Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1944 and lives in Sliema.

The applicant is the owner of a property named “London” at 1 Moroni Street, Gzira, Malta (a two-storey house, with stairs allowing access to the second floor, each floor having two main rooms and a smaller room, as well as a terrace; and with further rooms on the roof (hereinafter “the property”)). Following the death of the applicant’s uncle on 16 July 1975, the applicant and another five heirs inherited his uncle’s estate, including the property. By a deed of partition of 30 April 1980 the property was assigned to the applicant as sole owner.

In 1976 the property was requisitioned and allocated to P.S. In 1987 the applicant became aware that on an unspecified date P.S. had left the property and given the keys back to the authorities, and that the property had then become occupied by a certain C.C., who had no title to it (since it had not been allocated to him by the authorities).

The applicant complained to the Housing Authority, which, instead of condemning the illegal occupation, on 23 May 1988 issued a new requisition order, assigning the property to C.C. Subsequently, C.C. obtained a development permit to carry out alteration work to the property. The work was carried out without the consent of the applicant, as owner.

Throughout the years while the requisition order was in force, the applicant was meant to receive an annual rent of 40 Maltese Liras (MTL) (approximately 93 euros (EUR)) from the Housing Authority. That amount was increased to MTL 80 (approximately EUR 185) in 2010 or thereabouts. However, the Housing Authority has not been paying the applicant since 2003, nor does it transpire that the rent has been deposited in court. According to the Government, the applicant has never requested such payment from the authorities.

The applicant considered that those amounts were far below the rental value of the property.

After having written to the Housing Authority several times to no avail, on 20 October 2009 the applicant instituted constitutional redress proceedings against the Housing Authority and the Attorney General. He requested the court to find that the requisition orders had breached his rights under Article 1 of Protocol No. 1 to the Convention. Consequently, he sought to annul the order, and requested the release of the property in his favour with free and vacant possession. He also sought an award of compensation for the occupation of the premises, as well as any other relevant redress. In so far as relevant, paragraph three of his application concerning the facts of the case reads as follows:

“In 1987, after the applicant had inherited the property, he discovered that a certain PS had left the property ...”.

It then specified in paragraph four that “on 23 May 1988 the same authority again requisitioned the same property by means of requisition order no. 16830”. In paragraph ten the applicant noted that his rights were being breached as a result of “the requisition order mentioned above”. Lastly, his first request to the court was to the effect that the court should “declare the abovementioned requisition ... as being in breach ...” and his second request read “to annul all requisition order issued against the applicants” (tannulla l-ordni ta’ rekwizzjoni kollha rilevanti maħrugin kontra tagħhom).

According to the Government, when giving evidence in court on 30 November 2009, the applicant mentioned the deed of partition of 30 April 1980. At the same time he acknowledged that he did not contest the requisition order issued in 1976 (no record of this has been provided).

Pending the outcome of the proceedings, the court appointed an expert to make a valuation of the property. According to a report of 21 January 2010 the expert considered that the annual rental value of the property on the market in 1987 was MTL 249 (approximately EUR 580), and that in 2010 it was MTL 1,223.50 (approximately EUR 2,850). Its sale market value was estimated at EUR 95,000.

By a judgment of 14 July 2011 the Civil Court (First Hall), in its constitutional jurisdiction, found in favour of the applicant. It held that although the measure was lawful and pursued a legitimate aim, the applicant had suffered a breach of his property rights on account of the lack of proportionality of the measure, in so far as it made the applicant bear a disproportionate burden, given the low amount of rent applicable compared to the market rental value of the property. It held, however, that the measure was not abusive in so far as C.C. suffered from a physical disability and lived on social benefits. He thus required lodging compatible with his needs to avoid hardship and the property at issue was adequate for such purpose.

The court further held that the Attorney General should not have been summoned as a defendant in the case (m’huwiex leġittimu kontradittur). The applicant was therefore ordered to pay his own costs of the proceedings as well as those of the Attorney General (in total approximately EUR 2,950).

The court held that given that the violation had arisen solely from a lack of fair balance, it was not necessary to annul the requisition order and release the property. Referring to domestic case-law, it held:

“... while this [constitutional] court has a wide latitude in giving any order it may consider relevant in order for it to safeguard Articles 33 to 45 of the Constitution and human rights and fundamental freedoms as defined in the Convention, such latitude was not unlimited and was circumscribed by the judicial system of the country, which did not allow this court [of constitutional jurisdiction] to amend national laws, nor could it make mandatory an action which according to domestic law was discretionary, nor could it order the Housing Authority to pay rent or compensation of a higher value than that provided for by the relevant law. Compensation, if any, which may be paid by this court [of constitutional jurisdiction] is that for the violation found.”

The court awarded the applicant EUR 21,000. sic.); for a number of years C.C. had paid the Housing Authority MTL 40 per year and it was only recently (sic.) that the rent had been increased to MTL 80; that the applicant had only received payment up until 2003; that the rental value of the property on the market in 1987 was MTL 249 (approximately EUR 580), and in 2010 it was MTL 1,223.50 (approximately EUR 2,850); and lastly, that the requisition order had been issued in the public interest to procure accommodation for those in need, and thus the compensation payable could be less than the full market value.

The applicant appealed, complaining that the court had failed to annul the requisition order and return the property to him despite finding in his favour. He had thus remained a victim of the situation as the court had not given him an appropriate remedy for the violation. He also complained that the compensation was far too low and had not been determined in accordance with the applicable market value. He further argued that the Attorney General had been the correct defendant given that the amount of rent depended on the law, which in consequence was also an issue in the case. It does not transpire from the written pleadings that the applicant explicitly raised the issue of compensation in relation to the years before 1988, during which he had already been an owner of the property.

The Housing Authority and the Attorney General also appealed. They agreed with the merits of the first-instance decision, but requested the court to reduce the award of compensation which had been awarded arbitrio boni viri and not on proper calculations, and this especially since the applicant had waited twenty years before instituting proceedings.

A hearing was held on 14 November 2011.

By a judgment of 24 February 2012 the Constitutional Court reduced the amount of compensation to EUR 16,000. It, too, considered that the applicant should be penalised for the delay (of twenty years since coming into possession of the property) in instituting proceedings, as had been done in other domestic cases. It noted that, according to European Court of Human Rights case-law, State control over levels of rent may often cause significant reductions in the amount of rent chargeable; in the circumstances of the present case it was therefore not appropriate to make awards in accordance with market values. It considered that the firstinstance court had been free to make an award equitably, and correct to make no award for the time prior to 1988, the date when the applicant had become the owner of the property (sic.) and before which he had had no ties with it. The Constitutional Court also refused to annul the order, given that it had been issued lawfully and had pursued a legitimate aim. It considered that in such circumstances it was not appropriate (mhux indikat) to release the property and to evict the tenant (as also held in previous cases, namely Carmen Cassar vs Director of Social Accommodation, Constitutional Court judgment of 12 July 2011 and Gatt vs Attorney General, Constitutional Court judgment of 5 July 2011), nor could it impose a higher rent for the future, when such rent was not provided for by law (as also held in Cassar, cited above). It reiterated that its role was limited to awarding compensation for the violation found. The same had also been held by the European Court of Human Rights. Compensation in cases of a constitutional nature was not equivalent to civil damage, which could be pursued before the courts of ordinary jurisdiction.

The Constitutional Court further confirmed that the proper defendant was solely the Housing Authority, and not the Attorney General, as the applicant was not contesting the constitutional validity of the law itself, but solely the requisition order issued in respect of his property. The Constitutional Court upheld the first-instance court’s order for the payment of costs and ordered the applicant to pay the costs of all the parties related to the appeal.

As a result of this judgment, the applicant had to pay his share of the costs of the proceedings as well as those of the Attorney General at first instance, and those of all the parties on appeal.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1979 and lives in Muş.

On 19 April 2003 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation.

On 20 April 2003 the applicant’s statements were taken by the police in the absence of a lawyer. During the interrogation, the applicant gave a detailed account of his acts within the illegal organisation PKK (the Kurdistan Workers’ Party).

On 22 April 2003 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul State Security Court, again in the absence of a lawyer. In his statements before both the public prosecutor and the investigating judge, the applicant denied the accusations and maintained that his statements to the police had been given under duress. On the same day, upon the order of the investigating judge, the applicant was placed in pre-trial detention.

On 6 May 2003 the public prosecutor at the Istanbul State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation under Article 168 of the former Criminal Code, Law no. 765.

The State Security Courts were later abolished by Law no. 5190 of 16 June 2004, and the case was transferred to the Istanbul Assize Court.

On 19 September 2006, relying on, inter alia, the applicant’s statements to the police, the Istanbul Assize Court convicted the applicant under Article 314 § 2 of the new Turkish Criminal Code and sentenced him to six years and three months’ imprisonment.

