Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicant was detained on charges of armed robbery , burglary and assault occasioning bodily injuries .

On DATE a bill of indictment was lodged with ORG ( Sąd Wojewódzki ) . The applicant was indicted on the charges of armed robbery , burglary and assault committed together with CARDINAL other persons .

The court listed hearings for CARDINAL , DATE and DATE but subsequently cancelled all of them because CARDINAL of the applicant ’s co - defendants had failed to appear . On the last of those dates , the hearing was postponed because GPE ( CARDINAL of the co - defendants ) was ill and the court considered it necessary to obtain a medical report determining whether or not he would be able to take part in the trial . The relevant report was received at the court ’s registry on CARDINAL DATE .

DATE ORG set the trial for DATE but , on DATE , it adjourned the hearings since a court interpreter had failed to appear ( PERSON , one of the co - defendants , was of NORP nationality and therefore not able to follow the trial without the assistance of an interpreter ) .

The first hearing on the merits was held on DATE . The court heard evidence from CARDINAL defendants . The trial continued on CARDINAL and DATE . In the course of those QUANTITY hearings , the court heard evidence from other defendants .

The next hearing took place on DATE . During that hearing the applicant unsuccessfully asked the court to remit the case to ORG and order a further investigation with a view of indicting his wife . On DATE , in the course of the next hearing , he made a similar application and stated that if it was not granted , he would not attend hearings . Later , he apologised for his behaviour . A hearing listed for CARDINAL DATE started with a delay because it emerged from a medical certificate made by a prison doctor that the applicant was ill . On DATE the court however decided to proceed with the trial in the applicant ’s absence because , on the basis of another , subsequently obtained medical certificate , it came to the conclusion that he had misinformed the prison authorities as to the state of his health . The trial continued on CARDINAL and DATE and on DATE , DATE . Further hearings were listed for CARDINAL , DATE and DATE DATE . The hearing set for CARDINAL May did not take place because CARDINAL of the co - defendants had not appeared before the court . In the meantime , on CARDINAL DATE , the applicant , relying on his previous record of psychiatric treatment , asked the court to order that he be examined by a psychiatrist .

On DATE the court ordered that evidence be obtained from psychiatrists to establish whether tempore criminis the applicant and CARDINAL of his co - defendants had acted in a state of diminished responsibility . It adjourned the trial to CARDINAL and DATE .

On DATE the court requested ORG of GPE - Mokotów Prison to place the applicant and his co - defendants under psychiatric observation . The applicant underwent that observation from CARDINAL DATE to DATE .

On DATE , DATE , CARDINAL and DATE , CARDINAL DATE and CARDINAL DATE , the applicant asked ORG to release him . He submitted that his detention on remand had meanwhile exceeded DATE and that it was putting a severe strain on his family , especially as his child was ill and his wife and mother needed his help .

ORG examined all those applications on DATE . It dismissed them , holding that the applicant ’s detention should continue in view of the reasonable suspicion that he had committed the offences with which he had been charged and the need to secure the proper conduct of the proceedings . The court also considered that the length of the applicant ’s detention could not in itself be a decisive factor militating in favour of his release . Finally , it added that there were no grounds for releasing him in view of his family situation , in particular under LAW of LAW . In that respect , the court relied on a declaration made by the applicant ’s wife ( who stated that she did not wish to obtain any help from him ) .

The applicant appealed , stressing that his detention on remand had meanwhile exceeded DATE but his trial had only just commenced . On DATE ORG ( Sąd Apelacyjny ) dismissed the appeal in view of the serious nature of the offences with which the applicant had been charged and the need to secure the proper conduct of the proceedings .

Meanwhile , on CARDINAL DATE and on an unknown date in DATE , the psychiatric observations ordered with respect to the applicant ’s co - defendants had been completed . The psychiatrists’ reports were received at the court ’s registry on DATE and CARDINAL DATE , respectively .

On DATE , ORG scheduled hearings for CARDINAL and CARDINAL DATE . It emerged from a subsequent decision of ORG ( Sąd Najwyższy ) of DATE ( see paragraph CARDINAL below ) that those hearings had been cancelled because the applicant ’s co - defendants had “ disorganised the trial ” . In particular , CARDINAL of them had inflicted injuries on himself .

