Giovanni Bonello;Javier Borrego Borrego;Kristaq Traja;Lech Garlicki;Nicolas Bratza

The applicant lives in FAC di GPE , GPE .

NORP In DATE the applicant married a NORP national GPE In DATE PERSON gave birth to their first daughter A. In DATE the second daughter , B , was born . The family lived in GPE .

In DATE PERSON took A and B on holiday to GPE . Subsequently , she failed to return to GPE with the children and they remained in GPE .

In DATE GPE filed with ORG an application for divorce .

On DATE the applicant applied to ORG designated as a central authority under LAW ( “ LAW ) – for assistance in securing the return of the children .

On DATE ORG allowed an application submitted by the applicant and made an interim order granting him custody of A and B.

NORP On DATE the ORG made an interim order requiring A and B to remain in GPE during the proceedings concerning the application for their return .

On DATE the applicant asked ORG to grant him visiting rights .

On DATE the ORG allowed the application and granted the applicant visiting rights . In particular , the court granted him the right to visit his children CARDINAL times a month and to take them outside the flat in which they lived . GPE appealed against this decision but her appeal was dismissed on DATE . However , she interfered with the applicant 's visiting rights and in the course of DATE he had to be assisted on CARDINAL occasions by police officers in order to enforce his visiting rights .

On DATE the ORG dismissed GPE 's request that the case concerning the return of the children be either joined to the divorce case or stayed . The court gave the following reasons for its decision :

“ Pursuant to LAW after receiving notice of a wrongful removal or retention of a child within the meaning of LAW , the judicial or administrative authorities of ORG to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under LAW . That is why the court has informed ORG that it is necessary to stay proceedings in the divorce case . ”

At the hearing held on DATE the court decided to order an expert opinion .

On DATE the Poznań Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno - Konsultacyjny ) submitted to the ORG an expert opinion in reply to the court 's inquiry whether the wellbeing of A and B would be threatened by their return to their father in GPE . The opinion ended with the following conclusions :

“ CARDINAL . The well - being of [ A and B ] will not be threatened if they are returned to GPE together with their mother . Reuniting the children only with their father would result in repeating an abnormal situation prevailing at the moment . Moreover , in view of the age of the children , and in particular the age of [ B ] , depriving them of the permanent presence of their mother would lead to the inability to fulfil their development needs concerning the mother ;

NORP the possibility of leaving the children in the custody of their mother in GPE should only be considered if their father could be guaranteed more significant participation in their lives , including contact without the participation of other persons . However , the attitude of the mother does not guarantee that such a right and the needs of the children would be secured . ”

On DATE the ORG allowed an application for the return of the children lodged by the applicant and ordered GPE to return them to the applicant . The court considered that the removal of A and B had been wrongful under LAW .

GPE appealed against this decision to the ORG .

On DATE ORG granted the applicant the custody of A and B and ordered that they be returned to GPE .

On DATE the ORG held hearings . On DATE it allowed an appeal lodged by GPE , quashed the decision of DATE and remitted the case to ORG .

On DATE the court held a hearing at which it ordered that a new expert opinion be prepared .

On DATE the Poznań Family Consultation Centre submitted to the ORG the expert opinion , which ended with the following conclusions :

NORP The return of the children to GPE without the mother will be difficult for them as it will be damaging . However , we should point out that such damage is experienced by children who grow up separated from one of their parents . That is why in our previous opinion we suggested as the best solution the return of the girls to GPE together with their mother ( ... ) .

As to the scope of damage caused to the minors by their return to GPE without their mother , we are of the view that :

- there is no danger of physical damage because the living conditions in GPE guaranteed by their father are proper ( ... ) ;

- the minors have emotional bonds with their mother and they will suffer because of her absence – it will be impossible for them to fulfil their development needs related to the mother , and this will cause them psychological damage .

The assessment of all the problems of the children caused by their return to GPE without the mother leads us to the conclusion that it will not expose them to irreparable damage because :

- they are going back to their father with whom they have emotional bonds ;

- they have a feeling of belonging to him and he used to play an important role as a parent . ( ... ) ;

- they are going back to the environment which is familiar to them as they grew up in it and this will facilitate their adaptation ;

- [ B ] is reaching the age in which contacts with peers become important and her needs can no longer be fulfilled only in the family ; the role of the father also becomes more important at that age ;

- the possibility of adaptation of [ A ] is even greater than her younger sister 's as she concentrates on problems related to her school life . ( ... ) ;

- both minors ' psychological and physical development is good and they do not require special conditions for their development .

Both minors are of a young age and have not reached a degree of maturity which would allow their opinions to be taken into account concerning the choice of the parent with whom they would like to live . In addition to the lack of maturity of the minors , the value of such opinions would be doubtful because of the influence to which they are presently subjected ( ... ) .

On DATE ORG submitted an additional expert opinion . The experts were heard on DATE .

On DATE the ORG again allowed an application for the return of the children lodged by the applicant and ordered GPE to return them to the applicant . The court considered that GPE had unlawfully abducted the children . It also observed that :

“ the court also draws the attention to the fact that [ GPE ] does not obey the law in GPE as she does not comply with a final court decision concerning the father 's contacts with the children ( she does not allow the father to take the children away from their place of residence ) . Therefore , the children can not stay with their father and he can not participate in their education . ”

The court would also point out that the applicant 's behaviour does not disclose contempt of court . His bitter words directed at the justice system were caused by the despair and bitterness of a father and were justified since the proceedings in the present case have already lasted DATE and [ GPE ] still does not comply with the court decision granting him visiting rights . ”

GPE appealed against the decision of DATE but on DATE the ORG dismissed her appeal . On DATE the court declared that the decision was enforceable ( klauzula wykonalnosci ) .

GPE lodged a cassation appeal against the decision of DATE . However , it was rejected on the basis that it was not provided for by the law .

On DATE the applicant requested the enforcement of the final decision of CARDINAL DATE . On DATE the court 's bailiff requested GPE to return the children to the applicant within DATE . On DATE the court ordered the bailiff to enforce the court 's decision . Since GPE failed to comply , on DATE , the bailiff discontinued the proceedings .

On DATE the ORG dismissed GPE 's application in which she requested that the final decision should not be enforced .

On DATE the ORG ordered a court guardian ( kurator sądowy ) to forcibly remove A and B from GPE under LAW .

On DATE CARDINAL guardians , assisted by police officers and accompanied by a representative of the NORP embassy , visited CARDINAL different houses looking for A and PERSON The applicant was also present . The children were not found at any of those locations . Despite some indications that the children could have been in the second house visited , the police officers refused the guardians ' request to enter the house since they did not have a search warrant .

On DATE GPE appealed against the enforcement order of CARDINAL DATE but on DATE her appeal was rejected as it was not provided for by the law . Her appeal against the latter decision was dismissed on DATE .

On DATE the court guardian requested the ORG to institute criminal proceedings against GPE on charges of abduction according to LAW .

GPE filed with ORG an application challenging judge PERSON but it was finally dismissed on DATE .

On DATE CARDINAL guardians assisted by police officers and accompanied by a representative of the NORP embassy attempted to enforce the court 's order . GPE and the children were not found in the house they visited .

On DATE and DATE the guardian informed the court that her attempts to obtain information about the children were still unsuccessful . On DATE the guardian asked whether A had been attending a particular school . On DATE the Director of the school confirmed that GPE had paid for tuition , however due to illness A had not been attending classes .

On DATE the police informed the court of the address where A and B were staying with their mother . The court guardian went to this address on DATE but the children were not there .

Apparently , on DATE PERSON proposed a friendly settlement with the applicant . He refused .

On DATE the court guardian attempted to remove the children from the last known address but there was no sign of them again .

