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

The applicant was born in DATE and lives in GPE .

Until his retirement in DATE he worked as a teacher for TIME per week .

On DATE the applicant applied for disability benefits ( handikappersättning ) under LAW , section CARDINAL of LAW DATE ( NORP om allmän försäkring , CARDINAL:CARDINAL - hereinafter “ the LAW ” ) . He claimed that , even before his CARDINALth birthday in DATE , he had incurred extra costs due to his illness , PERSON , from which he had suffered since the DATE 's and which had been diagnosed in DATE . In support of his claim , he submitted :

A medical certificate dated DATE , produced by the applicant 's general practitioner , Doctor PERSON , at the applicant 's request , supporting his application for disability benefits . It stated that the doctor had known and treated the applicant since DATE , and that the PERSON - Marie - Tooth disease had started in DATE involving difficulties in walking , problems of balance , dragging of the feet and the patient tripping over and falling continuously . The muscles in the legs and feet had considerably withered . The illness had attacked even the hands and arms , with withered muscles and reduced strength in the fingers . Because of multiple inconveniences , the patient 's functional capacity had been strongly reduced ; he needed help for heavier household tasks , the preparation of meals , the purchase of household goods , carrying heavier objects , and for personal hygiene . The patient had incurred extra costs for medical treatment , foot rails , soft shoes , home assistance , and to some extent his food budget because of a limited ability to prepare meals ; he also had to pay for the transportation service for disabled persons , and extra travel by personal car , because of his considerably reduced ability to walk .

A statement of DATE by Doctor PERSON , reproducing extracts from the applicant 's medical records for the period DATE , with a diagnosis of the PERSON disease in DATE ;

A statement dated DATE by PERSON , Professor and Doctor of ORG , ORG , which concluded :

“ I quite agree that the diagnosis here is PERSON disease . The clinical findings and the nerve conduction studies indicate that it can be classified as type II hereditary motor and sensory neuropathy . He does show some minor pyramidal signs in the legs , which may be associated . I have explained to PERSON that although his symptoms may continue slowly to deteriorate , this is unlikely ever to become a very serious incapacity so that he becomes unable to walk . ”

On DATE ORG ( försäkringskassan -hereinafter “ the Office ” ) of GPE rejected the application , finding that the applicant 's disability had not reached the level required under LAW , section CARDINAL before DATE . CARDINAL member reserved his position , considering that the applicant 's need for assistance before turning DATE should be investigated .

The applicant , represented by a lawyer , appealed to ORG ( länsrätten ) of GPE and requested that an oral hearing be held in his case because he wished to call as witnesses his personal doctor , the doctor appointed by the ORG and all the members of the ORG who had participated in the decision of his case .

On DATE ORG refused the request with reference to section CARDINAL of ORG ( ORG CARDINAL:CARDINAL - hereinafter “ the DATE LAW ) . Its decision contained the following reasoning :

“ Written material , which includes inter alia medical certificates and extracts from [ the applicant 's ] medical journal , a multitude of submissions and other documents sent by [ the applicant ] as well as the diary notes made during the processing of the case before [ the ORG ] ... , are available in the case . There are no uncertainties as regards , at least , the basis for the medical assessment . The uncertainty regarding [ the applicant 's ] extra costs due to his disability at DATE can be clarified satisfactorily by [ him ] in writing . According to the documents , [ the applicant 's ] requests and reasons therefore are clearly defined , as are the submissions by the respondent . Nor has [ the applicant ] pointed to circumstances which would benefit from being orally presented by him . Thus , there is no reason to assume that an oral hearing could add anything meaningful . ORG therefore considers an oral hearing to be unnecessary and rejects the request to that effect . ... ”

ORG invited the applicant to mention any further circumstances he wished to invoke and to submit his final written observations in the case within DATE . In response he reiterated his request for an oral hearing , relying on LAW . He argued that the medical certificates needed to be clarified and that a witness account by his personal doctor would be important in order to establish the exact level of support that he had required at DATE . He also submitted that the members of the ORG should have been asked to give evidence about their precise reasons for refusing his request .

By a judgment of CARDINAL DATE ORG rejected the applicant 's appeal on the grounds that the medical and other evidence in the case showed that , even before he had reached DATE , he had for a considerable time been functionally impaired , but not to such a degree that , on an assessment of the overall need of assistance , he was entitled to disability benefit . The court noted that the applicant had “ commented ” ( yttrat sig ) on its rejection of his request for an oral hearing , but did not respond to his renewed request or his reasons invoked therein . In reaching this decision ORG took note of a breakdown of additional costs allegedly caused by his disability , QUANTITY , which the applicant had initially submitted to ORG on DATE .

The applicant appealed against the lower court 's judgment to ORG ( kammarrätten ) requesting it to quash the judgment and refer the case back for fresh examination . In the alternative , he requested the appellate court to find that he was entitled to disability benefits at a level corresponding to PERCENT of the basic amount as of DATE . He further requested that the court hold an oral hearing , on the same grounds as those he had presented to the lower court . He submitted that , by refusing to hold an oral hearing , the latter had breached LAW .

By a decision of CARDINAL DATE ORG rejected his request for an oral hearing , finding this unnecessary for determining whether to grant him leave to appeal , and gave him DATE to complete his submissions in writing . The applicant made further submissions and maintained his request for an oral hearing . On CARDINAL DATE ORG rejected his renewed request for an oral hearing and refused him leave to appeal .

On DATE ORG ( Regeringsrätten ) , observing that it did not normally hold oral hearings , rejected the applicant 's request for a hearing and gave him DATE within which to submit additional written observations . On DATE it refused him leave to appeal .

In this connection the applicant was given a copy of an analysis presented to ORG by its legal secretary , which included an opinion to the effect that ORG refusal to hold a hearing was not deemed incompatible with the LAW .

According to LAW , LAW ( as in force until DATE , when the DATE LAW ( CARDINAL:CARDINAL ) om handikappersättning och vårdbidrag – entered into force ) , a person who was ill or handicapped was entitled to disability benefits , provided that , before reaching DATE , he or she had been functionally impaired for a considerable time and to such a degree that he or she needed time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise had considerable extra expenses . The total need for support and assistance determined the eligibility for disability benefits and the amount of compensation . It was thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to the guidelines of ORG ( Riksförsäkringsverket ; hereinafter “ the Board ” ) the total cost of all extra needs due to the disability should attain PERCENT of a basic amount geared to the price index ( basbelopp ) in order to make the individual eligible for an allowance . In DATE the basic amount was SEK CARDINAL,CARDINAL . In DATE , when the applicant turned DATE , it was SEK CARDINAL,CARDINAL .

