applicant ’s address in GPE about the pending civil case for maintenance of his son , the establishment of the new contact order and the applicant ’s right to respond to ORG claim . The court further reiterated the applicant ’s duty to appoint a representative living in GPE , on whom all the procedural documents would be served by the court ( LAW ) . On DATE V.T. ’s lawyers informed the applicant by email about the district court ’s decision to apply interim protective measures and sent him an electronic copy of that decision , in NORP . It was explained to the applicant that the court decision would be translated and served on him as soon as possible by the PERSON court itself or by post . The lawyer also explained to the applicant that by the decision of CARDINAL DATE ORG had decided to apply interim protective measures and to prohibit the applicant from removing his son from the territory of GPE . The applicant was informed that the decision had entered into force on DATE it was issued .

DATE the applicant wrote an email to the PERSON court acknowledging that he had received a court decision , but complaining that the content was in NORP , and therefore he could not understand it .

The decision of DATE was translated into LANGUAGE and on DATE the PERSON court posted it to the applicant ’s address in GPE . Because of technical problems , the decision was served on the applicant on DATE . The CARDINAL DATE decision could be appealed against within DATE from DATE it had been served .

As established on DATE by ORG , the applicant did not appeal against the decision of DATE .

On DATE ORG sent a written notice to the applicant informing him that on DATE it was going to consider ORG ’s claim for changing the child contact arrangements and awarding the child support . The applicant was also informed that , in accordance with LAW , when a party living abroad does not designate any authorised person , all procedural documents intended for the party living abroad will remain in the case file and will be deemed to have been served .

ORG held the planned preparatory meeting on DATE , which the applicant did not attend . Nor did he take part in a subsequent hearing on DATE , even though he had been informed about it by that court .

At that subsequent hearing , about which the applicant was informed but which he did not attend , ORG asked the NORP judicial authorities to question the applicant as a witness so that it could be established what property he owned in GPE in connection with the claim for child support . Later on , ORG postponed hearings scheduled for DATE and CARDINAL DATE until such time as it had received , from GPE authorities , information about the property the applicant owned in GPE .

In DATE , the applicant asked the NORP child care authorities about the well - being of his son . In reply , the NORP child care authorities described the child ’s living conditions in GPE : he had a room of his own in GPE ’s GPE house and GPE paid for his kindergarten , food and clothes . In sum , the boy ’s living conditions were good and the child care authority had no concerns about his well - being .

On DATE the applicant gave evidence about his property in GPE . ORG received that evidence at DATE . On DATE the court scheduled a preliminary hearing in the civil case for maintenance and contact rights for DATE . The parties to the case , including the applicant , were informed about that future hearing .

On DATE ORG adopted the decision regarding the maintenance of the applicant ’s son and the order for the establishment of the contact between the applicant and the child . The court also noted that judicial documents had been served on the applicant , he had been granted the right to file a statement of defence with regard to the claim , and he had been informed about the preparatory hearing ; moreover , he was obliged to submit details about his financial situation but he had neither filed any statement of defence , nor submitted the requisite details about his financial situation . Neither had the applicant expressed his opinion regarding ORG claim in his written explanations . The court established that ORG had taken all the measures necessary to satisfy her son ’s interests so that he could grow up in a healthy environment . Having assessed the parties’ financial situations , ORG ordered the applicant to pay LTL CARDINAL ( ORG DATE in child support .

As to the child contact arrangements , ORG held :

“ The details of the case show that the child contact arrangements were established by the Order issued by ORG , ORG , on DATE and under this Order the defendant was expected to have contact with his son on the following dates : from DATE to DATE ; from DATE to DATE ; from DATE to DATE ; from DATE to DATE , and thereafter CARDINAL times a year for DATE each time . After the first CARDINAL contact sessions the father was to have the right to choose any place in the world for all further contact sessions and to travel with his child without being accompanied by his mother .

The [ applicant ] has not submitted any details proving that he had any contact with his child on the aforementioned dates or stating what the reasons were if he did not have such contact . [ ORG ] stated that the last time the father saw his child was DATE . The email submitted shows that no payment was received with regard to the contact that was due to occur on DATE ... During the period of examination of the case , the [ applicant ] was allowed to contact his son in GPE in the presence of the representative of ORG ... According to the information provided by the representative of ORG ... no contact sessions between father and son took place during the period of application for interim protective measures lasting from DATE to DATE . As there is no evidence that there has been any contact between father and son since DATE , there are no reasonable grounds to state that the [ applicant ] considers the meetings with his son significant and that there exists a close relationship between him and his son so it is indeed probable that the sudden departure of the child with his father and his removal from his habitual environment would not enhance the child ’s sense of security or his emotional stability and might be harmful to him . Therefore the approach in this matter should be more cautious .

The court agrees with the argument put forward by [ V.T. ] that the overriding interest regarding the child is to develop in a healthy , safe and quiet environment where he would not experience psychological tension , fear and perpetual conflict . It would appear from [ ORG ] explanations and from email communications that there are reasonable grounds for stating that there is conflict in the relationship , personal discord , and an absence of tolerance between the parties , making communication between the respondent and his child complicated . However , according to medical documents submitted it can not be unequivocally asserted that the child ’s irritability is purely a consequence of the respondent ’s contact sessions with the child . The medical reports state that the child is especially active and demanding of exceptional attention from his mother and that this condition was recorded on CARDINAL DATE but ‒ as stated by [ V.T. ] ‒ the last time the [ applicant ] saw his child was DATE . This condition could therefore be caused by strained relations between [ GPE ] and [ the applicant ] . On the other hand , it should be noted that a child who is a minor can not be a hostage of his GPE conflict and the conflict relationship between the parties is not a circumstance justifying a need to restrict the [ applicant ’s ] contacts with his child .

During the proceedings it is permissible for a child to be questioned , unless this can not be done due to his age or degree of maturity . TIME was born on DATE , i.e. his age allows it to be concluded or to express his opinion , and he was therefore not questioned during the hearing .

In circumstances such as these , the court determines the procedure for the father to have contact with the child by taking into consideration the child ’s interests and by creating a possibility for the separated father to be involved in the child ’s upbringing ( ... ) . At the same time , the period during which a close emotional bond between the [ applicant ] and the child might be restored should be established as lasting until the child is DATE . ”

Accordingly , for DATE after the date when the ORG decision came into effect , the applicant was to communicate with his son for TIME per working day for DATE , in an environment to which the child was accustomed – at the child ’s home or the child care authority ’s premises , in the presence of his mother , a psychologist and a child care specialist . During the following DATE the applicant could communicate with his son CARDINAL four hours per day for DATE , either in the child ’s accustomed environment or in another place , in the presence of the child ’s mother or without her , if she so agreed . Lastly , during the period starting from DATE and until his son ’s seventh birthday , the applicant could see him on a DATE basis for DATE in DATE , DATE and DATE , in the child ’s accustomed environment , as agreed by the applicant and PERSON , but without her being present . The applicant also had the right to visit his son unimpeded whenever his child was sick . The parents were to ensure that the possibility existed for each of them to communicate with the child by telephone ( or other electronic means ) or some other form of communication .

