D.C., H.S. AND A.D. v. THE UNITED KINGDOM

The applicants are GPE citizens , born in DATE , DATE and DATE respectively . The first and third applicants live in GPE , the second applicant lives in GPE . They were each directors of ORG ( “ GPE ” ) , a company which traded as a members ' agent in the ORG insurance market .

They are represented before the ORG by PERSON , PERSON , solicitors , GPE .

A.

s , may be summarised as follows .

On DATE the Secretary of ORG for ORG ( “ the Secretary of ORG ” ) issued an originating summons seeking orders under LAW DATE ( “ CDDA ” ) . The affidavit which was filed in support of the summons made a number of allegations : that all CARDINAL applicants had breached LAW of LAW DATE ( “ the DATE LAW ) , which prohibits a company from giving financial assistance in relation to the purchase of its own shares ; that they had acted to the detriment of ORG creditors by permitting an unsecured , interest - free loan which conferred no benefit on ORG ; that they had knowingly caused and permitted the production of accounts of ORG which did not give a true and fair position of the company 's financial position , and that they gave security to a bank over payments of ORG in preference to other creditors .

The applicants filed affidavits in reply , as they were required to do if they wished to challenge the affidavit in support of the Secretary of ORG 's position . They also filed a number of affidavits from third parties who were well - known and respected in the insurance industry , and who deposed to the applicants ' fitness to be company directors , their standing in ORG and their good character . The Secretary of ORG applied to strike out the character evidence under LAW rule CARDINAL of the Rules of ORG , which empowers the court to strike out of any affidavit “ any matter which is scandalous , irrelevant or otherwise oppressive ” .

The Secretary of ORG 's application for the character evidence to be struck out was granted on DATE by PERSON The judge recalled that character evidence was not ordinarily admissible in civil proceedings because it was not probative of any issue . He rejected the applicants ' submissions that the evidence was relevant even though there were allegations of dishonesty , and he did not accept that the PERSON proceedings were akin to criminal proceedings by reference to the case of ORG [ DATE ] BCC CARDINAL . The judge also struck out certain parts of the applicants ' own affidavits as conflicting with the rule against hearsay evidence .

A Statement of Undisputed Facts was agreed between the applicants and the Secretary of ORG so that the PERSON proceedings could be decided under the so - called PERSON procedure ( after the case of ORG [ DATE ] CARDINAL WLR CARDINAL , in which the procedure was described ) . The parties agreed that , if the ORG did not approve summary disposal of the proceedings , no further reference would be made to the Statement . The applicants accepted , by reference to the undisputed facts set out in the Statement , that a disqualification order against each of them was appropriate for the period contended for by the Secretary of ORG , namely DATE for the first applicant , DATE for the second applicant , and DATE for the third applicant .

The Statement set out the CARDINAL remaining matters , with the charge in each case . The first charge was that the applicants did not know that the loans to CARDINAL company were unlawful as in breach of LAW of LAW DATE , but that they ought to have known . The applicants did not dispute the allegation . The second charge was that a series of unsecured , interest - free loans to that company were potentially to the detriment of ORG and its creditors . Again , the applicants did not dispute the allegation . The third charge was that the second applicant had caused ORG to prefer a bank over other creditors on CARDINAL specific occasion . The allegation was not disputed .

There followed a statement of mitigation on behalf of each applicant .

The substantive hearing was held before the Vice - Chancellor on DATE . In his judgment , the Vice - Chancellor held as follows :

“ My function , [ ... ] , is to consider the contents of the agreed statement of facts and decide , first , whether a disqualification order ought to be made and , second , what the length of the disqualification period should be . It is of course relevant that the [ applicants ] do not contest that disqualification orders can properly be made . [ ... ] I am not bound by the agreement between the parties that the facts warrant a disqualification order nor am I bound by their agreement as to the length of the disqualification periods . It is open to me if so advised , having regard to the contents of the agreed statement of facts , to form a different view . It would I think be unlikely for a judge to do so but the judicial function requires me to direct my mind to the facts in the agreed statement and to consider what the right order to be made should be .

[ The ] Section CARDINAL matter is in my view the most important of the CARDINAL . The facts which constitute the breach of LAW were facts known to each of the CARDINAL [ applicants ] . I accept that none was aware at the time that what was being done in advancing moneys to ORG [ the related company ] did constitute a breach of LAW , but I would conclude without difficulty , and it is indeed accepted by each of the [ applicants ] , that each ought to have known that that was so . It is important however that I should record that the making of the loans was not done for any personal gain which it was thought might thereby be obtained by any of the directors . It was not accompanied by any want of probity or dishonesty .

Section CARDINAL is part of the statutory scheme imposed in order to protect the public from the conduct of limited companies carrying on business with the protection of limited liability . It is a provision which is sometimes overlooked and treated as of little account . It never should be so but where that does happen and where , as is often the case , no point resulting from it ever emerges into the public view , no adverse consequences will follow . In the present case it may be a misfortune for the CARDINAL directors that the ORG litigation drew them into its clutches , brought about the need for the companies to go into insolvent liquidation , brought an independent mind to bear upon the manner in which the company 's affairs had been conducted in the past and led to the LAW breaches becoming known to the Secretary of ORG . That is a misfortune for the directors but it does not in itself reduce the seriousness of the LAW breaches . I am of the opinion that those breaches justify disqualification orders . This is , of course , an easier conclusion for me to reach than it would have been had that been disputed by the [ applicants ] , which it is not .

The question , therefore , is what length of disqualification period would be appropriate . I repeat that in approaching this question I regard the breaches of LAW as serious . I regard the conclusion that disqualification orders are appropriate as a result of these breaches as being a conclusion impelled by a serious misfeasance on the part of the directors in managing the affairs of the company that the LAW breaches represent .

For my part , first because I think that the agreed periods were on the stiff side so far as the [ applicants ] were concerned , second because I do not regard the post-CARDINALst DATE loans as constituting a matter which should have any real weight in the balance and , third , because of the invidious comparison that there might appear to be with the treatment of Mr Lines [ in a recent case ] , I think it right that the periods of disqualification should be DATE for [ the second applicant ] , DATE for [ the first applicant ] and DATE for [ the third applicant ] . That is DATE less than the Secretary of ORG was contending for but I do not imagine that that will be a reason why the Secretary of ORG would wish a full trial . ”

Costs were ordered against the applicants , and the Vice - Chancellor refused an application by the first and second applicants for an extension of the statutory period of DATE allowed to the applicants to divest themselves of their directorships . He did , however , indicate that it would be open to them towards the end of that period to return to him with more specific reasons which called for an extension . The first applicant 's request to be permitted to continue as director of the trading company of the group for DATE was granted on DATE , subject to conditions .

B. Relevant domestic law

Section CARDINAL of the Company Directors Disqualification Act DATE ( " LAW " ) reads as follows :

" ( CARDINAL ) ... a court may , and under LAW shall , make against a person a disqualification order , that is to say an order that he shall not , without leave of the court

( a ) be a director of a company , or

( b ) be a liquidator or administrator of a company , or

( c ) be a receiver or manager of a company 's property , or

( d ) in any way , whether directly or indirectly , be concerned or take part in the promotion , formation or management of a company ,

for a specified period beginning with the date of the order . "

Section CARDINAL of the DATE Act reads :

" ( CARDINAL ) The court shall make a disqualification order against a person in any case where , on an application under this section , it is satisfied -

( a ) that he is or has been a director of a company which has at any time become insolvent ( whether while he was a director or subsequently ) , and

( b ) that his conduct as a director of that company ( either taken alone or taken together with his conduct as a director of any other company or companies ) makes him unfit to be concerned in the management of a company . "

Section CARDINAL of LAW DATE reads as follows :

“ ( CARDINAL ) Subject to the following provisions of this LAW , where a person is acquiring or is proposing to acquire shares in a company , it is not lawful for the company or any of its subsidiaries to give financial assistance directly or indirectly for the purpose of that acquisition before or at the same time as the acquisition takes place .

( CARDINAL ) Subject to those provisions , where a person has acquired shares in a company and any liability has been incurred ( by that or any other person ) , for the purpose of that acquisition , it is not lawful for the company or any of its subsidiaries to give financial assistance directly or indirectly for the purpose of reducing or discharging the liability so incurred .

( CARDINAL ) If a company acts in contravention of this section , it is liable to a fine , and every officer of it who is in default is liable to imprisonment or a fine , or both . ”

Rule CARDINAL of the Insolvent Companies ( Disqualification of Unfit Directors ) Proceedings Rules DATE reads as follows :

“ ( CARDINAL ) There shall , at the time when the summons is issued , be filed in court evidence in support of the application for a disqualification order , and copies of the evidence shall be served with the summons on the respondent .