On DATE the applicant challenged the impartiality of the trial court . The challenge was dismissed on DATE .

On DATE and CARDINAL DATE the applicant made further applications for release . They were dismissed on DATE and CARDINAL DATE respectively . The applicant appealed and , on DATE , submitted a medical certificate stating that he suffered from gastric ulcers . Following inquiries into the applicant ’s personal circumstances and his family ’s situation made by the relevant courts , the contested decisions were eventually upheld on appeal . The courts reiterated the grounds previously given for the applicant ’s continued detention .

On DATE ORG held a hearing . However , the composition of the panel of the court had to be changed because CARDINAL of the judges had meanwhile withdrawn from the case . In consequence , the newly - composed trial court had to rehear evidence that had to date been obtained . The trial continued on CARDINAL , DATE . On DATE the court , considering that the applicant behaved in a disorderly manner ( he apparently interrupted the process of obtaining evidence from experts ) ordered that he be temporarily removed from the court room . A hearing listed for DATE was postponed to CARDINAL DATE because CARDINAL of the applicant ’s co - defendants had failed to appear . In the course of the hearing held on DATE the applicant for the second time challenged the impartiality of the trial court .

On DATE the applicant asked the court to release him . On DATE he lodged another application for release . The court dealt with his applications on DATE and dismissed them , holding that there were no grounds for releasing him under LAW

In the meantime , on DATE , ORG had made an application under LAW CARDINAL § CARDINAL of the Code of Criminal Procedure to ORG , asking it to prolong the applicant ’s and his co - defendants’ detention on remand until DATE , i.e. beyond the statutory time - limit set in such cases . ORG considered that the prolonged psychiatric observation of CARDINAL of the co - defendants , the need to obtain evidence and the fact that CARDINAL co - defendant had gone on a hunger strike and had inflicted injuries on himself fully justified the opinion that the defendants had deliberately obstructed the termination of the proceedings within the statutory time - limit and , consequently , gave sufficient grounds for extending their detention . Referring to the applicant , the court held that he had , by his conduct , obstructed the termination of the proceedings . It did not specify how the applicant prevented completion of the trial .

ORG examined that application on DATE . It prolonged the applicant ’s and his co - defendants’ detention on remand until DATE .

The trial was to continue on DATE but DATE for unknown reasons – it was postponed to a later date .

On DATE the applicant – again unsuccessfully – challenged the impartiality of the trial court .

The trial continued on CARDINAL , DATE and DATE . On DATE the court gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment and a fine of MONEY .

The applicant appealed against his first - instance conviction in DATE . ORG dismissed the appeal on DATE .

At the material time the rules governing detention on remand were contained in LAW of LAW of DATE - Code of Criminal Procedure ( ORG postępowania karnego ) entitled " Preventive measures " ( “ NORP zapobiegawcze ” ) . The LAW is no longer in force . It was repealed and replaced by LAW ( commonly referred to as the “ LAW ” ) , which entered into force on DATE .

The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

Article CARDINAL set out the general grounds justifying imposition of the preventive measures . This provision read :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined grounds for detention on remand . This provision , in the version applicable until DATE , provided , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .

On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :

“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL provided :

“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”

The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of those measures , are considered adequate . ”

The provisions for “ mandatory detention ” ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the LAW DATE on LAW to LAW and Other Criminal Statutes .

Finally , Article CARDINAL stipulated :

“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :

( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”

Until DATE , i.e. the date on which the relevant provisions of the LAW une DATE ( see also “ Amendments to criminal legislation ” above ) entered into force , there were no time - limits for detention on remand in the court proceedings . From that date on , LAW laid down such time - limits . It read , in so far as relevant :

” CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences [ offences for the commission of which a person is liable to a sentence of a statutory minimum of DATE imprisonment ] this period may not exceed DATE .

NORP In particularly justified cases ORG may , on the application made by the court competent to deal with the case , ... prolong detention on remand for a further fixed period exceeding the time - limits set out in DATE and DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

On DATE , by virtue of the Law of DATE , paragraph CARDINAL of Article CARDINAL was amended and the grounds for prolonging detention beyond the statutory time - limits included also :

“ ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... ”


The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in FAC in GPE . They are represented before the Court by Mr PERSON , a lawyer practising in Bad PERSON . The respondent Government are represented by PERSON , PERSON , of ORG .