The applicant acknowledges that he received the ORG decision on CARDINAL DATE .

NORP In response to the applicant ’s request for information , on CARDINAL DATE ORG sent the applicant a letter concerning his right to appeal against the decision of DATE within DATE . The court also informed the applicant about his right to restore a missed procedural time limit , if that time limit had been missed for serious reasons . The court further reiterated that the applicant had not appointed a representative living in GPE for dealing with contact rights and child maintenance , and on whom all the procedural documents would be served by the court . That being so , pursuant to LAW , all procedural documents addressed to a party residing abroad were left in the case file and were deemed to have been served .

On DATE the applicant asked ORG to reopen the court proceedings . He argued that he had missed the statutory DATE time - limit for such reopening because he was a NORP citizen residing in GPE and did not speak NORP .

By a ruling of DATE ORG refused the applicant ’s request for reopening . The court first pointed out that a judge ’s notice dated DATE had explained the applicant ’s duty to appoint a representative or an authorised person and the consequences of the failure to fulfil that duty ( see paragraph CARDINAL above ) . However , the applicant had not appointed any such representative . Furthermore , although the applicant acknowledged that he had been served with the DATE decision ( translated into LANGUAGE and containing the provisions as to how it could be appealed against ) on DATE , he had not asked for a re - opening of the proceedings until CARDINAL DATE , that is DATE after receiving it . In reply to the applicant ’s argument that he was a foreigner , the NORP court noted that the applicant knew the rules regulating ORG - provided legal aid and could have asked for it in a timely fashion , because in earlier proceedings for non - enforcement of the HCJ contact order , he had been provided with ORG - provided legal aid by a decision dated DATE ( see paragraph DATE above ) .

On DATE ORG dismissed another request by the applicant to reopen the civil proceedings and to review ORG decision of DATE concerning the contact order between the applicant and his son . The court reiterated that the applicant had not communicated directly with his son since DATE . Similarly , there was no evidence of the applicant ever having visited his son either after the court decision of CARDINAL DATE regarding interim protective measures or after the subsequent decision of CARDINAL DATE , both of which allowed the applicant to see his child for TIME each day . As to the applicant ’s plea that the NORP court order would cause him inconvenience DATE especially the necessity of travelling to GPE ‒ this did not mean that the contact as established by ORG on DATE had established was negligible . According to the contact order , the applicant could see his son on DATE , DATE . Knowing about such a contact order , the applicant could plan his work and income accordingly . It was also significant that , according to the contact order issued by the HCJ on DATE , the child had to be collected from the NORP embassy in GPE . Consequently , the applicant would in any case have to leave his place of residence and job in GPE and come to GPE . He would also inevitably have to invest time and money . Accordingly , taking into account the child ’s interests – his age , state of health , need for mother ’s attention , and the fact that the applicant had not directly communicated with his son since DATE ‒ the contact order as set by ORG on DATE reasonably gave priority to the child ’s interests whilst not neglecting the applicant ’s right to be in contact with his son .

Lastly , ORG noted that ORG had moved to GPE in DATE . The child ’s residence had been declared to be GPE in DATE . PERSON had lodged the request that the child contact order be modified with GPE when DATE had passed after the move to GPE ( see paragraphs CARDINAL and CARDINAL above ) . It followed that ‒ pursuant to ORG CARDINAL and CARDINAL of the Regulation ( ORG ) No . CARDINAL ‒ in DATE the GPE courts were no longer able to consider decisions concerning the modification of contact orders , as those cases fell within the jurisdiction of the court of the Member ORG where the child was habitually resident , in this case GPE .

By a ruling of CARDINAL DATE ORG refused to examine the applicant ’s appeal on points of law .

On DATE , PERSON asked ORG to permanently restrict the applicant ’s parental rights . She argued that the applicant did not communicate with his son . In turn , the applicant asked the NORP court to suspend the proceedings until the ORG had examined his application against GPE ( no . MONEY ) . On DATE ORG suspended the proceedings in GPE until the applicant ’s case is decided by ORG .


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant was born in DATE and lives in L’Aquila .

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

The applicant was the owner of a plot of land designated as industrial land in L’Aquila . The land in issue – of a surface area of QUANTITY – was recorded in the land register as Folio no . CARDINAL , FAC no . CARDINAL .

In DATE , the regional administrative authorities granted ORG for the industrial development of L’Aquila ( “ Consorzio per il nucleo di sviluppo industriale di L’Aquila ” , hereinafter “ the Consortium ” ) permission to occupy a portion of the applicant ’s land in order to begin the construction of an industrial compound .

On an unspecified date , the applicant brought an action for damages in the L’Aquila ORG against the regional administrative authorities seeking compensation for the remaining portion of land which had become unusable following the occupation .

On DATE the regional administrative authorities issued an expropriation order in respect of the land .

Pursuant to the order , the consortium offered the applicant a global sum of MONEY ( ORG ) ( equivalent to LAW ) as compensation for the expropriation and compensation for the period during which the land had been occupied before the expropriation order had been issued .

The offer was refused by the applicant on the ground that he considered it inadequate .

NORP On DATE , contesting the amount that he had been awarded , the applicant brought proceedings against the Consortium in the L’Aquila ORG . He argued that the amount determined by the regional authorities was extremely low in relation to the market value of the land .

On DATE Law no . CARDINAL of CARDINAL DATE came into force ( “ Urgent measures aimed at stabilising public finances ” ) . LAW laid down new criteria for calculating compensation for the expropriation of building land . The PERSON was expressly applicable to pending proceedings .

On DATE , the applicant accepted the consortium ’s offer and requested the termination of the proceedings ( “ cessazione della materia del contendere ” ) .

By a provisional judgment delivered on DATE , ORG acknowledged the entry into force of Law no . CARDINAL of CARDINAL DATE and held that the amount of the compensation for the expropriation had to be in accordance with the new criteria laid down in the legislation ’s LAW . The court therefore rejected the applicant ’s request to terminate the proceedings , appointed an expert and instructed him to assess the compensation for the expropriation according to the new criteria .

On an unspecified date , the expert submitted his report .

By a judgment delivered on DATE and filed with the court registry on DATE , ORG held that the applicant was entitled to compensation in the sum of ORG , as calculated according to the criteria laid down in PERSON no . CARDINAL of DATE . Moreover , ORG held that the applicant was entitled to compensation for the period during which the land had been occupied before the expropriation order had been issued , in the sum of ORG CARDINAL CARDINAL,CARDINAL . The amounts were subject to tax , deducted at the source at a rate of PERCENT .

