Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 37-1-b - Matter resolved);Remainder inadmissible;Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Angelika Nußberger;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Luzius Wildhaber;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Paulo Pinto De Albuquerque;Renate Jaeger;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

On DATE he signed a military service contract . The contract signed by the applicant was a standard CARDINAL - page form stating , in particular , that he “ undertook to serve under the conditions provided for by law ” .

At the material time the applicant was serving as a radio intelligence operator ( оперативный дежурный группы боевого управления в составе оперативной группы радиоэлектронной разведки ) in military unit no . DATE . Equivalent posts in his unit were held by servicewomen and he was often replaced in his duties by female personnel .

On DATE the applicant ’s wife , PERSON , gave birth to their third child . On DATE a court granted her petition for divorce .

On DATE the applicant and PERSON entered into an agreement under which their QUANTITY children would live with the applicant and PERSON would pay maintenance for them . The agreement was certified by a notary .

According to the applicant , DATE PERSON left for GPE .

On DATE the applicant asked the head of his military unit for CARDINAL PERSON parental leave . On DATE the head of the military unit rejected his request because CARDINAL PERSON parental leave could be granted only to female military personnel . The applicant was allowed to take CARDINAL months’ leave . However , on DATE he was recalled to duty .

ORG The applicant challenged the decision of CARDINAL DATE before a court . On DATE ORG of FAC annulled the decision and upheld the applicant ’s right to the remaining DATE of his CARDINAL months’ leave . On DATE ORG of ORG quashed the judgment and rejected the applicant ’s claims .

Meanwhile , on DATE , the applicant brought proceedings against his military unit claiming CARDINAL PERSON parental leave . He submitted that he was the sole carer for his CARDINAL children . He referred , in particular , to section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

During the hearing before ORG of FAC the representatives of the military unit submitted that the applicant had not proved that he was the sole carer for his children . It was impossible for the applicant , who was serving in the army , studying at a ORG and participating in several sets of judicial proceedings , to take care of his children alone . There was evidence that PERSON and other people were helping him . The children were therefore not left without maternal care . The military unit ’s representatives also drew the court ’s attention to some inconsistencies in the applicant ’s submissions and the documents produced by him . For example , the children ’s address indicated in the notarial agreement was incorrect , PERSON employment contract was not registered as required by law , there was no divorce stamp in PERSON passport , and the applicant had not applied for child allowances or sued PERSON for her failure to pay child maintenance . In their opinion , the applicant ’s divorce was a sham with the aim of evading military service and receiving additional benefits from his military unit .

The court examined Ms Z. ’s petition for divorce in which she stated that she had been living separately from the applicant since DATE and that she considered any further marital relationship impossible . It also examined the judicial decision confirming the divorce , the notarial agreement according to which the children were to live with the applicant and PERSON employment contract signed in GPE . It also studied the record of a hearing held on DATE in an unrelated civil case , from which it appeared that PERSON had represented the applicant .

The applicant stated that he and his children lived in GPE together with Ms Z. ’s parents . Although PERSON helped him occasionally with the children ( for example she had done babysitting for the youngest child on DATE while he attended a hearing ) , it was he who took everyday care of them . PERSON did not pay child maintenance because her income was too low . PERSON had indeed represented him at the hearing of DATE , which concerned a claim lodged jointly by the couple before the divorce . PERSON had agreed to continue her assistance until the end of the proceedings .

PERSON testified that she lived in GPE , while the children lived with the applicant in GPE . She did not participate in the care of the children . She did not pay child maintenance because her salary was minimal .

PERSON father stated that after the divorce his daughter had left for GPE , while the applicant and the children continued to live together with him and his wife in the flat belonging to them . Although his daughter occasionally talked to the children over the phone , she did not participate in their care . The applicant was the sole carer for the children . He took them to school and to the doctor ’s , cooked for them , took them for walks and supervised their education .

PERSON employer testified that PERSON worked for her in GPE . She knew that employment contracts had to be registered . She had attempted to register PERSON employment contract with ORG . ORG had refused to register the contract , informing her that she had to register it with ORG . However , at ORG she had been told that it was ORG which was responsible for registering employment contracts . As she had found herself in a vicious circle , she had stopped her fruitless attempts to register the contract . Ms PERSON had returned to work DATE after the childbirth . She knew that PERSON children lived with their father in GPE , but she did not know further details about PERSON relations with her ex - husband or her children . A couple of times she had heard PERSON talking to her eldest child over the phone .

NORP The teacher of the applicant ’s second child stated that in DATE both the applicant and PERSON would take the child to school . However , after the birth of the third child and the divorce it was always the applicant who had brought the child to school in TIME and picked him up in the evening . It was the applicant who had come to the school parties . In reply to her questions about his mother , the child had said that his mother had left for GPE where she was working . She thought that the applicant was a good father ; the child evidently loved him . At the same time , he never spoke about his mother .

The children ’s doctor testified that on DATE PERSON had brought the youngest child for an examination . From QUANTITY DATE onwards it was always the applicant who had taken the children to the doctor ’s . The children were healthy and good care was taken of them .

On DATE ORG of FAC dismissed the applicant ’s claim for CARDINAL PERSON parental leave as having no basis in domestic law . The court held that only female military personnel were entitled to CARDINAL GPE parental leave , while male military personnel had no such entitlement even in those cases where their children were left without maternal care . In such cases a serviceman was entitled either to an early termination of his service for family reasons , or to CARDINAL months’ leave . The applicant had made use of the second opportunity .

The court further held that , in any event , the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care . It followed from the evidence examined at the hearing that even after the divorce the applicant and PERSON had continued their marital relationship . They lived together , both took care of their children and defended the interests of their family . The applicant ’s allegations to the contrary were therefore false and aimed at misleading the court . It was essential that PERSON had not been deprived of parental authority . She was not in any other way prevented from taking care of her children and it was irrelevant whether they lived with her or not .

The applicant appealed , alleging that the refusal to grant him CARDINAL GPE parental leave had violated the principle of equality between men and women guaranteed by LAW . He further submitted that the factual findings made by the first - instance court were irreconcilable with the evidence examined at the hearing .

On DATE ORG of ORG upheld the judgment on appeal . It did not examine the applicant ’s allegation that the factual findings made by the first - instance court had been incorrect . Instead it held that under domestic law “ male military personnel were not in any circumstances entitled to parental leave ” . It further added that the applicant ’s “ reflections on equality between men and women ... [ could ] not serve as a basis for quashing the first - instance judgment , which [ was ] correct in substance ” .

