CASE OF SALGUEIRO DA SILVA MOUTA v. PORTUGAL

Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national born in DATE . He lives in PERSON ( GPE ) .

In DATE the applicant married ORG On DATE they had a daughter , PERSON The applicant separated from his wife in DATE and has since then been living with a man , L.G.C. Following divorce proceedings instituted by ORG , the divorce decree was pronounced on DATE by ORG ( Tribunal de Família ) .

On DATE , during the divorce proceedings , the applicant signed an agreement with ORG concerning the award of parental responsibility ( poder paternal ) for PERSON Under the terms of that agreement ORG was to have parental responsibility and the applicant a right to contact . However , the applicant was unable to exercise his right to contact because ORG did not comply with the agreement .

On DATE the applicant sought an order giving him parental responsibility for the child . He alleged that ORG was not complying with the terms of the agreement signed on DATE since PERSON was living with her maternal grandparents . The applicant submitted that he was better able to look after his child . In her memorial in reply ORG accused GPE of having sexually abused the child .

ORG delivered its judgment on DATE after a period in which the applicant , PERSON , GPE , ORG and the child ’s maternal grandparents had been interviewed by psychologists attached to the court . The court awarded the applicant parental responsibility , dismissing as unfounded – in the light of the court ORG reports DATE ORG ’s allegations that ORG had asked PERSON to masturbate him . It also found , again in the light of the court psychologists’ reports , that statements made by PERSON to that effect appeared to have been prompted by others . The court added :

“ The mother continues to be most uncooperative and it is wholly improbable that her attitude will change . She has repeatedly failed to comply with the ORG ’s decisions . The finding is inescapable that [ the mother ] has not shown herself capable at present of providing PERSON with conditions conducive to the balanced and calm life she needs . The father is at present better able to do so . In addition to providing the economic and living conditions necessary to have the child with him , he has shown himself capable of providing her with the balanced conditions she needs and of respecting her right to maintain regular and sustained contact with her mother and maternal grandparents . ”

M. stayed with the applicant from DATE to CARDINAL DATE , when she was allegedly abducted by ORG The applicant reported the abduction and criminal proceedings are pending in that connection .

DATE C.D.S. appealed against ORG judgment to ORG ) , which gave judgment on DATE , reversing the lower court ’s judgment and awarding parental responsibility to ORG , with contact to the applicant . The judgment was worded as follows .

“ In the proceedings for the award of parental responsibility for the child PERSON , born on CARDINAL DATE , daughter of [ the applicant ] and ORG , the decision given on DATE confirmed the agreement between the parents as to parental responsibility for the child , contact and the amount of maintenance payable by the father , since custody of PERSON was awarded to the mother .

On DATE [ the applicant ] applied for a variation of the order granting parental responsibility , alleging that the child was not living with her mother in accordance with what had been decided , but with her maternal grandparents , which – he argued DATE was unsatisfactory . It was for that reason that the custody arrangements should be varied so as to allow him to have his daughter and apply to the mother the contact and maintenance arrangements which had hitherto been applied to him .

The child ’s mother not only opposed the application lodged by the applicant , but also relied on evidence supporting her contention that the child should not remain in the company of her father because he was a homosexual and was cohabiting with another man . After a number of steps had been taken in connection with those proceedings , the following decision was given on DATE :

‘ CARDINAL . Custody and care of the child is awarded to the father , in whom parental responsibility shall be vested .

NORP The child may see her mother on alternate weekends , from DATE . Her mother shall collect her from school on the DATE and bring her back to school on DATE TIME before lessons start .

NORP The child may also see her mother every DATE and DATE ; her mother shall fetch her from school after lessons and bring her back TIME .

NORP The child shall spend DATE alternately with her father and her mother .

NORP The child shall spend the GPE holidays with her mother .

During DATE the child shall spend DATE with her mother . The dates must be agreed on with the father at least sixty days beforehand .

NORP The mother shall pay the father maintenance of QUANTITY , payable before DATE . Those maintenance payments shall be adjusted once annually on the basis of the inflation index for DATE published by the ORG ( ORG

That decision specifically governed arrangements applicable to DATE . ORG , who was dissatisfied with the decision , appealed . She had previously appealed against the decision appearing on page CARDINAL , which dismissed an application for a stay of the proceedings , and the decision given at the hearing of DATE on the application for an examination of the document appearing on page CARDINAL ; both those appeals were adjourned and did not have the effect of staying the proceedings .

The appellant sets out the following grounds in her appeal :

In his pleadings [ the applicant ] submitted that the judgment of the first - instance court should be upheld .

ORG attached to ORG has recommended that the decision be set aside , but not on the grounds relied on by the appellant .

After examining the case , we shall give our decision .

We shall first examine the following facts , which the first - instance court considered to be established .

NORP The child , PERSON , who was born on CARDINAL DATE , is the daughter of [ the applicant ] and ORG

Her parents married on DATE .

Divorce was granted on DATE and their marriage dissolved .

NORP The parents have been living separately since DATE , when [ the applicant ] left his home to go and live with another man , whose first name is L.

On DATE ORG gave a decision in case no . CARDINAL confirming the following agreement on the exercise of parental responsibility for the child :

‘ I. The mother shall have custody of the child .

II . NORP The father may visit his daughter whenever he likes provided that he does not disrupt her schooling .

III . NORP The child shall spend alternate weekends and DATE and GPE with her father .

IV . NORP The child shall spend the father ’s holidays with him unless those holidays coincide with those of the mother , in which case the child shall spend DATE with each parent .

PERSON On DATE which the child spends with her father , he shall collect her from her mother ’s house on DATE at TIME and bring her back on DATE at TIME

ORG . NORP The child shall go to a kindergarten as soon as possible , the enrolment fees to be paid by the father .

VII . NORP The father shall pay maintenance of QUANTITY , which shall be adjusted once annually by the same percentage as the net increase in his salary . That sum shall be paid into the account of the child ’s mother – account no . … – before DATE of DATE .

VIII . NORP The father shall also pay CARDINAL his daughter ’s kindergarten fees .

IX . The father shall pay CARDINAL of any special expenses for his child ’s health.’

From DATE the child stopped seeing her father on the agreed terms , against his wishes .

Until DATE the child lived with her maternal grandparents [ name ] at Camarate [ address ] .

From that date the child went to live with her mother and her mother ’s boyfriend [ address ] in GPE .

She continued , however , to stay TIME at her maternal GPE house from time to time .

On DATE when the child did not stay TIME with her grandparents , her mother used to drive her to her GPE house where she used to stay after school from TIME

During DATE was in DATE primary at … school , for which the fees came to QUANTITY .

Her mother has been cohabiting with J. for DATE .

J. , who is a business manager , works in the imports and exports sector , the major part of his activity being in GPE where he has immigrant status . His income amounts to some QUANTITY .

The mother , ORG , is the manager of ORG , the partners of which are her boyfriend and his brother , ORG

She has been registered with the ORG agency for employment and vocational training since DATE .

Her expenses are paid for jointly by herself and her boyfriend .

She states that she pays QUANTITY in rent and spends CARDINAL escudos per month on food .

The father , PERSON , is in a homosexual relationship with GPE , with whom he has been living since DATE .

He is the head of his sector at ORG , and his net DATE income , plus commission , comes to CARDINAL escudos .

The child is very close to her maternal grandmother , who is a GPE ’s Witness .

Following her failure to comply with the decision referred to in paragraph CARDINAL , the child ’s mother was ordered , on DATE , to pay a fine of MONEY because since DATE she had been refusing to allow the father to exercise his ‘ right to contact with his daughter in accordance with the decision given’ .

On DATE , after interviewing the father and mother both individually and together , and PERSON without her parents or her maternal grandmother being present , and the maternal grandmother and the father ’s partner individually , and performing a psychological examination of PERSON , the court psychologists drew up the following report :

‘ PERSON is a communicative child of normal intellectual development for her age and above average intelligence . She is very attached to her father and mother , and the conflict between her parents is a source of some insecurity . She would like her parents to live closer together because she finds it difficult to understand why she has to live with her grandparents and not see her father or to accept this . She has a very good relationship with her father , who is very affectionate and attentive towards his daughter . Both [ the applicant ] and his ex - wife are affectionate and flexible parents and both invest in their daughter ’s upbringing and emotional security . The reasons for their separation were subsequently a source of substantial conflict between them , exacerbated by PERSON ’s maternal grandmother , who does not accept [ the applicant ’s ] lifestyle and unconsciously tries to keep him away from his daughter . To sum up , both parents are capable of overseeing their daughter ’s satisfactory psychoaffective development , but we do not feel that it is right for her to live with her grandmother , who exacerbates the conflict between the CARDINAL parties and fuels it by trying to keep [ the applicant ] away because she does not accept his lifestyle.’

