The applicant, Mr T.C., is a Polish national, who was born in 1953.

On 2 April 1996 E.N., with whom the applicant cohabited, gave birth to X. The boy’s birth certificate did not list the applicant as a father. Shortly afterwards E.N. was legally incapacitated because of her mental illness.

On 9 May 1996 X was placed in an orphanage.

Between 9 May and 31 December 1996 the applicant visited X in the orphanage on the following dates: 20 May, 16 June, 21 July, 1 September, 16 October and 15 December.

On 29 October 1996 the Oświęcim District Court informed the applicant that legal advice on paternity could be obtained from an advocate or prosecution service.

On 16 June 1997 the Oświęcim District Prosecutor informed the applicant that he would not bring on his behalf an action for the recognition of his paternity. The prosecutor advised the applicant that he could file himself an action seeking the confirmation of his paternity.

On 11 August 1997 the X’s mother was deprived of her parental responsibility for the boy.

On an unspecified date in 1997 the Bielsko-Biała District Court appointed a guardian (opiekun prawny) for X.

Between January and June 1998 X stayed in the Jaworz Hospital. During this period the applicant visited X on the following dates: 18 January, 1, 15 and 22 February, 8, 15, 22 and 29 March, 12, 19 and 26 April, 3, 10, 24 and 31 May.

On 22 May 1998 the Bielsko-Biała Adoption Centre submitted to the Bielsko-Biała District Court an application of M.N. and S.N. for the adoption of X. It appears that at that time X suffered from numerous health problems, including attachment disorder.

On 25 May 1998 the Bielsko-Biała District Court made an interim residence order requiring X to reside with M.N. and S.N.

On 2 June 1998 X was placed with M.N. and S.N.

On 3 June 1998 the curator (kurator sądowy) of X lodged with the Oświęcim District Court an action for determination of the applicant’s paternity.

On 8 June 1998 the applicant informed the Bielsko-Biała District Court about the beginning of the paternity proceedings before the Oświęcim District Court.

On 21 July 1998 the Director of the Bielsko-Biała Adoption Centre replied to the applicant’s complaint about placing X with M.N. and S.N. The reply read as follows:

“In reply to your letter I should inform you that the Adoption Centre acts as an intermediary in the adoption when a child referred to us has a settled legal situation i.e. when biological parents are deprived of parental rights. Our institution does not participate in this procedure and therefore we do not have any influence on the final court judgment.

I would like to assure you that in accordance with the law the child was placed with the prospective adopters, who had been earlier subjected to psychological and pedagogical examinations which qualified them for adopters.

I can also assure you that that the child at last feels happy and secure in a loving and responsible family. He paid a high price with his health during two years in a Child Centre, where there is no love without which a secure and proper development of a child is impossible.

During the whole two years, the child was waiting for parents, for his family, for his safe place. His development was impaired and occasional meetings with you disturbed his peace and sense of security.

You have to understand that a child cannot wait for so long for its place in a family. It always has negative bearing on its development.

There was a long time for fighting for him. Now it is too late. The child feels happy in a new loving family. At last, he has a sense of security and stability.

I ask you to consider these arguments and think whether you are not disturbing his happiness, for which he has been waiting for so long.

On the other hand, I would like to express my sincere compassion and understanding for your pain and sense of injustice. I cannot help you with this anymore.”

On 23 July 1998 the applicant was interviewed by the judge in charge of the adoption case.

On 23 July 1998 the Bielsko-Biała District Court stayed the adoption proceedings pending the outcome of the paternity proceedings.

On 3 September 1998 E.K., a director of the orphanage, submitted to the Oświęcim District Court the request not to grant the applicant the parental rights in respect of X when the court determines his paternity. The request included the following statement:

“[X], who was born on 2 April 1996, lived in the orphanage since he was one month old until May 1998. Since the beginning of the child’s presence in the centre I was telling the presumed father of the boy how important it was to settle his legal situation for the good of the child. On numerous occasions I encouraged Mr T (...) C (...) and his mother to take the boy as a foster family (until the settlement of the father’s legal situation) since it would be a better environment for the boy’s psychophysical development. Finally, Mr T (...) C (...) stated that he would take the boy when he grew up. During two years the legal situation of the presumed father was not clarified and he did not show interest in taking the child as a foster parent. (...)

The presumed father and the grandparents during two years did not show any significant involvement in the boy’s affairs. It seems that the child’s presence in an orphanage was convenient for the presumed father. He did not react to my suggestions that the boy be taken in a foster family until the paternity was determined.

On the basis of an analysis of the nature of the contacts of Mr T (...) C (...) with the child and his attitude to life, one can assume that the presumed father will not cope with all the pedagogical and health problems which may appear in the future development of the boy.”

The applicant submitted that the above statement was not true.

