Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The first applicant was born in 1979, the second and third applicants were born in 1974, and the date of birth of the fourth applicant is unknown. The fourth applicant is the common-law wife of Mr Pavel Aleksandrovich Bazhenov (“the fourth applicant’s partner”). The second and fourth applicants live in Irkutsk Region and Irkutsk respectively. The first and third applicants are serving prison sentences in Irkutsk Region.

On 14 October 2003 the first and third applicants and the fourth applicant’s partner were arrested and taken to the police station on suspicion of murder. They were allegedly intimidated by police officers seeking to extract self-incriminating statements.

On 15 October 2003 a forensic medical examination was conducted in respect of the first and third applicants and the fourth applicant’s partner. It revealed that the first applicant had abrasions on his left shoulder, and bruises on both ears and on the back of his thorax; the third applicant had bruises on his left hip and under his jaw. The expert concluded that those injuries had been sustained the day prior to the examination and that they had not caused any permanent damage to the applicant’s health. The fourth applicant’s partner was discovered to have a closed nose fracture which amounted to slight damage to his health.

On 16 October 2003 the Oktyabrskiy District Court of Irkutsk (“the District Court”) authorised the detention of the first and third applicants and the fourth applicant’s partner pending the investigation. It relied on the gravity of the charges and the risk that they might interfere with the administration of justice (abscond, resume their criminal activity or threaten witnesses). They were placed in remand prison IZ-38/1 in Irkutsk.

On 24 October 2003 charges of aggravated murder were brought against them.

On 11 December 2003 the District Court extended the detention of the first and third applicants and the fourth applicant’s partner until 5 March 2004 on the same grounds. Those decisions were upheld on appeal by the Irkutsk Regional Court (“the Regional Court”) in respect of the first applicant on 29 January 2004 and in respect of the third applicant and the fourth applicant’s partner on 3 February 2004.

The first and third applicants’ detention was subsequently extended, on the same grounds, on 3 March and 4 March 2004 respectively, until 5 June 2004. The Regional Court upheld those decisions on appeal in respect of the first applicant on an unspecified date and in respect of the third applicant on 21 April 2004.

According to the first applicant, between 14 and 16 October 2003 the police subjected him to beatings, torture with electric wires, and deprivation of food and sleep.

Subsequently, for several days starting from 17 October 2003 the first applicant was intimidated by one of his cellmates, S. Ye. (nicknamed “the Nazi”), who had been instructed by the police to extract the applicant’s confession. As a result, on 21 October 2003 the applicant attempted suicide by cutting his left forearm.

On the same day the applicant was examined by a doctor, who reported superficial cuts on his left forearm.

On 4 November 2003 the applicant was taken to the police station. Throughout the day police officers allegedly beat him in the head, kidneys and genitals, tortured him with electric wires and threatened to kill him and to rape him. As a result, he attempted suicide by cutting his neck with a blade.

On the same day the applicant was examined by a doctor, who recorded the following injuries: a four-centimetre long cut on his neck and six superficial two-centimetre long cuts on his left forearm.

On 11 November 2003 the third applicant was taken for questioning to the police station, where he was beaten up by police officers S.Sh., S.S. and Ye.Kh. For an hour and a half the police officers allegedly kicked and punched the applicant, who was handcuffed and kneeling, and beat him with a stick. Unable to withstand the torture, the applicant jumped out of a third-floor window of the police station. However, as the applicant’s action was considered an attempt to escape, criminal proceedings were brought against him under Articles 30 § 3 and 313 § 1 of the Criminal Code (attempted escape).

The following day, on 12 November 2003 the third applicant was taken to hospital and diagnosed with a fracture to his right upper arm and contusions on his thorax and spinal cord, allegedly caused by the jump from the window.

As indicated above the first and third applicants and the fourth applicant’s partner were placed in remand prison IZ-38/1. The fourth applicant submitted that as from 24 October 2003 and for several days onwards her partner was beaten up by other inmates. He was not given any food and not allowed to sleep, and in the mornings he was taken to the police station where the ill-treatment continued.

From 25 November to 11 December 2003 the applicant’s partner was kept in detention facility IZ-24/1 in Krasnoyarsk, where, allegedly with the tacit consent of the facility’s officers, he was constantly ill-treated by other inmates.

From 11 December 2003 until 15 January 2004 the fourth applicant’s partner was detained again in remand prison IZ-38/1 in Irkutsk. Two of the inmates – S.Ye. and A. – deprived him of food and sleep, and threatened him with murder and rape. The chief of police, A.S., threatened him with rape. Several days later the applicant’s partner was raped by other inmates and the act was videotaped. He was then blackmailed with the tape. Finally, on 12 January 2004 he confessed. On 3 February 2004 the applicant’s partner was transferred to a solitary confinement cell.

On 5 February 2004 the applicant’s partner was found hanged.

