CASE OF ALBERTINA CARVALHO E FILHOS LDA v. PORTUGAL

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant company has its registered office in Valongo, Portugal.

On 18 July 2005 the applicant company brought enforcement proceedings against M.C. before the Valongo Court, seeking payment of an alleged debt of 32,992.99 euros (EUR) plus EUR 18,413.35 in interest it considered to be due up to that date, amounting to a total sum of EUR 51,406. It also sought the payment of the interest accrued until the date of repayment of the debt in full.

On 12 October 2005 a judicial enforcement officer (agente de execução) was appointed to the case by the Valongo Court. He accepted this appointment on 13 October 2005.

M.C. was summoned on 20 November 2005 and on 14 December 2005 she lodged an application for proceedings for opposition to enforcement (oposição à execução). These proceedings were joined to the enforcement proceedings on 15 December 2005.

Between 15 December 2005 and 3 March 2016 information was exchanged between the Valongo Court and the judicial enforcement officer about the date on which M.C. had been summoned and the documents in that connection.

On 30 May 2006 the applicant company gave its reply to the opposition to enforcement proceedings.

Between 6 February 2007 and 15 August 2008 several procedural steps took place in the enforcement proceedings regarding the possible freezing of M.C.’s bank accounts.

In the meantime, on 22 February 2008, in the proceedings for opposition to enforcement the court had given a preparatory decision setting out the facts that had already been established and those that remained outstanding (despacho saneador).

On 29 November 2010 the applicant company’s lawyer withdrew from the case.

On 6 December 2010 the court requested that the judicial enforcement officer provide a report on the procedural steps taken (see paragraph 10 above).

On 14 January 2011 the court could not contact the applicant company at the address it had provided to the court.

On 16 December 2011 a hearing in the proceedings for opposition to enforcement was scheduled for 30 May 2012. For reasons related to the health of M.C.’s lawyer, the hearing was postponed to 27 November 2012. On an unknown date the hearing was postponed to 6 March 2013, the date on which it took place.

For unknown reasons, on 23 December 2011 the Chamber of Judicial Officers (Câmara dos Solicitadores) informed the Valongo Court that a new judicial enforcement officer was to be appointed.

On 3 January 2012 a new judicial enforcement officer was appointed to the enforcement proceedings.

On an unknown date before the 16 January 2012 another lawyer started representing the applicant company.

Between 25 September and 11 December 2012 discussions took place between the new judicial enforcement officer, the court and the previous judicial enforcement officer regarding the transmission of the necessary case documents from the previous judicial enforcement officer to the new one.

Between 9 April and 1 October 2013 correspondence took place between the new judicial enforcement officer and the court regarding the applicant company’s representation by a lawyer (whether it was represented in the case and by whom).

On 29 April 2013 the Valongo Court adopted a decision against the applicant company in the proceedings for opposition to enforcement.

On an unknown date before or during February 2014 the applicant company appealed against that decision to the Oporto Court of Appeal.

The Oporto Court of Appeal upheld the first-instance decision by a judgment adopted on 20 May 2014.

On an unknown date the applicant company appealed against that judgment to the Supreme Court of Justice. On 11 September 2014 that appeal was rejected by the Oporto Court of Appeal because the applicant company had not submitted any grounds of appeal. Following that decision, the enforcement proceedings were terminated.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

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


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The first applicant, Mr. H. Armellini, was born in 1961 and lives in Hard. The second applicant, Mr. F. Andres, was born in 1968 and lives in Bregenz. They are both journalists employed by the third applicant, Zeitungs- und Verlags GmbH, a limited liability company with its seat of business in Schwarzach. The applicant company publishes the regional newspaper Neue Voralberger Tageszeitung.

At the beginning of 2005 R.H., a German football referee, admitted to having participated in bet rigging (Wettbetrug) by manipulating football matches together with other persons, in particular the brothers F.S., M.S. and A.S.. R.H. told the police that he knew that football matches were also manipulated in Greece and Austria. As regards Austria, he referred to the football club Casino SW Bregenz, which still existed at the time of the events in 2005.

On 19 February 2005 an article written by the first and second applicants appeared in the Neue Voralberger Tageszeitung dealing with the German betting scandal’s links to Bregenz.

On the front page the headline, printed in a black box in white, read as follows: “Bregenz players bribed with 60,000 euros (EUR)” (“BregenzSpieler mit 60.000 € bestochen”). Below that headline, and still in the black box, were photographs of A.T., D.G. and A.I. and in a yellow box the phrase: “The investigators are at the heels of this trio: They may have manipulated matches for the betting-mafia!” (“Diesem Trio sind die Fahnder auf den Fersen: Es soll für Wett-Mafia Spiele manipuliert haben!”). In the upper left corner, a little box contained the following phrase: “Terrible suspicion against football pros confirmed:” (“Schlimmer Vedacht gegen Fussball-Profis erhärtet:”).

The main article on this subject, written by the first and second applicants, appeared on page 29. The headline read as follows: “Sold and betrayed the team for EUR 60,000?” (“Für 60,000 € Team verkauft und verraten?”). The article stated that the three football players had been bribed by the betting-mafia with EUR 60,000 for three matches. Bets for these Casino SW Bregenz matches had been placed in the Stuttgart area (Germany). In one match, which had ended with the result of 2:5 against Casino SW Bregenz, the goal-keeper, A.T., had made serious mistakes, as expected, and another player, A.I. had been replaced because of his poor performance. D.G. had also been playing in that match. The reason for the manipulations was the players’ financial difficulties: they had not received their salary for months. They had all signed a public statement prepared by the management of the club, denying their involvement in the betting scandal.

On the following page there was an article under the headline “A 5:2 result shocks a second time!” (“Ein 5:2 schockt ein zweites Mal!”) in which a football match of November 2004 was reviewed again and it was hinted that the poor performance of some of the players was connected to the betting-scandal.

On 15 March 2005 A.T., D.G. and A.I. filed a private prosecution (Privatanklage) against the applicants before the Feldkirch Regional Court. They argued that the accusation raised in the article published by the applicant company in its newspaper on 19 February 2005, that they had accepted bribes and manipulated football matches, was particularly serious for a professional football player and his professional reputation. This accusation, which was untrue, constituted defamation and they requested the court to convict the first and second applicants of this offence. They indicated in particular the following passages of the article as defamatory:

(i) “Terrible suspicion against football-pros confirmed: Bregenz players bribed with EUR 60,000” (“Schlimmer Vedacht gegen Fussball-Profis erhärtet: Bregenz-Spieler mit 60,000 € bestochen”);

(ii) “Sold and betrayed the team for 60,000 EUR?” (“Für 60,000 € Team verkauft und verraten?”);

(iii) Bregenz players A.T., D.G. and A.I. were bribed 60,000 EUR for their team to lose three matches. (“Die Bregenz-Spieler A.T., D.G., und A.I. sollen bestochen worden sein. 60,000 €, damit ihr Team drei Spiele verliert.”);

(iv) (Regarding the third plaintiff. A.T.) “A.T. had made contact with the Croatian betting-mafia.” (“Den Kontakt zur kroatischen Wettmafia soll A.T. hergestellt haben.”).

They also claimed compensation from the applicant company for the harm caused and requested that the judgment be published in its newspaper.

On 21 March 2005 the Feldkirch Regional Court ordered the applicant company to publish within five days a short piece (kurze Mitteilung) on the institution of criminal proceedings for defamation in respect of the article at issue.

On 8 April 2005 the applicants commented on the charges against them. They argued that they had only voiced a suspicion against the plaintiffs but that in any event their statements were true or, at least, the first and second applicants had had good reason to believe that they were true, which would rule out punishment.

Between 26 April 2005 and 13 December 2005 the Regional Court held four hearings in the case in which it heard several witnesses, inter alia, K.E., a freelance journalist working for the third applicant’s newspaper and who had contacted two informants who had wished to remain anonymous, and R.H. (see above). R.H. spoke about his contacts with the S. brothers since May 2004 and stated that one of them, F.S., had contacts in Austria, in particular the football club Casino SW Bregenz. In his opinion two players of that team were in contact with F.S., but he did not give any names or other details.

On 13 December 2005 the Regional Court found that the incriminated statements from the article of 19 February 2005 amounted to defamation, convicted the first and second applicants of that offence and sentenced them to a fine of EUR 3,680 and EUR 5,040 respectively, suspended on probation for a probationary period of three years. It ordered the applicant company to pay compensation of EUR 20,000 to each plaintiff and to publish an extract of the present judgment in its newspaper.