While the court proceedings were pending the applicant was disciplined several times for systematic absences from his place of work .

By order of CARDINAL DATE the head of military unit no . DATE granted parental leave to the applicant until DATE , the third birthday of his youngest son . On DATE the applicant received financial aid in the amount of MONEY ( RUB ) , equivalent to MONEY ( ORG ) . In a letter of CARDINAL DATE the head of military unit no . DATE informed the applicant that the financial aid was granted to him “ in view of [ his ] difficult family situation , the necessity of taking care of CARDINAL minor children and the absence of other sources of income ” .

On DATE ORG of FAC issued a decision in which it criticised the head of military unit no . DATE for granting the applicant CARDINAL GPE parental leave and thereby disregarding the judgment of DATE in which it had been found that the applicant was not entitled to such leave . The court drew the attention of the head of the military unit to the unlawfulness of his order .

On DATE the applicant applied to ORG , claiming that the provisions of LAW concerning the DATE parental leave were incompatible with the equality clause in the LAW .

On DATE ORG rejected his application . The relevant parts of its judgment read as follows :

“ CARDINAL.CARDINAL NORP ... military service is a special type of public service which ensures the defence of the country and the security of the State , it is therefore performed in the public interest . Persons engaged in military service exercise constitutionally important functions and therefore possess a special legal status which is based on the necessity for a citizen of GPE to perform his duty and obligation in order to protect the ORG .

When establishing a special legal status for military personnel , the federal legislature is entitled , within its discretionary powers , to set up limitations on their civil rights and freedoms and to assign special duties ...

... by signing a military service contract a citizen ... voluntarily chooses a professional activity which entails , firstly , limitations on his civil rights and freedoms inherent in this type of public service , and , secondly , performance of duties to ensure the defence of the country and the security of the ORG . Accordingly , military personnel undertake to abide by the statutory requirements limiting their rights and freedoms and imposing on them special public obligations .

... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status . Therefore , the imposition by the federal legislature of limitations on the rights and freedoms of such citizens is not in itself incompatible with [ the LAW ] and is in accordance with ORG Convention no . CARDINAL of DATE , which provides that any distinction , exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination ( LAW ) .

CARDINAL Under section CARDINAL(CARDINAL ) of [ LAW ] parental leave is granted to female military personnel in accordance with the procedure specified in federal laws and regulations of GPE . A similar provision is contained in Article CARDINAL § CARDINAL of the Regulations on military service , which also provides that during parental leave a servicewoman retains her position and military rank .

A serviceman under contract is entitled to leave of DATE if his wife dies in delivery or if he is bringing up a child or children DATE ( handicapped children DATE ) left without maternal care ( in the event of the mother ’s death , withdrawal of parental authority , lengthy illness or other situations where his children have no maternal care ) . The purpose of such leave is to give the serviceman a reasonable opportunity to arrange for the care of his child and , depending on the outcome , to decide whether he wishes to continue the military service . If the serviceman decides to take care of his child himself , he is entitled to early termination of his service for family reasons ...

The law in force does not give a serviceman the right to CARDINAL GPE parental leave . Accordingly , servicemen under contract are prohibited from combining the performance of their military duties with parental leave . This prohibition is based , firstly , on the special legal status of the military , and , secondly , on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of servicemen who are fulfilling their duty to defend the ORG .

Owing to the specific demands of military service , non - performance of military duties by military personnel en masse must be excluded as it might cause detriment to the public interests protected by law . Therefore , the fact that servicemen under contract are not entitled to parental leave can not be regarded as a breach of their constitutional rights or freedoms , including their right to take care of , and bring up , children guaranteed by LAW . Moreover , this limitation is justified by the voluntary nature of the military service contract .

By granting , on an exceptional basis , the right to parental leave to servicewomen only , the legislature took into account , firstly , the limited participation of women in military service and , secondly , the special social role of women associated with motherhood . [ Those considerations ] are compatible with LAW . Therefore , the legislature ’s decision can not be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women , as guaranteed by LAW and CARDINAL of LAW of GPE .

It follows from the above that section CARDINAL(CARDINAL ) of [ LAW ] , granting the right to parental leave to female military personnel only , does not breach the applicant ’s constitutional rights ...

CARDINAL As servicemen having minor children are not entitled to parental leave , they are also not entitled to receive DATE child - care allowances payable to those who take care of children DATE ... ”

ORG concluded that the provisions challenged by the applicant were compatible with LAW .

On an unspecified date in DATE ORG at ORG asked the local military prosecutor ’s office to conduct an inquiry into the applicant ’s family situation . In particular , he asked the prosecutor to find out where the applicant , PERSON and their children were currently living and whether PERSON paid child maintenance .

According to the ORG , the applicant was summoned to the prosecutor ’s office for CARDINAL or DATE . The applicant stated that he had not received any summons .

As the applicant had failed to be present at the appointed time , the prosecutor decided to visit him at home . According to the applicant , the prosecutor arrived at his flat at TIME on DATE , waking up and frightening his children . The ORG submitted that the prosecutor had visited the applicant at TIME and had remained for TIME .

The prosecutor informed the applicant that he was conducting an inquiry at the request of ORG at ORG . He noted the residents of the flat . He then requested the applicant to produce a court judgment concerning child maintenance in respect of his youngest son . After the applicant had explained that the child maintenance had been fixed by a notarial agreement , the prosecutor requested a copy of that agreement . He warned the applicant that if he refused to produce the requested documents , his neighbours would be questioned .

The applicant called his representative before the ORG and , following her advice , refused to comply with the prosecutor ’s orders or answer his further questions . He signed a written statement to that effect . The prosecutor immediately left .

NORP The prosecutor also questioned the applicant ’s neighbours , who testified that the applicant and PERSON were living together .

According to the ORG , the inquiry established that the applicant and PERSON had remarried on DATE and had had a fourth child on DATE . In DATE the applicant had terminated his military service for health reasons . The applicant and PERSON were currently living together with their QUANTITY children and PERSON parents .

LAW guarantees equality of rights and freedoms of everyone regardless of , in particular , sex , social status or employment position . Men and women have equal rights and freedoms and equal opportunities ( Article QUANTITY ) .