On 11 September 1998 the Oświęcim District Court ruled that the applicant was the boy’s father. It also granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X’s upbringing. The court considered that the applicant had tried to obtain the recognition of his paternity since the birth of X. Initially the applicant had intended to acknowledge his paternity in a statement made before the Registrar of Births (Urząd Stanu Cywilnego) but it had proved impossible in view of the attitude of X’s mother. Subsequently he had approached the prosecution service which had refused to bring on his behalf an action for the recognition of his paternity. In addition, the prosecutor had erroneously advised the applicant that he could file himself an action seeking the confirmation of his paternity. Furthermore, the court considered that the applicant’s visits in the orphanage were “in fact not very frequent but regular”. It concluded that granting the applicant’s parental responsibility “would be in the interest of the child and society”.

On 16 September 1998 the Oświęcim District Court rejected a request filed by E.K., acting as a guardian of X, to serve her with a reasoned judgment since it considered that she had no standing in the case. However, this decision was subsequently quashed by the Bielsko-Biała Regional Court and E.K. was served with a reasoned judgment and therefore could appeal it.

On 6 October 1998 M.N. and S.N. applied to the Bielsko-Biała District Court for an order designating them as a foster family of X. They pointed out that they had applied for the adoption of X and had obtained an interim residence order allowing the child to live with them. The boy settled in happily with a new family. However, the ruling on the applicant’s paternity created legal problems and prompted them to lodge an application in order to protect X’s security.

On 30 November 1998 the President of the Bielsko-Biała District Court replied to the letter of 25 October 1998 in which the applicant’s representative raised complaints about the adoption proceedings. He explained that the applicant was not a party to the adoption proceedings. Furthermore, the President pointed out that the judge in charge of the case had met with the applicant and had asked him whether he had been willing to take care of X if the interim residence order had been quashed. However, the applicant had not shown willingness to take X. The applicant submitted that this statement was not true.

On 4 December 1998 the Bielsko-Biała District Court stayed the proceedings concerning the foster family application pending the outcome of the adoption proceedings.

On 10 December 1998 the applicant asked the Katowice Court of Appeal to initiate disciplinary proceedings against the judges of the BielskoBiała District Court.

On 11 December 1998 E.K., acting as a guardian of X, lodged with the Bielsko-Biała Regional Court an appeal against the judgment of 11 September 1998. She agreed with the determination of the applicant’s paternity but challenged the court’s decision to grant him parental responsibility for X. The applicant should not have been granted parental responsibility because he had applied for it only after the child had been placed with the prospective adopters. Moreover, while X was still in the orphanage the applicant had refused to take him as a foster parent either alone or together with his mother. X settled very well with M.N. and S.N. and considered them as his parents. The boy’s health improved since his placement in the new family.

The applicant averred that the submissions made by E.K. in her appeal were not true and included “nasty insinuations and manipulation”.

On 28 December 1998 the applicant wrote a letter to the President of the Bielsko-Biała District Court. The letter began with the following statement:

“I do not agree with propositions in your letter of 30 November 1998 (...) sent to my representative (...). It is an expression of great hypocrisy to formulate nonsense like this: “that I did not show willingness to take immediate steps to take care of [X] in case the interim residence order is quashed”. This is clearly absurd because neither on 23 July 1993 nor now can I undertake such care unless the judge has in mind some extraordinary circumstances and orders which existed in this case. I expressed the wish (on 23 July 1998) that [X] returned to the orphanage (which in view of [X]’s illnesses presented by the prospective adopters could have been the best solution for him, especially as these illnesses (among others hernia) were probably caused by taking [X] to another unknown environment). I would like to underline that I expressed on numerous occasions (...) a wish to take care of [X] (...).”

On 29 January 1999 the Bielsko-Biała Regional Court quashed the part of the Oświęcim District Court’s judgment of 11 September 1998 concerning parental responsibility for X. The case was remitted to the District Court.

On 29 January 1999 the Bielsko-Biała Regional Prosecutor rejected the applicant’s request to prosecute E.K. and the judges of the BielskoBiała District Court on charges of perjury and corruption.

On 23 September 1999 the Oświęcim District Court, acting as a court of first instance in the paternity proceedings, gave judgment in which it granted the applicant parental responsibility for X but limited his rights by appointing a curator to supervise X’s upbringing. The court considered that the applicant had shown interest in taking care of X since his birth. However, his lack of confidence made him take only “hesitant steps” to obtain the custody of the boy. The court also pointed out that the applicant had denied that he had intended to take X only after he had become older. Moreover, it relied on expert evidence according to which the applicant understood the needs of the boy and accepted him. E.K. appealed this decision in her capacity of the guardian of X.

On 24 November 1999 the Bielsko-Biała Regional Court dismissed the request of M.N. and S.N. that they be served with a copy of a reasoned judgment of 23 September 1999. At the same time, the court rejected their appeal against the Oświęcim District Court’s decision denying them standing in the paternity proceedings.

On 20 January 2000 the Bielsko-Biała Regional Court dismissed the E.K.’s appeal against the District Court’s judgment of 23 September 1999. E.K. filed a cassation appeal with the Supreme Court.

On 7 February 2000 the applicant was granted standing in the adoption proceedings.

On 8 June 2000 the Supreme Court dismissed a cassation appeal against the judgment of 20 January 2000 lodged by E.K.

On an unspecified date in 2000 the Bielsko-Biała District Court resumed the adoption proceedings.

