Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE she married Mr GPE in GPE ( GPE ) . They lived in GPE until DATE , when they decided to move to PERSON ( GPE ) .

Meanwhile , on DATE the applicant gave birth to their daughter , PERSON , on DATE to their son , PERSON , and on DATE to their second daughter , GPE

On DATE the applicant and GPE separated . He remained in GPE , whereas the applicant returned to GPE .

Following her arrival in GPE the applicant collected the children from her husband ’s parents , who lived in GPE and with whom the children had been spending DATE , and took the children with her to GPE .

When the applicant did not return to GPE , GPE went to GPE with a view to taking the children back to GPE . However , the applicant opposed that . The children therefore remained in GPE where the applicant enrolled the CARDINAL older children in school and the youngest child in kindergarten . ORG maintained contact with the children by talking to them over the phone and by visiting them occasionally . It would appear that the applicant and ORG eventually agreed that the children would remain in GPE but would spend holidays with their father in GPE .

In DATE , after DATE , which the children spent with their father and paternal grandparents in GPE , the father refused to return them to the applicant , claiming that the children had refused to go back to GPE .

In DATE , relying on LAW ( hereinafter : “ LAW ” , see paragraph DATE below ) , the applicant asked ORG , as ORG within the meaning of that LAW , to return her children . ORG immediately contacted ORG ( ORG zdravstva i socijalne skrbi ) as ORG .

By a letter of DATE ORG forwarded the applicant ’s request to ORG ( PERSON ) .

A copy of the ORG ’s letter of DATE was sent to ORG ( NORP za socijalnu skrb Vinkovci ) . Pursuant to LAW ( see paragraph CARDINAL below ) , the latter was invited to mediate with the father the voluntary return of the children to GPE , and to inform ORG and ORG of the results thereof .

ORG interviewed GPE , talked to the children without his presence and carried out an on - site inspection of his home . On DATE it replied to the ORG ’s request . The relevant part of that reply reads as follows :

“ GPE states that his actions were in accordance with the wishes of his children , who wanted to remain living with him in GPE . He justifies his current actions by the wish to afford his children a happy life . During the interview on the [ premises ] of ORG did not try to portray [ the applicant ] as a bad or irresponsible mother ... GPE verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy . He states that the children wish to remain living with him . He does not want to restrict his wife ’s contacts with the children . ... During the conversation ORG leaves the impression of an emotionally warm person . He does not appear to be a parent who would physically punish or behave inappropriately towards the children .

... by an on - site inspection it was established that the father had secured adequate housing and other conditions . He has a permanent source of income ... as he has a bar on the ground floor of the house [ where he and the children live ] , where he works . [ Thus ] while working he stays [ physically ] very close to his family , which gives the children [ a sense of ] security .

It was further established that GPE and GPE had frequently changed school and that they had started DATE by going to an elementary school in PERSON where , according to the father , they had adapted well . It is not in the children ’s interest to frequently change school , schoolmates and teachers . The children should have stability . Every removal of the children from their habitual environment ( family or school setting ) is stressful and leaves consequences on the children . It requires them to make additional efforts to adapt to the new environment and the school and to make new friends .

Given that the children ’s mother had in the meantime lodged an application for the return of her wrongfully retained children from GPE , the ORG conducted an interview with the children on its LOC without the presence of the father . Their wish is that their parents live together , as most children in their situation do . They are aware that the parents are divorcing . They are not taking the side of [ either ] the father or the mother . PERSON and GPE understand the family situation whereas GPE is at an age when her GPE situation is still not clear to her . The children express the wish to live with their father . They see their relationship with the father as closer and [ consider that ] they are more emotionally attached [ to him ] . They like the life in the countryside , in PERSON . The life in GPE is very different from the life in PERSON . In PERSON they have more free time , and meet and play with other children of their age . The pace of life in GPE makes that impossible . Here they are very well accepted in school . They know their neighbours and other children of their age .

In the light of the foregoing [ the ORG ] found that it would be in the children ’s interest to continue living with their father in PERSON . In accordance with that [ view ] the ORG has submitted the opinion of a psychologist and a social worker to ORG . ”

ORG - contentious proceedings for the return of the children were instituted on DATE , that is , on the date the ORG ’s letter of CARDINAL DATE forwarding the applicant ’s request under LAW to ORG ( see paragraph CARDINAL above ) was received at that court . ORG participated in those proceedings as an independent intervener sui generis with a view to protecting the children ’s interests .

During the proceedings the court decided to obtain and consult the report of the social welfare centre prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody ( see paragraphs CARDINAL below ) . On DATE the report was received at the court .

At a hearing held at TIME on DATE the applicant ’s representative argued that the retention of the CARDINAL children by their father in GPE had been wrongful and that they should be returned forthwith . She averred that the fact that the social welfare centre had submitted a report in the parallel civil proceedings for divorce and child custody should have no bearing in the present proceedings as LAW did not provide for exceptions from the obligation to promptly return the children . She also stated that the applicant ’s right to equality in the proceedings had been breached because , even though she was fluent in NORP as her parents were of NORP origin , she had not been invited by ORG to participate in the family assessment procedure leading to its report .

S.V. ’s representative invited the court to dismiss the applicant ’s request . She argued that the retention of the children had not been wrongful and that in any event GPE could not have forced the children to return to their mother against their wishes . In particular , the children had clearly communicated their wishes not to return to GPE to the employees of the social welfare centre and had even told their father that they would run away if returned , which suggested that the return would have caused them psychological trauma . Furthermore , while it was true that the report of the social welfare centre was prepared in the context of the parallel civil proceedings for the purposes of deciding on custody of the children , its findings , which had suggested that the children did not want to return to GPE , could not be ignored in the present proceedings .

The representative of ORG agreed with ORG ’s representative that the applicant ’s request should be dismissed and that the children ’s retention had not been wrongful . She submitted that the children had been interviewed by the employees of the centre first together and then individually , and that they had stated that they did not like the life in GPE and wanted to live in GPE .

In her reply the applicant ’s representative stated as follows :

“ ... especially the youngest child of the parties GPE , who is DATE , is very attached to her mother , and has expressed a wish to return with her to GPE . As regards the CARDINAL older children , what should primarily be taken into account , given their age , are their [ best ] interests and not just where they wish to live . In any event , this can not have an impact on the decision making in this case having regard to LAW . ”

At the same hearing the court heard both parties . The applicant in her testimony stated that in DATE ORG had called her to tell her that he would not be returning the children to GPE because they did not want that . The applicant further testified that on that occasion she had spoken with the children over the phone and that the CARDINAL older children had told her that they indeed did not want to return to GPE , whereas the youngest child had expressed the wish to return . The applicant also stated that she had not seen her children from the time their father had retained them in GPE until DATE before the hearing .

NORP From GPE ’s testimony it followed that the youngest child , GPE , was indecisive as to which parent she wanted to live with . In his own words :

“ GPE is [ still ] small and at times she wants to live with her mother , and every now and then with me . ”

At the same hearing , on DATE , ORG delivered a decision whereby it dismissed the applicant ’s request . In so doing it relied on the report of ORG , which included the opinions of a social worker and a psychologist employed with the centre and which had been prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody ( see paragraphs CARDINAL and CARDINAL below ) . The relevant part of that decision read as follows :

“ The petitioner ... maintains her request that her children be returned to GPE where they had the last domicile , that is , their habitual residence and where they went to school . The fact that the social welfare centre gave its opinion in the [ parallel ] civil proceedings for divorce [ and child custody ] is of no relevance for reaching a decision in these [ return ] proceedings because GPE , as a signatory of LAW , is bound to honour the provisions of that Convention .

The counterparty ... in his reply opposes the [ petitioner ’s ] request , considering that the conditions prescribed in LAW had not been met in the present case . In particular , in order for LAW to apply , the children had to have been wrongfully removed or wrongfully retained and the right of custody had to have been breached . The law did not attribute the right of custody to the petitioner , nor had she been awarded that right by a judicial or administrative decision or an agreement equal to such decisions . Hence , the petitioner herself does not have the right of custody any more than the counterparty himself , given that the divorce proceedings , where [ the issue of ] custody is being examined , are still pending before this court .

He also invokes LAW paragraph CARDINAL ( b ) [ of LAW ] which provides that the court is not bound to order the return of a child if it establishes that the return would expose the child to , inter alia , psychological harm , and that it may also refuse to do so if the child objects to being returned .