The LAW also guarantees protection of motherhood and the family by the ORG . The care and upbringing of children is an equal right and obligation of both parents ( LAW DATE ) .

The Labour Code of DATE provides that women are entitled to a so - called “ pregnancy and delivery leave ” ( maternity leave ) of DATE before the childbirth and DATE after it ( LAW . Further , women are entitled to a DATE “ child - care leave ” ( parental leave ) . Parental leave may also be taken in full or in part by the father of the child , his / her grandmother , grandfather , a guardian or any relative who is actually taking care of the child . The person on parental leave retains his / her employment position . The period of parental leave is counted for seniority purposes ( Article CARDINAL ) .

The Federal Law on Obligatory Social Insurance of Sick Leave or Maternity Leave ( no . CARDINAL of DATE ) provides that during maternity leave the woman receives a maternity allowance , payable by ORG , amounting to PERCENT of her salary ( section CARDINAL ) . During DATE of the parental leave the person who is taking care of the child receives DATE child - care allowances , payable by ORG , amounting to PERCENT of the salary , but no less than RUB CARDINAL,CARDINAL ( approximately EUR CARDINAL.CARDINAL ) for the first child and RUB CARDINAL ( approximately EUR DATE ) for each of the subsequent children ( section CARDINAL(CARDINAL ) ) . During DATE of the parental leave no social - insurance payments or allowances are available .

The Federal Law on the Status of Military Personnel ( no . CARDINAL-FZ of CARDINAL DATE , “ the Military Service Act ” ) provides that female military personnel are entitled to maternity leave and to parental leave in accordance with LAW ( section CARDINAL(CARDINAL ) ) . There is no similar provision in respect of male personnel .

The LAW also provides that female military personnel , as well as military personnel bringing up children left without maternal / paternal care , are entitled to social benefits in accordance with federal laws and other legal acts concerning protection of family , motherhood and childhood ( section CARDINAL(CARDINAL ) ) .

Under the Regulations on military service , enacted by Presidential Decree no . CARDINAL of DATE , a servicewoman is entitled to maternity leave , to CARDINAL GPE parental leave , and to all related social benefits and allowances . A serviceman under contract is entitled to CARDINAL months’ leave in CARDINAL of the following cases : ( a ) his wife has died in childbirth , or ( b ) he is bringing up a child or children DATE ( handicapped children DATE ) left without maternal care ( in the event of the mother ’s death , withdrawal of parental authority , lengthy illness or other situations where his children have no maternal care ) ( Article CARDINAL ) .

DATE ) , adopted in DATE by ORG and ratified by GPE in DATE , provides as follows :

“ GPE Parties shall take all appropriate measures :

( a ) To modify the social and cultural patterns of conduct of men and women , with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women ;

( b ) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children , it being understood that the interest of the children is the primordial consideration in all cases . ”

Its LAW provides , as far as relevant , as follows :

“ GPE Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure , on a basis of equality of men and women :

( d ) The same rights and responsibilities as parents , irrespective of their marital status , in matters relating to their children ; in all cases the interests of the children shall be paramount ; ... ”

In its Concluding Observations on the periodic reports submitted by GPE , adopted on DATE , ORG stated , in particular , as follows :

“ CARDINAL . The ORG reiterates its concern at the persistence of practices , traditions , patriarchal attitudes and deep - rooted stereotypes regarding the roles , responsibilities and identities of women and men in all spheres of life . In this respect , the ORG is concerned at ORG repeated emphasis on the role of women as mothers and caregivers . The ORG is concerned ... that , thus far , ORG has not taken effective and systematic action to modify or eliminate stereotypes and negative traditional values and practices .

The ORG urges the State party to put in place without delay a comprehensive strategy , including the review and formulation of legislation and the establishment of goals and timetables , to modify or eliminate traditional practices and stereotypes that discriminate against women ... The ORG notes that a shift from a focus on women primarily as wives and mothers to individuals and actors equal to men in society is required for the full implementation of the LAW and the achievement of equality of women and men ... ”

Article CARDINAL of ORG ( ILO ) Convention No . CCARDINAL concerning Discrimination in ORG and Occupation , adopted in DATE and ratified by GPE in DATE , reads as follows :

“ CARDINAL . For the purpose of this Convention the term discrimination includes--

( a ) any distinction , exclusion or preference made on the basis of race , colour , sex , religion , political opinion , national extraction or social origin , which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation ;

( b ) such other distinction , exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative ORG and workers’ organisations , where such exist , and with other appropriate bodies .

Any distinction , exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination ... ”

Article CARDINAL § CARDINAL of ORG . CARDINAL concerning Equal Opportunities and Equal Treatment for ORG with ORG , adopted in DATE and ratified by GPE in DATE , reads as follows :

“ With a view to creating effective equality of opportunity and treatment for men and women workers , each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and , to the extent possible , without conflict between their employment and family responsibilities . ”

Article CARDINAL of Recommendation No . CARDINAL supplementing that ORG provides as follows :

“ ( CARDINAL ) Either parent should have the possibility , within a period immediately following maternity leave , of obtaining leave of absence ( parental leave ) , without relinquishing employment and with rights resulting from employment being safeguarded .

( CARDINAL ) The length of the period following maternity leave and the duration and conditions of the leave of absence referred to in subparagraph ( CARDINAL ) of this Paragraph should be determined in each country by CARDINAL of the means referred to in LAW of this Recommendation .

( CARDINAL ) The leave of absence referred to in subparagraph ( CARDINAL ) of this Paragraph may be introduced gradually . ”

The revised NORP Social Charter was ratified by GPE in DATE . GPE declared that it considered itself bound , among others , by LAW which reads as follows :

“ With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers , the Parties undertake :

NORP to provide a possibility for either parent to obtain , during a period after maternity leave , parental leave to take care of a child , the duration and conditions of which should be determined by national legislation , collective agreements or practice . ”

In its ORG CARDINAL(CARDINAL ) on ORG leave , ORG stated as follows :

“ CARDINAL . Parental leave was first introduced in LOC DATE as a key element of social and employment policies for women in work at the time of childbirth . Its purpose was to protect the health of mothers and to enable them to look after their children .

Parental leave has since been adapted to meet the needs not only of women but also of men who wish to balance work and family life and ensure their children ’s well - being .

