Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant , PERSON , born in DATE , is an NORP and NORP national . The second applicant , PERSON , born in DATE , is an NORP national . The applicants live in GPE ( GPE ) . They were represented before the ORG by PERSON , a lawyer practising in GPE .

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

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

NORP In DATE the second applicant , who had been living and working in GPE for DATE , entered into a relationship with ORG , an NORP national . From DATE they lived together in GPE ’s apartment in the PERSON GPE community . The first applicant , born in DATE , is the couple ’s daughter . Under NORP law the second applicant and ORG had joint custody of her .

NORP The relationship between GPE and the second applicant deteriorated . In DATE they had a violent dispute during which ORG allegedly hit the second applicant in the face . The second applicant did not report this incident to the NORP police . In DATE , following a further dispute during which ORG allegedly picked up the first applicant and shook her violently and spat at the second applicant , the applicants left PERSON ’s apartment .

On DATE PERSON requested ORG ( tribunale per i minorenni di GPE ) to award him sole custody of the first applicant and to issue a travel ban prohibiting her from leaving GPE without his consent .

On DATE the applicants travelled to GPE , where they took up residence with the second applicant ’s parents . It appears that on DATE ORG issued a travel ban in respect of the first applicant .

On DATE ORG lifted the travel ban in respect of the first applicant , granted preliminary joint custody of the child to both parents , and authorised her residence with her mother in GPE , having regard to her young age and close relationship with her mother . It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody . Moreover , the court granted GPE access rights twice a month in a neutral location , noting that the meetings should alternate between GPE and GPE and that the dates and arrangements should be agreed with the expert .

DATE and DATE M.A. met his daughter CARDINAL times at a family centre in GPE . According to the respondent Government , PERSON then declared that he would not visit his daughter any more , and he did not attend any meetings after DATE . The ORG also submitted that the second applicant cooperated with the expert appointed by ORG .

M.A. requested the first applicant ’s return under LAW . His request was forwarded via the respective central authorities in GPE and GPE to GPE ) , where the proceedings began on DATE . Subsequently , the court appointed an expert .

Meanwhile , on DATE ORG , at the second applicant ’s request , granted an interim injunction against ORG prohibiting him from contacting the applicants for DATE . The court noted that ORG had sent the second applicant CARDINAL threatening text messages , had called her by phone up to CARDINAL times per day and had sent her an e - mail showing a video of the post - mortem of a female corpse . The court also noted that ORG had not responded to its request to submit his arguments .

NORP On DATE the ORG dismissed PERSON ’s request for the return of the child under LAW . Referring to the expert ’s opinion and having regard to the very young age of the first applicant , the court found that her return would constitute a grave risk for her within the meaning of Article CARDINAL(b ) of LAW . The psychological expert opinion dated DATE had shown a stable and loving relationship between mother and child and had warned that the child ’s separation from her main caregiver would traumatise her and endanger her psychological development .

On DATE the Leoben Regional Court ( PERSON ) set aside that decision because PERSON had not been duly heard in the proceedings .

On DATE the Leoben ORG , having heard M.A. , again dismissed his application for the first applicant ’s return , referring to ORG decision of DATE .

On DATE the ORG dismissed an appeal by ORG , finding that the first applicant ’s return to her father and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article CARDINAL(b ) of LAW .

Meanwhile , in DATE the second applicant brought proceedings before LOC requesting to be awarded sole custody of the first applicant .

On CARDINAL DATE ORG held that it had jurisdiction with regard to custody , access and alimony issues in respect of the first applicant by virtue of Article PERSON ) of ORG Regulation CARDINAL/CARDINAL of CARDINAL DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ( “ ORG ” ) .

On DATE the same court granted preliminary sole custody to the second applicant , referring to the child ’s close link with GPE and a danger to her well - being upon a possible return to GPE .

On DATE ORG awarded the second applicant sole custody of the first applicant .

In the meantime , on DATE PERSON made an application to ORG for the first applicant ’s return under LAW .

NORP In its judgment of DATE , ORG , having held a hearing , ordered the first applicant ’s return to GPE . The child would live with her mother , the second applicant , should the latter decide to return to GPE with her . In that case the PERSON GPE social services were required to provide accommodation to the applicants . Moreover , a programme for the exercise of ORG ’s access rights would have to be established . If the second applicant did not wish to return to GPE , the first applicant was to stay with her father .

ORG found that it remained competent to deal with the case , as ORG had wrongly determined its jurisdiction under LAW ) of ORG . It noted that its previous decision of DATE had been designed as a temporary measure in order to re - establish contact between the first applicant and her father through access rights and to obtain a basis for an expert opinion for the decision on custody . However , the second applicant had failed to co - operate with the appointed expert and had refused a programme of access rights for the father prepared by the expert . The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child ’s best interests in a satisfactory manner .

It appears that the second applicant made written submissions in the proceedings before ORG and was represented by counsel at the hearing .

On DATE ORG issued a certificate of enforceability under LAW of ORG .

On DATE PERSON requested the enforcement of the return order .

On DATE , ORG dismissed PERSON ’s request . It noted that the second applicant was not willing to return to GPE with the first applicant . However , the first applicant ’s return to GPE without her mother would constitute a grave risk for the child within the meaning of Article CARDINAL(b ) of LAW .

On DATE the NORP ORG quashed that decision and granted ORG request for the enforcement of ORG order to return the child .

The Leoben Regional Court noted that under LAW a judgment refusing return under LAW was not relevant where the court which was competent pursuant to ORG had ordered the child ’s return in a subsequent judgment . It confirmed that ORG had been competent to issue the judgment of DATE , as the second applicant had unlawfully removed the first applicant from GPE and GPE had immediately requested her return . Moreover , ORG had submitted a certificate of enforceability under LAW of ORG in respect of the judgment at issue . The NORP courts therefore had to recognise the judgment and to enforce it . They did not have to establish anew whether the first applicant ’s return would be against her best interests . In any event , there was no indication that the circumstances had changed since ORG had given its judgment . It was for the court of first instance to order appropriate measures of enforcement .

The second applicant lodged an appeal on points of law with ORG ( Oberster Gerichtshof ) . She submitted , in particular , that the NORP courts were competent to deal with custody matters concerning the first applicant by virtue of LAW CARDINAL(b ) subparagraph ( iv ) of ORG , as ORG had accepted the child ’s residence in GPE in its decision of DATE . Moreover , the return order of ORG of DATE did not fall under LAW ) of that Regulation as it did not contain a decision on custody . Further , that judgment had not taken the child ’s best interests into account . The transfer of preliminary sole custody to the second applicant by the decision of LOC of CARDINAL DATE prevented the enforcement of the return order pursuant to Article CARDINAL ) of ORG . Finally , the circumstances had changed after ORG had issued its judgment of DATE in that ORG had refused to exercise his access rights . The first applicant had therefore not seen her father since DATE . The enforcement of the return order would therefore violate the child ’s best interests .

On DATE , ORG requested a preliminary ruling by ORG of ORG ( CJEU ) , submitting a number of questions concerning the application of ORG .

On DATE the ORG issued a preliminary ruling ( C-CARDINAL/CARDINAL ORG ) confirming the jurisdiction of the NORP courts in the case and the enforceability of ORG judgment of DATE . It found , in particular , that

( CARDINAL ) a provisional measure [ as the CARDINAL issued by ORG in DATE ] did not constitute a ‘ judgment on custody that does not entail the return of the child’ within the meaning of Article CARDINAL(b ) subparagraph ( iv ) of ORG and could not be the basis of a transfer of jurisdiction to the courts of the Member ORG to which the child had been unlawfully removed ;

( CARDINAL ) Article CARDINAL ) of the ORG applied to a judgment of the court with jurisdiction ordering the return of the child , even if it was not preceded by a final judgment of that court relating to rights of custody of the child ;

( CARDINAL ) Article CARDINAL ) subparagraph ( CARDINAL ) of the ORG had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member ORG of enforcement which awarded provisional rights of custody , could not preclude enforcement of a certified judgment delivered previously by the court which had jurisdiction in the Member ORG of origin and had ordered the return of the child ;

( CARDINAL ) enforcement of a certified judgment [ ordering the child ’s return ] could not be refused by the Member State of enforcement because , as a result of a subsequent change of circumstances , it might be seriously detrimental to the best interests of the child . Such a change had to be pleaded before the court which had jurisdiction in the Member ORG of origin which also had to hear any application to suspend the enforcement of its judgment .

