Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-f - Prevent unauthorised entry into country);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants found themselves staying in the transit zone of Sheremetyevo Airport of Moscow. The details of each application are set out below.

The applicant is an Iraqi national who was born in 1987.

The applicant moved from Iraq to Turkey in 2013 seeking employment. He later moved to China to look for a job.

On 24 July 2015 the applicant travelled by air from China to Turkey. The journey consisted of two legs: Shanghai to Moscow and Moscow to Ankara. The Turkish authorities denied him entry for reasons that the applicant did not specify in his application. The applicant was sent to Moscow on 27 July 2015. On arrival at Sheremetyevo Airport, he was not allowed to pass through passport control.

From 27 July 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area.

On 29 July 2015 the applicant applied for refugee status in Russia, arguing that in Iraq he would run the risk of persecution by militants belonging to the Islamic State of Iraq and al-Sham (ISIS – also known as Islamic State of Iraq and the Levant) because he had refused to join them, as well as by Iraqi government forces for the reason that he practiced the Sunni form of Islam.

On 19 September 2015 the applicant received a visit from the Moscow regional department of the Federal Migration Service (“the Moscow Region FMS”) and was interviewed in the transit zone. The Moscow Region FMS did not issue the applicant with a certificate to confirm that his refugee status application deserved to be examined on the merits (“examination certificate”).

On 10 November 2015 the Moscow Region FMS dismissed the applicant’s refugee status application. The applicant appealed to the higher migration authority (the Federal Migration Service of Russia – “the Russian FMS”), asking it to overrule the decision of 10 November 2015, to issue him with an examination certificate, and to allocate him to a centre for the temporary detention of aliens.

On 29 December 2015 the Russian FMS dismissed the applicant’s appeal on the grounds that he had not received any direct threats targeted against him personally and that “the applicant [had not submitted] convincing evidence that he might become a victim of persecution by ISIS militants or Iraqi authorities on the grounds contained in the definition of the term ‘refugee’, including his religion”. The issue of the applicant’s stay in Sheremetyevo Airport was not addressed in the decision.

The applicant’s lawyer was served with the decision of 29 December 2015 on 23 January 2016.

On 1 February 2016 the applicant lodged an appeal against the decisions of 10 November and 29 December 2015 with the Basmannyy District Court of Moscow. He specifically argued that the migration authorities had not complied with the procedural rules by failing to interview him speedily or to issue him with an examination certificate, and that he had spent more than six months in the transit zone of Sheremetyevo Airport in conditions contrary to the guarantees of Article 3 of the Convention, without access to shower and other amenities.

On 17 March 2016, having been resettled by UNHCR, the applicant left for Denmark.

On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. On the same date the applicant’s lawyer lodged a brief statement of appeal («краткая апелляционная жалоба»), pending receipt of a reasoned judgment in written form. By 5 July 2016 (the date on which the applicants submitted their written observations to the Court), no such reasoned judgment had been issued.

The applicant was born in 1988. He holds a passport issued by the Palestinian Authority.

Between April 2013 and August 2015 the applicant was in Irkutsk, Russia. It appears that initially he had held a valid entry visa but that he did not take steps to obtain permission to reside in Russia after its expiry.

In August 2015 the applicant travelled from Russia to the Palestinian territories via Egypt. For unknown reasons he took a flight from Cairo back to Moscow on 23 August 2015. Because the applicant did not have a valid visa for Russia, he was denied entry to the country by the border guard service.

From 23 August 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. The applicant sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area.

Three weeks after his arrival at Sheremetyevo Airport, the applicant lodged an application for refugee status. In the course of the ensuing proceedings he mentioned that he had left Palestine because of the ongoing hostilities in the Gaza Strip and the West Bank, as well as a lack of employment and the poor economic situation.

On 1 December 2015 the Moscow Region FMS dismissed the applicant’s refugee status application as ill-founded. The applicant’s lawyer appealed to the Russian FMS, arguing that the applicant did not have any possibility to return to his home in the Gaza Strip, that the Moscow Region FMS had failed to assess his personal situation and the risk he would face if returned to Palestine, and that the Moscow Region FMS, in breach of the Refugees Act (FZ-4528-1 of 19 February 1993), had not issued him with an examination certificate.

On 31 December 2015 the Russian FMS dismissed the appeal for the reason that the applicant had “failed to provide evidence confirming that he runs a higher risk of becoming a victim of the Palestine-Israel conflict than the rest of the population of the Palestinian National Autonomy”. The applicant’s lawyer was informed of that decision on 15 January 2016.

On 1 February 2016 the applicant lodged an appeal against the migration authorities’ decision with the Basmannyy District Court of Moscow.

On 13 February 2016 the Egyptian authorities opened the Rafah crossing point to Gaza. The applicant agreed to take a flight to Egypt and left the transit zone of Sheremetyevo Airport.

On 12 May 2016 the Basmannyy District Court of Moscow upheld the Russian FMS’s decision. The applicant’s lawyer lodged a brief statement of appeal on the same date, pending receipt of a reasoned judgment in written form. By 5 July 2016, no such reasoned judgment had been issued.

The applicant is a Somalian national who was born in 1981.

In 2005 the applicant moved from Somalia to Yemen, where he was granted refugee status. In 2015 he decided to leave Yemen.

The applicant travelled by air to Havana, Cuba, a journey that consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow, and Moscow to Havana. On 13 March 2015 the applicant landed in Moscow for the first time; he then continued his journey to Havana.

On 9 April 2015 the applicant was deported from Cuba to Russia. The Russian border guard service did not allow him to pass through passport control.

From 9 April 2015 onwards, the applicant has been staying in the transit zone of Sheremetyevo Airport. The applicant described the conditions of his stay in the transit zone as follows. He slept on a mattress on the floor in the boarding area of the airport, which was constantly lit, crowded and noisy. He sustained himself on emergency rations provided by the Russian office of UNHCR. There were no showers in the transit area.

On 10 April 2015 the applicant lodged an application for refugee status, arguing that he had fled Somalia in 2005 because he had received threats from members of a terrorist group.

On 1 July 2015 the Moscow Region FMS interviewed the applicant. However, they did not issue him with an examination certificate.

On 1 October 2015 the Moscow Region FMS dismissed the applicant’s refugee status application.

On 17 October 2015 the applicant’s brother was killed in Mogadishu, Somalia.

On 7 December 2015 the Russian FMS dismissed an appeal by the applicant against the decision of 1 October 2015.

On 22 December 2015 the Moscow Region FMS refused to grant the applicant temporary asylum. On 10 February 2016 the Russian FMS upheld that decision.

On 19 May 2016 the Basmannyy District Court of Moscow dismissed an appeal lodged by the applicant against the decisions by the Moscow Region FMS and the Russian FMS to dismiss his application for temporary asylum. It reasoned, in particular, that the applicant had not proved that the terrorists who had threatened him in 2005 represented any danger more than ten years later and that, should such threats persist, he “has not been deprived of an opportunity to avail himself of the protection of his State of nationality [– that is to say] to apply to the law-enforcement agencies of the Republic of Somalia [for protection].” On the same date the applicant’s lawyer appealed. On 20 September 2016 the Moscow City Court dismissed the appeal. On 6 February 2017 it dismissed in the final instance the applicant’s complaint about the refusals to grant him refugee status.

Having received the final rejections of his applications from the Russian authorities, the applicant decided that he did not have any chance of obtaining asylum in Russia. On 9 March 2017 he left for Mogadishu, Somalia.

The applicant, Hasan Yasien is a Syrian national who was born in 1975 in Aleppo.

On 4 July 2014 the applicant arrived in Moscow from Beirut, Lebanon, holding a business visa valid until 25 August 2014.

On 10 September 2014 he applied for temporary asylum to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”), claiming to have fled Syria because of the ongoing civil war there. That application was refused on 8 December 2014.

It appears that the applicant remained in Russia despite that refusal.

On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The Russian border guard service seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry to the country and sent him back to Moscow on 20 August 2015. Upon the applicant’s arrival, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow.