( CARDINAL ) The evidence shall be by CARDINAL or more affidavits , except where the applicant is the official receiver , in which case it may be in the form of a written report ( with or without affidavits by other persons ) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it .

( CARDINAL ) There shall in the affidavit or affidavits or ( as the case may be ) the official receiver 's report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company . ”


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The respondent Government were represented by Mr P. Laptev , a former Representative of GPE at ORG .

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

In DATE the applicant married Mr PERSON and they started living together at the applicant ’s flat on the GPE Street in GPE . In DATE they moved into a CARDINAL - room flat on FAC in GPE ( “ the flat ” ) . The flat was owned by the district council ; PERSON and his son NORP , born in DATE , had their “ registered place of residence ” in the flat . In DATE D. ’s wife gave birth to a son and NORP moved with his family to his wife ’s flat . As NORP never consented to privatisation of the flat , it remained in the ownership of the district council . The applicant contributed to payment of rent and maintenance charges .

In DATE NORP asked his father and the applicant either to repay him CARDINAL of the flat ’s value , or to exchange it for CARDINAL smaller ones . The applicant and PERSON had no money , so NORP sought a court order for exchange .

On DATE the Izmaylovskiy ORG of GPE refused to issue the order as the terms of exchange offered by NORP were not satisfactory .

On DATE the applicant brought separate proceedings against NORP , seeking a court declaration upholding her right of residence in the flat .

On DATE ORG granted NORP ’s claim and ordered that PERSON move to a QUANTITY room in a CARDINAL - room “ communal ” flat . It dismissed PERSON ’s objections to the move relating to the applicant ’s frail health , finding as follows :

“ PERSON ’s wife [ the applicant ] has not acquired the right of residence in the contested flat in accordance with the established procedure , her right to reside [ in the flat ] has not been confirmed , whereas the plaintiff [ NORP ] does not recognise that she should have such a right . ”

The court concluded that in these circumstances the move would not impair PERSON ’s rights and interests .

On DATE ORG refused the applicant ’s claim for recognition of her right of residence . PERSON joined the proceedings as a third party and supported the applicant ’s claim . The court found as follows :

“ It has been established at the hearing that in DATE the plaintiff [ the applicant ] moved into the contested flat as the tenant PERSON ’s family member and that she has lived in the flat up to the present day . The defendant [ D. ] has not contested these circumstances .

However , the plaintiff ’s claim ... can not be granted because ... there is no evidence that [ NORP ] had contented to her moving - in and residing in the contested flat and [ NORP ] denies that he has ever consented ...

Moreover , the plaintiff is a registered tenant of a flat on the FAC , she is on the waiting list for improvement of her housing conditions and contributes to payment of maintenance charges at her registered place of residence . ”

On DATE ORG upheld that judgment on appeal .

On DATE ORG also upheld the judgment of DATE .

The RSFSR Housing Code of DATE ( as amended on DATE , effective at the material time ) provided :

“ The tenant ’s family members shall include the tenant ’s spouse , children and parents . Other relatives , disabled dependants , and – in exceptional circumstances – other persons may be recognised as the tenant ’s family members if they live together with the tenant and maintain a joint household . ”

“ The tenant shall be entitled to accommodate in his living LOC , in accordance with the established procedure , his spouse , children , parents , other relatives , disabled dependants and other persons , subject to written consent of all adult members of his family ...

The persons accommodated by the tenant in accordance with the rules of the present article shall have the same right to use the living premises as the tenant or other members of his family provided that such persons are , or have been recognised as , members of the tenant ’s family ( LAW ) and that no other agreement on the use of the LOC has been signed between these persons , the tenant and his family members . ”

“ If family members fail to agree to an exchange , any family member may seek a court order for a forced exchange of the flat occupied by them for living premises in different blocks of flats . In these proceedings regard must be had to meritorious arguments and interests of the residents of the exchanged flat . ”


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government are represented by their Agent , PERSON , ORG , and , subsequently , PERSON PERSON , PERSON , of ORG .

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

The applicant ’s daughter PERSON was born on CARDINAL DATE . In DATE the applicant and PERSON , his then wife , separated . Since then PERSON has been living with her mother , who was awarded custody of her . On DATE the applicant had his last contact with F.

On DATE the Berlin Tempelhof - ORG suspended the applicant ’s access to F. This judgment was upheld by ORG on DATE . On DATE ORG refused to admit the applicant ’s constitutional complaint lodged against the latter judgment .

In his first application ( no . MONEY ) to this ORG , the applicant complained , in particular , that the said court decisions suspending his access to PERSON amounted to a breach of his right to respect for his family life . He further claimed that the court proceedings concerned had not been fair . On DATE , the ORG declared admissible these complaints .

On DATE and CARDINAL DATE the applicant lodged a motion under Section CARDINAL § CARDINAL of LAW ( see ‘ Relevant domestic law’ below ) to order PERSON to provide him with further information about their daughter PERSON , notably her current place of residence .

On DATE ORG , sitting in guardianship matters , dismissed the applicant ’s motions . It rendered its decision following a hearing attended by PERSON and PERSON , then aged DATE . The applicant , who had been duly summoned , had not attended the hearing .

In its reasoning , ORG referred to its final decision of DATE according to which the applicant was entitled to CARDINAL photograph of PERSON each year together with the final school report in DATE . Furthermore , PERSON had been ordered to supply the applicant with copies of the interim school report of DATE and of any further final school reports or reports on subsequent professional training , respectively . The applicant was also entitled to information about his daughter ’s health DATE and to immediate notice about any change in her state of health .

ORG found that the applicant was not entitled to be informed of his daughter ’s place of residence and of the address of her school on the ground that such information was contrary to the child ’s well - being . It noted that the applicant did not have custody of F. and therefore had no power of co - determination in school matters . His right of access to F. had been suspended . In the court ’s view , the applicant claimed the information in question only in order to establish access to F. , which was contrary to her best interests . Moreover , PERSON feared reprisals . The court further noted that PERSON , having been heard by ORG and in court on DATE , refused any contacts with her father .

ORG also dismissed the applicant ’s request for coercive measures , noting that PERSON had complied with the court order of DATE .

On DATE ORG , having heard the applicant and PERSON , dismissed the applicant ’s appeal . ORG considered that ORG had not exceeded its margin of appreciation when deciding that no information about the child ’s whereabouts should be disclosed . Having regard to the strained relations between the parents , this had been in the child ’s best interests . The information requested was not of such an importance that it had to be disclosed against PERSON ’s express will . ORG took into consideration that in a decision dated DATE , ORG had initiated measures to re - establish contacts between the applicant and his daughter cautiously .

Following the entry into force of the amended LAW , the applicant lodged a second request to be informed of his daughter ’s place of residence on DATE . He argued that he needed PERSON ’s address in order to be able to maintain a minimum of contacts with her , because having to send letters to her via ORG was discriminating against him .

On DATE ORG , sitting in family matters , dismissed the applicant ’s request . It confirmed that the daughter ’s interest to avoid the risk of contacts with the applicant outweighed the latter ’s interest to be informed of her address pursuant to LAW of LAW ( see ‘ Relevant domestic law’ below ) .

In this connection , ORG noted that on DATE it had decided in a different set of proceedings instituted by the applicant that his access to F. remained suspended . It had found in that judgment that F. , then aged DATE , had expressly refused any contacts with her father and was crushed between her GPE conflicting interests . In the case before it , the ORG therefore had to avoid a deterioration of PERSON ’s tense mental state , which had not least been caused by never - ending court proceedings and examinations by psychological experts .

On DATE ORG dismissed the applicant ’s appeal . Referring to its hearing of the parties on DATE in the context of further proceedings concerning the applicant ’s right of access , it observed that the relations between PERSON and the applicant remained strained . Therefore , the applicant was not entitled to information about his daughter ’s whereabouts . It noted that since the suspension of access DATE , PERSON had only once , in DATE , seen the applicant outside court . In these circumstances , any risk that the applicant would go to the house where PERSON and PERSON were living had to be avoided .

On DATE the applicant lodged a complaint with ORG , comprising CARDINAL pages . He claimed that the decision of ORG not to order the disclosure of his daughter ’s address violated his right to respect for his family life , his right to be heard and the principle of equality .

On DATE ORG , without giving further reasons , refused to admit the applicant ’s constitutional complaint .

On DATE the ORG ordered PERSON to pay a coercive penalty of CARDINAL ORG for failure to comply with its order dated DATE to supply the applicant with certain information about F.’ personal circumstances .

On DATE ORG confirmed the judgment of ORG delivered on DATE that the applicant ’s access to F. remain suspended . It found that it would be against the best interests of F. , who had almost attained the age of majority , to order contacts against her firmly expressed will .

On DATE F. attained the age of majority .