On DATE ORG dismissed the second applicant ’s appeal on points of law . It noted that according to the ORG ’s ruling the NORP courts’ only task was to take the necessary steps for the enforcement of the return order , without proceeding to any review of the merits of the decision . If the second applicant asserted that the circumstances had changed since ORG had given its judgment , she had to apply to that court , which would also be competent to grant such an application suspensive effect .

On DATE ORG refused to grant a request by the second applicant for the enforcement of its judgment of DATE to be stayed . Referring to that decision , PERSON requested ORG to order the first applicant ’s return to GPE .

On DATE the ORG requested ORG to submit evidence that appropriate accommodation would be [ made ] available to the applicants [ by the social services of the PERSON GPE community ] , as required by ORG judgment of DATE .

By a judgment of CARDINAL DATE ORG withdrew the second applicant ’s custody rights and awarded sole custody of the first applicant to her father , PERSON It further ordered the first applicant ’s return to her father in GPE , to reside with him in the PERSON GPE community . The court ordered the PERSON GPE social services – if need be in co - operation with the neuro - psychiatric service of the local health authority – to see to maintaining contact between the first and the second applicants and to give the first applicant linguistic and pedagogic support for her integration into her new family and social environment .

ORG referred to its decision of DATE , which had aimed at preserving the first applicant ’s relationship with her mother while re - establishing contact with her father , noting that such attempts had failed owing to lack of co - operation from the second applicant . It had therefore ordered the first applicant ’s return to GPE in its judgment of DATE . It further considered that the second applicant had unlawfully removed the first applicant to GPE and had subsequently deprived her of having any contact with her father without good reason . She had thus acted against the child ’s best interests . It therefore found that sole custody was to be awarded to the father . Since so far any attempts to establish contact step by step had failed , the first applicant was to reside with him immediately . The court noted that this would entail a difficult transition for the first applicant but considered that the damage of growing up without her father would weigh even heavier . The court considered that the social services would have to give the first applicant pedagogical and linguistic support to settle in her new family and social environment and to maintain contact with her mother . Finally , the court considered that the first applicant ’s return would not entail any grave risk of psychological or physical harm within the meaning of LAW of ORG , which in turn referred to LAW .

The second applicant did not appeal against the judgment .

On DATE M.A. notified the NORP ORG of ORG judgment of DATE . He also submitted a certificate of enforceability under LAW of ORG .

On DATE the ORG dismissed PERSON ’s request for the order of the first applicant ’s return . It considered that he had failed to submit proof that appropriate accommodation would be available for the first and second applicants upon their return .

M.A. appealed . He submitted , in particular , that ORG judgment of DATE had granted him sole custody of the child and had ordered her return to GPE , where she would reside with him .

On DATE the ORG allowed ORG ’s appeal and ordered the second applicant to hand over the first applicant to her father PERSON within DATE , noting that enforcement measures would be taken in case of failure to comply .

ORG found that the condition that appropriate accommodation be made available to the applicants was no longer valid : in its judgment of CARDINAL DATE ORG had awarded sole custody of the first applicant to GPE and had ordered that she return to reside with him . PERSON had submitted that judgment , together with a certificate of enforceability under LAW of ORG . The second applicant ’s obligation to return the first applicant to her father thus resulted directly from ORG judgment of DATE . Finally , the ORG noted that the custody decision of ORG of DATE could not prevent the enforcement of ORG judgment . The latter had retained its competence to rule on custody , as the second applicant had unlawfully removed the first applicant to GPE and PERSON had made a timely request for her return under LAW .

The second applicant did not comply with the return order . She lodged an extraordinary appeal on points of law with ORG .

On DATE ORG rejected the second applicant ’s extraordinary appeal on points of law as the case did not raise an important legal issue . It noted that the return order had become final and was enforceable . The first - instance court now had no other task than to define the steps to be taken to enforce the return order . The ORG had clarified that where there was a certificate of enforceability under LAW ( CARDINAL ) of ORG , the requested court had to proceed to the enforcement . Any questions relating to the merits of the return decision , in particular the question whether the requirements for ordering a return were met , had to be raised before the courts of the requesting ORG in accordance with the laws of that ORG . Consequently , any change in circumstances affecting the question whether a return would endanger the child ’s well - being had to be raised before the competent court of the requesting ORG . The second applicant ’s argument that the first applicant ’s return would lead to serious harm for the child and entail a violation of LAW was therefore not relevant in the proceedings before the NORP courts but had to be raised before the competent NORP courts .

On DATE the Leoben ORG held that it was not competent to conduct the enforcement proceedings and transferred the case to ORG , due to a change of the applicants’ place of residence .

On DATE the Wiener ORG issued a decision on the next steps to be taken in the enforcement proceedings . The judge noted , in particular , that a continuation of the path chosen by both parents , namely the use of the child in the conflict between them , would lead to the child ’s traumatisation , especially if the GPE unbending position eventually led to an enforcement of the return order by coercive measures as a last resort . He noted that the best interests of the child required the parents to reach a workable compromise . The judge therefore proposed that a hearing in the presence of both parents be organised in order to seek a constructive solution . Accordingly , he requested both parents to indicate within DATE whether they were ready to participate in the proposed meeting . The judge further noted that if the parents were not willing to participate in the hearing , the enforced return of the child would be arranged . In this context the judge stated that any trauma suffered by the first applicant because of such enforcement would then have to be laid at the door of the parents . Moreover , the child ’s father would be required to find a way to deal with the trauma caused to the child .

On DATE PERSON informed GPE that he was not ready to participate in a hearing with the second applicant , but wanted to arrange the return of the child with the least traumatic impact possible . He therefore suggested that he come to GPE with his parents to pick up the child or , alternatively , that the second applicant travel to GPE with the child to hand her over . He therefore requested the second applicant to either fix a pick - up date in GPE or to inform him of a date when she would bring the child to GPE .

On DATE the second applicant informed ORG that she was ready to take part in the proposed hearing . She also informed the court that she had appealed against the decision which had transferred the case from ORG to GPE . Consequently , the decision establishing GPE competence had not become final . She therefore requested the court to await the decision on her appeal before taking any further steps .

Finally , the second applicant argued that if enforcement measures had to be taken , they must be taken in accordance with NORP law pursuant to LAW . NORP law , namely section CARDINAL(CARDINAL ) of the Non - Contentious Proceedings Act , allowed the court to refrain from an enforcement if the child ’s interests were at risk . The second applicant drew attention to the fact that the first applicant , who was DATE , had not seen her father since DATE and did not speak NORP , while PERSON did not speak NORP . A return as envisaged by ORG would traumatise the child , as would the application of any coercive measures . The only way of avoiding this was to build up the relationship between the first applicant and her father step by step . She therefore requested GPE to order PERSON to come to GPE as often as was necessary to establish a relationship with the child and to organise her return to GPE without having recourse to coercive measures .

In a decision of CARDINAL DATE the Wiener ORG ordered the second applicant to hand over the child to her father by DATE and stated that in case of failure to comply coercive measures would be applied . ORG noted that it was for the second applicant to choose whether she would accompany her daughter to GPE or whether she would fix a date within that time - limit for the father to pick up the child in GPE . Furthermore , ORG referring to ORG judgment of CARDINAL DATE , repeated that it was for the NORP courts to examine any question relating to the child ’s well - being . It noted finally , that the deadline for handing over the child had been fixed in such a way as to allow her to finish DATE in GPE .

Since their arrival in GPE in DATE the first applicant has been living with the second applicant . In DATE the second applicant entered into a relationship with a new partner . She gave birth to a son in DATE . The second applicant , her new partner and the CARDINAL children are living in a common household . It appears that the first applicant does not speak NORP and has not seen her father since DATE .

CARDINAL sets of criminal proceedings are pending against the second applicant before ORG . In the first set of proceedings ( no . MONEY ) , she is accused of removal of a minor and failure to comply with court orders . The second set of proceedings ( no . CARDINAL/CARDINAL ) concerns charges of abduction of a minor to another country .

