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

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in 1979 and lives in Nizhniy Novgorod Region.

On 25 January 2006 the applicant’s wife, I., gave birth to a son, N. On 25 August 2008 I. gave birth to another son, V. The family lived in Vladimir.

In July 2011 the applicant and I. divorced.

On 8 October 2011 the applicant took the children away from their home in Vladimir and brought them to the town of Shakhunya in Nizhniy Novgorod Region where his mother lived. He did not obtain I.’s consent.

On an unspecified date the applicant applied to the Shakhunskiy District Court of Nizhniy Novgorod Region for a residence order under which N. and V. would live with him in Shakhunya. On 24 October 2011 I. lodged a counterclaim, asking for a residence order under which the children would live with her in Vladimir.

On an unspecified date in November 2011 the applicant returned the children to their mother in Vladimir.

On 19 January 2012 experts appointed by the court issued their report. They found that the applicant was self-confident, domineering and inclined to lie. He was emotionally stable but, at the same time, easily carried away and fickle in his interests, which could mean that he would not always wish to take care of his children. The applicant strived to spend a lot of time with the children and was against punishing them. I. was seen to be impulsive, anxious, diffident and emotionally unstable. Her intellectual capacities were low. Her manner of upbringing was erratic: she vacillated between excessive demands and punishments and insufficient demands and punishments. Her manner of upbringing could be detrimental to the children’s psychological development. The children were anxious and stressed. N. had a closer emotional connection with his father than with his mother. As regards V., any situations involving his mother were stressful to him because they were associated with excessive demands and punishments.

The childcare authority issued an opinion that the children should reside with their mother. The mother had better living conditions. The children attended school (N.), a nursery school (V.) and various extracurricular activities at her place of residence in Vladimir. I. took good care of the children and did not prevent them from seeing their father.

The applicant submitted audio recordings of his conversations with his children. A psychologist, who had analysed those recordings, stated in court that the parents were both uncooperative and were both equally responsible for the stress from which N. and V. suffered. The audio recordings submitted by the applicant showed that he had tried to manipulate the children into saying that they wanted to live with him. In her opinion, the children had a stronger attachment to the mother. It was preferable that they lived with her in Vladimir where the living conditions were more comfortable and where they had constantly lived since their birth.

On 20 February 2012 the Shakhunskiy District Court granted I.’s application for a residence order in her favour and dismissed a similar application by the applicant. The court doubted the authenticity of an employment certificate from a private company submitted by the applicant. Given that he had not produced any official documents confirming his employment, the court found that he had not proved that he had a permanent income. There was no evidence that the applicant had supported his children financially during the period since his separation from I. in February 2011 until October 2011, when the children had been living with their mother. He had started to pay child maintenance only after he had lodged his application for a residence order in October 2011. The applicant had moreover asked that the children’s residence be fixed at his mother’s address, which showed that he did not have any intention of taking care of them personally. It was clear from the audio recordings submitted by the applicant, as analysed by a psychologist, that the applicant had attempted to manipulate the children and to force them to make a choice between the parents. He was therefore willing to reach his aims by any means, even at the price of making his children suffer. He had moreover taken the children away from their home in Vladimir and brought them to his mother’s residence in Shakhunya without I.’s consent. According to witness statements, I. had always taken good care of the children. It was I. who had always accompanied them to school and extracurricular activities. The fact that she had a partial disability had never so far prevented her from raising them and caring for them. The fact that the applicant’s living conditions were better was insufficient in itself for making a residence order in his favour. Nor was the court convinced by the applicant’s assertion that the children had a stronger attachment to him than to their mother. The children had always lived with their mother, except for several weeks during the summer holidays when they had stayed with him at his mother’s residence in Shakhunya. There was no evidence that I. had shouted or excessively punished the children. Although the experts had indeed found her manner of upbringing to be erratic, their report did not mention that she could cause detriment to their psychological development. Moreover, it was evident from the audio recordings that it was the applicant who had tried to turn the children against their mother. The childcare authorities had also considered that it was in the children’s interest to live with the mother. Given that I. had never prevented the applicant from seeing the children, the applicant would be able to visit them as often as he liked, while the children would continue living in the environment familiar to them.

On 29 May 2012 the Nizhniy Novgorod Regional Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. The applicant’s cassation appeal was rejected by a judge of the Nizhniy Novgorod Regional Court on 30 November 2012.

In January 2013 the applicant applied to the Oktyabrskiy District Court of Vladimir for a reconsideration of the children’s residence arrangements. He asked for a residence order under which N. and V. would live with him in Vladimir. He submitted, in particular, that the children wished to live with him. He had been picking them up from school almost every day lately and bringing them back to I. only to sleep. I. shouted at the children, slapped them and humiliated them. She did not work and lived on social benefits and child maintenance. In the alternative, he asked for a contact order, claiming that I. occasionally prevented him from seeing the children.

On 4 March 2013 N. and V. were assessed by a psychologist who found that their psychological state was good. They were resigned to their parents’ divorce and no longer experienced any negative emotions in that connection. Their relationship with their mother was friendly and supportive. They considered her as family, while their father was considered to be a friend who came regularly to play with them.

On 22 March 2013 the childcare authority issued its opinion on the case. It found that both parents had satisfactory living conditions. N. had expressed a wish to live with the applicant. The childcare authority considered that it was desirable to perform a psychological expert examination of the children to assess their attachment to each parent. However, I. objected to any assessment of her children by a psychologist. The childcare authorities had however learned that she had secretly seen a psychologist. The children had told the psychologist that they wished to live with their father. However, given that the children had not yet reached an age at which they were able to form their own opinions on the matter, as they were still highly impressionable and changeable, the childcare authority considered that it was possible for the children to continue living with their mother. The applicant should be able to have regular contact with the children for two weekends per month.

On 6 May 2013 the Oktyabrskiy District Court rejected the applicant’s application for a residence order and maintained the residence order in favour of I. It found it established that I. was unemployed and that the applicant had a permanent job. The living conditions of both parents were satisfactory. The court took note of the expert report of 19 January 2012 (see paragraph 11 above), observing that the experts had found that the parent-child relationships were complicated in the applicant’s family. The expert report did not however contain an explicit finding that the children were attached to their father more than to their mother. The applicant had not proved that I. had shouted at the children, humiliated them or neglected her parental responsibilities. Evidence showed that she was taking good care of the children. There was therefore no reason to change the children’s residence arrangements established by the judgment of 20 February 2012.

The court further held that N. and V. were entitled to maintain contact with their father and his paternal family and determined the contact schedule as follows. The applicant was to be able to have contact with the children each weekend from 5 p.m. on Saturday until 7 p.m. on Sunday at the applicant’s place of residence, with the mother’s prior agreement.

On 25 September 2013 the Vladimir Regional Court upheld the judgment on appeal. A cassation appeal by the applicant was rejected by a judge of the Vladimir Regional Court on 14 May 2014.