NORP The issue of parental leave is closely linked to that of the role of men in family life , since it permits a genuine partnership in the sharing of responsibilities between women and men in both the private and public sphere ... ”

ORG further noted that parental leave was not applied equally in all member GPE . It therefore urged the Member GPE , in particular :

“ i. to take the necessary steps to ensure that their legislation recognises different types of family structures , if they have not already done so , and , accordingly , to introduce the principle of paid parental leave including adoption leave ;

ii . to set up suitable structures for the implementation of parental leave , including adoption leave ... ”

In its Recommendation CARDINAL(CARDINAL ) on the need to reconcile work and family life ORG noted that the aim of reconciling work and family life was far from being achieved in many ORG member GPE and that this situation primarily penalised women , since they still carried most of the responsibility for running the home , bringing up young children and very often looking after their dependent parents or other elderly dependants . It therefore invited ORG to address a recommendation to the member GPE asking them , in particular :

“ CARDINAL.CARDINAL . to take measures making it easier to reconcile work and family life which target women and men , including :

providing adequate remuneration / compensation during maternity leave ;

DATE . introducing , if they have not yet done so , paid paternity leave and encouraging men to take it ;

CARDINAL.CARDINAL.CARDINAL . introducing paid , socially - covered parental leave , which may be used flexibly by the father and mother , taking special care to ensure that men are actually able to use it ” .

In its Recommendation No . R ( CARDINAL ) CARDINAL on reconciling work and family life , ORG , acknowledging the need for innovative measures to reconcile working life and family life , recommended that member States

“ I. Take action , within the framework of a general policy promoting equal opportunities and equal treatment , to enable women and men , without discrimination , to better reconcile their working and family lives ;

II . Adopt and implement the measures and general principles described in the appendix to this recommendation in the manner they consider the most appropriate to achieve this goal in the light of national circumstances and preferences . ”

In respect of maternity , paternity and parental leave the appendix to the aforementioned ORG explains as follows :

“ CARDINAL . Women should be entitled to legal protection in the event of pregnancy , and , in particular , an adequate period of maternity leave , adequate pay or allowance during this period and job protection .

The fathers of newly born children should also be allowed a short period of leave to be with their families . In addition , both the father and the mother should have the right to take parental leave during a period to be determined by the national authorities without losing either their employment or any related rights provided for in social protection or employment regulations . The possibility should exist for such parental leave to be taken part - time and to be shared between parents .

The measures described in paragraph CARDINAL should apply equally for the benefit of persons adopting a child .

The return to work at DATE of parental leave should be facilitated by , for example , vocational guidance and training facilities ” .

ORG Recommendation Rec(CARDINAL)CARDINAL of ORG to member States on gender equality standards and mechanisms recommended , in particular , that

“ ... the governments of member states take or reinforce necessary measures to implement gender equality in practice , taking fully into account the following principles and standards :

B. Standards in specific areas :

Reconciliation of private / family life and professional / public life

Gender stereotypes and a strong division of gender roles influence social models that tend to see women as mainly responsible for family and private life ( in the area of unpaid work ) and men in the public sphere and professional work ( in the area of paid work ) . Such division leads to the persistence of unequally shared domestic and family responsibilities , being CARDINAL of the major reasons for discrimination against women in the labour market and for their limited social and political participation .

The balanced participation of women and men in professional / public life and in private / family life is , therefore , a key area for gender equality and is essential for the development of society . On the other hand , reconciliation of work and public life with family and private life , promoting self - fulfilment in public , professional , social and family life , is a precondition for a meaningful quality of life for all , women and men , girls and boys , and for the full enjoyment of human rights in the political , economic , cultural and social spheres .

Elements indicating states’ political will and commitment to gender equality in this regard include the following :

iii . Adoption / existence and enforcement of legislation on maternity and paternity protection , including provisions on paid maternity leave , paid parental leave equally accessible to both parents , and paid non - transferable paternity leave , as well as specific measures addressed equally to women and men workers , to allow the fulfilment of family responsibilities , including care and assistance to sick or disabled children or dependants ” .

Finally , in Recommendation Rec(CARDINAL)CARDINAL on the human rights of members of the armed forces , ORG recommended that the Governments of the member States should ensure , in particular , that “ the principles set out in the appendix to this recommendation [ were ] complied with in national legislation and practice relating to members of the armed forces ” . Principle CARDINAL of the appendix to that ORG provides that “ members of the armed forces who are parents of young children should enjoy maternity or paternity leave , appropriate childcare benefits , access to nursery schools and to adequate children ’s health and education systems ” .

Council Directive CARDINAL of DATE on LAW on parental leave concluded by LAW , ORG [ ORG and of ORG ] and the ORG [ ORG ] gave effect to that agreement , which had been entered into on DATE between those cross - industry representative organisations and which provided , in particular , as follows :

“ Clause CARDINAL : Parental leave

NORP This agreement grants , subject to clause CARDINAL , men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child , for DATE , until a given age DATE to be defined by Member GPE and/or management and labour .

To promote equal opportunities and equal treatment between men and women , the parties to this agreement consider that the right to parental leave provided for under clause CARDINAL should , in principle , be granted on a non - transferable basis ... ”

Council Directive CARDINAL/CARDINAL/EU of DATE on the application of the revised LAW on parental leave between ORG , ORG , ORG and the ORG replaced Directive CARDINAL . The revised ORG provides as follows :

“ Clause CARDINAL : Parental leave

This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age DATE to be defined by Member GPE and/or social partners .

NORP The leave shall be granted for at least a period of DATE and , to promote equal opportunities and equal treatment between men and women , should , in principle , be provided on a non - transferable basis . To encourage a more equal take - up of leave by both parents , CARDINAL of DATE shall be provided on a non - transferable basis . The modalities of application of the non - transferable period shall be set down at national level through legislation and/or collective agreements taking into account existing leave arrangements in GPE . ”

The case of PERSON v. Ministre de l’Economie , des Finances et de l’Industrie , PERSON publique , PERSON , deals with the issue of service credit for children being awarded only to female civil servants in accordance with the NORP civil and military retirement pension scheme . In its judgment of DATE ORG ( ECJ ) observed that the grant of that credit was not linked to maternity leave or to the disadvantages which a female civil servant incurred in her career as a result of being absent from work during the period following the birth of a child . This credit was linked to a separate period , namely that devoted to bringing up the children . In this connection , the ECJ found that the situations of a male civil servant and a female civil servant were comparable as regard the bringing - up of children . In particular , the fact that female civil servants were more affected by the occupational disadvantages entailed in bringing up children , because this was a task generally carried out by women , did not prevent their situation from being comparable to that of a male civil servant who had assumed the task of bringing up his children and had thereby been exposed to the same career - related disadvantages .

