Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE . When introducing her application to the ORG , she lived in GPE , GPE , where the applicant continues to reside to DATE .

In DATE , in GPE , the applicant married PERSON , a NORP citizen . Their marriage was registered in GPE in DATE . They have CARDINAL daughters , who were born in DATE and DATE . They all lived in GPE .

NORP In DATE the NORP authorities granted the applicant legal aid in connection with her intent to start divorce and custody proceedings . DATE the applicant applied to FAC to have her marriage dissolved . She also asked for permission for both daughters to reside with her permanently , and for child maintenance from ORG

In DATE Marijampolė Municipal Children ’s Rights Protection Service ( PERSON teisių apsaugos tarnyba DATE hereinafter “ the Marijampolė service ” ) informed the court in writing that the ORG answers regarding who they would like to live with were unclear . They wished to live with both parents . Given the ORG young age , and in the absence of information that the applicant was not performing her maternal duties properly , the service stated that residing with the applicant would not be against the children ’s interests .

The applicant ’s husband PERSON then lodged a counterclaim , asking the court to make a residence order in his favour .

The applicant then asked the court to grant a temporary protective measure – for the girls to temporarily reside with her until the case was decided on the merits . She submitted that the girls had no citizenship . Given the level of conflict between her and ORG , she feared that he might take the girls to GPE with him and she would then face obstacles in securing their return .

On DATE FAC allowed the applicant ’s request for a temporary protective measure . The girls were thus to stay with the applicant until the end of the custody proceedings . The ruling was upheld on DATE by ORG . The latter court ruling , however , specified that the applicant ’s husband retained the right to have contact with his daughters at their place of residence or educational institutions .

On DATE the Marijampolė service provided the court with conclusions indicating that the girls would not clearly state who they would like to live with . The father had suitable accommodation in which to raise them . The service concluded that the interests of the girls , “ as future women ( kaip būsimoms moterims ) ” would be better met if they lived together with the mother . Information obtained from doctors and educational institutions confirmed that the applicant took care of her daughters , who had ( earlier ) attended kindergarten and school in GPE . The Marijampolė service nevertheless noted that its conclusions in the case could be revised if new circumstances emerged .

On DATE the applicant also wrote to ORG ( hereinafter “ the GPE service ” ) stating that on DATE he tried to call his daughters on the telephone , but no one answered . The applicant , with whom the daughters had to be , did not answer her telephone either . The applicant noted that the older daughter attended school in LOC , but she had not been seen at school as of DATE . He went to the apartment which the applicant had been renting in LOC , but found the doors locked . PERSON considered that the applicant abused her parental rights , obstructed him to communicate with his daughters even by telephone , and did not guarantee the girl ’s right to attend school . ORG suspected that the applicant could have taken their daughters to GPE . He asked the GPE service to investigate the situation and promised his full cooperation .

In reply , on DATE the GPE service noted that since DATE the applicant had been living with her daughters in GPE . DATE one of the girls attended kindergarten , and the other attended school . Conditions at the flat where the applicant lived in GPE were appropriate for the girls .

It transpires from a police report that on DATE the applicant contacted GPE police to report that she had allowed PERSON to see their daughters in GPE that day but he had not returned them to her . The police established that the girls were with their father in GPE . On DATE a police officer visited PERSON and the girls in LOC and found them to be safe . The officer telephoned the applicant and asked her to come and take the girls . She replied that she had already contacted a bailiff and would not be going to pick them up herself .

On DATE the applicant made a further application for protective measures , asking ORG to restrict her husband ’s right to see his daughters .

ORG then deemed it necessary to ask both the GPE and LOC services to provide information , and decided to hold an oral hearing to better establish whether any circumstances had evolved .

The PERSON service provided conclusions on DATE , stating that by agreement of the parents the girls had met their father on DATE , but he had not yet returned them . Their colleagues , child care specialists from the Marijampolė service , had visited the girls at their father ’s home . The girls explained that they liked and wished to be there ; their interests or rights had not been compromised . The GPE service also noted that , in accordance with LAW , a child who could express his or her views had to be heard and have his or her wishes taken into account , unless they were against his or her interests . For the PERSON child care specialists , it was desirable to have an order in place setting out how the girls could have contact with their father pending the proceedings .

On DATE the Marijampolė service informed the court in writing that DATE they had visited ORG ’s apartment twice , without prior notification , on CARDINAL and DATE . The girls had communicated with their father naturally and without tension . There was no reason to believe that they were physically or emotionally unsafe at their father ’s home . PERSON explained that on DATE he took the girls on common agreement with the applicant . TIME , when he wished to return their daughters , the applicant could not be reached on her telephone . The applicant therefore took the girls to LOC . The service considered that the applicant ’s suggestions that PERSON could kidnap the girls and take them to GPE were unfounded . The service also noted that it was unclear why the applicant would not call her daughters by telephone or come to LOC and contact the service so that they could go and visit the girls together ( a point remade in its separate letter to the applicant of the same date ) . The service also stressed that the manner in which both PERSON and the applicant chose to resolve their conflict DATE which , due to their complaints , required the girls to communicate with child care specialists and police officers – negatively affected the children .

On DATE the applicant declared her place of residence as GPE .

DATE the GPE and LOC services exchanged a number of letters with the applicant , replying to various requests for information and assistance . It was noted , inter alia , that she had been asked to visit the Marijampolė service to resolve the matter of the ORG return and to go to ORG ’s home with police officers to take the girls , but she had declined to do so . The child care specialists also noted having visited PERSON ’s home , where the girls had been found . PERSON had explained to the child care specialists that his daughters did not wish to go to their mother ’s and that he did not want to take them there by force . The Marijampolė service enquired with the applicant why she herself had not been calling her daughters and had not applied to the service for assistance in meeting them . For the child care specialists , the manner in which the applicant chose to solve her dispute with ORG negatively affected the ORG psychological well - being , because they had to communicate with various authorities often . The applicant was also informed that it was the bailiff who was competent to enforce court decisions .

On DATE FAC decided the temporary protective measures application in the presence of the applicant , PERSON , their lawyers and a child care specialist . Upon the recommendation of the latter , and given that the court hearing on the merits of the action was scheduled for DATE , when deciding on the temporary protective measure the court also deemed it appropriate not to hear the children , to avoid causing them even more stress .

The court acknowledged that when the applicant had allowed her husband to see their daughters for TIME on DATE , he had not returned them to her home . It urged the parents to arrange the return of the girls to their mother and to reach an agreement on how ORG would contact them until the final court decision in the divorce and custody proceedings . However , each parent had their own conflicting opinions , which only served to worsen the strained relations between them . The court noted that both parents had the right to raise their children and have contact with them , and there was no information to suggest that ORG ’s communication with his daughters would cause them harm . Nor was there any information that the applicant was failing in her duties as a mother . Accordingly , pursuant to LAW , which required the courts to aim to protect the interests and rights of minors ( see paragraph CARDINAL below ) , and taking into account the earlier court rulings that the girls should temporarily reside with the applicant ( see paragraph CARDINAL above ) , the court ordered PERSON to return his daughters to their mother . Should he fail to do so , the applicant could contact a bailiff , who would then take the girls and their documents and hand them over to the applicant . Until the end of the divorce and custody proceedings , the applicant ’s husband was granted contact with his daughters DATE from DATE TIME until TIME , when he could collect them from the applicant ’s place of residence and spend time with them . He was forbidden only from travelling outside GPE with them .

On DATE , that is on DATE the applicant was explained by the Marijampolė service that execution of court rulings belonged to the exclusive competence of a bailiff . DATE the court ruling became final and thus enforceable . Pursuant to the applicant ’s request of DATE , the following day ORG issued her a writ of execution , which the applicant then transmitted to the bailiff on CARDINAL DATE ( also see paragraph CARDINAL below ) .

DATE the applicant asked that PERSON be fined for non - compliance with a court order requiring him to hand the children over . She also asked the court to prohibit him from seeing his daughters . In turn , PERSON asked that they remain with him , arguing that they refused to live with their mother . The Marijampolė service informed the court that from DATE the girls started attending school in GPE , and that situation had been caused by ORG ’s refusal to hand them over to the applicant . In DATE , on the recommendation of the Marijampolė service , CARDINAL of its psychologists saw the girls twice . She observed that they were attached to their father and had a good emotional connection with him . They also stated that they wished to stay with their father . The psychologist could not assess the emotional connection they had with their mother , because she could not be contacted . On DATE the Kaunas service informed the court in writing that because the girls did not live in GPE , it there were grounds for limiting PERSON ’s paternal rights , in accordance with LAW .