On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry to the country and sent him back to Moscow. The Russian border guard service did not allow him to pass through passport control.

From 9 September 2015 the applicant stayed in the transit zone of Sheremetyevo Airport. He described the conditions of his stay in the transit zone as follows. The applicant slept on a mattress on the floor in the waiting area of the airport, which was constantly lit, crowded and noisy. He received basic food, clothing and sanitary wipes once a week from the Russian office of UNHCR. Given the absence of any refrigerator or kitchen, his rations were extremely limited. Throughout the whole period of his stay in the transit zone the applicant did not have access to a shower.

The applicant applied to the Moscow Region FMS for temporary asylum. On 21 December 2015 the Moscow Region FMS dismissed the request.

On 4 February 2016 the Russian FMS dismissed an appeal by the applicant against its refusal of 21 December 2015 to grant him temporary asylum. It noted, in particular, that there were regular flights from Moscow to Damascus, from where Syrian nationals could travel to other parts of the country, and that “many Syrians wish to leave the country not only because of a fear for their lives but, in large part, because of the worsening economic and humanitarian situation”.

On 7 April 2016 the applicant once again tried to lodge an application for refugee status through the border guard service. He received no response.

On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow about the refusal of the Moscow Region FMS and Russian FMS to grant him temporary asylum and about his allegedly unlawful detention in appalling conditions in the transit zone of Sheremetyevo Airport.

On 11 May 2016 the applicant was resettled by UNHCR and left for Sweden.

On 21 July 2016 the applicant’s lawyer submitted additional documents to the Zamoskvoretskiy District Court of Moscow in support of the applicant’s claims regarding the risks that he would face if returned to Syria. The outcome of the proceedings is unknown.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant is a Russian national and lives in Saratov.

On 1 June 1994 the applicant’s father, Mr Vladimir Dmitrievich Yakovlev, deposited an unspecified amount of money with the Savings Bank of the Russian Federation (“the Savings Bank”) in her name. The deposit was to be kept for at least ten years and was redeemable after the applicant had reached the age of sixteen. The interest rate was fixed at 190 per cent per annum.

Later, the Savings Bank reduced the interest rate.

Considering the Savings Bank’s unilateral decision unlawful, Mr Yakovlev brought a civil claim against it.

On 25 July 2001 the Frunzenskiy District Court of Saratov found that the terms of the deposit did not provide for unilateral changes in the interest rate and held that the Savings Bank should calculate interest at the rate of 190 per cent starting from 1 June 1994 and until the maturity of the deposit.

On 31 August 2001 the Saratov Regional Court upheld that judgment on appeal.

On 13 January 2003 Mr Yakovlev died.

On an unspecified date the Savings Bank lodged an application for supervisory review which was rejected by the Saratov Regional Court on 19 May 2003.

On 30 January 2004 the Savings Bank filed a new application for supervisory review with the Presidium of the Saratov Regional Court. It asserted that Mr Yakovlev’s claim should have been dismissed as premature because the maturity date had not yet occurred.

On 26 April 2004 the Presidium of the Saratov Regional Court quashed the judgment of 25 July 2001, as upheld on 31 August 2001, and dismissed the claim lodged by the late Mr Yakovlev, holding that the interest could only be calculated after the terms of the deposit had been fulfilled. As regards the re-opening of the proceedings after the plaintiff’s death, the Presidium found as follows:

“The fact that Mr V. Yakovlev died does not preclude a new decision from being made in the case because his claim had been lodged on behalf of his underage daughter – Ms Ye. Yakovleva. At present she is represented by her mother, Mrs N. Yakovleva, who participated to the hearing before the Presidium.”

On 2 May 2005 the applicant turned sixteen. On an unspecified date the Savings Bank offered to pay her 28,928 Russian roubles (RUB) (approximately 900 euros (EUR)). There is no information on whether she accepted this offer.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1983 and lived in Nizhny Novgorod prior to the events of the case.

On 23 September 2005 the applicant was arrested on charges of robbery, theft, forgery and extortion.

On 11 April 2008 the Nizhniy Novgorod Regional Court found the applicant guilty as charged and gave him a custodial sentence.

On 21 August 2008 the Presidium of the Regional Court, by way of supervisory-review proceedings, quashed the judgment 11 April 2008 and remitted the case to the trial court for fresh examination. Referring to the gravity of the charges, it also ordered the applicant’s detention to continue for a further three months.

By orders of 17 November 2008 and 16 February and 19 May 2009, the authorised period of the applicant’s detention was extended. These orders cited the gravity of the charges and the possibility of the applicant’s absconding as the main reasons for the continued detention.

On 24 November 2009 the Regional Court found the applicant guilty of a number of grave crimes and sentenced him to a six years and one month’s imprisonment.

Between 24 September 2005 and 14 January 2009 the applicant was detained in remand prison IZ-52/1 of Nizhniy Novgorod. He submitted that the cells had been severely overcrowded and in a poor sanitary condition.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1960 and lives in Šiauliai.

The applicant was married to V.J., with whom he had two boys – T.J., who was born in 1985, and Do.J., who was born in 1986.

In 1993 the applicant divorced his wife, but they remained living together and had one more boy – Ž.J., born in 1997.

On 18 May 2003 V.J. gave birth to twins – a boy, D.J., and a girl, K.J.

On 5 December 2003 the applicant’s former wife and the mother of their five children died. Immediately afterwards, I.N., a cousin of the applicant’s late wife, took the twins to her home to take care of them. As the applicant wrote in his application to the Court, he had agreed that I.N. would take care of the twins because she had experience in raising children – she had two children of her own. He also mentioned having started dating I.N. and having planned to marry her later. In the applicant’s words, I.N. wanted to get married in church and not to disclose that fact to the State authorities so that it would be possible to keep receiving child benefits. The applicant wrote that then, “seeing such prospects for a bright future, [he] had agreed that I.N. would become official guardian of the twins and [he] had helped her to prepare paperwork for that purpose”.

On 27 January 2004 the Šiauliai City Municipality’s Children’s Rights Protection Service (Vaiko teisių apsaugos tarnyba, hereinafter – “the Service”) decided that I.N. could be the temporary guardian of the twins who, in turn, were to reside with her. The applicant took part in the hearing held at the Service’s premises and agreed with the decision. He noted that he could barely take care of his three other children, who were schoolboys, and was thus unable to raise the babies. He stated that if he had to bring the babies back to his home, he would be forced to quit his job and this would ruin him financially. His job also included working at night. If I.N. had not agreed to take the twins, he would have given them to a foster home for infants. The applicant agreed to have his parental rights limited should I.N. be appointed as the twins’ guardian. He also agreed to pay money towards the twins’ upbringing.

I.N. stated that she did not have a job and agreed to raise the twins.

A few days later, on 3 February 2004, the Director of Administration of Šiauliai City Municipality decided that I.N. should be appointed as the temporary guardian of the twins.

Later on, the Service applied to the Šiauliai City District Court, asking it to appoint I.N. as the twins’ permanent guardian (nuolatinė globėja) and manager of their property.

The applicant took part in the court hearing concerning that application and explained that even though he loved all of his children and had been raising the three older ones to the best of his abilities, he was not able to take care of the twins because of a lack of money and knowledge of how to take care of very young children. If he had to quit his job in order to bring up the twins, there would be no money to live on. Whilst noting that he was not giving the twins up, the applicant agreed that I.N. could be appointed as their guardian. He promised to help the twins financially to the best of his abilities.

On 29 April 2004 the Šiauliai City District Court granted the Service’s application and granted permanent guardianship of the twins in favour of I.N., who was also to be manager of their property. The court also made a custody order concerning the twins in I.N.’s favour. The applicant was ordered to pay 50 Lithuanian litai (LTL) (approximately 15 euros (EUR)) per month in financial support for each child, until the children came of age. The court noted that the applicant could not take care of the twins because of his lack of knowledge of how to take care of infants. Yet it observed that the applicant worked and took care of his three older children, did not exercise his parental rights improperly, and had no negative influence on the older children. The applicant was also ready to support the twins financially, visit them and communicate with them when they became older. The twins were to be removed from the applicant’s care, although he would retain his parental rights, in accordance with Article 3.179 of the Civil Code (see paragraph 70 below).

