RUNTEVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant, Ms Lenče Runteva, is a Macedonian national who was born in 1962 and lives in Štip. She is represented before the Court by Mr T. Torov, a lawyer practising in Štip.

The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.

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

By a judgment of 23 April 2001, confirmed on appeal on 10 October 2001, the Kočani Court of First Instance (“the trial court”) convicted the applicant of a serious traffic offence and sentenced her to four years and six months’ imprisonment. The period during which the applicant had been remanded in pre-trial detention (from 2 to 13 October 1999) was to be deducted from the custodial sentence.

On 20 January 2003 the applicant started serving the sentence.

On 28 July 2004 the President of the State granted pardons to several convicted people, exempting them entirely (потполно) or partially (делумно) from serving their respective prison sentences (се ослободуваат од понатамошно извршување). The applicant obtained a reduction of the serving time by one year and six months. On 29 July 2004 the presidential pardon was published in the Official Gazette. The presidential pardon was granted on the occasion of a national public holiday.

On 14 January 2005 the applicant, represented by Mr T. Torov, lodged a request for extraordinary mitigation of her prison sentence (вонредно ублажување на казната), which the Supreme Court granted in a judgment of 1 February 2005. It found that the applicant was the only person who could care for her father, whose health had deteriorated after the death of her mother, which had occurred whilst the applicant was serving her sentence. According to the court, those were new circumstance which the lower courts could not have taken into account in determining the sentence. Relying on sections 399 and 401(6) of the Criminal Proceedings Act of 1997 (see paragraphs 20 and 22 below), it overturned the lower courts’ judgments of 23 April and 10 October 2001 in respect of the sentence and reduced the prison term to three years and six months. The court reiterated that the period of time the applicant had spent in detention on remand was to be deducted from the total prison term. In its judgment, the court did not mention the presidential pardon of 29 July 2004.

On 10 March 2005 the judgment was served on the applicant’s representative.

In the meantime, namely on 17 February 2005, the trial court accepted a recommendation made by the director of the detention facility (based on the applicant’s good behaviour) and ordered that the applicant be released on parole on 25 February 2005. Referring to the aforementioned presidential pardon, the trial court stated that “[the applicant’s sentence] is three years.” The trial court established that the period of conditional release (условен отпуст) would come to an end on 9 January 2006. It did not mention the Supreme Court’s judgment of 1 February 2005.

The applicant was released on parole 25 February 2005.

On an unspecified date in 2007, the applicant brought a civil action against the respondent State, claiming compensation for being allegedly unlawfully detained for 60 days due to an error or unlawful action by the State authorities. She also claimed compensation in respect of the period of her conditional release (between 25 February 2005 and 9 January 2006), during which she had been regarded as an offender. She argued that, as a consequence of the Supreme Court’s judgment ordering mitigation of sentence and the presidential pardon, the prison sentence had been reduced to two years excluding the time of her detention on remand. Accordingly, she should have been released some 60 days prior to the date of her release on parole.

In a judgment of 25 June 2010, the Skopje Court of First Instance dismissed the applicant’s compensation claim as ill-founded. The court stated the following:

“... On the basis of the [information] submitted by [the trial court], the court establishes that the prison sentence imposed on [the applicant] was three years and six months, taking into account the presidential pardon. That aside, the overall sentence, including [the applicant’s] conditional release that came to an end on 9 January 2006, was three years ... It is undisputed that [the applicant] was released from custody on 25 February 2005, as stated in the decision for her release on parole. Accordingly, she was not detained for longer than prescribed ... [The trial court] decision ordering [the applicant’s] conditional release took into consideration the presidential pardon, as is evident from the reasoning provided; however, when reducing the sentence, it gave no weight to it. [The applicant] did not spend a day longer in custody than she was sentenced to. She was supposed to serve the sentence until 9 January 2006, the date when her period of conditional release came to an end...

The provisions governing compensation for damage sustained do not apply in the circumstances of the (present) case because the conviction was not wrongful ... The reduction in the prison term following the presidential pardon and the [Supreme Court’s] judgment was based on grounds not related to [the applicant’s] guilt of the crime that she had committed. Only a person who has suffered damage due to a wrongful conviction is entitled to seek compensation for damage sustained. In the present case, [the applicant] was rightfully convicted ...”

The applicant challenged this judgment before the Skopje Court of Appeal. She reiterated that, given the extraordinary reduction in the prison term ordered by the Supreme Court and the presidential pardon, she should have been imprisoned for two years, further reduced by the period of her detention on remand. Any detention in excess of this period had therefore been unlawful. Accordingly, she was entitled to compensation in respect of non-pecuniary damage under section 530(1)3 of the Criminal Proceedings Act (see paragraph 23 below).

In its judgment of 9 February 2012, the Skopje Court of Appeal upheld the established facts and the reasoning provided by the lower court. It further stated that:

“... the reduction of a prison term on the basis of an extraordinary mitigation of sentence [by the Supreme Court] does not constitute grounds for compensation for damage sustained if a person has remained imprisoned for longer than the reduced prison term imposed by a competent court.

... this court considers that in the present case, the lower court having correctly established that [the applicant] had not been imprisoned a single day more than had been prescribed by the above judgments, the applicant has no right to claim compensation under [section 530 (1)2] of the Criminal Proceedings Act ...”

On 17 October 2013 the Supreme Court dismissed an appeal on points of law by the applicant and upheld the lower courts’ judgments. The applicant was served with this judgment on 31 January 2014.

Article 84 § 1(9) of the Constitution provides that the President of the State can grant pardon in accordance with the legal provisions.

Under section 1 of the Pardon Act of 1993, the President of the State may grant pardon to identified individuals in respect of criminal offences provided for by law. A request for pardon can be submitted by the convicted person or by the Ministry of Justice of its own motion (section 2(1)) after a judgment becomes final (section 6(1)).

Section 112 of the Criminal Proceedings Act of 1997, as applicable at the relevant time, provided that judgments were delivered to parties either by way of oral pronouncement, if the parties were present at the hearing, or by serving them with a certified copy of the judgment if they were absent from the hearing.

Under section 125(2) of the Act, a final judgment became enforceable after being served on the parties provided there were no obstacles to its enforcement.

Sections 399-402 provided for an extraordinary mitigation of sentence as an extraordinary remedy that might be used against the penalty imposed by the lower courts. Under section 399, it might be granted on account of facts that had not existed before delivery of the final judgment or of facts that had existed at that time but of which the court had been unaware.

Under section 400(2), a request for mitigation of sentence did not suspend its enforcement.

The Supreme Court would dismiss the request if the statutory conditions for extraordinary mitigation of sentence were not satisfied. If it granted the request, the Supreme Court would adopt a judgment and overturn the final judgment in respect of the penalty (section 401(6)).

Section 530(1)2 provided that a person was entitled to claim compensation if he or she had served a prison sentence but ‒ on the basis of a reopening of proceedings, a legality review request or a request for extraordinary review of a final judgment ‒ should have served a shorter prison term than the one already served. Under sub-paragraph 3, a person was entitled to claim compensation if he or she served a longer (prison) sentence due to an error or unlawful action by a (State) body.


CASE OF KOCHEROV AND SERGEYEVA v. RUSSIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1966 and 2007 respectively and live in St Petersburg. The first applicant is the second applicant’s father.

The first applicant has a mild mental disability. Between 1983 and January 2012 he lived in St Petersburg Neuropsychological Care Home no. 1 (“the care home”).

In 2007 the first applicant married Ms N.S., a resident of the same care home, who had been deprived of her legal capacity on account of her mental disability.

On 30 May 2007 Ms N.S. gave birth to the second applicant. At the time, the first applicant was not recognised as the child’s father. One week later the second applicant was admitted to hospital because of an infection she had contracted during the delivery.

On 12 July 2007 the second applicant was placed in St Petersburg Children’s Home no. 3 (“the children’s home”) as a child without parental care.

On 7 August 2007 the first applicant obtained a new birth certificate for the second applicant and was registered as her father. He subsequently gave his consent for her to stay at the children’s home until it became possible for him to take care of her. Throughout the second applicant’s stay there, the first applicant maintained regular contact with her. He would visit her regularly, spend time with her, take her for walks and buy her books, toys and clothes.

By a judgment of 31 March 2008 the Dzerzhinskiy District Court of St Petersburg refused to restore Ms N.S.’s legal capacity, relying in particular on a psychiatric examination report. It stated that, inter alia, there were conflicting, aggressive and emotionally inadequate tendencies in her behaviour.

On 24 September 2008 the marriage between the first applicant and Ms N.S. was declared void at the request of a public prosecutor because of Ms N.S.’s legal incapacity.