The representative of ORG in her observations considers that the present case does not concern wrongful retention of children because the ORG had , even before the petitioner submitted her request , been involved in the social anamnesis of the family [ i.e. family assessment ] . Namely , the children ’s father had addressed the LOC when in DATE , during a visit of the children to his parents in GPE , the spouses had separated , that is to say , when the petitioner had left [ him ] , gone to GPE , taken the children , retained them and enrolled them in a school in GPE . The father , in order to protect the interests of the children , had decided not to take certain steps [ to return them ] but had instead visited the children in GPE as much as he could . When the children DATE had come to GPE with his parents , they had not wanted to go back to GPE . The father had then sought advice from the LOC , which had advised him that he should not return the children to their mother by force . After that , he had filed for divorce , whereas the petitioner had lodged a request for the return of wrongfully retained children .

In the proceedings conducted before ORG , the children were heard , all CARDINAL of them together and then individually , and they expressed the wish to live in GPE . Therefore , the representative of ORG considers that , in order to protect the children ’s interests and well - being , it is necessary to dismiss the petitioner ’s request as unfounded .

In these proceedings , instituted following the request of the petitioner for the return of the children , the court has to apply the Ratification of the Hague Convention ( Civil Aspects of International Child Abduction ) Act .

Section CARDINAL(CARDINAL ) of that LAW provides that the court will refuse to order the return of a child if he or she is settled in the new environment .

According to evidence taken , it was established that the parties married on DATE in GPE , in GPE . During the marriage , PERSON was born on DATE , GPE on DATE and GPE on DATE . The parties came with their CARDINAL children to live in GPE , in PERSON .

In the acrimony during the [ DATE [ the petitioner ] verbalised the wish to end their life together . [ She ] left the common household and went to live in GPE . At that time the children were in GPE , visiting their paternal grandparents . Upon her arrival in GPE the petitioner immediately went to collect the children and did not allow the father to take them back to GPE , even though the children wanted to go to GPE and had to finish another school term [ there ] .

[ In ] DATE [ DATE ] the children , together with their paternal grandparents , came to [ GPE to ] spend DATE of DATE at the seaside . After returning from the seaside , the children came to live in PERSON . According to the counterparty ’s statement , which the petitioner acknowledged , the CARDINAL older children had refused to return to GPE , expressing the wish to stay in PERSON .

From the enclosed certificates of domicile issued by the [ police authorities ] it was established that all CARDINAL children have registered domicile on the territory of GPE , at the address ... in PERSON ... as of DATE . Therefore , the petitioner ’s arguments that the children have registered domicile only in GPE are incorrect .

In the present case the court has not yet rendered a final decision in the [ parallel civil ] proceedings [ for divorce and child custody ] . However , that does not affect the adoption of the decision on the request for the return of the children on the basis of LAW on the Civil Aspects of International Child Abduction .

It is the opinion of this court that the father did not , without the knowledge and approval of the mother , abduct the children from the living environment in which they were settled . It is to be noted that the children have previously lived in PERSON , that PERSON finished the second grade of the elementary school in PERSON where she went to school until DATE third grade , and that PERSON also attended the first grade in the school in PERSON . It therefore follows that the children were retained in the place where they previously used to live . This school year GPE and GPE are again attending the elementary school in PERSON .

From the opinion of the psychologist at ORG it undoubtedly follows that it is not in the children ’s interests to change school again because they would have to re - adapt to [ new ] teachers , curriculum , schoolmates , etc . From the opinion submitted it is evident that the children have adapted to their current living environment and school setting , and that they have verbalised the wish to live with their father .

Given all the aforementioned [ considerations ] , this court , relying on LAW paragraph CARDINAL and LAW paragraph CARDINAL ( a ) and ( b ) of LAW on the Civil Aspects of International Child Abduction , refuses to order the return of the children , finding that the children have adapted without any problems to the environment in which they had previously lived and that , in the given circumstances , returning them to the mother in GPE would place them in an unfavourable position and expose them to psychological trauma , which certainly can not be to their benefit .

It is also to be noted that the children themselves , especially the CARDINAL older children , object to being returned to GPE .

Having regard to all the above , this court decides as [ indicated ] in the operative part . ”

On DATE the applicant appealed against the first - instance decision .

On DATE ORG ( PERSON u Vukovaru ) dismissed the applicant ’s appeal and upheld the first - instance decision , which thereby became final . The second - instance decision was served on the applicant ’s representative on DATE . The relevant part of that decision reads as follows :

“ The appellant claims that the aim of the [ Hague ] Convention is the prompt return of children to the country of their habitual residence , and that what is protected is the last status of the children .

In the appellant ’s opinion it was necessary to apply exclusively LAW paragraph CARDINAL of the said ORG and order the children ’s return forthwith .

The appeal is unfounded .

It was established that all CARDINAL children have registered domicile on the territory of GPE , at the address ... in PERSON ... as of DATE .

The first - instance court correctly found that the father did not without the knowledge and approval of the mother abduct the children from the living environment where they were settled because the children have previously lived in PERSON , [ where ] PERSON finished the second grade of elementary school ... and PERSON attended the first grade ...

The first - instance court relied on LAW paragraph CARDINAL ( a ) and ( b ) of the [ Hague ] Convention .

As rightly pointed out by the appellant , the first - instance court had erred in relying on LAW paragraph CARDINAL of that Convention because the children had been brought to GPE at DATE , whereas the proceedings [ for the return of children ] were instituted in DATE , that is , before the expiration of DATE referred to in DATE [ LAW .

However , this second - instance court finds that the first - instance court correctly applied LAW paragraph CARDINAL ( a ) and ( b ) of the [ Hague ] Convention , and , in the opinion of this court , also paragraph CARDINAL of that Article because the CARDINAL older children , whose views it is appropriate to take into account given their age , object to being returned .

Since the children have already adapted to life in the environment ( in which they have previously lived DATE before going to GPE ) there is a grave risk that their return would expose them to psychological trauma . The change of school would have traumatising effects on the CARDINAL older children if , during DATE , they were to be transferred to GPE , where the curriculum is completely different .

For these reasons the appeal is dismissed and the first - instance decision upheld . ”

On DATE , the applicant lodged a constitutional complaint alleging , inter alia , that her constitutional right to a fair hearing and to respect for her family life , guaranteed by LAW paragraph CARDINAL and LAW of LAW ( see paragraph CARDINAL below ) , had been violated . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint and served its decision on her representative on DATE . The relevant part of that decision reads as follows :

“ [ The complainant ] considers that the [ constitutional ] rights guaranteed in Articles CARDINAL paragraph CARDINAL , DATE , DATE , CARDINAL paragraph CARDINAL , DATE , DATE , DATE and CARDINAL of the LAW have been breached by the contested decision of the lower - instance courts .

Having regard to the arguments raised in the constitutional complaint ORG examined the contested decisions under LAW paragraph CARDINAL and LAW .

Having regard to the opinion of ORG ... and the fact that both older children ... ( GPE and GPE ) expressed the wish as to where and with which parent they wanted to continue living after [ their GPE ] divorce , and that they refuse to be separated from their father , ORG finds that the competent courts rendered the contested decisions by correctly assessing all the particular circumstances of the present case . ”

Meanwhile , on DATE ORG brought a civil action against the applicant in ORG seeking : ( a ) divorce ; ( b ) the right to have their children living with him ( hereafter : “ custody ” ) ; and ( c ) maintenance for the children . As in the above - mentioned proceedings for the return of children ( see paragraph CARDINAL above ) , ORG also participated in these proceedings as an independent intervener sui generis with a view to protecting the children ’s interests .

On DATE the court invited ORG to submit a report on the financial and family situation of the parties and to give its opinion on the issue of which parent the children would prefer to live with and on the contacts with the other parent .

On DATE the applicant responded to ORG ’s action . In her response she agreed to the divorce , contested ORG claim for custody and proposed instead that she be granted custody .

After having interviewed the children and GPE , and having carried out an inspection of his home on DATE , ORG submitted its report to the court on DATE . The report consisted of the opinion of a social worker and the opinion of a psychologist , who were both employed at the centre .

The relevant part of the opinion of the social worker reads as follows :

“ [ ORG ] justifies his current actions by his wish to afford his children a happy life . During the interview he repeatedly stated that after spending DATE in GPE , the children expressed the wish not to return to GPE any more . He did not stop his wife coming and seeing the children but she never came ... During the interview he did not try to portray [ her ] as a bad or irresponsible mother ... GPE verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy . He stated that that the children wished to remain living with him . He did not want to restrict his wife ’s contacts with the children . ... During the conversation ORG leaves the impression of an emotionally warm person . He does not appear to be a parent who would physically punish or behave inappropriately towards the children .

