Violation of Art. 8 (in case of expulsion)

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant , PERSON , was born on DATE in GPE and lives in GPE .

The applicant first arrived in GPE on DATE as a tourist . On DATE she was arrested on suspicion of shoplifting . The next day she accepted a summary fine ( forelegg ) for theft of goods to the estimated value of ORG CARDINAL,CARDINAL ( EUR CARDINAL ) . On DATE it was decided to deport her and to prohibit her from re - entry for DATE . The deportation was effected on DATE .

DATE , on DATE , the applicant returned to GPE with a different passport , according to which her name was GPE , she was born on DATE and indicating a different identity number from that in her previous passport . On DATE she married a NORP national and on DATE she applied for a residence permit . In her application she stated that she had not previously visited GPE and that she had no previous criminal convictions . She was granted a work permit on DATE for a period of DATE , which was renewed a number of times . On DATE she was granted a settlement permit .

On DATE she applied for NORP citizenship , but the processing of her application was discontinued as her husband on DATE applied for a separation .

In the course of DATE , the applicant started co - habiting with Mr O. , who also originated from GPE and who had held a settlement permit since DATE . Together , the couple had CARDINAL daughters , born on DATE and DATE , respectively .

In the meantime , in DATE the police received information from a source that the applicant had previously been in GPE under the name PERSON . On DATE the police apprehended her while she was working in a hairdressing salon . After first denying having previously been in GPE under a different name she later admitted it . She explained that the name in the passport the second time she came to GPE had not been an incorrect name but had been her father ’s , whilst the name in the first passport had been her mother ’s . The difference in birth dates could be explained by the fact that it was her father who had arranged for the second passport . She admitted having used the second passport deliberately to avoid the prohibition on re - entry ( see paragraph CARDINAL above ) .

In view of the above , after having put the applicant on notice on DATE that it was considering revoking her work- and settlement permits , on DATE ORG revoked her permits . In DATE ORG rejected her appeal against this decision .

On DATE the ORG decided that the applicant should be expelled and prohibited from re - entry for DATE , applying section CARDINAL(CARDINAL)(a ) of LAW DATE ( according to which an alien may be expelled if he or she has committed serious or repeated violations of CARDINAL or more provisions of the LAW ) and finding that her expulsion would not be disproportionate for the purposes of section PERSON ) .

On DATE ORG refused a request by the applicant to stay the implementation of her expulsion . However , on DATE it confirmed that she had a right to such stay .

The applicant ’s appeal to ORG was rejected on DATE . Its reasoning included the following considerations . The applicant had violated sections CARDINAL ( on visa requirements ) and CARDINAL ( CARDINAL ) ( according to which the provision with intent or gross negligence of essentially false or manifestly misleading information in a matter falling within the LAW is punishable by fines or CARDINAL months’ imprisonment or both ) , with reference to section CARDINAL ( on identity document requirements ) of LAW DATE . She had travelled to GPE DATE after having been expelled from GPE with DATE re - entry ban . In practice , unlawful travel to the country would always be considered a serious breach of LAW . The ORG further noted that the applicant had requested a residence permit by using a false identity and false documents in order to obtain such a permit . The applicant had violated LAW seriously and repeatedly . In the ORG ’s view the applicant ’s expulsion would not be a disproportionate measure either with regard to the applicant or her closest family members . In this connection the ORG had regard to the serious nature of the applicant ’s offences and the general preventative interests in expelling her , her personal links to GPE as compared to her home country as well as her relationship with her children . The latter could not be decisive .

The Board observed inter alia :

“ ORG notes that the children , who are NORP nationals , are not registered in the Immigration authorities’ computer system with any permit . Nor is there any registered application for a residence permit in GPE for the children . Pursuant to section CARDINAL(CARDINAL ) of LAW DATE all foreigners , also children , who reside in GPE must hold a permit . This applies also to children of foreign parents . As long as the children do not hold a permit to reside in GPE they are obliged to leave the country . Whether or not [ the applicant ] and Mr O. opt to submit an application for family reunion with Mr O. is up to them and is in any event of no importance for the applicant ’s case . ORG also notes that it has been submitted that the father has periodically had DATE contact with his children and that he currently has contact visits DATE and an TIME visit during DATE when he does not have weekend visits .

The ORG further refers to the fact that the children , born in DATE and DATE , are relatively young and their links to GPE can not be said to be very strong . It is assumed that their strongest ties are those with their close family , their mother and father . Whether the children remain in GPE or accompany their mother to her country of origin has no decisive significance for the outcome of the case .

The [ applicant ] ’s children , born respectively in DATE and DATE , were conceived and born during the [ applicant ] ’s unlawful stay in GPE . She used a false identity to gain entry to GPE and to obtain permits ( subsequently revoked ) . On this basis , the [ applicant ] can not be said to have had a legitimate expectation of establishing a family life in GPE , and to stay here .

The connection developed under the above circumstances is thus ascribed little weight in the assessment of proportionality .

ORG has considered [ ... ] whether the [ applicant]s expulsion would be contrary to LAW and has found that this is not the case .

for the purposes of section CARDINAL(CARDINAL ) of LAW , cf . LAW .

The applicant is to be expelled from GPE for a period of DATE in accordance with section PERSON ) of LAW .

The decision of expulsion will prevent her return to GPE for as long as the prohibition on re - entry applies . A breach of the prohibition on re - entry is a punishable offence under section CARDINAL(CARDINAL ) ( a ) of LAW and Article CARDINAL(CARDINAL ) of LAW .

Under section CARDINAL(CARDINAL ) of LAW a person who has been expelled may apply for permission to enter the country , but this is normally not granted until DATE have elapsed from leaving the country . ”

In the meantime , in DATE , the applicant and Mr O. separated . She then assumed the DATE care of the children whilst arrangements were made for him to receive them for contact visits .

On DATE ORG granted PERSON , who then lived in GPE , the sole parental responsibilities and the daily care of the children until the applicant ’s return to GPE after the end of her expulsion . ORG granted the applicant a right of contact to the children . Until a possible expulsion this was to comprise a visit of the applicant at her residence in GPE from DATE . Thereafter the contact visits were to take place for DATE during the children ’s DATE and DATE during DATE . The father was to assume DATE care and the sole parental responsibilities until final judgment .

The City Court based itself on the assumption that relatively speaking there was little probability that the applicant would succeed in obtaining a reversal of the decision to expel her . In accordance with the assessment of the court appointed expert , it found that the father was the parent best suited to assume the care for the children and that it would be best for the children to live in GPE since their mother was sure that she would wish to return to GPE after the expulsion period . The children ’s contact with both parents would be optimised if the care was granted to the father . The applicant lodged an appeal against this judgment to ORG , the examination of which was at her request discontinued pending the outcome of the expulsion proceedings .

On DATE the applicant requested ORG to reconsider its decision of DATE regarding her expulsion . She argued that the measure could entail a permanent separation between the applicant and the children , that she had not been guaranteed any right to return to GPE after expiry of the prohibition on re - entry and that the father was unlikely to enable the applicant to exercise contact rights in her home country . She conceded that her offences when seen in isolation could provide a basis for expulsion . However , she disputed that the measure would be proportionate in that insufficient weight had been attached to the fact that her expulsion would lead to a separation between her as a main carer and her CARDINAL small children . On DATE the ORG refused to alter its earlier decision .

On DATE the applicant ’s judicial appeal against ORG decision of DATE was rejected by ORG . But on DATE the ORG unanimously quashed the ORG ’s decision of CARDINAL DATE . While it was undisputed that the conditions in section CARDINAL(CARDINAL)(a ) had been fulfilled and ORG found that the measure would not be disproportionate vis - à - vis the applicant , it did find that they would be disproportionate vis - à - vis the children , though it assumed that the decision of CARDINAL DATE was not incompatible with LAW

High Court held inter alia :

“ In this concrete case expulsion can not be said to be a disproportionate measure vis - à - vis the [ applicant ] . [ She ] had been fully aware that she returned to GPE with a false identity and has been aware of the consequences this could have for her . In such cases expulsion would be an ordinary reaction . The fact that criminal punishment was not added to the reaction can not be taken to mean that the offence was less serious [ ... ] .

However , the wording of the statute does not solely cover the immigrant personally but encompasses also closest family , in this instance [ the applicant ] ’s CARDINAL daughters .

ORG has found that the weight of their interests is such as to make the expulsion decision disproportionate and thereby invalid .

The daughters are respectively CARDINAL and DATE . [ The applicant ] has lived together with them since their birth and it must be assumed that she has been their main care person since the break up of her relationship with the children ’s father in DATE until DATE when a judgment was delivered at first instance in the custody case . As stated above , the children now live with their father in GPE . Until an eventual expulsion contact visits are to take place from DATE . [ The applicant ] will then receive the children at her place in GPE . After expulsion , the contact visits should extend to DATE during DATE and DATE during DATE , according to point CARDINAL of the operative provision in the child custody case .