Following a claim by the first applicant acting on his own behalf and on behalf of the second applicant, on 6 June 2011 the Smolninskiy District Court of St Petersburg ordered the St Petersburg City Council to provide the applicants with housing under a social tenancy agreement. In November 2011 they were provided with a flat in St Petersburg.

In February 2012, on the basis of a medical assessment, the first applicant was discharged from the care home and moved into his flat. He has been living there ever since.

In November 2011 the first applicant informed the children’s home of his intention to take the second applicant into his care once he was discharged from the care home and had moved into his flat.

On an unspecified date the children’s home applied to the Frunzenskiy District Court of St Petersburg (“the District Court”) to have the first applicant’s parental authority over the second applicant restricted. The children’s home indicated that “the first applicant [had] never yet taken the girl from the children’s home to raise her in his family but was planning to raise the girl by himself”. In the children’s home’s view, it was not advisable to let the girl be placed in her parents’ care as her mother was legally incapacitated and thus posed a danger to the girl’s life and health, while her father could not fully exercise his parental responsibilities owing to his mental disability. In addition, the children’s home submitted, referring to information provided by its staff (see paragraph 18 below), that at the time it would be very stressful for the second applicant to be transferred to her parents’ family.

In the proceedings before the District Court, the children’s home produced undated reports by its staff. They stated that the second applicant had difficulties in communicating with her parents and that she felt fear, anxiety and emotional stress in their presence.

The first applicant relied on the following pieces of written evidence.

In a certificate dated 24 December 2009 the children’s home stated that the second applicant was in their care and that the first applicant and Ms N.S. regularly visited her.

In a certificate dated 26 May 2011 a municipal custody and guardianship agency confirmed that the second applicant was living temporarily at the children’s home at the first applicant’s request pending the allocation of social housing to him, and that he visited her there.

A report dated 10 October 2011 by a panel of experts contained the results of a medical psychiatric examination of the first applicant that had been carried out with a view to determining whether he could be discharged from the care home and bring up his child. The report described him as a fully focused, sociable person with reduced intelligence. According to the report, the first applicant was well presented, readily engaged himself in conversation and could read, write and do arithmetic. He was able to cook and kept his room in the care home clean and orderly. The report also mentioned that he talked about his daughter with tenderness and love, proudly demonstrated her “achievements”, showed clothes and toys bought for her, and regularly visited her. He was planning to take her home as soon as he was provided with social housing. The report also stated that throughout his stay at the care home the first applicant had worked there and saved money over several years; he would therefore be able to support his daughter financially. The report concluded that he could be discharged from the care home and that his state of health enabled him to fully exercise his parental authority.

A report dated 8 February 2012 by the custody and guardianship authority described the living conditions in the first applicant’s flat as appropriate for his daughter. It stated, in particular, that the flat had recently been renovated, was clean and light, had all the necessary furniture and home appliances, and that there was a sleeping place for the child with clean bed linen. There were toys and books suitable for her age, and clothes appropriate for the season. There was also a separate desk equipped for the child.

A letter dated 14 February 2012 issued by the care home to the District Court again confirmed that the first applicant regularly visited the second applicant at the children’s home, that he bought clothes for her and that he discussed with the management of the care home the steps he could take on his own to ensure the girl received a good upbringing, financial support, health care and an education. When concluding the social tenancy agreement for the flat allocated to him, the first applicant had himself found out which documents he would need to register the girl at kindergarten, had collected those documents and had put her on a waiting list for a place. The letter also stated that the first applicant’s medical examination had not revealed any contradictions to his upbringing of the second applicant; he was a well-organised and reliable person who had realistic life plans and a responsible attitude towards his work and obligations. His psychiatric state was stable; he did not show any signs of aggression towards others or emotional instability and did not need any medical treatment.

At the hearing before the District Court, the first applicant’s representative contested the children’s home’s application as groundless and discriminatory as being based on the fact that the first applicant had an intellectual disability. He argued, with reference to the adduced evidence (see paragraphs 20-24 above), that the first applicant was fully able to exercise his parental authority and take care of his daughter. He pointed out that the first applicant had recently been discharged from the care home and lived in a separate flat, where the conditions were adequate and suitable for the second applicant to live in. The first applicant’s lawyer thus insisted that the second applicant should be transferred into his care. He argued that the transfer could be performed gradually, to enable the girl to get used to the changes in her life, while the competent social care agencies could assist the first applicant in exercising his parental authority and monitor the family and, in particular, the second applicant’s life and upbringing.

Representatives of the children’s home (its director and the doctor in charge of the second applicant’s treatment) maintained the claim, arguing that it was premature to transfer the girl into the first applicant’s care. They stated, in particular, that the first applicant had a mental disability and had lived for all his life in a closed specialist institution; he would therefore be unable to ensure proper hygienic care of the girl or her adequate development, while it was impossible to entrust any such care to the second applicant’s mother as she was legally incapacitated. The representatives of the children’s home also stated that the first applicant’s attempts to communicate with the second applicant clearly showed that there was no contact between them. They added that when the second applicant had been told for the first time that she might be transferred into her father’s care, she had been stressed, scared and afraid of approaching him; later, when she had realised that she would be staying at the children’s home, her fears had disappeared. They also stated that at the time the second applicant’s fear of her parents had passed, and that she ceased fearing living with her family.

A representative of the municipal custody and guardianship authority and a public prosecutor both maintained the children’s home’s application, arguing that in view of the first applicant’s diagnosis, and the fact that his partner Ms N.S. had no legal capacity, it was not safe to transfer the second applicant into their care, and that two parents with mental disabilities would be unable to ensure the girl’s harmonious development.

The District Court also heard evidence from Ms O., a care home employee, who stated that whilst at the home the first applicant had lived independently in a separate room, which he had kept in order. He had bought food and cooked for himself and had been able to take prescribed medicines unsupervised if given clear instructions. He had worked part-time at the home, helping to take care of its patients, and had always been able to establish good contact with the patients and their relatives. He had been allowed to leave the care home freely and had also worked part-time outside, and at some point he and Ms N.S. had lived together at her relatives’ place for a while, and had then returned to the care home. Ms O. expressed her certainty that the first applicant would be fully able to fulfil his parental obligations and take good care of the second applicant.

On 20 March 2012 the District Court examined the children’s home’s claim. It observed, in particular, that the first applicant and Ms N.S. regularly visited the second applicant at the children’s home and attempted to communicate with her in the presence of the social workers, and that the first applicant had obtained a compulsory medical insurance certificate for her. The court also referred to the report of 8 February 2012 regarding the first applicant’s living conditions and noted, more specifically, that the first applicant had carried out repairs at the flat allocated to him, had equipped a room for a child, and had registered the second applicant at the address.

The District Court went on to note that if the children’s home’s application to restrict the first applicant’s parental authority were to be dismissed, the first applicant would be entitled to take his daughter into his care. However, the court considered that at the time it would be “undesirable” as it would not be in the child’s best interests. It noted, with reference to the reports by staff members of the children’s home (see paragraph 18 above) and similar statements by the representatives of the children’s home made at the hearing (see paragraph 26 above) that at present the girl felt anxious in the presence of her parents and had difficulties in communicating with them. The court therefore considered that “it would be stressful for the child to be placed with the family of her parents, who she had never lived with and had so far had no chance to get used to”.

The District Court further observed that since childhood, the first applicant had lived in specialist State institutions for people with mental disabilities and had no skills and experience in rearing children and taking care of them. In view of the fact that he had only left an institution and started living on his own in 2012, it considered that his intention to raise his daughter by himself was premature.

The court also observed that the girl’s biological mother had free access to the first applicant’s flat and noted that at present she had no legal capacity. It then noted that it “[had] no sufficient and reliable evidence that it would be safe for the child to remain with her parents, including her legally incapacitated mother”.

The District Court also referred to the first applicant’s mental disability and noted that “at present there was no reliable evidence showing that it would be safe for the girl to live with him”. In this connection, it noted that his medical diagnosis and category of disability would make him ineligible for applying to adopt a child.

Lastly, the District Court observed that the first applicant’s monthly income was 15,000 Russian roubles (RUB), while the monthly living wage was RUB 6,910.90 for an adult and RUB 5,461.39 for a child. As the first applicant would have to pay utility bills and, from time to time, medicine, some of which could be costly, the court considered that at the time he would be unable to provide adequate financial support for his daughter.

The District Court then referred to Article 73 of the Family Code and allowed the children’s home’s claim. It restricted, for the time being, the first applicant’s parental authority over the second applicant. The court added that by virtue of Article 76 of the same Code the first applicant would be able to apply to court to have the restriction of his parental authority lifted, if the reasons for the restriction being imposed ceased to exist.