On 19 November 2007 the Court of Cassation quashed the judgment on procedural grounds.

On 30 December 2008 the Istanbul Assize Court convicted the applicant again under Article 314 § 2 of the new Turkish Criminal Code and sentenced him to six years and three months’ imprisonment.

On 20 March 2012 the Court of Cassation upheld the judgment of the Istanbul Assize Court.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1962 and lives in Sesto Fiorentino, Italy.

In 1997 in New York the applicant married M.G., who held joint American and Russian nationality. On 3 October 1997 M.G. gave birth to their son.

In 1998 the family moved to Italy, where three more children were born: a son on 7 February 2000, a daughter on 22 July 2002 and a son on 26 February 2006. All four children hold joint American and Russian nationality.

In September 2007 the applicant and M.G. separated.

On 18 June 2009 the applicant applied for a divorce.

While the divorce proceedings were ongoing, on 27 August 2011 M.G. took the children and left Italy for Russia.

Since the removal of the children the applicant has travelled to Russia on over fifty occasions, trying to bring them back to Italy and maintain contact with them, however, M. G. has prevented him from doing so.

The case file material indicates that the applicant saw the children on several occasions at their school between 15 October and 26 October 2012 when he taught English there on a voluntary basis.

He also saw the children in the short period which followed Dzerzhinskiy District Court’s decisions to grant his application for a temporary contact arrangement pending a decision in the proceedings in Russia to determine the children’s place of residence (see paragraphs 47-48 below).

On 27 November 2012 the applicant went to the children’s school to meet his younger son. The boy did not want to see him, he was pushing the applicant away and yelling. After failed attempts to calm the boy down, the applicant picked him up against his will, held him in both hands and carried him to an office allocated by the school administration for the applicant’s meetings with the children. The boy started screaming, crying and fighting the applicant off. In the meantime, the applicant’s daughter had telephoned M.G., who came to the school shortly afterwards and took the children home.

M.G. sought the institution of criminal proceedings against the applicant for having allegedly inflicted bodily harm on the children in the course of the above incident. On several occasions the Juvenile Division of the St Petersburg Central District Office of the Ministry of Internal Affairs refused to institute criminal proceedings against the applicant, owing to the absence of the constituent elements of a crime in his actions. The most recent decision was on 10 June 2013. The regional prosecutor’s office found the above decision lawful.

Following the incident of 27 November 2012, on 4 December 2012 the temporary contact arrangement for the applicant and his children was cancelled (see paragraph 49 below).

While exercising his contact rights in accordance with a judgment of 13 May 2014 (see paragraph 57 below), on 24 August 2014 the applicant took his second-born son and left Russia for Italy. He never returned the child to the mother and has not seen his other children since.

Since 2014 the applicant’s eldest son has been living in Israel. The applicant’s daughter and youngest son continue to live with their mother in Russia.

On 19 December 2009 the Florence District Court held that, while the divorce proceedings were ongoing, the four children should be placed in the care of social services, the children should reside with their mother, and the applicant should pay her child maintenance. The court further determined a schedule for the applicant’s contact sessions with the children.

On 6 December 2010 the Florence District Court varied the arrangements relating to residence and who had care of the children. Relying on an expert report by a psychologist and psychoanalyst, Dr C., and noting M.G.’s continued lack of income, it ordered that, while the divorce proceedings were ongoing, the applicant should have sole care of the four children and the children should reside with him. It further ordered that the three younger children were to spend weekends with their mother in the following manner: from Friday after school to Sunday afternoon, and every other weekend from Friday after school to Sunday evening. The eldest son, who had been diagnosed with autism spectrum disorder, was to go to a day centre for children with special needs after school, and he was free to choose which parent he wanted to stay with at night. The court also ordered that during the approaching Christmas holidays the children were to spend a week with their father and the following week with their mother.

On 7 December 2010 the Florence District Court entrusted Dr C. with carrying out a monitoring exercise in relation to compliance with the above court order. This exercise, carried out in the period between January and May 2011, showed that compliance with the court order of 6 December 2010 was rather good. After certain difficulties initially, the three younger children adapted quite well to their new schedule and accepted their new rhythm of life, which was more regular and settled. Dr C.’s report further mentioned that the children continued to experience psychological discomfort, partly owing to the difficult family situation (acute tensions and conflict between the parents), partly owing to their age (two children were approaching adolescence), and partly owing to M.G.’s actions (her continuing to “use” the children as “instruments” in her dispute with the applicant). Despite the remaining difficulties in the relationship between the children and their parents, the arrangement of the children’s life at that stage was assessed by the expert as being the best possible from a psychological and material point of view. The main problems which came to light during the monitoring exercise were: the situation of the applicant’s eldest son, who was not receiving therapy for his condition; the behaviour of M.G., who was unpredictable and eccentric and motivated by a paranoid delusion that she was a victim of plotting and persecution by the court and state institutions in general, and who gave the impression that she was suffering mentally; and M.G.’s relationship with the children, in particular, her attempts to involve the children in judicial proceedings and seek “allies” in them against the father, who she represented as cruel, dangerous and violent, all of which was harming the psychological well-being of the children. In the expert’s opinion, in order to prevent further psychological trauma being inflicted on the children by the mother’s behaviour, it was necessary not only to put a distance between her and the children, but also to have recourse to psychotherapy and improve the quality of the children’s psychological environment at their father’s home.

On 29 June 2011 the Florence District Court found that M.G. had not respected the previous court orders. In particular, it found that the eldest son had been living with her during the previous months. As he had refused to see his father, she had been the only parent who had had effective access to him. However, she had refused to bring him to the monitoring meetings with social services or ensure his attendance at the day centre for children with special needs, as ordered by the court. Moreover, she had sent the child to Venice in April without his father’s permission and without notifying social services. Given that M.G. had not respected the arrangements fixed by the court, it was necessary to modify them. Accordingly, the court confirmed the previous arrangements in respect of the younger children in relation to who had care of them, their place of residence and contact. It further confirmed that the applicant should have sole care of the eldest son, and that the eldest son should reside with him. The eldest son was no longer given the choice as to whether he wished to stay with his father or mother at night. The court further confirmed the order for the eldest son’s attendance at a day centre for children with special needs, and noted that if M.G. continued to not comply with that order, the matter would be reported to the Minors Court for the adoption of measures limiting parental authority. It also held that the children were not allowed to leave Italy without the consent of both parents. Lastly, it fixed the manner in which the children should spend the approaching summer holidays. In particular, it ordered that from 25 August to 1 September 2011 the four children were to stay with M.G.

On 27 August 2011 M.G. and the children left Italy for Russia.

On 18 September 2012 the Florence District Court pronounced the divorce of the applicant and M.G. with reference to section 170(1) of the New York Domestic Relations Law, which provides that an action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the grounds of cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant. The Florence District Court further ordered that the applicant should pay child maintenance to M.G. As regards who should have care of the children and where they should live, the court noted that M.G. had taken the children to Russia in breach of a court order, and for over a year had thereby deprived the father of any possibility of seeing the children. M.G.’s having sole care of the children, as requested by her, was therefore excluded as an option. The court ordered that the applicant and M.G. should have joint care of the children and that the children should reside with their father. After the children’s return to Italy, M.G.’s contact rights would be fixed by social services so as to prevent the children being wrested once again from the environment in which they lived. Lastly, the court ordered that the applicant should bear all financial expenses in respect of the children, except medical expenses not covered by medical insurance, which should be divided between the parents. The judgment was “temporarily enforceable” (provvisoriamente esecutivo) pending a decision in appeal proceedings.

M.G. appealed against the judgment of 18 September 2012.

On 25 March 2014 the Florence Court of Appeal quashed the judgment of 18 September 2012 and dismissed the applicant’s petition for divorce under section 170 (1) of the New York Domestic Relations Law as not meeting the required conditions. The court further noted that it could not take measures in relation to the personal relationship between the applicant and M.G. or other issues concerning the children.

On 6 July 2015 the Florence Criminal Court convicted M.G. in absentia of abducting the children. She was given a three-year prison sentence with suspension of her parental authority.

On 19 November 2015 the Florence Minors Court dismissed an action by the applicant to strip M.G. of her parental authority in respect of the children.

The applicant applied to the St Petersburg City Court (“the City Court”) for recognition and enforcement of the Florence District Court’s decision of 6 December 2010. He relied on both the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the 1979 Bilateral Convention on Legal Assistance in Civil Matters between Italy and the Soviet Union (“the Bilateral Convention”).