The fact that [ the applicant ] lost the custody case in ORG is closely connected to the decision on expulsion . ORG found it best for the children to be able to stay in GPE . In light of what was stated in ORG judgment about the statement given by the expert witness , it seems that also the latter ’s statement in favour of the father was justified by the children being able to remain in GPE were he to be granted the daily care . In other words , the fact that [ the applicant ] lost the custody case in ORG does not mean that there was not a close and good relationship between her and the children . Also , the reason why ORG had prescribed limited access rights was the presumption that she would be expelled .

If the final outcome in the custody case were to be as decided by ORG , the expulsion would entail a breaking off of the contact between [ the applicant ] and the children . It would no longer be an alternative that the children should accompany her to GPE . The duration of the separation is uncertain . It is most probable that [ the applicant ] would not come to GPE as long as the prohibition on re - entry applies . Whether or not she would be able to obtain a visa or a residence permit in GPE after having been separated from her children for DATE is difficult to predict , but appears hardly probable in light of the fact that she had previously entered the country with a false passport . In other words , in the worst case , the separation between mother and children could become permanent .

The High Court finds that a long lasting separation between the mother and the children would have very serious consequences for the children . In DATE to come they would need close and frequent contact with both parents . It has not been submitted that the children have any relatives or close persons other than their parents , in GPE . This would mean that they would be particularly vulnerable should anything happen that make their father no longer able to assume parental responsibilities completely .

The negative consequences that an expulsion of [ the applicant ] would have for the children must be weighed against the interests of immigration control and the importance of effective implementation of expulsion decisions . Particular weight – normally a decisive DATE ought to be attached to the latter consideration . However , in the present case ORG has found that the interests of the children should carry more weight . ORG finds that there are relatively few persons who are in the same situation as [ the applicant ] , with DATE of illegal stay in GPE and children who were born in this country and where there is hardly any prospect that the children will accompany [ the applicant ] if her expulsion were to be implemented . ”

On an appeal by the ORG to ORG , the latter , by a judgment of DATE , upheld ORG judgment , by CARDINAL votes to CARDINAL .

Mr Justice PERSON gave the following reasons which in the main were endorsed by the CARDINAL other members of the majority :

“ ( CARDINAL ) I have concluded that the appeal must succeed .

( DATE ) The expulsion order under review was made pursuant to section CARDINAL ) , of LAW , whereby a foreign national may be expelled when the person concerned has ‘ grossly or repeatedly contravened one or more provisions of this Act’ . In the present case , there is no doubt that these conditions are met .

( CARDINAL ) However , the issue is whether the decision satisfies section CARDINAL ) , which reads :

‘ Expulsion pursuant to the first paragraph , ( a ) , ( b ) , ( c ) , ( e ) and ( f ) shall not be ordered if in consideration of the seriousness of the offence and the foreign national ’s connection with the realm , this would be a disproportionately severe reaction against the foreign national [ in question ] or the closest members of the latter ’s family.’

( CARDINAL ) This provision suggest that the seriousness of the offence should be weighed against the foreign national ’s links to GPE . This is a matter of discretionary application of the law , where the courts have full power of judicial review , see PERSON ( “ FAC ) DATE - CARDINAL , paragraph CARDINAL .

( CARDINAL ) I will first examine the seriousness of the offence .

( CARDINAL ) As stated , [ the applicant ] is guilty of repeated and gross breaches of LAW . She came to GPE in contravention of a DATE prohibition on re - entry , cf . sections CARDINAL and CARDINAL(CARDINAL ) of LAW , as it was then worded . Moreover , she provided incorrect and misleading information concerning her identity , her previous residence in GPE and whether she had previously been sentenced , cf . sections DATE and CARDINAL of the Act . Finally , she has resided and worked here unlawfully , cf . section CARDINAL ( CARDINAL ) and ( CARDINAL ) , and section CARDINAL(CARDINAL ) ( CARDINAL ) , of the LAW .

( DATE ) When assessing the seriousness of these offences , one should not attach considerable weight to the assessment of criminal liability . The breaches of LAW must rather be viewed in an administrative law perspective . A major purpose of LAW is to ‘ provide a basis for control of entry and exit of foreign nationals and of their presence in the realm in accordance with NORP immigration policy’ , cf . section CARDINAL(CARDINAL ) . In view of the large number of applications submitted pursuant to the LAW , the authorities must to a great extent base their control on the assumption that those who apply provide correct information and otherwise abide by the law and decisions taken under it . The system is thus based on trust . Regard for general deterrence therefore indicates that breaches should have consequences for applicants’ possibility of obtaining the rights to which the law applies .

( CARDINAL ) The views referred to are stated in Proposition No . DATE ( CARDINAL–CARDINAL ) to the PERSON [ the larger division of ORG ] on [ ... ] the ( ORG ] ) . The following is stated on page CARDINAL :

‘ In the view of the Ministry , it is important to be able to respond with expulsion to cases of repeated and/or gross contraventions of LAW . Although such contraventions may normally also lead to criminal liability , from the point of view of procedural economy , it would be advantageous if an expulsion order could be made even in the absence of a legally enforceable criminal conviction and sentence . This would also enable a rapid reaction . It is noted that it would not be possible for the authorities to exercise effective control of all foreign nationals’ entry to and presence in GPE . The system must to a great extent be based on trust that LAW is complied with by those to whom it applies , including that persons who need a residence permit submit an application and provide correct information to the authorities . Unlawful entry , residence or employment without the requisite permits or the provision of incorrect information breaches this relationship of trust and renders the authorities’ enforcement of NORP immigration policy more difficult . If gross or repeated contraventions of LAW were to be left without consequences it may undermine respect for the legislation and have an unjust effect on those who abide by the law . Since an application would in any event be rejected if a foreign national does not fulfil the conditions for residence in GPE , a negative decision would not in itself constitute a sanction against the provision of incorrect information . The Ministry therefore regards it as important in the interest of general deterrence to be able to respond to cases of gross or repeated contravention of LAW with expulsion.’

( CARDINAL ) [ The applicant ] ’s contravention of LAW gravely affects the control considerations that the LAW is intended to safeguard . In my view , her offences must therefore be characterised as very serious .

( CARDINAL ) I will now examine whether there exists such a ‘ connection with ORG that the expulsion is nevertheless disproportionate .

( CARDINAL ) [ The applicant ] has resided continuously in GPE since DATE . It is nevertheless clear that the attachment she has thereby acquired to GPE does not make the expulsion a disproportionate measure in relation to her . The attachment has been established on the basis of unlawful residence and she has never had any legitimate expectation of being able to stay here . On this point , I find it sufficient to refer to PERSON GPE ORG ) CARDINAL “ GPE utlendingslov ” ( “ QUANTITY ) , page CARDINAL , where the following is stated :

‘ In legal and administrative practice it is assumed that significant weight can not be placed on an attachment developed after the foreign national was aware that he or she could be expelled.’

( DATE ) CARDINAL and a half years elapsed from the [ applicant ] ’s arrest until ORG took its decision to order her expulsion . The long processing time was particularly due to the fact that the expulsion case was not dealt with until her work permit and residence permit had been revoked . If the processing had been conducted in parallel , the time could have been reduced considerably . However , I do not find that this entails that the expulsion is a disproportionate measure in relation to [ the applicant ] herself .

( DATE ) I will now examine the interests of the children .

( CARDINAL ) From section CARDINAL ) of LAW it appears that an expulsion must not constitute a disproportionately severe measure vis - à - vis ‘ the closest members of the foreign national ’s family’ . As the case now stands , it must be assumed that the children will remain in GPE with the father , and that they will have a considerably reduced contact with the mother during the period which the expulsion applies .

( CARDINAL ) ORG CARDINAL LAW [ GPE utlendingslov ] states on page CARDINAL that considerable weight ought to be attached to the interests of the children . After affirming that one could not place significant weight on a marriage contracted after the foreign national has become aware that he or she could be expelled , the following is added :

‘ However , if the expelled person has a child of the new relationship , the proportionality assessment may have a different outcome , primarily out of regard for the child , but this question too must depend on a concrete assessment of all relevant considerations.’

( CARDINAL ) The committee proposed that it be clearly stated in the text of the LAW that the best interests of the child should be a primary consideration . This was approved by ORG . In Proposition No . DATE ( CARDINAL–CARDINAL ) to the PERSON on ... the [ new ] LAW , the following is stated on page CARDINAL :

‘ In cases affecting children , the best interests of the child must be a primary consideration . The proposal to include a clarification to this effect in the text of the LAW has been supported by several instances consulted . ORG has pointed out that there is a danger of giving a distorted impression of relevance and importance by focusing on CARDINAL of the considerations that ought to be included in an overall assessment . It is nevertheless the ORG ’s view that it is correct to stress the regard for the best interests of the child in the text of the LAW in order to ensure particular awareness of this . This involves no change in relation to current law , but may have a pedagogical significance.’

( CARDINAL ) Such a formulation has now been included in section CARDINAL ) , last sentence , of the new LAW .

( CARDINAL ) That the best interests of the child shall be a primary consideration is also stated in LAW [ providing that the best interests of the child shall be a primary consideration ] which , pursuant to section CARDINAL ( CARDINAL ) of LAW , is applicable as NORP law . At the same time , it is clear that the Convention does not in itself prevent an expulsion order from being made , although this results in separation of the parents from the children . In ORG CARDINAL LAW , the following is stated at page CARDINAL :

‘ However , none of the provisions of LAW on the Rights of the Child in itself prevents an expulsion order from being made . On the contrary , Article CARDINAL ) assumes that the GPE may make expulsion orders even though this would result in the child being separated from its father or mother.’