According to the Government , following complaints by the applicant alleging inactivity on the part of both the GPE and LOC services , on DATE the PERSON for ORG ( PERSON teisių apsaugos kontrolierius – hereinafter “ the PERSON ” ) issued a report . It noted that the relationship between the parents had broken down and that the applicant herself had been hostile . The report established that she instigated conflict , involved different ORG and municipal institutions in solving her relationship problems with her husband and gave little importance to her own personal responsibility , efforts and benevolence in looking for solutions in the best interests of her daughters . The report also indicated that she had applied to child care services and the police , submitted requests for assistance in taking the children , but as soon as they had provided her with opportunities she had refused them . It was recommended that she solve the questions of the ORG place of residence and contact by mutual agreement with the father , and in the children ’s best interests .

On DATE ORG held an oral hearing with the applicant , PERSON , their lawyers and representatives of the Marijampolė and GPE services . Over DATE that followed CARDINAL more hearings were held and the girls were questioned by the judge in the absence of their parents and their lawyers . CARDINAL of the girls testified that she wished to live with her father . The other testified that she missed her mother and wished that both parents lived together . She also stated that she otherwise preferred living with her father .

On DATE ORG dismissed PERSON ’s request that the girls reside with him , and the applicant ’s request to forbid him from seeing them . The decision was upheld by ORG on DATE . The courts acknowledged that ORG had not avoided his duties as a father , but it had not been established that he could provide better living conditions for the girls or raise them better . Moreover , the ORG place of residence had already been decided by an earlier court ruling and it was not in their best interests to change that place DATE . The girls were not yet mature enough for their wishes alone to suffice to change their place of temporary residence .

On DATE the principal of the school the girls had been attending in GPE since DATE informed the child care authorities that the applicant had been visiting the girls at school and communicating with them , their teachers , the school administration and social workers on a regular basis . On CARDINAL occasion a social worker observed CARDINAL of the applicant ’s meetings with the girls . They had talked to their mother warmly and sincerely , and had stated that they wished to live with both parents . The principal noted having been asked by PERSON to restrict the ORG contact with the applicant , but he had not acceded to that request because he considered that the girls should see and communicate with both parents .

On DATE , in reply to letters from the applicant asking for information about her daughters’ achievements at school and requesting that it arrange a meeting with her daughters on school premises , the principal informed the applicant that the school had always been open for parents . He noted having urged the applicant since DATE to come to school as often as possible , and to communicate with her daughters and their teachers . However , ‘ the applicant had not heard that message ( deja , GPE šito raginimo neišgirdote)’ . The principal stressed that the school was ready to help the applicant in every possible way if she showed initiative to see her daughters ; no prior notification for her coming to school was necessary . For the school principal , the applicant ’s pleas were particularly odd , because it was only because of her that the girls were not fully fledged members of the school as they were not on the list of pupils . The applicant was well aware of that but had not made any effort to settle the matter . The principal concluded that if the applicant was serious about her daughters’ future , he wanted her to think seriously and solve the problems which depended solely upon her .

DATE and DATE FAC held CARDINAL oral hearings , in which the applicant , PERSON , their lawyers and representatives of child care services participated . The court granted a request by the applicant for a psychological assessment of the girls ( see paragraph CARDINAL below ) , had regard to letters from the institutions where the girls attended after - school activities , and questioned the principal and psychologist of the school .

At a court hearing on DATE the principal testified to having admitted the girls to the school at ORG ’s request and in the ORG best interests , and that they came to school ready for lessons and well - presented . They were well taken care of , felt well at school and wished to study there . The principal also stated that the applicant could have come to school and taken the girls with her at any time . However , the applicant came to school very seldom ; the last time he had seen her there was in DATE .

The school psychologist testified that she had told both parents that they could ask her for psychological assistance , but neither parent had followed up with such a request . Without parental agreement or a referral by child care specialists , no psychological assistance could be provided . The psychologist also testified that the ORG teachers had not contacted her with any particular concerns about the ORG well - being .

In DATE experts from ORG ( Vaikų ir paauglių teismo psichiatrijos skyrius ) examined the girls . The experts found in respect of both girls that it was not possible to establish which parent ’s place of residence would best meet the ORG interests , because equal communication with both parents , who were important to the girls , was important to them both . When observed with their father , the girls were positive , active and laughed a lot . Both ORG connection with their father was “ positive , warm and strong ” . Their relationship with the mother was ambivalent and their feelings were torn ( dominuoja prieštaringi ( ir teigiami , ir neigiami ) jausmai ) . Even so , there was no doubt that the mother was an important person for the girls . Having regard to the ORG age , maturity and psychological particularities , they were not yet able to formulate and express their own opinions and views as regards which parent they should live with . The ORG wish to live with their father was determined by objective factors , namely them living with him for DATE and communication with their mother being insufficient . Unnatural hostility towards the mother had only traumatised them and parental alienation syndrome , enhanced by their father ’s influence , could be seen in their behaviour . Lastly , both girls were attached to each other , and separating them would be traumatic .

In DATE the applicant declared her place of residence as GPE , GPE .

On DATE the applicant asked ORG to hear the case in her absence . She maintained all her civil claims . Moreover , in the applicant ’s words , “ the forensic expertise having been performed , [ paragraph CARDINAL above ] I consider that all the evidence in the case has been collected and examined , and that the case should be terminated immediately , and I therefore ask for it to be terminated in my absence because I am ill . ” The applicant agreed to her lawyer representing her interests from that point forward .

On DATE ORG held an oral hearing with the applicant ’s lawyer , PERSON , his lawyer , and the child care authorities . During the hearing it came to light that the applicant had declared her place of residence as GPE , where she was expecting a child with another man . According to ORG ’s lawyer , those circumstances were relevant when deciding the ORG place of residence , especially given the applicant ’s initial accusation of the girls being taken to GPE by their father ( see paragraph CARDINAL above ) . The court deemed it appropriate to postpone the hearing , so that the applicant could be questioned .

DATE the applicant ’s lawyer provided the court with a medicate certificate issued in GPE , about her client being at risk of premature birth if she experienced physical or psychological stress . The lawyer asked the court to hear the case without her client present , or to suspend the proceedings , until after the applicant had given birth .

On DATE the court held an oral hearing without the applicant , but in the presence of her lawyer . She confirmed that her client had declared her place of residence as GPE , the father of her future child being a NORP national , but that she intended to return to GPE to live in GPE immediately after giving birth in GPE . The lawyer also confirmed that the applicant had not communicated with the girls during DATE .

ORG ’s lawyer regretted that the applicant could not be questioned at the hearing .

Relying on the forensic experts’ conclusions about parental alienation syndrome , heightened by ORG ’s attitude towards the applicant , the PERSON service noted that it would be more in the ORG interests to reside with their mother . It did not see the applicant ’s pregnancy as a factor to be taken into account when deciding the ORG place of residence . The service confirmed that the future child ’s father was a NORP citizen , which suggested that the applicant would live in GPE . Even so , PERSON was a NORP citizen but lived in GPE . The GPE service also noted that the applicant had approached them for a referral to psychologists so that she could find contact with her daughters easier . A referral was given to her and , as far as the GPE service was aware , the applicant had visited the psychologists for assistance . The service was of the view that the applicant had tried to establish contact with her daughters , but had been unsuccessful . She had probably not visited them at school for a while to avoid traumatising them .

At the same hearing the Marijampolė service representative noted that it had known the girls and their family history since DATE , when disagreements between the applicant and PERSON had started . The girls really thought clearly and their minds had developed in accordance with their ages . The representative thought that the ORG behaviour had been conditioned by their mother ’s actions as she did not visit them often at school or show interest in their lives , and therefore no emotional connection between them had been formed . The girls had been heard by the court DATE , where they had expressed their wishes ( see paragraph CARDINAL above ) – the court had to remember that moment and have regard to the ORG opinion . Indeed , in DATE ORG had reproached GPE for not always hearing and paying attention to the child ’s opinion ( see paragraph CARDINAL below ) . The representative noted that no one could ignore the fact that it was not known where the applicant , who was currently in GPE , was about to live . It was submitted that the GPE conclusions were contradictory ( yra prieštaringos ) . The conclusions noted that ORG was important to the girls ; they had a warm , positive and stable relationship with him . When communicating with their father , the girls felt safe and were actively involved in shared activities . They could easily approach their father , hug him and tell him about their achievements at school , where they took prized places in mathematics competitions . The child care specialist emphasised that a child who was psychologically distressed could not have such achievements at school .

The Marijampolė service underlined that the circumstances had changed and thus it would always inform the court that it would provide the last conclusion during the last court hearing . Having communicated with the school , the school administration and the teachers , the Marijampolė service was finally persuaded that it was better for the girls to stay in that environment , to attend school and have friends ; at home they were also receiving all that was necessary . The applicant , however , did not approach the girls after certain court decisions but first ran to the institutions or called the police , thus traumatising the girls a lot . In the words of the child care specialist , the applicant had not attempted to first meet with the girls or establish contact with them , and had not put in any effort herself . It was odd that a mother would go without seeing her daughters for DATE and not ask if they were prepared for school .