The decision could be appealed against to a higher court. The applicant notes that he did not appeal against the decision.

According to doctors who examined the twins, during the first years of their lives their development of motor skills was slower than normal, and by the age of three they had specific mixed development disorder (specialus mišrus raidos sutrikimas), and their language development was delayed. They needed speech therapy, physiotherapy and an undemanding regimen (tausojantis režimas). On 7 November 2006, at I.N.’s request and on the basis of reports by psychologists and doctors, the twins received learning support at the Šiauliai Special Upbringing Centre. At the centre the twins received help from a speech therapist and special educational needs teachers (specialieji pedagogai), and benefited from such procedures as massages, medical exercise therapy and herbal baths. Upon the request of I.N., who stated that she was ill herself and had to take care of her elderly mother, from 7 November 2006 onwards the twins became weekly boarders (from Mondays to Fridays) at the Special Upbringing Centre. As the doctors later noted during court proceedings, they made no recommendation either in favour of or against the twins boarding there during the week. As I.N. later specified during court hearings, she had not felt it appropriate for the twins to go to a regular kindergarten, because there were twenty-two children in one class (grupė) there, whereas at the Šiauliai Special Upbringing Centre there were only eight children in a class. According to the Government, the children stayed at the Special Upbringing Centre until 31 May 2009. It also appears from the documents before the Court that in the event of illnesses and during holidays the children were taken home (for example, in accordance with a doctor’s recommendation that the children stay at I.N.’s home from 23 December 2008 for four months).

As of 1 September 2009 the twins attended daily pre-school classes at the Šiauliai Special Upbringing Centre. On 7 December 2009 the director of the centre noted that the twins were always brought to and collected from the centre by I.N. on time, they were well-rested, properly dressed, and had all the necessary materials for class with them. The applicant came to visit them at the centre twice. After his visits the children acted normally, although they were more interested in the presents he brought and did not communicate much. In May 2010 the institution noted that the applicant would come and see the twins at the centre two to three times a month, teachers were present at the meetings and the children’ behaviour after the meetings was normal.

In autumn 2008 disputes arose between the applicant and I.N. In September 2008 I.N. complained to the Service that the applicant had withdrawn money from the twins’ bank account, without her knowledge or permission, as the administrator of the twin’s property. A criminal case for fraud was opened against the applicant. On 12 April 2010 the applicant was acquitted of that charge the court, having established that he had acted in good faith and in the interests of the twins.

On 9 December 2008 the applicant applied to the Šiauliai City District Court, asking that the twins be returned to him. He argued that the reasons for his two children being removed from his care had ceased to exist. The applicant lived in a three-room apartment and, above all, the twins were now older and he therefore felt able to raise them. Two of his older children, Do.J. and T.J., were now students. The applicant submitted that it would be in the best interests of all his children to grow up together. He also sought to have the twins summoned and questioned in court.

In response, on 15 December 2008 I.N. lodged an application with the same court, seeking to have the applicant’s parental rights permanently limited (as for the outcome of this case, see paragraph 52 below).

By a ruling of 16 March 2009, at I.N.’s request, the Šiauliai City District Court suspended the examination of the case initiated by the applicant for the twins’ custody until the civil case initiated by I.N. for termination of his parental rights was decided.

The applicant appealed against that ruling, arguing that a delay in the proceedings was harmful to his interests and, even more so, to those of his minor children. He emphasised that in 2004 he had been separated from his children not because of his fault but because of circumstances that were beyond his control – the death of his former wife and the particularly young age of the twins. The applicant also noted that it was he who had addressed the Šiauliai City District Court first; only afterwards had I.N. initiated another set of court proceedings against him. Taking into account that a case concerning termination of his parental rights could reach the appellate courts, such proceedings could last a very long time, in breach of the requirements of Article 6 § 1 of the Convention. The delay in court proceedings could also push the twins away from their biological father and thus was detrimental to their interests.

By a decision of 21 April 2009 the Šiauliai Regional Court granted the applicant’s appeal, on the ground that a delay in the proceedings would be in breach of the twins’ best interests. The court also established that the applicant had been the first to open court proceedings concerning the twins’ future residence.

In July 2009 the Šiauliai City District Court held a hearing in the case initiated by the applicant regarding the twins’ return to him (see paragraph 19 above), at which the applicant, I.N., their lawyers and the Service’s representative were present. The court considered that an expert report was necessary to establish whether the twins were ready to be returned to the applicant’s home. The applicant’s lawyer insisted that, apparently for reasons of impartiality, if experts were to be appointed, those experts should be from Vilnius, and not from Šiauliai. During another court hearing on 31 August 2009 the applicant testified that he had not had problems with I.N. until 2008 when he found out that the twins had attended weekly boarding.

On 7 December 2009 officials from the Service visited I.N.’s home and had a conversation with the twins, without I.N. being present. The two children called I.N. “mummy”, and the applicant “daddy”, and expressed negative feelings towards their father and about being with him in either his or I.N.’s apartments. The child care specialists admitted, however, that the phrases the twins had used did not always correspond to the language used by children of their age. The conversation with the children also clearly showed that there was a dispute between the applicant and I.N. The child care specialists thus recommended, in the interests of the children, that the applicant and I.N. improve their relationship and strive to ensure that the applicant was able to communicate with his children. The Service concluded that the twins were not yet ready to live with the applicant.

According to a further report, the child care specialists had also previously visited the applicant’s apartment in Šiauliai and found that the conditions there were suitable for children.

In reply to a complaint by the applicant, on 4 March 2010 the Ombudsperson for the Protection of Children’s Rights (Vaiko teisių apsaugos kontrolierius, hereinafter – “the Ombudsperson”) issued a report about his case. The Service informed the Ombudsperson that if the applicant had agreed to raise the twins himself at the time the question of guardianship had been examined, he would have been eligible to receive a monthly payment of around LTL 400 (approximately EUR 116) from the State in support. However, at that time the applicant had refused to raise the twins, even though he had stated that he intended to do so “in the future”, without indicating when, and had only applied to the Šiauliai City District Court for a residence order in respect of the twins on 9 December 2008.

The Ombudsperson noted that the Service had an obligation to establish which help, in particular, the applicant’s family would have benefited from, including all the social services and other assistance available. However, in the Ombudsperson’s view, that had not been done, and the authorities had not taken specific steps to enable the twins to be returned to their biological family.

That being so, the Ombudsperson also observed that since the 29 April 2004 court decision to establish permanent guardianship for the twins, the applicant had never contacted the Service regarding his communication with the twins until November 2008. Neither had he applied to have those two children returned to him. Similarly, until November 2008 the applicant had never claimed that I.N. was not taking care of the twins properly. Child care specialists had visited I.N.’s home during the intervening years and there was no evidence that the children had not been taken care of properly.

Whilst noting the conflict between the applicant and I.N. over when and how the applicant could see the twins, the Ombudsperson urged the two to act prudently so that their dispute did not affect the children. The Service was ordered to take steps towards the improvement of the relationship between the applicant and the twins, provided that this was in the children’s best interests. It was necessary to find a proper balance between the interests of the children, namely, their health and development, and their communication with the applicant. That being so, the Service’s finding of 7 December 2009 that the twins were not yet ready to return to their father’s home was not unreasonable. It was pertinent that a sudden termination of the guardianship could cause distress, especially when the twins’ guardianship had been established at a very early age. I.N. had become their guardian when they were infants and, according to the information collected, they were very attached to her. Moreover, they had negative feelings towards their father, which, to a certain extent had been caused by the dispute between I.N. and the applicant. A transitional period was therefore necessary.

As the dispute between the applicant and I.N. escalated, on 24 March 2010 the applicant lodged a civil claim with the Šiauliai City District Court seeking a formal decision setting up a contact schedule (dėl bendravimo tvarkos nustatymo) for him and the twins.