On 4 October 2013 the applicant lodged a new application for a residence order in his favour with the Oktyabrskiy District Court. He submitted that V. currently lived with him and did not want to return to his mother who shouted at him and physically punished him. Both V. and N. had stated many times that they wanted to live with him. He devoted a lot of time to the children by picking them up after school, bringing them for walks and educating them. He had a comfortable and stable income and good living conditions. By contrast, I. did not work and did not have any income except social payments and the child maintenance payments that she received from the applicant. It was therefore the applicant who maintained the children financially. The applicant further relied on the expert report of 19 January 2012 (see paragraph 11 above) from which it was apparent that the children had a stronger attachment to their father than to their mother, that any situations involving their mother were stressful for them and that the mother’s methods of upbringing were detrimental to the children’s psychological development. The applicant submitted audio recordings of many conversations he had had with the children between March 2012 and September 2013. The children invariably stated that they wanted to live with the applicant, complained that their mother shouted at them and whipped them with a belt, and protested, crying, that they did not want to return living with her.

On 19 February 2014 the childcare authority issued its opinion on the case. It found that V. had indeed lived with the applicant during his (V.’s) illness from 25 September to 31 October 2013. He had however then returned to his mother. The children also stayed with the applicant on weekends. The applicant always accompanied V. to nursery school and N. to extracurricular activities. He paid child maintenance without delay and regularly gave additional financial support to the children. The applicant and I. were attending mediation sessions. The applicant was in permanent employment and had a high stable income. I. was partly disabled and did not work. Her mother and grandmother helped her in raising the children. According to I., the children were very attached to their father, spoke to him over the telephone every day and spent their holidays with him. The childcare authority concluded that the children were attached to both parents, that I. was taking good care of their health and development and that their living conditions were comfortable. It was therefore possible for the children to continue living with their mother.

A representative of the childcare authority stated at the hearing that she had followed the family for some time. She had the impression that the children were equally attached to both parents and both parents took equally good care of them. Recently she noted positive changes in the highly conflictive relationship between the parents. In particular, the mother allowed the father to spend more time with the children than before. The father picked up the children from school and they spent weekends and part of their holidays with him. She considered that there was no reason to change the children’s residence arrangements and recommended that the children should continue living with their mother.

I. stated that she loved her children and took good care of them. She also alleged that the applicant’s motives for asking for a residence order in his favour were mercenary as he wanted to use the flat that belonged to the children. She therefore asked that the residence order previously granted to her be maintained.

The applicant’s neighbour stated that she often saw the applicant walking and playing with the children. She thought that he was a very good father and that the children loved him. In October 2013 I. had come to the applicant’s flat in the middle of the night on at least three occasions. She had shouted, had threatened to break the windows and to take the children away from the applicant by force. The neighbours had had to call the police, who took I. away.

In reply to the applicant’s request to play the audio recordings submitted by him on 4 October 2013 (see paragraph 22 above), the judge stated that it was not necessary because the other party had not contested them. The applicant’s written description of those audio recordings had been examined at the hearing.

The applicant also asked that a copy of the expert report of 19 January 2012 be admitted as evidence. Both I. and the childcare authority objected, arguing that the expert examination had been made two years before and was therefore out of date. The court rejected the application, finding that the expert report had been analysed by the courts which had issued previous residence orders.

On 19 February 2014 the Oktyabrskiy District Court ordered an expert psychological examination of the children to assess their relationship with both parents.

On 8 April 2014 the expert found that it was not possible to make an expert report because I. had refused to come to the examination or to bring the children. The court considered that it was not necessary to reiterate the order for an expert examination as there was sufficient material for making a decision on the case.

On 8 April 2014 the Oktyabrskiy District Court rejected the applicant’s application for a residence order in his favour. The court found no circumstances warranting the change of the residence arrangements established in the residence orders of 20 February 2012 and 6 May 2013. It had no reason to doubt that I. loved her children and took good care of them. The applicant’s allegations that I.’s manner of upbringing were detrimental to the children’s development had not been confirmed by the evidence in the case. The criminal proceedings on charges of fraud against her had been discontinued. Her living conditions were satisfactory. The fact that she had no employment or income did not justify granting a residence order to the applicant. She did not prevent the applicant from seeing the children as much as he liked. As indicated in the judgment of 6 May 2013, the expert report of 19 January 2012 did not contain an explicit finding that the children were more attached to their father than to their mother. The childcare authorities had found that the children had been equally attached to both parents. There were therefore no reasons to issue a residence order in favour of the applicant.

On 1 July 2014 the Vladimir Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. In particular, it held that the applicant had not proved that there had been sufficient reasons to change the residence arrangements established by the earlier residence orders. No exceptional circumstances warranting the children’s separation from their mother had been established. It had not been proved that the children had had an exceptionally strong attachment to the father or wished to live with him and him only. In such circumstances, and taking into account the children’s age, their established way of life, the satisfactory living conditions of both parents and the opinion of the childcare authorities’ on the case, the decision to maintain the residence order in favour of the mother was in the best interests of the children. The Regional Court further dismissed the applicant’s complaint that the District Court had not assessed the family situation with sufficient thoroughness because it had not questioned the children and had refused to admit the expert report of 19 January 2012 as evidence. The Regional Court held that, given that the children were under ten years old, their opinion on the residence issue could not be taken into account. As regards the expert report of 19 January 2012, it had been made in the framework of separate proceedings and had been already assessed by the courts in those proceedings. The District Court considered that the expert opinion was not necessary because the evidence included in the case file was already sufficient to adjudicate the dispute.

A cassation appeal by the applicant was rejected by a judge of the Supreme Court of the Russian Federation on 8 December 2014.

On 4 December 2014 the Oktyabrskiy District Court of Vladimir authorised, against the applicant’s will, a trip abroad for the children for the winter holidays. On 15 December 2014 the children left for Germany with their mother. They returned to Russia on 9 January 2015. The decision of 4 December 2014 was later annulled by the Oktyabrskiy District Court because it found that it had no territorial jurisdiction over the case.

On an unspecified date I. applied to the Leninskiy District Court of Vladimir for a judicial authorisation for the children to travel to Germany during the approaching school summer holidays, complaining that the applicant had refused to give such an authorisation. The applicant submitted in reply that if the children left for the entire summer holidays he would not be able to see them for three months. He also submitted that there was a risk that the children might not return from Germany. He asked for an interim measure prohibiting the children from leaving Russia pending the proceedings.

On 12 March 2015 the Leninskiy District Court rejected the applicant’s application for interim measures, finding that the application of interim measures requested would amount to a prejudgement of the case.

On 6 May 2015 the Leninskiy District Court authorised the children’s trip abroad for the period from 1 June to 31 August 2015. The court found it established that I. intended to travel to Germany together with V. and N. during the summer school holidays. She had received an accommodation guarantee from her new partner’s sister, who lived permanently in Germany. The applicant had however refused to give V. and N. an authorisation to travel without giving reasons. The court found that the parents could not exercise parental rights to the detriment of their children’s rights. In particular, the children’s right to travel could not be made dependant on the parents’ willingness to authorise their going abroad, especially in the case of a disagreement between the parents. The court considered that the children’s trip abroad would not breach the applicant’s rights and would encourage the children’s development, education and broad-mindedness.

The applicant appealed. He submitted that under domestic law if a child left Russia accompanied by one of the parents an authorisation from the other parent was not required; such authorisation was required only if the child went abroad unaccompanied by the parents. A judicial travel authorisation could be given only if one of the parents had formally objected to the child’s going abroad (see paragraph 51 below). Given that the applicant had never lodged such an objection in accordance with the procedure prescribed by law, the judicial travel authorisation had been unlawful and unnecessary.