On DATE the ORG ordered that the children be taken by the court guardian at any time . On DATE the guardian unsuccessfully tried to enforce the order .

NORP In DATE ORG requested several institutions to submit information about the whereabouts of GPE and the children .

On DATE the ORG discontinued the criminal proceedings against GPE on charges of abducting and hiding A and B because she considered that the abduction and hiding were of “ minimal social harm ” ( społeczna szkodliwość czynu jest znikoma ) .

On DATE the ORG dismissed an appeal by the applicant against the prosecution service 's decision of CARDINAL DATE to discontinue the criminal proceedings against GPE on charges of abduction and hiding of A and B.

On DATE CARDINAL guardians , assisted by police officers and accompanied by a representative of the NORP embassy , went to a property situated in GPE in order to enforce the court order . The property consisted of a house and a plot of land located in a forest and belonging to the local forest warden . It was surrounded by police officers . GPE , her sister and A and B were inside the house . When guardians entered the house A said that she did not want to be reunited with her father and GPE used insulting language with respect to the applicant and the court which had ordered the return of the children . Subsequently , the guardians called an ambulance . After a doctor had examined A and B , the guardians decided that they would not enforce the court order . The guardians , the police officers and the representative of the NORP embassy left the property .

Immediately after the attempt to remove the children , GPE left with A and B and remained in hiding at least until DATE . Since then they have been living in GPE 's father 's house in P. , where the children attend schools .

On DATE the ORG suspended the enforcement proceedings concerning the return of the children to the applicant . The court gave the following reasons for its decision :

“ On DATE the ORG ( ... ) made an order in a case ORG CARDINAL/CARDINAL ordering [ GPE ] to return the minors [ A and B ] to their father [ P.P. ] who lives in GPE . The order was made on the basis of LAW on the Civil Aspects of International Child Abduction .

The order was appealed . On DATE ORG dismissed appeals lodged by [ GPE ] and ORG . The order is final and enforceable .

[ GPE ] has been in hiding with the children for DATE and she makes it impossible to enforce the order . She has recently returned to her original place of residence and she has lodged an application under LAW to reject [ ORG ] request to return the children .

The court has doubts whether it is possible to change an order made under LAW and to give a contradictory decision under LAW . In view of these doubts the court has decided to submit the case ( ... ) to ORG as it raises serious doubts .

At the same time , the court has stayed the enforcement until the final ruling in the case . ”

On DATE the ORG dismissed an appeal by the applicant against the decision of DATE .

On DATE the ORG refused ORG request of DATE and returned the case to ORG . The court considered that it was possible to change the court 's order to return minors but such proceedings must be based on LAW and decided in the light of the principles embodied in LAW . In particular , the change of the order could not be a consequence of the authorities ' failure to take all the measures that could reasonably be expected to enforce the order .

On DATE the ORG decided that the enforcement proceedings would be stayed until DATE final ruling on GPE 's application to change the court order requiring her to return the children to the applicant .

On DATE the ORG held a hearing in the proceedings concerning GPE 's application to change the court order concerning the return of the children . At this hearing the court heard evidence from GPE

DATE . On DATE the applicant asked the court to determine his contact with the children . At the hearing held on DATE the parties agreed that the applicant would have a right to CARDINAL phone calls DATE with A and B. This order was amended on DATE by ORG , which decided that the applicant could visit his daughters every time he came to GPE and that he could take them outside their place of residence .

On DATE the applicant met his daughters for the first time since DATE . The visit took place in the house of GPE 's father . The applicant was allowed to speak with his older daughter A but the grandfather , assisted by private security guards , stopped him from entering the second floor of the house to see his younger daughter .

On DATE ORG quashed the decision of DATE and decided not to return the children to the applicant . The court justified the review of the final decisions ordering the return of children to GPE , under LAW , by reference to a risk that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation . It based its assessment on the visits that had been carried out in the place of residence of the children , in DATE and DATE , and on the opinion of the Poznań Family Consultation Centre of DATE . The court established that during their DATE stay in GPE the girls had fully assimilated in the country , spoke NORP , and had forgotten their life in GPE . Their emotional bond with their mother was very strong . The emotional tie between A and her father was distorted as she rejected him , disapproved of him and wished to stay with her mother in GPE . The bond between the younger B and the applicant was considered by the experts as suppressed . In those circumstances the court found that the best interest of the children required quashing the decisions ordering their return to GPE , as separating A and B from their mother could be dangerous for their mental state and could place them in an intolerable situation .

On DATE the applicant , represented by his lawyer , lodged an appeal against the decision .

On DATE ORG dismissed the appeal . The decision is final .

On DATE ORG resumed the enforcement proceedings and decided that in the light of the decision of DATE the enforcement of the order to return the children should be finally discontinued .

Simultaneously , the NORP courts were dealing with the applicant 's case . On DATE the GPE court granted the applicant sole custody of A and PERSON On DATE the GPE court gave a decision in which it deprived GPE of her parental authority over A and B. The decision is final .

On DATE , in the course of the divorce proceedings instituted by GPE , the ORG ordered the applicant to pay MONEY ( ORG ) DATE in child support . The applicant submitted that he had been notified of the reasons for this decision in DATE .

As the applicant was not paying child support the ORG instituted criminal proceedings against him , on a request made by GPE On DATE the ORG ordered the pre - trial detention of the applicant for DATE . Subsequently , the prosecutor issued an arrest warrant against him .

On DATE the ORG ex officio quashed its decision of DATE .

On DATE the applicant 's lawyer applied to change the preventive measure imposed on the applicant .

On DATE ORG dismissed his request as it found that bail would not secure the applicant 's appearance at his trial . That decision was upheld by ORG on DATE .

Another request to quash the decision ordering the applicant 's detention was dismissed by ORG on DATE . The applicant 's lawyer appealed against this decision .

On DATE ORG allowed the appeal and quashed the applicant 's detention order . The court established that the reason for which the detention had been imposed , the impossibility of establishing the applicant 's address in GPE , was no longer a valid ground as he had appointed a representative in the case . Moreover , it had not been substantiated that the applicant would avoid his trial .

On DATE ORG during the divorce proceedings decided to dismiss PERSON 's request for child support from the applicant . The court found that since GPE has been keeping the children illegally and has not allowed the enforcement of final decisions , supporting the children should remain her sole responsibility .

On DATE ORG dismissed an appeal by GPE against this decision .

On DATE ORG dismissed another request lodged by GPE to grant her child support from the applicant . Her appeal against this decision was dismissed on DATE by ORG .

LAW was published in the NORP ORG on DATE . LAW reads , in so far as relevant :

“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures :

( a ) To discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) To secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) To exchange , where desirable , information relating to the social background of the child ;

( e ) To provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organising or securing the effective exercise of rights of access ;

( g ) Where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) To keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

Pursuant to LAW :

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE of the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ... ”

DATE . Article CARDINAL provides as follows :

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child 's habitual residence . ”

DATE ( Kodeks Postępowania Cywilnego ) in Article CARDINAL provides as follows :

“ The custody court can change its decision if the best interests of the person it concerns so require . ”

The amendment to the Code introduced on DATE , which entered into force on DATE , deals with the proceedings concerning the return of children under LAW .

Article DATE provides , that if a person who is ordered to return a child does not comply with the court 's order , the court will instruct the guardian to remove the persons concerned forcibly ( przymusowe odebranie osoby ) .

According to Article CARDINAL :

“ Upon a request of a court guardian , the police are obliged to help him in carrying out the forcible removal of [ a minor ] . ”

Article CARDINAL § CARDINAL provides as follows :

“ If forcible removal of [ a minor ] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order , the court guardian shall inform a prosecutor . ”

Pursuant to DATE :

“ § CARDINAL The court guardian , in carrying out the removal of [ a minor ] , shall be especially careful and shall do everything to ensure that the well - being of that person is not disturbed and that [ he or she ] does not sustain physical or moral harm . If necessary , the guardian shall request the assistance of the social services or another institution tasked with this function .

