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

The applicant was born in 1975 and lives in Chisinau, Moldova.

On 28 October 2006 the applicant married Ms E.P., also a national of Moldova. On 15 June 2007 she gave birth to their son, A.P. At some point relations between the couple deteriorated. As was established by the Moldovan courts in subsequent proceedings, on 24 June 2008 Ms E.P. moved to the town of Cahul, in Moldova, where her parents lived. The boy, A.P., went with her.

On 22 August 2008 Ms E.P. initiated divorce proceedings before the Rîșcani District Court of Chisinau. She also sought a residence order in her favour in respect of A.P. On 25 September 2008 the applicant filed a counterclaim seeking a residence order in his favour in respect of the child.

On 13 September 2008, while the proceedings were still pending, Ms E.P. left Moldova with the child and settled in Moscow, Russia.

On 1 October 2008 the court fixed a contact schedule, pursuant to which the applicant was to be allowed to visit his son.

On 10 October 2008 the applicant sought a court order prohibiting Ms E.P. from leaving the country with the child without his consent. On the same date the court granted the order sought by the applicant. An interim restraining order was issued with immediate effect.

On 28 October 2008 Ms E.P., by letter, informed the court and the police that she was opposed to any contact between the applicant and their son. Her letter was certified by a notary public in Moscow.

On 31 October 2008 Ms E.P. obtained a certificate of “temporary residence registration” with the Russian Immigration Authority in Moscow. In the following months she went through this process several times, obtaining such a certificate for the last time on 26 June 2009.

In the following months Ms E.P. did not take part in the proceedings before the Moldovan courts; however, she was represented by a lawyer.

On an unspecified date the applicant contacted the Moldovan police in order to establish the whereabouts of the child. According to a written reply from the police dated 10 March 2009 (which was apparently based on information provided by Ms E.P.’s parents), the applicant’s son was living with his mother at an address on Nag. Street in Moscow.

According to the applicant, on 27 April 2009 Ms E.P. returned to Moldova with the boy. During their stay in Moldova she allowed the applicant to see the child twice. During one of the visits Ms E.P. informed the applicant that she was living with a new partner, Mr A.G., in Moscow and that she had told her son that Mr A.G. was his father.

On 12 May 2009 Ms E.P. left for Russia again, taking the child with her.

On the same date the applicant lodged a criminal complaint with the Russian police, seeking the institution of criminal proceedings against Ms E.P. for abduction of their child. A police officer of the Teplyi Stan Police Department questioned Ms E.P. and Mr A.G., and established that Ms E.P. was not preventing the applicant from seeing his son. The police officer concluded that the situation was within the jurisdiction of the civil courts and that there was no need for the criminal prosecution of Ms E.P.

The applicant contacted the Russian police and asked them to verify whether the child and the mother were in fact living at the address on Nag. Street. On 24 June 2009 and 29 December 2010 the Russian police informed the applicant that, according to their information, Ms E.P. and her son were not living at that address.

On 22 September 2009 the Rîșcani public prosecutor charged Ms E.P., in absentia, under Article 207 of the Criminal Code of Moldova. On the same date her name was put on Moldova’s wanted list by the police.

Ms E.P. was represented by two lawyers in the divorce and child residence proceedings before the Rîșcani District Court. According to a letter issued by the District Court, Ms E.P. was properly notified of the hearings, but failed to appear.

On 28 October 2009 the Rîșcani District Court decided the case in favour of the applicant. In its judgment the court analysed the child’s living conditions, the circumstances of separation of the parents, their respective home lives, income, occupation, social habits and so forth. The judgment was upheld at two levels of jurisdiction – on 28 January 2010 and, in the final instance (the Supreme Court of Justice), on 19 May 2010. The judgment of 28 October 2009, as upheld, dissolved the marriage and ordered that the boy’s habitual residence (domicile) for the purposes of his upbringing and education should be with his father (the applicant).

On 4 December 2009 the Russian police (Teplyi Stan Police Department) detained Ms E.P. in connection with the criminal proceedings which had been opened against her in Moldova, but she was released within a few hours.

On 18 June 2010 Ms E.P. married Mr A.G. in Moscow. For some time they lived together in Moscow at an address on Bak. Street. Ms E.P. enrolled the boy in a kindergarten situated in Moscow. She requested the kindergarten not to allow the applicant to see the child. The child was also registered with and started to receive treatment at one of the public polyclinics in Moscow.

On 12 May 2010 the applicant asked the Moscow City Court to issue a warrant of execution on the basis of the Rîșcani District Court’s judgment of 28 October 2009. As per the Government’s explanations, the applicant lodged this request not directly, but through the Rîșcani District Court, which, in turn, forwarded it to the Ministry of Justice of Moldova.

On 4 June 2010 the Ministry of Justice of Moldova, with reference to the bilateral treaty between Moldova and Russia of 25 February 1993, asked the Russian Ministry of Justice to assist the applicant in the enforcement of the judgment of 28 October 2009. They informed the Russian Ministry of Justice that A.P. was living with his mother at an address on Bak. Street in Moscow.

It would appear that, subsequent to her marriage (see paragraph 24 above) to Mr A.G., a Russian national, Ms E.P. applied for Russian citizenship on the basis that her birthplace had been in Russia and she was married to a Russian national.

On 21 July 2010 the applicant’s application for a warrant of execution was received by the Moscow branch of the Russian Ministry of Justice. On 5 August 2010 that application, together with enclosed documents, was forwarded to the Moscow City Court.

On 10 September 2010 the Moscow City Court received the application together with the enclosed documents.

On 15 September 2010 a judge of the Moscow City Court refused to examine the validity of the judgment of 28 October 2009 for the purposes of enforcement on the territory of Russia. The judge held that, pursuant to the bilateral treaty between Moldova and Russia of 1993 and the Minsk Convention of 1993, such judgments were self-executing and did not need any further action in order to be enforced. In addition, the judgment of 28 October 2009 had not imposed on the defendant (Ms E.P.) any obligation to act or to refrain from acting in a particular way. The Moscow City Court concluded that it had no competence to examine the applicant’s application.

The decision of 15 September 2010 was forwarded to the applicant on 16 September 2010 by registered mail. According to the Government, it was received by the applicant in Moldova on 10 November 2010.

On the same date (on 16 September 2010), the documents enclosed by the applicant with his application for a warrant of execution were returned to him. As is apparent from the explanations of the Government, those documents were sent through the Moscow branch of the Ministry of Justice, which forwarded them to the federal Ministry of Justice, which, in turn, forwarded the documents to the Moldovan Ministry of Justice for further dispatch to the applicant.

Having received the decision of 15 September 2010, the applicant appealed. However, since by that time the time-limits for lodging an appeal had expired, he first introduced a motion with the Moscow City Court for waiver of the time-limit.

On 10 December 2010 the Moscow City Court examined the applicant’s motion and ruled that, in view of the applicant’s explanations, the timelimit had to be waived. The appeal was consequently forwarded to the Supreme Court of the Russian Federation.

On 1 February 2011 the ruling of 15 September 2010 was quashed by the Supreme Court of the Russian Federation. The Supreme Court disagreed with the lower court’s interpretation of the Minsk Convention. Furthermore, the Supreme Court noted that the first-instance court was not in a position to conclude whether the Rîșcani District Court’s judgment of 28 October 2009 did not require enforcement, as the materials of the case did not contain a “certified copy of that decision”. The case was remitted to the Moscow City Court for fresh examination. On 17 February 2011 the case file was forwarded from the Supreme Court to the Moscow City Court.

On an unspecified date Ms E.P. brought court proceedings before a Russian court seeking to obtain a residence order in respect of the child.

On 18 January 2011 the Cheremushki District Court of Moscow refused to consider her application, holding that the dispute had already been resolved by another court, namely the Rîșcani District Court.

On 23 February 2011 the applicant wrote a letter to the Moscow City Court in which he reiterated his original position and arguments and informed the court that Ms E.P. was continuing to live at an address on Bak. Street.

On 24 February and 17 March 2011 a judge of the Moscow City Court examined the case file and issued procedural rulings ordering additional evidence to be gathered. In particular, the judge decided to call Ms E.P. for a preliminary discussion concerning the case on 17 March 2011. On that date the judge set the case for an open hearing and ordered that the parties be notified.

The judge also invited the applicant to resubmit the package of documents he had previously submitted together with his first application of 12 May 2010 (letter of 25 February 2011, no. 3M-0061/2011). The judge indicated that those documents should reach the Moscow City Court before 17 March 2011.

On 3 March 2011 the Ministry of Justice of Russia received from the Ministry of Justice of Moldova a renewed application for a warrant of execution together with supporting documents. A cover letter by the Ministry of Justice of Moldova referred to the provisions of the Minsk Convention and was very similar to the first letter sent on 4 June 2010. The request contained forty pages of enclosures, consisting of court decisions by the Moldovan courts in the applicant’s case.