( CARDINAL ) So far , the sources of law show that the interests of the children are primary , but not necessarily decisive .

( CARDINAL ) ORG has previously considered the significance of the strain that children are subjected to by expelling one of their parents . The case , Rt-CARDINAL - CARDINAL , concerned the proportionality assessment pursuant to section CARDINAL(CARDINAL ) of LAW . The foreign national concerned had committed what was characterised as ‘ very serious crime’ . With regard to the question of the applicant ’s children , the second voting judge stated DATE for the majority – that

‘ it is normal for an expulsion to interfere with established family life in a manner involving strain , particularly when one must assume that the family will be separated as a result of the expulsion . However , in order for an expulsion to be deemed a disproportionate measure it must involve an extraordinary burden.’

( CARDINAL ) In Rt-CARDINAL - CARDINAL , ORG unanimously concluded that this view must also be adopted in relation to section CARDINAL(CARDINAL ) . In paragraph CARDINAL of the judgment it was stated :

‘ I find these assumptions also to be applicable in relation to the provision in section CARDINAL ) of the LAW . When a foreign national has committed very serious crime , expulsion is only disproportionate when it results in an extraordinary burden.’

( CARDINAL ) Paragraph CARDINAL of the judgment further stated :

‘ It is normal for an expulsion to interfere with established family life in a manner involving a burden financially as well as emotionally and socially , and it may easily lead to psychological problems . This applies not least when a family is separated as a result of the expulsion . Such strain is not in itself a sufficient argument for finding an expulsion to be a disproportionate measure.’

( CARDINAL ) As has been shown , both of the cases referred to above concerned expulsion on grounds of very serious crime . However , in line with my view regarding the seriousness of the contraventions of LAW , I find that a corresponding approach should apply in the present case .

( CARDINAL ) I note that such an interpretation is consistent with LAW of LAW . The case of PERSON v. the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) concerned a question corresponding to that of the present case . ORG held :

‘ In the present case the ORG takes into consideration that the applicant was never given any assurances that he would be granted a right of residence by the competent GPE authorities . He was allowed to await the Deputy Minister ’s decision on his asylum request in the GPE . After asylum was denied him , his request for a stay of expulsion was refused by the competent court on DATE . From then onwards , the applicant ’s residence in the GPE , which was already precarious , lost what little foundation it had had until then . Family life between the applicant and his GPE national partner DATE and later , with their child – was developed after DATE . ORG is of the opinion that in these circumstances the applicant could not at any time reasonably expect to be able to continue this family life in the GPE .... ’

( CARDINAL ) In its subsequent case - law , ORG has stuck to this approach ( see for example the judgment of DATE in the case of and PERSON and PERSON v. the GPE no . CARDINAL/CARDINAL , § DATE , ECHR DATE ) . I refer also to ORG judgment in Rt-CARDINAL - CARDINAL , paragraph CARDINAL .

( DATE ) As has been shown above , my view is also consistent with LAW of LAW on the Rights of the Child , cf . Official NORP Report CARDINAL , page CARDINAL .

( CARDINAL ) I will now carry out a concrete assessment of whether the burden will be extraordinarily great for [ the applicant ] ’s children . I agree with the ORG that this assessment must take into consideration that [ the applicant ] is to be expelled for a period of DATE . When this period has elapsed , she may – like other people – apply for a residence permit . In my view , an evaluation of the probable outcome of such an application is not relevant to the current review . However , she would have the possibility to obtain judicial review of any rejection .

( CARDINAL ) As already mentioned , it must be assumed that the children will continue to reside with Mr O .. They have lived with him since ORG by judgment of CARDINAL DATE granted him the DATE care and parental responsibilities in respect of the children . In its judgment , ORG placed great emphasis on the expulsion case , but added :

‘ Like the expert witness , ORG has formed a reasonably good impression of the father , and considers that he is the parent who is best suited to take care of the children in the present situation . In the view of this court , there is much to indicate that the father , regardless of whether the mother after DATE obtains permission to return to GPE , is the party best suited to take care of the children . The father appears more outgoing than the mother . He speaks good NORP , is in employment and seems , to a greater extent than the mother , to be capable of stimulating the children and taking care of them.’

( CARDINAL ) It is further stated in the judgment that Mr O. has stated that he will arrange for the children to have access to [ the applicant ] , also if she is expelled . He envisages that this might be possible during DATE . I have no grounds for assuming that it should not be possible to maintain contact between the children and [ the applicant ] during the expulsion period .

( DATE ) In view of this , I find it established that the children ’s care situation will be satisfactory even if the [ disputed ] decision is upheld . In any event , it will not differ from what is normal in instances where CARDINAL of the parents is expelled from the country . Nor is there anything in the case to indicate that the children are more closely attached to their mother than to their father .

( CARDINAL ) I add that there is no reason to believe that PERSON ability to assume care will be reduced in the nearest future . If this nevertheless were to occur , it would be possible to grant a dispensation from the prohibition of entry under LAW ( CARDINAL ) , third sentence , of LAW .

( CARDINAL ) There is no information in the case suggesting that the children have a special need for care . Little evidence has been adduced regarding the manner in which the expulsion case has affected the children , though it can not be excluded that it has caused a strain on them too . However , I do not find a basis for assuming that any such burden has been greater than ordinary .

( CARDINAL ) In the above - mentioned decision reported in Rt-CARDINAL - CARDINAL , ORG concluded that the burden on the children had been so great as to make their father ’s expulsion a disproportionate measure . However , in that case , the children had special care needs . There was moreover uncertainty regarding the mother ’s ability to assume care . Paragraph CARDINAL of the judgment stated :

‘ What is particularly significant in the present case is that both parents have been separated from the children on CARDINAL occasions owing to the circumstances that now constitute the grounds for expulsion , first in connection with their detention on remand and then in connection with their serving their sentences . ORG held that the children ‘ according to the evidence adduced , have already been frightened by what has happened and by their parents absence during the remand and subsequent imprisonment . This burden would be reinforced by a new absence of the ORG . On the basis of the information received concerning the health of the spouse , there must in my view be a significant risk that she will neither be capable of dealing with the problems that expulsion of A would entail for the children nor with taking care of them . The fact that she will probably be able to obtain some help from her family is unlikely to significantly reduce the strain on the children , which ORG ... finds to be abnormally great.’

( DATE ) The first voting judge found the weighing of interests ‘ particularly difficult’ , but concluded ‘ not without PERSON that the strain on the children was so great as to make the expulsion disproportionate .

( CARDINAL ) As has been shown above , there are no corresponding circumstances in the present case . On the contrary , we are here faced with a normal situation . I therefore have difficulty in accepting that the strain on the children is so great as to make the expulsion a disproportionate measure .

( CARDINAL ) The long processing time has also been raised in relation to the children . However , I can not see that this should be of significance in relation to their interests .

( CARDINAL ) I add that , should the expulsion in the present case be regarded as disproportionate , it would be difficult to envisage when it should be possible to expel a foreign national who has a child with a person holding a residence permit . It would have the consequence that a foreign national in such a situation would normally be protected against expulsion . It would imply a change in current practice , and would moreover have clearly undesirable aspects . In the judgment reported in CARDINAL , the first voting judge expressed corresponding views . Paragraph CARDINAL of the judgment stated , inter alia :

‘ As a general view , I note that , should it be deemed sufficient for obtaining the revocation of an expulsion order that the person concerned seeks political asylum and gives birth to a child here in GPE , the effectiveness of the expulsion order would be considerably undermined.’

( CARDINAL ) I concur with this view . ”

Mrs Justice PERSON gave the following reasons which in the main were endorsed by the other member of the minority :

“ I have found that the appeal should be rejected . Like ORG , I hold the view that the decision to expel [ the applicant ] with a DATE prohibition on re - entry is disproportionate and thereby invalid .

( CARDINAL ) I concur with the first voting judge that the proportionality assessment must consist of a balancing , on the one hand , of considerations pertaining to the seriousness of the offences of LAW committed by [ the applicant ] and , on the other hand , the interests of [ the applicant ] ’s CARDINAL children . The [ the applicant ] ’s own interests are not such as to make the decision disproportionate .

( CARDINAL ) In judgments delivered by ORG in cases concerning expulsion on grounds of serious crime , cf . section CARDINAL ) or section CARDINAL ) of LAW , it has been held that strain owing to the splitting up of families as a result of expulsion is not in itself sufficient to make expulsion a disproportionate measure , cf . for example Rt-CARDINAL - CARDINAL , paragraph CARDINAL . It has furthermore been established that the more serious the criminal offence , the stronger the attachment must be in order to hinder expulsion , see paragraph CARDINAL of the same judgment .