§ CARDINAL If the well - being of [ a minor ] would be in danger as result of the removal , the guardian shall stop the enforcement of the order until the danger is over , unless the stopping of the enforcement would cause greater danger to the person . ”

As regards visiting rights , according to ORG resolution , if a parent who has been obliged by a court decision to respect the other parent 's access rights refuses to comply therewith , decisions on access rights are liable to enforcement proceedings . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL , OSNCP DATE ) .

ORG If a court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation . This article provides :

“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on the motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of a fine ( ... ) .

NORP If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by a court . ”

Article CARDINAL of the Code provided as follows :

“ When taking away a person who is the subject of parental authority or who is in care , the bailiff shall be especially careful , and shall do everything to protect such a person from physical or moral harm . The bailiff shall request the assistance of social services , or another institution tasked with this , or a court expert . ”

Article CARDINAL of the CARDINAL Criminal Code ( Kodeks Karny ) provides as follows :

“ Whoever , contrary to the will of the person appointed to take care of or supervise , abducts or detains a minor person DATE or a person who is helpless by reason of his mental or physical condition shall be liable to a penalty of deprivation of liberty for DATE . ”


CASE OF KURIER ZEITUNGSVERLAG UND DRUCKEREI GMBH v. AUSTRIA (No. 2)

No violation of Article 10 - Freedom of expression -{General}

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant company is the owner and publisher of the DATE newspaper PERSON .

In DATE GPE and GPE , the parents of PERSON , dissolved their common household and concluded a provisional agreement on the custody of NORP under which sole custody was granted to GPE , while his brother stayed with PERSON On DATE PERSON asked for custody to be withdrawn from GPE and transferred to him .

On DATE GPE and GPE agreed that pending the outcome of an expert report custody be provisionally transferred to PERSON ( vorläufige Obsorge ) and that for the time being NORP should live with PERSON , his father .

It appears that subsequently PERSON hindered contact between NORP and GPE and , in DATE , moved to GPE . Thereupon , by an interlocutory decision ( einstweilige GPE ) of DATE , custody of NORP was transferred back to GPE

PERSON was ordered to hand NORP over to GPE immediately or to take him back to GPE before DATE . That order was confirmed on appeal on DATE and became final .

Thereupon GPE travelled to GPE to have that decision enforced . PERSON proposed to GPE that they enter into an agreement on custody of NORP , and GPE also agreed to staying in GPE . However , no such agreement was finally reached . After GPE had settled in GPE and found employment there , PERSON , together with NORP , left GPE for GPE .

On DATE , pending the outcome of the custody proceedings , custody was temporarily transferred to ORG . On DATE the court dismissed PERSON ’s request for custody to be withdrawn from GPE and transferred to him . The decision was declared immediately enforceable .

Subsequently , various attempts to enforce that decision were undertaken . The NORP newspapers reported on these events because PERSON kept them regularly informed and sought publicity .

The first attempt at enforcement , on DATE , failed because GPE and NORP went into hiding . PERSON had informed the media of this step in advance . Some time later they returned . In order to enforce the custody decision the competent court scheduled a hearing for DATE in the course of which NORP was to be handed over to GPE PERSON failed to appear at the hearing .

Thereupon the judge ordered that NORP be brought before the court by force ( zwangsweise GPE ) .

When that decision had to be enforced by court officers NORP barricaded himself in his elementary school and , since the police officers who intervened decided not to use physical force on the LOC of the school , this attempt also failed . These events were also widely covered by the media because PERSON had informed them in advance .

After further unsuccessful attempts the rural police ( ORG ) were informed on DATE that NORP was at his father ’s house . Court officers sent to the house noted , however , that NORP was not in the house but , together with a babysitter , in a car in front of it . The officers tried to take hold of NORP but he cried and resisted . These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists , who had been informed and had hurried to the spot .

In order to establish whether NORP had suffered injuries during the attempt to enforce the court order , PERSON took him to the GPE hospital . On DATE , by means of a diversion manoeuvre , GPE and NORP were separated and on DATE NORP was handed over to his mother , GPE , on the premises of the hospital . GPE and NORP have been living in GPE since that time . This final phase of the events was widely reported on in the media .

On DATE an article was published in the applicant company ’s newspaper under the title “ Mother flees hospital with NORP ” ( “ Mutter flüchtete PERSON aus Spital ” ) , which read as follows .

“ On DATE TIME the child - care proceedings concerning DATE NORP from GPE took a very surprising turn : Whilst father , mother and son where still talking together over the sick bed in TIME , the mother suddenly snatched the boy ... , left the hospital via an underground passage , took a car that had been left at her disposal and disappeared . “ She is being taken care of on neutral ground and the boy is getting psychological support ” said PERSON from ORG . The father suspects the whole affair of being rigged .

At lunch - time CARDINAL-year - old mother GPE had arrived at the hospital , hidden from the public . “ The boy was not afraid of his mother ” says children ’s advocate PERSON . Whereas the father claims that NORP clung to him and tried to defend himself against his mother .

PLANNED After talks lasting TIME , the bombshell : GPE snatched her son when he was left unattended for a moment , and fled the hospital . “ The operation was authorised by the family judge ” explained GPE . Beforehand the older son , PERSON , had been taken to a psychologist and afterwards to the partner of the children ’s father .

ORG suspects the operation of being a conspiracy : “ It was planned . They were only waiting for a good opportunity . ” He claims to have heard his son crying and then there had been a sudden silence . The father had sat for TIME next to NORP ’s empty sickbed .

Friends and relatives of the father have announced a demonstration for DATE in front of the justice buildings in GPE .

The whole country is now shocked about this family dispute . It was triggered by an attempt to take NORP away from his father on DATE . CARDINAL bailiffs tried to pull the boy into a car . However , he defended himself , screamed , bit and clung to the car . Since this incident NORP has remained in the children ’s hospital .

Opinions in this dispute are very divergent . ORG tries to justify the conduct of the officers . “ In this case the ORG has acted in the interest of the child ” , explained the President of ORG , PERSON . The bailiffs had been ordered to seize the child without bodily harming him . This order was carried out accordingly .

However , ORG has a different view on the matter . ‘ The conduct of the officers was unacceptable and ORG , declares press officer PERSON . ‘ This was practically ill - treatment of a ORG , said the GPE child and juvenile advocate PERSON .

SPECIAL TRAINING The president of ORG , PERSON , suggests special training for bailiffs . She is a family judge and has never in her CARDINAL-year career seen such a case . ORG does not consider it helpful for a judge to be present when children are taken away from their parents : “ This would even reinforce the impression of ORG intervention . ”

A report from ORG will be handed over to the disciplinary commission . The Minister of ORG , PERSON ( ORG ) , announced that an expert commission would be established in order to avoid escalations . And in the future he wants a judge to be present when compulsory measures are carried out .

According to the Minister , the ORG in GPE acted in an appropriate manner ; however , the father had breached his obligation of discretion . Disputes in childcare proceedings should not be fought on the backs of the children . ”

A second article was published in the applicant company ’s newspaper under the title “ A dispute might now arise about NORP ’s brother ” ( Nun droht PERSON um NORP Bruder ) on DATE . It read as follows .

“ After the tumultuous events on DATE the dispute over DATE NORP from GPE has for the time being calmed down . According to information from the ORG , the mother and the boy are at present accommodated and looked after in municipal housing in GPE .

However , the future of little NORP , and whether and when he will leave with his mother for GPE , is still unclear . A tug of war might also take place over the older brother PERSON : ORG has custody over him for the time being in view of the current child - care proceedings initiated by the father . An investigation procedure is planned for DATE .