On 27 May 2010 the Šiauliai City District Court suspended the proceedings for a contact schedule until the civil case concerning the return of the children to reside with the applicant, wherein a psychological assessment of the children had been ordered by the court, had been concluded (see paragraphs 19–24 above).

The applicant also asked the court to issue interim protective measures (laikinosios apsaugos priemonės), so that he could regularly communicate with the twins. The applicant asked to spend twenty days in a row with the twins during the summer, see them twice a week for no less than four hours each time every week, and for the twins to stay at his home overnight once a week. The applicant also sought to have his two children stay with him overnight during public holidays, every second year. I.N. partly agreed to the request, but asked that the children not be left with the applicant overnight, because they had health problems and were not used to spending the night in another home. When questioned, the twins stated that they wanted to have contact with the applicant, but did not want to stay at his place overnight or to go on holiday with him for more than one day. The Service noted that the twins had not lived with the applicant for a long time and considered that, in order to restore their relationship, an adaptation period was necessary. The Service left the details of the contact order to the court’s discretion.

On the request of the Šiauliai City District Court (see paragraph 24 above), experts at the Vilnius city psychiatric institution (Vaikų ir paauglių teismo psichiatrijos skyrius) examined the twins. Questions were put to the experts by the court, the applicant and I.N.

In their report of 10 September 2010, the psychiatrists concluded that D.J. had a strong and positive emotional relationship with I.N., with whom he felt safe. The boy also had an emotionally positive relationship with his father, who was an important person for him, but their contact was insufficient. Such a lack of contact could be one of the reasons why the boy wanted to live with his father. On this last point the psychiatrists also noted that while the boy was able to freely express his wish to live with his father, he did so without being able to think critically and to foresee the consequences of his choice. The psychiatrists also noted:

“it was not possible to state or to foresee how the change of living place would affect D.J.’s further development. However, taking into account the wish which D.J. had expressed to live with his father, it was unlikely that the change would affect the child negatively, or even cause him harm. [Nonetheless], taking into consideration that from his infancy to [the present] date I.N. had been raising him, it was not recommended to disrupt the relationship between the boy and I.N. completely”.

The experts considered that it was for the court to decide how often the child should have contact with his father so that their emotional relationship could resume.

As regards the girl, K.J., the psychiatrists concluded that she had an emotionally strong relationship with her guardian, with whom she felt safe. Her relationship with her father was ambivalent, but it had not broken down entirely. Both the applicant and I.N. were important people in K.J.’s life. All things considered, it was not possible to state or to foresee how a change of living place would affect K.J. It was thus for the court to decide how often the child should have contact with her father so that their emotional relationship could resume. The experts also recommended that the applicant and I.N. should share the duties of taking care of the children, and I.N. should actively cooperate by helping the twins to communicate with their father.

On 4 July 2011 the Šiauliai City District Court held that, in order to gradually restore the twins’ emotional connection with their father, contact should be as follows: the applicant could collect the children from I.N.’s home every Wednesday and be with them for two-and-a-half hours; every Saturday he could spend nine-and-a-half hours with them. The court considered that it would only be appropriate for the twins to be with the applicant during school and public holidays once their bonds with him had become stronger. In the court’s view, such a contact order corresponded to the best interests of the children. The court also noted that, should the circumstances change, the applicant or I.N. could ask the court to amend the contact order.

In August 2011 and upon I.N.’s request, the court amended the contact order to the effect that, should the applicant be unable to see the twins on Wednesday or Saturday due to their sickness or another justifiable reason, he could meet with them on Thursday or Sunday.

The applicant and his lawyer took part in both court hearings.

On 12 September 2011 the Šiauliai City District Court delivered its decision as to the applicant’s application for a residence order. The applicant, I.N., their lawyers, and the Service took part in the hearings before the court. The twins also took part in the hearings, giving evidence without the applicant, I.N. or their lawyers being present.

The court noted that on 24 April 2004 the twins had been removed from the applicant’s care by a court decision for a legitimate reason – namely, because he could not take care of them (Article 3.179 of the Civil Code, see paragraph 70 below). It was important to observe that their separation was in no way linked to fault on the part of the applicant. Moreover, the measure was temporary in that it could be lifted if the circumstances justifying the separation from the twins no longer existed. Accordingly, it was necessary to examine whether those circumstances still existed, and, if not, whether the children’s being returned to live with the applicant would be in their best interests, which were the overriding consideration. The court noted that the best interests of the children, as the primary consideration, were indicated in Article 3 § 1 of the United Nations Convention on the Rights of the Child and in Article 3.3 of the Civil Code.

The Šiauliai City District Court agreed with the applicant’s argument that the grounds for removal of the twins from his care in 2004 had ceased to exist, because the twins were now eight years old and had been taken from the applicant because he had not possessed the appropriate knowledge of how to take care of them when they were infants. That being so, the court nevertheless held that the twins had a strong emotional link with I.N. and their emotional link with the applicant was not sufficient, which situation had clearly been influenced by the fact that the twins had lived separately from the applicant since June 2004. The court also observed that because of the dispute over money between the applicant and I.N. which had started in summer 2008, he had had limited opportunities to take part in educating his children and to communicate with them. It was only from July 2011, when the court had issued an interim order providing for the applicant’s contact with the twins in accordance with a fixed schedule, that the applicant had started to have regular contact with the twins. Even so, the applicant had not taken all possible steps to participate in the upbringing of the twins on an equal basis with I.N. Namely, even though the twins had been removed from his care in June 2004, the applicant had never asked for the twins to be returned to live with him until the disagreement with I.N. arose in summer 2008, even though his two other sons were no longer minors as of December 2003 and December 2004 respectively. The court also noted the applicant’s acknowledgement that until 2008 he had not encountered any obstacles to communicating with the twins. Yet, he had communicated with them only “episodically”, with the result that the emotional connection between the twins and the applicant and his other children was less strong than that existing between the twins and I.N. and her children. As the twins had testified in court, they did not want to live with the father. They did not even want to stay at his home during the weekends, this being confirmed by the applicant’s eldest child, Ž.J.

The Šiauliai City District Court also dismissed the applicant’s argument that I.N. had not been taking care of the twins properly because they had been weekly boarders at the Šiauliai Special Upbringing Centre for three years. On the contrary, the court observed that according to the twins’ doctor, the care centre was of great benefit to the family, because the twins received specialist help there. The court found that the applicant ought to have been more active in making inquiries about the twins’ development and health. Lastly, the court noted the applicant’s statement that he had been aware as early as 2006 that the twins were weekly boarders at the care centre.

The first-instance court concluded that because of the twins’ negative feelings towards the applicant, he would not be able to perform his fatherly duties properly. The court also took the psychiatrists’ report into account and held that the twins’ connection with the applicant was not strong enough, whereas they had a strong emotional connection with I.N. It followed that the grounds for removing the twins, who had expressed their wish to live with I.N. in court, from the applicant’s care persisted. Being returned to live with their father was not in the best interests of the children. Nonetheless, the applicant maintained his parental rights, including the right to have contact with his children, who would be well able to communicate with him whilst staying in a familiar environment, with I.N., where they felt safe. Should the circumstances change, that is to say, once the emotional relationship between the twins and the applicant became stronger, the applicant could apply to the courts again and seek the revocation of I.N.’s guardianship of the twins. The court thus dismissed the applicant’s request that the twins be returned to him.

The applicant appealed, submitting that the first-instance court had erred in establishing that the circumstances on the basis of which the twins had been removed from his care in 2004 were no longer valid, but then going on to examine whether there were other reasons why he would not be able to take care of his children properly. He maintained that he had visited his children and communicated with them regularly from the date of their separation. However, as of 2008 I.N. had started turning the children against him. The court had established that there was a lack of a strong emotional relationship between the applicant and the twins, but had not taken into consideration that I.N. had deliberately taken steps to ensure that the children would be hostile to their father.