The relevant provisions of LAW read as follows :

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

The relevant provisions of ORG ( ORG ) No . CARDINAL of DATE concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ( “ GPE IIa Regulation ” ) [ , repealing ORG ( ORG ) No . DATE , ] read as follows :

“ ( CARDINAL ) In cases of wrongful removal or retention of a child , the return of the child should be obtained without delay , and to this end LAW DATE would continue to apply as complemented by the provisions of this Regulation , in particular LAW . The courts of the Member ORG to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific , duly justified cases . However , such a decision could be replaced by a subsequent decision by the court of the Member ORG of habitual residence of the child prior to the wrongful removal or retention . Should that judgment entail the return of the child , the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member ORG to or in which the child has been removed or retained .

( CARDINAL ) The recognition and enforcement of judgments given in a Member ORG should be based on the principle of mutual trust and the grounds for non - recognition should be kept to the minimum required .

( CARDINAL ) ORG considered in its conclusions ( point CARDINAL ) that judgments in the field of family litigation should be ‘ automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement’ . This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this regulation should be recognised and enforceable in all other Member States without any further procedure being required . Arrangements for the enforcement of such judgments continue to be governed by national law . ”

“ CARDINAL . This Regulation shall apply , whatever the nature of the court or tribunal , in civil matters relating to :

( a ) NORP divorce , legal separation or marriage annulment ;

( b ) the attribution , exercise , delegation , restriction or termination of parental responsibility .

NORP The matters referred to in paragraph CARDINAL(b ) may , in particular , deal with :

( a ) rights of custody and rights of access ;

( b ) guardianship , curatorship and similar institutions ;

( c ) the designation and functions of any person or body having charge of the child ’s person and property , representing or assisting the child ;

( d ) the placement of the child in a foster family or in institutional care ;

( e ) measures for the protection of the child relating to the administration , conservation or disposal of the child ’s property .

“ In case of wrongful removal or retention of the child , the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member ORG and :

( a ) each person , institution or other body having rights of custody has acquiesced in the removal or retention ;

or

( b ) the child has resided in that other Member ORG for a period of DATE after the person , institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and CARDINAL of the following conditions is met :

( i ) within DATE after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child , no request for return has been lodged before the competent authorities of the Member ORG where the child has been removed or is being retained .

( ii ) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph ( i ) ;

( iii ) a case before the court in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to LAW ) ;

( iv ) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention . ”

“ CARDINAL . Where a person , institution or other body having rights of custody applies to the competent authorities in a Member ORG to deliver a judgment on the basis of LAW of DATE on ORG ( hereinafter ‘ the DATE Hague Convention’ ) , in order to obtain the return of a child that has been wrongfully removed or retained in a Member ORG other than the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , paragraphs CARDINAL to CARDINAL shall apply .

NORP When applying Articles CARDINAL and CARDINAL of the DATE LAW , it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity .

A court to which an application for return of a child is made as mentioned in paragraph CARDINAL shall act expeditiously in proceedings on the application , using the most expeditious procedures available in national law .

Without prejudice to the first subparagraph , the court shall , except where exceptional circumstances make it impossible , issue its judgment DATE after the application is lodged .

A court can not refuse to return a child on the basis of Article CARDINAL of the DATE LAW if it is established that adequate arrangements have been made to secure the protection of the child after his or her return .

A court can not refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard .

If a court has issued an order on non - return pursuant to LAW , the court must immediately either directly or through its central authority , transmit a copy of the court order on non - return and of the relevant documents , in particular a transcript of the hearings before the court , to the court with jurisdiction or central authority of the Member ORG where the child was habitually resident immediately before the wrongful removal or retention , as determined by national law . The court shall receive all the mentioned documents within DATE of the date of the non - return order .

Unless the courts in the Member ORG where the child was habitually resident immediately before the wrongful removal or retention have already been seized by CARDINAL of the parties , the court or central authority that receives the information mentioned in paragraph CARDINAL must notify it to the parties and invite them to make submission to the court , in accordance with national law , within DATE of notification so that the court can examine the question of custody of the child .

Without prejudice to the rules on jurisdiction contained in this Regulation , the court shall close the case if no submissions have been received by the court within the time limit .

Notwithstanding a judgment of non - return pursuant to LAW , any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with LAW below in order to secure the return of the child . ”

Pursuant to Article CARDINAL(CARDINAL)(b ) of the ORG , its section CARDINAL applies to “ the return of a child entailed by a judgment given pursuant to LAW ( CARDINAL) . Article CARDINAL in section CARDINAL provides as follows :

“ CARDINAL . The return of a child referred to in DATE ) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph CARDINAL .

Even if national law does not provide for enforceability by operation of law , notwithstanding any appeal , of a judgment requiring the return of the child mentioned in LAW ) the court of origin may declare the judgment enforceable .

The judge of origin who delivered the judgment referred to in Article CARDINAL ) shall issue the certificate referred to in paragraph CARDINAL only if :

( a ) the child was given an opportunity to be heard , unless a hearing was considered inappropriate having regard to his or her age or degree of maturity ;

( b ) the parties were given an opportunity to be heard ; and

( c ) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to LAW .

In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the ORG of habitual residence , the certificate shall contain details of such measures .

The judge of origin shall of his or her own motion issue that certificate using the standard form in ORG ( certificate concerning the return of child(ren ) ) .

The certificate shall be completed in the language of the judgment . ”

“ CARDINAL . The enforcement procedure is governed by the law of the Member State of enforcement .

Any judgment delivered by a court of another Member ORG and declared to be enforceable in accordance with LAW or certified in accordance with LAW shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member ORG .

In particular , a judgment which has been certified according to LAW can not be enforced if it is irreconcilable with a subsequent enforceable judgment . ”

“ In relations between Member GPE , this Regulation shall take precedence over the following LAW in so far as they concern matters governed by the Regulation :

( e ) LAW of DATE on ORG . ”

The enforcement of custody decisions is based on section CARDINAL of the Non - Contentious Proceedings Act ( Außerstreitgesetz ) . This provision applies also to the enforcement of decisions under LAW and , according to ORG case - law , to the enforcement of return orders under LAW .

Section CARDINAL(CARDINAL ) , taken in conjunction with section GPE ) , provides for the imposition of fines or imprisonment as coercive measures for contempt of court . As more lenient measures the court may also reprimand a party or threaten to take coercive measures .

Section CARDINAL ) allows for the use of reasonable direct coercion . Direct coercion may only be applied by court organs and is in practice entrusted to specially trained bailiffs .

Section CARDINAL(CARDINAL ) provides that the court may refrain from continuing with the enforcement if and as long as it constitutes a risk for the well - being of the minor .

The Government argued that in accordance with the ORG ruling of CARDINAL July DATE , the courts were not entitled to rely on section CARDINAL(CARDINAL ) of the Non - Contentious Proceedings Act to review a return order on the merits or to examine whether there were reasons for granting a stay of enforcement , even if it was alleged that there had been a change in circumstances , as it was exclusively within the competence of the courts of the ORG of origin to rule on a request for a stay of a return order given under LAW ) of ORG . In the context of the enforcement of a return order under that Regulation , the scope of application of LAW ) of the Non - Contentious Proceedings Act was limited to cases in which the act of enforcement in itself endangered the minor ’s well - being because of an acute danger to the child arising during the removal ( for instance on account of strong resistance by or acute health problems of the minor concerned ) .


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

The respondent Government are represented by their Agent , PERSON Jagander of the Ministry for Foreign Affairs .

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

On DATE , when the applicant was DATE , she moved from her mother ’s house to an apartment of her own . At that time the applicant had finished school and had a temporary job as a trainee at a radio station . On DATE she lodged an application with ORG ( sociala distriktnämnden -hereinafter “ the ORG ” ) of GPE , requesting a supplementary social allowance under section CARDINAL of LAW ( Socialtjänstlagen , lag CARDINAL ) for her living expenses and for her rent .

On DATE the ORG rejected her request , finding that the applicant ’s mother , who stood surety for the applicant on her rental contract , could provide for her needs or else the applicant could return to live at her mother ’s home . She appealed against this decision to ORG ( länsrätten ) of GPE . Before transmitting the appeal to the court , the ORG , on DATE , reviewed its decision without , however , coming to a different conclusion .