ORG had applied for custody of all CARDINAL children . In DATE his custody applications for PERSON , DATE , and NORP were refused . The decision concerning ORG had been postponed . PERSON is for the time being staying with his father .

ORG is , however , still at loss about the fact that his ex - wife fled the hospital with NORP . ‘ I can not talk about it’ , he stuttered on DATE , his voice trembling with tears .

PERSON , a friend of the family who was present when the father and mother met at the hospital , said : ‘ I saw the mother slap the boy in the GPE .

IGNORED The fact that bothered the lady from GPE most was that the mother was only focussing on NORP : ‘ She has cold - shouldered ORG . I do n’t know why she is behaving like that and what her goal is.’

Neither the mother nor her lawyer want to answer PERSON ’s queries about this incident . PERSON , Chairman of ORG , considers ORG closed as far as the courts are concerned : ‘ The judicial authorities are no longer involved . It does not concern the judge anymore . It is the GPE responsibility to take the next steps . The court has issued a decision and fulfilled its obligations.’

In TIME friends of the father started demonstrating in front of ORG . ‘ Without wanting to get involved in the case in question , we would like to point out that children have a right to be heard and have their wishes and opinions respected’ , says PERSON . ”

Finally , the applicant company published a third article in its newspaper under the title “ The NORP case : ‘ ORG authorities have to become more ORG ( Fall NORP : PERSON muss sensibler werden ) on DATE . It read as follows .

“ A GPE judge has given the order to use ‘ force’ . ‘ Appropriate force’ in order to take a child away from his father and to take him to his mother in GPE . CARDINAL old NORP from PERSON The boy had fought against CARDINAL bailiffs on CARDINAL DATE . Alarming pictures show the end of the child - care proceedings .

As reported , the results of the investigations of ORG are now available . ORG President PERSON says : ‘ This case is also a wake - up call for the judicial authorities . We have to become more sensitive.’

FORCE In his interview with ORG defends the judge who ordered the officers , who are bound by his instructions , ‘ to summon the minor with due tact , but without considering his wishes , and if necessary with due force’ . He says : ‘ That is the wording of the law’ .

This is not quite true . The word ‘ force’ is not to be found in the non - contentious act . ‘ Means of coercion’ are allowed by the law ; however , they have to be directed against the parent not respecting the judgment .

But ORG also says : ‘ This matter should never have been dealt with in such a way’ . He wants the officers to be trained how to deal with children and how to talk to them . A disciplinary procedure against ORG judge is going to be initiated : the bailiffs contacted him CARDINAL times during that mission , should he have ended it earlier ?

Judges are discussing the matter . Judge PERSON : ‘ This case brings us to the limits of judicial activities , it is a tightrope walk’ .

Means of coercion have to be allowed for at least in cases where severely mistreated children have to be saved from an abusing parent ‘ even when they still love their parents and do n’t want to be taken NORP . However , NORP was definitely not in such a situation .

ORG professor PERSON ( ORG ) says that this law will be changed , taking effect from DATE , and she further states : ‘ The well - being of the child is the top priority . The new ruling stipulates that the judge has to discontinue the execution of his orders when the well - being of the child is in danger’ .

President PERSON thinks , on the other hand , that this is already the case DATE . ‘ Even if this is not clearly written in the text of the law , there is such a thing as common sense!’

He does not only hope that the judicial authorities will act with common sense but the parents as well . They can fight their wars of the roses anywhere , but not on the back of their children .

He considers that NORP ’s development is positive : ‘ He was examined by a psychologist before leaving with his mother for GPE . The child has calmed down . He was curious about GPE and he was not LOC . ”

All articles were accompanied by photos of NORP . The first article was accompanied by a picture of NORP showing him with a distressed expression , clinging to his brother , and a similar picture accompanied the third article .

With regard to the articles published by the applicant company on CARDINAL and DATE and CARDINAL DATE , and the above events , PERSON , represented by his mother , brought proceedings under LAW and CARDINAL of LAW against the applicant company , seeking damages and publication of the ensuing judgment . He argued that the reporting on him had interfered with the intimate sphere of his life in a manner which was likely to expose and compromise him in public . Moreover , the articles constituted a breach of section CARDINALa of LAW , which prohibited reporting on the victim of crime in a manner which made him or her recognisable in public , which was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant interest of the public in the information . Both applications were filed with ORG ( PERSON für PERSON ) .

On DATE ORG allowed the action and ordered the applicant company to pay damages in the amount of MONEY ( ORG ) , to publish the judgment in its periodical , and to bear the costs of the proceedings . The court found that the publishing of the above articles containing details of the custody dispute over DATE Christian W. had caused the intimate sphere of his personal life to be exposed in a manner likely to compromise him in public , in breach of section CARDINAL of LAW . Moreover , the article published on DATE had made the full name of PERSON public and had been accompanied by a photograph of him . Thereby the identity of a person who had been the victim of a criminal offence had been disclosed to a large and not directly informed circle of people without any justification . This was in breach of Section ORG of LAW . ORG observed further that all the articles had been accompanied by pictures of PERSON in which he , with a highly perturbed facial expression , was seen clinging to his brother .

ORG accepted that there existed a direct link between the events reported on and the public interest because of the harsh criticism voiced of the conduct of the court officials who had attempted to enforce the custody order . However , the person having custody of NORP had not agreed to the publication and the public interest in the events could have been satisfied without giving the child ’s full name and publishing pictures of him .

On DATE the applicant company appealed . Relying on LAW it argued , inter alia , that ORG had failed to take into account that on the issue of enforcement of custody orders there was an ongoing discussion in which presidents of various courts and the President of ORG were participating . Moreover , the Federal Minister of Justice had set up a working group of experts to draw up a report on the events of CARDINAL DATE . The press had been addressed not only by NORP ’s father but also by representatives of ORG , the courts and ORG , which had even held a press conference . In such circumstances it had been necessary to inform the public of the identity of the persons involved , and against the background of the public discussion the custody dispute and the preliminary events leading to the incident on DATE had also been of legitimate interest to the public .

On DATE the plaintiff commented on the appeal . He argued that the applicant company could not rely in its defence on the fact that organs of the judiciary had also commented in public on the events , because they had neither made public the full name of the victim and details from his intimate life nor published photos of him . Had the applicant company acted in the same way , its reporting would have been fully acceptable .

On DATE ORG partly allowed the appeal . It found that there was no breach of LAW of LAW , because under that provision a compensation claim only existed if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim ’s protected interests . In the present case , however , it was not the description of a criminal act that had breached NORP ’s protected interests . It reduced the compensation to ORG CARDINAL per article , altogether ORG CARDINAL,CARDINAL .

ORG dismissed the applicant company ’s criticism that ORG had not taken sufficiently into account that representatives of the judiciary themselves had made public statements . ORG had accepted that there was a direct link between the events reported on and the public interest . However , giving details from the plaintiff ’s intimate family life , giving his full name , and adding pictures of the plaintiff had transgressed into his intimate sphere as these details had been given merely in order to satisfy the lust for sensation and the curiosity of its readers .

Even if there was a link to public life , the media could only report on a person ’s intimate sphere to the extent necessary for adequately satisfying the need for information relating to those elements which were of relevance to the public interest . Reporting on events within the intimate sphere of a person must therefore be adequate to the occasion and proportional . In the present case it had not been necessary for the purpose of informing the public on alleged shortcomings within the judiciary , and it had not been necessary to expose in such an intense and striking way the severe strain being suffered by the juvenile plaintiff through the insertion of photographs showing his distress and despair , through mentioning his full name , and through setting out the details of his seizure .