In the meantime, on 14 December 2000 the Bielsko-Biała District Court gave judgment in which it dismissed an application for adoption lodged by M.N. and S.N. It also repealed an interim residence order of 25 May 1998. The court stated, inter alia, that:

“During the paternity and adoption proceedings T(...) C(...) was refusing to agree to the adoption of his son. In the court’s view, (...) one cannot find in the behaviour of T(...) C(...) an abuse of his rights even though the child has presently good conditions for his development. The motives of his behaviour did not contradict the well being of the child.

The court considers that in refusing his agreement to the adoption T(...) C(...) was guided by his feelings for his son. T(...) C(...), whose paternity was determined by a court, has strong feelings for his son (...) and finds separation from him hard to bear.

It should also be noted that since the birth of his son T(...) C(...) has been trying to [obtain the custody] of his son. However, due to the circumstances – for the most of which he cannot be held responsible – and his personality, he has been unsuccessful[. As a result,] an interim order was issued placing [X] with the prospective adopters.”

On 12 March 2001 the case concerning the first foster family application lodged on 6 October 1998 was joined to the case concerning the second foster family application pending before the Oświęcim District Court.

On 18 April 2001 the Oświęcim District Court made an interim residence order requiring X to reside with M.N. and S.N. until the end of the proceedings concerning the foster family applications. It pointed out that they had been providing care to X for three years and that taking the boy by the applicant would be shocking for X. The applicant had never taken care of the boy and had not shown interest in his well being. Therefore, it was not certain whether the applicant would cope with the responsibilities of a parent and whether he fully understood the needs of his son.

On 24 May 2001 the Bielsko-Biała Regional Court dismissed the applicant’s appeal against the order of 18 April 2001.

On 3 August 2001 the Oświęcim District Court granted the applicant visiting rights. He was allowed to visit X twice a month.

On 9 November 2001 the Oświęcim District Court asked for an expert opinion on the emotional relationships between X on one side and the applicant and M.N. and S.N. on the other side. The opinion was submitted to the court on 5 April 2002.

On 12 June 2002 the Oświęcim District Court restricted the applicant’s parental responsibility for X by placing the boy in the foster family of M.N. and S.N. At the same time it dismissed their request that the applicant be deprived of his parental responsibility and repealed the order appointing a curator. The court noted that X had been living with M.N. and S.N for four years and during that time had made up for retardation in his development. However, the boy still required special care and the applicant was unable to provide it. The applicant’s misunderstanding of the reasons for which X was afraid of him and his mother showed that he knew very little about the behaviour of children. Moreover, the applicant had failed to notice obvious health problems of X while he had been living in an orphanage, such as attachment disorder and retardation in physical development.

The court further agreed with the conclusions of an expert opinion that M.N. and S.N. qualified for providing care to X while the applicant did not show understanding of the needs of the boy and would be unable to provide him with normal family life. It also observed that the applicant’s commitment to taking X was in fact limited to writing numerous letters requesting the custody of the child. Since 3 August 2001, when the applicant had been granted visiting rights, he had visited X only once. The court was of the view that the removal of X from the custody of M.N. and S.N could cause irreversible damage to him.

On 3 July 2002 the applicant filed with the Cracow Regional Court an appeal against the decision of 12 June 2002.

On 19 November 2002 the Cracow Regional Court dismissed the applicant’s appeal.

On 7 February 2003 the Bielsko-Biała Regional Court dismissed an appeal lodged by M.N. and S.N. against the judgment of 14 December 2000 rejecting their application for adoption.

In a letter of 6 May 2003 the applicant informed the Court that in view of the fact that the decision of 12 June 2002 “was based on dishonest grounds” and “gave the [foster] family even bigger advantage” over the applicant, he decided to discontinue visiting his son as visits would “create even bigger danger” for X.

The custody and adoption of children is regulated by the Family Code 1964 (Kodeks Rodzinny i Opiekuńczy).


Violation of Art. 6-1;Non-pecuniary damage - financial award

Mr Couez was born in 1941 and lives at Saint-Quentin (département of Aisne).

On 20 January 1989 he had a heart attack during the annual cross-country race held by the company of CRS (Compagnies républicaines de sécurité – mobile security police units) to which he belonged. After being on sick-leave from 20 to 23 January 1989 and from 25 January to 11 April 1989, he returned to work. On 8 February 1991 he applied for extended sick-leave and asked that his heart attack and the subsequent periods of sick-leave should be recognised as work-related so that he would be covered by the rules applicable to police officers injured in the execution of their duty.

On 3 May 1991 the inter-département medical board recommended that the application for extended sick-leave should be refused. On 14 May 1991 Mr Couez was notified of his authorities’ refusal to grant him the leave. In a letter of 27 December 1991 the Prefect of the Nord-Pas-de-Calais region informed the applicant that the medical board had recommended that his sick-leave should not be regarded as having been work-related and that he should be declared permanently unfit for active police duties and be transferred to the administrative staff until his retirement at 60; he stated that if either Mr Couez or the Ministry of the Interior refused this transfer, the applicant would be retired on grounds of invalidity with immediate effect.