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

The second applicant is the first applicant ’s son , born out of wedlock on DATE . The first applicant , who had full parental authority , raised the second applicant together with his CARDINAL - sister J. , born in DATE . J left the first applicant ’s household in DATE .

From DATE onwards the first applicant experienced difficulties in educating the second applicant , who showed signs of aggressiveness and refused to follow orders . From DATE to CARDINAL DATE the second applicant was placed in a psychiatric institution for children and adolescents .

Upon medical advice , the second applicant started ambulant therapy which was discontinued because the first applicant did not agree with the educational methods applied .

In DATE further major difficulties arose when the second applicant had been caught smoking , lying and stealing from the first applicant . The first applicant considered placing the second applicant into an after - school care centre , but refrained , when ORG ( ORG ) refused to cover the costs as the first applicant was unwilling to disclose her financial situation . The tensions between the applicants persisted .

On DATE a serious dispute broke out between the applicants when the second applicant refused to help his mother in gardening . The second applicant absconded and only returned in TIME . On his return , he fell and incurred a laceration on his head which had to be sewn with CARDINAL stitch .

On DATE the conflicts resumed . The second applicant absconded and cycled to his CARDINAL - sister J. That same afternoon , the first applicant and PERSON called upon the police in order to achieve a settlement on where the boy should stay for TIME . Following an exchange of views , the second applicant agreed to return to the first applicant .

The conflict between the applicants continued as the second applicant insisted on his wish to stay with ORG DATE the first applicant drove the second applicant to J. ’s place . Subsequently , she informed ORG about the second applicant ’s whereabouts .

On DATE J. , who felt unable to cope with the situation , requested ORG assistance .

On DATE ORG requested ORG ( ORG ) to withdraw parental authority from the first applicant . Relying on the statements made by J. and her partner , ORG submitted that the second applicant had been repeatedly beaten by the first applicant . In the course of the arguments which took place on CARDINAL DATE , the first applicant hit the second applicant on the fresh wound . On DATE the first applicant had stated that the second applicant should stay for DATE with J. , while she was leaving on vacation .

By interim order of DATE ORG , without hearing either of the applicants , temporarily withdrew the first applicant ’s parental authority over the second applicant pursuant to section DATE of LAW ( Bürgerliches Gesetzbuch , see relevant domestic law below ) and transferred it to ORG . ORG found that the second applicant ’s physical well - being was jeopardised by an abuse of parental authority and that ORG had to take the necessary steps to avert this danger , in particular by ensuring medical treatment and accommodation . Due to the urgency of the matter it had not been possible to hear the first applicant before taking this decision .

ORG placed the second applicant in a foster family for short - time accommodation . On DATE the second applicant was placed with the foster family PERSON On that same date ORG issued a certificate to the foster family according to which the second applicant ’s placement was planned as a permanent measure ( “ PERSON ist auf Dauer angelegt ” ) .

On DATE the first applicant , who was represented by counsel , lodged a complaint against the interim order .

On DATE , DATE and CARDINAL DATE ORG heard both applicants as well as J. and her partner .

On DATE ORG transferred the case - file to ORG ( ORG ) to rule on the first applicant ’s appeal against the interim order .

On DATE the presiding judge of ORG heard the second applicant in the foster family ’s household . According to the TIME drafted by the presiding judge , the second applicant declared that he felt at ease with the foster family and that he enjoyed a good relationship to the other foster child and , in particular , to the foster GPE grown - up son . With regard to the incident which led to the withdrawal of parental authority , the second applicant declared that he did not wish to talk about this and did not quite remember the details . He had left his mother ’s household because of the many arguments and beatings he had received . On his return , he had incurred the wound on his head . Some time later he had been beaten again . He further confirmed having given a faithful account of the incident to ORG judge .

When questioned if he had had sufficient time to settle down during DATE , and if he wished to see his mother , the second applicant replied that he did not wish any personal contact to his mother . Even if his mother should promise that everything would change from now on , he was afraid that she would continue beating him and threatening him with sending him away or placing him in a psychiatric hospital .