Section CARDINAL of LAW , which has the title “ Interference with a person ’s most intimate personal sphere ” ( NORP des höchstpersönlichen PERSON ) , reads as follows :

“ ( CARDINAL ) If a person ’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public , the person concerned may claim compensation from the owner of the media for the injury suffered . The amount of compensation shall not exceed LAW ...

( CARDINAL ) No compensation claim under paragraph CARDINAL exists if

NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;

NORP the publication is true and has a direct connection to public life ;

in the circumstances it could have been assumed that the person concerned had agreed to the publication ;

it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;

the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”

Section CARDINAL of LAW which has the title “ Protection against divulging a person ’s identity in special cases ” ( ORG in besonderen NORP ) , reads as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts , or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .

NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;

NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;

Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :

“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”

Section CARDINAL of LAW which has the title “ Separate compensation proceedings ” ( PERSON ) , insofar as relevant , reads as follows :

“ In a judgment by which compensation under LAW , DATE , CARDINAL or CARDINAL has been awarded on the basis of a separate compensation request , the court must also order the publication of the judgment if the person concerned so requests so ... ”


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

The applicant was born in DATE and lives in NORP .

During the Second World War , in DATE , the applicant 's entire family – her parents and their children DATE were expelled from their house and farm in the vicinity of ORG by NORP occupying forces . Subsequently , they were for some time placed in a camp for expelled persons in PERSON and then shipped off to eastern GPE , referred to at that time as ORG ( “ LOC ) , which was occupied by the NORP authorities . The applicant and her family were assigned to live on a farm of local farmers in GPE . At the time of the expulsion , imprisonment and resettlement the applicant was DATE .

On DATE the applicant submitted a request for financial assistance from the Polish - German Reconciliation Foundation under the so - called second compensation scheme ( see paragraph CARDINAL below ) . She declared that she had been a victim of persecution by the NORP occupying authorities during the Second World War . In support of her claims the applicant submitted the following documents : a form certifying registration of her stay in GPE during the war , a certificate of her first communion issued by the rector of the parish of LOC , a certificate of her mother 's death in GPE , statements by CARDINAL witnesses certifying that the applicant had been expelled from the GPE to GPE during the war , the workbook ( “ LOC ” ) of her father 's sister , issued by the NORP authorities , and a number of documents from various NORP archives informing the applicant about difficulties in obtaining documents confirming the persecution to which she had been subjected .

In DATE ORG of the Polish - German Reconciliation Foundation , established under LAW DATE between the NORP and ORG and operating on the basis of its statute , refused to pay financial assistance to the applicant , considering that persons expelled from their homes and properties by the NORP forces of occupation during the war were not entitled to compensation .

It further stated that the evidence submitted by the applicant , in particular the witness statements , was insufficient to confirm that the applicant and her family had been imprisoned in the camp for expelled persons .

The ORG in its letter referred to the requirements of eligibility which were laid down by regulations governing the functioning of the second compensation scheme operated by the ORG ( on the basis of a Law of DATE on the Creation of the “ Remembrance , Responsibility and Future ” Foundation enacted by ORG and the subsequent agreement PERCENT the Polish - German Reconciliation Foundation , see paragraph CARDINAL below ) .

NORP The applicant appealed . On DATE ORG upheld the contested decision . It informed the applicant that she was not eligible for financial assistance under the scheme in respect of her deportation . Neither she nor her family had been deported for the purposes of forced labour to the territory of ORG within its borders of DATE .

Moreover , the evidence which she had submitted did not allow it to be established that the applicant and her family had indeed been imprisoned in the camp in ORG . It further informed the applicant that no appeal lay against this decision .

On DATE the public prosecution services lodged an action on the applicant 's behalf with ORG , referring to LAW and to the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , ORG CARDINALVII ) and seeking to confirm that judicial review of the ORG 's decisions had been available to the applicant at the relevant time .

These proceedings were stayed on an unspecified later date , when the court referred to an individual constitutional complaint pending before ORG at that time and brought by a certain Mr K. Subsequently , in DATE ORG , by way of a resolution , held that decisions of the ORG could be challenged before the ordinary courts ( see paragraph CARDINAL below ) . This approach was indirectly confirmed by a decision given by ORG in the case referred to above ( see paragraph CARDINAL below ) . The prosecuting authorities did not request that the civil proceedings brought on the applicant 's behalf be resumed .

NORP In DATE the ORG officially notified the public that it had ceased , as from DATE , to make any further payments to the victims , having allocated all financial resources which had been earmarked for that purpose .

The relevant law and practice concerning the Polish - German Reconciliation Foundation is set out in the ORG 's judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , DATE .


The applicant , PERSON , has both GPE and GPE nationality . She was born in DATE and lives in GPE . She was represented before the ORG by PERSON Schrevelius , a lawyer practising in GPE .

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

The applicant moved from LOC to the GPE on DATE . Her daughters PERSON , born in DATE , and LOC , born in DATE , stayed behind in the care of the applicant ’s mother . According to the applicant , the ORG biological father , Mr T. Fortes Nascimento , has never had any involvement with his daughters’ lives ; he is currently living in GPE .

On DATE the applicant applied for a residence permit ( verblijfsvergunning ) enabling her to reside in the GPE with her partner PERSON , a GPE national . This request was refused . The applicant ’s subsequent objection ( bezwaar ) and appeal ( beroep ) were declared inadmissible on CARDINAL May and CARDINAL DATE respectively .

Since DATE the applicant has been living with PERSON , a GPE national . On the basis of this relationship she was granted a residence permit on DATE .

On DATE the applicant lodged a request for a provisional residence visa ( machtiging tot voorlopig verblijf ) on behalf of her daughters NORP and GPE . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights . The applicant submitted that she had visited the girls in DATE , together with her partner PERSON On this occasion she had had to conclude that her mother was physically and mentally no longer capable of looking after GPE and PERSON : the girls were being left to their own devices and were , even by local standards , living in unfavourable conditions . The applicant referred to a doctor ’s declaration according to which her mother was suffering from a chronic illness and was indeed incapable of looking after children . She further submitted that she had no other relatives living in LOC .

The requested provisional residence visa was refused by the Minister of ORG ( Minister PERSON ) on DATE . The Minister was of the opinion that from DATE GPE and GPE no longer actually belonged to the applicant ’s family unit ( gezin ) . It was further held that the refusal of the visa did not constitute a breach of LAW . The applicant ’s objection against this decision , filed on her behalf by a lawyer , was declared inadmissible by the Minister on DATE as no grounds for the objection had been submitted . Although possible , no appeal was lodged against this decision .

On DATE the applicant lodged a new request for a provisional residence visa on behalf of her daughters . She argued that the close family ties ( gezinsband ) between her daughters and herself had always continued to exist : she had remained in contact with them , both through letters and through telephone conversations , and she had also contributed financially and materially to her daughters’ care and upbringing . The reason she had not asked to be reunited with her children soon after her arrival in the GPE was due to the fact that her then partner , PERSON , had informed her that this would not be possible . The applicant submitted another medical declaration , dated DATE , according to which her mother was suffering from advanced spondylarthritis of the spine as a result of which she was incapable of caring for minor children .

Considering that the new application for a provisional residence visa contained neither new facts nor new circumstances , the Minister of ORG rejected it on DATE with reference to his previous decisions .

The applicant and PERSON were married on DATE .

On DATE a hearing on the applicant ’s objection against the Minister ’s decision was held before an official committee ( ambtelijke commissie ) . At this hearing , the applicant stated that when she had visited her daughters in DATE , they had only just left hospital where they had been admitted after their grandmother had used massage oil in the preparation of food – this had happened because the applicant ’s mother was illiterate . She further clarified that it had always been her intention to send for her children as soon as she had a residence permit . Her first partner in the GPE had not wanted her to bring the girls to the GPE , in addition to telling her that it would not be possible .