The first applicant appealed against the judgment of 20 March 2012 to the St Petersburg City Court (“the City Court”).

With regard to the District Court’s first argument (see paragraph 30 above), the first applicant submitted that it would in any case be stressful for the child, who had spent four years at the children’s home, to start living anywhere else, for instance with an adoptive family. As for the children’s home’s reference to the girl’s anxiety in her parents’ presence, the first applicant argued that the reports to that end by its staff (see paragraph 18 above) were out of date and could not serve as a basis for the court’s finding, as at the hearing before the first-instance court the children’s home representatives had confirmed that the second applicant was no longer afraid of her parents or of being placed in the first applicant’s care (see paragraph 26 above).

The first applicant also argued that, in so far as the District Court had relied on the fact that he had lived at the care home for a prolonged period, a parent’s past or present residence in a specialist institution, there was no such ground for restricting parental authority in the Russian Family Code. Moreover, the law did not require biological parents to prove their ability to raise children or their housekeeping skills as a prerequisite for exercising their parental authority.

The first applicant further insisted, with reference to the District Court’s argument to that end, that the fact the girl’s mother was legally incapacitated was of no relevance to his case. Legal incapacity was a formal status and did not mean that the person was dangerous to others. In any case, the mental health of the child’s mother could not serve as a basis for restricting his own parental authority over his daughter. The first applicant also claimed that during the second applicant’s stay at the children’s home, her mother had been allowed to visit her.

The first applicant went on to argue that there had been no evidence at the District Court’s disposal proving that he posed any danger to his daughter. On the contrary, the relevant medical report by the experts of the care home, who had observed the first applicant for many years, revealed that his mental condition had not impaired his ability to fulfil his parental responsibilities (see paragraph 22 above).

Lastly, the first applicant alleged that the District Court had erred in establishing his income, which in fact exceeded the living wage in St Petersburg. Referring to the Court’s judgment in the case of Saviny v. Ukraine (no. 39948/06, 18 December 2008) and the relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities, he also submitted that his income could not be a decisive element in the decision to restrict his parental authority.

In his oral submissions before the City Court, the first applicant argued that if the children’s home’s claim was rejected, the transfer of the second applicant into his care could be gradual to enable her to adapt psychologically to her new life in the family.

On 17 July 2012 the City Court upheld the judgment of 20 March 2012 on appeal. It repeated the reasoning and conclusions of the District Court, stating that they were correct and accurately reflectedconsidered that the first applicant “had not adduced convincing evidence proving the absence of a real risk to the second applicant’s life, health and adequate upbringing” if she was transferred into her father’s care. It also noted that the first applicant was not precluded from seeking an annulment of the restriction of his parental authority in the future, should the relevant circumstances change.

On 31 January 2013 a St Petersburg City Court judge returned without examination a cassation appeal by the first applicant against the court decisions of 20 March and 17 July 2012, as he had failed to enclose a duly certified copy of the judgment of 20 March 2012. He did not attempt to pursue the cassation proceedings any further.

After the present application was communicated to the respondent Government, they submitted information on factual developments in the case.

In particular, by a judgment of 20 September 2012, the Zelenogorskiy District Court of St Petersburg restored, with reference to a psychiatric report, Ms N.S.’s legal capacity. The judgment entered into force on 25 October 2012.

On 15 November 2012 the first applicant remarried Ms N.S.

By an order of 9 January 2013 the children’s home established rules concerning the admission of visitors. According to the Government, on the basis of that order the first applicant regularly and without any limitations visited the second applicant there.

On an unspecified date the first applicant brought civil proceedings against the children’s home in the District Court of St Petersburg, seeking to have the restriction of his parental authority over the second applicant lifted. He argued, in particular, that one of the grounds for imposing that restriction had been the second applicant’s anxiety and fear she had felt in his presence and her unwillingness to live with him. He pointed out that at present the second applicant had no fear of her parents, that she had developed an affective attitude towards him, considered him as her father and was ready to live with him. He also pointed out that since February 2012 he had been living on his own and maintaining a household and that he was employed and had a stable income. He also submitted that the legal capacity of the second applicant’s mother, Ms N.S., had recently been restored. In the first applicant’s view, therefore, there was no reason to continue to restrict his parental authority over the second applicant which prevented him from taking her from the children’s home.

A representative of the children’s home confirmed in court that the first applicant regularly visited the second applicant, that close emotional ties had formed between them and that the girl missed her father when he left. He was therefore of the opinion that it would be in the second applicant’s interests to lift the restriction on the first applicant’s parental authority and transfer her into his care. Representatives of two district custody and guardianship agencies and a public prosecutor supported the first applicant’s application.

On 8 April 2013 the District Court gave its judgment. It took into account the parties’ arguments and observed, as had been submitted by a representative of the children’s home, that the first and second applicants had developed close emotional ties, that at present the girl felt comfortable and calm in her father’s presence and that she missed him whenever he left the children’s home. It also observed that from February 2012 onwards the first applicant had been living independently in a separate flat, where the second applicant was also registered. The court noted that the conditions were good and suitable for the second applicant to live in. It also had regard to the fact that the first applicant was employed and had received positive references from his place of work and place of residence.

The District Court further noted that the first applicant had a stable monthly income of approximately RUB 19,000. The living wage being RUB 7,352 for a working adult and RUB 5,802.50 for a child, the court considered that he was fully able to ensure the second applicant had adequate financial support. The court went on to note that the legal capacity of Ms N.S., who freely visited the first applicant’s flat, had by that time been restored and that the first applicant had himself submitted a medical report dated 5 March 2013 which confirmed that he was fully able to take care of his child.

The District Court therefore concluded that the restriction of the first applicant’s parental authority was no longer justified, as the reasons it had relied on in its previous judgment of 12 March 2012 were no longer valid. With reference to Article 76 of the Russian Family Code, the court thus allowed the first applicant’s application and ordered that the restriction of his parental authority over the second applicant be lifted and that she be transferred into his care. The judgment was not appealed against and entered into force on 17 May 2013.

On 20 May 2013 the first applicant took the second applicant from the children’s home to his home address, where she has been living ever since.


André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant, Mr Richard Thor, is a Swedish national who was born in 1971 and lived in Tulln. He is represented before the Court by Mr W. Kunert, a lawyer practising in Stockerau.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. The Swedish Government did not make use of their right to intervene under Article 36 § 1 of the Convention.

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

The applicant and G.T. are the parents of E.T., born on 13 October 2005 out of wedlock. The parents were married on 12 May 2006 and E.T. thereby acquired the status of having been born in wedlock with both parents having joint custody of him. On 9 December 2010 G.T. applied to the Tulln District Court for sole custody of E.T. and announced that she was planning a divorce. She stated that the child’s best interests would not be guaranteed if she stayed with the applicant. G.T. then moved out of the flat, together with E.T. The parents were divorced on 17 February 2011. After the divorce the parents maintained joint custody of their child, even though E.T. was living with his mother.

On 25 February 2011 the applicant lodged an application seeking that he be awarded sole custody of E.T. He argued that G.T. tried to alienate the child from him and that she actually failed to fulfil her parental duties. On 28 February 2011 the District Court appointed an expert in respect of the question of custody.

On 18 May 2011 the expert submitted her report. She concluded that, provided that adequate contact between E.T. and the applicant was ensured, it was in the interests of the well-being of E.T. that custody of him be awarded to G.T. In the event that the court were to grant joint custody, the principal residence of E.T. should be with his mother.

On 10 June 2011 the applicant and G.T. reached an agreement on the applicant’s contact rights in respect of E.T. before the District Court. That agreement was modified on 1 September 2011.

On 8 September 2011 G.T. reiterated her application for sole custody, stating that the applicant avoided any communication with her and that she could not see how – given this fact – joint custody was practicable or feasible.

On 29 December 2011 the District Court awarded G.T. sole custody and based this decision on the recommendation of a psychological expert. Moreover, the court referred to the fact that E.T., who was living with his mother, had stated that he wished to continue to do so and had shown a strong emotional link to her. The District Court furthermore noted that the applicant had not respected the agreement on contact rights and had on various occasions visited E.T. at his kindergarten – conduct which could increase the psychological strain on E.T. and could entail a risk to the wellbeing of the child if joint custody were to be maintained. Since it was not possible under Article 177a of the Civil Code to maintain joint custody after a divorce if the parents did not agree on it the court had to award sole custody, which, for the reasons set out above, had to be granted to G.T.

On 11 January 2012 the applicant appealed. He argued that the proceedings had been defective because an additional expert report should have been ordered. He furthermore argued that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights and asked the Regional Court to apply to the Constitutional Court for judicial review of the constitutionality of this provision.