... by an on - site inspection it was established that the father had secured adequate housing and other conditions . He has a permanent source of income ... as he has a bar on the ground floor of the house [ where he and the children live ] where he works . [ Thus ] while working he stays [ physically ] very close to his family , which gives the children [ a sense of ] security .

It is evident that GPE and GPE have frequently changed school and that they started DATE by going to the elementary school in PERSON where , according to their father , they have adapted well . It is not in the interest of the children to frequently change school , schoolmates and teachers . The children should have stability . Every removal of the children from their habitual environment ( family or school setting ) is stressful and has consequences on the children . That requires additional efforts from the children to adapt to the new environment , [ the new ] school and to make new friends .

Given that the children ’s mother lives in GPE ... employees of ORG had no possibility to examine and establish [ her ] housing conditions and family situation and assess [ them ] and [ thus ] could not give an opinion on the possibility of contacts between the mother and the children at her place of residence in GPE .

Having regard to the foregoing , I am of the opinion that GPE , GPE and GPE should continue living with their father ... ”

The relevant part of the opinion of the centre ’s psychologist reads as follows :

“ This opinion was prepared on the basis of a psychological interview with ORG as well as on the basis of psychological examination of the children and the perusal of the documents available at the Centre .

An interview with the children was conducted . Their wish is that their parents live together , as most children in their situation do . They are aware that their parents are divorcing . They are not taking the side of [ either ] the father or the mother . GPE and GPE understand the family situation whereas GPE is at an age when her GPE situation is still not clear to her . The children express the wish to live with their father . They see their relationship with the father as closer and [ consider that ] they are more emotionally attached [ to him ] . They especially like the life in PERSON , that is , in a smaller community . The life in GPE differs to a significant degree from the life here . They have more free time , [ and ] meet with children of their age . They spend their free time playing , which is not the case in GPE , not because CARDINAL of the parents would prohibit or prevent them from doing so but because the pace of life is such . The parents and the children are not at home during DATE because they work and the children go to school , so they spend very little time together , which means a lot to the children . Here they are well accepted in school , they know the neighbours and generally the social network ( teachers , neighbours , children of their age ) works better . Moreover , it is not in the children ’s interest to change school anew , which is stressful because the children have to re - adapt to teachers , the curriculum and [ find new ] friends .

I am of the opinion that the children should remain living with their father given that GPE adequately takes care of their needs as well as of their education and upbringing . At the same time , the children verbalise their wish to live with their father . ”

As the applicant did not oppose the divorce , at the hearing held on DATE the court ruled that GPE ’s civil action was to be considered a joint petition for divorce . At the same hearing the applicant and ORG asked the court to adjourn the hearing so that they could agree on the issues of child custody , access rights of the non - custodial parent and maintenance .

At the hearing held at TIME DATE , DATE , that is , TIME after the hearing in the above - mentioned proceedings concerning the return of children ( see paragraph CARDINAL above ) , the parties informed the court that they had agreed that the CARDINAL older children would live with their father but that they could not reach an agreement on custody of their youngest child , GPE

The applicant ’s representative stressed that it was in GPE ’s interest , as she was DATE at the time , to live with her mother , to whom she was emotionally attached and with whom she had expressed the wish to live . She added that at that age the role of the mother was very important . Lastly , the applicant ’s representative reiterated that the applicant had not been involved in the family assessment procedure carried out by ORG , resulting in its report . In particular , she had not been interviewed or otherwise examined by its staff ( see paragraph CARDINAL above ) . She therefore invited the court to obtain a joint expert opinion from a psychologist and a psychiatrist with a view to establishing whether it was in GPE ’s best interests to live with her mother or with her father .

The representative of the social welfare centre stated that the applicant had not been involved in the family assessment procedure because she was a foreign national who lived abroad . After reiterating the findings made in the centre ’s report ( see paragraphs CARDINAL above ) , she added that the children were very emotionally attached to each other and it was therefore not advisable to separate them .

S.V. ’s representative argued that the court should respect the professional opinions expressed in the social welfare centre ’s report and that the children should not be separated . She added that her client was willing to allow the applicant to have longer and more frequent contacts with GPE , given that she was not burdened by school obligations . Lastly , GPE ’s representative opposed the proposal to obtain a joint expert opinion ( see paragraph CARDINAL above ) as it was not disputed between the parties that they were both capable of adequately taking care of the children .

After hearing the representatives of the parties and of the social welfare centre as the intervener , ORG at the same hearing first rejected the proposal by the applicant ’s representative to obtain a joint expert opinion , and then pronounced a judgment whereby it : ( a ) divorced the marriage between the applicant and ORG ; ( b ) decided that all CARDINAL children were to live with GPE ; ( c ) granted the applicant access ( contact ) rights ; and ( d ) ordered the applicant to regularly pay a certain amount of money as maintenance for their children . In particular , the court decided that the applicant should exercise her access rights by taking the children to her home in GPE on DATE ( or any other DATE if the parties agreed otherwise ) , as well as during DATE , DATE of DATE and during other holidays interchangeably .

In deciding on the issue of child custody , the court relied on the report of the social welfare centre ( see paragraphs CARDINAL ) . The relevant part of that judgment reads as follows :

“ The court rejected the second petitioner ’s [ the defendant ’s ] proposal to take evidence by obtaining a joint expert opinion from experts in psychology and psychiatry because it is undisputed between the parties that they both satisfy the conditions for assuming parental responsibility , with which the court agrees . Given that on the basis of the evidence taken it can reach a decision on the merits even without the proposed evidence , which would indicate whether the parents are fit to take care of the children , the court considered [ obtaining ] the opinion of an expert in psychiatry unnecessary and [ thus ] rejected that proposal , having regard to section CARDINAL(CARDINAL ) of LAW which requires that [ the civil ] proceedings be conducted without delays and with the least cost .

As regards their minor children , GPE and GPE , the parties reached an agreement that they would live with their father . However , the mother argued that it was in the [ best ] interests of [ their younger daughter ] GPE , who is DATE , to live with her as she was emotionally attached to her [ mother ] .

From the report of the social welfare centre it follows that the children wish , as do most children in their situation , the parents to live together in a harmonious relationship , that they are aware of the fact that their father and mother are divorcing , and that they are not taking the side of [ either ] the father or the mother . However , they expressed the wish to live with their father because they see their relationship with their father as much closer and are more emotionally attached to him . Furthermore , it follows from the report that the children like their life in PERSON , that is , [ a life ] in a smaller community where they have more free time , socialise with other children of their age [ and ] spend their free time playing , which is not the case in GPE . It further follows from the report that the children are well accepted in school and that it is not in the children ’s best interests to change school again , which is considered stressful as they would again have to adjust to [ new ] teachers , curriculum and schoolmates . Therefore , in the opinion of the social welfare centre , the children should remain living with their father given that he adequately takes care of their needs , their upbringing and education and that , at the same time , the children have verbalised the wish to live with their father .

At the hearing ... the representative of the social welfare centre stated that she maintained the opinion provided [ in the report of the social welfare centre ] and reiterated that the children were very attached to each other and that it would not be advisable to separate them .

The first petitioner [ the plaintiff ] stated at the same hearing that he did not dispute that the mother met the conditions to be awarded custody of the children but that he considered that it would be in the best interests of the children to live together , which was what the children wanted , and that he was willing to allow the second petitioner [ the defendant ] to maintain more extensive contact with GPE given that she was not burdened by school obligations .

When awarding custody it has to be taken into account that brothers and sisters with existing emotional connections should not be separated unless that is their wish or in their best interests . Given that according to the report of the social welfare centre the children have verbalised the wish to live together , the court , promoting the best interests of the child within the meaning of LAW and [ in accordance with ] the basic principles of LAW on the Exercise of Children ’s Rights , has decided to award custody to their father .

When deciding on the mother ’s access ( contact ) rights , the court has , having regard to the agreement of the parties that the mother shall exercise those rights in the manner proposed by the social welfare centre , but so that the mother takes the children to her home in GPE , [ decided ] that [ she should have contact with the children ] on DATE or DATE if the parties agree otherwise , as well as during DATE , DATE of DATE and during other holidays interchangeably . ”

On DATE the applicant and ORG signed a written agreement ( hereinafter : “ interim custody agreement ” ) regulating the applicant ’s access rights in the period until the first - instance judgment became final . They agreed that in that period the applicant would exercise her access rights according to the visiting schedule set forth in the first - instance judgment . In addition , the parties agreed that the applicant would immediately take their youngest daughter , GPE , with her to GPE and return her to GPE on DATE . However , on DATE the applicant did not return their youngest child to ORG , but retained her in GPE .

