The applicant, Mr Vasile Dariciuc, is a Romanian national, who was born in 1955 and lives in Rădăuți. He was represented before the Court by Ms I.M. Peter, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

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

On 4 January 2011, after his daughter had committed suicide in December 2010, the applicant notified the Suceava Child Protection Agency (“the Agency”) and complained that the child’s paternal grandparents had prevented him from contacting his five year-old granddaughter who had not been informed about her mother’s death and therefore had been potentially exposed to a severe emotional trauma.

On 13 January 2011 the Agency informed the applicant that they had initiated an investigation in respect of his claims.

On the same date the Agency summoned the paternal grandparents together with the applicant’s granddaughter to its office for an interview aimed at clarifying their family’s situation.

On 17 January 2011 the Agency asked the Arbore Mayor’s Office to produce a social investigation report on the paternal grandparents’ home.

On 20 January 2011 the Agency summoned the applicant to its office for an interview aimed at clarifying his family’s situation.

On the same date the applicant’s son-in-law, who had been accompanied by his granddaughter, was interviewed at the Agency’s office. According to the conversation report produced on that occasion the applicant’s son-in-law had informed the Agency that his wife had suffered from depression because he had left to work abroad. He had returned to Romania two days prior to the meeting at the Agency and had not told his daughter about her mother’s death. He had acknowledged that his daughter had to be informed about her mother’s death and had agreed to inform her with the help of a psychologist. He had also stated that the applicant had used to have a normal relationship with his granddaughter, before he had started pressuring them and picking fights in front of their home. The applicant had not agreed to the marriage between him and his wife and had used to interfere in their marriage.

According to that report the applicant’s son-in-law had also been counselled on how to speak to his daughter about her mother and had been advised to shield her from family fights.

On the same date the Agency provided the applicant’s granddaughter with psychological counselling in order to prepare her for the news that her mother had died.

On 24 January 2011 the Arbore Mayor’s Office produced the social investigation report requested by the Agency on 17 January 2011. The report concluded that the child had a close connection to her father and her paternal grandparents who had cared for her in her father’s absence. The father’s family had provided the child with normal conditions for her physical, moral and intellectual development and her health had not been endangered.

On 28 January 2011 the applicant was interviewed at the Agency’s office. According to the conversation report produced on that occasion the applicant had informed the Agency that his relationship with his son-in-law had been very bad and that his son-in-law had refused to allow him into his home.

According to the same report the Agency’s representatives had explained to the applicant that he had made a mistake in informing his granddaughter about her mother’s death directly and without any preliminary coaching. He had been advised that it would be in the best interest of the child to avoid and to solve family conflicts. He had also been informed that it would be advisable for him to avoid speaking ill of his sonin-law in front of his granddaughter.

On 29 September 2011 the Agency informed the applicant following his enquiry that they could have ordered his granddaughter’s psychological evaluation only if it had been ordered by a court or had been requested by her father. Moreover, they stated that they had not been competent to punish an individual for failure to comply with a final court judgment. Furthermore, they noted that the applicant’s granddaughter had received psychological counselling in respect of her mother’s death and in order to help her process the trauma.

On an unspecified date the applicant asked the Agency to inform him whether he had a right to have contact with his granddaughter and whether she could have been counselled in the absence of her father in order to improve his relationship with her.

On 23 July 2013 the Agency informed the applicant that they did not have the competence to contradict the final court judgment (see paragraph 29 below) granting him visiting rights. Moreover, they stated that the child could not have undergone psychological counselling without her father’s consent on account of her young age and the fact that the Agency’s intervention had not been needed for reasons imputable to the applicant’s son-in-law.

On 15 and 23 July 2014 the Agency informed the Romanian Government that in 2011 they had supported the applicant in his attempts to rekindle his relationship with his granddaughter. They stated that, following his daughter’s death, the applicant had asked the Agency to intervene and to help him preserve his relationship with his granddaughter. Following the applicant’s notification, the Agency’s representatives had spoken to the applicant’s son-in-law. Because his son-in-law had not informed his granddaughter about her mother’s death, the applicant’s son-in-law and the child had been included in psychological counselling program which had led to the applicant’s granddaughter finding out the truth about her mother. Neither the Agency’s, nor the Arbore Social Protection Service’s investigations carried out at the child home had disclosed any danger for the child. In this context, the Suceava Child Protection Agency had mediated a meeting between the applicant, his son-in-law and his granddaughter in order to observe their interaction and to help resolve the conflict between the two parties so that the child would not be traumatised even further. During that meeting, the interaction between the applicant and the applicant’s son-in-law had been very tense. The applicant had accused his son-in-law of killing his daughter and had called him a murderer in front of the child. Because the applicant’s son-in-law had also been verbally aggressive towards the applicant, both parties had been advised on the negative consequences of their behaviour in respect of the child. Whilst the applicant’s son-in-law had changed his behaviour and had mastered his anger, the applicant had failed to do the same even though he had been warned that his behaviour might affect his granddaughter’s emotional wellbeing and that it had caused her to reject contact with him. The applicant’s granddaughter had refused any physical contact with the applicant both before and after she had been counselled by a psychologist.

On the same dates the Suceava Child Protection Agency also informed the Romanian Government that every time the applicant’s granddaughter had been brought to the Agency, her psychological evaluation had been carried out in two stages: her interaction with the adults had been observed and afterwards she had received psychological counselling in the absence of her father. Also, given the child’s young age, the fact that her father had been her legal representative and that he had not been a danger to the child, there had been no legal basis for the Agency to accept the applicant’s request to organise psychological counselling sessions between him and his granddaughter without the father’s consent and in his absence. Moreover, after Law no. 272/2004 on protection of the rights of children had been amended on 30 September 2013 a person facing conflicts caused by enforcement of visiting rights could have notified the social protection service from the child’s domicile. However, after the aforementioned date the applicant had no longer contacted the Suceava Child Protection Agency, and the latter had not been informed by the Arbore Social Protection Service either that the applicant had faced problems with the enforcement of his visiting rights.

On 11 January 2011 the applicant opened proceedings against his son-in-law seeking custody of his granddaughter.

On 16 February 2011 the applicant amended his application and asked the domestic courts to grant him visiting rights in respect of his granddaughter if his request for custody rights was dismissed. He asked to see his granddaughter every Sunday at her home and to be granted the right to take her at his house for a month during the summer holiday.

On the same date the Rădăuți District Court allowed in part the applicant’s action and granted him visiting rights every Sunday from 10 a.m. to 6 p.m. at his granddaughter’s and son-in-law’s home. It held that the applicant was entitled to have a normal relationship with his granddaughter, a fact that had also been acknowledged by the applicant’s son-in-law who had objected only to the visiting schedule requested by the applicant. A normal relationship between the applicant and his granddaughter was in the child’s best interest. Given the child’s young age, she needed a stable living environment which could have been affected if she had to travel to the applicant’s home for a month during the summer holiday. The applicant could also have asked for an extension of his visiting rights once his relationship with his granddaughter had improved and the child had grown older.

The applicant appealed against the judgment before the Suceava County Court. He asked to be granted visiting rights in respect of his granddaughter at his house or in a neutral location on account of his poor relationship with his son-in-law. He further argued that a denial of his request by the court would prevent him from actually reconnecting with the child.