Before the entry into force of the amended LAW ) on DATE , the relevant provision of LAW concerning a parent ’s right to information about his or her under age child born in wedlock was worded as follows :

Section CARDINAL

“ CARDINAL . A parent not having custody who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child ’s best interests . The guardianship court shall rule on any dispute over the right to information . ”

The relevant provision in force since DATE , Section CARDINAL of LAW , provides as follows :

“ Each parent who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child ’s best interests . The family court shall rule on any dispute . ”

Proceedings in family matters are governed , inter alia , by LAW Contentious Proceedings ( PERSON über die ORG der freiwilligen PERSON ) . Pursuant to Sections CARDINAL and CARDINAL of that Act , as applicable to the proceedings concerning the applicant ’s first request for information , a further appeal ( PERSON ) to ORG lay against a decision of ORG . If an appellant wished to lodge his further appeal in writing , his submissions had to be signed by a lawyer ( Section CARDINAL § CARDINAL of the said Act ) .


The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE ) . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr. PERSON , of ORG .

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

On DATE the applicant married Mr Z. and , on CARDINAL DATE , their daughter PERSON was born . In DATE , the applicant and Mr Z. separated and , on DATE , ORG ( arrondissementsrechtbank ) pronounced their divorce .

When they separated in DATE , the applicant and PERSON had agreed that it was best for X if she stayed with her father . The applicant moved to GPE , which lies at a distance of QUANTITY from PERSON where PERSON continued to live . On the basis of an arrangement , the applicant had access to X for a total period of DATE in DATE .

In its decision of DATE and in accordance with the parents ' wishes , ORG entrusted Mr PERSON with X 's care and custody and appointed the applicant as GPE 's auxiliary guardian ( toeziend voogdes ) . At an unspecified date in DATE , the applicant moved from the GPE to GPE where she joined her new partner Mr PERSON . During DATE the applicant and PERSON spent a total of DATE together in GPE . Since DATE , there has been little contact between the applicant and X.

On DATE Mr Z. married his new partner , PERSON , who was born in DATE , with whom he and PERSON had cohabited since DATE . CARDINAL children were born out of their marriage .

In DATE the applicant returned to the GPE , where she settled in GPE , which lies at a distance of QUANTITY from PERSON . Mr PERSON informed the applicant , who then wished to intensify her contact with X , that the latter did not wish to have any contacts with the applicant anymore .

The applicant 's auxiliary guardianship ended on DATE , when an amendment to LAW entered into force abolishing the institution of auxiliary guardianship .

In DATE , the applicant married her new partner Mr PERSON and , together with him , moved from the GPE to GPE where they are currently still residing .

On DATE , DATE before X was to come of age and shortly before the entry into force of an amendment to several relevant provisions of LAW ( Burgerlijk Wetboek ) ( see below ) , PERSON and PERSON filed a request with ORG for X 's adoption by her stepmother PERSON . They submitted that , since DATE , they had jointly provided for X 's care and education , that X did not have any contacts with the applicant and that X fully supported the adoption request .

In DATE , the applicant informed ORG that she objected to X 's adoption by PERSON . She submitted inter alia that the fact that X supported the adoption request and that there had not been any contacts between her and X for a certain period of time did not justify severing the legally recognised family tie between them . In the applicant 's opinion , to sever a legally recognised family tie would only be justified in cases where a child had nothing to expect from the mother anymore .

On DATE , Mr Z. and PERSON submitted a copy of a letter of DATE by a social worker to ORG . In so far as relevant , this letter reads :

“ Additional information for the purposes of the adoption request of X Z.

This report has been prepared by ... social worker ... , at ORG 's request .

At DATE , X contacted the social aid services , in DATE the provision of assistance started .

It appears from conversations that X feels no joy in her life , she feels down and listless , insecure , can not /dares not take initiatives .

For these complaints of depression ( which she has already been experiencing for DATE , at times less at times more , as she says ) I advised her to contact her general practitioner .

My impressions of X :

She comes across as an intelligent young woman , with a certain spontaneity where it concerns less difficult matters ; she has the tendency to speak in a more rational manner where it concerns more personal matters . She finds it difficult to show her emotions . She has difficulties in trusting [ others ] and has little self - confidence .

In her personal history the following points of particular interest appear which , in my opinion , are co - determinant for her lack of confidence :

after the divorce [ which occurred ] when she was DATE , X describes a toilsome access arrangement with her biological mother , whom X calls PERSON ( PERSON is emotionally her mother , says PERSON , “ She has taught me everything ” . )

X perceives the contact with her biological mother as not close . When X gets a bit older , the need increases to discuss the bad contact as she perceives it , in the hope of being able to come closer to each other .

She discovers that that does not succeed . According to X , her biological mother can not / does not want to look at herself , sees no own part in the problems and blames others .

She wants to keep the contact “ cosy ” [ amicable and without complicating matters ] , says X.

X finds that her biological mother does not really love her ; this often gives her the feeling that she is not valuable enough to be loved .

Another cause of her lack of self - confidence is , in my opinion , her hearing impairment . Owing to this [ impairment ] she only started attending [ regular ] primary school as from ORG CARDINAL [ at DATE CARDINAL ] . The transition from the school for the hearing - impaired to a regular primary school was [ a ] big [ change ] , she says . She was picked on there , as well as in the beginning of secondary school .

Concluding :

On the basis of my opinion that complaints of depression have a deeper cause than that of people paying insufficient attention to their own needs , I have found it appropriate to support X in this procedure by way of this letter .

Despite her insecurities in life , I note that this adoption request is a conscious decision of hers , about which she has clearly reflected .

When I ask X , “ Why this radical measure ? ” , she says she is not acting out of rancour . There appears to be a deep - rooted resistance to the possibility that her biological mother can still exercise an influence on her life , but more important a great need for security and recognition if PERSON becomes her legal mother .

I do not feel competent in my function as a social worker to state anything diagnostically as to the possible “ harm suffered ” by X.

My advice is to carry out a further examination on this point , for instance a psychological examination by ORG ( PERSON ) , before deciding the matter . ”

On DATE , in the course of a hearing held in private , ORG examined the adoption request . It heard the parties ' arguments . It further heard X on the adoption request .

In its decision of DATE , overruling the applicant 's objection , ORG granted the request for PERSON 's adoption .

As to the applicant 's objection , ORG held that she had insufficiently taken into consideration the manner in which her daughter had developed over DATE and had insufficiently realised that PERSON 's interests in being adopted should prevail over her own interests . In that light , it considered that the applicant 's objection was to be regarded as a slight form of misfeasance ( misbruik van recht ; i.e. an abusive use of a right ) .

The applicant 's appeal against the decision of DATE to ORG ( gerechtshof ) was examined at a hearing held on DATE . X , who was heard before ORG during that hearing , made the following statement :

“ This is a picture of the family to which I belong . That is what it is all about . I consider my stepmother as my mother . I really want the adoption very much . The contact with my biological mother is just not right . Sometimes she wants me and then again not . She did try to do nice things with me but I was always only briefly there . I have never understood why she did not want to see me regularly . When she finally returned to the GPE DATE had passed . Then it did not work out anymore . I do not have the feeling that she takes me seriously . I have sought contact with her in DATE . Then she did not want to answer questions which I had . The same thing happened when we spoke over the telephone in DATE in connection with the filing of the adoption request . The contact that I have with Carmen [ X 's stepmother ] is the most important . I just feel that way . She was already there as from DATE . There is a strong bond between us . She has taught me to speak with my hearing disability and has taught me how to ride a bicycle . I do understand why my biological mother disagrees with the adoption request . I have things sorted out much better now . I have also been able to do that because I fight for my interests . At school things are now also better . I realise that the adoption will not change things very much but I want to show that PERSON is my real mother . [ Emotionally speaking , ] I have taken leave from my biological mother already a long time ago . This adoption is a confirmation of that . I have severed the ties with my biological mother a long time ago . Now I want to express , also in a legal sense , the connection I feel with PERSON . I have no contact any more with my maternal family . I have often tried to have a serious conversation with my biological mother but she just wanted to keep things on a cosy [ superficial ] level . For the rest , I refer to what I have put in writing . ”

On DATE , ORG rejected the applicant 's appeal and upheld ORG decision of CARDINAL DATE . This ruling , in so far as relevant reads :

“ CARDINAL ORG has noted ... a written statement by X. ...

CARDINAL The court agrees with Mr PERSON and PERSON that the requested adoption is in the apparent interests of X.

CARDINAL In this finding , the court takes into account that X , also noting her age , has nothing to expect anymore from [ the applicant ] as regards care and education . It further takes into account the long period during which X has been cared for and educated by PERSON and PERSON , as well as X 's explicit agreement with the adoption request and her reasoned statement on this point .