By a judgment of DATE ORG found for the applicant . It observed that , since she had attained the age of majority and was not studying anymore , her parents were not obliged to support her financially . Moreover , her trainee salary did not give her a reasonable standard of living .

The ORG appealed against the judgment to ORG ( kammarrätten ) of GPE and also requested it to stay the enforcement of ORG judgment , which was granted on DATE . On DATE , after having held an oral hearing on DATE , ORG overturned the lower court ’s decision and upheld the ORG ’s rejection .

On DATE the applicant submitted an appeal to ORG ( regeringsrätten ) which received it on DATE . The court noted that the case was not of an urgent nature since the social welfare assistance requested by the applicant concerned only the period from DATE ; thereafter the applicant had been able to support herself . Thus , the case was not given priority according to the court ’s rules of procedure .

On DATE ORG received another case involving a very similar issue . On DATE and DATE it received CARDINAL further such cases . It was decided that these CARDINAL cases and the applicant ’s case should be examined simultaneously , in order to ensure a uniform development of ORG case - law .

On DATE ORG granted the applicant leave to appeal and , on DATE , it ordered the ORG to submit its observations on the appeal . The ORG , by letter of DATE , contested the appeal . The court then , on DATE , invited the applicant to respond to the ORG ’s observations , which she did by DATE . On DATE the applicant ’s observations were transmitted to ORG .

On DATE ORG upheld ORG judgment rejecting the applicant ’s request . The court found that her financial problems had started when she moved to an apartment of her own and that , at the relevant time , such a move had not been necessary in order to ensure her a reasonable standard of living . Therefore , the applicant was not entitled to social welfare assistance under section CARDINAL of LAW .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

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

The applicants are mother and daughter . Until DATE they lived together in a house in B. owned by the first applicant .

On an unspecified date in DATE ORG ( NORP za socijalnu skrb DATE the “ Centre ” ) instituted proceedings with a view to establishing the first applicant ’s right to care outside her family ( pravo na skrb izvan obitelji ) . On DATE the ORG appointed its employee GPE as the first applicant ’s special guardian ( poseban skrbinik ) in these proceedings on the ground that the first applicant , owing to old age and illness , was unable to undertake acts in these proceedings on her own . It was also stated that her daughter Y , the second applicant , could not adequately care for the first applicant , since she suffered from muscular dystrophy . This decision was served on the second applicant on DATE .

On DATE the second applicant submitted a statement to the FAC , stating that she was unable to contribute towards the expenses arising from her mother ’s care .

An official note drawn up by GPE on DATE indicates that the second applicant urged that her mother be placed in a home and had entered into a private agreement with ORG for elderly and dependent persons ( “ the ORG ” ) in order to place her mother there at her own expense until such time as the decision in the above - mentioned proceedings had been adopted . The first applicant was moved to ORG . She was placed in a room with CARDINAL other persons .

The agreement , dated DATE , stipulated that the second applicant was to bear the costs of her mother ’s accommodation in ORG , which in turn would provide the first applicant with accommodation and food , medical care and care for her social needs . In order to stay close to her mother and to be able to visit her frequently , the second applicant moved to her own flat in I.

A medical report drawn up on DATE indicates that the first applicant was an elderly and disabled person , suffering from psycho - organic changes and dementia , and required the constant ( DATE ) help and care of another person .

On DATE the Centre established the first applicant ’s right to permanent placement in the ORG from DATE . She was to cover the costs of her accommodation up to the amount of her pension , and the difference between that amount and the full price was to be paid by ORG . The first applicant ’s pension was to be paid directly into the ORG ’s bank account .

On DATE GPE ceased to be the first applicant ’s special guardian .

On DATE the second applicant asked ORG to allow her mother single - room occupancy on health grounds . She offered to pay the difference between the costs of such accommodation and her mother ’s pension . The ORG informed her that if her mother was placed in a single room she would have to pay the full cost .

Since the first applicant was a person in care of the ORG , GPE , as the social worker from ORG with responsibility for the first applicant , drew up a report on DATE , in which she stated that the first applicant was disoriented and dependent on help from others and that it was impossible to establish contact with her . She suggested that proceedings be instituted with a view to divesting the first applicant of legal capacity , because she was unable to care for her rights and interests . She also stated that the second applicant often behaved strangely , in the sense that she showed constant dissatisfaction and had locked herself in her home , refusing food .

On DATE the second applicant again asked the Home to allow her mother single - room occupancy on health grounds , stating that her mother needed calm and rest . On DATE the ORG informed the second applicant that her mother had been provided with adequate health and other care and that they were waiting for a reply from ORG on payment for a single - occupancy room .

On DATE the second applicant urged the transfer of her mother to a single - occupancy room . She also asked the Home to provide her with information on the amount of her mother ’s pension in order to pay the difference in the cost of single - room occupancy .

On DATE the Head Nurse of the Caritas Home drew up an official note stating that over DATE the second applicant had frequently expressed discontent with regard to the care provided to her mother by nurses , physiotherapist and physicians at the Home ; this had disrupted the work of the personnel . She had held an interview with the second applicant , who denied these allegations and was very pleasant in communication with the Head Nurse during the interview . The Head Nurse further stated that the second applicant had been in the habit of visiting her mother twice a day , in TIME , staying for TIME . Over DATE she had been coming to the front of the Home before the reception ’s TIME and had stayed until DATE ; she had stopped communicating with the Head Nurse , but continued to intervene in the dynamics of her mother ’s health care and to insult the other patients .

In her letter of DATE the PERSON of the ORG informed ORG above . In her letter of DATE the second applicant denied these allegations and reiterated that , owing to her mother ’s health , it was necessary to place her in a single - occupancy room .

On DATE the ORG informed the second applicant that she was free to seek her mother ’s placement in a single - occupancy room at her own expense and that the cost of such accommodation was MONEY ( HRK ) per month . On DATE the ORG further explained that , in order to place her mother in a single - occupancy room she would first have to terminate her mother ’s accommodation on the basis of a decision adopted by the ORG and then apply in writing for her mother ’s placement in the Home on the basis of a private contract .

On DATE the second applicant again sought to have her mother placed in a single room .

On DATE the Centre informed the second applicant that the price of accommodation in the ORG for persons placed there on the basis of a decision by a social welfare centre was HRK CARDINAL per month . This amount had been partly covered by her mother ’s pension in the DATE amount of HRK CARDINAL,CARDINAL.CARDINAL .

On DATE the Centre invited the second applicant to come to FAC DATE in order to give a statement in connection with appointing a guardian for her mother in the proceedings to divest her of legal capacity . On DATE the second applicant asked the ORG that she be appointed as her mother ’s guardian in these proceedings .

On DATE , in a letter to PERSON , the owner of ORG , the second applicant sought help in placing her mother in a single room . There was no reply .

On DATE the ORG limited visits to multi - occupancy rooms in ORG to TIME a day . Visits were allowed in the common premises TIME in DATE and QUANTITY .

It appears that the second applicant did not thereafter pursue the question of placing her mother in a single room . In DATE the second applicant submitted that she no longer had problems with the ORG management and that she was peacefully spending time with her mother .

The relevant part of a discharge letter of CARDINAL DATE issued by ORG reads :

“ The patient was hospitalised at the neurological ward of ORG owing to a cerebral - vascular accident , brain atrophy and psycho - organic changes . During her stay respiratory difficulties occurred and continuation of treatment in our institution was indicated .

On admission she was not febrile , was able to move about , communication was possible ( kontaktibilna ) , she was eupneic ... , disoriented in time .

Conclusion :

The patient was hospitalised for exacerbation of chronic bronchitis , post - ORG [ cerebral vascular accident ] condition and psycho - organic changes . During her stay she was treated with ORG , ORG . Clinical status has improved and she is discharged with a recommendation to continue therapy with ORG , ORG . She is in need of care and the aid of others . ”

The relevant part of the medical report of CARDINAL DATE reads :

“ The patient has been unable to control her sphincter for DATE ; she is confused and moves about with difficulty . DATE she got lost and became even more confused .