As regards the impugned article, the Regional Court paid particular attention to its visual appearance which, through its layout and presentation, in particular the printing in white in a large black box, conveyed to the reader the impression that the investigators were about to catch the pictured persons, who had filled their pockets with money by using dirty tricks. That first impression was not mitigated by the small reference to a suspicion in the upper left corner. The same was true for the headline on page 29 which read: “Sold and betrayed the team for EUR 60,000?”. This was a leading question which already contained the answer, and again that first impression could hardly be mitigated by the use of the subjunctive in some phrases of the article itself. The court therefore concluded that, seen as a whole, the article created the impression of being a statement of facts about the scandal and not a genuine expression of a suspicion.

The Regional Court therefore examined whether the accused had acted with due journalistic diligence when they considered these statements as true, or if they could prove their veracity. As regards the first element, the Regional Court accepted that there was a public interest in being informed on the question of whether or not players of the Casino SW Bregenz team had actually been involved in a betting scandal, but found that the first and second applicants had not acted with sufficient professional diligence. They had not personally conducted any research to verify the well-foundedness of the rumours but had merely relied on the research of K.E., a freelance collaborator with the newspaper, and had not checked the reliability of the sources - anonymous informants not known to them. Furthermore, they had not given A.T., D.G. and A.I. an opportunity to react even though there had been important new elements going beyond a general suspicion of involvement in the betting scandal to which they had already reacted in the past, namely that they had received a specific amount, EUR 60,000, for manipulating three football matches in the summer of 2005.

Turning to the proof of truth put forward by the applicants, the Regional Court observed that D.G. and A.I. had only been accused by K.E.’s two informants, X and Y, of being involved in the betting scandal, and these informants had not given any details nor stated that they themselves had witnessed a transaction. Also R.H., when heard by the court, did not refer to them directly or indirectly. There was clearly no proof of the truth.

As regards A.T., the Regional Court observed that he had lied when he stated that he did not know F.S., that F.S. had repeatedly visited Bregenz and that there had been football matches in which that player had given a very poor performance. Also the informants X and Y had stated that A.T. was involved in the betting scandal. These were arguments speaking in favour of his involvement in the betting scandal, but there were also arguments speaking against. It was understandable that A.T. had not admitted to knowing F.S. immediately, when all kinds of suspicions were discussed in connection with the betting scandal, as F.S. was one of the principal persons involved in that scandal. Furthermore, there was only evidence that F.S. had visited Bregenz on various occasions between autumn 2003 and May 2004, whereas the football match which, in the eyes of the authors of the article, was particularly suspicious had taken place in November 2004. According to the information given by X and Y, F.S. had paid the three accused football players EUR 60,000 in summer 2004 for three matches which had not yet taken place. That did not coincide with his habits as described in detail by R.H. Lastly, the amount claimed by X and Y, namely EUR 60,000, was not plausible, given that Casino SW Bregenz had been at the very end of the national football league table in Austria throughout the season of 2004/2005 and the quota for bets on that team losing a match would have been so small that it would not have justified the investment of a considerable sum.

Weighing all these elements, the Regional Court concluded that the applicants had not succeeded in proving the truth of the statements made in the impugned article. As regards the compensation under Section 6 of the Media Act, the Regional Court found that the particular seriousness of the accusations raised, and the adverse effect they could have on the career of a professional footballer, justified the sum of compensation granted.

On 26 January 2006 the applicants appealed against this judgment. They argued that the impugned article did not contain a statement of fact but merely a suspicion against A.T., D.G. and A.I. Moreover, the first and second applicants had fully complied with journalistic ethics. As K.E. and the applicants had acted as a team, there was no need to check further the information received and at that stage of the investigations there had also been no need to give the plaintiffs an opportunity to react to the information to be published.

On 6 April 2006 the Innsbruck Court of Appeal dismissed the appeal of the first and second applicants, but partially granted the appeal of the applicant company and reduced the amount of compensation to EUR 12,000 for each plaintiff. It found that the Regional Court had carefully weighed the arguments and had arrived at a correct and well-reasoned judgment. It agreed with the Regional Court that the first and second applicants had not reported on a mere suspicion but had presented their allegations as facts which they had failed to prove.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1953 and lives in Matosinhos (Portugal).

On 3 June 2005 the Ethics Council of Porto (Conselho Deontológico do Porto) of the Portuguese Bar Association (Ordem dos Advogados) instituted disciplinary proceedings against the applicant, following a complaint introduced by a client for breach of professional secrecy on 29 May 2002.

On 4 March 2011 the case was dismissed on the ground that the facts had already been subject to a decision in 2009, which had been dropped as time-barred.


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

The applicants complained of the inadequate conditions of their detention. In applications nos. 44497/17 and 60480/17 the applicants also raised complaints under Article 13 of the Convention.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Eritrea)

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

The applicant is an Eritrean national and was born in 1990. He grew up in Eritrea and currently lives in Switzerland.

The applicant entered Switzerland illegally on 23 June 2014 and applied for asylum the next day. He was heard in person three times by the Swiss authorities responsible for asylum and migration (until 31 December 2014 the Bundesamt für Migration, renamed with effect from 1 January 2015 as the Staatssekretariat für Migration, SEM – hereafter “the State Secretariat for Migration”). During all three hearings an interpreter was present and the record was translated for the applicant prior to his signing it.

The first hearing was a summary interview at the Centre for Reception and Procedure (Empfangs- und Verfahrenszentrum) in Kreuzlingen on 1 July 2014. The applicant stated that he had not been allowed to continue at school beyond the eighth grade because he had failed the national admission exams for secondary school, and had been summoned for military service, which he had tried to avoid. Once he had reported for duty, he had tried to escape but had been caught. He stated that he had been beaten and subsequently imprisoned in Wi’a in conditions of very poor hygiene. He was unable to recall the exact dates of his imprisonment, but stated that he had been imprisoned from June 2012 to September 2013. He had managed to escape from prison one night when the guards were asleep. After staying in Eritrea for one more week, he had left the country on foot on 3 October 2013, crossing the border at Mereb. He had been picked up by Ethiopian soldiers the next day.

In order to support his account, the applicant submitted copies of his student card and a card showing that he was a church deacon, as well as the original of a card used for food distribution in Italy. He stated that he had been issued with an identity card in Eritrea in 2010, but had had to hand it in in Ethiopia. The applicant further stated that he was married and had a son born in October 2012.

The second, more detailed, hearing took place at the office of the State Secretariat for Migration in Berne on 11 March 2015. A member of a non-governmental organisation was present as a neutral witness, in order to guarantee the fairness of the hearing. He had the opportunity to add comments at the end of the record of the hearing in the event that he had witnessed any irregularities, but did not note down any such observations.

The applicant again gave an account of the alleged events in Eritrea leading up to his escape. This time he stated that he had been imprisoned in Wi’a from March to October 2013 following his attempt to escape from the military. When confronted with the discrepancy in comparison with his previous account in that regard, he stated that he might have made a mistake in the first interview. When asked about the conditions of his detention, the applicant claimed that it had been very dirty and very hot, and that he had been locked up all the time. Other than beatings suffered due to his attempt to escape, there had been no particular incidents. He did not recall any rules other than fixed meal times and being brought outside in the mornings and evenings to relieve himself.

When asked about his military training, the applicant claimed that he had only been there for a very brief period of time prior to his attempted escape. He had not learned how to use weapons. He could neither provide a name of his superior nor his unit nor his military number.

When questioned about his departure from Eritrea, the applicant described leaving A. (a village) on foot at around 6 p.m., together with a person living in the neighbourhood who knew the area. They had walked towards Mereb, but had lost their way as it was night-time. They had been very afraid and also hungry and thirsty. There were lots of thorn bushes in their way and they had heard the howling of hyenas. They had not been sure whether they had reached Ethiopian territory until soldiers who spoke Amharic had apprehended them at around 3 a.m. When informed by the interviewer that his account in relation to his departure might not be considered credible, which would result in the conclusion that he had left the country legally, the applicant said that he could not give more details about the departure because he did not know the area well and had been following the person with whom he had fled.

The applicant claimed that he had always been in good health.

In order to support his account, the applicant submitted the originals of his marriage certificate of 2010 and his son’s baptism certificate of 2012, as well as an attestation that he was a church deacon. He claimed that these documents had been sent to him from Eritrea.