CARDINAL It appears from her statement made before the court , as well as from her written statement referred to in CARDINAL , that X considers PERSON as her sole mother and that already for some considerable time DATE in any event since DATE or DATE – this has been the case . According to X , she then broke off ties with [ the applicant ] because the latter was , in GPE 's opinion , not prepared to have or capable of having anything other than superficial contact with her . In or around DATE X did , according to her statement , seek contact CARDINAL more time with [ the applicant ] . That meeting also resulted , according to X , in disappointment , because once more she did not feel she was being taken seriously . The last experience was during a telephone conversation she had with [ the applicant ] in DATE in connection with the filing of the adoption request . [ The applicant ] has not disputed X 's statement on this point .

CARDINAL As already mentioned above , X considers PERSON as her mother , because she has taught her to speak NORP having been unable to do so [ for a long period ] owing to her hearing impairment – and to ride a bicycle , and has always supported her . In short , PERSON wishes that , in addition to the existing de facto family unit tie ( gezinsband ) between Mrs Janssen – and the CARDINAL children born out of the marriage between Mr PERSON and PERSON – and herself , a legal tie is also to be established by which their mutual relation is also legally confirmed . ”

CARDINAL Unlike [ the applicant ] – who contends that X has incurred emotional problems as a result of the filing of the adoption request – the court accepts that , already prior to the filing of this request , X had contacted a social worker in order to , in her own words , talk about her feelings , and it was thus not the filing of the adoption request as such which caused her to be emotionally burdened . On this point X has declared that those feelings of frustration and anger had already existed a long time and had , according to her , been caused by [ the applicant 's ] incapacity or unwillingness to have a more than mere superficial contact with X. She further felt that she had never been taken seriously by [ the applicant ] in her wish to obtain answers to questions she had .

CARDINAL The above does not lead to a different finding as to X 's apparent interest in the requested adoption and does not entail that the court , for the determination of the case , requires further information from an expert on ORG 's interest in the adoption by PERSON and PERSON .

CARDINAL The [ applicant 's ] right of veto , which she invokes , under Article CARDINAL § CARDINAL of LAW is only limited by the legal rule that a power can not be invoked when it is being abused .

CARDINAL [ The applicant ] submits that , in exercising her right of veto , she is led by X 's interests . According to [ the applicant ] it is in X 's interests , in particular as regards her identity , that a legally recognised family tie between her and X remains in existence . If adoption were to be pronounced , X would be confirmed in her incorrect opinion that she has a bad mother who has left her . That can not be in her interests .

CARDINAL Although the court , noting [ the applicant 's ] own statement made at the oral hearing on appeal , assumes that [ the applicant ] wishes the best for X , and that the absence of a close contact between them is a result of the absence of regular contacts between them DATE which has also been caused by [ the applicant 's ] stay in GPE for the period from DATE , it does not subscribe to the interest advanced by [ the applicant ] in exercising the right of veto . In this respect it refers to the above considerations as to ORG 's apparent interests in the adoption by PERSON .

CARDINAL The veto expressed by [ the applicant ] will be disregarded by the court . In the court 's opinion , [ the applicant ] abuses her power to exercise this right because [ the applicant ] , taking into account the disproportionality between the interest advanced by [ the applicant ] in exercising her [ veto ] power and X 's interest in adoption by Mr PERSON and PERSON which is harmed by the exercise of that [ veto ] power , in all reasonableness should not have exercised that power . In the assessment of ORG 's interest in being adopted by PERSON , the court takes particularly into account that X – who was DATE when Mr PERSON and PERSON started to cohabit and who turned DATE in DATE – has for a long time has been cared for and educated by PERSON and PERSON jointly . ”

The applicant filed an appeal in cassation with ORG ( PERSON ) in which she raised CARDINAL complaints , namely that ORG had failed to take into account her arguments as regards the question whether the adoption would be in X 's interest , that ORG had given insufficient reasons for rejecting her request to obtain a further expert opinion and for its finding that X had already contacted a social worker before the adoption request had been filed , and lastly that ORG had unjustly concluded that her reliance on her right of veto constituted a misfeasance .

In its decision of DATE , ORG rejected the applicant 's appeal in cassation , holding :

CARDINAL [ The first complaint ] fails , because it lacks a factual basis . As appears from its legal considerations under CARDINAL and CARDINAL [ in its ruling of DATE ] , ORG has , unlike what is asserted [ in this complaint ] , examined and rejected the mother 's arguments .

CARDINAL [ The second complaint ] is that the rejection of the mother 's request to involve an expert is incomprehensible and insufficiently reasoned , and that the same applies to the consideration in which ORG finds that X , already before the filing of the adoption request , had contacted a social worker .

It is left to the insight of the judge hearing the facts of the case to decide whether he finds it necessary to obtain further expert information . That is why the first [ limb of this ] complaint fails .

On grounds of ORG 's statement referred to in its legal consideration under CARDINAL , ORG accepted that X , already before the filing of the adoption request , had emotional problems . On that ground the second [ limb of this ] complaint fails .

CARDINAL [ The third complaint ] is about the finding of ORG that the mother has abused her right of veto .

In the examination of this part , the following must be put first . Although the right of veto has been allocated to the other parent because adoption would entail , for him , the far - reaching consequence of the termination of the existing legally recognised family tie between him and the child , the other parent should , in exercising this right , attach great weight to the interest of the child . Furthermore , as a rule the interest of the child in being adopted by the adoptive parents increases the longer it has been cared for and educated by them ( PERSON , DATE , nr . DATE , GPE DATE , CARDINAL ) .

By finding , on the grounds set out in its legal consideration CARDINAL , that the mother abused her right of veto , the legal opinion of ORG has not therefore been shown to have been incorrect . That opinion is also not incomprehensible or insufficiently reasoned . For the remainder it can not , being interwoven as it is with assessments of a factual nature , be further examined on its correctness in cassation proceedings . ”

This ruling by ORG was published in LAW ( PERSON – “ GPE ” ) DATE , no . CARDINAL .

LAW of LAW , as in force at the material time , provided :

“ The [ adoption ] request may be granted only if the adoption fulfils the conditions laid down in LAW , and if it is in the interests of the child as regards both the severance of its ties with its parents and the affirmation of its ties with the adopters , or , in the event of the adoption of a child who is the legitimate or natural child of one of the petitioners , as regards the severance of ties with the second parent and the affirmation of its ties with the step - parent . ”

The relevant part of Article CARDINAL of LAW , as in force at the material time , read :

“ CARDINAL . Adoption shall be subject to the following conditions : ...

( d ) that the [ adoption ] request is not opposed by either parent having a legally recognised family tie with the child . Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned DATE previously to be heard on a similar request by the same petitioners that was rejected , although the conditions laid down in paragraphs ( e ) to ( g ) below were satisfied ; ...

... If the child is the legitimate child of CARDINAL of the petitioners , the provisions of paragraph CARDINAL ( d ) shall be disregarded ; instead , adoption shall be subject to the condition that the request has not been contested by a former spouse who has a legally recognised family tie with the child and whose marriage to the spouse of the stepparent was dissolved ... [ by divorce or dissolution of the marriage after judicial separation ] . ”

Under ORG case - law in respect of Article CARDINAL of LAW , the effective right of veto which this provision gave the legal parent could be overridden if his or her objection to the adoption request constituted a misfeasance ( misbruik van bevoegdheid ) , a notion defined in LAW which provision , pursuant to LAW , does not only apply to property law but also to other areas .

Article CARDINAL:CARDINAL of the Civil Code provides :

“ CARDINAL . A right may not be exercised by the holder if in doing so it is abused .

A right is abused inter alia if it is exercised with the sole intention of harming another or for a purpose other than that for which it was granted , or if DATE in view of the disproportion between the interest to be served and that which is damaged – the decision to exercise that right could not reasonably have been taken .

A right may be inherently incapable of being abused . ”

In a decision taken on DATE , ORG accepted as correct the trial court 's finding that a former spouse 's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between him and his children did not constitute a misfeasance ( see , PERSON , GPE DATE , no . CARDINAL ) .

In a further decision taken on DATE , ORG accepted as correct the trial court 's finding that a former spouse 's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between her and her child in order to prevent the latter reproaching her in the future that , by not opposing the adoption request , she had herself contributed to that tie being lost , did not constitute a misfeasance ( see , PERSON , GPE DATE , no . CARDINAL ) .

In another case , ORG held on DATE that the exercise of the right of veto should attach great weight to the interests of the child and that , furthermore , as a rule , the interests of the child in being adopted [ by CARDINAL of its own parents and a step - parent ] increased the longer it had been cared for and educated [ by those requesting adoption ] ( see , PERSON , GPE DATE , no . CARDINAL ) .

In a decision taken on DATE , ORG rejected , as a misfeasance , the veto by a parent in respect of a requested adoption where the interests of the children in being adopted outweighed the appellant 's interest in exercising his right of veto ( see , PERSON , GPE DATE , no . ORG ) .