The applicant also argued that the lower court had erred in establishing that I.N. had been taking care of the twins properly. He submitted that I.N. had without good reason sent the twins to be boarding pupils at the Šiauliai Special Upbringing Centre. Even though during the hearings at first instance the twins’ family doctor and another doctor had confirmed that the twins’ attendance at the centre had been recommended, those specialists had not recommended that the twins board at the centre. The applicant also submitted that until mid-2011 I.N. had not had a job and it was thus not unreasonable to conclude that her sole means of subsistence was child benefit payments, although domestic law required such monies to be used exclusively in the interests of children under guardianship.

The applicant also observed that the first-instance court had completely disregarded the Ombudsperson’s report (see paragraphs 26-29 above). Likewise, the lower court had disregarded the psychiatrists’ reports about the twins (see paragraph 33 above), which had clearly stated that the boy wanted to live with the applicant and that there was no reason to believe that the boy’s well-being would suffer should he be returned to his biological father.

Neither could the applicant agree with the lower court’s conclusion that he had not taken as much of a role in taking care of the twins as I.N. On this point he noted that his participation in the twins’ life had only been restricted as of 2008, when I.N. had taken steps to limit his communication with them. It was also noteworthy that in 2008 the applicant had applied to the courts for an order establishing a schedule for him to have contact with the twins. Lastly, the applicant maintained that the Service had from the very beginning and up to the present date, and by unjustified means, sought to further I.N.’s interests and not those of the children.

By a ruling of 2 February 2012 the Šiauliai Regional Court upheld the lower court’s decision, noting that as an appellate court it was free to interpret the evidence as it saw fit. The applicant and I.N. took part in the appellate court’s hearing. The court noted that the case had a public interest element, because it concerned children’s rights. Accordingly, it examined supplementary evidence of its own motion and took notice of an earlier court decision to dismiss the applicant’s claim that I.N. had been embezzling the twins’ money (see paragraph 18 above). It therefore considered that the applicant’s accusations of selfishness and property mismanagement against I.N. were unfounded.

The court considered that both the applicant and I.N. had not made enough effort to ensure that “the twins would return to the family”. The dispute between the two had negatively influenced the twins’ feelings towards their father, and had had a long term negative impact on the twins’ emotional and psychological development. The court noted the experts’ conclusion that so far the children had developed a firm, safe and positive emotional connection with I.N. Even so, the experts had also acknowledged that the twins’ connection with the applicant still existed and it was emotionally positive. Accordingly, it was crucial to develop that connection, and both the applicant and I.N. had to contribute to that development. The assistance of the Service would also be particularly important.

The court also emphasised that it would necessarily take time for the children to be ready to be returned to their father: the latter and I.N. had to make an effort towards that goal. The children were to get used to the fact that they could see their father when they wanted, and not when I.N. sent them to visit him. On this point the court noted that children of the twins’ age already understood and were affected by the fact that their guardian, I.N., was not enthusiastic about them being in contact with the applicant. Equally, as regards the applicant’s attitude towards the situation, the court considered that the applicant blamed everybody else without seeing any fault on his own part. The panel of judges noted that the applicant was a very uncompromising individual who only accepted the validity of his own viewpoint and was not willing to have regard to the opinions of others. The panel concluded that so long as the applicant was not taking any steps to work on his issues, such as by seeking psychological assistance, the children could not be returned to an emotionally cold and harsh environment. A sudden removal of the children from the environment provided by I.N., which was safe and comforting for the children, would absolutely be a disproportionate and traumatic step which the court could not allow.

The appellate court also noted that from birth the twins had had serious health problems, which had never gone away. In 2008 D.J. had been diagnosed with a medium level of disability; in 2010 the disability’s assessment had been changed to a mild level. K.J had a light level of disability, established in 2008. Both children were hyperactive, had numerous health problems and thus needed a greater level of attention. Accordingly, the applicant’s argument that the twins could stay at home until he returned from work showed that it would not be possible for him, and he was not ready, to take concrete steps to take care of the two children, who came home from school at noon. The applicant’s other children were busy to the extent that they also could not stay with the twins all the time.

Lastly, the appellate court dismissed the applicant’s argument that the children should be returned to him on the basis of Article 3.181 of the Civil Code (see paragraph 70 below), which, in the applicant’s view, provided that a child should be returned to a parent once the grounds which necessitated their separation no longer existed. The court held that the best interests of the child were the priority. In the applicant’s case the appellate court had not established the existence of any new circumstances. Nevertheless, this did not automatically mean that the twins had to be returned to the applicant’s home immediately. A transitional period was necessary, which, in the court’s view, might be six months. In arriving at that timeframe it took into particular account the fact that this period would include the summer holidays, when the twins could leave their familiar environment, I.N.’s apartment, and re-establish a close relationship with their father. If the twins could have contact with their father for a longer period than the current sporadic, twice-a-week arrangement, they would be able to see that their father was there for them and that they could resolve everyday problems with their father’s assistance.

The applicant lodged an appeal on points of law, but on 13 April 2012 the Supreme Court refused to examine it on the basis that it raised questions of fact only.

On 22 February 2012 the applicant asked the Šiauliai City District Court to resume the suspended civil proceedings regarding his contact rights with the twins, noting that the other civil case concerning his application for the twins’ return had already ended (see paragraph 31 above). Six days later the court resumed the examination of the civil case concerning his application for a contact order, and with the aim that the case be examined expeditiously, set an oral hearing in that case for 26 March 2012. In May of that year the court also decided to join the two civil cases pending in relation to the twins (the civil case concerning the application for a parental contact order initiated by the applicant on 24 March 2010 and the civil case concerning the application for termination of the applicant’s parental rights initiated by I.N. on 15 December 2008; see, respectively, paragraphs 30 and 20 above).

During the hearing of the joined civil case on 27 June 2012 a psychologist was present, the children were questioned (the applicant and I.N. were asked to leave the courtroom, their lawyers were present) and the psychologist made the following comments:

“... From the statements made by K.J. we understand that the relationship between I.N. and her father is difficult and that the child sees and understands this. The girl mentioned a wish to meet [go out] with both of them if their relationship was better. I did not note entirely negative feelings towards her father, however there is no close relationship, and the relationship between the girl and I.N. is very strong. I understood from both of the children that their father promises things which never come true [and] this fell short of their expectations. D.J. states that he is willing to have contact with his father but only when he [the boy] so wishes, hence the child should not be forced to contact his father. ... The girl has no emotional relationship with her father, because she has seen him disputing [things] and [experienced him making] promises which never came true. The boy wishes to have contact with his father but at the present date the latter cannot arrange that. <...>”

On 13 July 2012 the Šiauliai City District Court rejected I.N.’s civil claim for termination of the applicant’s parental rights (see paragraph 20 above) and partly granted the applicant’s civil claim for a contact order. The court noted that there was no basis for I.N.’s claims that the applicant had harmed the twins or had not taken care of them at all until autumn 2008. On the contrary, the evidence showed that he had been seeking contact with the children. The boy wanted to have contact with the applicant, and the girl would agree to have contact with him if he ceased his dispute with I.N. However, the twins’ contact with the applicant could not be forced. Whilst observing that the child’s best interests were paramount, the first-instance court also relied on the Court’s case-law, noting that in matters of child custody, for example, the reason for considering the “child’s best interests” may be twofold: firstly, to guarantee that the child develops in a sound environment and that a parent cannot take measures that would harm its health and development; secondly, to maintain its ties with its family, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots (the court referred to Maumousseau and Washington v. France, no. 39388/05, § 67, 6 December 2007). Lastly, the court rejected all the accusations by I.N. that the applicant had been antagonistic, because a criminal case initiated by her had been dismissed by the authorities (see paragraphs 18 and 44 above). The applicant thus had a right to have contact with the twins and an inherent duty to take part in educating them. He was also able to offer them appropriate living conditions.