Meanwhile , on DATE the applicant appealed against the first - instance judgment . She argued that : ( a ) under LAW ( see paragraph DATE below ) the first - instance court was not allowed to proceed until the adoption of the final decision in the proceedings for the return of children ; ( b ) the first - instance court had not referred ORG and her to the mandatory mediation procedure before divorce , contrary to section DATE of LAW ( see paragraph CARDINAL below ) ; and ( c ) she had not participated in the family assessment procedure carried out by the social welfare centre . The applicant also reiterated her earlier argument that her younger daughter , GPE , was emotionally attached to her and was at an age when it was in her best interests to live with her mother , as her separation from the mother would be more detrimental than separation from her siblings . As regards her CARDINAL older children , the applicant emphasised that if they really wanted to remain living with their father in GPE , she was prepared to respect that wish . However , the decision on their custody should not have been made before the decision in the return proceedings .

By a judgment of CARDINAL DATE ORG dismissed an appeal lodged by the applicant and upheld the first - instance judgment , which thereby became final . The second - instance judgment was served on the applicant ’s representative on DATE . The relevant part of that judgment reads as follows :

“ In her appeal the appellant argues that ... the [ first - instance ] court was not allowed to proceed in these [ civil ] proceedings until the final resolution of the [ non - contentious ] proceedings for the return of wrongfully retained children pending before the same court , in accordance with LAW . The purpose of that Convention was that children were returned to the ORG from which they had been abducted . Only then should proceedings for custody have been conducted , given that the children had been uprooted from the milieu in which they had lived hitherto .

[ The appellant ] also argues that she did not participate in the [ family assessment ] carried out by ORG centre . She considers that the youngest child GPE was very emotionally attached to her and that the [ first - instance ] court should have taken that into account .

As the parties , however , did not agree on custody in respect of their youngest child , GPE , the court , deferring to the opinion of the social welfare centre and respecting the wishes of the children , decided that she should remain living with her father , brother and sister in PERSON .

In particular , during an interview with the expert team of ORG the children expressed the wish to live with their father because they considered their relationship with the father closer , they liked the life in PERSON [ that is ] in a smaller community where they had more free time , spent time with children of their age , spent free time playing which was not the case in GPE , and also because they went to school here where they were well accepted .

From the report of ORG it follows that the children are very attached to each other and that it would not be wise to separate them and change their environment , which corresponds to the children ’s wishes .

Since the children verbalised the wish to live together and given that GPE did not yet have school obligations – which made it possible for her to maintain more extensive contacts with her mother , if the parents agreed – the first - instance court , endorsing the best interests of the child within the meaning of LAW and [ in accordance with ] the basic principles of LAW on the Exercise of Children ’s Rights , correctly decided that the children should remain living with their father [ while ] leaving open the possibility that this decision could be altered if circumstances change .

The case file also contains certificates of domicile in respect of all the parties’ children from which it is evident that their registered address is in PERSON since DATE . In any event , the whole family previously lived together in PERSON .

Having regard to the above , the appellant ’s argument that she was prevented from participating in the assessment carried out by the social welfare centre is unfounded because she participated in the proceedings before the [ first - instance ] court , as did the father , where the representative of the social welfare centre was present and where the parents reached an agreement on the custody [ of the children ] except GPE Given that an agreement was reached as to where the children would live , even if they go to GPE on DATE to maintain contact with their mother , it could not be said that they were abducted or uprooted from the milieu in which they were living , particularly taking into account the wishes of the children and the fact that the CARDINAL older children go to school in PERSON . ”

The applicant then , on DATE , lodged a constitutional complaint alleging , inter alia , that her constitutional rights to a fair hearing and to respect for her family life , guaranteed by LAW and LAW of LAW ( see paragraph CARDINAL above ) had been violated .

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint and served its decision on her representative on DATE . The relevant part of that decision reads as follows :

“ ... the report of ORG of DATE and the opinion of a psychologist are enclosed with the case file of the first - instance court . Both [ documents ] come to the same conclusion that the children of the parties should continue living with their father after the divorce .

At the main hearing held in the case on DATE both parties proposed that the CARDINAL older children ( GPE and GPE ) remain living with their father and that [ the youngest child ] GPE remain living with her mother – who lodged the constitutional complaint . At that hearing the complainant as the defendant did not ask for the application of LAW on the Civil Aspects of International Child Abduction .

ORG considers that in every [ set of ] proceedings concerning custody of children the best interests of the child must be a primary consideration .

The Constitutional Court finds that ... ORG undertook the necessary steps before adopting the report concerning custody of the children .

The proposal expressed in the report of ORG that all CARDINAL children should continue living with their father after the divorce is , after all , in line with the opinion of the psychologist .

The proposal was based on the fact that both older children ( PERSON and PERSON ) had expressed the wish as to which parent they wanted to live with , whereas as regards the [ youngest child ] GPE it was established that she was ‘ still at an age where she does not completely understand her GPE situation , that all CARDINAL children were very emotionally attached to each other and that , [ while ] accepting the fact that their parents were divorcing , they wanted to continue living together , with CARDINAL parent .

In view of the above , ORG considers that the constitutional rights provided for in LAW paragraph CARDINAL and LAW , and the rights guaranteed by ORG and CARDINAL of LAW were not breached by the contested decisions .

ORG also notes that the legal views expressed in the contested judgments ... are primarily based on the best interests of the child and are also founded on the established principles of international law .

As regards the complainant ’s arguments that LAW on the Civil Aspects of International Child Abduction was applicable in the instant case , ORG finds correct the ... reasoning expressed in the contested judgment of ORG , which ... reads :

‘ ... Given that an agreement was reached as to where the children would live , even if they go to GPE on DATE to maintain contacts with their mother , it could not be said that they were abducted ... ’ ”

Given that the applicant did not respect the interim custody agreement of CARDINAL DATE ( see paragraph CARDINAL above ) and did not return GPE to GPE on DATE but retained her in GPE , on CARDINAL DATE GPE , relying on LAW , requested ORG , as ORG , to contact ORG , as ORG , with a view to returning GPE

DATE . On CARDINAL DATE the Graz First - Instance Court instituted proceedings relating to the applicant ’s request for return of the children .

On DATE the Graz First - Instance Court , relying on LAW paragraph CARDINAL ( b ) of LAW ( see paragraph CARDINAL below ) , dismissed ORG ’s request . It held that returning GPE to GPE would expose her to psychological harm or otherwise place her in an intolerable situation . In so deciding it relied on the opinion of an expert in psychology which suggested that separating GPE from her mother would have devastating consequences . The court added , obiter dictum , that ORG had breached LAW when it had decided on custody of the applicant ’s CARDINAL children before a final decision had been delivered on her request for the return of the children .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

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

The applicants lived with their parents in A , GPE . In DATE the first applicant joined ORG and left his home , and in DATE the second applicant went to live in GPE .

In DATE ORG , together with NORP paramilitary forces , gained control of A , which thus became a part of the “ GPE ” ( hereinafter “ the LOC ” ) .

On DATE CARDINAL unknown men took the applicants’ parents , GPE and GPE , from their home in GPE On DATE the bodies of the applicants’ parents were driven by municipal employees in a truck to the front of their house . The ORG uncle was called and he gave the municipal employees clothes for the burial of the applicants’ parents .

On DATE the A police carried out a search of a flat occupied by X in A and found an automatic gun , a hand gun and some bullets .

On DATE the A police interviewed police officers PERSON , GPE , PERSON , GPE , GPE , GPE and FAC The police officers , apart from PERSON , had been on duty at a checkpoint in FAC in A between TIME on DATE and TIME on DATE .

R.B. said that on DATE at TIME police officer X had asked him , PERSON , as his hierarchical superior , for permission to take a short leave of absence . He , PERSON , had granted the request . PERSON did not know when PERSON had returned to duty at the police station , but thought that he had seen him TIME .