The Marijampolė service thus submitted that , in the light of the above considerations , ORG could take care of the girls the best and provide them what they needed . To pull the girls out of the environment they were familiar with and where they had spent most of their time would cause them significant psychological harm . The girls could always choose to tell to their father later that they wish to live with their mother . At the end the Marijampolė service representative noted that , in her view , the child care specialists from Marijampolė had observed the girls more than the representatives from the PERSON service .

On DATE ORG took a decision on the merits of the divorce and custody case . It observed that there was no information in the file to suggest that either parent was failing in their duties to raise their daughters or that their behaviour was immoral . Even so , they had not always acted with the children ’s best interests in mind , because during the court proceedings neither parent had attempted to find a compromise as regards their daughters’ place of residence or their contact with them . The court emphasised that the children had to grow up in a safe environment they were used to . However , even though by a court order of CARDINAL DATE the girls were to reside with their mother , the actual situation was that since DATE they had been residing with their father . The girls themselves had expressed the wish to stay with him . The first - instance court thus held that although the father could have had some influence over the ORG choice as to who they preferred to live with , it was not decisive . The girls had thus already stated on DATE that they preferred living with their father ( see paragraph CARDINAL above ) . It was the court ’s view that such a short time ( DATE ) between those CARDINAL dates was not sufficient for the ORG father to influence his daughters . It was thus clear that there was already then tension between the girls and their mother .

Lastly , ORG noted that even though the applicant had declared her place of residence as GPE , since DATE she was also registered as living in GPE . For the court , the question where the father or mother would live with the children was irrelevant in any event because the girls spoke NORP ; they had previously lived in GPE and thus could adjust to living there easily . What was essential when deciding the question of the ORG residence was to ascertain who the children were more attached to , and which parent devoted more attention to their interests . The children ’s wishes as to where to live could be disregarded only if they were against their interests . Given that there was nothing to suggest that either parent was neglecting their parental duties , the ORG deemed it most suitable to take into account the ORG wish to live with their father .

The first - instance court also ordered the applicant to pay the ORG father maintenance ( CARDINAL ( ORG ) for each daughter per month ) and set in place a contact order for the applicant to see her daughters . Even though both parents asked to see the children DATE and during DATE , in accordance with LAW the court considered ex officio that such a time - frame would be too restrictive for the applicant to be able to build up contact with her daughters . A wider contact order , allowing the applicant contact not only during DATE but also ORG holidays and certain DATE during DATE was set in place . The court stressed to both parents their obligation to take care of the children and above all be an example to them .

The court also divorced the applicant and her husband .

On DATE the applicant appealed against the first - instance court ’s decision . She contested the decision about the ORG place of residence . Without explicitly asking that a hearing be held , she asked for a re - examination of the evidence and witnesses to be called and questioned .

By a letter of CARDINAL March DATE , the applicant also asked ORG to admit in evidence letters postmarked DATE and DATE she had sent to her daughters in GPE from GPE , which had been returned to her in the post . The applicant claimed that ORG had thus interfered with her right to be in contact with her children . She relied on LAW ( see paragraph CARDINAL below ) .

By a ruling of CARDINAL DATE made in written proceedings , ORG left the lower court ’s decision unchanged . The court noted at the outset that pursuant to ORG and CARDINAL of the Code of Civil Procedure , appeals had to be heard in written proceedings unless the court deemed an oral hearing indispensable . As regards the applicant ’s request to have witnesses questioned , the court established that the applicant had not specified in her appeal what new circumstances essential for the case the requested witnesses could confirm , some of them having already been questioned at first instance . Nor had she explained why she had not submitted the request to the first - instance court . The court concluded that an oral hearing was not necessary , because the applicant had had the opportunity to point out all the circumstances necessary for an examination of the case to the first - instance court and also in her appeal .

The appellate court also refused to admit documents related to the applicant ’s correspondence with her daughters . According to it , those pieces of evidence had not been analysed in the first - instance court , which was a general requirement for evidence to be admitted in an appeal , or lodged with it .

As to the ORG place of residence , ORG dismissed as unfounded the applicant ’s plea that the first - instance court did not properly examine the evidence , which included the explanations by the child care authorities , ORG reports , witness testimony and the PERSON ’s conclusions . On this last point the court observed the PERSON ’s conclusion of CARDINAL DATE stating that the applicant was conflictive and involved various authorities in her and PERSON ’s conflict , without giving importance to her own responsibility and good - will in finding the best solutions for the children . It also observed that the first - instance court had examined the forensic expert reports about the ORG psychological state , where it was noted that they both wished to stay with their father . In addition , psychologists from the ORG school and the school principal were questioned . The applicant ’s lawyer herself admitted agreeing with the forensic expert reports , and did not ask for another expert examination to be conducted .

ORG also found that it was in the best interests of the children to stay with their father , who they had lived with since DATE . On that point it was also paramount that during the first - instance court hearing the girls had confirmed their wish to live with him . A fact on which the applicant had relied , that ORG had prior convictions in GPE for sexual and drug - related offences committed in DATE and DATE did not have much significance for the case , because the convictions had expired in DATE . The applicant , for her part , had a criminal conviction in GPE for forgery of document and a criminal investigation against her for fraud had been terminated . What mattered was that she had left GPE for GPE ; she had CARDINAL addresses – in GPE , PERSON and in GPE , which she had indicated as places where she lived , which suggested that she in fact had no habitual place of residence . Moreover , the applicant ’s contact with the girls was merely episodic , whereas the ORG father took proper care of them and actively participated in raising them . The girls lived with their father , attended school and had suitable living conditions . The evidence as a whole allowed for the conclusion that there was a close connection between the girls and their father . There was no evidence in the case file to the effect that ORG abused his parental rights , and it was for the applicant to prove the opposite , which she had not done . Moreover , under LAW on the Rights of the Child , a child had the right to be heard in all matters affecting him , which had been done in the present case . The appellate court also observed that in accordance with LAW , both parents had equal rights and obligations towards their children . Accordingly , and contrary to the applicant ’s suggestion that she was closer to the girls because of their gender , the gender of a parent could not be a factor which determined who a child should reside with .

As to temporary protective measures , ORG observed that , as a rule , they were aimed at guaranteeing compliance with a future court decision . Accordingly , the first - instance court , when adopting a decision after examining merits of the case , was not bound by earlier decisions on temporary protective measures .

Following a complaint by the applicant , on DATE the PERSON issued a report dismissing allegations by the applicant about the partiality of the Marijampolė service because of its failure to provide her with information and consultations . The PERSON relied on the ORG ’s judgment in ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , CARDINAL DATE ) , where it did not find a violation of LAW , having found that irrespective of obstructions by the applicant ’s former husband , the applicant ’s own lack of understanding of the need for careful preparation as a precondition to effective enforcement of her custody rights played a significant role in the events . In the instant case , attempts had been made more than once to hand the children over to the applicant and meetings had been organised with psychologists , child care specialists and representatives of educational institutions as to enforcement of the court decisions to transfer the children . Moreover , the PERSON had already examined the Marijampolė service ’s work in DATE , and did not find that it did not take action to help the applicant to have contact with her children . The service also correctly placed the responsibility for the well - being of the children on both parents .

On DATE the principal of the ORG school in Marijampolė issued a note stating that during DATE the applicant had not visited the school . She did not come to school on DATE either .

On DATE the PERSON dismissed the applicant ’s repeated complaint accusing the Marijampolė service of failing in its duties to provide assistance and organise contact with the children . The PERSON established that even though the contact order between the mother and the girls had been set in place DATE CARDINAL DATE by ORG , she had not yet tried to make use of it . Furthermore , the Marijampolė service had asked the applicant ’s lawyers to meet at its LOC , offered to inform PERSON of that meeting and asked the applicant ’s lawyers for that purpose to choose a suitable date , but the applicant had not responded . For its part , the PERSON service had also invited the applicant for a conversation so that she could express her wishes and preferences as to her contact with the girls , and so that the service could assist her . It was only when the applicant had not shown up that the PERSON child care specialists had suggested to her lawyers that she communicate with the girls by letters via the PERSON child care specialists . It had also been indicated to the applicant that she had the opportunity to directly communicate with her daughters in the presence of a psychologist , and that could be discussed with the Marijampolė service . The ORG school in Marijampolė had also informed the PERSON that the applicant had started communicating with the girls by letters since DATE ; DATE and DATE CARDINAL letters from her had been received , though the girls had refused to accept the last one . The school had thus suggested that the applicant choose another means of communicating with her daughters and asked the child care specialists to provide facilities for that purpose . Given the child care authorities and the school ’s suggestions for the applicant to communicate with her daughters directly ( tiesiogiai ) , which the applicant had disregarded , it was not clear to the PERSON why the applicant preferred to communicate with her daughters by letters . On this point the PERSON pointed out that under LAW parents who lived separately had the right and an obligation to communicate with their children and be involved in their upbringing ; children , for their part , had a right to regular and direct contact with both parents , irrespective of their place of residence .

