No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1964 and lives in Perm.

The applicant’s son N. was born on 23 August 2005.

On 15 February 2009 the applicant killed his wife by stabbing her several times with a knife. She died on the same day. The applicant’s son, three years old at the time, witnessed the murder.

On 17 February 2009 the applicant was arrested.

On 3 April 2009 N.’s maternal grandmother V. was appointed N.’s guardian.

On 25 May 2010 the Dzerzhinskiy District Court of Perm found that the applicant could not be held responsible for the murder of his wife which had been committed owing to a temporary psychiatric disorder in the form of an acute reaction to stress. It ordered compulsory psychiatric treatment for the applicant in a psychiatric hospital.

On 3 August 2010 the Perm Regional Court (“the Regional Court”) upheld the above decision on appeal.

On 25 February 2011 the Ordzhonikidzevskiy District Court of Perm found that psychiatric treatment was no longer necessary and ordered the applicant’s release from the psychiatric hospital.

According to the certificate issued by the Perm Regional Clinical Psychiatric Hospital, the applicant remained under psychiatric supervision until March 2014.

On 10 March 2011 the applicant applied to the Ministry of Social Development for the Perm Region (“the childcare authority”) in order to have the child returned to him.

On 11 May 2011 the childcare authority rejected the applicant’s request.

The childcare authority and V. instituted court proceedings seeking to deprive the applicant of his parental responsibility over N. The applicant brought a counterclaim, challenging the childcare authority’s refusal to return the child to him and seeking the termination of V.’s guardianship over N.

On 16 August 2012 the Dzerzhinskiy District Court dismissed the application by the childcare authority and V. to deprive the applicant of his parental responsibility over N. It also dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him. In taking that decision the Dzerzhinskiy District Court relied on the report of a psychological examination of the child carried out on 6 July 2010 by a municipal centre for children’s psychological, medical and social adaptation. The report stated, in particular, that N. was in the process of developing the basis of his mental and psychological health, for which he needed stability, to be provided first and foremost by constant caregiver figures and a permanent place of residence. Based on the report the court found that N. had been living with and had been brought up by V. from the age of three, that he had not seen his father for over a year, since summer 2011, that the applicant had been working on shifts and was out of town every two months out of four, that N. was going to start primary school and that V. had already chosen a school near the boy’s place of residence. The court concluded that, in view of the age of the child and his attachment to V., a change of his place of residence could be traumatic and was therefore undesirable. The court noted, however, that the applicant still had the possibility to communicate with N. and meet him.

On 27 March 2013 the Regional Court upheld the above judgment on appeal.

On 22 May 2012 the Justice of the Peace of the 5th Court Circuit of the Dzerzhinskiy District of Perm ordered the applicant to pay child maintenance to V. in an amount that was equal to a quarter of his income, starting from 28 April 2012 until the child’s coming of age. The judgment became final on 18 September 2012. The applicant makes regular payments.

On 28 May 2012 the applicant applied to the Motovilikhinskiy District Court of Perm (“the District Court”) for contact rights. He submitted that V. was preventing him from seeing N. and asked to be granted visiting rights every Saturday or Sunday for three hours in V.’s presence.

During the hearing the applicant stated that it was very important for him to resume contact with his son. He was aware that his son, who had not seen him for a long time, needed time to get used to him again. He was ready to change his place of work to be able to adapt better to his son’s schedule. He also stressed that he paid child maintenance and supported him financially. He was under psychiatric supervision and his mental health had improved.

V. stated that the applicant had intentionally and cruelly killed N.’s mother. He had committed the murder in front of N. and had thereby caused him profound psychological trauma. The applicant should not be allowed to see N. as it would undermine his health and psychological development. It would therefore be against N.’s interests to resume contact with his father.

On 5 September 2012 the District Court ordered a psychological examination of N. to establish whether it was possible to resume contact between N. and his father, and if so what form that should take, and the frequency and duration of contact. The experts were also asked to establish whether contact between N. and his father could damage N.’s health or psychological development.

On 11 April 2013 the applicant informed the District Court that he would be on a business trip from 4 May to 6 June 2013 and asked that no hearings be scheduled during that period.

On 29 April 2013 the District Court scheduled a hearing in the case for 14 May 2013.

According to the Government, on the same day a court clerk notified the applicant of the hearing of 14 May 2013 by calling him on his mobile telephone, and on 7 May 2013 by sending him a letter by registered mail, which was, however, returned undelivered on 23 May 2013.

According to the applicant, he was never informed about the hearing of 14 May 2013. He submitted a list of telephone calls, provided by his mobile operator, showing that he had received no calls from the court.

On 14 May 2013 the District Court held a hearing. The applicant and his counsel were absent. V. did not attend either. The record of the hearing reads as follows:

“The secretary reported on the appearance [of the parties at the hearing].

Failed to appear: plaintiff, defendant, notified. [Defendant] informed that impossible to participate at hearing owing to visit to a sanatorium with the child.

The possibility of examination of the case in the absence of the parties is considered.

[Representative of childcare authority]: [I] consider it possible.

The court ... held: continue examination of the case ...”

On the same day the District Court dismissed the applicant’s application. The District Court took the following factual elements into consideration:

- the applicant was the father of N., a minor, aged seven years old at the time;

- the child’s mother had died on 15 February 2009 from multiple stab and cut wounds inflicted on her by the child’s father, the applicant;

- pursuant to the decision of 25 May 2010 the applicant had been exempted from criminal responsibility for the murder of his wife and ordered to have compulsory psychiatric treatment in a psychiatric hospital;

- the murder had been committed in the presence of the child;

- on 25 February 2011 the compulsory psychiatric measures in respect of the applicant had been lifted;

- on 3 April 2009 the child’s maternal grandmother V. had been appointed the child’s guardian;

- the child resided with V., his housing conditions were adequate and he had been provided with the necessary clothing, a place for play and rest, as well as toys and books;

- the applicant wished to see the child on a weekly basis, on Saturdays or Sundays, by taking him out to the cinema, theatre and other places for children and by being afforded an opportunity to stay with the child at his paternal grandparents’ house;

- on 16 August 2012 the Dzerzhinskiy District Court had dismissed the claims of the childcare authority and V. to deprive the applicant of his parental responsibility over N. and had dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him;

- the applicant’s housing conditions were adequate;

- the childcare authority had expressed a view that the applicant’s claim should be dismissed as being contrary to the child’s interests;

- that according to the report of 2 May 2009 issued by the municipal centre for children’s psychological, medical and social adaptation, presented by V.:

“During the examination N. behaved restlessly, he wandered from room to room and performed chaotic movements with the keys. It can be assumed that the child is in a state of stress ... Only after a certain time ... the boy relaxed and started talking calmly, and agreed to draw a family. N. appeared stressed when drawing. On the drawing the boy depicted his mum, dad and himself. However, it is unclear why the whole family was drawn by the boy. This could reflect the child’s wish to have a full family, or it could mean that the murder of his mother has been erased from the child’s memory, which could be a defensive mechanism.