On an unspecified date the consortium appealed on points of law .

By a judgment delivered on DATE and filed with the court registry on DATE , ORG remitted the case to the L’Aquila ORG .

By a judgment delivered on DATE , filed with the court registry on CARDINAL DATE , the L’Aquila ORG acknowledged ORG judgment no . CARDINAL of CARDINAL DATE , whereby LAW no . CARDINAL of CARDINAL DATE had been declared unconstitutional , and held that the applicant was entitled to compensation corresponding to the full market value of the property .

Therefore , drawing on the court - ordered expert report submitted during the first set of proceedings , ORG concluded that the applicant was entitled to compensation in the sum of ORG ( equivalent to ORG ) , which reflected the market value of the land at the time of the expropriation ( DATE ) , plus statutory interest . It did not , however , adjust the amount for inflation .


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant is a judicial enforcement officer ( “ JEO ” ) . In this capacity , he acted on behalf of a creditor with a view to enforcing an order for payment against a private commercial company ( “ the debtor ” ) . In the furtherance of those proceedings , following the creditor lodging an enforcement petition , the applicant applied for a court order authorising the enforcement of a sum consisting of the principal judgment debt and his costs .

The costs were calculated on the basis of a formula applicable in instances when enforcement is actually carried out by the ORG , which is to say as a percentage of the principal amount to be enforced . It would later become the object of a dispute whether , in the event of voluntary payment by the debtor in the course of the enforcement proceedings , the costs were to be calculated differently , in particular on the basis of an TIME fee for the time actually spent by the ORG on the given file .

In the present case , prior to the issuance of the authorisation , the debtor had of its own motion paid the principal judgment debt and the applicant had been informed of that payment .

Nevertheless , after the authorisation had been granted , the applicant proceeded with the enforcement of the amount of his fees in full , in other words the sum that he would have been awarded as a ORG if he had actually carried out the enforcement of the order for payment .

Upon successful enforcement of the applicant ’s fees , the proceedings were terminated .

On DATE the debtor filed an action against the applicant seeking an order for payment of the equivalent of MONEY ( ORG ) by way of unjustified enrichment . It was argued that it had been absurd for the applicant to carry on with the enforcement knowing that the debtor had paid its debt before the enforcement had even been authorised .

The applicant defended the action and was represented by a lawyer . The action was heard by ORG súd ) on DATE , DATE , DATE and DATE .

At the conclusion of the hearing of DATE , ORG dismissed the claim . It held that the course of action taken by the applicant had been lawful in view of the fact that , at the time of the introduction of the petition for enforcement , the principal judgment debt had been payable and still outstanding . The requisite elements of a claim for compensation in respect of unjustified enrichment had therefore not been met .

NORP The debtor filed an appeal ( odvolanie ) to ORG ( PERSON súd ) , which heard the appeal on DATE and DATE .

On DATE , following the hearing held DATE , ORG allowed the appeal and overturned the first - instance judgment . It held that in instances of voluntary payment the ORG ’s costs were to be calculated on an TIME - fee basis ( see paragraph CARDINAL ) . Calculating the applicant ’s costs as a percentage of the original award was disproportionate to the work carried out by him to complete the enforcement .

The enforcement of his costs thus calculated had therefore been unlawful and unjustified , which constituted unjustified enrichment on his part to be repaid to the debtor . As for the applicant ’s recoverable costs , he should have pursued them by way of a separate costs order .

On DATE ORG ( Najvyšší súd ) dismissed the applicant ’s appeal on points of law ( dovolanie ) . It concurred with ORG conclusion , albeit on different legal grounds . In particular , it held that the case at hand was not CARDINAL of unjustified enrichment , but rather CARDINAL of damages . No hearing was held and the parties were not allowed to comment on this new legal qualification of the case .

On DATE the applicant lodged a complaint under Article CARDINAL of the LAW no . PERSON . , as amended ) with ORG ( Ústavný súd ) . He relied on LAW and argued ( a ) the proceedings had been unfair in that ORG judgment had been arbitrary and ( b ) his right of access to court had been violated in that ORG had substantially changed the legal qualification of the case without allowing him an opportunity to comment . The proceedings had thus not been adversarial .

On DATE the ORG declared the complaint inadmissible as being manifestly illfounded . It observed that it was not a court of final appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness , arbitrariness or irregularity in the impugned judgment . In particular , it found no merit in the applicant ’s arguments , observing that proceedings on appeals on points of law were of a specific and extraordinary type which , as a general rule , called for no hearing and for the taking of no further evidence .

The decision was served on the applicant on DATE .

The relevant provisions concerning appeals on points of law are laid down in Articles CARDINAL et seq . They are summarised in the ORG ’s judgment in the case of GPE PERSON Springer GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

In addition , Article PERSON provides that , as a general rule , appeals on points of law are to be determined without a hearing ; that a hearing may nevertheless be held as an exception if it is deemed necessary ; and that if a hearing is held , no evidence is to be taken .

In a judgment on an appeal in an unrelated case ( no . CARDINALCo DATE ) , ORG held that a reduction of the costs of enforcement to be paid by an enforcement debtor was only applicable if the enforcement debtor had voluntarily paid both the principal judgment debt and the costs of the enforcement .

In a judgment on an appeal on points of law in an unrelated case ( no . CARDINAL ) , ORG observed that , when exercising their office , JEOs exercise functions of a ORG organ . Their relationship with the parties to the enforcement proceedings is not , therefore , CARDINAL of private law . There is therefore no scope for a claim for compensation in respect of unjustified enrichment . The JEOs are rather liable for damages under special provisions of LAW ( Law no . PERSON . , as amended ) .


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey)

András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano

The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE of GPE - Stadt ( ORG ) .

NORP In DATE he entered GPE for the first time and applied for asylum . He lived there , working in the gastronomic sector , until DATE , when his asylum request was dismissed . On DATE he left GPE for GPE . On DATE he married his current wife , a NORP national with a residence permit for GPE , in GPE .

Because his wife had a residence permit for GPE , the applicant was able to re - enter the country on DATE , and he was given a residence permit on DATE . CARDINAL daughters were born to the couple in GPE in DATE , DATE and DATE . Additionally , the wife ’s eldest daughter from her first marriage , born in DATE , was also living with the couple .

NORP In DATE a criminal charge was brought against the applicant because he had been working without the requisite work permit . Furthermore , in DATE , having falsified his wife ’s signature on an official document , he was warned for the first time by ORG of ORG the GPE of ORG Basel - Stadt , PERSON - hereinafter “ the cantonal immigration authorities ” ) that he would have to expect immigration measures to be taken if he did not improve his behaviour .