On 9 July 2015 I. married her partner, a national of Germany. She then left for Germany with N. and V. In September 2015 she gave birth to a child. N. and V. are now living in Germany with their mother, her new husband and their half-brother.

The applicant lodged an additional appeal, submitting that although the decision of 6 May 2015 had not yet become enforceable, I. had been able to leave with the children for Germany. That fact had clearly demonstrated that a judicial authorisation was not required for leaving Russia. It had however been used by I. to obtain a German visa for the children, which she could not have otherwise obtained without his agreement. The applicant also complained that the children had not returned to Russia by 31 August 2015, although the judicial authorisation had been valid only until that date.

On 2 December 2015 the Vladimir Regional Court upheld the decision of 6 May 2015 on appeal. The Regional Court held that it had been lawful, well reasoned and justified. In particular, it found that the applicant had not submitted to the District Court any evidence showing that the trip abroad would have been contrary to the children’s best interests.

On 8 September 2015 the bailiffs service opened, at the applicant’s request, enforcement proceedings in respect of the contact order of 6 May 2013 (see paragraph 20 above).

In October 2015 the applicant complained about the bailiffs’ inaction to the Oktyabrskiy District Court. On 16 December 2015 the Oktyabrskiy District Court rejected his complaint, finding that the bailiffs had taken measures to enforce the contact order but enforcement had been impossible through no fault of the bailiffs service, specifically because I. and the children had been living in Germany. On 3 March 2016 the Vladimir Regional Court upheld that decision on appeal. Cassation appeals by the applicant were rejected by a judge of the Vladimir Regional Court on 21 October and then by a judge of the Supreme Court on 30 December 2016.

Meanwhile, the bailiffs asked the Oktyabrskiy District Court for a suspension of the enforcement proceedings on the grounds that I. and the children were abroad and it was therefore impossible to take any coercive measures against her. On 8 February 2016 the Oktyabrskiy District Court rejected the bailiffs’ request, finding that the children’s residence abroad was not a sufficient reason to suspend the enforcement proceedings.

The applicant also submitted numerous requests to various Russian authorities, including in January 2016 to the Ministry of Education and Science of the Russian Federation, for assistance in recovering his children and in enforcing the contact order of 6 May 2013. In December 2015 he complained of the authorities’ inaction to the Leninskiy District Court. On 4 February 2016 the Leninskiy District Court rejected the applicant’s complaint, finding that those authorities had no competence in the matter. The only authority competent to assist him in re-establishing contact with his children was the bailiffs service. On 12 May 2016 the Vladimir Regional Court upheld that judgment on appeal.

According to the Government, in April 2016 the bailiffs service advised the applicant to apply for recognition and enforcement of the contact order to the competent German authorities, via the Ministry of Education and Science of the Russian Federation, in accordance with the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. There is no evidence that the applicant used that procedure.

On an unspecified date I. applied to the Leninskiy District Court for a residence order under which N. and V. would live with her in Germany. The applicant lodged a counterclaim, asking for a residence order under which the children would live with him in Vladimir. He also asked for an interim order to return the children to Russia and to ensure that until their return the children communicated with him via VOIP calls every Wednesday, Friday and Sunday at 9 p.m. (Moscow time). On 24 May 2016 the Leninskiy District Court refused the applicant’s application for an interim order, finding that he had not proved that the failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment. On 22 June 2016 the Vladimir Regional Court upheld that decision on appeal. The residence order proceedings are pending.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement;Freedom to choose residence)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano

The applicant was born in 1990.

The applicant is a man who is intellectually disabled. On 14 February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant’s home town, which is in the South of Finland.

In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority.

On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children’s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 10 December 2008.

On 31 July 2007 the applicant was placed in a children’s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007.

On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor (edunvalvoja, intressebevakare) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person.

On 30 December 2008 the social welfare authorities requested the District Court (käräjäoikeus, tingsrätten) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant’s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant’s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor.

On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults.

On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant’s level of development and on submissions according to which the applicant was gullible and keen on small children’s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind.

On 7 February 2011, after having received a psychologist’s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant’s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland.

On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters.

On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant’s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant’s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant’s interests.

As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26 November 2010 and established by a psychologist, the applicant’s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant’s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant’s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant’s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents’ home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis.

As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant’s place of residence in accordance with the applicant’s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant’s best interests.

Taking into account the evidence and the factual findings referred to above (see paragraph 17 above), the District Court concluded that it was in the applicant’s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant’s place of residence and his education.

On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal (hovioikeus, hovrätten). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case.

On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant’s appeal and upheld the District Court’s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children’s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant’s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant’s trust should be chosen.

By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already submitted before the Appeal Court.

On 8 February 2013 the Supreme Court refused the applicant leave to appeal.

According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community.

The applicant’s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Legal assistance of his own choosing;Article 6 - Right to a fair trial);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Dean Spielmann;Dmitry Dedov;Erik Møse;Guido Raimondi;Helen Keller;Ján Šikuta;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva;Ksenija Turković

The applicant was born in 1986 and lives in Rijeka.

On 13 March 2007, between 2 and 3.30 a.m., three murders, an armed robbery and an arson attack were committed in Vežica, a residential neighbourhood of Rijeka.

Later that day, a number of people from Vežica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department (Policijska uprava Primorsko-goranska, Treća policijska postaja Rijeka; hereinafter “Rijeka Police Station”).

At about 1 p.m. the same day, the applicant was brought to Rijeka Police Station for questioning. Blood samples were taken from him for DNA analysis and the police searched his flat and mobile phone and seized a number of his personal items.

The applicant was kept at Rijeka Police Station until his formal arrest at 9.50 a.m. on 14 March 2007 in connection with the above offences.

According to the applicant, at about 10.40 a.m. on 14 March 2007 his mother, who lived and worked in Italy, called a lawyer, G.M., and asked him to represent the applicant. G.M. came to Rijeka Police Station at 10.45 a.m. but the police officers refused to let him see the applicant. G.M. remained in Rijeka Police Station until midday. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the grounds that he had no power of attorney and pushed him out of the police station. G.M. immediately informed the Rijeka Deputy County State Attorneys, D.K. and I.B., about the incident and they made a note in their case file. The Rijeka County Court was also immediately informed.

At around 1.30 p.m. the applicant’s father signed a power of attorney in favour of the lawyer G.M. to defend his son. A legal trainee, B.P., then tried to submit the power of attorney to the police but was told to leave.

At some time between 3 and 3.30 p.m. G.M. again tried to contact the applicant in Rijeka Police Station but was denied access to him.

At about 3.30 p.m. G.M. reported the events described above to the Chief of the Primorsko-Goranska Police Department, Mr V., who made a note about their conversation.

The applicant was never informed by the police that G.M. had been hired and had come to Rijeka Police Station.

According to the applicant, he had repeatedly asked the police officers in Rijeka Police Station for G.M. to be called, but was told that they had tried to contact him but there had been no answer.