Neurological status : psycho - organic syndrome , free neck [ movement ] , no focal neurological excess , she walks with assistance ... ”

The relevant part of a medical report of DATE reads :

“ The patient is DATE and in DATE she suffered an ( ischemic ) brain stroke . She subsequently developed psycho - organic syndrome , high blood pressure and incontinence . The medical documentation shows that she underwent cataract surgery . In DATE she was hospitalised in a neurological ward for ORG and was then transferred to ORG in PERSON ...

Examination reveals that she moves about with difficulty but does walk slowly with aid . She answers basic and short questions , but is disoriented in time and space and towards persons . ... Eupneic ...

Since the patient is an elderly person who moves about with difficulty , has undergone psycho - organically changes [ and ] suffers from dementia , I consider that she needs the constant care and aid of others . ”

On DATE D.P.D. , the first applicant ’s niece , was heard in FAC with a view to appointing her as the first applicant ’s guardian .

On DATE the ORG appointed D.P.D. as the first applicant ’s guardian . On DATE the ORG asked ORG to institute proceedings with a view to having the first applicant divested of her legal capacity . The relevant part of the ORG ’s submission reads :

“ Owing to a brain stroke and brain atrophy the respondent has suffered psycho - organic changes , is incapable of independent life and entirely dependent on the help and care of others . In view of the above , this ORG recognised her right to care outside her family and she was accommodated in the ORG for elderly and dependent persons ... in NORP The level of the respondent ’s social and intellectual functioning is significantly reduced ; no communication is possible , she is disoriented and suffers from dementia . In order to protect her [ person ] , her rights and interests it appears reasonable to give her protection through the institution of guardianship .

In view of the above , the ORG considers that the respondent is incapable of caring for her own needs , rights and interests and that the conditions for divesting her entirely of her legal capacity under section CARDINAL of LAW have been met . ”

GPE ’s opinion of DATE and medical documentation in respect of the first applicant was enclosed .

In a letter to ORG the second applicant objected that the decision appointing D.P.D. as her mother ’s guardian had not been served either on her or her mother . She also objected to statements in the report drawn up by GPE on DATE , enclosed in ORG case file , and in particular to the statements concerning her ability to be her mother ’s guardian and alleging that her behaviour had been strange and that she had locked herself in her house and refused food . In particular , she questioned how GPE could have established these facts , since she lived alone . She further stressed that she had moved to NORP only to be close to her mother and that she had been caring for her mother , while D.P.D. lived in PERSON and only occasionally contacted the first applicant by telephone . The first applicant considered that she was the most appropriate person to be appointed as her mother ’s guardian .

A note from ORG of DATE confirmed that the first applicant had received the decision of DATE and had confirmed that fact with her fingerprint .

On DATE the second applicant informed the ORG that she objected to the institution of the above court proceedings .

At a hearing held before ORG on DATE in the presence of the ORG ’s representative and the first applicant ’s guardian D.P.D. , a psychiatric report on the first applicant ’s mental state was commissioned . D.P.D. stated that GPE ’s allegations in her report on the first applicant were true and added that the first applicant was bed - ridden , disoriented and completely incapable of autonomous life . She depended on the constant help of others and was unable to feed herself . Her condition was not improving but was expected to deteriorate . She was able to use CARDINAL hand , could move it and put food into her mouth , but even that hand was not functional to the extent that she could properly feed herself . D.P.D. suggested that a medical examination of the first applicant be carried out .

The psychiatrist submitted his report on the basis of an examination of the first applicant on DATE and medical documentation from DATE . The relevant part of the report reads :

“ For the purposes of this examination the patient was seen by a psychiatrist on DATE in the Home where she is placed .

I found her lying awake in her bed . It is not possible to establish meaningful verbal contact because she is unable to talk clearly . To my question about her name and where she is from , she incomprehensibly repeats the same word . From her mimics and gestures it is possible to conclude that the patient has preserved a basic idea of herself .

Clinical findings on her mental status :

General impression : she lies in the typical “ embryo ” posture DATE on her side with legs bent in to the knees and drawn towards the chest , the upper body and head bent forward , so that her chin almost touches her knees ( posture typical for persons with serious brain damage ) .

Impression : a gravely ill person , completely dependent on the help of others , bed - ridden .

Contact : it is obvious that she can hear and understands something , but she is not able to form comprehensible words . It is to be expected that she [ has ] only a basic idea of herself . During the interview she looks aside with a dull , expressionless look or closes her eyes . When asked something loudly and directly she pays only brief attention to the speaker .

Occasionally she mumbles incomprehensibly . General facial expression reveals a mentally impaired person : empty stare and empty facial mimic .

Only basic orientation towards self is preserved .

Thought functions completely reduced – no thought process . Movement - impaired – central psychomotor damage ( brain ) . No coordination of hands , incapable of feeding herself .

ORG , understanding and ability to connect causes and consequences of events are completely damaged – non - existent . Gravely reduced overall mental capacity , with only basic idea of herself preserved . She has no idea of relations between persons or of her own interests .

Disabled to the extent that she is dependent on help of another person for mere survival .

Conclusion :

Severe impairment of global cognitive ability , with emphasis on memory , thought process , ability to develop new ideas and make conclusions and decisions ; impaired motor functions , to the extent that it renders the person so incapable that she is dependent for her survival on the care of another person .

Prognosis unfavourable .

Incapable of caring for herself and her rights and interests .

On medical grounds protection of the person ’s interest under guardianship is indispensable ; the court is recommended to divest her entirely of legal capacity . ”

On DATE the first applicant submitted a power of attorney , authorising the second applicant to represent her in the proceedings . She signed the letter in her handwriting .

The second applicant objected to the psychiatric report in her written submission to ORG , arguing that it was based on fiveyearold medical documentation and a TIME observation by the psychiatrist and that the conclusions of the report were therefore superficial , imprecise and untrue . She maintained that the first applicant could pronounce words , had good hand movement and was able to sit and dress with help . She also claimed that the psychiatrist saw the first applicant in the afternoon , when the first applicant was tired and drowsy , under the influence of medication and alarmed by the presence of an unknown person and of the Head Nurse of the Home . She also objected to the statement given by D.P.D. , and argued that D.P.D. had not even seen the first applicant .

The second applicant also requested the withdrawal of the judge conducting the proceedings , alleging bias .

On DATE the request for withdrawal was declared inadmissible by the President of ORG because the second applicant was not a party to the proceedings . At a hearing held DATE in that court D.P.D. stated that she had no objections to the psychiatric report but noted that there was no medical documentation in respect of the first applicant more DATE .

On DATE ORG divested the first applicant of legal capacity . The decision states that the persons present at the hearing were the ORG ’s representative lawyer PERSON , and the first applicant ’s special guardian D.P.D. The relevant part of the decision reads :

“ The requesting party lodged a request to divest the respondent of her legal capacity , alleging that the respondent , owing to psycho - organic changes caused by a brain stroke and brain atrophy , was incapable of autonomous life . She was entirely dependent on the help and care of others . By a decision of the requesting party her right to care outside her family had been established and she was placed in the ORG for elderly and dependent persons ... in NORP Her social and intellectual functioning was significantly reduced , it was not possible to establish contact with her , and she was disoriented and demented . She was in need of protection through the institution of guardianship because she was incapable of caring for her own needs , rights and interests , and therefore all requirements under LAW for divesting her of legal capacity had been met .

The respondent ’s guardian ad litem replied that the allegations in the request were true and added that the respondent was bedridden , disoriented and completely incapable of autonomous life . She depended on the constant help of others and was unable to feed herself . Her condition was not improving but was expected to deteriorate . She was able to use CARDINAL hand , [ and ] could move it and put food into her mouth ; however , even that hand was not functional to the extent that she could properly feed herself . In view of the respondent ’s old age , the guardian suggested that a medical examination of the respondent be carried out . She did not oppose the requesting party ’s application .

This court consulted the opinion of a social worker ( page CARDINAL ) , a birth certificate ( page CARDINAL ) , medical records ( pages CARDINAL - CARDINAL ) , a decision of ORG of DATE ( page CARDINAL ) and a report by medical expert GPE , doctor in psychiatry , of DATE ( pages CARDINAL - CARDINAL ) .

On the basis of the above evidence , this court has found the requesting party ’s application founded and has accepted it .