On DATE ORG held a hearing in the presence of the first applicant , the first applicant ’s counsel and a representative of ORG .

On DATE ORG rejected the first applicant ’s appeal . That court found , firstly , that the withdrawal of parental authority had been in accordance with the pertinent provisions of sections DATE and CARDINAL of LAW . The events of DATE , which had been confirmed by both the second applicant himself , his sister J. and her sister ’s partner , justified the taking of measures relating to guardianship . There were substantial indications for an abuse of parental authority , which justified the assumption that there was a serious danger for the child ’s welfare .

With regard to the present situation , ORG found that there was no reason to revoke or to modify the impugned decision . There remained serious indications that the child ’s well - being would be jeopardised if he returned to the first applicant ’s household . The second applicant had repeatedly stated that he had frequently been slapped by his mother . Even if this was not regarded as a decisive factor , the child ’s well - being would be jeopardised by the first applicant ’s deficiencies in parenting . The first applicant had conceded that she experienced serious educational difficulties . She had failed to resolve these problems by use of adequate educational measures or by availing herself of public assistance . The basis of confidence between mother and child was seriously disturbed . This had become obvious when the second applicant , during the hearing before ORG , had expressly declared that he presently did not wish any contact to his mother . There was no indication that the applicant had been influenced by third persons when expressing this wish .

It was currently not possible to avert the danger by alternative means , such as external assistance , as the second applicant refused any cooperation with ORG .

On DATE the first applicant lodged a further complaint ( PERSON ) against ORG decision , which she withdrew on DATE .

On DATE the counsel PERSON , who acted on behalf of the first applicant , was granted access to the case files of the custody and access proceedings .

On DATE the first applicant lodged a motion for bias against ORG judge , which was rejected by ORG on DATE . On DATE the applicant lodged a further complaint , which was rejected by ORG ( Oberlandesgericht ) on DATE .

On DATE the case - file was returned to ORG .

On DATE the applicant lodged a complaint for inactivity ( ORG ) against ORG .

On DATE ORG , in the main proceedings , ordered the preparation of an expert opinion as to whether the second applicant ’s physical , mental or psychological well - being was jeopardised by an abuse of parental authority , by neglect or by the mother ’s failure through no fault of her own . It further appointed a curator ad litem to represent the second applicant .

On DATE the first applicant lodged a complaint against the appointment of the curator ad litem .

On DATE the first applicant requested the court to discharge the court - appointed expert on grounds of bias .

On DATE ORG decided that the applicant ’s complaint for inactivity had been disposed of , as ORG had in the meantime taken measures to promote the proceedings by its decision of DATE .

On DATE the applicant lodged a further complaint for inactivity .

On DATE , in a public hearing before ORG , the applicant withdrew her complaint against the appointment of a curator ad litem .

On DATE the case file was returned to ORG .

On DATE ORG informed the parties that it intended to appoint the new expert PERSON On DATE the first applicant informed ORG that she opposed any further examination .

On DATE ORG appointed the expert PERSON

On DATE the applicant lodged a motion for bias against the expert PERSON , which was rejected by ORG on DATE .

On DATE the applicant lodged a further complaint for inactivity against ORG judge .

On DATE the first applicant lodged a further motion for bias against ORG judge .

On DATE the applicant lodged a motion for bias against several judges of ORG and of ORG .

On DATE ORG rejected the applicant ’s further complaint against the rejection of the applicant ’s motion for bias against the expert .

On DATE ORG rejected the first applicant ’s complaint for inactivity on the grounds that ORG judge had not been entitled to take any procedural actions – with the exception of those which could not be delayed DATE as long as the motion for bias brought out against her by the applicant was still pending .

On DATE the first applicant lodged a further appeal against ORG decision of DATE .

On DATE ORG ( ORG ) rejected the applicant ’s further appeal as inadmissible .