On an unspecified date the request by the Moldovan Ministry of Justice was forwarded by the federal Russian Ministry of Justice to its Moscow branch.

On 22 March 2011 the Moscow branch of the Ministry of Justice received the application and on 24 March 2011 forwarded it with the enclosed documents to the Moscow City Court. In a cover letter addressed to the President of the Moscow City Court, the Russian Ministry of Justice asked to be kept informed about the developments in the applicant’s case. According to the Government, application and the enclosed documents were only received by the Moscow City Court on 27 April 2011.

On 7 April 2011 the Moscow City Court, following the remittal of the case from the Supreme Court of Russia, re-examined the first application. Ms E.P. was present at the hearing. She argued that the original judgment of 28 October 2009 had been unlawful, as the Chisinau court had been incompetent to examine the dispute. She insisted that the applicant and the Moldovan courts had been perfectly aware of her moving to Russia with the child on 13 September 2008. She also argued that the Moldovan courts should not have examined the case, as only the courts of the country where the child and his resident parent or lawful guardian had established de facto residence were competent to hear such a case. According to Ms E.P., the Moldovan courts had based their jurisdiction on the “registration” (propiska) status of the child, whereas his de facto residence was in Russia, together with his mother. Ms E.P. also argued that she was working and was capable of taking proper care of her son in Moscow.

The Moscow City Court rejected the arguments made by Ms E.P. It ruled that the child (A.P.) was residing in Moscow on a temporary basis, as confirmed by the temporary registration certificates, and that his permanent place of residence was in Chisinau. Consequently, the Chisinau court had been competent, under the Minsk Convention and the bilateral treaty of 1993, to examine the matter.

Further, the Moscow City Court held that none of the reasons preventing enforcement of a foreign judicial decision stated in Article 55 of the Minsk Convention existed in the case at hand. The alleged “unlawfulness” of the judgment of the Rîșcani District Court under the Minsk Convention and the Civil Procedure Code did not prevent the Russian courts from issuing a warrant of execution.

As a result, the Moscow City court granted the application and ordered the enforcement of the judgment of 28 October 2009 on the territory of Russia. It stipulated that that judgment had ordered that the child reside, for the purposes of his upbringing and education, with his father.

Ms E.P. appealed. In her statement of appeal she developed the arguments she had put forward before the Moscow City Court. In particular, she referred to the provisions of Russian law on the legal status of foreigners which defined a foreigner’s place of “permanent residence” as the place where the foreigner lives permanently and lawfully for a significant amount of time. She also maintained that the enforcement of the Rîșcani District Court’s judgment would be contrary to the best interests of the child, as set forth in the 1989 UN Convention. In particular, she argued that the child did not remember the applicant and considered her new husband, Mr A.G., to be his father, and that returning him to the care of his biological father would endanger his psychological well-being and development. Ms E.P. claimed that the decision of the Moscow City Court had ignored her son’s best interests: in particular, she referred to the decision of the Supreme Court of Russia in the case of K., where the Russian courts had refused to enforce a decision of an Ukrainian court, finding that the children involved were living permanently on the territory of Russia and therefore only the Russian courts were competent to decide, on the basis of Russian law, the child residence dispute between the parents.

The applicant lodged a written memorandum in reply to the statement of appeal by Ms E.P. The applicant contested her argument concerning the alleged lack of jurisdiction of the Moldovan courts in the child residence proceedings. He further insisted that Ms E.P.’s conduct had been immoral and harmful for the child.

On 13 July 2011 the Moscow City Court wrote a letter to the applicant explaining that on 27 April 2011 it had received a package of documents from the applicant. It appears that this was the same package which the applicant had previously submitted together with his first application for a warrant of execution (that of 12 May 2010), which had later been returned to him by the Moscow City Court on 16 September 2011, and which the Moscow City Court had requested from him again on 25 February 2011.

On 7 June 2011 the Supreme Court of the Russian Federation examined Ms E.P.’s appeal. The hearing took place in presence of Ms E.P.; the applicant was absent from the hearing. She repeated her argument concerning the distinction between “registration” and “residence”, insisted that the Moldovan courts had misinterpreted the relevant provisions of the Minsk Convention, and asserted that they had lacked jurisdiction to hear the case. Ms E.P. also referred to the provisions of Article 412 of the Code of Civil Procedure (“the CCP”), which provided that a foreign judgment should not be executed on the territory of the Russian Federation if it could harm the sovereignty or security of the Russian Federation or if it was contrary to public policy. Ms E.P. claimed that separating a small child from his mother would be contrary to the public policy of the Russian Federation.

Following the hearing the Supreme Court quashed the Moscow City Court’s judgment of 7 April 2011. The Supreme Court found that the applicant had failed to follow the procedure established by the Minsk Convention. In particular, he had not submitted the following documents to the Russian courts: a certified copy of the Rîșcani District Court’s judgment, a letter from the Rîșcani District Court asking for the enforcement of the judgment on the territory of the Russian Federation, a statement by the judge that the judgment had not yet been enforced in Moldova, a confirmation by the same judge that Ms E.P. and her representative had been duly notified of the date and place of the hearing before the Rîșcani District Court, and, finally, a statement by the Rîșcani District Court that the judgment had entered into force. The Supreme Court also noted that the translations into Russian of the court documents submitted by the applicant had not been made. In such circumstances, the Moscow City Court should not have granted his application for a warrant of execution – instead, under Article 136 of the CCP the City Court was obliged to adjourn the proceedings and give the applicant the opportunity to submit the missing documents. The Supreme Court ordered that the case be remitted for fresh consideration.

On 1 August 2011 the case was received by a judge of the Moscow City Court. The judge ordered that Ms E.P. be summoned and that she provide details of the address she had stated when obtaining temporary registration in Moscow.

On 15 August 2011 the judge set 29 August 2011 as the date of the hearing of the case and ordered that Ms E.P.’s second husband, Mr A.G., be summoned.

On 16 June 2011 Ms E.P. left her second husband, Mr A.G., and took the child with her. Mr A.G. stated (see below) that he was aware that she had moved in with a new partner, but he did not know his name or where they were living.

On 4 July 2011 a police officer from the Teplyi Stan Police Station visited Mr A.G. and inquired about the whereabouts of A.P. On the next day a municipal council worker visited Mr A.G. and asked him the same question, but Mr A.G. was unable to give any specific information in response. It appears that by that time relations between Mr A.G. and Ms E.P. had seriously deteriorated and Mr A.G. was considering starting divorce proceedings.

On 15 July 2011 the applicant lodged a motion for interim measures with the Moscow City Court. He informed the court that Ms E.P. and Mr A.G. had split up, that she had taken the child with her, and that their whereabouts were unknown. He also alleged that her new partner was potentially violent and that he had previously threatened to beat up Mr A.G. The applicant claimed that in order to protect the child from the unpredictable behaviour of his mother and her new partner interim measures were needed. First, the applicant asked the court to obtain from the police details of the new address where Ms E.P. was living with the child. Second, the applicant sought an order prohibiting Ms E.P. from leaving Moscow and Russia without the applicant’s written consent. Third, the applicant asked the court to make a temporary residence order in respect of the child in his favour, pending the conclusion of the proceedings before the Moscow City Court.

On 25 July 2011 the Moscow police informed the applicant that the whereabouts of Ms E.P. and her son were unknown, and that a “search file” was open in respect of a minor, A.P., in the competent department of the police department for the South-West Administrative Circuit of Moscow.

On 27 July 2011 Mr A.G. wrote a letter to the Moscow City Court in which he supported the applicant’s claims. In particular, he insisted that Ms E.P. had manipulated him, and that by moving in with her new partner she had deprived the child of his adoptive father.

On 15 August 2011 the Moscow City Court examined the applicant’s motion applying for interim measures and dismissed it. The City Court held that the interim measures sought by the applicant (a prohibition on Ms E.P. leaving Russia and the grant of a temporary residence order in respect of the child) amounted, in essence, to two separate claims, which went beyond the scope of the enforcement proceedings initiated by the applicant.

On 29 August 2011 the Moscow City Court held a hearing, in the presence of Ms E.P. and Mr A.G. as a witness. The City Court heard both of them; in particular, Ms E.P. and Mr A.G. both related the story of their separation. Mr A.G.’s testimony was generally consonant with the position of the applicant; Ms E.P. denied the allegations of improper behaviour and blamed Mr A.G. for their separation. Ms E.P. also informed the court of her current actual address and place of formal registration (both were in Moscow).