The Šiauliai City District Court also noted that both parties to the dispute – the applicant and I.N. – had put their own ambitions and their subjective views as to what would be best for the children first. For that reason, the applicant had sometimes tried to have contact with his daughter when she did not want to spend time with him, although his son was prepared to meet him. As for I.N., she had not attempted to restore the twins’ relations with their father and had showed no concern for the fact that the applicant’s and his daughter’s relationship was getting weaker and was close to breaking down. Accordingly, the parties’ failure to take care of the children’s best interests required that those interests be protected by the courts. Moreover, considering that the biggest issue was the communication between the applicant and his daughter, the court saw it appropriate to set, on its own initiative, a further schedule for their communication during the transitional period, so that the girl’s contact with the applicant be re-established. In particular, a psychologist or child care specialist was to assist the applicant and his daughter, during contact sessions which would take place in a neutral setting. Lastly, the court reiterated that the principle of the rights of the child having priority was relevant not only when setting a schedule for the contact between the applicant and the twins, but also when executing the court decision establishing that schedule. The applicant thus should not make use of his right to see the children, including taking them to his apartment, if this would breach the twins’ rights, even though his right to see them had been established in the court’s decision.

The order establishing a contact schedule between the applicant and his two children essentially specified that, until a psychologist determined the readiness of K.J. to have contact with her father without the presence of a psychologist or a social worker, the applicant should have contact with her once a week in the presence of either a psychologist or a social worker and at a place and time agreed upon in advance. In addition to that, if the twins so agreed, the applicant could see them two or three times a week, for up to four hours, during the working week. He could also have them over every second week from Friday evening to Sunday evening, and also during some of the State holidays and spend with them two weeks during his vacations.

I.N. appealed against the decision, seeking to have the applicant’s application for a contact order rejected and her application to have his parental rights terminated granted. The applicant submitted a response to the appeal, submitting that the decision of the first-instance court had been reasoned and lawful and thus that there were no legal grounds for quashing or changing it. He also claimed that I.N. was influencing the children’s testimony.

On 20 November 2012 the Šiauliai Regional Court fully upheld the lower court’s decision to reject I.N.’s application to have the applicant’s parental rights terminated. In any event, the applicant’s parental rights could only be terminated if he failed to perform his fatherly duties, and there were no indications of this in his case. That being so, the appellate court also noted that at the time of the first-instance proceedings the twins had expressed a categorical and consistent wish not to stay at the applicant’s apartment overnight. In addition, according to the most recent reports by the doctors, the twins had become more nervous and agitated, and their emotional and psychological state and behaviour had become worse. It was therefore considered better for them to reside at I.N.’s home. The psychologist had testified that the boy wanted to see his father, but on a schedule of his choosing. The girl avoided meeting with her father at all.

As concerns the issue of the parental contact order, the appellate court stated as follows:

“... The panel of judges notes that it is impossible to raise a child without having contact with him/her. In Article 24 of the Law on the Fundamentals of Protection of Children Rights it is also established that if a child’s mother or father does not live with him/her, [the child] must have the opportunity to spend time with [his or her] mother or father, save for the exceptions established by law, [in the event that] such contact could prove to be of detriment to the child. Minimum contact may be established only if permanent maximum contact would be harmful to the interests of the child, if frequently spending time with the [non-resident] parent would traumatise the child psychologically, if the contact and parenting (auklėjimas) [offered] by a parent does not satisfy the interests, wishes and views of the child at all, [or] if [there would be] a negative impact on the child’s maturity and outlook [on life].

The evidence in the [instant] case allows the panel of judges to hold that at present there are grounds for changing the maximum parental contact order established by the [lower] court to a minimum [contact order]. The court has had regard to the current categorical and consistent position of the children towards the opportunity to stay overnight with their father as envisaged in the [lower court’s] parental contact order. The medical certificates included in the case file allow the court to state that the children’s state of health, anxiety, and irritability strengthened, their emotional state and behaviour worsened, hence treatment at home is recommended for them. The medical documents recording the existence [of] weakness of the central nervous system, attention-deficit disorder, [delayed] language development, learning [difficulties], etc. were neither refuted during the examination of the case before the court of the first instance, nor during the examination on appeal. While commenting on the children’s feelings towards their father the psychologist has noted that there is not currently a close relationship between the father and the children, the son [D.J.] states that he only wants to have contact with his father when he [D.J.] so wishes, the daughter [K.J.] is avoiding contact with her father. The twins [D.J.] and [K.J.] were examined in terms of their psychological state, heightened fear of separation from their guardian, and feelings of insecurity. While stating that the major problem is the daughter’s [K.J.’s] communication with her father, the court of first instance correctly emphasised the need [for it] to establish additional conditions for contact between the girl and her father, hence it justly noted that the father’s contact with his daughter was essential to restore a normal relationship with his daughter. A transitional period had to be established given that [it would take] a reasonable period of time for the child to become accustomed to [spending time] her father.

Accordingly, the [lower] court’s conclusion in the present case that it is not currently possible for the father to have maximum contact with his minor daughter [K.J.] is correct, because it is indisputably established in the case that any ties, including emotional ones, between father and daughter have almost broken down. The panel of judges also considers that contact with the [applicant’s] son [D.J.] contrary to his wishes (involuntarily) would not satisfy the interests of the child. In view of the aim of reinstating the lost connection, forced (involuntary) contact [on the part of] the children with their father would be meaningless because forced contact [sessions] may even result in intense hostility towards their father. Hence, on the basis of the arguments presented the existing order should be changed by removing the possibility for the children to stay at their father’s home overnight. Being active in such category of cases the court draws attention to the existing contact order [which provides for] contact sessions during the working week [for] up to four hours. The panel of judges considers that such frequent contact may unbalance the children’s rest periods and in the present case a transitional period is required for rebuilding of the relationship. Hence the panel of judges decides that voluntary contact between the children and [the applicant] on weekends and on holidays would contribute to a proper balancing of the father’s and the children’s interests. Thus the panel decides that the time for collecting and returning the children on weekends and on holidays, with the exception of the father’s and daughter’s contact sessions in the presence of the appointed specialist once a week, should be changed. The court considers that the children may be taken by their father on Saturdays from 12 p.m. until 7 p.m. because these particular hours are optimal - the children’s rest periods during the week and on Sundays will not be disrupted. Accordingly, the [relevant] part of the [lower court’s] decision on the contact order should be changed. Moreover, the panel considers that in view of the transitional period it has emphasised [will be necessary] for the building of relations with their father, the issue of the children spending their holidays with their father has been decided far too early, hence this part of the [lower court’s] decision is to be quashed. The appeal court notes that the [legal] relations [established by] a contact order concerning a child and [by] raising a child are of a continuing nature, hence when the factual circumstances change the father of the children [the applicant] or the guardian [I.N.] have the right to apply to the court seeking a change to the existing order.

there are ongoing disputes between the father and the guardian of his children. The panel of judges emphasises that the parties to the case [have been putting] their own ambitions above those of the children and thus [have] failed to show due loyalty, respect, and tolerance towards each other. Accordingly, the [applicant’s] contact with the children is marked by unnecessary conflict, the children experience and feel it, [the ongoing disputes] make them feel insecure, cause severe damage and have had an impact on [D.J.’s] and [K.J.’s] health and impeded the rebuilding of their relationship with their biological father.

In the panel’s view restriction of contact between the father and the children would undoubtedly infringe both the non-resident (skyrium gyvenantis) parent’s right to take part in educating the children and the children’s best interests. [It] would impede the rebuilding, steadying and maintenance of the relationship between father and son, and especially [between father and] daughter. It should be explained to the parties that all issues relating to the raising of the children, as well as issues relating to their needs and interests not included in the order ... established by the procedural decision of the court, should be agreed upon between the parties with due regard to the principles of cooperation and safeguarding the children’s rights and legitimate interests as a priority.”

The amended contact order thus confirmed the transitional period for the applicant’s and his daughter’s communication in the presence of a psychologist and a social worker. Upon a determination by a psychologist of K.J.’s readiness to have contact with her father, the applicant also could see the twins (or one of them) on Saturdays from 12 p.m. until 7 p.m. if the children voluntarily so agreed and did not object. He could also see them on Father’s Day and on his birthday, from 10 a.m. until 7 p.m. Lastly, the applicant could take them from their permanent place of residence and have contact from 10 a.m. until 7 p.m. on 24 December, from 10 a.m. until 7 p.m. on 26 December and from 10 a.m. until 7 p.m. on the first day of Easter in even calendar years; and from 10 a.m. until 7 p.m. on 31 December and from 10 a.m. until 7 p.m. on the second day of Easter in odd calendar years.