( DATE ) It is not certain how one is to judge the seriousness of [ the applicant ] ’s contraventions of LAW in relation to this case - law . I concur with the first voting judge that the prescribed penalty scale is not decisive . Regard must be had to the consideration that the purpose of LAW is to provide a basis for control of entry and exit of foreign nationals and of their presence in GPE in compliance with NORP immigration policy , cf . section CARDINAL of the Act . [ The applicant ] ’s entry DATE prior to expiry of the prohibition on re - entry and her subsequent continued presence in GPE were made possible by her use of a passport stating a different identity than that used in connection with her first entry and by her concealment of her conviction [ forelegget ] and prohibition on re - entry . This constituted serious contraventions of the legislation designed to safeguard these purposes . On the other hand , it can in my view hardly be correct to place these breaches of LAW on an equal footing with very serious crime .

( CARDINAL ) As regards the interests of the children , a natural point of departure is LAW , which lays down that the best interests of the child shall be a primary consideration , inter alia , in cases where children are affected by the exercise of public authority . When assessing the weight to be attached to this consideration in expulsion cases , it is of interest that LAW , which will enter into force from DATE , contains a provision on proportionality , corresponding to that of section CARDINAL ) of LAW [ DATE ] , which states expressly that the best interests of the child shall be a primary consideration in cases affecting children . In Proposition No . DATE ( CARDINAL–CARDINAL ) to the PERSON , the ORG has stated at page CARDINAL that the proportionality provision is a continuation of the law as currently applicable , but that the addition concerning the best interests of the child is intended to ensure particular awareness of this factor . The majority of ORG which considered the bill , stressed the need to ensure that sufficient regard be had to the best interests of the child in cases concerning expulsion , and requested ORG to consider issuing regulations to ensure that the best interests of the child be safeguarded to an even greater extent in connection with expulsion cases , cf . ORG Recommendation No . DATE ( CARDINAL–CARDINAL ) , point CARDINAL .

( CARDINAL ) No evidence has been presented concerning the effects on young children of separation for DATE from their primary caregiver during early childhood . However , I would mention that ORG on the Rights of the Child in paragraph CARDINAL of its General Comment No . DATE ) points out that young children , i.e. children DATE , are especially vulnerable to adverse consequences of separations from their parents . It states inter alia :

‘ PERSON children are especially vulnerable to adverse consequences of separations because of their physical dependence on and emotional attachment to their parents / primary caregivers . They are also less able to comprehend the circumstances of any separation . Situations which are most likely to impact negatively on young children include ... situations where children experience disrupted relationships ( including enforced separations ) , ... ’

( CARDINAL ) The present case involves CARDINAL girls who are now respectively DATE and DATE . They were born in GPE and have lived there their entire lives . [ The applicant ] was their primary carer from the children ’s birth until the father – as a result of the expulsion case DATE was granted custody DATE . Since then [ the applicant ] has had an extended right of contact with the children . It must be assumed that [ the applicant ] , besides the father , is the most important person in the children ’s lives .

( CARDINAL ) No assessment has been adduced regarding the children ’s problems or needs . However , in my view , it must be assumed that they are vulnerable . They have grown up in a family that has lived DATE of stress owing to the threat of expulsion of their mother . The children have experienced the GPE separation and subsequently their being moved from the mother to the father , and are now at an age where separation from the mother will be difficult to understand , cf . the above quotation from General Comment No . CARDINAL . Nor have the children any other relatives or close family in GPE . There can be no doubt that expulsion of [ the applicant ] with a CARDINAL years’ prohibition on re - entry will be a particularly far - reaching measure for the children . In this connection , I would mention that ORG has assumed it to be most unlikely that [ the applicant ] will come to GPE during the period of prohibition on re - entry , and that it is very uncertain that the children will have the opportunity to visit her outside GPE . What will happen when DATE have elapsed is uncertain .

( CARDINAL ) A survey has been submitted of ORG decisions to expel foreign nationals who have children on the ground of their having submitted incorrect information to the immigration authorities . Counsel for the ORG has referred particularly to CARDINAL decisions from DATE . In both cases , the prohibition on re - entry was reduced to DATE by ORG . The survey does not include such detailed information as to make it possible to see whether a decision in [ the applicant ] ’s favour would constitute a departure from these decisions , and I feel somewhat in doubt that these cases involved bonds of equal duration and closeness . Should there be question of a departure , this would be a result of increased emphasis being made on the needs of the children , in my view , in accordance with the indications provided in connection with adoption of the new LAW .

( CARDINAL ) The first voting judge has stated that , if the expulsion in the present case were held to be disproportionate , it would be difficult to envisage when it should be possible to expel a foreign national who has children together with a person holding a residence permit . I do not agree with this . A concrete assessment must be made balancing the seriousness of the offence against the bonds between the foreign national concerned and the child , and having regard to the child ’s situation on the whole . A central factor in this case is the long - term bonds between the children and their mother and the strain to which they have been subjected . In such a situation , it is in my view difficult to reconcile the condition that the best interests of the child shall be a primary consideration with the view that expulsion of the children ’s mother is a proportionate measure vis - à - vis the children . ”

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( Act of DATE Nr CARDINAL , PERSON om utlendingers adgang til riket og deres opphold her – utlendingsloven - applicable at the material time and later replaced by LAW ) read :

“ Any foreign national may be expelled

a)when the foreign national has seriously or repeatedly contravened CARDINAL or more provisions of the present LAW or evades the execution of any decision which means that the person concerned shall leave the realm . ”

Even when the conditions for expulsion pursuant to section CARDINAL of LAW were satisfied , expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family . LAW of LAW DATE provided :

“ Expulsion pursuant to the first paragraph , sub - paragraphs ( a ) , ( b ) , ( c ) , ( e ) and ( f ) of this section , shall not be ordered if , having regard to the seriousness of the offence and the foreign national ’s links to the realm , this would be a disproportionately severe measure vis - à - vis the foreign national in question or the closest members of this person ’s family . ”

According to section ORG ) , an expulsion order may be accompanied by a prohibition on re - entry into GPE . However , the person expelled may , on application , be granted leave to enter GPE . Furthermore , according to well - established administrative practice , when considering an application for leave to enter under section PERSON ) , ORG was under an obligation to consider the proportionality of its decision on prohibition on re - entry . The provision read :

“ Expulsion is an obstacle to subsequent leave to enter the realm . Prohibition on entry may be made permanent or of limited duration , but as a general rule not for a period of DATE . On application the person expelled may be granted leave to enter the realm , but as a rule not until DATE have elapsed since the date of exit . ”

Section CARDINAL(CARDINAL ) provided inter alia :

“ Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit . If the order is not complied with or it is highly probable that it will not lead to the foreign national ’s leaving the realm , the police may escort the foreign national out . [ ... ] Any decision which applies to implementation is not considered to be an individual decision , cf . section CARDINAL ( CARDINAL)(b ) , of LAW . ”


The applicant , PERSON , is a NORP national , who was born in DATE and currently resides in the village of GPE , ORG region . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON .

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

The applicant is a former member and employee of “ GPE ” , an agricultural production co - operative ( hereinafter “ the ORG ” ) .

In DATE , upon the Decree of the President of GPE “ On immediate measures for acceleration of reform in agriculture ” of DATE , the members of the ORG decided to divide it into property and land shares ( земельні і майнові паї ) , following which in DATE the applicant received a land ownership certificate ( land certificate , transformed on DATE into the ORG act on land ownership ) .

On DATE the applicant instituted proceedings in the ORG of Cherkassy Region ( “ the ORG ” ) against the ORG seeking to receive compensation for unpaid salary and to be paid the value of her property share .

On DATE ORG allowed her claims and ordered the ORG to pay her ORG CARDINAL in compensation for salary arrears and for her property share .

The execution proceedings were initiated on DATE .

On DATE the ORG was re - organised in a joint stock company “ GPE ” .

In DATE the applicant instituted proceedings in ORG against ORG , seeking compensation for damage caused by its failure to execute the judgment of CARDINAL DATE , and requesting the court to oblige the ORG to execute that judgment .

On DATE ORG rejected her claims as being unsubstantiated . The applicant did not appeal against this decision .

On DATE the ORG of Justice informed the applicant that the judgment of CARDINAL DATE could not be executed due to the debtor ’s lack of funds .

On DATE ORG seized from the debtor UAH CARDINAL , and on DATE the applicant was paid ORG .

On DATE ORG discontinued the enforcement proceedings due to the debtor ’s lack of funds . The applicant did not challenge that decision before the domestic courts .

The Law of GPE of DATE “ On privatisation of property in agriculture ” provided for privatisation of the ORG - owned collective farms and enterprises through their transformation into collective agricultural companies or joint stock companies .

The Decree of the President of GPE DATE “ On immediate measures for acceleration of reform in agriculture ” provided for a possibility for members of collective agricultural companies to receive in kind their land and property shares and to establish private farms or other privately owned agricultural enterprises .


Preliminary objection rejected (victim);Violation of Art. 6-1;Not necessary to examine Art. 6-1 (prompt trial);Not necessary to examine Art. 6-2;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON , a NORP national , was born in DATE and died on CARDINAL DATE . He worked as a sales representative and lived in GPE , at ORG ) . His widow , PERSON , née PERSON , is NORP and lives in GPE .