On DATE told the psychologist and her father that the latter ’s partner had asked her , while her father was out , to go into the bathroom with him , that he had locked the door and asked her to masturbate him ( she made gestures imitative of masturbation ) and then told her that she did not need to wash her hands and that she should not say anything to her father . The psychologist stated that the manner in which the child had related that episode had made her doubt the truthfulness of the story , which might have been suggested by repeated promptings . She added that while the daughter was describing the episode , the applicant had been understanding and asked for clarification , which confirmed that the father and daughter had a good relationship .

During the interview with the psychologist on DATE the child stated that she was still living with her maternal grandmother and that from time to time she stayed with her mother where she would sleep on a sofa in the living room because there was no bedroom for her .

In a report dated DATE , drawn up following a meeting between the daughter and her father , the psychologist concluded that ‘ although PERSON has observed during her meetings with her father that he is living with another man , her parental images have been fully assimilated and she presents no problem relating to psychosexual identity , be it her own or that of her GPE .

PERSON , a psychiatrist , stated , after interviewing the boyfriend of [ the applicant ] , the child ’s father , that in his opinion the partner was well adjusted and of satisfactory emotional and cognitive development . He found nothing abnormal about the boyfriend either as an individual or in terms of his relationship with the child ’s father . He considered it wholly improbable that the episode related by the child , as described in paragraph DATE , had really occurred .

The final report drawn up by the court psychologists , dated DATE , indicated that PERSON was suffering from a degree of insecurity due in part to the conflict between her mother ’s side of the family and her father , and that she had a defensive attitude which manifested itself in a refusal to confront potentially stressful situations . The child is aware that her family opposes her meetings with her father , their opposition being justified by the child ’s description of an episode which had allegedly occurred between her and her father ’s boyfriend , GPE , in which GPE had asked her to masturbate him . With regard to that account , it is difficult to imagine how a DATE child could relate in detail an episode which had occurred DATE . The experts conclude in their report that the fact that PERSON had described in detail the above - mentioned masturbation episode did not mean that it had actually occurred . They reiterate that the father is a very affectionate father , full of understanding and kindness towards his daughter , while also imposing on her , satisfactorily and instructively , limits which were necessary and made her feel secure .

The experts also reiterate that the child ’s mother is a very affectionate mother , but rather permissive , which is not conducive to a feeling of security , although she is capable of improving . They also conclude that it is not advisable for the child to live with her grandmother because the religious fanaticism present in her environment not only condemns the father , but excludes him on grounds of the individual and emotional choices he has made . This has contributed to sowing confusion in the child ’s mind and exacerbating her sense of conflict and anxiety , thus compromising her healthy psychoaffective development .

At the hearing on DATE the following interim decision was given with the agreement of both parents : ( I ) M. could spend every DATE from TIME with her father , ( II ) to that end , her father would fetch her from her mother ’s house accompanied by her paternal grandmother and/or her paternal great - grandmother .

The mother did not allow her daughter to see her father on the terms fixed by the above - mentioned decision .

On DATE the child psychiatry department of ORG decided that PERSON should be monitored because her feelings of anxiety were such as might inhibit her psychoaffective development .

Those facts , found at first instance , are considered to have been definitively established , without prejudice to the possibility of considering a further factor in delivering this judgment . With regard to the other appeals , since the mother has not submitted any pleadings they are considered to be inoperative under Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure . Apart from the fact that factual evidence has not been submitted , these aspects appear to us to be sufficient to give a ruling here as we understand that the lower court ruled on the essential issue of the case , that is to which of the CARDINAL parents custody of the child should be awarded . The shortcomings in the decision referred to by ORG , although relevant , do not warrant setting it aside .

Let us now examine the appeal :

Article DATE § CARDINAL of the Civil Code provides that in cases of divorce , judicial separation of persons and possessions , declarations of nullity or annulment of marriage , child custody , maintenance and the conditions of payment are governed by agreement between the parents , that agreement being subject to confirmation by the court ; confirmation is refused if the agreement is contrary to the child ’s interests , including the child ’s interest in maintaining a very close relationship with the non - custodial parent . Paragraph CARDINAL adds that , in the absence of an agreement , the court shall decide , while protecting the child ’s interests , including his or her interest in maintaining a very close relationship with the non - custodial parent , it being possible to award custody of the child to CARDINAL or other parent or , if CARDINAL of the cases provided for in DATE applies , to a third party or to an educational or welfare establishment .

The Guardianship Act also deals with this point . LAW ) of that LAW provides that any award of parental responsibility must be in the child ’s interests .

A judgment of ORG of DATE , summarised in ORG ( ORG ) no . CARDINAL , p. CARDINAL , states : ‘ The Convention on the Rights of the Child – Resolution of DATE of ORG of the United Nations – proclaims with rare concision that children , for the full and harmonious development of their personality , require love and understanding ; they should , as far as possible , grow up under the protection and responsibility of their parents and , in any event , in a climate of affection and psychological and material security , with young children not being separated from their mother save in exceptional cases.’

We do not have the slightest hesitation in supporting that declaration , which fully corresponds to the realities of life . Despite the importance of paternal love , a young child needs the care which only the mother ’s love can provide . We think that PERSON , who is now aged DATE , still needs her mother ’s care . See on this point the judgment of ORG of DATE , in ORG no . CARDINAL , p. CARDINAL , in which that court held that ‘ in the case of young children , that is until DATE , the emotional tie to the mother is an essential factor in the child ’s psychological and emotional development , given that the special needs of tenderness and attentive care at this age can rarely be replaced by the father ’s affection and interest’ .

The relationship between PERSON and her parents is a decisive factor in her emotional well - being and the development of her personality , particularly as it has been demonstrated that she is deeply attached to her parents , just as it has been shown that both of them are capable of guiding the child ’s psychoaffective development .

In the official record of the decision of CARDINAL DATE awarding parental responsibility , [ the applicant ] acknowledged that the appellant was capable of looking after their daughter and suggested that custody be awarded to the mother , a statement he repeated in the present proceedings to vary that order , as recorded in the transcript of the hearing of DATE , declaring that he wished to waive his initial application for custody of the child because she was living with her mother again . PERSON ’s father expresses the wish that his daughter not stay with her maternal grandparents , referring to the numerous difficulties he encounters when trying to see his daughter , given the conduct of the appellant and her mother who do all they can to keep him away from his daughter because they do not accept his homosexuality .

Section CARDINAL of the Guardianship Act provides that previous arrangements can be varied if the agreement or final decision is not complied with by both parents or if subsequent circumstances make it necessary [ to vary ] the terms . Consideration needs to be given , however , to whether there is a justified ground for varying the decision awarding custody of the child to her mother .

On examining the content of the initial application for a variation of the order it can be seen that emphasis is placed on the fact that the child was living with her maternal grandparents who are GPE ’s Witnesses . The truth of the matter , however , is that [ the applicant ] has not produced any evidence to prove that this religion is harmful and has merely stressed the GPE stubborn refusal to allow the father and daughter to see each other . To the ORG ’s knowledge , the beliefs of ORG Witnesses do not incite to evil practices , although fanaticism does exist .

Are there adequate reasons for withdrawing from the mother the parental responsibility which was granted her with the GPE agreement ?

There is ample evidence in this case that the appellant habitually breaches the agreements entered into by her with regard to the father ’s right to contact and that she shows no respect for the courts trying the case , since on several occasions , and without any justification , she has failed to attend interviews to which she has been summoned in the proceedings . We think , however , that her conduct is due not only to [ the applicant ] ’s lifestyle , but also to the fact that she believed the indecent episode related by the child , implicating the father ’s partner .

On this point , which is particularly important , we agree that it is not possible to accept as proven that such an episode really occurred . However , we can not rule out the possibility that it did occur . It would be going too far – since there is no conclusive evidence – to assert that the boyfriend of PERSON ’s father would never be capable of the slightest indecency towards PERSON Thus , although it can not be asserted that the child told the truth or that she was not manipulated , neither can it be concluded that she was telling an untruth . Since there is evidence to support both scenarios , it would be wrong to give greater credence to CARDINAL than the other .

In the same way , the accepted principle in cases involving awards of parental responsibility is that the child ’s interests are paramount , completely irrespective of the – sometimes selfish – interests of the parents . In order to establish what is in the child ’s interests , a court must in every case take account of the dominant family , educational and social values of the society in which the child is growing up .

As we have already stated and as established case - law authority provides , having regard to the nature of things and the realities of DATE life , and for reasons relating to human nature , custody of young children should as a general rule be awarded to the mother unless there are overriding reasons militating against this ( see ORG judgment of DATE , in ORG no . CARDINAL , p. CARDINAL ) .