In DATE the applicant and his wife separated . The children remained with the applicant ’s wife and he was ordered to pay maintenance by ORG of the GPE of GPE - Stadt .

On DATE the applicant was sentenced by ORG of Basel - Stadt to a suspended custodial sentence of DATE for multiple bodily assaults on his wife , in part committed with a dangerous object .

In view of his conviction , his considerable accumulation of debts and his dependence on social welfare , the cantonal immigration authorities issued a further warning to the applicant on DATE .

In DATE his wife filed for divorce . In DATE the cantonal immigration authorities again warned the applicant , since his debts had grown further and his entire family was living on social welfare .

NORP Despite those warnings , the applicant ’s debts grew further . In DATE they amounted to MONEY ( CHF ) ( MONEY ( ORG ) ) . Additionally , he had failed to comply with his duty to pay maintenance for his family in the amount of CHF MONEY ( approximately ORG CARDINAL,CARDINAL ) . In DATE the cantonal immigration authorities decided to extend the applicant ’s residence permit for DATE . However , he was firmly advised to take steps to improve his financial situation .

NORP In DATE the applicant ’s wife withdrew her divorce petition . However , she did not wish to seek a reconciliation and the applicant was obliged to continue paying maintenance .

In DATE the applicant was sentenced to CARDINAL days’ imprisonment for wilful neglect of his obligation to pay maintenance .

In DATE the cantonal immigration authorities warned the applicant for the last time that he must expect implementation of the most serious immigration measures if his situation did not improve and his debts grew further . They gave him until DATE to prove that his financial and professional situation had stabilised and that he had complied with his obligation to pay maintenance .

In DATE the applicant ’s wife filed for divorce for the second time . She also brought another criminal charge against him for acts of aggression and threatening behaviour .

NORP In DATE the applicant ’s wife withdrew her criminal complaint against the applicant for domestic violence .

NORP By letter dated DATE the immigration authorities informed the applicant of their intention to expel him from NORP territory and granted him a period of grace in which to make his submissions .

On DATE the applicant ’s wife withdrew her divorce action and from DATE the couple lived together again .

On DATE the cantonal immigration authorities decided that the applicant ’s residence permit would not be extended and that he had to leave GPE for an indeterminate period of time . They held that over DATE , owing to the applicant ’s continuously accumulating debts and his failure to pay maintenance , his family had been dependent to a considerable degree on social welfare , and he had not proved that he was capable of observing public order and safety in GPE . In accordance with section QUANTITY b ) and ( d ) of LAW on the Temporary and Permanent Residence of Foreigners ( hereinafter “ FAC ” - see paragraph CARDINAL below ) and section CARDINAL of its LAW ( see paragraph CARDINAL below ) , he could therefore be expelled . They reasoned that since DATE , when the applicant had entered GPE for the second time , he had repeatedly been convicted of offences . Furthermore , despite the immigration authorities’ repeated warnings , his financial situation was serious and had continuously deteriorated . As at the date of the decision , his debts amounted to MONEY ( approximately ORG CARDINAL,CARDINAL ) and the outstanding maintenance payments to CHF CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) . In addition , from DATE , he had worked as an associate of a company in the gastronomic sector without having previously applied for the necessary work permit . Although he had never paid maintenance or complied with the debt repayment agreements , he had invested capital of CHF MONEY ( approximately ORG CARDINAL ) in that company . The cantonal immigration authorities therefore concluded that the applicant had not complied with the conditions previously set out by them for renewal of his residence permit . Furthermore , the fact that the applicant had resumed matrimonial life with his wife on DATE did not alter those findings , since his wife had already filed for divorce twice and there had been incidents of domestic violence in the past . The applicant had , moreover , registered his residence at the family home only after he had been informed by the immigration authorities in DATE of their intention to expel him . However , he had spent DATE and DATE in GPE and it could therefore hardly be assumed that he had actually re - established family life . The applicant ’s return to his country of origin – GPE – was also feasible , because he had spent most of his life there and maintained close social and family ties with that country , as evidenced by his regular visits there . Additionally , even though he claimed that his relationship with his children was close , he had not paid maintenance for them since the separation from his wife . Lastly , the children were not prevented from visiting him in GPE and the contact could be maintained at a distance . The applicant ’s expulsion was therefore proportionate and he was required to leave GPE by DATE .

On DATE the applicant was sentenced for the second time to a suspended custodial sentence of DATE for wilful neglect of his obligation to pay maintenance .

The applicant lodged an appeal against the decision of the cantonal immigration authorities with the director of ORG the GPE of ORG ( ORG Kantons Basel - Stadt – hereinafter “ the director ” ) , who dismissed the appeal on DATE . The director established that the applicant had met the criteria for expulsion under domestic law in several respects . To begin with , the applicant had been logged in the criminal register CARDINAL times since DATE . While the majority of the sentences had been for minor offences – mainly against LAW – CARDINAL of them were serious convictions . These were : CARDINAL for domestic violence in DATE , resulting in a suspended custodial sentence of CARDINAL months’ imprisonment , and CARDINAL others for wilful negligence of his obligation to pay maintenance , warranting CARDINAL days’ imprisonment in DATE and a suspended custodial sentence of DATE in DATE . Since the applicant had thus been found guilty of imprisonable offences ( see paragraph CARDINAL below ) , he fulfilled the criterion for expulsion as provided in section CARDINAL § CARDINAL ( a ) of FAC ( see paragraph CARDINAL below ) . Secondly , despite repeated warnings by the cantonal immigration authorities , the applicant ’s financial situation had continuously deteriorated . In this regard the director held that , despite having had several jobs in the gastronomic sector , the applicant had repeatedly tried to start his own business and had frivolously invested money in projects with poor prospects . His debts were therefore self - imposed and , from an overall perspective , he had , continuously throughout DATE , failed to show any willingness to observe public order and to integrate into the NORP system . He therefore additionally fulfilled the condition for expulsion according to section CARDINAL § CARDINAL ( b ) of FAC ( see paragraph CARDINAL below ) and section CARDINAL of its LAW ( see paragraph CARDINAL below ) . By contrast , despite still not having paid back to the ORG all the maintenance received for his family , after DATE the applicant ’s family had no longer been dependent on social welfare . Therefore , section CARDINAL § CARDINAL ( d ) of FAC ( see paragraph CARDINAL below ) no longer applied to the applicant . With regard to LAW , the director further established that the applicant ’s expulsion was a proportionate interference with his right to respect for family life . The applicant had maintained close ties with his home country , which he had visited on many occasions . The applicant ’s wife had lived in her home country until DATE and she had visited GPE , together with the children , on many occasions . Moreover , she had also accumulated debts amounting to CHF CARDINAL ( approximately EUR CARDINAL ) and was receiving an invalidity pension . Lastly , the children were still relatively young ( the oldest daughter being DATE at the time of the decision ) and they would therefore not encounter any serious difficulties if they returned to GPE with the applicant . The public interest in expelling the applicant to GPE therefore outweighed his personal interest in remaining in GPE .

