Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1973 and lives in Grozny.

In September 2006 the applicant began living with A.A.

On 24 June 2007 she gave birth to a son, A.-M.

In September 2007 relations between the couple deteriorated and they separated. The child continued to live with the applicant.

In August 2011 the applicant’s brother-in-law, M.A., asked the applicant’s permission to take the child for a couple of days to see his father, A.A., who was visiting from Moscow. The applicant agreed.

The child was never returned to the applicant. A.A. took the boy to Moscow, and the applicant has not seen him since. She twice went to Moscow to find A.A., but in vain.

On 30 September 2011 the applicant applied to the Oktyabrskiy District Court of Grozny (“the District Court”), seeking to determine the child’s place of residence as being with her. She also asked the court to order A.A. to pay child maintenance.

On 24 October 2011 the District Court took a decision to leave the applicant’s claim without consideration owing to a failure by the parties to appear.

The applicant went to the police, asking for their help to locate A.A.

On 10 June 2012 the proceedings were resumed at the request of the applicant.

A.A. lodged a counterclaim with the District Court, seeking to have the child’s place of residence to be determined as being with him.

On 27 December 2012 the District Court decided that the child should live with his mother, the applicant, and that A.A. should pay the applicant child maintenance. A.A.’s application for a residence order was dismissed. A.A. appealed.

On 7 May 2013 the Supreme Court of the Chechen Republic (“the Supreme Court”) upheld the judgment of 27 December 2012 on appeal.

On 24 July 2013 the District Court clarified its judgment of 27 December 2012 and held that the operative part of the judgment should read as follows: “to remove the minor [child’s name], born on 24 June 2007, from [A.A.], residing at the address ..., and to hand him over to his mother P.A. Yusupova”.

However, A.A. refused to comply with the judgment.

On 12 August 2013 the District Court issued a writ of execution.

On 21 August 2013 bailiffs from the Inter-district Bailiffs Service of the Chechen Republic opened enforcement proceedings.

It was established from A.A.’s mother that A.A. lived in Moscow. Consequently, the enforcement file was referred to the Golovinskiy District Bailiffs Service in Moscow.

On 22 August 2013 a bailiff from the Golovinskiy District Bailiffs Service visited A.A.’s presumed place of residence in Moscow and established that A.A. and the child did not live there and were not registered there. The relevant report was drafted.

On 5 September 2013 the bailiff received a statement from the owner of the above-mentioned flat, who stated that A.A. and the boy had left the flat in August 2013.

The bailiff obtained further information that in 2013 the child had not attended his kindergarten in Moscow, kindergarten no. 615, and that there was no data about A.A. in the individual personalised tracking system of the Russian Pension Fund for Moscow and Moscow Region.

On 9 December 2013 the enforcement file was returned to the bailiffs service in the Chechen Republic.

On 25 March 2014 a bailiff from the Oktyabrskiy District Bailiffs Service of Grozny found that his counterparts in the Golovinskiy District Bailiffs Service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment of 27 December 2012. Namely, they had failed to inspect the premises and draw up the relevant act of inspection, to involve the local police in carrying out the enforcement measures, to question A.A.’s partner O.S., named as the child’s mother in his medical record, and to institute a search for A.A. and the child. On the same day the enforcement file was again referred to the Golovinskiy District Bailiffs Service in Moscow.

In June 2014 the applicant enquired with the Golovinskiy District Bailiffs Service about the progress of the enforcement proceedings. She was informed about the referral of the enforcement file to the Oktyabrskiy Bailiffs Service in Grozny in December 2013.

The applicant then contacted the Oktyabrskiy District Bailiffs Service of Grozny, which on 16 October 2014 informed her that they did not know the whereabouts of the enforcement file.

At the request of the Oktyabrskiy Bailiffs Service, on 10 November 2014 the District Court issued it with a duplicate of the writ of execution of the judgment of 27 December 2012.

On 10 February 2015 the applicant filed a court complaint about the inaction of the Oktyabrskiy District Bailiffs Service of Grozny.

On 11 March 2015 the District Court held that between 21 August 2013 and 10 February 2015 no enforcement actions had been carried out by the Oktyabrskiy District Bailiffs Service of Grozny to enforce the judgment of 27 December 2012. The District Court further held that the inaction of the bailiffs service had led to an unjustifiably long delay in the enforcement of the judgment, which violated the applicant’s right to judicial protection, including her right to have the judgment enforced. It therefore found the bailiffs service’s inaction unlawful and ordered it to remedy the above violations.

On an unspecified date after the above judgment the enforcement file was referred back to Moscow, where a search for A.A. and the child was instituted.

On 26 August 2015 A.A.’s right to leave the country was temporarily restricted. On the same day the Bailiffs’ Service for Moscow Region was entrusted with carrying out enforcement actions in Moscow Region aimed at establishing A.A.’s and the child’s place of residence with A.A.’s partner O.S. Enquiries were sent to the Health and Education Departments of Moscow to trace the child. Two of A.A.’s presumed places of residence in Moscow, including the one visited in August 2013 (see paragraph 23 above), were visited. Nobody opened the door at the flats in question or at the neighbouring flats.

On 5 October 2015 the enforcement file was referred to the interdistrict special enforcement unit of the Moscow Bailiffs’ Service (межрайонный отдел по особым исполнительным производствам неимущественного характера Управления Федеральной службы судебных приставов по Москве).

It was established that the child was not attending a school in Moscow and that he was not attached to any public health-care structure in that city. However, on several occasions he had consulted doctors and received treatment in medical establishments there, most recently in June 2015. It was further established that between January and October 2015 A.A. had not made any payments using his bank cards and that he had not married.

On 15 October and 21 December 2015 another two of A.A.’s presumed places of residence in Moscow were visited. It was established that A.A. had never lived at the first address. He had lived at the other address, but by that time the flat had been rented to someone else.

On 18 December and 24 December 2015 a bailiff asked the Moscow Veshnyaki District Department of the Interior (ОМВД по району Вешняки ГУ МВД России г. Москвы) and the State Inspectorate for Road Safety in Moscow (УГИБДД ГУ МВД России по г. Москве) respectively for assistance in searching for the child and locating A.A.’s vehicle.

On 30 December 2015 the bailiff ordered that A.A. be brought in by force.

On 31 December 2015 the bailiff attempted to bring in A.A. by force by paying a visit to another of his presumed places of residence in Moscow. However, the door was opened by a Ms V.I. who explained that A.A. did not live at that address on a regular basis, that he rarely visited and that she did not know his whereabouts.

On 14 January 2016 the bailiff sought the help of the joint stock company the Federal Passenger Company in order to obtain information about any railway travel by A.A. On 3 February 2016 it reported that A.A. had bought a train ticket from Nazran to Moscow for 30 April 2015. No tickets had been bought for the child.

On 27 January 2016 Sberbank of Russia provided the bailiff with information on the movement of money in A.A.’s bank accounts, with information about the cash dispensers where withdrawals had been made.

The search dossier was subsequently sent to the Department of the Federal Bailiffs Service for the Chechen Republic to establish the whereabouts of A.A. and the child and to obtain information from people residing at an address that had been indicated in Grozny.

To the present date the domestic authorities do not know the whereabouts of A.A. and the child and the judgment of 27 December 2012 remains unenforced.

The applicant sought to have criminal proceedings instituted against her brother-in-law for the alleged abduction of the child, but without success. After several rounds of pre-investigation inquiries, the Investigations Department of the Leninskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings for lack of evidence of a crime. The most recent refusal, dated 26 July 2012, was set aside on 10 August 2015 and an additional pre-investigation inquiry was ordered.

According to the applicant, she saw her son and A.A on 31 May 2012 while she was on her way to the Investigations Department. The applicant bent down to hug the boy. At that moment A.A. punched the applicant close to her left ear. She fell down, hitting her head on the pavement and lost consciousness. The applicant recovered in hospital and was subsequently diagnosed by a forensic medical expert as having a traumatic rupture of the left eardrum, intracranial hypertension syndrome, astheno-neurotic syndrome and bruising of the soft tissues of the left cheekbone. After several rounds of pre-investigation inquiries about the above incident, the Investigations Department of the Staropromyslovskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings against A.A. for lack of evidence of a crime. The most recent refusal, dated 23 October 2014, was set aside on 10 August 2015 and an additional preinvestigation inquiry was ordered.

No further information was made available to the Court regarding the outcome of the additional pre-investigation inquiries.


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life;Respect for private life)

The applicant was born in 1992 and lives in Bukhara, Uzbekistan.

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

The applicant was born in Uzbekistan. In 2003 his father, mother, brother and sister moved to Vladivostok in Russia and subsequently acquired Russian nationality, while he continued to live with his grandfather in Bukhara, visiting them in the summer months. After his grandfather had died and the applicant had finished the secondary school, in June 2011 he joined his family in Russia.

The applicant took a mandatory blood test with a view to obtaining a health certificate to support his application for a temporary residence permit. He was found to be HIV-positive.

On 23 September 2011 the Consumer Protection Authority declared the applicant’s presence in Russian undesirable (the “exclusion order”) on the ground that he was HIV-positive.