This court has established that the respondent is an DATE who suffered a brain stroke , after which she developed psycho - organic syndrome , high blood pressure and incontinence . In DATE she underwent cataract surgery and was hospitalised at the neurological ward for a ORG [ cerebral vascular accident ] ; she was subsequently placed in ORG in PERSON on account of exacerbated COLD [ chronic obstructive lung disease ] . Furthermore , this court has established that the respondent ’s entire mental capacity , in particular as regards her memory , thought processes , ability to form new ideas and reach conclusions and decisions , together with her psychomotor functions , is damaged to such an extent that it renders the respondent incapable , so that she is dependent on the help of another person for mere survival . She is incapable of caring for herself , her rights and interests and protecting them , and therefore it is necessary to protect the respondent by means of social care , since the prognosis is unfavourable .

This court accepted the report and opinion of the medical expert GPE , doctor in psychiatry , to which the parties made no objections , because the report is detailed , objective and drawn up in accordance with the rules of the profession . ”

This decision was not served on the applicants .

On DATE the first applicant asked ORG that the decision of CARDINAL DATE be served on the second applicant . She signed the authorisation with her full name . There was no reply .

The first applicant is DATE still accommodated in the ORG .

The relevant part of a discharge letter of DATE , issued by the psychiatric ward of ORG , reads :

“ Brought for treatment by ambulance ... there is information that her behaviour has altered since DATE when her mother , with whom she had lived , was accommodated in a ORG in I.

She subsequently locked herself in the house [ and ] isolated herself from everyone . The relatives who visited her noticed that she had weakened , refused communication and food ; she lost a lot of weight , neglected personal hygiene .

On admission she appeared as a chronic mental patient , [ was ] skinny , manic conduct , affectively inadequate ... she verbalised fear and the feeling of being threatened , was suspicious and complained of hallucinatory experience .

Treatment

She has been treated in a closed psychiatric ward with classical pharmacotherapy ( ORG together with PERSON ) .

By DATE following admission and therapy the patient started to take normal meals ( first light food and then a regular diet ) .

She has visibly recovered physically . The psychopathology for which she was hospitalised has completely ceased – she has no fears , no psychosis towards her environment , is joyful about every visit and when information has been sought about her . She has good introspection with regard to her physical weakness . She is willing to talk and accept solutions for her life .

Optimistic prognosis for further treatment is based on the fact that her first hospitalisation in DATE , which involved deterioration of her mental health and the same clinical picture , was provoked by an external factor , as in the current episode , and in the meantime she has been in good remission , and functioned satisfactorily in society . ”

On DATE the Centre held a hearing with a view of appointing a guardian for the second applicant , since they intended to institute court proceedings divesting her of legal capacity as well . The second applicant objected to the institution of these proceedings and stated that she had not been informed of the grounds for their institution .

On DATE the ORG appointed a lawyer , GPE , as guardian ad litem for the second applicant in the forthcoming proceedings to divest her too of the capacity to act . The relevant part of the decision reads :

“ ... the case - file of this ORG shows that ... it instituted proceedings to divest Y of legal capacity in a competent court because owing to her illness and altered personality , she is not able to care for her personal needs , rights and interests .

Y stated that she had no objections with regard to the person [ proposed ] as her legal representative , but that she considered it entirely unnecessary to appoint a guardian for her and to institute proceedings before a court to divest her of legal capacity . ”

On DATE the Centre asked ORG to institute proceedings with a view to having the second applicant divested of her legal capacity . The relevant part of the ORG ’s submission reads :

“ From early youth the respondent has suffered from muscular dystrophy , which makes it difficult for her to move about . Since DATE , when her mother PERSON was placed in the Home for elderly and dependent persons ... the respondent has started to behave in a strange manner and once locked herself in her family house in B. , refusing food and any contact with her doctor and worried neighbours . ... the medical documentation shows that the respondent was treated in the psychiatric ward of ORG in DATE with a diagnosis of reactive depressive psychosis . There is no evidence that the respondent continued with medical checkups following a check - up in DATE , when she had received therapy ; this shows that she does not see the need to take care of her own health .

The attitude of the respondent towards her mother X ... is possessive . At the beginning the ORG ’s administration tolerated her whole - day visits . As a result of constant objections concerning the ORG ’s employees as regards care [ to her mother ] and verbal and sometimes physical aggression , and also the fact that she disturbed other patients , necessitating a police intervention , her visits have been restricted ...

The respondent has unrealistic demands concerning her mother ( she constantly seeks her placement in a single room , not accepting the explanations given as to why that is not possible ) .

In her contacts with the employees of the institutions involved in the proceedings conducted for the protection of her own rights and interests and those of her mother , she does not see the purpose [ of these proceedings ] , viewing them as planned personal attacks . She has a very low tolerance level , is unable to preserve self - control [ and ] insults and denigrates the employees .

Also , the fact that she often changes her legal representatives , who refuse to provide further services after a short while , shows the respondent ’s increasing problem in establishing and maintaining any kind of social relations in everyday life .

In view of the above , the ORG considers that the respondent is not capable of caring for her personal needs , rights and interests ... ”

The second applicant lodged an appeal against the decision of DATE to appoint a special guardian for her , arguing that she was capable of taking care of herself and that there was no need to appoint a guardian for her .

DATE . On DATE the second applicant also filed her submissions opposing the request to divest her of legal capacity lodged by the Centre . She argued that it was not correct that she had been suffering from muscular dystrophy since early youth , but that she had had a road accident in DATE , since when she had been using a walking stick . She denied the ORG ’s allegations as regards her behaviour over DATE . She stressed that she had been taking care of her elderly mother , had placed her in the ORG at her own initiative and then continued to visit her regularly ; she also bought a wheelchair for her mother , had been taking her out in the Home ’s courtyard , had succeeded in teaching her again how to feed herself and to hold a bottle with water , and provided her with all necessary care . She had also been caring for her own needs , preparing her meals or paying a maid to prepare her meals and clean her flat . She had also been regularly seeing her doctor . In DATE she had retired and had been hospitalised in a psychiatric ward of ORG . She had not subsequently seen a psychiatrist since there had been no need and her doctor had not recommended it . She had had regular contacts with others ; she was a member of CARDINAL libraries , had been reading a lot , growing flowers , doing handcrafts and going on short trips . For the purposes of these proceedings she had engaged the services of a lawyer , which showed her ability to care for her interests .

On DATE ORG quashed the decision of DATE on the ground that the same person could not be a legal representative and a special guardian .

On DATE the ORG issued a fresh decision appointing lawyer PERSON as Y. ’s special guardian . The relevant part of the decision reads :

“ On DATE ... GPE was appointed as a special guardian to Y. in order to represent her in the proceedings with a view of divesting her of legal capacity ... The guardian was also authorised to ... represent her in all personal matters and matters concerning her property , to manage her assets and to take proper care of her person , rights , obligations and wellbeing .

ORG also referred to a wide range of powers given to the special guardian , calling into question the need for such powers .

In this connection and on the basis of the evidence presented ... this ORG assessed that the special guardian would properly protect her person , rights and interests , with understanding of the purpose of the proceedings to divest her of legal capacity and the protection provided through the institution of guardianship . It therefore gave [ GPE ] the authority to care for [ Y. ’s ] assets , because this ORG is doubtful as to whether Y. is capable of caring for her rights and interests , including her property rights , and has therefore instituted proceedings to divest her of legal capacity , the final decision on which is to be taken by a court .

... GPE will continue to represent Y in these proceedings on the basis of a power of attorney [ given to her by Y ] ...

... PERSON is appointed as special guardian for Y ... ”

On DATE the second applicant lodged an appeal against the above decision , arguing that there was no need to appoint a guardian for her or to institute proceedings to divest her of legal capacity because she had been adequately protecting her needs , rights and interests . She explained that she had been caring for her material needs , paying all bills , preparing her meals and maintaining social contacts , as well as regularly seeing her doctor , attending cultural events and visiting her mother . Her way of life did not show in any respect that there was a need to place her under guardianship . It appears that no decision has been adopted upon this appeal .

On DATE a psychiatric report concerning a telephone interview with the second applicant was submitted to ORG . The relevant part of the report reads :

“ The respondent is DATE . She has been receiving an invalidity pension for DATE . She lives alone in her own flat . She is unmarried [ and ] has no children . Her physical health is impaired DATE and that is about all that we can establish without doubt with regard to her physical condition . Owing to the lack of cooperation on the part of the respondent , we have no medical records ...