In the instant case parental responsibility was withdrawn from the mother despite the fact that it had been awarded her , we repeat , following an agreement between the parents , and without sufficient evidence being produced to cast doubt on her ability to continue exercising that authority . The question which therefore arises , and this should be stressed , is not really which of the CARDINAL parents should be awarded custody of PERSON , but rather whether there are reasons for varying what was agreed .

Even if that were not the case , however , we think that custody of the child should be awarded to the mother .

The fact that the child ’s father , who has come to terms with his homosexuality , wishes to live with another man is a reality which has to be accepted . It is well known that society is becoming more and more tolerant of such situations . However , it can not be argued that an environment of this kind is the healthiest and best suited to a child ’s psychological , social and mental development , especially given the dominant model in our society , as the appellant rightly points out . The child should live in a family environment , a traditional NORP family , which is certainly not the set - up her father has decided to enter into , since he is living with another man as if they were man and wife . It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex . In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations ; such are the dictates of human nature and let us remember that it is [ the applicant ] himself who acknowledged this when , in his initial application of DATE , he stated that he had definitively left the marital home to go and live with a boyfriend , a decision which is not normal according to common criteria .

No doubt is being cast on the father ’s love for his daughter or on his ability to look after her during the periods for which she is entrusted to his care , for it is essential that they do see each other if the objectives set out above are to be met , that is ensuring the child ’s well - being and the development of her personality . PERSON needs to visit her father if her feelings of anxiety and insecurity are to be dissipated . When children are deprived of contact with their father , their present and future development and psychological equilibrium are put at risk . The mother would be wise to try to understand and accept this if she is not to cast doubt on her own ability to exercise parental responsibility .

At present , the failure to comply with the decision confirming the contact arrangements does not amount to a sufficient reason for withdrawing from the appellant the parental responsibility awarded to her by that decision .

Accordingly , we reverse the judgment of the lower court as regards the child ’s permanent residence with her father , without prejudice to the father ’s right to contact during the periods which will be stipulated below .

It should be impressed upon the father that during these periods he would be ill - advised to act in any way that would make his daughter realise that her father is living with another man in conditions resembling those of man and wife .

For all the foregoing reasons ORG reverses the impugned decision and rules that the appellant , ORG , shall continue to exercise parental responsibility for her daughter , PERSON

The contact arrangements shall be established as follows :

The child may see her father on alternate DATE from DATE . To that end the father shall fetch his daughter from school at the end of classes on the DATE and bring her back on DATE TIME before classes start .

NORP The father may visit his daughter at school on any other day of the week provided that he does not disrupt her schooling .

The child shall spend the LOC holidays alternately with her father and her mother .

The DATE holidays shall be divided into CARDINAL equal parts : CARDINAL to be spent with the father and CARDINAL with the mother , but in such a way that the child can spend DATE with one and New Year with the other alternately .

During DATE the child shall spend DATE with her father during the latter ’s holidays , but if that period coincides with the mother ’s holidays the child shall spend DATE with each of them .

During the LOC , DATE and DATE the father shall fetch the child from the mother ’s house and bring her back TIME unless the parents agree on different times .

NORP In accordance with the date of this decision , the child shall spend the next LOC and DATE holidays with the parent with whom she did not spend those holidays in DATE .

The matter of maintenance payable by the father and the manner of payment shall be examined by LAW in case no . CARDINAL/A , which has been adjourned pending the present decision regarding the child ’s future .

Costs are awarded against the respondent . ”

CARDINAL of the three ORG judges gave the following separate opinion :

“ I voted in favour of this decision , with the reservation that I do not consider it constitutionally lawful to assert as a principle that a person can be stripped of his family rights on the basis of his sexual orientation , which DATE accordingly – can not , as such , in any circumstances be described as abnormal . The right to be different should not be treated as a ‘ right’ to be ghettoised . It is not therefore a matter of belittling the fact that [ the applicant ] has come to terms with his sexuality and consequently of denying him his right to bring up his daughter , but rather , since a decision has to be given , of affirming that it can not be declared in our society and in our era that children can come to terms with their father ’s homosexuality without running the risk of losing their reference models . ”

No appeal lay against that decision .

The right to contact granted to the applicant by the judgment of ORG was never respected by ORG

The applicant therefore lodged an application with ORG for enforcement of ORG decision . On DATE , in connection with those proceedings , the applicant received a copy of a report drawn up by the medical experts attached to ORG . He learnt from this that PERSON was in PERSON in the north of GPE . The applicant made CARDINAL unsuccessful attempts to see his daughter . The enforcement proceedings are apparently still pending .

DATE of the Civil Code provides :

“ CARDINAL . In the event of divorce … , child custody , maintenance and the terms of payment shall be determined by agreement between the parents , which is subject to confirmation by the ... court

NORP In the absence of an agreement , the court shall decide on the basis of the interests of the child , including the child ’s interest in maintaining a very close relationship with the non - custodial parent ... ”

Certain provisions of LAW are also relevant to the instant case .

“ CARDINAL . ... a decision as to the exercise of parental responsibility shall be made on the basis of the interests of the child , custody of whom may be awarded to CARDINAL of the parents , a third party or an educational or welfare establishment .

Contact arrangements shall be made unless , exceptionally , this would not be in the child ’s interests ... ”

“ If CARDINAL of the parents does not comply with the agreement or decision reached in respect of the child ’s situation , the other parent may apply to the court for enforcement ... ”

“ If the agreement or final decision is not complied with by both the father and the mother or if fresh circumstances make it necessary to vary the terms , CARDINAL of the parents or the guardian may apply to the ... court for variation of the award of parental responsibility ... ”


CASE OF DIAMANTE AND PELLICCIONI v. SAN MARINO

Remainder inadmissible;No violation of Art. 8;No violation of P4-2

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The first applicant , while resident in GPE , had a relationship and was cohabiting with Mr X. in GPE .

On DATE the second applicant was born of this relationship , in GPE , GPE . She was granted dual nationality , NORP and NORP . The family lived in X. ’s villa in GPE .

Mr X. left the villa in DATE and allegedly stopped sending the applicants any financial allowances .

On DATE lodged a request with ORG for sole custody and restitution of the villa .

Following a deferral request by Mr X. , the first hearing was held on DATE , the date when the first applicant intervened in the proceedings , and demanded custody of the child , the right to remain living in the family home and maintenance .

By a decree of DATE , the relevant court , namely the PERSON della PERSON of GPE , granted custody to the first applicant . Mr X. was entitled to visiting rights as follows : DATE and DATE from TIME one day ( DATE or DATE ) on alternate weekends from TIME It refused to decide on maintenance , inviting the parents to reach an agreement . It further ordered the intervention of the “ servizio minori ” ( children ’s services ) to verify each parent ’s aptitude and the quality of the relationship with the child .

On DATE the first applicant requested children ’s services to decide on the transfer of the second applicant to a kindergarten in GPE , GPE . The aim of this request was to allow the applicants to live with the second applicant ’s grandmother for economic reasons , since Mr X. had allegedly failed to pay them any allowances .

On DATE Mr X. requested an urgent hearing , complaining that for DATE the first applicant had denied him contact rights and had changed the arrangements . Consequently , the PERSON della PERSON , considering that the father had a right to see his daughter DATE , requested children ’s services to intervene in order to ensure that contact rights were respected .

On DATE the first applicant reiterated that on DATE the court had ordered visits on the DATE or DATE of alternate weekends , and not every weekend as interpreted on DATE .

On DATE the first applicant requested to take the child on a DATE holiday . The PERSON della PERSON ordered the relevant notification .

On DATE the Commissario della PERSON ordered children ’s services to consider whether transfer to the PERSON institution would be in the interest of the minor .

On DATE children ’s services filed their first report , stating that it was important to consider the needs of the child who “ will probably reside in GPE ” . The report noted that the institution in PERSON hosted older children , and that Mr X. showed his availability to pick up the child from school if it were in GPE . It advised that attending a nursery in GPE would allow better monitoring on the part of the children ’s services .

On DATE , in view of the announced holiday , children ’s services temporarily amended the visiting schedule , in agreement with the parties .

On DATE the first applicant informed the PERSON della PERSON that she had found a job in PERSON , where she planned to move , and therefore she was ready to leave the villa .

On DATE the Commissario della PERSON , having regard to the children ’s services’ report ( above ) and after soliciting further reports , held that , until children services gave different advice , the child should remain in GPE . It referred the case back to children ’s services .

Following further submissions , on CARDINAL DATE the first applicant requested an urgent hearing as she was having difficulty taking care of the child since Mr X. was not paying the maintenance due .

On DATE the Commissario della PERSON , having regard to the economic situation of the parents and to the fact that the first applicant remained living in the villa , decided that Mr X. had to pay the applicants maintenance amounting to MONEY ( ORG ) , as from DATE .