By judgment of 19 December 2011, the Sovetskiy District Court in Vladivostok rejected the applicant’s challenge to the exclusion order, finding that it was issued in full compliance with Russian law.

On 13 February 2012 the Primorskiy Regional Court upheld the judgment on appeal.

On 22 February 2012 the applicant left Russia to comply with the exclusion order.


No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1969 and lives in Diósd.

On 4 July 2002 the applicant organised a demonstration aimed at forcing the authorities to preserve the ballot papers of the 2002 legislative elections with a view to a potential recounting.

The Government submitted that the ballot papers were bound for statutory destruction on 20 July 2002 as per section 5(3) of Decree no. 48/2001. (XII. 29.) BM on the Procedural Time-limits for the Legislative Elections of 7/21 April 2002.

In the applicant’s view, the relevant law could be understood – and was by many – to the effect that the ballot papers could be destroyed as early as 7 July 2002.

Previously, on 2 July 2002, Parliament had decided not to put on the agenda a bill for the amendment of the 90-day statutory preservation period of the ballots.

The event organised by the applicant – which had not been announced to the police – consisted of completely blocking all six lanes of a centrally situated bridge over the Danube, Erzsébet Bridge, by parking six cars across it, with their doors locked. The demonstration started at about 8.20 a.m. The demonstrators, including the applicant, refused to comply with the police’s order to remove the vehicles and leave. Apart from ambulances, no vehicles could pass the blockade.

By 9.00 a.m. a crowd had gathered and the situation evolved into a massive traffic jam all over Budapest. At about 11.00 a.m. the cars were finally towed away by the police, and the traffic flow resumed at about 12 noon.

On 5 July 2002 the Pest Central District Court imposed a regulatory fine of 50,000 Hungarian forints (HUF) on the applicant. The court held that the applicant, by not complying with the police’s instruction to leave the site of the demonstration, had committed the regulatory offence of disorderly conduct within the meaning of section 142 (1c) of Act no. LXIX on Regulatory Offences.

International observers, in particular the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE), found that the 2002 parliamentary elections had been conducted in a manner consistent with international standards and that the Hungarian electoral system had provided the basis for a generally transparent, accountable, free, fair and equal process.

The Hungarian media widely covered the events of 4 July 2002 and, in an official communiqué, the President of the Republic condemned the incident, declaring it illegal. He underlined that Hungary was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner.

On 2 September 2002 the Budapest XI District Police Department fined the applicant for a parking offence which consisted of his parking his car in the middle of Erzsébet Bridge on 4 July 2002, necessitating its being towed away. On appeal, on 15 May 2003 the Buda Central District Court reduced the fine to HUF 5,000.

Criminal proceedings were subsequently instituted against the applicant and his accomplices. On 16 June 2008 he was convicted of “disturbance of public works” within the meaning of section 260(1) of the Criminal Code.

The Pest Central District Court dismissed the defendants’ arguments according to which they had been exercising their freedom of assembly. Making reference to the Court’s judgment in the case of Bukta and Others v. Hungary (no. 25691/04, ECHR 2007III), the court made a distinction, holding that the applicant’s action could not be regarded as a spontaneous and prompt response to an event (the court was satisfied that the statutory date for ballot paper destruction was 20 July 2002 as per Decree no. 48/2001 (see above paragraph 6)), nor was it lawful like in Bukta, since it had contravened the Highway Code and disturbed the functioning of “public works”. In the latter regard, the court observed that the demonstration had caused the traffic to become paralysed all over the capital for several hours and disturbed the running of 29 bus lines in respect of 642 scheduled individual bus trips, concerning approximately 23,000 passengers.

The applicant was sentenced to 30 days of community work.

On 26 November 2008 the Budapest Regional Court upheld this judgment. In response to the arguments of the accused on appeal, the court noted that “the message of the judgment is not that non-notified assemblies cannot be peaceful; the message is that an assembly, notified or non-notified, is not peaceful where, by its very manner, it constitutes unlawful conduct.” The court referred to section 2(3) of Act no. III of 1989 on the Right of Assembly, according to which “the exercise of the right of assembly may not constitute an offence, or instigation thereto, or violate the rights and freedoms of others”. Quoting the Court’s judgment in the case of Ezelin v. France (26 April 1991, Series A no. 202), the Regional Court established that “in peaceful assemblies the protection provided under Article 11 shall be ensured for the participants as long as they do not commit any reprehensible act on such an occasion”.

In sum, the court held that “it directly follows from the case law of the Constitutional Court and the European Court of Human Rights that the peaceful or non-peaceful nature of an assembly does not depend on whether a participant broke or smashed an asset or applied violence against a property. An assembly may be rendered non-peaceful by passive conduct as well. In its outward appearance the accused parties’ conduct seemed to be peaceful; it is the causal result of their conduct, the major disturbance of road traffic, which rendered their conduct non-peaceful and thereby not protected under the law.”

On 3 December 2009 the Supreme Court dismissed the defendants’ petition for review. It added to the reasoning of the lower courts that “criminal law rules cannot be excluded or restricted by invoking the right of assembly; the exercise of the right of assembly shall not be exempt from compliance with criminal law restrictions.”

This decision was served on the applicant on 18 January 2010.

Section 260 of the Criminal Code, as in force at the relevant time, provided:

“(1) Any person who interferes with the functioning of public works to a considerable extent by damaging their equipment, cables or interfering with them in any other way, is guilty of a felony punishable by imprisonment of up to five years.

(4) For the purposes of this section, ‘public works’ shall mean public utilities, public transportation operations, telecommunications networks, as well as plants producing war materials, energy or basic materials designed for industrial use.”

Section 1 of Act no. V of 1991 on Certain Amnesty Measures provided (see paragraph 30 below):

“In connection with the road blockades paralysing the country’s life from 25 to 28 October 1990, no criminal proceedings shall be instituted or conducted for ...

d) the disturbance of public works (section 260 of the Criminal Code).”

The relevant domestic law on freedom of assembly, in particular Article 62 of the Constitution and Act no. III of 1989, is outlined in paragraphs 19 and 20 of the judgment Éva Molnár v. Hungary (no. 10346/05, 7 October 2008).


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1961 and lives in Surgut, KhantyMansiyskiy Region, Russia.

The applicant was the leader of a trade union in a private company. His co-workers expressed a wish to hold a public assembly on Constitution Day on 12 December 2009 and the applicant, in his capacity as trade union leader, decided to help them. According to him, such help was “an indirect expression of his own opinion”. The applicant distributed banners and explained that it would be more practicable to stage solo demonstrations. To avoid prosecution for holding a public assembly without notifying the authorities in advance, the applicant suggested that his co-workers position themselves at some distance from each other, for instance on different streets. At the time, there was no federal or regional statutory requirement concerning the minimum distance between simultaneous solo demonstrations (see “Relevant domestic law”).

The applicant was then arrested and taken to the police station, where he was held for three hours.

On 18 December 2009 a justice of the peace found him guilty under Article 20.2 § 1 of the Code of Administrative Offences (“the CAO”) and fined him 1,500 Russian roubles (RUB) (35 euros at the time). The court considered that the applicant and his co-workers had met in one place; the applicant had given instructions to the others and had distributed banners; he had taken them to the place of the demonstration. In the court’s view, the above circumstances disclosed the presence of a group event in the form of a static demonstration (a “picket”), and confirmed the applicant’s role as its organiser. Thus, it was incumbent on the applicant to lodge a prior notification about this event to the competent authority as required by section 7 of the Public Events Act (“the PEA”).

The applicant appealed noting that the PEA defined a “picket” as a form of public expression of opinion where one or more citizens with placards, banners and other means of visual expression stationed themselves near the target object of the “picket”. However, there had been a separate “target object” for each solo demonstrator; the demonstrators had been positioned at a considerable distance from each other (for instance, thirty metres for two of them); thus, he could not be lawfully considered as an organiser of a group event.

On 22 January 2010 the Surgut Town Court upheld the judgment.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1942 and lives in Batelov.

In 1965 he had a sexual relationship with a woman who gave birth to a daughter, Z., on 2 March 1966.

As the applicant denied that he was the father, Z.’s legal guardian brought proceedings on her behalf in the Jihlava District Court (okresní soud) for a declaration of paternity.

After giving birth to Z., but before initiating the aforementioned proceedings, the mother married another man.

On 23 April 1970 the District Court found that the applicant was Z.’s father and ordered him to contribute to her maintenance.

The court reached its finding after hearing evidence from several witnesses. It also had regard to documentary evidence and took into consideration the results of a blood test known as a “bio-hereditary test” (dědicko-biologická zkouška). In addition, it established that the applicant had had intercourse with the mother sometime between 300 and 180 days before Z.’s birth. In such cases, a presumption of paternity arose under Article 54 of the Family Code, unless there were clear grounds to rebut the presumption. Another man had also had intercourse with the mother at the crucial time, however, the blood test established that he was not the father.

The applicant lodged an appeal with the Brno Regional Court (krajský soud) and requested another expert opinion. The Regional Court denied the request because the facts had been proved to a sufficient degree. It eventually upheld the judgment of the District Court on 2 June 1970, which became final on 10 June 1970.

