Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano

The applicant was born in 1936 and lives in the town of Ananyiv, Ukraine. At the material time, the applicant was the head of a territorial election commission.

At approximately 6.30 a.m. on 31 October 2004 – the day of the first round of the presidential elections – while on his way to the territorial election commission headquarters, the applicant met four police officers walking in the same direction who were unfamiliar to him (later identified as police officers K., L., P. and D.). The applicant struck up a conversation with them, which apparently ended up in a verbal confrontation.

According to the applicant, when they reached Ananiyivskyy District Police Station, the police officers pushed him inside and physically assaulted him.

According to the Government, when the group reached the police station, the applicant suddenly grabbed L.’s uniform and the grille of the security door and started shouting that he was being beaten. After that, the applicant talked to the head of the police station and left.

On the same day, the applicant phoned a prosecutor and complained of the above events. The applicant stated that at 6.30 a.m. police officers he did not recognise had pushed him into the corridor of the police station, knocked him to the ground and started to kick him. A police officer who had been on duty at the time had seen this. The applicant had been kicked in the head, the groin and the spine. As he had also been shouting out during the incident, the head of the police station had come and had ordered the officers to let him go. These events had been witnessed by a certain S.

Later, the applicant also testified that he had seen five unfamiliar police officers while walking to work. He had asked them where they were from, and had said that they would be working together that day. They had answered that they were from the town of Ananyiv. When the group had neared the police station, the applicant had been pushed inside. He had grabbed the door grille and shouted. The police officers had continued to hit him and had dragged him into the police station. There, they had kicked him to the floor and had continued to kick him while he was on the floor.

At around 1 p.m. on 31 October 2004 the applicant was examined by a forensic medical expert, B. The applicant complained of nausea and a headache, in addition to pain below his right shoulder blade, in the lumbar part of his spine, in his legs and in his groin. The applicant had a scratch on his left cheek and an oedema on his right leg. He was advised to consult both a surgeon and a neuropathologist. The applicant was supposed to go and see the expert again the next day, but did not do so.

On the same day, the police officers involved in the incident (K., L., D. and P.) were questioned. Police officer K. reported to the head of the police station that, while walking along the street with his three colleagues, they had been approached by a stranger who had asked them provocative questions such as, “Did you come here to kill and hang people? What are you doing here? What are you eavesdropping on?” The police officers had answered that they had been sightseeing and that the town was very beautiful. In reply, the man had said that they had seen enough and that they, “should go to the town of Reni where police officer P. should sit on the stork’s post”. The group had stopped near the police station, where the man had grabbed L.’s shoulder strap with one hand and the door grille with the other hand, and had started shouting that he had been beaten. After that, the man had entered the police station.

The Government also submitted the testimonies of the above police officers, which were dated 31 October 2004 and drafted in almost identical terms. According to those testimonies, in the morning of 31 October 2004, the police officers who had gone to Ananyiv to assist in maintaining public order on election day had been walking from their accommodation to the police station. An unknown man had approached them and shouted, “The fascists are coming!” and had followed them to the police station while insulting them. When L. had tried to enter the police station, the man had grabbed the door grille and L.’s left shoulder strap, and had started shouting that he was being beaten. The head of the police station had intervened. Nobody had hit the man.

On the same day, the entrance to the police station was inspected and no trace of a struggle was detected. L.’s uniform coat was also inspected, and it was established that one of the bands with which his left shoulder strap had been attached had been torn off.

Police officers K., L., D. and P. were examined by a forensic expert and by a hospital doctor. It was confirmed that they had not sustained any physical injuries and had not been drunk at the relevant time.

On 31 October 2004 testimonies of potential witnesses were collected.

The testimonies of the police officers present at the time of the incident in the police station were as follows:

- police officer Sa. saw the applicant grab the door grille and shout as if somebody had been hitting him;

- police officer Bo. saw the applicant grab the door grille and shout hysterically. Twice, the applicant tried to kick a police officer, but missed;

- police officer N. saw the applicant in the police station. The applicant was shouting at the police officers, threatening them with dismissal and calling them names;

- police officer G. saw four unfamiliar police officers, the applicant, and police officers Bo., Da., and Sa. in the reception area of the police station. The applicant was shouting that he had been beaten;

- the head of the police station, Le., and police officer Kl. saw the applicant talking to L. and asking, “Who allowed you to beat me?”.

Forensic expert B. testified that he had examined the applicant at around 1.00 p.m. on 31 October 2004. The applicant had been complaining of nausea and a headache, in addition to pain in his back, groin and right leg. The applicant had had a scratch on his left cheek, which may have been caused by the skin being rubbed against some flat object with an uneven surface. The applicant had also had an oedema on his right leg. He had been advised to consult both a surgeon and a neuropathologist. The applicant had said that he had to work that day, and so would consult the doctor the next day. According to B., the applicant’s account – that he had been severely beaten by five police officers – was doubtful, as it contradicted the results of the physical examination.

S., a journalist, testified that he had seen a group of police officers walking along the street, flanking the applicant. When the group had reached the police station, the police officers had pushed the applicant inside. The applicant had resisted and the police officers had kicked him on the legs, the stomach and groin and possibly in the back. S. had run towards the police station. He had heard the applicant shout at a police officer, “Why are you beating me?” The head of the police station had been standing nearby.

A number of people were standing across the street from the police station at the relevant time and allegedly saw the incident. They testified as follows:

- Se., the town mayor, said, “The police officers and A.V. Chmil were walking along the street quite normally. I continued my conversation with other people and suddenly heard A.V. Chmil shouting, ‘Leave me alone!’ A.V. Chmil grabbed the police officers’ clothes and tried to tear away their shoulder straps. The police officers did not use any force. Everybody went into the police station. After three to four minutes, A.V. Chmil then left the police station”;

- Ko., a district election commission member, said, “A man was following three or four police officers. As the first police officer was entering the police station, the man squeezed in between them. This was followed by some shouts and a shove in the doorway. The man was pushing the police officers and shouting, ‘Help!’ and ‘Let me go!’”;

- Ku said, “A man was following four unfamiliar police officers. As one police officer was entering the police station, the man started to push the others and to shout that they were not to touch or beat him. I did not see anybody beating him”;

- Tk., a police officer, said, “A man was walking behind the police officers. As one police officer was entering the police station, the man pushed him. The man also shouted that they were not to touch him. After one minute, the man left the police station”;

- Ts., a police officer, said, “A.V. Chmil was following four police officers. As one of the police officers started to go into the police station, A.V. Chmil squeezed in between the other three and started shouting that he was being beaten. He pushed the first police officer inside and then went in himself. A.V. Chmil left the police station after one to two minutes”.

The applicant was in hospital from 2 to 19 November 2004. While there, he complained that he had been physically assaulted on 31 October 2004, and was diagnosed with concussion.

On 10 November 2004 the Ananiyivskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The available evidence was summarised as follows. Five witnesses (including two police officers) testified that in the morning of 31 October 2004 they had seen the applicant walking to the police station, accompanied by four police officers. As one of the police officers had gone into the police station, the applicant had squeezed in between the police officers and had started pushing them – grabbing at their uniforms and shouting that they should stop beating him and leave him alone. The witnesses did not see the applicant being physically assaulted. The police officers involved in the incident testified that they had not hit him. Six more police officers who had been in the police station at that time testified that nobody had hit the applicant. A forensic expert, B., testified that he had examined the applicant at 1 p.m. on 31 October 2004. The applicant had had scratches on his left cheek and on his right leg. Judging by the applicant’s injuries, the expert had doubted that the applicant had been beaten by five police officers in the manner that he had alleged. The Ananiyivskyy District Prosecutor’s Office also noted that, as the applicant was in hospital at that time, it was impossible to establish the seriousness of the injuries he had sustained. In view of the evidence outlined above, the prosecutor concluded that the applicant’s allegations were unsubstantiated and that there was no evidence of a crime having been committed.

On 22 November 2004, following a request from the Ananiyivskyy District Prosecutor’s Office, a forensic medical expert concluded that the applicant had sustained minor physical injuries.

On 30 December 2004 the Odessa Regional Prosecutor’s Office overruled the decision of 10 November 2004 and remitted the case for further investigation. Amongst other things, it was noted that, in view of the applicant’s stay in hospital, a forensic medical examination should have been carried out, and witnesses other than police officers – such as the applicant’s relatives – should have been questioned.

In January 2005 in the course of further investigation, a hospital doctor testified that, following his admission to hospital, the applicant had complained that he had been physically assaulted, and had had bruises on his right leg.

A territorial election commission secretary testified that on 31 October 2004 she had arrived at work at 8 a.m. The applicant had already arrived, and he had told her that he had been beaten. He had had no visible injuries.

On 16 February 2005 the Ananiyivskyy District Prosecutor’s Office instituted criminal proceedings against the police officers for abuse of power.