On 15 February 2012 the St. Pölten Regional Court dismissed the applicant’s appeal and upheld the reasoning of the District Court. It held in particular that there was no indication of a risk to the child’s best interests if G.T. were to hold sole custody of E.T. The applicant had not submitted sufficient reasons for custody not to be granted to G.T., as the mere fact that she was assisted in caring for E.T. by her mother and the fact that E.T. was having difficulties in adapting to his new kindergarten did not cast any doubt on the capacity of G.T. to care for E.T. In so far as the applicant made further allegations of misconduct on the part of the mother without offering any evidence, such allegations were not sufficient to necessitate the supplementing of the expert report in the file. The court furthermore held that there were no concerns in terms of constitutional law regarding the fact that it was not possible to maintain joint custody after a divorce if the parents did not agree on it; thus, it held that the transfer of custody rights was only possible in the event that the child’s best interests were at risk. The court noted, moreover, that the present case was not comparable with the case of Sporer v Austria (no. 35637/03, 3 February 2011), since E.T. had been born in wedlock and the parents had held joint custody in the past. In such a case neither of the parents held a privileged position as regards the award of custody, and Article 177 of the Civil Code was therefore not discriminatory. In any event there was no room for dismissing the application for sole custody lodged by G.T., as the applicant himself had also lodged an application for sole custody and the court therefore had to decide.

On 25 April 2012 the Supreme Court rejected the applicant’s extraordinary appeal since it did not raise any important questions of law. Moreover, the Supreme Court found that the Court’s judgment in the case of Sporer v Austria had to be distinguished from the present case because the underlying facts were fundamentally different. Sporer had concerned custody of a child born out of wedlock (in which case Article 176 of the Civil Code did not provide for joint custody but granted sole custody of the child to the mother); in the present case, E.T. had been born in wedlock, so the parents had initially had joint custody, but that arrangement had failed and as a consequence the courts had had to grant sole custody to one of the parents. That decision was served on the applicant on 18 May 2012.

Following the 2013 amendment to the Civil Code, which entered into force on 1 February 2013, the applicant did not lodge an application for joint custody of E.T. According to a statement by the local youth office (Jugendamt) of 17 July 2013, the applicant no longer availed himself of his right to visit E.T. as he had moved to Russia on an unspecified date.

Article 177 and 177a of the Civil Code, as in force at the material time, read as follows:

“(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters.

(2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters.

(3) The court must approve the agreement of the parents if it serves the interests of the child.”

“(1) If an agreement in accordance with Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if it is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail.

(2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.”

The relevant provisions of the Austrian Civil Code were amended significantly on 1 February 2013. The relevant sections read as follows:

“(1) If the marriage or the common household of the parents is dissolved, joint custody is maintained. They can, however, conclude an agreement before a court under which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters.

(2) ) In the case that both parents have joint custody after the dissolution of their marriage or the common household, [the parents] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for.”

“(1) Provided that it is in the best interests of the child, the court has to decide on the provisional regulation of parental responsibility (“the phase of provisional parental responsibility”), if

after the dissolution of the marriage or the common household the parents cannot concur on an agreement, pursuant to section 179, within a reasonable time limit, or

one parent applies for sole custody or his/her participation in custodial rights.

(2) After [the phase of provisional responsibility, which lasts six months], the court has to take a final decision on custody (on the basis of what transpired during the phase of provisional parental responsibility) – including payment of statutory maintenance – [which is in the best interests of the child.] ... If the court awards joint custody, it also has to decide in whose household the child will predominantly be cared for.”


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Ganna Yudkivska;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1978. When he lodged his application he was being detained in Rosdorf Prison, Germany. He now lives in Khashuri /Surami, Georgia.

On the evening of 14 October 2006 the applicant and an unidentified accomplice robbed L. and I., two Lithuanian nationals, in the women’s apartment in Kassel.

The perpetrators were aware that the apartment was used for prostitution and expected its two female occupants to keep valuables and cash there. They passed by the apartment in the early evening in order to make sure that no clients or a procurer were present. Shortly afterwards they returned and overpowered L., who had answered the doorbell. The applicant pointed a gas pistol which resembled a real gun at both women and threatened to shoot them if they did not disclose where their money was kept. While his accomplice watched over the women, the applicant partly collected in the apartment and partly forced the women to hand over to him some 1,100 euros (EUR) and six mobile phones.

On 3 February 2007 the applicant, acting jointly with several accomplices, robbed O. and P., two female Latvian nationals who were temporarily resident in Germany and working as prostitutes, in their apartment in Göttingen.

On the evening of 2 February 2007, the day before the offence, one of the applicant’s co-accused had passed by O. and P.’s apartment in Göttingen together with an accomplice, R., an acquaintance of O. and P. They intended to verify whether the two women were the apartment’s only occupants and whether they kept any valuables there, and discovered a safe in the kitchen.

On 3 February 2007 at around 8 p.m. the applicant and a further accomplice, B., gained access to O. and P.’s apartment by pretending to be potential clients, while one of their co-accused waited in a car parked close to the apartment building and another waited in front of the building. Once inside the apartment B. produced a knife that he had been carrying in his jacket. P., in order to escape from the perpetrators, jumped from the balcony located approximately two metres off the ground and ran away. The applicant jumped after her but abandoned the chase after some minutes when some passers-by appeared nearby on the street. He then called the co-accused who had been waiting in front of the women’s apartment building on his mobile phone and told him that one of the women had jumped from the balcony and that he had unsuccessfully chased her. The applicant agreed on a meeting point with his co-accused where they would pick him up by car once B. had left the crime scene and joined them.

In the meantime inside the apartment, B., after having overpowered O., threatened to kill her with his knife if she did not disclose where the women kept their money or if she refused to open the safe for him. Fearing for her life, O. opened the safe, from which B. removed EUR 300, and also handed over the contents of her wallet, EUR 250. B. left the apartment at around 8.30 p.m., taking the money and P.’s mobile telephone as well as the apartment’s landline telephone with him, and joined the coaccused. The coaccused and B. then picked up the applicant at the agreed meeting point in their car. At approximately 9.30 p.m. P. rejoined O. in the apartment.

O. and P. gave an account of the events to their neighbour E. the morning after the offence. They then left their Göttingen apartment out of fear and stayed for several days with their friend L., one of the victims of the offence committed in Kassel, to whom they had also described the offence in detail the day after it occurred.

On 12 February 2007 L. informed the police of the offence committed against O. and P. in Göttingen. Between 15 and 18 February 2007 O. and P. were repeatedly questioned by the police as to the events of 2 and 3 February 2007. In those interviews they described the course of events as set out above. The police, having checked O. and P.’s papers, found their residence and occupation in Germany to be in compliance with German immigration and trade law.

As the witnesses had explained during their police interviews that they intended to return to Latvia in the days to come, on 19 February 2007 the prosecution asked the investigating judge to question the witnesses in order to obtain a true statement which could be used at the subsequent trial (“eine[r] im späteren Hauptverfahren verwertbare[n] wahrheitsgemäße[n] Aussage”).

Thereupon, on 19 February 2007, O. and P. were questioned by an investigating judge and again described the course of events as set out above. At that time, the applicant had not yet been informed about the investigation proceedings initiated against him, so as not to put the investigation at risk. No warrant for his arrest had yet been issued and he was not yet represented by counsel. The investigating judge excluded the applicant from the witness hearing before him in accordance with Article 168c of the Code of Criminal Procedure (see paragraph 56 below) since he was concerned that the witnesses, whom he had found to be considerably shocked and distressed by the offence, would be afraid of telling the truth in the applicant’s presence. The witnesses confirmed at that hearing that they intended to return to Latvia as soon as possible.

Witnesses O. and P. returned to Latvia shortly after that hearing. The applicant was subsequently arrested on 6 March 2007.

The Göttingen Regional Court summoned O. and P. by registered mail to appear at the trial on 24 August 2007. However, both witnesses refused to attend the hearing before the Regional Court, relying on medical certificates dated 9 August 2007 which indicated that they were in an unstable, post-traumatic emotional and psychological state.

On 29 August 2007 the Regional Court therefore sent letters by registered mail to both witnesses informing them that the court, while not being in a position to compel them to appear at a court hearing in Germany, nonetheless wished to hear them as witnesses at the trial. The court stressed that they would receive protection in Germany and that all costs incurred in attending the hearing would be reimbursed and, proposing several options, asked in what circumstances they would be willing to testify at the trial. While an acknowledgement of receipt was returned for both letters, no response was obtained from P. O., for her part, informed the Regional Court in writing that she was still traumatised by the offence and would therefore neither agree to appear at the trial in person nor would she agree to testify by means of an audio-visual link. O. further stated that she had nothing to add to the statements she had made in the course of the interviews carried out by the police and the investigating judge in February 2007.