According to LAW , section CARDINAL of LAW ( as in force at the material time ) , such benefits were granted on a yearly basis at a level of PERCENT , PERCENT or PERCENT of the basic amount , depending on the extent to which the insured person was in need of assistance and the amount of extra expenses caused by the disability .

A decision by ORG under LAW could form the subject of an appeal to ORG , to ORG and to ORG .

The procedure in the administrative courts was governed by the provisions of LAW . Section CARDINAL provides :

“ The proceedings shall be in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would assist in the proceedings or be conductive to the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings and if it is not unnecessary and there are no particular reasons against holding a hearing ( I kammarrätt och länsrätt skall muntlig förhandling hållas , om enskild som för talan i målet begär det samt förhandlingen ej är obehövlig och ej heller särskilda skäl talar mot det ) ” .

Under those circumstances it was not possible for an individual party to obtain an oral hearing on request in the proceedings before ORG .

From the case - law of the national courts , it appears that the grounds stated in the third paragraph of section CARDINAL for refusing an oral hearing have been interpreted as being alternative rather than cumulative ( see PERSON ) .

According to the preparatory work to LAW , an oral hearing could be a valuable complement to the written proceedings and could benefit the examination of a case , in particular in CARDINAL situations : firstly , when it was necessary to hear a witness , an expert or a party or when it was difficult for a party to present the case in writing and , secondly , when different positions in the case needed to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a supplement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party 's request for an oral hearing should be given close consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing was necessary was to be determined primarily on the basis of the available information in the case . However , other circumstances could be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party 's understanding of a future decision in the case . Nevertheless , if the case was of a trivial character or the costs of an oral hearing would be disproportionate to the value of what was at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


The applicants are NORP national , born in DATE and living in GPE , GPE , GPE .

She is represented before the ORG by PERSON , a lawyer practising at PERSON , Solicitors , in GPE , GPE .

A.

The applicant is unemployed and in receipt of income support . The applicant raised an action for damages for negligence against ORG in ORG , GPE , in respect of the illness and subsequent death of her late husband . The applicant alleged that her late husband ( M ) , who smoked cigarettes from DATE to DATE manufactured by ORG ( “ the defenders ” ) , was not initially warned by the defenders that the consumption of these cigarettes would be injurious to his health . It was alleged that the defenders had a duty to warn smokers that smoking was addictive and could cause lung cancer . The defenders had failed to do so and , but for that failure , M would not have started to smoke . In DATE the defenders arranged for warnings about injury to health to be put on their cigarette packets . By that time , however , M was addicted to nicotine and , despite advice from his doctor , could not give up his smoking habit until DATE . In DATE he was diagnosed as suffering from inoperable lung cancer . The defenders denied the applicant 's claims and denied that causation had been proved , alleging inter alia contributory negligence .

Since DATE M , and following his death , the applicant , attempted to obtain the facility of legal aid from ORG ( “ the Board ” ) in order to allow them to be represented by solicitors and counsel in their court action . Every attempt to secure legal aid to sue the defenders for negligence has been unsuccessful , but legal aid was granted to pursue a judicial review of the ORG 's decision to refuse legal aid .

It was in DATE that M began his claim . On DATE a legal aid application was lodged on behalf of M , along with a supportive opinion from senior counsel . On CARDINAL and DATE M gave evidence on commission which was subject to cross - examination . On DATE M died , aged DATE , before the cross - examination stage of the commission had been completed .

On DATE , M 's counsel prepared a note , following the commission , giving his opinion as to the likely success of M 's case which was to be pursued , following his death , by the applicant . In this opinion he referred to and quoted from a letter sent to the legal aid board in GPE by a respected academic on the subject of a causal link between tobacco and cancer . In this opinion counsel stated that there would be medical evidence from the applicant 's General Practitioner , his consultant and a professor . The anti - smoking campaign had also collected good statistics on the matter .

On DATE the ORG wrote to M 's solicitors ( “ the solicitors ” ) to confirm that they believed there were difficulties with the subjects of volenti , the value of the claim , the likely cost of the case and liability .

On DATE the ORG wrote to the solicitors refusing the application . In summary the reasons were as follows :

It was not reasonable to grant legal aid .

M continued to smoke for DATE after warnings were put on cigarette packets .

His DATE consumption of cigarettes actually increased in DATE .

M was able to stop in DATE of his life ( once he contracted lung cancer ) .

There was wide publicity of the dangers of smoking in DATE and the evidence given by M on commission before his death was at times ' rather vague ' .

There were difficult questions of volenti , causation and substantial contributory negligence . The case would be difficult , complex , lengthy and expensive .

It would not be reasonable to hazard such a large sum of money on such a limited prospect of successfully gaining any worthwhile return .

On DATE , the applicant , M 's widow , lodged an appeal against the decision to refuse legal aid . ORG arranged a hearing to deal with the appeal which was attended by the applicant 's solicitor and her senior counsel . On DATE the ORG wrote to the applicant 's solicitors confirming that her appeal was unsuccessful .

In DATE , the applicant was granted legal aid to proceed in ORG with a judicial review of the ORG 's decision to refuse her appeal . Counsel submitted an opinion in support of the applicant 's case in spite of some unhelpful comments made by M on commission prior to his death . On DATE , Lord PERSON in ORG refused the petition for judicial review but indicated that he may have come to a different decision if the case could have been regarded as a test case .

On DATE , Lord PERSON ruled against a motion for caution requested by the defenders . He noted that the decision of the ORG to refuse legal aid was based on the criterion of reasonableness and not lack of probable cause . He noted that ORG was entitled , having considered the general assessment of the applicant 's prospects , to consider whether the apparent prospects justified the potential costs to public funds . The defenders claimed they wished to obtain security because of the size of their probable expenses ( MONEY on preliminary preparations alone ) and the applicant 's lack of means . Lord PERSON noted that whatever the intention behind the motion the inevitable effect of its being granted would be that the action would come to an end . The fact that the Board considered the grant of legal aid to be unreasonable from its point of view did not mean it was unreasonable from the court 's point of view that the action should be pursued . Therefore the motion was denied .

On DATE , the applicant lodged a fresh legal aid application which detailed CARDINAL new reasons why she considered legal aid should be granted namely :

The defenders had lodged a motion for caution which in effect asked the applicant to produce MONEY to cover their expenses . Their motion was refused by PERSON whose judgement was sympathetic to the applicant 's case .

The case could now be regarded as a test case or a class action as the applicant 's solicitors had lodged CARDINAL other writs in court and received instructions from CARDINAL other clients with similar claims .

Legal aid had been granted to a limited extent in GPE .

For the first time a major tobacco company , PERSON , had conceded a case in GPE .

A refusal to grant legal aid would amount to a breach of LAW .