On 19 January 2012 the City Court rejected the applicant’s application. It found that the decision of 6 December 2010 was an interim decision pending a final decision in divorce proceedings. It could be modified by the judge who had made it at any time, as indeed it had been modified on 29 June 2011, and could not be appealed against. That decision was therefore not a decision rendered in civil matters within the meaning of Article 409 of the Code of Civil Procedure, and accordingly was not enforceable in Russia. The court further held that enforcement of the decision of 6 December 2010 should be refused by reference to Article 412 of the Code of Civil Procedure and Article 13 of the Bilateral Convention. It found that the decision of 6 December 2010 was manifestly incompatible with Russian public order because it ordered that the father should have sole care of the children. Russian law did not provide for one parent to have sole care unless the other parent had been formally stripped of his or her parental authority. Given that M.G. had not been stripped of her parental authority, the decision to award sole care to the applicant was incompatible with Russian law.

The decision of 19 January 2012 mentioned that an appeal against it could be lodged with the Appellate Panel of the City Court within fifteen days. However, the applicant never availed himself of that remedy.

On 13 November 2012 the applicant applied to the City Court for enforcement of the Florence District Court’s judgment of 18 September 2012. He relied on the Bilateral Convention.

On 25 January 2013 the City Court rejected the applicant’s application. Referring to Article 412 of the Code of Civil Procedure and Article 13 of the Bilateral Convention, the City Court found that the judgment of 18 September 2012 was incompatible with the basic principles of Russian law and public order. The judgment read as follows:

“Established case-law shows that public order in the Russian Federation is the basis of State and social organisation of the Russian Federation, [and] the violation of public order is the incompatibility with existing legal norms, social order and fundamental principles of law. Foreign court judgments violating the fundamental rights of a defendant, preventing him or her from defending his or her rights, as well as foreign court judgments whose enforcement may be in conflict with the national law of the State where they have to be enforced, are considered incompatible with public order. Reference to public order is possible when the application of a foreign law may lead to a result incompatible with Russian legal thinking.

In the present case, the enforcement of a foreign court decision may be in conflict with Russian national law.

In accordance with Article 163 of the Family Code of the Russian Federation, if parents and children do not have a joint place of residence their rights and obligations shall be determined in accordance with the law of the State where the children have citizenship. At a plaintiff’s request, child maintenance obligations and other relationships between parents and children may be determined in accordance with the law of the State where the children permanently reside.

By the time the Florence District Court delivered its decision of 18 September 2012 the children had been permanently residing in Russia for over a year (since 27 August 2011), they are Russian nationals and have no Italian nationality. These circumstances are not disputed by the parties.

[The proceedings concerning residence arrangements, child maintenance and parental authority in respect of the children are ongoing before the Dzerzhinskiy District Court of St Petersburg.]

Under these circumstances, examination of the dispute by the Florence court is incompatible with Russian law.

Besides, the relationship between parents and children is an ongoing process, objectively it can and does change over time. As was noted above, by the time the Florence court delivered its judgment the children had been living in Russia for a long time. During this time their relationship with their parents and their perception of the possibility of living with their father could have changed, which should have been taken into consideration by the [Italian] court. However, the judgment [of 18 September 2012] indicates that the [Italian court] did not take these circumstances into consideration, thereby violating the children’s fundamental rights under Article 12 of the United Nations Convention on the Rights of the Child ...

The court also takes into account that the enforcement of the Florence court judgment might be incompatible with Russian law.

In particular, enforcement of the foreign court decision in the present case would involve the return of the children to Italy, [a country] of which they are not nationals, with them being handed over to [the applicant], who also does not hold Italian nationality ...

At the same time, under Article 61 of the Constitution of the Russian Federation a national of the Russian Federation may not be expelled from the territory of the Russian Federation.

The applicant’s argument to the effect that he did not intend to bring the children back to Italy immediately and that he first wished to restore his relationship with them cannot serve as grounds for granting [his] application [for recognition and enforcement of the judgment of 18 September 2012]. The court proceeds on the understanding that enforcement of the Florence court judgment would be impossible without the children’s return to Italy ...”

On 7 February 2013 the applicant lodged a private complaint. Referring to Article 15 of the Constitution and Article 6 of the Family Code, he submitted that international treaties took precedence over national law. Under Article 24 of the Bilateral Convention the Italian courts had jurisdiction over the case, because at the time when the proceedings had been instituted he, M.G. and the children had all been permanently residing in Italy. The fact that M.G. had then abducted the children and taken them to Russia had no bearing on the jurisdiction of the Italian courts to proceed with the case. Further, referring to decisions by the Supreme Court (see paragraphs 74-75 below), the applicant argued that the City Court had not indicated what basic principles of the economic, social and legal organisation of Russian society had been infringed by the judgment of 18 September 2012. Moreover, the Russian courts had no competence in relation to verifying whether that judgment was lawful and justified. The applicant also submitted that the Florence District Court had taken into account the children’s wishes, and proof of this had been produced before the City Court. The applicant further argued that the prohibition on deporting Russian nationals was irrelevant to the present case, because the children were not to be deported or extradited from Russia. They were to be handed over to their legal guardian and would enjoy freedom of movement, including the freedom to leave Russia. Lastly, the applicant complained under Article 8 of the Convention that the refusal to enforce the judgment of 18 September 2012 violated his right to respect for his family life.

On 12 March 2013 the Appellate Panel of the City Court held an appeal hearing. The parties had not been notified about the date of the appeal hearing and were therefore absent. On the same day the court upheld the decision of 25 January 2013, finding that it was lawful, well reasoned and justified. It found, in particular, that the judgment of 18 September 2012 by the Florence District Court was incompatible with Russian public order because it was in conflict with Russian family law provisions and unacceptable in relation to Russian legal thinking.

The applicant lodged a cassation appeal with the Presidium of the City Court, repeating the argument set out in his appeal submissions.

On 8 May 2013 a judge of the City Court refused to refer the case for consideration by the Presidium of that court, finding no significant violations of substantive or procedural law which could influence the outcome of the proceedings. The first-instance and appeal courts had correctly applied domestic law.

On 30 September 2013 a judge of the Supreme Court of Russia refused to refer the case for consideration by the Civil Chamber of that Court.

On 9 December 2013 the Deputy President of the Supreme Court of Russia informed the applicant that there were no grounds to disagree with the decision of 30 September 2013, refusing to refer the case for consideration by the Civil Chamber of the Supreme Court.

On 10 January 2012 M.G. lodged an application with the Dzerzhinskiy District Court of St Petersburg. Claiming domestic violence and a lack of care and financial support, and referring to the children’s wish to live with her, she asked for an order stripping the applicant of his parental authority in respect of the children and determining that the children should reside with her. She also asked for child maintenance.

The applicant lodged a counterclaim, asking for an order that the children should reside with him. He submitted that M.G. had unlawfully abducted the children despite the decisions by the Florence District Court that they should reside with him. Their residence with M.G. was detrimental to their psychological health. In particular, by falsely accusing him of domestic violence, M.G. had caused the children to fear their father. Moreover, she had prevented him and his relatives from seeing the children or supporting them financially. She had not taken proper care of the eldest son, who suffered from a mental disorder and needed specialist care.

On 12 April 2012 the Dzerzhinskiy District Court of St Petersburg declared M.G.’s claims inadmissible. It noted that proceedings concerning the children’s residence arrangements and child maintenance were ongoing before the Florence District Court. Given that the proceedings in Italy had been initiated before the present proceedings, it was the Italian courts which had jurisdiction over the case, in accordance with Article 25 of the Bilateral Convention. Accordingly, the Russian courts had no competence to examine the case between the same parties, which was based on the same facts and had the same purpose. As regards the claim to strip the applicant of his parental authority, that claim was not part of the proceedings before the Italian courts. However, given that the applicant was a national of the United States of America and permanently living in Italy, the Russian courts had no competence to examine the claims against him. M.G. should therefore submit her claims to the court with territorial jurisdiction over the applicant’s place of residence.

On 6 June 2012 the City Court quashed the decision of 12 April 2012 and remitted the case for fresh consideration before the Dzerzhinskiy District Court. It found that the present proceedings were not identical to the proceedings ongoing in Italy. In particular, the claim to strip the applicant of his parental authority had only been made in the present proceedings. M.G. was entitled to lodge her claim with a court with territorial jurisdiction over her place of residence. Given that she lived in the Dzerzhinskiy District of St Petersburg, the Dzerzhinskiy District Court had competence to examine the case.

On 11 September 2012, having questioned the applicant’s three older children aged 15, 13 and 10, who had all expressed their wish to live with their mother and refused to have any contact with their father, the Dzerzhinskiy District Court decided that, pending the resolution of the proceedings, the children should reside with their mother.

On the same date the applicant asked the court to determine a temporary contact arrangement for him and the children.