The Regional Court nevertheless decided to request legal assistance from the Latvian authorities under the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, as supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (see paragraphs 64-66 below), taking the view that O. and P. were obliged under Latvian law to appear before a court in Latvia following a request for legal assistance. It asked for the witnesses to be summoned before a court in Latvia and for an audio-visual link to be set up in order for the hearing to be conducted by the presiding judge of the Regional Court (audiovisuelle Vernehmung). It considered, by reference to Article 6 § 3 (d) of the Convention, that defence counsel and the accused, just like the judges and the prosecution, should have the right to put questions to the witnesses for the first time.

However, the witness hearing of O. and P. scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before that date by the presiding Latvian judge. The latter found that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorder as a consequence of the offence and that further confrontation with the events in Göttingen would risk aggravating their condition. O. had further claimed that, following threats by the accused, she feared possible acts of revenge.

By letter dated 21 February 2008 the Regional Court, which had obtained copies of the medical certificates the witnesses had submitted to the Latvian court at the Regional Court’s request, informed its Latvian counterpart that, according to the standards of German criminal procedure law, the witnesses had not sufficiently substantiated their refusal to testify. The court suggested to the competent Latvian judge that the witnesses be examined by a public medical officer (Amtsarzt) or, alternatively, that they be compelled to attend the hearing. The letter remained unanswered.

By decision of 21 February 2008 the Regional Court, dismissing an objection to the admission of the witnesses’ pre-trial statements raised by counsel for one of the co-accused, ordered that the records of O. and P.’s interviews by the police and the investigating judge be read out at the trial in accordance with Article 251 §§ 1 (2) and 2 (1) of the Code of Criminal Procedure (see paragraph 61 below). It considered that, as required by the said provisions, there were insurmountable obstacles which made it impossible to hear the witnesses in the foreseeable future as they were unreachable. It had not been possible to hear witnesses O. and P. in the course of the trial since they had returned to their home country, Latvia, shortly after their interviews at the investigation stage, and all attempts to hear their evidence at the main hearing, which the court had no means of enforcing, had been to no avail. Pointing out that the courts were under an obligation to conduct proceedings involving deprivation of liberty expeditiously, and in view of the fact that the accused had already been in custody for a considerable period of time, the court was of the opinion that it was not justified to further delay the proceedings.

The Regional Court emphasised that at the investigation stage there had been no indication that O. and P., who had testified on several occasions before the police and then before the investigating judge, would refuse to repeat their statements at a subsequent trial. It considered that, notwithstanding the resulting restrictions for the defence on account of the admission of O. and P.’s pre-trial statements as evidence in the proceedings, the trial as a whole could be conducted fairly and in compliance with the requirements of Article 6 § 3 (d) of the Convention.

By judgment of 25 April 2008 the Göttingen Regional Court, considering the facts established as described above, convicted the applicant of two counts of aggravated robbery combined with aggravated extortion involving coercion, committed jointly with other perpetrators in Kassel on 14 October 2006 and in Göttingen on 3 February 2007, respectively. It sentenced the applicant, who had been represented by counsel at the trial, to nine years and six months’ imprisonment.

The Regional Court based its findings of fact concerning the offence committed by the applicant in Kassel on the statements made at the trial by the victims L. and I., who had identified the applicant without any hesitation. It further noted that their statements were supported by the statements made at the trial by the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigation. In view of these elements, the Regional Court considered that the submissions made by the applicant, who had initially claimed his innocence and had then admitted that he had been in L. and I.’s flat but had only secretly stolen EUR 750, alone, after a quarrel with the women, had been refuted.

In the establishment of the facts concerning the offence in Göttingen, the Regional Court relied in particular on the pre-trial statements made by the victims O. and P., whom it considered to be key witnesses for the prosecution (maßgebliche[n] Belastungszeuginnen), in the course of their police interviews and before the investigating judge.

In its judgment, which ran to some 152 pages, the Regional Court pointed out that it was aware of the reduced evidentiary value of the records of O. and P.’s pre-trial testimonies. It further took into account the fact that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses to the offence in Göttingen at any stage of the proceedings.

The Regional Court noted that the records of O. and P.’s interviews at the investigation stage showed that they had given detailed and coherent descriptions of the circumstances of the offence. Minor contradictions in their statements could be explained by their concern not to disclose their residence and activities to the authorities and by the psychological strain to which they had been subjected during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why they had not reported the offence immediately after the events and why the police had only been informed on 12 February 2007 by their friend L.

The Regional Court further took note of the fact that O. and P. had failed to identify the applicant when confronted with several photos of potential suspects during the police interviews. It observed that the witnesses’ attention during the incident had been focused on the other perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment. Their inability to identify the applicant also showed that, contrary to the defence’s allegation, the witnesses had not testified with a view to incriminating him. The court further considered that the fact that the witnesses had failed to attend the trial could be explained by their unease at having to recall, and being questioned about, the offence and therefore did not as such affect their credibility.

In its establishment of the facts, the Regional Court further had regard to the following additional evidence: the statements made at the trial by several witnesses to whom O. and P. had reported the offence shortly after it happened, namely the victims’ neighbour E. and their friend L., as well as the police officers and the investigating judge who had examined O. and P. at the pre-trial stage; geographical data and information obtained by tapping the applicant’s and his co-accused’s mobile telephones and by means of a satellite-based global positioning system (“GPS”) receiver in the car of one of the co-accused; the applicant’s admission in the course of the trial that he had been in the victims’ apartment at the relevant time; and the similarity in the way in which the offences in Kassel and Göttingen had been committed.

The Regional Court stressed that, once witnesses O. and P. had proved to be unavailable, it had ensured that as many as possible of the witnesses who had been in contact with O. and P. in relation to the events at issue were heard at the trial, in order to verify the victims’ credibility.

In the Regional Court’s opinion the fact that the detailed description of the events given in O. and P.’s pre-trial statements was consistent with the account they had given the morning after the offence to their neighbour E. was a strong indication of their credibility and the veracity of their statements. E. had further testified that, on the evening of 3 February 2007 at around 9.30 p.m., another neighbour, an elderly woman who became scared and angry when she saw P. running around in front of her window, had called on her and asked her to accompany her to the women’s apartment to investigate what had happened. O. and P. had, however, not answered the door when the neighbours rang the doorbell.

The Regional Court further observed that O. and P.’s description of the events was also consistent with their friend L.’s recollection of her conversations with O. and P. after the offence.

In addition, the Regional Court noted that the three police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at the trial that they had found O. and P. to be credible.

The Regional Court stressed that since neither the defence nor the court itself had had an opportunity to observe the main witnesses’ demeanour at the trial or during examination by means of an audio-visual link, it had to exercise particular diligence in assessing the evaluation of the witnesses’ credibility by the police officers and the investigating judge. The court further emphasised that, when taking into account the testimonies given by the witnesses’ neighbour E. and their friend L., it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly carefully.

In this context it had been of relevance that O. and P.’s testimonies as well as the statements of the additional witnesses heard at the trial had been supported by further significant and admissible evidence such as data and information obtained by tapping the applicant’s and the co-accused’s mobile telephones and by means of GPS. The information in question had been gathered in the context of police surveillance measures carried out at the relevant time in the criminal investigation initiated against the accused on suspicion of racketeering and extortion on the Göttingen drug scene.

It transpired from the geographical data and the recordings of two mobile telephone conversations between one of the co-accused and the applicant on the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been present in the victims’ apartment together with B., and that he had jumped from the balcony in order to chase one of the escaping victims, whom he had failed to capture, while B. had stayed in the apartment. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. to 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the timeframe in which the robbery in question had occurred.

Furthermore, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity, their own statements at the trial had at least confirmed that one of the coaccused together with R. had visited the victims’ apartment in Göttingen on the evening before the offence and that they had all been present in the car parked close to the victims’ apartment at the time of the offence. The accused had initially stated that a different perpetrator and R. had been in the apartment at the time of the incident the following day. The applicant had subsequently amended his submissions and claimed that it had been he and B. who had gone into the victims’ apartment on 3 February 2007 with a view to making use of the women’s services as prostitutes. He had further conceded that he had followed P. when she escaped over the balcony. He explained that he had done so in order to prevent her from calling the neighbours or the police, since, in view of his criminal record, he had been afraid of getting into trouble and because of the problems he had previously encountered with prostitutes on a similar occasion in Kassel.

Finally, the Regional Court considered that the very similar way in which the offences had been committed against two female victims, foreign nationals working as prostitutes in an apartment, was an additional element indicating that the applicant had also participated in the offence committed in Göttingen.