On DATE children ’s services drew up another report , finding that although conflict between the parents persisted , the father had an excellent relationship with the daughter . It advised that there be joint custody of the child , who should be placed prevalently with the mother in view of her tender age ; it proposed CARDINAL possible contact schedules , both eventually including TIME stays per week . It further suggested maintaining the current schooling situation .

On DATE the first applicant , having signed a lease agreement for an apartment in GPE DATE , informed the PERSON della PERSON that she intended to move there with her daughter , while maintaining their official residence in GPE .

On DATE the first applicant made further submissions . It appears that the applicants moved to PERSON on DATE .

By a decree of DATE the Commissario della PERSON granted joint custody , holding that the child should remain living in PERSON , where she was settled with the mother , and should continue to attend the PERSON kindergarten for the following school year , as this appeared to be in the best interests of the child . It further ordered children ’s services to monitor the situation . This decision was based on the children ’s services report of CARDINAL DATE ( see above ) .

On DATE children ’s services submitted a new report , which found that the first father - child visits were held in an untroubled atmosphere and that Mr X. was spending all the appropriate time with the child . It noted that CARDINAL the first applicant went on holiday with the child without informing Mr X. of the destination and that thereafter she had frequently informed children ’s services that visits could not take place because of her or her daughter ’s alleged illnesses or because she refused to give up the daughter .

In DATE Mr X. lodged various submissions , including a complaint that the first applicant was denying his rights to visit their daughter and requesting that the relevant orders be executable in the NORP ORG .

By an order of CARDINAL DATE the Commissario della PERSON specified that the order of DATE must be considered “ provisionally executable ” .

On CARDINAL DATE children ’s services drafted a report , which found that the first applicant was obstructing visiting arrangements which had not been previously arranged and was refusing to cooperate with children ’s services .

Both parties continued to make regular submissions .

By an order of CARDINAL DATE , the PERSON held that unilateral changes to scheduled visits had no effect , since the arrangements had been established by prior orders , which were subject to alteration by future court orders . It held that Mr X. had the right to have his child by his side , unsupervised , and that the child should maintain residence in GPE . It further explained that residence meant “ a situation of permanent stay in a territory ” .

A children ’s services report of CARDINAL DATE related that the first applicant was failing to take the second applicant to children ’s services and that monitoring had become difficult since DATE .

On DATE the first applicant challenged the competence of ORG , namely the PERSON della PERSON , in so far as proceedings were pending before ORG , GPE ( see below ) . The parties informed the tribunal that the relevant ex parte counsellors had been appointed and meetings had started .

On DATE the Commissario della PERSON rejected the objection . It held that the first applicant had accepted the GPE jurisdiction throughout all the proceedings and various decrees ; in effect this request had been made out of time .

On the merits of the pending case , the PERSON della PERSON found no reason to alter the current custody order . Joint custody had been opted for to protect the child from the unhappy situation in which the mother excluded the father from any decision - making . Joint custody and support from children ’s services allowed the creation of an educational programme for the parents to allow for the growth and well - being of the child . This was what the parents had to aim for during the current joint custody regime . Welcoming the appointment of ex parte experts / counsellors , it reiterated the need for supervision by children ’s services . Only upon further reports by children ’s services and experts would the tribunal be able to establish whether any modifications to the regime were necessary or whether schooling in GPE would be more appropriate .

On DATE Mr X. requested that the child be returned to GPE , offering the mother lodgings with the daughter . On DATE Mr X. enrolled the child in a nursery in GPE , notwithstanding that she was still living in PERSON .

On DATE Mr X. made a request for sole custody and for the child to be moved to a school in GPE .

On DATE the PERSON della PERSON requested children ’s services to draw up a report on the merits of schooling in GPE .

The ensuing report of DATE considered that Mr X. was having difficulty seeing the child , as for a while the mother had unilaterally interrupted the father ’s visits ( for example , CARDINAL out of TIME stays with the father had not occurred and DATE visits had been missed ) , and that the mother was not cooperating with children ’s services . Consequently , the establishment of an educational programme had not been successful . It found on the one hand that the first applicant ’s anger towards the father was persistent and involved the child . On the other hand the father had shown consideration and put the needs of the child first . He sincerely loved his daughter and was cooperating with children ’s services . The father and the child had a warm and caring relationship , and the child felt comfortable and happy in his presence . It appeared however that the child might have fears of losing her loved ones , probably due to the various moves , which had also detached her from members of her extended family . The report therefore advised the grant of temporary sole custody to the father , with regular supervised visits by the mother , until this could be reversed . It concluded that schooling should be in accordance with the custody decision , as this would be favourable to the child ’s emotional stability , notwithstanding the unfortunate moves of house . It also advised psychotherapeutic and parental education support for the parents , together with further monitoring by children ’s services .

On DATE the PERSON della PERSON ordered that an extraordinary hearing of the parties ( comparizione delle parti ) be held on DATE . The order was notified on DATE . DATE the first applicant ’s main lawyer communicated his inability to attend and requested an adjournment . The opposing party opposed this request , but no notification reached the first applicant ’s legal counsel .

On DATE Mr X. collected the child and did not return her . On the same day Mr. PERSON ’s lawyer sent the first applicant a fax informing her that the child would not return home to the mother as the father was availing himself of the time accumulated from the missed visits . The child could , however , be contacted by telephone at specific times .

On DATE the first applicant ’s representatives requested X. ’s lawyers to inform them where the child had been taken , the date of return , and arrangements as to the handing over of the child . X. ’s lawyers’ reply was immediate but inconclusive , in that , no details had been given . Thus , the first applicant ’s representatives informed children ’s services about what had happened and complained about the father ’s lawyers . In reply , PERSON lawyers explained that the child was on holiday with her father and that they did not know where they had gone . On DATE , the first applicant ’s lawyers requested that the hearing set for DATE be deferred due to the inability of her regular lawyer , who had dealt with the relevant experts , to attend the hearing for professional reasons . Mr X. ’s lawyers opposed this , however , it appears that no notification of this opposition took place .

DATE , the first applicant lodged written submissions , reiterating that in accordance with the decree of DATE the child had been placed with the mother for DATE . Complaining about Mr X. ’s actions and those of children ’s services , she requested the tribunal to restore the status quo ante .

On DATE , while the child was still missing , Mr X. ’s representatives requested that the minor be placed in GPE . They emphasised that the second applicant ’s presence outside GPE limited the GPE courts’ power over the second applicant ’s rights abroad . The first applicant objected , maintaining that the child should return to PERSON . She further insisted that any missed paternal visits in DATE had not been malicious but had been the result of physical circumstances .

On DATE a substitute judge sat as the PERSON della PERSON . The first applicant , through her co - lawyer , referred to their request for a brief postponement in view of the absence of the habitual judge and her habitual co - lawyer , who was more aware of the case details . Moreover , there had been a lack of collaboration on the part of children ’s services and counsellors , her counsellors had not been summoned , and the child had been kidnapped by the father . Her request was refused without detailed reasons . The substitute judge considered it opportune to take a decision urgently . Consequently , the first applicant ’s co - lawyer withdrew from the case . A further request by the first applicant for a short suspension in order for another lawyer to be appointed was refused .

The case was therefore heard without representation for the first applicant . Mr X. was represented by his lawyers and enjoyed the assistance of a counsellor . After the cross - examination was over , the substitute judge delivered his decision on DATE .

He found that , in view of the report by children ’s services of CARDINAL DATE and DATE , the child risked being denied the benefit of her father ’s presence , as the first applicant had prevented the father ’s visits and obstructed children ’s services’ meetings . Any argumentation by the first applicant presented in her written pleadings had not been persuasive . Consequently , while upholding joint custody , it was ordered that the child live with her father in GPE and that she be transferred to the GPE nursery from DATE . The mother was entitled to supervised visits from DATE from CARDINAL to CARDINAL , or as children ’s services deemed opportune .

On DATE the PERSON della PERSON , acknowledging that there were no obstacles to acceding to the first applicant ’s request to spend DATE with her daughter at the father ’s house , requested the children ’s services to draw up a new calendar of visits . On DATE , following Mr X. ’s request for an authorisation ( “ nullaosta ” ) for the child ’s passport , the tribunal solicited the first applicant ’s agreement , noting that expatriation of the minor would in any case require the tribunal ’s authorisation .

On DATE children ’s services submitted a report stating that the child frequently reiterated her wish to stay with the mother and was showing a certain reluctance to be with the father . The report concluded that persistent pressure by the mother may lead to ORG .

On DATE the first applicant submitted that the unavailability of the child for certain paternal visits while she was in the mother ’s care was for medical reasons .

On DATE Mr X. requested the suspension of the time - limits for appeal , pending friendly settlement negotiations . On the same day children ’s services reported that mother - child visits should take place at the father ’s house . It proposed a new schedule of visits , which would eventually include an TIME stay . It also included visits with the maternal extended family .