On an unspecified date the Suceava County Court ordered the Agency to produce a psychological evaluation report in respect of the applicant’s granddaughter.

On 4 October 2011, following the second-instance court’s order for a psychological evaluation report, the Agency organised a meeting between the applicant, his granddaughter and his son-in-law in order to assess their interaction. According to the meeting report produced on the same date, at the beginning of the meeting the applicant’s daughter had sat only in her father’s lap and had not approached the applicant. Afterwards, she had been examined by a psychologist. The applicant’s son-in-law had stated that when the applicant had come to see his granddaughter according to the court’s schedule he had told the child that her father would murder her just as he had done with her mother. At the same time the applicant had claimed that his son-in-law had been controlling his granddaughter and had turned her against him. The parties had been advised that mediation services could have been provided for them in order to help them resolve their conflict. The applicant’s son-in-law had refused, however, to leave the child alone with her grandfather because he could not have trusted his behaviour towards her. The applicant had accused his son-in-law of murdering his daughter in front of the child. At the end of the meeting the child had refused interact with her grandparent.

On the same date the Agency produced the psychological evaluation report ordered by the second-instance court. It concluded that the applicant, his son-in-law and his granddaughter had needed psychological counselling in order to enable them to resolve their conflict and to rekindle their relationship.

On 13 December 2011 the Suceava County Court allowed the applicant’s appeal, quashed in part the judgment of the first-instance court and granted him visiting rights on the second Sunday of each month from 10 a.m. to 6 p.m. at his home. It held, amongst other things, that according to the available evidence the applicant and his granddaughter had enjoyed an affectionate relationship both prior and after the child’s mother’s death. The relationship between the applicant and his granddaughter had changed abruptly and the child had refused to see her grandfather any more, her refusal being fuelled by a feeling of fear towards her grandfather. The conclusions of the psychological evaluation report produced in respect of the child had recommended psychological counselling for both the applicant and the child’s father in order to resolve the conflict between them and to allow them to have a balanced relationship with the child. Consequently, the conflict between the applicant and his son-in-law had influenced the applicant’s relationship with his granddaughter, given that the child’s attitude towards her grandfather had changed. In the absence of any evidence that the applicant would have endangered the child’s physical or moral development, he had been entitled to have a personal relationship with his granddaughter. Given the excessively tense situation between the applicant and his son-in-law, the age and the interests of the child, the relationship between the applicant and his granddaughter could have been rekindled only if he had been allowed to take her to his home during the allowed visiting hours.

The applicant appealed on points of law (recurs) against the judgment. He asked to be granted visiting rights in respect of his granddaughter either every Sunday or alternatively every second Sunday at his house on account of his busy work programme. He further argued that a denial of his request by the court would prevent him from rekindling the relationship with his granddaughter.

By a final judgment of 27 March 2012 the Suceava Court of Appeal dismissed the applicant’s appeal on points of law. It held, amongst other things, that it was in the best interest of the child to have contact with her grandfather given that the applicant had not endangered his granddaughter’s physical and moral development and that prior and after the child’s mother’s death they had had an affectionate relationship with one another which had been affected by the death of the child’s mother and the conflict between the applicant and his son-in-law. In spite of the child’s fear towards the applicant, according to the social investigation report the best interest of the child had been to establish a functional relationship with the applicant, reason for which the parties psychological counselling had been recommended. However, the visiting schedule requested by the applicant would have been tiring for the child, given their family situation and the child’s young age and would have also limited the applicant’s son-in-law’s time spent with his child. The visiting programme could have been changed once the factual circumstances had changed and if it had been in the best interest of the child. Consequently, it was more appropriate for the applicant to have contact with his granddaughter only one Sunday per month.

On 17 July 2012 the applicant brought criminal proceedings against his son-in-law on the basis of Article 307 of the Romanian Criminal Code for repeatedly obstructing him to see his granddaughter. He argued that although on 8 April, 7 and 13 May 2012 he had contacted his son-in-law and had asked him to allow him to have contact with his granddaughter, his son-in-law had refused to allow him to see her.

On 22 January 2013 the Rădăuți Prosecutor’s Office dismissed the criminal proceedings opened by the applicant against his son-in-law. It held that even though the applicant had been granted visiting rights in respect of his granddaughter by a final court judgment, every time he had asked her to go with him to his home she had obstinately refused. Moreover, the child had been heard in the presence of a representative of the Suceava Child Protection Agency and she had refused to go to the applicant’s house because she had feared him after he had repeatedly visited her at school and had scared her with his repeated requests to follow him home. Furthermore, the psychological report produced by the Suceava Child Protection Agency showed that the child had feared the applicant and had recommended that the child underwent psychological counselling in order to rekindle her relationship with the applicant. Lastly, the applicant’s son-in-law had only observed his child’s wishes and there was no evidence that he had influenced the child. The applicant appealed against the prosecutor’s office’s decision before the domestic courts.

By a final judgment of 12 April 2013 the Rădăuți District Court dismissed the appeal lodged by the applicant. It held that the applicant was not a parent and therefore the elements required for the offence provided by Article 307 of the Romanian Criminal Code to exist had not been met. Moreover, the police officers had heard the child in the presence of the representative of the Suceava Child Protection Agency and she had refused to go to the applicant’s home because she had feared him. The child had also stated that her father had never told her not to go to the applicant’s home.

In his initial letters the applicant informed the Court that in his hometown there had been only three bailiffs and all of them had refused to help him enforce the final judgment of 27 March 2012.

On 11 November 2013 the applicant employed a bailiff located in Suceava to enforce the final judgment of 27 March 2012.

On 12 November 2013 the bailiff employed by the applicant motioned the Suceava District Court to approve the enforcement of the final judgment of 27 March 2012.

On 14 November 2013 the Suceava District Court approved the bailiff’s request.

On 26 November 2013 the bailiff informed the applicant’s soninlaw that enforcement proceedings had been initiated against him following the applicant’s request. She invited the applicant’s son-in-law to her office on 3 December 2013 in order for him to pay the required enforcement fees and to provide the required information concerning his assets. She also informed him that failure to comply or to provide the required information was punishable by fines.

On the same date the bailiff notified the applicant’s son-in-law that he needed to comply with the domestic courts’ judgment and that the first meeting between the applicant and his granddaughter would take place on 8 December 2013. She also notified him that she would proceed with the enforcement of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply.

On 3 December 2013 the applicant’s son-in-law agreed before the bailiff to obey the final judgment of 27 March 2012.

On 8 December 2013 the bailiff accompanied the applicant to his granddaughter’s home in order to enforce the judgment. The report produced by the bailiff on the same date stated that the applicant’s soninlaw had agreed to allow the applicant to see his granddaughter and had not obstructed the enforcement proceedings. The applicant’s granddaughter had a strong emotional connection with her father and had been hostile towards the applicant. She had obstinately refused to accompany her grandfather anywhere without her father being present because she had feared her grandfather. Consequently, the applicant and his son-in-law had agreed, with the child’s consent, to take the child in a public location and to spend the day together accompanied by the bailiff. The applicant had been able to give his granddaughter a gift and had interacted with her calmly and openly. The applicant’s son in law had agreed to allow his daughter to visit her grandfather any time she wished and even on other days than the ones that had been mentioned by the court. The applicant’s granddaughter had agreed to have future contact with her grandfather but only in her father’s presence.