On 20 January 1992 the applicant brought proceedings in the Amiens Administrative Court to challenge the Prefect’s decision of 27 December 1991 to inform him that the medical board had refused to regard sick-leave on 8 April 1990 as having been due to a work-related accident. On 5 February 1992 he also applied for a stay of execution of that decision.

In the meantime, on 25 January 1992, Mr Couez had refused transfer to the administrative staff and on 3 February 1992 the Ministry of the Interior had declared him unfit for active police duties and had placed him on the ordinary sick list with retrospective effect from 8 August 1990.

In a judgment of 2 July 1992 the Amiens Administrative Court refused the application for a stay of execution of the decision of 27 December 1991.

On 10 July 1992 Mr Couez was sent on compulsory unpaid leave of absence (disponibilité) with effect from 8 August 1991, the date on which he had exhausted his entitlement to ordinary sick-leave. On 4 September 1992, in a fresh decision, he was maintained in the same position.

On 5 August 1992 the Prefect informed the applicant that a Dr B. had been designated to examine him with a view to his being retired on grounds of invalidity.

On 24 March 1993 Mr Couez applied to the Amiens Administrative Court for an interim ruling by its President in the proceedings he had brought on 20 January 1992 (see paragraph 8 above). In an order of 25 March 1993 the President of the Administrative Court refused the application.

On 24 January 1994 Mr Couez was retired on grounds of invalidity.

On 31 May 1995 the Administrative Court made an interlocutory order for a medical report on the applicant.

On 28 June 1996 it quashed the decisions of 10 July and 4 September 1992 in so far as they kept Mr Couez on compulsory unpaid leave of absence from 15 January 1992; it also set aside the decision of 24 January 1994 whereby he had been retired on grounds of invalidity (see paragraph 12 above); the court held that the applicant should have been retired on 25 January 1992, when he had refused the transfer proposal that had been made to him (see paragraph 8 above).

On 25 July 1995 Mr Couez had appealed against the interlocutory order of 31 May 1995, and that appeal was still pending in the Nancy Administrative Court of Appeal on the date of delivery of the present judgment.

According to the Government, the applicant submitted twenty-seven pleadings between 20 January 1992 (the date of the application to the Amiens Administrative Court) and 28 June 1996 (when that court gave judgment).

On 18 March 1992 Mr Couez had also brought proceedings in the Amiens Administrative Court to challenge the decision of 10 July 1992 whereby he had been sent on compulsory unpaid leave of absence (see paragraph 9 above). He subsequently withdrew these proceedings, and on 31 May 1995 the Administrative Court delivered a judgment formally taking notice of the withdrawal.

On 31 July 1995 the applicant appealed against that judgment, and the appeal was still pending in the Nancy Administrative Court of Appeal on the date of delivery of the present judgment.

According to the Government, the applicant filed seven pleadings with the Amiens Administrative Court (between 18 March 1992 and 31 May 1995) and three in the Nancy Administrative Court of Appeal (between 31 July 1995 and 4 June 1996).

The relevant sections of Law no. 84-16 of 11 January 1984 making provisions governing the civil service provide:

Section 34

“A civil servant in post shall be entitled to:

(2) sick-leave of up to one year in all during a period of twelve consecutive months in the event of duly certified illness making it impossible for the person concerned to carry out his duties. The civil servant shall then remain on full salary for a period of three months and shall be paid half his salary for the following nine months…

However, if the illness arises from one of the exceptional causes referred to in Article L. 27 of the Civilian and Military Retirement Pensions Code or from an accident that occurred in the performance of his duties or when performing them, the civil servant shall be paid his full salary until he is able to resume his duties or is retired. He shall further be entitled to reimbursement of medical fees and expenses directly entailed by the illness or accident.

(3) extended sick-leave of a maximum length of three years in cases in which it is established that the illness makes it impossible for the person concerned to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant shall remain on full salary for one year and shall be paid half his salary for the following two years…”

Section 51

“A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights.

Leave of absence is either granted at the civil servant’s request or is compulsory at the end of the leave referred to in subsections (2), (3) and (4) of section 34 above. A civil servant on leave of absence who successively refuses three posts offered to him with a view to his reinstatement may be dismissed after consultation of the joint administrative committee.”

Section 65

“A civil servant who has become disabled as a result of a work-related accident entailing permanent disablement of at least 10% or an occupational disease may claim a temporary disablement allowance payable in addition to his salary and the amount of which shall be set as a fraction of the minimum salary … corresponding to the percentage of disablement.

The eligibility requirements and the arrangements for granting, assessing, paying and reviewing temporary disablement allowances shall be laid down in a decree issued after consultation of the Conseil d’Etat which shall also specify the occupational diseases.”


Violation of Art. 9;No separate issue under Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

On 17 August 1990 the applicant was chosen to be the Mufti of Xanthi by the Muslims who attended prayers at the mosques of that prefectural district. The Greek State appointed another mufti. However, the applicant refused to step down.

Fourth sets of criminal proceedings were instituted against the applicant under Article 175 of the Criminal Code for having usurped the functions of a minister of a “known religion” on the ground that on 11 February 1996 and 17 February 1996 he had issued and signed messages in the capacity of the Mufti of Xanthi.