On DATE , the applicant 's solicitors wrote to ORG with CARDINAL further reasons why they considered that legal aid should be granted . Firstly , there had been a recent and very similar case in GPE called PERSON which was successful . Secondly , the arguments used by the applicant were very similar to those used by the plaintiff in the PERSON case . Finally , there was a proposal in GPE for legislation banning any further law suits against tobacco companies if these companies settled all existing actions and made payment towards the medical costs of the smoking related diseases and the costs of anti - smoking campaigns .

On DATE , ORG wrote to the applicant 's solicitors , confirming that legal aid had been refused . On DATE , following the applicant 's application for an appeal against this decision , ORG arranged a hearing at which the applicant was represented by her solicitor and her senior counsel . On DATE the Board wrote to the applicant 's solicitors confirming the refusal of the appeal . On DATE the applicant applied for legal aid to cover judicial review of the ORG 's decision to refuse her legal aid . This application was refused by the sheriff at GPE on DATE .

The applicant 's court action is still proceeding as the applicant 's solicitors and counsel are prepared to act for her at present for no fee .

B. Relevant domestic law and practice

The relevant domestic legislation is section CARDINAL ( CARDINAL)(b ) of LAW ( GPE ) Act DATE .


The applicant is a NORP national , born in DATE and detained in GPE prison .

He is represented before the ORG by Mr B. Row , a lawyer practising in GPE upon GPE .

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

On DATE the applicant and CARDINAL other men were arrested following a series of armed robberies in GPE upon GPE .

On DATE all CARDINAL men were charged by the police with conspiracy to rob , an offence allegedly committed DATE and DATE .

CARDINAL other men were arrested subsequently and charged with the same offence of conspiracy to rob .

On DATE the applicant was remanded in custody by a ORG . Various applications for bail by the applicant were refused on the grounds that he was likely to abscond , to commit further offences or to interfere with witnesses .

Committal papers were served on the applicant 's legal representatives on or DATE . The applicant 's representatives requested an “ old style ” committal hearing .

On DATE the applicant and the CARDINAL co - accused persons were committed to ORG for trial .

The Government claim that in DATE the defence were given access to certain transcripts of audio tapes of conversations between the defendants . These had been recorded unbeknownst to the latter at the police station where they had been detained for questioning about their part in the robberies . The applicant disputes this .

On DATE the applicant and the co - accused appeared before ORG and pleaded not guilty . The case was adjourned for trial . The trial date was fixed for DATE . However , an adjournment was ordered at the request of the defendants ' representatives because counsel were not all available to represent them on the relevant dates .

The applicant claims that the transcripts of the audio tapes were disclosed to the defence on DATE following a number of requests . On DATE the defence requested the disclosure of the audio tapes themselves .

A new hearing date was fixed for DATE . On that date the case was taken out of the list at the request of the representatives of some of the applicant 's co - accused who had not had sufficient time to consider some of the prosecution evidence , particularly the audio tapes .

The trial was re - fixed to commence on DATE . On DATE the lawyers of some of the defendants applied for a further adjournment in order to consider the audio - taped evidence . The application was refused by the trial judge who , nevertheless , set aside CARDINAL and DATE for the defendants ' representatives to listen to the tapes using equipment hired by the prosecution . Then a defendant , W , indicated that he considered changing his plea and on DATE the trial was adjourned .

The trial restarted on DATE . W pleaded guilty and indicated that he would give evidence for the prosecution against his co - defendants . On DATE the applicant pleaded guilty to conspiracy to rob . All the other co - defendants also changed their pleas to guilty .

On DATE the applicant was sentenced to DATE imprisonment .


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He is represented before ORG by Odvetniška Družba Matoz D.O.O. , a law firm practising in PERSON .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG Attorney .

The applicant has been serving a sentence in the closed section of Dob Prison since DATE .

As regards the facilities available to the applicant in the cells and common areas , as well as the health care regime in the prison , the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general , see the ORG ’s decision in the case of PERSON and PERSON v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , ORG , CARDINAL , ORG , CARDINAL/CARDINAL and DATE .

Since DATE the applicant has been held in a cell CARDINAL , ORG which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

According to the ORG ’s submissions dated DATE the prison governor adopts a fire safety guide as required by LAW and in DATE and DATE CARDINAL fire safety guides were adopted . The Government submitted inter alia that the prison has provided hand - held extinguishers and that there has been a system of separate water mains with hydrants for fighting fires . In DATE and DATE CARDINAL inspections were also carried out . In DATE prison authorities were asked by ORG to enable adequate water supply for the purpose of fighting fires and the prison later informed the ORG that the deficiency has been rectified . During an inspection in DATE the ORG found that the prison did not have a fire protection or evacuation plan . Despite that , the ORG found this to be only a minor offence , as both plans were being prepared at the time of the inspection and would be finished DATE . Further , according to the Government ’s submissions the evacuation paths have been marked in prison already before the DATE inspection and the prison has been ensuring fire safety through the respect of fire legislation , through regular inspection of fire extinguishers and water mains with hydrants , through training of the staff , through measuring and repairing lightning conductors etc .

For the relevant domestic law and practice , see paragraphs CARDINAL and CARDINAL - CARDINAL of the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE ) , and paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , DATE ) , PERSON and Others , cited above , as well as PERSON v. GPE ( no . MONEY , CARDINAL DATE ) and PERSON v. GPE ( no . CARDINAL , DATE ) .


Remainder inadmissible;Violations of Art. 6-1;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant was a judge and the President of ORG ( PERSON ) . He was also a member of ORG ( PERSON sudbeno vijeće , hereinafter the “ ORG ” ) . Sometime in DATE the ORG filed a request with the ORG to open disciplinary proceedings against the applicant . They alleged that from DATE the applicant had conducted sexual relationships with minors and that from DATE onwards he had used his position to protect the financial activities of CARDINAL individuals who were known for their criminal activities , and had thus caused damage to the reputation of the judiciary , which amounted to a serious disciplinary offence . For these reasons they proposed that disciplinary proceedings be instituted against the applicant and that a disciplinary sanction be imposed , including that he be permanently removed from office as a judge and as President of ORG . Furthermore , they asked for the applicant ’s immediate provisional removal from office during the proceedings .