On 7 January 2014 the bailiff notified the applicant’s son-in-law for a second time that he needed to comply with the domestic courts’ judgment and that the second meeting between the applicant and his granddaughter would take place on 12 January 2014. She also reiterated that she would proceed with the enforcement of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply.

On 12 January 2014 the bailiff accompanied the applicant to his granddaughter’s home. The report produced by the bailiff on the same date stated that the parties had agreed for the meeting to take place in a public location after they had consulted the applicant’s granddaughter’s wishes. The applicant’s son-in-law had reiterated his willingness to allow the applicant to visit his granddaughter, but had informed the bailiff that she had refused to see her grandfather in his absence or in a different location than the one she had chosen. At the same time, the applicant had expressed his dissatisfaction with his son-in-law’s compliance with the final court judgment granting him contact rights, in so far as he had been influencing the child in choosing the locations of their meetings and therefore he had not allowed him to spend time with his granddaughter at his home. The applicant and his granddaughter had enjoyed the time together, while the applicant’s son-in-law had kept a low profile. Also the parties had agreed to allow the child and her grandfather to choose together the locations of their future meetings. At the end of the day the applicant’s granddaughter had refused her father’s proposal to travel back to her home in the company of her grandfather.

On 9 February 2014 the bailiff accompanied once more the applicant to his granddaughter’s home. The report produced by the bailiff on the same date stated that the applicant and his granddaughter had agreed for the meeting to take place in a public location. The applicant and his son-in-law had a disagreement on whether the location of the meetings could have been chosen by the applicant on his own or only with the child’s consent. The interaction between the applicant and his granddaughter had been short and the child had behaved apprehensively towards him because he had scolded her over the phone prior to their meeting. Subsequently, the applicant and his son-in-law had had a fight and the latter had taken his daughter and had left. Before leaving the applicant’s son-in-law had stated that he had not complied with the judgment granting the applicant visiting rights because he had felt compelled, but as a result of the enforcement proceedings.

On 2 April 2014, once more, the bailiff notified the applicant’s sonin-law that he needed to comply with the domestic courts’ judgment and that a new meeting between the applicant and his granddaughter would take place on 13 April 2014. She also reiterated that she would proceed to enforce of the judgment as provided, among other things, by Articles 910 and 911 of the Romanian Civil Procedure Code if he refused to comply. Moreover, she drew the applicant’s son-in-law’s attention to the provisions of Article 912 of the Romanian Civil Procedure Code and informed him about the applicant’s right under the last paragraph of Article 912 to motion the courts to apply penalties if the child refused to comply even during those enforcement proceedings.

On 5 May 2014 the applicant asked the bailiff to cease the enforcement proceedings. In his written request he stated, among other things, that the judgment could not be enforced because his son-in-law had influenced his granddaughter. Moreover, his son-in-law had allegedly informed him that he would never allow his granddaughter to visit his home.

On 22 July 2014 a bailiff located in the applicant’s home town informed the Government that no enforcement file had been registered by his office concerning the final judgment of 27 March 2012.

On 25 July 2014 a second bailiff located in the applicant’s home town informed the Government that the applicant had not asked him to enforce the final judgment granting him visiting rights. However, the aforementioned bailiff stated that an unknown person had spoken to him in 2013 about a case similar to that of the applicant, but that after the discussion the person had left without returning. He had advised that person that the refusal of the child to have contact with him had been a problem and that the adult had to make efforts in order to rekindle the relationship with the child. At the same time he had advised that person to notify the child protection services and a psychologist in order to avoid any trauma for the child.

On 29 July 2014 the bailiff employed by the applicant informed the Government that the applicant and his son-in-law had fought every time they had met. The applicant had been dissatisfied with his son-in-law’s presence at the meetings and had accused him that he had not allowed the child to go to his home. At the same time, the applicant’s granddaughter had obstinately refused to meet with her grandfather in her father’s absence. During each meeting the bailiff had repeatedly tried to convince the child to meet with her grandfather in her father’s absence, but she had refused.

On 5 February 2013 the Arbore Police Department informed the applicant’s son-in-law that, following his request, the applicant had been warned not to visit his granddaughter’s school, although he had spoken only to the teachers and had enquired about her schooling situation.

On 23 July 2014 the Arbore Mayor’s Office informed the Government that they had not taken any steps in order to assist the applicant in the enforcement of his visiting rights because he had not asked them to assist him. Moreover, they acknowledged that the applicant’s son-in-law had complained before them that the applicant had visited his granddaughter’s school in breach of the visiting programme set out by the domestic courts. They also stated that the applicant’s son-in-law had attached a number of documents to his complaint including copies of the operative part of the judgment setting out the applicant’s visiting rights, a copy of the judgment dismissing the applicant’s criminal complaint against his son-in-law and the reports prepared by the bailiff employed by the applicant on 8 December 2013 and 12 January 2014.

Articles 14 and 16 provided that a child had the right to maintain personal relations and direct contact with his parents, relatives and other persons with whom he had developed a close connection. He also had a right to know his relatives and to maintain personal relations with them as well as with other persons with whom he had developed family relations if it did not affect his best interest. The child’s parents or any other legal representative could not prohibit the child’s contact with his grandparents, except in circumstances where a court had decided otherwise.

Article 15 provided that the child’s personal relationships could be maintained by meeting the person entitled to have contact with him at the child’s or the aforementioned person’s home.

On 3 October 2013 Law no. 272/2004 was amended. Following its amendment Article 15 also provided among other things that the parent living with the child had a duty to help maintain the child’s relationship with the other parent. In order to rekindle and maintain a child’s personal relationships, the social protection or the child protection agencies had to provide professional counselling to both the child and his parents upon their request. If the parent living with the child obstructed the child’s personal relations with the other parent by ignoring the schedule set out by the court or agreed on by the parties, the other parent could request the social assistance services from the child’s home to monitor the situation for up to six months. During the monitoring process the representatives of the social assistance services could attend the moment the parent not leaving with the child would take him from his home or return him and could interview the parents, the child or any other person either leaving with the child or not in order to produce a monitoring report. The monitoring report could recommend the extension of the monitoring period by a maximum of six months, the psychological counselling of one or both parents and a series of measures aimed at improving the child’s relation with the parent with whom he was not living. The monitoring report could also be used as evidence before the court.

Following the amendment of Law no. 272/2004 on 3 October 2013 Article 161 was introduced. It provided that at the request of an interested person the domestic courts could order several measures, such as fines and security deposits, in order to secure the child’s contact rights with other persons.

The relevant provisions concerning interlocutory measures, namely Article 581, are set out in Costreie v. Romania (no. 31703/05, § 56, 13 October 2009).

Article 300 provided that an appeal on points of law suspended the enforcement of a judgment only in cases concerning the moving of land borders, destruction of constructions, crops or of any other fixed work as well as in cases expressly provided by law.

Article 24 provided that the provisions of the New Civil Procedure Code applied only to trials and enforcement proceedings started after it had entered into force.