The applicant was heard for a third time by the State Secretariat for Migration on 29 January 2016. Again, a member of a non-governmental organisation was present as a neutral witness, who did not note down any observations relating to irregularities.

The interviewer explicitly advised the applicant that the interview was taking place to give him another opportunity to describe his departure from Eritrea, and that the account he had so far provided in this regard would probably be dismissed as not credible, which would result in the conclusion that he had left the country legally.

The applicant responded that he had spent two days at his parents’ home in A. after escaping from prison. His family had contacted a people smuggler from the Mereb area. He and the smuggler had left A. on foot at around 6 p.m. When confronted with his previous account that he had left with a person from the neighbourhood, the applicant clarified that the person he had travelled with (the smuggler) came from a neighbouring village. During the night the smuggler had told him that he had taken many people across the border, but that he and the applicant had already been walking for too long a time, which meant that they must have lost their way. They had become disorientated and had only realised that they had crossed the border when they had been apprehended by Ethiopian soldiers at around 4 a.m. who had spoken to them in Amharic.

On 8 March 2016 the State Secretariat for Migration rejected the applicant’s asylum request and ordered his departure from Switzerland. It found that his account was not credible, and concluded that, having failed to prove or credibly demonstrate his refugee status pursuant to section 7 of the Asylum Act, the applicant was not a refugee as defined in section 3 of the Asylum Act.

The State Secretariat for Migration pointed out that the applicant had stated in the first hearing that he had been detained for a period of one year and three months, from June 2012 to September 2013, whereas in the second hearing he had said that he had been detained for seven months, from March to October 2013. It added that the applicant had also contradicted himself a number of times in the second hearing in relation to the commencement of his military training and the end of his schooling. Furthermore, his account as regards his time in prison and his escape from prison lacked substance, and he could not provide details as to what he had learned during his military training.

The State Secretariat for Migration also found that the applicant’s submissions regarding his illegal exit from Eritrea were not credible. Despite being asked several times to provide a detailed account of his departure or specific events in that connection, the applicant’s statement in that regard was superficial and limited to phrases. The State Secretariat for Migration argued that, particularly in relation to the hours during which the applicant and the smuggler had lost their way, it could legitimately be expected that the applicant would provide a substantiated account, which he had failed to do. Nor had he provided a consistent account in that regard. Moreover, he had made contradictory statements as to how long he had stayed at home between escaping from prison and leaving the country.

On 14 April 2016 the applicant lodged an appeal against that decision before the Federal Administrative Court. He submitted that the authorities had initially refrained from drafting him because of his role as a deacon – the fact that he was a deacon not having been contested by the asylum authority. He referred to a report of the European Asylum Support Office (EASO), which stated that the relevant authorities had, at times, deferred the draft of clerics, until a change in practice in 2010 had led to a stricter approach (see paragraph 49 below). The applicant submitted that he had had to undergo his military training in Wi’a, a place to which, according to a report by the US Department of State (see paragraph 51), students with poor grades were typically assigned. Shortly after reporting for duty, he had attempted to escape. He had been caught and, as a result, detained in March 2013. He had managed to escape from detention in September 2013 after seven months. Fearing that he would be detained once again or forced to perform military service, he had decided in early October 2013 to leave the country illegally. His family had organised a smuggler. They had fled during the night and, while attempting to cross the border at Mereb, had lost their way. They had been apprehended by Ethiopian soldiers early in the morning of 4 October 2013 and taken to Endabaguna. One week later, they had been transferred to the Hitsas refugee camp.

With regard to the alleged discrepancies relating to his schooling, the applicant submitted that he had difficulties with dates concerning the duration of his schooling and his age when he had started and left school, but emphasised that he had consistently stated that he had left school after eighth grade, having failed the exams to move on to secondary school, and referred to a report by EASO regarding the national examination at the end of eighth grade (see paragraph 49 below). Also, during the hearing he had corrected himself in relation to the commencement of his military training. Furthermore, it was comprehensible that he could not give a detailed account about things which he had learned during that training, given that he had attempted to escape almost immediately after reporting for duty.

The applicant claimed that the discrepancies between his statements in the first and the second hearings concerning the duration of his detention were due to his poor level of education. He emphasised that his statements as regards the time of the end of his detention, September 2013, were consistent. In relation to the conditions of detention, he argued that the account he had given to the asylum authorities very much reflected his personal experiences: he had stated that the prison had been dirty, that it had been very hot, that detainees had had lice, that there had been fixed meal times, and that he had been taken outside in the mornings and evenings to relieve himself. In light of this monotonous pattern, the mistake, if any, had been on the part of the interviewer, who had asked for a description of specific events. In that regard, the applicant argued that his account that he had been beaten with a wooden stick and kicked while lying on the ground in front of everyone as punishment related to a specific personal event. He emphasised that the interviewer had not questioned him about his scars, which he alleged were the result of that incident, or about specific events surrounding his escape from prison, pointing out that the latter issue had been raised by the representative of the non-governmental organisation who had been present as a neutral witness at the second hearing. As to the time between his escape from prison and his departure from Eritrea, the applicant argued that his first statement that he had left Eritrea one week after escaping from prison, and his second statement that he had spent two days at his parents’ home in A. during that time, were not contradictory.

With regard to the circumstances of his departure from Eritrea, he emphasised that his account had been consistent as regards the time when he and the smuggler had left the village and when they had been apprehended by Ethiopian soldiers. It was only logical that he could not make detailed statements about the area, as he had no knowledge of that area and had fled during the night. His most prominent memory related to the fears he had experienced when they lost their way. He could also recall the exact words in Amharic used by the Ethiopian soldiers when they had been apprehended. His account, which revolved around feelings of thirst, hunger and fear, and which mentioned the many thorn bushes in their way and the howling of hyenas, corresponded to his young age and poor level of education. Moreover, the State Secretariat for Migration had wrongfully concluded that there was a contradiction in his statements concerning the smuggler’s reaction when they had lost their way.

Lastly, the applicant submitted that he did not belong to any of the groups of people who could possibly obtain a visa to exit Eritrea. Referring to a letter from UNHCR – the original of which he presented – stating that he was registered in the Hitsas refugee camp in Ethiopia on 8 November 2013, and to the fact that crossing the border to enter Ethiopia by land was always unlawful (see paragraph 49 below), he argued that he had proved his illegal exit from Eritrea.

In conclusion, the applicant argued that he was a refugee as defined in section 3 of the Asylum Act, on account of his fear of ill-treatment for having deserted from military service. In the alternative, he claimed to qualify for temporary admission because of “subjective post-flight grounds” (as set out in section 54 of the Asylum Act), notably his illegal exit from Eritrea and his asylum application in Switzerland. Further, in the alternative, he alleged that his removal to Eritrea was neither permitted in the light of Article 3 of the Convention nor reasonable, entitling him to temporary admission to Switzerland.

On 9 May 2016 the Federal Administrative Court rejected the applicant’s appeal, finding that he had failed to credibly demonstrate his asylum claim. It noted that it was not apparent why the applicant’s age – he was 24 years old at the time of his interviews – or level of education should lead to different conclusions as to the credibility of his account, and considered that his two statements concerning the end of his schooling, either in 2005/2006 or 2007/2008, could not be reconciled with each other or with his student identity card, which indicated that he was a student in 2010. The court also considered that the applicant’s statements regarding the time and content of his military training lacked substance. It commented that, even if the applicant had left the military shortly after reporting for duty, he could be expected to provide a detailed and specific account of it, given that he merely had to talk about something which he had experienced in person. Viewing the duration and dates of the applicant’s detention as key elements of his asylum claim, the court noted that a discrepancy of eight months as regards the duration, and the different dates given in the first two hearings as regards the end of the detention, constituted fundamental contradictions which could not be resolved by his references to conditions of poor hygiene and being let outside twice a day to relieve himself.

Referring to its judgment in an earlier case concerning Eritrea, the court reiterated that the only way to exit Eritrea legally was with a valid passport and an additional exit visa, and that the practice concerning the issuance of an exit visa was very restrictive. They were issued to a few people who were considered loyal, in exchange for payment of significant sums. As a rule, children aged 11 or more, men under the age of 54, and women under the age of 47, were not granted exit visas. People attempting to leave the country without authorisation risked their life, as the border guards were under orders to prevent attempts to flee by way of targeted shots (a “shoot to kill” policy), in addition to imposing punishment as set out by law. The Eritrean Government viewed illegal exits as an indication of political opposition, and tried to get both the reduction in defence readiness and the mass exodus under control through draconian measures.