On DATE CARDINAL GPE customs officers , accompanied by a senior police officer ( officier de police judiciaire ) , went to the house of the applicant and his wife to obtain " particulars of their assets abroad " ; they were acting on information received from the tax authorities in GPE .

Mr PERSON admitted having , or having had , several bank accounts abroad for professional and family reasons and said that he did not have any bank statements at his home .

The customs officers searched the LOC from TIME to CARDINAL.CARDINAL TIME , and discovered statements and cheque - books from foreign banks , together with a NORP car - repair bill and CARDINAL cameras . They seized all these items and on DATE drew up a report .

The customs ORG search and the seizures did not lead to any criminal proceedings for offences against the regulations governing financial dealings with foreign countries . They did , however , give rise to parallel proceedings for disclosure of documents and for interim orders .

During their search on DATE the customs officers asked the applicant to produce the statements for DATE is to say DATE , DATE and DATE - of his accounts at the ORG in GPE , the ORG in GPE , ORG suisse in GPE and ORG in GPE and of his house - purchase savings plan at FAC in GPE and , lastly , his share portfolio at ORG in GPE .

Mr PERSON undertook to do so but later changed his mind .

On CARDINAL DATE the customs authorities summoned him before the GPE police court seeking to have him sentenced to a fine ( amende ) and a further penalty ( astreinte ) of MONEY ( ORG ) a day until such time as he produced the bank statements ; they also made an application to have him committed to prison .

On DATE the court imposed a fine of ORG CARDINAL on the applicant and ordered him to produce to the customs authorities the bank statements of his accounts at ORG suisse in GPE , the ORG in GPE and ORG in GPE and of his savings account at ORG in GPE and all documents concerning the financing of the flat he had bought at GPE ( GPE ) , on penalty of ORG CARDINAL per day ’s delay .

The reasons given for its judgment were the following :

On CARDINAL Mr Funke told ORG that he was unable to make available the documents that he had undertaken to produce .

He has provided no reason for this and has submitted no correspondence that would show he took the necessary steps to obtain the required documents or would prove that the foreign banks refused to supply him with any such document .

Mr PERSON acknowledged that , together with his brother , he bought a bedsitter at GPE ( GPE ) and produced photocopies of the contract of sale and of the entry in the land register ; but he refused to produce documents concerning the financing of the purchase .

LAW provides : ‘ ORG officers with the rank of at least inspector ... may require production of papers and documents of any kind relating to operations of interest to their ORG .

It appears from the present proceedings taken by the customs authorities that the prosecuting officer has the rank of inspector .

The documents sought , namely the bank statements and the documents relating to the financing of the purchase of the flat , can be brought within the category of documents covered by LAW .

The same LAW provides in paragraph CARDINAL(i ) that such requests for production may be made ‘ on the premises of ( chez ) any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the ORG Service’ .

In this context the term ‘ chez’ must not be restricted to ‘ at the home of’ ( au domicile de ) but must be construed as meaning ‘ wherever ... may be’ ( auprès de ) .

Any other construction would enable the person concerned to evade ORG investigations by keeping any compromising papers elsewhere than at his home .

The house search and Mr PERSON ’s own statements provided sufficient evidence that there were bank accounts and financing operations concerning the defendant to enable ORG to exercise their right of inspection in relation to the relevant documents notwithstanding that these were not at Mr PERSON ’s home .

As the holder of an account used abroad , PERSON , like any account - holder , must receive statements following any transaction on the account . A statement is an extension , a reflection of the situation , of an account at a given time . The holder of the account is the owner of his statements and may at any time ask for them from his bank , which can not refuse them . "

Appeals were brought by PERSON , the public prosecutor and the customs authorities . On DATE ORG upheld the judgment of the court below other than as regards the inspection of documents relating to the flat at Schonach , and increased the pecuniary penalty to ORG CARDINAL per DATE ’s delay .

It dealt with Mr PERSON ’s argument based on the ORG as follows :

" Article CARDINAL bis of LAW , which applies to financial dealings with foreign countries by virtue of LAW , makes any refusal to produce documents and any concealment of documents in the cases provided for , inter alia , in LAW aforementioned code punishable by imprisonment for a period ranging from DATE to DATE and a fine of ORG CARDINAL to CARDINAL .

Under DATE , customs officers may require production of documents of any kind relating to operations of interest to their department , in general , on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of ORG .

In the instant case PERSON is liable only to a fiscal penalty : to a fine , therefore .

It does not appear that the power conferred by the aforementioned provisions on a revenue authority conflicts with the protection of human rights and fundamental freedoms which it is the purpose of the instrument of international law relied on to guarantee .

The defendant had a fair hearing .

Obviously , no offences which performance of the duty to produce documents may disclose are yet before the courts ; that being so , ORG objections of principle are premature .

Moreover , while everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law , Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW does not otherwise restrict the type of evidence which the lex fori places at the disposal of the prosecuting party in order to satisfy the court .

Lastly , the obligation on a defendant to produce in proceedings evidence likely to be used against him by the opposing side is not a special feature of customs or tax proceedings since it is enacted in LAW likewise .

On the other hand , while LAW article CARDINAL) of the LAW provides that everyone has the right to respect for his private life and his correspondence , there may be interference by a public authority with the exercise of this right so long as it is in accordance with the law and amounts to a measure which is necessary in a NORP society , inter alia in the interests of the economic well - being of the country or for the prevention of disorder or crime .

In most of the countries signatories to the LAW , moreover , the customs and revenue authorities have a right of direct investigation in banks . "

On DATE ORG ) dismissed an appeal on points of law by PERSON . The third and final ground , in which Articles DATE and CARDINAL ( article CARDINAL , article CARDINAL) of the Convention were prayed in aid , was rejected in the following terms :

" ORG held that , while everyone charged with a criminal offence was to be presumed innocent until proved guilty according to law , Article CARDINAL ( article CARDINAL ) of the Convention ... did not otherwise restrict the types of evidence that the lex fori placed at the disposal of the prosecuting party in order to satisfy the court ; and that while it was true that LAW article CARDINAL) of the LAW provided that everyone has the right to respect for his private life and his correspondence , there might ... be interference by a public authority with the exercise of this right so long as the interference was in accordance with the law and amounted to a measure which was necessary in a NORP society , inter alia in the interests of the economic well - being of the country or for the prevention of disorder or crime .

In so stating , and irrespective of any superfluous reasoning , ORG justified its decision and the ground therefore can not be upheld . "

In a report on CARDINAL DATE the customs authorities noted Mr PERSON ’s refusal to comply with ORG judgment of DATE ( see paragraph CARDINAL above ) .

On DATE they served a garnishee notice on the applicant ’s bank requiring it to pay a sum of ORG CARDINAL , representing the amount of the penalties owed by its customer for the period from DATE to DATE .

On an application by PERSON , ORG upheld the notice in question on DATE , holding that the customs authorities were entitled to recover the sum owed in respect of a pecuniary penalty resulting from an enforceable court decision in the same way as a customs fine and notwithstanding that an application ( which did not have any suspensive effect ) had been made to ORG .

On an appeal by PERSON , ORG delivered a judgment on DATE reversing the lower court ’s judgment of CARDINAL DATE and quashing the garnishee notice .

An appeal on points of law by the customs authorities was dismissed by ORG on DATE . Like ORG , ORG held that the amount of the customs penalty could not be recovered by means of a garnishee notice .

Following this judgment , the customs authorities made no further attempt to collect payment of the penalty in question .

On DATE the customs authorities applied for an order from the presiding judge of ORG for attachment of Mr PERSON ’s movable and immovable property to the value of ORG . CARDINAL of this sum was to be in lieu of confiscation of the undeclared funds , while the other CARDINAL corresponded to the fine payable . Relying on LAW ( see paragraph CARDINAL below ) and LAW , the customs authorities stated that they already had a definite right to payment from the applicant . The documents seized at ORG showed that he had contravened LAW of CARDINAL DATE , which provided that any payment made abroad by persons resident in GPE had to be effected through an approved intermediary ( bank or post office ) established in GPE .

ORG made an order granting the application on DATE .

On DATE it delivered a judgment dismissing an objection lodged by Mr Funke ( Article CARDINAL of the local ORG ) .

On DATE ORG dismissed PERSON appeal against that judgment , holding that unless attachment orders were granted , it was to be feared that enforcement of the decision to be expected in the criminal trial would become impossible or much more difficult ; furthermore , the creditor had made his claim credible by producing reports ( ORG and CARDINAL of the local ORG ) .

The applicant did not appeal on points of law .

On CARDINAL DATE PERSON made an application for discharge of the attachment order ( LAW ) ; by this means she wanted to compel the customs authorities to bring to trial the issue of the existence of the right to payment which had provided the justification for the attachment order . She also sought leave to sell a property .

In an order made on DATE the ORG gave ORG DATE in which to bring proceedings on the merits .

The customs authorities decided not to do so and in DATE agreed to the discharge of the attachment orders and of the associated mortgage .

The criminal provisions of customs law in GPE are treated as a special body of criminal law .

CARDINAL provisions of LAW are relevant as regards these officials :

" The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries :

customs officers ;

other officials of ORG with the rank of at least inspector ;

senior police officers ( officiers de police judiciaire ) .