On DATE ORG of the GPE of ORG ( ORG Basel - Stadt – hereinafter “ the ORG ” ) dismissed the applicant ’s appeal , a decision that was upheld by ORG ( hereinafter “ the ORG ” ) on DATE . With particular regard to the applicant ’s rights under LAW , both courts held that , considered as a whole , his expulsion was proportionate . Even though the applicant had been living together with his wife again since DATE , his matrimonial situation had not proved to be very stable in the past . Furthermore , despite having maintained a close relationship with his children , for DATE ‒ until DATE ‒ he had completely neglected his obligation to pay them maintenance . Moreover , it would be possible to maintain a relationship with them at a distance without serious difficulty . The courts also found that the family would not encounter any major obstacles if they returned to GPE with the applicant . The children were still at an age where they could easily adapt to a new environment and the NORP language was their mother tongue . Furthermore , his wife had not proved to be particularly well integrated in GPE and was receiving an invalidity pension . The expulsion order against the applicant was therefore upheld .

NORP The cantonal immigration authorities gave the applicant a deadline of DATE for leaving GPE . The applicant left GPE alone .

NORP In letters of DATE and DATE , the applicant ’s representative informed the ORG that the applicant had been issued with a residence permit for GPE on DATE . He nevertheless wanted to maintain his application because DATE he had been obliged to live in GPE while his wife and children had remained in GPE . During this period he had not been able to support them financially but had visited them , at least once , in GPE .

Section CARDINAL of LAW on the Temporary and Permanent Residence of Foreigners of DATE , as in force at the material time , read as follows :

“ CARDINAL A foreign national can be expelled from GPE or CARDINAL of its cantons only if :

( a ) he or she has been convicted by a judicial authority of a serious punishable offence [ Verbrechen ] or a less serious punishable offence [ Vergehen ] ;

( b ) his or her behaviour , in its entirety , or his actions demonstrate an unwillingness to adapt to the order established in the country that offers him hospitality or he is not capable of so adapting ; ...

( d ) if he or she , or a person he or she has to care for , is reliant on social welfare continuously and to a considerable degree ... ”

Section QUANTITY of LAW to LAW on the Temporary and Permanent Residence of Foreigners of DATE , as in force at the material time , read as follows :

“ ... CARDINAL An expulsion pursuant to section CARDINAL § CARDINAL ( b ) of LAW is in particular justified where there are

serious and repeated infringements of norms or official orders ; ...

continuously malicious or dissolute non - observance of obligations under public or private law ;

other continued dissoluteness or work - shy behaviour ... ”

Section CARDINAL of LAW of DATE , as in force at the material time , read as follows :

“ CARDINAL Serious punishable offences [ Verbrechen ] are offences for which the custodial sentence is imprisonment in a penal institution [ ORG ] .

CARDINAL Less serious punishable offences [ Vergehen ] are offences for which the most severe sentence is detention in prison [ ORG ] . “


Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

ORG ( “ the Government ” ) were represented by their Co - Agent , PERSON , of ORG .

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

The applicant entered GPE in DATE in order to follow university studies in GPE . In DATE he moved to GPE , where he worked as salesman in a small store .

In DATE , during a search conducted at the applicant ’s flat , the police found QUANTITY of cannabis and QUANTITY of opium . On DATE the ORG convicted the applicant of possession of illegal drugs for personal use and sentenced him to CARDINAL years’ imprisonment . The court also ordered the applicant ’s expulsion upon completion of his sentence . In the course of the criminal investigation ORG , the applicant ’s girlfriend and a NORP citizen , was heard as witness . She declared that she had known the applicant for DATE and that they had a son together , but she did not live with him . She also stated that he was a decent person and a good father who helped her raising their son . She explained that she had a key to his flat , where she would go once DATE so , depending on the problems she encountered with her son . The applicant did not appeal against the judgment of DATE .

On DATE , after the applicant had finished serving his sentence , ORG within ORG , taking into account the applicant ’s criminal conviction and based on the provisions of LAW . CARDINAL/CARDINAL on the status of aliens , issued an order prohibiting him from entering GPE for a period of DATE . DATE , the applicant signed the order , thus acknowledging its receipt . He then left GPE voluntarily .

On DATE the applicant married ORG in GPE . On DATE ORG granted a request submitted by ORG and established the applicant ’s paternity of her child .

In DATE , the applicant requested the reduction of the DATE period laid down in the order of DATE . He based his request on an amendment to Emergency Ordinance No . CARDINAL/CARDINAL introduced in DATE , which allowed for a MONEY reduction in the term of a prohibition on entering GPE to be applied to illegal aliens who were married to a NORP citizen or had a child of NORP citizenship .

On DATE ORG replied to the applicant that the new amendment invoked by him did not apply to aliens who had committed crimes in GPE . Moreover , the applicant was informed that the amendment in question had come into force after he had already been expelled from GPE and it could not be applied retroactively .

On DATE the applicant lodged a complaint before the administrative court against this reply . He requested the courts in his case to apply the more favourable provisions introduced by the new amendment to Emergency Ordinance No . CARDINAL/CARDINAL . Firstly , he argued that under amended LAW ( CARDINAL ) of the above - mentioned ordinance he would have the right to a MONEY reduction in the term of his prohibition on entering GPE because he had a wife and child who were NORP citizens . Secondly , he argued that the length of the ban on entering GPE could also be reduced to DATE as provided by the newly adopted provisions in cases of aliens who had committed crimes . Lastly , the applicant alleged that the initial measure imposed in his case and the letter of DATE rejecting his request for a reduction of the ban breached his right to family life as guaranteed by LAW since he had a child in GPE who was still a minor .

On DATE ORG rejected the applicant ’s complaint , reasoning that civil law did not apply retroactively and he could therefore not benefit from the more favourable provisions of Emergency Ordinance No . CARDINAL/CARDINAL since they had been adopted after his expulsion . The court pointed out that the applicant had not contested the order of DATE setting forth the prohibition on entering GPE . It further held that LAW had not been breached since the measure adopted in the applicant ’s case was provided for by law , pursued the legitimate aim of preserving public order and protecting the rights and liberties of others , and had been applied because of the applicant ’s criminal conviction .

