Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in 1975. When introducing her application to the Court, she lived in Meckenheim, Germany, where the applicant continues to reside to this day.

In 2001, in Germany, the applicant married E.B., a German citizen. Their marriage was registered in Lithuania in 2008. They have two daughters, who were born in 2002 and 2003. They all lived in Lithuania.

In January 2010 the Lithuanian authorities granted the applicant legal aid in connection with her intent to start divorce and custody proceedings. The following month the applicant applied to the Marijampolė District Court to have her marriage dissolved. She also asked for permission for both daughters to reside with her permanently, and for child maintenance from E.B.

In March 2010 Marijampolė Municipal Children’s Rights Protection Service (Vaiko teisių apsaugos tarnyba – hereinafter “the Marijampolė service”) informed the court in writing that the girls’ answers regarding who they would like to live with were unclear. They wished to live with both parents. Given the girls’ young age, and in the absence of information that the applicant was not performing her maternal duties properly, the service stated that residing with the applicant would not be against the children’s interests.

The applicant’s husband E.B. then lodged a counterclaim, asking the court to make a residence order in his favour.

The applicant then asked the court to grant a temporary protective measure – for the girls to temporarily reside with her until the case was decided on the merits. She submitted that the girls had no citizenship. Given the level of conflict between her and E.B., she feared that he might take the girls to Germany with him and she would then face obstacles in securing their return.

On 12 April 2010 the Marijampolė District Court allowed the applicant’s request for a temporary protective measure. The girls were thus to stay with the applicant until the end of the custody proceedings. The ruling was upheld on 31 May 2010 by the Kaunas Regional Court. The latter court ruling, however, specified that the applicant’s husband retained the right to have contact with his daughters at their place of residence or educational institutions.

On 19 April 2010 the Marijampolė service provided the court with conclusions indicating that the girls would not clearly state who they would like to live with. The father had suitable accommodation in which to raise them. The service concluded that the interests of the girls, “as future women (kaip būsimoms moterims)” would be better met if they lived together with the mother. Information obtained from doctors and educational institutions confirmed that the applicant took care of her daughters, who had (earlier) attended kindergarten and school in Marijampolė. The Marijampolė service nevertheless noted that its conclusions in the case could be revised if new circumstances emerged.

On 9 April 2010 the applicant also wrote to the Kaunas Municipal Children’s Rights Protection Service (hereinafter “the Kaunas service”) stating that on 6 April he tried to call his daughters on the telephone, but no one answered. The applicant, with whom the daughters had to be, did not answer her telephone either. The applicant noted that the older daughter attended school in Marijampolė, but she had not been seen at school as of 6 April. He went to the apartment which the applicant had been renting in Marijampolė, but found the doors locked. E.B. considered that the applicant abused her parental rights, obstructed him to communicate with his daughters even by telephone, and did not guarantee the girl’s right to attend school. E.B. suspected that the applicant could have taken their daughters to Kaunas. He asked the Kaunas service to investigate the situation and promised his full cooperation.

In reply, on 27 April 2010 the Kaunas service noted that since March 2010 the applicant had been living with her daughters in Kaunas. Between April and June 2010 one of the girls attended kindergarten, and the other attended school. Conditions at the flat where the applicant lived in Kaunas were appropriate for the girls.

It transpires from a police report that on 4 June 2010 the applicant contacted Kaunas police to report that she had allowed E.B. to see their daughters in Kaunas that day but he had not returned them to her. The police established that the girls were with their father in Marijampolė. On 10 June 2010 a police officer visited E.B. and the girls in Marijampolė and found them to be safe. The officer telephoned the applicant and asked her to come and take the girls. She replied that she had already contacted a bailiff and would not be going to pick them up herself.

On 8 June 2010 the applicant made a further application for protective measures, asking the Marijampolė District Court to restrict her husband’s right to see his daughters.

The Marijampolė District Court then deemed it necessary to ask both the Kaunas and Marijampolė services to provide information, and decided to hold an oral hearing to better establish whether any circumstances had evolved.

The Kaunas service provided conclusions on 22 June 2010, stating that by agreement of the parents the girls had met their father on 4 June, but he had not yet returned them. Their colleagues, child care specialists from the Marijampolė service, had visited the girls at their father’s home. The girls explained that they liked and wished to be there; their interests or rights had not been compromised. The Kaunas service also noted that, in accordance with Article 3.164 of the Civil Code, a child who could express his or her views had to be heard and have his or her wishes taken into account, unless they were against his or her interests. For the Kaunas child care specialists, it was desirable to have an order in place setting out how the girls could have contact with their father pending the proceedings.

On 23 June 2010 the Marijampolė service informed the court in writing that earlier that month they had visited E.B.’s apartment twice, without prior notification, on 11 and 21 June. The girls had communicated with their father naturally and without tension. There was no reason to believe that they were physically or emotionally unsafe at their father’s home. E.B. explained that on 4 June 2010 he took the girls on common agreement with the applicant. A couple of hours later, when he wished to return their daughters, the applicant could not be reached on her telephone. The applicant therefore took the girls to Marijampolė. The service considered that the applicant’s suggestions that E.B. could kidnap the girls and take them to Germany were unfounded. The service also noted that it was unclear why the applicant would not call her daughters by telephone or come to Marijampolė and contact the service so that they could go and visit the girls together (a point remade in its separate letter to the applicant of the same date). The service also stressed that the manner in which both E.B. and the applicant chose to resolve their conflict – which, due to their complaints, required the girls to communicate with child care specialists and police officers – negatively affected the children.

On 28 June 2010 the applicant declared her place of residence as Kaunas.

The same month the Kaunas and Marijampolė services exchanged a number of letters with the applicant, replying to various requests for information and assistance. It was noted, inter alia, that she had been asked to visit the Marijampolė service to resolve the matter of the girls’ return and to go to E.B.’s home with police officers to take the girls, but she had declined to do so. The child care specialists also noted having visited E.B.’s home, where the girls had been found. E.B. had explained to the child care specialists that his daughters did not wish to go to their mother’s and that he did not want to take them there by force. The Marijampolė service enquired with the applicant why she herself had not been calling her daughters and had not applied to the service for assistance in meeting them. For the child care specialists, the manner in which the applicant chose to solve her dispute with E.B. negatively affected the girls’ psychological well-being, because they had to communicate with various authorities often. The applicant was also informed that it was the bailiff who was competent to enforce court decisions.

On 9 July 2010 the Marijampolė District Court decided the temporary protective measures application in the presence of the applicant, E.B., their lawyers and a child care specialist. Upon the recommendation of the latter, and given that the court hearing on the merits of the action was scheduled for 19 July, when deciding on the temporary protective measure the court also deemed it appropriate not to hear the children, to avoid causing them even more stress.

The court acknowledged that when the applicant had allowed her husband to see their daughters for three hours on 4 June 2010, he had not returned them to her home. It urged the parents to arrange the return of the girls to their mother and to reach an agreement on how E.B. would contact them until the final court decision in the divorce and custody proceedings. However, each parent had their own conflicting opinions, which only served to worsen the strained relations between them. The court noted that both parents had the right to raise their children and have contact with them, and there was no information to suggest that E.B.’s communication with his daughters would cause them harm. Nor was there any information that the applicant was failing in her duties as a mother. Accordingly, pursuant to Article 376 §§ 2 and 3 of the Code of Civil Procedure, which required the courts to aim to protect the interests and rights of minors (see paragraph 61 below), and taking into account the earlier court rulings that the girls should temporarily reside with the applicant (see paragraph 11 above), the court ordered E.B. to return his daughters to their mother. Should he fail to do so, the applicant could contact a bailiff, who would then take the girls and their documents and hand them over to the applicant. Until the end of the divorce and custody proceedings, the applicant’s husband was granted contact with his daughters every other weekend from Saturday morning until Sunday evening, when he could collect them from the applicant’s place of residence and spend time with them. He was forbidden only from travelling outside Lithuania with them.

On the same day, that is on 9 July 2010 the applicant was explained by the Marijampolė service that execution of court rulings belonged to the exclusive competence of a bailiff. Seven days later the court ruling became final and thus enforceable. Pursuant to the applicant’s request of 19 July 2010, the following day the Marijampolė District Court issued her a writ of execution, which the applicant then transmitted to the bailiff on 26 August 2010 (also see paragraph 46 below).

Between July and September 2010 the applicant asked that E.B. be fined for non-compliance with a court order requiring him to hand the children over. She also asked the court to prohibit him from seeing his daughters. In turn, E.B. asked that they remain with him, arguing that they refused to live with their mother. The Marijampolė service informed the court that from 1 September 2010 the girls started attending school in Marijampolė, and that situation had been caused by E.B.’s refusal to hand them over to the applicant. In September 2010, on the recommendation of the Marijampolė service, one of its psychologists saw the girls twice. She observed that they were attached to their father and had a good emotional connection with him. They also stated that they wished to stay with their father. The psychologist could not assess the emotional connection they had with their mother, because she could not be contacted. On 13 September 2010 the Kaunas service informed the court in writing that because the girls did not live in Kaunas, it there were grounds for limiting E.B.’s paternal rights, in accordance with Article 3.180 of the Civil Code.