The applicant ’s objection was rejected on DATE . The Minister held that children who had stayed behind in the country of origin could only then be considered as continuing to belong to their parent ’s family unit if that parent had attempted as soon as reasonably possible to have the children join him or her by means of an application for family reunion . The applicant had not provided a plausible explanation as to why she had waited until DATE before applying for a provisional residence visa . It had further not been established that the applicant had made a substantial contribution to the cost of her daughters’ care and upbringing . Neither had it appeared that the applicant – who had only once visited her children since moving to the GPE DATE had continued to exercise parental authority or that she had taken any important decisions relating to their upbringing . For these reasons , the Minister concluded that the children had become integrated in the family unit of their grandmother . The refusal of a provisional residence visa was not contrary to LAW there was no interference with the right to respect for family life since the applicant ’s children were not deprived of a residence permit which had enabled them to exercise family life in the GPE , and neither was the ORG under a positive obligation to grant the girls residence so as to enable the applicant to develop family life with them in the GPE .

On DATE the applicant obtained GPE nationality .

The applicant appealed the Minister ’s decision of DATE to ORG ( arrondissementsrechtbank ) of GPE sitting in GPE . Following a hearing , ORG rejected the appeal on DATE . It agreed with the Minister that the close family ties between the applicant and her daughters had ceased to exist . According to ORG , the period of time between the applicant ’s departure from LOC and the first application for a provisional residence visa for her daughters had been of such duration that it could not be said that the situation of the children living with their grandmother was only temporary . The fact that she had not applied for family reunion sooner because her first partner in the GPE was opposed to it , indicated that the applicant had let the relationship with PERSON V.V. prevail over her ties with her daughters . ORG also found that the refusal of a provisional residence visa was not contrary to LAW , having regard to the fact that it had not appeared that there were any objective impediments preventing the applicant and her daughters from continuing their family life as they had already been doing for a considerable number of DATE . In this context it attached relevance to the fact that the manner in which the applicant and her children exercised family life was due to the applicant ’s own choice to leave her daughters behind in LOC .

Since moving to the GPE , the applicant has regularly transferred money to her mother in LOC in order to pay for her daughters’ upbringing . In addition , once DATE she has sent goods such as clothing , shoes , food , materials for use in school and , on CARDINAL occasion , glasses . She has kept in contact with her daughters by telephone and , less frequently , by mail .

At the time relevant to the present application , the admission , residence and expulsion of aliens were regulated by LAW DATE ( “ the LAW ” - Vreemdelingenwet DATE ) . On DATE a new Aliens Act entered into force but this has no bearing on the present case .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .

The Government pursue a restrictive immigration policy due to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising from international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .

The admission policy for family reunion purposes was laid down in LAW of the Aliens Circular CARDINAL ( “ the FAC ” - Vreemdelingencirculaire DATE ) . It provided that the following persons , where relevant , may qualify for family reunion if certain conditions ( relating to matters such as public policy and means of subsistence ) are met :

– a person ’s spouse ,

– a minor child born of the marriage who actually belongs to the family unit ( gezin ) , and

– a minor child born outside the marriage who actually belongs to the family unit ( e.g. a child of CARDINAL of the spouses from a previous marriage or a foster child ) .

The phrase “ actually belonging to the family unit ” ( “ feitelijk behoren QUANTITY ” ) used in GPE law only partly overlaps with the term “ family life ” in LAW . The former is understood to mean , for instance , that the close family ties ( gezinsband ) between the child and its parents whom it wishes to join in the GPE already existed in another country and have been maintained . For the rest , the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case . Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation , the way in which the relationship between parent and child has been developed during the separation , the parent ’s involvement in the child ’s care and upbringing , custody arrangements , the amount and frequency of the parent ’s financial contributions to the child ’s care and upbringing , the parent ’s intention to send for the child as soon as possible and his / her efforts to do so , and the length of time that the child has lived in a family other than with the parent . The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the GPE . The longer the parent and child have been separated , the heavier the burden of proof on the person in the GPE becomes . It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the GPE sooner .


Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

ORG The applicant was born in DATE and lives in Požega .

On DATE the applicant sustained an injury in a traffic accident caused by a certain ORG , member of ORG ( “ the ORG ” ) .

On DATE the applicant brought a civil action against the ORG in ORG seeking non - pecuniary damages in the amount of CARDINAL NORP kunas ( HRK ) .

On DATE ORG partly ruled in the applicant ’s favour by awarding her HRK CARDINAL . The ORG appealed .

In DATE ORG PERSON u GPE ) quashed the first instance judgment and remitted the case .

In the resumed proceedings , on DATE ORG delivered an interim judgment ( međupresuda ) finding the ORG liable for the damage . It held that the ORG had taken over not only the rights and property of the former GPE , but also its obligations . The ORG appealed .

On DATE ORG reversed the interim judgment finding that the ORG was not liable for the damage as it was not a legal successor of the former GPE and had not taken over any liability for damages caused by members of the ORG .

On DATE the applicant lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) alleging that ORG wrongly applied the substantive law .

On DATE the LAW to LAW ( “ the DATE LAW ) entered into force .

On DATE ORG returned the case - file to ORG with the instruction to stay the proceedings , pursuant to LAW .

On DATE ORG decided to stay the proceedings . On DATE ORG dismissed the applicant ’s appeal against that decision .

On DATE the Act on the Liability of GPE in the Former GPE for which the Former GPE was Liable ( “ the DATE LAW ” ) entered into force .

Pursuant to the DATE LAW , the proceedings resumed .

On DATE ORG upheld the applicant ’s appeal on points of law , quashed ORG judgment of DATE and ORG judgment of DATE and remitted the case to the first instance court .

In the resumed proceedings , on DATE ORG gave judgment partly accepting the applicant ’s claim and awarded her HRK CARDINAL . The applicant appealed .

On DATE ORG dismissed the applicant ’s appeal and upheld the first instance judgment , which thereby became final .

Meanwhile , on DATE the applicant lodged a constitutional complaint concerning the length of the proceedings . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s complaint .

Section CARDINAL ( b ) of the LAW to LAW ( Zakon o dopunama PERSON o obveznim odnosima , ORG no . CARDINAL of DATE ) provided that all proceedings concerning compensation for damage incurred in the former GPE and instituted against the ORG , as CARDINAL of its legal successors , were to be stayed pending the enactment of new legislation on the subject .

The DATE Amendments also imposed an obligation on the Government to submit special legislation to ORG regulating liability for such damage within DATE of the Act entering into force .

The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) , as in force at the material time , provided :

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”

“ Parties may lodge an appeal on points of law [ revizija ] against res judicata judgment given by the second instance court within DATE following the date of service of a copy of the judgment . ”

“ An appeal on points of law shall not postpone the enforcement of res judicata judgment against which it has been lodged . ”

Section CARDINAL provides that an appeal on points of law may be lodged on grounds of certain procedural errors or wrong application of the substantive law but not for factual shortcomings .

Sections CARDINAL - CARDINAL specify the cases , in which ORG may , if it finds an appeal on points of law well - founded , quash the second instance judgment and remit the case , as well as those in which it may reverse such a judgment .

The DATE Act on the Liability of GPE in the Former GPE for which the Former GPE was Liable ( Zakon o odgovornosti PERSON štetu nastalu u bivšoj SFRJ za koju je odgovarala bivša SFRJ , ORG no . CARDINAL of DATE ) regulates circumstances in which compensation for such damage may be claimed from the ORG .


The applicant is a NORP national , born in DATE . He is presently detained in the PERSON prison . The applicant is represented before the ORG by Mr GPE , a lawyer practising in GPE ( GPE ) .

A.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in DATE and lives in Split .