Having compared N.’s references from the nursery school dated November 2008 and the above observations of 2 May 2009, it can be noted that the child’s behaviour has changed, showing signs of acute psychological and traumatic distress. This is confirmed by the child’s grandmother, who submitted that the child is agitated ... has difficulty falling asleep, cries in his sleep and has started to show aggression ... In the [psychological centre] N. also displayed verbal aggression to other children. [The psychologist] therefore came to the conclusion that N. needed timely psychological or psychotherapeutic assistance to overcome the consequences of a psychological trauma.”

- reports from N.’s nursery school, dated November 2008, and from his current kindergarten;

- the carrying out of a psychological examination of the child, as ordered by the court on 5 September 2012, had been impossible owing to V.’s refusal to allow the experts to have access to the boy, meaning the case material was returned to the court by the expert without enforcement.

In the light of the foregoing, the District Court concluded that it was not in N.’s interests to resume contact with his father. The District Court noted, in particular, that the applicant had not submitted any information about the current state of his mental health, and he had not shown that his mental health had improved or that he did not present a danger to N. Furthermore, the District Court took into account the fact that N. had been brought up by his grandparents from the age of three, that he had an established way of life and that he had not seen his father for a long time. The applicant often left on long business trips, which would prevent weekly meetings. Lastly, both grandparents had refused to see the applicant because of their hostility towards him, which made it impossible to organise meetings between N. and the applicant.

In his appeal submissions the applicant complained, in particular, that a psychological examination of N. had never been performed. The finding that it was not in N.’s interest to resume contact with his father had therefore not been based on the assessment of an expert. He also complained that neither he nor his counsel had been informed of the date of the hearing of 14 May 2013. Lastly, he enclosed an expert opinion of 17 May 2013, which read as follows:

“Conclusions:

In view of the incompleteness of the data [failure to examine N. in view of V.’s refusal to give the experts access to N.], the experts consider that at the present time only short meetings between [the applicant] and the child are possible (not more than two hours 2-3 times per month) in public places on condition that the child has a positive or neutral attitude towards the father.

An assessment of whether contact between the child and his father could damage the child’s health or psychological development is impossible given the absence of any data on the child’s psychological stability, his attitude to his father at the present time, or the influence of relatives on the child’s attitude to his father.”

On 26 June 2013 the applicant complained to the Perm Regional Judicial Department that the judge had included a false statement in the case file that he had been informed of the date of the hearing by mobile telephone. He enclosed a list of telephone calls provided by his mobile operator showing that he had not received any calls from the court. He also complained that a letter notifying his counsel of the date of the hearing of 14 May 2013 had only been dispatched on 20 May 2013.

On 23 July 2013 the Perm Regional Judicial Department replied that the fact of the belated notification of the applicant’s counsel had been confirmed. Given that an appeal against the judgment of 14 May 2013 was pending, that issue would be examined during the appeal proceedings.

On 18 September 2013 the Regional Court held an appeal hearing. The applicant and his counsel were both present. The Regional Court upheld the judgment of 14 May 2013, finding that it had been lawful, sufficiently reasoned and justified. It noted that an expert opinion could not be obtained because V. had avoided the experts. It was impossible to take into account the expert opinion of 17 May 2013 because it had been made after the firstinstance judgment. The District Court also found that a notification letter about the hearing of 14 May 2013 had been sent to the applicant’s address but had been returned to the court as undelivered. The failure to collect the notification letter from the post office had amounted to a waiver of the right to attend the hearing.

On 24 December 2013 a judge of the Regional Court refused to refer the applicant’s cassation appeal to the Presidium of the Regional Court for examination, finding that the judgment of 14 May 2013 had been lawful, sufficiently reasoned and justified. She noted, in particular, that the expert opinion of 17 May 2013 could not lead the court to change its findings because the experts had not been able to examine N.

On 13 February 2014 a judge of the Supreme Court of the Russian Federation also refused to refer the applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings.

Despite the court’s decisions, the applicant resumed contact with N. over time, meeting the boy at school, and having telephone and Skype conversations with him.

On 23 December 2014 the applicant brought new proceedings against V., seeking to have her guardianship of N. terminated and for N. to be returned to him. V. brought a counterclaim to have the applicant’s parental responsibility restricted and to prevent the applicant’s contact with the child.

On 23 April 2015 the District Court dismissed the applicant’s application, having regard to the evidence below.

The District Court noted that N. lived with his maternal grandmother and guardian V. and that his housing conditions were adequate. During an inspection of the child’s living conditions, he had explained that he was comfortable living with V., and that they had a trusting and warm relationship. He also explained that he wished to continue living with his grandmother, but maintain contact with his father by meeting him from time-to-time and communicating with him by telephone.

The applicant’s housing conditions were also adequate.

The District Court noted the applicant’s submission to the effect that during his absences for work the child would live with his paternal grandparents. It further noted that the conditions at the paternal grandparents’ house were also suitable and that they were ready to look after N. in the applicant’s absence.

The District Court questioned N., who explained that he lived with his maternal grandparents and that he liked living with them. The boy also submitted that he communicated with his father, who visited him at school and had regular telephone and Skype conversations with him. His father took an interest in his health and his school results. N. expressed a wish to remain living with his grandmother because he had got used to it.

The District Court further found that it was clear from school reports that N. was showing good results at school, that his mental capacity was above average and that he was interested in studying. N. was being brought up by his grandmother V., who was actively engaged in N.’s school life. The applicant regularly visited N. at school. After such meetings N. only talked about computers and computer games, was less interested in studying, and became more sensitive and reserved.

Having therefore taken into consideration N.’s age, the fact that he had been living with V. from the age of three, was attached to her, loved her and had expressed a wish to continue living with her, and that the applicant’s working schedule required long absences, the District Court held that the child’s interests required that he continue to live with his grandmother, which would be more favourable to his development.

The District Court dismissed V.’s counterclaims. It held that there were no grounds to restrict the applicant’s parental responsibility or to ban his communicating with N. The applicant had positive references from work, the compulsory medical measures he had been undergoing had been lifted and he was no longer under psychiatric supervision. The applicant also cared about his son’s life and health, sought communication with him, maintained contact with him over the telephone and Internet, visited him at school, and made regular child maintenance payments. There had furthermore been no evidence that the applicant had any harmful influence on the child. The District Court emphasised that domestic law provided that a child had a right to communicate with his parents and that a guardian had no right to prevent such communication, except if it was contrary to the child’s interests.