The case material contains records of testimonies drafted in almost identical terms, which the four police officers involved in the incident gave on 19 March 2005. Those testimonies are nearly identical to those given by the police officers on 31 October 2004, save that in the more recent testimonies all of the police officers added that they had been trained, and that, if they had indeed beaten the applicant, then he would have sustained much more serious injuries.

On 19 March 2005 four formal confrontations between the applicant and the police officers were also held. The parties were asked the following questions:

- Do you know each other and, if so, how did you meet and what is your current relationship?

- Do you have any reason to lie about each other?

- What were you doing when you met each other on the way to the Ananiyivskyy District Police Station?

- In what manner did you enter the Ananiyivskyy District Police Station?

- (Of the police officers) When did you learn that A.V. Chmil was the head of the territorial election commission?

- Was A.V. Chmil subjected to physical or psychological pressure on 31 October 2004?

- Were any procedural documents regarding A.V. Chmil drafted at the police station?

The answers in all four confrontation records are identical and are drafted in nearly identical terms.

In response to the third question, the police officers said that the applicant had asked them who they were and what they were doing in town. Police officer K. had answered the applicant and had said that they were police officers and were walking around the town. The applicant had started to insult them.

The record of the confrontation between the applicant and L. also contains the following verbatim extract:

“Как Вы оказались в здании Ананьевского РО УМВД Украины в Одесской области?

Л.: В райотдел милиции заходили через дверь по одному. Первым в двери зашел Л., за ним начал заходить я, в этот момент гр. Чмиль А.В. встал между мной и П., в дверях в райотдел. При этом одной рукой схватился за решетку двери, другой за мое плече.”

“In what manner did you enter the Ananiyivskyy District Police Station?

L.: We entered the police station one by one through the door. L. went in first, then me, but at that moment A.V. Chmil went to stand between me and P. in the doorway. He grabbed the door grille with one hand and my shoulder with the other hand.”

On 12 April 2005, following a decision of 20 March 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts concluded that the applicant had sustained a concussion, a scratch to his left cheek, and bruising to the left part of his face, his left hip and the lower part of his right leg. These injuries were categorised as minor.

Between April and May 2005 some of the above-mentioned witnesses (see paragraphs 17 - 20 above) were questioned again. They gave testimonies similar to those of October 2004.

On 14 July 2005, following a decision of 10 May 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts, having studied the relevant case file material, concluded that the applicant had sustained a concussion and a scratch to his left cheek. He had also sustained bruising to the left part of his face, his left hip and the lower part of his right leg. The bruises had been noted on the applicant’s medical card on 2 November 2004. The expert had not mentioned them in the initial examination of 31 October 2004, as they had not yet been visible at that time. The forensic medical experts were of the opinion that the concussion, the scratch and the bruises to the left cheek and lower part of the applicant’s right leg had been caused several hours before the initial examination at 1 p.m. on 31 October 2004. It was impossible to establish the exact time that the applicant’s injuries had been caused. They could have been inflicted between 7 and 8 a.m., but also earlier or later. All of the injuries had been caused by blunt trauma. The possibility that the applicant had sustained the injuries when he had fallen could not be excluded.

On 8 September 2005 the Ananiyevskyy District Prosecutor’s Office terminated the proceedings for the absence of any corpus delicti. The prosecutor concluded that the applicant had sustained the injuries in question when he had grabbed L.’s coat inside the police station, lost his footing and fallen down.

On 12 September 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation. It was noted that not all of the witnesses had been questioned.

On 10 October 2005 the proceedings were terminated again. It was noted that the witnesses Kol. and Sam. had not seen the applicant being subjected to ill-treatment. Kol. had testified that the police officers “had accompanied” the applicant to the police station, but that he had not seen the applicant being beaten. Sam. had seen the applicant after the incident.

On 19 December 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation.

On 8 August 2006, following a complaint lodged by police officers K. and P., the decision of 16 February 2005 to institute criminal proceedings against the police officers (see paragraph 27 above) was quashed by the Ananiyivskyy Local Court as unsubstantiated, and the case material was sent to a prosecutor’s office for a decision.

On 13 August 2006 a group of forensic medical experts gave an opinion on the applicant’s case. They were asked to say whether they thought that the applicant’s second-degree disability (друга група інвалідності) was related to the injuries which he had sustained on 31 October 2004. The Government submitted an incomplete copy of the experts’ conclusion (seven pages out of ten).

On 27 November 2006 the Ananiyevskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It found that the applicant had created a conflict situation and had sustained injuries as a result of a fall.

On 7 March 2008 the Odessa Regional Court of Appeal quashed the decision of 8 August 2006. The police officers tried again to challenge the decision of 16 February 2005 in court, but to no avail.

On 5 May 2008 the Ananiyevskyy District Prosecutor’s Office overruled the decision of 27 November 2006 and remitted the case for further investigation.

In the course of that further investigation, the witnesses (the police officers who were present at the time of the incident in the police station and the people who saw the incident from across the road), the applicant and police officers K., L., P. and D. were questioned again. They all confirmed their previous testimonies. A formal confrontation between the applicant and K., L., P. and D. was undertaken, as well as a reconstruction of events.

On 27 February 2009, following a decision of the Ananiyivskyy District Prosecutor’s Office, another forensic medical examination was completed. It concluded that the applicant had sustained a concussion and a scratch to his left cheek, bruises to the left part of his face, his left hip and the lower part of his right leg. Those injuries could have occurred on 31 October 2004 between 7 and 8 a.m., or later. All injuries had been caused by blunt trauma – impact from blunt objects or from falling down onto a hard surface, such as the floor.

On 2 April 2009 the criminal proceedings were terminated for the absence of any corpus delicti. The conclusion was that at around 6.30 a.m. on 31 October 2004 the applicant had approached four police officers – D., K., P. and L. – who had been in charge of maintaining public order on the day of the elections. The applicant had started to call them names. When the police officers had tried to go into the police station, the applicant had squeezed in between them, grasped the iron grille of the door with one hand and L.’s coat by the other, and had started shouting that he was being beaten in an effort to attract attention. The police officers and the applicant had finally entered the police station, and police officer L. had had his left shoulder-strap torn off. Seven police officers had testified that nobody had beaten the applicant in the police station. Other witnesses had testified that they had not seen the applicant being physically assaulted. According to the forensic medical examination, the applicant’s injuries could have been inflicted between 7 and 8 a.m. or later on 31 October 2004. On 17 February 2009 a forensic medical expert, B., had testified during the reconstruction of events that if the applicant’s version of events had been true, then he would have sustained more serious physical injuries. It was therefore concluded that the police officers had committed no crime.

The applicant challenged that decision before more senior prosecutors, but to no avail. By letter of 11 December 2009, the General Prosecutor’s Office informed the applicant that, following the investigation, it had been established that on 31 October 2004 he had approached four police officers and started to insult them and call them “black-shoulder-strappers”. He had also torn off the left shoulder strap of police officer L. Moreover, it had been established that the police officers had not used force against the applicant and that, on the contrary, the applicant had tried to kick one of the police officers in the groin while in the police station. Consequently, there were no grounds for overruling the decision of 2 April 2009.

The applicant also instituted proceedings for damages against the Ananiyivskyy District Prosecutor’s Office, but to no avail, as his claims were rejected for failure to comply with procedural requirements.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms Justyna Cichoń, is a Polish national, who was born in 1972 and lives in Plewiska. She was represented before the Court by Mr A. Zielonacki, a lawyer practising in Poznań.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

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

In 2007 the applicant’s mother, who was born in 1943, bought an apartment from I.K. Shortly afterwards serious technical flaws in the apartment came to light. The applicant’s mother intended to institute civil proceedings against the seller for compensation.

She became depressed as a result of the substantial pecuniary loss she had suffered because of the transaction, which she considered fraudulent. In June 2007 she attempted to commit suicide. She was admitted to hospital on 28 June and discharged on 3 July 2007. The hospital records indicate that she was diagnosed with “a depressive reaction”.

On 9 August 2007 I.K. informed the prosecuting authorities that the applicant’s mother had phoned her and uttered threats against her. She had allegedly told I.K. that she would kill her as she had ruined her life by selling her a worthless apartment which she had paid for with her life savings. On the same day I.K.’s father was questioned. He confirmed that the applicant’s mother had uttered threats against I.K.

The case file contains a note drawn up by the police and dated 9 September 2007 to the effect that a police officer tried to serve a summons for questioning on the applicant’s mother at G. Street, but to no avail. He was informed by persons living at that address that she had sold that apartment.

By a bill of indictment dated 25 September 2007 the Gostyń District Prosecutor charged the applicant’s mother with the offence of uttering threats. The bill was subsequently lodged with the Gostyń District Court.