The applicant was legally represented throughout the proceedings by lawyers of his own choice. The courts heard a number of prosecution and defence witnesses.

On 11 December 1997 the single-member first instance criminal court (monomeles plimmeliodikio) of Lamia found him guilty in the three first sets of proceedings on the ground that he had issued and signed messages in the capacity of the Mufti of Xanthi (decisions nos. 3913/1997, 3914/1997, 3915/1997). On 1 December 1999 the single-member first instance criminal court (monomeles plimmeliodikio) of Lamia found the applicant guilty in the fourth set of proceedings on the same ground (decision no. 4919/1999). The applicant appealed.

On 31 May 2000 the three-member first instance criminal court (trimeles plimmeliodikio) of Lamia upheld the applicant’s conviction in the four sets of proceedings. It imposed, as a whole, a sentence of eight months’ imprisonment converted into a fine (decisions nos. 1654/2000, 1655/2000, 1656/2000 and 1657/2000). He alleged that these convictions amounted to a violation of Articles 6, 9 and 10 of the Convention.

On 8 March 2002 the Court of Cassation rejected the applicant’s appeals concerning the four sets of proceedings. It considered that the offence in Article 175 of the Criminal Code was committed “when somebody appeared as a minister of a known religion and when he discharged the functions of the minister’s office including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he behaved and appeared as the Mufti of Xanthi. It further considered that the applicant’s conviction was not contrary to Articles 9 and 10 of the Convention, because the applicant had not been punished for his religious beliefs or for expressing certain views but for usurping the functions of a Mufti. As regards Article 6 of the Convention, the Court of Cassation considered that the applicant was legally represented by lawyers of his own choice throughout the proceedings and that he had exercised all his defence rights (judgment no. 304/2002).

The relevant domestic law and practice are set out in the judgment of 17 October 2002 in the case of Agga v. Greece (no. 2), nos. 50776/99 and 52912/99, §§ 33-44.


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

The applicants are sixty-four natural persons who are all French citizens (see list appended) and an association, the “Orphelins de pères malgré-nous d’Alsace-Moselle” (OPMNAN). They were represented before the Court by Mr A. Friederich, a lawyer practising in Strasbourg.

, may be summarised as follows.

The applicants are orphans whose fathers died while serving in the German armed forces during the Second World War as “malgré nous”. The term “malgré nous” describes the 130,000 or so male adults from Alsace and Lorraine who were forcibly conscripted into the German armed forces from 1942 onwards; some 40,000 of them died. To prevent these conscripts from deserting, members of their extended family were occasionally taken hostage. Some members of the families of “malgré nous” who had deserted the German armed forces were subjected to forced labour or sent to concentration camps as reprisals.

The Federal Republic of Germany as successor to the German Reich and the French Republic agreed on substantial compensation payments. On 15 July 1960 the Federal Republic of Germany paid 400 million German marks to the French Republic to indemnify French nationals who had been direct victims of Nazi persecution. On the basis of the Franco-German treaty of 31 March 1981, the Federal Republic of Germany made available 250 million marks to the “Fondation Entente Franco-Allemande”, a foundation established under French law, which is responsible, inter alia, for distributing compensation payments to those who were forcibly conscripted; the Federal Republic of Germany and the French Republic agreed that with these payments the “malgré nous” had been compensated. Orphans of deceased “malgré nous” were not eligible for compensation.

One applicant lodged a petition with the German Bundestag. On 20 September 2007 the Bundestag decided to discontinue the examination of the petition on the grounds that the German and French governments had agreed that the payments in 1960 and 1981 had been the final gesture (abschließende Geste) towards the former French soldiers who had been forcibly conscripted into the German armed forces.


Remainder inadmissible;Violation of Art. 8;Respondent State to take individual measures;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen

The applicant was born in 1960 and lives in Rijeka.

In February 1999 the applicant married A. However, in July, while she was pregnant, A. left the applicant and on 25 December 1999 gave birth to a daughter, I.K.

Several separate proceedings concerning contact between the applicant and his daughter I.K. were conducted before the Rijeka Municipal Court as well as before the Rijeka Social Welfare Centre (hereinafter “the Social Welfare Centre”).

At the beginning of 2000 the applicant asked the Social Welfare Centre to issue a decision regulating his contact with I.K.

On 26 April 2000 the applicant complained to the Social Welfare Centre that he saw his daughter only for one hour a week and that the child, who had started to recognise human faces, was scared of him because his face was not familiar to her. He requested to be allowed to see the child every four days, because he worked in Italy and his work schedule was organised in such a way that he worked for three whole days and then had a fourth day off.

On 4 May 2000 the applicant saw a psychiatrist at the suggestion of the Social Welfare Centre's personnel. A medical report drawn up by the psychiatrist indicated that the applicant was suffering from paranoid psychosis and recommended that contact between the applicant and I.K. be supervised by the child's mother or another person. The psychiatrist reiterated that conclusion in his report of 1 June 2000.

On 10 June 2000 the Social Welfare Centre issued a decision giving custody of I.K. to the child's mother and ordering that meetings between the applicant and I.K. take place every Tuesday – between 9.30 a.m. and 10.30 a.m. at the Rijeka Counselling Centre for Marriage, Family and Youth (hereinafter “the Counselling Centre”) in the presence of the child's mother and an employee of the Counselling Centre.

On 16 June 2000 the Ministry for Work and Social Welfare quashed the first-instance decision on the ground that it was necessary to hold an oral hearing before adopting a decision in the case. Nevertheless, the meetings between the applicant and I.K. were arranged at the Counselling Centre.

On 19 January 2003 the Social Welfare Centre issued a decision ordering meetings between the applicant and I.K. every Tuesday – between 9.30 a.m. and 11.30 a.m. at the Counselling Centre in the presence of an employee of the Counselling Centre.

The applicant lodged an appeal on 19 January 2003 which was dismissed on 7 December 2004 by the Ministry of Health and Social Welfare.

Meanwhile, on 21 March 2000 A. brought a civil action in the Rijeka Municipal Court seeking a divorce from the applicant. On 24 July 2002 the Rijeka County Court adopted a divorce judgment ordering the applicant to pay maintenance for I.K. and also granting him contact with I.K. every Tuesday between 9.30 a.m. and 11.30 a.m. in the presence of a third person. The applicant lodged an appeal arguing, inter alia, that it was difficult for him to come to Rijeka every Tuesday, due to his work schedule in Italy. He further explained that in order to see his daughter on Tuesdays, he often had to drive at night and was obliged to ask his colleagues to replace him at work, which caused him significant difficulties.

On 15 January 2003 the Rijeka County Court quashed the part of the judgment concerning contact between the applicant and I.K. and that part of the case was remitted to the Municipal Court.

For the purposes of the resumed proceedings before the Municipal Court, on 2 March 2005 the Counselling Centre drew up a report on the meetings between the applicant and I.K. The report stated that the applicant and his daughter had been meeting regularly on the Counselling Centre's premises since June 2000 and that they had developed a warm personal relationship. However, in view of the child's age and needs, further meetings on the Counselling Centre's premises would not be possible because the premises were not considered appropriate.

At a hearing held on 6 September 2005 a psychologist from the Counselling Centre, S.M., stated that the meetings between the applicant and his daughter had been held in the Centre's kitchen or offices of its employees and that the Centre had no suitable space for the meetings.

That opinion was reiterated in a further report of 8 November 2005.

In the resumed proceedings the Rijeka Municipal Court gave judgment on 30 November 2006 granting contact between the applicant and I.K. every Tuesday – between 9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K. attended school in the morning – at the Counselling Centre, in the presence of a member of staff. The Municipal Court based its decision on reports by a psychologist and a psychiatrist on the applicant's mental health, commissioned for the purposes of the proceedings. The reports established that the applicant suffered from paranoid psychosis and stipulated that contact between him and I.K. should be supervised. The Municipal Court made no comments as regards the applicant's argument about the time of the meetings and his work schedule.

As regards the place of the meetings, the relevant part of the judgments reads:

“... this court has ordered that contact ... between the child I.K.G. and her father still be held at the premises of the Counselling Centre, under the supervision of a third person, to be designated by ... the Welfare Centre ... because it finds that this decision is in the interests of the welfare of the child. An extension of [the father's] parental rights ... is possible on the condition that he undergoes the treatment recommended in the report by the expert [in psychiatry].

This court has ordered that contact take place on the premises of the Counselling Centre given that during these proceedings the Welfare Centre did not make an adequate proposal as to the premises on which contact – which should be limited in view of the father's diagnosis – should take place. This court has also taken into account the fact that the [child] attends school on a changing schedule and has ordered contact accordingly ...”

On 19 December 2006 the applicant lodged an appeal, in which he again explained the situation regarding his work schedule. For that reason he sought an order for contact with I.K. every fourth day for a duration of ten hours, or every eighth day, with I.K. spending the night at his home. He also requested to spend half of the winter and summer school holidays, half of all bank holidays, and half of Christmas Day, which was also I.K.'s birthday, with her.

On 9 March 2007 the Rijeka County Court upheld the judgment of the first-instance court. It made no comments as to the applicant's arguments related to his work schedule in Italy. The relevant part of the judgment concerning a suitable place for meetings between the applicant and his daughter reads:

“On the basis of the report by the Rijeka Welfare Centre of 28 July 2005 the first- instance court established that the [opinion of the Welfare Centre] was that the meetings between the applicant and his daughter could no longer be held at the premises of the Counselling Centre because it was no longer suitable for the child's needs and in this respect the [first-instance] court heard evidence from witness S.M., a psychologist at the Counselling Centre. On the basis of her evidence the first-instance court established that on several occasions the Rijeka Welfare Centre had sought the opinion of the Counselling centre about the meetings between the applicant and his daughter; that the witness had actively participated in these meetings; that the relationship between the applicant and his daughter was good; and that the staff of the Counselling centre were of the opinion that the decision by the Welfare Centre concerning contact should be altered, an opinion with which she personally agreed, in particular in view of the passage of time since the last decision by the Welfare Centre, that the daughter had advanced in age and that the premises of the Counselling Centre were no longer suitable. However, she had no idea or suggestion as to a suitable location for the meetings or as to whether the presence of a third person was necessary. Finally, [she was of the opinion] that the meetings could also be held outside [the centre], but in the presence of a third person given that the applicant suffered from certain disorders, [which could lead to him acting overly] suspicious.