On DATE the applicant brought a civil action for defamation against ORG in ORG ( PERSON ) , seeking non - pecuniary damages .

In the period DATE and DATE the firstinstance court held CARDINAL hearings .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s action .

Following an appeal by the applicant , on CARDINAL DATE the ORG ( PERSON ) quashed the first - instance judgment and remitted the case .

In the resumed proceedings , ORG held CARDINAL hearings , and on DATE delivered a judgement whereby it ordered the defendant to pay the applicant CARDINAL NORP kunas ( HRK ) as compensation for non - pecuniary damage .

Following an appeal by the defendant , on CARDINAL DATE the ORG reduced the amount of damages payable to the applicant to HRK CARDINAL . The judgment was served on the applicant ’s representative on DATE .

Meanwhile , on CARDINAL DATE the applicant lodged a request for the protection of the right to a hearing within reasonable time ( zahtjev za zaštitu prava na suđenje u razumnom roku ) with ORG .

On DATE the ORG found a violation of the applicant ’s right to a hearing within reasonable time , awarded her HRK CARDINAL,CARDINAL in compensation and ordered ORG to give a decision in her case within DATE of the service of its decision . ORG decision was served on ORG on DATE .

The relevant provisions of LAW ( Zakon o sudovima , ORG nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL ) , governing the request for the protection of the right to a hearing within a reasonable time , as the remedy for the length of judicial proceedings in GPE , are set out in GPE v. GPE , no . CARDINAL , § DATE , DATE .


The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE , GPE . The respondent Government were represented by their Agents , PERSON , and subsequently by PERSON J. Wołąsiewicz , of ORG .

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

On DATE ORG in GPE ( ORG Прокуратуры Республики PERSON области ) ordered that the applicant be detained in connection with charges of forgery of documents and selling a stolen car that had meanwhile been laid against him . The prosecuting authorities further issued a search warrant in respect of the applicant . Having established that the applicant had left the country , the NORP authorities issued in his respect an international search and arrest warrant .

On DATE ORG , relying on LAW of DATE between GPE and GPE ORG , Family , Labour and Criminal Matters ( Umowa między PERSON a ORG o pomocy prawnej i stosunkach prawnych w sprawach cywilnych , rodzinnych , pracowniczych i karnych ) ( “ the DATE Agreement ” ) , asked ORG Ministry of Justice to extradite the applicant .

On DATE the applicant was arrested in GPE under the above - mentioned international search and arrest warrant and , on DATE , brought before ORG ( Sąd Rejonowy ) . The court , having regard to the provisions of LAW , ordered that the applicant be detained pending extradition until DATE .

On DATE the ORG prolonged the applicant 's detention until DATE .

On DATE ORG ( Prokurator Wojewódzki ) asked ORG ( Sąd Wojewódzki ) to issue a ruling as to whether the applicant 's extradition to GPE was permissible .

On DATE the applicant applied for asylum .

On DATE the applicant 's lawyer requested ORG to adjourn consideration of the extradition request until the termination of the asylum proceedings . Alternatively , the applicant 's lawyer requested that the court rule against the applicant 's extradition . He also requested the applicant 's release .

On DATE ORG considered the matter . In view of a formal shortcoming in the extradition request , it decided to ask the NORP authorities , through ORG , for rectification of that shortcoming . That request was submitted to ORG . ORG further asked the Minister of ORG for information on whether the applicant had applied for asylum in GPE . It also dismissed the applicant 's request for release , considering that there was a risk that he would leave GPE .

On DATE ORG requested ORG to provide information on the asylum proceedings .

On DATE the applicant requested ORG to release him on bail . He argued that the charges against him were unsupported by any evidence and that they in fact constituted a form of punishment for his political activities in a NORP opposition movement . That application was referred to ORG who , at that stage of the procedure , was competent to deal with it . On DATE ORG refused to release the applicant on the grounds that the charges against him had been sufficiently supported by evidence produced by the NORP authorities and that there was a risk that he would go into hiding .

The applicant appealed to ORG ( Prokurator Apelacyjny ) on DATE . He argued that he had never gone into hiding , which , he added , was clearly shown by the fact that his stay in GPE was , and had been , legal , that he had had a place of residence and that he had worked in GPE . He also stressed that he had suffered from depression and had received treatment in GPE . On DATE ORG upheld the decision of ORG .

In the meantime , on DATE , ORG granted ORG application for the applicant 's detention to be prolonged . The ORG ordered that the applicant be held in custody until DATE .

The applicant appealed on DATE . He submitted , inter alia , that , pursuant to LAW ( “ the LAW ” ) , his detention should have been lifted because the requesting ORG had not produced the necessary evidence in support of the extradition request within DATE . He stressed that ORG request for the rectification of formal shortcomings had still not been forwarded to the NORP authorities . It was posted , after DATE , to ORG , which subsequently decided that it had no competence to deal with the matter and referred it to ORG ( Prokurator PERSON ) . ORG decided that he had no competence to handle it either . He referred it back to ORG on DATE . The applicant concluded that his detention was no longer lawful .

On DATE the contested decision was upheld by ORG ( Sąd Apelacyjny ) . The court stressed that the applicant 's detention was the only preventive measure which could ensure the proper conduct of the extradition proceedings .

On DATE ORG again requested ORG to enquire with the NORP authorities about rectification of their extradition request .

On DATE ORG informed ORG that the asylum proceedings were pending .

On DATE ORG submitted to ORG supplementary information produced by the NORP authorities .

In the meantime , on DATE , ORG had prolonged the applicant 's detention until DATE . It relied , inter alia , on the risk that the applicant would go into hiding .

The applicant appealed to ORG ( Sąd Najwyższy ) on DATE . He asked to be released on bail and argued that his detention had been unlawful because the NORP authorities had not yet rectified shortcomings in their request for extradition . He alleged , inter alia , a violation of LAW DATE Code and a breach of LAW .

On DATE ORG rejected the appeal . It considered that the lifting of the applicant 's detention was not , as he claimed , mandatory pursuant to LAW because the application of that provision was excluded by a special rule laid down in LAW . In consequence , the applicable provision was LAW , under which the lifting of detention in such circumstances was optional . ORG also observed that the prolongation of detention was necessary in order to ensure the proper conduct of the extradition proceedings in view of the risk that the applicant would go into hiding . Lastly , ORG pointed out that there had been no circumstances in the case which would justify the applicant 's release pursuant to LAW .

On DATE ORG informed ORG that the applicant 's request for asylum was being examined by ORG .

On DATE ORG prolonged the applicant 's detention until DATE . It considered that the original grounds for keeping him in custody were still valid and that there were no grounds for releasing him , as provided in LAW . It stressed that there were justified fears that the applicant would go into hiding because he had already been wanted under the international search and arrest warrant . The applicant 's appeal against that decision was dismissed by ORG on DATE . ORG considered that the applicant 's continued detention was necessary in order to secure the proper conduct of the extradition proceedings , taking into account that the asylum proceedings were still pending .

ORG session scheduled for DATE was cancelled due to an illness of the presiding judge .

On DATE ORG held a session . It adjourned its examination of the extradition request since the applicant had applied to the Minister of ORG for reconsideration ( wniosek o ponowne rozpatrzenie sprawy ) of the decision refusing to grant him asylum . The court also dismissed the applicant 's request for release .

On DATE ORG notified ORG that the asylum proceedings should be terminated by DATE .

On DATE the ORG prolonged the applicant 's detention pending extradition until DATE . It emphasised that the asylum proceedings were still pending .

On DATE ORG requested ORG to provide information on the progress of the asylum proceedings . On DATE the ORG replied that the applicant 's asylum request had been rejected by the final decision of CARDINAL DATE .

ORG session scheduled for DATE was cancelled .