On DATE the ORG instituted disciplinary proceedings against the applicant . On DATE the applicant filed a motion seeking the withdrawal from the case of CARDINAL members of the ORG , namely GPE , PERSON and PERSON , on the ground that they had shown their bias towards the applicant in interviews published in various national newspapers . The motion was denied on DATE as being unfounded . At the hearing held on DATE the ORG refused the applicant ’s request that the hearings before it be public on the ground that the exclusion of the public was necessary for the protection of the interests of the applicant and the judiciary as such without any further reasoning . Further hearings were held on DATE and DATE . On DATE the ORG found that the applicant had committed a disciplinary offence in maintaining contacts and appearing in public with ORG and PERSON despite knowing that they had been convicted of numerous crimes , and of using his position to protect these CARDINAL ORG interests and gains from DATE . The ORG further found the remaining allegations against the applicant unfounded and thus requiring no disciplinary measures . It was decided to remove the applicant from his post as judge and President of ORG .

The applicant ’s subsequent “ request for protection ” ( zahtjev za zaštitu ) to ORG PERSON ) was dismissed on DATE . On DATE the applicant lodged a constitutional complaint in which he maintained that the proceedings had been unfair and that his right to respect for his correspondence had been infringed .

On DATE the ORG quashed the decision of ORG of DATE as well as the decision of ORG of DATE . ORG found that the disciplinary proceedings before the ORG had been defective because some of the evidence presented in the proceedings , such as audio recordings of intercepted telephone calls and testimony by a member of the ORG who sat on the ORG panel which considered the applicant ’s case , had not been obtained in accordance with the law . The case was remitted to the ORG .

In the resumed proceedings the first hearing was held on DATE . The applicant filed a motion seeking the withdrawal from the case of CARDINAL members of the ORG , namely GPE , GPE , GPE , and GPE , alleging that they had failed to show impartiality in statements to the press . The ORG declared inadmissible the request for GPE ’s withdrawal , since he had already withdrawn from the proceedings . The request for the withdrawal of GPE , GPE and GPE was dismissed without any further reasoning .

The applicant further requested that the proceedings be public . The request was denied . The relevant part of the transcript from the hearing reads as follows :

“ The President of the ORG informs those present that the public shall be excluded from the disciplinary proceedings because it has not been decided that the proceedings shall be public pursuant to LAW paragraphs CARDINAL of ORG .

Defence counsel PERSON requests that the disciplinary proceedings be public , justifying the request by the gravity of the case , the general public interest , the importance of the proceedings and the need to protect the defendant ’s rights .

Defence counsel GPE supports the request and adds that the right to a public hearing is the basic principle of criminal procedure and that the ORG ’s decision to exclude the public would be an attack on that right and would breach the fairness of the proceedings . If , however , the ORG decides to exclude the public from the proceedings , he requests that the ORG and ORG representatives who are waiting outside the courtroom be allowed to attend the hearings .

Counsel for the Government M.K. leaves the decision to the ORG and adds that he is not opposed to the exclusion of the public from these proceedings .

The ORG announces its

Counsel for the Government dropped all charges against the applicant save for those alleging that in the period from DATE to DATE he had continually socialised in public places with CARDINAL individuals , GPE and PERSON , who had a criminal background . Counsel asked the ORG to CARDINAL witnesses on behalf of the Government in order to prove their case , without further explanations . The ORG allowed that CARDINAL of those witnesses be called and also ordered that CARDINAL further witnesses be called ex officio . The applicant and his counsels at that time had not asked that any witnesses be called .

The second hearing in the resumed proceedings before the ORG took place on DATE . The ORG allowed a representative of the ORG and a representative of the LOC to be present at the hearing . All present were warned , under threat of criminal sanctions , that they were obliged to keep secret all that they learned at the hearing .

The ORG heard evidence from CARDINAL witnesses , including GPE and GPE , all of whom called on behalf of the Government . The evidence showed that the applicant had occasionally been seen in the company of ORG , where the applicant had a flat and was spending some of his holidays , and in the company of FAC in GPE , the applicant ’s hometown . Both PERSON and ORG stated that they had not been the applicant ’s friends , that they had no close contacts with the applicant and that they had occasionally been in the same company as the applicant , but always in public places and always in the company of other persons .

Counsel for the Government nominated another witness to give evidence about the applicant ’s contacts with FAC in GPE . The ORG accepted that proposal . As to the evidence relied on by the applicant , the transcript of the hearing reads :

“ Dr PERSON submits a written list of witnesses to be called on his behalf .

... [ the defence counsel states as follows ] :

‘ We call witnesses [ from the list of evidence ] to prove to the ORG that in the material period Dr GPE was indeed occasionally in the company of the persons with the alleged ‘ criminal background’ , but that each time , without exception , they were together with a large number of persons . Furthermore , PERSON was present only in his capacity as the owner of a restaurant and it was natural that as such he was occasionally present in the same company as Dr GPE . We call further witnesses who were often in the company of Dr GPE in GPE when GPE would occasionally join them . Our aim is to show the true nature of the allegation [ that the applicant ] “ had socialised ” and “ had been in the company of ... in public places ” ... ’

The defence counsel also asks that further witnesses , mentioned in the enclosed decision of ORG , be called

The ORG announces its

All proposals of the defendant PERSON are dismissed as unimportant , since the circumstances to which the evidence in question refers have either already been established or are of no importance for the decision . ”

The last hearing in the applicant ’s case before the ORG was held on DATE . The ORG allowed a representative of the ORG and a representative of the LOC and an interpreter to be present at the hearing . All present were again warned , under threat of criminal sanctions , that they were obliged to keep secret all that they learned at the hearing .

NORP The ORG heard evidence from a further witness , called on behalf of the Government . It also heard the applicant , who stated that the proceedings against him had been politically motivated because of his opposition to the ORG ’s senior officials with regard to the concept of the judiciary . He also stated that on DATE he had been asked to resign from the office of President of ORG and offered a post as an Ambassador , which he had refused . As to the allegations against him , he stated that he had occasionally been in the company of the CARDINAL individuals concerned but that these meetings had always been in public and in the presence of various other persons , and that the individuals in question had not been his friends . The relevant part of his statement reads :

“ ... as a high ORG official aware of my position and the responsibilities I bear , I can not and will not accept a demand ... asking me to forsake CARDINAL persons whom I knew before I was appointed to a position of responsibility in GPE . However , my acquaintanceship and relationship with them , irrespective of their past , never went beyond the boundaries of what was acceptable or would have made them questionable from the legal or moral standpoint . ”

The defence asked that CARDINAL further witnesses be heard concerning the facts of the case , which was denied .