In the Regional Court’s view, the body of evidence, taken together, gave a coherent and complete overall picture of events which supported the version provided by witnesses O. and P. and refuted the contradictory versions of events put forward by the applicant and his co-accused in the course of the trial.

On 23 June 2008 the applicant, represented by counsel, lodged an appeal on points of law against the judgment of the Göttingen Regional Court. He complained that he had not been able to examine the only direct and key witnesses to the offence committed in Göttingen at any stage of the proceedings, in breach of Article 6 §§ 1 and 3 (d) of the Convention. As the prosecution authorities, contrary to the case-law of the Federal Court of Justice (the applicant referred to a judgment dated 25 July 2000, see paragraphs 58-59 and 62 below), had not requested that defence counsel be appointed for him prior to O. and P.’s hearing before the investigating judge, their statements ought to have been excluded at the trial.

In written submissions dated 9 September 2008 the Federal Public Prosecutor General requested that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings, under Article 349 § 2 of the Code of Criminal Procedure (see paragraph 63 below). The Federal Public Prosecutor General argued that while it was true that the proceedings had been characterised by a “complete loss” of the applicant’s right to examine O. and P. (“Totalausfall des Fragerechts”), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence.

The Federal Public Prosecutor General considered that the Regional Court had assessed the content of the records of the witnesses’ testimonies read out at the trial particularly carefully and critically. Furthermore, the victims’ statements had been neither the sole nor the decisive basis for the applicant’s conviction by the Regional Court, as the latter had based its findings on further significant evidence. In view of the various layers of corroborating evidence the applicant had had ample opportunity to challenge the credibility of the two prosecution witnesses and to defend himself effectively.

Endorsing the Regional Court’s reasoning, the Federal Public Prosecutor General further pointed out that there was nothing to demonstrate that the restrictions on the defence’s right to examine witnesses O. and P. had been imputable to the domestic authorities. The prosecution authorities had not been obliged to appoint counsel for the applicant in order for counsel to participate in the hearing by the investigating judge. In view of the witnesses’ consistent cooperation, the authorities had had no reason to expect that, despite their return to their home country, they would no longer be available for questioning at the trial, especially as they had been obliged under Latvian law to at least participate in a hearing via video link.

By decision of 30 October 2008 the Federal Court of Justice, referring to Article 349 § 2 of the Code of Criminal Procedure, dismissed the applicant’s appeal on points of law as manifestly ill-founded.

In its decision of 9 December 2008 rejecting the applicant’s complaint concerning a violation of his right to be heard (Anhörungsrüge) the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 § 2 of the Code of Criminal Procedure necessarily entailed a reference to the reasoned application by the Federal Public Prosecutor General.

In a constitutional complaint dated 30 December 2008 against the decisions of the Federal Court of Justice of 30 October and 9 December 2008, the applicant complained, in particular, that there had been a breach of his right to a fair trial and of his defence rights under Article 6 § 3 (d) of the Convention. He argued that neither he nor his counsel had had the opportunity to question O. and P. at any stage of the proceedings.

By decision of 8 October 2009 the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s complaint (file no. 2 BvR 78/09).


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1984 and lives in Čavle.

On 28 February 1997 the applicant’s father, G.B., applied to the Rijeka Office of the Department for Croatian Homeland War Veterans and their Family Members (Odjel hrvatskih branitelja i članova njihovih obitelji Primorsko-goranske županije, područna jedinica Rijeka; hereinafter “the Rijeka Office”) for recognition of the status of a disabled war veteran, on the grounds that he had contracted tuberculosis and developed psychosis during his military service in 1995.

On 19 December 1997 G.B. died and the applicant took over the proceedings as his heir.

On 24 September 1998 the Rijeka Office dismissed the application. The relevant part of that decision reads as follows:

“The case file was resubmitted to the Medical Committee, which established the following:

- G.B ... served in the Homeland War ... from 9 October 1991 to 15 July 1992, from 15 July to 3 November 1992 and from 9 June to 19 July 1995;

- during military service he contracted tuberculosis;

- his mental health issues had been recognised much earlier;

- the Medical Committee is of the opinion that his tuberculosis and psychosis have not been caused by his military service.”

The applicant lodged an appeal against that decision. On 24 February 1999 the Ministry in charge of the Homeland War Veterans affairs (Ministarstvo hrvatskih branitelja iz Domovinskog rata; later Ministarstvo obitelji, branitelja i međugeneracijske solidarnosti; hereinafter: the “Ministry”) dismissed the applicant’s appeal holding that the proceedings should have been terminated as G.B. had meanwhile died.

The applicant challenged that decision before the Administrative Court (Upravni sud Republike Hrvatske).

On 19 July 2000 the Administrative Court accepted the applicant’s administrative action, quashed the decision of the Ministry and remitted the case.

On 21 June 2001 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) but declared G.B.’s application inadmissible. It held that such application could only be lodged after a claimant had been discharged from the army, which was not the case in G.B.’s case.

The applicant lodged an administrative action against that decision. On 26 January 2006 the Administrative Court quashed the decision of the Ministry and remitted the case. The relevant part of that judgment reads as follows:

“The administrative bodies’ decisions ... were rendered while the [old] Act on the Rights of Croatian Homeland War Veterans and their Family Members (Official Gazette nos. 108/96 and 23/01) was still in force.

In the meantime, since the action was lodged and before this judgment was rendered, a new Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force and was published in Official Gazette no. 174 of 10 December 2004.

Pursuant to section 158(2) of that Act, which entered into force on 1 January 2005, the proceedings instituted while the old legislation was still in force and in which the final decision has not yet been rendered should be decided under the new Act if more favourable for the Croatian Homeland War veteran.

In the present case, on 1 January 2005, the date the Act on the Rights of Croatian Homeland War Veterans and their Family Members entered into force, the disputed decision of the defendant body was not final. The court therefore finds that the defendant body must decide the application in accordance with section 158(2) ... It is a specific legislative provision which requires the impugned decision to be quashed ...

The defendant body shall decide, in the light of the provisions of the Act that govern the conditions and methods of recognition of disabled Croatian Homeland War veteran status, if more favourable for the claimant.”

On 20 May 2006 the Ministry allowed the applicant’s appeal, quashed the decision of the Rijeka Office (see paragraph 9 above) and remitted the case for re-examination. The relevant part of that decision reads as follows:

“This Ministry has reconsidered the case and found that the appeal is well-founded, albeit for different reasons.

Section 14 of the by-law on the Procedure before the Medical Committee for the Determination of Rights under the Act on the Rights of Croatian Homeland War Veterans and their Family Members provides that the First-Instance Medical Committee shall issue its opinion after examining the person [concerned] and the relevant medical and other documentation ...

As [G.B.] was not examined in person before the First-Instance Medical Committee and cannot be examined, the first-instance body shall, in the fresh set of proceedings, terminate the proceedings relying on section 54 of the Administrative Procedure Act.”

On 12 September 2006 the social services department of the Primorsko-Goranska County Office of State Administration (Ured državne uprave u Primorsko-goranskoj županiji, Služba za društvene djelatnosti; hereinafter “the County Office”), which meanwhile became competent to examine the case, terminated the proceedings concerning G.B.’s recognition as a disabled war veteran on the grounds that due to his death, certain relevant facts could no longer be established.

The applicant appealed against that decision. On 21 April 2007 the Ministry allowed the applicant’s appeal and reversed the decision of the County Office. The relevant part of the decision reads as follows:

“III: The deceased G.B ... is hereby recognised as a fourth category disabled Homeland War [veteran], with 80% damage to his body ... on the grounds that he contracted tuberculosis while defending the sovereignty of the Republic of Croatia.

G.B. is entitled to:

Personal disability benefit

Supplementary benefit

IV. The application for recognition of Homeland War [veteran] status on the grounds of psychosis is hereby denied.

The case file was submitted to the competent Second-Instance Medical Committee on appeal which, in its opinion ... of 1 March 2007 established 80% permanent damage to the body ...”

This decision was served on the applicant in June 2007.

On 30 September 2011 the Supreme Court (Vrhovni sud Republike Hrvatske), in a single-judge formation, found a violation of the applicant’s right to a trial within reasonable time concerning the proceedings before the administrative authorities and the Administrative Court and awarded her compensation in the amount of 10,500 Croatian kunas (HRK). The applicant did not lodge further appeal against this decision before a panel of judges of the Supreme Court.

On 2 July 2007 the applicant applied before the County Office for recognition as the family member of a fallen war veteran and family disability benefit.

On 4 July 2007 the County Office declared the applicant’s application inadmissible as lodged out of time. The relevant part of that decision reads as follows:

“Upon examining the case file it was established that the claimant lodged her application after the time-limit [set forth in] section 124 of the Act [on the Rights of Croatian Homeland War Veterans and their Family Members] had expired.