Following the applicant’s application, on 30 October 2012 the Dzerzhinskiy District Court decided that, pending the resolution of the proceedings, the applicant should be able to have contact with the children at the schools they attended, in the presence of and with the active involvement of a psychologist, for one hour a week with each child: on Wednesdays after classes from 3 p.m. to 4 p.m. with the elder son; on Fridays after classes from 3 p.m. to 4 p.m. with the second son; on Mondays after classes from 2 p.m. to 3 p.m. with the daughter; and on Tuesdays after classes from 1 p.m. to 2 p.m. with the younger son.

Following an application by the applicant, on 21 November 2012 the Dzerzhinskiy District Court modified the interim contact arrangement between him and the children. In particular, in addition to the previously established contact hours, the applicant was allowed to: take his second son for a walk on Saturdays from noon to 1 p.m.; pick up his daughter from extracurricular activities on Sundays at 1 p.m., have lunch with her afterwards and return her to the mother by 2.30 p.m.; and take his younger son to theatres, museums and for other extracurricular activities for children every other Saturday, for a maximum of four hours starting from 10 a.m. The applicant was also allowed to accompany the three older children to and from school if the children agreed.

However, on 4 December 2012 the Dzerzhinskiy District Court cancelled the above interim contact arrangement on the grounds that it was not in the best interests of the children. In taking that decision, the district court relied on a letter from the Children’s Psychiatry Centre for Recovery Treatment of 29 November 2012 to the effect that, in circumstances where there was bitter parental conflict, meetings between children and the parent from whom they were living apart were psychologically highly traumatic for the children. The court also took into consideration the fact that the school principal firmly objected to having the meetings between the applicant and the children take place on the school premises. Reference was made to the incident of 27 November 2012 (see paragraphs 15-16 above).

On 23 July 2013 the Dzerzhinskiy District Court rejected both M.G.’s and the applicant’s claims in full. It found no evidence of domestic violence in respect of M.G. or the children. It further found it established that, despite the applicant’s wish to take care of the children and support them financially, he was being prevented from doing so by M.G. There were therefore no reasons to strip him of his parental authority in respect of the children. As regards residence arrangements, the court noted that the Florence District Court had already examined similar claims and had ordered by its judgment of 18 September 2012 that the children were to live with the applicant. That judgment was final and enforceable and the procedure for its enforcement in Russia was established by the Bilateral Convention and Article 409 of the Code of Civil Procedure. All the arguments raised by the parties in the present proceedings had already been examined by the Florence District Court. The parties had not produced any new evidence which could warrant changing the residence arrangements determined by the Florence District Court. Moreover, the court had been hampered in its examination of the issue by M.G.’s refusal to have the children examined by court-appointed experts. In the absence of a psychological expert report it was impossible to ascertain effectively the children’s attachment to each of the parents, the parents’ moral character and other relevant qualities, and the relationships between the children and each of the parents. Lastly, the court rejected M.G.’s claim for child maintenance. The parties appealed.

On 19 November 2013 the City Court considered it necessary, among other things, to question the three older children who had reached the age of 10 about their attitude towards each of the parents and the prospect of their living with them, and to obtain the opinion of the youngest child with the involvement of a psychologist. The hearing of 19 November 2013 was adjourned until 10 December 2013.

On 6 December 2013 an inspection of the children’s living conditions with their mother was carried out, and there was also a discussion with the applicant’s youngest child.

On 10 December 2013 the City Court ordered that an expert examination should be carried out so as to determine which parent the children would be most comfortable living with from an emotional perspective, with regard to the individual psychological features of the children and the parents, the relationships between them and the existing circumstances. The examination was also to determine whether it would be possible for the children to live apart from each other with one of the parents, taking into account their psychological attachment to each other. The proceedings were adjourned pending the results of the expert examination.

On 14 January 2014 the City Court ordered that the forensic psychological examination should be carried out by the St Petersburg State Institution for the Social Assistance of Families and Children “The Regional Family Centre”.

On 19 March 2014 the report of the forensic psychological examination was drawn up. It was based on an examination of the applicant and an analysis of the case file material, since M.G. had refused to take part in the examination and had not let the children be examined either. The experts’ conclusion was that the applicant was polite, communicative, sincere, easy-going, in control of his emotions, sentimental, sensitive to emotional nuances, and that he wanted friendly harmonious relationships. He had broad interests. Rudeness, hostility and a dominating attitude were not part of his character. He could easily adapt to different environments. The experts did not have sufficient material to fully assess the individual psychological features of M.G. and the children. However, on the basis of an analysis of M.G.’s behaviour and the reports by the Italian specialists, and taking into account the ongoing conflict and the children’s being in a psychotraumatic situation for a very long time, the experts recommended that M.G. underwent a comprehensive psychological and psychiatric expert examination. The experts further noted that, owing to the mother’s behaviour, the children had a negative image of their father, which created a substantial risk for their normal mental development. In such a situation, determining the children’s place of residence in accordance with their wishes could contradict their true interests.

On 20 March 2014 the proceedings were resumed. The City Court considered it necessary that the applicant’s two older sons, aged 16 and 14, join the proceedings as third parties.

On 13 May 2014 the City Court quashed the decision of 23 July 2013. It took note of the fact that on 25 March 2014 the judgment of the Florence District Court of 18 September 2012 had been quashed on appeal. The City Court granted M.G.’s claims in part by ordering that the children were to live with her and that the applicant was to pay her child maintenance, and granted the applicant’s claims in part by determining his contact rights in respect of the children. In particular, the applicant was allowed to spend time with the children on the second and last weekend of the month from 10 a.m. on a Saturday to 8 p.m. on a Sunday, for at least four hours on the dates of the children’s birthdays, during half of the public and school holidays, and for at least thirty calendar days during the summer holidays. During public holidays and school holidays the applicant was allowed to travel with the children both in Russia and abroad. The remaining claims by the applicant and M.G. were dismissed. In taking that decision the City Court took into consideration that: the children had been living with their mother for a long time, and they had been cared for and raised by her during this time; while living in St Petersburg they had acquired a circle of friends and teachers; the material in the case file proved M.G.’s conscientious attitude towards her parental obligations; and the children, questioned by both the court and the childcare authority, had expressed their wish to live with their mother.

Between June and October 2011 a number of internet news sites published M.G.’s account of her relationship with the applicant, their divorce and their dispute over the children. In particular, the news sites reproduced M.G.’s accusations against the applicant, describing his alleged acts of violence against her and the children.

The applicant sued the news sites and M.G. for defamation.

On 13 August 2012 the Petrogradskiy District Court of St Petersburg allowed the applicant’s claims against one of the news sites. On 20 August 2012 the Dzerzhinskiy District Court of St Petersburg allowed his claims against M.G. On 30 May 2013 the Golovinskiy District Court of Moscow allowed his claims against another news site. All the district courts found that M.G. and the news sites had not proved the truth of their allegations against the applicant. They noted that the Italian authorities had conducted an inquiry into M.G.’s allegations against the applicant and had found no evidence of domestic violence. The St Petersburg police had also conducted an inquiry which had not revealed any evidence of violent acts by the applicant against M.G. or the children. No such evidence had been produced in the present proceedings either.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1972 and lives in Kerch.

At the material time the applicant worked as an investigation officer in the environmental protection prosecutor’s office (природоохоронна прокуратура).

On 4 October 2005 S. complained to the Prosecutor’s Office of the Autonomous Republic of Crimea (“the ARC”) (прокуратура Автономної республіки Крим) that the applicant and U., a prosecutor’s assistant, had extorted 5,000 United States dollars (USD) from him for the purpose of carrying on a fishing business. Later K. and R. lodged similar complaints.

On 7 October 2005 at around 3 p.m. the applicant was arrested at his workplace after receiving 2,000 USD from S., and 200 USD and 500 Ukrainian hryvnias (UAH) from R. The applicant’s office was searched and 2,000 USD were found in one of the books on his table. The applicant’s meetings with R. and S. had been taped. On the same day criminal proceedings were instituted against the applicant and U. for bribe-taking.

On 10 October 2005 the Tsentralnyy District Court of Simferopol (“the Tsentralnyy Court”) authorised the applicant’s pre-trial detention. The court held that the applicant was accused of committing a serious crime and might escape, or hinder the investigation, or continue his criminal activity. The applicant appealed.

On 18 October 2005 the applicant complained to the Kerch Local Court that his arrest on 7 October 2005 had been unlawful since there had been no grounds to arrest him. The court forwarded this complaint to the Kerch Prosecutor’s Office, noting that the court was not competent to consider such complaints while the case was under investigation. The Kerch Prosecutor’s Office transferred the applicant’s complaint to the Prosecutor’s Office of the ARC.

On 1 December 2005 the Prosecutor’s Office of the ARC informed the applicant that his arrest was justified and lawful.