On DATE ORG , sitting as a chamber of CARDINAL judges , rejected the first applicant ’s motion for bias against ORG judge . Having analysed the entire case file , that court considered that there was no indication that ORG judge had failed in her professional duties . With regard to the allegation that the judge had delayed the proceedings , ORG found as follows :

“ The mother ’s allegations , according to which the judge had violated her duties , in that she had , in particular , failed sufficiently to examine the case and that she had stayed inactive , are completely absurd . On the contrary , the judge attempted intensively to promote the proceedings and accurately to examine the facts in order to gain a stable basis for reaching her decision . Conversely , the mother and her counsels have delayed the proceedings by lodging various procedural requests , both admissible and inadmissible appeals and other motions , including rejections on grounds of bias , administrative complaints , criminal informations for perversion of justice and petitions ... ”

On DATE the second applicant absconded from the foster family in order to avoid a meeting with a ORG official . He returned to his home - town ORG were he was seized by the police on CARDINAL DATE .

On DATE , during a hearing before ORG , the parties agreed that the second applicant should be allowed to visit the first applicant and subsequently return to the foster family . DATE the second applicant declared that he wished to remain in the first applicant ’s household .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the first applicant ’s constitutional complaint against the decisions of DATE and DATE .

On DATE the Lauterbach ORG , following a further hearing , revoked its decision of CARDINAL DATE and restored parental authority to the first applicant . It noted that the second applicant had declared that he wished to stay with his mother and that both ORG and the child ’s curator ad litem had agreed that parental authority should be restored to the applicant .

On DATE the first applicant requested to be granted by interim order the right to supervised visits on a DATE basis and to oblige ORG to submit regular reports on the second applicant ’s personal and school development . She complained that she had been denied access to her son since DATE .

On DATE ORG ordered the preparation of an expert opinion concerning the question if and to what extent the first applicant should be granted visiting rights .

On DATE the applicant requested ORG to withdraw the court - appointed expert F , as she appeared to be biased against her .

On DATE ORG rejected the applicant ’s motion for bias .

On DATE the psychological expert F submitted her expert opinion . She considered that the second applicant had experienced several times that his mother had threatened to give him away or had indeed given him away , for example by placing him in a psychiatric hospital or with his sister . As the second applicant emotionally and socially depended on his mother , this situation appeared to threaten his existence . This was aggravated by the fact that he did not have any positive memories of his biological father and that the contacts to his sister , as an important confidant , had been restricted by his mother . The second applicant tried to overcome this emotional and existential insecurity by accepting the foster family as the new centre of his life in order to become independent from his mother . When exposed to strong psychological pressure , the second applicant tried to avoid the situation or showed auto - destructive reactions , such as a suicide attempt in DATE .

The applicant ’s wish not to see his mother had to be regarded as an attempt to distance himself . This wish had to be taken seriously . It was thus not appropriate to impose contacts against the second applicant ’s wishes . The expert recommended offering both applicants psychological support in order to enable them to understand the situation and to find solutions to the conflict .

On DATE ORG scheduled an oral hearing for DATE .

On DATE the applicant informed ORG that she requested a decision on the further complaint she had lodged on DATE against the rejection of her motion for bias against ORG judge lodged in the custody proceedings .

On DATE the applicant lodged a complaint against the rejection of her action for bias against the court - appointed expert .

On DATE ORG cancelled the hearing on DATE with regard to the applicant ’s further complaint regarding the motion for bias against the judge .

On DATE ORG rejected the applicant ’s complaint against the rejection of the motion for bias against ORG judge .

On DATE the ORG heard the expert , both applicants , and the foster mother . According to ORG minutes , the first applicant agreed that a psychological expert be commissioned in order to prepare the ground for contacts between the first applicant and , firstly , the foster family , and , subsequently , the second applicant .

On DATE the court - appointed psychological expert W informed ORG that there had been a misunderstanding between the parties . While the first applicant expected to see her son under the expert ’s supervision , the foster family expected that the meetings took place between the first applicant and the foster parents , without the child ’s direct involvement . The first applicant did not wish to meet the foster parents . When the expert tried to meet the second applicant , the foster parents informed her that the child should be given the chance to settle down and that the child ’s psychotherapist considered that meetings should not begin before DATE .

On DATE ORG judge requested ORG to assure that the foster parents did not prevent the expert from meeting the child .