The Federal Administrative Court noted that finding that the applicant had concealed the true circumstances of his departure was not in itself sufficient to conclude that he had left the country legally. However, the burden of proof did not shift to the authorities, and the applicant was required to provide a substantiated and consistent account concerning the reasons for and circumstances of his departure. Considering that his account given at first-instance level was not credible, which also raised doubts about his overall credibility, and that he had not provided comprehensible explanations in his submissions on appeal, the court found that the applicant had failed to credibly demonstrate that he had left Eritrea illegally.

The Federal Administrative Court added that the applicant could not rely on the letter from UNHCR stating that he was registered in the Hitsas refugee camp in November 2013, since the conditions in Ethiopian refugee camps were chaotic and, in the case of people of Eritrean origin, there was no comprehensive assessment of whether they faced persecution at the time they were registered in those camps. This was supported by the wording of the registration, which read that it constituted a recognition prima facie that the applicant was a refugee within the mandate of UNHCR.

Furthermore, the court found that the applicant’s removal was possible, permitted and reasonable within the meaning of section 83(1)-(4) of the Aliens Act. In particular, the applicant was a young man in good health who had a support network in his hometown, notably his wife and their son, who lived in the same house as his parents.

On 19 May 2016 the State Secretariat for Migration set a deadline for the applicant’s voluntary departure, which passed on 17 July 2016.


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1973 and lives in Bibice.

In 1997 the applicant married E. In 2004 their daughter, N., was born. In 2008 the applicant and E. separated. In May 2008 the applicant moved out of the family home.

After the separation, the applicant and E. agreed on access arrangements (every second weekend, one day during the week, and the winter and summer holidays).

On 16 January 2009 the applicant lodged a divorce petition with the Kraków Regional Court (Sąd Okręgowy) together with an application for an interim contact order.

On 26 February 2009 the Regional Court ordered a local assessment (wywiad środowiskowy) to be conducted at the mother’s home by a courtappointed guardian with a view to establishing N.’s situation and the parenting skills of the mother and father. The guardian submitted her report on 21 July 2009. The guardian established that N. loved both parents but was more attached to the mother. The applicant had frequent contact with his daughter. However, the parents were in conflict with each other and had negative feelings about each other. The applicant had authorised M.T., his new partner, to collect N. from the nursery, which was a source of great conflict between the parents. The guardian concluded that the access arrangements should be speedily determined by the court in order to minimise the negative consequences of the divorce on N. The child should stay with the mother and the father should be allowed frequent visits. He should, however, inform the mother of the child’s whereabouts as he had taken N. abroad without the mother’s knowledge.

A hearing scheduled for 17 February 2010 did not take place as the case file had not been returned from the Court of Appeal (where maintenance proceedings had taken place) and because the applicant had been in pre-trial detention in connection with a corruption case against him.

On 2 June 2009 and 14 October 2010 the applicant again applied for interim contact orders, specifying different arrangements. On 18 November 2010 the mother replied, setting out her own request for contact arrangements.

In summer 2010 the applicant moved in with M.T. and in September 2010 a son was born.

On 22 November 2010 the Kraków Regional Court issued an interim contact order. It decided that the applicant was allowed to see his daughter every second weekend between 3 p.m. on Friday and 5 p.m. on Sunday, and also between 3 p.m. on Tuesday and 3 p.m. on Wednesday. In addition, he could spend every second Christmas Eve, every Christmas Day and every Easter Sunday with her. The applicant was allowed to take N. for the first week of the winter school holidays and between 1 and 21 July of the summer holidays.

On 21 January 2011 the Kraków Regional Court issued a writ of execution in respect of that decision.

On 17 May 2011 E. asked the court to restrict contact between the applicant and N. owing to the child’s fragile emotional condition. N. had therapy with a psychologist between April 2011 and February 2012.

A hearing scheduled for 22 March 2011 was adjourned after the applicant lodged an application for the judge to step down. That application was dismissed on 29 March 2011. A further appeal by the applicant was dismissed on 7 September 2011.

On 20 May 2011 the psychologist treating N. suggested a change in the contact order so that N. would not have to stay overnight at the applicant’s house, as that was apparently causing her a lot of stress.

On 13 July 2011 the Kraków Regional Court ordered another local assessment. The guardian submitted her report on 16 December 2011. She established that contact visits with N. had taken place as agreed by the parents after their separation, with the exception of the period between January-May 2010 (when the applicant had been detained on remand on corruption charges). Contact meetings had resumed in May 2010 and had continued regularly until November 2010. Subsequently, after the court had begun supervising the contact visits, the conflict between the parents had escalated. The mother had been of the opinion that the applicant had wanted the contact meetings to take place regardless of the child’s needs and her after-school activities (ice skating practice). On the other hand, the father was convinced that the practice schedule had been manipulated by the mother so that it took place during his contact visits. As of 17 December 2011, the contact visits had not taken place according to the interim contact order. The applicant saw his daughter on her birthday and on a few occasions after school.

On 2 January 2012 the guardian submitted a supplementary report to the court. She noted that N. did not enjoy the way the contact with the applicant was taking place. She did not mind seeing him more often than scheduled, but she did not want to stay overnight at his house.

On 11 January 2012 a hearing took place during which the applicant and E. agreed on access arrangements. On the same day, the Kraków Regional Court issued a divorce decree. The court ordered that in the period up to 30 June 2012 the applicant could see his daughter every Thursday between 3 p.m. and 7 p.m.; every second Saturday and Sunday between 11 a.m. and 7 p.m.; as well as on Easter Sunday between 11 a.m. and 7 p.m. From 1 July 2012, the applicant could see his daughter every second weekend from 3 p.m. on Friday until 5 p.m. on Sunday; every Wednesday from 3 p.m. until Thursday 3 p.m.; for the whole of the period between 1 and 21 July; the first week of the winter holidays; the first day of Easter; and on Christmas Day.

On 5 March 2012 the applicant appealed. On 31 July 2012 the Kraków Court of Appeal upheld the first-instance judgment.

On 14 and 20 December 2010 and on 17 January 2011 the applicant complained to the court that the mother had refused to comply with the access arrangements.

On 7 March 2011 the applicant lodged two applications for the court to impose a fine on the mother for failing to comply with the interim contact order of 22 November 2010.

The applicant subsequently lodged three applications on 15 April 2011, three on 28 April 2011 and four on 18 May 2011.

The court scheduled a hearing for 27 May 2011. However, E. failed to appear on that date (she was on leave to take care of her sick child).

The applicant lodged numerous further applications for the court to impose fines on E. In particular, he lodged two applications on 1 June 2011, two on 7 June 2011, four on 24 June 2011, three on 25 July 2011, three on 8 August 2011 and one on 23 August 2011.

The next hearing took place on 31 August 2011.

At a further hearing held on 28 October 2011, with reference to the applicant’s motion of 7 March 2011, the Kraków-Krowodrza District Court ordered the mother to comply with the interim contact order within two weeks on pain of a fine of 1,000 Polish zlotys (PLN). On 30 December 2011 the Kraków Regional Court dismissed an appeal by E. against that decision.

The applicant made further requests to the court to impose fines on E.: on 1 February 2012, 20 February 2012, 20 March 2012, 3 April 2012 (six motions); 24 April 2012 (two motions); and on 21 May 2012 (three motions).

On 8 March 2012 the Kraków-Krowodrza District Court severed to a separate set of proceedings the applicant’s application of 23 August 2011 (see paragraph 26 above). It was subsequently dismissed on 18 April 2012. Upon further appeal, the Kraków Regional Court quashed that decision on 30 July 2012. On 3 September 2012 the proceedings were further severed and the part concerning the applicant’s application of 23 August 2011 was assigned a new case number. It was subsequently transferred to KrakówNowa Huta District Court on account of a change of address by E. The proceedings were eventually discontinued on 24 April 2013.

On 15 March 2012, in reply to the applicant’s claim of 7 March 2011, the District Court imposed a fine of PLN 1,000 on E. (which she subsequently paid). It further ordered her to comply with the interim contact order within two weeks, on pain of another fine of PLN 1,000.

On 24 April 2012 a court-appointed guardian submitted a report to the court on arrangements for the applicant’s contact with his daughter. She observed that contact visits were not taking place in accordance with the contact order. N. sometimes met the applicant on Tuesdays after school, staying with him until about 3-4 p.m. She further noted that while N. did not want to stay overnight at the applicant’s home, she did not mind seeing him more often after school during the week. The guardian suggested that the parents and the child undergo an assessment at the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“the RODK”).