On 2 September 2015 the Regional Court upheld the above judgment on appeal.

On 30 September 2015 the childcare authority carried out a monitoring visit at the child’s place of residence. It was established that V. did not prevent N.’s communicating with the applicant. N. submitted that he saw the applicant during breaks between classes at school and communicated with him over the telephone and by Skype.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The list of applicants is set out in the appended tables.

On the dates indicated in the appended tables the applicants obtained monetary court awards against the Municipal Unitary Enterprise Passenger Transport Company of Kotlas (MUP Kotlas Passazhirskoye avtotransportnoye predpriyatiye – муниципальное предприятие муниципального образования Котлас «Пассажирское автотранспортное предприятие»).

Some of the judgments in the applicants’ favour have been partly enforced during the insolvency proceedings in respect of the company (see paragraphs 7-10 below), while others remained unenforced to date.

The company was incorporated as a municipal unitary enterprise. It was set up by the municipality of Kotlas. The company provided transport services in the town. It had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it.

As submitted by the applicants, the prices for the transport services in the town of Kotlas were regulated by the Administration of Arkhangelsk region.

On 28 September 2007 insolvency proceedings started in respect of the company.

On 18 September 2012 the company was declared insolvent and subsequently liquidated.


Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

The applicant, Mr Kemal Hamesevic, is a citizen of Bosnia and Herzegovina and was born in 1971. It appears that he currently lives in Bosnia and Herzegovina. He was represented before the Court by Mr Gunnar Homann, a lawyer practising in Copenhagen.

The applicant entered Denmark in 1994, when he was 23 years old. He was granted asylum the following year.

In the meantime, on 15 August 1994 he had married a woman originating from Bosnia and Herzegovina, with whom he has three children, born respectively in 1995, 1996 and 1998. The children are Danish nationals.

The spouses divorced in 2007.

On 23 February 2007 the applicant was convicted of assault and sentenced to 40 days’ imprisonment, suspended.

On 8 August 2012 the applicant and his girlfriend, A, a Danish national originating from Bosnia and Herzegovina, were arrested and charged with smuggling loaded weapons from Bosnia and Herzegovina into Denmark, in the spring and summer of 2012.

On 12 March 2013, a City Court (retten i Kolding) convicted the applicant, A, and two co-accused under Article 192 a of the Penal Code of smuggling loaded weapons from Bosnia and Herzegovina to Denmark for the purpose of resale (four AK 47 machine guns and two pistols), and attempt to do so (ten pistols), as well as offences under the Weapons Act (notably possession of ammunition). The applicant was found to be the instigator and was therefore sentenced to two years and six months’ imprisonment. A was sentenced to one year in prison.

In addition, the applicant was expelled from Denmark with a life-long ban on returning. Before the City Court the Aliens Board (Udlændingestyrelsen) gave a statement about the applicant’s situation, inter alia, that the applicant’s father lived in Bosnia and Herzegovina and that his mother had died eleven years before. The applicant’s children would not be covered by the applicant’s expulsion. The applicant had worked in Denmark, but for the two previous years he had received social welfare benefits and taken medication against depression. During the two previous years, he had been on vacation in Bosnia and Herzegovina around five times and he was in the process of buying a house in the town of Sanski Most. He did not want to move to Bosnia and Herzegovina, however, since he only had his father there, and his children were in Denmark. The City Court stated:

“The applicant has had a legal stay in Denmark for more than nine years [referring to the wording in section 22 of the Aliens Act]. Since he is convicted of violation of Article 192 a of the Penal Code, the legal authority for expulsion is set out in section 22, no. 8 of the Aliens Act. It transpires from section 26, subsection 2, of that Act that an alien shall be expelled under sections 22-24 and section 25, unless such would be in breach of Denmark’s international obligations. Having made an overall assessment of the information contained in the statement by the Aliens Board, including notably the connection to his home country, and the age of the applicant’s children in Denmark combined with the sentence and nature of the crime, the City Court does not find that expulsion would be in breach of Denmark’s international obligations. Accordingly, the claim to expel the applicant is granted by the City Court. By virtue of section 32, subsection 2, no. 5, the expulsion is permanent due to the length of the sentence”.

The applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) before which he explained, among other things, that his children, who lived with their mother, had visited him in prison twice a week. Before his imprisonment, he had seen them almost every day. The applicant and A had lived together for a couple of years and had married on 31 May 2013. Moreover, the applicant had acknowledged paternity of a child, E, born to A on 26 September 2007, at a time when she was living with R, the father of A’s other children, Danish citizens born in 1992, 1995, 1999, and 2001. The applicant owned a piece of land in Serbia, but he could not build on it. He had inherited it from his mother. He and A had to give up their plan to buy a house in Bosnia and Herzegovina since, due to his arrest, they could not pay for it. His father was 74 years old.

A explained that she and the applicant had been a couple for six years and had long intended to marry. It had been a difficult period when both she and the applicant had been in pre-trial detention and she could not see her daughter, E. The latter now lived with a foster family and visited A every second weekend. If the applicant were to be expelled, she and the children would have nobody to lean on in Denmark. She was from Bosnia and Herzegovina, but no longer had any family there, and she could not see how she and the children would be able to move to Bosnia and Herzegovina with the applicant.

By a judgment of 13 August 2013, the High Court increased the applicant’s sentence to three years’ imprisonment and upheld the expulsion order. It adhered to the reasons set out by the City Court and added that the fact that the applicant, after the City Court’s judgment, had married A, and that the paternity case concerning five-year-old E had been reopened, could not lead to a finding that the applicant’s expulsion would be in breach of Denmark’s international obligations.

Leave to appeal to the Supreme Court (Højesteret) was refused on 27 December 2013.

In the meantime, on 12 July 2013 a City Court had reopened the paternity case concerning E, who until then had had R registered as her father. On 17 October 2013, the same City Court confirmed that the applicant was E’s father.

On 6 March 2014, before having served his sentence, the applicant requested that the expulsion order be revoked under section 50, subsection 1, of the Aliens Act due to material changes in his circumstances, notably because it had been established that he was E’s father.

The case was submitted to the City Court (retten i Svendborg), before which the applicant explained that A and the children would not follow him as they would not be able to cope in Bosnia and Herzegovina.