On 1 October 2007 the Gostyń District Court ordered, having regard to the applicant’s mother’s attempt to commit suicide, that a psychiatric expert opinion be prepared on the question of whether she could be held criminally responsible.

On 11 October 2007 the Gostyń District Court appointed a legal-aid lawyer to represent the applicant’s mother in the proceedings. On the same day the entire criminal case file was forwarded to the psychiatric clinic that was to carry out the psychiatric examination of the defendant.

Subsequently, by letters dated 15 and 20 October one of the experts at the clinic sent summonses to the applicant’s mother at the address at G.

Street where she no longer lived (see paragraph 9 above) for examinations to be carried out at the clinic on 24 October and 7 November 2007. The summonses were not served either on her or on any member of her family. The service confirmation slips (potwierdzenie odbioru) were not returned either to the court or to the experts.

On 19 November 2007 one of the experts informed the Gostyń District Court by phone that the applicant’s mother had twice failed to attend the psychiatric examination on the dates fixed. On 22 November 2007 the experts informed the court in writing of the applicant’s mother’s failure to attend the examination. They requested the court to arrange for her to be taken to the clinic under police escort for the examination on 30 November 2007.

On 22 November 2007 the court, having regard to the applicant’s mother’s failure to comply with the summonses and being unaware of the fact that they had not been served on her, ordered the police to arrest her and escort her to the clinic for the purposes of the examination.

At 6.30 a.m. on 30 November 2007 the applicant’s mother was arrested by two police officers at her correct address at O. Street. She was subsequently escorted to the clinic. She was examined by two psychiatrists several hours later and discharged on the same day.

On 2 December 2007 the applicant’s mother was found dead in a basement of her house. She had committed suicide by hanging herself.

In a psychiatric opinion dated 3 December and served on the court on 6 December 2007, psychologist M.K.S. and psychiatrist T.J. summarised the interview held with the applicant’s mother on 30 November 2007. They noted that she had not had psychotic symptoms and had not reported suicidal thoughts or tendencies. They diagnosed her as suffering from an adjustment disorder (zaburzenia adaptacyjne). The experts further declared that at the material time she had been able to understand the significance of her actions and that, regard being had to her general mental health, she was fit to stand trial.

On 6 December 2007 the Gostyń police discontinued an investigation concerning a suspicion that third parties might have assisted the applicant’s mother in committing suicide, having regard to the opinion of the doctor who had declared her dead that there was no indication that any third parties had been involved. The decision concluded that the most likely cause of the suicide was nervous breakdown (załamanie nerwowe).

On 18 March 2008 the applicant requested the Poznań Appellate Prosecutor to verify whether the investigation and proceedings in respect of her mother had been conducted properly. She submitted that the attempted suicide in June 2007 and her fragile mental state should have prompted the authorities to conduct the proceedings with particular diligence. Instead, summonses had twice been sent by psychiatrists to the wrong address and they had never been served on her. The court had ordered that she be arrested and taken to the psychiatric clinic. She had been seriously traumatised by the arrest, as indicated by the fact that she had committed suicide on the day after the examination.

That complaint was forwarded to the President of the Poznań Regional Court, who replied on 21 April 2008. The relevant part of his letter reads:

“It is true that the experts, apparently by mistake, sent the summonses to the wrong address, but the court was not aware of this and that is why it ordered that she should be escorted to the examination [by the police]. There are no grounds on which to conclude that the court’s decision was wrong, but there can be no doubt that it was based on a wrong premise [nie ma zatem podstaw do przyjęcia, że postępowanie sądu było błędne, natomiast niewątpliwie opierało się na błędnych przesłankach].”

On 22 September 2008 the applicant requested the Poznań Regional Prosecutor to institute a criminal investigation in order to identify the persons responsible for her mother’s arrest which, in her opinion, had led to her suicide. She submitted that her mother had already tried to commit suicide in June 2007; that at the material time her mental condition had been precarious; and that the psychiatrists had sent the summonses to the wrong address despite the fact that the correct address had been available in the file. The judge had also failed to check whether the summonses had been sent to the correct address and whether they had been duly served on her. As a result, she had been arrested by the police in the early hours of 30 November. Her neighbours had told the applicant that during the arrest her mother had been crying. The applicant submitted that her mother had been an elderly, fragile person on the brink of a nervous breakdown and that the manner in which the case had been handled had driven her to commit suicide.

On 13 October 2008 the request was forwarded to the Gostyń District Prosecutor.

On 18 November 2008 the Gostyń District Prosecutor refused to institute an investigation, having examined the case under Articles 231 and 151 of the Criminal Code (see paragraphs 31-33 below). It was confirmed that the summonses to attend the psychiatric examination had twice been sent to the wrong address and had never been served on the applicant’s mother. The prosecutor was of the view that the court could not be held responsible for that error. It had not known the defendant’s correct address as the entire case file had already been forwarded to the experts at that time. The applicant’s submission that there was a causal link between the defendant’s arrest on 30 November 2007 and her suicide two days later was too categorical. There were no grounds on which to accept that the prosecuting authorities, the police or the court had failed to perform their duties properly or that the applicant’s mother had been driven to suicide as a result of such failure.

The written grounds of that decision did not refer to any evidence other than the file of the criminal case against the applicant’s mother.

The applicant appealed. She argued that her mother had suffered from depression caused by the transaction she considered fraudulent and that the authorities had been well aware of this. The court had relied on her earlier attempt to commit suicide when ordering the psychiatric examination. Appropriate regard had not been had to the fact that she was psychologically fragile. The authorities had failed to conduct the criminal case against her properly. No steps had been taken by the court to establish her correct address, although it had been available in the case file, in order to serve the summonses correctly. As a result of that failure, her mother had been arrested on 30 November 2007. The arrest had been tremendously traumatic for her. In the applicant’s opinion, the fact that her mother had committed suicide just after the examination was proof that the opinion prepared by the experts after her death to the effect that she was fit to stand trial was worthless.

On 13 March 2009 the Leszno District Court examined the appeal. The applicant did not attend the hearing. In a decision rendered on the same day the District Court dismissed the appeal. The relevant parts of the written grounds of this decision, numbering one-and a half page read as follows:

“The appellant’s submission that there was a well-founded suspicion that a criminal offence had been committed could not be shared [by the court] in respect of:

- the prosecutor, because ... he had a right to draw up a bill of indictment within fourteen days of the investigation being closed and he did so in the present case;

- the judge conducting the proceedings, as he was entitled to appoint psychiatrists to the case with a view to checking whether the defendant could stand trial and to order that the defendant be taken to the psychiatric examination under police escort; he did so as he had been informed in writing that the defendant had twice failed to comply with summonses;

- the experts in so far as they failed to foresee that [the applicant’s mother] would make another suicide attempt, this time a successful one, as they gave their opinion in accordance with their best knowledge and conscience; ...

It is true that the police escort order given by the court failed to take into consideration that the experts had sent the summonses to the wrong address, but the court could not know that, given that at the time the case file had already been forwarded to the experts. This, however, cannot change the assessment of the events from the point of view of criminal responsibility, in particular as to the presence of a causal link between the [applicant’s mother] being taken to the examination by police escort and her subsequent attempt to commit suicide.”

Subsequently the applicant requested the Regional Agent for Disciplinary Matters (Okręgowy Rzecznik Odpowiedzialności Zawodowej) of the Wielkopolska Chamber of Physicians (Izba Lekarska) to institute disciplinary proceedings against the psychiatrists.

By a decision of 18 December 2009 the Agent discontinued the investigation, having questioned the psychiatrists. He referred to the fact that the service confirmation slips sent to the applicant’s mother had not been served on the psychiatrists. This suggested that the summonses had been properly served on her. As she had failed to comply with the summonses, they had no choice but to inform the court accordingly. The defendant had subsequently been arrested by the police for the purposes of the examination. The psychiatrists had explained that the defendant’s conduct during the examination was not such as to justify her immediate psychiatric internment. Their opinion had therefore been well-founded and they had no case to answer.

The applicant appealed. She reiterated that information about her mother’s accurate address had been in the case-file which the psychiatrists had had at their disposal. They had failed to act diligently by establishing her address correctly. They were aware of her earlier attempt to commit suicide but still they had found her able to stand trial. She reiterated that the arrest and taking her to the clinic under the police escort were traumatising and dishonourable for her mother who felt belittled thereby in the eyes of her friends and neighbours.

By a decision of 6 February 2010 the Regional Court for Disciplinary Matters of the Wielkopolska Region (Okręgowy Sąd Lekarski), sitting in camera, upheld the contested decision. It was of the view that the fact that the psychiatrists had sent the summonses to the wrong address amounted to a formal shortcoming, but it did not have an impact on or had not caused the later tragic events. Similarly, in so far as the applicant had complained about her mother’s arrest by the police, this could not be held against the doctors. The arrest had been ordered by the court in the context of the criminal proceedings, not by the doctors. It was further stated that the psychiatric opinion drawn up by the two psychiatrists was correct, and the diagnosis they had made not open to criticism.