The decision of the Šiauliai Regional Court became effective after neither of the parties to the proceedings lodged a further appeal.

According to the documents in the Court’s possession, between December 2008 and 25 March 2013 specialists from the Service had frequent meetings and consultations with the applicant and I.N., and individual conversations with the twins (without the presence of their father and/or I.N.). The child care specialists urged the applicant and I.N. to get in touch with the psychologists involved in the case in order to arrange sessions individually and together with the twins concerning their communication problems.

In particular, on 27 February 2012 the applicant contacted the Service asking for assistance in arranging contact sessions with his daughter K.J., claiming that she had been turned against him by I.N. and hence did not want to have contact with him.

On 13 March 2012 child care specialists had a conversation with K.J. at the Service’s premises. I.N. was not present during the conversation. The specialists sought to ascertain the girl’s opinion concerning her contact with the applicant. The girl expressed negative feelings towards contact with her father and towards staying at his home, his visits to I.N.’s home and going out with her father to other places (such as the cinema, a café, or shopping centres). The girl stated that at that time she was not willing to have contact with her father under any circumstances. She also stressed that nobody was influencing her and that she was expressing her own opinion. The specialists concluded that given the need to safeguard the child’s best interests as a priority and the recommendations of the Šiauliai Regional Court (in the decision of 2 February 2012, paragraphs 45-49 above) it was advisable that the applicant and I.N. did not resolve any disputes that might arise in the presence of the children. The specialists also advised that the applicant and I.N. improve their relationship and contact the psychologists to set up consultations and obtain recommendations.

Immediately after the Šiauliai Regional Court decision of 20 November 2012 (see paragraphs 56–59 above), the applicant contacted the Service asking for assistance in arranging contact sessions with his daughter K.J., which were to take place in the presence of a child care specialist and a psychologist. The authority responded the following day, and a session took place on 6 December 2012. The applicant and I.N. were both present. It was decided that individual sessions with the psychologist would be provided for K.J. It was also agreed that the applicant and the guardian would be invited to discussions giving a general summary of K.J.’s sessions with the psychologist. A specialist from the Service would also be invited to the discussions.

Five sessions with the psychologist were provided from 6 December 2012 until 14 February 2013. During the last session, earlier sessions were discussed and conclusions concerning K.J.’s readiness to have contact with her father were made. The applicant, I.N. and a child care specialist were present at the consultation. The psychologist emphasised that K.J. was not yet ready for contact with her father and refused to have that contact. The psychologist also drew attention to the fact that during individual sessions K.J. had become tired quickly, her anxiety and motor activity had increased, and she had sought to finish every session earlier. I.N. confirmed that K.J. was anxious and quickly became tired. The applicant considered that “in order to spare [his] daughter’s emotional and psychological state individual sessions should be terminated”.

On 25 March 2013 specialists from the Service visited the twins. The specialists concluded that the children enjoyed suitable living conditions that were conducive to their development, and noted that they were very affectionate towards I.N. They observed that K.J. enjoyed spending time with the guardian’s daughter, whom she called “sister”, but refused to have contact with her father. K.J. did not have contact with her older biological brothers.

The child care specialists noted that D.J. spoke of I.N. only positively. He also had contact with his father during the times set in the court order – they would go to the shopping mall, cinema, and his father’s apartment. He would also spend time with his older biological brother, Ž.J. D.J. was willing to continue having contact with his father.

In their observations on the admissibility and merits sent to the Court on 11 April 2013 the Government noted that the Service next planned to visit the twins later that month.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in 1941 and lives in Belgrade.

On 27 June 2001 the Obrenovac Municipal Court ordered a socially-owned company, Holding - Prva Iskra AD Barič (hereinafter “the debtor”), to pay the applicant specified amounts on account of compensation for expropriated real estate plus the costs of the civil proceedings.

On 18 March 2003, upon the applicant’s request to that effect, the Obrenovac Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs.

On 23 April 2003 the Privatisation Agency ordered the restructuring of the applicant’s debtor. As a consequence, the ongoing enforcement proceedings against the debtor would appear to have been stayed.

On 29 February 2016 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor. The applicant duly reported her claims based on the above-mentioned judgment to the insolvency administration.

The insolvency proceedings are still ongoing and the said court judgment remains unenforced to the present day.

According to publically available information the debtor is still, predominantly comprised of socially-owned capital (see http://pretraga2.apr.gov.rs/ObjedinjenePretrage/Search/Search, accessed on 7 February 2017).

On 7 October 2011 the applicant lodged an appeal with the Constitutional Court. In terms of redress, relying on the Constitutional Court Act 2007, the applicant sought, inter alia, compensation for the pecuniary and non-pecuniary damage suffered due to the impugned non-enforcement.

On 15 May 2012 the applicant noted the adoption of the amendments to the Constitutional Court Act, and specified her compensation claims accordingly. Specifically, on account of the pecuniary damage, the applicant requested the respective amounts awarded to her by the final judgment in question, whilst as regards the nonpecuniary damage sustained she claimed 1,000,000 Serbian dinars (approximately 9,500 euros (EUR)).

On 21 May 2014 the Constitutional Court found, in the operative part of its ruling (u izreci), that the applicant had indeed suffered a violation of her right to a fair trial within a reasonable time, as well as a violation of her property rights and awarded her EUR 1,000 in respect of the non-pecuniary damage in question. However, it rejected the compensation claim regarding the pecuniary damages sought by the applicant. The Constitutional Court, lastly, ordered the speeding up of the impugned enforcement proceedings.

In its reasoning, the Constitutional Court stated in respect of the compensation issue that the applicant’s pecuniary damage claim had been lodged out of time. In so doing, it merely referred to Article 85 § 3 of the Constitutional Court Act, as amended in 2011, requiring that such claims be brought simultaneously with the lodging of a constitutional appeal.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing.

The applicants disagreed with their conviction and argued that the police had incited them to commit drug-related offences.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in 1961 and is currently serving a sentence of imprisonment in a prison in Baku.

The applicant was a founder of the private Borçalı Bank and of the Borçalı Association. He was also the chairman of the bank’s supervisory board.

On 19 April 2004 criminal proceedings were instituted under Article 213 of the Criminal Code (tax evasion) by the Ministry of Taxes in connection with the activities of the Borçalı Association.

The applicant responded to the investigator’s calls to testify as a witness within the framework of the above-mentioned criminal proceedings and participated in various investigative steps.

In particular, on 16 July 2004 the applicant was questioned by the investigator and on 20 July 2004 a confrontation was carried out between the applicant and another witness.

On 21 and 27 July 2004 the applicant was again requested to attend to assist with the investigation; however he failed to comply with the request.

On 18 and 26 August 2004 the applicant voluntarily appeared before the investigating authorities and two confrontations were conducted by the investigator between the applicant and two other persons.

In the beginning of September 2004, the investigator tried to contact the applicant, but he could not determine his whereabouts.

On 14 September 2004 the investigator ordered the applicant’s compulsory participation in the investigation.

On 28 September 2004 the applicant appeared before the investigating authority. On the same day the investigator in charge of the case informed the applicant that he was charged under Articles 178 (fraud), 179 (embezzlement) and 313 (forgery by an official) of the Criminal Code. The charges against the applicant were based on the results of a financial audit carried out in respect of the Borçalı Association, and on the statements of various persons with whom the applicant had business relationships within the framework of his activities at the Borçalı Bank and the Borçalı Association.

Again on the same day, the prosecutor requested the judge to apply the preventive measure of remand in custody (həbs qətimkan tədbiri) in respect of the applicant. The prosecutor gave as the reasons for requesting that measure the seriousness of the applicant’s alleged criminal acts and the possibility of his absconding from and obstructing the investigation.