A explained, among other things, that she lived in an apartment with the three youngest children, including E. At the relevant time the children were 15, 13 and 7 years old. The two eldest had moved away from home. Her children spoke Danish and Bosnian. She did not have a job. If the applicant were to be expelled, she would have to stay in Denmark, because the children could not live by themselves, and she could not envisage taking E to Bosnia, as E would not be able to understand that she would no longer attend school in Denmark. A’s parents lived in the United States of America. She only had the applicant, and her children in Denmark, and she needed a man to support them. Her children with R had contact with him and visited him as they liked. They had stayed with him when she was in pre-trial detention.

A statement of 4 September 2014 by the Aliens Board was submitted before the City Court setting out, inter alia, that the applicant was able to speak and write in Danish. He had received frequent visits in prison from his sister, brother-in-law, children and stepchildren. The applicant’s father had died and the applicant no longer had any close family in Bosnia. He had been offered a job as a driver, to begin when he had served his sentence.

On 18 November 2014 the City Court refused to revoke the expulsion order, finding that no material changes had occurred in the applicant’s circumstances.

On appeal to the High Court, the applicant and A were heard anew. The latter now stated that her children did not speak much Bosnian. She could not follow the applicant to Bosnia. They had nothing in Bosnia. It would be very difficult for them to settle there.

On 20 January 2015, having made an overall assessment, which notably took into account on the one hand the applicant’s connection to Denmark and on the other hand, the seriousness of the crime committed and the sentence imposed, the High Court confirmed the decision to refuse to revoke the expulsion order. In the High Court’s view, the expulsion order would not be disproportionate or in violation of Article 8 of the Convention. The High Court gave weight to the fact that both the applicant and A were from Bosnia and Herzegovina, and accordingly spoke Bosnian. Moreover, A had stated that her three youngest children, who lived with her, spoke Danish and Bosnian. Therefore, the High Court found it established that it would be possible for them to continue family life with the applicant in Bosnia. Finally it noted that the applicant’s children with his ex-wife, who were aged 16, 18 and 19, lived with their mother.

Leave to appeal to the Supreme Court was refused on 13 April 2015.

Finally, the Aliens Board, by a decision of 4 March 2015, upheld on appeal by the Refugee Appeals Board (Flygtningenævnet) on 26 May 2015, found that there were no impediments to deporting the applicant to Bosnia and Herzegovina.

The applicant was deported shortly thereafter.

The relevant provisions of the Aliens Act (udlændingeloven) relating to expulsion were recently set out in detail in Salem v. Denmark, no. 77036/11, §§ 49-52, 1 December 2016.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Karel Jungwiert;Krzysztof Wojtyczek;Mark Villiger;Nebojša Vučinić;Nona Tsotsoria;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1964 and lives in Cork, Ireland.

The following facts were not contested by the parties.

The applicant attended Dunderrow National School from 1968. The school was owned, through trustees, by the Catholic Bishop of the Diocese of Cork and Ross who was recognised by the Department of Education and Science (“the Department”) as the school’s patron. The manager (S.), acting on behalf of the bishop, was the local parish priest. The latter being elderly and infirm, a local priest (Ó.) was the de facto manager who acted on behalf of, and in the interests of, S. The term “manager” used below refers both to Ó. and to the management function he performed. Dunderrow National School had two teachers, one of whom (L.H.) was the school’s principal, a married man. Dunderrow was one of four national schools in the applicant’s parish.

In 1971 a parent of a child complained to the manager that L.H. had sexually abused her child. That complaint was not reported to the police, to the Department or to any other State authority and was not acted upon by the manager.

During the first six months of 1973 the applicant was subjected to approximately twenty sexual assaults by L.H. during music lessons in his classroom. During the time she attended those lessons, the applicant and her parents were unaware of the allegation made in 1971 about L.H.

In September 1973 other parents brought to the applicant’s parents’ attention similar allegations concerning L.H. Following a meeting of parents chaired by the manager about this, L.H. went on sick leave. In September 1973 he resigned from his post. Those allegations were not reported at that time to the police, to the Department or to any other State authority. In a brief conversation, the applicant’s mother asked her whether L.H. had touched her. The applicant responded to the effect that something of a sexual nature had happened but she did not recall the conversation going any further. In January 1974 the manager notified the Department that L.H. had resigned and named his replacement. Soon thereafter L.H. took up a position in another national school where he taught until his retirement in 1995.

Between 1969 and 1973, the inspector assigned to the region visited Dunderrow National School on six occasions which was, as he later stated in evidence, an above average number of visits. He met with L.H. and S. He attended parent meetings on the question of Dunderrow’s amalgamation with other schools. No complaint about L.H. was made to him. He observed the teaching work of L.H. and considered it satisfactory.

The applicant suppressed the sexual abuse. While she had significant psychological difficulties, she did not associate those with the abuse. In 1996 she was contacted by the police who were investigating a complaint made in 1995 by a former pupil of Dunderrow National School against L.H. The applicant made a statement to the police in January 1997 and was referred for counselling. During the investigation a number of other pupils made statements. L.H. was charged with 386 criminal offences of sexual abuse involving some twenty-one former pupils of the school during a period of about ten years. In 1998 he pleaded guilty to twenty-one sample charges and was sentenced to imprisonment. His licence to teach was withdrawn by the Minister for Education (“the Minister”) under Rule 108 of the National School Rules 1965 (“the 1965 Rules”).

In or around June 1998, and as a consequence of the evidence of other victims during the criminal trial and subsequent medical treatment, the applicant realised the connection between her psychological problems and the abuse by L.H. and understood the extent of those problems.

In October 1998 the applicant applied to the CICT for compensation. An initial award (44,814.14 euros (EUR)) was made by a single judge. The applicant appealed to a CICT panel. She claimed that the CICT gave her the option of continuing her appeal (at the risk of finding that her CICT application would be rejected as out of time) or of accepting the initial offer of the CICT with some additional expenses (EUR 53,962.24, the non-pecuniary aspect being EUR 27,000). The applicant accepted the offer by letter of 5 November 2002 and gave the standard undertaking to repay the CICT award from any other award she may receive, from whatever source, in relation to the same injury. The award was made on an ex gratia basis. Since the State is never a party to CICT proceedings, it became aware of this award later before the High Court (see directly below).

On 29 September 1998 the applicant instituted a civil action against L.H. and the Minister, as well as against Ireland and the Attorney General, claiming damages for personal injuries suffered as a result of assault and battery including sexual abuse by L.H. Her claim against the latter three defendants (“the State Defendants”) was threefold: (a) negligence by the State arising out of the failure of the State Defendants in relation to the recognition, examination and supervision of the school and in failing to put in place appropriate measures and procedures to protect against, and put a stop to, the systematic abuse by L.H. since 1962; (b) vicarious liability of the State Defendants for the acts of L.H. since, inter alia, the true relationship between him and the State was one of employment; and (c) liability given the applicant’s constitutional right to bodily integrity, the responsibility of the State Defendants to provide primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility.