The first and the third applicants and the fourth applicant’s partner complained to the prosecutor’s office of their ill-treatment at the hands of the police. The initial complaint concerned the alleged ill-treatment on 14 October 2003. Separate complaints were brought later in connection with other alleged instances of ill-treatment (see paragraphs 12, 13, 15 and 17 above).

On 20 November 2003 the Deputy Prosecutor of Irkutsk Region refused to open criminal proceedings against the police officers. The decision read as follows:

[The first applicant] submitted that on 14 October 2003 he had been arrested by the police. When being brought to the police station he had been ill-treated by the police officers [description of the beatings]. On 21 October 2003 he cut his left forearm [because he had had a conflict with his cellmates and wanted to be transferred to a different cell]. On 4 November 2003 [the first applicant] cut his neck [because he had been beaten up by the police officers].

[The fourth applicant’s partner] submitted that on 14 October 2003 he had been arrested by the police and brought to the police station where physical force had been applied to him [description of the beatings]. He could not describe the officers who had ill-treated him. On 11 November 2003 he was again ill-treated; the police officers tortured him with electric wires and beat him up.

[The third applicant] submitted that police officers ill-treated him and he was compelled to jump out of the window.

[Chief police officer G.] submitted that on 14 October 2003 [the first and third applicants and the fourth applicant’s partner] had been arrested on suspicion of having committed particularly serious crimes. They showed active resistance during the arrest and therefore physical force and cuffing were applied to them. After the arrest [the above persons] were brought to the police station. The first applicant and the fourth applicant’s partner had injuries which had been inflicted on them at the arrest. Subsequently the first applicant and the fourth applicant’s partner were taken to the investigator for participation in the investigative actions. No physical or mental coercion was applied to them ...

Similar statements were given by police officers Sh., S. and P. [The latter] added that on 4 November 2003 [the first applicant] participated in an investigative action at the police station. After the investigative action was completed, he and the [first applicant] remained waiting in office no. 302 for the applicant to be taken back to the remand prison. [The first applicant] was nervous, [he] expressed his fears of receiving a long sentence. During the conversation he cut his neck. He was provided with medical aid and taken to the remand prison, where he was examined by a doctor.

According to the reports of the forensic medical examinations, the injuries of [the first and third applicants] did not cause any permanent damage to their health, and the injuries of [the fourth applicant’s partner] caused slight damage to his health. The [above] injuries could have originated from the impact of hard blunt objects with a limited surface area, which could be a fist or a foot.

These injuries were caused to [the first and third applicants and the fourth applicant’s partner] at their arrest by the police officers. An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure which established that [the first and third applicants and the fourth applicant’s partner] had shown active resistance during their arrest and the police had applied physical force and special means to them pursuant to Articles 12-14 of the Law on police. On 18 November 2003 the institution of the criminal proceedings against the police officers was refused in the absence of constituent elements of a crime in their actions.

An inquiry was carried out in accordance with Article 144 of the Code of Criminal Procedure into [the first applicant’s] causing himself injuries on 21 October 2003. On 22 October 2003 the institution of the criminal proceedings was refused.

Bodily injuries in the form of cutting wound of the neck were self-inflicted by the [first applicant], which is confirmed by the latter’s statements. No other injuries were discovered on [the first applicant] at his examination on 4 November 2003. This fact disproves [the first applicant’s] allegation of having been beaten up by the police on that day.

On 11 November 2003 [the third applicant] jumped out from the third-floor window of the police station in an attempt to escape. Criminal proceedings were instituted against him under Articles 30 § 3 and 313 § 1 of the Criminal Code.

No evidence was established during the inquiry to substantiate the allegations that police officers Sh., S., G. and P. had applied physical and mental coercion to [the first and third applicants and the fourth applicant’s partner]. The submissions made in this respect by [the latter] are unsubstantiated and far-fetched.

On 4 March 2004 the Prosecutor of Irkutsk Region set aside the decision of 20 November 2003 and opened criminal proceedings against a number of police officers under Article 286 § 3 (a) of the Russian Criminal Code (Abuse of office associated with the use of violence or entailing serious consequences).

On 8 August 2006, however, the criminal proceedings were discontinued owing to the absence of constituent elements of a crime in the actions of the police officers. The applicants did not appeal against this decision in court.

On 11 February 2004 the Irkutsk Regional Prosecutor’s Office instituted criminal proceedings into the death of the fourth applicant’s partner under Article 110 of the Criminal Code (incitement to suicide).

On 11 May 2004 a post-mortem examination of the applicant’s partner was completed. It was established that he had died as a result of strangling. Apart from visible marks on his neck, the following injuries were recorded: abrasions on the neck, the lumbar region, the chest, the right forearm, the right wrist and the right hand; bruises and abrasions on the forehead; bruises in the soft tissues of the neck; and a hemorrhage in the mucous membrane of the anus.

On 26 June 2006 the criminal proceedings were discontinued owing to the absence of evidence of a crime. It was established that on 3 February 2004 the fourth applicant’s partner had been transferred to a solitary confinement cell after his lawyer had complained that the former had been subjected to abuse by other inmates. Thereafter, on 5 February 2004 the fourth applicant’s partner was found hung in the cell. The forensic medical expert concluded that the death had occurred as a result of strangling. It was further established that on the day of his death the fourth applicant’s partner had been kept in the cell alone, and that the lawyer’s allegations that his client had been ill-treated by other inmates had not been confirmed.

The lawfulness of the above decision was challenged before the court by the father of the deceased, Mr A. Bazhenov, who was granted victim status in the relevant proceedings.

On 16 July 2007 the Kuybyshevskiy District Court of Irkutsk found the above decision lawful and justified. It was not appealed against to the Regional Court.

On 25 December 2006 the Regional Court convicted the first and third applicants, along with five other co-defendants, of banditry, aggravated murder and robbery. It sentenced the first applicant to life imprisonment and the second applicant to twenty years’ imprisonment. The trial court examined the allegations of police ill-treatment in so far as the admissibility of evidence was at issue. It heard the applicants, examined the medical evidence, and questioned the applicants’ former cellmates and the police officers allegedly involved in the ill-treatment. Having taken into account the conclusions of the investigation, the court held that no unlawful methods of interrogation had been used against the applicants.

On 25 September 2007 the Supreme Court of Russia upheld the judgment on appeal.

On 5 September 2003 the flat of one of the victims was searched within the framework of the murder case involving the first and third applicants and the fourth applicant’s partner. The second applicant, who was found armed inside the flat, was taken to the police station for identification and questioning. He was kept there until 7 September 2003. According to the second applicant, police officers struck him in the area of his only kidney, tried to throw him out of the window, then forced him out onto the windowsill, from where he lost his balance and fell three floors down.

From 7 September to 7 October 2003 the second applicant underwent treatment in the traumatology unit of Angarsk hospital no. 36 for a cerebral contusion, massive damage to the soft tissue of his body and extremities, diffused hypodermic and subfascial haematomas, multiple abrasions on the head and extremities, kidney contusion, compression syndrome and right-sided post-traumatic pneumonia.

Meanwhile, on 8 September 2003 the applicant sought to institute criminal proceedings against the police officers. However, on 2 October 2003 the Deputy Prosecutor of the Irkutsk Region refused to open criminal proceedings, having arrived at the conclusion that the applicant had jumped out of the window in an attempt to escape. The applicant challenged the lawfulness of that decision in court.

On 22 December 2003 the Kirovskiy District Court of Irkutsk found the decision lawful and justified.

The applicant did not appeal against the judgment before the Regional Court.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1968 and lives in Sovetskaya Gavan, Khabarovsk Region.

On 22 October 2009 the applicant was arrested and brought to the Khabarovsk Administrative Detention Centre where he stayed until 27 November 2009.

Since 22 October 2009 he had been detained with more than 12 inmates in the cell no. 9 designed for 12 persons and had to take turns to sleep. A month after he had been transferred to another cell with the area of 6 square meters which he had shared with another inmate.

The detention centre had no shower facilities or a place for outdoor walks. The applicant’s cell was cold and damp, iron banks were not covered by mattresses. Toilets were not separated from the living area, and the persons using them were in full view of others. Food supply was inadequate, the applicant was served meals only once a day and had no drinking water from within the cell.

The Government submitted that the Khabarovsk Administrative Detention Centre comprised two cells: no. 5 with the area of 14.6 square meters for 3 inmates and no. 6 with the area of 18 square meters for 4 inmates. There was no overcrowding; the toilet had been separate by a shoulder length fence. The detainees may take a shower once a week. The temperature was 23oC, there were kettles with boiled water in the cells.

On 26 October 2009 the applicant’s wife, Mrs Liu, sought to visit the applicant but was refused.

On 6 and 10 November 2009 the applicant’s wife filed complaints with the Khabarovsk Prosecutor’s Office stating that she had not been allowed to see the applicant.

In August 2010 the applicant brought a civil claim for compensation in respect of non-pecuniary damage, stating that the conditions of his detention had been inhuman and degrading, and that the prohibition on family visits was unlawful.

On 9 February 2011 the Industrialnyy District Court of Khabarovsk dismissed his claim. Relying on the statements of a representative of the detention centre, the court held that the Internal Rules of the Administrative Detention Centres approved by the Decree of the Ministry of Defence of Russia of 6 June 2000 no. 605 dsp (“the Rules”) did not make provision for family visits, and that the applicant’s right to family life had not been breached as he had met his wife during court hearings.

On 18 May 2011 the Khabarovsk Regional Court upheld the above decision on appeal.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1974 and lives in Graz.

On 7 March 1997 she married Mr S.V. in Vienna (Austria). They lived in Vienna until January 2006, when they decided to move to Komletinci (Croatia).

Meanwhile, on 3 January 1999 the applicant gave birth to their daughter, E.V, on 6 June 2001 to their son, F.V., and on 21 January 2006 to their second daughter, L.V.

On 6 January 2009 the applicant and S.V. separated. He remained in Croatia, whereas the applicant returned to Austria.

Following her arrival in Austria the applicant collected the children from her husband’s parents, who lived in Vienna and with whom the children had been spending the Christmas holidays, and took the children with her to Graz.

When the applicant did not return to Croatia, S.V. went to Austria with a view to taking the children back to Croatia. However, the applicant opposed that. The children therefore remained in Graz where the applicant enrolled the two older children in school and the youngest child in kindergarten. S.V. maintained contact with the children by talking to them over the phone and by visiting them occasionally. It would appear that the applicant and S.V. eventually agreed that the children would remain in Austria but would spend holidays with their father in Croatia.

In August 2010, after the summer holidays, which the children spent with their father and paternal grandparents in Croatia, the father refused to return them to the applicant, claiming that the children had refused to go back to Austria.

In September 2010, relying on the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter: “the Hague Convention”, see paragraph 54 below), the applicant asked the Austrian Ministry of Justice, as the Austrian Central Authority within the meaning of that Convention, to return her children. The Ministry of Justice immediately contacted the Croatian Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) as the Croatian Central Authority.

By a letter of 23 September 2010 the Ministry of Health and Social Welfare forwarded the applicant’s request to the Vinkovci Municipal Court (Općinski sud u Vinkovcima).

A copy of the Ministry’s letter of 23 September 2010 was sent to the Vinkovci Social Welfare Centre (Centar za socijalnu skrb Vinkovci). Pursuant to Article 10 of the Hague Convention (see paragraph 53 below), the latter was invited to mediate with the father the voluntary return of the children to Austria, and to inform the Vinkovci Municipal Court and the Ministry of the results thereof.

The Vinkovci Social Welfare Centre interviewed S.V., talked to the children without his presence and carried out an on-site inspection of his home. On 28 October 2010 it replied to the Ministry’s request. The relevant part of that reply reads as follows:

“S.V. states that his actions were in accordance with the wishes of his children, who wanted to remain living with him in Croatia. He justifies his current actions by the wish to afford his children a happy life. During the interview on the [premises] of the Centre S.V. did not try to portray [the applicant] as a bad or irresponsible mother ... S.V. verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy. He states that the children wish to remain living with him. He does not want to restrict his wife’s contacts with the children. ... During the conversation S.V. leaves the impression of an emotionally warm person. He does not appear to be a parent who would physically punish or behave inappropriately towards the children.

... by an on-site inspection it was established that the father had secured adequate housing and other conditions. He has a permanent source of income ... as he has a bar on the ground floor of the house [where he and the children live], where he works. [Thus] while working he stays [physically] very close to his family, which gives the children [a sense of] security.

It was further established that E.V. and F.V. had frequently changed school and that they had started the new school year by going to an elementary school in Komletinci where, according to the father, they had adapted well. It is not in the children’s interest to frequently change school, schoolmates and teachers. The children should have stability. Every removal of the children from their habitual environment (family or school setting) is stressful and leaves consequences on the children. It requires them to make additional efforts to adapt to the new environment and the school and to make new friends.

Given that the children’s mother had in the meantime lodged an application for the return of her wrongfully retained children from Croatia, the Centre conducted an interview with the children on its premises without the presence of the father. Their wish is that their parents live together, as most children in their situation do. They are aware that the parents are divorcing. They are not taking the side of [either] the father or the mother. E.V. and F.V. understand the family situation whereas L.V. is at an age when her parents’ situation is still not clear to her. The children express the wish to live with their father. They see their relationship with the father as closer and [consider that] they are more emotionally attached [to him]. They like the life in the countryside, in Komletinci. The life in Austria is very different from the life in Komletinci. In Komletinci they have more free time, and meet and play with other children of their age. The pace of life in Austria makes that impossible. Here they are very well accepted in school. They know their neighbours and other children of their age.

In the light of the foregoing [the Centre] found that it would be in the children’s interest to continue living with their father in Komletinci. In accordance with that [view] the Centre has submitted the opinion of a psychologist and a social worker to the Vinkovci Municipal Court.”

Non-contentious proceedings for the return of the children were instituted on 7 October 2010, that is, on the date the Ministry’s letter of 23 September 2010 forwarding the applicant’s request under the Hague Convention to the Vinkovci Municipal Court (see paragraph 15 above) was received at that court. The Vinkovci Social Welfare Centre participated in those proceedings as an independent intervener sui generis with a view to protecting the children’s interests.

During the proceedings the court decided to obtain and consult the report of the social welfare centre prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody (see paragraphs 33-35 below). On 4 November 2010 the report was received at the court.

At a hearing held at 11 a.m. on 19 November 2010 the applicant’s representative argued that the retention of the three children by their father in Croatia had been wrongful and that they should be returned forthwith. She averred that the fact that the social welfare centre had submitted a report in the parallel civil proceedings for divorce and child custody should have no bearing in the present proceedings as the Hague Convention did not provide for exceptions from the obligation to promptly return the children. She also stated that the applicant’s right to equality in the proceedings had been breached because, even though she was fluent in Croatian as her parents were of Croatian origin, she had not been invited by the Vinkovci Social Welfare Centre to participate in the family assessment procedure leading to its report.

S.V.’s representative invited the court to dismiss the applicant’s request. She argued that the retention of the children had not been wrongful and that in any event S.V. could not have forced the children to return to their mother against their wishes. In particular, the children had clearly communicated their wishes not to return to Austria to the employees of the social welfare centre and had even told their father that they would run away if returned, which suggested that the return would have caused them psychological trauma. Furthermore, while it was true that the report of the social welfare centre was prepared in the context of the parallel civil proceedings for the purposes of deciding on custody of the children, its findings, which had suggested that the children did not want to return to Austria, could not be ignored in the present proceedings.

The representative of the Vinkovci Social Welfare Centre agreed with S.V.’s representative that the applicant’s request should be dismissed and that the children’s retention had not been wrongful. She submitted that the children had been interviewed by the employees of the centre first together and then individually, and that they had stated that they did not like the life in Austria and wanted to live in Croatia.

In her reply the applicant’s representative stated as follows:

“... especially the youngest child of the parties L.V., who is only four years old, is very attached to her mother, and has expressed a wish to return with her to Austria. As regards the two older children, what should primarily be taken into account, given their age, are their [best] interests and not just where they wish to live. In any event, this cannot have an impact on the decision making in this case having regard to Article 16 of the [Hague] Convention.”

At the same hearing the court heard both parties. The applicant in her testimony stated that in mid-August 2010 S.V. had called her to tell her that he would not be returning the children to Austria because they did not want that. The applicant further testified that on that occasion she had spoken with the children over the phone and that the two older children had told her that they indeed did not want to return to Austria, whereas the youngest child had expressed the wish to return. The applicant also stated that she had not seen her children from the time their father had retained them in Croatia until the day before the hearing.

From S.V.’s testimony it followed that the youngest child, L.V., was indecisive as to which parent she wanted to live with. In his own words:

“L.V. is [still] small and at times she wants to live with her mother, and every now and then with me.”

At the same hearing, on 19 November 2010, the Vinkovci Municipal Court delivered a decision whereby it dismissed the applicant’s request. In so doing it relied on the report of the Vinkovci Social Welfare Centre, which included the opinions of a social worker and a psychologist employed with the centre and which had been prepared for the purposes of deciding on the custody of the children in the parallel civil proceedings for divorce and child custody (see paragraphs 19 and 33-35 below). The relevant part of that decision read as follows:

“The petitioner ... maintains her request that her children be returned to Austria where they had the last domicile, that is, their habitual residence and where they went to school. The fact that the social welfare centre gave its opinion in the [parallel] civil proceedings for divorce [and child custody] is of no relevance for reaching a decision in these [return] proceedings because the Republic of Croatia, as a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, is bound to honour the provisions of that Convention.

The counterparty ... in his reply opposes the [petitioner’s] request, considering that the conditions prescribed in the Hague Convention had not been met in the present case. In particular, in order for the Hague Convention to apply, the children had to have been wrongfully removed or wrongfully retained and the right of custody had to have been breached. The law did not attribute the right of custody to the petitioner, nor had she been awarded that right by a judicial or administrative decision or an agreement equal to such decisions. Hence, the petitioner herself does not have the right of custody any more than the counterparty himself, given that the divorce proceedings, where [the issue of] custody is being examined, are still pending before this court.

He also invokes Article 13 paragraph 1 (b) [of the Hague Convention] which provides that the court is not bound to order the return of a child if it establishes that the return would expose the child to, inter alia, psychological harm, and that it may also refuse to do so if the child objects to being returned.

The representative of the Vinkovci Social Welfare Centre in her observations considers that the present case does not concern wrongful retention of children because the Centre had, even before the petitioner submitted her request, been involved in the social anamnesis of the family [i.e. family assessment]. Namely, the children’s father had addressed the Centre when in 2009, during a visit of the children to his parents in Austria, the spouses had separated, that is to say, when the petitioner had left [him], gone to Austria, taken the children, retained them and enrolled them in a school in Austria. The father, in order to protect the interests of the children, had decided not to take certain steps [to return them] but had instead visited the children in Austria as much as he could. When the children this summer had come to Croatia with his parents, they had not wanted to go back to Austria. The father had then sought advice from the Centre, which had advised him that he should not return the children to their mother by force. After that, he had filed for divorce, whereas the petitioner had lodged a request for the return of wrongfully retained children.

In the proceedings conducted before the Vinkovci Social Welfare Centre, the children were heard, all three of them together and then individually, and they expressed the wish to live in Croatia. Therefore, the representative of the Social Welfare Centre considers that, in order to protect the children’s interests and well-being, it is necessary to dismiss the petitioner’s request as unfounded.

In these proceedings, instituted following the request of the petitioner for the return of the children, the court has to apply the Ratification of the Hague Convention (Civil Aspects of International Child Abduction) Act.

Section 12(2) of that Act provides that the court will refuse to order the return of a child if he or she is settled in the new environment.

According to evidence taken, it was established that the parties married on 7 March 1997 in Austria, in Vienna. During the marriage, E.V. was born on 3 January 1999, F.V. on 6 June 2001 and L.V. on 21 January 2006. The parties came with their three children to live in Croatia, in Komletinci.

In the acrimony during the [2008] Christmas holidays [the petitioner] verbalised the wish to end their life together. [She] left the common household and went to live in Austria. At that time the children were in Austria, visiting their paternal grandparents. Upon her arrival in Austria the petitioner immediately went to collect the children and did not allow the father to take them back to Croatia, even though the children wanted to go to Croatia and had to finish another school term [there].

[In] summer [2010] the children, together with their paternal grandparents, came to [Croatia to] spend three weeks of their summer holidays at the seaside. After returning from the seaside, the children came to live in Komletinci. According to the counterparty’s statement, which the petitioner acknowledged, the two older children had refused to return to Austria, expressing the wish to stay in Komletinci.

From the enclosed certificates of domicile issued by the [police authorities] it was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006. Therefore, the petitioner’s arguments that the children have registered domicile only in Austria are incorrect.

In the present case the court has not yet rendered a final decision in the [parallel civil] proceedings [for divorce and child custody]. However, that does not affect the adoption of the decision on the request for the return of the children on the basis of the Hague Convention on the Civil Aspects of International Child Abduction.

It is the opinion of this court that the father did not, without the knowledge and approval of the mother, abduct the children from the living environment in which they were settled. It is to be noted that the children have previously lived in Komletinci, that E.V. finished the second grade of the elementary school in Komletinci where she went to school until the first semester of the third grade, and that F.V. also attended the first grade in the school in Komletinci. It therefore follows that the children were retained in the place where they previously used to live. This school year E.V. and F.V. are again attending the elementary school in Komletinci.

From the opinion of the psychologist at the Vinkovci Social Welfare Centre it undoubtedly follows that it is not in the children’s interests to change school again because they would have to re-adapt to [new] teachers, curriculum, schoolmates, etc. From the opinion submitted it is evident that the children have adapted to their current living environment and school setting, and that they have verbalised the wish to live with their father.

Given all the aforementioned [considerations], this court, relying on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the Hague Convention on the Civil Aspects of International Child Abduction, refuses to order the return of the children, finding that the children have adapted without any problems to the environment in which they had previously lived and that, in the given circumstances, returning them to the mother in Austria would place them in an unfavourable position and expose them to psychological trauma, which certainly cannot be to their benefit.

It is also to be noted that the children themselves, especially the two older children, object to being returned to Austria.

Having regard to all the above, this court decides as [indicated] in the operative part.”

On 30 November 2010 the applicant appealed against the first-instance decision.

On 24 February 2011 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision, which thereby became final. The second-instance decision was served on the applicant’s representative on 17 March 2011. The relevant part of that decision reads as follows:

“The appellant claims that the aim of the [Hague] Convention is the prompt return of children to the country of their habitual residence, and that what is protected is the last status of the children.

In the appellant’s opinion it was necessary to apply exclusively Article 12 paragraph 1 of the said Convention and order the children’s return forthwith.

The appeal is unfounded.

It was established that all three children have registered domicile on the territory of Croatia, at the address ... in Komletinci ... as of 17 October 2006.

The first-instance court correctly found that the father did not without the knowledge and approval of the mother abduct the children from the living environment where they were settled because the children have previously lived in Komletinci, [where] E.V. finished the second grade of elementary school ... and F.V. attended the first grade ...

The first-instance court relied on Article 12 paragraph 2 and Article 13 paragraph 1 (a) and (b) of the [Hague] Convention.

As rightly pointed out by the appellant, the first-instance court had erred in relying on Article 12 paragraph 2 of that Convention because the children had been brought to Croatia at the beginning of July 2010, whereas the proceedings [for the return of children] were instituted in September 2010, that is, before the expiration of the period of one year referred to in paragraph 1 of Article 12 of the [Hague] Convention.

However, this second-instance court finds that the first-instance court correctly applied Article 13 paragraph 1 (a) and (b) of the [Hague] Convention, and, in the opinion of this court, also paragraph 2 of that Article because the two older children, whose views it is appropriate to take into account given their age, object to being returned.

Since the children have already adapted to life in the environment (in which they have previously lived – before going to Austria) there is a grave risk that their return would expose them to psychological trauma. The change of school would have traumatising effects on the two older children if, during the school year, they were to be transferred to Austria, where the curriculum is completely different.

For these reasons the appeal is dismissed and the first-instance decision upheld.”

On 15 April 2011, the applicant lodged a constitutional complaint alleging, inter alia, that her constitutional right to a fair hearing and to respect for her family life, guaranteed by Article 29 paragraph 1 and Article 35 of the Croatian Constitution (see paragraph 51 below), had been violated. On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows:

“[The complainant] considers that the [constitutional] rights guaranteed in Articles 14 paragraph 2, 16, 26, 29 paragraph 1, 35, 62, 63 and 140 of the Constitution have been breached by the contested decision of the lower-instance courts.

Having regard to the arguments raised in the constitutional complaint the Constitutional Court examined the contested decisions under Article 29 paragraph 1 and Article 63 of the Constitution.

Having regard to the opinion of the Vinkovci Social Welfare Centre ... and the fact that both older children ... (E.V. and F.V.) expressed the wish as to where and with which parent they wanted to continue living after [their parents’] divorce, and that they refuse to be separated from their father, the Constitutional Court finds that the competent courts rendered the contested decisions by correctly assessing all the particular circumstances of the present case.”

Meanwhile, on 27 August 2010 S.V. brought a civil action against the applicant in the Vinkovci Municipal Court seeking: (a) divorce; (b) the right to have their children living with him (hereafter: “custody”); and (c) maintenance for the children. As in the above-mentioned proceedings for the return of children (see paragraph 18 above), the Vinkovci Social Welfare Centre also participated in these proceedings as an independent intervener sui generis with a view to protecting the children’s interests.

On 30 August 2010 the court invited the Vinkovci Social Welfare Centre to submit a report on the financial and family situation of the parties and to give its opinion on the issue of which parent the children would prefer to live with and on the contacts with the other parent.

On 17 December 2010 the applicant responded to S.V.’s action. In her response she agreed to the divorce, contested S.V.’s claim for custody and proposed instead that she be granted custody.

After having interviewed the children and S.V., and having carried out an inspection of his home on 20 October 2010, the Vinkovci Social Welfare Centre submitted its report to the court on 28 October 2010. The report consisted of the opinion of a social worker and the opinion of a psychologist, who were both employed at the centre.

The relevant part of the opinion of the social worker reads as follows:

“[S.V.] justifies his current actions by his wish to afford his children a happy life. During the interview he repeatedly stated that after spending the summer holidays in Croatia, the children expressed the wish not to return to Austria any more. He did not stop his wife coming and seeing the children but she never came ... During the interview he did not try to portray [her] as a bad or irresponsible mother ... S.V. verbalises the wish that in the divorce proceedings the custody of the children be awarded to him primarily because he wants the children to be happy. He stated that that the children wished to remain living with him. He did not want to restrict his wife’s contacts with the children. ... During the conversation S.V. leaves the impression of an emotionally warm person. He does not appear to be a parent who would physically punish or behave inappropriately towards the children.

... by an on-site inspection it was established that the father had secured adequate housing and other conditions. He has a permanent source of income ... as he has a bar on the ground floor of the house [where he and the children live] where he works. [Thus] while working he stays [physically] very close to his family, which gives the children [a sense of] security.

It is evident that E.V. and F.V. have frequently changed school and that they started the new school year by going to the elementary school in Komletinci where, according to their father, they have adapted well. It is not in the interest of the children to frequently change school, schoolmates and teachers. The children should have stability. Every removal of the children from their habitual environment (family or school setting) is stressful and has consequences on the children. That requires additional efforts from the children to adapt to the new environment, [the new] school and to make new friends.

Given that the children’s mother lives in Austria ... employees of this Social Welfare Centre had no possibility to examine and establish [her] housing conditions and family situation and assess [them] and [thus] could not give an opinion on the possibility of contacts between the mother and the children at her place of residence in Austria.

Having regard to the foregoing, I am of the opinion that E.V., F.V. and L.V. should continue living with their father ...”

The relevant part of the opinion of the centre’s psychologist reads as follows:

“This opinion was prepared on the basis of a psychological interview with S.V. as well as on the basis of psychological examination of the children and the perusal of the documents available at the Centre.

An interview with the children was conducted. Their wish is that their parents live together, as most children in their situation do. They are aware that their parents are divorcing. They are not taking the side of [either] the father or the mother. E.V. and F.V. understand the family situation whereas L.V. is at an age when her parents’ situation is still not clear to her. The children express the wish to live with their father. They see their relationship with the father as closer and [consider that] they are more emotionally attached [to him]. They especially like the life in Komletinci, that is, in a smaller community. The life in Austria differs to a significant degree from the life here. They have more free time, [and] meet with children of their age. They spend their free time playing, which is not the case in Austria, not because one of the parents would prohibit or prevent them from doing so but because the pace of life is such. The parents and the children are not at home during the day because they work and the children go to school, so they spend very little time together, which means a lot to the children. Here they are well accepted in school, they know the neighbours and generally the social network (teachers, neighbours, children of their age) works better. Moreover, it is not in the children’s interest to change school anew, which is stressful because the children have to re-adapt to teachers, the curriculum and [find new] friends.