On DATE ORG held a session . It adjourned the consideration of the extradition request since the applicant had in the meantime applied for review of the unfavourable asylum decisions by ORG ( PERSON ) .

On DATE ORG prolonged the applicant 's detention pending extradition until DATE . It stressed that the delay in the extradition proceedings had been caused by circumstances which could not be attributed to the court before which those proceedings were pending .

On DATE ORG informed ORG that the asylum proceedings were still pending .

On DATE ORG prolonged the applicant 's detention until DATE . It considered that the extradition procedure had been prolonged on account of circumstances for which the NORP judicial authorities could not be held responsible . In particular , it emphasised that the need to await the outcome of the asylum proceedings brought by the applicant had made it impossible for them to rule on the extradition request . Were the applicant to be granted asylum , he could not be extradited pursuant to the relevant provisions of LAW . The court went on to find that the relevant material strongly supported a reasonable suspicion that the applicant had committed the offences with which he had been charged and concluded that the previous reasons for his detention were still valid .

On DATE ORG ordered that the applicant be held in detention pending extradition until DATE . It considered , inter alia , that keeping him in detention was necessary pending the asylum proceedings .

On DATE the applicant requested ORG to order his release . That request was rejected on DATE .

On DATE ORG made an application to ORG for prolongation of the applicant 's detention pending extradition until DATE . On DATE ORG refused that application .

On DATE ORG ruled that the applicant 's extradition was permissible . It observed that the applicant had been charged with an ordinary criminal offence of appropriation of property . It also found that the applicant 's allegations of his persecution on account of his activities in the NORP opposition group had not been corroborated by evidence . It also noted in this respect that the applicant 's inconsistent submissions indicated that he had attempted to avoid criminal responsibility for the offence in question . On DATE ORG prolonged the applicant 's detention until DATE .

The applicant appealed to ORG on DATE . He alleged , among other things , a breach of Articles CARDINAL and CARDINAL § CARDINAL of the Convention . He maintained that all available sources , for example reports of international human rights organisations and daily press materials , consistently showed GPE as a country that did not respect fundamental human rights . Reported instances of unlawful arrests and unfair trials , as well as of beating and maltreatment were so wide - spread that they justified the applicant 's fears that if he were extradited , he would be denied a fair trial and would be subjected to inhuman and degrading treatment in NORP prisons . Lastly , the applicant submitted that he had already informed the NORP authorities that CARDINAL DATE he had been arrested by the NORP police in connection with his participation in an anti - government demonstration . In his opinion , all those circumstances showed that the request for extradition was made for the purpose of punishing him for his political activities .

ORG upheld the contested decision on DATE .

On DATE the applicant asked the ORG to apply Rule CARDINAL of its Rules of Procedure and to stop his extradition to GPE . That application was rejected on DATE .

On DATE ORG gave a decision fixing the final deadline for the applicant 's detention in the extradition proceedings for DATE . That decision was upheld on appeal on DATE .

The applicant was extradited to GPE on DATE .

On DATE the applicant , while in detention pending extradition , applied to the Minister of ORG for asylum in GPE . He submitted that for DATE he had been a member of a NORP dissident organisation , i.e. ORG “ Restitution ” ( ORG “ Odrodzenie ” ) and that , because of his political activity , he risked revenge from the ORG authorities . He further alleged that the charges against him were based on entrapment by a former officer of the ORG .

The Minister of ORG , pursuant to section QUANTITY , requested the Minister of ORG to issue an opinion on the applicant 's request . On DATE the Minister of ORG objected to the grant of asylum . This decision was upheld on appeal on DATE . The Minister of ORG , having made relevant inquiries , found no reliable evidence of the applicant 's alleged activities in the opposition movement in GPE . It also observed that the applicant had applied for asylum only after he had been detained with a view to extradition , while he had had sufficient time to do so earlier .

On DATE the Minister of ORG rejected the applicant 's request for asylum . He upheld his decision on DATE . The Minister found that the actions of the NORP prosecuting authorities against the applicant had not been politically motivated . He observed that there had been many inaccuracies in the applicant 's account given in support of his asylum request . He also considered that the applicant lacked even basic knowledge about the opposition group of which he had allegedly been a member . The Minister further observed that the applicant had applied for asylum only after he had been placed in detention pending extradition despite the fact that during the period of his alleged persecution he had been in GPE on a few occasions . It noted that at the relevant time the applicant had left GPE legally and that he had travelled back to his home country on CARDINAL occasions . Furthermore , he did not apply for asylum immediately after he had entered GPE , but instead took steps to regularise his stay in GPE . Those facts indicated , in the Minister 's view , that the applicant had no reason to fear for his life or limb and that his application for asylum constituted an abuse of the relevant procedures .

On an unspecified date in DATE the applicant appealed to ORG against the unfavourable decisions of both Ministers .

On DATE ORG dismissed the applicant 's appeal . It upheld the findings of the Ministers and considered that the applicant could not be granted asylum as he had not demonstrated that he had been persecuted in GPE on account of his alleged political activities in the opposition movement .

In his application of DATE the applicant stated that during his detention his correspondence had been opened and intercepted by the NORP authorities . He has not submitted any documentary or other evidence in support of his submissions .

In his application of DATE the applicant submitted that if he were extradited to GPE , he would be exposed to a serious risk of torture and be denied a fair trial . He relied on the fact that he was a member of ORG “ Restitution ” and that he had received from that organisation a silver medal for his activity . He further produced a copy of the document entitled “ Information of ORG on Violation of Human Rights in DATE ” . In the opinion of the authors of that document , the NORP authorities were responsible for several physical attacks on persons criticising President PERSON , as well as on independent journalists . Those attacks were carried out by unknown persons . Culprits had not been found . The authorities had also made some attempts to discredit their political opponents by , for instance , bringing criminal proceedings against them . That document also described the very difficult conditions of detention in NORP prisons .

Until DATE , i.e. the date on which the Law of DATE ( commonly referred to as the “ new Code of Criminal Procedure ” ) entered into force and repealed the DATE Code , the rules governing detention and extradition proceedings were contained in the latter statute .

LAW read :

“ 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 serious repercussions for the accused or his family . ”

Article CARDINAL § CARDINAL read :

“ Extradition shall be refused if a person to be extradited is a NORP national or has been granted asylum in GPE . ”

LAW specified :

“ If information contained in a request for extradition is insufficient and the court or the prosecutor has asked for it to be supplemented and if , within DATE following the date on which [ the requesting ORG ] has been served with the request for supplementary information , [ that ORG ] has not produced the necessary documents or information , detention shall be lifted . ”

Article CARDINAL § CARDINAL provided :

“ The provisions of this LAW shall not apply if an international agreement , to which GPE is a party , provides otherwise . ”

LAW reads , in so far as relevant :

“ CARDINAL . Upon a request and subject to the provisions of this agreement , the Contracting Parties undertake to surrender to each other persons who are on their territory in order to proceed against them for an offence or to carry out a sentence . ”

Article CARDINAL reads :

“ If the information communicated [ by the requesting ORG ] is not sufficient to allow [ the requested ORG ] to rule on a request for extradition , the requested ORG may ask for the information to be supplemented . To this end , the requested ORG may fix a time - limit of DATE [ for the receipt thereof ] . If there are important grounds [ for doing so ] , that time limit may be prolonged for a [ further ] DATE on the request of the requesting ORG . ”

Article CARDINAL provides :

“ After the receipt of the request for extradition , the requested ORG shall promptly take steps to detain the person concerned . This shall not apply to cases where it is evident that extradition is not admissible under this agreement . ”

DATE lays down the following :

“ The requested Contracting party may release the person detained pursuant to LAW if no supplementary information has been produced within the time - limit laid down in LAW . ”