Article 151 of the Criminal Code reads:

“Whoever by persuasion or by rendering assistance induces a human being to take his or her life shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.”

Article 231 of that Code provides:

“§ 1. A public official who, exceeding his authority or failing to perform his or her duty, acts to the detriment of a public or individual interest, shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 2. If the perpetrator commits the act specified in § 1 with the purpose of obtaining financial or personal gain, he or she shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years.

§ 3. If the perpetrator of the act specified in § 1 above acts unintentionally and causes substantial damage, he or she shall be subject to a fine or restriction of personal liberty or deprivation of liberty for a period not exceeding 2 years.“

The Supreme Court, in a decision of 25 February 2003 (WK 3003), held that only a public official acting intentionally and with intent to act to the detriment of the victim could be charged with the offence stipulated in Article 231 § 1 of the Criminal Code.


CASE OF VIEIRA GOMES BEZERRA v. PORTUGAL

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

The applicant was born in Silves (Portugal) and lives in Bonn (Germany).

On 28 February 2007 the applicant started civil proceedings against two companies before the Court of Vila Nova de Gaia (Portugal). The proceedings concerned the occupation of a land which the applicant claimed to be her own (domestic proceedings no. 1908/07.8TBVNG).

The defendants contested the proceedings and the court ordered that the size of the land be analysed by an expertise. These procedural steps ended on 18 December 2007.

In the first trimester of 2008 an attempt of conciliation of the parties took place.

On 18 July 2008 the court ordered the suspension of the proceedings as the property was not registered in the name of the applicant, before the Land Registry Office (Conservatória do Registo Predial).

On 20 January 2010 the court ordered the interruption of the proceedings.

On 18 July 2010 the applicant joined an additional supporting document to the proceedings, informing the court of the registration of the land. The judge ordered the proceedings to be resumed.

According to the last information received by the Court on 3 May 2013, the proceedings are still pending.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

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

The applicants complained of the excessive length of their pre-trial detention. In application no. 30532/07 the applicant also raised a complaint under Article 6 § 1 of the Convention.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicants were born in 1932, 1929, 1965 and 1956 respectively and live in Sofia.

On 15 January 1968 the second applicant, together with the antecedents of the other applicants, bought from the then existing local agricultural co-operative a plot of land situated on the outskirts of Sofia measuring 953 square metres. Until 2002 the applicants or their antecedents enjoyed undisturbed possession of that land.

On 10 May 2002 a group of persons, the heirs of Mr T.S., Mr G.S. and Ms K.S., brought against the applicants a rei vindicatio action, stating that the plot of land was theirs. They stated that the plot, once the property of their antecedents, had been collectivised in the years after 1945, but had been returned to them within the context of the process of the restitution of agricultural land by a decision of the relevant body, the local land commission, dated 27 December 1999. They claimed that under section 10(13) of the Agricultural Land Act (see paragraph 13 below), the fact that the second applicant and the remaining applicants’ antecedents had purchased the land in 1968 could not be held against them.

Initially, the Sofia District Court (its judgement is undated) dismissed the action against the applicants. After an appeal by the heirs of Mr T.S., Mr G.S. and Ms K.S., on 5 November 2009 the Sofia City Court overturned that ruling, allowed the rei vindicatio claim and ordered the applicants to surrender possession of the plot. It found in particular that the land commission’s decision of 27 December 1999 was sufficient to render the claimants the owners of the disputed land. It pointed out that of the two rival claims to the same plot the law – namely section 10(13) of the Agricultural Land Act – gave priority to the one based on restitution, and thus had the effect of rendering devoid of any legal force the contract under which the second applicant and the remaining applicants’ predecessors had bought the plot.

In a final decision of 18 June 2010 the Supreme Court of Cassation declined to entertain a cassation appeal by the applicants.

On an unspecified date soon after that the applicants surrendered possession of the plot.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The first and second applicants were born in 1981 and 2002 respectively, and live in Sofia.

The first applicant married A.I. in 2001 and their son, the second applicant, was born in 2002. According to the first applicant, her husband started abusing her psychologically after the marriage, which grew worse after the child was born.

The first applicant filed for divorce in 2004. She applied for interim measures in the same proceedings, seeking custody of the child while the proceedings were ongoing. The Sofia District Court granted her application for interim measures on 11 May 2005, giving her custody of the child.

In the meantime, in January 2005, the second applicant visited his father for two days. A.I. then took the child back to the first applicant and insisted that they both return to live with him. When the first applicant refused, he put the child back in the car and drove away, saying that she could only see her son at his apartment.

A.I. has kept the second applicant with him ever since.

On 23 June 2006 the first-instance court granted the couple a divorce, finding that the husband was responsible for the marriage’s failure. It granted custody of the child to the first applicant and limited A.I.’s contact rights to two hours twice a month in the presence of the first applicant and another adult designated by her. The decision was upheld in ordinary appeal on 14 June 2007 and in cassation appeal on 1 October 2008.

On 13 May 2005 the first applicant obtained a writ of enforcement on the basis of the decision on interim measures. She brought enforcement proceedings later the same month.

The bailiff scheduled handovers of the child to the first applicant on the following dates: 14 June 2005, 15 July 2005, 25 August 2005, 30 September 2005, 21 October 2005, 18 November 2005, 22 November 2005, 26 January 2006, 5 March 2008, 14 July 2008, 5 August 2008 and 20 August 2008. A.I. did not come to any of those appointments or cooperate with the bailiff.

On 19 September 2005 the bailiff fined A.I. about 25 euros (EUR) for failing to comply with a judicial decision.

Subsequently, A.I. went to the bailiff’s office and challenged her for having fined him. As a police officer, he threatened to fine her for wrongfully crossing the street as soon as she left her office. A.I. was dismissed from the police on 17 January 2007 as a result of that conduct. The order for his dismissal referred to his systematic obstruction of the enforcement of a final judicial decision and to conduct damaging to the image of the police.

On 22 November 2006 the Sofia District Court ordered that the child be removed from A.I.’s home and handed over to the first applicant on the basis of Article 71 § 1 of the Family Code of 1985. On 4 January 2007 the first applicant, accompanied by a lawyer and several police officers, went to the village where A.I. was living with the child and spoke to both A.I. and A.I.’s father. A.I. categorically refused to hand the child over, thus failing to comply either with the court order of 22 November 2006 or the decision on interim measures of May 2005.

The first applicant obtained a writ of enforcement in October 2008 in respect of the final judgment on the divorce and on granting custody to her.

On 11 December 2008, 5 March 2009, 2 September 2009 and 22 December 2009 the bailiff unsuccessfully attempted to hand the child over to the first applicant. On those occasions A.I. either failed to arrive for the appointments or did not take the child to them. When the bailiff and the first applicant visited his house on 11 December 2008, A.I. had left a note on his front door addressed to the first applicant and all accompanying individuals. The note stated that he was firmly opposed to handing the child over to her.

The bailiff fined A.I. in July 2008 and in September 2009 for failure to cooperate in the enforcement proceedings. In 2009 the first applicant did not attend two of the scheduled meetings for handing over of the child, indicating in a letter to the bailiff that prior work commitments prevented her from attending one of those meetings. It would appear that those meetings had been scheduled by the bailiff without prior consultation with the applicant as to her availability.

On 30 December 2009 the Pazardzhik District Court suspended the enforcement proceedings brought by the first applicant in relation to the final judgment of 1 October 2008. It acted in response to an application from A.I. for interim measures (обезпечителни мерки) in the context of proceedings which he had brought to seek the limitation of the first applicant’s parental rights and the granting of custody to him.

The first applicant asked the Pazardzhik Regional Court to quash the suspension order. The court rejected her application in a final decision of 15 June 2010.

Following a change of jurisdiction, the case was sent to the Sofia District Court. The proceedings for a change of custody were terminated by the Sofia City Court in a final decision of 19 June 2013 after A.I. withdrew his application.

In the meantime, between April 2008 and July 2010, representatives of the social services, accompanied by the police, the mayor and the first applicant, repeatedly visited the house where A.I. lived with the second applicant. They met the child’s teachers and his paternal grandparents. On 20 April 2010 the social services sent a report to the police in which they concluded that while A.I. was caring for the second applicant appropriately, the child needed to have contact with his mother to ensure his healthy development.

The social services renewed their involvement in the case in 2012. After A.I. had expressed an intention to cooperate, the social services met him and the second applicant a number of times between September 2012 and April 2014. During the meetings the second applicant consistently expressed the wish to continue to live with his father.

The first applicant brought criminal proceedings against A.I. for obstructing the enforcement of the 2005 and 2008 decisions on the exercise of parental rights.