NORP The applicant ’s appeal on points of law ( recurs ) against this judgment was rejected with final effect by ORG and ORG on DATE . ORG , like the lower court , pointed out that the applicant had not contested the initial measure of DATE prohibiting him from entering GPE . It further held that the lower court had correctly ruled that the new amendments to Emergency Ordinance No . CARDINAL/CARDINAL did not apply retroactively . ORG also held that the applicant ’s allegations of a breach of his right to family life guaranteed by LAW were ill - founded since he had married and had his paternity established after the issuance of the ban on his entering GPE . Moreover , ORG observed that the applicant had married in GPE and had not produced any proof concerning the existence of an actual family life in GPE . Under these conditions , relying on the ORG ’s judgment in the case of PERSON and Others v. GPE ( nos . CARDINAL/CARDINAL and GPE , DATE ) , ORG considered that the authorities’ refusal to apply the newly adopted regulations in the applicant ’s case had been a proportionate decision falling within the ambit of the second paragraph of LAW .

Article CARDINAL of LAW , as in force at the time of the applicant ’s conviction and referring to expulsion , reads as follows in its relevant parts :

“ A prohibition on remaining in GPE may be imposed on any alien who has committed a crime . ”

Emergency Ordinance No . CARDINAL/CARDINAL on the status of aliens , as it was in force on DATE , reads as follows in its relevant parts :

“ The order to leave NORP territory may be contested before ORG within DATE of notification thereof ... ”

“ ( CARDINAL ) For aliens who have committed crimes , the term of the prohibition shall be equal to the length of their sentence , but DATE . ”

Following an amendment which entered into force on DATE , new rules for calculating the term of the prohibition on entering GPE became applicable . LAW above - mentioned ordinance was amended to read as follows in its relevant parts :

“ ( CARDINAL ) For aliens who entered GPE illegally but whose stay has become legal , the term of the prohibition [ on entering GPE ] shall be as follows : ...

( CARDINAL ) The limits of the prohibition as set forth in paragraph ( CARDINAL ) above shall be reduced by CARDINAL for the aliens who :

d ) are married to NORP citizens or are parents of children of NORP citizenship who are minors .

( CARDINAL ) For aliens who have committed intentional crimes and have been expelled , the term of the prohibition shall be equal to the length of their sentence , but DATE . ”

The amendment of DATE did not include any special provisions concerning the aliens whose term of prohibition had been established under the former text of the Emergency Ordinance .


IVANOVIĆ AND DOO DAILY PRESS v. MONTENEGRO

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants are Mr GPE Ivanović ( “ the first applicant ” ) , a LOC national who was born in DATE and lives in GPE , and ORG ( “ the second applicant ” ) , a publishing company with its registered office in GPE . They are represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE ( GPE ) and ORG ) , respectively .

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

The first applicant is a journalist and a co - founder and the executive director of the LOC DATE newspaper ORG . The second applicant is the publisher of the newspaper .

On DATE ORG celebrated its CARDINALth anniversary . After leaving the celebration venue the first applicant was assaulted in the dark and beaten up by CARDINAL unidentified attackers . As a result of the assault he sustained a broken cheekbone ( jagodična kost ) and a number of haematomas and bruises .

DATE ORG published several articles relating to the assault , some of them including the first applicant ’s own comments .

NORP In particular , on DATE an article entitled “ A club from GPE and the family ” ( Palica od GPE i familije ) was published :

“ [ The first applicant ] said that the former Prime Minister PERSON had sent his hellhounds ( poslao svoje kerbere ) DATE TIME to beat him up .

[ The first applicant ] said that ‘ those who rule ORG had congratulated ORG on its tenth anniversary by these means .

‘ It is a greeting from those ruling GPE , and that is PERSON and his family , be it biological or criminal’ , said [ the first applicant ... ] . On ORG [ he ] told Ɖukanović not to send his people on an ambush in the dark but to put himself on the line ( sam izađe na crtu ) instead of backing out in this kind of situation ( umjesto što u takvim situacijama spušta pogled ) .

[ The first applicant ] considers that this was a warning to ORG to surrender ( da polože oružje ) , and that there is an attempt to drown even the small islands of freedom in GPE , which make Đukanović nervous . ”

DATE another article was published , entitled “ We shall not be intimidated ” ( Neće nas uplašiti ) , signed by ORG ’s editorial board ( redakcija ) . It contained , inter alia , the following :

“ For ORG there is no dilemma that the assault against [ its ] colleague PERSON , with his sharp criticism of reality here , is [ not only ] an attack on all those free - minded people gathered in ORG and around it , but also an attack on freedom of thought and speech in general . The motive is to silence ORG and all those , who unfortunately are not numerous , who refuse to consider transitional mud and crime as the best of all society . To intimidate all those who do not want to live in a ORG where the mafia and authorities are interwoven to such an extent that it is difficult to distinguish one from the other ( isprepleteni do neprepoznatljivosti ) , where the political top and mafia bottom are often on the same level , where smuggling is the backbone ( okosnica ) of the value system , and honest work and righteousness ( pravednost ) are laughed at in grandiose cafes . The intention is to warn once again those who do not accept this , that the list of unsolved murders can go on indefinitely ( sezati u nedogled ) .

It is difficult to expect that the police in this case will go beyond its limits , blockades in mind and in organisation , and will solve the crime , arrest the attackers , identify ( razobličiti ) and imprison the instigators , those who ordered this . Even before ORG claimed that the LOC police were managed from outside the police , the prosecution from outside the prosecution , the judiciary from outside the judiciary , that there was a parallel secret service , ORG or ORG , all the same . It is a LOC reality and that is the real force , that is the weakness of the ORG ( nemoć države ) .

In any event , the objective responsibility for all that and for the assault against Ivanović lies with the regime headed for DATE by PERSON , who rules it even now , regardless of form . He and his people , from the top to the bottom , are responsible for an atmosphere in which journalists , writers , and all those who dare to think and speak differently , get hurt . ORG has no dilemma about it and it will continue its uncompromising criticism of both the ambiance and people responsible . ”

It was also mentioned that TIME before the assault the telephone of CARDINAL of the editors - in - chief of ORG had rung and that the person on the other end of the line had politely introduced himself as PERSON .

On DATE an article entitled “ Even the birds know that he is the boss ” ( I vrapci znaju da je kapo ) was published in ORG , and contained the following statements by the first applicant :

“ The man who has CARDINAL wars waged in the territory of ex - GPE on his conscience , an accomplice in politics which destroyed CARDINAL country , killed CARDINAL of people and displaced CARDINAL of others , a person who is charged with organised crime and criminal association before the relevant investigative bodies of NORP countries , the boss who developed a criminal - financial octopus which is strangling ( drži za vrat ) GPE – that moral mountain of a man ( gromada ) is hurt , his honour harmed , and his mental anguish is such that only the courts can repair it ( jedino sud može sanirati ) .

I am ready for any court , even ORG , as I do not see anything new or any misdemeanour ( prekršajno ) in anything I said , and even the birds know that he is the boss of the family , be it biological or criminal , which rules GPE and decides on all things , including the most precious – human life .