On the same day the Court of Appeal of the ARC upheld the decision of 10 October 2005.

On 5 December 2005 the Tsentralnyy Court extended the applicant’s detention until 7 February 2006 on the same grounds as before. The applicant appealed.

On 20 December 2005 the Court of Appeal of the ARC upheld the decision of 5 December 2005. It held that there was sufficient evidence that the applicant had committed a serious crime. If at large, the applicant might continue his criminal activity, or hinder the investigation, or abscond.

On 18 January 2006 the Feodosiya Town Court (“the Feodosiya Court”) accepted the applicant’s case for trial.

On 6 February 2006, in the committal hearings, the Feodosiya Court maintained the applicant’s detention without giving any reason or setting any time-limit.

On 21 February 2006 the Feodosiya Court rejected the applicant’s request to change the preventive measure to an undertaking not to abscond, noting that the applicant was accused of having committed a serious crime, and might abscond or hinder the investigation. The applicant appealed.

On 23 May 2006 the Feodosiya Court found the applicant and U. guilty of several counts of bribe-taking and sentenced them to six and five years’ imprisonment, respectively, with confiscation of half of their property.

On 14 September 2006 the Court of Appeal of the ARC terminated proceedings in respect of one count of bribery concerning the applicant and upheld the remainder of the judgment.

On 24 July 2007 the Supreme Court of Ukraine rejected the applicant’s appeal on points of law.

From 10 October 2005 to 4 February 2006 and from 5 February to 5 September 2006 the applicant was detained in Simferopol Pre-Trial Detention Centre no. 15 (Ізолятор тимчасового тримання № 15 м. Сімферополя) (“the Simferopol SIZO”) and in the Feodosiya Temporary Detention Centre (ізолятор тимчасового тримання м. Феодосія) (“the Feodosiya ITT”) respectively.

In the Simferopol SIZO the applicant shared cell no. 29, which measured 10 square metres, with four other detainees. There were no chairs in the cell and it was in a poor state of repair. There were cockroaches and other insects. The toilet space was very narrow – around 45-50 centimetres in width – which caused the applicant, who is 1.94 metres tall and weighs 160 kilograms, considerable difficulties. The detainees were able to take a shower only once every seven to ten days.

In the Feodosiya ITT the applicant was detained in cell no. 27, which measured 4.7 square metres, together with four or more detainees. The cell had no windows and no furniture. The toilet space was very narrow – around 30 centimetres in width. The applicant had not been able to take a shower, and detainees had had to sleep in turns. 30 minutes’ outside exercise was possible once every ten to fifteen days in a small yard which measured 4.5 square metres. The applicant submitted undated photos of a cell, in which it is apparent that the toilet (a hole in the floor plugged by a plastic bottle) is separated from the living space by a wall approximately one metre high. Beside the toilet there is a sleeping place (allegedly a mattress on a wooden bench or on the floor).

According to the Government, cell no. 29 in the Simferopol SIZO had been designed for occupancy by three inmates and had had 9.3 square metres of living space, thus allowing some 3.1 square metres per inmate, which had been in compliance with the domestic standards. In accordance with the relevant regulations, the cell had been disinfected on a daily basis and the detainees had had weekly access to bathing facilities. The statutory regulations did not include chair provision for this cell.

As regards the Feodosiya ITT, the applicant’s cell had 5.7 square metres of living space and had been designed to accommodate two inmates. The cell had been lit by electric light, equipped with a ventilating system ensuring circulation of air and furnished with wooden sleeping platform, separated toilet and wash-stand. The detainees had been provided with pillows and mattresses. The detention facility had had a shower room with hot and cold water and a small backyard for daily walks.

On 6 March 2006 the applicant lodged a complaint with the Feodosiya Court about the conditions of his detention in the ITT (overcrowding, no windows in the cell, no possibility of taking a shower, lack of out-of-cell activities). He requested that the court find the inaction of the Feodosiya ITT authorities in this respect unlawful and to oblige it to remedy the situation.

On 14 March 2006 the court forwarded the complaint to the Feodosiya Prosecutor’s Office as the appropriate decision-making body.

On 20 March 2006 the Feodosiya Prosecutor’s Office informed the applicant that some violations of the law by the Feodosiya ITT authorities had been established and that the relevant instructions had been given to remedy the situation, with no further details provided.

On 23 June 2006 the applicant again lodged his complaint with the Feodosiyskyy Court, having stated that neither his complaint to the Feodosiya ITT authorities nor to the prosecutor’s office had remedied his situation. He requested that the inaction of the Feodosiya ITT authorities be declared unlawful. This complaint was again forwarded by the court to the Feodosiya Prosecutor’s Office.

On 23 and 28 July 2006 the Feodosiya Prosecutor’s Office sent the applicant a reply similar to that in the letter of 20 March 2006. According to the applicant, he did not receive these letters.

On 1 July 2006 the applicant complained to the Court of Appeal of the ARC (“Court of Appeal”) about the failure of the Feodosiya Court to consider his complaint on the merits. He requested that the Court of Appeal oblige the latter to consider his complaint against the Feodosiya ITT on the merits and to bring disciplinary measure to bear on the respective judge of the Feodosiya Court.

On 1 August 2006 the Court of Appeal assigned the applicant’s complaint to the Leninskiy District Court of the ARC (“the Leninskiy District Court”).

On 2 August 2006 the applicant complained to the Prosecutor’s Office of the ARC about the alleged failure of the Feodosiya Prosecutor’s Office to consider his complaints about conditions of detention.

On 31 August 2006 the Leninskiy District Court refused to open administrative proceedings concerning the applicant’s complaint as the procedural decisions of a judge in such a case were not subject to appeal under the rules of administrative procedure. Any decision to the contrary would, in the court’s opinion, constitute an unlawful interference with the administration of justice. The court dismissed as unsubstantiated the applicant’s allegations that the failure of the Feodosiya Court to entertain his complaint amounted to a denial of access to a court. It noted in this respect ‒ in accordance with the Criminal Procedure Code and the Prosecutor’s Act (Закон України «Про прокуратуру») ‒ that it was for the prosecutor’s offices to supervise observance of the law in detention centres. The applicant was free to complain to the court about the prosecutor’s inaction, if appropriate, but he had failed to do so.

The applicant appealed.

On 12 October 2006 the applicant received a letter from the Prosecutor’s Office of the ARC in which it referred to the responses given earlier to the applicant by the Feodosiya Prosecutor’s Office.

On 12 December 2006 the Court of Appeal of the ARC upheld the decision of 31 August 2006. It noted in particular that the applicant had submitted to the Feodosiya Court a complaint regarding the poor conditions of detention but not an administrative claim against the Feodosiya ITT for the protection of his rights, as was required by the Code of Administrative Justice. This being so, his complaint had been forwarded to the competent authorities as required by the relevant domestic legislation.

On 21 April 2009 the Higher Administrative Court of Ukraine rejected the applicant’s appeal on the points of law.

On 17 September 2007 the applicant lodged an administrative claim with the Menskiy District Court of the Chernigiv Region (“the Mesnkiy District Court”) against the Feodosiya ITT authorities claiming, inter alia, damages for the harm inflicted by the inhuman and degrading conditions of his detention.

On 15 October 2007 the Menskiy District Court admitted the applicant’s claim for consideration.

On 23 November 2007 the Menskiy District Court rejected the claim as having been lodged outside the one-year time-limit set by the law, since the applicant had been transferred from the Feodosiya ITT on 5 September 2006.

The Court of Appeal and the Higher Administrative Court upheld the above decisions on 1 April 2008 and 21 December 2010 respectively.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The first applicant, Mr Guy Bolek, was born in 1989 and the second applicant, Ms Therese Wengo, was born in 1986. The second applicant has a daughter, the third applicant, who was born in 2007. The son of the first and the second applicants, the fourth applicant, was born in May 2012; both parents are his guardians. All the applicants are Congolese nationals and are currently in Sweden. They are represented by Mr P. Varga, a lawyer practising in Stockholm.

The first applicant applied for asylum and a residence permit in Sweden on 11 July 2007. Before the Migration Board (Migrationsverket) he stated the following. He was born and raised in Kinshasa. He had been politically active in the Movement for the Liberation of the Congo (MLC) and had worked for the politician Jean-Pierre Bemba. He had received constant threats from supporters of Joseph Kabila. His father had been a colonel in Mobutu’s army but had later joined Jean-Pierre Bemba’s own militia. His father had died in an ambush by Joseph Kabila’s soldiers in March 2007 in Kinshasa. On 27 March 2007 Kinshasa’s governor had announced that everyone who had worked for Jean-Pierre Bemba would be killed and, on the same day, Joseph Kabila’s soldiers had come to his home. His sister had been at home and she had been beaten by the soldiers. Following this, he had fled to Brazzaville and stayed there for two months. When he had returned to Kinshasa and his apartment, everything had been destroyed. He had heard soldiers coming for him but he had managed to flee. A child had found a passport which he had manipulated in order to be able to travel to Sweden.