On 13 July 2009 the first-instance court found A.I. guilty of obstructing the implementation of final judicial decisions. The court observed that A.I. had demonstrated a belief that he was beyond the reach of the justice system and could act with impunity. The court also held that the particularly long period in which A.I. had kept the child, namely between his third and seventh birthday, was an aggravating circumstance. The court nevertheless absolved A.I. of criminal responsibility and, instead, imposed on him a fine of EUR 2,400 as an administrative punishment under Article 78a § 1 of the Criminal Code. The decision was upheld on appeal by the Pazardzhik Regional Court on 8 October 2009 in a final judgment.

On 17 December 2009 the Supreme Administrative Court quashed an earlier decision by the police to refuse to provide assistance for the transfer of the second applicant and ordered it to determine the best way to arrange it. The social services cooperated with the police towards organising such a transfer, which was due to take place on 14 January 2010. That procedure was not carried out because the child refused to go with the first applicant.

The third applicant was born on 29 August 1972 and lives in Sofia.

The third applicant gave birth to a child, P.P., in July 2005 while she was living with the child’s father, Kh.P. The parents split up in March 2009 and the third applicant moved out with the child and his two elder siblings, who were not Kh.P.’s children.

On 1 July 2010, during judicial proceedings on custody, the Sofia District Court determined interim measures, giving custody to the third applicant. She started living with her child alone thereafter.

An expert report of 19 December 2010 drawn up in the context of the proceedings concluded that the child was strongly attached to both parents and had expressed a wish to live with his mother while continuing to see his father.

In a final decision of 29 October 2013 the Supreme Court of Cassation gave custody of the child to the third applicant.

On 5 September 2011, after one of his scheduled meetings with the child, Kh.P. did not return the latter to the third applicant’s home. Since that day the third applicant has only seen the child a few times and the meetings have always been in an institutional setting.

On 13 September 2011 the third applicant visited Kh.P.’s home in order to agree on the child’s return, but Kh.P. prevented the child from leaving with her. Instead, according to the third applicant, he assaulted her in the presence of the child by hitting her on the head, pushing her against the lift, and knocking her to the ground. The third applicant submitted that thereafter she had repeatedly attempted to reach an agreement with the child’s father on the child’s return to live with her, as well as that she had contacted two private bailiffs over the following months but neither of them had taken any action because they considered that the case was too difficult.

On 17 October 2012 the Sofia District Court issued a writ of enforcement to the third applicant on the basis of the court’s decision on interim measures of July 2010.

A first attempt by the bailiff to get the child handed over to the third applicant took place on 11 December 2012 but it failed as Kh.P. did not take the child to the meeting. The bailiff voiced his intention to seek police assistance to summon Kh.P. to the following meeting.

The third applicant met the child on 11 January 2013 for the first time since he had been taken away by his other parent on 5 September 2011. The meeting took place in the presence of Kh.P. and a social worker. The child was reserved at the beginning but gradually warmed up to his mother, told her about his school and other activities, and allowed her to hug and kiss him.

A second meeting between the third applicant and her child took place on 18 January 2013. The child arrived in a negative frame of mind and acted coldly towards the third applicant, refused to take the presents she had brought for him and asked to leave with his father.

In two reports issued on 25 January 2013 and 1 February 2013 the social services found that, while the child had developed a solid emotional connection with the father, he had not lost his bond to his mother. The father had to show approval and encouragement for the relationship between the child and the mother for it to develop healthily.

The bailiff attempted to have the third applicant meet with the child on five more occasions – 28 January 2013, 19 April 2013, 26 April 2013, 31 May 2013 and 28 June 2013. Kh.P. did not attend the first four meetings nor send the child, despite having been summoned to some of them by the police. On 26 April and 31 May 2013 the bailiff fined him for his failure to take the child to the appointments scheduled on those two days. One of those fines was subsequently quashed in court.

When Kh.P. took the child to meet with the third applicant on 28 June 2013, the child became visibly upset and tearful at the sight of her. He refused to hug her or otherwise engage with her. A psychologist present at the meeting concluded that it was impossible to hand the child over at that point in time as he was in a state of psychological stress and had a clearly negative attitude to his mother. As a result the bailiff postponed the handover of the child and urged both parents to actively cooperate so that the child could gradually accept his mother. The bailiff noted that the other parent played a key role in that process and that his constructive attitude was crucial for restoring the mother-child relationship.

In June 2013 the social services recommended that the third applicant, Kh.P. and the child have six months of counselling. Kh.P. disapproved of psychologists working with his son, insisted that such sessions were a form of child exploitation and said that the mere mention of the child’s mother gave his son headaches, which in turn impeded his ability to play football. Kh.P. did not allow the child to see his mother. He informed the psychologists that he and the child slept in the same bed at night and avoided their attempts to discuss the child’s psychological development. Kh.P. instead emphasised his own financial resources and stability.

A psychologist met the child once during the six-month counselling period. The child refused to speak about the third applicant and only referred to her as “M”. The psychologist concluded that the child’s speech was full of inconsistent statements which showed that his attitude to her was being manipulated. The father was categorically opposed to contact between the child and the mother, which meant the child was afraid to express his need and wish to maintain a relationship with her. The child missed having contact with his mother, but could not express that openly for fear of his father’s disapproval. The child suffered from parental alienation syndrome and there was a risk to his emotional and psychological development. On 28 August 2013 the social centre put an end to the counselling because of Kh.P.’s lack of cooperation, in not taking the child to the appointments.

A psychological assessment of the child and the situation with his parents was drawn up in September 2013. It concluded that the child was experiencing a chronic emotional crisis. His categorical rejection of the third applicant was at the origin of parental alienation syndrome.

A new attempt to voluntarily hand the child over to the third applicant took place on 10 June 2014 but failed because the other parent did not take the child to the meeting. The bailiff postponed any further enforcement measures. The following day, 11 June 2014, the child, Kh.P. and the third applicant met at the social centre. Kh.P. stated that he would not allow any meetings in the future and the third applicant has not met her child since.

An expert report drawn up on 17 June 2014 found that Kh.P. exhibited a tendency to verbal aggression, that he continuously demeaned the mother and criticised her personality and that this had turned the child into “a child at risk”. The obsessive and controlling love demonstrated by him towards the child risked making him rebel in the future; the permanent pitching of the child against the third applicant had led to psychosomatic disorders, as evidenced by the child’s frequent headaches.

On 11 July 2014 the third applicant asked the bailiff to schedule a new date for implementing the court’s decision and to not suspend enforcement. She also asked the bailiff to direct the child to attend mandatory sessions with a psychologist and psychiatrist before his actual handing over to her, given that he needed specialist assistance to overcome his feelings of alienation towards her.

On 22 July 2014 the third applicant asked the social services to provide her child with psychological counselling and support. On 8 August 2014 she complained to the Minister of Justice about the bailiff’s inability to enforce the court decision granting custody to her. The Ministry replied on 21 April 2015 that the bailiff had done nothing wrong in the exercise of her functions.

On 3 September 2014 she asked the bailiff to order weekly meetings between her and the child on the premises of the social services, emphasising that that was something to which Kh.P. had agreed but with which he had not complied. The third applicant also stressed that the child’s health and well-being were the most important aspects of the process and asked the bailiff to coordinate all the actions related to the child’s attendance at counselling sessions. On 5 September 2014 the third applicant sent documents to the bailiff issued by the social services directing the child to attend psychological counselling and support with a view to reestablishing contact with his mother. On 7 November 2014 the social services reported to the bailiff that the support work which was to be carried out with the child had not started as the father had repeatedly failed to take the child to the social centre.

On 22 October 2014 the third applicant again asked the social services to provide counselling for her child. The social services replied on 29 October 2014 that they had organised new sessions for the child and had apprised the other parent accordingly. They also informed the third applicant that the bailiff had ordered the child to report to the social centre every Thursday at 4 p.m. in order to meet with the third applicant. The first meeting was set for 30 October 2014 but did not take place as Kh.P. did not take the child to it.

The third applicant subsequently received a letter from the State Agency for Child Protection, which directed her to seek counselling from the social services. The report drawn up in that connection indicated that the negative attitude displayed by the father towards the mother had been adopted by the child, who refused to meet his mother. It was necessary to work with the child for him to overcome his negative attitude to his mother.

On 28 November 2014 the third applicant wrote to the bailiff, copying in the social services, and expressed her concern about the child’s well-being. She asked for the judicial decision granting custody to her to be enforced, pointing out that the child’s well-being was of paramount importance and had to be considered in any related actions.