According to the Government, following complaints by the applicant alleging inactivity on the part of both the Kaunas and Marijampolė services, on 5 August 2010 the Ombudsperson for the Protection of Children’s Rights (Vaiko teisių apsaugos kontrolierius – hereinafter “the Ombudsperson”) issued a report. It noted that the relationship between the parents had broken down and that the applicant herself had been hostile. The report established that she instigated conflict, involved different State and municipal institutions in solving her relationship problems with her husband and gave little importance to her own personal responsibility, efforts and benevolence in looking for solutions in the best interests of her daughters. The report also indicated that she had applied to child care services and the police, submitted requests for assistance in taking the children, but as soon as they had provided her with opportunities she had refused them. It was recommended that she solve the questions of the girls’ place of residence and contact by mutual agreement with the father, and in the children’s best interests.

On 20 September 2010 the Marijampolė District Court held an oral hearing with the applicant, E.B., their lawyers and representatives of the Marijampolė and Kaunas services. Over the days that followed two more hearings were held and the girls were questioned by the judge in the absence of their parents and their lawyers. One of the girls testified that she wished to live with her father. The other testified that she missed her mother and wished that both parents lived together. She also stated that she otherwise preferred living with her father.

On 28 September 2010 the Marijampolė District Court dismissed E.B.’s request that the girls reside with him, and the applicant’s request to forbid him from seeing them. The decision was upheld by the Kaunas Regional Court on 22 November 2010. The courts acknowledged that E.B. had not avoided his duties as a father, but it had not been established that he could provide better living conditions for the girls or raise them better. Moreover, the girls’ place of residence had already been decided by an earlier court ruling and it was not in their best interests to change that place every couple of months. The girls were not yet mature enough for their wishes alone to suffice to change their place of temporary residence.

On 23 of September 2010 the principal of the school the girls had been attending in Marijampolė since the beginning of that month informed the child care authorities that the applicant had been visiting the girls at school and communicating with them, their teachers, the school administration and social workers on a regular basis. On one occasion a social worker observed one of the applicant’s meetings with the girls. They had talked to their mother warmly and sincerely, and had stated that they wished to live with both parents. The principal noted having been asked by E.B. to restrict the girls’ contact with the applicant, but he had not acceded to that request because he considered that the girls should see and communicate with both parents.

On 3 February 2011, in reply to letters from the applicant asking for information about her daughters’ achievements at school and requesting that it arrange a meeting with her daughters on school premises, the principal informed the applicant that the school had always been open for parents. He noted having urged the applicant since autumn 2010 to come to school as often as possible, and to communicate with her daughters and their teachers. However, ‘the applicant had not heard that message (deja, Jūs šito raginimo neišgirdote)’. The principal stressed that the school was ready to help the applicant in every possible way if she showed initiative to see her daughters; no prior notification for her coming to school was necessary. For the school principal, the applicant’s pleas were particularly odd, because it was only because of her that the girls were not fully fledged members of the school as they were not on the list of pupils. The applicant was well aware of that but had not made any effort to settle the matter. The principal concluded that if the applicant was serious about her daughters’ future, he wanted her to think seriously and solve the problems which depended solely upon her.

Between October 2010 and April 2011 the Marijampolė District Court held at least five oral hearings, in which the applicant, E.B., their lawyers and representatives of child care services participated. The court granted a request by the applicant for a psychological assessment of the girls (see paragraph 25 below), had regard to letters from the institutions where the girls attended after-school activities, and questioned the principal and psychologist of the school.

At a court hearing on 29 April 2011 the principal testified to having admitted the girls to the school at E.B.’s request and in the girls’ best interests, and that they came to school ready for lessons and well-presented. They were well taken care of, felt well at school and wished to study there. The principal also stated that the applicant could have come to school and taken the girls with her at any time. However, the applicant came to school very seldom; the last time he had seen her there was in January 2011.

The school psychologist testified that she had told both parents that they could ask her for psychological assistance, but neither parent had followed up with such a request. Without parental agreement or a referral by child care specialists, no psychological assistance could be provided. The psychologist also testified that the girls’ teachers had not contacted her with any particular concerns about the girls’ well-being.

In August 2011 experts from the Vilnius City Child and Adolescent Forensic Psychiatry Department (Vaikų ir paauglių teismo psichiatrijos skyrius) examined the girls. The experts found in respect of both girls that it was not possible to establish which parent’s place of residence would best meet the girls’ interests, because equal communication with both parents, who were important to the girls, was important to them both. When observed with their father, the girls were positive, active and laughed a lot. Both girls’ connection with their father was “positive, warm and strong”. Their relationship with the mother was ambivalent and their feelings were torn (dominuoja prieštaringi (ir teigiami, ir neigiami) jausmai). Even so, there was no doubt that the mother was an important person for the girls. Having regard to the girls’ age, maturity and psychological particularities, they were not yet able to formulate and express their own opinions and views as regards which parent they should live with. The girls’ wish to live with their father was determined by objective factors, namely them living with him for more than a year and communication with their mother being insufficient. Unnatural hostility towards the mother had only traumatised them and parental alienation syndrome, enhanced by their father’s influence, could be seen in their behaviour. Lastly, both girls were attached to each other, and separating them would be traumatic.

In August 2011 the applicant declared her place of residence as Meckenheim, Germany.

On 4 October 2011 the applicant asked the Marijampolė District Court to hear the case in her absence. She maintained all her civil claims. Moreover, in the applicant’s words, “the forensic expertise having been performed, [paragraph 25 above] I consider that all the evidence in the case has been collected and examined, and that the case should be terminated immediately, and I therefore ask for it to be terminated in my absence because I am ill.” The applicant agreed to her lawyer representing her interests from that point forward.

On 5 October 2011 the Marijampolė District Court held an oral hearing with the applicant’s lawyer, E.B., his lawyer, and the child care authorities. During the hearing it came to light that the applicant had declared her place of residence as Germany, where she was expecting a child with another man. According to E.B.’s lawyer, those circumstances were relevant when deciding the girls’ place of residence, especially given the applicant’s initial accusation of the girls being taken to Germany by their father (see paragraph 10 above). The court deemed it appropriate to postpone the hearing, so that the applicant could be questioned.

Later that month the applicant’s lawyer provided the court with a medicate certificate issued in Meckenheim, about her client being at risk of premature birth if she experienced physical or psychological stress. The lawyer asked the court to hear the case without her client present, or to suspend the proceedings, until after the applicant had given birth.

On 24 October 2011 the court held an oral hearing without the applicant, but in the presence of her lawyer. She confirmed that her client had declared her place of residence as Germany, the father of her future child being a German national, but that she intended to return to Lithuania to live in Kaunas immediately after giving birth in Germany. The lawyer also confirmed that the applicant had not communicated with the girls during that school year.

E.B.’s lawyer regretted that the applicant could not be questioned at the hearing.

Relying on the forensic experts’ conclusions about parental alienation syndrome, heightened by E.B.’s attitude towards the applicant, the Kaunas service noted that it would be more in the girls’ interests to reside with their mother. It did not see the applicant’s pregnancy as a factor to be taken into account when deciding the girls’ place of residence. The service confirmed that the future child’s father was a German citizen, which suggested that the applicant would live in Germany. Even so, E.B. was a German citizen but lived in Lithuania. The Kaunas service also noted that the applicant had approached them for a referral to psychologists so that she could find contact with her daughters easier. A referral was given to her and, as far as the Kaunas service was aware, the applicant had visited the psychologists for assistance. The service was of the view that the applicant had tried to establish contact with her daughters, but had been unsuccessful. She had probably not visited them at school for a while to avoid traumatising them.

At the same hearing the Marijampolė service representative noted that it had known the girls and their family history since 2008, when disagreements between the applicant and E.B. had started. The girls really thought clearly and their minds had developed in accordance with their ages. The representative thought that the girls’ behaviour had been conditioned by their mother’s actions as she did not visit them often at school or show interest in their lives, and therefore no emotional connection between them had been formed. The girls had been heard by the court about a year ago, where they had expressed their wishes (see paragraph 20 above) – the court had to remember that moment and have regard to the girls’ opinion. Indeed, in 2006 the United Nations Children Rights’ Committee had reproached Lithuania for not always hearing and paying attention to the child’s opinion (see paragraph 65 below). The representative noted that no one could ignore the fact that it was not known where the applicant, who was currently in Germany, was about to live. It was submitted that the psychologists’ conclusions were contradictory (yra prieštaringos). The conclusions noted that E.B. was important to the girls; they had a warm, positive and stable relationship with him. When communicating with their father, the girls felt safe and were actively involved in shared activities. They could easily approach their father, hug him and tell him about their achievements at school, where they took prized places in mathematics competitions. The child care specialist emphasised that a child who was psychologically distressed could not have such achievements at school.

The Marijampolė service underlined that the circumstances had changed and thus it would always inform the court that it would provide the last conclusion during the last court hearing. Having communicated with the school, the school administration and the teachers, the Marijampolė service was finally persuaded that it was better for the girls to stay in that environment, to attend school and have friends; at home they were also receiving all that was necessary. The applicant, however, did not approach the girls after certain court decisions but first ran to the institutions or called the police, thus traumatising the girls a lot. In the words of the child care specialist, the applicant had not attempted to first meet with the girls or establish contact with them, and had not put in any effort herself. It was odd that a mother would go without seeing her daughters for a couple of months and not ask if they were prepared for school.