According to the Government, at 6 p.m. on 14 March 2007 the applicant agreed to be represented by a lawyer, M.R., a former chief of the Primorsko-Goranska Police. He arrived at Rijeka Police Station at about 7.45 p.m. The Government state that the applicant chose M.R. from a list of lawyers of the Rijeka Bar Association presented to him by the police and that the questioning of the applicant began at 8.10 p.m. According to the record of the applicant’s questioning, the police advised him of his right not to incriminate himself and his right to remain silent and he expressly stated for the record that his lawyer was M.R.

The relevant part of the record of the police questioning of the applicant by officers T.K. and Z.N. on 14 March 2007, which commenced at 8.10 p.m. and concluded at 11 p.m., reads as follows:

“I have been informed of the reasons for my arrest, the criminal offences of which I am accused, my rights, the right not to answer and the right to be legally represented, as well as the right to have members of my family informed about my arrest. I have chosen and authorised a defence lawyer from Rijeka, M.R., to represent me in these proceedings, and I have consulted him in private; following the consultation with the lawyer [M.]R. I have decided to give my evidence.

The record then gives the applicant’s description of the relevant events concerning the charges against him: he confessed that on the night of 13 March 2007, together with L.O. and R.Lj., he had gone to Đ.V.’s flat in Vežica, where he had taken a certain amount of money from Đ.V. and then shot and killed him, his girlfriend and his father. He had then set their flat on fire in order to destroy any trace of his having been there. He also stated that he had promised L.O. and R.Lj. that he would confess to the crimes and take the blame himself if they were arrested.

The final part of the report reads:

“I am not experiencing any withdrawal symptoms or any other crisis. I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney. I have read the entire statement and after that I am signing it as truthful.”

Every page of the record of the applicant’s statement is signed by him.

The relevant part of the written record of the applicant’s questioning by an investigating judge reads:

“In response to a question by the court about the choice of defence counsel since the case file includes a record of the questioning of the suspect in the presence of defence counsel M.R., and also a power of attorney signed by the parents in favour of the lawyer G.M., the suspect answers:

‘I will sign the power of attorney for Mr G.M., a lawyer from Rijeka, and I am hereby withdrawing the power of attorney for the lawyer M.R.’

In response to a question by defence counsel as to whether he had hired the lawyer [M.]R., the suspect answers:

‘No, I did not hire him. I specifically told the police officers that I wanted G.M. to represent me.

I do not know anything about G.M. coming to the police premises.’

In response to a further question by defence counsel as to whether he was under the influence of drugs, the accused answers:

‘I was under the influence of alcohol and drugs.’

On 16 March 2007 G.M. applied to the investigating judge for the Rijeka County State Attorney and all his deputies to be removed from the case. The investigating judge forwarded the request to the Rijeka County State Attorney’s Office. The relevant part of the request reads:

“About thirty minutes ago, counsel for the defence learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., in the presence of the ‘defence lawyer’ M.R.

On the same date at around 10.40 a.m. the mother of Ivan Dvorski, Lj.D., who lives and works in Italy, called [G.M.] and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. At around 10.45 a.m. [G.M.] came to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and also did not tell [Ivan Dvorski] that his mother had hired a lawyer. [G.M.] remained in Rijeka Police Station until 12 noon. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the grounds that he had no power of attorney and pushed him out of the police station. [G.M.] immediately informed the Rijeka Deputy County State Attorneys, D.K. and I.B., about the incident and they made an official note in their case file.

Therefore, at around 12.30 p.m. the Rijeka State Attorney already knew that [G.M.] had been hired by [Ivan Dvorski’s] mother and that he had not been able to contact his client.

The [Rijeka] County Court was also immediately informed.

At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney for the defence of his son. A legal trainee, B.P., [then] tried to submit the power of attorney to the police but was told to ‘fuck off with that power of attorney’ and therefore it was not submitted.

At around 3 to 3.30 p.m. the defence lawyer [G.]M. again tried to contact his client in Rijeka Police Station but was denied access to him ... However, the defendant was never informed that a defence lawyer had been hired and had come to Rijeka Police Station.

At around 3.30 p.m. [G.M.] informed the Chief of the Primorsko-Goranska Police Department ... Mr V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been hired and also never asked whether he wanted to be represented by the lawyer hired by his family.

Besides that, ever since he had been brought to Rijeka Police Station [Ivan Dvorski] had asked on a number of occasions for [G.M.] to be called but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They show that he had a high level of alcohol and drugs in his blood.

Between 1 p.m. on 13 March 2007 and around 7 p.m. on 14 March 2007 (these time periods are only known to [G.M.] from informal sources because he had no access to the Rijeka County State Attorney’s case file) the defendant was not given any food.

It is clear that although all these facts were known to the Rijeka State Attorney, D.H., he disregarded them and, although present in person, allowed the defendant to be questioned in the presence of a lawyer who had [neither been requested by him] nor ... hired by his family. This amounts to unlawfully extracting a confession, in breach of Article 225 § 8 of the Code of Criminal Procedure, given that the Rijeka State Attorney, since about 12.30 p.m. [on 14 March 2007], had known who the [applicant’s chosen] defence lawyer was.

On the same date [G.M.] sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney’s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...”

On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.Lj. on suspicion of having committed the three aggravated murders and arson in Vežica on 13 March 2007.

On 23 March 2007 the State Attorney General of the Republic of Croatia (Glavni državni odvjetnik Republike Hrvatske) dismissed G.M.’s request for the removal of the Rijeka County State Attorney on the grounds that there were no reasons for disqualifying him from dealing with the case. The relevant part of the decision reads:

“... a statement from D.H., the Rijeka County State Attorney, has been obtained.

In his statement the Rijeka County State Attorney says that on 14 March 2007 at about 10 a.m. he was in the premises of the Rijeka Third Police Station together with his colleague I.B.-L., where they were informed about the evidence thus far obtained, and all the evidence that remained to be taken in connection with the events at issue. He came back to the County State Attorney’s premises at about 1 p.m., when the deputies D.K. and I.B. informed him that the lawyer G.M. had come to the premises of the County State Attorney and complained about the conduct of the police officers of the Rijeka Third Police Station in refusing him access to Ivan Dvorski, even though he had been given an oral authorisation by Ivan Dvorski’s mother, [who had called him from] Italy. The lawyer had not presented any proof of his authority to represent Ivan Dvorski or of his telephone conversation with Ivan Dvorski’s mother. He had not been able to make contact with the suspect’s father, having been unable to find him since he had no fixed address.

After [the Rijeka County State Attorney D.H.] had left the premises of the County State Attorney, he had had no further information about the actions of the above-mentioned lawyer.

At 5 p.m. [D.H.] returned to the Rijeka Third Police Station in connection with the case at issue. There, an inspector of the Primorko-Goranska Police Department told him that the suspect Ivan Dvorski was willing to submit his defence in the presence of his defence counsel, M.R., and it was agreed that the questioning would start at about 7 p.m. M.R. arrived at the Third Police Station at 6.40 p.m. and together they went to the room where the suspect Ivan Dvorski was. There, the suspect signed the power of attorney in favour of the lawyer M.R. and agreed that [M.R.] would be present during his questioning by the police. After that, at the request of M.R., the suspect was allowed to talk to the lawyer in private. After ten minutes they all moved to another room, where the suspect, in the presence of his lawyer, the County State Attorney, two police inspectors and a typist, put forward his defence, which was recorded in writing, and all this lasted for more than three hours. After that they all signed the written record [of questioning] and he left the room together with the lawyer M.R.