On DATE the expert W informed ORG that she did not see a possibility to carry out her task , as the foster parents refused her access to the child and were supported by the child ’s psychotherapist .

On DATE the applicant lodged an action for inactivity against ORG judge .

On DATE ORG rejected the first applicant ’s request to be granted the right to visit the second applicant . It further ordered ORG to inform the first applicant regularly about the child ’s development .

ORG noted that the second applicant had repeatedly declared both before ORG and before ORG that he did not wish to see his mother , as he was afraid of being once again beaten by her . ORG concluded that the second applicant , who had matured according to his age , seriously and understandably opposed to visits . Under these circumstances , it was impossible to impose visits against his will . Before the background of the family conflicts and the circumstances which led to the withdrawal of parental authority , this would be contrary to the child ’s best interests . ORG further noted that the psychological expert F had found that the second applicant ’s wish to distance himself from his mother had to be taken seriously .

This finding was confirmed by ORG own impression during the oral hearing of CARDINAL DATE . As the second applicant did not feel up to meet his mother , there was ground to fear that forced visiting contacts in the near future would lead to serious damages to his psychological stability and development .

On DATE the first applicant lodged a complaint .

On DATE ORG rejected the first applicant ’s complaint against the alleged inactivity of ORG on the ground that ORG had promoted the proceedings by its decision of DATE .

On DATE the first applicant lodged an administrative complaint against ORG judge .

On DATE the first applicant laid a criminal information against ORG judge .

On DATE the judge rapporteur of ORG heard the first applicant and a representative of ORG . During the hearing , the judge phoned the second applicant ’s psychotherapist and arranged a meeting with the applicants for DATE in the psychotherapist ’s offices .

On DATE and DATE the judge rapporteur arranged and attended CARDINAL meetings between the applicants .

On DATE ORG held another hearing with the aim of arranging further meetings between the applicants . According to the court minutes , the rapporteur explained the second applicant that he had to abide by certain social rules and that he would not suspend the first applicant ’s access rights . The second applicant firmly objected to any further meetings with his mother . Upon suggestion of the second applicant ’s curator ad litem , a further meeting between the applicants and the judge rapporteur was scheduled for DATE .

The second applicant did not appear at the meeting .

On DATE and CARDINAL DATE the curator ad litem informed ORG that the second applicant was presently opposed to any personal contacts with his mother .

On DATE the foster parents informed ORG that the second applicant continued to oppose any contact to his mother , in spite of the joint efforts made by themselves , ORG and the psychotherapist to convince him otherwise . It appeared that the second applicant could not stand the psychological pressure , as was demonstrated by the fact that he had absconded before the scheduled meeting and that his problems at school had aggravated since DATE .

On DATE the first applicant lodged a constitutional complaint about the length of the proceedings relating to custody and access rights , which was rejected by ORG on DATE .

On DATE ORG rejected the first applicant ’s complaint and suspended her access rights until the termination of the main proceedings on parental authority before ORG , or until DATE at the latest .

ORG observed , at the outset , that a parent ’s right of access to his or her child was protected by LAW . If it was not possible to find an agreement on visiting contacts , the courts were called upon to reach a decision which respected both the constitutionally guaranteed rights of the parent DATE in the present case the mother – and the child ’s welfare . The remainder of the decision reads as follows :

“ In the course of the instant proceedings , a curator ad litem was appointed pursuant to section CARDINAL of the Law on Non - Contentious Proceedings , and both PERSON and the applicant were repeatedly heard by the rapporteur ( see TIME of the hearings held on DATE , DATE , DATE and CARDINAL DATE ) . It became clear during all the personal hearings that PERSON presently does not wish any contacts to his mother and that he only took part in the meetings because these had been ordered by the court . This is not disproved by the fact that PERSON ’s second meeting with his mother , which took place on DATE , was less tense than the previous meeting on DATE . The child expressed during all the hearings that he felt at ease in the foster family , where he felt understood . Conversely , his attitude demonstrated that he did not have any confidence in his mother , but was sceptical towards her . He frequently declared that his mother was only lying to him . The present rejection of his mother culminated when PERSON absconded on the date of the third scheduled meeting on DATE . The senate acknowledges that this meeting was scheduled by the rapporteur against PERSON ’s will during the hearing on DATE . The rapporteur , the foster parents and the curator hoped that PERSON would attend that meeting because of the court order . PERSON ’s resistance , which was expressed by his running away , induces the senate to fear that it would lead to uncontrollable actions , including auto - aggressiveness , if he was forced to further personal contacts .