On the basis of a further opinion by ... expert [in psychiatry] M.B. of 6 November 2006 the first-instance court established that ... there were no reasons to restrict the rights the applicant had thus far enjoyed in connection with his contact with his daughter, and that a possible extension of his parental rights could be granted on the condition that he cooperated in his medical treatment.

Taking the above-mentioned report as a starting point ... the [first-instance] court ordered that the meetings between I.K.G. and the applicant should continue at the premises of the Counselling Centre in the presence of an expert ... since during the proceedings the Welfare Centre had made no adequate proposal as to the premises on which contact, which, in view of the applicant's diagnosis, should be restricted, should take place. The [first-instance] court found that that decision had also taken into account that the daughter attended school on a changing schedule and ordered contact with her father accordingly. An extension of his parental rights ... was possible on the condition that he undergo treatment, as recommended in the opinion of the expert.

... in its reasoning the first-instance court cites correct and valid reasons which this court endorses completely. ... the first-instance court ordered that the meetings between the applicant and his daughter were to be held on the premises of the Counselling Centre, because during the proceedings the Welfare Centre did not make an adequate proposal as to suitable premises for those meetings ...”.

On 5 June 2007 the applicant lodged a constitutional complaint. Inter alia, he reiterated his arguments about the time of the meetings with I.K. and his work schedule and the arguments concerning the suitability of the premises for their meetings.

On 25 September 2008 the Constitutional Court dismissed the applicant's constitutional complaint. It made no comments as to the applicant's arguments about the time of the meetings and his work schedule and his arguments concerning suitable premises for the meetings.

In the meantime, and subsequent to the judgment of the Rijeka County Court of 9 March 2007 (see paragraph 22 above) on 27 August 2007 the applicant sought the Rijeka Municipal Court to change the decision on contact between him and I.K. in view of his work schedule, and in view of the statement of the Counselling Centre that there was no suitable space there for meetings between the applicant and I.K. He also stated that on 23 July 2007 the Counselling Centre had informed him that meetings were no longer possible on its premises. The applicant asked that meetings between him and I.K. be held in his flat in Rijeka.

In his submissions of 6 September 2007 the applicant complained that he had not seen I.K. since July 2007 because the Counselling Centre had been closed.

At a hearing held on 29 October 2007 the applicant stated that he had had no contact with I.K. for the past three months.

On 29 October 2008 the Rijeka Municipal Court ordered contact between the applicant and I.K. one day a week for two hours on the premises of the Rijeka Social Welfare Centre in the presence of J.T., a retired special needs expert. The relevant part of the decision reads:

“... this court has ordered that the meetings [between the applicant and his] daughter shall take place one day a week for a duration of two hours, depending on the child's school activities and the day when the father is in Croatia. Since the father is free every fourth day, because he works for three whole days, he is always free on one day of the week.

Since the applicant had no adequate suggestion as to the premises of the meetings, this court holds that the meetings are to be held on the premises of the Rijeka Social Welfare Centre, which is the most suitable place [in terms of] space for the meetings.”

On 7 January 2009 the applicant lodged an appeal with the Rijeka County Court complaining that the meetings were not possible at the Social Welfare Centre and asking that the meetings be held in his flat in Rijeka. He also complained that for the past seventeen months he had had no contact with I.K.

On 20 January 2009 the Social Welfare Centre submitted to the Rijeka County Court that they had no suitable place for meetings between the applicant and I.K. since, owing to a shortage of space, two to three staff members shared the same office. The only space where the applicant and I.K. could meet was the corridor, which, in the Centre's view, was not a suitable location.

On 3 November 2009 the Rijeka County Court upheld the decision of the Rijeka Municipal Court of 29 October 2008 and specified that meetings be held between the applicant and I.K. every Thursday – between 9.30 a.m. and 11.30 a.m. in the weeks when I.K. attended school in the afternoon, and between 3.30 p.m. and 5.30 p.m. when I.K. attended school in the morning – at the Social Welfare Centre, in the presence of J.T. The relevant part of the decision reads:

“The assessment of the first-instance court as regards the place for the meetings is correct ...

... the first-instance court correctly assessed that, in view of the circumstances of the case, the most suitable place for the meetings could for now only be the premises of a State institution, since an institutional setting would enable an appropriate response to made to any unexpected situation. ...

... this court finds that the [Rijeka Social Welfare Centre] as a public institution responsible for ... implementation of measures aimed at protecting the interests of minor children, is obliged to enforce such measures, including the supervision of meetings between children and their parents, and to ensure that all necessary conditions are met. This includes [providing] the premises for meetings where they cannot be organised in a different manner.