The following day , Mr X. pointed out that the first applicant had not been favourable to the return of the second applicant to GPE . He alleged that she was in bad faith and reiterated that , according to LAW ( “ LAW ” ) , visits with a parent who had removed a child required special precautionary measures . On DATE children ’s services prepared a calendar of supervised visits up to DATE , the date of the entry into force of LAW .

On DATE an appeal was lodged against the interim order of CARDINAL DATE before the “ Giudice delle PERSON ” . Lamenting that in the absence of treaties safeguarding repatriation the child remained susceptible to removal by the mother , Mr X. ’s representatives proposed a favourable calendar for visits , namely DATE from TIME to CARDINAL .. TIME , alternate DATE from TIME and alternate DATE from TIME , plus other visits by the extended family and in due course TIME stays by the mother . On DATE the first applicant accepted the proposed schedules , complaining that children ’s services were in practice reducing her visit times by TIME and at times by TIME due to other engagements , but objected to the suspension of the proceedings . She further submitted CARDINAL of the second applicant ’s passports to the court .

On DATE the first applicant appealed , complaining of procedural irregularities pertaining to the interim decree of DATE . In particular she alleged a breach of her right to defence , since she had not been represented . Unlike her , Mr X. had had the benefit of counsel . Moreover , there had not been adequate notification , and therefore the hearing had not been in accordance with the law . Furthermore , the substitute judge should have abstained , as he had decided another case between the same parties .

On DATE Mr X. cross - appealed .

On DATE Mr X. , in his cross - appeal , lodged a request for sole custody and contended that the first applicant had breached her judicial obligations , having allegedly taken the child away , and had attempted to evade GPE jurisdiction . He emphasised that in view of GPE ’s delay in accepting GPE accession to LAW dated DATE , the latter had not yet entered into force between the CARDINAL states . In accordance with the treaty , transfer of the minor to GPE would be unlawful .

On DATE first applicant submitted that she was having difficulty visiting her daughter due to TIME . On DATE the first applicant ’s psychological counsellor wrote to children ’s services offering the first applicant as available for discussion and collaboration . She further requested children ’s services to provide her with a copy of the educational project to be undertaken and relevant information and video clips taken in respect of the child ’s supervision . On DATE the mother again made a request for information and to see the relevant video recordings of her visits to her daughter .

On DATE it was established that cross - examination was necessary for the purposes of the case .

On DATE children ’s services informed the first applicant that her request had been sent to the relevant judicial authorities , since information about minors was covered by professional secrecy .

In the meantime various email exchanges took place DATE in an attempt to negotiate an agreement so that the first applicant would agree to withdraw the pending criminal charges ( see below ) against Mr X. Meetings with counsellors and a psychologist were held .

Following a request from the first applicant , on DATE the PERSON della PERSON ordered the urgent transmission of the file to the appeal judge .

On DATE the Giudice delle PERSON remitted Mr X. ’s appeal of DATE to the PERSON , who was competent to revise the matter and give any other determination in respect of the placement of the child .

On DATE the primo termine probatorio was opened in relation to the original appeal . Hearings and/or submissions were made on DATE , DATE , DATE , DATE and DATE , DATE and CARDINAL DATE and DATE . Following the requests and the consequent submission of rogatory letters , it was established that the first applicant ’s lawyer had judicial engagements in PERSON , explaining his absence from the hearing in question .

The appeal proceedings against the decision of DATE were eventually decided on DATE ( see paragraph CARDINAL below ) .

DATE . On DATE the first applicant ’s representatives complained to children ’s services that the child was isolated , in that she was constantly supervised .

In a report dated DATE children ’s services requested the judge to prohibit the legal representatives of the parties from attending the child ’s visits .

On DATE the first applicant ’s lawyers made submissions in reply , highlighting the importance of re - establishing mother - child relations . On DATE Mr X. reiterated his request for temporary sole custody ( see above DATE ) . Although not intending to travel with the child , he requested a GPE passport for the second applicant .

On DATE the PERSON della PERSON noted that revision of the decree could only take place if new events took place subsequent to the decree , in order to avoid any overlap with the appeal judgment . He further requested the parties to agree on the mother ’s visiting schedule , on further cooperation for the benefit of the child , and lastly asked whether the mother agreed to the issue of a GPE passport , which would be retained by the court together with the NORP passport , any travel having to be agreed by the parents or authorised by the court .

On DATE Mr X. reiterated that the prohibition on the child ’s leaving the country needed to be maintained until the entry into force of LAW . He further requested a definitive judgment in favour of sole custody to be executable immediately on NORP territory .

In the meantime , further submissions were made , together with the reports of the GPE psychologists .

On DATE , in an apparently informal way , the PERSON della PERSON confirmed that the child could not leave GPE .

On DATE the Commissario della PERSON nominated an expert and ordered an expert opinion ( “ consulenza tecnica d’ufficio ” – “ ORG ” ) in respect of : the child ’s relationship with the parents , the personal characters of the parents , their ability to take on parental functions , in particular vis - a - vis granting the other parent contact with the minor , and any proposals in respect of the situation .

DATE . On DATE the first applicant made an urgent request to be allowed to take her child to GPE before LAW entered into force , namely from DATE . She further requested the release of the information and related videotapes of mother - child meetings before the child services , and that children ’s services and the GPE hospital issue a report on the psycho - physical health of the child .

Following a request by Mr X. , by a decree of DATE , the Commissario della PERSON noted that the second applicant ’s GPE passport had been submitted to the authorities , and requested the first applicant to submit the latter ’s NORP passport . It further held that the decree of DATE fell within the competence of the PERSON delle PERSON . It then held that the ORG ’s opinion was required to define an educational project and the advice of children ’s services was necessary to determine the suitability of any permanent visiting schedule between the mother and child . It refused the pending request for the video recordings of their visits , on the basis that they had no right to such materials , children ’s services acting as an assistant to the judge in this connection and not as a court expert .

On DATE the first applicant contacted children ’s services to inform them as regards her availability to discuss the forthcoming holiday calendar . The following day a new calendar of visits , together with a short report , was submitted to the judge by children ’s services .

On DATE children ’s services presented another report in respect of the request relating to the period of DATE , during which the first applicant would have been on leave . They suggested DATE visits from DATE , ranging from TIME per day , including TIME - long visits with the extended family .

Following a request by the mother , on DATE the ORG requested children ’s services to issue instructions for the period after DATE .

On DATE children ’s services drafted a new calendar of visits , ranging from TIME per day ( no visit on DATE ) , until DATE . The latter was acknowledged by the judge .

On DATE the first applicant ’s submissions included a request for a continuous period of mother - child care to allow her to take the child on holiday , after she had been confined to GPE for DATE . On DATE the PERSON della PERSON , noting that children ’s services had not had enough time to deal with all the requests in view of their dates of submission and that the first applicant had for the third time altered the dates of her leave , ordered an immediate reply to the pending , urgent request for the extended period of the child ’s placement with the mother from DATE .

By emails dated DATE the first applicant requested children ’s service to allow a more flexible calendar of visits . On DATE children ’s services issued a new calendar for the relevant period , only allowing one overnight visit and permitting most of the remaining visits to take place outside GPE , but they had to be in the presence of the father . It suggested that changes should be made gradually . The latter was acknowledged by the judge .

Following the mother ’s objection , on DATE the previous arrangement was reiterated by the judge .

On DATE Mr X. gave his consent for an extended visit between mother and child . On the same date the PERSON della PERSON asked for a report from children ’s services on the development of the visits in DATE , and for a new calendar to be issued .

On DATE children ’s services reported that the visits had been regular , organised and fruitful . The child was happy to spend time with the mother and it was clear that she needed to be by the side of both parents . They issued a new calendar of visits , suggesting entire alternate weekends with each parent , with weekend intervals when each parent had the child for DATE , together with TIME stays during DATE at her mother ’s home .

By a decree of the same date the PERSON della PERSON confirmed that , the disputes having been resolved , the visits should remain in accordance with the children ’s services report of DATE . Moreover , since Mr X. was able to visit the child in GPE , prohibition on the GPE taking the child outside the country remained valid only in respect of GPE other than GPE and GPE .

By an order of DATE , a substitute judge for the PERSON della PERSON held that the frequency of visits with the minor would be in accordance with the agreed specific indications submitted .

On DATE the ORG met the GPE technical counsellors ( “ CTPs ” ) .

On DATE Mr X. submitted that he was the subject of ongoing criminal proceedings in GPE ( see below ) and reiterated that the first applicant had not submitted the second applicant ’s NORP passport .

On DATE psychological reports on both parents were drawn up . The report about the mother which , inter alia , mentioned depressive and impulsive attitudes , appeared less favourable than that of the father , although it appeared from the reports that Mr X. was immature .