On DATE the applicant lodged an appeal on points of law . Without arguing that the appellate court ’s decisions not to summon witnesses for examination and not to hold a hearing had affected the outcome of the litigation , she primarily challenged the lower courts’ assessment of the evidence , insisting that they had erred in concluding that living with their father was in the best interests of the children . She also asserted that ORG ’s previous convictions in GPE for crimes of sexual violence and drug - related offences were significantly weightier in terms of his moral values than her conviction in GPE for forgery of documents . The applicant was further dissatisfied with the appellate court ’s refusal to admit in evidence documents related to her correspondence with her daughters , which she obtained after she had already lodged her appeal .

In his written reply , PERSON argued that the lower courts had properly examined the entirety of the evidence . He submitted that the applicant had always known about his earlier convictions in GPE ; however , they had expired a long time ago . It was unfair for her to bring up that issue now . PERSON also observed that the proceedings had been pending for DATE . During that period the applicant had specified her claims and submitted requests to the court on CARDINAL occasion . ORG acceptance to re - examine the evidence and question witnesses would have only delayed the proceedings . Given that the applicant had not asked for an oral hearing , the appellate court ’s decision to pursue proceedings in writing had been reasonable .

In a final ruling of DATE , adopted in written proceedings , ORG observed that the child ’s interests were the primary consideration when examining custody cases . The cassation court also relied on the ORG ’s judgment in ORG and GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ECHR DATE ) , which said that an in - depth examination of the entire family situation was necessary to achieve the best result for the child . For ORG , such a result had been achieved in the present case . The lower courts had analysed the level of attachment to each parent and established that the girls , who lived with the father , were fond of him . Those courts had also noted ORG reports that the girls could entirely independently form their own opinion about which parent to live with , and had held that the children ’s opinion was CARDINAL of the criteria when evaluating the entirety of evidence , and the girls had expressed such a wish during the court hearing . Even though the fact that the girls lived with their father could influence their formation of a negative opinion about their mother , it had not been established that the mother was barred from communicating with them ; to be interested in their lives and visit them at school could thus form a positive opinion about her and make their emotional bond stronger . The first - instance court had also issued a contact order and thus the applicant ’s contact rights with her daughters had not been restricted . Even though the applicant had stated that she lived in GPE , the evidence showed that she had declared place of residence as GPE , where she had taken part in court proceedings so that the name of her third child could be registered . As to ORG ’s convictions in GPE , those offences had been committed in DATE and DATE and his convictions had expired a long time ago . There was no proof that he could have a negative impact on the girls . On the contrary , the girls studied well at school and took part in extracurricular activities . It followed that the courts had been correct in not giving particular weight to those convictions . Overall , it was thus in the best interests of the girls to stay with their father .

Lastly , whilst noting that when refusing to admit in evidence new documents submitted by the applicant the appellate court had not explained whether they were relevant to the merits of the case , ORG held that this did not affect the overall lawfulness of the appellate court ’s ruling .

After FAC decision of DATE stating that the girls should reside with the applicant became final , and following the applicant ’s request of CARDINAL DATE transmitting her the writ of execution , the bailiff took measures to enforce it ( also see paragraph CARDINAL in fine ) . Meetings were organised with the child care specialists , representatives of the ORG school and psychologists . Both parents were involved in that process .

The first attempt to hand the girls over at their school in DATE failed because on DATE the girls fell ill and did not go to school . The court then established that their absence was proved by medical certificates , and the court order for transfer did not specify where it would take place . Accordingly , the father could not be blamed for an unsuccessful transfer .

The next attempt to transfer the girls was made in DATE , when it was decided that the girls would be handed over at their home . This attempt did not produce results because on that date the applicant was arrested on charges of forgery of documents .

The third attempt to hand over the girls was at their father ’s home in DATE . It failed because , even though the bailiff , child care specialists , police and both parents were present , neither girl wished to leave with their mother . During the transfer the applicant asked to be left alone in the room with the girls , and her wish was granted . However , even after that the girls expressed a clear wish not to leave with her . In the report about that attempted transfer the bailiff underlined that the transfer of a child could not be equated to the transfer of an object . Taking into account the clearly expressed wishes of the children , and to avoid psychological trauma and to protect the children ’s interests , physical force could not be used in that situation . The child care authorities supported this argument . The bailiff ’s recommendation , based on LAW , was that the manner of enforcing the court order for transfer should be changed to preserve the children ’s interests . The bailiff ’s letter specified that her findings could be appealed against to FAC . The bailiff then also asked FAC to examine how the court order for the ORG transfer should be enforced without compromising their interests .

Eventually , by a decision of DATE the bailiff discontinued the enforcement proceedings , because it had been decided that the girls should reside with their father ( see paragraphs CARDINAL and CARDINAL above ) .

By a decision of CARDINAL DATE in separate criminal proceedings , a court found ORG guilty of failing to comply with the court order of DATE . He was fined approximately ORG CARDINAL ( CARDINAL NORP litai ) . The court however dismissed a civil claim by the applicant for non - pecuniary damage , noting that the girls themselves had refused to go and reside with their mother . The court also noted that no evidence had been provided to prove the applicant ’s contention that the children ’s refusal to be handed over to their mother had been a direct consequence of ORG ’s actions .

Alleging that the ORG father had had a negative influence on their daughters , and relying on the ORG reports about parental alienation syndrome ( see paragraph CARDINAL above ) , on DATE the applicant asked the prosecutor to start criminal proceedings in respect of PERSON for abusing his rights and duties as a parent ( LAW , see paragraph CARDINAL below ) .

By a decision of DATE , the prosecutor refused to initiate a pre - trial investigation . He noted that earlier that LOC child care specialists had visited PERSON ’s home and the girls had eagerly communicated with them , without their father present . The girls felt comfortable and at ease ; they had no demands . They had also explained that the applicant did not visit them or call . The prosecutor established that ORG had not committed any unlawful acts in respect of his daughters . By a decision of CARDINAL October CARDINAL , ORG upheld the prosecutor ’s decision .


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The first applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The second and third applicants , PERSON PERSON and Mr PERSON , are stateless NORP who were born in DATE and DATE and live in GPE . All CARDINAL applicants are represented by PERSON , a lawyer attached to ORG , a non - governmental organisation based in GPE .

NORP In DATE CARDINAL NORP refugees gathered in ORG bus terminal in GPE with a view to taking buses to PERSON . Their aim was to protest about migrant deaths in LOC and reach LOC by land . As they were refused permission to board buses , they started marching down the motorway between GPE and PERSON . On DATE the applicants , who were among them , were arrested along with CARDINAL other individuals by QUANTITY police officers on suspicion of breaching the Meetings and Demonstration Marches Act ( Law no . CARDINAL ) . They were taken to the LOC district police headquarters where , on DATE , they were questioned by the police in the presence of a lawyer with regard to the offence attributable to them .

On DATE the applicants were transferred to the NORP Foreigners’ Removal Centre . On DATE their representative , PERSON , visited them and attempted to obtain information about the reasons for their detention . She was told that they would be transferred to one of the refugee camps set up for NORP refugees in southern GPE .

On DATE CARDINAL other lawyers working for Refugee Rights GPE visited the centre and were told by the officials that no decision had been taken in respect of the applicants .

On DATE a fourth lawyer attempted to meet with the applicants but was denied access to them .

On DATE PERSON was informed by an official at the centre that on the strict verbal instructions of the GPE governor ’s office , the applicants were not allowed to meet with a lawyer . During her visit she saw that deportation and detention orders had been issued in respect of the applicants on DATE . Neither they nor she were served with the orders . However , she took a photograph of the deportation and detention order issued in respect of the first applicant , which was later submitted to the ORG .

On DATE the applicants were sent to the FAC Foreigners’ Removal Centre . On DATE a lawyer practising in GPE and the head of the GPE branch of ORG , a non - governmental organisation , attempted to meet with the applicants . They were also denied access to them .

On DATE the applicants telephoned PERSON and informed her that they had been transferred to ORG . They said that they feared being deported to GPE .

On DATE the applicants telephoned their representative again and informed her that the deportation and detention orders dated DATE had been renewed .