The reports made by senior police officers shall be forwarded to the Minister for ORG and Finance , who shall refer cases to the prosecuting authorities if he thinks fit . "

" The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in LAW code . "

When the house search was made ( DATE ) , LAW was worded as follows :

" CARDINAL . When searching for goods held unlawfully within the customs territory , except for built - up areas with a population of CARDINAL , and when searching in any place for goods subject to the provisions of LAW hereinafter , customs officers may make house searches if accompanied by a local municipal officer or a senior police officer ( officier de police judiciaire ) .

In no case may such searches be made during TIME .

ORG officers may act without the assistance of a local municipal officer or a senior police officer

( a ) in order to make searches , livestock counts , and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and

( b ) in order to look for goods which , having been followed and kept under uninterrupted surveillance as provided in LAW hereinafter , have been taken into a house or other building , even if situated outside the customs zone .

If entry is refused , customs officials may force an entry in the presence of a local municipal officer or a senior police officer . "

ORG DATE ( section CARDINAL and II ) and DATE ( section CARDINAL-III , CARDINAL ) amended LAW , which now provides :

" CARDINAL . In order to investigate and establish the customs offences referred to in ORG CARDINAL - CARDINAL and CARDINAL of this code , customs officers authorised for the purpose by the Director- General of ORG and Excise may make searches of all LOC , even private ones , where goods and documents relating to such offences are likely to be held and may seize them . They shall be accompanied by a senior police officer ( officier de police judiciaire ) .

( a ) Other than in the case of a flagrant offence ( flagrant délit ) , every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated , or a judge delegated by him .

Against such an order there shall lie only an appeal on points of law as provided in LAW ; such an appeal shall not have a suspensive effect . The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order .

The order shall contain :

( i ) where applicable , a mention of the delegation by the President of the tribunal de grande instance ;

( ii ) the address of the premises to be searched ;

( iii ) the name and position of the authorised official who has sought and obtained leave to make the searches .

The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought .

If , during the search , the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the LOC searched and in which documents , goods or other items relating to the activities referred to in paragraph CARDINAL above are likely to be found , they may , with leave given by any means by the judge who made the original order , immediately search the strongbox . Such leave shall be mentioned in the report provided for in paragraph CARDINAL(b ) below .

The judge shall take practical steps to check that each application for leave made to him is well - founded ; each application shall contain all information in the possession of the customs authorities that may justify the search .

He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress .

The search shall be carried out under the supervision of the judge who has authorised it . Where it takes place outside the territorial jurisdiction of his tribunal de grande instance , he shall issue a rogatory letter , for the purposes of such supervision , to the President of the tribunal de grande instance in the jurisdiction of which the search is being made .

The judge may go to the scene during the operation .

He may decide at any time to suspend or halt the search .

The judicial order shall be notified orally to the occupier of the LOC or his representative on the spot at the time of the search , who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph CARDINAL(b ) below . If the occupier of the LOC or his representative is absent , the judicial order shall be notified after the search by means of a registered letter with recorded delivery . Notification shall be deemed to have been made on the date of receipt entered in the record of delivery .

Failing receipt , the order shall be served as provided in Articles CARDINAL et seq . of LAW .

The time - limits and procedures for appeal shall be indicated on notification and service documents .

( b ) Searches may not be commenced before TIME or after TIME They shall be made in the presence of the occupier of the LOC or his representative ; if this is impossible , the senior police officer shall requisition CARDINAL witnesses chosen from persons not under his authority or that of the customs .

Only the customs officers mentioned in paragraph CARDINAL above , the occupier of the LOC or his representative and the senior police officer may inspect documents before they are seized .

The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of LAW ; LAW of that code shall apply .

The report , to which shall be appended an inventory of the goods and documents seized , shall be signed by the customs officers , the senior police officer and the persons mentioned in the first sub - paragraph of this section ( b ) ; in the event of a refusal to sign , mention of that fact shall be made in the report .

Where an on - the - spot inventory presents difficulties , the documents seized shall be placed under seal . The occupier of the LOC or his representative shall be informed that he may be present at the removal of the seals , which shall take place in the presence of the senior police officer ; the inventory shall then be made .

A copy of the report and of the inventory shall be given to the occupier of the LOC or his representative .

A copy of the report and the inventory shall be sent to the judge who made the order within DATE of its being drawn up .

ORG officers may act without the assistance of a senior police officer

( a ) in order to make searches , livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture ; and

If entry is refused , customs officers may force an entry in the presence of a senior police officer . "

Article CARDINAL of the ORG Code gives the customs authorities a special right of inspection :

" ORG officers with the rank of at least inspector ( inspecteur or officier ) and those performing the duties of collector may require production of papers and documents of any kind relating to operations of interest to their department ;

( i ) ... in general , on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of ORG . "

Anyone refusing to produce documents is liable to imprisonment for a period ranging from DATE to DATE and to a fine of ORG CARDINAL ( Article CARDINAL bis-CARDINAL of ORG ) .

Furthermore , a pecuniary penalty of not less than FRF DATE delay may be imposed on him ( Article CARDINAL ) and he may be committed to prison for non - payment ( Article CARDINAL ) .

Article CARDINAL bis-CARDINAL of the ORG Code provides :

" ORG reports , where they are conclusive unless challenged as forgeries , shall be a warrant for obtaining , in accordance with the ordinary law , leave to take any necessary interim measures against persons liable in criminal or in civil law , for the purpose of securing customs debts of any kind appearing from the said reports . "

Article CARDINAL of the ORG Code provides :

" Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for ORG and ORG or CARDINAL of his representatives authorised for the purpose . "


FIRST SOFIA COMMODITIES EOOD AND PARAGH v. BULGARIA

Angelika Nußberger;Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The first applicant , First Sofia Commodities EOOD , is a singlemember limited liability company whose registered office is in GPE , GPE . The second applicant , Mr PERSON Koes ORG , is a NORP national born in DATE , who is the applicant company ’s sole member and manager . The applicants were represented before the ORG by Ms S. Ganeva and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON , of ORG .

On DATE the President of ORG decided that notice of some of the complaints raised by the applicant company should be given to the Government . The Government were not given notice of any complaints raised by the second applicant .

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

PERSON set up the applicant company in DATE in GPE , with the intention of providing brokerage services for futures at foreign commodity exchanges . In DATE the company actively sought new clients and managed to open CARDINAL client accounts .

On DATE the company ’s lawyers wrote to ORG ( “ the Commission ” ) , enquiring whether the company ’s activity was subject to regulation by it . On DATE the Commission replied that the company ’s activity fell outside its mandate , because commodity futures were not investment securities within the meaning of the applicable law . It referred the applicant company ’s query to ORG , which also informed the company that brokers at foreign commodity exchanges fell outside its purview .

On DATE the chairman of the ORG ordered an inquiry into the applicant company ’s activities .

While the inquiry was underway , several newspapers ran negative articles about the company .

On DATE the inquiry concluded that the company was publicly offering investment securities without making full disclosure , drawing up a prospectus and submitting it for approval to the Commission , as required under the applicable law . The same day the Commission recommended that the company cease its activities .

NORP However , as the company did not comply and continued contacting prospective clients , on DATE the Commission opened a procedure for imposing restrictions on its activity . In the course of the proceedings the company filed an objection , saying that its activity was not subject to regulation by the Commission . In a decision of DATE the ORG rejected the objection , reasoning that the contracts offered by the company were investment securities . It went on to say that those securities were being offered to the public in breach of the requirements of the law , and ordered the company to desist from making further offers immediately and to unwind its existing contracts within DATE . The decision said that it was immediately enforceable and that any application for its judicial review would not have suspensive effect .

On DATE the company sought judicial review of the decision . On DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № ORG г. , PERSON , GPE о. ) a threemember panel of ORG quashed it . The court found that the contracts between the company and its clients were not investment securities within the meaning of the applicable law . It had therefore not acted unlawfully by offering those contracts without the prospectus required for investment securities . Since it had not breached the law , there were no grounds to order it to cease its activity .

On an appeal by ORG , in a final judgment of DATE ( реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , петчленен състав ) a fivemember panel of ORG upheld that judgment , fully agreeing with its reasoning .

Following the successful outcome of the proceedings , the company wished to claim compensation for the damage sustained as a result of the provisional enforcement of the ORG ’s decision . However , having received legal advice that such a claim would not stand any prospect of success , it decided not to bring CARDINAL .

DATE LAW provides that the ORG is liable for damage caused by the unlawful decisions or actions of its organs and servants . In a binding interpretative decision of DATE ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по т. гр. д. № CARDINAL г. , ORG на ВКС ) ORG , confirming the ORG earlier caselaw , said that that Article did not provide a direct avenue of redress , but merely laid down a general principle whose implementation was to be effected through a statute . As no such statute had been enacted after the LAW came into force in DATE , that function was being served by ORG ( DATE ) ( ORG за отговорността на държавата за вреди , причинени на граждани ) , in force since DATE . ( On DATE it was renamed the ORG and ORG ( ORG за отговорността на държавата и общините за вреди ) – “ the DATE LAW ) . The former ORG and ORG have held that the LAW created a substantive right to claim damages , and has no retroactive effect ( реш. № PERCENT от CARDINAL декември DATE г. по гр. д. № CARDINAL г. , ORG , PERSON г. о. ; реш. № DATE от CARDINAL февруари DATE г. по гр. д. № DATE г. , ORG ; реш. № CARDINAL от DATE г. по гр. д. № CARDINAL/CARDINAL г. , ORG ) .