Article 711 provided among other things that any interested party could contest the enforcement or the enforcement acts. The enforcement could also be contested if the bailiff refused to carry out an enforcement or to carry out an enforcement act according to law.

Articles 909 provided among other things that if the debtor ignored the bailiff’s notification to observe the creditor’s contact rights, the bailiff could, at the creditor’s request, ask the court to apply penalties on the debtor.

Article 910 provided among other things that if the debtor failed to comply with his duties within a month from the notification of the court order for penalties, the bailiff had to proceed with the enforcement. The enforcement had to be carried out in the presence of a representative of a child protection agency, and when the latter considered it necessary, in the presence of a psychologist assigned by him. If requested by the bailiff, public agents had to assist with the enforcement. Bullying or pressuring the child in order to successfully enforce a judgment was prohibited.

Article 911 provided among other things that if the debtor was acting in bad faith and hid the child, the bailiff had to record the incident and inform the prosecutor’s office attached to the court charged with the enforcement proceedings in order to open criminal proceedings against the debtor for failure to comply with a court judgment.

Article 912 provided among other things that if the bailiff noted that the child himself categorically refused to leave the debtor or was hostile towards the creditor, he had to produce a report describing the situation. He also had to communicate the aforementioned report to the parties and to the representative of the child protection agency. The representative of the child protection agency had to motion the competent court from the child’s home, for the court to set out, depending on the child’s age, a schedule for psychological counselling sessions for a period no longer than three months. The court had to examine the request urgently in a council chamber, by a final interlocutory judgment after summoning the parties and the person living with the child. The court-appointed psychologist had to produce a report at the end of the counselling sessions which had to be communicated to the court, the bailiff and to the child protection service. The bailiff had to resume the enforcement proceedings as provided by Article 910 after receiving the psychologist’s report. If the minor continued to refuse to comply, even during those enforcement proceedings, the creditor could ask the competent court from the child’s home to order penalties.

Article 307 provided among other things that the refusal of a parent to return a child without the consent of the other parent or the person enjoying custody rights in respect of the child was punishable by a prison sentence or by a fine. The same punishment could be applied in respect of the person who enjoyed custody rights if he or she had repeatedly prevented the child’s parents from maintaining contact with their child as agreed by the parties or set out by a court.


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano

The applicant, Mr Mirosław Wyżga, is a Polish national who was born in 1976 and lives in Kraków. He was represented before the Court by Mr J. Krupa, a lawyer practising in Kraków.

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

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

On an unknown date the applicant was charged with several offences and in particular uttering threats (committed mostly in 2008).

On 10 July 2008 the Kraków District Prosecutor asked the Kraków District Court to remand the applicant in custody. The prosecutor indicated that the applicant had failed to report for a court-ordered psychiatric observation. The applicant was arrested and placed in the hospital on 18 June 2008. However, he escaped two days later.

The applicant was remanded in custody on 31 August 2008 and placed in the psychiatric ward of the Kraków Remand Centre Hospital. Between 22 September 2008 and 3 November 2008 he was under psychiatric observation. On 19 November 2008 two expert psychiatrists gave an opinion and determined that the applicant was suffering from paranoid schizophrenia. They observed that the applicant should be placed in a psychiatric hospital as there was a very high probability that he would commit another, similar offence.

On 9 March 2009 the Kraków District Court gave a decision and discontinued the criminal proceedings against the applicant. The court, referring to the experts’ opinion, established that the applicant could not be held criminally responsible as he was suffering from paranoid schizophrenia. It ordered that the applicant be placed in a psychiatric hospital. On 28 April 2009 the Kraków Regional Court upheld that decision.

The applicant’s remand in custody was subsequently extended. On 6 May 2009 a doctor confirmed that the applicant could be treated in the hospital wing of the detention facility until he could be transferred to a psychiatric hospital.

On 17 June 2009 the Psychiatric Commission on Preventive Measures (“the Commission”) ruled that the applicant should be placed in the Jarosław Psychiatric Hospital. On 22 July 2009 the Kraków District Court asked the Commission to indicate the Kraków Babinski Psychiatric Hospital (“Babinski Hospital”) as the hospital where the applicant should be placed, since sending him to the Jarosław Hospital would make it difficult for him to maintain contact with his family. On the same day, the Commission recommended Babinski Hospital.

On 24 September 2009 the applicant was transferred from the detention centre to Babinski Hospital.

On 4 March 2010 the Kraków District Court, citing an expert opinion of 18 January 2010, confirmed that the applicant’s condition had not changed and that it was necessary to keep him in the hospital. The applicant appealed. On 28 May 2010 the Kraków Regional Court upheld the district court’s decision.

Meanwhile, another set of criminal proceedings against the applicant (charges of computer hacking committed in 2003) was discontinued by the Kraków District Court on 27 May 2010. The court held that the applicant could not be held criminally responsible. It further considered, citing a psychiatric opinion of 13 April 2010 given by expert psychiatrists D.W. and S.T. that the applicant needed constant pharmacological treatment but he could be treated outside a psychiatric hospital.

At a session held on 22 October 2010 the Kraków District Court confirmed that the applicant’s condition had not changed. Its decision given on that day was identical to that of 4 March 2010. The court examined an expert opinion of 16 July 2010, signed by two psychiatrists (including D.W.) and two psychologists, who confirmed that the applicant should continue to be treated in a psychiatric hospital. The court also refused a request by the applicant’s lawyer for experts to be appointed from outside the Kraków region. It further noted that the two expert opinions (of April and July 2010) could not be compared, as different circumstances had been examined in these two sets of proceedings.

The applicant’s lawyer appealed against this decision, claiming that D.W.’s opinions were contradictory and that it had not been reliably shown that the applicant’s continued detention was necessary. On 10 December 2010 the Kraków Regional Court upheld the district court’s decision, concurring that the applicant’s confinement should be extended.

On 21 April and 11 October 2011 the Kraków District Court again extended the applicant’s detention in a psychiatric hospital. These decisions were identical to the two previous decisions. However, the court referred to fresh experts’ opinions, of 14 January and 14 July 2011 respectively. These decisions were upheld on 11 July and 15 December 2011 by the Kraków Regional Court.

On 27 January 2012 the Kraków District Court confirmed that the applicant’s detention in a psychiatric hospital should be continued, basing this decision on an opinion of 12 January 2012. The court referred to the applicant’s attempted escape of 11 January 2012. The applicant’s appeal was dismissed by the Kraków Regional Court on 29 February 2012.

On 23 May 2012 expert psychiatrists confirmed that the applicant should continue to be treated in hospital, as he was still completely uncritical as regards the acts he had committed and his illness.

On 11 June 2012 the Kraków District Court confirmed that the applicant’s detention in a psychiatric hospital should be continued. The court cited a fresh expert report and the applicant’s attempted escape of 11 January 2012. On 30 July 2012 the Kraków Regional Court upheld the district court’s decision.

On 3 December 2012 the Kraków District Court, on the basis of an experts’ opinion of 23 November 2012, held that the applicant’s detention in a psychiatric hospital should be continued. An appeal against this by the applicant was dismissed by the Kraków Regional Court on 25 January 2013.