A report, dated 25 March 2015 and drawn up by the municipal social services, stated that specialists had met with the third applicant on ten occasions. She was found to be cooperative and willing to do whatever was necessary in order to facilitate contact with her child. The report concluded that it was not in the child’s interests to continue to live with his father given that he manipulated him emotionally. The child did not dare to oppose the father as he was entirely dependent on him. The child’s alienation from the mother was damaging for him as he needed her close involvement in his life. It was necessary to impose mandatory psychological counselling on the father in order for him to cooperate, otherwise the child had to be taken out of his home and either entrusted to the third applicant or placed in a “neutral environment”. The placing of the child into a foster home had to be only considered as a last resort, if the father continued to obstruct contact with the mother.

The bailiff scheduled another meeting, for 23 April 2015, to hand the child over to the third applicant but Kh.P. again failed to appear. The bailiff postponed further enforcement to an unspecified date. The third applicant signed the report drawn up by the bailiff, expressing her discontent at the bailiff’s inability to enforce the judicial decision.

On 8 October 2012 the third applicant complained to the prosecutor under Article 182 § 2 of the Criminal Code about Kh.P.’s active obstruction of the enforcement of the judicial decision granting custody to her. The prosecutor opened criminal proceedings and informed the third applicant of his decision on 19 April 2013.

A full psychological expert report on the child was drawn up on 2 February 2014 in the context of those proceedings. The report’s conclusion was that the child should not be forced to see his mother at that point in time. What was needed was systematic good-faith efforts by the father aimed at improving the child’s attitude to his mother. Pressure from public institutions for the child to see his mother was likely to have a negative impact on him and so developing a relationship with his mother had to happen gradually. The report emphasised that if the child were to receive his father’s support he would in all likelihood open up to his mother and develop a close relationship with her.

Kh.P. was acquitted at the end of the proceedings in a final judgment of 7 July 2015 by the Sofia City Court.

On 26 July 2013, the child, represented by Kh.P., brought court proceedings against the third applicant, alleging acts of domestic violence by her. The child alleged, through his father, that he had been put under constant psychological pressure by his mother, which had led to sleep disturbances and restlessness and a fear that she could appear at any time in the street and kidnap him. He claimed that he had developed a headache, felt sick and had even vomited during the latest attempt to reunite him with his mother on 28 June 2013. Experts questioned in the proceedings found that the child tended to identify himself with the father and his active denial of his mother was damaging for him. The experts concluded that it was imperative for the child’s well-being to provide him with urgent psychological therapy.

On 20 December 2013 the first-instance court rejected an application for a restraining order on the third applicant. In particular, the court found the complaint about psychological violence ill-founded as it had been based on the mother’s repeated attempts to have the bailiff hand the child over to her in accordance with the court’s decision. The court held that the third applicant had been right to seek effective enforcement of the decision granting custody to her, just as Kh.P. had been obliged to comply with that decision. The court concluded that the child’s well-being was at risk as a result of the ongoing, open animosity between the parents and ruled that a copy of the judgment should be sent to the social services with a view to them taking appropriate measures. There is no information on file about whether that court’s decision was appealed against.

Kh.P. brought proceedings in 2014 to be given custody of the child. The Sofia District Court rejected his application on 29 July 2015.

The fourth applicant was born on 14 March 1973 and lives in Stara Zagora region.

On 13 February 2012 the fourth applicant’s marriage to R.D. was dissolved by a court decision which also determined his contact rights with his child, who had been born in 2009. According to the decision, the fourth applicant was to see the child every first and third weekend of the month between 9 a.m. on Saturday and 6 p.m. on Sunday, and for one month during the summer holidays. Immediately after an argument between him and the child’s mother on 15 June 2012, the mother started preventing him from having contact with his child.

The fourth applicant brought forced enforcement proceedings in February 2013, seeking the effective implementation of his contact rights. According to him, the bailiff informed him that as the meetings with the child were scheduled to take place at the weekend, when the bailiff was off work, the fourth applicant would be better being accompanied to the meetings by witnesses. Those individuals were to testify about what they saw by signing a declaration every time he encountered difficulties in seeing the child. The fourth applicant attempted to see the child on numerous occasions but his former wife continued to place obstacles in his way. He submitted seven declarations about such incidents, all drawn up in the course of 2013. The bailiff fined the mother once, setting the sum at about EUR 50.

The fourth applicant turned to the Child Protection Agency a number of times and the agency urged the mother to allow contact between the child and the fourth applicant, as set out in the court decision of 13 February 2012.

Notwithstanding those efforts, the fourth applicant submitted that he was still unable to see the child owing to the obstacles created by the mother.

In July 2013 the fourth applicant complained to the prosecutor. In August 2013 the prosecutor refused to open criminal proceedings, finding in particular that the child’s mother had earlier been fined for impeding contact between the child and the fourth applicant, and that it would be unlawful to sanction her twice for the same offence. On appeal, the higher prosecutor returned the case for further examination. In September 2013 the district prosecutor opened criminal proceedings against the child’s mother for obstructing the implementation of a judicial decision. The prosecutor terminated those proceedings on the basis of the fact that the child systematically refused to spend time alone with her father, but the firstinstance court later quashed that decision and returned the case for further consideration.

On 21 November 2014 a different district prosecutor again terminated the proceedings, a decision that was upheld by courts at two levels of jurisdiction, on 17 December 2014 and 4 May 2015 respectively. The highest court involved, the Stara Zagora Regional Court, found more specifically that instead of pursuing a constructive dialogue with the child’s mother with a view to seeing the child, the fourth applicant had resorted to forced enforcement proceedings, which had been unsuitable in the circumstances and had meant the child had been scared to go with him as he had always been accompanied by strangers.

The fourth applicant applied for a divorce on 15 June 2011. The court granted it on 13 February 2012, granting custody to the mother, R.D., and giving contact rights to the applicant. R.D. did not participate in those proceedings; she was represented by a court-appointed lawyer as the fourth applicant had stated that he did not know where his wife could be contacted to be summoned. The fourth applicant continued to live with R.D. and the child at their family home until 15 June 2012.

On the latter date an argument erupted between the fourth applicant and R.D., following which he left the family home. On 21 June 2012 R.D. instructed a lawyer to file for divorce on her behalf. The lawyer informed her that she was already divorced and had been so since 13 February 2012. Her former husband had also married another woman two weeks after that judgment had become final, in March 2012.

On 15 July 2013 R.D. sought a change in the arrangements for contact between the fourth applicant and the child. She expressed serious concerns about the child’s well-being and, in particular, voiced a fear that the father, having acted deceitfully in the past, might emigrate to Canada with his new wife, taking the child without R.D.’s agreement or knowledge. She specified that the fourth applicant had proposed that she give up the child so that his new wife could adopt her. She also stated that he had not sought to have contact with the child since 15 June 2012 and had arrived at her dwelling on 20 April 2013 for the first time with several strangers; that had scared the child and she had refused to go with her father.

The fourth applicant submitted during those proceedings that he had had a hernia operation in July 2012 and had been put on sick leave until 31 March 2013. As a result, he had been unwell and had not been in a position to collect the child, whom he had only seen at her kindergarten. He had been on bad terms with R.D. and that was the reason he had not called to enquire about the child’s well-being. In September 2012 he had attempted to meet his daughter but R.D. had kept the child away from him and had refused to let them have any contact with each other.

The social services submitted a report concluding that as the fourth applicant had not seen the child for many months in a row the relationship between the two of them had broken down. They recommended that contact between him and the child take place, at least temporarily, in the presence of the mother.

On 10 January 2014 the first-instance court granted R.D.’s application for limiting the father’s contact rights with the child to visits without sleepovers. It concluded on the basis of a number of reports by social services that the relationship between the fourth applicant and the child had broken down. That decision was upheld on appeal on 30 April 2014.

On 27 July 2012 the fourth applicant complained to social services that R.D. had been preventing him from seeing his daughter since 15 June 2012 and that the mother was not caring for the child appropriately. He stated that it was the latter’s grandmother, who suffered from a psychiatric condition, who was the child’s main care-giver. The social services carried out an inquiry and established in a report of 3 September 2012 that the child was not being brought up by her grand-mother but enjoyed the daily care and support of her mother. They also found that R.D. had not been preventing contact between the child and the applicant, but that the fourth applicant himself had not been seeking contact with his child. They had informed him that he had to meet his daughter regularly and that she needed the support and care of both of her parents.

On 22 February 2013 the fourth applicant asked the bailiff to start enforcement proceedings on the basis of a writ of enforcement obtained on 29 June 2012. On 27 February 2013 the bailiff asked R.D. to hand the child over to the fourth applicant in line with his contact rights. R.D. replied on 28 February 2013 that the father had not sought any contact with the child since 15 June 2012, when he had left the family home, and had not telephoned to ask about the child’s physical or emotional state. R.D. pointed out that she was aware of the arrangements for contact between him and the child, and had not opposed any meetings between them.

The applicant complained to the bailiff on 1 and 16 March 2013 that R.D. had not taken the child to meet him in a café located about 30 metres from R.D.’s home. The bailiff replied that the fourth applicant was expected to collect the child from the house and not from cafés or other locations of his own choosing.