The mother ’s right to personal access has to cede in view of this irrational behaviour . The senate acknowledges that the right to personal access forms part of the natural parental rights and of the parental responsibility . However , this right meets its limit at a point where there exists the danger of the child ’s causing damage to himself ( see section DATE of LAW ) .

The rapporteur has tried to re - establish personal contacts between mother and child and arranged several meetings . [ The rapporteur ] tried to convince the mother to refrain from raising reproaches against third persons ( curators , foster parents , experts , therapists , judge , PERSON ’s CARDINAL - sister ) , and to try instead to keep these questions away from PERSON and to accept during the conversation with her child that the latter presently lived with the foster family , where he felt at ease . During the hearings held on DATE and DATE this strategy succeeded as long as the rapporteur was present and controlled the course of conversation . The mother ’s behaviour during TIME she spent alone with PERSON led to defence reactions , he closed himself up and did not see any other resort than running away .

Having regard to the above , the mother ’s complaint had to be rejected as being unfounded . It is presently only possible to stabilise the child if PERSON is not forced to any personal contact with his mother and if he is given the opportunity to stabilise himself in an environment which he considers as safe .

The senate considers that access rights have to be suspended for a longer period of time , as the pressure the child is exposed to in the course of the proceedings on parental authority requires protecting him for DATE . Taking into account that PERSON ’s individual rights are limited by the parental rights and that he is obliged to respect his mother ’s right of access to him , it appears appropriate to limit the suspension of access rights until the end of custody proceedings , or at the latest until DATE . ”

This decision was served on the applicant ’s counsel on CARDINAL DATE .

By telefax of DATE the first applicant lodged a constitutional complaint .

On DATE an administrative officer of ORG informed the applicant that her constitutional complaint appeared to have been lodged out of the statutory time - limit of DATE , as the original version and annexes reached the constitutional court only on DATE .

On DATE ORG refused to admit this constitutional complaint for adjudication without giving any reasons .

Since DATE the second applicant stayed with his natural father . On DATE ORG transferred parental authority from the first applicant to the second applicant ’s father .

On DATE , following the first applicant ’s complaint , ORG decreed that parental authority remained with the first applicant and ordered the father to return the child .

( CARDINAL ) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them . The ORG watches over the performance of this duty .

( CARDINAL ) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law , if those so entitled fail in their duty or if the children are otherwise threatened with neglect . ”

Section CARDINAL § CARDINAL of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical , mental or spiritual welfare of a child caused by an abusive exercise of parental custody , by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers .

Pursuant to section QUANTITY CARDINAL of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including assistance by public authorities .

The second sub - paragraph of Article CARDINALa provides :

“ Full [ parental ] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger . ”

According to section DATE of LAW , a child is entitled to have access to his or her parents ; each parent is obliged to have contact with , and entitled to have access to , the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare .

A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s well - being would be jeopardised ( section DATE ) .


Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE . He is serving a sentence in the PERSON prison .

On DATE the applicant was apprehended by the police as he was suspected of having murdered a taxi driver . Criminal proceedings were brought and the applicant was detained on remand in that context .

The main hearing before ORG was held on DATE . In his final speech the applicant requested , inter alia , that he should be released from detention . On DATE the ORG convicted the applicant of murder and of the unauthorised carrying of a weapon and sentenced him to DATE imprisonment . Neither the judgment nor the minutes mentioned the applicant ’s request for release . In terms of domestic law the applicant continued being detained on remand until the final effect of the judgment leading to his conviction .

On DATE and on DATE the applicant appealed against ORG judgment .

NORP In a letter dated CARDINAL DATE the applicant informed the presiding judge of ORG that he maintained his request for release from detention on remand of DATE .

On DATE ORG dismissed the appeal . The judgment convicting the applicant became final on DATE .

On DATE and on DATE respectively the president of ORG and ORG admitted , in reply to the applicant ’s complaint , that no decision had been taken on his application for release lodged at the hearing before ORG on DATE .