Section 124(2) of the Act [stipulates that] where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and ... disability benefit must be lodged within 12 months of the date of entry into force of the Act.

The Act entered into force on 1 January 2005, which means that the deadline for lodging the application expired on 31 December 2005.”

The applicant appealed against that decision. On 20 December 2007 the Ministry dismissed the applicant’s appeal, endorsing the reasoning of the first-instance administrative body. The relevant part of that decision reads as follows:

“Upon appeal, and after examining the case file, it was established that the [first-instance] decision is valid and had a basis in law.

That is to say, after examining the evidence in the case file, it was established that the claimant lodged her application ... on 2 July 2007, arguing that her father died from TB, and from the death certificate it is clear that he died on 19 December 1997.

... section 124(2) of the Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act (that is to say, on 31 December 2005 at latest).

As the claimant lodged her request on 2 July 2007, that is to say after the (preclusive) statutory time-limit, which cannot be prolonged upon a party’s request or of [the administrative body’s] own motion, and the appeal reasons do not influence the reasoning in this case, the appeal is hereby dismissed.”

The applicant challenged that decision before the Administrative Court, arguing that the decisions of the administrative bodies had been unfair and overly formalistic, effectively depriving her of her right to disability benefit. Specifically, she argued that the final decision on her father’s status had only been rendered on 21 April 2007 and had been served on her on 15 June 2007. In her view, she was only able to lodge her request after 15 June 2007, as an earlier request would have been premature and ill-founded.

On 17 June 2009 the Administrative Court dismissed the applicant’s action, endorsing the reasoning of the administrative bodies. The relevant part of that judgment reads as follows:

“... the claimant lodged her application ... on 2 July 2007. Section 124(2) of the ... Act stipulates that where a Homeland War veteran has, before the entry into force of the Act, died of illness directly caused by his defence of the sovereignty of the Republic of Croatia, applications for recognition of status and for disability benefit must be lodged within 12 months of the date of entry into force of the Act. As the Act entered into force on 1 January 2005 the application could have been lodged by 31 December 2005. It was not disputed that the claimant lodged her application on 2 July 2007, that is to say after the expiry of the time-limit stipulated in section 124(2) of the Act, and therefore this Court finds that the decision of the defendant body was well-founded. The claimant’s allegations in her administrative action are therefore ill-founded and irrelevant.

In addition, it is noted that the claimant took over proceedings from her late father ... However, they were separate proceedings establishing the claimant’s late father’s status as a disabled Homeland War veteran, and not the proceedings establishing the status of a family member of a fallen Homeland War veteran and the right to family disability benefit ...”

The applicant further lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) against that judgment. She reiterated her arguments from the administrative action, adding that the domestic authorities had spent ten years trying to establish her late father’s status, which could have only been used as the legal basis for her request after 15 June 2007. She also argued that her status was de facto recognised when she had been allowed to take over the proceedings after her late father, and that she was only lacking a declaratory recognition of her factual status.

On 3 December 2009 the Constitutional Court, endorsing the reasoning of the Administrative Court, declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant on 12 January 2010.


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1980 and is detained in Bezhetsk, Tver Region.

According to the indictment, on 15 October 2010 Ms K., who had not been previously known to the applicant, invited him and Mr A. to the apartment of Mr X. In the apartment they found Mr X. lying on the floor in a state of heavy alcoholic intoxication. For reasons which the investigation failed to ascertain, the applicant demanded X.’s passport, but the latter did not react to the demand in any way. Enraged by X.’s inaction, the applicant and Mr A. started violently kicking him in the shoulder, chest, stomach and legs until he stopped breathing. The applicant told Ms K., who witnessed the attack, to “forget everything” and gave her 100 Russian roubles (RUB) (2.5 euros (EUR)).

On 18 October 2010 Ms K., aged twenty-four at the time, was voluntarily hospitalised for treatment of alcohol-induced psychosis and seizures after she had an epileptic seizure on the street.

On 21 October 2010, while undergoing treatment, Ms K. was taken to an investigator for questioning. Prior to the interview, the investigator had received permission to interview Ms K. from the head doctor of the medical facility and satisfied herself as to the witness’s ability to testify, relying on the opinion of the doctor treating her. According to a medical certificate, Ms K. was “conscious, accessible for contact, answer[ed] questions following their direction” and had “no acute psychiatric disorders”.

According to the interview records, Ms K. alleged that on 11 October 2014 her encounter with Mr X. had resulted in a drinking spree, which had lasted several days until 14 or 15 October 2010, when Mr X. had refused to consume any more alcohol because he could no longer stand up. On the day of the attack, she had witnessed the applicant entering the apartment with Mr A. and immediately starting to violently kick Mr X., who had been lying on the floor. After an unsuccessful search for X.’s passport, they had resumed the attack and had kicked the victim about forty times until he died.

On 22 October 2010 the applicant and Mr A. were arrested and detained on suspicion of manslaughter. On the same day Mr A. confessed to manslaughter committed together with the applicant. On 29 October 2010 during questioning, he stated that the applicant’s insistence on obtaining X.’s passport had been induced by the desire to coerce the latter to sell his apartment and to share the proceeds.

In the course of questioning on 13 and 17 December 2010 the applicant admitted his presence in X.’s apartment during the attack, but denied any involvement in it. In his opinion Mr A. had committed perjury for an unknown reason.

The criminal case against the applicant and Mr A. was examined by the Tsentralniy District Court of Tver (Центральный районный суд г. Твери) (hereinafter “the District Court”).

On 17 January 2011 during a pre-trial hearing the District Court granted applications lodged by the applicant’s defence lawyer to have the medical records of Ms K. produced in court at trial.

On 24 January 2011 the District Court received extracts of Ms K.’s medical history provided by a regional psychiatric hospital. According to the medical records, she suffered from long-term alcohol abuse and had a tendency of having compulsive heavy drinking episodes. In October 2010, during the sixth hospitalisation since 2008, she had been hallucinating, anxious, aggressive, rude and unaware of the current date. When discharged from hospital in November 2010, the symptoms of withdrawal syndrome had receded and there were no signs of acute psychiatric disorders.

On 27 January 2011 the District Court received a certificate from a regional psychoneurology clinic. According to the certificate, in 2008 Ms K. had been diagnosed with an organic mental disorder of complex origin (perinatal and alcohol induced), hallucino-paranoid syndrome with mild personality changes, and alcohol-withdrawal symptoms.

On 2 and 8 February 2011 the District Court heard several prosecution witnesses, mostly relatives, neighbours and acquaintances of the persons involved. The witnesses either attested to the reputation or character of the victim and the accused, or provided hearsay and circumstantial evidence on the events prior and subsequent to the alleged crime. Ms K. was duly summoned to both hearings, but did not appear and provided no reasons for her absence.

On 10 February 2011 at the request of the defence the District Court issued a subpoena ordering the bailiffs to ensure Ms K.’s presence at the next hearing.

On 17 February 2011 the bailiffs submitted to the trial court a report that the witness could not be found at her place of residence and according to her mother “might be undergoing treatment” in a psychoneurology clinic.

On the same day the District Court examined a prosecution witness, Ms D., an investigator during the pre-trial stages of the proceedings. She testified to the circumstances of Ms K.’s interview on 21 October 2010 and her identification of the applicant, as well as to her psychological state and ability to give answers at the time. Ms D. stated that the witness had been “rational”, had given coherent testimony, had correctly recounted the events and, according to the doctor treating her at the time, had been capable of answering questions.

During the hearing the trial court was notified over the phone that the applicant had been undergoing in-patient treatment for alcohol dependency since 22 January 2011. The prosecutor’s request that Ms K.’s pre-trial statements be read out in court was denied and the hearing was adjourned until further information on the witness’s health had been received from the doctors.

On 18 February 2011 the psychoneurology clinic sent a letter to the District Court confirming the information previously submitted and stating that Ms K. was due to be discharged in early March 2011.

On the same day during the hearing, the prosecutor, referring to the above-mentioned letter, repeatedly requested that Ms K.’s pre-trial statements be read out in court on account of her in-patient treatment, the fact that her presence at trial could not be ensured, and because the date of her discharge from the clinic was unclear. The applicant’s defence lawyers objected, referring to Article 281 of the Code of Criminal Procedure, which proscribed the reading out of witness statements except in cases of “grave illness”. The District Court, without providing further reasons, allowed the reading out of the testimony with reference to Article 281 of the Code.