M.S. said that at TIME on DATE a vehicle had approached the checkpoint and PERSON had stopped it . At that time he , PERSON , had been in the barracks . PERSON and PERSON had entered and asked him if he knew a police officer with a birthmark on his face or a ORG vehicle with the number CARDINAL as DATE on its registration plates , which he did not . At TIME , however , he stopped a ORG vehicle which had CARDINAL as DATE on its registration plates . The vehicle was driven by police officer X , who was known personally to GPE , PERSON and GPE confirmed that it was the same vehicle which had passed from the opposite direction at TIME

D.J. said that at TIME on DATE a vehicle of ORG make had approached the checkpoint and that he had stopped it . The driver had been dressed in the uniform of the civil police . PERSON ’s attention had been diverted by a vehicle which had come from the opposite direction and he had stopped it . At that moment the ORG had suddenly started up and left in the direction of PERSON told him that he had not had the time to fully examine the vehicle but that he had seen that the driver and the person in the front passenger seat were dressed in the uniforms of the civil police . He had also seen CARDINAL civilians in the back seat , a man and a woman . PERSON noted down the registration number of that vehicle . At TIME the same day police officer PERSON stopped a vehicle which had arrived from the direction of K and asked the other police officers on duty whether it was the same vehicle they had stopped at TIME , which D.J. confirmed . The only occupants were the driver and the person in the front passenger seat . PERSON asked them who the other passengers had been and where they had taken them . The driver said that the passengers had been GPE and GPE and that they had left them in a village .

M.T. and GPE confirmed the above events .

On DATE the A police interviewed X and Y , CARDINAL police officers . They both admitted that on DATE they had taken GPE and GPE in GPE ’s vehicle . On the outskirts of A the police had stopped them . However , the attention of the police had been diverted by another vehicle and X and Y had quickly driven away . They had taken GPE and GPE to the village of GPE said that there they had taken GPE and GPE out of the vehicle and started walking . He had been carrying an automatic gun and at CARDINAL point GPE had attempted to take it from him , resulting in a commotion in which the weapon had fired and killed GPE After that Y had shot and killed GPE Y said that X had killed GPE when they had arrived in J and then forced him , Y , to kill GPE

On DATE the A police lodged a criminal complaint with the B public prosecutor against X and Y , alleging that on DATE at TIME in J , a village near the town of A , they had killed GPE and GPE They had first driven the victims in GPE ’s vehicle to J and taken them out of the vehicle . X had then killed GPE with an automatic gun and Y had killed GPE with a hand gun .

On DATE the ORG opened an investigation in respect of X and Y on suspicion of killing GPE and GPE

On DATE an investigating judge of the ORG commissioned a ballistics report .

NORP In DATE the NORP authorities regained control of the town of A. In DATE ORG established ORG in LOC , PERSON and ORG ( “ ORG ” ) . On DATE the ORG mandate came to an end and the transfer of power to the NORP authorities began .

On DATE the A police interviewed PERSON , the brother of the late GPE , who told them that his brother and his brother ’s wife had been killed on DATE . Their bodies had been given to him by the police of the “ GPE of Krajina ” and he had been allowed to bury them .

On DATE the C police interviewed PERSON , who said that on DATE he had been on duty , together with PERSON , at the entrance to village J. At TIME he and PERSON had been walking towards a ramp by the barracks where all patrols had their meeting point and had heard a vehicle being driven , followed by several gun shots and then a vehicle starting up again . When they arrived at the meeting point they found Lj . Č. , PERSON and GPE there , who told them that “ CARDINAL fools [ had ] just brought CARDINAL people in a car and killed them by the road . ” None of the officers on patrol dared go to the crime scene . Soon they all went home . In TIME CARDINAL DATE the police from A came to ORG house and took him to A police station , where they interviewed him and told him that X and his friend had killed GPE and his wife . He had heard that X had moved to GPE .

On DATE the C police interviewed the applicants , who had learned from GPE , who lived with their parents during the relevant period , that X and Y had been charged with the killing of the applicants’ parents .

On DATE an investigating judge of ORG ( PERSON u C ) ordered an investigation concerning X and Y , who were not available to the NORP authorities , on suspicion of killing GPE and GPE An international arrest warrant was also issued against the suspects , who had absconded .

On DATE ORG asked ORG whether extradition proceedings would be instituted against the suspects .

On DATE ORG in GPE informed the NORP authorities that ORG in GPE , GPE , had a valid location for Y. On DATE ORG informed ORG , asking the latter to institute proceedings for ORG ’s extradition . On DATE ORG asked ORG for the relevant documents with a view to seeking ORG ’s extradition from GPE authorities . All the evidence from the case file was translated into LANGUAGE and on DATE ORG sent a “ request for [ Y ’s ] temporary arrest ” to ORG through diplomatic channels .

On DATE ORG informed ORG that ORG had requested some additional documents . On DATE ORG sent the requested information and documents to ORG .

It appears that on CARDINAL and DATE the NORP and GPE authorities held consultations in GPE in connection with the extradition of Y.

On DATE the GPE State Attorney ’s ORG again asked ORG to seek ORG ’s extradition . On DATE ORG sent additional documents to ORG in connection with ORG extradition .

NORP In DATE ORG asked ORG for legal assistance in connection with the criminal investigation pending against Y in GPE on charges of attempted procurement of GPE citizenship by fraud , and fraud and misuse of visas , permits and other official documents . They asked for all documents related to any criminal offences Y might have committed . This request was forwarded to ORG on DATE .

On DATE the State Attorney ’s ORG forwarded the requested documents , translated into LANGUAGE , to ORG .

In DATE ORG agreed that an international arrest warrant should be issued in respect of X.

On DATE an investigating judge of ORG asked the competent court in GPE to hear evidence from X in connection with the killing of GPE and GPE On DATE the NORP authorities asked for a certified translation of that request and all relevant documents into the NORP language .

On DATE ORG sent a note to ORG to the effect that , according to an agreement between GPE , each State party had the right to communicate in its own language and to submit documents in that language without the need for translations .

On DATE the NORP authorities heard evidence from X. He said that the criminal proceedings against him and Y for the murder of GPE and GPE had been instituted in DATE in ORG and that they had been acquitted . He also denied any involvement in the killing of GPE and GPE On DATE his statement was forwarded to the NORP authorities .

On DATE the applicants brought a civil action against the ORG in ORG ( PERSON ) , seeking non - pecuniary damages in the amount of CARDINAL NORP kuna ( HRK ) each ( MONEY ( ORG ) ) , in connection with the killing of their parents . They relied on sections CARDINAL and CARDINAL of the DATE LAW .

On DATE ORG granted the ORG claim and awarded them each HRK CARDINAL,CARDINAL ( about LAW ) , finding that the killing of the applicants’ parents had been an act of terror . This judgment was reversed by ORG on DATE . The applicants were also ordered to pay the ORG HRK CARDINAL ( about EUR CARDINAL ) in costs , comprising the fees chargeable for the ORG ’s representation by ORG . The relevant part of that judgment reads as follows :

“ The plaintiffs in the first - instance proceedings based their claim for damages on the provisions of the DATE LAW .... It is necessary to point to the content of section CARDINAL of that Act , which provides that the obligation to compensate for damage exists irrespective of whether the person responsible has been identified , criminally prosecuted or found guilty . However , having regard to the correct establishment of the facts by the first - instance court , which found that the events at issue had occurred on DATE in the village of J , in the then occupied territory of GPE which at that time was under the control of illegal formations of the “ GPE and outside the control of GPE and its lawful bodies , the appellant ’s submission that [ the killing of the plaintiffs’ parents ] ... amounted to war - related damage is well - founded .

Section CARDINAL of the Act on the Assessment of War - related Damage ... provides that war - related damage is damage caused by enemy or illegal groups , or legal bodies of GPE , as well as accomplices of these groups and bodies , where that damage occurred directly or indirectly at the time specified in CARDINAL of that LAW ( from DATE until the end of hostilities and war operations conducted against GPE ) . Therefore , given the nature , place and time of the events at issue ( the killing of innocent civilians in the occupied territory of GPE during the Homeland war ) , it is to be concluded that the events at issue are to be legally classified as war - related damage and that the appellant is not responsible for them or for the damage thus caused .

This judgment was upheld by ORG on DATE . The court endorsed ORG finding that the killing of the applicants’ parents amounted to war - related damage and added , in so far as relevant , the following :

“ Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [ both ] imply [ an act of ] violence , the act of damage [ in the present case ] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war - related damage for which the defendant is not liable . This is because the damage did not occur in the territory under the de facto sovereignty of GPE but in the then occupied territory , where there was no possibility for lawful action by the bodies of GPE ; this circumstance excludes the otherwise objective liability of the defendant . Furthermore , the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order ( this being the aim characteristic of an act of terror ) but also involved the use of force , killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of GPE and preventing its lawful bodies from functioning .