On 8 August 2012 the court imposed another fine of 1,000 PLN on E. However, on 22 November 2012 the Kraków District Court discontinued the proceedings on the grounds that the interim contact order of 22 November 2010 was no longer in force.

The court-appointed guardian submitted two reports to the Kraków District Court, dated 20 and 29 October 2012. She noted in the reports that the contact arrangements set out in the latest interim contact order were not being enforced. From May 2012 the father had only been able to see his daughter for a few minutes at occasional meetings. In the guardian’s opinion, the father was ready and able to take care of his daughter and organise interesting activities for their meetings. However, when questioned by the guardian, N. had been unenthusiastic about seeing her father and had said only negative things about him. The guardian concluded that a family assessment at the RODK was required.

Meanwhile, the applicant lodged numerous applications for a forcible removal of N. for various visits (in May, July and August 2012, and in February 2013). The Kraków District Court issued orders for a forcible removal of the child by the guardian on 15 May 2012 (for 1 July 2012), on 13 December 2012 (for 23 December 2012) and on 6 March 2013. In the latter decision, the court stressed that under no circumstances should physical force be used when collecting N. as that would be against her best interests.

On the first occasion, the guardian found that E. was not living at the address she had submitted to the court and he was therefore unable to collect the applicant’s daughter. On the two later occasions, the guardian tried to mediate between the parents and talk to the child in order to make her change her mind, but the child refused to go with the father.

During the divorce proceedings, both the applicant and E. asked the police to intervene on several occasions. In particular, on 3 September 2011 the applicant arrived at E.’s home to collect N. However, N. was crying and refused to go with him. E. called the police because the applicant was allegedly behaving in an aggressive manner. On 25 October 2011 the police again intervened at E.’s home. On that occasion, E. refused to allow the applicant to take N. for a court-scheduled contact visit as the child was allegedly afraid of him.

On 20 February 2012 the applicant complained to the Kraków-Nowa Huta District Court that the mother had failed to comply with the interim contact order and asked the court to order her to give an undertaking related to her behaviour (odebranie przyrzeczenia określonego zachowania).

A hearing planned for 25 April 2012 was adjourned owing to the absence of both parents. The following hearings took place on 20 July 2012 and 23 August 2012.

On 23 August 2012 the Kraków-Nowa Huta District Court dismissed the applicant’s application because the interim contact order was no longer in force. That decision was quashed on appeal on 30 January 2013. The Kraków Regional Court held that the District Court had focused on the application to fine E. and had failed to consider the applicant’s other requests.

On 28 February 2013 the Kraków-Nowa Huta District Court again discontinued the proceedings relating to the applicant’s application to impose a fine on the mother because the interim contact order was no longer in force after the divorce judgment had become final. As of the date of the submission of the Government’s observations to the Court, the remainder of the applicant’s request (proceedings for the mother to give an undertaking) was still pending.

On 9 August 2012 E. applied for a change of the access arrangements which were specified in the divorce judgment. She submitted that N. did not want to stay overnight at the applicant’s house.

On 1 October 2012 the Kraków-Nowa Huta District Court issued an interim contact order and allowed E.’s request. The court ruled that the applicant could meet his daughter every other Sunday between 2 p.m. and 6 p.m. The court held that the modification of the access arrangements was in the best interests of the child at that moment and that it was essential to rebuild the emotional ties between N. and the applicant.

On 2 October 2012 the court ordered another local assessment and an examination of the parents and the child by the RODK experts.

On 3 December 2012 a psychologist submitted his opinion to the court. The expert stated that the weakening of the emotional bond between the applicant and N. had been caused by a series of events. Those were, in particular, the applicant’s arrest in N.’s presence and his subsequent detention on remand; the applicant’s new relationship and new child; the applicant’s attempt to enforce the contact order, without any regard to N.’s needs; and the escalation in the conflict between E. and the applicant. The expert concluded that family therapy was needed in order for family ties to be re-established. In addition, changes to contact arrangements, such as an increased frequency of visits, were not in the child’s best interests at that time.

At a hearing held on 10 December 2012, the applicant informed the court that the day before, when he had arrived to see his daughter, she had not wanted to go with him. Apparently, N. had gone outside to talk to the applicant but when she had seen M.T. (his new partner) she had returned home crying and had refused to go with her father. In reply to a question from the court whether he would participate in family therapy, the applicant stated that he would have to think about it, as in his view the problems with enforcing the contact arrangements were the mother’s fault.

On 11 January 2013 the Kraków Regional Court allowed the applicant’s appeal against the interim order of 1 October 2012. It considered that the access arrangements specified in the District Court’s contact order had gone beyond what the mother had requested in her application.

On 1 March 2013 the RODK submitted its opinion to the court. Firstly, the experts observed that both parents loved N. and were able to attend to her needs. The father was determined to have a place in her life and play an important role. The mother had not been right to cut off contact between N. and her father. While she claimed that she had not obstructed the contact arrangements, she was not aware that her passive approach and clear animosity towards her ex-husband had impeded father-daughter contact. The experts stressed that N. had a strong emotional bond with the mother and remained under her influence. She did not feel loved by her father and was afraid of having contact with him. The experts concluded that N. was not able to cope with the emotional consequences of the conflict between her parents and that family therapy was indispensable. Furthermore, despite her negative reaction to the applicant, she should have contact with him. However, contact visits should not take place in the mother’s presence as that would increase N.’s negative attitude towards her father and prevent her from re-establishing a bond with him. Contact meetings should take place on neutral ground in the presence of a neutral person.

On 24 April 2013 the Kraków District Court issued a contact order. According to that decision, the applicant could meet N. every second Sunday between 3 p.m. and 6 p.m., with the exception of the first week of the winter school holidays and the period between 15 July and 15 August. In addition, he could see N. on the first day of Easter between 3 p.m. and 6 p.m., and on 24 December every even year and on 26 December every odd year. The court held that contact meetings should take place in the presence of a court-appointed guardian.


András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant, Ms C., is a Romanian national, who was born in 1981 and lives in Gloucester, the United Kingdom of Great Britain and Northern Ireland. On 10 February 2014 the President of the Third Section granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4).

The Romanian and Austrian Governments (“the Governments”) were represented by their Agents, Ms C. Brumar and Mr H. Tichy, from the Romanian Ministry of Foreign Affairs and the Austrian Ministry for European and International Affairs, respectively.

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

Between 1999 and 2007 the applicant was in a relationship with V.I.P. On 1 June 2003 their son S.I.P. was born. From July 2003 to February 2007 they all lived together in the same apartment in Romania.

In March 2007 the applicant took the decision to move to Italy to work there. According to the applicant it was a joint decision, taken because of financial difficulties of the family, and after she moved she kept in touch by telephone with V.I.P. and her son on an almost daily basis and sent her son money and clothes.

(a) Custody proceedings

On 25 September 2007 V.I.P. brought proceedings against the applicant and the Bistriţa-Năsăud mayor’s office, acting as Guardianship Authority (Autoritate Tutelară), seeking inter alia custody of S.I.P. He claimed that the applicant’s decision to move to Italy was taken without consulting him and once she had moved he was unaware of her whereabouts although he had tried to find her. In contrast, according to the applicant, V.I.P. had been aware of her address in Italy but had not informed the court. In result, the proceedings were held in the applicant’s absence. The summons issued by the court in the applicant’s name did not reach her, and she remained unaware of the proceedings.

On 9 January 2008 the Bistriţa-Năsăud District Court allowed V.I.P.’s application and awarded him custody of the child. Relying on witness statements and the Guardianship Authority’s social investigation and recommendation, the court held that V.I.P. had been the child’s main caregiver since birth and provided the child with the emotional support he required for his development.

According to the applicant she had become aware of the judgment of 9 January 2008 on 23 January and only by chance. Following a request lodged by the applicant’s lawyer, the Bistriţa-Năsăud District Court communicated a copy of the judgment to the applicant by fax on 9 February 2008. The applicant did not appeal and she did not request the statutory time-limit for lodging an appeal to be reinstated.

(b) Contact proceedings

On 18 February 2008 the applicant applied to the same court for contact with her son.

On an unspecified day in February 2008 V.I.P. left Romania together with the applicant’s son and they both settled permanently in Austria. According to the applicant she learned about this fact on 24 February 2008.

On 22 July 2008, in the course of the contact proceedings in Romania, the applicant requested the court to reschedule a hearing set for 2 October 2008 to an earlier date, given the circumstances of the relationship between her and V.I.P. and the urgency of the matter being examined by the court.