In 2011 the applicant requested that the Prosecutor General (Nejvyšší státní zástupce) challenge his paternity in court. By a letter of 21 June 2011 he was informed that the requirements of Article 62 of the Family Code to initiate such proceedings had not been met. Z., by that time an adult, did not want to challenge paternity, it was not in her interests and the applicant had not produced any expert evidence credibly disproving it.

On 29 February 2012 the applicant and Z. underwent a DNA examination. The resulting report of 19 April 2012 unequivocally confirmed that the applicant was not Z.’s father.

On 9 May 2012 the applicant submitted a new request to the Prosecutor General to challenge his paternity in court.

On 12 September 2012 the Prosecutor General informed the applicant that the determination of his paternity had been decided by the Jihlava District Court under Article 54 of the Family Code and that therefore the prosecution service could not initiate proceedings under Article 62 and 62a of the Family Code. The Prosecutor General only had that specific competence as regards statutory presumptions of paternity under Articles 51 § 1 and 52 of the Family Code. When paternity had been established by a judicial declaration under Article 54 of that Code and the judgment had come into legal force, as in the applicant’s case, the law did not provide for any possibility to challenge it.

Relying on his rights under Article 6 § 1 of the Convention, the applicant lodged a constitutional complaint (ústavní stížnost) against the Prosecutor General’s decision of 12 September 2012. He maintained that he had proved that he was not Z.’s biological father and requested that the Constitutional Court (Ústavní soud) order the Prosecutor General to initiate proceedings and challenge his paternity. He also argued that Articles 61 § 1 and 62 § 1 of the Family Code were unconstitutional.

On 13 December 2012 the Constitutional Court dismissed the applicant’s complaint. It noted that his paternity had been established by a judicial decision which had come into legal force and stated, inter alia, that the competence of the Prosecutor General could only apply if all the legal requirements had been fulfilled, which was not, however, the applicant’s case.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1946 and lives in Zagreb. She has suffered since her early childhood from cerebral palsy and uses a wheel chair. In 1968 she was deprived of her legal capacity on account of “her physical illness and intellectual underdevelopment”. On 10 July 1979 her legal capacity was fully restored by a ruling of the Zagreb Municipal Court.

On 12 November 2009 the Pešćenica Social Welfare Centre (hereinafter “the Centre”) asked the Zagreb Municipal Court to institute proceedings with a view to partially depriving the applicant of her legal capacity in order to prevent her from disposing of her assets. They relied on a previous ruling of 1968 by the same court by which the applicant had been deprived of her legal capacity (see the preceding paragraph). They further asserted that the applicant had been suffering from “grave bodily damage” (velika tjelesna oštećenja) since early childhood, as she had been diagnosed with cerebral palsy and various chronic illnesses such as diabetes, high blood pressure and defective eyesight.

They further asserted, relying on a statement given by the applicant’s son at the Centre and a report by the Centre’s social worker, that the applicant’s condition had worsened after she had undergone an operation on her head on 9 September 2008. Since then she had suffered from personality changes, manifested in managing her money in an irrational manner, such as by not paying the monthly instalments for the purchase of her flat, electricity, water and other bills, and by purchasing mobile telephone cards instead of food. This could have led to the applicant’s eviction from the flat she occupied, as she had already received a final warning that a civil action in that respect was to be lodged.

The Centre’s request was supported by evidence, such as an electricity bill of 27,625.70 Croatian kunas (HRK) dated 30 March 2009, a copy of a final demand for payment of monthly instalments for the purchase of the applicant’s flat, with the debt amounting to HRK 8,290.25 as at 7 March 2009, a notice that the water supply for the applicant’s flat would be stopped as of 25 May 2009 on account of non-payment of a debt in the amount of HRK 4,447.42, and a debt recovery notice for the amount of HRK 451.70 payable to Croatian Radio and Television (HRT).

On 28 October 2009 the Centre appointed its employee, Ms J.T., as the applicant’s legal guardian in the proceedings before the Zagreb Municipal Court. In the proceedings before that court the guardian gave her full consent to the Centre’s application. The applicant was represented by a lawyer of her own choosing.

The Municipal Court heard the applicant on 24 March 2010 and established that:

“The respondent was found at her address in a wheelchair. She gave very meaningful answers; [she] stressed that she acted autonomously, kept her flat tidy, prepared her meals and was provided with help by her son and a tenant. She moved about independently in her wheelchair and did her own shopping, [and] paid [her own] bills, which gave rise to difficulties during winter. She stated that in the period when she had underwent a head surgery in September [2008], she had been late with paying her utility bills ... She did not agree with the proceedings [being brought] and considered that she did not need a guardian. She stressed that she regularly took [her] prescribed medication ... It is to be noted that the respondent was presentable and her home was tidy.”

In her written submissions the applicant explained that during her hospitalisation she had empowered her son to retrieve money from her bank account and pay the utility bills, which he had not done but had instead taken the money for himself. She asked that her son be examined by the court.

A psychiatric report commissioned for the purposes of the proceedings, drawn up on 12 April 2010 by D.P. and G.M., in so far as relevant reads as follows:

“A psychiatric examination of the respondent was carried out on 3 April 2010 at her home ... She stated that she had completed elementary school and had been an average pupil, that she had studied law for one year and knew all about the law. To me she said: ‘You know how it was when you operated on me.’ She is dissatisfied with the court proceedings [being brought]: ‘I dislike the Pešćenica [Social Welfare Centre] because they attempted to send me to [a home in] Novi Marof.’ And in respect of her son she said: ‘I am sorry when someone blackmails him’. She stated that she had been paying all her bills and that ‘I previously had a huge negative [balance], [because] I had to pay for the hospital’. She stated that she had a lot of acquaintances who were her former lodgers, whom she saw regularly when out and about in her wheelchair in her neighbourhood and ‘they all respect me’. Upon a direct question she denied having any mental problems.

Psychological status: conscious, contact easily established, uncertain about time, in other respects well oriented. Has a wide and viscous (viskozni) thought process, with loss of determining tendency. Interacts without distance. In thought content confabulatory with a paranoid position, projections and infantile explanation. Basic disposition is elevated. Intellectually – memory functions are primarily insufficient at the LMR level, additionally compromised with psychoorganic type. Lacks insight into her condition.

Marija Ivinović suffers from MB. Little, parapresis spast., monoparesis ext. sup. spast. sin., LMR, condition after brain haemorrhage, condition after stroke, condition after meningoencephalitis, with a lack of insight into her condition [and] the need for and purpose of treatment. Owing to this, she is not able to entirely look after her personal needs, rights and interests. Also, because of her state of health and lack of insight she may jeopardise the rights and interests of others.”

On 19 May 2010 the applicant lodged written submissions whereby she objected to the psychiatrists’ findings, stating that it was not clear how they had concluded that she was unable to properly dispose of her money, given that the debts referred to had been incurred by her son when she had been hospitalised.

At a hearing held on 21 October 2010 the psychiatrists gave the following opinion evidence:

“We entirely endorse our written report of 3 April 2010 and to the objections filed by the respondent we would state the following: on the basis of the enclosed medical records, social history and our own examination we have established that the respondent suffers from Morbus Littlee. She also suffers from triparesis with preserved functions of her right hand, mild mental retardation, and conditions following a brain haemorrhage and meningoencephalitis. Her intellectual capabilities are, owing to the above-mentioned [conditions], additionally compromised on the psychoorganic type. During the interview we noticed confabulations in the content of her thoughts, that is to say fabricated content, a paranoid position, in particular as regards her close family and the employees of the social welfare centre, and infantile explanation. The respondent lacks insight into her condition. All this led us [to conclude] that the respondent does not possess sufficient intellectual capacity to adequately protect her own rights and interests, and because of her lack of insight she might also jeopardise the rights and interests of others. We therefore consider that the application for deprivation of the respondent’s legal capacity as regards disposing of her money and assets and as regards taking decisions about her medical treatment, is appropriate.”

On 21 October 2010 the Zagreb Municipal Court partially deprived the applicant of her legal capacity, thereby stopping her from disposing of her money and other assets and from making independent decisions concerning her medical treatment. The ruling relied exclusively on the opinion given by the two psychiatrists and extensively repeated their findings stated in their written report and their oral evidence given at the hearing of 21 October 2010.

The applicant lodged an appeal on 11 November 2010, in which she argued that partially depriving her of her legal capacity solely on the basis of the psychiatric report had not been justified, because the psychiatrists had lacked knowledge of how she spent her money and how she disposed of her assets. She argued that she had purchased the flat where she lived herself and there was no danger that she would give it up. The assertion that she was paranoid as regards her close family members was not correct. She had had troubled relations with her son at times because he had moved into her flat with his girlfriend and her daughter and had had an interest in having her removed from the flat and placed in a home. Therefore, she had successfully sought their eviction from her flat. She had also changed her bank and her son no longer had authority to use her credit card. She lived a peaceful life, and was a member of the Association of Disabled Persons with Cerebral Palsy and Poliomyelitis. The court conducting the proceedings had had the chance to establish that normal communication with her was possible and that she lived in a tidy flat. The Centre had not proven the need for her to be partially deprived of her legal capacity. Only a bookkeeping expert could have established the facts concerning her debts.