On DATE , the Act of DATE on the revision of the law of descent and the regulation of adoption ( PERSON herziening van het afstammingsrecht alsmede PERSON van adoptie ) entered into force , amending inter alia LAW . Pursuant to LAW , proceedings on adoption requests filed prior to DATE were to be determined according to the legal rules in force until that date .

Under the new Article CARDINAL:CARDINAL § CARDINAL ( c ) of LAW , the adopting parent or both adopting parents must be DATE older than the child whose adoption is requested . LAW ( d ) stipulates that an adoption request can only be granted if neither legal parent opposes the request . However , according to LAW CARDINAL § CARDINAL , the opposition by a legal parent can be overruled if the child and parent have not or hardly lived together as a family unit ( gezinsverband ) ; if the legal parent has abused his or her authority over the child or has grossly neglected its care and education , or if – in respect of the minor – the legal parent has been convicted of CARDINAL of the offences defined in Sections XIII to ORG and ORG to PERSON of the Second Book of the Criminal Code ( Wetboek van Strafrecht ) .

The Explanatory Memorandum on the bill , which eventually led to the enactment of this provision , makes it clear that the possibility to overrule a legal parent 's opposition to adoption was possible only under very limited conditions , although it was explicitly stated that ORG caselaw concerning misfeasance remained pertinent and , referring to ORG and CARDINAL:CARDINAL of LAW , that an opposition by a legal parent serving no other purpose than to harm another could already on that ground be overruled . It remained for the judge to assess whether or not in a concrete case a legal parent 's opposition was to be overruled . In cases of adoption by a legal parent and a step - parent of a child whose care and education they had provided during DATE , a large degree of reticence should be displayed in overruling opposition by a legal parent who has not been entrusted with the care and custody of the child . As , in general , there would be no serious grounds that would result in such a parent being deprived of parental authority , and often such a parent would have lived with the child as a family unit , it was considered preferable that , in such situations , more meaning be given to the factual relationship of care and education between the step - parent and the child by way of joint custody ( medevoogdij ) , for example ( GPE ( Parliamentary Documents ) , session DATE , CARDINAL no . CARDINAL , pp . CARDINAL ) .

In a letter sent on DATE to ORG of ORG , containing replies to questions put by Members of ORG on the above bill , the Deputy Minister of ORG stated in relation to the proposed amendment of LAW :

“ Criticism has been expressed about step - parent adoption in literature and legal practice since DATE . This criticism concerns mainly the fact that step - parent adoption after divorce can be used to ban entirely from the life of the child the existence of the legal parent not entrusted with care and custody . There is further criticism about the artificial manner in which this adoption is regulated ( CARDINAL of the parents must indeed adopt his child ) . ... I have taken this criticism to heart . Step - parent adoption is not rendered impossible , but the conditions applicable to an “ ordinary ” adoption also apply to the step - parent adoption : the adopting step - parent must have cared for and educated the child for DATE . Also the condition of the ( minimum ) difference in age applies . Furthermore , the same limited possibilities to overrule the opposition of a parent , as in the case of an “ ordinary ” adoption , are applicable . Finally , the PERSON on the regulation of joint authority and joint custody is currently pending before ORG of ORG . I hope and expect that these proposals , if they enter into force , will reduce the number of step - parent adoptions . ”

The possibility of such joint custody ( gezamelijk gezag ) was introduced in LAW ( Article NORP t ) on DATE .


Violation of Art. 6-1;Violation of Art. 10;Violation of Art. 11;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of a violation sufficient;Non-pecuniary damage - award

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicants were born in DATE and DATE , respectively , and live in GPE . They were members of the executive board of LOC of ORG ( “ the Association ” ) at the time of lodging their applications to the ORG . There were CARDINAL different sets of criminal proceedings brought against the applicants ; however , it should be noted that the first applicant 's case concerned only the first set of proceedings , regarding the ORG members with prior convictions .

On DATE the GPE Governor sent a letter to the ORG requesting that the membership of CARDINAL persons , including the second applicant , be annulled as they were considered to be involved in illegal activities . In this letter it is said that , although the second applicant had been taken into police custody on DATE , she had subsequently been released as it had not been established that she had any connection with the illegal TKP / ML - TIKKO ( ORG / Marxist - Leninist – Turkish Workers ' and ORG ) .

On DATE the ORG replied to the Governor that they would not comply with the request since none of these CARDINAL persons had prior convictions which would ban them from founding or becoming a member of an association , as provided by section QUANTITY and section QUANTITY of LAW ( Law no . CARDINAL ) .

On DATE and DATE respectively , ORG informed the applicants that a prosecution had been initiated against them for non - compliance with section CARDINAL of Law no . CARDINAL , but that no court proceedings would be initiated if they paid a fine of MONEY ( TRL ) per person within DATE . The applicants did not pay the fine within DATE as required by the payment order .

Subsequently , on DATE ORG filed a bill of indictment against the applicants and the other members of ORG . The public prosecutor requested that the accused be fined under LAW and LAW for their failure to comply with the LOC Governor 's request . The bill of indictment was not notified to the applicants .

On DATE ORG , without holding a hearing , found the applicants and the other co - accused guilty as charged and , by a penal order ( ceza kararnamesi ) , fined them TRL CARDINAL per person . In doing so , the court relied on the “ simplified procedure ” stipulated in LAW for relatively minor offences .

The applicants and the other co - accused lodged an objection with ORG against the decision of DATE .

On DATE ORG dismissed the objection without a hearing .

NORP The applicants paid the amounts due .

Subsequently , on DATE CARDINAL of the co - accused , Mr GPE , applied to ORG , requesting the Minister to refer the case to ORG by way of a written order ( yazılı emir ) .

On DATE the Minister of ORG issued a written order and instructed ORG at ORG to ask ORG to set aside the judgment concerned .

On DATE ORG quashed the judgment of ORG dated DATE and the case file was remitted to ORG .

On DATE ORG held a preparatory hearing and included the case in its list . It further decided to summon all of the defendants , including the applicants , to its next hearing .

On DATE , DATE and DATE respectively , the court held CARDINAL hearings .

At its last hearing , held on DATE , ORG held that it lacked jurisdiction to hear the case because , following the promulgation of Law no . CARDINAL on DATE , the sentence imposed on the applicants for not complying with the Izmir Governorship 's order had been classified as an administrative fine . During the proceedings , none of the defendants made submissions to the court .

On DATE ORG upheld the decision of ORG . The case file was sent to the Governorship of GPE .

On DATE the ORG , together with several local non - governmental organisations ( NGOs ) , took part in a civil society movement called the “ Platform of Conscientious Objectors to War ” and made a collective press declaration in protest against the military operations of GPE ( GPE ) in GPE .

On an unspecified date , the prosecutor notified the second applicant that a prosecution had been initiated against her under LAW for her involvement with the “ Platform of Conscientious Objectors to War ” , an organisation without any lawful status . The prosecutor also informed the applicant that no court proceedings would be initiated if she paid a fine of GPE CARDINAL within DATE .

In the absence of payment , the prosecutor filed an indictment on DATE , charging the second applicant and CARDINAL other board members of the ORG with a violation of LAW of the LAW . In the indictment , the prosecutor stated that the platform had no legal basis under NORP law . The bill of indictment was not served on the second applicant .

On DATE ORG , following the simplified procedure and thus without a hearing , convicted the second applicant as charged ( case no . CARDINAL/CARDINAL ) . By issuing a penal order , it sentenced her to an increased fine of GPE CARDINAL . However , the court suspended the sentence pursuant to section CARDINAL of Law no . CARDINAL on the execution of sentences .

On DATE the second applicant lodged an objection with ORG against the penal order . She argued that her conviction infringed her right to freedom of expression and that “ a collective press declaration ” could not be classified as a contribution to the establishment of an unlawful organisation . She further complained that the indictment had not been communicated to her and that the court had not obtained statements or heard counter - evidence from her .

On DATE the criminal court dismissed her objection , again without holding a hearing .

The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events read as follows :

“ Unless otherwise specifically provided by law , objection proceedings are conducted without a hearing . If necessary , the public prosecutor [ may be ] heard . ”

“ As regards infringements falling within its jurisdiction , the ... magistrates ' court makes its ruling , without holding a hearing , through a penal order . The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of DATE ... ”

“ The judge schedules a hearing if he sees an inconvenience in ruling in the absence of CARDINAL . ”

“ A hearing shall be held if an objection is raised to a prison sentence imposed by a penal order . ( ... )

The suspect can be represented by defence counsel during the hearing . ( ... )

Objections to penal orders ( ... ) are examined by a judge at the criminal court of first instance , in line with the procedure described under LAW , CARDINAL and CARDINAL . The objection would suspend the execution of the penal order . ”

In a judgment given on DATE , ORG declared LAW of LAW unconstitutional and a nullity . It held that the lack of a public hearing before FAC which examines objections to penal orders would be a deprivation of the right guaranteed by LAW , as well as LAW .