In their opinions of 16 May and 15 July 2013 experts found that the reasons for applying the preventive measure remained. However, owing to the applicant’s inappropriate behaviour (harassment of other patients and uttering threats towards patients and the hospital staff) they recommended that he be transferred to a different hospital. Nevertheless, on 8 August 2013 the Kraków District Court decided to keep the applicant in Babinski Hospital. That decision was upheld by the Kraków Regional Court on 24 September 2013.

On 19 September 2013, upon a recommendation by the Psychiatric Commission, the Kraków District Court decided to place the applicant in the Dębica Medical Centre (“Dębica Hospital”). The applicant was transferred there on 25 September 2013.

On 10 December 2013 two expert psychiatrists and a psychologist from the Tarnów region confirmed that the applicant did not see a need to continue treatment, he was uncritical about his illness, and there was a risk that he might commit yet another offence. Therefore, he should continue treatment in a secured psychiatric facility. Referring to this opinion, the Kraków District Court decided to extend the applicant’s confinement on 27 January 2014. The decision was upheld by the Kraków Regional Court on 23 May 2014.

On 24 April 2014 two expert psychiatrists and a psychologist held that the applicant’s condition had deteriorated and there was still a risk that he might commit yet another offence. For these reasons it was necessary to continue his treatment in a secure psychiatric facility. Subsequently, on 26 June 2014 the Kraków District Court extended the applicant’s detention.

On 21 August 2014 the Kraków District Court decided to transfer the applicant to the Branice Psychiatric Hospital – a high-security psychiatric facility. On 16 October 2014 the Kraków Regional Court dismissed the applicant’s appeal against that decision. The court stressed, referring to a recent expert opinion that the applicant’s condition had deteriorated since March 2014. He was aggressive and threatened other patients and medical staff.

The applicant was transferred to Branice Hospital on 4 September 2014.

On 10 February 2015 expert psychiatrists from the Opole region observed some improvement in the applicant’s mental state. He was no longer threatening other patients and had not attempted to escape. However, the improvement was not permanent, and there was still a high risk that the applicant would commit another similar offence.

On 19 March 2015 the Kraków District Court again extended the applicant’s detention. In view of the experts’ opinion it also ordered that the applicant be transferred to a less secure psychiatric facility - the Rybnik Psychiatric Hospital.

According to the information available to the Court on the date of adoption of the present decision the applicant is still detained in a psychiatric hospital.

Conditions for the detention of persons of unsound mind who are not criminally responsible on medical grounds are laid down in the Polish Criminal Code of 1997:

Article 93

“The court may impose a preventive measure as provided for in this chapter, which involves committal to a secure medical institution only if necessary in order to prevent the repeated commission of a prohibited act by an offender suffering from mental illness ... mental impairment or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...”

Article 94

“1. If an offender has committed a prohibited act in a state of insanity as specified in Article 31 § 1, causing significant harm to the community, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution.

The duration of the stay in the institution shall not be fixed in advance; the court shall release the offender from the institution if his stay there is no longer deemed necessary.

The court may reorder the committal of an offender (as specified in paragraph 1) to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or Article 93; such an order may not be issued more than five years after release from the institution.”

Pursuant to Article 22 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable from 1 January 2012, an offender and his defence lawyer may take part in a court hearing only if this is expressly provided by law.

Article 204, as applicable at the material time, provided:

“1. The court shall, no less frequently than every six months, and in the event of receiving an opinion that further detention of the offender in a secure medical institution in which a preventive measure is being executed is unnecessary, immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts.

A decision on the further execution of a preventive measure may be appealed against.”

On 1 July 2015 Article 204 was amended to the effect that it now provides explicitly for the obligatory participation of a prosecutor (always) and a defence lawyer (if the offender is deaf, mute or blind, or a minor, if there are justified doubts as to whether he could be held criminally responsible or if the court finds that the defence may be particularly difficult).


Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Justin Ndabarishye Rugira, stated that he is a national of the Democratic Republic of Congo (DRC) and that he was born on 12 October 1993 in the DRC. At the time of the introduction of the application, he was staying in Rotterdam. He was represented before the Court by Mr W.H.M. Ummels, a lawyer practising in Rotterdam.

The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.

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

On 19 June 2012, the applicant applied for asylum in the Netherlands, submitting that he was a member of the Banyamulenge (Tutsi) community and that he hailed from South-Kivu in the eastern part of the DRC where he had had problems with the DRC governmental armed forces. He further stated that he had travelled by car form the DRC to Burundi on 26 May 2012, from where he had travelled by air, with a stopover at an unknown airport, to the Netherlands where he had arrived on 27 May 2012 at Schiphol airport. He had never applied for or held a travel document or visa. The person who had accompanied him on his journey had shown documents on the applicant’s behalf at control points. The only identity document he submitted was a DRC voter’s pass issued on 6 April 2011 by the Lulenge electoral commission. The applicant stated that he had never held any other identity documents.

On 27 June 2012 the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; “the Minister”) rejected the applicant’s asylum request. The Minister considered that the applicant’s failure to substantiate in a sufficient manner his stated identity, nationality and travel itinerary as well as his failure to give a detailed, coherent and verifiable account of his journey to the Netherlands detracted from the credibility of his asylum account which, furthermore, lacked positive persuasiveness. Referring to the official report (ambtsbericht) on the DRC, drawn up by the Netherlands Minister of Foreign Affairs in June 2012, the Minister further found that the overall situation in the DRC was not such as to warrant accepting the applicant’s asylum request.

On 20 July 2012, the Regional Court (rechtbank) of The Hague sitting in Zwolle dismissed the applicant’s appeal. It considered that, although the situation in South-Kivu fell within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”), a safe relocation alternative existed in Kinshasa. Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State).

On 9 August 2012 the applicant lodged a fresh asylum request, which was rejected by the Minister on 7 September 2012. Referring to the Netherlands official report on the DRC of June 2012, the Minister held that the articles and reports relied on by the applicant did not lead to a different conclusion as to the lack of credibility of his asylum account and the possibility for him to settle elsewhere in the DRC.

On 10 January 2013, the Regional Court of The Hague sitting in Middelburg dismissed the applicant’s appeal. It held that, although the overall situation in the DRC had worsened since the decision of 27 June 2012 on the applicant’s first asylum request, it could not be said that there was systematic discrimination of Banyamulenge in the DRC and the applicant still had an alternative relocation possibility outside the Kivu area. The applicant filed a further appeal against this decision as well as an accompanying request for a provisional measure, namely a stay of removal pending the proceedings on this further appeal.

On 22 January 2013, according to the applicant on the basis of the DRC voter’s pass submitted by him in support of his asylum request, the DRC mission in Belgium provided the Netherlands authorities with an “attestation tenant lieu de passeport” for the purposes of the applicant’s removal to the DRC. This document was valid from 22 January 2013 to 21 January 2014. On an unspecified date, the applicant was informed that his removal to Kinshasa (DRC) had been scheduled for 14 February 2013.

On 8 February 2013, the President of the Administrative Jurisdiction Division granted the applicant’s request for a provisional measure. Consequently, the applicant’s scheduled removal was cancelled.

On 28 February 2013 the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary reasoning. It found that the further appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.

On 15 March 2013 the applicant requested the Court to indicate to the Government, by way of an interim measure pursuant to Rule 39 of the Rules of Court, that he should not be removed to Kinshasa (DRC).

On 11 April 2013 the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to the DRC for the duration of the proceedings before the Court. The President further decided to bring the application to the notice of the respondent Government in accordance with Rule 54 § 2 (b) of the Court’s Rules of Procedure and to submit written observations on the admissibility and merits.

On 23 May 2013, the respondent Government informed the Court that, according to information received from the Belgian authorities, the applicant had entered the Schengen area in 2012, using a tourist visa issued by the Belgian authorities and a Rwandan passport. Pending verification of this new information, the Government sought an extension of the time-limit fixed for submission of their written observations. This request was granted by the President.

On 17 July 2013, the respondent Government informed the Court that, given the doubts that had arisen as regard the applicant’s origins, a language analysis would be carried out.

On 15 August 2013, a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis (Bureau Land en Taal), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”) of the Ministry for Security and Justice (Ministerie van Veiligheid en Justitie). The conclusion of this language analysis was that the applicant was unequivocally identified as not originating from the DRC (“eenduidig niet herleidbaar to DR Congo”) but it was considered likely that he originated from the linguistic community in Rwanda (“waarschijnlijk herleidbaar tot de spraakgemeenschap binnen Rwanda”).

According to a report issued by the Documents Bureau (Bureau Documenten) of the Immigration and Naturalisation Service on 4 September 2013, the DRC voter’s pass submitted by the applicant to the Netherlands authorities had possibly not been drawn up and issued by a competent authority (mogelijk niet bevoegd opgemaakt en afgegeven) but the document itself was “with virtual certainty” (met aan zekerheid grenzende waarschijnlijkheid) authentic.

On 1 November 2013, the respondent Government submitted their observations to which the applicant replied on 29 January 2014.

On 18 February 2014, the respondent Government submitted a print-out of a website-page of the Belgian Federal Foreign Affairs Service (Federale Overheidsdienst Buitenlandse Zaken) containing the details – including a digital passport photograph and particulars of the petitioner – of an accepted application for a tourist visa filed with the Belgian authorities on 17 April 2012 by Mr Justin Ndabarishye, a Rwandan national born in the DRC on 12 October 1990. The respondent Government also submitted a copy of the applicant’s asylum application filed in the Netherlands, including a passport photograph of the applicant taken in that context.

The applicant’s response to these materials was submitted on 28 March 2014.

The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).

At the material time, the respondent Government’s policy on asylum-seekers from particular countries was devised by the Minister for Immigration, Integration and Asylum Policy and his successor, the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie), on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum-seekers.

On 10 July 2013, the Deputy Minister for Security and Justice adopted a moratorium on decisions on asylum applications and expulsions (besluit- en vertrekmoratorium) for asylum-seekers of Tutsi origin hailing from the east of the DRC, including the provinces North-Kivu and South-Kivu.

The moratorium was lifted by the Deputy Minister on 3 February 2014. This policy decision, as published in the Official Gazette (Staatscourant) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North-Kivu, South-Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered as falling within the scope of Article 15(c) of the Qualification Directive, an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum-seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.


CASE OF SHAHANOV AND PALFREEMAN v. BULGARIA

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

Mr Shahanov, who was born in 1977, is serving a life sentence in Plovdiv Prison.

Mr Palfreeman, who was born in 1986, is serving a sentence of twenty years’ imprisonment in Sofia Prison.

In 2011, when serving his sentence in Plovdiv Prison, Mr Shahanov was sharing a cell with eight other inmates. On 24 October 2011 he made two complaints to the Minister of Justice: one written by him personally and one written on his behalf by his wife. In the complaints he stated, inter alia, that another inmate in his ward, X, was bragging that two prison officers, Y and Z, were relatives of his; was threatening and intimidating the other inmates and fomenting intrigues and tension among them; was often making unwarranted complaints to get special attention and treatment; and was planning to escape from prison with the help of his relatives. Mr Shahanov requested that steps be taken to move X to a prison where he did not have relatives.

An inquiry was opened pursuant to Mr Shahanov’s complaints, and written statements were taken from X, other inmates, Y, Z, and other prison officers.

In a letter of 28 November 2011, the head of the Chief Directorate for the Execution of Sentences informed the governor of Plovdiv Prison that the inquiry had not found familial relationships or improper contacts between X and any of the prison officers, or a risk for Mr Shahanov. The letter went on to say that the governor should advise all inmates that making defamatory statements about, or false allegations against, prison officers was a disciplinary offence under section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below).

The next day, 29 November 2011, the governor of Plovdiv Prison ordered that Mr Shahanov be placed in solitary confinement for ten days for making defamatory statements and false allegations against prison officers, contrary to the above-mentioned provision.

On 30 November 2011 Mr Shahanov sought judicial review of the order.

The Plovdiv District Court heard Mr Shahanov’s claim on 2 December 2011 and, in a final decision of the same date (опр. oт 02.12.2011 г. по ч. н. д. № 8203/2011 г., РС-Пловдив), upheld the order. It held that it was lawful and that, in view of the results of the inquiry carried out pursuant to Mr Shahanov’s complaints and the evidence gathered in the proceedings before it, the prison governor had been correct to find that Mr Shahanov had made defamatory statements and false allegations against prison officers. The court went on to say that the punishment matched the seriousness of the offence.

Mr Shahanov asserted that his correspondence was routinely opened and read by the prison authorities. In support of his assertion, he submitted seven letters sent in 2012, six of which were addressed to his counsel, whose envelopes bore the stamp “checked” on their backs. For their part, the Government submitted a letter from the administration of Plovdiv Prison according to which Mr Shahanov’s correspondence was being controlled in the manner envisaged in the applicable regulations, which meant that the prison authorities only checked the physical content of the letters, not their text. All letters were sealed and opened by a prison officer in front of the prisoner. The stamp “checked” affixed on the back of an envelope only meant that the letter had been physically inspected for the presence of prohibited items.

On 23 May 2012 Mr Palfreeman was visited by two journalists. At the same time, a fellow inmate of Israeli nationality also had a visitor. After the visits, Mr Palfreeman learned that his visitors had been treated rudely, and that his fellow inmate’s visitor had had personal items stolen from lockers in the prison where he had left them during the visit.

The next day, 24 May 2012, with the help of another inmate who knew Bulgarian, Mr Palfreeman wrote the following complaint to the governor of Sofia Prison:

“On 23 May 2012, during the midday visit, personal items of visitors were stolen from the visitors’ lockers, which are only accessible to the guards. The stolen items are a mobile telephone case, MP3 headphones, a mobile telephone battery, and a sum of money. Also, the guards behaved very rudely and coarsely with the visitors, yelling at them and insulting them for no reason. Could you please carry out an inquiry into the conduct of that shift, and take measures to ensure that the guards work in a disciplined way and with respect towards inmates and others.”

Disciplinary proceedings were opened against Mr Palfreeman in relation to that complaint. On 11 June 2012 a hearing took place before the prison’s disciplinary commission.

In an order of 12 June 2012, the governor of Sofia Prison noted that an inquiry carried out pursuant to Mr Palfreeman’s complaint had shown that the two persons who had visited him had not left any items in the visitors’ lockers, and had not made any complaints about missing items on their way out of the prison. There was no evidence that they had been treated rudely by prison staff either. By making allegations to that effect, Mr Palfreeman had therefore acted contrary to section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below). The nature and the gravity of the offence, Mr Palfreeman’s attitude towards his act, and his overall conduct and state of health militated in favour of punishing him with three months’ deprivation of the right to receive food parcels from outside prison.

Mr Palfreeman appealed to the head of the Chief Directorate for the Execution of Sentences and sought judicial review. He argued, inter alia, that his disciplinary punishment was in breach of section 90(5) of the 2009 Act (see paragraph 25 below) and this Court’s case-law, that deprivation of the right to receive food parcels was a serious sanction in view of the insufficient quantity of food provided by the prison, and that it was an attempt to cow him into not making complaints against the prison administration.

On 14 August 2012 the head of the Chief Directorate for the Execution of Sentences dismissed the appeal. Noting that the inquiry into Mr Palfreeman’s allegations had not confirmed any of them, he found that, by deliberately making false allegations, the applicant had committed the disciplinary offence under section 100(2)(7) of the 2009 Act. The sanction fully corresponded to the nature and the gravity of his act, his attitude towards it, and his previous conduct.

In a final decision of 19 July 2012 (опр. от 19.07.2012 г. по н. ч. д. № 13436/2012 г., СРС), the Sofia District Court held that it could not deal with Mr Palfreeman’s claim for judicial review, as only orders imposing solitary confinement were amenable to such review. All other types of disciplinary punishments were only subject to appeal before the head of the Chief Directorate for the Execution of Sentences (see paragraphs 30-32 below).


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1973 and lives in Belgrade.

The applicant and S.S. (“the respondent”) married in 1998. Their son V.S. was born in August 1999. They lived in the respondent’s parents’ house in a neighbourhood of Belgrade.

In May 2008 the applicant moved to her parents’ house in the same neighbourhood. V.S. continued living with his father and his paternal grandparents.

On 19 May 2008 the applicant filed a request for interim custody with the competent first-instance court.

On 8 July 2008 the first-instance court rejected the applicant’s request for interim custody, but granted her extensive access rights in respect of the child pending the final outcome of the custody proceedings. This interim access order was immediately enforceable.

It appears that the interim access order was respected, with some resistance on the part of the child, until 13 August 2008, when the child ran away from the applicant during a visit and went back to the respondent’s house.

On 22 September 2008 the enforcement judge ordered enforcement of the said access order. After several failed attempts by the applicant to spend time with the child in accordance with the order, the enforcement judge sent a bailiff on 18 and 20 November 2008 to make an unannounced visit to monitor the applicant’s attempt to make contact with the child. During the visit, the bailiff informed the enforcement judge that the respondent had brought the child to the front gate of the house, but the child had refused to leave with the applicant, even after the respondent tried to persuade him, and had gone back inside. After receiving the report, the enforcement judge scheduled an enforcement hearing for 5 December 2008.

On 5 December 2008 the enforcement judge ordered a child support team from V.S.’s school to implement a system of psychological preparation to assist the child’s acceptance of contact with his mother.

On 9 January 2009 the enforcement judge asked the Social Care Centre to contemplate initiating corrective monitoring of the respondent’s exercise of parental rights in the light of the respondent’s substantial influence on the child’s hostility toward his mother.

On 7 April 2009 the Social Care Centre placed the respondent under formal corrective supervision (korektivni nadzor nad vršenjem roditeljskog prava). On 19 June 2009 the Social Care Centre, with the approval of the enforcement judge, applied the same measure to the applicant so as to enhance the parents’ collaboration with a view to satisfying the child’s emotional needs.

In the meantime, on 5 June 2009, the enforcement judge heard a psychologist working with the child. The psychologist advised the judge that interviewing the child within the proceedings would not be in his best interest.

Due to the respondent’s failure to prepare the child appropriately for the contact with his mother, on 4 May 2009 the enforcement judge ordered the respondent to pay a fine in the amount of 10,000 Serbian dinars (RSD) and on 6 June 2009 a fine in the amount of 150,000 RSD, both within three days. On 5 October 2009 the competent second-instance court rejected the respondent’s appeals against the fines. On 19 February and 10 May 2010, after the failure of the applicant to pay the fines, the enforcement judge ordered their mandatory enforcement.

On 26 November 2009 the Social Care Centre asked the enforcement judge to postpone enforcement of the access order for three months in view of the pending parental therapy. The Centre further asked for, and the judge approved, a further three months of therapy, stating that an improvement in the child’s attitude as well as in the parents’ relationship had been achieved. The Centre also proposed to the applicant and the respondent to stay the ongoing court proceedings until the therapy had ended. They observed that the court proceedings, in which the parents acted as opponents, jeopardised the progress achieved to date. It would appear that the applicant and the respondent did not accept this recommendation.

The parental therapy, which at that time had already lasted for six months, included 23 sessions in which the Social Care Centre’s professionals continuously and intensively worked with the applicant, the respondent, the child and the paternal grandparents to reach mutually acceptable arrangements and enforce the interim measures in line with the best interest of the child.

On 13 July 2010 the custody judgment of 24 November 2009 became final (see paragraph 33 below) and the decision on interim custody rights came to an end. The enforcement proceedings were later formally terminated by the enforcement judge on 28 February 2011. The enforcement judge, however, explicitly ordered continuation of the enforcement in respect of the fine of June 2009.

On 25 October 2008 the applicant lodged a new request for interim custody after the Mental Care Institute (Institut za mentalno zdravlje, hereafter “MCI”) conducted an examination of the parental capacity of both parties at the request of the first-instance court. The MCI report recommended that custody be awarded to the applicant.

On 11 November 2008 the first-instance court granted interim custody to the applicant and ordered the respondent immediately to surrender the child to her. It also quashed the part of the interim order of 8 July 2008 containing its decision not to grant custody to the applicant. The rest of the interim access order remained in force.

On 4 December 2008 the enforcement court ordered enforcement of the interim custody order. The respondent appealed on 26 December 2008, claiming that the child himself did not want to live with the applicant. The appeal was rejected on 29 September 2009.

The first attempt to reunite the applicant with the child took place on 22 December 2008. The enforcement judge, a bailiff, several representatives of the Social Care Centre, two uniformed policemen, three plain clothes policemen, the applicant and her lawyer all entered the courtyard of the respondent’s house, expecting that the child would be surrendered. The judge and the Centre’s representatives explained to the child in front of the others that he should leave and go with his mother to her house, but the child rejected the planned reunion and went back inside. The respondent allegedly would not allow the enforcement to take place in the house. He maintained that he had informed the child that various officials would come, but had not prepared him for reunion. The applicant refused forceful removal of the child. The enforcement judge noted that the child was not yet prepared for a transfer of custody and postponed the enforcement until January 2009 at the Social Care Centre’s premises. The enforcement judge asked the parties and the Social Care Centre’s representative to prepare the child adequately for the next reunion.

On 15 January and 4 February 2009 the enforcement judge adjourned the custody transfer scheduled for those dates as it was awaiting an opinion from the Social Care Centre regarding the formal corrective supervision of the respondent, as requested in the interim access enforcement proceedings (see paragraph 14 above).