On 26 March 2007 the Rijeka County State Attorney dismissed the request for the removal of his deputies on the same grounds. The relevant part of that decision reads:

“A deputy Rijeka County State Attorney, I.B.-L., said that she had not participated at all in the questioning of Ivan Dvorski by the police, and that she had no knowledge about that stage of the proceedings and, in particular, that she had no information about Ivan Dvorski’s representation by or choice of defence counsel during his questioning. She only knew that on 14 March 2007 the lawyer G.M. had come to the premises of the Rijeka County State Attorney, where she had met him. He had complained about the choice of defence counsel for Ivan Dvorski. He had said that he was Ivan Dvorski’s defence counsel, having been authorised by his mother in a telephone conversation. She [I.B.-L.] commented that that could not constitute a valid power of attorney ...

The statements of the Rijeka County deputy state attorneys D.K. and I.B. show that the only information they had about the conduct of the police came from the lawyer [G.]M., who wanted to complain about the conduct of police officers in connection with the choice of lawyer to represent and defend Ivan Dvorski. ... D.K. drew up an official note about this matter and presented it to G.M. The statements of the Rijeka County deputy state attorneys D.K. and I.B. show that [G.M.] had mentioned a power of attorney given to him by Ivan Dvorski’s mother, who lived in Italy and with whom G.M. had talked on the telephone. The deputies told him that a power of attorney given by telephone could not be considered valid. They had no knowledge of any other acts, including the obtaining of a power of attorney from Ivan Dvorski’s father ...”

On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer represent the applicant and on 30 March 2007 the President of the Rijeka County Court appointed a legal-aid lawyer, S. Maroševac-Čapko, to represent the applicant.

During the investigation, evidence was taken from a number of witnesses, and a report on the inspection of the crime scene and the search and seizure, as well as medical, fire and ballistics expert reports, were obtained by the investigating judge.

On 12 July 2007 the Rijeka County State Attorney’s Office indicted the applicant, L.O. and R.Lj. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Vežica.

The applicant, represented by the legal-aid lawyer S.M.Č., lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the grounds that it had contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs. He made no comments as to his legal representation during the police questioning.

The applicant’s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007.

On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses.

Another hearing was held on 11 October 2007, at which the trial court examined video-recordings of the crime-scene investigation and the autopsy of the victims.

Further hearings were held on 12 November 2007 and 11 January 2008, at which the trial court heard evidence from nine witnesses.

At a hearing on 14 January 2008 two experts in toxicology, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objections in respect of their evidence. At the same hearing four other witnesses gave evidence.

At a hearing on 15 January 2008 the trial court heard evidence from another expert in toxicology and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report concerning the applicant.

At the same hearing the defence lawyer asked for a handwriting expert’s report to be commissioned in respect of the applicant’s signature on the record of his statement given to the police on 14 March 2007. She argued that the applicant had not signed any record during his questioning by the police.

The trial court considered that for the time being it was not necessary to commission a psychiatric report and thus dismissed the applicant’s request to that effect. However, it commissioned a handwriting expert’s report in respect of the signature on the record of the applicant’s statement given to the police.

On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007.

Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings. The applicant’s lawyer challenged the veracity of these findings and applied to have another report commissioned, but the application was dismissed by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused.

On 2 April 2008 the applicant asked the Rijeka County Court to call the lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced to confess by the police officers.

On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol. However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time when the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a certain degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time when the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions.

At a hearing on 26 June 2008 the psychiatric experts confirmed their findings and the parties made no objections in respect of their evidence. The trial court also dismissed the applicant’s request for the lawyer G.M. to be heard as a witness, on the grounds that all the relevant facts had already been established.

At the same hearing one of the accused, R.Lj., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.Lj. claimed, however, that he had not personally participated in the killings, because he had panicked and had left the flat when he had heard fighting.

After R.Lj. had given his statement, the Deputy County State Attorney amended the indictment. The applicant was charged with three counts of aggravated murder, armed robbery and arson, and L.O. and R.Lj. were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment.

On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.Lj. He stated that after the applicant had got into a fight with Đ.V., he had heard gunshots, after which he had panicked and had left the flat.

At the same hearing the parties submitted their closing arguments. The applicant’s defence lawyer argued that it had not been proved that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court took a different view, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him.

On 30 June 2008 the Rijeka County Court found the applicant guilty of the three counts of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years’ imprisonment. The trial court first examined the applicant’s confession against those of the other co-accused, L.O. and R.Lj., and found that his confession was essentially consistent with the evidence provided by them. In finding the applicant guilty, the trial court also assessed his confession against the evidence from the case file.

The trial court relied in particular on the search and seizure records and photographs depicting the accused L.O. holding the same type of handgun as had been used for the murders. On the basis of the witness statements and the recording of a nearby video-surveillance camera, the trial court concluded that the applicant and the other co-accused had come to Đ.V.’s flat on the critical date. Furthermore, the ballistics reports and the crime-scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained on the basis of the fire, ballistics and toxicology reports and the DNA report. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy report, the evidence of the pathologist provided at the trial, the crime-scene report and the witness statements about the gunshots that had been heard in Đ.V.’s flat. Furthermore, as to the arson charge, the trial court examined the material from the crime-scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire had occurred.

As regards the applicant’s questioning by the police and the request made by the defence to hear evidence from the lawyer G.M. (see paragraphs 41 and 43 above), the Rijeka County Court noted:

“The first accused Ivan Dvorski confessed to the criminal offences of robbery, aggravated murder of Ɖ.V., M.Š. and B.V. ... exactly as is stated in the operative part of this judgment, in front of the police and in the presence of a defence lawyer. He later tried to contest that statement, claiming that he had not hired the lawyer M.R., that he had told the police officers that he wanted G.M. as his lawyer, that at the time he had been taken to the police station he had been under the influence of alcohol and drugs and so on. However, this defence is not acceptable. The written record of arrest shows that the first accused Ivan Dvorski was arrested on 14 March 2007 at 9.50 a.m. at the Rijeka Third Police Station, and the lawyer [M.]R., in favour of whom the first accused Ivan Dvorski signed the power of attorney, came to the police station on 14 March 2007 at 7.45 p.m. The written record of the questioning of the then suspect Ivan Dvorski shows that M.R. was informed at 6.15 p.m. and that the questioning started at 8.10 p.m. Besides the officers of the Rijeka Police, a typist and the defence lawyer of the then suspect Ivan Dvorski, the County State Attorney was also present during the questioning. The introductory part of the written record [indicates] that the then suspect Ivan Dvorski clearly stated that he had chosen and authorised M.R. to act as his defence lawyer and had consulted with him, after which he decided to give his statement. The written record is properly signed by the persons present. The first accused Ivan Dvorski had read the written record before signing it. Thus, the above shows without doubt that the contentions of the first accused Ivan Dvorski that he had not hired M.R. as his lawyer are unfounded. During the trial, at the request of Ivan Dvorski’s defence, a handwriting expert gave her opinion about the signature of Ivan Dvorski on the written record of his questioning by the police. The expert opinion proved beyond any doubt that the contested signature was that of Ivan Dvorski. The panel accepts such findings in their entirety; the findings were further explained at a hearing by the expert Lj.Z. Her findings were given in an objective, impartial and professional manner. Therefore, the questioning of the first accused Ivan Dvorski by the police was carried out in compliance with the provisions of the Code of Criminal Procedure.