Further , the ECJ noted that NORP legislation introduced a difference in treatment on grounds of sex in regard to male civil servants who had in fact assumed the task of bringing up their children . That measure was not justified because it was not of a nature such as to offset the disadvantages to which the careers of female civil servants were exposed by helping those women conduct their professional life on an equal footing with men . On the contrary , that measure was limited to granting female civil servants who were mothers a service credit at the date of their retirement , without providing a remedy for the problems which they might encounter in the course of their professional career . The NORP legislation therefore infringed the principle of equal pay inasmuch as it excluded male civil servants who were able to prove that they had assumed the task of bringing up their children from entitlement to the credit .

The judgment adopted by the ECJ on DATE in the case of PERSON v. Sesa Start PERSON deals with the question whether the denial of “ breast - feeding leave ” ( a TIME reduction in DATE for the purpose of feeding a baby ) to employed fathers , while employed mothers were entitled to such leave , amounted to discrimination on grounds of sex . The ECJ found that the positions of a male and a female worker , father and mother of a young child , were comparable with regard to their possible need to reduce their DATE working time in order to look after their child . The NORP legislation established a difference on grounds of sex , as between mothers whose status was that of an employed person and fathers with the same status .

DATE . As concerns justification for such a difference in treatment , the ECJ considered , firstly , that the leave at issue had been detached from the biological fact of breastfeeding , entitlement to it being granted even in cases of bottle feeding . It could be therefore considered as time purely devoted to the child and as a measure which reconciled family life and work following maternity leave . Feeding and devoting time to the child could be carried out just as well by the father as by the mother . Therefore that leave seemed to be accorded to workers in their capacity as parents of the child . It could not therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child .

Secondly , the measure at issue did not constitute a permissible advantage given to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men . On the contrary , the fact that only a woman whose status was that of an employed person could take that leave , whereas a man with the same status could not , was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties . To refuse entitlement to the leave at issue to fathers whose status was that of an employed person , on the sole ground that the child ’s mother did not have that status , could have as its effect that the mother would have to limit her self - employed activity and bear the burden resulting from the birth of her child alone , without the child ’s father being able to ease that burden . Consequently , a measure at issue could not be considered to be a measure eliminating or reducing existing inequalities in society , nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that could arise in society and thus to prevent or compensate for disadvantages in the professional careers of the relevant persons .

The ECJ concluded that the relevant provisions of NORP law were incompatible with ORG law .

The ORG conducted a comparative study of the legislation of CARDINAL member ORG GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the “ Former GPE ” , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) .

The comparative study suggests that as far as civilians are concerned , in CARDINAL GPE ( GPE and GPE ) entitlement to parental leave is limited to women . In CARDINAL State ( GPE ) men working in the private sector are not entitled to parental leave , while male civil servants are entitled to such leave . In CARDINAL State ( GPE ) men may take parental leave under certain conditions only ( for example , absence of maternal care of the child ) . In CARDINAL State ( GPE ) no parental leave entitlement is provided by law . In the remaining QUANTITY States both men and women are equally entitled to parental leave in civilian life .

In some countries parental leave is a family entitlement to be divided between parents as they choose ( for example in GPE , GPE and GPE ) . In other countries it is an individual entitlement , with each parent entitled to a certain portion of parental leave ( for example in GPE , GPE , GPE , GPE and GPE ) . In GPE the entitlement is partly family , partly individual , with DATE reserved for each parent and the rest divided between them as they choose . In some countries parental leave is unpaid ( for example GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) . In others parental leave is paid either in part or in full ( for example GPE , GPE , GPE , GPE and GPE ) . There are also varied approaches to the length of parental leave , ranging from DATE ( GPE ) to DATE ( GPE ) .

As regards military personnel , it appears that in CARDINAL State ( GPE ) military personnel are not expressly entitled to parental leave . In GPE ( GPE , GPE , GPE , GPE , GPE and GPE ) only servicewomen are entitled to such leave . In GPE ( GPE , GPE and GPE ) all servicewomen are entitled to parental leave , while servicemen are entitled to such leave only in exceptional cases , for example if the mother has died , has abandoned the child , is seriously ill or is unable to take care of the child for any other justified reason . In the remaining QUANTITY both servicemen and servicewomen are equally entitled to parental leave .

In some countries ( for example GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) parental leave for military personnel seems to be governed by the same general provisions as those applicable to civilians . In other countries ( for example GPE , GPE , GPE , GPE , GPE and GPE ) parental leave is regulated by specific provisions which do not , however , contain any significant differences as compared to the rules applicable to civilians . In CARDINAL countries ( GPE , GPE , the GPE , GPE and GPE ) the specific provisions governing parental leave for military personnel contain certain differences or restrictions not applicable to civilians . For example , legislation in the GPE provides that parental leave may be postponed where “ important interests of the service ” so require . In GPE military personnel benefit from the same statutory entitlements as civilians in terms of parental leave . However , ORG may oppose the attribution of parental leave to a DATE or recall a DATE on parental leave to duty on grounds of imperative needs of national defence . Similarly , in GPE , service personnel , who in principle have the same entitlement to parental leave as civilians , may not be able to take parental leave at their convenience if it is considered to affect the combat effectiveness of the armed forces .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property

The applicant was born in DATE and lives in the town of GPE of GPE .

In DATE the applicant took part in the emergency operation at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examinations which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded a DATE pension and a special allowance from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .

At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of pension and allowance , paid to the applicant in connection with his disability . Instead , he started to receive his pension in a fixed amount ( MONEY ) , which was less than he expected . Presuming that this practice was illegal , the applicant brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the DATE allowance and pension in line with the increase of the minimum subsistence amount during the relevant period .

On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the DATE allowance due to the applicant in line with the increase of the minimal subsistence amount in the GPE region . In re - calculating the amount of the applicant 's pension the court applied the multiplier of CARDINAL based on the data provided by the regional committee on statistics . As a result , the DATE pension of the applicant increased to CARDINAL,CARDINAL.CARDINAL Roubles . The court ordered the defendant to pay the applicant the recalculated amount as from DATE less the sums already paid .