Article CARDINAL § CARDINAL of LAW , concerning references to ORG by written order of the Minister of ORG ( GPE emir ile bozma – “ the reference by written order ” ) provides :

“ Where the Minister of ORG has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of ORG , he may issue a formal order to ORG requiring him to ask ORG to set aside the judgment concerned ... ”

The relevant provisions of LAW ( Law no . CARDINAL ) , which was in force at the time provided as follows :

Section CARDINAL

“ Everyone over DATE and qualified to exercise civil rights has the right to establish an association without prior notice .

However , the following persons , even if they have benefited from an amnesty , may not found an association :

a ) Persons convicted of any of the following offences : shameful offences such as embezzlement , dishonesty , bribery , theft , fraud , forgery , abuse of religious belief , fraudulent bankruptcy , offences of smuggling other than for manufacturing , supply or consumption , [ or ] improper interference in official competitive tender procedures , procurements and sales .

b ) Any person convicted of those offences appearing in the first chapter of Book Two of the Turkish Penal Code , or of open incitement to commit such offences .

c ) Any person convicted of incitement to enmity and hatred on grounds of differences of class , race , language , religion or region under paragraph CARDINAL of LAW , or of counterfeiting under Articles CARDINAL , CARDINAL or CARDINAL of the same code .

d ) Any person convicted of committing , for political and ideological purposes , those actions mentioned in the first , second or third paragraphs of LAW , or those in the first , second , third , fourth or fifth paragraphs of LAW ... ”

Section CARDINAL

“ Everyone over DATE and qualified to exercise civil rights has the right to become a member of an association . However , those indicated in the second paragraph of LAW may not be members of associations . ”

Section CARDINAL

“ Associations may not form organisations other than federations or confederations . ”


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence;Article 6-3-c - Defence in person);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE . He is at present being held at ORG in GPE .

The applicant suffers from behavioural disorders and was alternately kept in prison and hospital psychiatric wards DATE . He suffers from chronic schizophrenic psychosis , with hallucinations , delusions and aggressive and addictive behaviour .

On DATE the applicant was sent to GPE - La Farlède prison after causing damage in ORG psychiatric hospital , where he had asked to be admitted . As a result , on DATE he was sentenced to DATE imprisonment , of which DATE were suspended . On his arrival at the prison he allegedly set fire to his mattress . He was placed under psychiatric observation , then made to share a cell with another detainee , who was known to have psychiatric problems .

On DATE a fire broke out in the applicant 's cell . Both detainees suffered serious injuries . With burns on PERCENT of his body , the applicant 's cell mate died from his injuries on DATE .

At a hearing on DATE the applicant stated that he “ could not remember exactly how his mattress caught fire ” , and that he “ suffered from schizophrenia , heard voices and saw strange things ” , but that “ everything was better at the moment ” ; he added “ I feel freer since the fire in my cell ... everything has become clearer in my head . I can say that everything is calm now ” .

On DATE the applicant was placed under judicial investigation for arson resulting in total unfitness for work for DATE , and placed in detention pending trial . He denied the charge , claiming that he had no recollection of the events leading up to the fire because he had been on medication at the time . On DATE the public prosecutor 's office made an application for the additional charge of arson aggravated by constructive manslaughter to be preferred against the applicant .

On DATE , in execution of an order of the investigating judge of DATE , PERSON , an expert at the ORG - en - ORG , carried out a psychological examination of the applicant in the psychiatric unit at FAC prison in GPE , where he had been held since DATE . The relevant passages from the report submitted on DATE read as follows :

“ The onset of the disorder at the age of CARDINAL ... heralded in a process of gradual marginalisation for this young adult during which he alternated periods of hospital treatment , voluntary or otherwise , incarceration , training courses and homelessness .

He has lived in this way for DATE , caught up in his illness , with no place in society ...

From the legal standpoint , his convictions bear witness to bouts of violence and excessive drinking , which he says had stopped prior to his incarceration ...

During the examination , PERSON came across as a man with a schizoid personality , an introvert with no interest in the outside world , save for a few recurring scenes in which he sees himself as a victim .

Be that as it may , and whatever part he may have played in the case , PERSON needs regular , long - term psychiatric support . While he is in prison , therefore , it is preferable that he be held in a medical unit , as he was when we met him . ”

CARDINAL subsequent psychiatric examinations carried out respectively on DATE by Professor PERSON and on DATE by PERSON confirmed the existence of chronic hebephrenic schizophrenia manifested in behavioural disorders and aggressive and addictive conduct . The first expert concluded that the offences in issue were related to the psychiatric disorders and that the applicant 's judgment had been disturbed at the time , and that “ the subject appears difficult to cure or rehabilitate , and requires neuroleptic treatment in strong doses combined with regular supervision or even placement in a ORG ” ( a difficult patients ' unit : UMDs are psychiatric hospital wards specialised in the treatment of dangerous mental disorders , including patients committed under LAW of LAW , or “ CCrP ” , see paragraph CARDINAL below ) . The second expert found that it was not possible to say for sure that the applicant 's behaviour was the result of his mental illness , and that there was no way of telling whether , at the material time , he had been suffering from a psychological or neuropsychological disorder which destroyed , affected , or diminished his discernment or his ability to control his actions within the meaning of LAW , and that he would require specialised care even after his release .

On DATE the applicant 's lawyer wrote to the investigating judge requesting his client 's release . He argued that the applicant was known to suffer from psychiatric disorders , even prior to his incarceration , and could not be held criminally responsible . He went on to say “ it is therefore difficult to see what purpose his incarceration might serve in that regard , especially as the offence with which he is charged occurred in prison . It appears , therefore , that prison is not the right place for my client . His place is clearly in a hospital environment . I believe it is the duty of the prosecuting authorities and possibly the prefecture to assume their responsibilities in this regard in the event of his release ... ” .

By an order of DATE , the request for the applicant 's release was rejected because according to PERSON report a criminal penalty would not be inappropriate in the applicant 's case , and pre - trial detention was the only means of preventing pressure being put on the witnesses , ensuring that the accused remained at the disposal of the judicial authorities and putting an end to the disturbance to public order .

On DATE PERSON examined the applicant again , “ to determine whether his alleged losses of memory were real or invented and , if they were real , to determine the possible cause or causes ( regard being had to the treatment he was following , for example ) . He submitted his report on DATE . In it he concluded that it was not possible to say for certain whether the alleged memory losses were real or invented , but they were definitely not caused by the mental disorder he had long been suffering from ; they might , on the other hand , be related to ( sedative ) side effects of the psychotropic drugs used to treat him .

The applicant 's lawyer asked for a second opinion , but his request was rejected by an order of CARDINAL DATE .

On DATE an order was issued for the applicant 's indictment and committal for trial before ORG . On DATE he appealed . His lawyer argued that at the time of the events that had led to his incarceration the applicant had been confined to a psychiatric institution ; on arriving there he had tried to commit suicide by fire , and yet the prison authorities had taken no steps to ensure his safety and that of his fellow detainees . He maintained that his client was not criminally responsible and requested his release , whereupon the prosecuting authorities would be able to request his administrative detention . On DATE the principal public prosecutor at the Aix - en - Provence Court of Appeal requested confirmation of the applicant 's indictment and committal for trial before ORG .

The applicant was placed in the regional psychiatric unit ( RPU ) at FAC prison from CARDINAL April to CARDINAL DATE , from DATE to CARDINAL DATE , from CARDINAL DATE to CARDINAL DATE , and from CARDINAL DATE to DATE . From CARDINAL au CARDINAL DATE , when going through a period of anxiety scarcely compatible with detention in the ORG , the applicant was once again placed by the authorities in a specialised hospital under LAW of the CCrP.

In the interim , on CARDINAL DATE an expert report by PERSON found that the applicant had indeed been suffering from psychological or neuropsychological disorders at the material time , although it was not certain whether this had “ destroyed , affected , or diminished his discernment or his ability to control his actions within the meaning of LAW ” .

By a judgment of CARDINAL DATE the Aix - en - ORG of Appeal gave a prison warder a DATE suspended prison sentence for having inflicted violence on the applicant that resulted in DATE total unfitness for work . The warder had slapped him for refusing to be placed in a cell in which a detainee had started a fire and which he would have to share with a detainee with suicidal tendencies .

By a judgment of DATE the investigation chamber of the Aix - en - Provence Court of Appeal upheld the order for the applicant 's indictment and committal for trial before ORG .