The request made by [Ivan Dvorski’s] defence to call the lawyer G.M. as a witness ... was dismissed as irrelevant, since the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [record] the time at which the lawyer [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in the presence of the lawyer for whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski’s] defence lawyer who was present during the police questioning – [M.]R. – has alleged any unlawful extraction of a confession and there is no indication of this in the record of the statement given by Ivan Dvorski, [who] at the time [was] only a suspect.”

The applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 November 2008. He complained, inter alia, that the conviction had been based on his confession to the police, which had not been given in the presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police. The applicant also referred to the request for the removal of the Rijeka County State Attorney and all his deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his detention in police custody. The relevant part of the applicant’s appeal reads:

“The statement given by the first accused to the police was unlawfully obtained, for the following reasons. When the first accused was brought to the Rijeka Third Police Station his defence rights were seriously infringed. However, during the trial this infringement was ignored. On 14 March 2007, the first accused’s mother and then also his now late father hired G.M. as his defence lawyer before the police, after he had been arrested. However, G.M. was not allowed access to the accused, and subsequently informed the relevant authorities thereof, but they ignored this. G.M. therefore lodged an action in the Rijeka Municipal Court in respect of an unlawful act, as well as a request for the removal of the Rijeka County State Attorney and all his deputies. In that request he alleged that the first accused had not been given any food by the police from 13 March 2007 at 1 p.m., when he had been brought to the Rijeka Third Police Station, until he had agreed to be represented by the lawyer M.R. on 14 March at about 7 p.m. so as to give a self-incriminating statement, which was in violation of Article 225 § 8 of the Code of Criminal Procedure. Because of that the defence asked for the lawyer G.M. to be examined [at the trial] since he had knowledge about the questioning of the first accused by the police.”

On 8 April 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded. As regards his complaints concerning his statement to the police, that court noted:

“... The lawfulness of [the statement given to the police] was not put in doubt by the appellant’s complaints that M.R. was not his lawyer and that his lawyer was G.M., who had been hired by his father and mother on the same day, or by the appellant’s complaints that he had been denied food in the period between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 until he had agreed to hire M.R. as his lawyer, since according to the record of his arrest (pages ...), the appellant was arrested at 9.50 a.m. on 14 March 2007 and the lawyer M.R. arrived [at the police station] at 6.45 p.m. on the same day.”

The applicant lodged a further appeal against the appeal court’s judgment with the Supreme Court on 14 September 2009, reiterating his previous arguments. The relevant part of the appeal reads:

“The first accused has to comment on the conclusions of the appeal court that the allegation that food was denied to him from 1 p.m. on 13 March 2007 until he agreed to be represented by the lawyer M.R. at 7 p.m. on 14 March 2007 had no bearing on the lawfulness of the evidence [the record of his questioning] because the written record of his arrest showed that he had been arrested on 14 March 2007 at 9.50 a.m. and that the lawyer M.R. had arrived on the same day at 6.45 p.m. The Record of Attendance F/949, which is in the case file, shows that the first accused was brought to the police station on 13 March 2007 at 2 p.m. and was kept there. He was arrested the next day, as found by the first-instance court. However, it is not true that the lawyer M.R. came to the police station at 6.45 p.m.: he came at 7.45 p.m., which shows that the allegations of the first accused are true. That fact could have been verified by the evidence of the lawyer G.M., who represented the first accused during the investigation ...”

On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant’s appeal as ill-founded. That court pointed out that the record of the applicant’s statement suggested that he had chosen M.R. to represent him during police questioning and that M.R. had provided him with adequate legal advice. The Supreme Court also noted that there was nothing in the case file to indicate that the applicant had been ill-treated or forced to confess. The relevant part of the judgment reads:

“The appellant erroneously argues that the first-instance court committed a grave breach of criminal procedure, contrary to Article 367 § 2 of the Code of Criminal Procedure, in basing his conviction on the defence he gave to the police in the presence of a defence lawyer, which [in the appellant’s view] constitutes unlawfully obtained evidence for the purposes of Article 9 § 2 of the Code of Criminal Procedure, and that the record of his questioning as a suspect by the police (in the presence of a defence lawyer) should thus have been excluded from the case file. In so doing, the appellant challenges the reasoning of the second-instance judgment to the effect that the lawfulness of the evidence was not affected by the appellant’s arguments that during his apprehension and arrest he had not been given food until he had agreed to be represented by M.R. These arguments of the appellant were refuted by the second-instance court on the basis of all the formally established information contained in the record of [his] questioning in the presence of a lawyer on 14 March 2007.

This third-instance court notes that [the complaint] regarding the question of the presence of a lawyer [during the questioning], as a legal requirement for the lawfulness of evidence obtained in this way during the police investigation, relates to two objections. The first objection concerns the restriction of access to the lawyer of [the defendant’s] own choosing, and the second objection relates to the pressure exerted on the suspect through the denial of food (Article 225 § 8 of the Code of Criminal Procedure), which, according to the appeal, eventually made him accept legal representation by the lawyer imposed on him, M.R., although his parents had already engaged the services of the lawyer G.M. on the morning of 14 March 2007.

It is to be noted that during the police criminal investigation, a number of persons with a background of drug abuse, and with links to the victim Đ.V., were arrested, in particular from the neighbourhood of Gornja Vežica, and it was in the course of this action that the accused Ivan Dvorski was also apprehended. Only when a probable cause was established that the accused could have been the perpetrator of the offences at issue was he arrested on 14 March 2007 at 9.50 a.m.

At the same time the father of the accused, who was in Croatia whereas the accused’s mother was in Italy, was informed [of the arrest] by the police at 2.10 p.m., which shows that from that moment the father of the accused (after a telephone conversation with his mother) could have engaged the services of a lawyer for the accused, for which he would most certainly have needed some time. In such circumstances, this third-instance court finds that the parents of the accused could not already have signed a power of attorney for the lawyer of the accused’s choice by 1.30 p.m. on the day in question.

The other information from the record of the accused’s arrest and from the record of his questioning by the police shows that on 14 March 2007, as is indicated by the record of the arrest, the accused was brought to the Rijeka Third Police Station, and, as is apparent from the record of Ivan Dvorski’s questioning by the police, the defence lawyer M.R. was informed at 6.15 p.m. and came to the police station at 7.45 p.m. The questioning itself commenced at 8.10 p.m. and ended at 11 p.m., with a break between 10.35 p.m. and 10.38 p.m.

It should be emphasised that in the introductory part of the record [of his questioning] the suspect Ivan Dvorski expressly stated that he had chosen M.R. as his defence lawyer and had signed the power of attorney in favour of him, and the record of the questioning shows that the defence lawyer had almost half an hour for consultation with the suspect before the questioning, in which time he was able to advise him of his rights.