The applicant’s appeal was dismissed by the Bjelovar County Court on 26 January 2012, which again relied extensively on the psychiatric report. The appeal court added that the applicant had been hospitalised between 9 and 25 September 2008 and 23 October and 13 November 2008, whereas the unpaid bills (see paragraph 9 above) were dated 9 April 2009 (electricity bill of HRK 27,625.70), 18 March 2009 (HRK 8,290.25 in monthly instalments for the purchase of the flat) and 22 May 2009 (water bill of HRK 4,477.42), which indicated that the debts concerned a much longer period than the applicant’s hospitalisation.

The applicant then lodged a constitutional complaint, in which she repeated the arguments from her appeal, stressing that the debts in question had been incurred during the period in which she had been hospitalised and her son had had her bank card. Instead of paying her bills he had used the money from her account for his own needs. She added that only one of the psychiatrists who had drawn up the report on her mental state had interviewed her. She also stressed that it was entirely unclear what rights and interests of others she might jeopardise. The complaint was dismissed by the Constitutional Court on 13 June 2012.


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

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

The applicant was born in 1942 and lives in Vilnius.

On 27 September 1996 the applicant was admitted to the Bar. She signed an oath “to be faithful to the Republic of Lithuania, to observe its Constitution and laws, to honestly perform her duties as an advocate (a lawyer who has been admitted to the Bar (advokatas)), to observe moral norms, citizen’s rights and freedoms, and to protect professional secrets”. A couple of months later the applicant registered a law office in her name, and started practising law.

At the applicant’s request her name was taken of the list of practising advocates on 19 December 2003. As noted by the civil courts afterwards, the applicant had acknowledged that her request had been made owing to the fact that a criminal case had been pending against her (see paragraph 8 below).

On 13 August 2004 the applicant was found guilty of forgery of documents (Article 300 § 1 of the Criminal Code) and fraud (Article 182 § 1 of the Criminal Code). The court established that while pursuing her professional practice, the applicant had on more than thirty occasions falsely claimed in writing that she had provided legal services within the framework of the State-paid legal-aid scheme. In addition, the court found that the applicant had forged the signatures of pre-trial-investigation officers on the above documents, submitted them to court officials to receive payment and thereby obtained payment. The crimes she had committed fell into the category of minor intentional crimes (nesunkus tyčinis nusikaltimas), because the maximum possible sanction for them was up to three years of deprivation of liberty (Article 11 § 3 of the Criminal Code). In the applicant’s case, as a sanction, she was ordered to pay a fine, which she did on 24 August 2004. Her conviction expired three years after she had paid the fine, that is to say on 24 August 2007.

On 12 September 2007 the applicant asked the Bar Association to readmit her to the Bar.

On 20 September 2007 the Bar Association refused the applicant’s request, inter alia, on the grounds that the applicant did not have high moral character (nepriekaištinga reputacija). Given that only three years and twenty-four days had passed since the applicant’s conviction, and taking into account the nature of the applicant’s criminal offence – misappropriation of property for non-existent legal services – as well as the specifics of the professional practice of an advocate, it was reasonable to conclude that the applicant had not regained high moral character within such a short time frame, to meet the requirements set out in Articles 7 § 4 and 8 § 4 of the Law on the Bar (see paragraph 21 below).

The applicant challenged this decision before the Vilnius Regional Court. On 25 April 2008 the court heard the applicant’s case. Six witnesses were questioned in court as to the applicant’s reputation; most of them testified to having known the applicant before 1996, when she had been working at the Ministry of Justice. The court partly annulled the Bar Association’s decision and ordered the latter to reconsider the applicant’s request to be readmitted to the Bar. The court noted that the applicant had been convicted of a minor intentional crime. On the day when the applicant had submitted the request to be readmitted to the Bar, her conviction had expired. Consequently, and relying on Article 8 (1) of the Law on the Bar (see paragraph 21 below), the Vilnius Regional Court found that the Bar Association had erred in finding that the applicant had not met the high-moral-character criterion.

The Bar Association appealed. It pointed out that the applicant was not of high moral character as she failed to meet the criteria listed in Article 8 (4) of the Law on the Bar. Refusal to readmit the applicant to the Bar had been based on an evaluation of the nature of actions for which she had been convicted.

In her defence, the applicant submitted to the appellate court a character reference from a managing director of a private company, where the applicant had worked as marketing director. The reference stated that the applicant performed her duties well; and that she was responsible and had a sense of initiative. As shown from the summary of her arguments by the Court of Appeal, the applicant did not plead that reputation related restrictions on her practising law as an advocate had been more severe than those applied to other law-related professions.

On 7 October 2008 the Court of Appeal allowed the Bar Association’s appeal and quashed the first-instance court’s decision. As to the question of high moral character, the Court of Appeal underlined that higher standards were applicable to advocates, as only persons of untainted reputation could participate in the justice system without discrediting it. Therefore, when evaluating an advocate’s conduct it was not sufficient to have regard only to whether the person obeyed the law. It was also pertinent to see a person’s behaviour in the context of the legal norms that regulate the ethics of the advocates’ profession. In this connection the Lithuanian Code of Professional Ethics for Advocates underlined that an advocate should observe legal and moral duties (point 1.2.), should not discredit advocate’s name, the oath he or she swore or the ideal of justice (point 1.3.). An advocate also had duties set out in the Constitution, the Law on the Bar and the Lithuanian Code of Professional Ethics for Advocates (point 2.2) (see paragraph 23 below).

The Court of Appeal concurred with the first-instance court’s finding that the term of the applicant’s conviction had expired and that therefore she could not be reproached under Article 8 (1) of the Law on the Bar. Nonetheless, taking into account the fact that she had committed the criminal offence in the course of her professional practice and that her professional practice had been aimed at committing crimes, of which there were more than thirty counts, it was reasonable to conclude that the applicant’s behaviour did not meet the criteria set out in Article 8 (4) of the Law on the Bar. That the conviction had expired did not mean ipso facto that the applicant had regained an irreproachable reputation within the meaning of Article 8 (4) of that Law. For the appellate court, insufficient time had passed from the date when the applicant had committed the crime to when she had asked the Bar Association to readmit her to the Bar.

The appellate court also noted that a person could submit a request to be admitted to the Bar and to prove that he or she had regained high moral character. However, it was then for the court to establish, of its own motion, whether sufficient time had passed for a person’s rehabilitation to be objectively validated. A person who claimed to have regained high moral character should bring clear and persuasive evidence that he or she had been following the ethical and disciplinary rules. It was then for the court to examine what the nature of the infringements of law was, what personal situation had led to the infringements being committed, and whether those factors still applied. In the present case, despite four years having passed since the date the crime had been committed, there was still no sufficient basis to conclude that the applicant was of high moral character within the meaning of Article 8 (4) of the Law on the Bar.

The Court of Appeal lastly dismissed certain arguments by the applicant that the lower court had erred when interpreting some other legal norms unrelated to the matter of the applicant’s reputation.

The applicant lodged an appeal on points of law. She raised a number of arguments about the Bar qualification exam and professional reputation, without maintaining that the criminal conviction had placed her in a worse situation than representatives of other law-related professions.

By a ruling of 23 February 2009 the Supreme Court dismissed the applicant’s appeal on points of law, and left the Court of Appeal decision unchanged. On the question of reputation, the Supreme Court noted its practice to the effect that no breach of law (joks nusižengimas) was too serious to unconditionally preclude an individual from ever asking to be reinstated to the Bar (the Supreme Court referred to its earlier ruling in case no. 3K-7-168/2001 of 9 January 2001, see paragraph 30 below).

The Supreme Court then held that the expiry of a conviction for a minor intentional crime, as it was indicated in Article 8 (1) of the Law on the Bar, was only one of the criteria when considering the question of a person’s reputation. Moreover, Article 8 (4) of that Law read that a person should meet the criteria of ethics applicable to advocates. Under point 1 of the Code of Professional Ethics for Advocates, advocates were involved in the implementation of justice. The professional practice of an advocate required him or her to carry out his or her duties and obligations towards clients, the courts, the advocate’s profession and society. Moreover, an advocate should never discredit the name of the profession, the oath he or she swore and the ideal of justice. On the facts of the applicant’s case, the Court of Appeal therefore had been correct in finding that the applicant had not proven that she had regained high moral character, in particular given the nature of the criminal acts she had committed.


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

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

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

All four applicants were dismissed by their respective employers and subsequently brought separate civil claims against them, seeking reinstatement and/or pecuniary damages. They all obtained final court decisions in their favour, which remain unenforced to the present day. The debtor companies were registered as fully or predominantly socially/State-owned companies in the relevant public registers before and throughout the relevant insolvency/enforcement proceedings.