In its decision of CARDINAL DATE the ORG established that the applicant had committed a disciplinary offence in that he had maintained contacts and socialised in public places with CARDINAL individuals who had a criminal background , a behaviour which had harmed the reputation of the judiciary and was contrary to his judicial duty . He was dismissed from the office of judge and from that of President of ORG . The relevant part of the decision reads :

“ Dr PERSON ... bears disciplinary responsibility

in that he

from DATE to DATE , while holding the post of the President and a judge of ORG , maintained contacts and appeared in public in GPE and GPE with GPE and PERSON although he had known that they had been known as delinquents

As to the exclusion of the public , the ORG held as follows :

“ Under section CARDINAL paragraph CARDINAL of ORG , disciplinary proceedings are in principle secret . Bearing in mind the nature of the disciplinary offence [ in question ] and the information in the case file , the ORG has dismissed the defendant ’s request that the proceedings be public , in order to protect the defendant ’s dignity and the dignity of the judiciary as such . Pursuant to LAW paragraph CARDINAL of LAW , in conjunction with LAW paragraph CARDINAL of ORG , the ORG has allowed the presence of ORG , employee of the ORG [ ORG High Commissioner for Refugees ] at the hearings held on CARDINAL and DATE , ORG , counsel for human rights at the OSCE [ Organisation for Security and Co - operation in LOC ] at the hearing held on DATE , and PERSON , member of the LOC mission to GPE and his interpreter PERSON at the hearing held on DATE . ”

On DATE ORG upheld the decision .

In his subsequent constitutional complaint of DATE , the applicant complained , inter alia , about the exclusion of the public from the disciplinary proceedings against him . He also alleged that CARDINAL members of ORG , namely GPE , GPE and GPE , had been partial . He further complained that no witness called on behalf of the defence had been heard in the proceedings . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s complaint as ill - founded .

On DATE an interview with V.M. , a member of the ORG , was published in the national DATE newspaper “ GPE list ” . It was entitled “ GPE was a partisan candidate , not me ” , and the relevant parts of the interview read as follows :

“ In the case at issue the ORG established that for DATE of time PERSON had had frequent public social contacts with QUANTITY persons who not only had been convicted of numerous criminal offences , but against whom criminal proceedings are currently pending - in CARDINAL case for assault on a policeman , and in the other for the trade of QUANTITY of heroin - and that he had even intervened on their behalf . PERSON was acquitted of all the other charges . All this harangue against the members of the ORG , and PERSON defence , are focussed on the part [ of the charges ] of which he was acquitted , so now many persons are unhappy because it does not fit into what [ the defence ] presented . The [ charges ] for which PERSON was found liable are clear on the facts . What is disputed is whether this amounts to a serious disciplinary offence and , if it does , which sanction is to be applied .

I joined Dr. PERSON ’s request [ for my withdrawal ] because I publicly voted against his appointment as President of ORG , and I was also mentioned as a candidate for the post of President of ORG ...

... In the case at issue , telephone conversations were not a basis for the conviction because they concerned the part of the [ charges ] for which Dr. PERSON was acquitted . Therefore , all attempts to present the ORG ’s decision as contrary to law have failed . All the evidence called by the defence referred to the [ charges ] of which he was acquitted , and it was therefore dismissed as unnecessary . ”

On DATE an interview with ORG , the then president of ORG , entitled “ Judges are appointed , but also created ” was published in the same DATE newspaper . The relevant parts of the interview read :

Question : “ -The National Judicial Council has lately been mentioned in public mostly in connection with the ‘ Olujić case’ . What is the truth about the former ORG President ?

Answer : - The decision has been taken and reasons have been given in it . I do n’t think that I have to explain a reasoned decision , everything was said in it . For me these proceedings are in the past .

Q : - However , for the sake of the public , which has received conflicting information about this case , could you be more specific ?

A : - Since you insist , I shall just say that Dr PERSON has committed a disciplinary offence not only by “ socialising ” with perpetrators of numerous criminal offences , although this in itself is a serious matter for any president of ORG , but primarily because , while President of ORG , and aware of these NORP criminal activity , that is , that they belonged to the international criminal milieu , he used his personal influence and contacts in order to protect their interests and gains . Analysis of the evidence and defence [ pleadings ] clearly showed that the ORG ’s request to institute proceedings had in no way been politically motivated or a fabricated indictment put forward by the political and partisan elite , as Dr PERSON stated in his defence and alleged before the media , referring to the President of GPE . On the contrary , the case is about indecent activities which are incompatible not only with the office of ORG President , which Dr PERSON held for a short period , but with judicial ethics in general .

Q : - And what about the interception of telephone calls ?

A : - The interception of telephone conversations concerned legally recorded telephone conversations between the above - mentioned perpetrators of numerous criminal offences , but not at all Dr GPE ’s telephone conversations . [ Olujić ] “ was netted ” by this operative measure , as CARDINAL of the witnesses expressed it illustratively . The [ National Judicial ] Council assessed that evidence , together with all the other evidence , in line with the principle of free assessment of evidence , and it did not significantly influence its decision . ”

On DATE another national DATE newspaper , “ ORG PERSON ” , published an interview with GPE , a member of the ORG and the then ORG Attorney . The relevant parts of the interview read :

“ With regard to the statements about a lack of independence on my part and my reliance on Mr Šeks [ president of ORG ] , which were published in the DATE newspaper ‘ Tjednik,’ in an article by journalist PERSON , whose hand was guided by a gentleman whose career in the judiciary ended shamefully , I see them mostly as comical , as I do the author himself . These fabricated and unsupported statements , coming from a man who held a number of highly responsible functions in the NORP judiciary , where , due to his lack of experience and knowledge , he was a corpus alienum ( a foreign body ) , do not really deserve special attention because they belong to the place from which they originate , namely , the coffee - bars . ”

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) , as in force at the material time , provided that everyone could lodge a constitutional complaint with ORG if they considered that a judicial or administrative decision , or a decision of a legal entity invested with public authority , had violated their human rights or fundamental freedoms guaranteed by LAW ( section CARDINAL ) . If ORG allowed a constitutional complaint , it had to quash the impugned decision and remit the case to the competent authority for a new decision ( section CARDINAL ) .

NORP The relevant provisions of ORG , as in force at the material time ( Zakon o Državnom sudbenom vijeću , ORG no . CARDINAL/CARDINAL ) provide :

“ The candidates for the [ post of ] President and members of the ORG shall be nominated by ORG .

Prior to the nomination of candidates , ORG shall ask ORG , Minister of ORG , ORG Attorney , ORG and law faculties to draw up a list of suitable candidates .

“ The president and the members of the ORG shall be elected by ORG for DATE from the ranks of notable judges , state attorneys , attorneys at law and law university professors having , in principle , DATE of experience .

The President and CARDINAL members of the ORG shall be chosen from among the judges , CARDINAL members from among the state attorneys and their deputies , CARDINAL member from the attorneys at law and CARDINAL members from the law professors .

The President and members [ of the ORG ] shall not be members of ORG . ”

“ Before taking up office the President and each member of the ORG shall take [ the following ] oath before the President of ORG :

‘ I swear on my honour that I will exercise my functions as the President and member of ORG diligently and in accordance with the LAW and the laws of GPE . ”

“ The President and the members of the ORG shall enjoy immunity .