On DATE the applicants lodged a constitutional complaint . They argued , inter alia , that in a number of its previous judgments ORG had recognised the plaintiffs’ right to compensation for damage caused by death during the Homeland War in GPE , and cited CARDINAL judgments of that court adopted DATE ( see paragraph CARDINAL below ) . The constitutional complaint was dismissed on DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Dmitry Dedov;Guido Raimondi;Helena Jäderblom;Iulia Motoc;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Síofra O’Leary;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Pere Pastor Vilanova

The applicants , a married couple and their son , were born in DATE , DATE and DATE respectively .

The applicants were brought up in GPE . Since DATE the husband ( the first applicant ) had run his own construction and transport business with exclusively NORP clients and had had his office at GPE military base “ GPE camp ” ( seemingly referring to ORG ) . Several of his employees had on occasion been warned not to cooperate with the NORP .

On DATE the first applicant was the target of a murder attempt carried out by ORG . He had to stay in hospital for DATE . There , unknown men asked for him , after which he was treated in CARDINAL different hospitals .

In DATE his brother was kidnapped by ORG members , who claimed that they would kill him because of the first applicant ’s collaboration with the NORP . His brother was released through bribery DATE and immediately fled from GPE . The applicants fled to GPE and stayed there until DATE , before returning to GPE .

Soon afterwards , ORG members placed a bomb next to the applicants’ house . However , it was detected by the first applicant ’s wife ( the second applicant ) , and the NORP forces arrested the perpetrator . During interrogation , the perpetrator confessed that he had been paid by ORG to kill the first applicant and disclosed the names of CARDINAL people who had been designated to watch the applicants . Thereafter , the applicants moved to GPE , although the first applicant continued his business in GPE . During this time , ORG destroyed their home and the first applicant ’s business stocks .

In DATE the applicants returned to GPE . In DATE the first applicant and his daughter were shot at when driving . The daughter was taken to hospital , where she died . The first applicant then stopped working and the family moved to a series of different locations in GPE . The first applicant ’s business stocks were attacked CARDINAL times by ORG members , who had threatened the guards . The first applicant stated that he had not received any personal threats since DATE as the family had repeatedly moved around . The son ( the third applicant ) had spent most of his time indoors for fear of attacks and had only attended school for his final examinations . The applicants had never asked the domestic authorities for protection , fearing that the authorities lacked the ability to protect them and might disclose their address , on account of ORG ’s collaboration with the authorities . The applicants maintained that , in the event of their return to GPE , they risked persecution by ORG and that the first applicant appeared on ORG death list .

On DATE the first applicant applied for asylum and a residence permit in GPE . On DATE his application was rejected since he was registered as having left the country .

On DATE the first applicant applied anew for asylum and a residence permit in GPE , as did the other applicants on DATE . As to their state of health , the first applicant still had an open and infected wound on his stomach where he had been shot in DATE . They submitted several documents , including identity papers , a death certificate for the first and second ORG daughter and a medical certificate for the first applicant ’s injury .

All CARDINAL applicants were given an introductory interview by ORG ( Migrationsverket ) on DATE . Subsequently , the first and second applicants were given a further interview on CARDINAL DATE , which lasted CARDINAL . The third applicant was interviewed briefly for a second time and the first applicant was interviewed a third time . The applicants were assisted by ORG - appointed counsel .

On DATE ORG rejected the applicants’ asylum application . In respect of the NORP authorities’ ability to provide protection against persecution by non - State actors , the ORG stated :

Every citizen should have access to police authorities within a reasonable visiting distance . During DATE the police authorities have taken numerous measures to fight against corruption , clan and militia connections and pure criminality within the police .

The current country information , however , shows that there are serious shortcomings in the police ’s work on crime - scene investigations and inquests . CARDINAL of the reasons is probably that many police officers are relatively new and lack experience , and that it takes time to introduce a new method of investigation based on technical evidence . This problem is naturally accentuated by the fact that many individual police officers live under a threat emanating from different terrorist groups , which is likely to diminish their effectiveness . Nevertheless , the current country information shows that the number of suspects who have been prosecuted during DATE has increased significantly . Even if CARDINAL of all suspects are eventually prosecuted , this is still an improvement .

The NORP security forces have been reinforced significantly and no longer have any shortcomings in human terms . Instances of police infiltration , which were previously widespread , have decreased significantly . The leading representatives of the police authority have expressed both their willingness and their ambition to maintain general security in GPE . The current country information also shows that it has become more difficult for ORG GPE to operate freely in GPE and that there has been a significant decline in sectarian violence . DATE violence is mainly aimed at individual targets , especially civil servants , police , security forces and some minorities .

Regarding the assessment of the applicants’ refugee status , as well as their need for alternative protection , the ORG held as follows :

ORG notes that [ the first applicant ] had a contract with the NORP until DATE . For this reason [ the first applicant ] has been exposed to CARDINAL murder attempts , his brother has been kidnapped and [ the first and second applicant ] ’s daughter has been killed . Furthermore , on several occasions , [ the first applicant ] has suffered physical damage to his house and stock . [ The first and second applicants ] are convinced that ORG is behind these abuses . The family are also afraid of ORG in the event of their return .

ORG notes that [ the first applicant ] stopped working for the NORP in DATE after his and [ the second applicant ] ’s daughter was killed . ORG further notes that [ the first applicant ] stayed in GPE until DATE and that [ the second and third applicants ] lived in GPE until DATE . During this period they were not exposed to any direct abuses . [ The first applicant ] has , however , been indirectly threatened on CARDINAL occasions by the people who guard his stock . Also , his stock has been attacked . [ The first and second applicants ] explained that they had managed to escape from abuses because they were in hiding and living in different places in GPE . ORG notes that [ the first and second applicants ] have CARDINAL daughters who live with their grandmother in GPE and a daughter who is married and lives with her family in GPE . These family members have not been exposed to any threats or abuses .

ORG notes that the abuses which the family claim to be at risk of being exposed to are criminal acts which their home country ’s authorities have a duty to prosecute . In order to decide whether the family can enjoy protection against the abuses they fear , ORG notes the following .

In accordance with the principle that it is for an asylum - seeker to justify his or her need for protection and that it is primarily for the applicant to provide relevant information for the assessment in the case , the onus must be on the applicant to plead that he or she can not or , owing to a severe fear of the consequences , for example , will not avail himself or herself of the protection of the authorities available in GPE . In addition , the applicant must justify this . The shortcomings which still exist in the NORP legal system are then to be noted and evaluated in the context of the individual assessment of each asylum case . The circumstances on which an applicant relies in arguing that protection by the authorities is deficient are first of all examined in the usual way . In those cases in which the alleged risk of persecution or other abuses does not emanate from the authorities , which as a rule is the case in GPE , the applicant must show what efforts he or she has made to be afforded protection by the authorities . The applicant can do this either by relying on evidence or by giving a credible account of events which appear plausible . When assessing the authorities’ ability to protect against threats of violence emanating from terrorist groups or unknown perpetrators in a specific case , the individual ’s situation , as well as the severity of the violence or threats , their nature and their local reach , must be assessed individually ( see ORG , Legal opinion on protection by the authorities in GPE , DATE , GPE DATE ) .

ORG considers that the family have been exposed to the most serious forms of abuses ( ytterst allvarliga övergrepp ) by ORG from DATE until DATE . Such abuses , however , took place DATE and nowadays it is more difficult for ORG to operate freely in GPE . [ The first and second applicants ] never turned to the NORP authorities for protection . [ The first applicant ] has stated that the NORP authorities lack the capacity to protect the family . Further , he has stated that he did not dare to turn to the authorities because he would then have been forced to disclose his address , which could have resulted in ORG being able to find him . [ The second applicant ] has stated that ORG works together with the authorities . As stated earlier , ORG finds that there has been a significant decline in instances of police infiltration , which previously were widespread . Against the background of the fact that [ the first and second applicants ] have not even tried to seek the protection of the NORP authorities , ORG considers that they have not made a plausible case that they would not have access to protection by the authorities in the event of potential threats from ORG upon returning to GPE .

Against this background , ORG finds that [ the first and second applicants ] have not made a plausible case that the NORP authorities lack the capacity and the will to protect the family from being exposed to persecution within the meaning of LAW , section CARDINAL , of LAW or to abuses within the meaning of LAW , section CARDINAL , first subsection , first point , first line , of LAW . ORG notes in this context that there is no armed conflict in GPE . ORG therefore finds that the family are not to be regarded as refugees or as being in need of alternative or other protection , for which reason the family do not have the right to refugee status or alternative protection status .