On 26 May 2004 the applicant was dismissed by his employer, DP Udarnik, a transport and transshipment company based in Belgrade (currently registered as Socially-owned company Udarnik (in liquidation)). On 9 June 2004 the applicant brought a civil action challenging that decision. He withdrew the request he had made for his outstanding salary on 20 December 2006. On the same date, the Third Belgrade Municipal Court:

(a) declared the employer’s decision null and void;

(b) ordered the applicant’s reinstatement within eight days, and

(c) awarded the applicant RSD 49,500 on account of costs.

The Belgrade District Court upheld the judgment on 10 July 2008. It became enforceable on 26 December 2008.

In the meantime, the debtor company appears to have been subject to insolvency proceedings before the Commercial Court between 19 March and 14 May 2007. On the latter date the insolvency proceedings were stayed (obustavljen) and the debtor continued its business activities.

On 21 January 2009 the applicant filed a request for enforcement of the judgment of 20 December 2006 and the payment of the outstanding salaries till his reinstatement, submitting amendments on 6 March 2009. It would appear that the court sent the request to the debtor for comment on 2 April 2009, but it has not been served on the debtor. Throughout 2009 the applicant complained at least five times to the enforcement court about its failure to issue an enforcement order. In his complaint of 31 August 2009, the applicant submitted that the debtor was an active company and, in that respect, provided a copy of the decision on staying of insolvency proceedings of May 2007, certified by the Commercial Court.

On 13 October 2009 the enforcement court rejected the applicant’s request, incorrectly stating that the debtor was subject to pending insolvency proceedings (see paragraph 9 above). The applicant unsuccessfully appealed and wrote to the enforcement court again on numerous occasions.

In the meantime, between July 2009 and November 2011, attempts at liquidation of the debtor failed, as there were not enough assets to settle all the creditors’ claims. Another set of insolvency proceedings in respect of the debtor was opened on 19 December 2011, which appears to be still pending. The applicant registered his claim for costs within the insolvency proceedings. After a division of property, he received 2.89% of his claim for costs.

Between 1990 and 2007 the applicant was employed by Raška Holding AD – Pamučna predionica DOO, a company based in Novi Pazar. She was placed by her employer on compulsory paid leave until such time as normal production could be resumed and the company’s business performance had improved sufficiently. Whilst on leave, in accordance with the relevant domestic legislation, the applicant was entitled to a significantly reduced monthly income and payment of her pension, disability and other social security contributions.

In February 2007 many employees on compulsory leave were made redundant and took part in the Government’s “social programme”. After enquiring about her entitlements, on 14 March 2007 the applicant was served with a decision dated 18 March 1991 concerning her dismissal.

On 9 July 2007 the Novi Pazar Municipal Court declared the dismissal null and void and ordered her employer to:

(i) reinstate her within eight days to a post which corresponded to her professional qualifications;

(ii) pay her the minimum salary arrears for the period 8 November 1990 to 16 March 2007, together with statutory interest;

(iii) pay her pension and disability insurance contributions for the period 1 January 1994 to 16 March 2007; and

(iv) pay RSD 11,700 for her legal costs.

The judgment became final on 5 September 2007 and the Municipal Court ordered its enforcement on 3 December 2007. In the meantime, on 22 October 2007 the applicant was made redundant.

Following a claim by the applicant, on 6 May 2008 the Municipal Court ordered her employer to pay her pension and disability insurance contributions for the period 16 March to 22 October 2007 and RSD 13,000 for her legal costs, while rejecting her claim for her outstanding salary for the same period. The judgment became final on 22 January 2009. The enforcement courts rejected a request by the applicant for enforcement. On 24 February 2011 the Supreme Court issued an instruction stating that enforcement proceedings should be initiated, and an enforcement order was adopted on 7 July 2011. The applicant was also awarded RSD 7,420 for the enforcement costs. After a re-trial, on 18 October 2013 the Municipal Court ordered the applicant’s employer to also pay her outstanding salary for 16 March to 22 October 2007 (the period during which she was on paid leave) and RSD 13,000 for her legal costs. These proceedings are pending at domestic level.

On 5 January 2004 the Privatisation Agency ordered the restructuring of the debtor. Raška Holding Kompanija and its subsidiary companies, including the debtor, have been in the process of being restructured since 26 May 2006. On 11 September 2013 the Kraljevo Commercial Court opened preliminary insolvency proceedings in respect of the debtor. On 18 October 2013 the restructuring of the debtor was terminated. It would appear that insolvency proceedings in respect of the debtor were opened on 25 October 2013, and that the applicant’s claim was allowed by the Kraljevo Commercial Court on 26 January 2015 but has not yet been paid. The insolvency proceedings are still ongoing.

On 25 June 2010 the First Belgrade Municipal Court accepted the settlement of a dispute between the applicant and his employer, Livnica Ralja AD, a company based in Ralja. The terms were as follows:

(a) the dismissal of the applicant in 2002 was to be declared null and void and the employer was to reinstate the applicant within eight days into a post which corresponded to his professional qualifications.

(b) the employer was to pay the applicant RSD 1,544,783 and RSD 484,810.65 on account of his outstanding salary arrears and corresponding social contributions for the period 11 March 2002 to 31 May 2010, as well as the required court stamp duties.

The court’s decision became final and enforceable on the same date.

The Second Belgrade Municipal Court – Sopot Unit (hereinafter “the enforcement court”) issued an enforcement order on 29 June 2010. The applicant asked the court to expedite the enforcement proceedings on several occasions. On 28 March and 2 June 2011 the bailiff found no available movable assets to enforce the settlement. On 23 May 2011 the court issued an enforcement order in respect of the debtor’s immovable assets.

On 9 February 2011 the Belgrade Commercial Court opened preliminary insolvency proceedings, inviting the claimants to pay the deposit for the opening of the insolvency proceedings and register their claims. The call for the claimants was displayed on the court’s notice board between 9 February and 9 April 2011. On 18 April 2011 the court opened and terminated the insolvency proceedings in respect of the debtor. The court ordered the debtor’s liquidation as the latter had gone bankrupt, seemingly without having any legal successor, and none of the claimants had deposited costs of the proceedings or registered claims. The decision became final on 23 June 2011 and was published. It said that any property of the debtor had become State assets.

On 28 June 2011 that decision was registered (zabeležba) in the relevant public registers concerning the status of all companies and the debtor was struck off the relevant public registers. The date of its publication in the Official Gazette of the Republic of Serbia is not available on these registers.

On 18 October 2011 the enforcement court suspended (obustavio) the enforcement proceedings as no available assets had been found.

On 25 November 2011 the enforcement court terminated (prekinuo) the enforcement because of the debtor’s liquidation.

On 9 December 2004 the Leskovac Municipal Court ruled in favour of the applicant and ordered his employer, DP Galpres from Leskovac, to reinstate him, to pay him his outstanding salary arrears, to pay his corresponding pension and disability insurance contributions (doprinosi za penzijsko i invalidsko osiguranje) and his legal costs.

The part of the judgment in respect of reinstatement and contributions became final on 16 February 2005 and enforceable on 19 March 2005, while the Leskovac District Court quashed the remaining part concerning his salary arrears.

On 13 November 2006 the Leskovac Municipality Court awarded the salary arrears for the period of 2003 to 2006, together with relating contributions and costs.

The enforcement courts ordered enforcement of the above judgments on 20 May 2005 and 24 April 2007 respectively.

On 18 April 2015 the Court decided to give notice of the application to the Government.

On 7 August 2015 the Serbian Government sent their observations on the admissibility and merits. By a letter of 14 August 2015 the Government’s observations were forwarded to the applicant, who was invited to submit any written comments together with any claims for just satisfaction by 25 September 2015.

In the absence of any response, on 15 March 2016 the Registry tried to make enquiries with the applicant about whether he was still interested in pursuing the case, but to no avail. By a registered letter dated 17 March 2016, he was notified that the periods allowed for appointment of a lawyer and for submission of his observations and claim for just satisfaction had both expired and that the Court had extended the deadline for submissions until 28 April 2016. The Court also sent copies of the previous letters of 17 April and 14 August 2015 and enclosures. The applicant’s attention was again drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The return receipt indicated that the applicant received the letter on 23 March 2016. However, no response has been received.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Sergiy Goncharenko;Yonko Grozev

The applicant, Mr Aleksandr Vasilyevich Lyubchenko was born in 1973 and lives in Dzhankoy, the Autonomous Republic of Crimea (the “ARC”). At the time of lodging of his application, he indicated of being a Ukrainian national. In May 2014 he informed the Court that he had obtained Russian nationality in April 2014.

The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.

Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

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

By a judgment of 19 February 2002, a certain K. was sentenced to three and a half years’ imprisonment suspended for two years’ probation. In June-September 2003 K. failed to appear before the probation officer for his fortnightly registration allegedly for medical reasons, including hospitalisation.

On 6 November 2003 the applicant, a probation officer, represented the District Penal Inspection Authority in judicial proceedings against K. concerning replacement of K.’s probation with imprisonment due to the latter’s failure to comply with the probation requirements. The court adjourned the proceedings until 19 November 2003, having requested K. to submit documents confirming his hospitalisation.