... this court finds that it is in the interest of the daughter, irrespective of her current age ..., to meet her father every Thursday for two hours, depending on her school schedule, because Thursday is, owing to the child's weekly schedule, the most appropriate day.”

On 7 May 2009, while his appeal against the decision of the Municipal Court was still pending, the applicant again requested the Rijeka Municipal Court to change its decision on contact between him and I.K. He relied on the above allegations of the Centre about the shortage of space.

The applicant also reiterated his arguments as regards his work schedule.

On 8 March 2010 the Rijeka Municipal Court ordered contact between the applicant and I.K. once a week when the applicant was free for a duration of three hours in the presence of a third person. The parents were to find a solution as to the place of the meetings.

The applicant alleged that this judgment was not properly enforced because no suitable place for the meetings was found and the child's mother refused to let him meet I.K. in his flat.

The relevant articles of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 85/2010. of 9 July 2010, consolidated text) provide:

“Everyone has the right to respect and legal protection of his or her private and family life ...”

The relevant part of the Family Act from 1998 (Obiteljski zakon, Official Gazette no 162/1998), in force until 22 July 2003, reads:

“When parents do not live together a social welfare centre shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent, where it is not decided by this Act that such decision is to be adopted by a court.

The relevant part of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) reads:

“(1) When parents do not live together a court shall decide with which parent the child shall live and also order the manner and time of the contact with the other parent.

(2) In order to ensure the child's welfare contact and meetings between the child and the parent he or she is not living with may be restricted or banned, and in view of the circumstance of each case a court may also designate a person who shall be present during contact.


Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Mr Ivan Krastev Tsvetkov, is a Bulgarian national who was born in 1939 and lives in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs R. Nikolova, of the Ministry of Justice.

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

On 15 November 1997 the applicant entered into a preliminary contract under which a Mr K.N. undertook to sell to the applicant a plot of land. Shortly afterwards, K.N. died.

On 17 November 1998 the applicant brought an action against K.N.’s heirs before the Sofia District Court, requesting the court to declare the contract final.

In these proceedings the applicant argued that K.N. could have sold the land as he had obtained it through adverse possession. The defendants contested the claim, stating that the land had belonged to their father, a son of K.N., who had died before K.N. and who had purchased the plot in 1969.

The court held a number of hearings in which the applicant participated without counsel.

By a judgment of 19 May 2000 the District Court dismissed the action, finding that the preliminary contract had been null and void ab initio as it had not determined with sufficient precision the boundaries of the disputed plot of land.

On an unspecified date the applicant filed an appeal with the Sofia Regional Court.

The court held several hearings. At the hearing of 7 February 2002 the applicant failed to appear. According to the record from the hearing, the court accepted a request, filed by the applicant’s representative, for additional evidence to be obtained.

By a judgment of 9 July 2002 the Regional Court upheld the lower court’s judgment.

On 5 December 2002 the applicant filed a cassation appeal, presenting once again his arguments, namely that the preliminary contract had been valid as the plot had been identifiable and that K.N. had acquired it through adverse possession. The defendants made submissions in reply, which were accessible to the applicant.

The hearing before the Supreme Court of Cassation was listed for 18 February 2004.

On 16 February 2004 the applicant requested the adjournment of the hearing on the ground of ongoing health problems. In support he presented a medical certificate.

At the hearing on 18 February 2004 the defendants objected to the applicant’s request for adjournment. They stated that the applicant had counsel who could represent him. Following deliberations, the court found that the applicant:

“... had had counsel in the proceedings before the second-instance court as evident from the legal representation contract [between him and] P.V. [The latter] was authorised to represent the [applicant] at all levels of the court proceedings ...”

The court therefore found that the conditions for adjournment set out in Article 107 § 2 of the Code of Civil Procedure had not been met and proceeded with the hearing.

At the hearing the defendants requested that the cassation appeal be dismissed on the grounds already set out in their written submissions in reply to the cassation appeal.

By a judgment of 27 February 2004 the Supreme Court of Cassation dismissed the appeal. The court examined the arguments of the parties and agreed with the applicant that the preliminary contract had been valid. It found, however, that K.N. had never obtained title to the plot.

The applicant has submitted a declaration by P.V. to the effect that he never acted as counsel for the applicant in the proceedings at issue.

At the material time the relevant court was under a duty to adjourn a hearing in the event that a party and his representative were not able to attend due to an impediment which the party could not have removed (Article 107 § 2 of the Code of Civil Procedure 1952). This provision was reproduced verbatim in the new Code of Civil Procedure 2007 (Article 142 § 2).

At the material time the cassation appeal was to be submitted to the relevant Court of Appeal which was under a duty to send a copy to the other party. The other party was then entitled to submit, within fourteen days, submissions in reply to the cassation appeal. On expiration of this period, the Court of Appeal was duty-bound to send both the cassation appeal and the reply to the Supreme Court of Cassation, which would then examine the case in an open hearing (Article 218в § 1 in relation to Articles 218г and 218e of the Code of Civil Procedure 1952).

The Code of Civil Procedure 2007 introduced new requirements and procedure for the admissibility of cassation appeals.