Section CARDINAL(CARDINAL ) of the LAW , as originally enacted and in force until DATE , provided that the ORG was liable for damage suffered by individuals ( граждани ) as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . LAW ) provides that compensation for damage flowing from unlawful decisions may be claimed after those decisions have been quashed in prior proceedings . ORG caselaw ( реш. № DATE от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG ; реш. № DATE от DATE г. по гр. д. № MONEY г. , ORG ; реш. № DATE от CARDINAL октомври DATE г. по гр. д. № DATE г. , ORG , V г. о. ) , confirmed in point CARDINAL of the interpretative decision mentioned in paragraph CARDINAL above , was that solely individuals , not legal persons , could claim compensation under that provision . The interpretative decision explained that the wording of section CARDINAL(CARDINAL ) was a result of the fact that during the communist regime , when the LAW had come into force , all legal persons had been outfits set up by the ORG . It had therefore been evident that only individuals would need to be compensated for unlawful administrative action .

Section CARDINAL(CARDINAL ) provides that those seeking redress for damage occasioned in circumstances falling within the scope of the LAW have no claim under the general law of tort . The courts have said that the LAW is a lex specialis and excludes the application of the general regime ( реш. № PERCENT от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , GPE г.о. ; реш. от CARDINAL юли DATE г. по гр. д. № CARDINAL г. , ORG , ORG , ІVб отд. ) . ORG has said that liability under section CARDINAL(CARDINAL ) of the LAW is a special case of vicarious liability under section CARDINAL of the DATE LAW ( see paragraph CARDINAL below ) ( реш. № CARDINAL от CARDINAL ноември DATE г. по т. д. № CARDINAL/CARDINAL г. , ORG , I т. о. ) .

On DATE CARDINAL members of parliament introduced a bill for the amendment of the LAW , proposing to add legal persons to those entitled to claim damages under its section CARDINAL(CARDINAL ) . In the explanatory note to the bill they said that the express wording of that provision deprived legal persons of the possibility of suing the ORG . They also pointed out that the ORG caselaw was categorical on the point that legal persons who had suffered damage could sue the authorities only under section CARDINAL et seq . of the DATE LAW ( see paragraph CARDINAL below ) . However , a claim under those provisions would be difficult to prosecute in practice . The bill was not adopted . Another group of members of parliament introduced a similar bill in DATE .

On DATE , when adopting the new ORG ( Данъчноосигурителен процесуален кодекс ) , parliament decided to amend LAW by adding “ legal persons ” to the category of those entitled to bring a claim ( paragraph CARDINAL of the Code ’s transitional and concluding provisions ) . The amendment was published in ORG on DATE and came into force on DATE . In their ensuing caselaw ORG and ORG have held that it conferred on legal persons a substantive right to claim damages , and has no retroactive effect ( опр. № DATE от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , ORG ; опр. № CARDINAL от DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ; опр. № CARDINAL от DATE г. по гр. д. № DATE г. , ВКС , III г. о. ; реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ВКС , III г. о. ; реш. № CARDINAL от CARDINAL юни DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) .

The general rules of the law of tort are set out in sections CARDINAL to CARDINAL of the DATE LAW ( ORG за задълженията и договорите ) . Section CARDINAL(CARDINAL ) provides that everyone is obliged to make good the damage which they have , through their fault , caused to another . Section DATE provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . Legal persons can not incur liability under section GPE ) , as they can not act with mens rea . They may , however , be vicariously liable under section DATE for the tortuous conduct of individuals employed by them ( пост. № CARDINAL от CARDINAL декември DATE г. , GPE на ВС ) . In the interpretative decision mentioned in CARDINAL above , ORG said that legal persons who had sustained damage from unlawful administrative action could vindicate their right to damages under those provisions . On DATE the ORG allowed a claim under section DATE brought by a company against ORG in relation to events which had taken place in DATE . Its ruling was upheld by ORG on DATE , and by ORG on DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по гр. д. № CARDINAL г. , ORG , ORG г. о. ) . In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ВКС , III г. о. ) ORG examined a claim which the lower courts had characterised under section CARDINAL(CARDINAL ) of the DATE Act and rejected because it had been brought by a legal person and concerned events preceding the entry of the DATE amendment into force . The court recharacterised the claim as CARDINAL under LAW of the DATE LAW , and allowed it .

Section CARDINAL of the CARDINAL Act , which is also applicable to proceedings under LAW ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по т. гр. д. № CARDINAL/CARDINAL г. , ORG на ВКС ; реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , ORG ) , provides that the limitation period for all claims is DATE . In the interpretative decision mentioned in CARDINAL above ORG said that , in so far as voidable administrative decisions are concerned , time starts running when the judgments quashing them become final .


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

David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

On DATE the applicant 's husband filed a complaint with the police alleging that the applicant had beaten and wounded him on DATE .

On DATE the police department in ORG issued a decision by which it dropped the case on the ground that the applicant 's husband did not agree to criminal proceedings being brought against her . The decision stated that although the police “ investigation ” had established that the applicant had committed a criminal offence , criminal prosecution was barred as the victim , the applicant 's husband , had not given his consent as required under LAW . The applicant was not notified of this decision , nor is there any evidence in the case file that she was questioned or otherwise made aware of her husband 's complaint .

On DATE a health insurance company wrote to the applicant asking her to reimburse the costs of her husband 's medical treatment . According to the letter , the applicant 's husband had been treated in a hospital on DATE as a result of injuries which the applicant had inflicted on him . Reference was made , inter alia , to the decision issued by the police department in ORG on DATE .

In a letter dated DATE the insurance company explained the position to the applicant in reply to her request . A copy of the police decision of DATE was enclosed with the letter which was delivered to the applicant 's lawyer on DATE . The relevant part of the decision of DATE read as follows :

“ The investigation showed that [ the applicant 's ] action met the constituent elements of the offence of causing injury to health pursuant to LAW in that she had deliberately inflicted an injury on another person . ”

On DATE the applicant informed the competent police department in ORG that the text of its decision violated her right to be presumed innocent . She requested an apology and that the police inform the health insurance company of this breach . On DATE the director of the police department replied to the applicant , stating that the above decision had been given in accordance with the relevant law .

In a letter of DATE the applicant requested that PERSON ORG quash the police decision of DATE . On DATE the applicant was informed that the decision was not contrary to constitutional principles . The letter stated , in particular , that the task of the police had been to determine whether a justified reason existed to consider that a particular person had committed the offence in issue . The relevant text of the contested decision had been drafted and was to be read in that context .

On DATE the applicant filed a complaint with ORG . She alleged , inter alia , that by issuing its decision of DATE , the police department in ORG had violated her constitutional rights to be presumed innocent and to respect for her honour and reputation .

On DATE ORG rejected the complaint as having been filed outside the statutory DATE time - limit . The decision referred to section CARDINAL ( CARDINAL ) of LAW of DATE , which provided that the time - limit was to be counted from DATE on which the plaintiff learned or could have learned about the contested measure . In rejecting the applicant 's complaint as out of time , ORG took DATE , the date on which the police decision was issued , as the key date .

Article CARDINAL CARDINAL of LAW provides that “ Every defendant against whom criminal proceedings are pending shall be considered innocent until the court establishes his / her guilt by a final judgment . ”

LAW , as in force at the relevant time , provided as follows at LAW :

“ A defendant against whom criminal proceedings have been instituted must not be considered guilty until the court establishes his / her guilt by a final judgment . ”

Article CARDINAL ( a ) ( CARDINAL ) required the victim 's consent for a criminal prosecution to be pursued for a listed number of offences , including the offence of causing bodily injury , in cases in which the perpetrator was a relative of the victim .

LAW ( h ) provided that a criminal prosecution could not be initiated , and if already initiated , could not be continued and had to be discontinued , in the event that consent as required LAW CARDINAL ( a ) ( CARDINAL ) was not given or subsequently withdrawn .

The Civil Code in its relevant provisions reads as follows :

“ Every natural person shall have the right to protection of his or her personal integrity , in particular his or her life and health , civil and human dignity , privacy , reputation and expressions of a personal nature . ”

“ CARDINAL . Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity , an order cancelling out the effects of such interference and an award of appropriate compensation .

NORP If the satisfaction afforded under paragraph CARDINAL of this Article is insufficient , in particular because the injured party 's dignity or social standing has been considerably diminished , the injured party shall also be entitled to financial compensation for nonpecuniary damage .