Between 24 February and 6 April 2011 the District Court held at least six further hearings. During those hearings the applicant and his coaccused were examined and essentially confirmed their conflicting pre-trial statements. The District Court also heard two character witnesses called by the defence, who attested to Mr A.’s bad reputation and speculated about his involvement in illegal activities. The trial court also considered the following documentary evidence presented by the prosecution: (a) crime scene inspection records; (b) the confession of Mr A. and verification records; (c) records of identification procedures; and (d) reports of the medical examiner and forensic experts on the victim’s injuries and the cause of death.

On 8 April 2011 during the closing argument the applicant’s defence lawyer, Mr V., argued that the statements of Ms K., which were “the only evidence”, could not qualify as eyewitness statements due to her state of mental health. He submitted that in the absence of a forensic psychiatric examination, it was impossible to rely on the testimony of a person suffering from an organic mental disorder and alcohol dependency. Her hospitalisation in a psychiatric facility in a delusional state and her interrogation less than one week after the alleged crime had made any testimony unreliable. He further stated that in any event, the reading out of her testimony had been unlawful under Article 281 of the Code of Criminal Procedure as interpreted by the Supreme Court of the Russian Federation, and in violation of the applicant’s right to examine witnesses under Article 6 § 3 (d) of the Convention. Accordingly, her testimony could not be used as evidence in the case against the applicant.

On 12 April 2011 the District Court convicted the applicant and Mr A. of manslaughter and sentenced them to ten and eight years’ imprisonment respectively in a high-security correctional facility. The District Court, confronted with the conflicting positions of the two coaccused, referred several times to Ms K.’s testimony as a significant, if not decisive, factor. In respect of the reliability of the testimony and its reading out, it stated:

“... The statements of Ms K. made during the pre-trial investigation were read out under Article 281 of the Code of Criminal Procedure ...

The court does not accept Mr Zadumov’s argument that [according to the medical records] the mental state of Ms K. casts doubt on her ability to correctly perceive and recount the events and that [her questioning during treatment in a psychoneurology facility] also casts doubt on the veracity and reliability of her testimony ...

The medical records referred to by the defence do not suggest that Ms K. has any psychiatric disorder. [Moreover, the available certificates state that she was accessible for contact, answered questions following their direction and had no acute psychiatric disorders. This fact is further confirmed by the testimony of Ms D., the investigator, given at trial.]

The court also considers that Ms K.’s statements are consistent with the confession of Mr A.”

The applicant’s defence lawyers lodged an appeal, restating among others their arguments concerning the reading out of Ms K.’s pre-trial statements.

On 3 June 2011 the Tver Regional Court (Тверской областной суд) upheld the judgment on appeal. In respect of Ms K.’s statements the Regional Court stated:

“... The involvement of Mr Zadumov [the applicant] in the committed crime is steadfastly confirmed by the testimony of Ms K.

[The appeal court] like the trial court finds no grounds to doubt the testimony of this witness, because it is coherent, detailed, logical and authentic.

[From] the information provided by Ms K. on the victim’s state before and after the infliction of bodily injuries by Mr A. and Mr Zadumov, the sequence of events is consistent with [expert evidence and the testimony of other witnesses and the co-accused].

Accordingly there are no reasons to consider that the witness could not correctly perceive or recount the events.

Moreover [her] mental state received consideration during the hearing. [According to the investigator’s statements she was rational, gave coherent testimony, correctly recounted the events, and according to her doctor was capable of answering questions.] ... [Therefore] the trial court reached a correct conclusion that this evidence was admissible.

[The appeal court] cannot consider justified the arguments of the defence that criminal procedure legislation had been breached by the reading out of Ms K.’s pretrial statements, [since her presence at hearings was impossible as she was undergoing treatment in a clinic].”


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

All applicants were former employees of “LETEKS” u stečaju (the debtor), which was, at the relevant time, a company predominantly comprised of socially-owned capital.

Since the debtor failed to fulfil its contractual obligations towards its employees, on an unspecified date, the applicants instituted civil proceedings against it.

On 18 April 2008 the Leskovac Municipal Court ordered the debtor to pay the applicants specified amounts on account of salary arrears, plus the costs and expenses of the civil proceedings.

On 3 October 2010 the above judgment became final.

Between 20 November 2008 and 30 November 2009 all applicants filed separate requests for the enforcement of the above judgment.

The Leskovac Municipal Court ultimately accepted the applicants’ requests and issued the enforcement orders, respectively. The essential information as to the enforcement proceedings in respect of each application is outlined in the Annex to this judgment.

On 25 January 2011 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtor (St. 47/2010).

The applicants duly submitted their respective claims.

On an unspecified date the applicants’ claims based on the judgment of 18 April 2008 were formally recognised.

The insolvency proceedings against the debtor are still ongoing.

On 31 March 2010, the applicants lodged a constitutional appeal.

On 8 July 2013 the Constitutional Court dismissed the appeal in respect of all applicants except the applicants Ms Jagoda Jančić (application no. 62499/10), Mr Predrag Stamenković (application no. 63100/10) and Ms Stana Stanković (application no. 63137/10).

On 18 September 2013 the Constitutional Court also found a violation of the right to a hearing within a reasonable time, in respect of Ms Jančić, Mr Stamenković and Ms Stanković. It further awarded each of them 500 euros (EUR) as just satisfaction for non-pecuniary damage and ordered the court in Leskovac to expedite the proceedings.


Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1967 and lives in Naples.

While he was in judicial separation proceedings from his wife (D.L.), a provisional residence order was issued to both parents in respect of the couple’s two children (G.L. and M.T.).

On 29 August 2007 the applicant asked the guardianship judge to issue him with a new passport, requesting that the name of his son, G.L., also be entered in it. His former wife objected, arguing that the applicant was not making the maintenance payments ordered by the president of the court at the time of the judicial separation.

By a decree of 18 September 2007, the guardianship judge rejected the applicant’s request, holding that it was inappropriate to issue the requested passport, given the imperative of protecting the children’s right to receive the maintenance payments. In this regard, he emphasised that the applicant, who was supposed to make a maintenance payment of 600 euros (EUR) per month, paid only a small amount (EUR 45 to 90) and that there was a risk that he would shirk his obligation completely if he were to travel abroad.

By a decision of 26 October 2007, the guardianship judge ordered that M.T.’s name be removed from the applicant’s passport.

On 31 October 2007 the Naples Police Commissioner (questore) ordered the applicant to hand in his passport to the police station and amended his identity card, making it invalid for foreign travel.

The applicant appealed to the Naples Court against the guardianship judge’s decision. He alleged that:

– under the measures ordered by the president of the court at the time of the judicial separation, the children had been due to spend the period of 10 to 26 August, during the school holidays, with him; on that basis, he had planned to take them to Sicily by plane; however, this required that the names of his two children be included in his passport;

– on account of his former wife’s objection and the guardianship judge’s decree, he and his children had been unable to go on holiday;

– the children’s names were included in the mother’s passport;

– the dismissal of his request amounted to a penalty that was not prescribed by law.

On 7 February 2008 the applicant asked the Naples guardianship judge to issue him with a new passport, explaining that his former wife had retained his identity card and his passport in the family home.

By a decree of 29 February 2008, the Naples guardianship judge dismissed the applicant’s request on the ground that he had not paid the maintenance sums due in respect of his children, and that it was to be feared that he was leaving the country only in order to evade his obligation entirely.

The applicant also appealed against that decision to the Naples Court, alleging a breach of his right to freedom of movement.

By a decision of 5 February 2009, the Naples Court joined the appeals and dismissed them. The court noted, firstly, that the legal basis for the guardianship judge’s decision was Law no. 1185 of 21 November 1967, as amended by the Passports Act 2003 (Law no. 3).

The court found that the guardianship judge did indeed have jurisdiction to rule on the applicant’s request for a passport and on the inclusion in it of his son’s name. As to the merits of the appeal, the court noted that the applicant was not complying with his obligation to pay maintenance and that this circumstance was one of the lawful grounds for refusing to issue a passport, in the children’s interests, in accordance with section 12 of the Passports Act.

On 4 November 2008 D.L. was ordered to pay a fine of EUR 100 for failing to bring the children to an appointment with the applicant.

By a decree of 8 April 2009, the guardianship judge issued D.L., at her request, with a passport in which the names of the two children were included.

On 21 August 2012 the applicant asked the Naples guardianship judge to issue individual passports to his children, in application of Legislative Decree no. 135 of 2009.

D.L. objected, arguing that the children did not need these passports; that the applicant had made no maintenance payments since 2007; and that, indeed, criminal proceedings were pending in that regard.

By a decision of 3 October 2012, the guardianship judge rejected the applicant’s request. He considered that the proceedings for the separation of the applicant and D.L. were still pending and that, in the light of the considerations put forward by D.L., with whom the children resided, it was appropriate to stay any issue of passports to the children. The applicant did not appeal against that decision.