The enforcement judge re-scheduled the transfer of custody for 1 April 2009 at the Social Care Centre’s premises. The attempt of transfer was conducted in the presence of the enforcement judge, the psychologist, the psychiatrist and the lawyer from the Social Care Centre and police officers. The child again refused to be separated from his father. The police explained that they could not forcefully remove the respondent from the premises to enable the social experts and the judge to facilitate a conversation with the child in his absence, since the child was clinging on the father, crying and refusing to let him go. It appears that the applicant was also against the use of force (according to a report to the enforcement judge by the Social Care Centre of 31 March 2010, the applicant refused the possibility of the use of force throughout the proceedings). The Social Care Centre recommended that psychotherapeutic support be provided for the child. The enforcement of the custody transfer was postponed. Shortly afterwards, the respondent was placed under the corrective supervision of the Social Care Centre (see para. 14 above).

On 5 June 2009 the enforcement judge held a hearing which appears to have been the last one within these enforcement proceedings.

The applicant petitioned the enforcement judge to fine the respondent for obstructing her contact with the child, hoping that this would compel him to surrender the child.

On 26 June 2009 the enforcement judge imposed on the respondent a fine in the amount of 150,000 RSD for failing to appropriately psychologically prepare the child for the reunification. It would appear that the fine has been paid.

On 12 February and 31 March 2010 the Social Care Centre informed the enforcement judge that its psychological therapies in respect of the family in question had produced no results (see paragraphs 17-18 above). According to their reports, it became clear that the respondent had cooperated in form only and had in fact failed to take steps to encourage the child to have substantive contact with the applicant.

On 13 July 2010 the custody judgment of 24 November 2009 became final and the decision on interim custody rights came to an end. From that moment, efforts to enforce the final custody judgment commenced (see paragraphs 38-42 below). On 25 March 2011 the enforcement judge formally terminated the enforcement proceedings.

On 19 May 2008 the applicant lodged a civil claim requesting the dissolution of her marriage with S.S., sole custody of V.S. and maintenance.

On 24 November 2009 the first-instance court dissolved the applicant’s marriage, granted her sole custody of V.S. and specified the respondent’s access rights.

On 13 July 2010 and 18 January 2011 the second-instance court and the Supreme Court of Cassation, respectively, upheld this judgment.

On 28 December 2009 the applicant filed a constitutional appeal with the Constitutional Court of Serbia (Ustavni sud Republike Srbije). She relied on various Articles of the Constitution, Articles 6, 8 and 13 of the Convention and Articles 3 and 9 the UN Convention on the Rights of the Child. She sought redress for the protracted length of the custody and subsequent criminal proceedings and the non-enforcement of the judicial interim access and custody decisions in her favour which, she claimed, violated her rights to a fair trial and to family life. She also complained that she had not had any legal avenue available to expedite those proceedings.

On 22 July 2010 the Constitutional Court rejected the applicant’s appeal.

As regards the protracted length of the custody proceedings, the Constitutional Court considered that the first-instance court had acted diligently, without any substantial periods of inactivity. It found the case to have been particularly complex, as the expert findings regarding the best interests of the child had conflicted with the latter’s own wish as to who to live with.

It also found that the non-enforcement of the interim access and custody orders during the same period had been attributable to the particular complexity of the case, as the child had objected to being reunited with the applicant. It found that the enforcement court had undertaken, without any delay, all necessary measures, including fining the respondent, for the purpose of enforcing effectively the applicant’s rights.

The judgment of 24 November 2009 became enforceable on 27 September 2010 and the enforcement order was issued on 29 November 2010.

The first forcible transfer of custody was scheduled for 9 March 2011, but the child refused any kind of contact with the applicant. The court noted that the respondent had failed to prepare the child for reunion. The applicant explicitly refused to countenance the use of force against the respondent and the child as the means of enforcement. The enforcement was therefore adjourned.

On 23 March 2011, upon the initiative of the Social Care Centre, the applicant and the respondent signed an Agreement on Access Rights designed to assist the re-establishing of contact between the applicant and V.S. in order to facilitate the enforcement of the custody judgment.

Despite this agreement, on 25 March 2011 the enforcement court imposed a fine on the respondent in the amount of RSD 100,000 because of his failure to comply with the judgment of 24 November 2009. It also ruled that the respondent was to be given three days from the date of receipt of that order to surrender the child voluntarily to the applicant and with the added condition that, should he fail to do so, he would have to pay a further fine of RSD 150,000. The respondent did not comply with the order and it seems that the fine in the amount of 100.000 RSD was subsequently imposed and paid.

The court scheduled a new forcible transfer of custody for 9 March 2011. In preparation for the enforcement, the Social Care Centre’s psychologist drew up a detailed plan of action. The psychologist’s assessment, after working with the child, was that such a transfer would be impossible or highly traumatic for the child and the enforcement was postponed once again.

On 9 February 2011 the respondent filed a claim for revision of the judgment of 24 November 2009, seeking sole custody of V.S. He also requested an interim custody order to the same effect.

On 24 June 2011 the Social Care Centre provided the first-instance court with an expert opinion. The Social Care Centre acknowledged that there had been no mechanisms available to facilitate a forcible physical transfer of child custody to the applicant in view of the respondent’s refusal. According to the report, the only feasible proposal would be for the child to continue living with his father. Even though, taking into account the chronology of events, parental capacity, justice and equity, the opposite proposal would be more appropriate, it could propose only this arrangement “not as an expression of their wish, but as the sole solution which is possible to impose and enforce in practice”. A change of residence would in any event have a negative impact on the child’s development.

On 20 June 2012 the first-instance court granted sole custody to the respondent, ordered the applicant to pay child maintenance and specified the applicant’s access rights as eight hours every weekend, as well as specified periods of school holidays.

On 29 August 2008 and 23 June 2009 the applicant filed criminal complaints against the respondent for parental child abduction and continuous non-compliance with the interim access and custody orders. On 2 June 2009 and 28 September 2010 the competent prosecutor’s office charged the applicant with those crimes. None of the scheduled hearings was held. In September 2011 the first-instance court stayed the criminal proceedings as the prosecutor’s office had dropped the charges. The applicant subsequently took over the prosecution as subsidiary prosecutor. On 20 June 2012 the first-instance court, in a reasoned judgment, acquitted the respondent. It found, on the basis of numerous testimonies, three expert opinions, four expert reports from the civil proceedings case-file and other documentary evidence that the respondent always made the child available for enforcement, that he never physically or verbally, actively or passively obstructed enforcement at any point, and that there were no indications that the child ever showed signs that he was under pressure or undue influence not to have contact with his mother. On 25 October 2012 the second-instance court upheld this judgment.

It would appear that the applicant and her son have re-established contact with each other since the signing of the Agreement on Access Rights of 23 March 2011 and the revision of the custody judgment of 20 June 2012. It would appear that they have been meeting every weekend for at least an hour without supervision. The child still lives with the respondent.


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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


CASE OF KONDRAKHIN AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)

André Potocki;Mārtiņš Mits;Síofra O’Leary

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. In applications nos. 2887/05, 68256/12 and 66389/16, the applicants also raised other complaints under the provisions of the Convention.