By a final interlocutory judgment of 24 July 2008 the court allowed the applicant’s request for an earlier hearing and set a new date of 11 September 2008.

On 11 September 2008 the court allowed the applicant’s application in part and ordered that she be allowed contact every other weekend, two weeks during the summer holidays in July or August and every second Easter and Christmas Day. Taking into account the best interests of the child, the court held that the full contact schedule requested by the applicant was excessive, given the young age of the child and his daily routine. It also dismissed V.I.P.’s request that she only be allowed supervised contact in his presence. The applicant appealed, arguing that the contact schedule established by the court was restrictive, and that the court had failed to consider that the child was entitled to know his mother’s relatives as well.

On 4 December 2008 the Bistriţa-Năsăud County Court allowed the applicant’s appeal in part, taking into account the best interests of the child and the parents’ needs, and the fact that they were living in two different States, namely Austria and Italy. It ordered that she be allowed contact for the second week of the Christmas holidays, the first week of the Easter holidays and from 15 July to 15 August. It also allowed her to take the child away from his father’s home, and upheld the judgment of the lower court in respect of the contact every other weekend. The applicant appealed on points of law (recurs).

By a final judgment of 4 March 2009 the Cluj Court of Appeal dismissed the applicant’s appeal on points of law on the grounds that the full contact requested by the applicant was unjustified and did not consider the best interests of the child, given his age and daily routine.

On 18 August 2009, at the request of the applicant, the BistriţaNăsăud District Court issued a certificate of enforceability under the Brussels II bis Regulation (see Relevant Domestic and International Law and Practice below), attesting that the judgments of 11 September and 4 December 2008 were enforceable. It also noted that all parties had the opportunity to be heard, except for the child on account of his age.

(c) Return proceedings

On 12 October 2009 the applicant brought proceedings against V.I.P., seeking the immediate return of the child to Romania, custody, psychological counselling for her and the child in a specialist State-run centre, child allowance, contact rights for V.I.P and rules for the child travelling abroad accompanied by either parent. She argued, inter alia, that the child’s father was denying her contact with her son, and relied on Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). In addition, she asked for legal aid on account of her limited financial resources and international judicial cooperation.

On 27 January 2010 the Bistriţa-Năsăud District Court dismissed the proceedings and decided to examine its competence ratione loci of its own motion. It held that V.I.P. had been granted sole custody of the child by the Romanian courts and had moved to Austria, taking his son with him. Under the relevant Romanian legislation, a parent entrusted with sole custody of a child had the right to take the child out of the country, even without the other parent’s consent. Consequently, the child’s departure to Austria had been, in principle, lawful. Moreover, after Romania joined the European Union, the courts’ jurisdiction in matters of recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility was regulated by the Brussels II bis Regulation. Under Article 8 of the Regulation, matters of parental responsibility came under the jurisdiction of the courts of the child’s European Union country of habitual residence. Under Article 10 of the Regulation, the courts of the Member State where the child was habitually resident prior to a wrongful removal retained jurisdiction until the child acquired habitual residence in another Member State. From February 2008 the applicant’s son’s habitual residence was in Austria, therefore, regardless of whether his removal from the country had been lawful or not, competence ratione loci for examining the applicant’s application belonged to the Austrian courts. The applicant appealed. She argued, inter alia, that the Romanian courts had jurisdiction to examine the merits of her case as the parties to the proceedings were Romanian nationals, the child had close connections to Romania, and V.I.P. had implicitly accepted their jurisdiction by taking part in the proceedings and submitting observations.

By a final judgment of 17 June 2010 the Bistriţa-Năsăud County Court dismissed the applicant’s appeal. It held that V.I.P. had been granted sole custody and had therefore been entitled to lawfully decide on his son’s residence without her consent. In addition, the child’s habitual residence was in Austria, and the Austrian courts therefore retained competence in respect of the proceedings. The Romanian courts had previously examined the applicant’s application for contact because in February 2008 V.I.P. and the child had still been living in Romania. The exception provided for by Article 15 of the Brussels II bis Regulation invoked by the applicant required, however, that the proceedings should have been opened before the competent Austrian courts and to concern the administration of the child’s property and not the child himself.

(d) Criminal proceedings opened by the applicant against V.I.P.

On 9 April 2008 the applicant’s legal representative opened criminal proceedings against V.I.P. for obstructing the applicant’s contact with her son and for his unlawful removal within the meaning of Article 3 of the Hague Convention on account of him being domiciled in Austria by V.I.P. without the applicant’s consent.

By an order of 28 January 2009 the Bistriţa-Năsăud prosecutor’s office dismissed the criminal complaint. It held that from the moment of her departure, the applicant had contacted her son only by telephone and there was no evidence that V.I.P. had obstructed their conversations. It was noted that V.I.P. and two other witnesses on his behalf had been questioned. The applicant had not been questioned because she lived abroad and had informed the authorities that her financial situation prevented her from travelling to Romania.

On 27 November 2009 the applicant challenged the prosecutor’s office order of 28 January 2009 to the hierarchically superior prosecutor. She argued, inter alia, that her chosen legal representative had failed to notify her of the order prior to 17 November 2009 and requested that her appeal be considered as having been lodged in due time and allowed. Also, she argued that the prosecutor’s office had wrongly assessed the evidence and had misinterpreted the applicable law. Moreover, she could have been interviewed by one of the Romanian police officers working in Italy through international judicial cooperation proceedings, but such proceedings had not been initiated in her case.

By a final order of 14 December 2009 the hierarchically superior prosecutor attached to the Bistriţa-Năsăud prosecutor’s office dismissed the applicant’s challenge as time-barred. It held, inter alia, that the relevant rules of criminal procedure did not provide for the possibility of a party’s appeal being reinstated once the time-limit for a challenge against a prosecutor’s order had expired. Moreover, the applicant could lodge a new criminal complaint against the child’s father. It does not appear that the applicant appealed against that order.

On 28 September 2009 the applicant brought criminal proceedings against V.I.P. and other third parties for fraud, obstruction of justice, perjury and destruction of evidence committed during the custody proceedings. She stated that although the child’s father was aware of her whereabouts, he had failed to inform the court of her correspondence address. Moreover, he and other third parties had committed perjury by declaring to the Romanian authorities that she had abandoned her son and family home and that the father was the only parent raising and supporting him. Furthermore, she was being prevented by V.I.P. and his new wife from enforcing the judgment recognising her contact rights.

On 17 November 2009 the applicant was interviewed by the BistriţaNăsăud police as part of the criminal investigation opened following her complaint of 28 September 2009. She insisted that the Romanian authorities question V.I.P.; however, her request to have him questioned in Austria was allegedly refused.

By a judgment of 8 November 2010 the Cluj Court of Appeal dismissed part of the criminal proceedings opened on 28 September 2009 on the grounds that no unlawful act had been committed. The court referred the remaining complaints to the Bistriţa-Năsăud prosecutor’s office. The proceedings still appear to be pending.

(e) Contact with other relevant authorities

On 12 May 2009 the applicant asked the Romanian Ministry of Justice for legal aid in respect of all the proceedings required for the final resolution of her predicament, and informed them that she was unable to enforce her contact rights. Moreover, relying on the Hague Convention, she requested the Romanian Ministry of Justice to take all the necessary steps to have the Austrian authorities acknowledge and enforce the judgment. She also asked the Romanian authorities to ensure that her son was returned to Romania urgently and to provide them both with counselling so that they could rebuild their relationship.

On 4 June 2009 the Romanian Ministry of Justice replied to the applicant, informing her that after Romania joined the European Union, the courts’ jurisdiction in matters of recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility between Member States was regulated by the Brussels II bis Regulation. Under the Regulation, matters of parental responsibility, including contact rights, came under the jurisdiction of the courts of the child’s European Union country of habitual residence. The Romanian courts had retained their jurisdiction for changing contact rights from a national to an international level for only three months from the date the applicant’s son had moved to Austria lawfully. After the three months had expired, the courts of the Member State where the child was habitually resident retained jurisdiction for applications concerning cross-border contact. In S.I.P.’s case, jurisdiction was therefore retained by the Austrian courts. Moreover, the applicant’s son had left Romania lawfully, as under the relevant legislation in force at the time, a child accompanied by a parent granted full custody by a final court order could leave the country without the other parent’s consent. In order to change her son’s legal status, the applicant had to therefore lodge an application with the court which retained jurisdiction in order to be able to change her contact rights or to gain custody of the child. The Romanian Ministry of Justice was unable to represent the applicant or to intervene in the proceedings on her behalf. It was for the applicant and her potential legal representative to litigate the case. In addition, they stated that the Austrian court which retained jurisdiction in the applicant’s case was the Knittelfeld District Court. Lastly, they informed the applicant that given that she was living in Italy, she could notify the Italian Ministry of Justice in order to organise and secure contact between Italy and Austria under the Hague Convention.