The Marijampolė service thus submitted that, in the light of the above considerations, E.B. could take care of the girls the best and provide them what they needed. To pull the girls out of the environment they were familiar with and where they had spent most of their time would cause them significant psychological harm. The girls could always choose to tell to their father later that they wish to live with their mother. At the end the Marijampolė service representative noted that, in her view, the child care specialists from Marijampolė had observed the girls more than the representatives from the Kaunas service.

On 8 November 2011 the Marijampolė District Court took a decision on the merits of the divorce and custody case. It observed that there was no information in the file to suggest that either parent was failing in their duties to raise their daughters or that their behaviour was immoral. Even so, they had not always acted with the children’s best interests in mind, because during the court proceedings neither parent had attempted to find a compromise as regards their daughters’ place of residence or their contact with them. The court emphasised that the children had to grow up in a safe environment they were used to. However, even though by a court order of 9 May 2010 the girls were to reside with their mother, the actual situation was that since 5 June 2010 they had been residing with their father. The girls themselves had expressed the wish to stay with him. The first-instance court thus held that although the father could have had some influence over the girls’ choice as to who they preferred to live with, it was not decisive. The girls had thus already stated on 11 June 2010 that they preferred living with their father (see paragraph 15 above). It was the court’s view that such a short time (seven days) between those two dates was not sufficient for the girls’ father to influence his daughters. It was thus clear that there was already then tension between the girls and their mother.

Lastly, the Marijampolė District Court noted that even though the applicant had declared her place of residence as Kaunas, since August 2011 she was also registered as living in Germany. For the court, the question where the father or mother would live with the children was irrelevant in any event because the girls spoke German; they had previously lived in Germany and thus could adjust to living there easily. What was essential when deciding the question of the girls’ residence was to ascertain who the children were more attached to, and which parent devoted more attention to their interests. The children’s wishes as to where to live could be disregarded only if they were against their interests. Given that there was nothing to suggest that either parent was neglecting their parental duties, the Marijampolė District Court deemed it most suitable to take into account the girls’ wish to live with their father.

The first-instance court also ordered the applicant to pay the girls’ father maintenance (60 euros (EUR) for each daughter per month) and set in place a contact order for the applicant to see her daughters. Even though both parents asked to see the children only two weekends per month and during the month of July, in accordance with Article 376 § 3 of the Code of Civil Procedure the court considered ex officio that such a time-frame would be too restrictive for the applicant to be able to build up contact with her daughters. A wider contact order, allowing the applicant contact not only during weekends but also State holidays and certain days during all school holidays was set in place. The court stressed to both parents their obligation to take care of the children and above all be an example to them.

The court also divorced the applicant and her husband.

On 7 December 2011 the applicant appealed against the first-instance court’s decision. She contested the decision about the girls’ place of residence. Without explicitly asking that a hearing be held, she asked for a re-examination of the evidence and witnesses to be called and questioned.

By a letter of 5 March 2012, the applicant also asked the Kaunas Regional Court to admit in evidence letters postmarked between November 2010 and January 2011 she had sent to her daughters in Lithuania from Germany, which had been returned to her in the post. The applicant claimed that E.B. had thus interfered with her right to be in contact with her children. She relied on Article 314 of the Code of Civil Procedure (see paragraph 59 below).

By a ruling of 22 March 2012 made in written proceedings, the Kaunas Regional Court left the lower court’s decision unchanged. The court noted at the outset that pursuant to Articles 321 and 322 of the Code of Civil Procedure, appeals had to be heard in written proceedings unless the court deemed an oral hearing indispensable. As regards the applicant’s request to have witnesses questioned, the court established that the applicant had not specified in her appeal what new circumstances essential for the case the requested witnesses could confirm, some of them having already been questioned at first instance. Nor had she explained why she had not submitted the request to the first-instance court. The court concluded that an oral hearing was not necessary, because the applicant had had the opportunity to point out all the circumstances necessary for an examination of the case to the first-instance court and also in her appeal.

The appellate court also refused to admit documents related to the applicant’s correspondence with her daughters. According to it, those pieces of evidence had not been analysed in the first-instance court, which was a general requirement for evidence to be admitted in an appeal, or lodged with it.

As to the girls’ place of residence, the Kaunas Regional Court dismissed as unfounded the applicant’s plea that the first-instance court did not properly examine the evidence, which included the explanations by the child care authorities, psychologists’ reports, witness testimony and the Ombudsperson’s conclusions. On this last point the court observed the Ombudsperson’s conclusion of 5 August 2010 stating that the applicant was conflictive and involved various authorities in her and E.B.’s conflict, without giving importance to her own responsibility and good-will in finding the best solutions for the children. It also observed that the first-instance court had examined the forensic expert reports about the girls’ psychological state, where it was noted that they both wished to stay with their father. In addition, psychologists from the girls’ school and the school principal were questioned. The applicant’s lawyer herself admitted agreeing with the forensic expert reports, and did not ask for another expert examination to be conducted.

The Kaunas Regional Court also found that it was in the best interests of the children to stay with their father, who they had lived with since 5 June 2010. On that point it was also paramount that during the first-instance court hearing the girls had confirmed their wish to live with him. A fact on which the applicant had relied, that E.B. had prior convictions in Germany for sexual and drug-related offences committed in 1996 and 1998 did not have much significance for the case, because the convictions had expired in 2003. The applicant, for her part, had a criminal conviction in Lithuania for forgery of document and a criminal investigation against her for fraud had been terminated. What mattered was that she had left Lithuania for Germany; she had three addresses – in Kaunas, Marijampolė and in Germany, which she had indicated as places where she lived, which suggested that she in fact had no habitual place of residence. Moreover, the applicant’s contact with the girls was merely episodic, whereas the girls’ father took proper care of them and actively participated in raising them. The girls lived with their father, attended school and had suitable living conditions. The evidence as a whole allowed for the conclusion that there was a close connection between the girls and their father. There was no evidence in the case file to the effect that E.B. abused his parental rights, and it was for the applicant to prove the opposite, which she had not done. Moreover, under Article 9 of the United Nations Convention on the Rights of the Child, a child had the right to be heard in all matters affecting him, which had been done in the present case. The appellate court also observed that in accordance with Article 2 of the aforementioned Convention and Article 3.156 of the Civil Code, both parents had equal rights and obligations towards their children. Accordingly, and contrary to the applicant’s suggestion that she was closer to the girls because of their gender, the gender of a parent could not be a factor which determined who a child should reside with.

As to temporary protective measures, the Kaunas Regional Court observed that, as a rule, they were aimed at guaranteeing compliance with a future court decision. Accordingly, the first-instance court, when adopting a decision after examining merits of the case, was not bound by earlier decisions on temporary protective measures.

Following a complaint by the applicant, on 1 June 2012 the Ombudsperson issued a report dismissing allegations by the applicant about the partiality of the Marijampolė service because of its failure to provide her with information and consultations. The Ombudsperson relied on the Court’s judgment in Mihailova v. Bulgaria (no. 35978/02, § 97, 12 January 2006), where it did not find a violation of Article 8, having found that irrespective of obstructions by the applicant’s former husband, the applicant’s own lack of understanding of the need for careful preparation as a precondition to effective enforcement of her custody rights played a significant role in the events. In the instant case, attempts had been made more than once to hand the children over to the applicant and meetings had been organised with psychologists, child care specialists and representatives of educational institutions as to enforcement of the court decisions to transfer the children. Moreover, the Ombudsperson had already examined the Marijampolė service’s work in February 2010, and did not find that it did not take action to help the applicant to have contact with her children. The service also correctly placed the responsibility for the well-being of the children on both parents.

On 5 September 2012 the principal of the girls’ school in Marijampolė issued a note stating that during the school year 2011/2012 the applicant had not visited the school. She did not come to school on 1 September 2012 either.

On 18 October 2012 the Ombudsperson dismissed the applicant’s repeated complaint accusing the Marijampolė service of failing in its duties to provide assistance and organise contact with the children. The Ombudsperson established that even though the contact order between the mother and the girls had been set in place as early as 8 November 2011 by the Marijampolė District Court, she had not yet tried to make use of it. Furthermore, the Marijampolė service had asked the applicant’s lawyers to meet at its premises, offered to inform E.B. of that meeting and asked the applicant’s lawyers for that purpose to choose a suitable date, but the applicant had not responded. For its part, the Kaunas service had also invited the applicant for a conversation so that she could express her wishes and preferences as to her contact with the girls, and so that the service could assist her. It was only when the applicant had not shown up that the Kaunas child care specialists had suggested to her lawyers that she communicate with the girls by letters via the Marijampolė child care specialists. It had also been indicated to the applicant that she had the opportunity to directly communicate with her daughters in the presence of a psychologist, and that could be discussed with the Marijampolė service. The girls’ school in Marijampolė had also informed the Ombudsperson that the applicant had started communicating with the girls by letters since December 2011; between December 2011 and April 2012 three letters from her had been received, though the girls had refused to accept the last one. The school had thus suggested that the applicant choose another means of communicating with her daughters and asked the child care specialists to provide facilities for that purpose. Given the child care authorities and the school’s suggestions for the applicant to communicate with her daughters directly (tiesiogiai), which the applicant had disregarded, it was not clear to the Ombudsperson why the applicant preferred to communicate with her daughters by letters. On this point the Ombudsperson pointed out that under Article 3.170 of the Civil Code parents who lived separately had the right and an obligation to communicate with their children and be involved in their upbringing; children, for their part, had a right to regular and direct contact with both parents, irrespective of their place of residence.