Since L.H. did not file a defence, on 8 November 1999 the applicant obtained judgment in default against him. On 24 October 2006 the High Court assessed and awarded damages payable by L.H. in the sum of EUR 305,104, comprising EUR 200,000 in general damages, EUR 50,000 in aggravated damages, EUR 50,000 in exemplary damages, and EUR 5,104 in special damages. The applicant took enforcement proceedings. L.H. claimed he had insufficient means and she obtained an instalment order of EUR 400 per month. The first payment was received in November 2007 so that she has been paid in the region of EUR 31,000 to date. She registered a judgment mortgage against that part of the family home owned by L.H.

As regards her case against the State Defendants, she requested a Professor Ferguson to advise her on the question of the adequacy of child-protection mechanisms in Ireland in the 1970s. He responded by letter of 14 April 2003. Professor Ferguson agreed that, if the child-protection protocols existing in 2003 had been in place in 1973, it was very likely that the applicant’s abuse would have been acted upon in a manner which would have ensured the promotion of her welfare. He feared that pleading the case on the basis of what the State should have known at the time would be unsuccessful because it would not be possible to project onto the past the knowledge and systems of accountability that existed in the present day.

The High Court hearing against the State Defendants began on 2 March 2004. On 5 March 2004, while the applicant was presenting her evidence, the High Court judge, in response to the applicant’s complaint regarding the absence of a State system for adverting to and addressing sexual abuse in national schools, asked Counsel for the applicant as follows:

“What evidence do I have, or what should I have deduce[d] from the evidence that has been given that either the system in operation was a bad system, and I will come back to that, or that there was an alternative system that should have been applied, and what that alternative system might have been.”

When the applicant’s case concluded, the State Defendants applied for a direction to strike out the case on the basis that no prima facie case had been made out by the applicant as regards all three grounds, submitting, inter alia, that there was no evidence of negligence. On 9 March 2004 the High Court accepted the State Defendants’ application, the court being “satisfied that the plaintiff had not established a case in negligence against the [State Defendants]” (the “non-suit” order). The court did not and was not called upon to distinguish between the two bases of the negligence claim. However, a prima facie case had been made out on the questions of vicarious and constitutional liability and evidence would be called from the defendants on those matters. The trial finished on 12 March 2004.

On 20 January 2006 the High Court delivered judgment. It found that the action was not statute barred. It also concluded that the State was not vicariously liable for the sexual assaults perpetrated by L.H. given the relationship between the State and the denominational management of national schools. Although counsel for the applicant had orally suggested that the State should be vicariously liable for the inaction of the manager, the High Court judgment did not address this point. Finally, the High Court found that no action lay for a breach of a constitutional right where existing laws (in this case, tort) protected that right. The costs of the proceedings against the State Defendants were awarded against the applicant.

In May 2006 the applicant appealed to the Supreme Court. Her Notice of Appeal challenged the finding on vicarious liability and referred to two matters: the absence of reasons for the interim ruling of 9 March 2004 and the High Court judgment’s failure to rule on the vicarious liability for the inaction of the manager. Mr Justice Hardiman described the appeal as limited to the State’s vicarious liability for the acts of L.H. and the manager, although he commented in his judgment on the other two initial claims of the applicant (direct negligence and the constitutional claim). Mr Justice Fennelly also considered that the appeal concerned only vicarious liability for the acts of L.H., although he refused to accept that the State was vicariously liable for the manager.

The appeal was heard from 11 to 13 June 2006. By a majority judgment of 19 December 2008 (Hardiman J and Fennelly J, with whom Chief Justice Murray and Mr Justice Denham concurred and Mr Justice Geoghegan dissented), the Supreme Court dismissed the appeal.

Hardiman J described in detail the legal status of national schools. While the arrangements for national-school education might “seem rather odd today”, they had to be understood in the context of Irish history in the early nineteenth century. Following denominational conflict and the later concession of Catholic emancipation in 1829, the dissenting churches and the Catholic Church wished to ensure that children of their denominations be educated in schools controlled by the denomination and not by the State or the established (Anglican) Church. Those churches were “remarkably successful” in achieving this aim: from the very beginning of the Irish system of national education (encapsulated in the “Stanley letter” of 1831), State authorities paid for the system of national education “but did not manage it or administer it at the point of delivery”. The latter function was left to the local denominational manager. While State funding was accorded on a proportionate basis to all denominational schools, the population was at the time overwhelmingly Catholic so that the majority of national schools had Catholic patrons and managers.

Hardiman J went on to describe as “remarkable” the fact that, whilst in nineteenth-century Europe firmer distinctions were being drawn between Church and State and Church influence in the provision of public services (including education) was ebbing, in Ireland the position of the Church became stronger and more entrenched. He adopted the evidence of one expert witness (in the history of education in Ireland) who described the position after the inception of the Irish Free State in 1922 and noted that the Catholic managers in this “managerial” system

“were very clearly articulate and very absolutely ... precise in how they interpreted what the situation was for national schools in the new Ireland ... It had to be Catholic schools under Catholic management, Catholic teachers, Catholic children”.

That expert witness went on to describe the answer of the Catholic Church in the 1950s to a request by a teachers’ trade union to have local committees deal with maintaining and repairing school buildings. The Catholic Church had responded that there could be no interference whatever with the “inherited tradition of managerial rights of schooling”. The limited proposal of the union was considered to be the thin edge of the wedge because, in due course, the request might be to interfere with “other aspects of the manager’s authority vis-à-vis the appointment and dismissal of teachers which was of course the key concern that had been fought for and won over the years”. Hardiman J referred to the “urgent desire” of the denominations to maintain their role in primary education.

As Hardiman J explained, the Constitution reflected this managerial structure: the obligation in Article 42 § 4) on the State to “provide for” free primary education reflected a largely State-funded, but entirely clerically administered, system of education. As a result there were approximately 3,000 national schools in Ireland: most were under the control of Catholic patrons and managers, a few were under the control of other denominations and even fewer were controlled by non-denominational groups.

Hardiman J noted that, in recent times and after more than a century and a half, the provision of education was belatedly and at least partially placed on a statutory basis by the Education Act 1998; prior to that Act the system had been administered by the 1965 Rules as well as by other ministerial letters, circulars and notes.