Article CARDINAL ) provides that an accused person has the right to file an application for release from detention on remand at any time . Such an application has to be decided upon without delay . Where such an application was dismissed , the accused can renew it DATE after the relevant decision has become final unless the application is based on different reasons .


The applicant , PERSON , is a NORP national who was born in DATE and lives in Solkan .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .

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

On DATE the applicant and her CARDINAL relatives lodged a request for restitution of the expropriated building and a compensation for the nationalised plot of land . Apparently , she made a similar request on DATE .

On DATE GPE ( PERSON , “ the GPE ” ) rejected the applicant ’s claim for restitution because the previous owner , the applicant ’s brother - in - law , was not a citizen of GPE at the time of the expropriation .

The applicant appealed to ORG ( Ministrstvo za okolje in prostor , “ the Ministry ” ) .

On DATE the ORG dismissed the appeal .

At an undetermined time , the applicant instituted administrative proceedings in ORG sodišče ) against the Ministry contesting its decision of CARDINAL DATE .

On DATE the court upheld the applicant ’s claim and annulled the ORG ’s decision on procedural grounds . ORG subsequently re - examined the case .

On DATE the Ministry annulled the LOC ’s decision and remitted the case for fresh consideration .

On DATE the Convention took effect with respect to GPE .

On DATE the Municipality again rejected the applicant ’s claim because the applicant ’s brother - in - law , was not a citizen of GPE and because her husband was not the owner of the property sought . The decision was served on the applicant on DATE .

On DATE the applicant appealed to ORG .

On DATE the ORG dismissed the appeal . The parties to the proceedings did not contest the ORG ’s decision .

On DATE , following the judgment of ORG in another set of proceedings ( see below paragraphCARDINAL ) , the applicant lodged a request for reopening of the proceedings concerning the restitution of building .

On DATE ORG v PERSON , “ the Unit ” ) rejected the applicant ’s request to reopen the denationalisation proceedings to declare her deceased husband a beneficiary of restitution .

On DATE the applicant appealed to ORG .

On DATE the ORG allowed the appeal , annulled the ORG ’s decision , and allowed the reopening of the proceedings .

On DATE the ORG granted the applicant ’s claim and awarded the applicant compensation for expropriated property . It rejected her claim for restitution in natura .

On DATE the applicant appealed to ORG .

On DATE the Ministry dismissed her appeal .

On DATE the applicant instituted an administrative dispute in ORG ( ORG sodišče ) , contesting the decision of DATE .

On DATE the court dismissed the applicant ’s claim .

On DATE the applicant appealed to ORG .

On DATE the court dismissed the appeal .

The judgment was served on the applicant on DATE .

In the meanwhile , on DATE the applicant and her family instituted civil proceedings with ORG ( ORG sodišče v PERSON ) against the applicant ’s relatives who were her co - plaintiffs in the proceedings before GPE . The applicant claimed that her deceased husband and not her brother - in - law had been the owner of the expropriated building .

On DATE the court issued a judgment finding that the applicant ’s husband was the owner of the nationalised building . The judgment became final on DATE .

On DATE ORG delivered a judgment in another set of proceedings to which the applicant was a party . The court decided that the applicant ’s husband was the owner of the nationalised plot of land .

On DATE , following the judgment of DATE , the applicant sought restitution of this plot of land .

On DATE the ORG upheld her claim in part and ORG ( Slovenska odškodninska družba ) was ordered to pay compensation to the applicant .

On DATE ORG appealed to ORG .

On DATE the Ministry allowed the appeal , decreased the amount of compensation awarded to the applicant and remitted a part of the case to the Unit for fresh examination .

The proceedings are still pending .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving his prison sentence in the Muş F - type Prison . ORG ( “ the Government ” ) are represented by their Agent .

On DATE the applicant wrote a petition to ORG and requested his transfer to ORG , where PERSON was imprisoned . On DATE ORG found the applicant guilty of making propaganda in favour of an illegal organisation and sentenced him to DATE solitary confinement . The applicant 's appeal requests were rejected on DATE and DATE respectively by the Enforcement Judge and ORG .