At the hearing before the court, the applicant and his lawyer submitted that the applicant had never absconded from or obstructed the investigation. They also submitted that the applicant’s failure to comply with some of the requests to assist with the investigation had been due to his state of health, because he had been sick at the time.

On 28 September 2004 the judge, relying on the official charges brought against the applicant and the prosecutor’s request for the application of the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The judge reasoned the necessity for this measure as follows:

“Taking into account that Ismayilov Novruz Binnat oglu has committed a serious crime, the possibility of his absconding from the investigation and illegally influencing persons participating in the criminal proceedings, obstructing the normal functioning of the investigation by hiding or falsification of the items necessary for the prosecution, and that there are sufficient grounds [that he might] fail to comply with calls to attend the investigation without any good reason, or flee from criminal responsibility by other means, ... the preventive measure of remand in custody should be applied in respect of Ismayilov Novruz Binnat oglu.”

The applicant appealed against the Khatai District Court’s decision of 28 September 2004, complaining of a lack of evidence that he had committed a criminal offence and lack of justification for the application of the preventive measure of remand in custody. He noted, in particular, that he had always collaborated with the investigating authority before his arrest and that the court had not taken into consideration his family status, state of health or other personal circumstances. The applicant also noted that it would be impossible for him to hide or falsify any document relating to the case, because all the relevant documents had been taken from his office by the investigating authority.

On 5 October 2004 the Court of Appeal dismissed the appeal, finding that the detention order was justified. The relevant part of the court’s decision reads as follows:

“After having examined the arguments of the appeal, heard the lawyer’s submissions in support of the appeal and the prosecutor’s submissions against it, the panel of the court considers that the court’s decision of 28 September 2004 should remain unchanged as it is lawful and justified”.

On 16 December 2004, the investigator requested from the Deputy Prosecutor General an extension of the applicant’s detention, because although a number of statements had been obtained and a financial audit of the Borçalı Bank had been conducted by the National Bank and the Ministry of Taxes, more time was needed to complete the investigation.

On 23 December 2004 the Deputy Prosecutor General submitted a request to the court for the extension of the applicant’s detention period until 28 February 2005. The relevant part of the prosecutor’s request reads as follows:

“The records of the documented audit carried out in this case must be obtained, depending on the conclusions of the audit, certain witnesses must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided.

In order to carry out the said investigative actions, no less than two months are needed. However, the period of remand in custody in respect of the accused person Ismayilov Novruz Binnat oglu ends on 28 December 2004. Thus, because of the complexity of the criminal case and the need for at least two months for the carrying out of the above-mentioned investigative actions, the period of remand in custody in respect of N. Ismayilov must be extended until 28 February 2004.”

On 23 December 2004 the judge at the Khatai District Court, relying on the prosecutor’s request, extended the length of the applicant’s remand in custody by a period of two months, until 28 February 2005. The court decision, which is almost identical in wording to the prosecutor’s request, reasoned the necessity for the extension of the applicant’s detention as follows:

“The records of the documented audit carried out in this case must be obtained, certain witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided.

The period of remand in custody in respect of Ismayilov Novruz Binnat ... ends on 28 December 2004. However, as it will not have been possible to complete the additional investigative actions during this period, I consider that the request must be granted and the period of remand in custody in respect of N. Ismayilov must be extended for a period of two months, that is, until 28 February 2005.”

The hearing of 23 December 2004 on the extension of the detention period was held in the applicant’s absence, but in the presence of the investigator. According to the record of the hearing, the applicant was represented by his lawyer (F.A.) and the latter took the floor and stated that he had no objections to the extension of the applicant’s detention.

On 27 December 2004, when the record of the Khatai District Court’s hearing of 23 December 2004 was made available to F.A., he made written comments on the record, stating that false information was included in it, as he had not participated in that hearing and had not pronounced in favour of the extension of the applicant’s detention. On the same day he lodged a request with the judge of the Khatai District Court for the rectification of the record of the hearing of 23 December 2004. He submitted, in particular, that he had not been informed of the date and place of that hearing and that he had not participated in it. He argued that the record of the hearing had been falsified.

Moreover, it appears from the transcripts of phone conversations of 28 December 2004 between F.A. and a court clerk, between F.A. and the investigator in charge of the case, and between F.A. and the Khatai District Court judge who ordered the extension of the applicant’s detention, that F.A. did not participate in the hearing, as all the above-mentioned persons confirmed it in their phone conversation with F.A. In particular, although the judge acknowledged in the phone conversation that there had been a mistake in the record of the hearing concerning the lawyer’s presence at the hearing, in the same conversation he also refused to officially rectify the record.

By a decision of 28 December 2004, the same Khatai District Court judge rejected F.A.’s rectification request, holding that the lawyer had participated in the hearing of 23 December 2004.

On 28 December 2004 the applicant appealed against the Khatai District Court’s decision of 23 December 2004 concerning the extension of his detention. The applicant complained that he had not been taken to the court for the hearing and that his lawyer had not been informed of the date and place of the hearing. He further submitted that there was no justification for the extension of his detention period and that the first-instance court had failed to substantiate its decision. On 5 January 2005 he lodged additional submissions in support of his appeal, reiterating his previous complaints and asking the court to deliver a special ruling with regard to the judge of the Khatai District Court in connection with the falsification of the record of the hearing of 23 December 2004.

On 6 January 2005 the Court of Appeal left unchanged the Khatai District Court’s decision on the extension of the detention period, finding no reason for quashing it. As to the justification for the extension of the applicant’s detention, the appellate court stated as follows:

“The investigating authority considers it necessary that the records of the documented audit carried out in this case must be obtained, some witnesses, depending on the conclusions of the audit, must be questioned, confrontations must be conducted, if necessary, accounting and handwriting analyses must be carried out, relevant steps must be taken for the reimbursement of the damage caused, Ismayilov Novruz Binnat oglu must be charged with additional offences in connection with the above-mentioned points, and following the end of these investigative actions, it must be determined which other persons in the circle have committed crimes, and the issue of their responsibility must be decided.

At the stage of the carrying out of the said procedural actions, it is not appropriate to release N. Ismayilov from pre-trial detention.

The panel of the court considers that the judge of the first-instance court took into account the seriousness of the crime attributed to N. Ismayilov, the possibility of him influencing persons participating in the criminal proceedings if released, as well as obstructing the normal functioning of the investigation or the court proceedings by hiding or falsification of items necessary for the prosecution, and correctly extended the period of his detention. The decision is lawful and justified.”

The appellate court did not examine the applicant’s specific complaints concerning his and his lawyer’s absence from the hearing of 23 December 2004 or the alleged falsification of the record of the above-mentioned hearing.

The hearing of 6 January 2005 before the Court of Appeal was held in the absence of the applicant, but in the presence of the prosecutor and the applicant’s two lawyers.

On 12 May 2005 the prosecutor in charge of the case filed the indictment with the Assize Court. It appears from the indictment that the applicant had been charged with additional offences on 15 April 2005 and that in the meantime his period of detention had been extended by the Khatai District Court until 28 April 2005. The relevant part of the indictment reads as follows:

“... on 28 September 2004 Ismayilov Novruz Binnat oglu was charged under Articles 178.2.2., 178.2.3, 178.3.2, 179.2.1, 179.2.2, 179.2.3, 179.3.2 and 313 of the Criminal Code of the Republic of Azerbaijan and the Khatai District Court ordered the application of the preventive measure of remand in custody in respect of him. On 15 April 2005 he was charged with new criminal offences under Articles 178.2.3, 178.3.2, 179.2, 179.2.2, 179.2.3, 179.3.2 and 213.4 of the Criminal Code of the Republic of Azerbaijan. His period of pre-trial detention was extended by the Khatai District Court’s decision until 28 April 2005 ...”

However, despite an explicit request by the Court that the Government submit all the judicial decisions concerning the applicant’s detention, no copy of the decision extending his detention until 28 April 2005, nor any other copy related to his detention until 31 January 2006, was submitted.

On 31 January 2006 the Assize Court convicted the applicant of fraud, embezzlement and tax evasion and sentenced him to nine years’ imprisonment.