On 13 November 2003 K. gave a statement to the Deputy District Prosecutor of Dzhankoy. He submitted that after the court hearing of 6 November 2003 the applicant had summoned him to his office on 10 November 2003. When he had arrived, the applicant informed him that the judge and the prosecutor were intending to replace his probation with imprisonment but that the applicant could settle the matter in his favour for 200 US dollars (USD). K. signed the aforementioned statement and confirmed that he was aware that knowingly reporting false information about a crime was a criminal offence.

On the same day, 13 November 2003, prosecutor M. decided to institute a preliminary inquiry under Article 97 of the Code of Criminal Procedure (“the CCP”) and assigned the task to economic crime detectives I. and Sh. from the Crimea Police Department. At 2.30 p.m. the detectives examined two 100 USD notes provided by K. which they had marked with special luminescent fluid (lumiphore) and which K. then put in his pocket. This action was documented in a record of the application of special chemical substances (Протокол применения специальных химических веществ) and was signed by the participants and two attesting witnesses. According to later submissions by some of those present, K. also had a dictaphone attached to his clothing.

At about 3 p.m. on the same day K. entered the applicant’s office and emerged a few minutes later, indicating to the detectives and prosecutor M. that he had given the banknotes to the applicant, whereupon they also entered the applicant’s office. According to the crime scene inspection report (Протокол осмотра места происшествия) drawn up by the prosecutor, between 3.25 p.m. and 5.05 p.m. the prosecutor and police officers conducted a search of the applicant’s office. They recorded that during the search the applicant was asked by the police officers whether he had received any money. He replied in the negative. The police officers then checked the applicant’s hands with a special device and found traces of lumiphore on his right hand. They looked in an open safe situated near the applicant’s desk and found the two marked banknotes inside. It was also noted in the report that the search had been audio-recorded.

The applicant was arrested that same day.

On 15 November 2003 the applicant was charged with soliciting and receiving a bribe.

On 16 November 2003 the applicant was released.

On 1 April 2004 the applicant was dismissed from his post of probation officer.

On 21 January 2004 the Dhzankoy District Court (“the District Court”) examined the applicant’s case and referred it to the Dzhankoy Prosecutor’s Office for further investigation. The court ordered that during the further investigation the banknotes which had been used for the bribe should be located and checked for the applicant’s fingerprints, and that the audio-recording of the bribe-taking, and documents proving that that operation had been lawful must be produced.

On 26 February 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) quashed the ruling of 21 January 2004, finding that the requirements laid down by the first-instance court were irrelevant or unnecessary. It observed in particular that the banknotes had been treated with chemicals and examined by forensic experts, that the probability of finding fingerprints on them was therefore low and that it was for this reason that the corresponding examination had not been conducted. The court also noted that there was no evidence either in the case-file or the bill of indictment that an audio-recording had been made, and the first-instance court judge had failed to indicate on what basis he had concluded that such an audio-recording of the bribe handover had in fact been made.

By a judgment of 9 March 2005 the District Court acquitted the applicant. The court noted that the applicant denied the accusations, claiming that after the postponement of the hearings in the case of K., the latter had approached him on several occasions to ask about the case. On 13 November 2003 K. had come to his office, they had shaken hands and K. had started asking him again about his probation. After K. had left the office, the police officers had come in and had found the US dollars in his safe. The applicant claimed that he knew nothing about the money and had never solicited or taken any bribe from K. He argued that K. could have put the money in his safe without his knowledge and that the traces of lumiphore on his hand could have been caused by shaking hands with K. The court also examined the evidence presented by the police and found that the operation had been conducted in breach of criminal procedure. It held, in particular, that the operation had been instigated on the basis of unverified allegations made by K. and without an order to institute criminal proceedings against the applicant, and also that certain investigative techniques (special chemicals and audio-recording) had been used without an operational file having been opened, contrary to section 9 of the Search and Seizure Activities Act. The court further noted that the prosecution had lost the audio-recording of the conversation between K. and the applicant, which constituted an important item of evidence that could have confirmed or refuted K.’s allegations that the applicant had extorted money from him. Although the prosecutor denied the use of audio-recording during the operation, K. and one of the police officers confirmed that a dictaphone had been used during the operation. The court also observed that the expert opinion stated that the marked banknotes could in fact have been checked for the applicant’s fingerprints but this had not been done and the banknotes had been lost. The traces of the chemical on the applicant’s hand did not in itself constitute conclusive evidence that he had taken money from K. The court also noted that during the trial prosecutor M. had claimed that the operation had been headed by police inspector I., whereas the latter stated that they were merely assisting the prosecutor to verify the notification of a crime. The court also doubted the testimony given by K. in the light of an earlier promise to take revenge, which was confirmed in the court by two of the applicant’s colleagues. For all these reasons the court concluded that the evidence presented by the prosecution had either been unlawfully obtained or was too inconclusive to establish that the applicant had solicited or received a bribe from K.

The prosecutor appealed. In the applicant’s reply to the appeal he stated that the audio-recording made during the operation contained evidence of his innocence and had been withheld from the case file for this reason, and that prosecuting investigator M. had not investigated the real intention behind K.’s complaint, namely to slander the applicant and evade imprisonment.

On 6 May 2005 the Court of Appeal quashed the earlier judgment, found the applicant guilty of bribery, sentenced him to three years’ imprisonment together with confiscation of all his property and detained him pending appeal. The court considered that the fact that the applicant had solicited a bribe from K. was proved by the consistent and logical statements given by the latter. It noted that the applicant had failed to check the validity of the reasons for K.’s non-compliance with the probation requirements. In the latter aspect, it referred to two decisions of the Dzhankoy District Court of 11 December 2003 and 20 May 2004 in favour of K. The court also relied on the evidence provided by the records of the use of the special chemical, of the discovery of the marked banknotes in the safe, of the discovery of traces of special chemicals on one of the applicant’s hands, of an event reconstruction proving that K. could not have put the money in the safe without the applicant having noticed it, of the finding of traces of the special chemical on the applicant’s hand and a forensic examination finding a similarity between the chemical on the applicant’s hand and that on the marked banknotes. The court held that the District Court had examined the evidence thoroughly but had assessed it incorrectly. Referring to the statement by police officer I. that no operational file had been opened because this had been a preliminary inquiry within the meaning of Section 97 of the CCP, it concluded that the evidence obtained in the course of the operation had been obtained in compliance with criminal procedure.

The applicant lodged an appeal on points of law challenging the admissibility of the evidence against him. Over and above the findings of the trial court he argued that the operation had not been authorised by any court, contrary to Article 97 of the CCP and section 8 of the Search and Seizure Activities Act, and that the operation conducted by the authorities on 13 November 2003 had assisted the provocation of a bribe rather than examining the truthfulness of K.’s allegations and preventing the crime.

On 30 June 2005 the Supreme Court of Ukraine upheld the decision of the court of appeal but reduced the applicant’s sentence to one year’s imprisonment. The court noted that the applicant’s guilt had been proved by the consistent testimonies of K. who had no reason for making false accusations against the applicant. It concluded that there had been sufficient direct and indirect proof that the applicant had not only taken the bribe but had solicited it too.

The applicant was released from prison on 2 May 2006.

Article 62

“[...] An accusation shall not be based on illegally obtained evidence or on assumptions. All doubts with regard to the proof of a person’s guilt are to be interpreted in his or her favour.”

Article 368

Taking a bribe

The taking of a bribe of any kind, by an official, in return for taking or refraining from any action for the benefit of the person offering the bribe or for the benefit of any third person by means of the authority or official powers entrusted in this official, shall be punishable by a fine of 750 to 1,500 tax-free minimum incomes, or imprisonment for a term of two to five years, with the deprivation of the right to occupy certain positions or engage in certain activities for a period of up to three years.

The taking of a substantial bribe by an official who occupies a responsible position, or by a group of persons following prior conspiracy, or if repeated or accompanied by solicitations for such a bribe, shall be punishable by imprisonment for a term of five to ten years along with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years and confiscation of property...

Article 369

Offering a bribe

The offering of a bribe shall be punishable by a fine of 200 to 500 tax-free minimum incomes, or restraint of liberty for a term of two to five years.

A person who offers a bribe shall be discharged from criminal liability if the bribe was solicited from this person and if this person, after offering the bribe and before any criminal prosecution was initiated against him/her, voluntarily reported the act of bribery to the agency competent to undertake criminal prosecution.

Article 370

Provocation of bribery

The provocation of bribery, that is to say the intentional creation, by an official, of circumstances and conditions that provoke the offering or taking of a bribe for the purpose of implicating those who offered or took it, shall be punishable by restraint of liberty for a term up to five years, or imprisonment for a term of two to five years.

The same act committed by a law enforcement official shall be punishable by imprisonment for a term of three to seven years.

Article 97

Obligation to accept statements and notifications about crimes and the procedure for their examination

“...If the need arises to check a statement or notification about a crime prior to the opening of a [criminal] case, such check shall be conducted by a prosecutor, an investigator, or a panel of inquiry within a period of ten days by taking explanations from particular individuals or officials or by requesting the necessary documents.