On 29 September 2009 the applicant asked the Bucharest National Authority for the Protection of Child Rights to inform her about the status of an application lodged with the Child Protection and Social Assistance General Directorate attached to the Bistriţa-Năsăud County Council on 9 April 2008. Also, she asked for free legal assistance and support in order to overcome the challenges she had been facing. Moreover, she requested information on whether her son had been living lawfully in Austria, copies of the relevant documents granting V.I.P. custody and the conclusions of any potential social investigation reports carried out at her son’s home. Lastly, she stated, inter alia, that although she had been granted contact rights by the domestic courts, V.I.P. had refused to allow her access to her son.

On 5 November 2009 the Bucharest National Authority for Protection of Child Rights informed the applicant through the Child Protection and Social Assistance General Directorate attached to the Bistriţa-Năsăud County Council that, according to an investigation carried out by the Romanian Embassy in Vienna and a social investigation carried out by the Austrian authorities, her son was residing legally in Austria with his father and his new family. The home they all lived in was large and clean. The child was attending kindergarten. His father’s family was very attached to the child and he was able to develop well. Also, all of that information had been sent to the applicant’s legal representative on 30 January 2009.

On 28 February 2008 the Knittelfeld Administrative Authority issued a certificate attesting that the applicant’s son had his main registered domicile in Austria, in the town of Knittelfeld.

On 12 November 2008 the Knittelfeld prefect’s office produced a social investigation report in respect of the child’s living arrangements at his home in Austria. The social workers who produced the report interviewed the child, his father and his stepmother. According to the report, the child arrived in Austria with his father in February 2008. In March of that year the child’s father married another Romanian national living in Austria. They all lived in a large and clean home. The child attended kindergarten and was well looked after by the family. According to V.I.P.’s statements, the child’s mother left them in February 2007 and they had not had contact with her for more than a year, although V.I.P. had tried to find her. He raised the child on his own, and on 9 January 2008 was granted full custody by the Romanian courts. Afterwards, V.I.P. left Romania with his son and settled in Austria. He remarried, and the child’s mother contacted him soon afterwards because she wanted to see the child. She was allowed to see him on his birthday and spent the day with him, but he no longer recognised her. She then did not contact them for some time, but in 2008 she was granted contact twice a month at the child’s home. She never took advantage of that opportunity, instead contacting her son by telephone weekly. She never expressed the desire to take the child to her home. The report concluded that the child was well integrated into his family and was being well looked after. He had the opportunity to develop well. Although his mother could contact him, there was no real bond between them because of their past relationship. As far as the child was concerned, his father was the main caregiver.

(a) Proceedings regarding the applicant’s contact rights

On 11 March 2009 V.I.P. came to the Knittelfeld District Court and informed the Court that the mother had been granted contact rights by the Romanian courts and that she had informed V.I.P that between 21 and 22 March 2009 she would take the child away to Italy for the weekend. In the past years she had only seen the child once for two hours in his presence. The child did not know the applicant as his mother anymore and did not want to be away from his family. V.I.P. therefore requested the Knittelfeld District Court to allow the applicant only supervised contact at a child protection centre on a day to be determined. Until a stronger motherchild bond was established the mother should not be allowed to take the child away. The minutes of V.I.P.’s statement made before the Knittelfeld District Court as well as his request were sent to the applicant.

The applicant misinterpreted the documents received as a court order prohibiting her from contacting her son.

On 21 March 2009 the applicant came to Austria. She saw her son at V.I.P.’s home. According to the applicant, V.I.P. and his wife used force and harmed her bodily to end the visit of her son. After this day the applicant did not see her son anymore.

On 23 March 2009 the applicant came to the Knittelfeld District Court and was heard by judge E.W. The judge informed the applicant that V.I.P. had asked for her to only be allowed to see her son at a child protection centre, in his and an interpretor’s presence. According to the applicant, the judge refused to accept any of the evidence she had had translated into German and notarised in respect of the contact rights she had been granted by the Romanian courts. During the discussion with judge E.W. the applicant said that she would reach an agreement with V.I.P. and she agreed to contact the child first via the Knittelfeld Child Protection Centre. The applicant was asked to turn to the child protection centre for any visiting arrangements and an information brochure was handed out to her.

According to the applicant, she telephoned the Knittelfeld Child Protection Centre the same day and was informed that a meeting could be set up between her and her son within a month.

The applicant claims that she contacted the Centre again on 7 May 2009 to enquire about the first meeting with her son. She stated that it was explained to her that she would have to bear the costs of a Romanianspeaking social worker and that meetings had to be approved by judge E.W.

According to the Government, the Knittelfeld Child Protection Centre would have been able to organise a Romanian-speaking assistant, but the applicant and V.I.P. would have had to bear the costs jointly.

According to the Government, V.I.P. withdrew his application for a decision on the applicant’s contact rights on 30 June 2009. However, they did not submit any documents to this effect.

The applicant submitted that she had had a meeting with the President of the Knittelfeld District Court on 14 September 2009, at which she had attempted to lodge an application for custody and contact with her son. She stated that she had tried to give the President an application for enforcement of the Romanian judgments, and the certificate of enforceability dated 18 August 2009 issued under the Brussels II bis Regulation regarding the Romanian judgments of 11 September and 4 December 2008. According to the applicant, the President refused to accept the documents and referred her to E.W., the judge in charge. However, according to the applicant, E.W. also refused to accept these documents and referred the applicant to the Knittelfeld District Administrative Authority (Bezirkshauptmannschaft). According to the applicant, E.W. explained to her that she had no contact rights on the territory of Austria and that she would have to be represented by counsel in order to lodge a new application for contact. Furthermore, the applicant submitted that E.W. had informed her that she would have to accept V.I.P.’s refusal to allow her contact.

On 26 May 2010, the applicant sent a request with a number of documents to the President of the Leoben Regional Court for the enforcement of her contact rights. On 11 June 2010 the President of that court informed the applicant that as an administrative judicial body, it had no jurisdiction in the matter and had thus forwarded her written request and documents to the Knittelfeld District Court as the court with jurisdiction.

On 30 June 2010 the applicant submitted a request to the Knittelfeld District Court to have the Romanian judgments regarding her contact rights enforced. She enclosed the certificate of enforceability dated 18 August 2009 issued under the Brussels II bis Regulation.

On 5 July 2010 the applicant applied for legal aid.

In early July the applicant applied to the Knittelfeld District Court for additional contact. In addition, she asked for counselling sessions for her and her son and cross-border cooperation between Austria and Italy in order to enforce the contact rights granted by the Romanian judgments. In addition, she requested legal aid and the presence of a translator in case she had to give evidence.

On 12 July 2010 the court awarded the applicant legal aid in respect of any court fees or translation costs. However, she did not receive legal aid for a lawyer and, legal representation not being obligatory, was unrepresented in the course of the proceedings. The court also summoned the applicant and V.I.P. to a hearing on 22 September 2010.

On 22 September 2010 the hearing took place, at which V.I.P. and an interpreter for the applicant were present. The applicant was not present.

Subsequently, on 23 September 2010, the same court dismissed the applicant’s application for contact, inter alia because S.I.P. had been living in Austria for several years.

On 9 December 2010 the applicant appealed against that decision, stating that she had never received a summons. She objected to judge E.W. and stated that she was seeking enforcement of the Romanian decisions and was not requesting a new decision on her contact rights in Austria. She further stated that the child’s father had taken an active part in the proceedings in Romania, and had been represented by a lawyer.

On 29 March 2011 the Leoben Regional Court stayed the appeal proceedings while waiting for a decision on the objection.

On 13 April 2011 the Knittelfeld District Court dismissed the applicant’s objection to Judge E.W. as unfounded. Judge E.W. had stated that she had seen no reason to exclude herself from the proceedings. She had only met the applicant once and had stated in that meeting that she mediated with parents to find an out-of-court solution for contact with the child. She also had no personal relationship with the child’s father. The court found that the applicant had not given any specific reasons for her objection to the judge. The applicant did not appeal.