The defendant appealed challenging , among other things , the multiplier of CARDINAL applied by the first - instance court .

On DATE ORG ( “ the Regional Court ” ) upheld the judgment of DATE in full . The enforcement proceedings were opened .

On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgment of DATE , as upheld on QUANTITY .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .

On DATE the defendant complained to the President of ORG about the judgment of DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .

On DATE a judge of ORG requested the case - file from the court of first instance . On DATE judge B. of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of DATE referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The case was transferred to the ORG for the examination on the merits .

On DATE the applicant was informed about the date and venue of the hearing of his case by the ORG .

On DATE the ORG quashed the judgment of DATE , as upheld on appeal , stating that the first instance court 's calculation of the minimum subsistence amount , based on the multiplier of CARDINAL , had been insufficiently supported by evidence . The ORG also noted that the first instance court had misinterpreted the domestic law . The case was remitted to the first instance court for a fresh examination .

On DATE ORG examined the case anew . In the course of the proceedings the court established that the allowance should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicant maintained that he accepted that multiplier .

As a result , the court held that the amount of pension due to the applicant for DATE was MONEY per month . In DATE the pension of the applicant should have amounted to MONEY per month . The court ordered the social security authorities to compensate the applicant for previous underpayments and , starting from DATE , pay him MONEY DATE , with subsequent readjustment .

The judgment of ORG was not appealed against and became final .

On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .

The ORG , in the relevant part , provides as follows :

“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”

“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –

( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;

( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .

NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”

“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory review court ;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”

“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”

“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws ”


The applicant , Mr PERSON , is of NORP origin living in GPE , GPE . He is represented before the ORG by Mr A. GPE , a lawyer practising in GPE , GPE . ORG ( “ the Government ” ) were represented by the delegates of their Agent , Mr PERSON , Adviser at ORG and PERSON , Legal Assistant at ORG . ORG did not make use of their right to intervene ( Article CARDINAL § CARDINAL of the Convention ) .

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

The applicant is the owner of CARDINAL plots of land situated in PERSON in the municipality of GPE , which cover a total of CARDINAL hectares . In DATE this land , which was used for agricultural purposes , was occupied by NORP KFOR ( ORG - led peacekeeping forces ) soldiers and became the main national base in GPE for the NORP ORG contingent . Since then the applicant was denied access to and use of his land .


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

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

Until DATE the applicant lived in GPE , a village of the GPE district in GPE , where he owns property .

In DATE ORG nullified the legal personality of ORG .

In DATE security forces forcibly evacuated GPE on the grounds of security . The applicant and his family then moved to GPE , where they currently live .

On DATE the legal representative of the applicant , Mr PERSON filed a petition with ORG requesting compensation for the damage the applicant had suffered and permission to return to his village .

On an unknown date ORG replied to the applicant stating that he could return to the Arslandoğmuş village .

On DATE Mr PERSON filed a further petition with ORG reiterating his request for compensation .

On DATE ORG of the GPE office in GPE sent the following reply to Mr PERSON :

“ Your petition to ORG will be considered under the ‘ Return to the Village and Rehabilitation Project’ .

As it is possible to reside in the Arslandoğmuş village , return to this village is at the applicant ’s discretion . However , his request for compensation will not be considered since PERSON Cihan does not reside in the GPE district . ”

In DATE the status of ORG was changed from village to hamlet . It was then attached to the village of ORG which is QUANTITY away . At the relevant time , there were only a few families living in the LOC hamlet given that it lacked sufficient infrastructure . The security forces had not forced the applicants to leave their village .

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages . In this connection , in a letter of DATE the NORP Governor of GPE informed the applicant that he could return to his village and resume his economic activities if he wished . The GPE further noted that all villages were open for re - settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


Violation of Art. 8;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicant is the mother of CARDINAL children : T. , born on DATE , and A. , born on DATE .

On DATE ORG ( NORP ) at FAC ) , pursuant to LAW ) , took ORG provisionally into their care . It noted that on TIME , the applicant , who delivers newspapers , had come back late from work and her children had been at home without supervision for TIME . The applicant ’s neighbour , who had seen T. alone in the garden at TIME , had contacted ORG . ORG placed the children with a socio - pedagogical facility in GPE for an evaluation of their development .

On DATE ORG requested the formal transfer of the custody of the children to it before ORG ( Bezirksgericht ) . ORG , relying on LAW , claimed that the living conditions of the children were chaotic . It did not submit a formal statement of reasons , but promised to do so later .

On DATE the applicant , assisted by counsel , requested ORG to order ORG to return T. and A. to her .

On DATE ORG rejected ORG request and ordered that T. and A. be promptly returned to their mother ’s custody . ORG found that the removal of the children from their mother was unlawful , as ORG had failed to submit a formal statement of reasons giving arguments in support of the children ’s removal and the transfer of their custody . The court observed that , without such a statement , it could not take the evidence necessary to verify whether ORG request was well - founded . Consequently , the court was not in a position to decide on the merits .

On DATE ORG appealed and refused to give ORG back to their mother . On DATE it supplemented its appeal arguing that the applicant was incapable of bringing up T. and A. It submitted that on the early morning of CARDINAL DATE the children had been at home alone . T. was wandering about in the garden alone at QUANTITY , wearing only pyjamas . In support of its arguments , ORG filed , inter alia , a fax of the PERSON rural police ( PERSON ) of DATE , certificates of CARDINAL DATE concerning the children ’s condition of health issued by a medical officer ( ORG ) , and the transcripts of the statements of the applicant ’s neighbour before ORG .

On DATE the ORG ( PERSON ) quashed ORG decision and remitted the case back to ORG , instructing the latter to take a new decision after having supplemented its proceedings ( PERSON ) . ORG found that , taking the ex officio character of the custody proceedings ( GPE ) into account , it had been for ORG to investigate the facts sufficiently in order to reach a decision . In particular ORG should have been given the opportunity to correct its procedural mistake by submitting a formal statement of reasons .

On DATE the GPE socio - pedagogical centre ( Sozialpädagogisches Zentrum ) submitted a report to ORG .

On DATE the applicant was heard with regard to the events of DATE . She submitted that on TIME , she had suffered from a migraine attack and therefore had been unable to return home in time . Normally she returned before her DATE son , PERSON , who also lived with her , left for work . That day she had unsuccessfully tried to contact a friend of hers to look after her children .