When determining the amount of compensation payable under paragraph CARDINAL of this Article , the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred . ”

“ A person who caused damage by infringement of the right to protection of personal integrity , shall be liable for such damage under provisions of this law on liability for damage . ”

Article CARDINAL of LAW provides the following :

“ Letters issued by the courts of GPE or by other state authorities within the limits of their powers , as well as letters which were declared public upon special regulation , confirm that it is an order or declaration of an authority which issued the letter , and unless the contrary is proved , also the verity of what is to be approved or confirmed therein . ”

Section CARDINAL ( CARDINAL ) of LAW of DATE provides that a complaint to ORG can be filed within DATE from the final effect of a decision or from the date of a contested measure or notification of another interference with a person 's rights . In the case of measures or other interferences , the time - limit is to be counted from the date on which the plaintiff learned or could have learned about the contested measure or other interference complained of . Section CARDINAL ( CARDINAL ) provides that a copy of the legal decision , measure or any evidence proving another kind of interference shall accompany a complaint .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicants , Mr PERSON and ORG , are NORP nationals who were born in DATE and DATE respectively and live in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

Following the unlawful criminal prosecution of the applicants , they instituted civil proceedings against the ORG and claimed non - pecuniary compensation .

By a final judgment of DATE ORG ordered ORG to pay each of them CARDINAL Moldovan lei . On DATE the applicants formally requested the enforcement of that judgment and the money was paid to them on DATE .

The applicants did not inform the ORG about the enforcement of the judgment in their favour , even in their post - communication correspondence . It was only through the Government ’s observations that the ORG learned about the enforcement of the judgment in DATE .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s wife stopped living with the applicant . She moved to her GPE house together with her and the applicant ’s son who was born on DATE .

On DATE the applicant sought the determination of his right to meet his son . His wife counter - claimed that the applicant should be prohibited from meeting the boy .

On DATE the applicant requested PERSON ORG to issue an injunction granting him the right to meet his son DATE . On DATE ORG dismissed that request . On DATE the court of appeal upheld that decision . It noted that the request was premature as no decision had yet been given as regards the custody of the child .

On DATE the Bratislava III ORG granted a divorce to the applicant and his wife . The latter was given custody of their son and the applicant was obliged to contribute to his maintenance .

On DATE the applicant , with reference to the above judgment , informed ORG that he wished to withdraw his action . His former wife withdrew her counter - claim . GPE ORG therefore discontinued the proceedings on CARDINAL DATE .

In an action filed on DATE before GPE ORG the applicant claimed the right to meet his son .

A hearing was held on DATE . On CARDINAL DATE the child ’s mother counter - claimed that the applicant should be prohibited from meeting their son on the ground that the applicant drank and had behaved in an aggressive manner . At a hearing held on DATE ORG decided to examine jointly the claims of both parents .

On DATE neither the child ’s mother nor her lawyer appeared before ORG . The mother did not appear on DATE either , and ORG imposed a procedural fine on her . On DATE the police informed the court that they had been unable to serve a document on the applicant ’s former wife in person .

A hearing was held on DATE .

On DATE the Bratislava III ORG appointed an expert and instructed her to submit an opinion .

On DATE the court requested the applicant to pay an advance on the expert ’s fee . The applicant paid the sum on DATE .

On DATE the expert asked to be excused from the case as she was ill .

On DATE ORG excused the expert . At the same time it appointed a different expert and instructed her to submit an opinion within DATE .

On DATE the new expert asked to be excused as she could not assess the case in an impartial manner .

On DATE another person was instructed to submit an expert opinion . On DATE that person informed the court that he no longer worked as a court expert . According to a note of DATE drafted by the judge dealing with the case , the person in question was still registered as an expert .

On DATE , in reply to the applicant ’s complaint , the president of ORG admitted that there had been undue delay in the proceedings DATE and DATE . Otherwise , the judge had dealt with the case in an orderly manner , holding hearings at regular intervals .

On DATE a fourth expert was appointed . On DATE the court urged the expert to submit an opinion . It was submitted on DATE .

On DATE the applicant appealed against the decision of CARDINAL DATE concerning the expert ’s fees . The appeal was submitted to ORG on DATE . ORG dismissed the appeal on DATE .

At the hearing held on DATE ORG heard the expert . The applicant requested that the expert be excluded from the case on grounds of bias . On DATE ORG requested the expert to comment on the applicant ’s request . The expert replied on DATE . On DATE ORG found that the expert was not biased . The applicant appealed on DATE .

In the meantime , on DATE the applicant appealed against ORG decision of DATE on the expert ’s fees .

On DATE and on DATE the applicant made further written submissions to ORG .

In DATE the case was submitted to ORG for a decision on the applicant ’s appeals against the above - mentioned procedural decisions .

On DATE the child ’s mother sought an interim measure ordering the applicant to abstain from any contact with their son . She submitted that the applicant had attacked her and the boy on their way to school .

On DATE ORG asked ORG to return the file to it so that it could decide on the request for an injunction .

On DATE ORG returned the file to ORG after it had upheld the first - instance decisions challenged by the applicant .

On DATE ORG asked the expert to answer additional questions . The court dismissed the mother ’s request for an injunction . The decision stated that extensive expert evidence was being taken with a view to establishing in a reliable manner whether or not the applicant ’s contacts with the child could threaten the latter ’s physical and mental health . At that time , it had not yet been established that the injunction which the mother sought to obtain was required to protect the interests of the child .

The child ’s mother appealed on DATE .

On DATE ORG in GPE upheld the first - instance decision . It underlined that the mother ’s fear of the applicant ’s negative impact on the child did not , as such , justify the injunction requested . The court also noted that , because of the mother ’s behaviour , the applicant had been unable to participate in the education of his son .

On DATE ORG appointed a guardian to represent the child in the injunction proceedings . On DATE the file was sent to ORG which dealt with the applicant ’s complaint about the length of the proceedings . The file was returned to ORG on DATE .

On DATE an administrative authority submitted observations to ORG .

As indicated above , on DATE the court of appeal upheld the decision of CARDINAL DATE on the mother ’s request for an injunction . The file was returned to ORG on DATE .

On DATE ORG asked the applicant to explain one of his earlier submissions . The applicant replied on DATE . Between DATE and DATE the case was submitted to the court of appeal . The latter found that no request for the exclusion of the judge of the first - instance court had been filed .

On DATE ORG found that the expert was not to be excluded .

On DATE ORG ordered the assessment of the applicant ’s mental health . The expert ’s opinion was submitted on DATE . On DATE the opinion was sent to the parties . On DATE the expert who had submitted an opinion on DATE was requested to supplement it . On DATE that expert informed the court that the child ’s mother had refused to co - operate with him . Subsequently , the mother and the child appeared before the expert and he submitted his opinion on CARDINAL DATE . The opinion was sent to the parties on CARDINAL DATE .

ORG scheduled a hearing in the case for DATE .

The ORG has received no information about any further development in the case .

On DATE the applicant complained to ORG about undue delays in GPE ORG proceedings . He requested that ORG find as follows :

“ GPE ORG violated the applicant ’s right under Article CARDINAL ) of the LAW to a hearing without unjustified delay in proceedings CARDINAL P CARDINAL .

[ ORG ] awards the applicant CARDINAL NORP korunas by way of just satisfaction as well as CARDINAL NORP korunas for costs and expenses . ”

In the reasons for his complaint the applicant also mentioned LAW submitting that he had been prevented from meeting his son for DATE . However , as the applicant did not include this particular complaint in the text of the finding which he requested ORG to make , the relevant domestic law prevented ORG from expressing its view on that issue ( see paragraphs CARDINAL below ) .

On DATE ORG found that the applicant ’s right under LAW ) of the LAW had not been violated .

ORG held , in particular , that the case was complex . The applicant had contributed to the length of the proceedings in that he had repeatedly challenged the expert and the decisions on the expert ’s fees , thus prolonging the period for an overall period of DATE . ORG also took into account that the applicant had belatedly paid the advance on the expert ’s fees .

As to the conduct of ORG , ORG held that the judge had displayed due diligence when dealing with the case . The length of the proceedings was substantially due to difficulties in obtaining an expert opinion . However , the fact that the CARDINAL experts appointed were unable to submit an opinion could not have been foreseen and no unjustified delays could be imputed to ORG on that account . The fact that the judge had not urged the first expert to submit the opinion after the expiry of the time - limit set could not affect the position .

Pursuant to Article ORG ) , courts can issue an interim measure when there is a need to regulate the parties’ situation in a temporary manner or where it is feared that the execution of a judicial decision could be jeopardised .

Article GPE ) provides that a court shall issue an interim measure upon request . Such a request is not necessary where an interim measure concerns proceedings which courts can start of their own motion .

Under LAW courts can start proceedings even in the absence of a request in matters concerning , inter alia , the care of minors .

Section CARDINAL(CARDINAL ) of LAW of DATE provides that a complaint to ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain . Under paragraph CARDINAL of section CARDINAL , ORG is bound by a plaintiff ’s proposal for proceedings to be initiated unless this LAW explicitly provides otherwise .

Pursuant to section CARDINAL(CARDINAL)(a ) , a complaint must indicate , in addition to the information mentioned in LAW , the fundamental rights or freedoms the violation of which the plaintiff alleges .

ORG has declared itself bound , in accordance with section CARDINAL(CARDINAL ) of LAW , by a party ’s submission aimed at initiating proceedings before it . ORG has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined ( see , for example , decisions III . ÚS CARDINAL of DATE or III . ÚS CARDINAL of DATE ) .