On 17 June 2011 the Leoben Regional Court allowed the applicant’s appeal and quashed the decision of 23 September 2010. It found that the summons to the applicant had been sent to the wrong address in Romania. The proceedings had to be continued at the same level of jurisdiction with a hearing with the applicant to establish whether she was requesting enforcement of the Romanian judgments in accordance with Article 21 of the Brussels II bis Regulation or a declaration of enforceability of these judgments in accordance with Section 112 of the Non-Contentious Proceedings Act, or whether she wanted to apply for contact in Austria considering the current circumstances. The Leoben Regional Court held that the latter was reasonable as S.I.P was living in Austria.

On 9 November 2011 the applicant was summoned to the Knittelfeld District Court. An interpreter was present at this hearing. The applicant informed the court of an address in Italy to which any court documents could be sent. The transcript of the hearing indicates that the applicant stated that she did not want to speak on her contact rights, because she did not recognise the jurisdiction of the Austrian courts, and that in her opinion there was nothing to clarify before the Austrian courts. She only wanted the court to confirm the enforceability of the Romanian documents that conceded her custody of her son and she only wanted the Austrian courts to enable her to enjoy her existing rights. According to a file note, in the course of this hearing the applicant explicitly stated that although her last contact with her son had been in June 2009 she wanted to have the custody of her son, to live in Italy with him and the Romanian courts had enabled her to do so. Judge E.W. informed the applicant that this would not be correct because in the present situation international and Austrian law was applicable and that the Knittelfeld District Court had jurisdiction in the case. She informed the applicant several times that as the competent Austrian judge she could decide on her contact rights, but only after having requested an expert opinion of a child psychologist. The applicant, after having first been happy about this possibility, then changed her mind and reiterated that she did not recognize the jurisdiction of the Austrian courts.

The Government submitted that because the applicant had declared that she did not recognise the jurisdiction of Austria, the Knittelfeld District Court had interpreted this as a withdrawal of her application for contact and closed the file without any further decision. In any case the applicant did not take further actions to clarify the case, to obtain a decision on the execution of the Romanian judgment in Austria or to get in contact with her son.

(b) Proceedings regarding child support

On 13 May 2009 V.I.P. brought proceedings against the applicant before the Knittelfeld District Court, seeking child support starting from 1 August 2008 until the child became financially independent.

On 20 May 2009 the Knittelfeld District Court issued a temporary injunction against the applicant, ordering her to pay child support of EUR 105 pending the outcome of the child support proceedings. This decision was served on the applicant on 16 August 2009. The applicant appealed on points of law (Rekurs).

On 11 December 2009 the Leoben District Court rejected the applicant’s appeal on points of law as lodged out of time.

On an unspecified date the applicant contested the proceedings brought against her by V.I.P. on 13 May 2009. She argued, inter alia, that the Austrian courts did not have jurisdiction to decide on child support pending the outcome of the proceedings opened by her before the Romanian courts. She also contested the lawfulness of the evidence obtained by the Austrian authorities through the Italian courts in respect of her case and the lawfulness of her son being domiciled in Austria.

By a decision of 8 January 2010 the Knittelfeld District Court allowed V.I.P.’s child support claim. It ordered the applicant to pay monthly child support of EUR 50 from 1 August 2008 until the child became financially independent, on the grounds that the applicant had sufficient income to pay that amount. It also lifted the temporary injunction delivered by the same court on 20 May 2009 pursuant to which the applicant had had to pay EUR 105 in monthly child allowance. It also held that under Article 1 of the Hague Convention, Austrian law applied to the present case, because the child’s habitual permanent residence was in Austria. The applicant appealed on points of law on the grounds that the court had assessed the evidence incorrectly and she had fulfilled her obligations under the BistriţaNăsăud District Court’s judgment of 9 January 2008 to pay child support, so she could only be ordered to pay child support from the date of the court’s judgment. Moreover, the applicant alleged that the court had failed to consider the best interests of the child, as he did not have contact with her; the court had also failed to take into account the parties’ nationality when determining the lawful domicile of the child and the timelimit for the appeal on points of law.

On 28 September 2010 the Leoben Regional Court rejected the applicant’s appeal on points of law as lodged out of time.

(c) Other proceedings

On an unspecified date the applicant lodged a criminal complaint against V.I.P. with the Graz Police Department for unlawful residence in Austria. She argued that V.I.P. was living and working unlawfully in Austria, had removed her son from Romania without her consent, and in spite of all the sets of proceedings she had brought before the Romanian authorities to have her son returned to Romania, they had failed to assist her. In addition, relying on the provisions of the Hague Convention, she urged the Austrian authorities to help her and take the measures required by law to protect her son.

According to the Government, the Leoben public prosecutor’s office discontinued the preliminary investigation against V.I.P on 18 December 2008. The applicant did not lodge a request to reopen these proceedings (Fortführungsantrag) with the Leoben Regional Court.

On an unspecified date, relying on most of the above-mentioned arguments, the applicant also asked the Child Protection Agency attached to Graz mayor’s office to assist her with a social investigation in her son’s case.

By a letter of 26 April 2010 the applicant informed the Court that she was still unable to see her son.

The relevant legal provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, ratified by Romania and Austria, namely Articles 1 and 7, are to be found in Iosub Caras v. Romania, no. 7198/04, 27 July 2006 and Blaga v. Romania, no. 54443/10, § 51, 1 July 2014.

The relevant provisions of the Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (known as “the Brussels II bis Regulation”) read as follows:

“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:

(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.

The matters referred to in paragraph 1(b) may, in particular, deal with:

(a) rights of custody and rights of access;

“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);

(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”

“A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”

“A judgment relating to parental responsibility shall not be recognised:

(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally ...”

“1. This Section shall apply to:

(a) rights of access;

“1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.

Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.

The judge of origin shall issue the certificate referred to in paragraph 1 using the standard form in Annex III (certificate concerning rights of access) only if:

(a) where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defense, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally;

(b) all parties concerned were given an opportunity to be heard;

and

(c) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity....”

“1. A party seeking enforcement of a judgment shall produce:

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;

and

(b) the certificate referred to in Article 41(1) ...”

“1. The enforcement procedure is governed by the law of the Member State of enforcement.

Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) [...] shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.

In particular, a judgment which has been certified according to Article 41(1) [...] cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”

“1. The courts of the Member State of enforcement may make practical arrangements for organising the exercise of rights of access, if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter and provided the essential elements of this judgment are respected.

The practical arrangements made pursuant to paragraph 1 shall cease to apply pursuant to a later judgment by the courts of the Member State having jurisdiction as to the substance of the matter.”

“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:

(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”

The relevant Romanian law is set out in the cases of Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05, §§ 55-58, 13 October 2009). The role and responsibilities of the Romanian local public authorities in respect of social assistance and child protection, as well as the relevant provisions of the Child Protection Act (no. 272/2004), are described in the case of Amanalachioai v. Romania, (no. 4023/04, §§ 56 and 59, 26 May 2009).

As regards the relevant Austrian law, it is noted that the applicant was not represented by counsel before the Austrian courts. The court was therefore obliged to give her guidance on conduct and instruction on the law (Anleitungs- und Belehrungspflicht). Under Section 14 of the NonContentious Proceedings Act (Außerstreitgesetz) the courts have to inform the parties about possible contentions and applications and guide them to take the appropriate steps. The courts have to inform parties not represented by counsel about possible actions and applications and the legal consequences of each step. They have to be instructed about the actions which are favourable to them. The instruction and guidance has to be noted in the transcript of the hearing (Fucik/Kloiber, AußStrG § 14 [Rz 3ff]).

According to the Austrian practice concerning Article 41 of the Brussels II bis Regulation, in the Member State of enforcement there is no examination under the ordre public, there being no proceedings through which the decision is recognised and declared enforceable (Klauser/Kodek, ZPO (2012) Art 41 EuEheVO, Anm3).

The enforcement of decisions on contact rights is based on section 110 of the Non-Contentious Proceedings Act (Außerstreitgesetz). This provision also applies to the enforcement of decisions on contact rights under Article 41(1) of the Brussels II bis Regulation. Section 110(2), taken in conjunction with section 79(2), provides for the imposition of fines or imprisonment as coercive measures for contempt of court. As a more lenient measure, the court may also reprimand a party or threaten to take coercive measures.

Section 110(3) provides that the court may refrain from continuing with the enforcement if and so long as it constitutes a risk for the well-being of the child.