On 18 June 2008 the Migration Board rejected the request. It found that the first applicant had not substantiated his identity. The Board then considered that his asylum story was marred by credibility issues. For example, he had been unable to state when the elections had been held in 2006. He had also been unaware of the fact that the MLC held several ministerial posts in the government. The Board found that the first applicant had failed to show that he risked persecution in the DRC because of his political activities and, consequently, he was not in need of protection in Sweden.

The first applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims.

On 27 May 2009 the Migration Court rejected the appeal. On the same grounds as the Board, the court found that there were reasons to question the first applicant’s statements regarding his political activities. The court also referred to relevant country information and observed that there was nothing to suggest that active members of the opposition risked illtreatment by the authorities because of their political engagement. The court concluded that the first applicant had not substantiated that he risked persecution in the DRC because of his political activities and that he had not shown that he was in need of international protection.

It appears that the first applicant did not appeal to the Migration Court of Appeal (Migrationsöverdomstolen). Hence, the expulsion order became enforceable.

In September 2009 the first applicant requested the Migration Board to reconsider its previous decision, however without invoking any new grounds. The Board rejected the request and, upon appeal, the Migration Court upheld the Board’s decision in full. On 27 October 2009, the Migration Court of Appeal refused leave to appeal.

In January 2013 the first applicant again requested the Migration Board to reconsider its previous decisions. He relied on his ties to the second, third and fourth applicants and stated that he had met the second applicant on New Year’s Eve 2010. They had moved in together in 2011 and the fourth applicant had been born in 2012. He had been responsible for the care of the fourth applicant since the second applicant suffered from mental health problems. In November 2011 he had also, to some extent, taken care of the third applicant when the second applicant had been in hospital.

On 28 January 2013 the Migration Board considered that no new circumstances had been presented which could justify granting the first applicant a residence permit. The Board found that the first applicant had not shown that his relationship with the second applicant was serious. Furthermore, it noted that he had not substantiated his identity. As regards the family ties invoked, the Board found that the situation for the second, third and fourth applicants was not such as to make the expulsion of the first applicant unreasonable. Thus, no grounds had emerged to stay the enforcement of the expulsion order. However, the Board reminded the first applicant of the possibility of having his application for a residence permit, based on family ties, examined at a Swedish mission abroad as well as the possibility to submit the application electronically and ask that it be given priority. In conclusion, the Board considered that there was no reason to deviate from the general rule that an application for a residence permit based on family ties was to be submitted before the alien enters the country. No appeal lay against the Board’s decision.

On 25 February 2013 the first applicant submitted a certificate from Ekerö municipality, dated 19 February 2013, regarding the fourth applicant. It stated, inter alia, that the expulsion of the first applicant would affect adversely the ties between him and his son and that the second applicant would be unable to take care of their son on her own.

The Migration Board considered this as a request for reconsideration of the first applicant’s case but found that no new circumstances had been presented which could justify granting him a residence permit. No appeal lay against the Board’s decision.

Yet another request for reconsideration was rejected by the Migration Board on 8 May 2013.

The second applicant applied for asylum and a residence permit in Sweden on 26 April 2005. Before the Migration Board she stated the following. She was born in Kisangani. Her parents and siblings had been killed by Kabila’s army in the summer of 1999. After having lived on the streets for six months, she had gone to Kinshasa where she had lived as a street child for three years. Subsequently, a man who had been a tenant at her family’s home had taken her to his own family. She had lived with them until she had left the DRC. During this time, her mental health had deteriorated, partly due to her previous experiences, and partly due to her fear that she would be identified and killed by Kabila’s soldiers. Soldiers used to come looking for her at this place five times a week for approximately two years.

On 22 November 2006 the Migration Board rejected the request. It first found that the second applicant had not substantiated her identity but considered it credible that she came from the DRC. Turning to the second applicant’s individual claims, the Board noted that she had lived in Kinshasa from 2000 until 2005. The Board did not question that the second applicant’s parents and siblings had been killed but found her fear of being identified as a witness to these acts greatly exaggerated. It observed that she had been thirteen years old at the time, that she had not been present when her family was killed and that she had subsequently stayed in the DRC for six years. Moreover, the Board did not consider it credible that soldiers had come looking for her five times a week for two years. In conclusion, the Board found that the second applicant had not substantiated that she was in need of international protection. There were no other grounds for granting her a residence permit in Sweden.

On 16 January 2008 the second applicant applied for asylum and a residence permit in Sweden for her daughter, the third applicant. The third applicant made no individual asylum claims. Her father, X, had a permanent residence permit in Sweden.

On 20 March 2008 the Migration Board rejected the request. It first noted that a paternity investigation had shown that X was not the third applicant’s father. Instead, Y was found to be her father. He was a Congolese man whose asylum claims had been rejected by the Migration Board and the Migration Court. The Board then noted that the third applicant’s asylum claims were the same as her mother’s and that they had already been examined by the Board. The Board considered that there was no reason to deviate from the assessments made in the second applicant’s case. There were no other grounds for granting the third applicant a residence permit in Sweden.

In an official note by the Migration Board, dated 10 October 2008, the following was stated. On 27 August 2008 the second applicant had been admitted to hospital for psychiatric care. Following this, the third applicant had been placed in foster care. On 2 October 2008 the second applicant had been discharged from hospital. She had moved to a social services home, where her ability to take care of the third applicant was being assessed. The social services could not give information about when this assessment would be completed, but it was considered that the second applicant was unable, at that time, to take care of the third applicant without supervision.

The second applicant subsequently made several unsuccessful requests to the Migration Board for reconsideration of her case, during which she stated, inter alia, that she was suffering from recurring suicidal thoughts and that, if she were to be expelled to the DRC, it would amount to a return to a life of homelessness, persecution, torture and other inhuman treatment.

In May 2010 the second applicant again requested the Migration Board to reconsider her case. She maintained her previous claims and added that she had been admitted to hospital for long periods of time and that she was in need of round-the-clock care. It would not be possible to expel her to the DRC without giving her anaesthetics or strong sedatives, which constituted a permanent impediment to her and the third applicant’s expulsion. The second applicant submitted several medical certificates concerning herself and the third applicant.

On 28 May 2010 the Migration Board decided to grant the second and the third applicants permanent residence permits in Sweden. The Board took into account the third applicant’s health status and age and concluded that there were now impediments to expelling her to the DRC. Therefore, she and the second applicant were to be granted permanent residence permits.

On 6 September 2012 the Migration Board decided to grant the fourth applicant a permanent residence permit in Sweden on the basis of the ties to the second applicant.

The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. See Imamovic v. Sweden ([dec.], no. 57633/10, 13 November 2012) for a substantive account of the relevant provisions of this Act.

On 1 July 2010 Chapter 5, Section 18, was amended by the following addition: “When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden.” According to the preparatory works, this means that the alien should fulfil all requirements for a residence permit such as, inter alia, holding a valid passport, verified identity and strong family ties (Government Bill 2009/10:137, p. 17).

Chapter 12, Section 18, was also amended on 1 July 2010 by the following addition: “When assessing under the first paragraph, point 3, if there is another special reason for a decision not to be executed, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden.”


CASE OF M.P.E.V. AND OTHERS v. SWITZERLAND

Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Ecuador)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The first and second applicants were born in 1969, and the third and fourth applicants in 1986 and 1999 respectively. They live in Geneva.

The first and second applicants married on 25 December 1988 in Ecuador and brought up the third and fourth applicants together. The third applicant is the second applicant’s daughter and the first applicant’s stepdaughter; the fourth applicant is the first and second applicants’ daughter.

Between 1995 and 1999 the applicants sought asylum in Switzerland on three occasions. Each time their applications were rejected they returned to Ecuador.

On 1 January 2002 the applicants, having re-entered Swiss territory, filed a fresh request for asylum. The first and second applicants claimed that they had been tortured and had received death threats from the Ecuadorian police after the first applicant had attended two political demonstrations in Quito.

On 4 February 2002 the Swiss Federal Office for Refugees (“the Refugee Office”) rejected the applicants’ request.

On 1 March 2005 the first applicant was convicted of selling stolen goods and was given a three-month suspended prison sentence and fined 2,000 francs (CHF). On 15 October 2007 he was convicted of driving without a valid licence and sentenced to 80 hours of community service. On 9 April 2008 he was convicted of attempting to steal perfumes in a shopping centre and was sentenced to 120 hours of community service. On 14 April 2009 he was convicted of buying stolen goods and given a ninemonth suspended sentence and fined 1,000 CHF. The suspension of his previous sentence having been revoked, he served this sentence as from December 2009.