The applicant was compulsorily admitted to hospital from CARDINAL to DATE , from CARDINAL to DATE and from CARDINAL DATE to CARDINAL October CARDINAL . He was placed in the regional psychiatric unit at ORG prison from DATE to DATE , from CARDINAL July to CARDINAL DATE and from CARDINAL October to DATE .

By a judgment of CARDINAL DATE ORG sentenced the applicant to DATE imprisonment and declared him civilly liable for the prejudice suffered by the civil parties . The applicant and the prosecution appealed against that judgment , on CARDINAL and DATE respectively . After the sentence was pronounced the applicant was taken back to the RPU at FAC prison .

On DATE the prefect ordered the applicant 's compulsory hospitalisation in ORG . On CARDINAL DATE his detention there was extended for DATE , until DATE , for the raisons stated in a medical certificate of CARDINAL DATE mentioning that the applicant “ has displayed increased anxiety in DATE , and his old delusions ( of grandeur and of being a father ) have resurfaced ” . It appears from the file that the applicant was again placed in the prison psychiatric unit from CARDINAL to DATE and from CARDINAL April to CARDINAL DATE .

On DATE , while in the prison hospital , the applicant applied to be released , relying on LAW . He argued that his constant moves back and forth between prison and hospital amounted to inhuman and degrading treatment . He explained that when his condition deteriorated to the point where it was no longer compatible with detention , he was placed in hospital , and when he recovered his “ stability ” he was sent back to prison until his condition deteriorated again . He considered that his return to prison constituted a form of torture . Lastly , he argued that the decision to put him back in normal detention at FAC was absurd considering his extreme vulnerability vis - à - vis the other detainees and the danger to his safety . By a judgment of CARDINAL DATE the investigation chamber of the Aix - en - ORG of Appeal rejected his request :

“ There is no medical evidence that PERSON 's state of health is currently incompatible with detention , considering that his compulsory hospitalisation in an approved establishment on several occasions since he was placed in detention , followed by his return to prison , were strictly based on his health needs , in conformity with the provisions of LAW of LAW , and did therefore not amount to inhuman or degrading treatment , and certainly not to torture as alleged ;

It should also be noted that the charges against PERSON concern criminal acts that caused an exceptional , persistent disturbance to public order that his release would be likely to rekindle , namely the destruction by fire of a prison cell resulting in the death of a fellow prisoner ;

Regard being had to the length of the sentence incurred , the guarantees that the accused will appear in court are uncertain in so far as he has no fixed abode and no job and is a repeat offender , having already been convicted of arson ;

In addition , his release would probably disrupt the normal course of the proceedings and the establishment of the truth , bearing in mind the oral nature of the proceedings , and the execution of the sentence in the event of a conviction ;

Detention is therefore necessary before the hearing as a precaution , the obligations under judicial supervision , however strict they may be , being insufficient with regard to the aims pursued . ”

From DATE the applicant was again committed to hospital under LAW of the CCrP.

By a judgment of CARDINAL DATE the FAC ruled , on appeal , that the applicant lacked criminal responsibility :

“ It has been found by a majority of CARDINAL votes that [ the applicant ] ... intentionally destroyed a prison cell ... and in so doing caused the death of a fellow prisoner ;

It has further been found by a majority of votes that [ the applicant 's ] criminal responsibility at the time was diminished within the meaning of LAW . ”

ORG ordered the applicant 's compulsory admission to hospital under LAW of the CCrP ( see paragraph CARDINAL below ) , as he “ suffer[ed ] from a psychiatric disorder that GPE ] treatment and [ could ] jeopardise the safety of others , in particular on account of the unpredictability of his actions linked to his serious mental illness ” .

Article CARDINAL of the Criminal Code reads as follows :

“ A person is not criminally liable who , when the act was committed , was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions .

A person who , at the time he acted , was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions , remains punishable ; however , the court shall take this into account when it decides the penalty and determines its regime . ”

The relevant provisions of LAW subsequent to LAW DATE on preventive detention and diminished responsibility because of mental illness read as follows :

“ Without prejudice to the application of Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL of LAW , when an investigating chamber or a trial court pronounces a judgment or a declaration of diminished responsibility because of mental illness , it may , by a reasoned decision , order the person 's compulsory admission to an establishment mentioned in Article PERSON - CARDINAL of that Code if it has been established , by an expert psychiatric report included in the file of the proceedings , that the person 's mental problems require treatment and jeopardise the safety of others or present a serious threat to public order . The representative of the ORG in the “ LOC ” , or the Police Commissioner in GPE , shall immediately be informed of such decision . The hospitalisation regime in such cases shall be that for hospitalisations ordered pursuant to LAW , the second paragraph of which shall be applicable . Article PERSON of the same Code shall also be applicable . ”

“ Detainees suffering from mental illnesses listed in LAW shall not be held in a prison establishment .

Regard being had to a detailed medical certificate and in keeping with the legislation in force , the prefectural authority shall secure their compulsory admission , as soon as possible , to a certified health care establishment under LAW .

The rule laid down in the second paragraph of Article NORP CARDINAL concerning police surveillance during their hospitalisation shall not apply to them . ”

In its Opinion no . CARDINAL on “ ORG in Prison ” ( DATE ) ORG on ORG stated :

“ ... Prisons are increasingly faced with mental illnesses .

Prisons are increasingly being used to confine psychiatric patients : the percentage of psychiatric pathologies is CARDINAL times higher in prison than in the general population . In DATE an epidemiological survey commissioned by ORG and ORG revealed that PERCENT of detainees ( over CARDINAL ) suffered from psychosis and CARDINAL of those ( CARDINAL ) suffered from schizophrenia .

The tendency is away from psychiatric hospitals towards prisons . The incarceration of people suffering from serious mental disorders can only lead to a loss of bearings and of meaning : the loss of the very meaning of punishment and imprisonment , and in particular of the notion of criminal responsibility ; the loss of the very meaning of treatment and the role of the carer ; and the same loss of the meaning of the role of the prison warder .

A source of suffering for the sick person ( “ prison in itself has an aggravating effect on mental disorders ” , according to a report of the IGAS and the ORG in DATE ) , mental illnesses are also a source of suffering and confusion for the other prisoners , faced on a DATE basis with insufferable , contagious madness . ...

The incarceration of people suffering from serious mental disorders : “ madness ” in prison . This situation , mentioned above , is one of the major ethical problems concerning , on the one hand , the increasing confusion between the respective meanings of punishment and treatment , and on the other , the right to the protection of health and access to treatment . These serious ethical problems of health protection and access to treatment concern both the right of the mentally ill to the best possible medical and psychiatric treatment of their disorders in conditions respectful of their dignity , and the right of their fellow prisoners to the protection of their mental health in the face of permanent exposure to “ madness ” . ...

Recommendations

Look for solutions outside prisons so that the very elderly , people with severe disabilities and those suffering from serious psychiatric disorders are taken out of the prison system for ever . ”

In a report of CARDINAL DATE on “ handling offenders suffering from mental disorders ” the NORP ORG stressed the shortcomings of medical treatment at the RPUs and reiterated the warning of ORG concerning health and medicine in prison ( cited in paragraph CARDINAL above ) that incarceration can aggravate the mental condition of certain detainees . The relevant parts of the report read as follows :

“ ( a ) Shortcomings in medical treatment

While there has been considerable progress in medical treatment in the RPUs , there are certain limits that are difficult to overcome :

- there are still not enough medical staff in spite of the significant progress made in DATE ...

- treatment at the RPUs is mainly day care , generally because of the lack of medical staff and the fact that detainees can not be admitted without their consent . Furthermore , as the above - mentioned study shows , “ conditions in the RPUs are not really comparable to conditions in hospitals ; the rooms are no different from the cells at CARDINAL RPUs . This is often a problem in terms of the treatment available , particularly the existence of first - level intensive - care facilities , the risks linked to metal beds when patients suffer attacks , or the presence of alarm systems .