The bailiff scheduled a handover of the child to the fourth applicant for 12 August 2013 and R.D. took the child to that appointment. However, the bailiff did not enforce it as the child refused to go with her father. The bailiff scheduled a new appointment, 19 August 2013, for a handover for a contact meeting and R.D. took the child along to it. In the meantime, on 16 August 2013 the fourth applicant withdrew his request to use his right to spend a month with the child during the holidays. Despite that withdrawal, the bailiff fined R.D. on 19 August 2013 for not complying with the contact arrangements in favour of the fourth applicant.

The bailiff further fined R.D. respectively on 28 May 2013, 11 July 2013 and 9 October 2013, referring to her continued failure to hand the child over to the father, beginning from 22 February 2013. R.D. brought judicial review proceedings in respect of the last fine, submitting that she had systematically prepared the child for her two-day stays with her father, but that the child had regularly refused to go with him after he had arrived at meetings in the company of strangers. On 6 November 2013 the Stara Zagora Regional Court quashed the fine of 9 October 2013. The court held that the bailiff should have attempted different means for enforcing the judgment before resorting to repeated fines. It set out his prerogatives under the law and emphasised that the bailiff was expected to be present when the child was handed over and to draw up reports on the particular circumstances, instead of relying on declarations signed by the parties or by individuals selected by them.

Subsequently, the fourth applicant requested that further fines be imposed on R.D. for not being at home when he had gone to take the child. The bailiff refused on two occasions, finding that the dates in question had not been part of the applicant’s visiting schedule. R.D. informed the bailiff that the fourth applicant had also arrived at her home in order to collect the child on days which had not been in the visiting schedule.

The fourth applicant informed the bailiff on 28 October 2013 that he would not be in a position to meet his child for the foreseeable future owing to health problems. Thereafter, on 22 February 2014, without prior notice and on a day which was not part of the schedule for visits, he complained to the bailiff that R.D. and the child had not been at home when he had attempted to collect her. Subsequently, on 1 March 2014 and 25 April 2014 he failed to collect the child as scheduled. After being asked by the bailiff to state whether he wanted to resume contact with the child, the fourth applicant confirmed on 2 April 2014 that he did.

The bailiff fined R.D. on 13 May 2014 because she had failed since 22 March 2013 to hand the child over to the fourth applicant. The Stara Zagora Regional Court quashed the fine on 20 June 2014 in a final decision, finding that R.D. had not impeded enforcement. R.D. informed the bailiff that the fourth applicant had failed to collect the child on 11 June 2014 as scheduled.

In a final decision of 4 May 2015, the Stara Zagora Regional Court dismissed the complaint made by the fourth applicant in criminal proceedings he had brought against R.D. in July 2013. The court established that he had divorced R.D. without her knowledge in March 2012 and had continued living with her and the child until 15 June 2012. Immediately after learning later that month about the divorce and the contact regime, R.D. had sought to meet the fourth applicant in order to discuss and arrange his meetings with the child. He had not gone to a scheduled appointment at the end of June 2012 and had told R.D. over the telephone, something he had himself admitted to the prosecutor, that there was nothing to discuss with her. The court concluded that that demonstrated, on the one hand, R.D.’s willingness and readiness to comply with the contact regime and, on the other hand, the fourth applicant’s categorical refusal to have a dialogue with the child’s mother.

It was likewise established that after he had left the family home in June 2012 the applicant had not sought contact with the child for a number of months. He had also not called to ask about her well-being although that would have been fully compatible with his state of health at the time. That had led to the breakdown of his relationship with the child. Further, he had thereafter only sought contact with the child via forced enforcement proceedings in which he had gone to collect the child in the company of strangers. He had also at times sought meetings on days that had not been part of his visiting schedule while omitting to seek contact on days that had been set as part of the schedule.


CASE OF CHURCH OF SCIENTOLOGY OF ST PETERSBURG AND OTHERS v. RUSSIA

Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of association)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants are:

The Church of Scientology of St Petersburg, an unincorporated group of Russian citizens formed for the collective study of Scientology (“the applicant group”);

Ms Galina Petrovna Shurinova, born in 1954, the president of the applicant group and a member since 1989;

Ms Nadezhda Ivanovna Shchemeleva, born in 1955, a member of the applicant group since 1993;

Ms Anastasiya Gennadyevna Terentyeva, born in 1979, a member of the applicant group since 1998;

Mr Ivan Vladimirovich Matsitskiy, born in 1975, a member of the applicant group since 1994;

Ms Yuliya Anatolyevna Bryntseva, born in 1977, a member of the applicant group since 1995;

Ms Galina Georgiyevna Frolova, born in 1955, a member of the applicant group since 1999.

In 1984, a first group of Scientologists appeared in St Petersburg under the leadership of Mr M. Goldberg. By the end of the 1980s it had split into two smaller groups, one of which was led by the second applicant.

On 23 March 1995 the second applicant, together with nine other founder members of the “Church of the Scientology Mission in St Petersburg”, applied for registration of their group. Having received no response for more than two years, the second applicant pressed the authorities for an explanation. The St Petersburg Justice Department replied that their application had been sent to the State Duma’s Expert Consultative Council for an opinion by an expert in legal and religious studies but had received no response, and it had been decided to “leave the application unconsidered”.

On 7 February 2002 the individual applicants, together with other fellow believers, submitted a new application for registration of the applicant group as a local religious organisation. The municipal council of municipal circuit no. 20 of St Petersburg provided the applicants with a letter which stated:

“In accordance with section 11 (5) of the Religions Act and on the basis of the application and documents provided, the municipal council ... confirms that the religious group of Scientologists has existed in St Petersburg since 1984.”

On 6 March 2002 the St Petersburg Justice Department refused the application, citing three technical grounds relating to the application documentation. On 7 March 2002 the applicants corrected these defects and resubmitted the application.

On 3 April 2002 the Justice Department notified the applicants that it had extended the period for consideration of the application because of the “necessity of conducting a State expert religious study”.

On 11 September 2002 the Justice Department issued a formal refusal of the resubmitted application. The refusal made no reference to any religious study but instead cited eight different technical grounds and asserted that the confirmation of the applicant group’s existence in St Petersburg for at least fifteen years was “unreliable”, without giving further details.

On 24 October 2002 the applicants resubmitted a corrected application which was refused on 22 November 2002, referring to the eight new technical grounds and the “unreliability” of the group’s existence for fifteen years. It also stated that an unspecified expert religious study had concluded that the applicant group was non-religious in nature.

On 19 December 2002 the second applicant asked the Justice Department to explain the basis for its claim regarding the “unreliability” of the group’s existence and to provide her with a copy of the religious study. In a letter of 8 January 2003, the Justice Department declined to give any clarification, referring to its discretionary power to refuse applications.

The third applicant complained to the Ombudsman about the Justice Department’s actions. In response to a subsequent enquiry from the Ombudsman’s office, the Justice Department supplied a copy of the religious study, dated 19 November 2002 and authored by Mr I., an academic secretary at the State Museum of the History of Religion in St Petersburg.

On 11 February 2003 the Ombudsman notified the head of the Justice Department that the religious study had breached the established procedure for conducting religious studies, as approved by Government Regulation no. 565. The study had not been approved by majority vote of the panel of experts duly appointed under the terms of the Regulation and therefore reflected nothing more than Mr I.’s personal opinion.

On 17 April and 14 August 2003 the applicants submitted a fifth and a sixth registration application, which were refused on 14 May and 8 September 2003 respectively. On each occasion, the Justice Department cited a number of new technical grounds that it had not relied upon in the previous refusal: it also referred to the expert religious study and the assertion that the confirmation of the applicant group’s existence for at least fifteen years had been “unreliable”.

Responding to a further request for clarification by the applicant Ms Shurinova, on 31 July 2003 the Justice Department stated that she did not have a right of access to the documents supporting the conclusion that the information purportedly confirming the existence of the religious group for fifteen years was unreliable, and that the law did not require it to provide any explanation as to the reasons for refusing State registration.

On 11 October 2003 the applicants challenged the Justice Department’s refusals in court. The first hearing on the merits was held on 21 September 2005, and further hearings were held on 1 November and 20 December 2005.

On the latter date the Oktyabrskiy District Court of St Petersburg gave judgment, holding that the refusal had been lawful. In respect of the Justice Department’s rejection of the confirmation letter, it stated:

“Having examined the letter of 16 February 2002 and the reply from the municipal council to the enquiry from the [Justice Department] concerning the documents that served as the basis for the letter, the court concludes that the applicants have not supplied evidence that there was only one religious group of Scientologists in St Petersburg that included the applicants and that the letter was given to their particular group. One cannot exclude the possibility that there were many groups practising this creed in St Petersburg and that the letter confirms the existence of one of the [other] groups of Scientologists, and not the religious group of Scientologists that decided to create the local religious organisation ‘Church of Scientology of St Petersburg’...