Thus, the relevant fact which follows from the formal procedural action described in the record of the suspect’s questioning is that the chosen lawyer came at least half an hour before the questioning commenced, and in the consultation with [the suspect] before the questioning he was able to give [the suspect] genuine legal advice as his chosen lawyer.

It should also be noted that the essence of the suspect’s right to have a lawyer present during his questioning by the police lies in the necessity for legal protection of his rights, which is why the beginning, conduct and end of this formal [procedural] action is fully registered in the record [of the questioning].

This is why all arguments to the contrary, as set out in the appeal against the second-instance judgment, and particularly those relating to the need to question the lawyer G.M. as the second concurrent lawyer of [the suspect’s] choosing, have no support in the content of the formal record of the suspect’s questioning of 14 March 2007, because the record contains formally registered information about the contact with the chosen lawyer, the time when the chosen lawyer came into the Rijeka Third Police Station, the time when the questioning of the suspect commenced, the period in which a short break took place, and the time when the procedural action finished, all of which was confirmed by the suspect and the defence lawyer of his choosing by signing the record without any objections as to its content.

However, irrespective of the fact that the defence of the accused in the context of police questioning formally satisfied the requirements of Article 177 § 5 of the Code of Criminal Procedure, the general thrust of the defence, as well as the substance of the defence as regards particular acts, and the confession, were provided voluntarily by the suspect, and his chosen lawyer was most certainly unable to have any influence on this, which at the same time rules out the possibility of any mental pressure being exerted on the suspect, as well as his subsequent arguments about the lawyer having been imposed on him during the police investigation. On the contrary, the suspect’s defence rights were fully secured, as required under the Constitution and the Code of Criminal Procedure.

There is therefore no breach of Article 367 § 2 in conjunction with Article 9 § 2 of the Code of Criminal Procedure. The refusal of the request to have the record of the suspect’s questioning by the police in the presence of a lawyer of his choosing excluded from the case file as unlawfully obtained evidence does not constitute a breach of his defence rights because the record of the suspect’s questioning by the police clearly and undoubtedly shows that the lawyer who was present [during the questioning] was the lawyer of the suspect’s free choice, and this also follows from the signed power of attorney in favour of the lawyer in question, who protected the suspect’s rights during the questioning. Accordingly, the refusal of the defence’s request did not have any bearing on the lawfulness and correctness of the judgment. At the same time, it was not necessary to question the new chosen lawyer as a witness and, for the reasons set out above, the facts of the case were not insufficiently or erroneously established, as was argued in the defendant’s appeal against the second-instance judgment.”

The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 11 March 2010. He complained, inter alia, that he had been ill-treated while in police custody and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence. He reiterated his arguments from his previous appeals and added:

“It is also important to stress that at the session of the Supreme Court as the court of third instance, held on 17 December 2009, the defence indicated that the applicant had been brought to the police station at 2 p.m. on 13 March 2007, and that that fact was shown in the Record of Attendance F/949, which was in the case file. The defence asked the panel [of the Supreme Court] to have a look at that record. However, after a brief examination of the case file it was established that the document in question could not be found, and that it would be looked at later. However, the judgment of the Supreme Court, acting as a third-instance court, shows that the document had [still] not been found ...”

On 16 September 2010 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated while in police custody.


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

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. In application no. 42373/06 the applicant also raised other complaints under the provisions of the Convention.


NOVESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

Details about the applicants are set out in the appendix.

The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

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

Mr Venče Noveski (“the first applicant”) is the applicant in applications nos. 25163/08 and 2681/10 and is the second applicant in application no. 71872/13. He is the brother-in-law of Mr Bogoljub Stoleski (“the second applicant”), who is the first applicant in application no. 71872/13. The second applicant lives in Skopje in the first applicant’s house, while the first applicant lives in Germany. The first applicant stated that he stayed in his house in the respondent State “when needed”, in particular during the summer and winter holidays. The Government did not submit any evidence to refute that statement.

On 25 March 2005 the first applicant lodged a criminal complaint against H., his neighbour, for the misappropriation of a right (самовластие). He alleged that on 19 March 2005 H. and other people had unlawfully demolished a wall on his property in order to get access to a road. He argued that he had suffered damage as a result. In a submission on 28 September 2006 the first applicant laid out the specifics of his claim for compensation.

On 8 November 2007 the Skopje Court of First Instance (“the trial court”) convicted H. and sentenced him to six months’ imprisonment, suspended for two years. The court relied on the fact that no penalty had previously been issued against H. as a mitigating circumstance. It further instructed the first applicant to pursue his compensation claim by means of a separate action for damages in order to not prolong the criminal proceedings (за да не се одолговлекува кривичната постапка).

The first applicant lodged a complaint against that decision. He submitted, inter alia, that the penalty was too lenient and that the trial court had failed to decide on his compensation claim.

On 15 January 2008 the Skopje Court of Appeal (“the appellate court”) dismissed the applicant’s complaints and upheld the lower court’s judgment and the penalty it had imposed. It remitted the issue regarding costs for fresh examination. It did not comment on the arguments concerning the compensation claim.

According to the first applicant while the trial was pending, H. had repeatedly attacked his property by throwing stones and fruit at his walls and attempting to break into his house.

On 7 July 2006 the trial court upheld a claim by the first applicant for disturbance of possession (нарушено владеење). It ordered H. to reconstruct the part of the wall he had demolished and refrain from further disturbance of the first applicant’s enjoyment of his property. As stated in the judgment, H. neither appeared before the court nor contested the first applicant’s claim. The court found that the first applicant had reported the incident to the police on two occasions. On 16 February 2007 the judgment became final.

On 9 July 2007 in enforcement of the above judgment, H. reconstructed the wall. The wall was again demolished the same day by Sh.H. (H.’s brother). Sh.H. was convicted of violent behaviour (насилство, see paragraph 30 below) over the incident and sentenced to one year and six months’ imprisonment, suspended for four years (trial court judgment of 18 May 2011).

On 16 July 2007 the first applicant lodged a fresh application, seeking to have a private bailiff order H. to reconstruct the wall (see paragraph 37 below). On 2 September 2007 he asked the bailiff to issue a fine against H., arguing that H. had again come onto his land. It appears that those requests remained undecided.

On 3 April 2006 the first applicant initiated criminal proceedings against H. and two others for a breach of the inviolability of the home (нарушување на неповредливоста на домот). He complained that between 17 March 2005 and 2 April 2006 H. had trespassed on his property. On 3 October 2006 he made a claim for compensation for damage.

On several occasions during the trial the first applicant alerted the trial court to the fact that H. had again demolished the wall, had repeatedly trespassed on his property, sounded his car horn, instructed others to throw objects at the first applicant’s house, and had threatened and even fired at him with an automatic gun.

On 24 December 2008 the trial court found H. guilty and sentenced him to six months’ imprisonment, suspended for two years. The court noted that H. had no criminal record. The court held that he had repeatedly gone onto the first applicant’s land, which was part of his home. In establishing the facts, it relied, inter alia, on the judgment in the proceedings referred to above, П.бр. 1224/05 (see paragraphs 10-12). Lastly, it advised the first applicant, in accordance with section 102 of the Criminal Proceedings Act, to pursue his compensation claim by means of a separate civil action for damages as he had not provided enough evidence to substantiate it.

The first applicant appealed, arguing that H. had already been convicted in earlier proceedings (see paragraphs 5-9 above). He requested that the court accordingly impose a more severe penalty. On 17 June 2009 the appellate court upheld the trial court’s judgment, finding no grounds to depart from the established facts and reasons provided.

On 7 September 2009 the first and second applicants lodged a criminal complaint against H. for breach of the inviolability of the home, alleging that on 29 July 2009 and on other occasions H. had again unlawfully gone onto the first applicant’s land and trespassed in his yard.

At the trial, H. stated that the applicants had objected to him using the road, which in his opinion was a public thoroughfare, because they considered it part of their property. He further stated that there was another road to his house, which he did not use. The court admitted in evidence a decision of 23 October 2008 in which the competent administrative authorities had ordered the wall to be demolished because it had been constructed unlawfully.

On 5 September 2012 the trial court convicted H. and sentenced him to one year’s imprisonment, suspended for three years. It further reprimanded him (судска опомена) for using insulting language to the second applicant in reply to the criminal complaint. The court relied on the final judgments in the previous proceedings against H. (see paragraphs 5-9 and 13-16 above) and took his previous convictions into consideration in determining the penalty. Lastly, it instructed the applicants to pursue their compensation claim by means of a separate civil action for damages.

The applicants appealed, arguing, inter alia, that the penalty that had been imposed would not fulfil the aims of punishment. On 16 April 2013 the appellate court dismissed the appeal, finding that the penalty would deter H. from reoffending.

The first applicant lodged a criminal complaint against a police officer who had carried out an on-site inspection related to the incident of 19 March 2005, but it was rejected by the public prosecutor. The latter found, inter alia, that the incident concerned a dispute between neighbours over their land.

On 19 March 2007 the applicants informed the police that despite the judgment of 7 July 2006 (see paragraph 10 above), H. had repeatedly entered the first applicant’s property and had incited some children to throw stones at their house.

On several occasions between 26 February 2010 and 11 September 2013, the applicants reported H. to the police for uttering insults, entering and damaging their property or threatening to kill them.

In 2013 the applicants initiated another set of criminal proceedings against H. on account of a breach of the inviolability of the home. It appears that the proceedings are still pending.

Under Article 39 § 4 of the Criminal Code, in determining the sentence of a person with previous convictions, the court will specifically consider whether the previous conviction was related to a similar offence as the new one, whether the offences were committed with the same motive, and what period of time has elapsed from the previous conviction or sentence, whether served or pardoned.

Under Article 49, a suspended sentence (условна осуда) means the court will impose a sentence and decide that it will not be enforced if the convicted person does not reoffend within a period determined by the court, which cannot be less than one year or longer than five (“the control period”). A suspended sentence may also entail the court determining that the sentence will be enforced if the convicted person does not return the proceeds of a crime, does not pay compensation for damage, or does not fulfill other obligations.

Under Article 51 § 1 the court shall revoke a suspended sentence during the control period if the convicted person commits one or more offences for which he or she is sentenced to imprisonment of two years or longer. Under Article 51 § 2, in cases of a less serious offence, the court assesses all the circumstances concerning the offences and the offender, especially the relation between the offences, their significance and the motives for them, and decides whether or not to revoke the suspended sentence. The court cannot impose a suspended prison sentence if the offender is to be sentenced to more than two years’ imprisonment for the initial and the new offences. Under Article 51 § 4 if the court does not revoke the suspended sentence it can pass another suspended sentence for the new offence. If the court finds that it should issue a suspended sentence for the new crime, it must determine a single sentence for the initial and new offence and a new control period. That period cannot be less than one year or longer than five.

Under Article 54 § 1, a suspended sentence may be revoked during the control period. If the convicted person commits an offence during that period which calls for the suspended sentence to be revoked and which was imposed by a final judgment after the expiry of the control period, the suspended sentence may be revoked within one year of the day of expiry of the control period. Under Article 54 § 2 if the convicted person does not fulfill some of the obligations referred to in Article 49, the court may decide, within a year of the expiry of the control period, that the suspended sentence should be enforced.

Under Article 145 § 1, any person who enters without authorisation another person’s home, a closed or fenced area belonging to that home, or private business premises designated as such, or does not leave such an area at the request of an authorised person, can be fined or imprisoned for one year.

Under Article 386 § 1, anyone who ill-treats or grossly insults another person, or threatens his safety or performs an act of gross violence against him and thereby causes a feeling of insecurity, threat or fear in the rest of the general public, can be imprisoned for between three months to three years.

Under Article 392 § 1, anyone who wilfully (самовласно) appropriates for himself a right or a right that he considers to be his own, can be fined or imprisoned for six months.

Chapter 10 of the Criminal Proceedings Act 1997 regulated pecuniary claims (имотно-правни барања) lodged in criminal proceedings. Under section 96 (renumbered to section 97 with the 2005 consolidated text of the Act, Official Gazette no. 15/2005) a compensation claim relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed those proceedings.

Under section 100 (section 101 of the consolidated text), the court could question the accused about the grounds of the compensation claim. If a decision on the compensation claim would significantly delay the proceedings, the court confined itself to gathering evidence which would be impossible or very difficult to gather at a later stage.

Section 101 (section 102 of the consolidated text) provided that if the court found the accused guilty, it could fully or partially decide the compensation claim. If the evidence in the criminal proceedings did not provide a sufficient basis for a decision on the compensation claim, and there was a danger that the criminal proceedings would be prolonged unjustifiably in order to obtain such evidence, the court could decide solely on the existence of the grounds for compensation, or on the grounds and partially on the compensation claim, and adopt a supplementary judgment (дополнителна пресуда) for the rest of the claim. If the amount of compensation could not be determined on the basis of other evidence or if obtaining such evidence would lead to significant delays in the proceedings, the court could decide on the compensation claim by awarding just satisfaction (правичен надоместок).

If the accused was acquitted, the indictment was rejected, or the proceedings were discontinued, the court was to instruct the victim to pursue his or her compensation claim in civil proceedings (section 101(3)).

Under section 494(1) (section 543(1) of the consolidated text), if a suspended prison sentence required the convicted person to return the proceeds of the crime, provide damages or fulfill other duties but which he failed to do, the trial court could revoke the suspended prison sentence on the proposal of an authorised plaintiff (овластен тужител) or of its own motion. If the court found that the obligations had not been fulfilled, it could issue a judgment prolonging the period for fulfilment, releasing the convicted person from fulfilment or replacing that duty with another one. It could also revoke the suspended sentence or decide that the suspended prison sentence be executed (section 494(4)).

Section 225 of the Enforcement Act provides that if after an enforcement title (извршна исправа) concerning disturbance of possession (смеќавање на посед) has been enforced the respondent again disturbs the possession in the same manner, a private bailiff can order a return to the status quo ante on the basis of the same enforcement title.

Under section 11(3) a court in civil proceedings is bound by a criminal court’s final decision in respect of the existence of the offence and the criminal liability of the offender.

The Government submitted a copy of three judgments in which the courts granted a request by victims of a crime for the revocation of a suspended prison term after the offender failed to pay compensation or fulfil other obligations (the payment of maintenance).