The most objectionable aspect of the treatment of detainees with mental disorders , however , is no doubt the way they are treated in psychiatric hospitals when they need hospital treatment . They are generally admitted without their consent , and often – for security reasons – placed in solitary confinement cells , where they may sometimes be restrained , without any real medical justification . The duration of the treatment in these conditions is particularly brief , often CARDINAL or three days , which is scarcely enough to secure the patient 's stabilisation . ...

b ) The deterioration of certain pathologies and the risk of suicide . As stated in DATE in the opinion of ORG concerning health and medicine in prison , incarceration can aggravate the mental condition of certain detainees as a result of the combined effects of the aforementioned shortcomings in the treatment dispensed and the living conditions in prisons ( overcrowding , difficulty sleeping ... ) . This state of affairs puts the people concerned in danger , as they may harm themselves ( self - mutilation , suicide ) or the prison staff or other detainees ... ”

In its report on the organisation of psychiatric treatment ( “ the effects of the DATE psychiatry and mental health plan ” ) published in DATE , in a chapter entitled “ The health - justice programme : unfinished progress ” , ORG , stated that the premises of some RPUs were still antiquated , and mentioned the disgraceful state of the RPU at FAC prison :

The report by the ORG ( ORG ) on “ Conditions of detention in GPE ” ( PERSON . ORG , DATE ) stated in a chapter on “ Psychiatry ” that PERCENT of detainees suffered from some form of psychosis , and PERCENT of detainees suffered from schizophrenia . It stressed the confusion between punishment and treatment , which is all the more problematic if one considers , “ like a ORG information report in DATE , that prison is no place for treatment ” . As the Inspector General of prisons observed , “ that we actually contemplate treating mental illnesses in prison is in itself disturbing ” ... Hence the finding – difficult for the authorities to accept DATE of the ORG 's rapporteur on the draft Prisons Act in DATE that “ for many people suffering from mental disorders prison makes no sense – they waste away in the prison environment , complicating the lives of the other prisoners and the prison staff without receiving proper care ” . The report shows the limits of treatment in prison ( lack of staff , conditions in the RPUs ) . Concerning the RPU in GPE , it notes that “ the general state of the RPU premises is run - down , dilapidated , deplorable ( mouldy ) ” . It quotes a psychiatrist as explaining that “ RPUs are not strictly speaking places where people should be hospitalised for treatment ; they are places where people are taken care of , generally on a part - time basis , in a prison , subject to the imperatives of prison life ... They are not equipped for intensive care ... They are insanitary places where it is difficult to imagine that certain cells are supposed to offer appeasement , protection and hope ” when in fact they are “ quite frightening in terms of their appearance and the conditions of hygiene and comfort they offer . ” The report also addresses the question of compulsory hospitalisation : “ In fact , the time prisoners spend in compulsory treatment does not always allow the requisite treatment to be dispensed . Often reduced to a matter of DATE , at best it only serves to treat a phase of acute decompensation , but never properly to treat the pathology ” . Lastly , the creation of specially equipped hospital units ( Unités hospitalières spécialement aménagées – UHSAs ) is mentioned . Initially CARDINAL UHSAs were to open DATE . Another CARDINAL were to be created from DATE . Because of delays , however , CARDINAL unit had opened to date .


No violation of Article 1 of Protocol No. 1 - Protection of property

The applicant was born in DATE and lives in PERSON , a town in LOC of GPE .

The applicant is a retired serviceman . In DATE when the applicant was still serving , his military unit signed a contract with a building enterprise of ORG for the construction of an apartment house for servicemen , the applicant included . In DATE the military unit was disbanded , and the applicant retired .

Not having received the flat , the applicant sued the enterprise . On DATE the ORG ordered ORG to provide the applicant with a CARDINAL - room flat in the CARDINAL-apartment house no . DATE that was being constructed in GPE no . CARDINAL of PERSON . This judgment became binding on an unspecified date in DATE .

In DATE the authority informed bailiffs that the construction had been delayed by a difficult socio - economic situation in the country . In DATE the authority informed the bailiffs that the construction would be finished during DATE .

Frustrated with the delay , the applicant asked the court to change the mode of enforcement to a lump - sum payment of MONEY . The court refused that change because the applicant had failed to prove the impossibility of a literal enforcement . The court noted that the judgment had not specified a time frame for the provision of the flat , and that the construction was in progress . The court also noted that a lump - sum payment would have prejudiced other public expenditure .


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

On DATE ORG in GPE NORP sud u ORG ) ordered “ GPE ” , a company based in GPE , to hand QUANTITY of common salt to the applicant , and pay its legal costs in the amount of MONEY ( “ YUD ” ) .

This judgment became final by DATE .

On DATE the applicant filed an enforcement request in respect of the judgment .

On DATE ORG in Leskovac ( “ the ORG ” ) issued an enforcement order against the respondent company ( “ the debtor ” ) .

On DATE ORG adopted a decision stating that the debtor could not deliver the specified amount of common salt and , instead , ordered it to pay to the applicant ORG CARDINAL .

In the meantime , the debtor was transformed into CARDINAL separate companies - “ Holding Jedinstvo ” , “ PERSON grad ” and “ DATE . novembar ” , all based in GPE , and “ FAC based in Bošnjaca ( “ the debtors ” ) .

On DATE ORG ordered the debtors to pay the applicant ORG CARDINAL with statutory interest as of DATE , plus another ORG CARDINAL for legal costs , and ruled that they had jointly assumed the financial obligations of the initial debtor .

On DATE and CARDINAL September CARDINAL , ORG and ORG in GPE ( ORG privredni sud u ORG ) , respectively , rejected the debtors ' requests for a stay of the enforcement proceedings .

On DATE the applicant filed a submission with ORG , seeking the expedition of these proceedings .

Mr PERSON subsequently became the applicant 's owner and authorised representative .

NORP Throughout this time and during DATE that followed , the applicant proposed different means of enforcement , including bank account seizures as well as the auctioning of the debtors ' movable and , if needed , immovable assets . It emphasised that , where appropriate , police assistance should be sought .

On DATE , DATE and DATE , respectively , the applicant filed requests to this effect with ORG and urged that the proceedings be expedited .

On DATE the applicant sent a complaint , by post , to ORG and GPE , stating , inter alia , that the debtors still had sufficient assets to pay their outstanding obligation , as ORG would have otherwise been “ only too glad ” to declare the enforcement impossible ( “ sud bi [ inače ] jedva [ do]čekao da [ to ] konstatuje i obavesti nas kako je nemoguće sprovesti izvršenje ” ) . This complaint , however , appears not to have reached ORG and GPE .

By DATE the debtors paid the applicant a total of MONEY , the domestic currency having been renamed in the meantime .

On DATE and DATE the applicant complained to ORG , on DATE to ORG in GPE , and on DATE and DATE to ORG ( PERSON ) , respectively .

On DATE the President of ORG informed the applicant that the enforcement proceedings had been hindered by the debtors ' employees as well as the police . While the former physically prevented the bailiffs from conducting an inventory of the debtors ' movable assets , on several separate occasions , the latter refused to assist the bailiffs in their subsequent attempts to seize those very assets . The President further noted that the most recent refusal of the police to assist the bailiffs occurred on DATE , which is why the enforcement had to be postponed . Finally , he stated that the proceedings would recommence as soon as the judge handling the case clarified the situation with the head of the local police , and concluded that the refusal of the police to assist the bailiffs in their duties was common in cases involving “ discontented workers ” engaged in the obstruction of judicial enforcement proceedings .

Article CARDINAL § CARDINAL provides that the enforcement court is obliged to proceed urgently .

Under LAW , if need be , bailiffs may request police assistance . Should the police fail to provide such assistance , the enforcement court shall inform the Minister of ORG , the Government , or the competent parliamentary body of this failure .

This Act entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with Article CARDINAL , however , all enforcement proceedings instituted prior to DATE are to be concluded pursuant to LAW .

Article CARDINAL provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement ( which includes awards granted by final court judgments ) .

Article CARDINAL states that such interest shall be calculated on the basis of the official retail price index ( mesečna stopa rasta cena na malo ) plus another PERCENT DATE ( mesečna fiksna stopa ) .

Article QUANTITY provides , inter alia , that judicial insolvency proceedings may be instituted by a company 's creditor , providing that it can substantiate its claim and document that the debtor in question can not otherwise cover its outstanding obligations .

Under LAW , inter alia , ORG ( ORG banka ORG ) shall monitor the solvency of all corporate entities and initiate judicial insolvency proceedings in respect of those whose bank accounts have been “ blocked ” due to outstanding debts for a period of DATE consecutively , or for DATE intermittently , within DATE .

The relevant provisions of this LAW read as follows :

“ ORG shall set up a ORG [ “ PERSON odbor ” ] ( “ the Board ” ) .

ORG shall be composed of CARDINAL ORG judges elected for DATE by the plenary session of ORG . ”

“ In response to a complaint or ex officio , ORG is authorised to oversee judicial proceedings and look into the conduct of individual cases .

Following the conclusion of this process , the ORG may initiate , before ORG , proceedings for the removal of a judge based on his unconscientious or unprofessional conduct , or propose the imposition of other disciplinary measures . ”

Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of this Code incriminate “ obstruction of an official in the performance of his or her duties ” ( sprečavanje službenog lica u vršenju službene dužnosti ) , “ abuse of office ” ( zloupotreba službenog položaja ) , “ judicial malfeasance ” ( kršenje zakona od strane sudije ) and “ official malfeasance ” ( nesavestan rad u službi ) , respectively .

Article CARDINAL incriminates “ non - enforcement of a court decision ” ( neizvršenje sudske odluke ) .

This Code entered into force on DATE , thereby repealing LAW .

The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .