Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Ms Larisa Smiljan Pervan, is a Croatian national, who was born in 1973 and lives in Čavle. She was represented before the Court by Mr D. Smolić-Ročak, a lawyer practising in Rijeka.

The applicant works as a judge in the civil division of the Rijeka Municipal Court (Općinski sud u Rijeci).

As a result of the internal assignment of cases at the Rijeka Municipal Court, the applicant was assuming responsibility, as a trial judge, for cases nos. P-878/2008 and P-114/2011. The former concerned a property action brought by a local municipal council against an individual, represented by a lawyer, D.H., and the latter concerned a property dispute between two private parties in which the same lawyer, D.H., was representing the plaintiff.

On 4 January 2012 D.H. asked the President of the Rijeka Municipal Court to exclude the applicant from the case. D.H. argued that in the case at issue and several other cases in which she was acting as a lawyer, the applicant had displayed hostility towards her. In particular, at a hearing on 3 January 2012 the applicant had told D.H.’s client that she was not doing her job properly and in the client’s best interest.

On 1 March 2012 the President of the Rijeka Municipal Court, after examining a report submitted by the applicant, accepted the request and excluded the applicant from the case on the grounds that the requisite objectivity in the assessment of D.H.’s particular complaints required that the applicant be excluded from the case as the trial judge. The applicant was informed that she could not appeal against that decision.

On an unspecified date in 2012 the applicant lodged an appeal with the President of the Rijeka County Court (Županijski sud u Rijeci) against the above-mentioned decision.

On 26 April 2012 the President of the Rijeka County Court declared the applicant’s appeal inadmissible on the grounds that the decision at issue was not susceptible to appeal under the Civil Procedure Act, nor did it represent an administrative measure which could be challenged under the Administrative Procedure Act. The President pointed out that the rule on the exclusion of judges had been envisaged for the protection of the rights and interests of parties in the proceedings, and not for the promotion of the interests of judges. The President considered that in any event, in a situation in which a judge insisted on sitting in a case even though one of the parties’ representatives had reported a conflict with the judge, that in itself raised an issue as to the judge’s impartiality.

The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decision of the President of the Rijeka County Court.

On 3 October 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the impugned decision concerned neither her civil rights or obligations, nor any criminal charge against her. The decision of the Constitutional Court was served on the applicant’s representatives on 25 October 2012.

On 4 January 2012 D.H. asked the President of the Rijeka Municipal Court to exclude the applicant from the case. D.H. argued that in the case at issue the applicant had displayed hostility towards her, accusing her of not having sufficient legal knowledge and of failing to provide the proper legal instructions to her clients. As a result, the clients’ respect for DH had diminished.

The President of the Rijeka Municipal Court, after examining a report submitted by the applicant, accepted the request and on 1 March 2012 excluded the applicant from the case on the grounds that the requisite objectivity in the assessment of D.H.’s particular complaints required that the applicant be excluded from the case as the trial judge. The President indicated that the decision was not susceptible to appeal.

On an unspecified date in 2012 the applicant appealed against the above-mentioned decision to the President of the Rijeka County Court, arguing that there had been various substantive and procedural flaws.

On 26 April 2012 the President of the Rijeka County Court declared the applicant’s appeal inadmissible, reiterating the same reasons as it had given in case no. P-878/2008 (see paragraph 8 above).

The applicant then lodged an administrative action before the Rijeka Administrative Court (Upravni sud u Rijeci) and a constitutional complaint before the Constitutional Court. She argued that the decision of the President of the Rijeka County Court had affected her right to the normal performance of judicial work in the given case, as well as her professional dignity and the possibility of attaining her objectives.

On 29 June 2012 the Rijeka Administrative Court declared the applicant’s administrative action inadmissible. The relevant part of the decision reads:

“This court considers that the impugned decision does not concern any of the plaintiff’s rights or interests. Therefore, one of the cumulative prerequisites in order for an issue to be considered an administrative matter has not been met. The purpose of the rules on the exclusion of judges is to ensure objectivity in the conduct of proceedings. Objectivity is important for the protection of the parties’ rights and legality, not for the subjective rights and interests of judges. ...

The exclusion of a judge does not affect his or her rights under [the law on the courts organisation].There is no right of a judge to act in a particular case because the assignment of cases is regulated under the provisions on the organisation of the courts. The exclusion cannot be considered as an obstacle for a judge in reaching his or her objectives because the judge can work on other cases which have been assigned to him or her. ...

Furthermore, this court finds that the exclusion of a judge from a case does not affect his or her professional dignity. The provisions on exclusion ensure the impartiality of a judge in a given case, and it is a situation which every judge may encounter, irrespective of his or her professional qualities. Moreover, a decision on exclusion does not concern the professional qualities of a judge.

Lastly, against the above background, [this court finds that] the exclusion of a judge is not an administrative matter and thus the decision on exclusion is not an administrative act.”

The applicant lodged an appeal against the above decision with the High Administrative Court (Visoki Upravni sud Republike Hrvatske), reiterating her previous arguments.

On 27 September 2012 the High Administrative Court declared the applicant’s appeal inadmissible on the grounds that an appeal against the decision of the Rijeka Administrative Court was not allowed under the relevant domestic law.

The applicant then lodged a constitutional complaint before the Constitutional Court, challenging the decision of the High Administrative Court.

On 3 October 2012 the Constitutional Court declared the applicant’s constitutional complaint against the decision of the President of the Rijeka County Court (see paragraph 15 above) inadmissible on the grounds that the impugned decision concerned neither her civil rights or obligations, nor any criminal charge against her.

On 31 January 2013 the Constitutional Court, relying on the same reasons, declared the applicant’s constitutional complaint against the decision of the High Administrative Court (see paragraph 19 above) inadmissible. The decision of the Constitutional Court was served on the applicant’s representatives on 19 February 2013.

Constitution

The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske; Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows:

Article 29

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske; Official Gazette no. 49/2002) reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...

If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”

Civil Procedure Act

The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku; Official Gazette nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, and 57/2011) provide as follows:

Section 71

“A judge ... shall be disqualified from exercising his functions:

if other circumstances exist which cast doubt on his or her impartiality.”

“(1) The President of the court shall decide on the party’s request for the exclusion, unless otherwise provided under the law.

(4) When deciding on the request for exclusion [the President of the court] shall obtain a statement from the judge concerned and, if necessary, further information.

(5) The decision by which the request for exclusion is accepted is not susceptible to appeal and the decision rejecting or dismissing the request is not susceptible to special appeal.”

Administrative Procedure Act

The relevant provision of the Administrative Procedure Act (Zakon o općem upravnom postupku; Official Gazette no. 47/2009) provide as follows:

“(1) An administrative matter is any issue in which a public authority in administrative proceedings decides on the rights, obligations and legal interests of a physical or legal person or other entities (hereinafter: the parties) by immediate application of the law, regulations and other general decisions relevant to a particular administrative issue.

(2) An administrative matter is also any issue which is so designated under the law.”

Courts Act

The relevant provisions of the Courts Act (Zakon o sudovima; Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011, and 13/2011) provide:

“(1) The conduct of a judge must be governed with due respect for his or her dignity and the dignity of the judiciary, and must not put into question his or her professional impartiality and independence, or the independence of the judiciary.”

“A judge has the following rights:

- adequate remuneration,

- a bonus payable when he or she is transferred to another court,

- adequate compensation, instead of a salary, when he or she is unable to perform his or her judicial function,

- pension, disability and health insurance, and all rights pertaining thereto, in accordance with the relevant general regulations,

- leave granted to judicial staff and annual leave of 30 working days,

- compensation for the relevant expenses as provided for under the law,

- an allowance in the event of separation from his or her family, and travel expenses to the place of residence of his or her family at weekends and during national holidays,

- compensation for official journeys and expenses related to his or her judicial duty,

- continuing education and specialisation training from the funds allocated for that purpose.

(2) The amount of bonus payable to a judge transferred to another court shall be determined by ordinance of the Minister of Justice.”

Rules of Courts

The relevant provision of the Rules of Courts (Sudski poslovnik; Official Gazette nos. 158/2009, 3/2011, 34/2011, 100/2011, 123/2011, 138/2011, and 38/2012) provides:

“(1) Court administration issues are all those measures required to ensure adequate working conditions and functioning of the courts.

(2) Those are, in particular:

- professional measures for guaranteeing the rights and duties of civil servants and judges in the courts, ...”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained of the inadequate conditions of their detention.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1967 and lives in Rochefort, France.

The applicant was in a relationship with C.B., a French and Austrian national. Their sons (twins), also of French and Austrian nationality, were born on 3 March 2006. The family had been living together in Rochefort and the applicant and C.B. had joint custody of the children under French law.

On 10 December 2008 the applicant and C.B. had a dispute, which resulted in C.B. leaving their home with the two children. She claimed that she would return two days later.

On 13 December 2008, instead of coming back home, C.B. went with the children to stay with her parents in Golfe-Juan in the south of France. She informed the police of this fact.

On 17 December 2008 C.B. notified the police in Fréjus that she intended to move to Vienna, where she had already taken her main residence.

On 18 December 2008, however, she notified the police in Rochefort that she was living with her parents and that her lawyer would inform the applicant of her whereabouts. Nonetheless, the same day C.B., her mother and the children left France and travelled to Vienna.

On 7 January 2009 the family judge at the Rochefort tribunal de grande instance, after an oral hearing on 31 December 2008, issued an interim injunction at the applicant’s request, ruling that he and C.B. had joint custody, but that the children’s main residence was with their father. The court also proceeded to determine C.B.’s contact rights. It noted that C.B., being absent from the oral hearing, had been duly summoned to attend.

On 16 March 2010 the Rochefort investigating judge issued an arrest warrant against C.B. and on 11 June 2010 the Rochefort tribunal de grande instance issued a European Arrest Warrant (EAW) against her for unlawful removal of the children from France.

On 5 July 2011 the Poitiers Court of Appeal upheld the interim injunction issued by the Rochefort tribunal de grande instance on 7 January 2009 on the above-mentioned points (see paragraph 12 above).

On 26 January 2012 the competent public prosecutor decided not to institute a preliminary investigation against the applicant, who had been accused of sexual assault by C.B. in a complaint lodged with the French authorities on 15 December 2011.

On 25 April 2013 the La Rochelle tribunal correctionnel convicted C.B. of child abduction and sentenced her to one year’s imprisonment. In addition, she was ordered to pay the applicant 25,000 euros (EUR) in damages. C.B. subsequently lodged an appeal against that decision, but withdrew it on 29 May 2013.

On 6 June 2013 the Court of Cassation dismissed an appeal on points of law by C.B. against the Poitiers Court of Appeal’s decision of 5 July 2011.

On 23 December 2008 the Vienna District Court (“the District Court) granted a request by C.B. for an interim injunction against the applicant, ordering him to refrain from contacting her for a period of three months. The court based its decision on statements given by C.B. according to which the applicant had threatened to kill her and had tried to abduct one of the children.

On the same day the mayor of Vienna granted a request by C.B. for a ban on disclosing information (Auskunftssperre) under the relevant provision of the Residence Registration Act (Meldegesetz).

On 27 February 2009 the applicant lodged a complaint against C.B. with the Austrian criminal authorities for suspected child abduction.

On 17 March 2009 the District Court dismissed a request by C.B. for an extension of the interim injunction granted against the applicant on 23 December 2008.

On 7 April 2009 C.B. filed a new request with the District Court for an interim injunction against the applicant, this time claiming that they were all at risk of physical harm and the children at risk of sexual abuse. The request was dismissed on 22 April 2009.

On 22 May 2009 the Vienna public prosecutor’s office (Staatsanwaltschaft) informed the applicant that the criminal investigation it had initiated against him for the aggravated sexual abuse of minors had been discontinued.

On 25 May 2011 the public prosecutor’s office informed the applicant that the criminal investigation against C.B. in Austria for child abduction had been discontinued.

On 25 February 2009 the applicant lodged a request with the District Court for the children’s return, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).

On 6 April 2009 the District Court, after hearing the applicant and C.B. in person, ordered C.B. to return the children to the applicant. It found that C.B.’s allegations of sexual abuse of the children directed against the applicant could not be proven by her or her mother’s statements, or reports obtained from the Child Protection Centre (Kinderschutzzentrum). It argued that she had raised that suspicion rather late in the proceedings, and that the Child Protection Centre’s reports mainly relied on her and her mother’s allegations. Furthermore, the Child Protection Centre’s first report, dated 4 March 2009, did not contain any information about alleged sexual abuse, while the reasoning in the second report, dated 14 March 2009, why certain observations of the children’s behaviour would allude to sexual abuse by their father, was considered to be unsubstantiated. The District Court further held that the children’s removal had been wrongful within the meaning of Article 3 of the Hague Convention and that C.B. had failed to establish that their return would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation pursuant to Article 13 (b) of the Hague Convention.

C.B. appealed against that decision.

On 25 June 2009 the Vienna Regional Court (“the Regional Court”) partly allowed C.B.’s appeal and amended the decision in so far as it ordered the children’s immediate return to France (and not to the applicant). Under point 3 of the decision, it further declared that the decision would only become effective if the French authorities demonstrated that they would take adequate measures to protect the children’s best interests in France after their return, in particular with regard to the suspicion of sexual abuse and in accordance with Article 11 (4) of the Brussels IIa Regulation. It held that neither tactical reasons for the mother’s allegations of sexual abuse nor interference with the children’s best interests after their return to their father’s place could be excluded.

On 13 October 2009 the Supreme Court dismissed an appeal by C.B. against the Regional Court’s decision. However, it partly allowed an appeal by the applicant and removed point 3 from the impugned decision. Since it had not been established that he actually posed a threat to the children or that there were any other obstacles to their return, there was no reason to make the return order dependent on the safeguards which could be furnished by the French authorities under Article 11 (4) of the Brussels IIa Regulation (“safe harbour orders”).

On 18 November 2009 the applicant filed a request with the District Court for enforcement of the return order.

On 21 November 2009 a court bailiff (huissier de justice) in Nice confirmed that C.B. and the children had presented themselves to her. In submissions to the District Court of 24 November 2009, C.B. claimed to have fulfilled the conditions set out in the decisions of the Regional Court and the Supreme Court by returning the children to France (and not to the applicant).

On 2 December 2009 the applicant informed the District Court of his suspicion that C.B. had meanwhile left France again and travelled back to Austria.

On 6 December 2009 the District Court ordered a bailiff (Gerichtsvollzieher) to remove the children from C.B. and hand them over to the Youth Welfare Office.

On 7 December 2009 the competent judge, the bailiff and a representative of the Youth Welfare Office looked for C.B. and the children at her and her mother’s addresses in Vienna. However, the enforcement attempt was unsuccessful as neither C.B. nor the children were present at the addresses known to the authorities’ representatives. However, they did see C.B.’s mother and a friend of hers, who stated that C.B. was currently hiding in France with her children but would have to come back to Vienna for work. Afterwards the applicant, who had been waiting nearby, was informed of the authorities’ unsuccessful attempt to trace C.B. and their children that day. The incidents were reported in a letter to the president of the District Court, including a statement that the court currently regarded the “issue” as “terminated”.

C.B. subsequently appealed against the District Court’s enforcement order of 6 December 2009, and on 24 December 2009 she filed a request for the court to refrain from enforcing the return order (Antrag auf Abstandnahme von der Fortsetzung des Rückführungsverfahrens).

On 22 February 2010 the applicant requested that the District Court disclose C.B.’s address, which had been kept secret from him.

On 2 April 2010 the District Court granted the applicant’s request, holding that the ban on disclosure was no longer justified.

On the same day the District Court dismissed C.B.’s request for nonenforcement of the return order.

On 13 April 2010 the Regional Court rejected C.B.’s appeal against the District Court’s enforcement order of 6 December 2009. It held that she was no longer adversely affected by the impugned decision as the enforcement date had already passed before she had filed the appeal. However, as an obiter dictum it pointed out that, according to recent reports from the Child Protection Centre, the children’s accounts of alleged ill treatment by their father had become more precise in the meantime, which constituted a substantial change in the circumstances on which the return order had been based. Contrary to the outcome of the main proceedings under the Brussels IIa Regulation and the Hague Convention, the Regional Court therefore considered the obligation under Article 11 (4) of the Brussels IIa Regulation to be applicable in that the District Court would have to ask the French authorities to use safeguards to ensure that the return of the children was in their best interests, such as not to return them to the applicant in person while the suspicion of abuse against him remained.

On 16 April 2010 the applicant filed a new request for enforcement of the return order, stating that in another set of proceedings before a court in Rochefort C.B.’s representative had informed the court that her current address was her mother’s in Vienna, where for the purposes of enforcement of the return order C.B. and the children had been searched for by the competent authorities on 7 December 2009 (see paragraph 34 above).

On 26 April 2010 C.B. filed a new request for the District Court to refrain from enforcing the return order, which was dismissed on 26 July 2010. She also submitted a psychiatric opinion, dated 29 March 2010 and commissioned by the Vienna Youth Welfare Office. The expert stated that the children seemed to be traumatised and suffering from post-traumatic stress disorder, possibly due to assaults by their father which could not be specified any further; thus, even assuming that C.B. had also attempted to alienate her children from the applicant, their return to their father would in any event trigger fear and panic reactions contrary to their best interests.

On 21 September 2010 the Regional Court dismissed appeals by C.B. against the decisions of 2 April 2010 and 26 July 2010 concerning her requests for non-enforcement of the return order. It further rejected an appeal by her against the District Court’s decision of 2 April 2010, ordering the disclosure of her address to the applicant. However, it held again that it would be the District Court’s task to obtain safeguards from the French authorities to avoid the children being exposed to a grave risk of physical or psychological harm.

On 20 October 2010 the Supreme Court rejected an extraordinary appeal on points of law by C.B. against the Regional Court’s decision of 13 April 2010. It upheld the Regional Court’s reasoning in so far as C.B. was no longer adversely affected by the impugned decision (see paragraph 39 above), but held that it was for the court of first instance to examine whether the circumstances had changed in the meantime in such a way that the enforcement of the return order would now entail a grave risk for the children.

On 23 November 2010 the Supreme Court rejected an extraordinary appeal on points of law by C.B. against the Regional Court’s decision of 21 September 2010. It noted that the District Court had already contacted the French Central Authority by letter in accordance with Article 11 (4) of the Brussels IIa Regulation, and that the enforcement of a return order under the Hague Convention could only be stopped if it was established that there were no adequate safeguards to protect the children’s best interests upon their return to France. It therefore called upon the District Court to examine the adequacy of the safeguards offered by the French authorities.

On 14 January 2011 the District Court held an oral hearing to examine how best to approach the question whether the children would face a grave risk of harm upon their return to France. The competent judge also requested that C.B. inform her of all the proceedings then pending in France.

On 26 January 2011 the judge appointed an expert psychologist, S., and ordered her to submit a report on whether the children’s return to France (either to their father or to a child protection institution) could harm their psychological development. The judge pointed out, inter alia, that due to the arrest warrants (see paragraph 13 above) C.B. was likely to be arrested as soon as she returned the children to France herself, and that the expert’s observation of the father’s and the children’s interactions with each other would be of significant importance with a view to the accusations of ill-treatment directed against him. All the parties were ordered to cooperate with the expert.

On 4 February 2011 C.B.’s counsel submitted to the court the requested information concerning the pending proceedings in France (custody proceedings, criminal proceedings against C.B. for child abduction, and criminal proceedings against the applicant for sexual abuse) (see paragraphs 12 – 17 above).

On 15 March 2011 C.B. informed the court that the children would not be able to attend the scheduled examination by the appointed expert due to illness; she also submitted a medical certificate describing the children’s illness.

On 21 March 2011 C.B. challenged the judge and S. for bias. The president of the District Court dismissed the challenge for bias against the judge on 25 May 2011. C.B. subsequently appealed against that decision and submitted new challenges for bias against the competent judge of the District Court again as well as the panel of judges of the Regional Court which had given the decision of 21 September 2010 (see paragraph 42 above). The District Court, the Regional Court and the Vienna Court of Appeal each subsequently ruled on these challenges for bias and on C.B.’s respective appeals. Her allegations were dismissed with final effect on 7 December 2011 by the Regional Court, which, inter alia, considered C.B.’s allegations to be unfounded and that she had lodged several challenges for bias for tactical reasons.

On 7 March 2012 the District Court dismissed C.B.’s challenge against the expert S.

On 8 March 2012 the District Court removed S. from the case and appointed another expert psychologist, R. who, unlike S., was a specialist in traumatology. It referred to the Court’s judgment in the case of Šneersone and Kampanella v. Italy (no. 14737/09, 12 July 2011), in which the Court found a violation of Article 8 because the domestic courts in that case had not adequately taken into consideration the risk of psychological trauma that would inevitably stem from a sudden and irreversible cutting of the close ties between mother and child.

On 5 April 2012 R. submitted her expert opinion to the District Court; two further psychological opinions were privately commissioned by C.B. and submitted by her counsel to the court at the same stage of the proceedings.

On 13 August 2012 the District Court dismissed the applicant’s request of 16 April 2010 for enforcement of the return order (see paragraph 40 above). Referring to the three expert opinions mentioned above (see paragraph 52 above), in particular the one obtained from R., it held that the children had been severely traumatised by all the events which had occurred in their family since 2008, that they were suffering from severe post-traumatic stress disorder, and that a separation from their mother and their return to France would very likely trigger an existential crisis and gravely harm their emotional and cognitive development. The court did not deny that the mother’s adverse influence on the children regarding their father had also contributed to their negative attitude towards him. However, it also stated that the allegations of sexual abuse against him could neither be proven nor excluded. Regarding the statement on the applicant’s mental health in the psychiatric opinion forwarded by the French Central Authority (see paragraph 72 below), the District Court considered that the report had not been drawn up in accordance with the Austrian standards for examining a person’s educational skills as it had only been based on the applicant’s interview with the expert and no psychological tests had been carried out. In contrast, the three expert opinions (see paragraph 52 above) were not only based on C.B.’s allegations, but also on psychological tests of the children and their mother. However, in her examination of the case R. did not hold a meeting between the children and the applicant as such an interaction would have very likely resulted in the children being further traumatised.

In its reasoning, the District Court further reiterated that a court could only refuse to return a child for the reasons set out under Article 13 (b) of the Hague Convention if it was not established that adequate measures to protect the child’s best interests after his or her return would be taken. In August 2010 it had therefore requested that the French authorities provide the appropriate safeguards. According to the French Central Authority’s answers by letters of 23 May and 8 July 2011, all conditions would be met to ensure that the children were returned without any risk; they also stated that the children would not be immediately entrusted to the applicant upon their return. The District Court concluded therefore that the children would temporarily be put into foster care, which was contrary to their best interests. It also pointed out that on 26 March 2012 it had held a hearing to discuss possible scenarios concerning the children’s return to France and to consider alternative ways of reestablishing contact between the applicant and the children. Since the applicant had failed to attend the hearing without providing any excuse, the court assumed that the purpose of the proceedings seemed to be more for him to argue out his conflict with C.B. than for the children’s return to France. It further held that a balancing of the competing interests of those involved had to be carried out in such a case, and that the children’s interests were of paramount importance. Referring to the case of Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, ECHR 2010), the court stated that the possibility of the children being further traumatised, the serious difficulties that they would be likely to encounter under new living conditions in France and the lack of adequate safeguards were reasons why the return order could not be enforced. Instead, psychologically assisted contact between the applicant and the children should be slowly re-established in Austria.

The applicant appealed against the decision and challenged the judge for bias.

On 1 October 2012 the District Court dismissed the challenge for bias. The decision was upheld by the Regional Court on 20 February 2013.

On 7 May 2013 the Regional Court dismissed an appeal by the applicant against the District Court’s decision of 13 August 2012 (see paragraph 53 and 54 above), upholding its reasoning and adding that, due to the arrest warrant against C.B., the children would likely be put into foster care without their mother.

On 28 August 2013 the Supreme Court quashed the District Court’s decision of 13 August 2012 and the Regional Court’s decision of 7 May 2013 and remitted the case. It observed that under the Hague Convention the court dealing with an application for return should act expeditiously when deciding it and, subsequently, when providing for the enforcement of an already issued return order. It would be contrary to that obligation if the court delayed or possibly impeded the return of a child by not ruling or by belatedly deciding the parties’ requests. In that context, it noted that in the present case, after the District Court had delivered its decision on 13 August 2012, eleven months had already elapsed before the case eventually came before it. The delay in the return proceedings caused by the abducting parent’s behaviour was not a fact which by itself exempted the authorities from their obligation to swiftly and adequately implement their duties under international law.

However, the Supreme Court conceded that, given that the children had meanwhile adapted well to living in Austria and their mental health had become stable, their well-being would be gravely put at risk if the return order was enforced without any safeguards. Nonetheless, it noted that this development was mainly due to the fact that almost four years had elapsed since the return order had become final in October 2009. Therefore, the return order was still enforceable as long as it was not established that no adequate measures would be taken to protect the children’s best interests upon their return to France. The Supreme Court therefore ordered the District Court to clarify whether the arrest warrant issued against C.B. in France could be lifted, to assess whether C.B.’s mother in place of C.B. would be willing to accompany the children to France and care for them in a child protection institution, and to obtain the French authorities’ assurance that the children could live in a child protection institution as close to the applicant as possible. It further held that it was for the applicant to apply to the competent authorities in France for temporary care for his children in a child protection institution, and that it was not for the Austrian courts to establish contact between him and the children under Article 11 (4) of the Brussels IIa Regulation since the establishment of contact for the purposes of the enforcement of a return order fell within the competence of the authorities of the State from which the children had been abducted.

On 15 November 2013 the District Court asked the French authorities for information as requested by the Supreme Court in its decision of 28 August 2013.

On 31 October 2014, after another oral hearing on 29 August 2014 and a telephone conversation with the public prosecutor at the Poitiers Court of Appeal on 3 September 2014, the District Court again dismissed the applicant’s request of 16 April 2010 for enforcement of the return order (see paragraph 40 above). It held that C.B.’s mother was unwilling to stay temporarily with the children in France after their return and that, in any event, C.B. had to start serving her prison sentence once she entered France. It further noted that the French authorities had formulated different ways of avoiding the children’s separation from their mother, but could not give any guarantees in advance; instead, they had pointed out that C.B. first had to return the children to France before any concrete measures could be taken. The District Court therefore concluded that the French authorities had failed to devise an exact plan which, in particular, would avoid the children being immediately separated from their mother. Given that the children would probably be placed in a child protection institution in a (for them) foreign country and without any familiar caregivers around, there would be a severe risk of harm for them within the meaning of Article 13 (b) of the Hague Convention if they were returned to France.

On 11 February 2015 the Regional Court dismissed an appeal by the applicant against the District Court’s decision of 31 October 2014. It conceded that C.B.’s behaviour concerning the removal of the children from France in itself, but also with regard to her delaying tactics in the present proceedings, was unacceptable. However, it was now for the Austrian courts only to decide whether the requirements of Article 11 (4) of the Brussels IIa Regulation were fulfilled, namely whether the children could be returned to France without being separated from their mother. In this regard, it held that the District Court had correctly concluded that the requirements of Article 11 (4) were not fulfilled, since the French authorities had not provided sufficient guarantees to ensure that the children would not suffer severe harm upon their return. It had not been established that the children could stay with C.B. while she was serving her prison sentence, and since their grandmother was unwilling to accompany them to France, they would be left without any caregivers familiar to them.

Regarding the applicant’s allegations that the District Court had failed to contact the relevant French authorities and to ask the right questions, the Regional Court held that the French authorities had merely referred to general alternatives without offering any precise answers to the Austrian courts’ concerns. The court considered that the District Court had already made sufficient attempts to obtain concrete guarantees from the French authorities as it was mainly their responsibility to take adequate measures. In particular, the French authorities should have given an undertaking that the decision of 7 January 2009 provisionally determining the children’s main residence with their father would be revoked and that, despite the prison sentence, C.B. would be granted safe conduct in order to be able to participate in the custody proceedings in France. The Regional Court also considered that the applicant’s conduct was not in the children’s best interests either, since the enforcement of the decision of 7 January 2009 and C.B.’s criminal conviction appeared to be more important to him than their well-being, and he did not even realise the seriousness of the burden to which he would expose his children if they were forced to return to him after not having seen him for more than six years. In sum, the Regional Court concluded that because of a lack of adequate “safe harbour orders” the children’s return to France entailed a grave risk for them; furthermore, since they had meanwhile adapted well to living in Vienna, their uprooting would very likely also lead to a severe endangerment of their well-being.

On 30 March 2015 the applicant filed an extraordinary appeal on points of law.

On 27 April 2015 the Supreme Court rejected the extraordinary appeal on points of law. It confirmed that the children’s separation from their mother in the event of their return to France could still not be excluded because of C.B.’s prison sentence, and that such separation would very likely severely traumatise and psychologically harm them within the meaning of Article 13 (b) of the Hague Convention. It reiterated that the return of the children could not be refused if it was established that the French authorities had made adequate arrangements to protect the children’s best interests upon their return. However, if there remained doubts in this respect, the return would have to be refused. Since the measures as set out by the French authorities had to be considered insufficient to secure the protection of the children upon their return, the non-enforcement of the return order was justified. Nonetheless, the Supreme Court pointed out that the decision was primarily based on what seemed best for the children’s well-being and did not necessarily lead to the conclusion that C.B.’s conduct had been lawful. Lastly, it observed that the applicant still had the possibility of applying to the Austrian courts for contact rights.

The decision was served on the applicant on 19 May 2015.

In a letter of 6 February 2017 the District Court stated that, to date, the applicant had not applied to the Austrian courts for contact rights.

The French Central Authority (bureau de l’entraide civile et commerciale international) at the Ministry of Justice (hereinafter “the FCA”) and its Austrian counterpart at the Federal Ministry of Justice (hereinafter “the ACA”) remained in contact throughout all of the abovementioned proceedings. In their letters, the officials in charge of the case regularly discussed how to protect the children’s best interests upon their return to the applicant. The FCA sent several requests to its counterpart for information on the progress of the case, in particular on the measures taken by the Austrian authorities to locate C.B. and the children and the reasons why the return order had not been enforced. The ACA informed its French counterpart of the respective state of the proceedings, referred to the parties’ requests and appeals as obstacles to the continuation of the enforcement of the return order and considered the actual address of C.B. and the children to be unknown. Regarding the ACA’s requests for safeguards to secure the protection of the children, the FCA pointed out at the beginning of the enforcement proceedings that there were no obstacles impeding the children’s return to their father as the competent French judge had already determined that their main residence was at his home; thus, the French Youth Welfare Office would not be notified of the children’s return to France. However, on 27 November 2009 the FCA confirmed in a letter to the ACA that if the children returned to France, a social worker would meet them at the airport in Paris and take them to their father.

In May and August 2010 the competent judge at the District Court twice requested that the FCA help her establish contact with the judge competent in childcare matters (juge des enfants – hereinafter “the children’s judge”) in France because she had doubts as to whether the immediate return of the children to their father would expose them to grave harm and therefore preferred temporary social care for them.

On 4 February 2011 the FCA informed its Austrian counterpart that it had been suggested to the public prosecutor in charge of childcare matters that the case be brought before the children’s judge in accordance with Article 11 (4) of the Brussels IIa Regulation, and that the public prosecutor had indicated a wish to do so.

On 7 February 2011 the children’s judge at the La Rochelle tribunal de grande instance appointed an expert psychiatrist and ordered him to deliver a report on whether the applicant was suffering from any form of mental illness; on the same day he ordered the STEMOI (Service territorial éducatif de milieu ouvert et d’insertion, a youth welfare service) in La Rochelle to examine the living conditions at the applicant’s home and his educational and emotional skills.

On 6 April 2011 the FCA submitted the psychiatric opinion obtained by the children’s judge, which stated that the applicant did not suffer from any form of mental illness, could meet a child’s needs and was very much devoted to his children.

On 23 May 2011 the FCA submitted the STEMOI’s pre-report which confirmed that the living conditions provided by the applicant were appropriate to accommodate his children; however, the STEMOI would only be able to assess the applicant’s educational and emotional skills once the children were returned to him.

In a letter of 8 July 2011 the FCA confirmed, in reply to the Austrian authorities’ concerns about an immediate return of the children to the applicant and their proposal of temporary social care, that the children would not be entrusted to their father right after their return, and that the children’s judge would monitor their best interests and, if need be, take measures of educational support.

On 12 August 2011 the FCA submitted a judgment given by the children’s judge of the La Rochelle tribunal de grande instance on 27 July 2011, which stated that no measures of educational support for the applicant had to be taken at that time. According to the evidence taken so far (see paragraphs 72 and 73 above), the applicant was able to provide appropriate living conditions for his children and did not suffer from any form of mental illness or sexually deviant behaviour. His educational and emotional skills could only be assessed upon the children’s effective return to France, and by the time of their return concrete measures could again be taken into consideration.

Following the Supreme Court’s decision of 28 August 2013 (see paragraph 58 above), on 23 December 2013 the FCA informed its Austrian counterpart that it had forwarded the District Court’s request of 15 November 2013 (see paragraph 60 above) to the public prosecutor at the Poitiers Court of Appeal, suggesting that the case again be brought before the children’s judge at the La Rochelle tribunal de grande instance.

In a letter of 14 March 2014 the FCA submitted a report which the public prosecutor at the Poitiers Court of Appeal had made on 14 February 2014, in reply to the District Court’s request of 15 November 2013 (see paragraph 60 above). According to the report, C.B., due to the arrest warrant against her, was registered in the French register of persons being searched for by the criminal authorities (fichier des personnes recherchées – “FPR”); thus, she could immediately be arrested once she entered France. However, in the event of her return to France together with her children, the public prosecutor would be prepared to withdraw her from the FPR on the grounds that the children’s return would make it possible for the applicant to see his children, so that the objective of the arrest warrant would then also be achieved. Hence, C.B. would not risk immediate arrest if she entered France. The public prosecutor however noted that in any event C.B. would have to start serving her prison sentence, and that suspending it from the outset would not be possible. She could however apply to serve the sentence under electronic surveillance immediately after being imprisoned if she proved that she had a residence in France. After serving half of the sentence she could then apply for conditional release, which could even be granted earlier if she proved that her children were living with her. As to the civillaw issues of the District Court’s request of 15 November 2013, the public prosecutor referred to the children’s judge’s decision of 27 July 2011 (see paragraph 75 above).

In their letter of 14 March 2014, the FCA complemented the public prosecutor’s report by explaining that the children’s judge could order that the children be placed either with their mother, another member of the family or a trusted third party, or eventually in an institution, possibly in the vicinity of the applicant’s home. Such an order would overrule the decision of the Rochefort tribunal de grande instance family judge of 7 January 2009, which had determined that the children’s main residence was with their father. As for C.B.’s prison sentence, it was recommended that she or her counsel contact the competent public prosecutor in advance and already prepare the necessary applications, since it could not be excluded that she would be questioned by the judge in charge of the review of her punishment as early as on the first day of her detention.

On 15 April 2014 the FCA submitted confirmation by the children’s judge dated 8 April 2014 that as soon as the effective return of the children was fixed by the Austrian authorities he would be prepared to order temporary foster care for them and educational support for the father to reestablish the ties between them.

On 1 July 2014 the FCA submitted another report from the public prosecutor at the Poitiers Court of Appeal which, in reply to another questionnaire of the District Court, repeated the conditions under which C.B. could apply for conditional release. It further stated that the children would not be allowed to stay at the detention centre while C.B. was serving her sentence. During that time they would be cared for by their father or by the Youth Welfare Office. Instead of temporary foster care, the children’s judge could order educational support in an “open setting” consisting of a team of social workers assisting the father with his children. If the exact return date was not communicated by the Austrian authorities in advance and an interim measure had to be adopted quickly due to C.B.’s detention, the public prosecutor would have to order temporary foster care for the children and would have eight days to bring the case before the children’s judge, who would then have to take the necessary steps.


CASE OF INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant company, Instytut Ekonomichnykh Reform (a limited liability company), is the editorial body of the Evening News newspaper (Вечерние Вести), registered in Ukraine. According to the applicant company, at the material time the newspaper was one of the top nationwide dailies in Ukraine by circulation and was closely associated with Ms Yuliya Tymoshenko, a political leader.

In the 1990s Ms Ganna German worked as a newspaper journalist in Lviv. In the early 2000s she headed the Kyiv bureau of Radio Free Europe/Radio Liberty. In 2004 she became a spokesperson for the then-Prime Minister, Victor Yanukovych, a move which was widely perceived as constituting a significant change of sides in the political debate on Ms German’s part. In May 2006 she was elected as a member of parliament on the list of the Party of Regions, led by Mr Yanukovych. At the material time she frequently presented her party’s and Mr Yanukovych’s views on various television and radio programmes and debates.

On 2 April 2007 the President of Ukraine issued a decree dissolving Parliament. This decree led to an acute constitutional crisis, with the parliamentary majority, grouped around the Party of Regions, initially refusing to comply with the decree. Fresh parliamentary elections were originally scheduled for 27 May 2007 but were postponed; they eventually took place on 30 September 2007. Political parties led by Mr Yanukovych and Ms Tymoshenko won the largest numbers of votes.

On 21 May 2007 Evening News published an article entitled “How I became a victim of demagogues” (Как я стал жертвой демагогов) written by Mr I. Tkalenko (“the author”).

The relevant extracts from the article read as follows:

“On Friday evening Yuliya Tymoshenko almost lost one of her fans ... I am embarrassed to admit that I almost went over to Yanukovych’s side ...

And it’s Ganna German’s fault. She was talking live on BBC radio and she almost persuaded me. She said that they had eleven million supporters in Ukraine and that the party numbered one million members. I was dumbfounded!

And of course I was impressed by her eloquence. How beautifully she speaks, what a well-trained voice and proper intonation she has. She uses not only words but intonation, communicating non-verbally as well ... Of course, she is such a professional ...

I thought that after her speech another five hundred thousand would join the Party of Regions. I used to think that one could easily debate with Ganna German. I put myself in Ganna German’s position and it seemed that she must be feeling very uncomfortable.

I thoughtlessly believed that the question “Ms Ganna, what are you doing in this gang?” should make her blush and lower her gaze. She, a nationalist, should be ashamed to belong to this group of Ukraine haters (украиноненавистническую компанию).

Ms Ganna dropped hints about not being a rich person, which means that money was evidently not the least motivation for her decision to work for Yanukovych. And although she does it for money, she does it with such devoted artistry that it made me want to cry out, contrary to Stanislavsky: “I believe you! Ms Ganna, I believe you!”

I did almost believe her.

As a journalist and someone who knows Ganna personally, and someone who has even learned from her (I learned from her how not to write), I have constantly tried to put myself in her position.

I certainly understand, Ms Ganna, that it’s about the money ...

But it can’t be that kind of money! A thousand, really? A thousand bucks? Or more?

I think any Ukrainian journalist would sell himself to Yanukovych for that much money – for a thousand bucks. I don’t even know if I myself would be able to resist. What would I say to my wife, to my friends? I would say: “You don’t know Yanukovych. I know Victor Fyodorovich personally. I have talked with him a lot. He is a great guy ...”

What if I were given more than a thousand bucks a month? And [if I had an offer] to become a member of parliament, as in Ganna German’s case? That is, for a flat in Kyiv? I believe that all journalists dream of selling themselves for a flat in Kyiv, even those who already have one. One does not have to do anything complicated for this. One just has to say, with beautiful diction and intonation, that Yanukovych is a lost sheep that has finally found the right path and constantly thanks God for it ...

I could also say those things. For a flat in Kyiv. And many other simple country guys could say those things for a flat in Kyiv. The problem is, however, that Yanukovich wouldn’t give just anyone a flat in Kyiv. We don’t have many stars, like Ganna German, [whose worth is] that of a flat in Kyiv (Мало у нас таких звезд, как Анна Герман, которые стоят, как квартира в Киеве). By the way, for the cost of an MP’s flat one could maintain the editorial staff of a daily newspaper for five to ten years (depending on what kind of flat it is). And each and every one of them would write about what criminals and falsifiers the members of the Orange Party are and what a wise, honest and principled man our Victor Fyodorovich is.

I listened to Ganna German and I wish I were as lucky as she is. I wish I could sell myself like that! That is of course the highest point in a journalist’s career. Not even for a flat. At least ten thousand bucks, but all in one go. Alright, for five thousand. Even three. Or for a monthly salary of eight hundred dollars. And I am wholly yours. Or at least six hundred ... But no less than five hundred.

All of this is a joke. Pardon me for ... the irony. This is irony, although somebody may consider it sarcasm. No, it isn’t sarcasm.

According to [the] Ozhegov [dictionary], “demagoguery” is “influencing the feelings and instincts of those with low-level awareness on the basis of the deliberate distortion of facts”. For a long time I suffered from not being able to argue with such demagogues as Ganna German, Taras Chornovil, Kinakh, and all the [members of the Party of Regions] and communists. It is not possible to argue logically with them. An intelligent man can hardly stay emotionally composed listening to them.

When I was on Shuster’s [television programme], [fellow guest] Zhvaniya gave me a tip. It’s irony. The thing is that demagoguery requires artistry. An intelligent man can feel the falsity but cannot put his finger on it. At this point you need irony to make the demagogue’s statements sound absurd ...”

On 18 July 2007 Ms German lodged a defamation claim with the Kyiv Pecherskyy District Court against the applicant company and the article’s author. She sought a retraction – in the form of the publication of a court judgment in her favour – of the allegedly false statements made in the article concerning her alleged acquisition of a flat,. She also sought compensation for non-pecuniary damage. The applicant company maintained that the statements in question had constituted a value judgment in respect of the legal provision entitling members of parliament to housing support.

On 18 December 2007 the District Court allowed the plaintiff’s claims in part. It found that the following extracts constituted an untrue statement:

“And [if I had an offer] to become a member of parliament, as in Ganna German’s case? That is, for a flat in Kyiv? ...

The problem is, however, that Yanukovych wouldn’t give anyone a flat in Kyiv. We don’t have many stars, like Ganna German, [whose worth is] that of a flat in Kyiv.”

The court found that the plaintiff had not requested or received a flat in her capacity as a member of parliament; she had bought her own flat in 2001, before she had been elected. The court considered that the above statements suggested that the plaintiff had become a member of parliament for the sole purpose of obtaining a flat in Kyiv. In the court’s view this was not a value judgment because only concrete information as to whether Ms German had exercised her entitlement to housing support could serve as the basis for such statements. Rather, the statements in question constituted statements of fact which had not been verified or proved by either of the defendants, and were negative and insulting to the plaintiff.

Relying in particular on the provisions of the Civil Code and of the Information Act and referring to the constitutional provision guaranteeing respect for private life (see paragraphs 20 and 21 below), the court ordered the applicant company to retract this information by publishing the operative part of its judgment and to pay the plaintiff 1,700 Ukrainian hryvnias (UAH, approximately 300 euros (EUR) at the time) in compensation for non-pecuniary damage.

The court also found that the following extract constituted a value judgment on the author’s part and rejected the claim in this respect:

“What if I were given more than a thousand bucks a month? ... I believe that all journalists dream of selling themselves for a flat in Kyiv, even those who already have one ... I listened to Ganna German and I wish I were as lucky as she is. I wish I could sell myself like that!”

The applicant company appealed, arguing, in particular, that the statement in question had been an expression of the author’s opinion. In particular, he had wondered what could have induced Ms German, “a former nationalist”, to change her political sympathies. Being aware that the Member of Parliament’s Status Act provided for housing support, the author speculated that he might be willing to change his views in exchange for a flat in Kyiv. For the applicant company, the lack of coherence in the plaintiff’s demand that a subjective opinion be retracted was illustrated by the fact that the plaintiff and the first-instance court had been unable to formulate a specific statement of retraction and had resorted to the requirement to publish the text of the judgment itself. For the applicant company, the plaintiff’s failure to formulate a specific retraction illustrated the rationale behind section 47-1 of the Information Act, under which value judgments were not subject to retraction. The applicant company argued that the requirement to retract the statement by publishing the text of the court judgment contradicted section 37 of the Press Act. The applicant company also argued that the author had not had the requisite intent to disseminate untrue information. In support of its arguments it invoked the constitutional provision guaranteeing the freedom of expression.

On 28 February 2008 the Kyiv City Court of Appeal upheld the judgment of 18 December 2007, finding the applicant company’s arguments unsubstantiated and the District Court’s conclusions correct.

The applicant company appealed on points of law. In addition to reiterating the arguments it had raised on appeal, it referred to the Court’s judgments in Ukrainian Media Group v. Ukraine (no. 72713/01, 29 March 2005), and De Haes and Gijsels v. Belgium (24 February 1997, Reports of Judgments and Decisions 1997I), arguing that according to the Court’s case-law the limits of acceptable criticism were wider with regard to a politician than in relation to a private individual and that such criticism could include recourse to a degree of exaggeration, or even provocation.

On 23 May 2008 the Supreme Court found no grounds to review the case on points of law, finding that there were no reasons to believe that the lower courts’ decisions had breached any provisions of substantive or procedural law.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1940 and lives in Odesa.

At the time of the events the applicant was the director general of a joint venture V. (“company V.”), which had its office in the premises belonging to a joint stock company Y. (“company Y.”).

In March 2001 the owner of company Y. changed. The new management questioned the legality of the use of its premises by company V. More specifically, they challenged the lease contract of 12 January 1999 in respect of those premises, which had been signed by the applicant, on the one side, and N., the chairman of the board of directors of company Y. at the time, on the other side. Under that contract, company V. could use the office space in question from 12 January 1999 to 12 January 2020 without any payment, but in exchange for certain services for company Y.

Starting from April 2001, company Y. no longer allowed access to its premises to company V. As a result, the applicant transformed his flat in a temporary office of company V.

In June 2001 company V. brought commercial proceedings against company Y. seeking compliance with the lease contract. Company Y., in turn, lodged a counter-claim seeking invalidation of that contract. By a final decision of the Supreme Court of 25 September 2003, the national courts rejected the claim of company V. and discontinued the proceedings as regards company Y.’s counter-claim. It was concluded that “there [was] no subject matter of the dispute”, given that the impugned contract failed to stipulate basic terms inherent in a lease contract and could not therefore be regarded as a lease contract.

On 3 October 2001 a criminal case was opened in respect of suspected forgery of the lease contract of 12 January 1999, without being targeted against any particular persons.

On 8 October 2001 the Odesa Prymorskyy District Prosecutor’s Office (“the Prymorskyy Prosecutor’s Office”) issued a warrant for seizure of fifteen documents relevant for the investigation, such as the original of the lease contract itself, related correspondence and several statements of acceptance of the services indicated in the contract (see paragraph 7 above). The seizure was to be carried out in company V.’s office.

On 11 October 2001 the seizure took place in the applicant’s flat, in the presence of his wife. It appears that the applicant was not present. Eleven of the fifteen documents listed in the warrant were seized. The seizure report did not contain any information as to whether it had been handed to any person occupying the premises. The applicant did not specify in the domestic proceedings, or in the present proceedings, how the seizure of the documents had taken place.

On 15 October 2001 the seizure warrant of 8 October 2001 was served on the applicant.

On 22 October 2001 the investigator decided that a forensic expert examination of the signatures on the contract of 12 January 1999 was required in order to establish their real date.

On 7 November 2001 the Odesa Prymorskyy District Court (“the Prymorskyy Court”) ordered a search of the applicant’s flat, which was also company V.’s office, with a view to collecting samples of his handwriting and signatures. As stated in the court’s ruling, “notebooks, correspondence and other personal records with [the applicant’s] handwriting” were required for the above-mentioned expert evaluation. That decision was not amenable to appeal.

On the following day the search took place in the applicant’s flat in his presence and resulted in a seizure of eleven documents. The applicant did not provide any description, be it in the domestic proceedings or in the present proceedings, as to how the search had been carried out.

On 24 December 2001 the investigator ordered a seizure of company V.’s constituent documents from the company’s office. It appears that the seizure was carried out on the same day in the applicant’s flat.

On 9 January 2002 the above seizure warrant was served on the applicant.

On 6 May 2002 company V. founders’ meeting decided to suspend the applicant from the exercise of his duties as its director general pending the ongoing criminal proceedings.

On 20 August 2002 the prosecutor discontinued the proceedings for the absence of unequivocal evidence of a criminal offence. Although a forensic expert examination had established that the signatures on the impugned contract had been antedated (namely, it was established that they had been made no earlier than in February 2001), the official approval of the technical methods used by the expert was previewed only for the autumn of 2002.

On 1 September 2002 the applicant resumed his duties in company V.

On 28 August 2002 the applicant brought proceedings against the Prymorskyy Prosecutor’s Office claiming compensation in respect of non-pecuniary damage allegedly caused by its unlawful actions. The applicant based his lawsuit on the fact that the criminal proceedings had been terminated, without raising any specific complaints about the search and seizures. He contended that the institution of the criminal proceedings had been arbitrary, which had led, inter alia, to the unlawful search of his flat and the seizure of documents.

On 9 December 2002 the Prymorskyy Court rejected the applicant’s claim as unfounded. The case file does not contain a copy of that decision. It appears that the court’s conclusion was that the applicant had not suffered any non-pecuniary damage.

The applicant appealed. He argued, in particular, that the impugned measures had been devoid of any legitimate purpose given the impossibility at the time to carry out the forensic handwriting examination ordered by the investigator. He further submitted that, in ordering the seizure of documents, no differentiation had been made between the company’s premises and his home. The applicant maintained that the first-instance court had left those matters without consideration.

On 11 September 2003 the Odesa Regional Court of Appeal rejected the applicant’s appeal. It held, in particular, that the company’s office had de facto been located in the applicant’s flat. As regards his complaint about the court’

On 3 February 2006 the Supreme Court upheld the lower courts’ decisions.