As to what could be gleaned from the 1965 Rules, Hardiman J noted:

“The Minister laid down rules for national schools but they were general in nature and did not allow him to govern the detailed activities of any individual teacher. He inspected the schools for their academic performance, other than religious instruction, but it did not go further than that. He was ... deprived of the direct control of the schools, and of the enormous power which that brings, because ‘there was interposed between the State and the child the manager or the committee or board of management’. Equally, the Minister did not appoint the manager or the teacher or directly supervise him. This, indeed, was the essence of the ‘managerial system’. I cannot see, on the evidence, that he had any scope whatever to make a personal judgment about either of these two individuals. Moreover, it seems to have been instinctively recognised by the parents who complained about the first defendant that the person with direct authority to receive the complaint and do something about it was the clerical and clerically appointed manager. No complaint, on the evidence, was directed to the Minister or to any State body. The matter was handled, so to speak, ‘in house’ at the election of the complainants. The end result of the process was a voluntary resignation followed by the employment of [L.H.] in another school in the vicinity.

All these factors tending to distance the Minister and the State authorities from the management of the school and the control of the first defendant are direct consequences of the long established system of education, described above and mandated in the Constitution whereby the Minister pays and, to a certain extent, regulates, but the schools and the teachers are controlled by their clerical managers and patrons. It is not the concern of the Court either to endorse or to criticise that system but merely to register its existence and the obvious fact that it deprives the Minister and the State of direct control of schools, teachers, and pupils.”

Hardiman J observed that the sexual abuse of a pupil was the negation of what L.H. was employed to do but he also found that in 1973 it “was an unusual act, little discussed, and certainly not regarded as an ordinary foreseeable risk of attending at a school”. He considered it “notable” that she did not sue the patron, the diocese of which he was bishop, his successors or his estate, the trustees of the property of the Diocese of Cork and Ross (owners of the school), the manager or his estate or successors.

Hardiman J concluded that, having regard to the relevant test for vicarious liability and to the above-described arrangements for the control and management of national schools, the State Defendants were not liable to the applicant for the wrongs committed against her. In particular, even applying the wider form of vicarious liability invoked, the Minister’s absence of direct control over L.H., long since ceded to the manager and the patron, prevented a finding against the Minister. The relationship of L.H. and the State – a “triangular one with the Church” – was entirely sui generis and a product of Ireland’s unique historical experience. The manager was

“the nominee of the patron, that is of a power other than the Minister and he did not inform the Minister of any difficulties with, or complaints about, [L.H.] or of his resignation and appointment to teach elsewhere until they were faits accomplis. He was the agent not of the Minister, but of the Catholic Church, the power in whose interest the Minister was displaced from the management of the school”.

Hardiman J commented on two of the applicant’s original claims which had “not been proceeded with”.

As to the claim of negligence by the State, he remarked

“... this is a claim which could more appropriately be made against the manager. It was he who had the power to put in place appropriate measures and procedures governing the running of the school. The Minister can hardly be responsible for a failure to ‘cease’ a course of action of whose existence he was quite unaware”.

As to the claim about the responsibility of the State in the provision of primary education under Article 42 of the Constitution and the measures put in place to discharge that responsibility, Hardiman J stated:

“I have already analysed the terms of Article 42 from which it will be seen that the Minister, in the case of this national school, was simply providing assistance and subvention to private and corporate (i.e. Roman Catholic) endeavour, leaving the running of the school to the private or corporate entities. The Minister is thereby, as Kenny J pointed out in Crowley v. Ireland [1980] I.R. 102, deprived of the control of education by the interposing of the patron and the manager between him and the children. These persons, and particularly the latter, are in much closer and more frequent contact with the school than the Minister or the Department.

I do not read the provisions of Article 42.4 as requiring more than that the Minister shall ‘endeavour to supplement and give reasonable aid to private and corporate educational initiative’, to ‘provide for free primary education’. ... In my view the Constitution specifically envisages, not indeed a delegation but a ceding of the actual running of schools to the interests represented by the patron and the manager.”

Hardiman J concluded by pointing out that nothing in the judgment could be interpreted as suggesting liability on the part of the Church and, in any event, it was quite impossible to do so because those authorities had not been heard by the Supreme Court since the applicant had not sued them.

Fennelly J, who delivered the other majority judgment, began by noting that the “calamity of the exploitation of authority over children so as to abuse them sexually” had shaken society to its foundations. Cases of sexual abuse had preoccupied the criminal courts and the Supreme Court for many years and it was surprising that that court was confronted for the first time with questions relating to the liability of institutions including the State for sexual abuse of schoolchildren in a national school by a teacher.

Fennelly J also described in some detail the history and consequent legal status of national schools, which system had survived independence in 1922 and the enactment of the Constitution in 1937. He accepted the expert’s evidence that it was not a State system but rather a “State-supported system”. He noted the clear division of power between the State (funding and fixing the curriculum) and the manager (day-to-day running of the school including hiring and firing teachers), noting that the different religions were determined to preserve and guard their own distinct religious education so that national schools developed on a denominational basis.

He considered inspectors to be a crucially important part of the system of State oversight and maintenance of standards which enabled the Minister to be satisfied about the quality of the system. However, he noted that the inspection regime did not alter the division of responsibilities between the State and the manager, the inspectors having no power to direct teachers in the carrying out of their duties. The 1965 Rules reflected this allocation of responsibilities between the Church and State authorities. Even if, in modern times, the State played a more intrusive role, responsibility for day-to-day management remained with the manager. He concluded that the State was not vicariously liable for the acts of L.H. or, for the same reasons, for the failure of the manager to report the 1971 complaint to the State. L.H. was not employed by the State but, in law, by the manager. While L.H. had to have the qualifications laid down by the Minister and had to observe the 1965 Rules and while the State had disciplinary powers in those respects, L.H. was not engaged by the State and the State could not dismiss him.

Referring back to the reference in the Notice of Appeal to the State’s liability for the failure of the manager to report the 1971 complaint, Fennelly J concluded that “[f]or the same reason, insofar as it is necessary to say so, there can be no liability for the failure of [the manager] to report the 1971 complaint. [The manager] was not the employee of the second defendant.”

Geoghegan J dissented. He accepted that neither the Department nor its inspectors had any knowledge of the assaults. He noted that, for all practical purposes, most primary education in Ireland took the form of a joint enterprise between Church and State and he considered that that relationship was such that there was a sufficient connection between the State and the creation of the risk as to render the State liable. Geoghegan J relied, notably, on the role of school inspectors. He examined in some detail the evidence given by, and concerning the role of, school inspectors noting, inter alia, that if an allegation of sexual assault by a teacher on a national-school pupil was considered well-founded by an inquiry set up by the Department, it could lead to the withdrawal of recognition or to a police investigation and, if the police found the complaint justified, to the withdrawal of the teacher’s licence to teach.