On 24 October 2007 the Federal Administrative Court quashed the decision of 4 February 2002 and ordered the Refugee Office to review the applicants’ request. It considered that the information contained in medical records regarding the first applicant’s state of mental health drawn up in Ecuador in 2001 might be a reason to grant refugee status to the applicants. According to medical certificates, the first applicant suffered from posttraumatic stress disorder (PTSD), depression and schizoaffective disorder. He had been hospitalised on several occasions after attempting to commit suicide.

In May 2009 the first and the second applicants separated. Their young daughter, the fourth applicant, stayed with the second applicant, who obtained full parental authority, while the first applicant was granted extended access, including the right to see her every Wednesday, every second weekend and for half of the school holidays.

On 27 October 2009 the Refugee Office granted the third applicant a residence permit on humanitarian grounds. She then withdrew her asylum request and applied for Swiss citizenship, which was granted on 17 September 2012.

On 20 March 2012 the Refugee Office, following a fresh examination of the facts, rejected the remaining applicants’ request for asylum. On 17 April 2012 they lodged an administrative appeal, arguing, inter alia, that they continued to have a close family relationship even after the first two applicants had separated.

On 7 September 2012 the Federal Administrative Court partially reversed the Refugee Office’s decision. The court specified, at the outset, that the decisions given by the Refugee Office could be contested before the Federal Administrative Court, whose decision was final.

The court also observed that the first and second applicants had separated and ceased living together, and that the fourth applicant usually lived with her mother. Accordingly, the family unit had ceased to exist and the principles established under Article 8 of the Convention no longer applied. As a consequence, each applicant’s residence rights had to be examined separately. The court considered that this approach was even more justified in view of the first applicant’s behaviour and his criminal record.

The court further observed that the fourth applicant was then thirteen years old and had from the age of two grown up in Switzerland, where she had attended school and was completely integrated. It appeared that she did not have any practical knowledge of her country of origin, having never returned after her arrival in Switzerland, and that she hardly spoke Spanish, Ecuador’s main language. Under these circumstances, the court considered that sending her back would amount to an uprooting of excessive rigidity (un déracinement d’une rigueur excessive) and granted her and her mother temporary residence (admission provisoire) in Switzerland for a further year, renewable on a yearly basis thereafter.

Regarding the first applicant, the Federal Administrative Court considered his expulsion to be lawful. The court observed, at the outset, that he had not established that he would be at any risk on his return to Ecuador. The court further considered that his state of health gave reason for concern, since he suffered from PTSD and had made several suicide attempts. However, the court observed that Ecuador had a health system which, even if it could not be compared to the Swiss system, was nevertheless reliable. The court considered that the applicant would have access to specialist care in the main urban centres of the country.

The court further noted that the first applicant’s attending doctors considered that his return to Ecuador was in itself likely to jeopardise his health, irrespective of the medical treatment he received. Furthermore, he would be confronted with serious social problems. However, the Federal Administrative Court considered that, under the pertinent legislation, the applicant’s criminal record excluded him from being granted temporary residence. The court noted in this context that the applicant had, over a longer period of time, acquired a total of 1465 stolen goods (primarily gold jewellery) deriving from various burglaries.


Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Mr Zorislav Sekul, is a national of Croatia and Australia, who was born in 1936 and lives in Supetar. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

The applicant and his wife moved to Croatia from Australia sometimes in 1997/1998 and they bought a flat in Supetar from B.M. and D.M.E. Although there was no written purchase agreement, the applicant paid the full purchase price and moved into the flat.

Meanwhile, the applicant’s wife was admitted to a nursing home in Nerežišća and the applicant moved to a rest home in Supetar.

On 18 January 1999 the applicant brought an action in the Supetar Municipal Court (Općinski sud u Supetru) against B.M. and D.M.E., seeking a court order for the conclusion of a written sale and purchase agreement concerning the flat.

On 10 May 1999 the Supetar Municipal Court ruled in the applicant’s favour but on 4 October 2002 the Split County Court (Županijski sud u Splitu), as the court of appeal, quashed the first-instance judgment and remitted the case on the grounds of inadequate reasoning of the judgment.

In the resumed proceedings, on 14 January 2003, the applicant, represented by lawyer Z.I., amended his civil action seeking the award of title of ownership over the flat and the performance of certain construction works by B.M. and D.M.E.

During the proceedings, B.M. and D.M.E. lodged a counterclaim against the applicant seeking annulment of the oral sale and purchase agreement.

On 22 August 2003 the Supetar Municipal Court accepted the applicant’s action, awarded him the title of ownership over the flat and ordered B.M. and D.M.E. to perform the requested construction works. It also dismissed B.M.’s and D.M.E.’s counterclaim.

On 9 June 2005 the Split County Court upheld the first-instance judgment concerning the title of the applicant’s ownership and the dismissal of B.M.’s and D.M.E.’s counterclaim, whereas it quashed the part of the judgment concerning the performance of construction works and in that part remitted the case for re-examination.

In the resumed proceedings the applicant complained to the Split County Court about the length of the proceedings before the Supetar Municipal Court.

On 25 January 2008 the Split County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 7,000 Croatian kunas (HRK) in compensation and ordered the Supetar Municipal Court to decide the case within six months.

In September 2008 lawyer Z.I. informed the Supetar Municipal Court that he no longer represented the applicant, and in January 2009 lawyer J.A.M. informed that court that he was the applicant’s representative.

On 30 January 2009 the Supetar Municipal Court partially accepted the applicant’s civil action concerning the construction works, ordering B.M. and D.M.E. to carry out some additional works on the doors and windows, façade and the parquet floor in the applicant’s flat. In addition, it authorised the applicant, in the case of a failure of B.M. and D.M.E. to comply with that order, to carry out the construction works himself at the expense of B.M. and D.M.E. The applicant was also awarded costs and expenses in the amount of HRK 88,732.

This judgment was upheld on appeal by the Split County Court on 21 January 2010. It thus became final, and on 17 March 2010 it became fully enforceable.

On 29 November 2011 the applicant, represented by lawyer D.R., instituted enforcement proceedings against B.M. and D.M.E. in the Supetar Municipal Court concerning the performance of construction works ordered in the judgment of 30 January 2009 (see paragraphs 15 and 16 above). Relying on section 217 of the Enforcement Act, the applicant requested that B.M. and D.M.E. should comply with their duty to finish the construction work within a period of eight days and, in case of a failure on their part to comply with the judgment, to pay an enforcement fine (sudski penali) of HRK 500 for every further day of delay.

After unsuccessful friendly settlement arrangements, and several orders of the Supetar Municipal Court to correct his request for enforcement, on 29 June 2012 the applicant reiterated his request, under section 217 of the Enforcement Act, asking that B.M. and D.M.E. be given an additional period of fifteen days to comply with the judgment and, in case of a failure on their part, to pay an enforcement fine of HRK 500 for every further day of delay.

On 5 July 2012 the Supetar Municipal Court accepted the applicant’s request and ordered B.M. and D.M.E. to comply with the judgment of 30 January 2009 within a period of fifteen days, and, in case of a failure to that effect, to pay an enforcement fine in the amount of HRK 500 to the applicant for every further day of delay.

On 13 July 2012 B.M. and D.M.E. challenged the time-limit set out for the enforcement, seeking its postponement due to the upcoming tourist season. On 10 May 2013 the Supetar Municipal Court dismissed the request unfounded.

On 27 May 2013 B.M. and D.M.E. appealed to the Split County Court against the dismissal of their request for the postponement of the enforcement, arguing in particular that the construction works could not be performed during the tourist season and that the applicant had denied their workers access to the flat.

On 23 July 2013 the Split County Court dismissed the appeal lodged by B.M. and D.M.E. as unfounded, upholding the Supetar Municipal Court’s order for the payment of an enforcement fine.

The applicant did not seek the enforcement of that order by seeking payment of the awarded amount.

On 23 October 2008 lawyer Z.I., who represented the applicant in his civil proceedings instituted against B.M. and D.M.E. (see paragraphs 8-14 above), asked a public notary in Solin to issue an enforcement order on the applicant’s property in general for the payment of lawyer’s fees in the amount of HRK 83,229.86, together with the statutory default interest.

The following day the public notary accepted the request and issued an enforcement order on the applicant’s property. It instructed the applicant that he could lodge an objection against the order with the competent civil court within a period of eight days following its service on him.

The material available to the Court contains a delivery note of this decision dated 31 October 2008, bearing in handwriting the applicant’s last name.

As there was no objection against the public notary’s decision it became final on 8 November 2008.