On the same date (29 August 2011) the Moscow City Court decided to grant the applicant’s application for enforcement of the judgment of the Rîșcani District Court making a residence order in respect of the child. The City Court found that the applicant had submitted all necessary documents concerning the original judgments of the Moldovan courts, the proper notification of the defendant and the final character of those judgments. The City Court further established that none of the reasons preventing the execution of the foreign judgment stated by Article 412 of the CCP or Article 55 of the Minsk Convention were present in the case. In particular, the City Court dismissed the argument by Ms E.P. that the enforcement of the decision of the Rîșcani District Court in Russia would be contrary to “public policy”. The City Court noted that the concept of “public policy” was different from the notion of “national legislation”, and that it referred to the most basic rules by which society functions in economic and social terms and the foundations of the legal order established in the Russian Constitution.

Next, the Moscow City Court repeated its earlier argument that the mother and child’s “permanent place of residence” was to be determined on the basis of their place of registration, which was in Moldova. In Russia, Ms E.P. had temporary resident status and had changed her address several times. Furthermore, the child residence proceedings had been started by the applicant before Ms E.P. had moved from Moldova to Russia. The Moscow City Court concluded that the Moldovan courts had had jurisdiction in the child residence proceedings. As a result, the Moscow City Court issued an execution warrant (no. 002197065) ordering the enforcement of the Rîșcani District Court’s judgment of 28 October 2009.

It appears that this judgment was not appealed against and thus entered into force.

On 3 October 2011 execution warrant no. 002197065 was sent, by registered post, to the Bailiffs’ Service.

On 18 October 2011 the execution warrant issued by the Moscow City Court (No. 002197065) was received by the Bailiffs’ Service.

On 19 October 2011 the warrant was sent back to the Moscow City Court without execution. The bailiff to whom the warrant was entrusted decided that the Rîșcani District Court’s judgment of 28 October 2009 was “not subject to enforcement”. As is evident from a letter from the Head of the Legal Department of the Bailiffs’ Service of 25 November 2011, the Bailiffs’ Service did not forward a copy of its decision not to institute enforcement proceedings to the applicant.

Having become aware of the decision, on an unspecified date the applicant asked the Bailiffs’ Service to review the case file they held concerning his case. However, those materials were allegedly destroyed during a fire that took place on 2728 December 2011 at the Cheremushki branch of the Bailiffs’ Service.

In the meantime the applicant learned, through his own enquiries, that Ms E.P. was living with another man, A. S.-O., at an address on Rok. Street. However, on 8 February 2012 the Social Security Department informed the applicant that Ms E.P. and A.P. were not living at the address on Rok. Street. According to the owner of the flat, the mother and the child had rented a room in that flat for several months but had then left without leaving any forwarding address.

On 18 April 2012 the Bailiffs’ Service wrote a letter to the Moldovan Embassy explaining the reasons for the nonenforcement of execution warrant no. 002197065. According to the letter, “the judicial act [of the Moldovan courts] simply acknowledged the fact that the child was living with his father and, by its [very] nature, did not require enforcement action [to be taken], since the court ... did not establish an obligation on the respondent to perform certain actions or refrain from performing them. Similarly, the judicial act did not contain an order for removal of the child from the respondent’s [care] and his return to the plaintiff”. The Service recommended that the applicant file a new claim with the courts in Moldova in order to obtain an order specifically stating that such actions take place.

On 3 March 2012 the applicant filed a complaint with the Cheremushki District Court of Moscow of inaction on the part of the Bailiffs’ Service, seeking an injunction.

The District Court summoned Ms E.P., the applicant and the bailiff who had issued the impugned decision. The first hearing was held on 11 May 2012, but all of the parties summoned failed to appear, so the court adjourned the hearing to 1 June 2012.

The hearing of 1 June 2012 took place in presence of Ms E.P. and a representative of the Bailiffs’ Service. However, due to the failure of the applicant to appear, the case was adjourned to 21 June 2012.

On 4 June 2012 the applicant informed the court that he agreed to the examination of the case in his absence.

The new hearing took place on 21 June 2012. None of the parties were present, but the court decided to proceed with the examination of the case on the basis of the case file. The District Court granted the applicant’s claim that same day. It found that the execution warrant issued by the Moscow City Court, based on the Rîșcani District Court’s judgment of 28 October 2009, was valid and enforceable on the territory of Russia. It further held that the decision of the bailiff not to start enforcement proceedings in this respect was unlawful. On 28 September 2012 the Moscow City Court upheld the decision on appeal.

According to the Government, the bailiff concerned was not subjected to disciplinary action for his failure to enforce the execution warrant due to his dismissal from the civil service.

On 6 August 2012 the applicant wrote a letter to the Russian police, asking them to inform him of the whereabouts of his son and Ms E.P. As per the reply of the Cheremushki District Prosecutor of 27 August 2012, Ms E.P. was living with her son on Mezhd. Street in Moscow, while being formally registered at another address in Moscow.

On 21 September 2012 Ms E.P. was detained by the Russian police and questioned in relation to her immigration status. According to the authorities, her resident permit had expired on 18 September 2012. Ms E.P. confirmed that her residence permit had expired but explained that she was in the process of regularising her status. Her case was submitted to a judge, who decided to give her an administrative fine of 2,000 Roubles.

According to the applicant, on 12 June 2013 the Moldovan authorities instituted criminal proceedings again Ms E.P. for illegal crossing of the border.

On 3 October 2012 Ms E.P. and the applicant’s son left Moscow and crossed the Russia-Ukraine border through the Khomutovka checkpoint. Sometime later they arrived, via Ukraine, in Moldova. According to the respondent Government, the applicant was notified of this in April 2013 at the latest.

On an unspecified date in 2013, Ms E.P. met the applicant and handed their son over to him. Consequently, the Rîșcani District Court’s judgment of 28 October 2009 was finally executed. In a letter to the Court of 22 July 2013 the applicant confirmed that information.

In 2010-2012 the applicant made numerous attempts to initiate criminal proceedings against Ms E.P. in Russia. His letters to the Russian prosecuting authorities led to numerous inquiries which concerned allegations of violence in respect of A.P., the immigration status of Ms E.P. and so forth. However, all of those inquiries were terminated, the investigative authorities having concluded that there was no case to answer.

Thus, on 23 March 2010 the General Prosecutor’s Office refused to extradite Ms E.P. to Moldova in connection with criminal proceedings which had been opened against her there. On several occasions the Russian police refused to institute criminal proceedings against Ms E.P. in Russia (decisions of 16 May 2009, 19 March 2010, 15 September 2011, and 1 February 2013).

The applicant also called on the Russian child welfare authorities at different levels – municipal, city and federal – to act on a number of occasions. According to the Government, the competent officials repeatedly tried to establish the whereabouts of Ms E.P. and the child, and inspect their living conditions. An inspection of 26 October 2011 assessed A.P.’s home environment and living conditions. On 24 May 2012 A.P. was personally examined by a child welfare board at his kindergarten; the board concluded that A.P. was not a victim of violence at home.

On 26 September 2011 the Rîșcani District Court, at the request of the applicant, rendered a new judgment whereby it ordered Ms E.P. to return the child, A.P., to the applicant. That judgment came into force on 27 June 2012.

In 2012 the applicant brought proceedings against the Russian Federation seeking compensation for the Bailiffs’ Service’s failure to enforce the warrant of execution of 29 August 2011. On 20 November 2012 the Moscow City Court returned this claim without examination. The Moscow City Court held that Law no. 68-FZ of 30 April 2010 did not give rise to liability on the part of the State for non-enforcement of judgments when the obligation on the defendant consisted of the return of a child to the custody of another parent. On 18 February 2013 the Moscow City Court, sitting as a court of appeal, upheld that decision.

On 23 April 2013 the Moscow City Court ordered that a duplicate of execution warrant no. 002197065 be issued. The Moscow City Court found that the original execution warrant had been destroyed in the fire at the Bailiffs’ Service’s premises on 28 December 2011.

On 27 June 2013 the Moscow City Court issued a duplicate warrant of execution in respect of the Rîșcani District Court’s judgment of 26 September 2011. On 15 May 2013 the Bailiffs’ Service opened enforcement proceedings on the basis of that warrant.

On 15 May 2013 the Bailiffs’ Service opened enforcement proceedings on the basis of the duplicate of warrant no. 002197065 (i.e. the warrant issued on 29 August 2011). On 20 May 2013, 19 June 2013, 18 July 2013, and on 1 August 2013 a bailiff visited some of the addresses where Ms E.P. had previously lived but did not find her there.


Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The first applicant is a Ukrainian private company, Volyurm. The second applicant, Mr Volodymyr Vasylyovych Poplavskyy, is a Ukrainian national, who was born in 1952 and lives in Kyiv. He owns 50% of the first applicant’s shares and is its director. The applicants were represented before the Court by Mr I. Lozovyy, a lawyer practising in Kyiv.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently, Mr N. Kulchytskyy, of the Ministry of Justice of Ukraine.