On 15 June 2012 the applicant lodged an appeal on points of law. Without arguing that the appellate court’s decisions not to summon witnesses for examination and not to hold a hearing had affected the outcome of the litigation, she primarily challenged the lower courts’ assessment of the evidence, insisting that they had erred in concluding that living with their father was in the best interests of the children. She also asserted that E.B.’s previous convictions in Germany for crimes of sexual violence and drug-related offences were significantly weightier in terms of his moral values than her conviction in Lithuania for forgery of documents. The applicant was further dissatisfied with the appellate court’s refusal to admit in evidence documents related to her correspondence with her daughters, which she obtained after she had already lodged her appeal.

In his written reply, E.B. argued that the lower courts had properly examined the entirety of the evidence. He submitted that the applicant had always known about his earlier convictions in Germany; however, they had expired a long time ago. It was unfair for her to bring up that issue now. E.B. also observed that the proceedings had been pending for more than two years. During that period the applicant had specified her claims and submitted requests to the court on more than one occasion. The Kaunas Regional Court’s acceptance to re-examine the evidence and question witnesses would have only delayed the proceedings. Given that the applicant had not asked for an oral hearing, the appellate court’s decision to pursue proceedings in writing had been reasonable.

In a final ruling of 14 December 2012, adopted in written proceedings, the Supreme Court observed that the child’s interests were the primary consideration when examining custody cases. The cassation court also relied on the Court’s judgment in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, § 139, ECHR 2010), which said that an in-depth examination of the entire family situation was necessary to achieve the best result for the child. For the Supreme Court, such a result had been achieved in the present case. The lower courts had analysed the level of attachment to each parent and established that the girls, who lived with the father, were fond of him. Those courts had also noted psychologists’ reports that the girls could entirely independently form their own opinion about which parent to live with, and had held that the children’s opinion was one of the criteria when evaluating the entirety of evidence, and the girls had expressed such a wish during the court hearing. Even though the fact that the girls lived with their father could influence their formation of a negative opinion about their mother, it had not been established that the mother was barred from communicating with them; to be interested in their lives and visit them at school could thus form a positive opinion about her and make their emotional bond stronger. The first-instance court had also issued a contact order and thus the applicant’s contact rights with her daughters had not been restricted. Even though the applicant had stated that she lived in Lithuania, the evidence showed that she had declared place of residence as Germany, where she had taken part in court proceedings so that the name of her third child could be registered. As to E.B.’s convictions in Germany, those offences had been committed in 1996 and 1998 and his convictions had expired a long time ago. There was no proof that he could have a negative impact on the girls. On the contrary, the girls studied well at school and took part in extracurricular activities. It followed that the courts had been correct in not giving particular weight to those convictions. Overall, it was thus in the best interests of the girls to stay with their father.

Lastly, whilst noting that when refusing to admit in evidence new documents submitted by the applicant the appellate court had not explained whether they were relevant to the merits of the case, the Supreme Court held that this did not affect the overall lawfulness of the appellate court’s ruling.

After the Marijampolė District Court’s decision of 9 July 2010 stating that the girls should reside with the applicant became final, and following the applicant’s request of 26 August 2010 transmitting her the writ of execution, the bailiff took measures to enforce it (also see paragraph 17 in fine). Meetings were organised with the child care specialists, representatives of the girls’ school and psychologists. Both parents were involved in that process.

The first attempt to hand the girls over at their school in November 2010 failed because on that day the girls fell ill and did not go to school. The court then established that their absence was proved by medical certificates, and the court order for transfer did not specify where it would take place. Accordingly, the father could not be blamed for an unsuccessful transfer.

The next attempt to transfer the girls was made in January 2011, when it was decided that the girls would be handed over at their home. This attempt did not produce results because on that date the applicant was arrested on charges of forgery of documents.

The third attempt to hand over the girls was at their father’s home in February 2011. It failed because, even though the bailiff, child care specialists, police and both parents were present, neither girl wished to leave with their mother. During the transfer the applicant asked to be left alone in the room with the girls, and her wish was granted. However, even after that the girls expressed a clear wish not to leave with her. In the report about that attempted transfer the bailiff underlined that the transfer of a child could not be equated to the transfer of an object. Taking into account the clearly expressed wishes of the children, and to avoid psychological trauma and to protect the children’s interests, physical force could not be used in that situation. The child care authorities supported this argument. The bailiff’s recommendation, based on Article 771 of the Code of Civil Procedure, was that the manner of enforcing the court order for transfer should be changed to preserve the children’s interests. The bailiff’s letter specified that her findings could be appealed against to the Marijampolė District Court. The bailiff then also asked the Marijampolė District Court to examine how the court order for the girls’ transfer should be enforced without compromising their interests.

Eventually, by a decision of 20 June 2012 the bailiff discontinued the enforcement proceedings, because it had been decided that the girls should reside with their father (see paragraphs 39 and 45 above).

By a decision of 17 March 2011 in separate criminal proceedings, a court found E.B. guilty of failing to comply with the court order of 9 July 2010. He was fined approximately EUR 750 (2,600 Lithuanian litai). The court however dismissed a civil claim by the applicant for non-pecuniary damage, noting that the girls themselves had refused to go and reside with their mother. The court also noted that no evidence had been provided to prove the applicant’s contention that the children’s refusal to be handed over to their mother had been a direct consequence of E.B.’s actions.

Alleging that the girls’ father had had a negative influence on their daughters, and relying on the psychologists’ reports about parental alienation syndrome (see paragraph 25 above), on 8 September 2011 the applicant asked the prosecutor to start criminal proceedings in respect of E.B. for abusing his rights and duties as a parent (Article 163 of the Criminal Code, see paragraph 63 below).

By a decision of 16 September 2011, the prosecutor refused to initiate a pre-trial investigation. He noted that earlier that month Marijampolė child care specialists had visited E.B.’s home and the girls had eagerly communicated with them, without their father present. The girls felt comfortable and at ease; they had no demands. They had also explained that the applicant did not visit them or call. The prosecutor established that E.B. had not committed any unlawful acts in respect of his daughters. By a decision of 4 October 2011, the District Court upheld the prosecutor’s decision.


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The first applicant, Mr Abdalsalam Sakkal, is a Syrian national who was born in 1992 and lives in Germany. The second and third applicants, Mr Ali Fares and Mr Mohammed Fares, are stateless Palestinians who were born in 1985 and 1988 and live in France. All three applicants are represented by Ms S. Uludağ Gök, a lawyer attached to Refugee Rights Turkey, a non-governmental organisation based in Istanbul.

In September 2015 several hundred Syrian refugees gathered in Esenler bus terminal in Istanbul with a view to taking buses to Edirne. Their aim was to protest about migrant deaths in the Aegean Sea and reach Europe by land. As they were refused permission to board buses, they started marching down the motorway between Istanbul and Edirne. On 21 September 2015 the applicants, who were among them, were arrested along with two other individuals by four police officers on suspicion of breaching the Meetings and Demonstration Marches Act (Law no. 2911). They were taken to the Esenyurt district police headquarters where, on the same day, they were questioned by the police in the presence of a lawyer with regard to the offence attributable to them.

On 22 September 2015 the applicants were transferred to the Kumkapı Foreigners’ Removal Centre. On the same day their representative, Ms Uludağ Gök, visited them and attempted to obtain information about the reasons for their detention. She was told that they would be transferred to one of the refugee camps set up for Syrian refugees in southern Turkey.

On 23 September 2015 two other lawyers working for Refugee Rights Turkey visited the centre and were told by the officials that no decision had been taken in respect of the applicants.

On 24 September 2015 a fourth lawyer attempted to meet with the applicants but was denied access to them.

On 2 October 2015 Ms Uludağ Gök was informed by an official at the centre that on the strict verbal instructions of the Istanbul governor’s office, the applicants were not allowed to meet with a lawyer. During her visit she saw that deportation and detention orders had been issued in respect of the applicants on 22 September 2015. Neither they nor she were served with the orders. However, she took a photograph of the deportation and detention order issued in respect of the first applicant, which was later submitted to the Court.

On 3 October 2015 the applicants were sent to the Erzurum Foreigners’ Removal Centre. On 16 October 2015 a lawyer practising in Erzurum and the head of the Erzurum branch of the Human Rights Association, a non-governmental organisation, attempted to meet with the applicants. They were also denied access to them.

On 21 October 2015 the applicants telephoned Ms Uludağ Gök and informed her that they had been transferred to the Ankara Foreigners’ Removal Centre. They said that they feared being deported to Syria.

On 22 October 2015 the applicants telephoned their representative again and informed her that the deportation and detention orders dated 22 September 2015 had been renewed.

Between 24 September 2015 and 23 October 2015 the applicants were detained incommunicado without access to legal assistance.