Even if any of the participants in the religious group that currently includes the applicants had studied Scientology in St Petersburg since 1984 and had participated in Scientologist rituals and ceremonies and in auditing, that does not prove that he or she did so within one and the same continuously operating, stable religious group that currently includes the applicants, as opposed to some other group that currently does or does not exist, and [later] ended up forming part of the applicants’ group.

In addition, the court takes into consideration the following.

The St Petersburg Law no. 111-35 of 23 June 1997 on Local Authorities, which establishes an exhaustive list of matters that come within the competence of municipal councils in St Petersburg (section 8), did not place the registration of religious organisation or the issuing of letters confirming the existence of a religious group in St Petersburg within the competence of municipal bodies.

There is no St Petersburg law that confers such powers upon municipal bodies.

On the basis of the above, it follows that the [municipal council] was not competent to issue such letters.

Furthermore, as can be seen from the municipal council’s reply ... to the court’s enquiry, the [municipal council] was formed on 8 February 1998 and registered by order no. 111 of 27 May 1998 of the Legislative Assembly of St Petersburg, so it cannot reliably confirm the existence of any religious group before its formation in 1998...”

As to the Justice Department’s reliance on Mr I.’s religious study, the court noted that at the time of the study’s preparation no expert panel had been appointed in St Petersburg under the terms of the Regulation, even though the Justice Department had “undertaken all possible measures” to comply with the Regulation. The court did not make any assessment of the legal significance of Mr I.’s religious study.

The applicants appealed.

On 24 May 2006 the St Petersburg City Court rejected their appeal, endorsing the first-instance court’s findings that the municipal council was not authorised by law to provide confirmation of the religious group’s existence or the claim that it had been one and the same group of Scientologists who had existed for fifteen years.


Preliminary objection partially allowed (Article 34 - Victim);Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

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

The applicants, a publisher and a publishing company, wrote and published, together with the former girlfriend of the Prime Minister at the time, an autobiographical book about her relationship with the Prime Minister. The book described a period of nine months in their lives from the point of view of the girlfriend, a single mother. The Prime Minister had earlier divorced his wife. The book described the dating couple’s life and their intimate interaction. The book was published on 19 February 2007. The Prime Minister held office from June 2003 to June 2010 when he stepped down.

On 5 October 2007 the public prosecutor brought charges under Chapter 24, section 8, of the Penal Code against the first applicant and the girlfriend for having disclosed information about the Prime Minister’s private life (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet). He also requested that the proceeds of the crime received by the applicant company be ordered forfeit to the State in accordance with Chapter 10, section 2, of the Penal Code. The Prime Minister concurred with the charges brought by the public prosecutor against the first applicant. He also pursued a compensation claim against the first applicant which was joined to the criminal charges. The girlfriend has lodged a separate application with the Court (see Ruusunen v. Finland, no. 73579/10).

On 15 February 2008 the book was withdrawn from sale.

On 5 March 2008 the Helsinki District Court (käräjäoikeus, tingsrätten), after having voted, dismissed the charges against the first applicant and rejected the request that the proceeds of the crime received by the applicant company be ordered forfeit to the State. It found that the book disclosed a lot of information about the Prime Minister’s private life but that he had already widely disclosed information about his family and habits as well as about his relationship with the girlfriend. Even though he himself had published an autobiography in 2005, had given several interviews, ran a blog and even permitted photographs to be taken at his home, he was known as a politician who strictly controlled his public image. The book also contained some information which had not previously been disclosed to the public. In this respect the court found that these new details only completed the information the Prime Minister had disclosed earlier. It was never suggested that the facts disclosed were not true. The book covered a period of nine months in the girlfriend’s and the Prime Minister’s private life. The court found that the girlfriend had the right to recount her private life. She also described the Prime Minister, his actions and family in a compassionate manner. The court found that, even though the information disclosed in the book had no direct relevance to the Prime Minister’s political functions or his hierarchical position in the State, it had relevance as far as the Prime Minister’s person was concerned. The Constitution required that ministers were “known to be honest and competent”. Moreover, the book described a situation in which two different realities of present day Finnish society met: a wealthy party leader and Prime Minister on the one hand, and a single mother with everyday money problems on the other hand. The court found that the fact that the girlfriend was writing about her life and her relationship with one of the highest authorities in the country did not restrict but in fact widened her freedom of expression. When weighing the freedom of expression against the protection of private life, the court found that the need to resort to criminal liability decreased when the disclosed information became more widely known. Criminal liability was the last resort in guiding human behaviour and its use had to be proportionate. The court could therefore not hold that the publication of the applicants’ book was a criminal act. Moreover, as the first applicant had obtained an opinion from a lawyer before publishing the book, he could not be regarded as having acted with intent and could not therefore be considered as a perpetrator.

By letter dated 18 April 2008 the public prosecutor appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). The Prime Minister also appealed.

On 10 February 2009 the Helsinki Appeal Court convicted the first applicant for disseminating information violating personal privacy and sentenced him to 60 day-fines, in total 840 euros. He was ordered to pay the Prime Minister 1,000 euros plus interest for non-pecuniary damage and 9,344 euros plus interest for his costs and expenses before the District Court and the Appeal Court. The proceeds of the crime, 4,260 euros, were ordered forfeit to the State. The applicant company was to receive 4,000 euros as compensation for its costs and expenses before the District Court. The court found that the passages in the book concerning the Prime Minister’s intimate dating and his children’s feelings and behaviour unnecessarily violated the core areas of his protected private life. He had not previously disclosed these details of his private life in the media. The fact that he had disclosed some parts of his private life, the protection of which was, due to his status, much narrower than a private person’s, did not mean that he could not benefit at all from any protection of his private life. He had thus not waived his right to the protection of private life, nor implicitly consented to the disclosure of information concerning details of his private life. Even though the girlfriend had the right to write about her private life, disclosure of intimate details of another person’s private life always required his or her consent. The aim of the applicants’ book had been to discuss matters of private life and it had no relevance to the Prime Minister’s political functions or his hierarchical position in the State. Nor had it any relevance to the assessment of his personal qualities, such as any lack of honesty and judgment, as the relationship fell within the core areas of his private life and had no relevance to his position as Prime Minister. Moreover, the first applicant could be held as a perpetrator even though he had obtained a legal opinion about the book before its publication. His acts had been intentional.

By letter dated 14 April 2009 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the court establish a precedent in the case as the court had not yet in its case-law assessed freedom of expression in the context of an autobiography.

On 11 June 2009 the Supreme Court granted the applicants leave to appeal.

On 16 June 2010 the Supreme Court, after having held an oral hearing, upheld the Appeal Court’s conviction but quashed the forfeiture in respect of the first applicant and reduced the costs and expenses to be paid to the Prime Minister for the proceedings before the District Court and the Appeal Court to 6,000 euros plus interest. The first applicant was ordered to pay the Prime Minister 4,500 euros plus interest for his costs and expenses before the Supreme Court. The applicant company was to receive 2,000 euros as compensation for its costs and expenses before that court. In particular, by referring extensively to the Court’s case-law, the Supreme Court gave a more narrow scope to the Prime Minister’s private life than the Appeal Court. The court found that information about the Prime Minister’s sex life and intimate events and his children’s feelings and behaviour had not been disclosed to the public before. The fact that some details of his private life had been disclosed before did not mean that they could not fall within the scope of criminal liability under Chapter 24, section 8, of the Penal Code. The Prime Minister had not waived his right to protection of private life in these respects, nor had he given his consent to their publication by consenting to the use of his photograph on the cover of the book. The court considered, contrary to the Appeal Court, that the information about how and when the Prime Minister had met the girlfriend and how quickly their relationship had developed had had relevance to general public discussion as these issues had raised the question of whether in this respect he had been dishonest and lacked judgment. Also the information concerning the great differences in the standard of living between the girlfriend and the Prime Minister, his lifestyle, the data protection concerns and the protection of the highest political authorities in general had had relevance to general public discussion. The court found also that disclosure of information about the Prime Minister’s children was not conducive to causing him damage, suffering and contempt as the girlfriend had only given her own interpretation of the children’s attitudes. However, the only references which, according to the court, had illegally disclosed information about the Prime Minister’s private life were the information and hints about the sex life and intimate events between the girlfriend and the Prime Minister. The court enumerated in particular seven parts of the book which contained information about the start of the sex life in the beginning of their relationship, descriptions of their brief and passionate intimate moments as well as giving massages to each other, and accounts of their sexual intercourse. The court found that such information and hints fell within the core area of private life and their unauthorised publication was conducive of causing the Prime Minister suffering and contempt. It was thus necessary to restrict the applicants’ freedom of expression in this respect in order to protect the Prime Minister’s private life.