ORG notes that fierce tensions between opposing factions are prevalent in GPE . Nevertheless , against the background of the above reasoning , ORG finds that the family also can not be regarded as being otherwise in need of protection , within the meaning of LAW , section CARDINAL , first subsection , of LAW . The family do not therefore have any right to a status falling under any other need of protection .

In conclusion , ORG found that there were no grounds to grant the family residence permits . Against this background , ORG rejected the family ’s application and ordered their deportation from GPE on the strength of LAW , section CARDINAL , of LAW .

The applicants appealed to ORG ( Migrationsdomstolen ) , maintaining that the NORP authorities had been and would be unable to protect them . They had contacted the police following the fire to their home and the first applicant ’s business stock in DATE and DATE and the murder of the first and second applicants’ daughter in DATE , but thereafter they had not dared to contact the authorities owing to the risk of disclosing their residence . Together with their written submissions , they enclosed a translated written statement allegedly from a neighbour in GPE , who stated that a masked terrorist group had come looking for the first applicant on DATE at TIME and that the neighbour had told them that the applicants had moved to an unknown place . The neighbour also stated that , just after the incident , the first applicant had called him and been told about the incident . The applicants also submitted a translated residence certificate / police report allegedly certifying that their house had been burned down by a terrorist group on CARDINAL DATE . Furthermore , the applicants submitted a DVD containing an audiovisual recording of a public debate on television concerning corruption and the infiltration of ORG members within the NORP administration . The applicants mentioned in that connection that the first applicant had participated in the public debate , which had been broadcast on the ORG channel in GPE on DATE , that is to say , DATE . Finally , submitting various medical certificates , the applicants contended that the first applicant ’s health had deteriorated and that he could not obtain adequate hospital care in GPE .

ORG made submissions before ORG . It stated , among other things , that the documents submitted concerning the alleged incidents on DATE and CARDINAL DATE were of a simple nature and of little value as evidence .

On DATE ORG upheld ORG decision . Concerning the need for protection , the court held :

“ It is undisputed in the present case that the applicants’ grounds for protection must be examined in relation to GPE . The general situation in GPE is not such that as to confer the automatic right to a residence permit . Therefore , an individual assessment of the grounds for protection invoked by the applicants must be made .

The applicants have alleged that they are in need of protection upon returning to GPE as they risk being exposed to ill - treatment by ORG because [ the first applicant ] ’s company did contract - based work for the NORP in GPE until DATE .

ORG considers that the alleged events took place in the distant past , that it is difficult to see why there would still be a threat as [ the first applicant ] no longer performs such work , and that , in the event that some threats should still exist , it appears likely [ framstår som troligt ] that the NORP law - enforcement authorities are both willing and able to offer the applicants the necessary protection . In such circumstances , there are no grounds to grant the applicants any residence permit on the basis of a need for protection .

The applicants appealed to ORG ( Migrationsöverdomstolen ) . Their request for leave to appeal was refused on CARDINAL DATE .

On DATE the applicants submitted an application to ORG for a re - examination of their case . They maintained that the first applicant was under threat from ORG because he had been politically active . They enclosed a video showing the first applicant being interviewed in LANGUAGE , a video showing a demonstration , and a video showing a television debate .

On DATE ORG refused the applicants’ application . The applicants did not appeal to ORG against that decision .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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)

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in DATE and lives in ORG .

The applicant sued the ORG town administration and the ORG committee for municipal property management ( “ the property management committee ” ) , seeking to obtain free of charge the title to a plot of land under the office building he owned .

On DATE ORG ( “ the ORG ” ) held for the applicant and ordered the town administration to establish his title to the land at issue . The judgment was not appealed against and became final within the statutory DATE time - limit .

On DATE the ORG town administration lodged an application for supervisory review .

On DATE the Presidium of ORG quashed the judgment of DATE , considering that ORG had incorrectly established the facts of the case and erroneously applied the domestic material law . It consequently remitted the case to ORG for consideration anew .

On DATE ORG dismissed the applicant ’s claim in full . The applicant did not appeal and the judgment became final within the statutory DATE time - limit .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

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

The applicant was born in DATE and lives in GPE .

He instituted numerous sets of proceedings before the domestic courts at various times .

NORP In DATE ORG received several letters from the applicant , which contained extremely rude remarks about the judges involved in his cases ( including calling one of the judges “ a louse [ whose recusal was ] warranted by his basic knowledge of parasitology ” ) .

On DATE the court drew up an administrative offence report in respect of the letters , stating that the applicant was in contempt of court . The case was sent to ORG ( “ the ORG ” ) for examination .

On DATE ORG , sitting in a single - judge formation , held a hearing with the applicant ’s participation . According to TIME of the hearing , the applicant insisted on his vision of the situation as presented in his letters , which he did not consider to be rude . Having studied the case file and heard the applicant , the court ordered an in - patient forensic psychiatric examination of the applicant with a view to establishing whether he could be held legally accountable . The examination in question was to be carried out by ORG of ORG ( “ the psychiatric hospital ” ) . The judge relied on LAW and section CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) . The ruling stated that it was not amenable to appeal .

The applicant was taken by the police from the hearing room to the LOC police station , where he was held for TIME . He was then taken to the psychiatric hospital .

On DATE , DATE , the psychiatric hospital informed ORG that it would be unable to conduct a forensic psychiatric examination of the applicant , as ordered by the court , because there were no documents about his collateral history or personality in the case file . The applicant was discharged from the hospital without any documents having been issued concerning his psychiatric condition .

NORP On DATE the applicant lodged an appeal against the ruling of CARDINAL DATE . He submitted , in particular , that it had been in breach of his right to the presumption of good mental health and that such a ruling was not mentioned in the list of rulings a court was entitled to deliver under LAW . The applicant also referred to the statement contained in the impugned ruling that it was not amenable to appeal as another indication of its unlawfulness and arbitrariness .

On DATE the President of ORG instructed the police to collect information on the applicant ’s personality , which was required for the psychiatric hospital to establish his mental state . The police were instructed , in particular , to collect any documentation relating to psychiatric treatment or drug therapy received by the applicant , as well as character references for him from his relatives , neighbours and colleagues .

On DATE of the applicant ’s neighbours wrote quite positive character references about him for the police .

On DATE the local hospital informed the police that the applicant had no psychiatric medical history and was not under psychiatric monitoring .

On DATE the ORG dismissed the applicant ’s appeal against the ruling of DATE without examining it on the merits . It noted that the contested ruling concerned a procedural issue and was not amenable to appeal .

On DATE ORG requested the police to ensure that the applicant attended for his in - patient forensic psychiatric examination .

On DATE the police took the applicant back to the psychiatric hospital . The circumstances of the apprehension are unclear .

On DATE a senior expert at the forensic psychiatric examinations department of the psychiatric hospital wrote a letter to ORG in which he noted that some additional documents were required in connection with the applicant ’s examination : a character reference from his former employer and detailed information about his mental state from his cousin and ex - wife . Without that information it was considered impossible to carry out his examination .

On DATE the applicant ’s cousin explained the applicant ’s character and behaviour , without noting any particularities . He also stated that the applicant had never been married .

On DATE the board of experts delivered its report , according to which , “ given the complexity of the case and lack of clarity of the clinical picture ” , it was impossible to establish a diagnosis and to give an expert conclusion regarding the applicant ’s mental state . It was therefore recommended that he undergo another examination .

On DATE the applicant was discharged from the hospital without having received the expert report . According to him , one of the experts had assured him that he was in good mental health .

On DATE an official from the psychiatric hospital wrote to the applicant , in reply to his request for a copy of the report of CARDINAL DATE , stating that he should ask ORG for a copy of the report , as it had been sent there .

On the basis of the material in the case file , on DATE ORG ordered that the applicant undergo another in - patient forensic psychiatric examination . The applicant attempted to challenge that decision on appeal but was unsuccessful .

On DATE the psychiatric hospital returned the case file to ORG without having conducted the psychiatric examination in question . Referring to the respective order of ORG , it said that GPE Forensic Psychiatric Examinations or ORG should carry out any further forensic psychiatric examinations required in such complex cases .

On DATE ORG adjourned its hearing with a view to organising the applicant ’s further psychiatric examination and its financing .

On DATE the Deputy President of ORG enquired with the local ORG of ORG whether the latter could pay for the applicant ’s further psychiatric examination . The reply sent on DATE was that no such payment would be possible until the DATE budget had been approved .