On DATE the ORG heard the father of T. and A. , who did not live with them . He was opposed to the transfer of custody to ORG as he considered that the applicant took care of the children satisfactorily . He himself was not in a position to take care of them .

On DATE ORG again dismissed ORG request for the transfer of custody but ordered the applicant to undergo family therapy together with her children and their father . It instructed ORG to ensure that the applicant complied with this condition . In refusing the transfer of custody , ORG relied , inter alia , on the public health officer ’s certificates according to which ORG had been in a good physical and psychological state , as well as T. , although the medical officer had also found a retardation in the latter ’s linguistic skills and striking deficiencies in his social behaviour . The applicant ’s approach to her children was positive in general . According to ORG , there existed no danger that the incident of DATE could recur , because CARDINAL persons , PERSON and PERSON , had accepted to look after PERSON and NORP in case the applicant should come home late from work .

ORG found that , under sections CARDINAL a and CARDINAL a of LAW , the right of custody may only be withdrawn if the child ’s well - being was endangered and if this was substantiated by compelling arguments . The court noted that the living conditions at the applicant ’s place were below average . Nevertheless the children ’s well - being was not in danger . The incident which led to the taking away of T. and A. was a unique one and the applicant cared sufficiently for her children , having regard both to their psychological and physical well - being . Moreover the applicant still breast - fed NORP The court concluded that the requested transfer of custody was not justified .

On DATE ORG appealed . The ORG argued , inter alia , that PERSON , a former life - companion of the applicant , was unsuitable to look after the children and that PERSON had informed ORG that she had never promised the applicant to look after the children nor was she prepared to do so .

In the course of the appeal proceedings , ORG submitted further evidence , namely a report dated DATE with several annexes . Furthermore , ORG obtained several court files all concerning the applicant : CARDINAL file concerning custody proceedings relating to her son NORP , CARDINAL concerning criminal proceedings against GPE and the applicant for ill treatment of her son NORP , and CARDINAL concerning eviction proceedings against the applicant . This evidence was not communicated to the applicant .

On DATE the ORG granted the appeal and transferred custody of the applicant ’s children to ORG , pursuant to section CARDINAL a of LAW . ORG found that the taking of evidence by the court of first instance had been incomplete . Since the courts had the obligation to safeguard the well - being of the children , it was necessary to decide not merely on the basis of the evidence which existed at first instance but to take into account all subsequent developments and , if necessary , to re - assess the evidence or to supplement the investigations .

On the basis of the evidence meanwhile obtained , ORG found that the well - being of ORG would not be safeguarded if they were to stay with their mother . The children ’s living conditions were desolate and chaotic ; the applicant was apparently not willing to co - operate with ORG and she did not make any efforts to undergo therapy , together with the children , as had been ordered by ORG in its decision of DATE . Moreover , T. and A. no longer stayed with the applicant but with her “ ex - companion ” , as the applicant was due to be evicted from her apartment on DATE . As from CARDINAL DATE the applicant had rented a house in PERSON . According to information obtained from the owner , the house was extremely desolate and hardly fit for habitation . On a visit to PERSON by a staff member of ORG on DATE , the applicant had not permitted the official to enter her home on the grounds of desolate living conditions and the decrepit state of the building . She did not disclose the identity of the friend with whom she had placed the CARDINAL children T. and A. in GPE .

ORG also noted that the applicant ’s elder sons , NORP and PERSON , had been placed in a children ’s home from DATE as the applicant had not taken adequate care of them . After returning to the applicant , NORP had been subject to systematic and repeated abuse by GPE , the applicant ’s then companion , who had DATE beaten NORP and had treated him in a degrading manner . In DATE NORP had been committed to hospital because of injuries inflicted on him by ORG criminal proceedings against the applicant and GPE for abuse of minors had been instituted . In DATE ORG had been convicted of this offence and sentenced to CARDINAL months’ imprisonment . The applicant had been acquitted . At the same time , custody of NORP had been transferred to ORG . He was no longer living with the applicant . In ORG view these events , even though the applicant had been acquitted of the criminal charges , showed that she was incapable of effectively caring for her children . Having regard to the abuse and suffering of NORP , it was implausible that she had not noticed anything .

ORG also considered that , having regard to the retardation in ORG development and the deficiencies in his social behaviour , there was no guarantee that either he or his brother PERSON would develop normally if they were to remain with their mother .

On DATE , ORG ( Oberster Gerichtshof ) rejected the applicant ’s extraordinary appeal on points of law ( außerordentlicher Revisionsrekurs ) on the ground that the case did not involve questions of law of fundamental importance .

Under section CARDINAL § CARDINAL of LAW ( ORG ) , the competent ORG shall apply for court orders regarding questions of custody which are necessary in order to ensure a child ’s well - being . In case of imminent danger , ORG shall also make the necessary provisional arrangements concerning care and custody until the competent court has decided .

Under section CARDINAL a of LAW , the competent court shall transfer custody to ORG , even against the wish of the parents , if the well - being of a child is at risk and it is necessary to remove the child from his or her habitual environment , unless the child can be placed with a relative or other qualified persons close to the child .


No violation of Art. 8;Violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant is a NORP national , born in DATE and living in PERSON . He is the father of the child PERSON , born out of wedlock on DATE . The applicant and the child ’s mother , PERSON , lived together at the time of the child ’s birth . They separated in DATE .

ORG mother married in DATE and ORG family name was changed to her mother ’s new family name .

On DATE the ORG decided that the applicant should be entitled to visit his daughter . These visiting arrangements were confirmed in a court settlement between the parents in DATE . Under the terms of this settlement , the applicant was entitled to visit the child DATE . After some first visits , the applicant did no longer exercise his right of access to his daughter .

On CARDINAL DATE the child ’s mother applied with ORG for an amendment of the above settlement to the effect that the applicant should no longer be allowed access to his child . It was stated that the applicant had not exercised his right of access for DATE so that J. had completely forgotten him . His wish to see her again was not in J. ’s interest .

On DATE ORG ( Jugendamt ) , having regard to a report by ORG , a NORP welfare organisation , recommended that the applicant should not be granted access to his child .

On DATE ORG ordered that a medical report be prepared on the question of access . The report dated DATE recommended that contact between the applicant and J. be build up carefully and gradually , despite of the risk for J. ’s emotional balance . The established sound emotional ties between J. and her mother and the relationship of trust with the mother ’s partner should , however , not be upset .