At the outset it should be pointed out that the respondent refused to cooperate . During an interview ( organised with great difficulty ! ) she held a monologue for TIME , in which she referred to all the injustice done to her and her mother . She ignored any attempt by the doctor to conduct a dialogue , let alone a structured one . The respondent ’s biography or her present life was not addressed . The only thing that happened was her raised voice , rudeness , hostility , a clearly paranoid attitude towards her surroundings , the feeling of being persecuted and a need to defend herself from the institutions that had been interfering with her life , ill - treating her , etc . The expert ’s expectation that during a home visit , on her own territory , the respondent would participate in the interview in a more cooperative manner was not met . CARDINAL telephone calls were not answered . The attempts to find her at her home address were also unsuccessful . After DATE she made a telephone call - shouting , accusing , insulting and attacking – in which she did not want to hear any answers .

On the basis of all this information and the expert ’s personal experience with the respondent , it is easy to conclude that she is a person of a very bizarre mental structure . She suffers from serious emotional disharmony and grave dysphoria and a flood of uncontrolled affective outbursts . In the background , a general paranoid attitude towards her entire surroundings is perceptible , with a fixation on institutions . She is ruled by a feeling that she is exposed to injustice , and to ill - treatment , abuse and systematic denial of her rights . She has succeeded in developing a strong hatred for the employees of ORG and that whole institution . The same is true ( maybe even more so ) about the Home where her mother is placed . She is argumentative . Her behaviour is often disorganised and chaotic . She has deeply estranged herself from everyone , chased away all good - willed people , broken all threads of cooperation . She is entirely uncooperative and is prone to describe everyone who dares to say or do anything she dislikes as an ignorant person , an adversary , [ or ] even an enemy .

In all that ‘ NORP the respondent does not even make an attempt to control herself , does not try to hide her hostility , does not try even for a second to reflect and analyse her own contribution to the situation ; she rejects any suggestion that there had been any wrong on her part . She is entirely uncritical and has no introspection ; she automatically seeks the guilty parties in her surroundings . She opposes any suggestion that she address problems regarding her own person or her behaviour and threatens [ to appeal to ] a higher instance .

In her entire mental world there is a lot of system , that is , logical concepts – and this would all be fine if that logic were not based on an entirely false , at times even psychotic , basis .

... her entire mental world is of a paranoid nature . In the best case we are speaking of a paranoid personality disorder , that is , the condition of personal derangement in which feelings of insecurity , being exploited and having suffered damage prevail . Without restrictions and with no basis she seeks enemies in her surroundings , people who are against her , who want to exploit her or injure her . She has difficulty in trusting anyone , if that is possible at all . She is mistrustful , negative towards others who are or could become traitors ; she sees hidden meaning in everything . Such an attitude warrants constant guard , suspicion and defensiveness . It is difficult to assert that this all amounts to a definitive paranoia , but the respondent – even if she is not in paranoia DATE is surely approaching it . We stress that paranoia is a real psychotic disorder ( that is to say mental derangement ) characterised by the development of and fixation on CARDINAL psychotic thought – usually of a persecuting type – or on several such thoughts which are grouped , interconnected and systematised ( connected in a psychotic system ) . In any case , the respondent is not far from mental derangement , which , unfortunately , she does not see and does not understand and therefore refuses any professional help .

Overwhelmed with this personal condition , the respondent most often estimates the world around her entirely wrongly , giving immense importance to trivialities and at the same time ignoring crucial things . By insisting on the irrelevant , she seriously neglects her vital interests and thus directly compromises them . She exhausts her limited resources on irrelevant , sporadic things , thus calling into question her ability to organise her existence , to structure it adequately and to exploit what she has at her disposal in her best interests . Her mental condition is entirely ( which still does not mean irreversibly ) impaired . She has lost the ability to anticipate and to react and adapt in a preventive manner . Her understanding of the world and her position in it is limited by a feeling of injustice , and is also superficial , wrong and strict . She is incapable of locating herself correctly in the complex , abstract laws of the outside world . She is not capable of recognising the institutional resources at her disposal ; even when they are presented to her , she rejects them uncritically , putting herself in a dangerous , unacceptable and miserable position .

In her mental condition she has no chance of exploiting outside resources and protecting her rights and interests . She will follow – without caution , without reflection – her first impression and thus immediately puts at risk her economic , material and health interests . At the same time she will ignore favourable outcomes and situations and potential opportunities for improvement .

On account of her clearly deeply impaired mental vitality , the respondent is in a perilous condition - her physical , economic , social and health safety is compromised and she has no resources to resist peril constructively and properly . She is not able to participate actively in the outside world and to act in a constructive manner . She is lost in DATE specific situations and exhausts herself in trivialities .

Therapeutic possibilities in her condition are still possible . The problem is that the respondent will refuse them categorically and systematically , seeing them as an attack on herself or a sign of grave hostility .

The respondent is in a situation which absolutely excludes any possibility for her to take care of her rights and interests and to show responsibility towards her obligations . Her only interest is to confirm her paranoid views – and here she does not spare her mental , financial or institutional resources . In this respect it is not possible to leave her on her own , since that will immediately put her at risk at all levels . Her mental resources have brought her to a critical mental and social situation where it is not to be expected that those same resources could save her .

I recommend that the request by the requesting party be accepted and that the respondent be entirely divested of legal capacity . There is no aspect of legal capacity that she could perform responsibly and to her own advantage .

It is to be stressed that the above statement could and should be revised in the case of a fortunate outcome , that is , if the respondent starts psychiatric treatment , offers her cooperation in therapy and achieves mental rehabilitation . However , no new assessment of her mental condition ... is recommended for DATE in view of the nature and gravity of her disorder . ”

At a hearing held on DATE in ORG the second applicant was heard . The relevant part of the written record of the hearing reads :

“ ... the respondent alleges that she is entirely capable of caring for her needs and interests , that she receives a pension and lives in her own flat ; her next - door neighbour GPE prepares her lunches and sometimes she goes to a restaurant . She further alleges that she is able to address all issues concerning her household and paying her bills . She is seeing her doctor and is able to carry out all administrative and other tasks in the city . She retired DATE because of a road accident ; she is an economist with a high school education . She had enrolled in a law faculty , but had not completed her studies ... She watches television , reads DATE newspapers , books , has a wide circle of friends who visit her and sometimes she also visits them ; in particular , she is also visited by her relatives . She is a very communicative person and leaves a good impression on others and has never had any problems in communication with others . When her mother was placed in a home , she was overwhelmed by sadness because until then they had been living together . However , she did not lock herself in and she does not know who called the doctors and the ambulance - that happened after a report by the ORG . The discharge letters following her CARDINAL hospitalisations show that her condition was good and satisfactory . Since DATE she has not been taking any medication save for her underlying illness , which is muscle weakness ( a mild form of paraplegia ) . Between CARDINAL DATE and DATE she was hospitalised for rheumatic diseases and rehabilitation , in order to maintain her customary condition as regards her ability to walk ...

She specifically stresses that she has reacted very badly to the institution of these proceedings to divest her of legal capacity because she considers herself entirely legally capable and healthy and able to care for her rights and interests and fulfil all her obligations as she has already described . To the question what her condition would be if she were divested of legal capacity , she answers that she could not even imagine it ... it would be bad , such a decision would lead to depression and exacerbation of her illness ; her soul would thus be killed and her whole life as well . She stresses that her condition does not require a guardian ...

She stresses further that before these proceedings were instituted she had not been given a chance by the ORG or the expert who prepared a report in these proceedings , to give her own overview of her condition , and therefore she has now explained her situation . She also drew up a CARDINAL - page statement which she attaches to the case file . ...

She stresses further that the guardian did not contact her at all ...

... she also stresses that in her view these proceedings were instituted because the ORG wants to deprive her of her property ( a flat in GPE and part of a family house in PERSON ) and various other property that she might inherit from her mother , since she has no spouse or children , but only a sister .