The President or members of the ORG shall not be held responsible for words spoken or votes cast [ in the debates of ] the ORG .

The President or members of the ORG shall not be subjected to arrest or criminal proceedings without the ORG ’s permission .

The President or members of the ORG may be detained without the ORG ’s permission only if found perpetrating a criminal offence punishable by a prison term of DATE . In such cases the body which has detained the President or a member of the ORG shall promptly inform the ORG .

The President or a member of the ORG may be dismissed from his or her office before expiration of the term of office [ for the following reasons ] :

- if he or she resigns ;

- if sentenced to imprisonment ;

- if he or she permanently loses capacity to exercise his or her functions ;

- if he or she accepts citizenship of another ORG .

The reasons for dismissal of the President or a member of the ORG shall be established by ORG . The decision on dismissal shall be taken by ORG . ”

An application for establishing permanent inability of a member of the ORG to perform his or her function shall be lodged with the ORG ’s ORG by the President of the ORG . Such an application in respect of the President of the ORG shall be lodged by CARDINAL members of ORG .

“ The ORG shall have competence in respect of :

- appointments of the presidents of courts , judges and state attorneys and their deputies ;

- conduct of the proceedings and decisions on dismissal of presidents of courts and judges and on dismissal of state attorneys and their deputies . ”

“ The President of a court or a judge shall be subject of disciplinary liability when he or she commits a grave disciplinary offence .

Grave disciplinary offences are :

causing harm to the reputation of the judiciary or to judicial duty . ”

“ For a grave disciplinary offence one of the following measures may be imposed :

dismissal from office .

“ A president of a court or a judge punished for a disciplinary offence shall be entitled to lodge a request for protection against the ORG ’s decision with ORG after the ORG ’s decision is served on him or her .

ORG shall uphold the decision on dismissal [ from office ] or quash it and remit the case to the ORG for fresh proceedings and decision .

Where [ the ORG ’s ] decision is quashed the statutory time limits begin anew . There is no judicial review of the decision of ORG . ”

“ Proceedings [ before the ORG ] shall be conducted in accordance with the provisions of LAW , if not otherwise provided in this LAW .

... The ORG may decide that the disciplinary proceedings shall be public . ”

ORG for the functioning of the ORG are secured in the ORG budget .

The President of the ORG shall coordinate implementation of the financial plan for the resources referred to in paragraph one of this section . ”

“ For their functions the President and the members of the ORG are entitled to the compensation of costs , expenses and lost earnings , and to remuneration . ”

Pursuant to LAW . QUANTITY , PERSON , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , where the defendant requests an amendment of a final judgment following a finding of a violation of , inter alia , the right to a fair trial , by ORG , the rules governing a retrial shall apply .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

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

NORP The applicant arrived in GPE at DATE with his father and siblings . His mother appears to have been in GPE already . He had left GPE at DATE and spent DATE in GPE . His father claimed asylum with his family , including the applicant , as his dependants ; however , this claim was refused . The family were granted exceptional leave to remain and , in time , indefinite leave to remain .

The applicant was convicted of arson and abusive or threatening behaviour on DATE and sentenced to DATE in a young offenders’ institution . Throughout DATE and DATE , he was convicted of numerous counts of failure to surrender to custody and shoplifting , for which he was fined or sentenced to short periods of imprisonment or community service . On DATE , he was convicted of attempted robbery with an offensive weapon in a public place and sentenced to DATE imprisonment . He was notified of his liability to deportation as a result of this conviction on DATE .

The applicant raised a fear of return to NORP on DATE , but on DATE he informed the authorities in writing that he did not wish to pursue an asylum claim . He applied to and was accepted onto the facilitated voluntary return scheme on DATE , but withdrew from the scheme on CARDINAL DATE on the basis that he wished to pursue an asylum claim . The basis of his claim was that he would be at risk in GPE due to his father ’s previous political involvement . The applicant ’s asylum claim was refused by the Secretary of ORG on DATE .

The applicant ’s appeal against the refusal to revoke his deportation order was dismissed by the First - tier ORG ) on DATE . The ORG upheld the Secretary of ORG ’s certification that the applicant , as a danger to the community , was excluded from protection under LAW , but went on to consider his claim under LAW and CARDINAL . It was found to be wholly incredible that he should be at risk in GPE on the basis of his father ’s former political activities : not only had his father allegedly been involved in politics in central GPE and not NORP , but his father ’s asylum claim upon entry to GPE had failed . If the applicant ’s father was not considered to be at risk in DATE then , there was no reason that his son should be at risk now . The ORG noted that there was a functioning administration in GPE , unlike the rest of GPE , and that the general security situation was stable . The applicant had been born in GPE ; his father was from the area ; and his mother was a member of the PERSON , which was the majority clan in GPE . The applicant also had relatives in neighbouring GPE and possibly in central GPE . He had not established that his rights under LAW and CARDINAL would be breached by his return to NORP . In terms of Article CARDINAL it was not considered that the applicant had family life in GPE and his private life was limited given the amount of time he had spent incarcerated . The substantial public interest in his deportation , given his long history of offending , rendered his deportation proportionate .

The applicant sought permission to appeal to ORG ; however , this application was refused on DATE . The applicant sought facilitated voluntary return to NORP but again withdrew from the scheme on DATE . He was released on bail on DATE but was rearrested on CARDINAL DATE for racially or religiously aggravated assault . He was remanded on bail but rearrested on DATE pending his deportation , which was set for DATE to NORP .

The applicant sought an interim measure from this ORG to prevent his removal and on DATE , the Acting President of the ORG decided to apply Rule CARDINAL of ORG and indicated to the Government of GPE that the applicant should not be removed until further notice .

On DATE , the ORG considered information received from the Government regarding the safety of returns to NORP and all the facts of the applicant ’s case , and decided to lift the interim measure previously indicated under LAW .

Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG deems his deportation to be conducive to the public good .

Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision on the grounds , inter alia , that the decision is incompatible with the Convention .

Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .

NORP The central issue arising in this case , heard by ORG on DATE , was a claim for damages for false imprisonment by a NORP national who had been held in immigration detention from DATE to CARDINAL DATE . The ORG had sought his deportation , as a foreign national criminal , to GPE , from where it was believed that the claimant originated . However , due to various factors , the applicant ’s deportation could not be arranged and he was eventually released on immigration bail . In finding that , from DATE , the applicant ’s detention had been unlawful , ORG referred inter alia to a Memorandum of Understanding between the Government of the United Kingdom and the NORP authorities concluded in DATE and renewed in DATE , which dealt with the question of returns .