I invite him to try to prove his truth and defence on the public stage , and not through courts , prosecutors , criminals and his spokespeople . Because GPE needs to know that nothing lasts forever ( ničija ORG gorjela do zore ) .

My mother and I , we wish his child all the best . We want him in the future , as an honest and honourable citizen , to enjoy and be free and safe in a just and fair society , confident that the system of evil and injustice created and established throughout GPE by his father – for which both I and much more my mother suffer DATE will go to the dustbin of history . ”

On DATE an article entitled “ Various kinds of pressure ” ( NORP repertoar pritisaka ) was published in ORG , including the following statement by the first applicant :

“ These pressures came from the top of the ORG . Our family members were dismissed from work , threatened by anonymous calls , various inspections were sent to the company ... , in the end they attempted to steal ( otmu ) the majority of stocks so that the daily could be edited as it suited Mr Ɖukanović . When all of this did not work out , the traditional methods were employed . ”

On DATE Mr PERSON ( hereinafter “ the plaintiff ” ) instituted civil proceedings against the applicants , seeking MONEY ( ORG ) for the damage caused by all of the above articles and statements by the first applicant contained therein .

The applicants submitted that all the most senior political and ORG officials , including the plaintiff , should be held objectively responsible for increased crime , including assaults on and even the murder of journalists ( poslenika javne riječi ) , and that the impugned articles should be seen in that context . They further maintained that the statements at issue were value judgments , and that the plaintiff , as a politician , had to display a greater degree of tolerance . They proposed that the parties to the proceedings and a number of other people be heard , and that an expert witness assess the level of mental anguish allegedly suffered by the plaintiff . They also maintained that the amount sought was too high and was aimed at suppressing freedom of expression . The applicants submitted that the courts should take into account the context and circumstances in which the statements had been made and the articles published . They relied , inter alia , on LAW and the ORG ’s case - law .

On DATE ORG ( PERSON ) in GPE ruled partly in favour of the plaintiff , concluding that his honour and reputation had been harmed , and ordering the applicants jointly to pay the plaintiff LAW in non - pecuniary damages and to publish the judgment in ORG at their own expense . In particular , the court found that the plaintiff ’s honour and reputation had been harmed by the first applicant ’s statements in the article “ A club from GPE and his family ” , and the contents of the article “ Even the birds know that he is the boss ” , which described the plaintiff and his family as criminals , and which associated him with organised crime and criminal association . The court relied on LAW , DATE , DATE and DATE of the LAW in force at the time , sections CARDINAL and CARDINAL of LAW ( see paragraphs DATE below ) , and ORG CARDINAL and CARDINAL § CARDINAL of the Convention .

NORP In particular , the court considered that freedom of the press and other forms of public information , and the right to dignity and personal rights had to be balanced . It held that “ parts of the above articles ” were not value judgments but factual information , susceptible to proof , which had not been previously verified or proved , aimed at discrediting not only the plaintiff but his private and family life too . By publishing the above texts , which contained inaccurate , unproved information , without prior verification , subsequent rectification , acceptance of a mistake or a public apology to the plaintiff , the first applicant had persisted in harming the plaintiff ’s reputation . As the executive director of a news medium , the first applicant was especially expected to respect the rules when publishing information , particularly that which could be harmful to others . The above texts harshly ( grubo ) harmed the plaintiff ’s honour and reputation , considerably overstepping the limits of criticism to be tolerated by a politician , especially given that the impugned articles did not criticise the plaintiff ’s public work but put the plaintiff and his family in a criminal context .

The court further held that “ the right of the media to publish negative information and criticism relating to politicians did not give [ them ] the right to violate fundamental human values , the protection of which was provided in respect of every citizen regardless of his / her being a public figure or not . ... Public officials could not have fewer rights than others as that would be a violation of the principle of equality , which was guaranteed by the LAW . ”

The first applicant ’s allegations that he had made the impugned statements when he had been in a specific state after the assault were dismissed as unfounded . The court also refused other proposed evidence as unnecessary .

In assessing the amount of damages the court took into account the importance of the plaintiff ’s honour and reputation , the fact that several articles had been published in a DATE newspaper which had a high circulation ( visokotiražan ) , traditional understanding of LOC society of moral human values , as well as the criminal context in which both the plaintiff ’s personality and his family had been put .

Both the plaintiff and the applicants appealed against the decision .

On DATE ORG ( PERSON ) in GPE held that only the following statements harmed the plaintiff ’s honour and reputation : “ Đukanović had sent his hellhounds to beat [ the first applicant ] up ” ; “ it is a greeting from those ruling GPE , and that is PERSON and his family , be it biological or criminal ” ; “ the boss who developed a criminal - financial octopus which is strangling GPE ” , and “ he is the boss of the family , be it biological or criminal , which rules GPE and decides on all things , including the most precious – human life ” . It further held that instead of proving the veracity of the statements the applicants had repeated them . They had thereby misused freedom of expression , given that by “ exercising it one could not insult others and harm their honour , reputation and dignity ” , which was also prescribed in LAW .

The court took into account the ORG ’s opinion that politicians should display a greater degree of tolerance towards criticism , but considered that the above statements overstepped the limits provided for by freedom of expression and the plaintiff ’s obligation in that regard , especially given that the applicants had not refrained from mentioning the plaintiff ’s family in the same insulting context .

It also considered that the compensation of ORG CARDINAL was too high and reduced it to EUR CARDINAL jointly .

Lastly , the court held that the other articles and statements , especially the text “ We shall not be intimidated ” , criticised the situation in LOC society , and represented value judgments in respect of which no damages should be awarded . The court held that the applicants’ arguments in that regard , submitted in their appeal , were well - founded , which influenced the amount of the damages awarded . The amount was also influenced by the circumstances in which the texts had been written and the statements made , but the court considered that these factors did not justify the publication of untrue information and its transmission through the media , but rather represented its misuse . According to ORG , the Convention and the ORG did not protect that kind of information and statements .

NORP This decision was served on the applicants on DATE .

On DATE a bailiff ( javni izvršitelj ) issued an enforcement order on the basis of which the plaintiff collected EUR CARDINAL,CARDINAL.CARDINAL from the second applicant ’s account . The amount was increased due to the accrued interest .

On DATE the ORG prosecutor ( PERSON državni tužilac ) filed an indictment against GPE for violent behaviour , and PERSON for violent behaviour and inflicting serious bodily harm on the first applicant .

On DATE ORG in GPE found GPE and PERSON guilty , on the basis of their confessions , and sentenced them both to CARDINAL years’ imprisonment . It also established that they had been assisted by “ a certain PERSON from GPE ” . On DATE ORG in GPE reduced their sentences to DATE .