A statement or notification about a crime prior to the opening of a criminal case may be verified by means of search and seizure activities. Certain search and seizure activities, determined by the legislative acts of Ukraine, shall be conducted with the court’s authorisation on the basis of a request to be submitted by the head or deputy head of the respective operative unit and approved by a prosecutor...”

Section 8 of the Act lays down a range of investigative techniques that constitute the search and seizure activities that may be conducted by the law enforcement bodies. It also requires that any covert entering of a home or other individual property, interception of communications, monitoring of correspondence and telephone conversations and application of other technical means for obtaining information, must be undertaken at the request of the head or deputy of the operative unit and authorised by a court decision. Any application of technical means for obtaining information must be documented and may be used as evidence in criminal proceedings.

Section 9 of the Act requires that search and seizure activities be carried out only after an operational file (оперативно-розшукова справа) has been opened, and prohibits these activities without the existence of such a file.

“...19. Evidence shall be deemed to have been obtained illegally if it has been obtained and processed either in breach of individual and citizen’s rights guaranteed by the Constitution of Ukraine, or of legislation on criminal procedure, or by persons and bodies or through means not authorised by the relevant procedural norms.”


CASE OF NISKASAARI AND OTAVAMEDIA OY v. FINLAND

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

George Nicolaou;Guido Raimondi;Mikko Puumalainen;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The first applicant was born in 1952 and lives in Helsinki. The applicant company has its seat in Helsinki.

The first applicant is a journalist for a weekly magazine, Seura, which is published by the applicant company.

On 16 March 1998 and 19 November 2001 respectively the Finnish national public service broadcasting company broadcast two TV documentaries in its MOT series which concerned mould-infested houses and the protection of forests. They were made by several reporters, including Mr M.B. who was the complainant at the origin of criminal proceedings that were subsequently brought against the first applicant (“the complainant”) (see paragraph 12 below).

On 18, 19 and 23 March 2002 the first applicant criticised on two separate internet discussion sites, namely on the “Ylevi” site maintained by the Green League (Vihreä liitto, Gröna förbundet) and the “Journalism” site maintained by Tampere University, the manner in which these two documentaries had been made. He wrote, inter alia, that:

“[The complainant] is a fanatic warrior of the faith for whom facts are just in the way. He has indisputably been caught at cold, intentional lying.”

“[The complainant] in fact claimed that the house was healthy but that one cheating company doing mould inspections had managed to find some insignificant mould spots because of which a completely unnecessary court case was initiated. ... Contrary to [the complainant’s] assurances, N.N.’s former house was rotten. ... [The complainant] must have known that. He is thus lying cold-bloodedly and intentionally. ... He thus knew that [the expert] lied but he let it happen.”

On 31 May 2002 the first applicant published a four-page article in Seura magazine, which is one of the biggest nationwide family magazines in Finland, on similar lines. The article had been approved by a lawyer before publication. The article included passages such as:

“[The complainant] claimed that over 10% of the Finnish forest area was already protected and that conservationists demanded that an additional 10-15% of the forest area in Southern Finland should be preserved. These figures are fabricated....

S.S. thus said in [the documentary] the complete opposite of what her research showed and what was stated in her grant application. When I interviewed [the complainant], he admitted that he had known about the grant and the 1993 research. Still he accepted S.S.’s clearly groundless testimony in the documentary.”

On 5 July 2002 Seura magazine published a two-page reply in which the reporters who had made the documentaries in question replied to the first applicant’s criticism. In response to this reply, the magazine published a page-long counter-reply by the first applicant.

On 21 September 2002 the complainant reported the matter to the police, asking them to investigate whether the first applicant was guilty of defamation when he called him a liar in his writings. By letter dated 16 October 2002 the complainant presented his claim for damages against the applicants.

On 15 and 17 November 2002 the applicant company and the first applicant submitted their replies to the police. On 5 December 2002 the first applicant was questioned by the police for the first time.

On 23 April 2004 the public prosecutor pressed charges in the Espoo District Court (käräjäoikeus, tingsrätten) against the first applicant for defamation. The complainant concurred with the charges brought by the public prosecutor. The compensation claim presented by him previously on 16 October 2002 was joined to the criminal charges. The applicants claimed that the Espoo District Court was not the appropriate court because the forum norms had changed in January 2004.

On 8 June 2005 the Espoo District Court found in an interlocutory decision that it was a competent court to decide the case. Even though the article in question had been written and the decision on its publication had been taken in Helsinki, the magazine had been printed and the consequences of the article had arisen in Espoo. As the internet articles concerned the same matter, the court was competent to examine them too.

On 26 January 2007 the Espoo District Court dismissed all charges against the first applicant and the compensation claim directed against the applicants. It found first of all that all the articles should be considered as one matter because they concerned the same topic, irrespective of whether they had been published on internet or in the magazine. Both the first applicant and the complainant had had grounds for their views and they had not said anything that was clearly untrue. The documentaries made by the complainant had provoked public discussion, but they had also provoked harsh criticism on account of the manner in which they were presented. Therefore the threshold for acceptable criticism of the complainant and of his documentaries was higher than usual. As there had been insinuations in the documentaries that some of the expert opinions had been false, the first applicant was allowed to use similar wording vis-à-vis the complainant.

By letter dated 26 February 2007 the complainant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). The Appeal Court held oral hearings on 16 and 17 October and on 27 October 2008.

On 30 January 2009 the Appeal Court convicted the first applicant of defamation and sentenced him to 40 day-fines, totalling 240 euros (EUR). He was ordered to pay EUR 2,000 plus interest in damages to the complainant. The applicant company was ordered, together with the first applicant, to pay EUR 4,000 plus interest in damages to the complainant as well as his costs and expenses of EUR 25,500, plus interest, in total. The court found first of all that the Espoo District Court had been the competent court in the matter. As to the merits, the Appeal Court mentioned Article 10 of the Convention and the principles expressed therein as well as adverting to the Court’s case-law and legal literature on Article 10. With reference to the Court’s case-law, it recalled that even if everyone was guaranteed freedom of expression, it was not permitted to defame others or to disseminate false information on anybody. In this respect a journalist had the same responsibility as others. The Appeal Court then found that it had not been proved that the complainant had disseminated wrong information in the documentaries in the manner recounted by the first applicant, except for the misleading information given in the context of the reportage on mould-infested houses which the complainant had failed to rectify. It appeared also from the witness statements that different statistical information existed as far as the conserved forest area in Finland was concerned, such that it could not be said that the figures given by the complainant had been fabricated. The first applicant had thus imparted false information on the complainant and these accusations had been serious. The first applicant had not therefore had strong reasons or probable cause to hold his own accusations to be true. The fact that freedom of expression was guaranteed under Article 12 of the Constitution as well as under Article 10 of the Convention together with the fact that the complainant was also a journalist and that the first applicant had been able to give grounds for his own opinion in the media, did not entitle the first applicant to impart the above-mentioned false information. Nor did the first applicant have the right to call the complainant a liar. On these grounds the first applicant was found guilty of defamation.

By letter dated 31 March 2009 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), claiming that all facts had been correct in the article published in Seura magazine. Moreover, during the oral hearing in the Appeal Court, the applicants had not been allowed to put questions to the opposing party’s witnesses, whereas the opposing party had been able to question their witnesses. Also the evidence provided by the applicants had not been adequately taken into account by the Appeal Court and the proceedings had taken place in the wrong forum.

On 11 December 2009 the Supreme Court refused the applicants leave to appeal.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra

On 13 April 2006 the Vlasotince Municipal Court ruled in favour of the applicants. The respondent, AD Retex, a privately owned company as of 2003, was ordered to: (a) reinstate them to their former jobs; (b) pay their salary arrears; (c) pay the relevant social insurance contributions due for the same period; and (d) pay the their legal costs.

By 11 July 2007 this judgment, as amended on appeal in respect of the legal costs, became final.

On 27 July 2007 the applicants filed a request for the enforcement of the said judgment.

On 6 August 2007 the Vlasotince Municipal Court accepted the applicants’ request and issued an enforcement order.

On 3 December 2007 the Leskovac District Court upheld this decision on appeal.

In January 2008 the Vlasotince Municipal Court carried out an assessment of the debtor’s movable assets.

On 21 April 2008, in response to a third party’s request, the Vlasotince Municipal Court excluded certain movable assets from the enforcement proceedings.

On 26 May 2008 the Vlasotince Municipal Court obtained an additional report regarding the value of the debtor’s movable assets.

On 22 April 2010 the Leskovac High Court ordered the re-examination of the third party’s exclusion request lodged in respect of the debtor’s assets.

On 21 January 2011 the Leskovac Commercial Court opened insolvency proceedings (stečajni postupak) in respect of AD Retex and on 3 June 2011 the applicants’ claims were confirmed in their entirety. The applicants themselves were classified as third-class creditors.

On 16 June 2011 the debtor’s assets were sold as part of the insolvency proceedings.

On 12 June 2013 the enforcement proceedings were stayed.

The insolvency proceedings before the Leskovac Commercial Court are still pending, and the applicants have yet to be paid apparently as a consequence of two related civil suits brought by other creditors.