DATE and DATE the applicants were detained incommunicado without access to legal assistance .

On DATE another lawyer attached to Refugee Rights Turkey , PERSON , went to GPE to meet the applicants and to obtain notarised powers of attorney to take legal steps at the domestic level and authority forms to apply to the ORG . She was told by staff of the centre that the applicants were being detained pending their removal to GPE . The applicants signed the authority forms provided by the lawyer . However , an official who had monitored their meeting tore them up , stating that the lawyer did not have the right to make the applicants sign any documents since she did not have a notarised power of attorney . The officials also refused to give her the applicants’ identity documents for the purposes of obtaining notarised powers of attorney . PERSON then left the centre , but returned DATE with a notary and an NORP translator associated with a notary ’s office to have certified translations of the applicants’ identity documents and obtain notarised powers of attorney . She was once again told by the staff of the centre that she would not be given the applicants’ identity documents . She had to leave the centre at the end of the working day . The applicant submitted a document to the ORG drafted at CARDINAL p.m. on DATE and signed by PERSON and the translator . According to this document , PERSON and the translator could not meet the applicants and obtain their identity documents from the authorities for the purposes of obtaining notarised powers of attorney .

On DATE , the date the application was lodged , the applicants’ representative requested that the ORG adopt an interim measure , under LAW , to stay the applicants’ deportation to GPE .

On DATE the Acting President of the Section to which the case had been allocated decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the ORG , under LAW , that the applicants should not be deported before DATE . The Government were further requested to inform the ORG as to whether the applicants were being detained pending their expulsion to GPE , whether there were deportation orders issued in respect of each of them and whether they were prevented from having access to legal assistance and appointing a legal representative as alleged .

On DATE the Government made submissions to the ORG and sent a number of documents related to the application . They stated that the applicants had been arrested on DATE on suspicion of breaching LAW ( Law no . CARDINAL ) during a march from GPE to GPE by NORP refugees . They submitted that the applicants had directed the refugees and encouraged them to topple the police barricades set up by the riot police . The first applicant had also attacked police officers while chanting slogans . After the applicants had been arrested , the police could communicate with the refugees , who had cooperated with the security forces . The Government noted that the applicants were questioned at the LOC district police headquarters in the presence of a lawyer . The applicants had then been placed in administrative detention pending their deportation since the administrative authorities had considered that they posed a threat to public order and safety and would abscond or disappear if released . The ORG submitted copies of the orders for the applicants’ deportation and detention dated DATE issued pursuant to sections CARDINAL ( DATE ) [ sic ] and CARDINAL(CARDINAL ) of the Foreigners and LAW ( Law no . DATE ) . The Government noted in this connection that the detention orders had been renewed DATE pursuant to section CARDINAL(CARDINAL ) of the same Act .

The Government contended that PERSON and PERSON were staying in GPE under “ temporary protection ” , the protection granted to NORP nationals and those arriving from GPE . PERSON Fares was in an irregular situation since he had not applied to the national authorities when he had arrived in GPE . The Government also submitted that the procedure for their deportation had been initiated given that section CARDINAL of Law no . DATE , sections CARDINAL(CARDINAL)(e ) and CARDINAL(CARDINAL ) of the Regulation on Temporary Protection ( Council of Ministers Decision No . CARDINAL ) and LAW DATE LAW allowed the ORG authorities to deport persons who were under “ temporary protection ” and who posed a threat to national security , public order or public safety .

The Government further submitted that the applicants had been allowed to meet a lawyer on DATE . They submitted a document according to which the applicants and PERSON declared that they had met TIME and TIME on that date . The document was signed by the applicants , PERSON and QUANTITY police officers . The Government further contended that the administrative authorities had attempted to notify the applicants of the detention orders . In this connection , they submitted a document , issued at TIME on DATE , according to which the applicants had been informed that the deportation orders issued in their respect had been suspended until DATE on account of the ORG ’s decision to stay their deportation to GPE but they would continue to be detained . The applicants had refused to sign that document . The Government also submitted CARDINAL other documents , issued at TIME on DATE , according to which the applicants had been notified that they were being detained on the basis of a decision by the governor ’s office to renew the detention order issued on DATE . The applicants had refused to sign them .

The Government further claimed that before applying to the ORG the applicants should have applied to the administrative courts with a view to challenging the deportation orders issued in their respect . They further submitted that the applicants should have brought their LAW grievances before ORG . Lastly , they noted that on DATE ORG had ordered that the applicants be released from detention and be notified that they were requested to leave NORP territory .

On DATE the duty Judge decided to prolong the interim measure indicated under Rule CARDINAL of ORG until further notice .

On DATE the applicants’ representative informed the ORG that the applicants had been released on DATE and instructed to leave GPE as soon as possible . The applicants were also warned that they would risk being subject to administrative detention if they did not leave GPE or breached domestic law . The ORG representative lastly noted that she could obtain powers of attorney from the applicants only after their release from detention .

According to submissions made by the ORG representative on CARDINAL and DATE , on DATE the second and third applicants lodged cases with ORG challenging the order to leave NORP territory served on them on DATE . The first applicant left GPE on DATE and currently resides in GPE , where he applied for asylum , on the basis of a temporary residence permit . As a result , the applicants’ lawyer did not lodge a case with the administrative court on his behalf . At the time , the second and third applicants were still in GPE , despite the fact that they obtained visas from ORG of GPE on humanitarian grounds . The ORG lawyer submitted that they were waiting for the NORP authorities to issue the documents required for their departure from GPE and that the proceedings before ORG were pending .

On DATE the ORG representative informed the ORG that on DATE the second and the third applicants had left GPE and applied for asylum in GPE , where they currently live .

The relevant domestic law regarding the individual application to ORG can be found in ORG v. GPE ( ( dec . ) , no . CARDINAL , § § DATE , DATE ) .

On DATE the Foreigners and International Protection Act ( Law no . DATE ) entered into force . Sections CARDINAL of the Act concern the procedure for the removal of foreign nationals from GPE , the judicial review of removal orders and detention pending removal . The provisions relevant to the present case are as follows :

“ ( CARDINAL ) Foreigners may be deported to their country of origin or a transit country or a third country by a deportation decision .

“ ( CARDINAL ) ORG deportation decision shall be issued on the instructions of ORG or ex officio by governors’ offices .

( CARDINAL ) The decision and the reasons for it shall be notified to the foreigner or his or her legal representative or lawyer . If the person in respect of whom a deportation order has been issued is not represented by a lawyer , he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal .

( CARDINAL ) A foreigner or his or her legal representative or lawyer may appeal to the administrative court against the deportation decision within DATE of the date of notification . The person appealing against the decision shall also inform the authority that has issued [ it ] about the appeal lodged with the court . Applications to court shall be decided within DATE . The court ’s decision on the issue shall be final . Without prejudice to his or her consent , the foreigner shall not be deported within the time - limit for bringing a case against the deportation decision or in case of an appeal , until finalisation of the judgment .

( CARDINAL ) ORG deportation decision may be issued in respect of foreigners :

( d ) who constitute a threat to public order and security or public health ,

( CARDINAL ) Where foreigners who fall into CARDINAL of the categories listed in section CARDINAL of the present Act are apprehended by law - enforcement units , the governors’ offices shall be notified immediately for a decision to be taken in their respect . Deportation decisions shall be issued by the governors’ offices in respect of foreigners for whom such a decision is deemed necessary . The assessment and decision - making period shall not exceed TIME .

( CARDINAL ) A foreigner in respect of whom a deportation decision has been issued shall be placed in administrative detention by a decision of the governor ’s office if [ he or she ] poses a risk of absconding or disappearing , has violated the rules for entry into and exit from GPE , has used false or fabricated documents , has not left GPE within the period granted without an acceptable excuse , or constitutes a threat to public order and security or public health . Those in respect of whom an administrative detention order has been issued shall be transferred to a removal centre within TIME by the same law - enforcement unit that apprehended them .

( CARDINAL ) The period of administrative detention in removal centres shall not exceed DATE . However , if the deportation process can not be completed owing to the failure of the foreigner to co - operate or provide correct information or documents regarding his or her country [ of origin ] , this period may be extended for a maximum of DATE .

( CARDINAL ) The need to continue administrative detention shall be reviewed DATE by the governor ’s office . Where necessary , reviews may be conducted DATE . If a foreigner ’s administrative detention is no longer deemed necessary , it shall be terminated immediately . Foreigners who have been released may be required to comply with such obligations as residing at a designated address and reporting to authorities in the manner and period requested .

( CARDINAL ) The administrative detention decision , the extension of the period of administrative detention and the results of the DATE reviews with the reasons on which they are based shall be notified to the foreigner or his or her legal representative or lawyer . If the person in respect of whom a deportation order has been issued is not represented by a lawyer , he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal .

( CARDINAL ) A person who has been placed in administrative detention or his or her legal representative or lawyer may appeal against the administrative detention decision to ORG . The appeal shall not stay the execution of the administrative detention . In the event that the [ appeal ] is submitted to the administration , it shall be sent to the competent ORG without delay . ORG shall conclude the review within DATE . [ Its ] decision shall be final . A person who has been placed in administrative detention or his or her legal representative or lawyer may lodge a further appeal with ORG should the conditions for administrative detention have ceased to exist or changed .

( CARDINAL ) A foreigner who appeals against a detention order and does not have the means to pay for a lawyer shall be provided with legal aid on request , in accordance with the relevant provisions of LAW ( Law no . CARDINAL ) of CARDINAL DATE .

( CARDINAL ) In removal centres :

( b ) foreigners shall be allowed access to and given the opportunity to meet with their relatives , notary public , legal representative and lawyer , as well as access to telephone services ;

On DATE ORG rendered a decision on an individual application brought before it by a NORP national who complained of his threatened deportation to GPE , the poor conditions of his detention at the NORP Foreigners’ Removal Centre , the absence of an effective remedy whereby he could raise his allegations concerning the conditions of his detention , the unlawfulness of his detention , the failure to provide him with information on the reasons for his detention , and the absence of an effective remedy to challenge the lawfulness of his detention ( application by PERSON , no . DATE ) .

Mr K.A. had been placed in administrative detention at the ORG Foreigners’ Removal Centre on DATE . A detention order was issued on DATE for DATE pending his deportation . The cases that he brought before ORG and ORG with a view to challenging the detention and deportation orders and to complaining about the conditions of his detention were dismissed by those courts . On DATE , when he applied to ORG , he requested that the implementation of the deportation order be suspended . On DATE ORG allowed PERSON request and suspended the implementation of the deportation order . Subsequent to ORG decision , ORG ordered the applicant ’s release , noting that he could not be deported in the light of the interim measure issued by ORG . Mr K.A. was released on DATE .

In its decision , ORG first declared the applicant ’s complaint that he was at risk of death or ill - treatment in the event of his removal to GPE inadmissible . It held that as a NORP national , the applicant did not face a risk of expulsion since he was under “ temporary protection ” pursuant to the ORG of DATE and , as a result , could not be deported .

The Constitutional Court further examined the applicant ’s complaint regarding the conditions of his detention and the alleged absence of an effective remedy whereby he could raise his allegations concerning the conditions of detention . Referring to the ORG ’s case - law , in particular , the judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) , it held that the conditions at the NORP centre had constituted treatment incompatible with human dignity and that the applicant had not had an effective remedy at his disposal to raise his grievance concerning those conditions .

The court further found that LAW , DATE and CARDINAL of the LAW had been breached . It held that the applicant ’s detention had been unlawful , that he had not been informed of the reasons for his detention and that he had not had an effective remedy whereby he could challenge the unlawfulness of his detention .

As regards the complaint concerning the unlawfulness of Mr K.A. ’s detention , ORG first noted that he had been placed in administrative detention on DATE , whereas the detention order had not been issued until DATE . The court therefore found that his detention CARDINAL had lacked a legal basis . The court further noted that by not reviewing the detention order on a DATE basis , the governor ’s office had failed to comply with section CARDINAL of Law no . DATE . It lastly observed that Mr K.A. had been detained for DATE and DATE , despite the fact that the detention order had been valid for DATE . The court thus concluded that the authorities had failed to act with diligence and that the applicant ’s detention had not been lawful .

As to Mr K.A. ’s complaint that he had not been informed of the reasons for his detention , ORG observed that he had not been served with a deportation order at the beginning of his administrative detention . Nor had he been informed of the reasons for his continued detention . The court therefore found that the administrative authorities had failed to comply with section CARDINAL of Law no . DATE .

As to Mr K.A. ’s allegation that he had not had access to an effective remedy to challenge his detention , ORG held that the magistrate ’s court had failed to carry out an adequate examination of his application , even though PERSON no . DATE provided for the protection of detainees against arbitrariness . Referring to this ORG ’s judgment in the case of PERSON and GPE v. GPE ( no . PERSON , CARDINAL DATE ) , the court also held that in the absence of information on the reasons for his detention , PERSON right to appeal against his detention had in any case been deprived of all effective substance . As a result , the court found that PERSON had not had an effective remedy whereby he could obtain judicial review of the lawfulness of his detention .

Lastly , ORG awarded Mr K.A. MONEY ( TRY ) ( MONEY ( ORG ) ) for the non - pecuniary damage he had suffered as a result of the violations of his aforementioned rights .

On DATE ORG released a call for urgent action against the applicants’ possible deportation from GPE to GPE :

“ CARDINAL NORP refugees coming from GPE , PERSON and PERSON , and NORP refugee PERSON , have been detained in GPE since DATE and are facing deportation . If deported they are at risk of serious human rights violations .

NORP refugees coming from GPE PERSON and PERSON and NORP refugee PERSON were detained during a demonstration by NORP refugees at the main bus station in GPE . The demonstrators were demanding to be allowed to go to the NORP border city of GPE , in order to attempt to cross to GPE . PERSON and PERSON ( who are not related ) are NORP refugees formerly resident in GPE but who fled to GPE DATE following the DATE war in GPE . They are both registered with ORG .

The CARDINAL refugees were detained on DATE together with CARDINAL activists from GPE and GPE , who have since been deported back to their countries for violating ORG . The deportation and administrative detention order of the CARDINAL refugees was issued on DATE citing Art . CARDINAL of the Law on Foreigners and ORG . The order does not state which country they would be deported to , but does authorize for them to be held in administrative detention for DATE . PERSON and PERSON and PERSON were taken to ORG , in GPE .

PERSON and PERSON only had access to a lawyer on DATE of their detention . On DATE a lawyer from ORG visited the LOC but was refused access to the CARDINAL refugees . On DATE the lawyer received a phone call from the CARDINAL refugees informing her that they were being flown to GPE province in eastern GPE . They are currently detained in LOC in GPE and since their arrival they have not been able to exercise their right to legal representation .

Due to the ongoing conflicts in both GPE and GPE , and in line with the principle of non - refoulement ( a principle of the international refugee protection system which prohibits the transfer of anyone to a place where they would be at real risk of serious human rights violations ) , no one should be forcibly returned to either country , since they would be at real risk of serious human rights violations or abuses . ”

On DATE ORG issued a second urgent action regarding the applicants’ alleged inability to have access to the outside world :

“ NORP refugees PERSON and PERSON and NORP refugee PERSON have been detained since DATE and were again prevented from seeing a lawyer on DATE . On DATE , the authorities prevented PERSON mother from seeing him and denied that he was even being held in the deportation centre in GPE .

On DATE the Head of the GPE branch of ORG ( İHD ) and a lawyer went to ORG in GPE , eastern GPE , to see PERSON , PERSON and PERSON who are facing deportation . Officials at the centre acknowledged that the men were there , but did not allow the lawyer to meet them on grounds that such a meeting required the permission of ORG . On DATE officials at the centre denied PERSON mother access to her son and would not acknowledge that he was being held there . The conditions the men are being held in amount to incommunicado detention , in violation of NORP law and international human rights law .

This is the second time the CARDINAL refugees’ rights to consult a lawyer have been denied since their detention on DATE . On DATE a lawyer from ORG attempted to visit them while they were being held at the Kumkapı Deportation Centre in GPE , but she was denied access to them . TIME the lawyer received a call from the CARDINAL refugees , informing her that they were being taken to FAC .

Refugees’ and asylum - seekers’ right to consult a lawyer and meet their relatives is enshrined in the PERSON on Foreigners and International Protection . Article CARDINAL/CARDINAL-b states that : ‘ the foreigner shall be allowed access to and given the opportunity to meet with their relatives , notary public , his / her legal representative and the lawyer , as well as access to telephone services’ . Furthermore , Article CARDINAL states : ‘ The person subject to administrative detention shall be granted access to legal representative , lawyer , notary public and ORG High Commissioner for Refugees officials.’ ”


CASE OF CEAICOVSCHI v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

The applicant was born in DATE and lives in GPE .

The applicant is the chief executive officer of a large NORP company specialised in the importation of medical equipement .

On DATE he was arrested by ORG ( NAC ) in connection with a crimial investigation opened in DATE . He was charged with bribery in the context of public auctions . Searches were conducted at the applicant ’s home and at the headquarters of his company and numerous documents , computers and mobile phones were seized by the investigators .

CARDINAL persons were accused in the same criminal case . Among them were the former Minister of Health and hospital directors . Many of them were apprehended and later released by the ORG or by the courts . As of DATE , the applicant was the only accused who was kept in custody .