Following further submissions , by a decree of DATE , the PERSON della PERSON acknowledged that the second applicant would spend DATE of DATE to the TIME of DATE with the father and from TIME DATE to CARDINAL DATE with the mother . Travel details had to be exchanged between the parents and the child had to be visited by a doctor to confirm that she was in good health and to determine whether there were any contraindications to her travelling . He further authorised the father to travel with the child during the relevant period and allowed the release of the passport .

According to a children ’s services report of DATE , the second applicant was having difficulty adjusting to ( her GPE ) CARDINAL different environments .

Negotiations between the parents continued : however , the first applicant refused to drop the pending criminal charges against Mr X.

On DATE , Mr X. requested to stop paying maintenance , stating that each parent should be financially responsible for the child for the period in which she was with them .

On DATE the Commissario della PERSON , confirmed the qualifications of the first applicant ’s CTP . On DATE a meeting with the parties’ CTPs took place .

A children ’s services report dated CARDINAL DATE found that the second applicant ’s character had deteriorated compared to DATE . She was less tranquil , naughtier and at times mischievous . She appeared to be more loyal to the mother and had difficulty in facing up to the conflict between her parents . Although the child had a good relationship with the father , she also showed hostility towards him which appeared to have been induced by the mother . If such psychological pressure persisted there existed the risk of ORG .

Upon request , on DATE the PERSON della PERSON granted an extension to the relevant expert .

On DATE the Commissario della PERSON postponed a decision in respect of maintenance and ordered both parties to submit the second applicant ’s passport , reiterating the prohibition on the child ’s expatriation .

On DATE the parties’ experts submitted their report .

On DATE the ORG finalised the report which had been commissioned on DATE ( see above ) . The report was a result of various meetings with the parties which had been recorded . The report concluded that there were no particular problems with the parent ’s diverse personalities or with their relationship with their child . However , it established that Mr X. was more aware of the second applicant ’s need to have adequate time with both parents , and was thus more likely to allow regular contact with the child by the mother , always under strict supervision by children ’s services . Moreover , the mother ’s intention of persisting with criminal proceedings against the father did not strike a note in her favour . It suggested psychological therapy to resolve the existing conflict and to allow them to fully assume their roles as parents .

On DATE the first applicant made a request before the PERSON della legge for copies of the recordings of the meetings attached to the ORG ’s report .

On DATE the same request was made by Mr X. , who further requested copies of all relevant communications mentioned in the report , between the parties , their experts , the lawyers and children ’s services .

On DATE the court ordered those recordings and communications to be provided to the parties , subject to the payment of costs by those parties .

Following Mr X. ’s request of DATE to order a new report by children ’s services , in view of the psychological pressure to which the second applicant was being subjected by her mother , the PERSON della legge ordered the said report on CARDINAL DATE .

On DATE further submissions were made by the mother , together with a report regarding the second applicant drawn up by the first applicant ’s CTP . It was reported that the second applicant ’s situation was stress - related ; because of her young age she needed and wanted the presence of her mother . She was therefore suffering as a result of the mother ’s absence , and constant requests for the child to be removed from her mother could only worsen the child ’s situation . It was in favour of requesting specialised medical advice for the child .

On DATE children ’s services submitted a report indicating that the child ’s psychological condition was deteriorating , that she was refusing to take part in games representing the family , and that she had become more isolated at school . Moreover , the child had developed a tic and frequent belching , probably due to anxiety .

On DATE and on DATE respectively , the first applicant requested the court to allow a specialised doctor to diagnose the child and to prescribe treatment , as well as a neuropsychiatric examination .

On DATE and DATE Mr X. ’s expert submitted his report .

On DATE Mr X. objected to the first applicant ’s requests . On DATE the Commissario della legge held , noting that Mr X. had suggested that another doctor ( Mr C. ) should conduct therapy with his daughter , that she was being carefully monitored by reliable experts from children ’s services , and that any psychological diagnosis should be included in the treatment already in place , which should be continued .

On DATE the Commissario della legge held that the psychotherapy was to be conducted by PERSON , who should also verify whether the child was experiencing any discomfort .

On DATE the court acknowledged CARDINAL experts on behalf of Mr X. and authorised them to assist in the drawing up of the reports .

On DATE Mr C. accepted his appointment .

Following further submissions , and the first applicant ’s complaints about Mr X. ’s absences , on DATE the Commissario della legge held that , when CARDINAL of the parents could not take care of the child , it was for the other parent to so do and not the grandparents , and that the parents should collaborate when taking decisions regarding the minor .

On DATE further reports were requested from the ORG .

Proceedings were still under way on the date of communication of the present application to the respondent Government .

By an application of CARDINAL DATE , the first applicant requested ORG to intervene in the custody proceedings in favour of sole custody of the mother .

On DATE ORG advised against this action for lack of NORP jurisdiction . On DATE the first applicant made a request for urgent measures .

By a decree of CARDINAL DATE , ORG suspended proceedings in view of the fact that proceedings were pending in GPE .

It appears that in DATE Mr X. requested ORG to return the child to GPE . The first applicant was not informed of these proceedings . On DATE ORG advised the court to refuse the request .

By a decree of DATE , ORG refused the request to return the child to GPE . It noted that , as GPE had not yet accepted GPE adhesion to LAW could not apply to the present case .

Mr X. pressed charges against the first applicant on DATE , for failure to make the child available for CARDINAL of his visits . On DATE it was considered that these proceedings should be archived since relevant certificates proving the child ’s illness at the time were submitted . The following day the case was archived by the Procuratore del Fisco ( Attorney General ) . On DATE the case was archived by the PERSON della PERSON .

On DATE the first applicant pressed charges against Mr X. , with the Gendarmeria di GPE , for international kidnapping .

Following the first applicant ’s testimony , on CARDINAL DATE the PERSON held that there had not been the prerequisites for the accusation . Mr X. had not had the intention to kidnap the child . He could not be held responsible since he had only planned to take the child on DATE , which in some way or other could be said to have been agreed to by children ’s services , in order to allow the father to recover the unilaterally impeded and therefore lost visits . The case was therefore sent for an opinion to ORG . With the latter ’s agreement , on DATE the PERSON della PERSON ordered that the case be archived .

On DATE the first applicant pressed charges against Mr X. with the PERSON police headquarters for international kidnapping .

On DATE the PERSON della PERSON ordered the judicial police of GPE to carry out the identification of Mr X.

By a summons of CARDINAL DATE PERSON was informed that he was being indicted and that the trial would start on DATE .

Consular visits with the parties concerned were only successful in respect of the first applicant . Meanwhile diplomatic attempts by ORG , seeking an adequate solution from the GPE authorities , remained unfruitful .

Following notification of the pending application before the ORG by ORG , on DATE , by reason of the inferences as to the impartiality of the relevant judge in the application pending before the ORG , the PERSON della PERSON hearing the ordinary custody and contact proceedings withdrew .

Proceedings continued under a new judge appointed by the former judge . According to the applicants , this choice had been arbitrary , as the new judge , who did not usually practise in the civil sphere , was a professor at the same university as the former judge and PERSON ’s legal counsel . This choice highlighted the former judge ’s partiality .

Submissions were made regarding several issues , inter alia the child ’s presence at Mr X. ’s wedding , schooling , exclusive custody , and urgent measures related to the child ’s medical needs . Where necessary , decrees were delivered upon the information submitted by the parties , the experts and children ’s services .

Subsequently , on CARDINAL DATE an updated ORG was submitted . The ORG acknowledged that his initial conclusions ( of DATE ) had to be altered , having regard to the application lodged before the ORG by the first applicant ; as such the action reflected her contradictory behaviour . After hearing the parties he concluded that the second applicant should be placed with the father for DATE , that schooling should be in GPE and that the mother should maintain her previously established visiting rights . The same was confirmed by a children ’s services report .

On DATE , following an adjournment because Mr X. was still on honeymoon , the first applicant made further submissions , focusing on the protection of her rights under LAW . She submitted a favourable report by her LAW and requested that i ) the child be placed with her , ii ) the child be put into the PERSON elementary school , iii ) a neuropsychiatric report be drawn up by the PERSON hospital iv ) monitoring of visits be withdrawn , or in the alternative that GPE children ’s services be replaced by neuropsychiatric services or that the psychologist be replaced .

Having heard all the relevant parties and submissions the PERSON della PERSON delivered its decision on DATE . Noting the high level of conflict persisting between the parties and their representatives , it considered that the decision must be temporary and subject to further change . It ordered joint custody , that the child be schooled in GPE , that she be placed with the father during DATE and with the mother at DATE , that DATE and GPE festivities would be spent with the mother with the exception of DATE , PERSON and DATE after , which would be spent with the father , and that the parents continue to follow psychotherapy for DATE . It further ordered children ’s services to continue monitoring the child ’s progress , the expert to submit information about the child - parent relationship , particularly in view of the father ’s remarriage , and any relevant medical needs .