She alleges that her current situation is such that she is capable of caring for herself , even if her illness were to worsen , so as to choose by herself a person to care for her ; she also has enough assets to pay for the care that she wishes . She has been thinking about it and she always tries to find solutions for the future . She wants to continue to live in her own flat and does not wish to leave it . Should she be divested of legal capacity , her condition would worsen ; she had seen it happen to others . Then she could be placed somewhere she would not want to be . She does not want to live in a home ... because she is used to her own home ... and wishes to be left in peace ... ”

On DATE the same expert in psychiatry submitted his additional report on the second applicant , in which he repeated his previous conclusions , without any further contact with her .

The above court proceedings are apparently still pending .

The relevant provisions of LAW ( Obiteljski zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL and DATE ) read :

“ ( CARDINAL ) An adult who , on account of mental illness or other reasons , is unable to care for his or her own needs , rights and interests , or who presents a risk to the rights and interests of others , shall be partly or completely divested of legal capacity by a court of law in non - contentious proceedings .

( CARDINAL ) NORP Before adopting a decision under subsection CARDINAL of this section , a court shall obtain the opinion of a medical expert concerning the health condition of the person concerned and the effect of that condition on his or her ability to protect all or individual personal needs , rights and interests and whether it could put at risk the rights and interests of others .... ”

“ ( CARDINAL ) A social welfare centre shall initiate court proceedings when it assesses that , on the grounds set out in section CARDINAL(CARDINAL ) of this LAW , there is a need to divest a person of legal capacity either completely or in part .

( CARDINAL ) A social welfare centre shall appoint a special guardian to a person in respect of whom the proceedings for divesting him or her of legal capacity have been instituted ... ”

“ The competent social welfare centre shall place under guardianship a person ... divested of legal capacity ... ”

( CARDINAL ) The guardian shall care for the person and his or her rights , obligations and well - being with due diligence , manage his or her assets and take measures aimed at enabling the ward to have an independent professional and personal life .

“ ( CARDINAL ) The guardian represents the ward .

“ In order to take more important measures concerning the person , personal status or health of the ward , the guardian shall obtain prior consent from a social welfare centre . ”

“ ( CARDINAL ) Where a decision alters the personal status of a party or his or her rights and obligations , such a decision comes into effect when it becomes final . ”

“ An appeal may be lodged against a decision adopted at first instance where this LAW does not provide otherwise .

“ ( CARDINAL ) A court shall invite to a hearing the requesting party , the person concerned , his or her guardian and a representative of a social welfare centre .

( CARDINAL ) Persons mentioned in subsection CARDINAL and a social welfare centre may participate in the presentation of evidence , hearings and the presentation of the outcome of the entire proceedings .

( CARDINAL ) A court shall try to hear the person concerned . Where that person has been placed in a psychiatric or social institution , he or she shall be heard in that institution .

( CARDINAL ) A court may decide not to invite and hear the person concerned where it could be detrimental for that person or where it is not possible to hear that person in view of his or her mental impairment and health condition . ”

( CARDINAL ) ORG court decision divesting someone of legal capacity shall be served on the requesting party , the person concerned , his or her guardian and a social welfare centre .

( CARDINAL ) The court is not obliged to serve the decision on the person concerned where he or she can not understand the legal consequences of that decision or where it would be detrimental to his or her health .

The relevant part of section CARDINAL of LAW ( Official Gazette nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , QUANTITY DATE and CARDINAL , ORG o socijalnoj skrbi ) provides :

“ ( CARDINAL ) An adult accommodated on the basis of a decision by a social welfare centre is obliged to pay for his or her accommodation , up to the full price , using all of his or her income and monetary assets .

Section CARDINAL(a ) of LAW ( Zakon o parničnom postupku ) enables an applicant in respect of whom ORG has found a violation of the LAW or its Protocols to request , within DATE of the ORG ’s judgment becoming final , the reopening of the domestic proceedings in question . In the new proceedings the domestic courts are obliged to follow the reasons given in the ORG ’s judgment .


The applicant , Mr PERSON , is an NORP national , who was born in DATE and is currently detained in a prison in GPE ( GPE ) pending extradition to GPE . He is represented before the Court by PERSON PERSON , Mr PERSON and Mr ORG , lawyers practising in GPE , GPE and GPE respectively .

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

The applicant is living in GPE with his wife and CARDINAL children since DATE .

On DATE ORG issued a warrant of arrest against the applicant who was wanted in particular for serving the remainder of a prison sentence of DATE , DATE by virtue of a judgment given by ORG on DATE . The applicant was found guilty of having dealt , as a leading member of a criminal association , in stolen cars during the period from DATE .

On DATE the applicant was arrested in PERSON for extradition purposes following a report included in ORG at the request of ORG . Having been interrogated by a judge on DATE , the applicant was transferred to the PERSON prison . On DATE ORG ( ORG ) ordered the applicant ’s provisional detention pending extradition and on DATE his detention pending extradition .

On DATE the NORP authorities submitted in addition to their request for the applicant ’s extradition a decision of ORG of DATE fixing the applicant ’s global sentence in the light of previous convictions at DATE , DATE and CARDINAL days’ imprisonment and of CARDINAL months’ imprisonment .

On DATE ORG authorised the applicant ’s extradition to GPE . It found that there was no obstacle to extradition and that the extradition request of the NORP authorities complied with the requirements of LAW of LAW .

On DATE the applicant who claimed to be unfit for detention and travel , applied to be examined by a psychiatrist of his choice .

On DATE the applicant lodged a constitutional complaint with ORG ( Bundesverfassungsgericht ) . He submitted in particular that his extradition based on convictions for property offences appeared disproportionate in relation to his right to respect for his family life . He further submitted that the conditions of detention in NORP prisons constituted inhuman and degrading treatment and that he was unfit for detention and travel .

On DATE the applicant applied for an interim injunction ( einstweilige Anordnung ) staying the extradition proceedings pending the proceedings before ORG . He alleged in this respect that the proceedings before the NORP courts had been unfair .

On DATE the applicant also applied to ORG to grant him another hearing in accordance with the law , to revoke its decision of DATE and to declare the extradition inadmissible , respectively to suspend the execution of the warrant of arrest pending extradition . He submitted that he was unfit for detention and travel and that his extradition would destroy his family life . He further stated that the disastrous conditions of detention in NORP prisons were contrary to the international and NORP ordre public .

The applicant obtained opinions from his psychiatrist as to the likely effect of being kept in detention and extradited to GPE . In reports dated CARDINAL and DATE , Pr Dr PERSON stated that the applicant suffered from depressions and anxiety , needed medical treatment and was unfit for detention . Moreover he suffered from claustrophobia which severely compromised his ability to travel . He was also at a very serious risk of suicide if he were to be extradited to GPE .

In an opinion dated DATE sought by ORG , the doctor of the GPE prison certified the applicant as being fit for travel .

On DATE ORG rejected the applicant ’s request for judicial review of the decision of DATE authorising his extradition . However , having regard to the contradictory medical opinions , ORG ordered that an official examination be conducted by the health authorities as regards the applicant ’s ability to be detained and to travel .

In an opinion dated DATE Dr NORP , a senior psychiatrist at ORG in GPE , reported that the applicant showed signs of depression and anxiety , but was fit for detention and travel . In a further opinion the doctor of the PERSON prison stated that the applicant suffered from a chronic liver disease and recurrent lumbar sciatica , but also confirmed that he was fit for detention and travel .

On DATE ORG refused to accept the applicant ’s constitutional complaint for adjudication .

In the light of the medical reports submitted with regard to the applicant ’s state of health , ORG ( Gesundheitsamt ) considered on DATE the applicant as being fit for detention and travel .

The applicant submitted also opinions concerning the medical condition of his wife and his son PERSON . CARDINAL psychiatric reports dated DATE concluded that the applicant ’s wife who had been hospitalised from DATE for drug intoxication , was the victim of a depressive development connected with an emotional dysfunction and misuse of drugs . A risk of her attempting to commit suicide could not be excluded in case of a separation from her husband . In a further opinion dated DATE , a logopedic reported that the applicant ’s son PERSON , born in DATE , suffered from stuttering , that the separation from his father was likely to be an attributable factor to this symptom and that a stable family situation would be necessary to reduce this problem .

In TIME from DATE the applicant attempted to commit suicide in the GPE prison while being placed under a CARDINAL minute watch . He slit his wrists and took sleeping pills .

His requests to be transferred to a hospital in PERSON for psychiatric treatment were refused .