On 12 February 2009 the applicant, represented by lawyer J.A.M., requested the public notary to re-open the proceedings arguing that he had not received the enforcement order on 31 October 2008, and that he had only later learnt of its existence. He also challenged the validity of the enforcement order.

After receiving the request, the public notary forwarded it to the Supetar Municipal Court for its examination and decision.

On 9 June 2009, after hearing the parties’ arguments, the Supetar Municipal Court declared the applicant’s request inadmissible as being lodged out-of-time. In particular, the Supetar Municipal Court found that there was no doubt that the enforcement order issued by the public notary had been served on the applicant on 31 October 2008, which was therefore taken as the date when the three-month time-limit for lodging a request for re-opening had started running. Accordingly, as the applicant’s request had been lodged on 12 February 2009, it followed that it was lodged out-of-time.

The Supetar Municipal Court informed the applicant that he could lodge an appeal against this decision with the Split County Court. The applicant did not avail himself of that possibility.

Meanwhile, Z.I. asked the Supetar Municipal Court to enforce the public notary’s enforcement order by the judicial sale of the applicant’s flat. Following the applicant’s protests, the Supetar Municipal Court on 8 February 2010 invited the parties to provide further comments on the case.

After receiving the parties’ further submissions, on 23 February 2010 the Supetar Municipal Court, in view of the applicant’s specific complaints, advised him to institute a separate set of civil proceedings requesting an interdiction of the further enforcement on his property based on Z.I.’s enforcement request. The applicant did not avail himself of this possibility.

On 20 May 2010 a hearing was held before the Supetar Municipal Court with a view of establishing the value of the applicant’s flat. It was decided that the competent tax authority would be requested to provide the relevant information in that respect.

On 3 February 2011 the Supetar Municipal Court, on the basis of available information, set the value of the flat at HRK 84,000 and ordered its judicial sale on 13 April 2011.

On 7 April 2011 Z.I. asked the Supetar Municipal Court to postpone the judicial sale of the applicant’s flat for a further six months so as to allow him the possibility to settle the debt by other means.

In October 2011 Z.I. requested the Supetar Municipal Court to resume the enforcement proceedings.

In January 2014 Z.I. informed the Supetar Municipal Court that so far he managed to receive HRK 22,307.21 from the applicant and that the applicant still owned him HRK 60,922.55. He therefore adjusted his claim, asking seizure of the amount awarded to the applicant on account of costs and expenses of the proceedings against B.M. and D.M.E. (see paragraph 15 above).

On 7 February 2014 the Supetar Municipal Court accepted Z.I.’s revised enforcement request.

It appears that the enforcement proceedings are still pending.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

“Everyone has a right to respect for and legal protection of his ... family life, ...”

“The right of ownership shall be guaranteed ...“

The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette, nos. 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05 and 67/08), which was in force between 11 August 1996 and 14 October 2012, read as follows:

“(1) The enforcement proceedings shall be instituted upon the request of the creditor ...”

“(1) The court shall order enforcement ... by the means and on the objects set out in the request for enforcement ...”

(2) An enforcement order issued on the basis of a reliable document can be challenged by an objection.

(2) Reinstatement of the proceedings shall be allowed only in case of a failure to meet the time-limits for an appeal or objection.”

“(1) In the enforcement proceedings ... the provisions of the Civil Procedure Act shall apply mutatis mutandis, unless otherwise provided under this or some other Act.

“(1) Against the enforcement order the debtor may lodge an appeal:

if the enforcement of the claim is, even if temporarily, postponed, prohibited, amended or otherwise impossible due to the fact which appeared at the moment when the debtor could not have raised it any longer in the proceedings in which the decision adopted ..., or

if the claim, set out in the enforcement document, is time-barred.”

“(1) If an appeal has been lodged for one of the reasons under section 46 § 1 ... (9)-(11) of this Act, the first-instance court [conducting the enforcement proceedings] shall forward the appeal to the creditor for a comment ...

(2) If the creditor accepts that one of the reasons referred to in the appeal exists, the court shall terminate the enforcement proceedings.

(3) If the creditor challenges the existence of those reasons ..., the first-instance court [conducting the enforcement proceedings] shall without further delay instruct the debtor that he or she can, within the period of fifteen days following the finality of the decision [by which the instruction has been issued], institute the civil proceedings asking for an interdiction of the further enforcement on the grounds of the existence of reasons referred to in paragraph 1 of this section for which the appeal has been lodged.

“(1) If in his or her objection against the enforcement order issued on the basis of a reliable document the debtor has not indicated in which part the order is challenged, it shall be presumed that the order is challenged in whole.

(2) If the enforcement order is challenged in whole, or only in the part in which the debtor was ordered to comply with the claim, the court to which the objection has been submitted shall set aside the enforcement order in the part in which the enforcement had been ordered ... and the proceedings shall continue as if an objection against a payment order [issued by the competent civil court] has been made.”

“(1) If the debtor does not comply with his or her non-monetary duty to perform an action ... established in a final court decision ..., the court in the enforcement proceedings shall, on the basis of a request by the creditor, set out a further appropriate time-limit for the debtor [to comply with his or her duty] and [it will also] order that the debtor shall, in case of a failure to comply with his or her duty within that time-limit, pay to the creditor a certain amount of money for each day of delay ... (enforcement fine), starting from the expiry of the time-limit.

(4) The payment of the enforcement fine can be sought until, on the basis of the enforceable [title], the enforcement of the non-monetary relief is sought.

(5) The right to [seek] the enforcement fine terminates on the day when the request for enforcement referred to in paragraph 4 of this section is submitted. Enforcement of the payment of [the amount awarded by] the enforcement fine due on that day can be sought [by seizure of the debtor’s bank accounts].

“On the basis of a final decision ordering the enforcement fine under section 217 of this Act, the court shall, in the same enforcement proceedings where that decision was made, upon the request of the creditor, order the enforcement of the [amount] awarded by the enforcement fine.”

“(1) The enforcement of the duty to an action which can also be performed by another person shall be conducted so that the court shall authorise the creditor to commission, within a certain time-limit and on the expense of the debtor, from another person the performance of that action or to carry it out himself or herself.

(2) In his or her request, the creditor may ask the court to order the debtor to deposit in advance certain amount [of money] at the court, necessary for the expenses related to the performance of the action by the third party or the creditor. ...”

“Public notaries shall be competent to decide upon a request for enforcement on the basis of a reliable document, in accordance with this Act.”

“(1) If the public notary finds that the request for enforcement is admissible and justified, he or she shall issue an enforcement order on the basis of a reliable document and shall serve it on the parties.

“(1) The debtor may lodge an objection against the enforcement order issued on the basis of a reliable document to the public notary who issued [the order].

(2) The public notary who received a belated or inadmissible objection against the order which he or she had issued, shall forward the case file for a decision on the objection to the competent court (section 252j), which shall declare such an objection inadmissible.

(4) The case file forwarded to the competent court ..., upon the termination of the [relevant] proceedings, shall remain at the court.”

The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07 and 84/08) in its relevant part provides:

“(1) If a party fails to meet ... the time-limit for a procedural action and therefore loses the right take that action, the court shall, upon his or her request, allow to that party to take that action later (reinstatement of the proceedings) if it finds that this omission was the result of a justifiable reason.

(4) After the expiry of three months following the failure [to take the procedural action] the reinstatement of the proceedings cannot be sought.

“(1) If the defendant objects to the payment order ..., the court shall first decide upon that objection. If it finds that the objection is justified, it shall quash the payment order and, after the finality of that decision, open the proceedings on the subject matter [of the dispute] ...

(2) If the court does not accept that objection, it shall open the proceedings on the subject matter [of the dispute], and the decision of the court [concerning the objection] shall be part of the decision on the subject matter [of the dispute].

The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011 and 13/2011), applicable in the case issue, read as follows:

“(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction.

Section 28

(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time.

(2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged.

The relevant provision of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008 and 125/2011) provides:

“(1) All claims established by a final court decision ... shall be time-barred after the expiry of [the time-limit of] ten years, even if the law provides shorter period of prescription.


Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant, Mr Mesut Kar, is a Turkish national, who was born in 1990 and is detained in T type prison in Izmir. The Turkish Government (“the Government”) were represented by their Agent.

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

On 27 April 2009 the applicant was arrested by the police on suspicion of membership of a terrorist organisation.

On 29 April 2009 the Şırnak Magistrates’ Court ordered the applicant’s pre-trial detention.

On 20 November 2009 a bill of indictment was filed with the Diyarbakır Assize Court accusing the applicant of membership of a terrorist organisation.

On 19 February 2010 the first hearing was held before Diyarbakır Assize Court.

On 2 January 2013 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to ten years and six months’ imprisonment. The assize court also ordered the applicant’s continued detention.