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

On 15 December 1994 the Minskyy District State Administration allowed the applicant company to set up a petrol station on Geroyiv Stalingradu Avenue in Kyiv. The petrol station started doing business in 1995.

On 28 July 1998 the Kyiv City State Administration gave the applicant company a seven-year lease of the plot of land on which the above-mentioned petrol station was situated.

On 2 April 1999 the applicant company signed a contract with a construction company, B., to upgrade the petrol station. According to the applicants, company B. had moved the petrol pumps away from the petrol storage tanks. Thus, the petrol station had been changed from a “container-type” petrol station (автозаправна станція контейнерного типу), with a moveable fuel storage tank above ground, to a “permanent-set” petrol station (автозаправна станція стаціонарного типу), with a fuel storage tank permanently stored underground.

Following the decision of 28 July 1998, on 20 July 1999 the applicant company and the Kyiv City State Administration signed a long-term lease agreement. It was noted that when fulfilling the contractual obligations the applicant company was obliged “to comply with the law in force”.

On 7 September 1999 the State Environmental Safety Department of Kyiv ordered the applicant company to temporarily close down the petrol station with effect from 13 September 1999.

On 14 September 1999 the same entity ordered the applicant company to close the petrol station immediately as it was environmentally unsafe.

On 27 October 1999 the same Department informed the applicant company that it could reopen the petrol station since the shortcomings indicated in the order of 7 September 1999 had been corrected. In particular, the latter had received permission to reopen given the acceptable level of air pollution.

By a letter of 30 November 1999 the Minskyy District State Administration informed the second applicant that it had approved the documents concerning the development project in respect of the above-mentioned petrol station.

On 6 July 2000 the Kyiv City Council adopted a decision “on the closure of ‘container-type’ petrol stations in Kyiv and the improvement of the surrounding areas”. Referring to the decision of the Cabinet of Ministers of Ukraine no. 1442 of 20 December 1997 (see Relevant Domestic Law below) and the conclusions of a petrol station inspection commission created in accordance with a decision of the Kyiv City State Administration of 28 March 2000, the City Council decided the following:

“the executive body of the Kyiv City Council (namely, the Kyiv City State Administration) should undertake the necessary steps ... to prevent petrol stations, ... which are not licensed or are environmentally unsafe, from functioning and to ensure that they are closed in compliance with the current legal requirements”.

The applicant company’s petrol station figured among 133 petrol stations listed in the appendix to the above-mentioned decision. The appendix was presented as a table containing the names of the petrol stations, their types and compliance with four criteria (fire safety, the approval of the State Architecture and Planning Permission Department, an operational authorisation certificate (акт введення в експлуатацію) and documents certifying rights to a plot of land). In respect of the applicant company’s petrol station, it was specified that it was a “permanent-set” petrol station, had documents certifying rights to a plot of land, but had no approval from the Kyiv State Architecture and Planning Permission Department, had no operational authorisation certificate and did not comply with fire-safety requirements.

By a letter of 4 October 2000 the Minskyy District State Administration informed the Kyiv Central Department for Land Improvement (Головне управління контролю за благоустроєм міста Київської міської державної адміністрації) that a number of petrol stations had stopped doing business. The applicant company’s petrol station was on that list.

On 27 October 2000 the Minskyy District Prosecutor’s Office informed the applicant company that, by virtue of the Kyiv City Council’s decision of 6 July 2000, the petrol station belonging to the applicant company had to be dismantled. However, the applicant company failed to dismantle it or to bring it into compliance with section 51 of the Environmental Protection Act and with the Cabinet of Ministers’ decision no. 1442 of 20 December 1997. Therefore, the applicant company was told “either to dismantle the petrol station or to bring it into compliance with legal requirements”.

According to the applicant company, it had prepared a draft of the proposed changes necessary to bring the petrol station into compliance with the legal requirements, but the relevant State authorities had decided to dismantle the station. In particular, on 27 April 2001 the Head of the Minskyy District State Administration had instructed the Kyiv Central Department for Land Improvement, in writing, to dismantle the station. The letter in question read as following:

“In accordance with the agreement on cooperation regarding the dismantling of abandoned and ownerless property, I request that you dismantle the petrol station ... in the Minskyy District situated at the following address: 1. MP “Volyurm” – 2, Geroyiv Stalingradu Avenue.”

On 4 May 2001 the station was dismantled and on 18 June 2001 its equipment was returned to the applicant company. In the relevant document concerning the return of the equipment it was mentioned that some items were missing.

On 13 October 2003 the applicant company instituted proceedings in the Kyiv Commercial Court against the Obolon District State Administration (former Minskyy District State Administration) and the Kyiv Central Department for Land Improvement claiming 491,315.06 Ukrainian hryvnias (UAH) (equivalent, at the material time, to around 75,836.60 euros (EUR)) in compensation for pecuniary and non-pecuniary damage.

The applicant company stated that in 1999 the petrol station had been upgraded. Initially it had been a “container-type” petrol station, but later it had been upgraded and had become a “permanent-set” one. Following the Kyiv City Council’s decision of 6 July 2000, the applicant company had asked to be allowed to further upgrade the station. However, by a letter of 27 April 2001 the Head of the Minskyy District State Administration had ordered the station to be dismantled. The petrol station’s equipment had been damaged during the dismantling and the relevant decision to dismantle the station had been unlawful.

On 15 January 2004 the court found for the applicant company and awarded it the above-mentioned sum, to be paid by the Obolon District State Administration. In a court hearing the latter argued that the petrol station in question had been temporary and the Economic Department of the Kyiv City State Administration had not approved documents concerning the development project. Moreover, there had been plans to build housing on this piece of land for 2001-2004. Therefore, the applicant company had not received a permit to upgrade the existing petrol station. On 27 October 2000 the Minskyy District Prosecutor’s Office informed the applicant company that the petrol station had to be dismantled.

The court found that the petrol station in question had been a “permanent-set” one and was environmentally safe, and that the Obolon District State Administration had therefore unlawfully refused to permit further upgrading of the station and that the Administration’s request to dismantle the station had not been legal.

On 12 March 2004 the Kyiv Commercial Court of Appeal quashed that judgment and found against the applicant company. It held that the petrol station had been dismantled by the Kyiv Central Department for Land Improvement, which had been liquidated without any legal successor. Therefore, the court terminated the proceedings in the case in respect of the Kyiv Central Department for Land Improvement. It further found that on 14 September 1999 the applicant company had been ordered by the Kyiv State Environmental Safety Department to close the petrol station immediately as it was environmentally unsafe. By a letter of 27 April 2001 the Minskyy District State Administration had requested the Kyiv Central Department for Land Improvement to dismantle the station. The reference to an agreement on cooperation in matters of dismantling abandoned and ownerless property in the letter of 27 April 2001 had been erroneous. The petrol station equipment had been returned to the applicant company and there was no evidence that the Obolon District State Administration had inflicted any damage on the applicant company.

The applicant company appealed against that judgment, but it did not challenge the termination of the proceedings with respect to the Kyiv Central Department for Land Improvement. In its cassation appeal, a copy of which was submitted by the applicant company to this Court, the issue of compliance with the request of 14 September 1999 was not addressed.

On 28 July 2004 the Higher Commercial Court of Ukraine upheld the judgment of 12 March 2004. The court found that the petrol station owned by the applicant company had been included in the list of stations which “were not licensed, were environmentally unsafe and were to be closed” annexed to the decision of the Kyiv City Council of 6 July 2000. The Minskyy District State Administration and the Minskyy District Prosecutor’s Office had instructed the applicant company several times to dismantle the petrol station or bring it into compliance with legal requirements. However, the applicant company had not responded to those requests and recommendations. Moreover, “the letter of 27 April 2001 should be considered not as an instruction but as a request addressed to a structural subdivision of the Kyiv City State Administration to perform its functions in the Minskiy (Obolonskiy) district”.

On 30 September 2004 the Supreme Court of Ukraine refused a request by the applicant company for leave to appeal in cassation.

The Government submitted a copy of an undated letter sent by the Minskyy District State Administration to the Head of the Kyiv Central Department of Architecture and Urban Planning. According to that letter, it was impossible to put a petrol station on a plot of land used by the applicant company since it was due to be built on.

The rules of the retail petroleum trade are regulated by the decision of the Cabinet of Ministers no. 1442 of 20 December 1997. In accordance with those rules, “container-type” petrol stations were to be allowed only in particular places, such as car parks, industrial sites, motor boat moorings and so on. In cities only “permanent-set” petrol stations were allowed to be built. On 7 March 1998 the Cabinet of Ministers amended its decision by allowing “container-type” petrol stations which were situated in places other than those indicated in its decision of 20 December 1997 to continue to function until 1 July 1999. By a further decision of 21 July 1999 that deadline was extended to 1 January 2000.

Section 51 of the Environmental Protection Act 1991, in force at the material time, reads as follows:

“Environmental Requirements of Installation, Design, Construction, Modernisation, Putting into Operation and Functioning of Enterprises, Constructions and Other Facilities

In the process of designing, constructing and commissioning of new, and modernising operating, enterprises, structures and other facilities, improving existing and introducing new technologies and equipment, as well as in the process of operating these facilities, the environmental safety of the population, the rational use of natural resources and the observance of standards regarding the potentially harmful effects on the environment shall be ensured. In doing so, harmful substances and waste shall be captured, recovered and rendered harmless or completely liquidated, and other requirements shall be complied with so as to protect the environment and the health of the population.

Any enterprise, institution or organisation whose activity has a harmful impact on the environment, regardless of when commissioned, shall be equipped with installations, machines and devices to purify and neutralise all emissions and discharges and mitigate harmful factors, as well as with devices to control the quantity and composition of pollutants and characteristics of harmful factors.

Projects for commercial and other activities shall contain information assessing the effects on the environment and on the health of the population. The assessment shall be carried out taking due account of legal requirements for the protection of the environment, the environmental activity of a given territory, the condition of the environment where the facilities are planned to be sited, environmental forecasting, the socioeconomic prospects of the region`s development, the capacity and types of overall impact of harmful factors and facilities on the environment.

Enterprises, institutions and organisations which plan, design, build, reconstruct, modernise, and commission the construction of enterprises, facilities and other objects, as well as conduct research which they believe might negatively impact on the condition of the environment, shall submit a special application to this effect to the special central body of executive power responsible for environment and natural resources and its local bodies.

It shall be prohibited to commission enterprises, structures and other facilities which do not fully meet all the environmental requirements and measures provided for in the construction and reconstruction plans (expansion and technical modernisation).”


CASE OF STRAND LOBBEN AND OTHERS v. NORWAY

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Ratione personae;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

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

In May 2008 the first applicant turned to the child welfare authorities because she was pregnant and was in a difficult situation: she did not have a permanent home and was temporarily staying with her parents, the fourth and fifth applicants.

When the first applicant was twenty-eight weeks’ pregnant she visited the local hospital and requested a late abortion. On 1 July 2008 the hospital sent a notice to the child welfare authorities indicating that the applicant was in need of guidance concerning the unborn child and follow-up with regard to motherhood. It also indicated that she needed to stay at a parent-child institution (“family centre”). The child welfare authorities opened a case with the first applicant’s consent. She agreed to stay at a family centre for three months after the child was born, so that her ability to give the child adequate care could be evaluated.

On 25 September 2008 the first applicant gave birth to a son, X, the second applicant. The identity of X’s father was unknown to the authorities and the first applicant refused to reveal his name. Four days later, on 29 September 2008, the first applicant and X moved to the family centre. For the first five days the fourth applicant (X’s grandmother) also stayed with them. The staff soon became concerned about the first applicant’s parenting abilities and X’s development. On 14 October 2008 they asked for an emergency meeting with the child welfare authorities because X had lost a lot of weight and the first applicant did not show any understanding of his needs.

On 17 October 2008 the first applicant withdrew her consent to stay at the family centre. She wanted to leave and take X with her. On the same day the child welfare authorities decided to take X into immediate compulsory care and place him in a foster home on an emergency basis. In the decision they stated that the family centre’s staff had had to check on the family every third hour to make sure that X was receiving enough food. Without those checks, they doubted whether X would have survived. After the placement, the first applicant had weekly half-hour visits with X. The fourth applicant (the grandmother) was present at most of the visits, the fifth (the grandfather) at some of them.

The first applicant appealed against the decision of the child welfare authorities to the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker), claiming that she and X could live together with her parents. Her mother, the fourth applicant, was staying at home and was willing to help take care of X. They were also willing to accept help from the child welfare authorities.

On 23 October 2008 the family centre drew up a report of the first and second applicants’ stay. The report stated, inter alia:

“The mother does not care for her child in a satisfactory manner. During the time the mother and child have stayed [at the family centre] ..., the staff here ... have been very concerned that the child’s needs are not being met. In order to ensure that the child’s primary needs for care and food are met, the staff has intervened and followed-up the child closely day and night.

The mother is not able to meet the boy’s practical care needs. She has not taken responsibility for caring for the boy in a satisfactory manner. The mother has needed guidance at a very basic level, and she has needed advice to be repeated to her several times.

Throughout the stay, the mother has made statements that we find very worrying. She has expressed a significant lack of empathy for her son, and has several times expressed disgust with the child. The mother has demonstrated very little understanding of what the boy understands and what behaviours he can control.

The mother’s mental functioning is inconsistent and she struggles considerably in several areas that are crucial to the ability to provide care. Her ability to provide practical care must be seen in light of this. The mother’s mental health is marked by difficult and painful feelings about who she herself is and how she perceives other people. The mother herself seems to have a considerable unmet care need.

Our assessment is that the mother is incapable of providing care for the child. We are also of the opinion that the mother needs support and follow-up. As we have verbally communicated to the child welfare service, we believe it to be important that the mother is taken especially closely care of in the time following the emergency placement.

The mother is vulnerable. She should be offered a psychological assessment and treatment, and probably needs help to find motivation for this. The mother should have an individual plan to ensure follow-up in several areas. The mother has resources (cf. the abilities tests) that she needs help to make good use of.”

On 26 October 2008 the County Social Welfare Board rejected the appeal (see paragraph 9 above). It concluded that it was the first applicant who would be responsible for the daily care of X, not the fourth applicant, and that the first applicant was unable to provide the care that X needed. Furthermore, the fourth applicant had stayed with the first applicant and X during the first days at the family centre, but had not noticed the first applicant’s lack of parenting skills, even though it had been obvious to the staff.

On 27 October 2008 X was sent to a child psychiatry clinic for an evaluation. The team at the clinic carried out six different observations between 3 and 24 November 2008. Their conclusions were set out in a report dated 5 December 2008, which read, inter alia:

“[X] was a child with significantly delayed development when he was sent to us for evaluation and observations. Today he is functioning as a normal two-month-old baby, and has the possibility of a good normal development. He has, from what can be observed, been a child at high risk. For vulnerable children the lack of response and confirmation, or other interferences in interaction, can lead to more or less serious psychological and developmental disturbances if they do not get other corrective relationship experiences. The quality of the earliest interaction between a child and the closest caregiver is therefore of great importance for psychosocial and cognitive development. [X] bears the mark of good psychosocial and cognitive development now.”

The first applicant appealed against the Board’s decision of 26 October 2008 to the City Court (tingrett) which, on 26 January 2009, upheld it in full. In the judgment the court found that X had shown signs of both psychological and physical neglect when he was taken into local authority care. Moreover, it did not find that the first applicant’s abilities to take care of X had improved or that the support of the fourth and fifth applicants would be sufficient to ensure that X was given adequate care. The first applicant did not appeal to the High Court.

Following the judgment by the City Court on 26 January 2009, the local authorities applied to the County Social Welfare Board for a care order, submitting that the first applicant lacked parenting skills.

On 2 March 2009 the Board accepted the child welfare authorities’ application. X remained in the foster home where he had already been placed on an emergency basis in October 2008, when first taken into care (see paragraph 8 above). The Board also decided that contact rights for the first applicant should be fixed at six two-hour visits per year, under supervision. It concluded, on the basis of the report from the family centre, that if X were returned to the first applicant, there would be serious deficiencies in both the physical and psychological caregiving, which could not be remedied with assistance measures. For those reasons the Board found that it would be in the best interests of X to be placed in care.

The first applicant appealed against the Board’s decision and again submitted that the authorities had not tried to intervene in other ways before immediately taking X into care, and that the decision was based on insufficient evidence.

On 19 August 2009 the City Court overturned the Board’s decision and decided that X should be reunited with the first applicant, but that there was a need for a readjustment period. It found, inter alia, that X’s problems with weight gain could have been due to an eye infection.

As a consequence of the judgment, the first applicant’s visits with X were increased with the goal of reunification. According to the child welfare authorities, the visits were characterised by hostility from the first applicant and her parents towards the foster mother. The authorities claimed that after the visits, X had reacted strongly, he had become tired, anxious and insecure, and his sleeping patterns had changed.

The child welfare authorities appealed against the City Court’s judgment and concurrently applied for its implementation to be suspended. They claimed that it was unlikely that the eye infection could have been the reason for X’s slow weight gain. Moreover, the first applicant had had visits with X, but they had not worked well even though she had been given advice on how to improve them. X had had strong reactions after the visits.

On 8 September 2009, the City Court decided to suspend enforcement of its judgment until the High Court had adjudicated the case.

On 9 October 2009, the child welfare authorities decided to appoint two experts, a psychologist, B.S., and a family therapist, E.W.A., who submitted their report on 20 February 2010 (see paragraph 29 below).

Meanwhile, on 12 October 2009, the High Court (lagmannsrett) granted leave to appeal on the ground that the ruling of, or the procedure in, the City Court had been seriously flawed (see paragraph 66 below). It also upheld the City Court’s decision to suspend the implementation of the judgment.

On 3 March 2010, the High Court appointed an expert to assess the case, psychologist M.S., who also submitted a report.

In its judgment of 22 April 2010, the High Court confirmed the Board’s decision that X should be taken into compulsory care. It also reduced the first applicant’s contact rights to four two-hour visits per year.

The High Court had regard to the information in the report produced by the family centre on 23 October 2008 (see paragraph 10 above). It also took account of the family consultant’s testimony before the court, in which it had been stated that the first applicant’s mother had lived with her at the family centre for the first four nights. It went on to state:

“It was particularly after this time that concerns grew about the practical care of the child. The agreement was that [the first applicant] was to report all nappy changes etc. and meals, but she did not. The child slept more than they were used to. [The family consultant] reacted to the child’s breathing and that he was sleeping through meals. Due to weight loss, he was to be fed every three hours around the clock. Sometimes, the staff had to pressure the mother into feeding her son.”

The High Court found that the family centre had made a correct evaluation and – contrary to the City Court – considered it very unlikely that the evaluation would have been different if X had not had an eye infection.

Furthermore, the High Court referred to the report of 5 December 2008 from the child psychiatry clinic (see paragraph 12 above). It also took into account the report of the court-appointed expert, M.S. (see paragraph 23 above).

As the stay at the family centre had been short, the High Court found it appropriate to consider the first applicant’s behaviour (“fungering”) during the contact sessions that had been organised subsequent to X’s placement in foster care. Two persons had been entrusted with the task of supervising the sessions, and both had written reports, none of which had been positive. The High Court stated that one of the supervisors had given an “overall negative description of the contact sessions”.

The High Court also referred to the report of the psychologist and the family therapist appointed by the child welfare authorities (see paragraph 21 above). They had assessed X in relation to the reactions that he had shown after visits from the first applicant. In their report, they noted, inter alia:

“there does not seem to be much contact between the mother and [X], including in the periods with frequent contact sessions. He turns away from his mother and prefers to seek contact with others. He tries to distance and protect himself by protesting against his mother, by refusing to eat, by not looking at her and then seeking out the person to whom he has a secure attachment, namely his foster mother. [X] becomes uncertain and insecure when he is not ‘read’ and understood.

... the biggest source of stress for [X] is probably not meeting his mother and her extended family during the contact sessions in itself, but the amount of contact and the pressure arising from [utterances to the effect that] ‘now you’re coming back home’, and an atmosphere dominated by the mother’s hostility towards the foster mother. It is also a problem that the mother makes negative and offensive statements about the foster mother, so that the atmosphere becomes unpleasant and insecure. It is concluded that [X] has reached his tolerance threshold for contact on the occasions when he has fallen asleep immediately once the contact session is over, when he has cried afterwards, been difficult to regulate and calm down, and had difficulties sleeping.”

Furthermore, the High Court noted that the court-appointed psychologist, M.S. (see paragraph 23 above), stated in court that the contact sessions had appeared to be so negative that she was of the opinion that the mother should not have right of access to her son. The contact sessions were, in her view, “not constructive for the child”. In conclusion to the question of the first applicant’s competence as a carer, she stated in her report that the stay at the family centre had illustrated that the first applicant “had problems handling and retaining information in such a manner that it could be used to guide her behaviour”. She went on to state:

“It is not a question of a lack of willingness, but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect.”

The High Court agreed with the conclusion of expert M.S., before proceeding to the question whether assistance measures could sufficiently remedy the shortcomings in the first applicant’s lack of parenting skills. In that respect, it noted that the reasons for the deficiencies in competence as a carer were crucial. The High Court referred at this point to the expert’s elaboration on the first applicant’s medical history, namely how she had suffered from serious epilepsy since childhood and until brain surgery had been carried out in 2009, when the first applicant had been 19 years old.

The High Court noted that expert M.S. had also pointed out that the first applicant’s medical history must necessarily have affected her childhood in several ways. Her summary as regards the illness and its consequences read as follows:

“Anamnestic information from the school, the specialist health service and the family provides an overall picture of weak learning capacity and social functioning from early childhood into adulthood. [The first applicant] performed poorly at school despite good framework conditions, considerable extra resources and good efforts and motivation on her own part. It is therefore difficult to see any other explanation for her performance than general learning difficulties caused by a fundamental cognitive impairment. This is underlined by her consistently low IQ score – regardless of the epilepsy surgery. She also had problems with socio-emotional functioning, which has also been a recurring topic in all documents that deal with [the first applicant’s] childhood and adolescence. A lack of social skills and social adaptation is reported, primarily related to social behaviour that is not adequate for her age (‘childish’) and poor impulse control. It is also stated that [the first applicant] has been very reserved and had low self-confidence, which must be seen in conjunction with her problems.”

The High Court based its assessment on the description of expert M.S. concerning the first applicant’s health problems and the impact they had had on her social skills and development. It further noted that placement at a family centre (see paragraphs 7-8 above) had been attempted as an assistance measure. The stay had been supposed to last for three months, but had been interrupted after just under three weeks. As a condition for staying longer, the first applicant had demanded a guarantee that she be allowed to take her son home with her after the stay. The child welfare authorities could not give such a guarantee, and the first applicant had therefore returned home on 17 October 2008.

The High Court noted that relevant assistance measures were assumed to consist of a supervisor and further help and training in how to care for children. However, the High Court found that it would take so long to provide the first applicant with sufficient training that it was not a real alternative to continued foster-home placement. Furthermore, the result of such training was uncertain. In this connection, the High Court attached weight to the fact that both the first applicant and her immediate family had said that they did not want follow-up or assistance if X was returned to them. It agreed with the conclusions of the court-appointed expert, M.S., who had stated in her report:

“In my assessment, there are grounds for claiming that there were serious deficiencies in the care the child received from the mother, and also serious deficiencies in terms of the personal contact and security he needed according to his age and development. [The first applicant’s] cognitive impairment, personality functioning and inadequate ability to mentalise make it impossible to have a normal conversation with her about the physical and psychological needs of small children. Her assessments of the consequences of having the child returned to her care and what it will demand of her as a parent are very limited and infantile, with her own immediate needs, there and then, as the most predominant feature. It is therefore found that there is a risk of such deficiencies (as mentioned above) continuing if the child were to live with his mother. It is also found that satisfactory conditions for the child cannot be created with the mother by means of assistance measures under the Act relating to Child Welfare Services, section 4-4 (e.g. relief measures in the home or other parental support measures), due to a lack of trust and a reluctance to accept interference from the authorities – taking the case history into consideration.”

The High Court’s conclusions in its judgment of 22 April 2010 was that a care order was necessary and that assistance measures for the mother would not be sufficient to allow the son to stay with her. The conditions for issuing a care order under the second paragraph of section 4-12 of the Child Welfare Act were thus met (see paragraph 65 below). In this connection, the High Court also gave weight to the attachment that X had formed to his foster parents, particularly the foster mother.

The first applicant did not lodge an appeal against the judgment.

On 18 July 2011 the child welfare authorities requested the County Social Welfare Board to deprive the first applicant of her parental responsibility for X, which would then be transferred to the authorities, and to grant X’s foster parents, with whom he had stayed since he was taken into care (see paragraph 8 above), permission to adopt him. The identity of X’s biological father was still unknown to the authorities. In the alternative, the authorities’ proposed that the first applicant’s contact rights be removed.

On 29 July 2011 the first applicant applied for termination of the care order or, in the alternative, extended contact rights with X.

On 18 October 2011 the first applicant gave birth to Y, the third applicant. She had married the father of Y in the summer of that same year. The new family had moved to a different municipality. When the child welfare authorities in the first applicant’s former municipality became aware that she had given birth to another child, it sent a letter expressing concern to the new municipality, which started an investigation into her parenting abilities.

On 28, 29 and 30 November 2011 the County Social Welfare Board, composed of a lawyer, a psychologist and a lay person, held an oral hearing at which the first applicant was present together with her legal representative. Twenty-one witnesses were heard.

On 8 December 2011 the Board decided that the first applicant should be deprived of her parental responsibility for X and that X’s foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant’s parenting abilities had improved since the High Court’s judgment of 22 April 2010. Therefore she was still considered incapable of giving X adequate care. Moreover, the Board stated:

“In her statement before the County Social Welfare Board, the mother maintained her view that the care order was a conspiracy between the child welfare service, [the parent-child institution] and the foster parents for the purpose of ‘helping a woman who is unable to have children’. In the mother’s words, it was a question of ‘an advance order for a child’. The mother had not realised that she had neglected [X], and stated that she spent most of her time and energy on ‘the case’.

The reports from the contact sessions between the mother and [X] consistently show that she is still unable to focus on [X] and what is best for him, but is influenced by her very negative view of the foster mother and of the child welfare service.

[The first applicant] has married and had another child this autumn. Psychologist [K.M.] has stated before the Board that he observed good interaction between the mother and child and that the mother takes good care of the child. The Board takes note of this information. In the County Social Welfare Board’s opinion, this observation can in any case not be used as a basis for concluding that the mother has competence as a caregiver for [X].

The County Social Welfare Board finds it reasonable to assume that [X] is a particularly vulnerable child. He experienced serious and life-threatening neglect during the first three weeks of his life. Reference is also made to the fact that there have been many contact sessions with the mother, some of which have been very stressful for [X]. All in all, he has been through a lot. He has lived in the foster home for three years and does not know his biological mother. If [X] were to be returned to the care of his mother, this would require, among other things, a great capacity to empathise with and understand [X] and the problems he would experience, not least in the form of mourning and missing his foster parents. The mother and her family appeared to be completely devoid of any such empathy and understanding. Both the mother and grandmother stated that it would not be a problem, ‘he just had to be distracted’, and thus gave the impression of not having sympathy with the boy and therefore also being incapable of providing the psychological care he would need in the event of a return.”

In addition, the Board had especially noted the conclusions of expert M.S. They were quoted by the High Court in its judgment of 22 April 2010 (see paragraph 34 above). The Board found that this description of the first applicant was still accurate. In any event, it was decisive that X had established such a connection to his foster family that removing him would result in serious and permanent problems for him.

The Board assumed that the alternative to adoption would have been continued foster care on a long-term basis, and noted that the foster parents were X’s main caregivers and the ones he thought of as his parents. The foster parents were moreover considered suitable and wanted to take care of X as their own child. The Board made general reference to the Supreme Court’s decision in Norsk Retstidende (Rt.) 2007 page 561 (see paragraph 69 below) and found that the considerations underlying the following passage from that judgment – reiterated in Aune v. Norway, no. 52502/07, § 37, 28 October 2010 – were also pertinent to the present case:

“‘A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the Child Welfare Service — the public authorities — and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. ...’”

In conclusion, the adoption would be in X’s best interests. The Board took Article 8 of the Convention into consideration when making its decision.

The first applicant appealed against the decision, claiming that the Board had made a wrongful evaluation of the evidence when deciding that she was unable to give X adequate care. She considered that it would be in X’s best interest to be returned to her and stressed that her situation had changed drastically. The first applicant was now married and had another child that she was taking care of. She had a good support system in her husband and her extended family, and was also prepared to accept help from the child welfare authorities. Moreover, in her view, removing X from the foster home would only cause him problems in the short term; no long-term problems could be expected. She also claimed that the visits between her and X had worked well.

The child welfare authorities opposed the appeal and submitted that the first applicant’s ability to care for X had not changed since the High Court’s judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had manifested a very negative attitude towards the authorities. Moreover, X had a good attachment to his foster family and had lived with them for over three years. He was a vulnerable child and he needed a caregiver who was sensitive to his needs. They also noted that the first applicant had exposed X and their story on the Internet, together with pictures of them, which could be harmful for X. It was in the best interests of X to be adopted by the foster family.

On 22 February 2012 the City Court, comprised of one professional judge, one psychologist and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 66 below), upheld the decision after having held an oral hearing which lasted for three days and during which twenty-one witnesses were heard. The first applicant was present together with her legal counsel.

The City Court initially noted that the first applicant’s general situation had improved. She had married in August of 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the child welfare authorities in the couple’s current municipality were conducting an ongoing inquiry concerning the mother’s ability to care for Y. A staff member of the authorities in that new municipality had testified at the oral hearing, stating that they had not received any reports of concern other than that from the authorities in the first applicant’s former municipality. As part of their inquiry they had made observations at the first applicant’s home. They had observed many good things but also that the parents might need some help with routines and structure. The City Court found that this indicated that the authorities in the municipality to which the first applicant had moved thought that the parents could give Y adequate care if assisted by the authorities. She was not a child with any special care needs.

However, on the basis of the evidence, the situation was different with regard to X, whom several experts had described as a vulnerable child. The City Court referred in particular to a statement from a professional at the Children’s and Young People’s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinikk – BUP) explaining that, as late as December 2011, X was easily stressed and needed a lot of quiet, security and support. If he was to have a sound emotional development in the future, the carer would have to be aware of that and take it into account. When the first applicant gave evidence in court, she had clearly shown that she did not realise what challenges she would face if X were to be moved from the foster home. She could not see his vulnerability, her primary concern being that he should grow up “where he belonged”. The first applicant believed that returning him would be unproblematic and still did not understand why the child welfare authorities had had to intervene when he was placed in the emergency foster home. She had not wished to say anything about how she thought X was doing in the foster home. In the City Court’s view, the first applicant would not be sufficiently able to see or understand X’s special care needs, and if those needs were not met, there would be a considerable risk of abnormal development.

Furthermore, the City Court took account of how the foster parents and supervisor had described X’s emotional reactions after contact sessions with his mother in the form of inconsolable crying and his needing a lot of sleep. During the contact sessions, X had repeatedly resisted contact with the first applicant and, as the sessions had progressed, reacted with what had been described as resignation. The City Court considered that a possible reason for that could be that the boy was vulnerable to inexpedient interaction and information that was not adapted to his age and functioning. The first applicant’s emotional outbursts in situations during the contact sessions, for example when X had sought out his foster mother and called her “mummy”, were seen as potentially frightening and not conducive to X’s development.

The City Court held that the presentation of evidence had “clearly shown” that the “fundamental limitations” that had existed at the time of the High Court’s judgment still applied. Nothing had emerged during the City Court’s consideration of the case to indicate that the first applicant had developed a more positive attitude to the child welfare authorities or to the foster mother, beyond a statement made by her to the extent that she was willing to cooperate. She had snubbed the foster mother when she had said hello during the contact sessions and had never asked for information about X. The first applicant had left in frustration forty minutes before the last visit had been scheduled to end. Everyone who had been present during the contact sessions had described the atmosphere as unpleasant. The City Court considered that one possible reason why the first applicant’s competence at contact sessions had not improved was that she struggled so much with her own feelings and with missing X, that it made her incapable of considering the child’s perspective and protecting him from her own emotional outbursts. An improvement was contingent upon her understanding X and his needs and on her being willing to work on herself and her own weaknesses. The first applicant had not shown any positive developments in her competence in contact situations throughout the three years she had had rights of access. The fact that her parents, the fourth and fifth applicants, had a remarkably negative attitude to the municipal child welfare authorities did not make it any easier for her.

The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare authorities and the foster parents – accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term.

The City Court noted that psychologist K.M., who had examined and treated the first applicant, had testified that she did not meet the criteria for any psychiatric diagnosis. He had counselled her in connection with the trauma inflicted on her by having her child taken away. The goal of the treatment had been to make the first applicant feel like a good mother. He believed that the previous assessments of the first applicant’s ability to provide care had at that time been incorrect, and argued before the City Court that the best outcome for X would be to be returned to his biological mother. However, the City Court stated that psychologist K.M.’s arguments had been based on research conducted in the 1960s, and found them to be incompatible with recent infant research. It noted that the other experts who had testified in court, including psychologists B.S. and M.S., had advised against returning X to his mother, as this would be very harmful for him.

In conclusion thus far, the City Court agreed with the County Social Welfare Board that the first applicant had not changed in such a way as to indicate that it was highly probable that she would be able to provide X with proper care. It endorsed the Board’s grounds, holding that the first applicant’s clear limitations as a carer could not be mitigated by an adapted transitional scheme, assistance measures or support from her network. It did not find reason to discuss other arguments regarding her ability to provide care in more detail, as returning X to her was in any case not an option owing to the serious problems it would cause him to be moved from the foster home. The City Court agreed at this point with the County Social Welfare Board in its finding that X had developed such attachment to his foster parents, his foster brother and the general foster home environment that it would lead to serious problems if he would have to move. X had his primary security and belonging in the foster home and he perceived the foster parents as his psychological parents. On those grounds, the care order could not be revoked.

Turning to the issues of deprivation of parental responsibility and consent to adoption, the City Court stated at the outset that when a care order has been issued, it is in principle sufficient for removal of parental rights that this is in the child’s best interests. At the same time, it had been emphasised in several Supreme Court judgments that removal of parental responsibility is a very invasive decision and that therefore strong reasons are required for making such a decision (see, inter alia, paragraph 67 below). The requirements in respect of adoption were even more stringent. However, the questions of deprivation of parental responsibility and consent to adoption had to be seen in conjunction, since the primary reason for depriving someone of parental responsibility would be to facilitate adoption. The court also took into consideration that if the mother retained her parental responsibility, she might engage in conflicts in the future about the rights that such responsibility entailed, such as exposing the child on the Internet.

The City Court went on to declare that adoption could only be granted if the four conditions in the third paragraph of section 4-20 of the Child Welfare Act were met (see paragraph 65 below). In the present case, the decisive factor would be whether adoption was in X’s best interests and whether consent for adoption should be given on the basis of an overall assessment. Regarding that assessment, several Supreme Court judgments had stated that strong reasons must exist for consenting to adoption against the will of a biological parent. There must be a high degree of certainty that adoption would be in the child’s best interests. It was also clear that the decision must be based not only on a concrete assessment, but also on general experience from child-psychology research. Reference was made to the Supreme Court’s judgment in Rt. 2007 page 561 (see paragraph 69 below).

Applying the general principles to the instant case, the City Court first noted that X was at the time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child’s development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should attend to the functions that followed from parental responsibility.

The City Court noted that adoption meant that the legal ties to the biological family were broken. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him.

Furthermore, the court took account of the fact that even if no more contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished.

Based on an overall assessment, the City Court found that it would be in X’s best interests for the first applicant to be deprived of her parental responsibility and for the foster parents to be allowed to adopt him. The court believed that particularly weighty reasons existed for consenting to adoption in the case.

The City Court lastly stated that since it had decided that X should be adopted, it was unable to decide on contact rights for the first applicant, since that question would be up to the foster parents to decide on. It mentioned that section 4-20a of the Child Welfare Act provided a legal basis for fixing rights to access subsequent to adoption (see paragraph 65 below, where that provision is reiterated, and paragraph 72 below, on the “open adoption”-system). The City Court was, however, not competent to examine or decide on such rights since its competence was dependent on a party to the case having made a request to that effect. In the instant case, none of the parties had done so.

The first applicant appealed against the judgment, claiming that the City Court had evaluated the evidence incorrectly when considering her ability to give X the necessary care. She also argued that the City Court should have obtained an evaluation by an expert witness concerning her and her husband’s ability to provide adequate care. She submitted an evaluation made by the municipality in which she currently lived, dated 21 March 2012.

On 22 August 2012, the High Court decided not to grant leave to appeal. It stated that the case did not raise any new legal issues of importance for the uniform application of the law. As concerned the new evidence, the court noted that the evaluation dated 21 March 2012 had been made by, inter alia, an expert who had testified before the City Court and that the document would not change the outcome of the case. Moreover, it observed that the first applicant had not asked for an expert witness to be heard in the City Court and had not given any reasons as to why it was necessary to appoint an expert before the High Court. Thus there were no reasons for leave to appeal to be granted.

The first applicant appealed against the decision to the Supreme Court (Høyesterett) which, on 15 October 2012, refused leave to appeal.


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

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

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


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant, Mr Miroslav Baláž, is a Slovak national, who was born in 1960 and lives in Trenčianske Teplice. He was represented before the Court by Mr D. Chlapík, a lawyer practising in Žilina. 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, who is a lawyer, ran a property business and became involved in a dispute with the tax authorities over his tax liability in the preceding years. That amount depended on the amount of deductible expenses in the relevant preceding years, these two types of amount being determined by separate decisions in separate sets of proceedings.

On 19 July 1997 the Trenčín tax office ordered him to pay the equivalent of some 112,500 euros (EUR) in outstanding tax for the year 1993.

On 1 December 1997 and 5 February 1998 respectively, the tax office ordered that the above amount be increased by 100% by way of a penalty and determined that the applicant’s overall tax liability was the equivalent of some EUR 225,000.

On 6 February 1998 the tax office decided to secure payment of the applicant’s outstanding tax by prohibiting him from selling or otherwise disposing of any of his real property.

The decision became enforceable on 12 February 1998, despite the applicant lodging an appeal, which was dismissed on 21 July 1998. The decision was ultimately confirmed by the Central Tax Directorate on 8 February 1999.

The security established by the tax office had the legal form of a statutory lien and as such was registered in the Land Register. According to the applicant, the value of the encumbered property was the equivalent of some EUR 5,486,000.

The applicant also appealed against the tax order of 19 July 1997. Several tax audits followed. On 12 August 1998 a decision concerning the deductible expenses for the year 1992 was quashed by the Supreme Court (Najvyšší súd), which on 14 December 2000 dismissed a subsequent complaint regarding a fresh decision on the same matter.

The applicant’s tax liability for the year 1993 was recalculated and reduced several times. Eventually, on 18 March 2002, by a decision which became final on 13 September 2002, the tax office established that it was actually no more than the equivalent of some EUR 3,000.

On 7 May 2004 the tax office amended its decision of 6 February 1998 securing payment of the applicant’s outstanding tax and prohibited him from dealing with only one property.

On 2 June 2004 the applicant paid the outstanding tax owed.

Consequently, on 8 June 2004, the tax office cancelled the decision of 6 February 1998 in its entirety.

On 18 March 2005 the applicant, assisted by a lawyer then and throughout the subsequent proceedings, brought a claim for damages against the State, in the person of the Ministry of Finance.

He relied on the 1969 State Liability Act (Law no. 58/1969 Coll. – “the SL Act”) and pointed out that by its decision of 6 February 1998, the tax office had encumbered his real property, which was worth twenty times more than his tax liability under the decision of 5 February 1998. Not only that, the decision had then turned out to be based on a completely inaccurate calculation.

He claimed that because of the impugned lien, all of his real property had been encumbered for more than six years, which had actually prevented him from carrying out his business activities, causing him to lose profit equivalent to some EUR 330,000, an amount that he later increased to the equivalent of some EUR 5,544,000.

The applicant also argued that the decision of 5 February 1998 had in fact been quashed by the decision of 8 June 2004, and that the entire calculation of his tax liability had been erroneous because it had been based on amounts of tax-deductible expenses that had been contested and had later turned out to be wrong.

As to the damage allegedly caused, he calculated it as the interest he could have obtained from a bank for depositing the monetary value of the encumbered property, that value having been established by an expert.

The claim was examined and dismissed at first instance by the Trenčín District Court (Okresný súd) on 15 October 2008 and following an appeal (odvolanie) by the applicant, by the Trenčín Regional Court (Krajský súd) on 21 October 2009.

Both courts interpreted the applicant’s claim as being aimed at recovering damages in respect of a wrongful official decision (sections 1 et seq. of the SL Act) as opposed to wrongful official action (sections 18 et seq. of the SL Act). However, under the applicable statute (section 4 of the SL Act), the first prerequisite for that type of claim to be available was that the alleged damage had to have resulted from an enforceable official decision that had been quashed or amended for being unlawful (section 4 of the SL Act).

The Regional Court explained that prerequisite in further detail, holding that the unlawfulness of the contested decision could not be examined as a preliminary issue in the proceedings in the claim for damages, and had to have been established by the body that had quashed the decision precisely on account of its unlawfulness.

The courts noted that the damage asserted by the applicant had allegedly been sustained as a result of the tax office’s decision of 6 February 1998, and found that that decision had never been quashed or amended for being unlawful. It had been cancelled on 8 June 2004 for a different reason, namely because the applicant’s tax liability had been paid in full.

Both courts concluded that in the circumstances, the principal statutory requirement for the claim to be available had not been met. In addition, the District Court found the claim unfounded on several other grounds. These were, however, found by the Regional Court to be superfluous in view of the earlier finding.

An appeal on points of law (dovolanie) brought by the applicant made in reliance on alleged procedural irregularities was declared inadmissible by the Supreme Court on 30 November 2010.

He also brought a constitutional complaint alleging a violation of his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in the above proceedings, which was declared inadmissible on 13 April 2011.

The Constitutional Court held that there was nothing to show that the ordinary courts had dealt with the case unfairly, or that their decisions had been arbitrary. As to the alleged breach of the applicant’s right to peaceful enjoyment of his possessions, it considered that it would only be entitled to examine that complaint if the ordinary courts had breached his rights under Article 6 § 1 of the Convention or its constitutional equivalent.