The Memorandum of Understanding provided that the NORP authorities would accept the return of persons who had no right to remain in GPE and had a right of return to NORP . Such return might be voluntary or enforced as regards the individual , but required the prior consent of the authorities . Such consent would be granted only after the provision of adequate bio - data to satisfy the NORP authorities that the individual in question had a sufficient connection to GPE , which would generally entail that the person came from a clan with a sizeable representation in the region , and/or had been born ( or had parents who had been born ) in the region , and/or had family currently residing there . Such bio - data was , in practice , difficult to obtain without a significant level of cooperation from the proposed returnee . Furthermore , on a separate but related note , there had been no practical possibility of enforced returns DATE due to a refusal by all air carriers operating flights to NORP to carry passengers who had not consented to travel .

In the case of the claimant in question , his unwillingness and inability to provide sufficient bio - data to satisfy the NORP authorities’ stringent requirements meant that , by DATE , it should have become evident that his deportation to GPE would not be achieved within a reasonable time .

The latest report published by the ORG , ORG for assessing the international protection needs of asylum - seekers from GPE , published on CARDINAL DATE , stated as follows :

“ The self - declared Republic of NORP , which has not been recognized by the international community as an independent sovereign state , has been relatively peaceful and secure with the exception of the problematic presidential elections process ...

ORG considers that a situation of generalized violence or events seriously disturbing public order does not exist to the extent that an individual present in either GPE or PERSON would be at risk of serious harm . ”

The most recent Operational Guidance Note on GPE , published on DATE , provided :

“ NORP and GPE , are in general relatively safe . A long - standing dispute exists over the territories of PERSON , NORP and Sanag , with both PERSON and GPE claiming them and the Sool - Sanag - Cayn alliances fighting to remain part of the original state of GPE . General insecurity resulting from armed violence continues to be the main protection concern in the LOC regions of GPE and there has also been an increase in violence and assassinations in GPE , since DATE , mostly in GPE , PERSON and areas around GPE .

There are major protection concerns around [ internally displaced person ] settlements both in GPE and GPE , which include overcrowding , severe levels of malnourishment , economic exploitation of children and a lack of physical security , rapes , gang rapes and other instances of sexual and gender - based violence .

The authorities in GPE will only admit failed asylum seekers returning from NORP countries who originate from their territory or those who have close affiliations to the territory through clan membership . In the case of majority clan affiliates , this means those associated with the GPE in GPE . In NORP taxis and CARDINAL vehicles can easily travel from GPE , ORG and PERSON . The main transportation between GPE and LOC is by lorry . People travel by air between GPE and PERSON . The ORG in ORG and others ... also found that a person from GPE will not , in general , be able without real risk of serious harm to travel overland from FAC to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to NORP , and then by land to GPE . This is particularly the case if the person is female . A proposed return by air to PERSON , GPE ( whether or not via FAC ) will in general involve no such risks . ”

In a report titled Human Rights Challenges : ORG and published on DATE , ORG found that :

“ While overall human rights and humanitarian conditions have continued to worsen in southern and central GPE , as well as in GPE , a stable NORP has devoted attention to democratization , institutional capacity - building , stability and development in its CARDINAL-year pursuit of international recognition of self - declared independence . While ORG takes no position on GPE ’s claim to independence , the international community should provide the de facto authorities of the Government of NORP with necessary support to promote the rights of its people , and to ensure its capacity to firmly establish broad human rights protections . ”

In their DATE Report on GPE , published on CARDINAL DATE , ORG observed :

“ Presidential elections were held on DATE in GPE . PERSON , a former opposition politician , was declared the new President in DATE . According to independent observers , the elections were generally free , fair and peaceful . However , media freedom organizations reported some instances of restrictions on journalists in the lead - up to the elections .

Tensions flared in the border areas of NORP and PERSON claimed by GPE . A new armed group clashed with NORP security forces from DATE . CARDINAL of people were reportedly displaced by the clashes .

Displaced people from southern and central GPE continued to live in difficult conditions .

Minority groups continued to suffer discrimination . ”

A Human Rights Watch report , Hostages to Peace : Threats to Human Rights and Democracy in NORP , was published on DATE and stated :

“ What PERSON has accomplished over DATE is both improbable and deeply impressive . While much of south / central GPE remains mired in chaos and bloodshed , GPE has built a hard - won peace that it has now maintained for DATE . That peace has sheltered PERSON from the horrific abuses that have destroyed so many lives across GPE . At the same time , GPE has done much to build the foundations of democratic governance grounded in respect for fundamental human rights . In DATE and DATE it held competitive and credible national elections , including parliamentary polls that put the territory ’s ORG firmly in the hands of the political opposition . There is a vibrant print media and an active and independent civil society . NORP has accomplished these things primarily on its own , in one of the world ’s most volatile regions . ”

ORG ’s more recent World Report DATE GPE , published on DATE , stated :

“ After DATE of delay , NORP finally held its presidential election on DATE . International observers deemed the polls reasonably free and fair despite an isolated incident in the NORP region , where CARDINAL person was killed . The incumbent President PERSON accepted defeat and peacefully ceded power to an opposition candidate , further advancing hopes for stability in the northern region .

The situation remains unstable in the contested regions of NORP , Sanag , and PERSON , which lie between GPE , in GPE ’s northwest , and the autonomous state of GPE in the northeast . CARDINAL of civilians were displaced by clan - based clashes and conflicts over resources in the disputed area in DATE . ”


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

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

The applicant married a NORP citizen , PERSON , and the couple had one son , ORG , born on DATE . The family lived in GPE .

In DATE , following a visit to relatives in GPE , PERSON did not return to the GPE and instituted divorce proceedings . The applicant initiated proceedings before the NORP courts in order to have LAW on the Civil Aspects of International Child Abduction ( “ LAW ” ) applied and the child taken back to the GPE .

By a decision of DATE , ORG found that the retention of the child in GPE by her mother without the father ’s consent was illegal but refused to grant a return order under LAW . The applicant ’s visiting rights were regulated through a number of interim measures pending the divorce proceedings .

On DATE , following the pronouncement of the divorce of the applicant and his wife , ORG placed the couple ’s son with the mother . After appeals , on DATE ORG regulated by a final judgment the applicant ’s access rights in a way that he had access to his son DATE every month and was entitled to spend DATE of the DATE vacation with him , including the possibility to take him to the GPE . The mother was obliged to hand over the necessary travel documents for this purpose .

The court explained that it was in the child ’s best interest to maintain emotional links with his father , which would become difficult should he be disconnected from the linguistic environment . In addition , the court , referring to LAW , found no evidence to support ORG supposition that the applicant would fail to return the child to GPE .