NORP In a further report of CARDINAL DATE , ORG recommended that the applicant should meet PERSON in a child guidance centre ( ORG ) . If these contacts developed positively , they should be extended or , in the event of a negative experience , access should be stopped . ORG shared this assessment .

On DATE the ORG confirmed that , DATE and DATE , J. had met the applicant CARDINAL times in the centre in her mother ’s presence . It was stated that J. had sensed the conflicts between her parents and was under mounting emotional strain as a result .

On DATE the ORG heard the applicant and PERSON ’s mother . In these and the following proceedings , both parties were represented by counsel .

On DATE the ORG heard the then DATE child in the absence of her parents . She stated that she had not recognised her natural father and that she did not want to see him .

On DATE ORG set aside its earlier decision of DATE and the court settlement of DATE .

The court noted inter alia that the applicant had not exercised his right to visit his daughter since DATE and that ORG mother was opposed to the applicant ’s request . The court found that the applicant was not entitled to have access to his daughter .

Referring to section DATE of LAW ( Bürgerliches Gesetzbuch ) , the District court observed that the mother , in the exercise of her right to custody , determined the child ’s relations with third persons , and that therefore her will was decisive . The father could only be granted a right of access by court order if this was in the interest of the child . According to the court ’s findings , these conditions were not met in the applicant ’s case . The court considered that , as the parents separated when PERSON was only one and a half years old and as he did not exercise his right of access for DATE , he was a stranger in respect of the child . No bonds existed between her and the applicant and she did not regard him as her father .

ORG further considered that the attempt to overcome this situation had failed . It noted that , in the course of several meetings between the applicant and his daughter at an educational assistance office in DATE and DATE , he had remained a stranger to J. who did not wish to have contacts with her father . In the court ’s view , it was not in ORG interest to act contrary to her wish . After several changes , her mother ’s new husband had become a person exercising parental functions ( männliche PERSON ) . J. ’s stable position and emotions would be shaken if contacts with a stranger were forced . In this context , the court considered that PERSON was very sensitive and vulnerable and therefore needed stable living conditions and a family life free of conflict . Her physical and emotional well - being could be easily affected and she had difficulties in concentrating and learning . Her wish not to have any contacts with her father had , therefore , to be accepted .

On DATE ORG dismissed the applicant ’s appeal .

ORG endorsed ORG findings under section CARDINAL of LAW . ORG further found that the applicant ’s appeal submissions did not disclose any new elements that were relevant . His argument that it had not been his fault that he had not been able to exercise his right of access since DATE was irrelevant , as the child ’s interests were decisive . His criticism of section DATE was irrelevant as this provision was the applicable legislation according to which granting access contrary to the mother ’s will was only possible in the interest of the child . However , in the applicant ’s case ORG , on the basis of an expert opinion , had correctly found that ORG wish not to have contacts with the applicant had to be accepted . Moreover , even assuming that PERSON was influenced by her mother , such influence could not justify to force her to have contacts with the applicant . In this respect , ORG again noted the expert ’s findings that PERSON was very sensitive and vulnerable and that any forced contacts would certainly harm her .

On DATE ORG declared the applicant ’s further complaint inadmissible , pursuant to section CARDINALa of LAW ( Gesetz über die Angelegenheiten der freiwilligen PERSON ) . ORG considered that the prevailing legal situation , excluding a further appeal in proceedings concerning a father ’s access to his child born out of wedlock , could not be objected to from a constitutional point of view . Even if the criteria established in ORG decision of DATE on the necessity to abolish discrimination against children born out of wedlock were applied to procedural rules , the general standards as to the period left to the legislator for the purpose of amending the relevant legislation did not yet permit the conclusion that the existing legislation was unconstitutional .

On DATE the applicant filed a constitutional complaint with ORG , complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination , as well as about the refusal of his further appeal . ORG of the First Senate of ORG acknowledged receipt on DATE .

On DATE ORG informed the applicant ’s lawyer that it was dealing with a further case concerning section DATE of LAW which had already been submitted . A decision in that case was envisaged for DATE . The processing of the applicant ’s case was therefore postponed . On DATE , upon the applicant ’s inquiry , the Judge at ORG dealing with the applicant ’s case informed him that a decision on the other case was envisaged for DATE . In a letter of CARDINAL DATE , the applicant ’s representative was informed that the date of a decision upon his complaint could not be foreseen . The applicant was subsequently informed that , in the light of the legislative reforms , a decision on his constitutional complaint did no longer appear necessary and the applicant agreed to consider the complaint as settled .

The applicant ’s renewed request for access to J. remained unsuccessful .

The statutory provisions on custody and access are to be found in the NORP Civil Code . They have been amended on several occasions and many were repealed by the amended LAW ) of DATE ( ORG , p. CARDINAL ) , which came into force on DATE .

Section CARDINAL § CARDINAL reads as follows ( the ORG ’s translation ) :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Pursuant to section CARDINAL a § CARDINAL , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . 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 ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , 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 otherwise the child ’s well - being would be endangered . The family courts may order that the right of access exercised in the presence of a third party , such as a ORG authority or an association .

NORP Before the entry into force of the amended Law on Family Matters , the relevant provision of LAW concerning custody and access for a child born in wedlock was worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .

The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under section CARDINAL § CARDINAL , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare .

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

Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows ( the ORG ’s translation ) :

Section CARDINAL

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

Section CARDINAL

“ CARDINAL . The person having custody of the child shall determine the father ’s right of access to the child . Section CARDINAL § CARDINAL , second sentence , applies by analogy .

If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Section CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child ’s personal circumstances is set out in LAW § CARDINAL .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

Like proceedings in other family matters , proceedings under former section DATE LAW were governed by LAW ( PERSON über die ORG der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

In proceedings regarding access , the competent youth office has to be heard prior to the decision ( section CARDINAL(CARDINAL ) ( k ) ) .

As regards the hearing of parents in custody proceedings , section ORG ( CARDINAL ) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child ’s assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to paragraph CARDINAL of section CARDINALa , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .

Section CARDINAL provides for a right of a further appeal challenging the first appeal decision . Section CARDINALa of that Act as in force at the material time excluded this right in proceedings concerning a natural father ’s access to his child born out of wedlock . This provision has been repealed by ORG .