Feeling aggrieved by the comments in the above - mentioned decision in relation to the parties’ representatives , legal counsel for the first applicant gave up their mandate . Proceedings are still pending and the first applicant has no longer been represented during these proceedings .

Meanwhile , the appeal proceedings against the decision of DATE continued and were decided on DATE .

The PERSON per le PERSON rejected the first applicant ’s appeal . The court considered that LAW had detailed provisions regarding criminal proceedings , but nothing in relation to civil proceedings . Thus , it was a matter subject solely to ordinary law . That being stated , he considered that in the instant case there had not been a breach of the right to defence or to the right to cross - examination ( contraddittorio ) . Indeed , the first applicant had originally been represented at the opening of the hearing , thus , the prerequisites existed to hear the case and to cross - examine . It was only following the rejection of the request for an adjournment that the first applicant ’s co - lawyer forfeited her mandate . Moreover , when the latter forfeited her mandate she was not forfeiting her colleague ’s mandate , who therefore remained counsel to the applicant . The court further noted that there existed no law recognising a right to defer a case . The decision in relation to the existence of a legitimate impairment was subject to the judge ’s discretion after hearing the relevant arguments . In the present case , the results of the investigation and rogatory enquiry with ORG could not lead to the existence either of a legitimate impediment or of an ex post one . The PERSON della PERSON had according to his prerogatives considered it opportune to decide the case speedily in view of the urgency and gravity of the matter . Indeed , itaudi alteram partem ) . Moreover , the appeal judge considered perplexing the fact that the first applicant was contesting a situation she had created herself . Lastly , as to the impartiality complaint , the first applicant had not challenged or requested the withdrawal of the PERSON della PERSON at the relevant time .

The preamble of the Convention includes the following statement as to its purpose :

“ ... to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , ... ”

The object of such a return is that , following the restoration of the status quo ante , the conflict between the custodian and the person who has removed or retained the child can be resolved in the ORG where the child is habitually resident .

Article CARDINAL of the Convention reads as follows :

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

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

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

Section CARDINAL ( CARDINAL ) of the law of DATE amending criminal procedure “ LAW ” ) provided that an order that the case be archived must promptly be notified to the Attorney General ( procuratore del fisco ) , the person charged , the victim , and the person who had pressed the charges . It must further be communicated to the executive magistrate ( “ magistrato dirigente ” ) . An appeal can be lodged against such an order , by the person charged or the victim , within DATE of its notification . The appeal shall be lodged with the Giudice delle PERSON , who must be a different judge than the one who originally decided the merits of the cause . He or she should deliver a reasoned decision within DATE . An order upholding the appeal application must require the investigation stage to be reopened and the magistrato dirigente must assign the case file to a new investigating judge .

Its section CARDINAL regarding transitional measures provided that this law was applicable to all criminal proceedings in which notice of the crime had reached the inquiring magistrate at a date following its entry into force . The law did not apply to proceedings pending at the date of its entry into force if they were published and archived within DATE of its entry into force .


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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

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

In DATE the first applicant purchased from the ORG a CARDINAL - room apartment of QUANTITY located on a main commercial street in GPE . The apartment had become State property by virtue of the nationalisations carried out by the communist regime in GPE in DATE and DATE .

NORP In DATE the first applicant transferred her title to her son , the second applicant , but preserved the right to use CARDINAL room of the apartment until the end of her life .

After the adoption of the PERSON on ORG of ORG in DATE , the former pre - nationalisation owners of the apartment brought proceedings against the first applicant under LAW seeking the nullification of her title and the return of their former property . They also brought a rei vindicatio action against the second applicant .

In DATE ORG found that the DATE transaction had been valid and dismissed the claims .

On appeal , on DATE the claims were granted by ORG , which also ordered the applicants to vacate the apartment . The final judgment was that of ORG , which upheld ORG judgment .

The courts found that in DATE , at the time of the transaction , the building plan of GPE had envisaged the demolition of the applicants’ apartment building and the construction of a new apartment building . The relevant regulations had prohibited the sale of ORG apartments in such circumstances . It followed that the first applicant had obtained the apartment unlawfully . Thus , her title had been null and void and the second applicant ’s title was null and void as well .

The applicants were evicted in DATE .

In DATE , it became possible for the applicants to obtain compensation from the ORG , in the form of bonds which could be used in privatisation tenders or sold to brokers .

On DATE the regional governor of PERSON refused the ORG request for compensation bonds . Upon the ORG appeal , in judgments of DATE and DATE the courts quashed the refusal and granted the ORG request .

NORP In DATE an expert appointed by the courts assessed the market value of the apartment at MONEY ( “ BGN ” ) , the equivalent of QUANTITY . The applicants submitted the opinion of another expert , who assessed the apartment ’s market value at ORG MONEY ( the equivalent of approximately EUR CARDINAL ) .

In DATE the applicants received compensation bonds for ORG CARDINAL ( the equivalent of QUANTITY ) .

They sold them on DATE , when bonds were traded at PERCENT of face value , and obtained ORG ( the equivalent of approximately ORG CARDINAL,CARDINAL ) .

In DATE the first applicant brought an action under ORG seeking BGN CARDINAL in damages from the ORG and the GPE municipality , which had sold her the apartment in breach of the relevant domestic law . On DATE the claim was disallowed in a final judgment of ORG , which found that the authorities’ actions in concluding the contract of sale did not give rise to responsibility under LAW and that in any event the first applicant could have refused to buy an apartment in breach of the law .

The relevant background facts and domestic law and practice have been summarised in the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG and CARDINAL , DATE ) .


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant , PERSON , was born in DATE and lives in ORG in LOC .

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

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

In DATE the applicant , a businesswoman , sold QUANTITY of sunflower seeds to a certain PERSON , who introduced himself as the representative of a private company . Shortly afterwards , PERSON , using forged documents , sold the seeds on to other people , who in turn sold the seeds to A. , a private company . The latter then consigned the seeds to ORG , a private company owning a silo .

On DATE the applicant complained to the ORG police that PERSON had failed to pay her for the seeds . On an unspecified date the police opened a criminal case against him for defrauding the applicant .

On DATE the police declared the seeds to be physical evidence and ordered them to be seized and left for storage at the premises of company ORG

On DATE the applicant lodged a civil claim with the police in the context of the criminal proceedings against PERSON seeking CARDINAL hryvnias ( ORG ) in compensation for pecuniary damage and ORG CARDINAL for non - pecuniary damage .

On DATE the police lifted the order for the seizure of the seeds and ordered them to be transferred to the applicant , but on DATE the director of ORG refused to return them , asserting that they belonged to company A.

On DATE the police rejected the applicant ’s request to institute criminal proceedings against the director of ORG for his failure to transfer the seeds as they believed that the determination of the ownership dispute over the seeds was within the competence of the courts . The applicant challenged that decision before the courts ; however , on CARDINAL DATE and DATE respectively ORG and ORG ruled against her .

On DATE the applicant was given permission to participate in the criminal proceedings against PERSON as a civil claimant .

On DATE the ORG prosecutor ’s office quashed the police ’s order of DATE in its entirety . The seeds remained stored at the premises of company ORG

Shortly afterwards , the criminal case was sent to ORG for trial .

On DATE the applicant amended her claim , seeking the return of the seeds instead of compensation for pecuniary damage . On the same date a representative of company A. requested the court to admit as evidence documents proving that the company owned the seeds . The representative also asked the court to hear a witness . It is unknown whether those requests were ever granted .

By a judgment of DATE , the first - instance court convicted PERSON of aggravated fraud , sentencing him to a DATE suspended term of imprisonment with a probationary period of DATE . The court ordered PERSON to pay the applicant ORG CARDINAL in compensation for non - pecuniary damage , lifted the order for the seizure of the seeds and ordered that they be returned to the applicant .

On DATE company A. appealed against that judgment , whereas the other parties to the proceedings , including the applicant , did not choose to appeal . On the same date the trial court , relying in particular on LAW ( “ Code of Criminal Procedure ” , as in force at the material time ) , declared the appeal inadmissible , on the grounds that company ORG had not been a party to the proceedings before the first - instance court and thus had no right to lodge an appeal .

On DATE ORG quashed the decision of DATE and ruled that the appeal was to be examined on its merits . It held that the judgment of CARDINAL DATE was in the interests of company A. and concerned the protection of property for the purposes of LAW . The inadmissibility decision had deprived the company of access to a court , which was contrary to LAW . The appellate court did not specify the procedural status of company A. The applicant lodged an appeal in cassation .

On DATE ORG left the applicant ’s appeal unexamined , noting that only decisions on the merits were subject to its review .