By a judgment of 9 May 2009 the Supreme Court vacated the High Court order for costs against the applicant since it was not disputed that hers was an important and complex test case. It determined that each party had to bear its own costs related to the action against the State Defendants.

The applicant was legally represented throughout the civil proceedings, although she did not have legal aid.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

A list of the applicants is set out in the appendix.

The applicants’ relatives, Aydin Ahmet and Bekir Ahmet, disappeared on 15 August 1974, along with 82 other men who were taken by Greek Cypriots from three villages, Taşkent (Tochni), Terazi and Tatlisu. Information known about this incident is set out in Cakicisoy and Others v Cyprus, no. 6523/12 (decision of 23 September 2014), which application was introduced by some 247 relatives of men who had disappeared also at this time.

The bodies of the applicants’ relatives were exhumed by the Committee on Missing Persons and their funerals took place on 22 June 2013. A forensic report indicates that the remains bore signs consistent with being hit by numerous bullets.

The Attorney-General launched an investigation into the circumstances of the missing 84 men on 27 October 2005. The details of the investigation which is still pending are set out in the above-mentioned Cakicisoy and Others decision (see paragraphs 14-20).

See the case-law set out in Cakicisoy and Others v Cyprus (cited above), at paragraphs 28-29.


Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of conviction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicant was born in 1983 and lives in Kyiv.

On 7 May 2015 the applicant stood trial before the Kyiv Obolonsky District Court, charged with unlawful purchase and possession of large quantities of narcotic drugs, an offence under Article 309 § 2 of the Criminal Code. A prosecutor was present. The applicant was unrepresented.

It appears from the trial court judgment that when questioned in the course of the trial, the applicant stated that he had been feeling unwell so had been taking Tramadol to relieve the pain. He admitted that on 22 January 2015 he had bought ten blisters of Tramadol, a narcotic-like pain reliever, from a stranger in the street for the equivalent of about EUR 53 and had been arrested shortly afterwards. He expressed remorse and asked for leniency in sentencing. In view of those admissions the trial court, relying on Article 349 § 3 of the Code of Criminal Procedure (“CCP”) (see paragraph 13 below), ruled it unnecessary to examine the evidence related to the “circumstances”, which were “not contested by any party”. On the same day the trial court convicted the applicant of illegal purchase and possession of drugs, an offence under Article 309 § 2 of the Criminal Code, and sentenced him to two years and six months’ imprisonment.

The applicant appealed, arguing that his admissions before the trial court had related only to the facts and not to the legal classification of the offence, which he maintained was erroneous. He argued that mere possession of Tramadol was not unlawful as such, except where it was in breach of the applicable regulations. For this reason, his acts should have been classified not under Article 309 of the Criminal Code as drug possession but rather under Article 320 of the Criminal Code, namely breach of the rules related to the purchase and circulation of drugs and analogous products.

On 1 July 2015 the Kyiv City Court of Appeal, sitting as a singlejudge formation, denied the applicant leave to appeal. The court stated that the applicant had admitted the circumstances of the offence and the trial court had then proceeded under Article 349 § 3 of the CCP. However, in his appeal the applicant was contesting his conviction under Article 309 of the Criminal Code and the legal classification of his actions. The court held that, because of the applicant’s admission and the procedure used at the trial under Article 394 § 2 of the CCP (see paragraph 14 below), the decision was not amenable to appeal on the grounds invoked by the applicant.

On 3 August 2015 the Higher Specialised Civil and Criminal Court dismissed an appeal on points of law lodged by the applicant, holding that the Court of Appeal’s decision had complied with the rules of criminal procedure.


CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helen Keller;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Pauliine Koskelo;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano;Yonko Grozev;Gabriele Kucsko-Stadlmayer;Ksenija Turković;Pere Pastor Vilanova

The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant’s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps.

On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27 November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m.

On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband’s discharge but that she objected.

In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital’s intensive care unit.

On 30 November 1997 a scan revealed a cerebral oedema. On 2 December 1997 another scan revealed that the cerebral oedema had diminished.

On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital’s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997.

Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended.

On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr Fernandes received blood transfusions.

On 19 December 1997 an endoscopy was performed on Mr Fernandes, confirming that he had a gastroduodenal ulcer.

On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998.

The applicant’s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day.

On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics.

At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr Fernandes for further treatment in the hospital’s outpatient department.

On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given.

On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control.

On 6 March 1998 Mr Fernandes’s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An Xray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30 p.m. the applicant’s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A sigmoidoscopy was performed which showed that the applicant’s husband had rectocolitis.

On 7 March 1998 at 1 p.m. the applicant’s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m.

According to the death certificate issued by Santo António Hospital, the applicant’s husband died from septicaemia caused by peritonitis and a perforated viscus.

On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association, stating that she had received no response from the hospitals to explain the sudden deterioration in her husband’s health and his death.

On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband’s medical records.

On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband’s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health (InspeçãoGeral da Saúde – “the IGS”) with a view to the opening of an investigation.

By an order of 20 September 2000 the Inspector General for Health ordered an investigation (processo de averiguações).

On 6 November 2001 an inspector was appointed to head the investigation.

On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared.

The applicant gave evidence on 3 April 2002.

On 23 September 2002 expert medical reports were requested. Reports prepared by experts in the fields of internal medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, in view of the deterioration in his state of health after the nasal polypectomy, it would not have been possible to save the applicant’s husband’s life.

The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant’s husband had been appropriate.

In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant’s husband.

In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings.

On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation.

On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information.

A new investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant’s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows:

“The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient’s] care ...”

Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005.

In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband’s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She further complained that the internal medicine and gastroenterology reports had been prepared each time by the same experts. The applicant therefore requested the reopening of the investigation and the preparation of a fresh expert medical report.

The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology.

The applicant gave evidence again on 27 April 2006.

The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant’s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant’s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to the care in Santo António Hospital, the expert considered that the condition of the applicant’s husband had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant’s husband’s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient.

On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows:

The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the healthcare professionals involved in A.’s medical treatment...

... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ...

Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG’s medical department between 25 January and 3 February 1998.

The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...”

In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V.

By a letter dated 31 July 2006 the applicant was informed that the disciplinary proceedings initiated against Dr J.V. would be stayed pending the outcome of the criminal proceedings (see paragraphs 59-68 below).