On 23 October 2015 another lawyer attached to Refugee Rights Turkey, Ms D. Berberoğlu, went to Ankara to meet the applicants and to obtain notarised powers of attorney to take legal steps at the domestic level and authority forms to apply to the Court. She was told by staff of the centre that the applicants were being detained pending their removal to Syria. The applicants signed the authority forms provided by the lawyer. However, an official who had monitored their meeting tore them up, stating that the lawyer did not have the right to make the applicants sign any documents since she did not have a notarised power of attorney. The officials also refused to give her the applicants’ identity documents for the purposes of obtaining notarised powers of attorney. Ms Berberoğlu then left the centre, but returned later the same day with a notary and an Arabic translator associated with a notary’s office to have certified translations of the applicants’ identity documents and obtain notarised powers of attorney. She was once again told by the staff of the centre that she would not be given the applicants’ identity documents. She had to leave the centre at the end of the working day. The applicant submitted a document to the Court drafted at 5.10 p.m. on that day and signed by Ms Berberoğlu and the translator. According to this document, Ms Berberoğlu and the translator could not meet the applicants and obtain their identity documents from the authorities for the purposes of obtaining notarised powers of attorney.

On 26 October 2015, the date the application was lodged, the applicants’ representative requested that the Court adopt an interim measure, under Rule 39 of the Rules of Court, to stay the applicants’ deportation to Syria.

On 26 October 2015 the Acting President of the Section to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicants should not be deported before 17 November 2015. The Government were further requested to inform the Court as to whether the applicants were being detained pending their expulsion to Syria, whether there were deportation orders issued in respect of each of them and whether they were prevented from having access to legal assistance and appointing a legal representative as alleged.

On 10 November 2015 the Government made submissions to the Court and sent a number of documents related to the application. They stated that the applicants had been arrested on 21 September 2015 on suspicion of breaching the Meetings and Demonstration Marches Act (Law no. 2911) during a march from Istanbul to Edirne by Syrian refugees. They submitted that the applicants had directed the refugees and encouraged them to topple the police barricades set up by the riot police. The first applicant had also attacked police officers while chanting slogans. After the applicants had been arrested, the police could communicate with the refugees, who had cooperated with the security forces. The Government noted that the applicants were questioned at the Esenyurt district police headquarters in the presence of a lawyer. The applicants had then been placed in administrative detention pending their deportation since the administrative authorities had considered that they posed a threat to public order and safety and would abscond or disappear if released. The Government submitted copies of the orders for the applicants’ deportation and detention dated 22 September 2015 issued pursuant to sections 64 (1)(d) [sic] and 57(2) of the Foreigners and International Protection Act (Law no. 6458). The Government noted in this connection that the detention orders had been renewed every month pursuant to section 57(4) of the same Act.

The Government contended that Abdalsalam Sakkal and Muhammed Fares were staying in Turkey under “temporary protection”, the protection granted to Syrian nationals and those arriving from Syria. Ali Fares was in an irregular situation since he had not applied to the national authorities when he had arrived in Turkey. The Government also submitted that the procedure for their deportation had been initiated given that section 91 of Law no. 6458, sections 8(1)(e) and 12(2) of the Regulation on Temporary Protection (Council of Ministers Decision No. 2014/6883) and Article 2 of the 1951 Geneva Convention Relating to the Status of Refugees allowed the State authorities to deport persons who were under “temporary protection” and who posed a threat to national security, public order or public safety.

The Government further submitted that the applicants had been allowed to meet a lawyer on 23 October 2015. They submitted a document according to which the applicants and Ms D. Berberoğlu declared that they had met between 11 a.m. and 12 noon on that date. The document was signed by the applicants, Ms D. Berberoğlu and two police officers. The Government further contended that the administrative authorities had attempted to notify the applicants of the detention orders. In this connection, they submitted a document, issued at 2.45 p.m. on 26 October 2015, according to which the applicants had been informed that the deportation orders issued in their respect had been suspended until 17 November 2015 on account of the Court’s decision to stay their deportation to Syria but they would continue to be detained. The applicants had refused to sign that document. The Government also submitted three other documents, issued at 4 p.m. on 26 October 2015, according to which the applicants had been notified that they were being detained on the basis of a decision by the governor’s office to renew the detention order issued on 22 October 2015. The applicants had refused to sign them.

The Government further claimed that before applying to the Court the applicants should have applied to the administrative courts with a view to challenging the deportation orders issued in their respect. They further submitted that the applicants should have brought their Convention grievances before the Constitutional Court. Lastly, they noted that on 6 November 2015 the Ministry of the Interior had ordered that the applicants be released from detention and be notified that they were requested to leave Turkish territory.

On 16 November 2015 the duty Judge decided to prolong the interim measure indicated under Rule 39 of the Rules of Court until further notice.

On the same day the applicants’ representative informed the Court that the applicants had been released on 9 November 2015 and instructed to leave Turkey as soon as possible. The applicants were also warned that they would risk being subject to administrative detention if they did not leave Turkey or breached domestic law. The applicants’ representative lastly noted that she could obtain powers of attorney from the applicants only after their release from detention.

According to submissions made by the applicants’ representative on 15 and 25 January 2016, on 8 December 2015 the second and third applicants lodged cases with the Ankara Administrative Court challenging the order to leave Turkish territory served on them on 9 November 2015. The first applicant left Turkey on 1 December 2015 and currently resides in Germany, where he applied for asylum, on the basis of a temporary residence permit. As a result, the applicants’ lawyer did not lodge a case with the administrative court on his behalf. At the time, the second and third applicants were still in Turkey, despite the fact that they obtained visas from the Consulate General of France on humanitarian grounds. The applicants’ lawyer submitted that they were waiting for the Turkish authorities to issue the documents required for their departure from Turkey and that the proceedings before the Ankara Administrative Court were pending.

On 22 March 2016 the applicants’ representative informed the Court that on 27 January 2016 the second and the third applicants had left Turkey and applied for asylum in France, where they currently live.

The relevant domestic law regarding the individual application to the Constitutional Court can be found in Hasan Uzun v. Turkey ((dec.), no. 10755/13, §§ 7-27, 30 April 2013).

On 11 April 2014 the Foreigners and International Protection Act (Law no. 6458) entered into force. Sections 52-60 of the Act concern the procedure for the removal of foreign nationals from Turkey, the judicial review of removal orders and detention pending removal. The provisions relevant to the present case are as follows:

“(1) Foreigners may be deported to their country of origin or a transit country or a third country by a deportation decision.

“(1) A deportation decision shall be issued on the instructions of the Directorate General or ex officio by governors’ offices.

(2) The decision and the reasons for it shall be notified to the foreigner or his or her legal representative or lawyer. If the person in respect of whom a deportation order has been issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal.

(3) A foreigner or his or her legal representative or lawyer may appeal to the administrative court against the deportation decision within fifteen days of the date of notification. The person appealing against the decision shall also inform the authority that has issued [it] about the appeal lodged with the court. Applications to court shall be decided within fifteen days. The court’s decision on the issue shall be final. Without prejudice to his or her consent, the foreigner shall not be deported within the time-limit for bringing a case against the deportation decision or in case of an appeal, until finalisation of the judgment.

(1) A deportation decision may be issued in respect of foreigners:

(d) who constitute a threat to public order and security or public health,

(1) Where foreigners who fall into one of the categories listed in section 54 of the present Act are apprehended by law-enforcement units, the governors’ offices shall be notified immediately for a decision to be taken in their respect. Deportation decisions shall be issued by the governors’ offices in respect of foreigners for whom such a decision is deemed necessary. The assessment and decision-making period shall not exceed forty-eight hours.

(2) A foreigner in respect of whom a deportation decision has been issued shall be placed in administrative detention by a decision of the governor’s office if [he or she] poses a risk of absconding or disappearing, has violated the rules for entry into and exit from Turkey, has used false or fabricated documents, has not left Turkey within the period granted without an acceptable excuse, or constitutes a threat to public order and security or public health. Those in respect of whom an administrative detention order has been issued shall be transferred to a removal centre within forty-eight hours by the same law-enforcement unit that apprehended them.

(3) The period of administrative detention in removal centres shall not exceed six months. However, if the deportation process cannot be completed owing to the failure of the foreigner to co-operate or provide correct information or documents regarding his or her country [of origin], this period may be extended for a maximum of six months.

(4) The need to continue administrative detention shall be reviewed monthly by the governor’s office. Where necessary, reviews may be conducted earlier. If a foreigner’s administrative detention is no longer deemed necessary, it shall be terminated immediately. Foreigners who have been released may be required to comply with such obligations as residing at a designated address and reporting to authorities in the manner and period requested.

(5) The administrative detention decision, the extension of the period of administrative detention and the results of the monthly reviews with the reasons on which they are based shall be notified to the foreigner or his or her legal representative or lawyer. If the person in respect of whom a deportation order has been issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal.

(6) A person who has been placed in administrative detention or his or her legal representative or lawyer may appeal against the administrative detention decision to the Magistrates’ Courts. The appeal shall not stay the execution of the administrative detention. In the event that the [appeal] is submitted to the administration, it shall be sent to the competent Magistrates’ Court without delay. The Magistrates’ Court shall conclude the review within five days. [Its] decision shall be final. A person who has been placed in administrative detention or his or her legal representative or lawyer may lodge a further appeal with the Magistrates’ Courts should the conditions for administrative detention have ceased to exist or changed.

(7) A foreigner who appeals against a detention order and does not have the means to pay for a lawyer shall be provided with legal aid on request, in accordance with the relevant provisions of the Attorneys Act (Law no. 1136) of 19 March 1969.

(1) In removal centres:

(b) foreigners shall be allowed access to and given the opportunity to meet with their relatives, notary public, legal representative and lawyer, as well as access to telephone services;

On 11 November 2015 the Constitutional Court rendered a decision on an individual application brought before it by a Syrian national who complained of his threatened deportation to Syria, the poor conditions of his detention at the Kumkapı Foreigners’ Removal Centre, the absence of an effective remedy whereby he could raise his allegations concerning the conditions of his detention, the unlawfulness of his detention, the failure to provide him with information on the reasons for his detention, and the absence of an effective remedy to challenge the lawfulness of his detention (application by Mr K.A., no. 2014/13044).

Mr K.A. had been placed in administrative detention at the Kumkapı Foreigners’ Removal Centre on 25 April 2014. A detention order was issued on 28 April 2014 for a period of six months pending his deportation. The cases that he brought before the Istanbul Magistrate’s Court and the Istanbul Administrative Court with a view to challenging the detention and deportation orders and to complaining about the conditions of his detention were dismissed by those courts. On 5 December 2014, when he applied to the Constitutional Court, he requested that the implementation of the deportation order be suspended. On 10 December 2014 the Constitutional Court allowed Mr K.A.’s request and suspended the implementation of the deportation order. Subsequent to the Constitutional Court’s decision, the Istanbul Magistrate’s Court ordered the applicant’s release, noting that he could not be deported in the light of the interim measure issued by the Constitutional Court. Mr K.A. was released on 6 January 2015.

In its decision, the Constitutional Court first declared the applicant’s complaint that he was at risk of death or ill-treatment in the event of his removal to Syria inadmissible. It held that as a Syrian national, the applicant did not face a risk of expulsion since he was under “temporary protection” pursuant to the Regulation of 22 October 2014 and, as a result, could not be deported.

The Constitutional Court further examined the applicant’s complaint regarding the conditions of his detention and the alleged absence of an effective remedy whereby he could raise his allegations concerning the conditions of detention. Referring to the Court’s case-law, in particular, the judgment in the case of Yarashonen v. Turkey (no. 72710/11, 24 June 2014), it held that the conditions at the Kumkapı centre had constituted treatment incompatible with human dignity and that the applicant had not had an effective remedy at his disposal to raise his grievance concerning those conditions.

The court further found that Article 19 §§ 2, 4 and 8 of the Constitution had been breached. It held that the applicant’s detention had been unlawful, that he had not been informed of the reasons for his detention and that he had not had an effective remedy whereby he could challenge the unlawfulness of his detention.

As regards the complaint concerning the unlawfulness of Mr K.A.’s detention, the Constitutional Court first noted that he had been placed in administrative detention on 25 April 2014, whereas the detention order had not been issued until 28 April 2014. The court therefore found that his detention between 25 and 28 April 2014 had lacked a legal basis. The court further noted that by not reviewing the detention order on a monthly basis, the governor’s office had failed to comply with section 57 of Law no. 6458. It lastly observed that Mr K.A. had been detained for eight months and ten days, despite the fact that the detention order had been valid for only six months. The court thus concluded that the authorities had failed to act with diligence and that the applicant’s detention had not been lawful.

As to Mr K.A.’s complaint that he had not been informed of the reasons for his detention, the Constitutional Court observed that he had not been served with a deportation order at the beginning of his administrative detention. Nor had he been informed of the reasons for his continued detention. The court therefore found that the administrative authorities had failed to comply with section 57 of Law no. 6458.

As to Mr K.A.’s allegation that he had not had access to an effective remedy to challenge his detention, the Constitutional Court held that the magistrate’s court had failed to carry out an adequate examination of his application, even though Law no. 6458 provided for the protection of detainees against arbitrariness. Referring to this Court’s judgment in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, 22 September 2009), the court also held that in the absence of information on the reasons for his detention, Mr K.A.’s right to appeal against his detention had in any case been deprived of all effective substance. As a result, the court found that Mr K.A. had not had an effective remedy whereby he could obtain judicial review of the lawfulness of his detention.

Lastly, the Constitutional Court awarded Mr K.A. 10,000 Turkish liras (TRY) (approximately 3,200 euros (EUR)) for the non-pecuniary damage he had suffered as a result of the violations of his aforementioned rights.

On 9 October 2015 Amnesty International released a call for urgent action against the applicants’ possible deportation from Turkey to Syria:

“Two Palestinian refugees coming from Syria, Ali Fares and Mohammed Fares, and Syrian refugee Abdalsalam Sakal, have been detained in Turkey since 22 September and are facing deportation. If deported they are at risk of serious human rights violations.

Palestinian refugees coming from Syria Ali Fares and Mohammed Fares and Syrian refugee Abdalsalam Sakal were detained during a demonstration by Syrian refugees at the main bus station in Istanbul. The demonstrators were demanding to be allowed to go to the Turkish border city of Edirne, in order to attempt to cross to Greece. Ali Fares and Mohammed Fares (who are not related) are Palestinian refugees formerly resident in Iraq but who fled to Syria 10 years ago following the 2003 war in Iraq. They are both registered with the United Nations Relief and Works Agency for Palestine Refugees.

The three refugees were detained on 22 September together with two activists from France and Germany, who have since been deported back to their countries for violating the Law on Meetings and Demonstration Marches. The deportation and administrative detention order of the three refugees was issued on 22 September citing Art. 54 of the Law on Foreigners and International Protection. The order does not state which country they would be deported to, but does authorize for them to be held in administrative detention for one month. Ali Fares and Mohammed Fares and Abdalsalam Sakal were taken to Kumkapı Deportation Centre, in Istanbul.

Ali Fares and Mohammed Fares only had access to a lawyer on the first day of their detention. On 2 October a lawyer from the NGO Refugee Rights Centre visited the Deportation Centre but was refused access to the three refugees. On 3 October the lawyer received a phone call from the three refugees informing her that they were being flown to Erzurum province in eastern Turkey. They are currently detained in the Aşkale Deportation Centre in Erzurum and since their arrival they have not been able to exercise their right to legal representation.

Due to the ongoing conflicts in both Syria and Iraq, and in line with the principle of non-refoulement (a principle of the international refugee protection system which prohibits the transfer of anyone to a place where they would be at real risk of serious human rights violations), no one should be forcibly returned to either country, since they would be at real risk of serious human rights violations or abuses.”

On 21 October 2015 Amnesty International issued a second urgent action regarding the applicants’ alleged inability to have access to the outside world:

“Palestinian refugees Ali Fares and Mohammed Fares and Syrian refugee Abdulsalam Sakal have been detained since 22 September and were again prevented from seeing a lawyer on 16 October. On 20 October, the authorities prevented Mohammed Fares’ mother from seeing him and denied that he was even being held in the deportation centre in Erzurum.

On 16 October the Head of the Erzurum branch of the NGO Human Rights Association (İHD) and a lawyer went to the Erzurum Deportation Centre in Aşkale, eastern Turkey, to see Ali Fares, Mohammed Fares and Abdulsalam Sakal who are facing deportation. Officials at the centre acknowledged that the men were there, but did not allow the lawyer to meet them on grounds that such a meeting required the permission of the General Directorate for Migration Management. On 20 October officials at the centre denied Mohammed Fares’ mother access to her son and would not acknowledge that he was being held there. The conditions the men are being held in amount to incommunicado detention, in violation of Turkish law and international human rights law.

This is the second time the three refugees’ rights to consult a lawyer have been denied since their detention on 22 September. On 2 October a lawyer from the NGO Refugee Rights Centre attempted to visit them while they were being held at the Kumkapı Deportation Centre in Istanbul, but she was denied access to them. The next morning the lawyer received a call from the three refugees, informing her that they were being taken to Erzurum Deportation Centre.

Refugees’ and asylum-seekers’ right to consult a lawyer and meet their relatives is enshrined in the Law on Foreigners and International Protection. Article 59/1-b states that: ‘the foreigner shall be allowed access to and given the opportunity to meet with their relatives, notary public, his/her legal representative and the lawyer, as well as access to telephone services’. Furthermore, Article 68/8 states: ‘The person subject to administrative detention shall be granted access to legal representative, lawyer, notary public and United Nations High Commissioner for Refugees officials.’”


CASE OF CEAICOVSCHI v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

The applicant was born in 1966 and lives in Chișinău.

The applicant is the chief executive officer of a large Moldovan company specialised in the importation of medical equipement.

On 8 April 2015 he was arrested by the National Anti-Corruption Center (NAC) in connection with a crimial investigation opened in November 2014. He was charged with bribery in the context of public auctions. Searches were conducted at the applicant’s home and at the headquarters of his company and numerous documents, computers and mobile phones were seized by the investigators.

More than twenty persons were accused in the same criminal case. Among them were the former Minister of Health and hospital directors. Many of them were apprehended and later released by the NAC or by the courts. As of July 2015, the applicant was the only accused who was kept in custody.

After arrest the applicant was placed in the NAC detention facility. Between 8 April and 8 October 2015 the applicant was detained in custody. Between 8 October and 4 November 2015 he was detained under house arrest.

The need for the applicant’s detention was justified by the prosecutors in the following way: that the applicant could abscond; he could influence witnesses; he could collude with other co-accused persons; and because the offence imputed to him was sanctioned with imprisonment of up to ten years. All of the prosecutors’ applications for the prolongation of the applicant’s detention were identical.

The applicant argued every time that he was ready to give up his passport and that there were no reasons to believe that he would attempt influencing witnesses or hindering the investigation. The reasons relied upon by the prosecutors in favour of detention were stereotyped and there was no evidence that he intended to abscond or do other things imputed to him. He also argued that he had a family, children, a permanent employment and a permanent abode.

On 10 April 2015 the Buiucani District Court issued a detention order for a period of thirty days arguing that the applicant did not produce guarantees in favour of an undertaking not to hinder the good unfolding of the investigation if no detention was applied. That decision was later upheld by the Chișinău Court of Appeal, which added that there was also a risk of the applicant’s reoffending.

On 7 May 2015 the Buiucani District Court prolonged the applicant’s detention by twenty-five days relying on the same grounds as before. The applicant’s appeal was rejected by the Court of Appeal on 14 May 2015. The Court of Appeal used the same arguments as the first time and added that one of the reaosons to hold the applicant in custody was to protect other persons involved in the proceedings from his violent actions.

By decisions dated 1 and 26 June, 21 July 2015 and 15 August 2015 the Buiucani District Court prolonged the applicant’s detention for twentyfive days each time. The court relied on similar reasons as before. The Court of Appeal dismissed the applicant’s appeals arguing that the applicant’s defence did not prove the fact that the applicant did not intend to abscond or hinder the investigation. In a decision of 11 June 2015 the Court of Appeal held for the first time that there was a risk of the applicant’s absconding.

On 15 and 29 September 2015 the Buiucani District Court prolonged again the applicant’s detention by twenty and eight days, respectively. It argued that the risk of absconding was justified by the gravity of the offence and that the prosecutor had presented evidence in support of the claim that the applicant may hinder the investigation. The court did not state what that evidence was. On 6 October 2015 the Buiucani District Court prolonged again the applicant’s detention by ninety days.

On 8 October 2015 the Court of Appeal examined the appeals lodged by the applicant against the decisions of 29 September 2015 and 6 October 2015. In its first judgment it dismissed the applicant’s appeal after finding that all the risks enumerated by the first-instance court persisted. However, when examining the appeal against the second decision, the same panel of judges considered that the risk of the applicant’s absconding was no longer justified and that there were no new reasons to consider necessary the applicant’s continued detention. Therefore, the Court of Appeal ordered the applicant’s house arrest.

On 4 November 2015 the applicant lodged a habeas corpus request and asked for the revocation of the house arrest. On the same date the Buiucani District Court accepted the applicant’s request and ordered his release from house arrest.

On 9 April 2015, on the second day of his detention, the applicant felt an accute pain in the region of his lower back. At 10.46 p.m. an ambulance was called for the applicant. The doctors diagnosed the applicant with “lumbar radicular syndorme with pronounced algic syndrome” and prescribed him hospitalisation. However, the prison administration refused to follow the doctors’ prescription.

Several hours later, on 10 April 2015 between 3 and 4 a.m. the applicant started experiencing again pain and asked for an ambulance to be called. An ambulance was called only at 9.27 a.m. The doctors repeated the same diagnosis and prescribed again hospitalisation. However, the prison administration refused to follow the doctors’ prescription.

At 10.10 a.m. an ambulance was called again for the applicant. This time the doctors diagnosed the applicant with “artherial hypertension of third degree”, “discopathie with agravated algic syndrome” and “lumbar radiculopathy” (sensory and/or motor deficit). Hospitalisation was again prescribed, but the prison administration refused to follow the doctors’ prescription.

At 11.44 a.m. an ambulance was called again for the applicant. The doctors diagnosed again “lumbar radiculopathy” and discopathie with a possible lesion of the nerve. The doctors reiterated the urgent need for hospitalisation, but the administration refused again.

At 2 p.m. the administration invited several doctors from the Institute of Neurology and Neurosurgery who confirmed the initial diagnosis and the urgent need for hospitalisation. Only after that, the prison administration allowed the applicant’s transfer to a hospital.

On 11 April 2015 the applicant was operated on his spine at the Institute of Neurology and Neurosurgery. He remained in hospital until 21 April 2015, when he was moved to a prison hospital.

On 22 June 2015 the applicant was examined by a commission of five doctors who diagnosed him with cholecystitis and fequent biliary colic. They recommended him surgical removal of his gall bladder within maximum seven days.

After that date the applicant and his lawyers submitted numerous requests and complaints to different authorities seeking the approval of his surgery. It was only on 3 August 2015, after the applicant’s condition drastically deteriorated, that his transportation to a normal hospital was approved. He had high fever and presented a swelling. After three days of preparations, he was subjected to surgery on 6 August 2015 and remained in intensive care for another week.


Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Martin Buzinger, is a Slovak national, who was born in 1971 and lives in Bratislava. In addition to the present case, he was the applicant in six and represented applicants in seven other cases before the Court.

In the present case, he was represented before the Court by Ms M. Lukačovičová, a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

The applicant is a practicing lawyer. He provided legal services in association with a partner, A., with whom he shared premises.

On 2 September 2002 he filed a criminal complaint stating that, the previous night, A. had unlawfully removed various items of office equipment from their law firm and that the criminal offence of theft might have been committed in that connection. He specified the value of the damage thus suffered and submitted a claim against A. for compensation.

Subsequently an investigation was opened into a suspicion of theft having been committed by one or more persons unknown. The investigation was terminated because there was no case to answer, but that decision was quashed following the applicant’s complaint. The ensuing new investigation into a suspicion of embezzlement was terminated twice, the former termination being quashed following the applicant’s appeal. The applicant’s appeal against the latter termination was rejected on 11 December 2012 for being belated.

On 28 October 2009 the Constitutional Court rejected a complaint in which the applicant had challenged the length of the criminal proceedings, in so far as they concerned his claim for damages.

From the observations of the Government on the admissibly and merits of the application, it transpired that, in parallel to claiming damages in the context of the above criminal proceedings, on 3 September 2004 the applicant had filed an action for damages against A. before the civil courts.

On 17 June 2010 the Bratislava I District Court partly granted and partly dismissed the action. The judgment was however quashed by the Bratislava Regional Court on 31 January 2012 following appeals by both parties. The matter was thus remitted to the first-instance for re-examination and it has been pending there since.

In all the above proceedings, the applicant was or has been represented by a practicing lawyer or a law firm.


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants, Mr Gunnar Morén, Mr Erik Magnusson, Mrs Margareta Flink and Mr Bengt Lönnqvist, are Swedish nationals who were born in 1959, 1925, 1935 and 1949, respectively. They all live in Ludvika and were represented by Ms C. Ludvigsson, a lawyer practising in Borlänge.

The Swedish Government (“the Government”) were represented by their Agent, Ms H. Kristiansson, of the Ministry for Foreign Affairs.

The mine (Gränsgruvan) was discovered in the county of Dalarna in 1939 by company AJ. In 1941, mining concessions (utmål) were granted for iron and lead ore deposits in the mine as well as in a second mine (Gränsgruvan no. 2) to company AJ. In 1942, the concession area was expanded and, in 1944, mining concessions were granted to company AJ for iron ore deposits at two more mines (Gruvsjöettgruvan and Gruvsjötvågruvan). In 1967, the area was expanded further. In connection with each procedure, certain parts of the properties concerned were bought by company AJ and compensation was paid to the property owners. Certain compensation was also paid to landowners for damage to their forests and land. Extraction of minerals was in progress from 1945 to 1953, and from 1965 to 1972.

In 1972 company BM acquired all of the above mining concessions from company AJ, including the properties that company AJ had bought over the years, and undertook mineral extraction from 1973 to 1981. No mineral extraction has taken place since 1981.

In December 1998 company BM applied to the Mining Inspectorate of Sweden (Bergsstaten) for an exploitation concession (bearbetnings-koncession) for minerals within the area. The application related to the conversion of the old permits, granted in 1941 and 1944, into one new exploitation concession in accordance with transitional provisions to the new Minerals Act (Minerallagen, 1991:45). In its application, company BM noted, inter alia, that the remaining minerals in the area had been examined mainly to determine whether it would be possible to exploit the minerals with profit since the ore in question had proved difficult to refine with conventional techniques. The calculations had shown good potential and studies were continuing to investigate whether saleable concentrates could be obtained and whether the circulation of processed products could work on a continuous scale.

As the applicants’ land was within the defined area, they were informed about the application and given the opportunity to comment. In their submission, they stressed the impact on nature and, in particular, the negative effects that mining could have on nearby water sources which, they considered, should be examined further.

On 28 November 2000 the Mining Inspectorate granted company BM an exploitation concession, valid for 25 years. The concession conferred upon the company the right to extract and exploit copper, gold, silver, zinc and lead according to the rules of the Minerals Act within the defined area. Moreover, it was linked to a number of conditions, inter alia, relating to securing the area during exploitation and restoring the area and its nature afterwards. In reaching the decision, the Mining Inspectorate observed that the County Administrative Board (Länsstyrelsen) of the County of Dalarna did not object to the concession being granted and that extensive exploration and development work was already on-going in accordance with the old permits. It further found that no other obstacles existed to granting the concession.

In its decision, the Mining Inspectorate further noted that any rights to landowner shares (jordägarandelar) or landowner rent (jordägaravgälder), from which the property owners might have benefited according to the old legislation for the permits, would cease pursuant to the transitional rules of the Minerals Act. However, it also observed that the decision did not affect any agreements that might exist between the concession holder and the landowner.

The applicants appealed against the decision to the Government, reiterating their concerns about the negative effects that mining would have on the surrounding nature and water sources. They further strongly objected to the fact that they would not receive any compensation for the minerals that would be extracted from their land. They considered this to be in violation of the Swedish Constitution as well as of the Convention.

On 11 September 2003 the Government rejected the appeal as it considered that no grounds had been presented to alter the Mining Inspectorate’s decision. Among other authorities, the Geological Survey of Sweden (Sveriges Geologiska Undersökning) submitted its comments on the appeal to the Government and noted, inter alia, that the decision to grant the exploitation concession had been essentially an administrative measure to convert the old permits to the single new concession but that it did not alter the use of the land within the defined area or any interests.

As the applicants were not satisfied with the Government’s decision, they applied to the Supreme Administrative Court (Högsta förvaltningsdomstolen) for judicial review according to the Act on Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205). They relied on Article 1 of Protocol No. 1 to the Convention and claimed that they had been deprived of their property rights since company BM would be able to extract minerals from their land without compensating them. This was also contrary to the custom which had existed in Dalarna since time immemorial. It had been abolished for political reasons through the Mining Act of 1974 (Gruvlagen, 1974:342) but Sweden was obliged to comply with the Convention.

On 6 October 2005 the Supreme Administrative Court upheld the Government’s decision in full. It noted that Swedish law allows for various measures to control the use of an individual’s land. Thus, the Minerals Act, as in force at the time of the Mining Inspectorate’s decision, allowed the Mining Inspectorate to grant physical and legal persons the right to explore and extract certain minerals enumerated in the Act even though they did not own the land where the minerals were located. The landowner had the right to receive compensation for any damage or encroachment suffered due to these activities but not for the value of minerals extracted by someone else. The court further observed that Article 1 of Protocol No. 1 to the Convention was not absolute but allowed for certain restrictions. Hence a State could enact such legislation as it considered necessary to regulate the use of property in accordance with the public interest. In these circumstances, the Government’s decision had not been in violation of the Convention or otherwise flawed.

Following communication of the application, the Government submitted extracts from the Swedish Real Property Register and informed the Court of the following ownership constellations of the properties affected by the concession and relevant to the present case:

Half of the property Ludvika Persbo 56:7 had been bought by the first applicant, Mr Morén, in November 1991 and the second half in December 1991. Thus, since December 1991 the first applicant has been the sole owner of this property.

The property Ludvika Persbo 7:14 had been inherited by the second applicant, Mr Magnusson, in November 1968. Thus, since this time, he has been the sole owner of the property.

The property Ludvika Persbo 12:13 had been inherited by the third applicant, Mrs Flink, in August 1998. However, in November 2004, she had given it as a gift to Mr L. Flink who, since then, has been the sole owner of the property.

The property Ludvika Persbo 25:1 had been inherited by the fourth applicant, Mr Lönnqvist, in November 2000. However, on 23 April 2012 he sold the property to Mr L. Flink who, since this date, has been the sole owner of the property.

The first regulations in public law in Sweden concerning mineral exploration and related matters date back to the 14th century. During the 16th century, various royal decrees and statutes were in force with the effect that mines belonged to the Crown. In 1723, a royal statute entered into force establishing the mining claim system which meant that a person who discovered a deposit could be given the exclusive right to extract the deposit if certain formalities had been observed. Landowners were given a landowner share (jordägarandel), namely a 50% share in the mineral extraction. The thinking behind it appears to have been to stop the landowner from preventing prospecting or keeping mineral deposits secret. The meaning of a landowner share was a right to participate in the extraction of the minerals corresponding to one’s share, that is, financial participation was necessary in order to collect income from the share. In 1855 and 1884 new mining statutes were issued through which the state regulated mining in more detail.

It was with the enactment of the Mining Act of 1938 (Gruvlagen, 1938:314, hereafter the “1938 Mining Act”) that an essentially comprehensive regulation entered into force. Mining concessions granted under the 1938 Mining Act or under earlier provisions applied indefinitely. The landowner share was removed and replaced by a corresponding share of the Crown. The landowner was instead awarded a landowner rent (jordägaravgäld). The principle of this was that the landowner would receive each year from the owner of the mine an amount equal to 1% of the value of the mineral extracted, but a maximum of SEK 5,000 (later raised to SEK 10,000). The landowner share was to be paid during the first twenty years that the mining operations were in progress. Thus, according to the preparatory works to the Mining Act of 1974 (Government Bill 1974:32, p. 129), the landowner rent was created as compensation to the property owner for the loss of the landowner share.

The 1938 Mining Act ceased to apply on 1 July 1974 when the Mining Act of 1974 (Gruvlagen, 1974:342, hereafter the “1974 Mining Act”) entered into force. This Act was also based on the mining claims system, but it had more concessional elements than previous acts. The 1974 Mining Act abolished the landowner rent. However, in the transitional provisions to the 1974 Mining Act, the landowner rent for mining concessions granted under the 1938 Mining Act was retained. Still, under Chapter 14, section 7, paragraph 5, of the transitional provisions to the 1974 Mining Act, all mining concessions granted before the entry into force of that Act would cease to apply on 31 December 1999. The rules on landowner rent would also cease to apply on this date.

On 24 January 1991 the Minerals Act (Minerallagen, 1991:451) was promulgated and, on 1 July 1992, it entered into force, replacing the 1974 Mining Act. The Minerals Act is still in force. It is essentially based on the concession system which means that the State, following a discretionary examination, grants individuals the right to prospect for and exploit mineral deposits. Through the Act, the mining claims were replaced by exploration permits (undersökningstillstånd), Chapter 2 of the Minerals Act, and mining concessions were replaced by exploitation concessions (bearbetningskoncessioner), Chapter 4 of the Minerals Act. According to section 7 of that chapter, exploitation concessions are granted for a period of 25 years.

According to Chapter 5, section 2, of the Minerals Act, the owner of a real property may exploit deposits of concession minerals for his own domestic use without a concession, provided that no other person holds a concession within the area.

Chapter 7 of the Mineral Act contains rules for when compensation may be granted to affected parties. Thus, section 1 provides that damage or encroachment resulting from exploration work shall be compensated by the holder of the exploration permit or concession. Section 2 states that for damage resulting from the granting of an exploitation concession, compensation shall be paid by the concession holder. In the event of exceptional detriment to any property or part thereof by reason of an exploitation concession having been granted, the concession holder shall purchase the property or part of the property suffering such detriment if the owner so requests. Section 3 provides the same obligations for the concession holder, and rights for the property owner, as section 2, in case of damage or encroachment resulting from land or other space being utilised for exploitation or activities connected thereto.

When the Minerals Act was enacted it contained no right for landowners to receive any compensation for minerals extracted on their properties. However, on 1 May 2005, a new provision, section 7, was introduced in Chapter 7 of the Minerals Act (through Act 2005:161). According to this provision, for each year that exploitation is undertaken, the concession holder shall pay mineral compensation equal to twothousandths of the calculated value of the minerals covered by the concession that are extracted and brought to the surface within the concession area during the year. Three quarters of the compensation shall be paid to the landowners within the concession area and one-quarter to the State. If there is more than one property within the area, the compensation payable to the landowners shall be determined according to each property’s share of the area. This provision does not have retroactive effect and thus does not apply to exploitation concessions granted prior to 1 May 2005.

In the preparatory works to this amendment to the Minerals Act (Government Bill 2004/05:40), the Government noted that the landowner rent had been abolished through the 1974 Mining Act because the Government at the time had considered that there were no reasonable grounds for a landowner, without contributing personally, to receive compensation from the concession holder for minerals extracted (ibid., p. 61 [with reference to Government Bill 1974:32, p. 130]). However, the Government observed that, during recent years, opposition against planned mining activities had become evident and it had led to the mineral legislation as a whole being considered unfair and outdated (ibid., p. 60). Thus, the Government considered that there was a strong general interest to create a Minerals Act which would provide a good framework for entrepreneurial initiatives and investments. It also had to be adapted to global changes and assure a balance between the interests of the landowners and the mining companies (ibid., p. 61). In this respect, the Government noted that the issue of ownership of discovered minerals was unclear in Sweden. They observed that the boundaries of a property in depth and height were contentious and that there was neither any existing legislation nor any preparatory works or literature to clarify the matter. Since the question was complicated and concerned fundamental property legislation, the Government found that there were not enough reasons, in the instant case, to take a stance on the matter (ibid., pp. 60-61). They then noted that landowners’ rights were in various ways limited and controlled by authorities and by others’ rights and that, for a long time, this had been the situation for landowners in relation to concession minerals. However, since landowners previously had received some sort of compensation, and a reintroduction of compensation could contribute to a wider acceptance of the mining industry in Sweden, the Government found that when making an overall assessment, there were now predominant reasons to re-introduce a special system for compensation for minerals extracted (ibid., pp. 62-63).