In DATE the applicant complained to the GPE ORG that his access granted in respect of DATE could not be exercised on account of the mother ’s reluctance to co - operate . In reply , PERSON maintained that the son was sick and needed medical treatment .

Despite assurances from the applicant that he would accompany ORG to all medical appointments that were necessary , the mother left GPE with the child for a place unknown to the applicant .

The ORG established that the mother and son had not been available on DATE as regulated in ORG judgment . On DATE the ORG warned the mother that she might be fined for her conduct . The applicant for his part initiated enforcement proceedings with no success .

On DATE the mother again failed to comply with the applicant ’s access right . On DATE the then competent PERSON ORG imposed a fine of MONEY ( ORG ) ( MONEY ( ORG ) ) on her , ordering the handover of the child to the applicant on DATE . The mother stated that she would not comply with the court judgment as regards the child ’s visit to the GPE , since there was an international warrant in place to locate the child , which might impede his return to GPE .

In the resumed first - instance administrative proceedings ORG ordered ORG to pay a fine and to reimburse the applicant ’s travel costs in the amount of ORG CARDINAL ( approximately EUR CARDINAL ) . This decision was upheld by ORG on DATE .

The applicant again requested the enforcement of the access arrangements . On DATE a bailiff ordered ORG to deliver the child ’s passport to the applicant within DATE . Nonetheless , she did not comply with this decision but handed over the child ’s passport to an employee of ORG on DATE . However , ORG did not transfer the passport to the applicant upon the bailiff ’s order but returned it to the mother on DATE .

NORP The applicant lodged a criminal complaint against the employee of ORG on charges of abuse of power . Eventually , on DATE ORG discontinued the investigation , finding no appearance of a criminal offence .

On DATE the ORG established the mother ’s non - compliance with the access arrangements in respect of DATE and imposed a further fine of ORG CARDINAL ( approximately EUR CARDINAL ) for the overdue visit . Moreover , she was ordered to compensate the applicant for the costs incurred by travelling in vain . During the hearing before the ORG the mother reiterated that she would not allow the child to travel to the GPE since the father would obstruct his return to GPE . The mother ’s request for a judicial review was rejected by ORG on DATE .

It appears that the applicant was otherwise able to have contact with his son in compliance with ORG decision .

Meanwhile , both the applicant and the mother initiated actions before ORG in DATE , the applicant seeking , in particular , a change in custody and the official deposit of the child ’s passport . The mother requested a restriction on the applicant ’s access rights , removing his entitlement to take the child to the GPE . The cases were joined .

On DATE the court rejected both actions . Nonetheless , the court allowed the applicant ’s request to have the annual summer visits moved to DATE ( in which case a missed opportunity could be substituted for by a visit in DATE ) and modified the scheme accordingly . The decision was upheld by ORG , acting as a second instance court , on DATE .

The child ’s envisaged stay with his father , first scheduled for DATE and then rescheduled for CARDINAL DATE , did not take place . The mother stated that she would not co - operate in this respect , unless the applicant saw to it that the criminal proceedings allegedly initiated against her in the GPE were discontinued .

On both occasions a police officer accompanied the applicant to the mother ’s flat , but his access right could not be enforced , since the mother had left with the child for an unknown place .

The applicant ’s first request seeking the enforcement of his right to DATE visit was dismissed by ORG as premature , because he was entitled to reschedule the visit to DATE . However , subsequent to the omission of the visit in DATE , the applicant initiated enforcement proceedings , following which a penalty in the sum of HUF CARDINAL ( approximately EUR CARDINAL ) was imposed on the mother by ORG . This decision was confirmed by ORG on DATE .

Furthermore , it appears that the applicant ’s access to his son of DATE every month , as regulated by ORG decision , did not take place at least in DATE and DATE .

The applicant brought proceedings against ORG in respect of the missing visit of DATE . Based on the mother ’s statement that she had stayed at home and been available on DATE in order to hand over the child to the applicant , his action was dismissed by ORG for GPE , acting as the second - instance administrative authority , on DATE .

Meanwhile , the applicant initiated another action before ORG , again seeking a change of custody . In an interim measure of DATE , the court ruled that the applicant ’s access rights in respect of the DATE holiday should be exercised in GPE .

NORP In its judgment of CARDINAL DATE the court dismissed the applicant ’s action . It limited his access rights to the effect that the access visits during the child ’s DATE could take place in GPE only , and this until the child ’s sixteenth birthday , explaining that the child was concerned about his father not bringing him back to GPE . The applicant was granted access visits for DATE during DATE , to be exercised in GPE as well . The court also regulated the exact DATE of DATE when the applicant was entitled to visit his son in GPE in DATE . It considered , among other things , that the child did not consider the applicant as being a member of his family , the disputes between the parents had negative impact on him and he seemed to be reluctant to leave for the GPE with his father alone .

On DATE ORG upheld the first - instance decision , rejecting the applicant ’s request to establish DATE of visit in a flexible way .

NORP The applicant ’s petition for review is pending before ORG .

The relevant rules concerning the enforcement of contact orders are contained in Government Decree no . ORG ( ORG . CARDINAL . ) on ORG , which provides as follows :

“ ( CARDINAL ) A child ’s development is endangered where the person entitled or obliged to maintain child contact repeatedly fails , by his or her own fault , to comply or to properly comply with the [ contact rules ] , and thereby fails to ensure undisturbed contact .

( CARDINAL ) Where , in examining compliance with subsections ( ORG ) , the guardianship authority establishes [ culpability on the parent ’s side ] , it shall , by a decision , order the enforcement of the child contact within DATE from the receipt of the enforcement request . In the enforcement order it shall :

a ) invite the omitting party to meet , according to the time and manner specified in the contact order , his or her obligations in respect of the contact due after the receipt of the order and to refrain from turning the child against the other parent ,

b ) warn the omitting party of the legal consequences of own - fault non - compliance with the obligations under subsection ( a )

c ) oblige the omitting party to bear any justified costs incurred by the frustration of contact .

( CARDINAL ) Where the person entitled or obliged to maintain contact fails to meet the obligations specified in the enforcement order under subsection ( CARDINAL ) , the guardianship authority may ...

a ) initiate to involve the child contact centre of the child welfare service or to take the child into protection in case the maintenance of contact entails conflicts , is continuously frustrated by obstacles , or the parents have communication problems ,

b ) initiate child protection mediation procedure ....

( CARDINAL ) If it is proved that the person liable to contact brings up the child by continuously turning him / her against the person entitled to contact and , despite the enforcement measures specified under subsections ( ORG ) , fails to comply with the contact order , the guardianship authority :

a ) may bring an action seeking change of placement if it is the best interests of the child ,

b ) shall file a criminal complaint ... ”