On DATE the court ordered the applicant ’s outpatient psychiatric examination to be carried out by ORG .

Following numerous unsuccessful attempts to ensure the applicant ’s attendance , on DATE the hospital returned the case file to ORG without having complied with its order .

On DATE ORG discontinued the administrative offence proceedings against the applicant as time - barred .

The applicant appealed against that ruling . He sought the termination of the proceedings on the ground that no administrative offence had been committed .

On DATE the Dnipropetrovsk Regional Court of Appeal , following a hearing with the applicant ’s participation , rejected his appeal by a final ruling .

It appears from the case - file materials that on CARDINAL DATE the applicant instituted administrative proceedings in ORG ( “ the Zhovtnevyy Court ” ) against the psychiatric hospital . He sought that his hospitalisation and confinement in that hospital be declared unlawful and claimed CARDINAL NORP hryvnias ( ORG , at the time equivalent to QUANTITY ) in respect of non - pecuniary damage . The applicant has not submitted a copy of that claim to the ORG .

On DATE ORG allowed the applicant ’s claim in part . Relying , in particular , on LAW , the court concluded that the applicant ’s admission to hospital on DATE and DATE , as well as his psychiatric confinement from CARDINAL to CARDINAL DATE and from DATE to CARDINAL DATE , had been unlawful . More specifically , the court considered that the defendant had acted in breach of the presumption of the good mental health of the applicant . Furthermore , the hospital in question was only entitled to conduct forensic psychiatric examinations of detainees , whereas the applicant had not been in detention at the time of the events . The court also noted that , even though the applicant ’s examination had been ordered by a judicial decision , the hospital could have refused to carry it out . The applicant ’s claim for compensation in respect of non - pecuniary damage was , however , rejected .

On DATE ORG quashed the aforementioned judgment and terminated the proceedings on the ground that the case did not fall to be examined under the administrative procedure .

On DATE ORG dismissed the applicant ’s appeal on points of law against the ruling of DATE as belated .

On DATE ORG informed the applicant that it remained open for him to lodge a new appeal on points of law together with a request for renewal of the time - limit .

The case file before the ORG does not contain copies of the applicant ’s appeals on points of law or his requests for renewal of the time - limits for lodging those appeals .

It appears from the case file that on DATE the applicant brought another administrative claim against the psychiatric hospital before ORG . He requested that the court recognise as unlawful the hospital ’s refusal to provide him with a copy of the examination report of DATE ( see paragraphs CARDINAL above ) . The applicant also claimed UAH CARDINAL ( at the material time equivalent to about FAC ) in respect of non - pecuniary damage . The applicant has not provided the Court with a copy of that claim .

On DATE ORG allowed the applicant ’s claim in part . It recognised as unlawful the hospital ’s refusal to provide him with a copy of the examination report of DATE and awarded him ORG CARDINAL ( equivalent of about EUR CARDINAL ) in respect of non - pecuniary damage .

Both the applicant and the defendant appealed . The applicant claimed a higher award . The hospital argued , in particular , that the case did not fall to be examined in the administrative courts .

On DATE ORG upheld the ruling of the first - instance court . It noted that the hospital was a public health establishment and that the administrative courts were thus competent to deal with the case . The appellate court also stated that its ruling could be challenged on points of law before ORG .

The applicant has not informed the ORG whether he appealed on points of law against the ruling .

On DATE the applicant brought a civil claim against the psychiatric hospital before ORG , seeking compensation for non - pecuniary damage . He has not submitted a copy of his claim to the ORG .

On DATE ORG returned that claim to the applicant on the ground that it had no territorial jurisdiction to deal with it . It informed the applicant that he should lodge his claim with ORG , the district in which the respondent hospital was located .

The applicant appealed against the above ruling . He has not submitted to the ORG a copy of his appeal .

On DATE the Dnipropetrovsk Regional Court of Appeal upheld the ruling of CARDINAL DATE .

The applicant lodged an appeal on points of law .

DATE . On DATE ORG noted that the applicant had failed to pay the court fees and gave him until DATE to rectify that omission .

On an unspecified date in DATE the applicant requested that the ORG exempt him from the court fees . He has not submitted a copy of his request to the ORG . According to a summary of the request in the respective ruling of ORG ( see below ) , the applicant referred to the ORG ’s judgment on his earlier case ( no . CARDINAL , CARDINAL DATE ) , in which a violation of ORG CARDINAL and CARDINAL of the LAW , as well as LAW No . CARDINAL , had been found on account of the lengthy non - enforcement of an unrelated final domestic judgment in his favour .

On DATE ORG rejected the aforementioned request and dismissed the applicant ’s appeals on points of law .

On DATE the applicant complained to ORG against some judicial officials involved in his cases and against the police officers involved in his taking him to hospital for psychiatric examination . The applicant did not provide the ORG with a copy of the complaint .

On DATE the prosecutor refused to open a criminal case in respect of the applicant ’s complaint . The case file does not contain a copy of that ruling .

On DATE the Dnipropetrvosk ORG quashed the prosecutor ’s refusal and ordered an additional investigation .

On DATE ORG once again refused to open a criminal investigation into the matter . It was noted in its ruling , in particular , that the applicant had disregarded numerous written summonses and telephone calls by the investigator .

The applicant alleged that while he had been in hospital , some money had been stolen from his flat . When he had returned home he had allegedly discovered a briefcase there containing personal documents belonging to a person unknown to him . The applicant complained to the police .

On DATE the police opened a criminal case in respect of the alleged theft of the applicant ’s property .

There is no further information on that investigation in the case file .


CASE OF SAMADBAYLI AND OTHERS v. AZERBAIJAN

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)

NORP The applicants’ years of birth and places of residence are listed in the Appendix .

CARDINALGahramanli and Others v. PERSON ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

The applicants were independent self - nominated or opposition candidates in the parliamentary elections of CARDINAL DATE ( see Appendix ) . All the applicants lost the elections in their respective constituencies .

After DATE , the applicants lodged complaints with ORG ( “ the ORG ” ) concerning a number of irregularities in their respective constituencies that had allegedly taken place during and/or before DATE . Some of them also lodged identical complaints with the respective ORG ( “ the ConECs ” ) . They complained about various types of irregularities , including interference by public officials , illegal campaigning , obstruction and intimidation of election observers , ballot - box stuffing , repeated voting by the same individuals , irregularities in applying election ink , incorrect vote - counting procedures , inconsistencies in precinct election results records indicating a falsely inflated voter turnout , and so on . In support of their allegations , the applicants submitted various types of evidence documenting specific instances of the irregularities complained of , including statements made by election observers , video recordings and photographs .

The applicants who lodged a complaint with the respective ConECs did not receive any reply from them ( except in applications nos . CARDINAL , GPE , DATE , CARDINAL and CARDINAL ) . All of the ORG complaints were examined by the ORG which , on various dates ( see Appendix ) , issued decisions rejecting the ORG claims , providing reasoning similar to that in the ORG decision in PERSON and Others ( cited above , § § DATE ) .

The applicants lodged further complaints with ORG and ORG which , on various dates ( see Appendix ) , dismissed the ORG appeals , providing reasoning similar to that in their respective decisions in PERSON and Others ( cited above , § § DATE ) .

In the meantime , however ‒ and before ORG delivered its final decision concerning each complaint ( except in application no . CARDINAL/CARDINAL ) ‒ on DATE ORG confirmed the countrywide election results , including the election results in the applicants’ constituencies , as final ( ibid . , § CARDINAL ) .

At the material time Mr PERSON was representing not only the applicants in the present cases , but a total of twentyseven other applicants in cases concerning the DATE parliamentary elections and a number of applicants in other cases before the ORG .

On DATE criminal proceedings were instituted against Mr I. GPE , these being the subject of a separate application brought by him before the ORG ( application no . CARDINAL ) . On CARDINAL and CARDINAL DATE the investigation authorities seized a large number of documents from Mr I. GPE ’s office , including all the case files relating to the proceedings pending before the ORG which were in Mr PERSON ’s possession , comprising CARDINAL applications in total . The files relating to the present applications were also seized in their entirety . The facts relating to the seizure and the relevant proceedings are described in more detail in LOC v. GPE ( no . CARDINAL , § § DATE , DATE ) .

On DATE the investigation authorities returned a number of the case files concerning the applications lodged before the ORG , including the files relating to the present applications , to Mr PERSON ’s lawyer .