On DATE the appellate court quashed the part of the judgment of DATE concerning the return of the seeds , which it found to be “ insufficiently reasoned , contradictory , ambiguous and unlawful ” . As regards the procedural status of company ORG , the court noted , without giving any further details , that the appeal had been lodged by “ the representative of a civil claimant ” . Relying in particular on LAW and CARDINAL of LAW , the court remitted that part of the case to the trial court for fresh consideration .

By a decision of DATE , the trial court ordered the return of the seeds to the applicant , deeming her their rightful owner and noting that company ORG had not been a party to the criminal proceedings . The court also noted that company A. could claim ownership of the seeds by means of civil proceedings .

On DATE the appellate court quashed that decision , finding that the trial court had acknowledged that ownership of the seeds was in dispute and had actually determined who owned them . However , the decision in question was contrary to the second paragraph of LAW , which provided that any disputes over the ownership of physical evidence should be resolved in civil proceedings . The appellate court subsequently discontinued its consideration of the matter , explaining that it should be dealt with by means of civil proceedings .

The applicant lodged an appeal on points of law , arguing in particular that company ORG had not been a party to the proceedings .

On DATE ORG upheld the ruling of the appellate court although it did not specify the procedural status of company A.

The applicant did not institute civil proceedings for the return of the seeds , which remained in the possession of company A.

On DATE bailiffs instituted enforcement proceedings in respect of the part of the judgment of CARDINAL DATE concerning the return of the seeds to the applicant .

On DATE ORG suspended the enforcement proceedings following a request submitted by company A.

On DATE the same court rejected the bailiffs’ request of DATE , stating that the judgment of CARDINAL DATE was not final and that ownership of the seeds was to be determined in civil proceedings . No appeal was lodged against the decision of DATE .

Article CARDINAL , the third paragraph of LAW and the second paragraph of LAW Procedure provided at the material time that any disputes over the ownership of physical evidence should be resolved in civil proceedings and that the evidence in question should be kept with the case file or ( in the case of perishable or bulky goods ) left for storage with a legal entity until judgment had been given . PERSON of the first paragraph of LAW provided that any objects which had been the target of criminal activity should be returned to their rightful owner .

Article CARDINAL of the Code of Criminal Procedure , as worded at the material time , stipulated that in criminal proceedings an appeal can be lodged by an accused , a victim , a convict , an acquitted person , a civil claimant or a civil respondent , a prosecutor who supported the charges or signed the indictment , a minor subjected to coercive educative measure by a court , the representative of a person subjected to coercive medical measures , and other persons in the cases envisaged by the Code .


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

Violation of Art. 6-1;Remainder inadmissible

The applicant was born in DATE and lives in GPE , in the former GPE .

On DATE the police arrested the applicant in her apartment . On DATE an investigating judge ordered pre - trial detention . She was released from detention on CARDINAL or DATE .

By judgment of ORG ( Општински Суд Скопје I ) of DATE , the applicant was convicted of procuring and sentenced to CARDINAL years’ imprisonment . On DATE ORG ( FAC ) reduced her sentence to DATE and CARDINAL days’ imprisonment .

On DATE the applicant brought before the then ORG of GPE ( PERSON суд GPE ) a compensation claim against her tenant , PERSON , GPE and PERSON , a police inspector . She alleged that during her detention in DATE PERSON had stolen valuable items from her apartment .

Of CARDINAL hearings scheduled DATE and DATE , CARDINAL were adjourned as the court had failed to summon the defendants or witnesses proposed ( on CARDINAL occasion the court asked for police assistance ) ; CARDINAL hearings were adjourned at the applicant ’s request for examination of some witnesses or the defendants ( by written requests of DATE and DATE , the applicant asked the court to examine over DATE witnesses altogether ) ; QUANTITY hearings were adjourned due to the trial judge ’s absence . During this period , the applicant CARDINAL times unsuccessfully requested the removal of the trial judge and of all judges of the Skopje ORG . The proceedings were also CARDINAL times suspended due to the applicant ’s absence from the hearings without any reasons ( the court granted her request of DATE for reinstatement of the proceedings as her lawyer had withdrawn from the case without notifying her about the hearing ) . CARDINAL hearings were adjourned on different grounds related to the applicant ’s failure to comply with the court ’s instructions , lack of proper legal representation or imposition of additional requests .

On DATE another judge took over the case .

On DATE the applicant requested that the ORG be added as a third defendant in the proceedings . She argued that following the independence of the former GPE in DATE the ORG had taken over the jurisdiction of internal affairs from the local authorities of GPE .

NORP The hearings fixed for DATE and DATE were adjourned due to PERSON absence . On DATE the court requested police assistance to establish PERSON address in order to serve on her the court summons .

On CARDINAL DATE the applicant asked the court to summon PERSON at the address where she had already on DATE received an earlier summons .

Of QUANTITY hearings fixed DATE and DATE , CARDINAL hearings were adjourned due to improper summoning of some of the defendants ( including , but not limited to PERSON ) ; CARDINAL hearings were adjourned as the applicant had failed to reply to the Attorney General ’s objection to the ORG ’s status as party in the proceedings ; CARDINAL hearing was adjourned at the applicant ’s request ; CARDINAL hearing was adjourned so as the court to decide GPE ’s capacity to stand in the proceedings .

On DATE the Skopje ORG upheld the Attorney General ’s objection declaring the ORG could not be a party in the proceedings .

On DATE the applicant appealed against the decision before ORG .

On DATE ORG upheld the applicant ’s appeal and quashed the lower court ’s decision . It held that the ORG could not be excluded as a party in the proceedings , as the Attorney General had acted in the earlier stages of the proceedings and had thus expressed his/ her consent to participate in the proceedings .

The hearing of DATE was adjourned as the applicant ’s lawyer had withdrawn from the case .

At the hearing held on DATE , the ORG instructed the applicant to specify the ORG authority against which she had intended to claim damages .

At DATE the applicant withdrew her action against GPE extending it against ORG as a ORG authority . She claimed that the police were responsible as they had not secured ( sealed ) her apartment after her arrest . In addition , the applicant alleged that on DATE she had been arrested unlawfully ( in the middle of the night ) and that police officers had broken into and searched her apartment without a warrant . She also claimed non - pecuniary damage in relation to the alleged ill - treatment and denial of a medical assistance while being detained in DATE .

At the hearing of DATE , the Attorney General asked the court to reject the applicant ’s claim against the ORG as time - barred .

The court adjourned the hearing listed on DATE at the applicant ’s written request of DATE ( she asked the court to examine the witnesses as proposed by her ) .

The hearing dated DATE was adjourned as the applicant had not been properly summoned .

At the hearing of DATE the court heard the applicant . It adjourned it in order to examine some witnesses .

The hearings fixed for DATE , DATE , DATE and DATE were adjourned due to the improper summoning of some of the witnesses proposed . PERSON did not attend any of the hearings listed .

On DATE the ORG Instance dismissed as unsubstantiated the applicant ’s compensation claim against PERSON and ORG . It found that the applicant had failed to provide any evidence that the belongings , allegedly stolen , had existed and had been actually taken away from her apartment . It held as time - barred her claim for non - pecuniary damage against ORG in relation to her detention , the alleged ill - treatment and the refusal of medical assistance during her detention . The value of the dispute indicated in the judgment was CARDINAL , MONEY .

On DATE the applicant appealed against the judgment before ORG .

On DATE ORG dismissed the applicant ’s appeal and upheld the lower court ’s judgment .

The applicant did not lodge with ORG an appeal on points of law ( ревизија ) .

In accordance with section CARDINAL of LAW ( Зaкон за парничната постапка ) ( “ the LAW ” ) , when a party concerned is not able to find out the address of a person to whom the writ should be served on , the court shall endeavour to receive the necessary information from the competent administrative body or in another way .

Section CARDINAL of the LAW provides that a party concerned requesting the court to examine a person as a witness , shall state what the witness needs to be examined for and to provide his / her name , profession and residence .

Pursuant to section CARDINAL ( CARDINAL ) of the LAW , the court may decide to hear CARDINAL of the parties concerned , if the other refuses to give a statement or does not reply to the court summons .

Section CARDINAL ( CARDINAL ) provides that the parties concerned may propose new facts and evidence throughout the proceedings .

In accordance with section CARDINAL ( CARDINAL ) , when a court adjourns a hearing , the presiding judge shall ensure that all evidence , which needs to be presented for the following hearing , is obtained and other preparations are carried out so as to complete the trial at that hearing .

Section CARDINAL ( CARDINAL ) provides that , inter alia , an appeal on points of law ( ревизија ) is inadmissible in proprietary disputes related to a pecuniary claim when the value of dispute given in the applicant ’s claim does not exceed CARDINAL NORP denars .