After arrest the applicant was placed in the ORG detention facility . DATE and DATE the applicant was detained in custody . DATE and DATE he was detained under house arrest .

The need for the applicant ’s detention was justified by the prosecutors in the following way : that the applicant could abscond ; he could influence witnesses ; he could collude with other co - accused persons ; and because the offence imputed to him was sanctioned with imprisonment of DATE . All of the ORG applications for the prolongation of the applicant ’s detention were identical .

NORP The applicant argued every time that he was ready to give up his passport and that there were no reasons to believe that he would attempt influencing witnesses or hindering the investigation . The reasons relied upon by the prosecutors in favour of detention were stereotyped and there was no evidence that he intended to abscond or do other things imputed to him . He also argued that he had a family , children , a permanent employment and a permanent abode .

On DATE ORG issued a detention order for a period of DATE arguing that the applicant did not produce guarantees in favour of an undertaking not to hinder the good unfolding of the investigation if no detention was applied . That decision was later upheld by ORG , which added that there was also a risk of the applicant ’s reoffending .

On DATE the ORG prolonged the applicant ’s detention by DATE relying on the same grounds as before . The applicant ’s appeal was rejected by ORG on DATE . ORG used the same arguments as the first time and added that CARDINAL of the reaosons to hold the applicant in custody was to protect other persons involved in the proceedings from his violent actions .

By decisions dated CARDINAL and DATE , DATE and DATE ORG prolonged the applicant ’s detention for DATE each time . The court relied on similar reasons as before . ORG dismissed the applicant ’s appeals arguing that the applicant ’s defence did not prove the fact that the applicant did not intend to abscond or hinder the investigation . In a decision of DATE ORG held for the first time that there was a risk of the applicant ’s absconding .

On DATE the ORG prolonged again the applicant ’s detention by DATE , respectively . It argued that the risk of absconding was justified by the gravity of the offence and that the prosecutor had presented evidence in support of the claim that the applicant may hinder the investigation . The court did not state what that evidence was . On DATE the ORG prolonged again the applicant ’s detention by DATE .

On DATE ORG examined the appeals lodged by the applicant against the decisions of DATE and DATE . In its first judgment it dismissed the applicant ’s appeal after finding that all the risks enumerated by the first - instance court persisted . However , when examining the appeal against the second decision , the same panel of judges considered that the risk of the applicant ’s absconding was no longer justified and that there were no new reasons to consider necessary the applicant ’s continued detention . Therefore , ORG ordered the applicant ’s house arrest .

On DATE the applicant lodged a habeas corpus request and asked for the revocation of the house arrest . On DATE ORG accepted the applicant ’s request and ordered his release from house arrest .

On DATE , on DATE of his detention , the applicant felt an accute pain in the region of his lower back . At TIME an ambulance was called for the applicant . The doctors diagnosed the applicant with “ lumbar radicular syndorme with pronounced algic syndrome ” and prescribed him hospitalisation . However , the prison administration refused to follow the ORG prescription .

TIME , on DATE between TIME the applicant started experiencing again pain and asked for an ambulance to be called . An ambulance was called only at TIME The doctors repeated the same diagnosis and prescribed again hospitalisation . However , the prison administration refused to follow the LOC prescription .

At TIME an ambulance was called again for the applicant . This time the doctors diagnosed the applicant with “ artherial hypertension of third degree ” , “ discopathie with agravated algic syndrome ” and “ lumbar radiculopathy ” ( sensory and/or motor deficit ) . Hospitalisation was again prescribed , but the prison administration refused to follow the LOC prescription .

At TIME an ambulance was called again for the applicant . The doctors diagnosed again “ lumbar radiculopathy ” and discopathie with a possible lesion of the nerve . The doctors reiterated the urgent need for hospitalisation , but the administration refused again .

At TIME the administration invited several doctors from ORG and ORG who confirmed the initial diagnosis and the urgent need for hospitalisation . Only after that , the prison administration allowed the applicant ’s transfer to a hospital .

On DATE the applicant was operated on his spine at ORG and ORG . He remained in hospital until DATE , when he was moved to a prison hospital .

On DATE the applicant was examined by a commission of CARDINAL doctors who diagnosed him with cholecystitis and fequent biliary colic . They recommended him surgical removal of his gall bladder within maximum DATE .

After that date the applicant and his lawyers submitted numerous requests and complaints to different authorities seeking the approval of his surgery . It was only on DATE , after the applicant ’s condition drastically deteriorated , that his transportation to a normal hospital was approved . He had high fever and presented a swelling . After DATE of preparations , he was subjected to surgery on DATE and remained in intensive care for DATE .


Branko Lubarda;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 GPE . In addition to the present case , he was the applicant in CARDINAL and represented applicants in CARDINAL other cases before the ORG .

NORP In the present case , he was represented before the Court by Ms M. Lukačovičová , a lawyer practising in GPE .

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 practicing lawyer . He provided legal services in association with a partner , ORG , with whom he shared premises .

On DATE he filed a criminal complaint stating that , the previous night , A. had unlawfully removed various items of office equipment from their law firm and that the criminal offence of theft might have been committed in that connection . He specified the value of the damage thus suffered and submitted a claim against A. for compensation .

Subsequently an investigation was opened into a suspicion of theft having been committed by CARDINAL or more persons unknown . The investigation was terminated because there was no case to answer , but that decision was quashed following the applicant ’s complaint . The ensuing new investigation into a suspicion of embezzlement was terminated twice , the former termination being quashed following the applicant ’s appeal . The applicant ’s appeal against the latter termination was rejected on DATE for being belated .

On DATE ORG rejected a complaint in which the applicant had challenged the length of the criminal proceedings , in so far as they concerned his claim for damages .

From the observations of the Government on the admissibly and merits of the application , it transpired that , in parallel to claiming damages in the context of the above criminal proceedings , on DATE the applicant had filed an action for damages against A. before the civil courts .

On DATE the Bratislava I ORG partly granted and partly dismissed the action . The judgment was however quashed by ORG on DATE following appeals by both parties . The matter was thus remitted to the first - instance for re - examination and it has been pending there since .

In all the above proceedings , the applicant was or has been represented by a practicing lawyer or a law firm .


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants , Mr PERSON , Mr PERSON , PERSON Margareta PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE and DATE , respectively . They all live in LOC and were represented by ORG , a lawyer practising in PERSON .

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

The mine ( PERSON ) was discovered in the county of GPE in DATE by company ORG . In DATE , mining concessions ( utmål ) were granted for iron and lead ore deposits in the mine as well as in a second mine ( PERSON no . CARDINAL ) to company ORG . In DATE , the concession area was expanded and , in DATE , mining concessions were granted to company ORG for iron ore deposits at CARDINAL more mines ( PERSON and PERSON ) . In DATE , the area was expanded further . In connection with each procedure , certain parts of the properties concerned were bought by company ORG and compensation was paid to the property owners . Certain compensation was also paid to landowners for damage to their forests and land . Extraction of minerals was in progress from DATE , and from DATE .

NORP In DATE company ORG acquired all of the above mining concessions from company ORG , including the properties that company ORG had bought over DATE , and undertook mineral extraction from DATE . No mineral extraction has taken place since DATE .

NORP In DATE company ORG applied to ORG of GPE ( GPE ) for an exploitation concession ( bearbetnings - koncession ) for minerals within the area . The application related to the conversion of the old permits , granted in DATE , into CARDINAL new exploitation concession in accordance with transitional provisions to the new Minerals Act ( ORG , CARDINAL ) . In its application , company ORG noted , inter alia , that the remaining minerals in the area had been examined mainly to determine whether it would be possible to exploit the minerals with profit since the ore in question had proved difficult to refine with conventional techniques . The calculations had shown good potential and studies were continuing to investigate whether saleable concentrates could be obtained and whether the circulation of processed products could work on a continuous scale .

As the applicants’ land was within the defined area , they were informed about the application and given the opportunity to comment . In their submission , they stressed the impact on nature and , in particular , the negative effects that mining could have on nearby water sources which , they considered , should be examined further .

On DATE ORG granted company ORG an exploitation concession , valid for DATE . The concession conferred upon the company the right to extract and exploit copper , gold , silver , zinc and lead according to the rules of LAW within the defined area . Moreover , it was linked to a number of conditions , inter alia , relating to securing the area during exploitation and restoring the area and its nature afterwards . In reaching the decision , ORG observed that ORG ( PERSON ) of GPE did not object to the concession being granted and that extensive exploration and development work was already on - going in accordance with the old permits . It further found that no other obstacles existed to granting the concession .

In its decision , ORG further noted that any rights to landowner shares ( jordägarandelar ) or landowner rent ( jordägaravgälder ) , from which the property owners might have benefited according to the old legislation for the permits , would cease pursuant to the transitional rules of LAW . However , it also observed that the decision did not affect any agreements that might exist between the concession holder and the landowner .

The applicants appealed against the decision to the Government , reiterating their concerns about the negative effects that mining would have on the surrounding nature and water sources . They further strongly objected to the fact that they would not receive any compensation for the minerals that would be extracted from their land . They considered this to be in violation of LAW as well as of the Convention .

On DATE the Government rejected the appeal as it considered that no grounds had been presented to alter ORG decision . Among other authorities , ORG of GPE ( NORP Geologiska Undersökning ) submitted its comments on the appeal to the Government and noted , inter alia , that the decision to grant the exploitation concession had been essentially an administrative measure to convert the old permits to the single new concession but that it did not alter the use of the land within the defined area or any interests .

As the applicants were not satisfied with the ORG ’s decision , they applied to ORG förvaltningsdomstolen ) for judicial review according to LAW Lagen om rättsprövning av vissa förvaltningsbeslut , GPE ) . They relied on LAW No . CARDINAL to the Convention and claimed that they had been deprived of their property rights since company ORG would be able to extract minerals from their land without compensating them . This was also contrary to the custom which had existed in GPE since time immemorial . It had been abolished for political reasons through LAW of DATE ( Gruvlagen , PERSON ) but GPE was obliged to comply with the Convention .

On DATE ORG upheld the ORG ’s decision in full . It noted that NORP law allows for various measures to control the use of an individual ’s land . Thus , LAW , as in force at the time of ORG decision , allowed ORG to grant physical and legal persons the right to explore and extract certain minerals enumerated in the LAW even though they did not own the land where the minerals were located . The landowner had the right to receive compensation for any damage or encroachment suffered due to these activities but not for the value of minerals extracted by someone else . The court further observed that LAW was not absolute but allowed for certain restrictions . Hence a ORG could enact such legislation as it considered necessary to regulate the use of property in accordance with the public interest . In these circumstances , the ORG ’s decision had not been in violation of the ORG or otherwise flawed .

Following communication of the application , the Government submitted extracts from ORG and informed ORG following ownership constellations of the properties affected by the concession and relevant to the present case :

Half of the property PERSON CARDINAL:CARDINAL had been bought by the first applicant , PERSON , in DATE and DATE . Thus , since DATE the first applicant has been the sole owner of this property .

The property PERSON CARDINAL:CARDINAL had been inherited by the second applicant , PERSON , in DATE . Thus , since this time , he has been the sole owner of the property .

The property PERSON CARDINAL:CARDINAL had been inherited by the third applicant , PERSON , in DATE . However , in DATE , she had given it as a gift to PERSON who , since then , has been the sole owner of the property .

The property PERSON DATE had been inherited by the fourth applicant , PERSON , in DATE . However , on DATE he sold the property to PERSON who , since DATE , has been the sole owner of the property .

The first regulations in public law in GPE concerning mineral exploration and related matters date back to DATE . During DATE , various royal decrees and statutes were in force with the effect that mines belonged to the ORG . In DATE , a royal statute entered into force establishing the mining claim system which meant that a person who discovered a deposit could be given the exclusive right to extract the deposit if certain formalities had been observed . Landowners were given a landowner share ( jordägarandel ) , namely a PERCENT share in the mineral extraction . The thinking behind it appears to have been to stop the landowner from preventing prospecting or keeping mineral deposits secret . The meaning of a landowner share was a right to participate in the extraction of the minerals corresponding to one ’s share , that is , financial participation was necessary in order to collect income from the share . In DATE and DATE new mining statutes were issued through which the state regulated mining in more detail .

It was with the enactment of LAW of DATE ( Gruvlagen , CARDINAL , hereafter the “ DATE LAW ” ) that an essentially comprehensive regulation entered into force . Mining concessions granted under LAW or under earlier provisions applied indefinitely . The landowner share was removed and replaced by a corresponding share of the ORG . The landowner was instead awarded a landowner rent ( jordägaravgäld ) . The principle of this was that the landowner would receive DATE from the owner of the mine an amount equal to PERCENT of the value of the mineral extracted , but a maximum of SEK CARDINAL,CARDINAL ( later raised to SEK CARDINAL,CARDINAL ) . The landowner share was to be paid during DATE that the mining operations were in progress . Thus , according to the preparatory works to LAW of DATE ( Government PERSON , p. CARDINAL ) , the landowner rent was created as compensation to the property owner for the loss of the landowner share .

The DATE Mining Act ceased to apply on DATE when LAW of DATE ( Gruvlagen , PERSON , hereafter the “ DATE LAW ” ) entered into force . This LAW was also based on the mining claims system , but it had more concessional elements than previous acts . LAW abolished the landowner rent . However , in the transitional provisions to LAW , the landowner rent for mining concessions granted under LAW was retained . Still , under LAW , section CARDINAL , paragraph CARDINAL , of the transitional provisions to LAW , all mining concessions granted before the entry into force of that Act would cease to apply on DATE . The rules on landowner rent would also cease to apply on this date .

On DATE LAW ( ORG , CARDINAL:CARDINAL ) was promulgated and , on DATE , it entered into force , replacing LAW . LAW is still in force . It is essentially based on the concession system which means that the ORG , following a discretionary examination , grants individuals the right to prospect for and exploit mineral deposits . Through the LAW , the mining claims were replaced by exploration permits ( undersökningstillstånd ) , LAW , and mining concessions were replaced by exploitation concessions ( bearbetningskoncessioner ) , LAW . According to section CARDINAL of that chapter , exploitation concessions are granted for a period of DATE .

According to LAW , LAW , of LAW , the owner of a real property may exploit deposits of concession minerals for his own domestic use without a concession , provided that no other person holds a concession within the area .

Chapter CARDINAL of the Mineral Act contains rules for when compensation may be granted to affected parties . Thus , section CARDINAL provides that damage or encroachment resulting from exploration work shall be compensated by the holder of the exploration permit or concession . Section CARDINAL states that for damage resulting from the granting of an exploitation concession , compensation shall be paid by the concession holder . In the event of exceptional detriment to any property or part thereof by reason of an exploitation concession having been granted , the concession holder shall purchase the property or part of the property suffering such detriment if the owner so requests . Section QUANTITY provides the same obligations for the concession holder , and rights for the property owner , as section CARDINAL , in case of damage or encroachment resulting from land or other space being utilised for exploitation or activities connected thereto .

When LAW was enacted it contained no right for landowners to receive any compensation for minerals extracted on their properties . However , on DATE , a new provision , section CARDINAL , was introduced in LAW ( through Act CARDINAL ) . According to this provision , for DATE that exploitation is undertaken , the concession holder shall pay mineral compensation equal to twothousandths of the calculated value of the minerals covered by the concession that are extracted and brought to the surface within the concession area during DATE . DATE of the compensation shall be paid to the landowners within the concession area and CARDINAL to the ORG . If there is CARDINAL property within the area , the compensation payable to the landowners shall be determined according to each property ’s share of the area . This provision does not have retroactive effect and thus does not apply to exploitation concessions granted prior to DATE .

In the preparatory works to this amendment to LAW ) , the Government noted that the landowner rent had been abolished through LAW because the Government at the time had considered that there were no reasonable grounds for a landowner , without contributing personally , to receive compensation from the concession holder for minerals extracted ( ibid . , p. CARDINAL [ with reference to Government PERSON , p. CARDINAL ] ) . However , the Government observed that , during DATE , opposition against planned mining activities had become evident and it had led to the mineral legislation as a whole being considered unfair and outdated ( ibid . , p. CARDINAL ) . Thus , the Government considered that there was a strong general interest to create LAW which would provide a good framework for entrepreneurial initiatives and investments . It also had to be adapted to global changes and assure a balance between the interests of the landowners and the mining companies ( ibid . , p. CARDINAL ) . In this respect , the Government noted that the issue of ownership of discovered minerals was unclear in GPE . They observed that the boundaries of a property in depth and height were contentious and that there was neither any existing legislation nor any preparatory works or literature to clarify the matter . Since the question was complicated and concerned fundamental property legislation , the Government found that there were not enough reasons , in the instant case , to take a stance on the matter ( ibid . , pp . DATE ) . They then noted that NORP rights were in various ways limited and controlled by authorities and by others’ rights and that , for a long time , this had been the situation for landowners in relation to concession minerals . However , since landowners previously had received some sort of compensation , and a reintroduction of compensation could contribute to a wider acceptance of the mining industry in GPE , the Government found that when making an overall assessment , there were now predominant reasons to re - introduce a special system for compensation for minerals extracted ( ibid . , pp . DATE ) .