On 26 April 2010 the applicants lodged an appeal with the Constitutional Court, maintaining that they had suffered a breach of the right to a fair trial within a reasonable time and a violation of their property rights. In terms of redress, the applicants sought recognition of these violations, an order from the Constitutional Court for the expedition of the impugned enforcement proceedings, and the “removal of all adverse consequences” suffered in this connection (including through the payment of their outstanding pecuniary claims).

On 4 April 2012 the applicants noted the adoption of the amendments to the Constitutional Court Act, and specified their compensation claims accordingly. Specifically, on account of the pecuniary damage suffered, the applicants requested the respective amounts awarded to them by the final judgment in question, whilst as regards the nonpecuniary damage sustained they claimed 2,200 euros each (see paragraphs 27-30 below).

On 27 March 2013 the Constitutional Court found, in the operative part of its ruling (u izreci), that the applicants had indeed suffered a violation of their right to a fair trial within a reasonable time, as well as a violation of their property rights, but rejected the compensation claims regarding the non-pecuniary damages sought by the applicants. The Constitutional Court, lastly, ordered that the impugned enforcement proceedings be terminated in accordance with the applicable legislation (see paragraph 31 below).

In its reasoning the Constitutional Court established that the courts in question had not acted promptly between 27 July 2007 and 21 January 2011. Concerning the compensation issue, the Constitutional Court stated that the applicants’ pecuniary and non-pecuniary damage claims had been filed out of time. In so doing, it merely referred to Articles 36 § 1 (2) and 85 § 3 of the Constitutional Court Act, as amended in 2011, and Article 40 § 1 of the amendments themselves (see paragraphs 27-30below).


No violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mrs N.A., was born in 1986 and lives in Norway.

On 16 September 2009 the applicant and her former husband Mr U.A., a Pakistani national who was born in 1985, were indicted (I) under Article 229, third alternative, cf. Article 232 of the Penal Code (straffeloven), of having caused under particularly aggravating circumstances injury to the body and health of their daughter A entailing serious damage, or of having aided and abetted in this, by having exposed her at least on two occasions to violence causing the following damage:

“- Two instances of fraction to her cranium;

- bleeding under the hard membrane of the brain;

- bleeding between the hard membrane of the brain and scull;

- oedema changes in the brain;

- bleedings in the retina in both eyes;

- blue marks and miscolouring on the body;

- elbow out of joint.

The last-mentioned injury had been discovered in December 2007 and the remainder in January 2008. The injuries to her head had been life-threatening and had led to permanent brain injury. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., directly by, amongst other things, blows and/or pushes against a hard surface and forceful shaking and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.”

They were also indicted (II) under Article 219 (2), cf. (1), of having seriously and repeatedly exerted violence or otherwise infringed or illtreated someone in their household – in an aggravated manner because the abuse had been carried out over a long period, had been committed against a defenseless person and had been unprovoked. During the period from 17 August 2005 until 26 January 2008, their son B had a number of times been exposed to violence resulting, inter alia, in the following injuries:

“- A fracture in the upper arm caused by twisting;

- blue nails on both of his big toes;

- several wounds, scars and miscolouring to the body, including scars after scratching on the throat.

The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., either directly and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.”

On 13 January 2010 the Oslo City Court (tingrett) convicted the applicant and her former husband of the charges and sentenced them to terms of imprisonment of two years and a half and three years and a half, respectively. It was not in doubt that the two children had been subjected to gross ill-treatment by adults but concluded that it was not possible from the evidence taken from the defendants and witnesses in the case to identify one or more perpetrators. The statements given had been contradictory to such a degree that this could not be explained as being due to misunderstandings. Several of the statements ought to be considered as untrue leaving no possibility to distinguish between lies and truth on different points. On the other hand the City Court found it established that the damage to the children had mainly occurred while the children had been in the flat. It was further proven that the accused Mr U.A. had been present in the tiny flat occupied by the family while the ill-treatment occurred, as had also been the case of the applicant. The City Court also found it proven that each of the parents had aided and abetted in the commission of the violence by not having interfered or sought to prevent the acts of violence carried out against the children in regard to whom they had a duty of care. The parents were ordered to pay the children 300,000 and 100,000 Norwegian kroner (NOK) (approximately 36,000 and 12,000 euros (EUR)) in compensation for non-pecuniary damage.

The applicant and her former husband appealed to the Borgarting High Court (lagmannsrett), which, sitting with a jury, held a hearing for twelve days between 17 August and 3 September 2010). It took evidence from the defendants and eighteen witnesses and two court appointed experts. After the jury had answered all the questions put to it in the negative, the professional judges decided to accept the jury’s verdict of acquittal.

In the same judgment of 3 September 2010, the High Court (without the participation of any members of the jury) examined the children’s claims for compensation of non-pecuniary damage under section 3-5 (1) (a) of the Damage Compensation Act 1969. It held:

“According to this provision a person who with intent or gross negligence has caused personal injury may be required to pay compensation to the victim. The High Court observes that such infringements as described in Article 219 of the Penal Code can constitute a ground for awarding compensation for non-pecuniary damage under section 3-5(1)(b), cf. section 3-3, even if no damage has occurred in the sense of the Act. The assistance lawyer representing the children [‘bistandsadvokaten’] has argued on their behalf that Mr [U.A.] and Mrs [N.A.], with intent or gross negligence, have caused or aided and abetted [‘medvirket’] in causing serious injury to [A]’s head, her elbow getting out of joint and in seriously and repeatedly exposing [B] to violence.

The victims’ claims for non-pecuniary damage has its basis in the same acts as those in respect of which Mr [U.A.] and Mrs [N.A.] has been acquitted in the criminal proceedings. The acquittal in the criminal proceedings does not hinder making an award of compensation for nonpecuniary damage to the victims, since less stringent evidentiary requirements applies to the latter than to criminal punishment. When a judgment of acquittal has been given in the criminal case, the presumption of innocence in Article 6 § 2 of the Convention will set limits to what could constitute the basis for a decision on the civil claims. According to the European Court’s case-law, the national courts cannot justify their decision in a manner calling into doubt the acquitted person’s innocence for criminal law purposes (see the Norwegian Supreme Court’s case-law reports Norsk Retstidende – Rt. 2003 p. 1671).

A condition for establishing liability to pay compensation is that it was clearly probable that the damage had been caused by intent or by gross negligence (Rt. 2003 p. 1671).

Considering the evidence in the case as a whole, the High Court finds it clearly probable that Mr [U.A.] and Mrs [N.A.] have ill-treated their children or have aided and abetted in doing so by consent or by incitement to the acts, over a long period until 26 January 2008. The High Court further finds it clearly probable that the parents had inflicted or have aided and abetted in inflicting great injuries to A’s head and have inflicted or aided and abetted in inflicting injuries to B through repeated violence, including a fracture to his arm by twisting it.

In its assessment of the evidence, the High Court emphasises that several of the injuries ascertained are not compatible with accidental occurrences but on the contrary show that they have been inflicted by strong violence. The High Court also points to the children’s later reactions, including that [B] was in 2008 diagnosed as suffering from post-traumatic stress syndrome. It further refers to witness statements from neighbours about noise in the form of screams of anxiety and painful cries from children in the apartment over a longer period.

The High Court is of the view that the physical and psychological injuries sustained by the children are a direct consequence of the illtreatment to which they have been exposed. In the High Court’s view it was further foreseeable for Mr [U.A.] and Mrs [N.A.] that serious injuries, including serious brain damage, could occur in the case of such small children.

Accordingly, the conditions for making an award of non-pecuniary damage have been fulfilled.

The lawyer representing the children had filed a claim for compensation of non-pecuniary damage in an amount of up to NOK 300,000 in respect of [A] and up to NOK 100,000 in respect of [B].

An award of compensation for non-pecuniary damage is to be evaluated on the basis of a wide discretionary assessment of what would constitute a reasonable amount. Factors which are central in the assessment are the objective seriousness of the act, the extent to which the wrongdoer (‘skadevolder’) is to be blamed and the damaging effects.

This case concerns injury on very small children, from they were babies until [A] was fourteen months old and [B] was two years and a half. The ill-treatment has occurred during a considerable part of the children’s lives until it was revealed. At present [B] apparently manage well physically and has no physical ailments. However, in 2008 he was diagnosed as suffering from post-traumatic stress syndrome. [A] was in part paralysed on one side and her development is far behind compared to that of other children of her age. Her injuries can be said to be permanent.

Compensation for non-pecuniary damage in respect of [A] is to be awarded in an amount of NOK 300,000 [approximately 40,000 euros (EUR)] and in respect of [B] in an amount of NOK 100,000 [approximately EUR 13,500].

The decision on the civil claims is based on the less stringent evidentiary requirements than those applicable to criminal punishment. Thus, the decision on the civil claim does not contradict [‘rokke ved’] the correctness of the acquittal.”

The applicant and her former husband appealed to the Supreme Court (Høyesterett), complaining inter alia of the High Court’s assessment of the evidence and that the reasoning for the award on compensation in this regard had failed to satisfy requirements of national law and entailed a violation of Article 6 § 2 of the Convention.

On 4 November 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused them leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations.