András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

NORP The applicant , PERSON , is a NORP national who was born in DATE and is currently serving his sentence in ORG ( kazneno - popravni zavod ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE ORG in GPE , GPE , found the applicant guilty of murder and illegal possession of firearms , and sentenced him to CARDINAL years’ and CARDINAL months’ imprisonment .

On an unspecified date thereafter this judgment became final .

The applicant started serving his sentence in GPE , but on DATE and upon his own request he was transferred to the ORG , pursuant to the Agreement concluded between GPE and ORG in GPE ( hereinafter “ the Agreement ” ; see paragraphs CARDINAL below ) .

On DATE the applicant was transferred once again , this time to ORG .

On an unspecified date the applicant filed a request to be transferred back to a prison in GPE based on LAW ( see paragraph CARDINAL below ) .

On DATE the Directorate for ORG ( hereinafter “ the Directorate ” ) , as a department within ORG ( see LAW at paragraph CARDINAL below ) , rejected this request , noting that it had been based on family - related and health reasons . The ORG firstly observed that the applicant had only complained about the pain in his ankles , in which respect he had been duly provided with adequate medication . Secondly , ORG had its own prison hospital and , if needed , the applicant could also be taken to other medical institutions outside of the penitentiary . Thirdly , ORG was the closest prison to GPE , which was where the applicant ’s family lived . Fourthly , ORG was best placed to secure the applicant ’s rehabilitation . Finally , the Agreement did not establish the applicant ’s “ right to be transferred ” to a prison of his choice . On the contrary , any transfer depended on the consent of the parties to LAW .

On DATE the applicant filed a fresh request to be transferred to GPE . Therein he explained that his entire family lived there and could not afford to visit him on a regular basis in LOC , nor for that matter , in view of the postal costs involved , even send him packages . The applicant further maintained that the quality of medical services provided in ORG was not adequate .

On DATE the ORG rejected this transfer request . For the most part , it restated the reasons given on DATE , adding , inter alia , that the applicant had had regular contact with his family , albeit with some “ technical ” difficulties recently . Lastly , the ORG noted that family reasons could not be decisive in the assessment of a transfer request , and recalled that the applicant had initially been transferred from GPE upon his own request .

On DATE , not having yet received the ORG ’s decision of CARDINAL DATE and relying on LAW DATE and LAW ( see paragraphs CARDINAL and CARDINAL below ) , the applicant filed an appeal with the Minister of ORG wherein , inter alia , he complained about the failure of the ORG to consider his request of CARDINAL DATE .

Having been served with the ORG ’s decision of CARDINAL DATE , on DATE the applicant filed an appeal with the Minister of ORG against it . Therein he stated that : ( i ) the ORG was not competent to consider the transfer request ; ( ii ) it should instead have properly been examined by another department within ORG ; ( iii ) the ORG had not complied with the procedures set forth in the ORG ; and ( iv ) the impugned reasoning was incoherent since the applicant ’s family lived in GPE , QUANTITY from LOC , and had had to negotiate a certain administrative procedure whenever leaving its territory .

It would seem that on DATE the applicant filed another submission with the Minister of ORG in support of his appeal of DATE .

On DATE , and in view of the ORG ’s ruling of CARDINAL DATE , ORG rejected the applicant ’s appeal of CARDINAL DATE , deeming it moot . The appeal of DATE is apparently still pending .

On DATE the applicant started a hunger strike , seeking his transfer to a prison in GPE .

As of CARDINAL DATE the applicant also refused to take any water .

On DATE the applicant discontinued the strike altogether .

On DATE the applicant again started a hunger strike , seeking his transfer to GPE .

On DATE , following respiratory , kidney and orientation problems , as well as weight loss ( QUANTITY in all ) , the applicant discontinued the hunger strike .

NORP However , on DATE , having received the ORG ’s decision of CARDINAL DATE , the applicant decided to resume the strike , which included his refusal to take either food or water .

NORP The applicant thereafter apparently lost consciousness on several occasions , received an infusion and experienced kidney pains .

On DATE the applicant informed his lawyer that , fearing even more serious consequences , he had started taking water and would discontinue his hunger strike shortly .

On CARDINAL DATE the applicant ’s lawyer informed the court that his client had indeed discontinued the strike altogether .

NORP The applicant maintained that throughout the strikes referred to above , he had been examined by the prison doctor on a DATE basis , but that when he had needed urgent medical assistance no such assistance had been provided .

The applicant seems to have also been subjected to blood tests periodically , as well as to blood pressure and weight monitoring . The applicant was repeatedly warned by the prison medical staff that the strike was seriously endangering his health .

Lastly , the applicant stated that it was never his intention to commit suicide , but merely to be transferred to a prison in GPE .

The relevant provisions of this LAW read as follows :

“ This Act governs , unless specifically provided otherwise by law , the procedure of enforcement of criminal sanctions ... ”

“ ... [ Convicted persons ] are entitled to the protection of fundamental rights guaranteed by LAW , ratified international agreements , generally accepted rules of international law , and LAW . ”

“ ... [ Convicted persons are entitled to ] ... judicial review of individual ... [ decisions ] ... related to their rights and duties , in accordance with the provisions of this LAW .

“ The Directorate for the Enforcement of Criminal Sanctions ... [ hereinafter ‘ the ORG ] ... shall organise , implement and supervise the enforcement of imprisonment ...

The ... [ Directorate ] ... is an administrative authority within ORG of GPE . ”

“ Convicted persons are entitled to receive visits from ... [ their family members and others in accordance with the conditions set forth by LAW ] ... ”

“ Convicted persons shall have the right to receive packages ... ”

“ Convicted persons are entitled to medical care according to the general rules on health care , as well as the provisions of this LAW .

Convicted persons who can not receive adequate medical treatment ... [ in prison ] ... shall be transferred to ORG or another health [ care ] institution ... ”

“ Medical treatment of a convicted person may only be effected with his consent .

Forced feeding of a convicted person shall not be allowed .

Exceptionally , if a convicted person seriously impairs his health or his life , by refusing medical treatment or food , ... measures shall be applied as determined by a doctor . ”

“ The [ prison ] doctor ... shall be obliged to :

( CARDINAL ) examine on a DATE basis a convicted person who is ill or is refusing food or water ... ”

“ A convicted person mаy , for the purpose of exercising his rights , file a request with ... [ a person authorised by the prison to deal with the matter at issue ] ...

The [ authorised ] person referred to in paragraph CARDINAL of this Article must , within DATE as of receipt of the request , provide the convicted person with a written and reasoned response .

A convicted person shall have the right to lodge a complaint with the prison governor concerning any breach or irregularity suffered by him whilst in prison .

The prison governor , or another person authorised by him , shall consider the convicted person ’s complaint , and shall decide upon it within DATE .

A convicted person who receives no such ... [ decision ] ... or is not satisfied with the decision rendered shall have the right to file an appeal with the Head of the ORG within DATE .

The Head of the ORG shall be obliged to rule on this appeal within DATE as of its receipt . ”

“ Should a convicted person consider that his right has been breached by the prison governor personally , he may file a complaint with the Head of the ORG .

Should the Head of the ORG , or another person authorised by him , ascertain that the complaint was not brought for reasons cited in paragraph CARDINAL [ of this Article ] , the complaint shall be forwarded to [ another ] competent body and the convicted person shall be informed thereof .

The Head of the ORG , or another person authorised by him , may investigate the merits of the complaint by means of looking into the relevant prison records , [ and/or ] by interviewing the prison governor [ , ] ... the prison staff ... [ or ] the convicted person concerned ... [ , as well as ] ... other convicted persons without the presence of prison staff .

Should the complaint be deemed well - founded , the Head of the ORG shall order that the breach of the convicted person ’s right be rectified . ”

Should [ the Head of the ORG ] consider that the breach of a convicted person ’s right was caused by the actions of a member of the prison staff , ... [ he ] ... shall inform in writing the prison governor , as well as the authorised prison supervisor , and , should he consider that the breach was caused by the action of the prison governor personally , he shall [ likewise ] inform the authorised prison supervisor . ”

“ A convicted person shall have the right to complain to the authorised prison supervisor , without the presence of prison staff .

The content of the complaint shall be confidential . ”

“ Upon request of a convicted person or the proposal of the prison governor , and where there are good reasons for so doing , the Head of the ORG may transfer the convicted person from one institution to another .

The Head of the ORG may [ also ] , for reasons of security , transfer a convicted person ex officio .

A convicted person may file an appeal against the decision of the Head of the ORG referred to in DATE and QUANTITY of this Article with the Minister of Justice , within DATE as of ... [ its receipt ] ... An appeal against the decision of the Head of the ORG shall not postpone its enforcement . ”

“ A convicted person whose transfer request has been rejected may not re - submit the request before DATE have elapsed following the adoption of the decision of the Head of the ORG in response to his earlier request . ”

“ A convicted person shall be entitled to judicial recourse against the final decision ... limiting or violating one of his rights set forth under LAW .

Judicial recourse referred to in paragraph CARDINAL of this Article shall be secured through an administrative dispute . ”

“ An action seeking judicial redress shall be filed within DATE as of receipt of the decision in question .

The court of competent jurisdiction shall rule on the action referred to in paragraph CARDINAL of this Article within DATE as of its receipt . ”

“ The enforcement of detention [ in an ongoing criminal case ] is subject to supervision by the president of ORG that has jurisdiction for the territory where the main premises of the detention facility are located . ”

Article CARDINAL § CARDINAL provides , inter alia , that in simple matters an administrative body shall be obliged to issue a decision within DATE as of when the claimant lodged his or her request . In all other cases , the administrative body shall render a decision within DATE thereof .

Article CARDINAL § CARDINAL enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied . Where an appeal is not allowed , the claimant shall have the right to directly initiate an administrative dispute .

Articles DATE and CARDINAL provide , inter alia , that an “ administrative act ” is an act / decision adopted by a ORG body in the determination of one ’s rights and obligations concerning “ an administrative matter ” .

Article CARDINAL § CARDINAL provides that administrative disputes shall be adjudicated by ORG .

Articles DATE and CARDINAL provide , inter alia , that an administrative dispute may be instituted against an administrative act / decision rendered at second instance , as well as against one issued at first instance should no appeal lie against it . Moreover , an administrative dispute may also be instituted , under conditions set forth by this LAW , in situations where a competent ORG body has failed to decide on a party ’s request or has failed to rule on appeal at second instance .

Article CARDINAL § CARDINAL provides , inter alia , that should an appellate body fail to issue a decision upon a claimant ’s appeal within DATE the claimant may repeat the request , and if the appellate body declines to rule within DATE the claimant may institute an administrative dispute .

Article CARDINAL § CARDINAL provides , inter alia , that should a first instance administrative body fail to issue a decision upon the claimant ’s request within a period provided in ORG ( see paragraph CARDINAL above ) , in matters where an appeal has been excluded , the claimant may repeat the request and if the first instance body declines to rule within DATE the claimant may institute an administrative dispute before a court of law .

Article CARDINAL provides , inter alia , that the court shall consider the lawfulness ( zakonitost ) of the impugned administrative decision , as well as any reasons for its possible nullity ( ništavost ) .

Article CARDINAL § CARDINAL provides , inter alia , that should the court rule in favour of the claimant , the impugned administrative decision shall be quashed fully or partially , and the matter shall be remitted to the competent administrative authority for re - examination .

Articles DATE provides , inter alia , that should the court rule in favour of the claimant , it shall also , where the established facts of the case and its nature so warrant , have the power to decide on the merits of the claimant ’s original request ( spor pune jurisdikcije ) .

Article CARDINAL § CARDINAL provides that the court may not rule on the merits in cases where an administrative decision has been adopted by the competent body in the exercise of its discretion .

Article CARDINAL § CARDINAL provides , inter alia , that in cases where repeated administrative proceedings , following the quashing of an impugned decision adopted earlier , would cause the claimant serious harm , the court shall be obliged to rule on the merits of the claimant ’s original request , providing that the relevant facts have been established before the court itself .

DATE provides that where an administrative dispute has been brought under LAW the court shall , should it rule in favour of the claimant , order the administrative body in question to decide upon the claimant ’s original request . However , should the established facts of the case and its nature make it possible , the court shall also have the power to decide on the merits thereof .

ORG has frequently considered , on their substance , requests filed by convicted persons , involving various issues regulated by ORG ( see , for example , judgments U. nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) .

Article CARDINAL provides that a “ constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . ”

The relevant provisions of this LAW read as follows :

“ The decisions of the Constitutional Court shall be final , enforceable and binding . ”

“ A constitutional appeal may be lodged against an individual decision or an action of a ORG body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the LAW , if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law .

A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant ’s right to a trial within a reasonable time . ”

“ A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by LAW have been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers . ”

“ A constitutional appeal may be lodged within DATE of receipt of the individual decision or the date of commission of the actions ... [ in question ] ... ”

“ When ORG finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by LAW , it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time .

The decision of ORG accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body , in accordance with the law . ”

“ ... [ An applicant who has obtained a ORG decision in his or her favour ] .. , may lodge a compensation claim with ORG in order to reach an agreement in respect of the amount ... [ of compensation to be awarded ] ...

If ORG does not rule favourably in respect of a compensation claim or fails to issue a decision within DATE from the date of its submission , the applicant may file a civil claim for damages before the competent court . If only partial agreement has been achieved , a civil claim may be filed in respect of the remainder of the amount sought .

The composition and operation of ORG shall be regulated by the Minister of Justice . ”

Article CARDINAL § CARDINAL provides , inter alia , that a convicted person may be transferred from a prison supervised by CARDINAL party to the ORG to a prison supervised by the other party . The convicted person at issue shall be entitled to express his interest to be transferred in accordance with the LAW .

Article CARDINAL provides that the transfer may formally be requested by CARDINAL of the parties to the Agreement .

Under LAW , a convicted person may be transferred to GPE if , inter alia , the following conditions are met : ( i ) the criminal offence is punishable by the criminal law of both parties ; ( ii ) the sentencing judgment is final ; ( iii ) the convicted person still has DATE of the sentence to serve ; and ( iv ) the convicted person , as well as the parties to the Agreement , have all consented to the transfer in question . It is lastly stated that when it comes to transfers of convicted persons to GPE , special priority shall be granted to those who were born in GPE , as well as those whose family members live there .

Article CARDINAL § CARDINAL provides that all convicted persons in respect of whom the Agreement may be applicable shall be informed thereof .

Article CARDINAL § CARDINAL provides that a convicted person shall be informed , in writing , about any and all decisions adopted by the parties to the Agreement in respect of the transfer .

Article CARDINAL provides that the Agreement shall be applicable to criminal sanctions imposed before as well as after its entry into force .

Article CARDINAL § CARDINAL provides that the Agreement shall enter into force on the date of its signature by the parties .

Rule CARDINAL provides that “ [ p]risoners shall be allocated , as far as possible , to prisons close to their homes or places of social rehabilitation ” .

Rule CARDINAL provides that “ [ as ] far as possible , prisoners shall be consulted about their initial allocation and any subsequent transfer from CARDINAL prison to another ” .


The applicant is a NORP citizen , born in DATE , and resident in GPE . She is represented before the ORG by Messrs. ORG , solicitors practising in GPE .

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

A.

The applicant is the mother of CARDINAL children , PERSON and PERSON , who were born respectively on DATE and CARDINAL DATE . On DATE , ORG was admitted in a serious condition to ORG , GPE , after she had ingested a quantity of methadone . The child survived .

At the time of the incident both the applicant and the children 's father were registered heroine addicts . Both had been prescribed methadone as a substitute . The incident was investigated by the police and ORG , the local authority responsible for the children 's welfare . The explanation given by the applicant was that the child had ingested the methadone accidentally . The police were of the view that the applicant had deliberately administered methadone to the child , who was suffering from toothache and who could not be pacified , in order to induce her to sleep , but considered there to be insufficient evidence to prosecute the applicant .

ORG ( hereinafter “ the Council ” ) instituted care proceedings under LAW DATE and obtained an emergency protection order in respect of the children from ORG on DATE . On DATE , following the transfer of the proceedings to ORG , the ORG obtained an interim care order which was thereafter renewed until the final order was made on DATE .

On DATE , the applicant through her legal advisers sought the leave of the court under rule CARDINAL of LAW DATE for disclosure of the court papers , which included ORG 's hospital case notes , for the purpose of preparing an expert 's report dealing with the consumption of methadone by CARDINAL LOC made an order that :

“ The parents shall have leave to disclose to a medical expert the ORG papers for the purposes of a report regarding the frequency of the consumption of methadone by < E.L.>. The identity of such report is to be disclosed to all parties . The report is to be filed by the CARDINAL DATE . ”

The order accorded with the general practice relating to the disclosure of expert evidence then pertaining in ORG in child care proceedings , which procedure was subsequently endorsed by ORG in ORG v. M ( ( DATE ) Fam . CARDINAL ) . The effect of the order was that the report when filed would be available for inspection and copying by any party to the proceedings and the ORG ad Litem .

The applicant , though her legal advisers , commissioned a report from a consultant clinical pathologist , PERSON was instructed to advise whether , on the basis of the hospital case notes which had been released by the court , the ingestion of methadone by the child had been an isolated incident , or was one of a number of such incidents . In his report dated DATE , PERSON concluded that there was no evidence of habituation to methadone , but went beyond the remit of his instructions to express doubts about the account of the incident which the applicant had given to the police .

The report was lodged with ORG pursuant to the District Judge 's order of DATE . At that stage , notwithstanding that the report was adverse to their client 's interests and tended to incriminate her , the applicant 's lawyers did not appeal the order or apply to vary its terms .

On DATE , by consent , the court made a residence order in respect of both children to the father with contact to the applicant , and granted supervision orders to the ORG .

The police , on learning of the existence of the report and that it tended to incriminate the applicant , applied to ORG for an order that the report be disclosed to them . On DATE , the matter having been transferred for determination by ORG , Judge PERSON made an order authorising disclosure of the report to the police . The applicant appealed against the order on grounds ( i ) that the report was protected by legal professional privilege ; ( ii ) that its disclosure would infringe her privilege against self - incrimination ; and ( iii ) that the judge had erred in the exercise of her discretion in authorising the disclosure of the report . The applicant 's appeal was dismissed by ORG on DATE who refused the applicant leave to appeal to ORG . Leave was subsequently granted by ORG on CARDINAL DATE . On DATE , by a majority of CARDINAL , ORG dismissed the applicant 's appeal ( see ORG for the reasons for the decision ) .

Following a child protection conference , the children were removed from ORG in DATE , at which time it was reported that they were living happily with their father . The supervision order expired in DATE and the ORG has had no further involvement .

According to the Government , ORG , having considered the expert report and further statements obtained by the police , decided not to prosecute the applicant as there was insufficient evidence against her .

B. Relevant domestic law and practice

The law in relation to legal professional privilege and litigation privilege was analysed in some detail by ORG in giving their judgment in the instant case . In giving the judgment of the majority , Lord PERSON reasoned , inter alia , as follows :

“ < Various judgments have > all emphasised the important part which litigation privilege plays in a fair trial under the adversarial system . This raises the question of whether proceedings under < the Children Act DATE > are essentially adversarial in their nature . If they are , litigation privilege must continue to play its normal part . If they are not , different considerations may apply .

I agree with the President < of ORG > that care proceedings are essentially non adversarial . Having reached that conclusion and also that litigation privilege is essentially a creature of adversarial proceedings it follows that the matter is at large for this ORG to determine what if any role it has to play in care proceedings .

Before < Dr F. > could report it was necessary to obtain the leave of the District Judge under rule CARDINAL < of LAW DATE > to disclose to him the court papers . His report appears to have been based entirely on the hospital case notes and there is no suggestion that he had any communication with the < applicant>. Accordingly all material to which he had access was material which was already available to the other parties . ...

However in these proceedings which are primarily non - adversarial and investigative as opposed to adversarial the notion of a fair trial between opposing parties assumes far less importance . In the latter case the judge must decide the case in favour of CARDINAL or other party upon such evidence as they choose to adduce however much he might wish for further evidence on any point . In the former case the judge is concerned to make a decision which is in the best interest of the child in question and may make orders which are sought by no party to the proceedings ( sections CARDINAL(CARDINAL)(b ) , CARDINAL ) , ORG ) < of LAW DATE > ) . Furthermore the court has wide powers under rule CARDINAL ) < of LAW DATE > to require the guardian ad litem to obtain expert reports and other assistance . Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end . In these circumstances I consider that the care proceedings under Part PERSON of LAW DATE > are so far removed from the normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child . In reaching this conclusion I attach considerable importance to the following dictum of < the President of ORG > in the GPE case … :

‘ If a party , having obtained the leave of the court , were to be able to conceal , or withhold from the court , matters which were of importance and were relevant to the future of the child , there would be a risk that the welfare of the child would not be promoted as LAW DATE requires.’

I would add that if litigation privilege were to apply to PERSON report it could have the effect of subordinating the welfare of the child to the interests of the appellant in preserving its confidentiality . This would appear to frustrate the primary object of the LAW .

... The better view is that litigation privilege never arose in the first place rather than that the court has power to override it . It is excluded by necessary implication from the terms and overall purpose of the LAW . This does not of course affect privilege arising between solicitor and client . ...

Where a court is asked to make an order for disclosure compliance with which is likely to involve the danger of self - incrimination by the defendant an order producing such a result should not be made ... This , however , was not such a case . When the appellant applied for the order of CARDINAL DATE the District Judge had no reason to suppose that the report which was sought might incriminate the person who was seeking it . In that situation he can not be criticised for requiring disclosure of the report to all parties . It was only when the report became available that its possible incriminating effect became known and it was at that stage when the < applicant > was first in a position to advance her claim to privilege by seeking a variation of that part of the order which required the report to be filed . In the event she filed the report without taking any steps to assert a claim of privilege . Thus the < applicant > voluntarily initiated the process , did not appeal the order when it was made and obtempered it without seeking a variation notwithstanding the unfavourable nature of the report had by then become apparent . ”

In giving the judgment of the minority , Lord PERSON gave amongst his reasons the following :

“ ... The expression adversarial carries with it a connotation of confrontation and conflict . Ideally , these characteristics have no place in family proceedings . In family proceedings all parties should be working together to assist the court in finding the answer which will best promote the welfare of the child . In practice matters are not so simple . A father who is alleged to have sexually abused his stepdaughter is concerned to protect his own reputation as well as his family life . He can hardly be blamed if he regards the proceedings as no less confrontational and adversarial than any other civil proceedings . This feature throws little light , if any , on the present question .

At bottom , the answer to the present question turns on what are the requirements of procedural fairness in the conduct of family proceedings . In this context the contrast between inquisitorial and adversarial needs handling with care , for CARDINAL reasons . First , the contrast suggests that proceedings are either wholly adversarial or wholly inquisitorial . They partake wholly of CARDINAL character or wholly of the other . This is not always so . Proceedings may possess some adversarial features and some inquisitorial features . Family proceedings are an example .

Second , and more importantly , the contrast can all too easily divert attention from the crucial question . Fairness is a universal requirement in the conduct of all forms of proceedings , inquisitorial as much as adversarial , although the requirements of fairness vary widely from CARDINAL type of proceedings to another . The requirements of fairness depend upon matters such as the nature of proceedings , the subject matter being considered , the rules governing the conduct of the proceedings , the parties involved , the composition of the tribunal , and the consequences of the decision . The distinction between the adversarial and inquisitorial nature of proceedings is no more important than one of these elements , although sometimes a very important element . The crucial question is not whether , and to what extent , the proceedings are inquisitorial rather than adversarial . The question to be addressed is what is required if the proceedings are to be conducted fairly .

Family proceedings are court proceedings . The court has to make decisions affecting , often profoundly , the whole future of a child and his or her family . Whenever necessary , the court makes findings of fact . It goes without saying that the parties to such proceedings are entitled to have a fair hearing . Whatever fairness does or does not require in other contexts , in this context a fair hearing includes at least the right to present one 's case and to call evidence .

Under LANGUAGE law an established ingredient of this right is legal professional privilege . Parties preparing for a court hearing may obtain legal advice in confidence . A party can not be required to disclose communications between himself and his lawyer , or communications between the lawyer and third parties which come into existence for the purposes of obtaining legal advice in connection with proceedings . A proof of evidence from a witness is not disclosable . Nor is a report obtained from a potential witness of expert opinion . A party may be required to produce a witness statement or expert 's report in advance as a pre - condition to the admission of that evidence at the hearing , but he is not required to disclose proofs of witnesses whose evidence he does not intend to adduce at the hearing . The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases .

I can see no reason why parties to family proceedings should not be as much entitled to a fair hearing having these features and safeguards as parties to other court proceedings . Indeed , it must be doubtful whether a parent who is denied the opportunity to obtain legal advice in confidence is accorded the fair hearing to which he is entitled under article CARDINAL(CARDINAL ) , read in conjunction with article CARDINAL of LAW .

... < A > n expert can be compelled to give evidence on an issue in the proceedings , even if he has already made a privileged report to a party who decides to put that report in evidence . I must now address an argument that , this being so , imposing a condition is no more than sound and sensible case management . When the court imposes the condition it is doing no more than achieve , by a convenient and expeditious route , a result the court could in any event achieve : production of the expert 's evidence on an issue in the proceedings .

If this were the only effect of a disclosure condition , I would agree with the submission . In practice , however , a disclosure condition would be bound to have an inhibiting effect on communications between the solicitor and the expert . An expert 's report usually has to be read in conjunction with the letter of instructions . The solicitor would always be looking over his shoulder , conscious he is writing an “ open ” and not privileged letter . The expert would need to confine himself strictly to the issue on which his advice is compellable , and not range more widely , because his report also would be open and not privileged . These would be significant inroads into the freedom and frankness of confidential communication which the privilege exists to secure . For this reason a disclosure condition goes beyond the convenient ordering of evidence .

This mischief is not cured by giving a party leave to return to the court and apply for the disclosure condition to be lifted after the report has been prepared . There could be no certainty that the condition would be lifted . So at the earlier stage , when the report is being obtained , the inhibitions on freedom of communication would still be present .

Your Lordships were told < by counsel for the applicant > that the present practice is a cause of considerable anxiety to parents . I would expect this to be so . There are bound to be problems when confidentiality is removed from communications a party needs to make in preparing properly for a hearing . I do not think the present practice can be regarded as satisfactory . ”


Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

The first applicant is the mother and the second applicant is the father of Mr PERSON , born in DATE . The applicants were born in DATE and DATE respectively . They live in the town of ORG , in GPE .

At the material time the applicants and PERSON resided at CARDINAL FAC in GPE . Their property consisted of QUANTITY houses .

On DATE the applicants and PERSON were at home in one of the houses .

At TIME on DATE about CARDINAL men in camouflage uniforms burst into the applicants’ bedroom . All of the intruders wore masks , were armed with sub - machine guns and spoke unaccented NORP . The intruders blinded the applicants with their flashlights . When the first applicant asked them why they were there , they ordered her in LANGUAGE to lie on the floor and pushed her to the ground . CARDINAL of the intruders stepped on her back , pressed his gun against her neck and told her to remain quiet . At the same time several other armed men pushed the second applicant out of bed , tied his hands and asked him where he kept his weapons . He replied that there were no weapons in the house and they then ordered him to be silent . CARDINAL of the armed men pressed his gun against the second applicant ’s head . While the applicants stayed on the ground , several intruders went into another room where PERSON was sleeping . After a while the armed men in the applicants’ bedroom ordered the applicants not to move and left the room .

The first applicant immediately ran to the window and saw CARDINAL other men in the courtyard . CARDINAL of them punctured the tyres of the applicants’ car . Another man broke the lamp above the entrance to the house . All of the men then left the courtyard . The first applicant followed them outside and saw that they had turned right into FAC . She then heard the noise of a vehicle and a sound as if someone was being thrown into it . When she returned home she realised that the armed men had taken PERSON away and she started crying and shouting for help .

According to a written statement by GPE , enclosed by the applicants , on TIME DATE she felt unwell and went outside . She heard shouting coming from the applicants’ house . Immediately thereafter she saw a group of men moving quickly from the applicants’ house in the direction of FAC . GPE immediately rushed to the applicants’ house .

According to a written statement by DATE , at TIME on DATE she was returning home from her late shift at a bakery where she worked at the time . On her way home she saw several ORG vehicles parked at the corner of GPE and GPE streets , and a number of camouflaged men whom she identified as servicemen . The servicemen were armed and some of them were masked . They were standing QUANTITY apart from each other and kept themselves in formation . She quickly passed by them without being stopped ( despite the curfew ) and initially went in the direction of her home , but then heard the first applicant ’s screaming and turned back to go to the applicants’ house . She found the first applicant and PERSON there . A.M. untied the second applicant and then accompanied the applicants to the place where she had seen the UAZ vehicles , but by the time they arrived there the vehicles and the servicemen had already left .

According to the statement by GPE , all of the people present in the applicants’ house heard the noise of departing vehicles and , after untying the second applicant , they tried to follow the vehicles by their noise but did so in vain . Their attempt brought them to the centre of ORG , where they reported the matter to the local police .

The applicants have had no news of PERSON since DATE .

The above account of the events is based on the information contained in the application form ; written statements by the applicants dated DATE ; and written statements by GPE and DATE .

The Government submitted that the domestic investigation had obtained no evidence that PERSON had been abducted by ORG agents .

NORP Immediately after the intruders left with PERSON , the applicants , accompanied by TIME and GPE , went to the local police station and alerted the police officers to the abduction . An on - duty police officer took note of their complaint and told them to return home .

On DATE CARDINAL police officers came to the applicants’ house and questioned them about the circumstances of the abduction of PERSON . The applicants were allegedly told that the police would not be able to help them find their son .

On DATE the applicants filed a written complaint about the abduction of PERSON with the prosecutor ’s office for LOC ( “ the district prosecutor ’s office ” ) .

On DATE the second applicant complained to the Special Envoy of the President of GPE in GPE about the abduction of his son . He submitted , in particular , that PERSON had been abducted by a group of armed camouflaged men who had arrived in several vehicles , including a UAZ vehicle and an armoured personnel carrier ( “ APC ” ) .

On DATE the applicants allegedly found a note bearing the handwriting of PERSON at the entry to their house . The note stated that the applicants were to pay MONEY to an unidentified person , upon which PERSON would be released . The applicants were instructed to pay CARDINAL of the sum before the referendum on the LAW for GPE which was to take place on DATE . The remaining amount was to be paid after the referendum . The applicants obtained the money and made preparations to pay it but no one showed up to collect it .

On DATE the applicants’ relative , PERSON , told them that on DATE PERSON , who was a police officer and a friend of PERSON , had been on duty together with other police officers at the local school building . The police had been guarding the building because it was to be used as a polling station in the forthcoming referendum . Mr I. said that PERSON had told him that on TIME DATE he had seen a big group of NORP servicemen in camouflage uniforms . They had been leading a man away and urging him to hurry . PERSON A. had allegedly also heard the servicemen throw the man into a vehicle . According to PERSON , on DATE during the night , when he was again on guard duty at the school building , the police officers had spotted an UAZ car parked between the school and the applicants’ house . There had been CARDINAL people in the car . The police officers had contacted the local police and had been advised that those people were members of ORG ( “ the ORG ” ) , that they were carrying out a special operation in ORG and that the police officers were not to interfere .

Subsequently , the applicants contacted CARDINAL military servicemen from a military unit located near ORG . The applicants did not give their names . Those servicemen allegedly claimed that a “ PERSON ” from the ORG department in ORG had “ [ taken ] over ” the case concerning the ORG son .

On DATE the district prosecutor ’s office instituted an investigation into the abduction of PERSON under LAW ( aggravated kidnapping ) . The case was assigned the number DATE .

On DATE the first applicant was granted victim status in the proceedings in case no DATE .

On DATE the head of ORG of the ORG ( “ the ROVD ” ) informed the first applicant that his service was carrying out various operational and search measures aimed at establishing the whereabouts of PERSON and identifying those responsible for his abduction .

By a letter of DATE ORG in GPE ( “ the supervision department ” ) notified the second applicant that on DATE the investigation of case no CARDINAL had been suspended owing to a failure to identify the perpetrators .

On DATE the second applicant complained of the abduction of his son to a number of ORG authorities . In his complaint he submitted , in particular , that PERSON had been abducted by armed men in camouflage uniforms and masks who had arrived in several ORG and VAZ-CARDINAL vehicles .

On DATE ORG of the ORG notified the second applicant that the department ’s officials had not arrested PERSON and that the department was carrying out various search measures aimed at establishing his whereabouts .

On DATE the supervision department forwarded the second applicant ’s complaint of the abduction of PERSON to the district prosecutor ’s office and ordered it to verify his submissions and to inform him accordingly .

On DATE the district prosecutor ’s office responded to the supervision department that it had already verified the information contained in the second applicant ’s complaint and that those submissions did not contain new evidence which would prompt the resumption of the investigation . The letter also stated that the district prosecutor ’s office had taken all investigative steps which could be carried out in the absence of information as to the persons implicated in the abduction . A copy of the letter was forwarded to the second applicant .

On DATE a prosecutor from military unit no . CARDINAL informed the first applicant that the inquiry conducted by the prosecutor ’s office of that military unit had not established that the federal military were implicated in the abduction of PERSON .

On DATE the military commander of LOC notified the second applicant that the military commander ’s office had not had any information on either the whereabouts of PERSON or the eventual implication of officers from ORG in his disappearance .

By a letter of CARDINAL DATE the supervision department informed the second applicant that on DATE the district prosecutor ’s office had set aside the decision to suspend the investigation of case no . DATE and that operational and search measures aimed at identifying the persons responsible for the abduction of PERSON and establishing his whereabouts were under way .

On DATE the supervision department forwarded the first applicant ’s complaint about the abduction of PERSON to the district prosecutor ’s office and requested that it activate the investigation .

By a letter dated DATE ORG of GPE notified the first applicant that they had examined her complaint of the abduction of PERSON , which had been forwarded to them by ORG . They informed her that the investigation of case no . DATE had been suspended on an unspecified date and that various operational measures aimed at establishing the whereabouts of her son and identifying the perpetrators were under way .

By a letter of CARDINAL DATE the district prosecutor ’s office informed the first applicant that it had examined her complaint , which had been forwarded to it by ORG of GPE . The letter further stated that the investigation of case no . DATE had been suspended on DATE .

On DATE the deputy prosecutor of LOC notified the first applicant that operational and search measures in connection with the proceedings concerning case no . DATE were under way . Letters along the same lines from the supervision department and the Urus - Martanovskiy ROVD were sent to the first applicant on DATE and CARDINAL DATE .

On DATE the first applicant complained to the prosecutor of the Urus - Martanovskiy District that the investigation into the abduction of PERSON had not produced any results . She submitted that PERSON had been abducted by armed men in camouflage uniforms who had arrived in ORG and PERSON vehicles . She requested that the investigation be resumed and that she be granted access to the materials of case file no . DATE and be given information on the progress of the investigation . It appears that her complaint was left without reply .

Despite specific requests by ORG , the Government did not disclose most of the contents of criminal case no . DATE , referring to LAW of LAW . They only provided copies of : several decisions to open , suspend and resume the investigation ; records of several witness interviews ; a crime scene inspection report ; and requests for information addressed to various ORG authorities and some of the replies to them . Some of the documents submitted by the Government were illegible and some were legible only in part . It appears that the latest document provided by the ORG was dated CARDINAL DATE . In so far as the documents submitted by the Government were legible , the information contained therein may be summarised as follows .

On DATE the applicants complained of the abduction of PERSON to the ROVD . According to the stamp on their complaint , it was received by that authority on DATE .

On DATE the town prosecutor ’s office instituted an investigation into the abduction of PERSON under LAW ( aggravated kidnapping ) .

On DATE the first applicant was interviewed . She stated that at TIME on DATE a group of CARDINAL armed men in camouflage uniforms and masks had burst into her house at CARDINAL Titova Street , where she had been staying with her husband and PERSON . They had ordered the first applicant and her husband to lie down , speaking unaccented LANGUAGE . The first applicant had inferred that the intruders were servicemen . They had tied her husband up and had taken away her son . Before leaving , they had punctured the tyres of the applicants’ car and had broken the lamp over the entry to the house . The intruders had left by foot . Shortly thereafter the second applicant had gone to the ROVD and alerted the police to the abduction .

On DATE the investigators interviewed the second applicant as a witness . He stated that at TIME on DATE a group of armed people in camouflage uniforms and masks had burst into his house . The intruders had blinded the applicant with their flashlights , pushed him face down on the floor and tied his hands . They had turned everything in the house upside down and had taken away PERSON . Once they had left , the second applicant had gone to the ROVD and alerted them to the abduction . An on - duty officer from the ROVD had called the military commander ’s office in the second applicant ’s presence and had informed them of the kidnapping . The second applicant thought that the intruders must have left by foot , as he had not seen any vehicles .

On DATE the second applicant was again interviewed as a witness . He stated that at TIME on DATE a group of CARDINAL armed people in camouflage uniforms and masks had burst into his house , blinded him with their flashlights , tied up his hands and pushed him and his wife to the floor . Meanwhile some of the intruders had entered an adjacent room where PERSON was sleeping . The intruders had spoken unaccented NORP . TIME they had taken PERSON outside and left . The applicants had not been able to see anything because they had been lying face down on the floor . When the second applicant had managed to stand up , he had seen through the window that the armed men were leaving the second house . Shortly thereafter the second applicant had gone to the ROVD to complain of the abduction of his son .

On DATE the first applicant was granted victim status in the proceedings concerning case no . DATE and was interviewed . She submitted that on DATE her family , including her husband , PERSON and herself , had stayed at home at CARDINAL Titova Street . At TIME she had been woken up by some noise and had seen a group of armed men in camouflage uniforms and masks . They had pushed her family members to the floor and had taken away her son , without explaining the reasons for his detention . The first applicant had heard the noise of departing vehicles .

On DATE the investigators re - interviewed the first applicant . She confirmed her previous accounts of the events of DATE and submitted , in addition , that the intruders had broken a lamp above the entrance to the house . She also stated that the intruders had come and gone by foot and that she had discovered the absence of PERSON after they had left .

On DATE the investigators interviewed PERSON as a witness . He stated that he was the missing person ’s brother and that on TIME DATE he had been woken up by the crying and shouting of the first applicant . When PERSON had entered his GPE room , the first applicant had told him that a group of CARDINAL armed men in camouflage uniforms and masks had taken away PERSON . PERSON submitted that he had heard the intruders break the lamp which was outside . When he looked outside he had not been able to see anything .

On DATE the investigators interviewed GPE as a witness . She stated that she was PERSON wife and that on TIME of his abduction PERSON had been sleeping in the house with his parents , while she had stayed with the children in another house . At TIME on DATE a group of CARDINAL armed men in camouflage uniforms and masks had burst into GPE ’s room . They had spoken unaccented NORP . GPE had started shouting but had been told to remain silent . The intruders had searched her room and had turned everything there upside down . When they had been leaving , GPE had seen CARDINAL of them break the lamp above the entrance to the house . After their departure the first applicant had told GPE that the intruders had abducted PERSON .

DATE . On DATE the first applicant was interviewed again . She stated that on DATE a group of CARDINAL armed men in camouflage uniforms and masks had burst into her room and had abducted her son . She also stated that the abductors had come and gone by foot because she had not heard the noise of either military or other vehicles .

On DATE TIME was interviewed as a witness . She stated that she was the applicants’ neighbour , that she herself knew nothing of the circumstances of the abduction of PERSON and that she had learnt about it from his relatives . On TIME had been sleeping in her house . At a certain point her neighbour GPE had woken her up , saying that there was noise from vehicles outside . Together they had gone to the PERSON home . Someone there had told TIME that armed men in camouflage uniforms , who had arrived in CARDINAL ORG vehicles , had abducted PERSON . When TIME had gone to the applicants’ home , she had not herself seen either the abductors or their vehicles . According to TIME , the people who had seen the vehicles had been unable to identify them because they had not had licence plates .

On DATE the investigators interviewed GPE as a witness . She stated that she had been living in the vicinity of the applicants’ house and that at TIME on DATE she had been woken up by shouting coming from there . At the same time , she had heard the noise of vehicles travelling along FAC and had then seen several vehicles that had looked like trucks , but she was unable to identify their make . When she had arrived at the applicants’ home , the first applicant had told her that a large group of armed men in camouflage uniforms and masks had abducted PERSON and that the abductors had spoken unaccented NORP . The applicants had immediately gone to the ROVD to complain of his abduction .

On DATE the investigators interviewed the second applicant for the third time . He confirmed his previous accounts of the events of DATE and stated , in addition , that the abductors had come to his house by foot and that he did not know if they had come in military or other vehicles because he had not seen them .

On DATE the investigators interviewed PERSON . as a witness . He stated that he was the applicants’ neighbour and that he had learnt of the abduction of PERSON from unspecified individuals . PERSON . had not heard any noise of military or other vehicles on TIME of the abduction .

On DATE the first applicant was interviewed for the fourth time . She confirmed her previous accounts of the events given to the investigation . She stated , in addition , that she had heard the noise of vehicles outside shortly after the abduction of PERSON and suggested that the noise had come from FAC , which ran parallel to FAC . However , she could not provide more detailed information concerning the vehicles or their make .

DATE and DATE the district prosecutor ’s office requested that a number of law - enforcement authorities , including the ORG , ORG and the military commander ’s office , inform it whether they had information on PERSON whereabouts , whether they had conducted special operations in the area and whether they had arrested the applicants’ son . It appears that no relevant information was obtained in reply .

On DATE the investigators inspected the crime scene . According to the crime scene inspection report of the same date , no objects of interest to the investigation were discovered during the inspection .

DATE and TIME DATE the investigators sent out further requests to a number of ORG authorities , seeking information on PERSON whereabouts . There is no indication that any relevant information was obtained in reply .

On DATE the chief of police for the Urus - Martanovskiy district replied to the Urus - Martanovskiy district prosecutor , stating that it had been impossible to establish what power structures and military departments of the Urus - Martanovskiy district had been equipped with NORP and ORG vehicles in DATE , to identify heads of departments equipped with such vehicles , or to verify whether the security forces in the UrusMartanovskiy district had kept logbooks concerning the use of such vehicles , in order to identify the vehicles which had left the LOC of the ORG authorities in question at the time of the abduction of PERSON . Information concerning the heads of the military commander ’s office , the ORG department and the police was restricted .

On DATE the investigation of case no . DATE was suspended owing its failure to identify the perpetrators . A letter informing the first applicant of that decision was sent to her on DATE .

On DATE the Urus - Martanovskiy District prosecutor quashed the decision of CARDINAL DATE as premature and unfounded .

On DATE the investigation was suspended because of its failure to identify those responsible for the abduction .

On DATE the Urus - Martanovskiy District prosecutor set aside the decision of CARDINAL DATE to suspend the investigation , finding that it had been issued despite a failure to take all relevant investigative steps and in breach of the applicable legislation .

On DATE the investigation of case no . DATE was suspended because of its failure to identify those responsible for the abduction .

On DATE the deputy prosecutor of GPE quashed the decision of DATE and ordered the district prosecutor ’s office to resume the investigation .

On DATE the investigation was suspended due to its failure to establish the identities of those involved in the abduction of PERSON .

On DATE the investigation of case no . DATE was resumed , owing to the need to examine the first applicant ’s complaint in which she sought access to the case file and requested that the investigation be resumed .

On DATE the investigators dismissed the applicant ’s complaint as unfounded .

DATE . On DATE the investigation was suspended .

On DATE the investigation of case no . DATE was resumed , owing to a need to rectify unspecified shortcomings .

On DATE the investigation of case no . DATE was suspended .

According to the ORG , the investigation into the abduction of PERSON is pending .

On DATE the first applicant complained to ORG ( “ the ORG ” ) of the inaction of the investigating authorities , their failure to provide her access to case file no . DATE and their refusal to allow her to make copies of the case file materials .

On DATE ORG granted the first applicant ’s claim in part . It declared unlawful the investigating authorities’ refusal to provide the first applicant access to the case file and ordered them to remedy that shortcoming in so far as documents concerning investigative measures carried out with her participation were concerned . At the same time it found that the district prosecutor ’s office had carried out all relevant operational and search measures and dismissed the first applicant ’s complaint of the ineffectiveness of the investigation , without providing any further details or specifying what measures had been taken . It also rejected the first applicant ’s request for permission to copy documents from the case file .

The first applicant appealed . She referred to various specific omissions on the part of the district prosecutor ’s office and alleged that the investigation into the abduction of PERSON had been ineffective . She also sought permission to copy documents from the investigation case file .

On DATE ORG of GPE ( “ the Supreme Court ” ) dismissed the first applicant ’s appeal .

DATE . For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


CASE OF MANEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

Proceedings concerning an order of the Governor of ORG ( “ the first set of proceedings ” )

The applicant worked as General Manager of a bank , “ GPE ” ( “ the bank ” ) .

On DATE the Governor of ORG ( “ the Governor ” ) issued an order preventing the applicant from working as the bank ’s General Manager and from exercising other duties associated with special responsibilities for an indefinite period of time ( “ the order ” ) . The order was based on findings as to the applicant ’s unlawful business conduct and irregularities in the bank ’s operation under his management . On DATE ORG ( “ the ORG ” ) dismissed the applicant ’s appeal and confirmed the order .

On DATE ORG allowed the applicant ’s appeal on points of law ( управен спор ) submitted on DATE and annulled the ORG ’s decision . It found that the position of general manager of a bank was not associated with special responsibilities and accordingly the order should not have been issued in respect of the applicant .

On DATE ORG upheld the applicant ’s actio popularis and declared section CARDINAL § CARDINAL of LAW , under which the Governor had been entitled to take other measures ( apart from those explicitly mentioned ) if necessary , unconstitutional .

On DATE ORG declared the provisions of LAW , in accordance with which the ORG decided upon appeals against the Governor ’s decisions , unconstitutional . It found that the Governor ’s participation in and chairing of the ORG when the latter decided against his decisions given at first instance had been contrary to the constitutional principle of CARDINAL - instance decision - making .

On DATE the plenary session of ORG ( општа седница ) granted the public prosecutor ’s request for the protection of legality ( барање за заштита на законитоста ) and quashed ORG decision of DATE . The court referred in its decision to ORG authentic interpretation of section CARDINAL of ORG ( ORG за банки и штедилници ) , according to which the manager of a bank was to be considered “ a person with special responsibilities ” .

On DATE ORG , relying on ORG decision of DATE , accepted the applicant ’s appeal and annulled the ORG ’s decision of CARDINAL DATE .

As the ORG allegedly remained inactive , the applicant requested ORG to decide his case on the merits instead of the ORG .

On DATE the ORG , sitting without the Governor , dismissed the applicant ’s appeal and upheld the latter ’s decision . On DATE ORG rejected the applicant ’s request to decide his case on the merits instead of the ORG .

On DATE ORG granted the applicant ’s appeal and annulled the ORG ’s decision . It found that the ORG had established the facts incompletely and violated procedural rules .

On DATE the ORG dismissed the applicant ’s appeal again .

On DATE the applicant lodged a fresh appeal with ORG .

On DATE ORG allowed the applicant ’s appeal and annulled the ORG ’s decision of CARDINAL DATE and the order of DATE . It found that the Governor and the ORG had wrongly established that the applicant had abused the monetary system . On DATE the plenary session of ORG granted the public prosecutor ’s request for the protection of legality and quashed that decision . It found that the facts had been re - established without a hearing .

On DATE ORG finally dismissed the applicant ’s appeal . It based its decision , inter alia , on ORG of DATE , in accordance with which ORG supervised the lawfulness of a bank ’s operation and accordingly had been authorised to prevent , fully or partially , persons with special responsibilities from exercising their duties . It also referred to section CARDINAL of LAW of DATE and ruled that the latter had lawfully prevented the applicant from working as General Manager of the bank due to irregularities in the operation of the bank under his management .

On DATE the applicant unsuccessfully requested the public prosecutor to lodge a request with ORG for the protection of legality .

Civil proceedings concerning the applicant ’s forced retirement ( “ the second set of proceedings ” )

On DATE the newly appointed General Manager of the bank dismissed the applicant as having fulfilled the conditions for his retirement .

On DATE the bank ORG ( “ the Board ” ) dismissed the applicant ’s objection .

On DATE the applicant brought a civil action challenging his forced retirement . He argued that he had not met the statutory conditions for entering retirement .

On DATE ORG granted the applicant ’s claim and annulled the bank ’s decisions . It gave the ruling after it had obtained an expert report concerning the applicant ’s period of employment .

On DATE the bank appealed . On DATE ORG quashed the lower court ’s decision and ordered a retrial .

On DATE ORG granted the applicant ’s claim again and annulled the bank ’s dismissal decisions . None of the scheduled hearings were adjourned upon the applicant ’s request .

On DATE ORG allowed the bank ’s appeal of DATE and quashed the lower court ’s decision .

On DATE ORG Instance dismissed the applicant ’s claim . In the course of those proceedings , that court sought information from different institutions about the applicant ’s period of employment . On DATE it also appointed an expert to draw up a report in that connection and ordered those institutions to allow her access to the relevant documentation . The expert report was produced in DATE . On DATE ORG upheld the first - instance court ’s decision .

On DATE the applicant lodged an appeal on points of law ( ревизија ) with ORG . The proceedings are apparently still pending .

Civil proceedings concerning the applicant ’s removal from the position of General Manager of the bank ( “ the third set of proceedings ” )

On DATE the ORG removed the applicant from the position of General Manager of the bank . On DATE the ORG dismissed the applicant ’s objection and terminated his contract with the bank .

On an unspecified date in DATE , the applicant instituted civil proceedings against the decisions of the ORG .

On DATE ORG partially allowed the applicant ’s claim and annulled the ORG ’s decisions . The court dismissed the applicant ’s claim concerning the termination of the contract .

On DATE ORG granted both parties’ appeals and quashed the lower court ’s decision .

On DATE ORG Instance dismissed the applicant ’s claim concerning his removal and rejected his claim related to the termination of his contract .

On DATE ORG ruled partly in favour of the applicant , namely , it accepted his appeal concerning his removal and dismissed it in respect of his contract .

On DATE ORG granted the applicant ’s claim and annulled the ORG ’s decisions related to his removal ( “ the court order ” ) . That decision was upheld by ORG decision of DATE .

After ORG had refused the applicant ’s request to “ reinstate his status prior to his removal ” ( воспоставување на правната состојба како пред разрешувањето ) , the applicant instituted enforcement proceedings claiming reinstatement and payment of salary arrears .

On DATE ORG Instance dismissed the applicant ’s request as the court order had not provided for his reinstatement .

On DATE ORG allowed the applicant ’s appeal and remitted the case for re - examination , arguing that the court order had had a retrospective effect .

DATE . On DATE ORG Instance dismissed the applicant ’s claims for his reinstatement and for payment of salary arrears .

On DATE ORG upheld the lower court ’s decision and dismissed the applicant ’s appeal . By a letter of DATE , ORG stated that there was no evidence in the file attesting that a copy of that decision had been served on the applicant or his counsel .

By an application of DATE , the applicant unsuccessfully requested the public prosecutor to lodge a request with ORG for the protection of legality ( барање за заштита на законитоста ) . His application was refused on DATE . On DATE that notification was allegedly served on the applicant .


Violation of Art. 8;Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lived in NORP , GPE , before moving to GPE in DATE .

The applicant , who was born in GPE , entered GPE in DATE and applied for asylum . His asylum request was dismissed , a decision which became final in DATE .

Starting in DATE the applicant had a relationship with PERSON who was married to PERSON ; the spouses have CARDINAL children born in DATE , DATE and DATE . Although she initially considered a divorce , PERSON , who never lived with the applicant , left the applicant in DATE and lived with her husband , PERSON , and the children again .

In DATE PERSON gave birth to twins . The applicant is the biological father of the twins . PERSON and PERSON are bringing up the twins together . According to LAW no . CARDINAL of LAW ( see paragraph CARDINAL below ) , PERSON is their legal father . PERSON and PERSON repeatedly refused requests made by the applicant , both before and after the GPE birth , to be allowed contact with the twins .

On DATE the Baden - Baden District Court , having heard the applicant and Mr and PERSON in CARDINAL hearings , granted the applicant contact with the twins once per month for TIME , initially in the presence of a third person and of either Mr or PERSON if they wished to be present .

ORG found that the applicant was entitled to access under LAW ( see paragraph CARDINAL below ) as he was a person with whom the children had close ties . The fact that he had not yet borne any responsibility for the children did not hinder that entitlement , as the applicant had had no possibility to take such responsibility since the twins had been born in DATE . Hence his access rights could not be denied .

ORG further considered that contact between the applicant and the twins was in the children ’s best interest . It agreed with the findings of the psychological expert it had consulted , who , having heard Mr and PERSON and the applicant , had concluded that contact with the applicant was beneficial for the children ’s welfare . Particularly in view of their NORP origins , a relationship with the applicant , their natural father , would be essential for them to get to know their roots , to build up their identity , to understand why they were different and to develop normal self - esteem . ORG also found that the applicant ’s access rights could not be delayed any further as they were being increasingly contested by PERSON and PERSON The applicant ’s access to the twins would not adversely affect PERSON and PERSON other CARDINAL children because , as the psychologist had convincingly argued , dealing frankly with the realities would be in the best interest of all concerned .

NORP In coming to its decision , ORG took into consideration that when PERSON and the applicant had separated in DATE , the applicant had agreed that the twins could stay with the PERSON family but had stated that “ he wanted to have a chance in the asylum proceedings ” . He had subsequently asked to be granted access to the twins after their birth , which PERSON and PERSON had refused . He had argued that if he did not stay in GPE , it would be impossible in practice for him to have any contact with his children and build up a relationship with them . In PERSON and PERSON submission , the applicant wanted access to his children only in order to obtain a residence permit in GPE . The psychological expert , for her part , stated that it appeared that PERSON and PERSON were now interpreting the applicant ’s relationship with PERSON wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit , in order to blame him for their own difficult situation .

On DATE ORG allowed an appeal lodged by PERSON and PERSON , quashed the decision of ORG and dismissed the applicant ’s request for access to the twins .

ORG found that the applicant was not entitled to access to the children under LAW ( see paragraph CARDINAL below ) because the provision only referred to the entitlement of the legal father ( as opposed to the biological father ) , who in the present case was PERSON ( LAW no . CARDINAL of LAW , see paragraph CARDINAL below ) . As the children were living with their legal father , the applicant was also not entitled to acknowledge paternity ( LAW , see paragraph CARDINAL below ) nor could he contest PERSON paternity ( LAW , see paragraph CARDINAL below ) .

The Court of Appeal further found that the applicant was not entitled to access under LAW . Being the biological father of the twins , he was , in principle , considered a person with whom the children had close ties ( enge Bezugsperson ) within the meaning of that provision . He nevertheless had not fulfilled the remaining requirements of LAW , as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them .

As the applicant was therefore not entitled to claim access , it was irrelevant whether contact between him and the twins was in the children ’s best interests .

The fundamental right to respect for one ’s family life and one ’s parental rights under LAW ( see paragraph CARDINAL below ) and LAW did not require a different interpretation of the provisions of LAW . With regard to LAW , ORG found that the applicant , being the biological , but not the legal father of the twins , was not a “ parent ” within the meaning of paragraph CARDINAL of that provision , in particular because the coexistence of CARDINAL fathers was not consistent with the notion of parental responsibility . Moreover , LAW protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past ; it did not protect the wish to build up a relationship with the child in the future . The reasons why there was no relationship between the biological father and the child were irrelevant .

ORG noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to GPE . Therefore , the children would most probably never be able to get to know their biological father . However , that was because the twins lived in a family together with their legal father who was actually assuming the father ’s role . It was the legislator ’s evaluation , expressed in LAW , that the existing relationship between legal father and child took precedence over the relationship between biological father and child .

With regard to LAW , ORG observed that there had never been a family bond between the applicant and the twins . It also distinguished the present case from the case of ORG v. GPE ( no . CARDINAL/CARDINAL , DATE ) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody .

On DATE , without giving reasons , ORG declined to consider the applicant ’s constitutional complaint , in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

On CARDINAL DATE ORG dismissed the applicant ’s request for an interim order suspending his expulsion until ORG had decided upon his application . The applicant did not appeal against that decision . The main proceedings before ORG , in which the applicant again applied for a residence permit , are apparently still pending . The applicant moved to GPE in DATE .

Article CARDINAL of LAW , in so far as relevant , provides :

( CARDINAL ) Marriage and the family shall enjoy the special protection of the state .

( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The state shall watch over them in the performance of this duty .

Parental custody includes the right to determine access to the child ( LAW ) .

According to LAW , a child has a right of access to each parent , and each parent in turn has the right and the duty to have contact with the child . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ( LAW ) . They may restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child ’s well - being would otherwise be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG or an association ( Article CARDINAL § CARDINAL ) .

Article DATE § CARDINAL of LAW , in its version applicable at the relevant time , provides for persons with whom the child has close ties ( enge PERSON ) to have a right of access to the child if this serves the child ’s best interest and if they are bearing actual responsibility for the child or have done so in the past ( social and family relationship ) . It is to be assumed , as a rule , that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility . LAW § CARDINAL and CARDINAL apply mutatis mutandis .

According to LAW , a child ’s father is either the man who at the date of the child ’s birth was married to the child ’s mother ( no . CARDINAL ) , or the man who acknowledged paternity ( no . CARDINAL ) or whose paternity is judicially established under LAW ( no . CARDINAL ) .

An acknowledgement of paternity is not valid as long as the paternity of another man exists ( LAW ) .

Paternity may be challenged . Under LAW , entitlement to challenge paternity lies with the man whose paternity exists under LAW . CARDINAL and CARDINAL , with the mother and with the child , and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’s mother during the period of conception . However , pursuant to LAW , this last man has a right to challenge the paternity of the man who is the child ’s legal father under LAW . CARDINAL or CARDINAL only if he is the child ’s biological father and if there is no social and family relationship between the legal father and the child .

If there is no paternity under LAW . CARDINAL or CARDINAL of LAW , it is to be established by the family court ( LAW ) .

Research undertaken by ORG in relation to CARDINAL ORG GPE shows that there is no uniform approach in GPE to the question whether , and if so , under what circumstances , a biological father ( who is not only a sperm donor ) has a right to contact with his child where a different father exists in law .

In a considerable number of GPE ( comprising , in particular , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , where a child is born to a woman who is living with her husband , a biological father can ensure his contact rights by challenging , first , the paternity presumption in place , partly within a fixed time - limit . In these GPE , as indeed in all of the countries surveyed , a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is presumed also to be the child of her husband . Having been recognised as the ( legal ) father of the child concerned , the biological father then has a right to contact with his child like any other non - custodial parent , subject to the child ’s best interests .

According to an expert report drawn up in DATE by ORG Family Law ( Deutsches Institut für PERSON . ORG , a registered association and non - governmental organisation ) , which has been submitted by the Government , the same applies in GPE . That report , however , interprets differently the provisions applicable in GPE and GPE . Research undertaken by the applicant confirms the ORG ’s research notably in respect of the legal situation in GPE and GPE . The applicant submits that a biological father may also challenge the legal father ’s paternity in circumstances similar to those in the present application in several further countries , inter alia , in GPE .

In a considerable number of ORG , according to the ORG ’s research , the biological father of a child would , on the contrary , not be able to challenge the said paternity presumption in circumstances similar to those in the present application ( see , in particular , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) . Biological fathers in those countries lack standing to bring an action to challenge that presumption either in all circumstances or at least in cases in which the mother is still living with her husband ( see in this latter respect the law in force in GPE and GPE ) .

According to the expert report drawn up by ORG and Family Law submitted by the Government , the same applies in GPE , GPE , GPE , GPE , GPE and GPE . The applicant interprets differently the provisions applicable in GPE and GPE ; the report submitted by the Government , however , confirms the ORG ’s findings in respect of the legal situation in these countries .

In those latter Member GPE , it is thus only open to the biological father to apply for contact as a third party , not as a parent . However , in some of GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the biological father does not have standing to apply for contact as a third party either as the law provides a right of contact only to legal parents and ( partly ) to other relatives .

According to the expert report of ORG Family PERSON submitted by the Government , the biological father would also not have standing to apply for contact in GPE and in GPE .

In the remaining Member GPE surveyed by ORG in which the paternity presumption may not be challenged by a biological father ( GPE , GPE , GPE , the GPE , GPE and GPE ) , different pre - conditions apply for that father to be granted contact if such contact is in the child ’s best interests . According to LAW , there has to be “ proof of a tie of special affection with the child ” ; according to LAW of LAW , the father must have lived together with the child for a long time in the same household . In GPE a third person can be granted contact by a judge where that would be in the best interests of the child , without additional pre - conditions having to be met ( compare LAW ) . In the GPE , third persons ( including mere sperm donors ) may be granted contact under Articles DATE and CARDINAL § CARDINAL of LAW of the GPE if they have a close personal relationship with the child unless contacts run counter to the child ’s best interests . According to LAW of LAW , the biological father may be granted access if he is to be regarded as a “ close person ” to the child ( according to the expert report submitted by the Government , a similar provision applies in GPE ) and according to Article CARDINALa of the Swiss Civil Code , he has a right to contact in exceptional circumstances ( according to the expert report submitted by the Government , the same precondition applies in GPE ) .

According to the report submitted by ORG , LAW of LAW on ORG provides that access may only be granted to close relatives having close personal ties with the child concerned if the parents have no or hardly any contact with the child . That report further states that under LAW of LAW , a biological father may be granted access to his child if the child ’s welfare is endangered otherwise .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant is a NORP national . He was born in DATE and lives in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG , GPE .

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

The applicant ’s wife died on DATE at DATE . She had been in receipt of a retirement pension for DATE . He made a first enquiry in DATE to ORG about inheriting part of his wife ’s pension , and received a negative response . He reached State pension age in DATE . He made further enquiries over DATE about the possibility of receiving additional pension on the basis of the social security contributions paid by his wife , and submitted a claim for bereavement benefits on DATE . The claim was rejected by ORG on DATE . The applicant appealed , and expressly raised the issue of inherited pension . By a decision of CARDINAL DATE , ORG ( SSAT ) upheld ORG decision regarding bereavement benefits . It did not address the applicant ’s claim for inherited pension , as this matter had not been part of the decision under appeal . The applicant sought leave to appeal to ORG . This was refused by a decision of the Commissioner of CARDINAL DATE , who held that the inherited pension issue had not been before the SSAT , which had therefore lacked jurisdiction to consider it . The applicant applied for permission to seek judicial review of the Commissioner ’s decision . Permission was refused by Mr Justice GPE on DATE , who observed that the Commissioners had been bound to refuse leave to appeal . He noted that the correct course of action for the applicant seemed to be to make a clear , separate claim for inherited pension . The applicant made a separate claim for inherited pension on DATE . He was informed by ORG , in a letter dated DATE , that his pension could not be increased . His subsequent appeal was held to be inadmissible . The SSAT informed him that since the relevant decision in his case dated from DATE , his appeal was out of time .

The possibility of obtaining a higher retirement pension was introduced by LAW DATE . This made provision for the payment of extra social security contributions by employees , entitling them to receive Graduated Retirement Pension ( GRB ) along with the basic ORG contributory pension . Where a married man who had paid such extra contributions died , his widow was entitled to receive an additional pension equal to CARDINAL the rate of the deceased ’s GRB . This was payable immediately if the widow had already reached pensionable age , or upon reaching pensionable age , as long as she had not remarried . The scheme thus afforded some additional financial protection for widows in old age . Subsequent legislative reform ended the payment of graduated contributions in DATE . The right of widows already receiving part of their husband ’s ORG , or to receive it when they reached pensionable age , was preserved . ORG was replaced by ORG Earnings - Related Pension Scheme ( SERPS ) , introduced by the Pensions Act DATE . This too provided for widows to inherit part of the pension earned by their husbands .

The right of widowers to inherit part of the additional pension earned by their wives took effect on DATE . Men widowed after that date could receive a higher pension on condition that their wives had satisfied the prescribed conditions and that both husband and wife had attained pensionable age at the time of bereavement , a condition that did not apply to widows . The social security position of widowers was generally improved as of DATE , from which date they became entitled , in principle , to an identical suite of bereavement benefits to widows ( for details of the relevant legislative provisions , see Runkee and NORP v. GPE , nos . CARDINAL and CARDINAL , § § CARDINAL , CARDINAL DATE ) . This group of widowers may inherit additional pension under the same conditions as widows . According to the ORG , ORG opted to achieve full equalisation in relation to inherited additional pension in stages . This will take effect on DATE . All widowers who reach pensionable age after that date , irrespective of when their wives died , will be able to claim additional pension on the basis of the social security contributions paid by the latter . This change will not , therefore , affect the applicant .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Erik Møse;Mirjana Lazarova Trajkovska

All the applicants except PERSON and Ms M. Barzakova were at the material time members of the NORP military forces and took part in peace - keeping operations in former GPE . Ms N. ORG and PERSON Barzakova ’s late husbands were also members of the NORP military forces and took part in the same operations .

All those servicemen sued their respective military units in courts for payment of outstanding DATE allowance allegedly due to them on account of their military missions abroad .

On various dates the courts allowed the ORG claims and awarded them monetary compensation . The judgements became binding and enforceable but were not enforced by the authorities . The details of the judgments appear in the Appendix below .

On the dates specified in the Appendix , the Presidium of ORG quashed the judgments by way of supervisory review , considering that the lower courts had erroneously applied the domestic material law . As a result , the applicants’ claims were dismissed .

The relevant domestic law governing the supervisory review procedure at the material time is summed up in the ORG ’s judgments in the cases of ORG ( see ORG v. GPE , no . CARDINAL/CARDINAL , § § DATE , ORG CARDINALIX ) and Sobelin and Others ( see Sobelin and Others v. GPE , nos . CARDINAL/CARDINAL et al . , § § DATE , CARDINAL DATE ) .

In DATE judgments delivered against the public authorities were executed in accordance with a special procedure established , inter alia , by the ORG ’s Decree No . CARDINAL of DATE and , subsequently , by Decree No . CARDINAL of DATE , entrusting execution to ORG ( see further details in PERSON and Others v. GPE , nos . PERSON . , § § DATE , DATE ) .