Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE . According to the latest information , the applicant was released from prison in DATE .

On CARDINAL DATE a businessman , ORG , was killed in the heart of GPE , near the building that houses ORG , when a bomb detonated under his car . The crime received much media coverage .

On DATE , after being accused of having been involved in ORG ’s killing , a certain PERSON stated in his testimony that he had received the order to murder ORG from a certain ORG , but he did not know whether it was ORG who had wished to murder ORG , or whether the contract had been put out by someone else .

On DATE PERSON changed his testimony , stating that the contract to murder ORG had been put out by ‘ Alius from PERSON .

On DATE G.B. showed the investigators the place where he claimed to have met ‘ Alius’ in DATE . This was near the applicant ’s home address in GPE .

From this point in time , the prosecutor began to suspect that the applicant , who had a previous conviction dating from DATE , had been involved in ORG ’s murder . The prosecutor gathered information about the applicant ’s property and obtained the applicant ’s telephone number , which in turn linked him to CARDINAL of the suspects in ORG ’s murder .

By a judgment of DATE , ORG convicted CARDINAL individuals who had acted together in an armed gang in GPE and its surroundings from DATE . The members of this criminal organisation were convicted of CARDINAL murders and CARDINAL attempted murders that involved the use of firearms and explosives , as well as a number of robberies and kidnappings of businesspeople .

By the same judgment , CARDINAL individuals belonging to that criminal association , GPE , GPE and GPE , were convicted of R.G.s murder . The court established that it had been a contract killing , ordered because an unidentified person was unwilling to repay a considerable sum of money to ORG The court also established that the unidentified person was known under the alias “ Alius ” . The fifth person involved in the murder , ORG , was in hiding . PERSON was sentenced to a total of DATE imprisonment for all the crimes concerned .

On DATE , on the basis of ORG testimony , the prosecutor concluded that it was likely that “ Alius ” was in fact the applicant . PERSON also testified on unknown date that he would recognise “ Alius ” if he saw him . DATE the prosecutor ordered the GPE organised crime police to establish the applicant ’s place of residence , to obtain his telephone records and to examine his links with ORG

On DATE photographs of CARDINAL individuals were shown to PERSON , who at that time was already serving a prison sentence . PERSON identified the applicant as ‘ Alius from PERSON – the person who had put out the murder contract .

On DATE the GPE organised crime police informed the prosecutor in writing that the applicant was not living in the apartment where he was registered in GPE . The police admitted that they could not locate the applicant but undertook to notify the prosecutor of the applicant ’s whereabouts as soon as they found him .

On DATE the prosecutor concluded that there was sufficient evidence to charge the applicant with having organised ORG ’s murder and issued a decision charging the applicant with that crime ( nutarimas patraukti kaltinamuoju ) . The decision gave an account of the facts as construed by the prosecutor and contained a detailed description of the crime , including the time - frame , the links between the applicant , those convicted ( PERSON , GPE and GPE ) and ORG , and the sums of money paid for its execution . The decision did not contain any references to evidence against the applicant .

On DATE , the prosecutor instituted a search for the applicant and ordered GPE organised crime police to conduct it . The prosecutor also addressed a request to ORG that the applicant be detained once arrested . Taking into account the fact that the crime could attract a life sentence , and given that at that specific time the applicant could not be located , the prosecutor took the view that it was likely that the applicant had fled from justice . The evidence against the applicant was “ his GPE testimony and his being recognised as the organiser of the crime [ by the accomplices ] ” . DATE , ORG authorised the applicant ’s pre - trial detention in absentia .

On DATE the prosecutor asked ORG organised crime police whether the applicant had been found . From the documents before the ORG it appears that the GPE organised crime police informed their colleagues in GPE on DATE that the applicant ’s place of residence was not known .

NORP Over DATE , on DATE , the prosecutor issued a NORP Arrest Warrant in respect of the applicant .

On CARDINAL DATE GPE organised crime police informed the prosecutor where the applicant could be found and the prosecutor ordered the applicant ’s arrest .

The applicant was arrested on DATE in GPE . The applicant ’s temporary arrest record ( įtariamojo laikino sulaikymo protokolas ) stated that the applicant had been arrested in the context of a criminal investigation on suspicion of having organised ORG ’s murder . The record referred to the court decision of DATE ordering the applicant ’s detention , to ORG , and to the applicant ’s prior conviction of DATE for a property - related crime . The record also stated that the applicant had been hiding from the prosecutor for a long time . The applicant signed the record of his arrest and the prosecutor ’s decision of CARDINAL DATE charging him with having organised ORG ’s murder ( see paragraph CARDINAL above ) .

DATE , that is to say on DATE , the prosecutor issued a notice of suspicion ( pranešimas apie įtarimą ) which repeated the prosecutor ’s account of the facts surrounding ORG ’s murder , as described in the decision of DATE charging him with the crime ( see paragraph CARDINAL above ) . No evidence was referred to in the notice of suspicion , which the applicant and his lawyer signed .

DATE the applicant was shown the prosecutor ’s decision charging him with ORG ’s murder of DATE ( see paragraph CARDINAL above ) . The applicant was questioned . Of the CARDINAL people convicted of ORG ’s murder , he admitted to knowing only ORG The applicant denied any involvement in the car bombing and stated that he would not testify without his lawyer . The applicant then signed a record of questioning of a suspect ( įtariamojo apklausos protokolas ) .

According to the record of case file material shown to the lawyer ( gynėjo supažindinimo su bylos medžiaga protokolas ) dated DATE , the prosecutor provided the applicant ’s lawyer , at his request , with the following documents from the case file :

CARDINAL ) NORP the applicant ’s temporary arrest record of CARDINAL DATE ( see paragraph CARDINAL above ) ;

CARDINAL ) NORP the decision to charge the applicant of DATE ( see paragraph CARDINAL above ) ;

CARDINAL ) NORP the notice of suspicion of CARDINAL DATE ( see paragraph CARDINAL above ) ; and

CARDINAL ) NORP the record of questioning of a suspect of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE , the prosecutor submitted to the Vilnius City Second District Court a written request for the applicant ’s detention pending trial ( pareiškimas skirti suėmimą ) . The request contained the prosecutor ’s account of the crime , as described in the decision charging the applicant and the notice of suspicion ( see paragraphs CARDINAL and CARDINAL above ) . It mentioned that the evidence linking the applicant to ORG ’s murder was witnesses’ and other ORG testimony , the records of the applicant ’s identification ( parodymų atpažinti protokolai ) , records of searches and other factual data . The document did not explain any particular piece of evidence against the applicant . As grounds for detention the prosecutor cited the fact that the applicant had been hiding from the prosecutor for DATE , the European Arrest Warrant , the applicant ’s prior conviction , the severity of the penalty that the crime of murder could attract ‒ which could in itself prompt the applicant to flee ‒ and the need to carry out more investigative steps . The request did not mention the risk that the applicant might try to influence witnesses as one of the grounds for his detention .

On DATE , the Vilnius City Second District Court held a hearing in the presence of the prosecutor , the applicant and the applicant ’s lawyer .

As the record of the hearing shows , at the start thereof the applicant ’s lawyer asked the court to view the evidential material from the pre - trial investigation , on the basis of which his client was being detained . The lawyer admitted that he had been able to acquaint himself with the prosecutor ’s request to the court for the applicant ’s detention ( see paragraph CARDINAL above ) , the record of the applicant ’s questioning and the notice of suspicion , but no other material had been made available to him , even though ORG guidelines require otherwise ( see paragraph CARDINAL below ) . The lawyer contended that the information shown to him was not sufficient to understand what basis there was , firstly , for suspecting the applicant of ORG ’s murder and , secondly , for detaining him . The lawyer insisted that he had a right to consult the material in the case file , which the prosecutor had provided to the court for the purposes of ascertaining whether it was reasonable to detain his client .

In reply , the prosecutor submitted that “ in this case the applicant ’s lawyer had been shown what was necessary ( šiuo atveju gynėjas supažindintas tiek , kiek reikia ) ” . Moreover , in accordance with LAW , pre - trial investigation material was not to be made public . In the instant case , the applicant was not permitted to see the entire case file because doing so could have prejudiced the success of the pre - trial investigation . The grounds for detaining the applicant were that a search for him had been conducted [ since DATE ] , and a NORP Arrest Warrant had been issued in respect of him . The record of the hearing also indicates that the prosecutor then submitted “ to the court the pre - trial investigation file concerning the applicant and the reasonableness of his detention . The court examined the material provided by the prosecutor and , having evaluated it , decided that the lawyer ’s request to see the said material was to be denied , since to disclose it could be detrimental to effective investigation ” .

When questioned at the court hearing , the applicant acknowledged that he knew ORG However , he denied knowing PERSON , GPE and GPE , the people already convicted of ORG ’s murder . The applicant also maintained that he had never had the nickname “ Alius ” . He admitted that his wife lived in GPE and that he was wealthy . The applicant and his lawyer contended that the applicant had never been summoned for questioning , nor had he been hiding from the investigators : after DATE he had renewed his identity documents , had crossed the State border , had taken part in car rally competitions , winning the President ’s cup in DATE , and had even been elected president of the NORP rally committee .

The Vilnius City Second District Court decided to grant the prosecutor ’s request for the applicant ’s detention . In the operative part of its ruling , having summarised the arguments put forward by the prosecutor and the defence , the court noted that the case file material showed that the applicant was suspected of a very serious crime for which life imprisonment could be imposed . The applicant ’s wife was living abroad and this could prompt the applicant to flee from justice . It was also pertinent that there were discrepancies in the [ witnesses’ ] testimony given to the investigators . There was thus reason to believe that “ the applicant might attempt to influence participants in the criminal proceedings ( those convicted , witnesses , others ) and to destroy evidence ” if left at liberty . A number of investigative steps still had to be carried out . Lastly , there was reason to believe that the applicant might commit new crimes .

On DATE PERSON attended an identity parade that included the suspect and , in a CARDINAL - man line - up , identified the applicant as ‘ ORG , naming him as the person who had ordered ORG ’s murder . In accordance with the requirements of LAW , the applicant ’s lawyer was present when PERSON identified his client .

G.B. was questioned by the prosecutor on DATE , and testified in writing that after he had identified the applicant , on DATE he had been approached by another prisoner . Due to the relations prevailing in the prison , PERSON preferred not to name that other prisoner . PERSON stated that the other prisoner had told him that he had received a request from “ the outside world ( iš laisvės ) ” and from “ the underworld of GPE ( ORG nusiklastamo pasaulio ) ” to ask PERSON , in return for CARDINAL NORP litai ( LTL ) , not to identify the applicant as the person who had put out the contract on ORG To that PERSON replied that it was too late , because he had already identified the applicant . The other prisoner stated that in that case he would have to further consult those who had made the proposition .

DATE , on CARDINAL or DATE , the same prisoner had made a new proposition : PERSON should write a statement to the effect that he had been mistaken when identifying the applicant on DATE . PERSON also was told that the applicant ’s lawyers were considering challenging the lawfulness of the identity parade procedure . The sum allegedly offered to the applicant for changing his prior testimony stayed the same . At that time PERSON also stated that he had not been the target of any threats for testifying against the applicant .

On DATE the applicant ’s lawyer submitted an appeal to ORG against the court order of CARDINAL DATE for the detention of his client . The lawyer complained that the judge had not allowed him to see the case file and maintained that the procedure had therefore not been adversarial . The lawyer acknowledged that the applicant had a prior conviction , but that had been DATE . The applicant ’s lawyer also asked the court to view G.B. ’s testimony in a critical light , given that the latter , as a convicted person , could have his own reasons for incriminating the applicant . Furthermore , the prosecutor had not provided any factual data endorsing his suspicion that the applicant might attempt to influence witnesses . As far as the lawyer understood it , all the witnesses with knowledge of ORG ’s murder had been isolated from society and there was no real possibility of influencing them . Furthermore , if anyone had wished to pervert the course of justice , he or she would have done it at some time during DATE that had elapsed since the crime . Now there would be no sense in doing that . In support of his claims that it was safe to leave the applicant at liberty , his lawyer provided the court with documents about his client ’s family and work situation .

On DATE ORG dismissed the applicant ’s appeal . The prosecutor and the applicant ’s lawyer were present at that hearing .

The court accepted that factual material incriminating the applicant existed in the form of ORG testimony , the record showing that PERSON had recognised the applicant , both from photographs and in person . The court also noted that , according to the information which had been provided to it , the search for the applicant had gone on for a long time , that he had connections abroad , and that LAW had been issued in his regard . The seriousness of the crime of which he was suspected was also a factor in the establishment of grounds for detaining him .

However , the appellate court noted “ the absence of any well - founded evidence ( pagrįstų įrodymų ) in the case file indicating that the applicant might attempt , either himself or through third parties , to influence witnesses , victims , people already convicted or other individuals , or that he would attempt to destroy evidence ” . Keeping him detained merely because the pre - trial investigators had not yet collected all the material necessary to build the case did not constitute valid grounds for such detention either . The existence of discrepancies in the testimonies ( byloje užfiksuotų parodymų nenuoseklumas ) could not be blamed on the applicant .

During a face - to - face confrontation ( akistata ) held on DATE , PERSON reaffirmed his testimony that it was the applicant who had put out the contract for ORG ’s murder .

The applicant ’s pre - trial detention was extended on CARDINAL DATE and again on DATE . His lawyers and the prosecutor were present at those hearings . The courts noted that the grounds for detention were the search for the applicant , LAW , his previous conviction and the fact that he had been charged with a serious crime for which a severe sentence could be imposed . In one of these QUANTITY rulings the court also noted that PERSON , who was CARDINAL of those already convicted for the DATE car bombing , had identified the applicant as the person who had put out the contract on ORG

On DATE the prosecutor questioned PERSON ’s wife . She testified that she had known that her husband was a witness in the criminal case concerning ORG ’s murder . She stated that her husband had told her that he had received threats directed at him and his family for having given evidence , and had warned his wife to be careful . She also stated that from DATE she and her daughter had received telephone calls from unknown men asking if they could meet and talk , which she had refused to do . She also testified that on DATE she had found a funeral wreath in front of the entrance door to the café she owned . She understood this gesture to be a veiled threat to PERSON ’s family should he not change his testimony .

On DATE ORG further extended the applicant ’s detention pending trial . Having reaffirmed the aforementioned grounds for keeping the applicant detained , including the argument that he had been evading justice ever since DATE , ORG also noted evidence that the applicant had tried , through third parties , to influence the witness PERSON and his family so that PERSON would not testify against the applicant .

By a judgment of DATE ORG found the applicant guilty of having put out the contract for ORG ’s murder . In finding against the applicant , the trial court relied on the testimony of G.B. Even though the applicant denied his involvement in the crime and insisted that PERSON was slandering him , the trial court observed that PERSON ’s testimony to the effect that the crime had been organised by a certain “ Alius ” had been consistent ever since PERSON was first questioned during the pre - trial investigation in DATE . Moreover , PERSON had recognised the applicant from photographs on DATE and during a police identity line - up on DATE . Other evidence against the applicant also included the testimony of CARDINAL further witnesses DATE namely the applicant ’s and ORG ’s former business partners , a police officer , and the brother of ORG ’s widow . Telephone records also showed that in DATE and DATE numerous conversations had taken place between the applicant , ORG , ORG and ORG In addition , extracts from the bank accounts of the applicant ’s company , customs declarations , and documents from GPE municipality illustrated the financial dealings between the applicant and ORG

ORG noted that DATE had passed since the crime was committed . The applicant had not been hiding during that time , even though a search for him “ without reason ( nepagrįsta ) ” had been called for . In DATE the applicant had not once broken the law and there was no information in the case file indicating his involvement in organised crime . Moreover , the applicant had worked , supported his family , including CARDINAL children who were minors , and had participated in public life . However , given the seriousness of the crime , the court held that the applicant still posed a danger to society . The court lastly found that because of the pre - trial investigation ORG fault the applicant was being punished only after DATE had passed since the crime . To impose a very severe sentence on him would therefore be unjust . CARDINAL years’ deprivation of liberty in a correctional home would be appropriate . The time which the applicant had spent in pre - trial detention DATE from DATE until DATE was to be counted towards that period .

An appeal having been lodged against this verdict , on CARDINAL DATE the applicant was acquitted by ORG . The court found the testimony of PERSON who was the main witness for the prosecution − against the applicant , including testimony given on site in DATE , PERSON ’s recognising the applicant in the police identity line - up and the testimony given the face - to - face confrontation to be inconsistent , not credible and contradictory of other evidence in the case ( nelogiški , prieštaraujantys kitiems įrodymams ir nenuoseklūs ) . There was a real possibility that by giving such testimony PERSON had sought to improve his position . In this connection ORG also noted that PERSON had attempted to diminish his own role in ORG ’s murder . It was for that reason that , on DATE , ORG had dismissed the prosecutor ’s and PERSON ’s plea for mitigation of PERSON ’s sentence on the basis of LAW ( see paragraph CARDINAL below ) . ORG also emphasised that there was not sufficient additional evidence to link the applicant to crime .

ORG ordered the applicant ’s release from detention . He had to stay at his place of residence , and his travel documents were taken from him .

The decision to acquit the applicant was later quashed by ORG , which remitted the case for fresh examination .

Before ORG the applicant reiterated his complaint that on DATE the pre - trial investigation judge had not allowed him to see the material submitted by the prosecutor . He also noted that PERSON had not informed the prosecutor about alleged undue influence on him until DATE after the alleged incident supposedly took place . In the view of the applicant , PERSON wished to incriminate him using any means possible .

On DATE the ORG again acquitted the applicant , upholding its earlier finding that PERSON ’s testimony against the applicant was not consistent ( nėra nuoseklūs ) . It also noted that the trial court had categorised the search for the applicant as unfounded ( nepagrista ) , without elaborating much on that issue . ORG emphasised that the applicant had never been in hiding from the authorities , even though the prosecutor had asked the appellate court to suppress that assessment , given by the trial court ( also see paragraphs CARDINAL and CARDINAL below ) .

The applicant was released from the obligation not to leave his place of residence , and his travel documents were returned to him .

DATE , on the basis of LAW ( see paragraph CARDINAL below ) , ORG adopted a separate ruling , noting that a search for a suspect could be ordered if the suspect ’s place of residence was unknown to the investigators , who , if that were the case , were obliged to take steps to find him or her . In the instant case , however , the applicant had never been in hiding from the investigators . On the contrary , he had lived in his apartment in GPE , had taken part in car rally competitions abroad , had won the President ’s cup after participating in the car rally “ Around GPE ” in DATE , and in DATE had even been elected president of the car rally committee . The applicant had also crossed the NORP State border both by car and as an airline passenger CARDINAL times , had worked at his private company and had paid social security contributions . All those events had taken place during the time when the search for the applicant , ordered on DATE , was being conducted . The applicant had at no time been called into the prosecutor ’s office and none of the applicant ’s family members had received any inquiries about the applicant ’s whereabouts from the police or had ever been visited by police officers . As confirmed by the police in DATE , no search file ( paieškos byla ) had ever been opened in respect of the applicant . Furthermore , in DATE he had been arrested ( sulaikytas ) in ORG town for having insulted police officers but was later released .

In the light of the above , ORG concluded that the prosecutor had deliberately and unnecessarily ( nepagrįstai ) ordered a search for the applicant without first having called him in for questioning or having taken any real measures to establish his whereabouts . The appellate court also found that the prosecutor had deliberately misled the courts in DATE by providing them with clearly untrue information at a time when those courts were making their decision as to whether or not to detain the applicant . This showed that the prosecutor had other goals in view , but it was not for ORG to determine what those other goals might have been . Nevertheless , as a consequence it was possible for the applicant to have been unlawfully detained for DATE from DATE until DATE . ORG therefore asked the Attorney ORG to determine whether the prosecutor ’s actions constituted abuse of office , which is a crime under NORP law . ORG also emphasised that ‒ as was apparent from the court decision approving the applicant ’s detention , on CARDINAL DATE , and upholding his detention on remand by court rulings adopted DATE and DATE ‒ in addition to ORG issued in DATE , “ the search for the applicant [ announced in DATE ] , had been CARDINAL of the main grounds for ordering his pre - trial detention and for prolonging it ” .

On DATE the Deputy Attorney General concluded that the prosecutor had not committed any offence . On the contrary , it was the police officers who had not performed their duties properly by failing to locate the applicant ( see paragraphs CARDINAL , DATE and DATE above ) , as a result of which it had not been possible for the prosecutor to call the applicant in for questioning . In any case , to call in for questioning a person whose accomplices had been sentenced to DATE of imprisonment ( see paragraph CARDINAL above ) was hardly a measure that would be considered justified in the interests of a successful pre - trial investigation . Once the police had informed the prosecutor of the applicant ’s possible whereabouts , the prosecutor immediately ordered the police officers to search those places and to arrest the applicant , who was charged DATE ( see paragraphs CARDINAL and CARDINAL above ) . The prosecutor ’s actions had therefore been based on factual circumstances and were lawful . There was no reason to conclude that he had misled the courts when they were deciding whether or not to detain the applicant .

In the view of the Deputy Attorney General , the fact that the prosecutor had referred to the search for the applicant and LAW in his requests to the court for the applicant ’s detention ( see paragraphs DATE above ) did not constitute significant grounds for keeping him detained . On the contrary , the courts noted the applicant ’s connections abroad , the fact that he owned property abroad , his wealth and the gravity of the crime of which he was suspected . The applicant and his lawyer had , moreover , actively exercised their defence rights in challenging the argument that the applicant had been hiding from investigators . It followed that the applicant ’s right to liberty had been restricted on a lawful basis .

Lastly , the Deputy Attorney General established that the actions of a certain police investigator when executing the search for the applicant had been erratic . However , even though his actions could be deemed to constitute a disciplinary offence , the investigator no longer worked in the police force and could not therefore be punished .

The Deputy Attorney General therefore refused to open a pre - trial investigation on the basis of the facts mentioned in the ORG of Appeal ruling of CARDINAL DATE . The decision was sent for inclusion in the applicant ’s criminal case file .

By a ruling of CARDINAL DATE ORG again remitted the applicant ’s criminal case to the appellate instance for a fresh examination of evidence . The cassation court noted that PERSON ’s testimony did not automatically become less credible merely because he had cooperated with the authorities when telling them of ORG ’s assassination , and for that reason the prosecutor requested mitigation of ORG sentence .

On DATE ORG found the applicant guilty of having put out the contract for ORG ’s murder so that the applicant and others would not have to repay to ORG debts amounting to CARDINAL and MONEY ( USD ) . The applicant was sentenced to CARDINAL years’ deprivation of liberty .

On DATE ORG re - interpreted the domestic criminal law and upheld the trial court ’s verdict , sentencing the applicant to eight years’ deprivation of liberty .

According to the latest information from the applicant ’s lawyer , in DATE the applicant was released from prison before time .


Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits

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

ORG ( “ the Government ” ) are represented by their Agent , PERSON .

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

NORP In DATE , following a nationalisation process ( for more detailed historical background see PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) , the applicant ’s predecessors settled in an apartment in GPE street , GPE , which was later rented by the applicant ’s father . The applicant and her family lived in the apartment until DATE .

In DATE the dwelling house was denationalised and taken over by a private person . The new owner requested the applicant ’s family to leave the apartment , alleging that it was unfit for occupation and required urgent repair . The dispute over the right to rent the apartment resulted in several sets of court proceedings between the applicant ’s family and the landlord .

In DATE the landlord brought a claim for eviction of the applicant ’s family , without providing alternative accommodation .

On DATE Judge PERSON of ORG upheld the claim . On the basis of the parties’ statements and case materials , the court found that : ( CARDINAL ) even in the absence of a written rental agreement between the parties , the applicant had been renting the contested apartment ; ( CARDINAL ) the apartment needed renovation and the plaintiff had proved his intention to carry out the necessary work , and therefore the condition for terminating the rental agreement had been met ; ( CARDINAL ) the plaintiff had warned the tenants about the termination of the rental agreement in accordance with a procedure provided by law .

On DATE an appeal by the applicant was dismissed by ORG , which on DATE issued an execution order .

The decision became final in DATE when the ORG of ORG dismissed an appeal on points of law by the applicant .

While the above proceedings were pending , in DATE the landlord brought a claim against the applicant and her family asking the court to order the tenants to give him access to the apartment . He argued that certain parts of the apartment were in a critical condition and required urgent repair owing to the fact that the wooden construction between the floors was decayed and risked collapsing .

On DATE Judge PERSON of ORG , in the absence of the applicant and her family , upheld the claim . The applicant and her family were duly informed of the proceedings .

The judgment was subject to appeal . Owing to its urgent nature , the lower court ordered the immediate execution of the judgment .

The applicant and the other defendants appealed and refused to implement the judgment . Following the bailiff ’s report that execution of the judgment was impossible , Judge PERSON on DATE and DATE imposed a fine of QUANTITY ( MONEY ( ORG ) ) and ORG CARDINAL ( LAW ) on each of the CARDINAL defendants , including the applicant . Upon appeal by the applicant , ORG quashed the decisions in a final ruling on DATE .

Meanwhile , ORG of GPE had on various occasions imposed fines on the applicant and her family for failing to allow the landlord to enter the apartment , in breach of LAW in force at the time . On CARDINAL occasion in DATE Judge PERSON had made a decision relating to an administrative fine imposed on CARDINAL of the applicant ’s family members ; in the decision she had identified shortcomings in the administrative offence proceedings and discontinued them . The decision was final .

It appears that on DATE a bailiff attempted to carry out the eviction in accordance with the order issued on DATE . The applicant and her family allegedly refused to leave the apartment , arguing that the eviction was unlawful . The landlord therefore proceeded to have the doors of the apartment opened by force , but it was discovered that the entrance was blocked with furniture and it was impossible to enter . An incident arose between the workers assigned by the bailiff and the people who were at the apartment during the eviction .

On DATE the landlord brought a civil claim for damages against the applicant and her family for the broken apartment door and for damage to belongings of other people involved in the incident .

On DATE the lower court , in the absence of the defendants , upheld the claim and ordered the defendants to pay ORG CARDINAL ( around EUR CARDINAL ) in damages .

The applicant appealed , arguing that opening the doors by force had not been necessary , and that the court had failed to establish a causal link between the actions of each of the defendants and the alleged damage .

On DATE ORG , sitting as a panel of CARDINAL judges , examined the applicant ’s appeal , with Judge PERSON as CARDINAL of the judges . At the beginning of the hearing the applicant challenged Judge PERSON ’s impartiality , arguing that she had evicted her family from the apartment and that therefore she might have an interest in the case .

The court dismissed the objection and since there were no other requests received by the parties , continued to examine the appeal on the merits . In a judgment of CARDINAL DATE the court partly upheld the claim . It observed that the applicant ’s family had been evicted from the apartment in accordance with a valid court judgment and that witness statements had established that on DATE the defendants had objected to the request by the court bailiff . In the court ’s opinion there was no doubt that the plaintiff had sustained damage and that the lower court had correctly found that the damage had been caused by the applicant and her family because the eviction concerned all of them .

NORP In an appeal on points of law the applicant noted that she had raised objections against Judge PERSON , listing all the decisions the judge had previously made .

On DATE a ORG preparatory meeting refused leave to appeal on points of law and the cassation proceedings were discontinued . The decision did not address the allegations of a lack of impartiality .

Section CARDINAL of the Law on ORG provides that a judge does not have the right to participate in the adjudication of a case if he or she , personally , directly or indirectly , has an interest in the outcome of the case , or if there are other circumstances creating well - founded reasons to question the judge ’s impartiality . In such cases a judge must withdraw from the case . If a judge or a lay judge has not withdrawn from the case , anyone participating in the proceedings may request such a withdrawal according to a procedure prescribed by law .

Sections CARDINAL and CARDINAL of LAW contain similar provisions to those stated above . It also provides that any such requests must be accompanied by sufficient reasons .


CASE OF BOTEZATU v. THE REPUBLIC OF MOLDOVA

Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE and lives in LANGUAGE .

The applicant is a police officer and on DATE ORG delivered a judgment obliging the PERSON municipality to provide him and his family with social housing . This judgment was upheld by ORG on DATE and became final on DATE . Enforcement proceedings were instituted on CARDINAL DATE .

After the communication of the present case to the ORG , on CARDINAL DATE , the applicant initiated court proceedings under LAW no . DATE ( see paragraph CARDINAL below ) seeking enforcement of the final judgment in his favour and compensation for non - pecuniary damage in the amount of MONEY ( ORG ) , for pecuniary damage in the amount of CARDINAL NORP lei ( MDL ) ( equivalent to ORG MONEY ) ( MDL CARDINAL of which represented the rent he had paid from DATE to DATE for alternative accommodation and MDL CARDINAL of which represented costs and expenses before the ORG ) , and ORG CARDINAL,CARDINAL ( ORG CARDINAL ) as costs and expenses in domestic proceedings . In support of his claims in respect of pecuniary damage , the applicant submitted CARDINAL lease contracts , each of them concluded for periods of DATE .

NORP In court , ORG disputed the validity of the lease contracts , arguing that they were fictitious because the landlady and the applicant were relatives , because the landlady had not applied for commercial registration ( patenta de intreprinzator ) to earn profits from lease , and because the contracts had not been registered with the tax authorities until DATE and had never been registered in the land register .

On DATE ORG acknowledged that there had been a violation of the applicant ’s rights under LAW No . CARDINAL to the LAW resulting from the nonenforcement of the final judgment in his favour for DATE . The court dismissed the arguments of ORG , holding that the lease contracts had been concluded for periods of DATE and were therefore not subject to mandatory registration in the land register . The court also took the view that the landlady ’s failure to register promptly her lease profits and her commercial activity had resulted in penalties and taxes ‒ which had been paid ‒ but that this failure was anyway not imputable to the applicant and did not affect the validity of the contracts . The court awarded the applicant MDL CARDINAL ( equivalent to ORG CARDINAL,CARDINAL ) in respect of non - pecuniary damage and granted his claims in respect of pecuniary damage and for costs and expenses in full . ORG appealed .

On DATE ORG upheld the appeal , quashed the first - instance judgment and delivered a new judgment , acknowledging a violation of the applicant ’s right under LAW resulting from the non - enforcement of a final judgment for a period of DATE ( from CARDINAL DATE to CARDINAL DATE ) . The court awarded the applicant LAW ( equivalent to LAW ) in respect of non - pecuniary damage and MDL CARDINAL,CARDINAL ( LAW ) for costs and expenses . The court dismissed the applicant ’s claims in respect of pecuniary damage as unsubstantiated , arguing that the lease contracts had been ineffective vis à vis the State on the grounds cited by ORG ( see paragraph CARDINAL above ) and cited LAW . This judgment was final .

On DATE the municipality issued the applicant with an occupancy voucher ( bon de repartiție ) , entitling him to move into a new flat .

By a letter of CARDINAL DATE the Government informed the ORG that the final judgment in the applicant ’s favour had been enforced on DATE . The applicant did not dispute this .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in DATE and lives in PERSON .

On DATE the applicant had a motorcycle accident in which he broke his right arm and right thigh . CARDINAL the applicant underwent an arthroscopy on his right knee . CARDINAL DATE the applicant underwent rehabilitation treatment in ORG and during this stay no dysfunction was diagnosed in his right foot .

Subsequently , DATE and DATE , he was detained in FAC . While in prison , he was examined CARDINAL times ( on CARDINAL and DATE and on CARDINAL DATE ) by an orthopaedist , who observed that the applicant required physical therapy in the light of a limitation of his knee - joint movement , the atrophy of a thigh muscle , and an injury to a peroneal nerve . On DATE the applicant was examined by a neurologist who likewise found atrophy of the thigh muscle and impaired bending of the right foot , which he attributed to an injury to the peroneal nerve . The applicant never received any physical therapy during his imprisonment , instead being offered only nonsteroidal anti - inflammatory medicines .

On an unspecified date , but not DATE , the applicant brought a civil action against ORG for infringement of his personal rights , claiming that the prison healthcare system had failed to provide him with appropriate medical care during his detention and , moreover , that the cells had not met the minimum spatial requirement of QUANTITY per person and had been mouldy and infested with insects . He requested MONEY ( ORG ) in compensation , the equivalent of MONEY ( ORG ) .

On DATE ORG ( PERSON ) exempted the applicant from the court fees .

On DATE ORG granted the applicant PLN CARDINAL,CARDINAL ( approximately EUR CARDINAL ) and dismissed the remainder of his action . The court held , particularly on the basis of the medical expert opinion , that the applicant had had a motorcycle accident and had required physical therapy as recommended by the prison orthopaedist . However , he had not been given any , either in prison or outside , which had resulted in a deterioration of his health . The court established that , due to the lack of physical therapy , the applicant had suffered atrophy of the thigh muscle and foot drop affecting his right foot . The court compared this finding with the fact that upon his arrival the applicant had not been suffering from foot drop , the pain in his knee had not been severe , and his right leg muscles had been working more effectively . The court emphasised that the applicant had not been offered proper treatment despite a worsening of his symptoms . These changes in his physical condition would not have been irreversible , but the break in the therapy had entailed a prolonged rehabilitation process . The court stated that the rehabilitation process for the applicant would be long and arduous , a situation which could have been avoided had the defendant acted appropriately . The court held that the applicant had suffered physical pain of significant seriousness , which , in turn , had had negative psychological consequences . The court therefore found the applicant ’s claim for compensation for lack of adequate medical care partly justified . The claim concerning the alleged overcrowding and inadequate sanitary conditions was dismissed in full . The court also ordered the applicant to reimburse ORG CARDINAL ( ORG CARDINAL ) for the costs of the defendant ’s legal representation and ORG CARDINAL,CARDINAL ( ORG CARDINAL ) in court fees ( in total : ORG CARDINAL ( ORG CARDINAL ) ) .

The applicant did not lodge an appeal against the first - instance judgment .

Following the defendant ’s appeal against the judgment , on CARDINAL DATE ORG ( Sąd Apelacyjny ) amended the judgment , reduced the compensation granted to the applicant to PLN CARDINAL,CARDINAL ( EUR CARDINAL ) , and upheld the first - instance court ’s findings of fact and law . The applicant was not ordered to pay the court fees for the proceedings before that court . This court pointed out that in the experts’ opinions it was not specified , even approximately , what the effects of the negligence might be , how much longer the rehabilitation process would take , or how much stronger the pain had become in comparison to pain experienced previously by the applicant .


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

Dean Spielmann;Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Ksenija Turković

The first applicant was born in GPE . She moved to GPE in DATE after marrying the second applicant .

On DATE the first applicant gave birth to a boy , PERSON Because of their marriage , by virtue of LAW ( PERSON ) , the second applicant was considered to be PERSON ’s father , and this was recorded by the civil registrar in connection with the child ’s birth .

The applicants legally separated on DATE , but they continued to cohabit until DATE .

On DATE the first applicant gave birth to a boy , S.

Although he no longer lived with the first applicant , and had had no sexual contact with her since DATE , the second applicant nevertheless submitted to ORG ( ORG Hovedstaden ) ( now ORG ) a declaration , cosigned by the first applicant , stating that together they would take care of and be responsible for S. The declaration was dated DATE and received in DATE . Consequently , the second applicant was registered as S. ’s father under LAW , subsection CARDINAL , of LAW .

Without the knowledge of the second applicant , during DATE , the first applicant had also had a relationship with a man called PERSON When that relationship ended in DATE , the first applicant told the second applicant that PERSON was the biological father of PERSON and probably also of L.

On DATE , the applicants requested that both paternity cases be reopened in order to establish formally PERSON ’s fatherhood of PERSON and S. The first applicant submitted , in LANGUAGE , that PERSON was the children ’s biological father and that he “ had warned me not to tell the truth about the fatherhood of the children ” . Their request was refused by ORG on DATE .

The applicants brought the cases before ORG ( PERSON ) before which PERSON opposed their reopening . The children DATE , represented by counsel , also objected to the reopening of the paternity cases , finding that the conditions set out in sections CARDINAL and CARDINAL of LAW had not been met .

The first applicant explained that she had met the second applicant in GPE in DATE . They had married in DATE and she had moved to GPE in DATE . In DATE , she had met PERSON on a dating site and they had commenced a relationship and had sexual relations twice a week , on a few occasions without protection . She had become pregnant and informed PERSON , but he had been in a dilemma because he was married at the time . In DATE she had been diagnosed as HIV - positive . When PERSON was born in DATE the second applicant was considered to be the father . They had separated in DATE but had continued to live together until DATE . After she and the second applicant had stopped having sexual relations , she had only had sexual relations with PERSON The latter had said that he would provide support for her and L , but he had never given her any money . He had said that everything would fall into place once he divorced . PERSON had seen PERSON several times and taken him swimming or to play in a park . She wanted PERSON to be introduced to PERSON ’s other children , but PERSON did not want that . Instead they had agreed that PERSON should have a sibling and they had planned their sexual activities according to her ovulation cycle in order for her to become pregnant . When PERSON was born in DATE , the second applicant had wanted to help her and had therefore acknowledged fatherhood . PERSON had come to see her at the hospital after she had given birth to S. He knew that he was the biological father of both boys . He had also acknowledged that in several emails and text messages to her . Moreover , PERSON ’s mother had met the boys and had said that PERSON reminded her of PERSON when he was a child . PERSON had never contributed financially to the care of the children . In DATE she had told PERSON that he would have to take care of the children soon and that she would report to the authorities that he was the biological father . He had replied that he did not want any responsibility for the children and ended their relationship . She wanted the boys to know their true identity while she was alive . PERSON was confused about the situation and had said “ my father is uncle PERSON , but my old father is [ the second applicant ] ” .

The second applicant confirmed that he and the first applicant had not had a sexual relationship since PERSON ’s birth . He believed that PERSON was his son . He was aware that PERSON was not his son , but since the boys would grow up together he felt it important to treat them equally and he also wanted to help and support the first applicant . In DATE he had been told about E. At DATE he had overheard a telephone conversation between the first applicant and PERSON , during which PERSON had talked about the boys as “ our children ” both in LANGUAGE and LANGUAGE . PERSON had stated that he did not want to take financial responsibility for the boys . The second applicant still saw the boys regularly and would continue to do so after the case had been settled . He felt that the biological father should take responsibility , including financial responsibility , and that the boys should know their identity .

E. explained that he had CARDINAL adult children from a previous marriage . He had met the first applicant in DATE or DATE but at the time they could not meet very often , because they were both married . The relationship was purely sexual , and he had no feelings for the first applicant . Their relationship had continued until DATE . They had met in the first applicant ’s home or in swinger clubs or in hotels . They had had sexual relations in swinger clubs from DATE until DATE . He and another man had had sexual relations with her at the same time , but he could not recall when . The first applicant had given him the impression that she protected herself . He had chosen to use a condom . He might be PERSON ’s father , but they had not as such discussed the matter at the time . He had not wanted a child , whereas the first applicant had . She had told him that she would take care of the child herself . In DATE , due to the applicants’ separation , the first applicant had taken an apartment on her own and PERSON had visited her and PERSON there . PERSON called him “ uncle E ” . Their sexual relationship had continued in DATE but the first applicant had told him that she had also met other men on a dating site . In DATE they had had sexual relations regularly , including in a swinger club once or twice . They had made a plan for the first applicant to become pregnant again and thought that it would be good for L. to have a sibling . He could not remember whether they had had sexual relations in the fertile period DATE and DATE and they had not discussed whether he was the biological father . He had visited the first applicant in hospital in connection with the birth . He had found it natural that the second applicant should be father to the children since he was married to the first applicant . He had never behaved like a father to the children : he was still “ uncle E ” . It was true that he had gone swimming with L. once in DATE and that he had told his mother that he might be the children ’s father . The relationship between him and the first applicant had ended because she had not told him that she was HIV - positive .

By decision of CARDINAL DATE , ORG in GPE decided to reopen the paternity cases .

Regarding L. , ORG noted that both the second applicant and PERSON had had a sexual relationship with the first applicant during the fertile period and that the request for reopening the cases had been lodged DATE after PERSON ’s birth .

Regarding S. , ORG noted that PERSON and the first applicant had had sexual relations in the relevant fertile period . The ORG did not find it established that the first applicant had had sexual relations with other men during that period . The request for a reopening had been lodged DATE after PERSON ’s birth .

The court took into account the disadvantage to which the children might be subject in case of a reopening , including the risk that paternity might not be established . It found it established that the first applicant had allowed both men to treat the children as theirs ; that PERSON had taken on a paternal role ; that PERSON had had frequent and regular contact with both children ; that PERSON had taken PERSON swimming ; that PERSON had taken the children with him on trips , to birthday parties and so on ; and that PERSON was spoken of in familiar terms by the children .

In respect of S. new information and circumstances in the case gave reason to believe that a mistake might have been made when registering paternity and that there might be a different outcome . Accordingly , that case was to be reopened .

NORP Moreover , having assessed overall the interests of the children and the union of the family , and the fact that the children would not be subjected to unnecessary inconvenience by a reopening , and since it was expected that paternity would be established , the court found that , exceptionally , both cases should be reopened .

E. appealed against the decision to ORG of Eastern Denmark ( PERSON ) , before which the applicants and PERSON were heard anew . PERSON added that he had moved to GPE in DATE and thereafter had had no contact with the first applicant or the children . DATE he had visited the first applicant for TIME , once or twice every month . He had become a sort of uncle for the children . He could not rule out that he was the father of the children but he would not voluntarily submit to a DNA test , since he would never be able take on the role of being their father .

The first applicant added , amongst other things , that PERSON had given the children presents . They had both received a teddy bear when they were born . They had also received a book with MONEY ( DKK ) ( MONEY ( ORG ) ) . When PERSON had turned DATE , he had received a birthday card with the text : “ PERSON , happy birthday , love daddy ” . The children were still in contact with the second applicant .

The second applicant added that he would keep in contact with the children but that he had withdrawn after learning that he was not their father . He mainly took care of the children when the first applicant needed help due to her illness .

NORP By decision of CARDINAL DATE ORG refused to reopen the paternity cases .

NORP The majority ( CARDINAL judges ) noted that it was not until the proceedings on paternity that the applicants had informed the authorities that they had not had sexual contact in the fertile period as regards PERSON Moreover , despite giving the children the impression that PERSON was their biological father , the second applicant had continued to treat the children as his own , at least until DATE . In these circumstances , and since it was uncertain whether paternity would be established for the children if the paternity cases were to be reopened , they did not find a basis for reopening the case regarding PERSON under LAW . By the same line of reasoning , they did not find a basis for reopening the paternity case regarding LAW under the stricter conditions set out in LAW taken in conjunction with section CARDINAL of LAW .

The minority ( CARDINAL judge ) agreed with the decision by ORG , mainly with the same reasoning . In addition he pointed out that the second applicant had not been aware until DATE that the first applicant and PERSON had had a long relationship , and that he was probably not PERSON ’s father . Furthermore , the second applicant had withdrawn from the children after learning about PERSON and he saw them mainly in order to help the first applicant . Finally , the minority took into account that both children openly stated that it was PERSON , and not the second applicant , who was their father .

Subsequently , the second applicant took a DNA paternity test regarding both children which turned out negative with PERCENT compatibility , thus proving that he was not the father of PERSON or S.

The applicants submitted this result to ORG ( Procesbevillingsnævnet ) and requested leave to appeal to ORG ( Højesteret ) , which was refused on DATE .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicant , is a NORP citizen , who was born in DATE and lives in PERSON , GPE .

NORP In DATE the applicant met PERSON , a NORP national . In DATE PERSON moved to GPE and the couple lived together in the applicant ’s flat in PERSON . On DATE their son , PERSON , was born . In DATE the couple spent DATE with the applicant ’s family in PERSON . The applicant returned to their home on DATE .

On DATE K.B.V. lodged a complaint against the applicant in PERSON . She alleged that the applicant had become hostile and sometimes aggressive towards her and constituted a danger to her and their son .

On DATE PERSON left for GPE with L , without the prior knowledge or authorisation of the applicant . Since then PERSON has lived with PERSON at her GPE home in GPE .

On DATE PERSON initiated custody proceedings in respect of PERSON before FAC .

On DATE the applicant instigated proceedings before FAC tribunal de grande instance . On DATE the court found that PERSON had been illegally taken from GPE , placed the son with his father ( that is to say the applicant ) , and granted the applicant sole custody . The court ordered the provisional execution of the judgment . Following an appeal by PERSON , in a judgment of DATE , ORG granted PERSON right to have supervised contact every other DATE TIME , awarded the parents joint custody , and upheld the remainder of the first - instance decision .

On DATE ORG issued a certificate of enforceability under LAW ( ORG ) No . CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ( known “ the Brussels II bis Regulation ” ) .

On DATE ORG quashed the secondinstance judgment of ORG and remitted the case to ORG .

On DATE the Pest Central District Court received from the applicant a request under LAW on the Civil Aspects of ORG ( Articles DATE ) and the Brussels II bis Regulation for the child to be returned to GPE . The applicant maintained that PERSON ’s place of residence was in GPE and that under NORP law parents exercised their custody rights jointly . PERSON had decided on the child ’s place of residence without his approval . On DATE and CARDINAL and DATE , and DATE , DATE and DATE and CARDINAL DATE the court examined the request in the presence of both parents .

By a decision of CARDINAL DATE ORG dismissed the request under LAW of LAW . Relying on the definition of child abduction , as provided in LAW , the court found that PERSON had abducted PERSON from his habitual residence in GPE , where the parents had exercised their custody rights jointly . However , on the basis of the evidence before it , the court concluded that if PERSON ( who was still being breastfed ) were returned to GPE , he would be placed in uncertain circumstances , only seeing his mother DATE for TIME . It emphasised that according to the applicant ’s own submissions , he was away from home from TIME and that it would be difficult for him to look after the child during DATE . Thus , as he suggested , his sister would look after PERSON The court also noted that the applicant had lodged his request DATE after PERSON ’s abduction and that although he had visited GPE on a number of occasions , he had not been in contact with PERSON , the court dismissed the applicant ’s request under LAW .

ORG upheld the first - instance decision on DATE . It reiterated the conclusion of the first - instance court that there was a grave risk that PERSON ’s return to GPE would expose him to harm . In this aspect the court found relevant that PERSON was only one and a half years old and if returned to GPE he would be deprived of all maternal care . Thus , under LAW , the NORP courts were not bound to order the child ’s return . The court also held that LAW of LAW was not applicable , since no measures or arrangements were available to secure the protection of PERSON after his return .

The applicant lodged a petition for judicial review of this decision with the GPE . He argued that LAW was applicable to exceptional circumstances only and that neither the child ’s age nor his closer connection to his mother had any bearing on the matter and could not constitute a decisive element in the decision to refuse to order the child ’s return to his habitual residence . He also argued that he had contributed to the child ’s care and that his employment , which allowed him to provide for his family , could not be held against him . Furthermore , the decisions had failed to take into account ORG ’s best interests , which lay in his being raised by both of his parents . He also maintained that his lack of contact with PERSON was due to PERSON ’s own conduct and the fact that he had not been aware of the child ’s place of residence until DATE . Finally , the lower - instance courts had not respected the DATE deadline stipulated by LAW bis Regulation .

The PERSON dismissed the applicant ’s petition for judicial review on DATE . According to its reasoning both the Brussels II bis ORG and LAW had established the presumption that a child ’s interests could best be served by his immediate return to his habitual residence . However , LAW this presumption could be rebutted in exceptional circumstances . It agreed with the applicant that the child ’s young age , his close connection to the parent living in GPE and his NORP roots could not serve as a basis for the refusal to order his return to GPE . It nonetheless held that at the time of his abduction PERSON had only been DATE and that a considerable time had passed without him having contact with the applicant . The reason for this was that the applicant had refused to see PERSON at the premises of a child protection service , as suggested by PERSON The PERSON also found it important that according to the applicant ’s own statements his sister would take care of PERSON if the child were returned to GPE and that , according to the decision of the NORP courts , PERSON would only have very limited contact with L. Furthermore , there was no information about any measure of protection envisaged in the event of L. ’s return . Thus , the GPE concluded that the return of the child , who was DATE , to an unknown environment would cause serious psychological harm .

On DATE PERSON initiated custody proceedings in respect of PERSON before FAC ; she also requested the court to adopt an interim measure placing L. under her custody .

On DATE ORG discontinued the proceedings , regard being had to the judgments delivered by the NORP courts . On DATE the Szombathely High Court overturned this decision and ordered ORG to examine whether the judgments of the NORP courts could be recognised and if not whether it had jurisdiction in the matter .

On DATE ORG discontinued the proceedings again , finding that PERSON could have exercised her procedural rights before the NORP courts , submitting her written observations through her representative in the course of the appellate proceedings . This decision was overturned again by ORG on DATE owing to procedural errors .

On DATE the applicant tried to abduct L. , who was walking with his grandfather on the street . Following the incident PERSON lodged a criminal complaint against the applicant and requested that a restriction order be imposed on him . On DATE ORG issued a restriction order in respect of the applicant , which was subsequently overturned on appeal on the grounds that the mother herself had not been a victim of violent behaviour on the part of the applicant .

On DATE , in an interim decision , ORG decided not to recognise the judgments adopted by FAC tribunal de grande instance and ORG , established that it did have jurisdiction in the matter , and temporarily placed L. in his mother ’s sole custody . According to ORG the NORP courts had found that the interests of the child could best be served by his return to GPE . However , the proceedings before FAC tribunal de grande instance had failed to respect PERSON ’s right to a fair trial , since DATE owing to the fact that the applicant had given false information to the NORP authorities – she had not been informed of the proceedings and had not been able to be heard in person . Thus , the court concluded that the decision could not be recognised , pursuant to LAW ) of ORG . It also held that it had jurisdiction LAW of the Brussels II bis Regulation , since the child ’s habitual residence was in GPE . As to the interim resolution of custody rights , the ORG held that the interests of the child could be best served if he remained in his habitual environment – that is to say in the company of his mother and maternal grandparents DATE and that removing him from GPE would pose a risk of causing him psychological harm .

Following a further appeal , on DATE ORG overturned the decision concerning custody rights and remitted the case to the first - instance court . As to the decision on the non - recognition of the judgments delivered by the NORP courts , it found that recognition could not be refused on the basis that PERSON had not been heard in person before the NORP courts , since the Brussels II bis Regulation did not stipulate such an obligation and the mother could have submitted written observations . Nonetheless , the court found that the recognition of the foreign judgments could not be recognised , pursuant to Article PERSON ) of the Brussels II bis Regulation , since recognition would have been contrary to the public policy of GPE , given that the best interests of the child had only been respected in a formalistic way . According to ORG , restricting the mother ’s contact with TIME every second week would have caused harm to PERSON , especially since the applicant himself had stated that PERSON would be looked after by his sister . The court also had regard to the forensic psychiatric opinion prepared by Dr PERSON . PERSON on DATE and supplemented by PERSON on DATE , according to which from a psychological point of view – the enforcement of the NORP ORG judgment would constitute “ institutional abuse ” . Furthermore , the court found that no measures were being contemplated by the applicant to ensure the protection of the child after his return to GPE .

A petition for judicial review lodged by the applicant with the PERSON was dismissed as time - barred on DATE .

On DATE , in the course of the custody proceedings , the applicant also lodged a request for an interim measure regulating his access rights .

On DATE the applicant abducted PERSON from PERSON , in the course of which he caused grievous bodily harm to her . L was taken to GPE .

On DATE ORG issued an interim decision on the exercise of parental custody and access rights . It noted that since DATE the applicant had seen his son CARDINAL times and had been in contact with him CARDINAL times via ORG . It held that PERSON needed to have contact with his father and therefore ruled that the applicant could visit him for TIME every second weekend and could contact him via ORG every other weekend . Given the applicant ’s violent behaviour towards the mother ( and previously towards the child ’s grandfather – see paragraph CARDINAL above ) , the court held that the applicant ’s visits should take place under supervision . The applicant appealed .

On DATE ORG issued a NORP arrest warrant against the applicant , who was detained in GPE on DATE . PERSON was placed in a childcare institution .

By a decision of DATE FAC tribunal de grande instance found that the applicant had endangered the child ’s development and temporarily placed L. in his mother ’s custody . The applicant was granted access rights , in accordance with ORG decision of DATE . The applicant appealed against this decision .

L. was returned to GPE on DATE .

On DATE ORG upheld the decision of ORG of DATE on the temporary placement of L. in his mother ’s custody , emphasising that the NORP tribunal de grande instance had arrived at the same conclusion .

In the meantime , on DATE the applicant applied for the execution of the judgments delivered by FAC tribunal de grande instance and ORG .

On DATE ORG dismissed the application , relying on the decision of ORG of DATE on the non - recognition of the NORP ORG judgments . It relied on LAW .

The applicant appealed , arguing that ORG had erred in finding that the decision on the non - recognition of the NORP courts’ judgments was relevant in the case . Since in the meantime ORG had overturned the judgment of ORG , the applicant requested the enforcement of the judgment of the PERSON tribunal de grande instance and maintained that this judgment had been declared automatically enforceable . ORG held that the judgment of FAC tribunal de grande instance , under which no rights at all were granted to the mother at all , was contrary to the public policy of GPE since it did not respect fundamental rights , and in particular the best interest of the child , and refused by a decision of DATE to execute it .


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

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were instituted .

On DATE the applicant was arrested on suspicion of attempted bribery .

On CARDINAL DATE the applicant was detained on remand . On DATE he was released and police supervision was imposed instead , under which he was obliged not to leave his home district without the authorisation of the investigation authorities , and to report to the local police department twice a week .

On DATE a bill of indictment was served on the applicant and his CARDINAL co - accused ( PERSON and PERSON ) . On DATE a judge of ORG ( PERSON apgabaltiesa ) accepted the criminal case for trial . The first hearing was scheduled to take place from CARDINAL to CARDINAL August DATE .

On DATE the hearing was adjourned for an indefinite period owing to PERSON ’s poor state of health and the fact that the applicant ’s defence lawyer was on vacation .

On DATE the new Criminal Procedure Law entered into force ; it introduced new rules concerning , inter alia , conflicts of interest faced by judges . In the light of the new rules , on DATE the hearing was adjourned because CARDINAL of the judges of ORG had had to recuse herself from the trial .

On DATE the hearing was adjourned because the prosecutor and the applicant ’s defence lawyer were due to go away on holiday .

On DATE the hearing was adjourned once again owing to PERSON ’s poor state of health . On DATE a judge from ORG requested the hospital in which PERSON was being treated to provide information about her state of health . On DATE the court was informed that PERSON had been discharged from the hospital and placed under the care of her family doctor .

On DATE the hearing was adjourned for unspecified reasons .

On DATE the hearing was adjourned again owing to PERSON ’s poor state of health . On DATE ORG ordered that PERSON undergo a medical examination in order for her capacity to participate in the proceedings to be determined . The findings of that examination were delivered DATE and indicated that PERSON was able to participate in the proceedings .

On DATE ORG scheduled the next hearing for DATE . On DATE PERSON ’s lawyer requested that that hearing be rescheduled in order to accommodate his taking planned holidays . The court dismissed that request , noting that CARDINAL hearings had already been adjourned and that further delays in the proceedings could not be allowed .

On DATE the hearing was adjourned , as the prosecution needed to replace the charge against the applicant with a more lenient one .

On DATE ORG started to hear the parties’ arguments regarding the merits of the case . On DATE it convicted the applicant of attempted bribery and sentenced him to CARDINAL years’ imprisonment .

On DATE the applicant submitted an appeal . On DATE the appellate court upheld the lower court ’s judgment .

On DATE the applicant lodged an appeal on points of law , arguing , inter alia , that his right to a trial within a reasonable time had been breached . In this respect he referred to several provisions of national and international law , including LAW .

By a final decision of CARDINAL DATE the ORG of ORG ( PERSON tiesas PERSON ) refused the applicant leave to appeal on points of law , noting , inter alia , that the applicant ’s “ reference to violations of certain laws and international legal provisions was formalistic . ”


KLIMAT INKOM V & CO OOD AND OTHERS v. BULGARIA

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

NORP The applicant company , ORG ORG , was a NORP limited liability company which had its registered office in GPE . It was wholly owned by the CARDINAL individual applicants , Mr PERSON and PERSON , NORP nationals who were born in DATE and DATE respectively . Mr PERSON lives in GPE .

Ms Vera Gancheva Vidolova died on DATE . In a letter dated DATE , her heirs ‒ Mr PERSON , Mr PERSON Danailov Vidolov and Mr PERSON ‒ expressed their wish to pursue the application in her stead .

NORP The applicant company was wound up in DATE .

The applicants and PERSON heirs were represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE .

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

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

The ORG - owned company ORG was created in DATE as the successor of a previously existing ORG - owned enterprise . In DATE it was registered as a joint - stock company with its registered place of business in GPE . At that time it was wholly owned by the ORG .

NORP In DATE ORG passed LAW and LAW ( hereinafter “ LAW ” ) . Pursuant to section CARDINALa thereof ( see paragraph CARDINAL below ) , the company became the owner of the properties it had until then used and managed . In DATE the company was renamed ORG .

On an unspecified date a decision was taken to privatise ORG .

In DATE the company management took a decision to put up for sale some of the company ’s properties , namely CARDINAL industrial buildings in GPE covering areas of CARDINAL and QUANTITY respectively , as well as the plot of land on which they stood , which measured QUANTITY ( hereinafter “ the properties ” ) . Since privatisation of the company was planned , the sale had to be authorised by ORG ( a requirement under section CARDINAL ) of LAW – see paragraph CARDINAL below ) . On DATE ORG authorised the sale , in a decision which stated in addition that the sale would be carried out in accordance with section CARDINAL(CARDINAL ) of the DATE Regulations on the Exercise of the ORG ’s ORG ( hereinafter “ the DATE LAW , see paragraph CARDINAL below ) .

On DATE ORG and the applicant company concluded a preliminary contract for the sale of the properties . The final contract was signed on DATE ( hereinafter “ the DATE contract ” ) . In DATE the applicant company paid in full the agreed price , which at the time was the equivalent of MONEY ( ORG ) .

NORP In DATE the applicant company took possession of the properties and started using them . The buildings appear to have been in a bad state of repair and it made substantial improvements to them . According to an expert assessment submitted by PERSON and PERSON heirs , in DATE the value of the properties was ORG CARDINAL . However , as the parties have provided to the ORG no assessment of the value of the improvements made after DATE , it is unclear to what extent the increased value in DATE was the result of price changes in the real estate market and to what extent – to the improvements made by the applicant company .

Incoms - Telecom Holding EAD was privatised in DATE , after which its name was changed to ORG .

In DATE that company brought against the applicant company a rei vindicatio action , reclaiming the properties . It argued that the DATE sale contract had been null and void because , in particular , it had not been concluded before a notary as required by law ; consequently , the applicant company had never validly acquired the properties .

The action was allowed on DATE by GPE . It noted at the outset that the sale would only have been valid if it had been duly authorised by ORG , as required by law . However , the authorisation given on DATE ( see paragraph CARDINAL above ) had been too general and had not specified the properties concerned .

In addition , the Sofia ORG noted that the DATE contract was null and void because it had not been concluded before a notary . There was no reason to conclude that the general requirement of section CARDINAL of LAW ( see paragraph CARDINAL below ) did not apply to it , as it did not fall within any of the exceptions provided for by law . In particular , the contract at issue was not a privatisation contract because it did not fall within the scope of LAW , as defined under its section CARDINAL(CARDINAL ) ( see paragraph CARDINAL below ) , and because its subject matter did not concern ORG - owned properties , the properties at issue having already come into the private ownership of the company ORG on the strength of section CARDINALa of LAW ( see paragraph CARDINAL above ) . Nor could section CARDINAL(CARDINAL ) of the DATE Regulations ( see paragraph CARDINAL below ) , which the applicant company had relied on , provide a legal basis for concluding that the requirement laid down in section CARDINAL of LAW was inapplicable . Thus , the DATE contract , which had not been concluded before a notary , was null and void ab initio .

The contract ’s nullity meant that the applicant company had been a possessor in bad faith of the properties after DATE and could only acquire those properties through adverse possession after the expiry of a period of DATE . Since the claimant had brought an action in DATE , that period had not expired . Accordingly , the applicant company was not the owner of the properties and had to surrender possession to the claimant .

On DATE and DATE respectively the above conclusions were endorsed by ORG and ORG . The applicant company surrendered possession of the properties in DATE .

In separate proceedings , in DATE ORG requested that the applicant company be declared insolvent . Even though the request was not granted until DATE , a trustee for the applicant company was appointed in DATE . After the liquidation proceedings were completed , the applicant company was wound up by a court judgment of CARDINAL DATE .

After DATE , ORG passed several pieces of legislation providing for the transformation of ORG - owned enterprises into companies and the privatisation of such companies . LAW ( ORG за преобразуване и приватизация на държавни и общински предприятия ) was adopted in DATE . Its section CARDINALa provided in particular that , in the process of transforming a ORG enterprise , ownership of real estate or other assets that had been used and managed by it should be deemed to pass to the company succeeding it .

Privatisation was defined under section CARDINAL(CARDINAL ) of LAW as

“ the transfer to private persons or legal entities of

shares in companies owned by the ORG and the municipalities ;

NORP ownership of entire enterprises , parts of them , assets of liquidated enterprises or properties under construction ;

State or municipality - owned non - residential properties not included in ORG or municipally - owned enterprises and used for commercial purposes ( such as shops , workshops , warehouses and repair shops ) . ”

Pursuant to LAW and the secondary legislation adopted in the course of its implementation , the stages of a privatisation procedure were as follows : a legal analysis of the property to be privatised was conducted ; based on that analysis , the competent authority took a decision to privatise and chose the appropriate method ( auction , competition , negotiations ) ; that decision was published in ORG ; an independent analysis of the company or assets to be privatised was conducted and the conditions for participation in the auction or competition were announced ; the buyers were chosen and a privatisation contract was concluded ; and lastly , a specialised body was charged with exercising post - privatisation supervision . The privatisation contract did not need to be concluded before a notary . Such contracts would often contain additional obligations for the buyer , such as the preservation or creation of jobs , or the introduction of measures for environmental protection or to ensure continuation of the privatised company ’s activity .

Once a decision to privatise had been taken , the company to be privatised was banned from selling or otherwise transferring its fixed assets unless authorised by the body competent to conduct the privatisation ( section CARDINAL ) of LAW ) .

The Regulations on the Exercise of the ORG ’s ORG , adopted in DATE ( PERSON за реда за упражняване правата на собственост на държавата в предприятията – “ the DATE LAW ) , were part of the secondary legislation implementing LAW . Their section CARDINAL provided that fixed assets of ORG - owned companies could only be sold or transferred to private parties after an auction or a competition ( paragraph CARDINAL ) , except where the competent ORG body had authorised direct negotiations with potential buyers ( paragraph CARDINAL ) .

In DATE LAW was superseded by other legislation .

Section CARDINAL of LAW ( ORG за задълженията и договорите ) requires that all contracts concerning rights in rem should be concluded before a notary ( “ с нотариален акт ” ) .

Section PERSON ) of the LAW provides that if the appropriate procedure ( “ предписана от закона форма ” ) has not been observed , a contract will be null and void . Pursuant to section DATE , when a contract is declared null and void , each of the parties is under an obligation to return everything it has received .

By section CARDINAL of the Act , except where provided otherwise , all claims lapse after the expiry of DATE . Where the claim is for the recovery of something given under a contract which was in fact null and void , the period at issue is considered to start from the moment the contract was concluded ( Постановление № CARDINAL от CARDINAL.V.CARDINAL г. по гр. д. № DATE г. , GPE на ВС ; ORG № CARDINAL от CARDINAL г. на ORG по гр. д. № MONEY г. , PERSON г. о. , ORG ; ORG № CARDINAL от CARDINAL г. на ORG по т. д. № CARDINAL г. , TК , II т.о. ) . Limitation periods are not to be applied by the courts of their own motion , but only when an objection has been raised by the interested party ( section CARDINAL of the Act ) .

Real property can be acquired through adverse possession after either CARDINAL or DATE of possession , depending on whether the possessor acted in good or bad faith ( section QUANTITY of LAW Закон за собствеността ) . Possession based on a null and void transaction is always considered to have been in bad faith ( Постановление № CARDINAL от ORG г. по гр. д. № CARDINAL г. , GPE на ВС ; ORG № CARDINAL от CARDINAL г. на ORG по ORG д. № CARDINAL/CARDINAL г. ) .

A possessor in bad faith who has been found not to be the owner of a property can claim from the owner the expenses incurred for the property ’s upkeep ( section CARDINAL(CARDINAL ) of the Act ) . If improvements have been made to the property , he or she can claim the lesser of the amount spent on those improvements and the amount by which the property ’s value has augmented as a result ( section ORG ) ) . Where the owner was aware that improvements were being made to the property and did not object , the possessor in bad faith can in any event claim , if higher , the amount by which the property ’s value has augmented ( section CARDINAL(CARDINAL ) in conjunction with section CARDINAL(CARDINAL ) ) . Limitation periods for claiming the value of improvements start to run when a property claim ‒ such as a rei vindicatio claim ‒ is brought , or when the possession of the property at issue is otherwise disturbed ( Постановление № CARDINAL от ORG г. по гр. д. № CARDINAL г. , GPE на ВС ) .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Substantive aspect)

On DATE the applicant ’s son , PERSON . , was found dead in the pond which he had been guarding as a night watchman .

On DATE a post - mortem examination was completed . It concluded that PERSON . had drowned . A number of bruises and sores were discovered on his chest . The expert assessed those injuries as insignificant and considered that they had been inflicted by blunt hard objects .

During the period from DATE to DATE the police refused to institute criminal proceedings in respect of the death CARDINAL times . All those rulings were quashed by the prosecution authorities or the courts for superficiality and incompleteness of the investigation undertaken .

On DATE , following the entry into force of the new Code of Criminal Procedure in DATE , the case was registered in ORG .

Thereafter the police terminated the criminal investigation twice having found that there was no indication of a homicide . Both those decisions were quashed .

As of DATE the pre - trial investigation was ongoing .