On DATE the first applicant ’s lawyer sent a letter to ORG submitting that GPE and PERSON had been convicted contrary to all the evidence , and that even if they had been involved in the assault , there had been CARDINAL more people involved . He requested that the investigation be reopened in order to identify the others involved .

Below is further information considered relevant by the parties .

In DATE a publisher and the director of PERSON , a pro - opposition DATE newspaper , was killed in the street .

In DATE a group of individuals , including the first applicant , organised a petition and issued a press release opposing the award of a regional peace prize to the plaintiff . He was nevertheless awarded the prize .

The first applicant ’s gross income was QUANTITY ( ORG ) in DATE and EUR CARDINAL in DATE . The second applicant ’s profits were ORG CARDINAL in DATE and ORG CARDINAL in DATE .

DATE there were DATE separate attacks ( involving the planting of explosive devices , physical assaults , threats , car arson and the stoning of LOC ) against journalists or LOC of ORG . In spite of numerous measures undertaken by the relevant authorities ( questioning of various individuals , obtaining camera footage , checking telephone communications and polygraph questioning ) CARDINAL of these attacks remain unsolved to date . In CARDINAL other cases the perpetrators were identified , found guilty in criminal or misdemeanour proceedings , and either fined , given a suspended sentence , or sentenced to DATE in prison .

In DATE CARDINAL person was found guilty of coercion and jeopardising the safety of a freelance journalist , and was sentenced to DATE in prison . In DATE CARDINAL other individuals were found guilty of violent behaviour against a journalist of PERSON and were sentenced to DATE in prison .

DATE the domestic courts ruled in CARDINAL cases of an alleged harming of honour and reputation , in CARDINAL of which respondent parties were journalists and/or DATE newspapers and/or companies publishing DATE newspapers . The courts dismissed CARDINAL of them , and in CARDINAL ruled partly in favour of the claimant ( an individual ) , awarding him ORG CARDINAL of the EUR CARDINAL,CARDINAL claimed against a journalist / writer .

On several occasions in DATE and DATE ORG urged the plaintiff to refrain from provocative language when speaking about ORG .

On DATE Human Rights Action / Akcija za ljudska prava , a LOC NGO , issued a report entitled “ Prosecution of attacks on journalists in GPE ” . The report mentions QUANTITY cases of assaults , threats , arson and so forth against various journalists ( including the assault against the first applicant ) , human rights campaigners and a writer . In CARDINAL incident a person ( the writer ’s driver / bodyguard ) was murdered . All of the incidents took place DATE and DATE . According to the report , the murders of the PERSON editor - in - chief and the writer ’s bodyguard have never been resolved , some prosecutions became timebarred , and in some cases where the perpetrators were identified their motives and those who ordered the attacks remained unknown . The report also considered the judgments issued in respect of the applicants to be in breach of LAW .

DATE reports were issued by ORG ( in DATE , DATE and DATE ) , ORG ( in DATE and DATE ) and ORG ( in DATE ) , which noted assaults and threats against journalists in GPE , the pressure they faced , the limited investigations and the consequent lack of accountability .

In DATE the Global Investigative Journalism Network awarded its prize to ORG “ for [ its ] series ‘ GPE on GPE as a mafia state ” , which “ exposed how [ the plaintiff ] and his family bank [ were ] at the centre of an unholy alliance of government , organised crime and business . ”

Article CARDINAL of the LAW in force at the time provided that everybody was obliged to respect the rights and freedoms of others , and that any abuse ( zloupotreba ) of those rights or freedoms was considered anticonstitutional and subject to punishment .

Article CARDINAL guaranteed the inviolability of an individual ’s physical and psychological integrity , privacy and personal rights , and his or her dignity and safety .

Article CARDINAL provided , inter alia , for freedom of expression .

Article CARDINAL provided for freedom of the press and other media , as well as the right of individuals ( građani ) to publicly express their opinions through the media ( u sredstvima javnog obavještavanja ) .

Article CARDINAL provided for the right to reply and correction of incorrect published data or information , as well as the right to compensation for damage caused by the publication of untrue data or information .

Section CARDINAL provides that the media in GPE are free , and that freedom of information is guaranteed in accordance with the standards provided in international human rights texts ( ORG , ORG , ORG ) . It further provides that the LAW should be interpreted and applied in accordance with the principles of the LAW and the ORG ’s case - law .

Section CARDINAL provides that , unless otherwise provided by the LAW , the founder of the medium is responsible for the content it publishes . Should the media publish content which violates the statutorily protected interest of a person to whom the relevant information refers or insults someone ’s honour or integrity , or disseminate untrue allegations about someone ’s life , knowledge or competencies , the person concerned is entitled to lodge a compensation claim against the author and the founder of the medium .

Section CARDINAL provided that everyone had to refrain from actions which could cause damage to others .

Under ORG CARDINAL and CARDINAL , inter alia , anyone who had suffered mental anguish as a consequence of a breach of his honour or reputation could , depending on its duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which might be capable ” of affording adequate non - pecuniary satisfaction .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in DATE and lives in GPE .

The applicant and his brother co - owned a house with a yard and a garage in GPE .

By a decision of the mayor of CARDINAL DATE the property was expropriated with a view to constructing a residential building . The decision , based on LAW ( CARDINAL ) of the LOC and Urban Planning Act of DATE ( ORG за териториалното и селищно устройство – “ the ORG ” ) , stated that the applicant and his brother were to be compensated with flats in a building which the municipality intended to construct .

On an unspecified date the flats were constructed and delivered to the applicant and his brother .

On DATE the mayor modified the decision of CARDINAL DATE , stating that the CARDINAL brothers were also to be compensated with a common garage . The applicant ’s brother informed the mayor that he renounced his right to compensation with a garage in the applicant ’s favour .

By a supplementary decision of CARDINAL DATE , based on section CARDINAL of the PERSON , the mayor held that the applicant was to be compensated with the right to build a garage on a municipal land and determined the exact location of the future garage . The applicant did not appeal against that decision and apparently prepared to start the construction works .

By a decision of DATE the mayor modified the previous decision of CARDINAL DATE , indicating another municipal plot of land where the future garage was to be built , as it had turned out that the previous one was not owned by the municipality . That decision was not appealed against by the applicant , but was eventually set aside by the NORP regional governor after it had been contested by third persons .

On an unspecified date in DATE the applicant brought a tort action against the GPE , claiming a wrongful failure on its part to provide him with a garage . The action was dismissed , the final judgment being given by ORG on DATE . The domestic courts held that no unlawful inactivity on the part of the authorities had been established , neither had it been shown that the applicant had sustained any damage .

NORP In DATE the applicant agreed to receive compensation in cash in lieu of the garage due to him . It appears that the municipality had been offering such a solution since DATE . The compensation in cash was paid to the applicant on DATE .