In the meantime, on 31 August 1998, the Medical Association acknowledged receipt of the applicant’s letter of 13 August 1998, informing her that steps would be taken in response to it.

The case was referred to the Medical Association’s regional disciplinary council for the North region. The latter obtained the patient’s medical records and sought the opinions of four specialist panels: gastroenterology, infectious diseases, general surgery and ear, nose and throat (ENT).

In its report of 14 July 1999, the gastroenterology panel issued the following conclusions:

A simple X-ray of the abdomen performed the day before the patient’s death did not detect any dilatation or perforation of the colon.

The patient’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon.

The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs.

The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment.

The conclusions of the report of 17 April 2000 by the infectious-diseases panel read as follows:

“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death.

In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery.

The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory (mandatória) in cases of this type in order to shed light on the chain of events.”

In its report the panel further held as follows:

“The inhuman conditions described in this process, as regards how the patient was treated, are another example of the situation encountered on a daily basis in our hospitals; a reflection of the appalling structural and operational conditions which require urgent analysis and change.

This board of the Infectious-Diseases Panel of the Medical Association must have a fundamental role in advocating the rights of patients and doctors in order to create better conditions of care for the former and better working conditions for the latter.

We reiterate, once more, the need to consider the creation of infectious-diseases departments/units in hospitals of the same type as Vila Nova de Gaia Hospital, in order to improve the quality of care in this regard.”

In a report of 24 April 2001 the general-surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows:

“1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient’s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures.

In a report dated 1 August 2001 the ENT panel concluded as follows:

“1. Meningitis following micro-endoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation).

The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out.

The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence.

No ENT procedures were performed during any of the patient’s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.”

In an order of 28 December 2001 the regional disciplinary council for the North region decided, after having examined the conclusions of the different specialist panels, to take no further action on the applicant’s complaint, on the ground that there was no evidence of misconduct or medical negligence.

The disciplinary council observed the following:

(i) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question;

(ii) the applicant’s husband had received appropriate treatment during his various hospital stays;

(iii) the patient’s bacterial meningitis (Pseudomonas) had been treated properly;

(iv) although the infectious-diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation;

(v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient’s serious clinical condition, a fact acknowledged by the gastroenterology and general-surgery panels;

(vi) although the infectious-diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general-surgery panel.

On 29 April 2002 the applicant lodged an appeal against that order with the Medical Association’s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time.

Criminal proceedings before the Vila Nova de Gaia District Court

On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department.

She gave evidence on 7 June 2002.

By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor (assistente).

On 7 December 2007 the public prosecutor’s office made its submissions, charging Dr J.V. with homicide by gross (grosseira) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant’s husband on 3 February 1998 in so far as the patient’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium.

The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant’s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association’s Disciplinary Council.

On 15 January 2009 the District Court acquitted Dr J.V. of the charges against him. In particular, it took the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been confirmed by the five medical experts who had given evidence during the trial.

As to the facts, the District Court considered, inter alia, the following to be established:

“The patient’s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ...

The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient’s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...

When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.”

On the subject of the surgery preceding the death of the applicant’s husband, the District Court observed as follows:

“... the patient was in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency (falência supra-renal aguda), and broad-spectrum antibiotics;

... in this medical context the patient’s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction;

... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.”

In the District Court’s view, it had not been demonstrated that the care provided to the applicant’s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant’s husband in the CHVNG and his death, which had been caused by a perforated viscus that was unconnected to the colonic disease treated by the accused. It held:

“...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile infection was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.”

The applicant did not appeal against that judgment.

Proceedings before the Oporto Administrative and Fiscal Court

On 6 March 2003 the applicant brought an action in the Oporto Administrative and Fiscal Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband’s death. She alleged, inter alia,

(i) that her husband’s meningitis had been caused by Pseudomonas cepacia bacteria which, she alleged, had been present in the operating theatre during the nasal polypectomy;

(ii) that the meningitis had been diagnosed too late, allowing the illness to become serious;

(iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband’s death.

In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing.

Between 4 and 24 April 2003 the eight doctors contested their standing to be sued (ilegitimidade passiva), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967.

On 16 April 2007 the court gave a preparatory decision (despacho saneador) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals.

On 17 January 2011 the applicant gave evidence.

During the three hearings the court heard evidence from the following witnesses:

(i) eleven doctors who had been involved in treating the applicant’s husband during his various stays in the CHVNG and Santo António Hospital;

(ii) the general practitioner of the applicant’s husband;

(iii) two doctors who were friends of the family;

(iv) the inspector who had written the final report on completion of the investigation within the IGS; and

(v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision.

On 24 May 2011 the court made an order concerning the facts. Taking into account the medical records of the applicant’s husband and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia,

(i) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly;

(ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy;

(iii) that the origin of the bacterium linked to the patient’s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect;

(iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis;

(v) that the applicant’s husband had been treated with drugs to protect his stomach in the CHVNG;

(vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and

(vii) that the applicant’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus.

On 23 January 2012 the Oporto Administrative and Fiscal Court delivered a judgment in which it dismissed the applicant’s claims. On the facts, the judgment stated, inter alia, as follows:

“The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...

When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis.

On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...;

Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach.

When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis.

While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests.

On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review;

It was not until 7 March 1998 that the patient’s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation;

The perforation had occurred 24 hours before surgery.”

The judgment concluded as follows:

“ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ...

It is considered established that [Mr Fernandes’s] death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer...

No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various aftereffects were duly explained.

Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of [Mr Fernandes’s] meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora).

Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant.

It is nonetheless surprising that the death of the claimant’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to [Mr Fernandes] at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.”

The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital.

On 26 February 2013 the Supreme Administrative Court dismissed the applicant’s claims, upholding the judgment of the Oporto Administrative and Fiscal Court. It first of all declined to review the facts considered by the lower court to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court’s decision. The Supreme Administrative Court summed up its judgment as follows:

“The lower court considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to [the patient’s] treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment.

For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient’s death.

The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics.

Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1954 and lives in Csengőd.

After the death of the applicant’s father, his second wife brought an action about the inheritance against the applicant on 13 February 2004.

At first instance, the court partly found for the applicant on 21 December 2007 but, on appeal, the Szeged Court of Appeal quashed the decision and remitted the case.

In the resumed proceedings, the second-instance court quashed a decision again on 22 February 2010, as confirmed by the Supreme Court on 8 December 2010.

In the proceedings resumed again, the Bács-Kiskun County Regional Court partly found for the applicant on 27 May 2010. The judgment became final on 4 September 2010.