I am of the opinion that the children should remain living with their father given that S.V. adequately takes care of their needs as well as of their education and upbringing. At the same time, the children verbalise their wish to live with their father.”

As the applicant did not oppose the divorce, at the hearing held on 18 November 2010 the court ruled that S.V.’s civil action was to be considered a joint petition for divorce. At the same hearing the applicant and S.V. asked the court to adjourn the hearing so that they could agree on the issues of child custody, access rights of the non-custodial parent and maintenance.

At the hearing held at 1 p.m. the next day, 19 November 2010, that is, two hours after the hearing in the above-mentioned proceedings concerning the return of children (see paragraph 20 above), the parties informed the court that they had agreed that the two older children would live with their father but that they could not reach an agreement on custody of their youngest child, L.V.

The applicant’s representative stressed that it was in L.V.’s interest, as she was only four and a half years old at the time, to live with her mother, to whom she was emotionally attached and with whom she had expressed the wish to live. She added that at that age the role of the mother was very important. Lastly, the applicant’s representative reiterated that the applicant had not been involved in the family assessment procedure carried out by the Vinkovci Social Welfare Centre, resulting in its report. In particular, she had not been interviewed or otherwise examined by its staff (see paragraph 20 above). She therefore invited the court to obtain a joint expert opinion from a psychologist and a psychiatrist with a view to establishing whether it was in L.V.’s best interests to live with her mother or with her father.

The representative of the social welfare centre stated that the applicant had not been involved in the family assessment procedure because she was a foreign national who lived abroad. After reiterating the findings made in the centre’s report (see paragraphs 33-35 above), she added that the children were very emotionally attached to each other and it was therefore not advisable to separate them.

S.V.’s representative argued that the court should respect the professional opinions expressed in the social welfare centre’s report and that the children should not be separated. She added that her client was willing to allow the applicant to have longer and more frequent contacts with L.V., given that she was not burdened by school obligations. Lastly, S.V.’s representative opposed the proposal to obtain a joint expert opinion (see paragraph 38 above) as it was not disputed between the parties that they were both capable of adequately taking care of the children.

After hearing the representatives of the parties and of the social welfare centre as the intervener, the Municipal Court at the same hearing first rejected the proposal by the applicant’s representative to obtain a joint expert opinion, and then pronounced a judgment whereby it: (a) divorced the marriage between the applicant and S.V.; (b) decided that all three children were to live with S.V.; (c) granted the applicant access (contact) rights; and (d) ordered the applicant to regularly pay a certain amount of money as maintenance for their children. In particular, the court decided that the applicant should exercise her access rights by taking the children to her home in Austria on the last weekend of every month (or any other weekend if the parties agreed otherwise), as well as during the seven days of the winter holidays, fifteen days of the summer holidays and during other holidays interchangeably.

In deciding on the issue of child custody, the court relied on the report of the social welfare centre (see paragraphs 33-35). The relevant part of that judgment reads as follows:

“The court rejected the second petitioner’s [the defendant’s] proposal to take evidence by obtaining a joint expert opinion from experts in psychology and psychiatry because it is undisputed between the parties that they both satisfy the conditions for assuming parental responsibility, with which the court agrees. Given that on the basis of the evidence taken it can reach a decision on the merits even without the proposed evidence, which would indicate whether the parents are fit to take care of the children, the court considered [obtaining] the opinion of an expert in psychiatry unnecessary and [thus] rejected that proposal, having regard to section 10(1) of the Civil Procedure Act which requires that [the civil] proceedings be conducted without delays and with the least cost.

As regards their minor children, E.V. and F.V., the parties reached an agreement that they would live with their father. However, the mother argued that it was in the [best] interests of [their younger daughter] L.V., who is four years old, to live with her as she was emotionally attached to her [mother].

From the report of the social welfare centre it follows that the children wish, as do most children in their situation, the parents to live together in a harmonious relationship, that they are aware of the fact that their father and mother are divorcing, and that they are not taking the side of [either] the father or the mother. However, they expressed the wish to live with their father because they see their relationship with their father as much closer and are more emotionally attached to him. Furthermore, it follows from the report that the children like their life in Komletinci, that is, [a life] in a smaller community where they have more free time, socialise with other children of their age [and] spend their free time playing, which is not the case in Austria. It further follows from the report that the children are well accepted in school and that it is not in the children’s best interests to change school again, which is considered stressful as they would again have to adjust to [new] teachers, curriculum and schoolmates. Therefore, in the opinion of the social welfare centre, the children should remain living with their father given that he adequately takes care of their needs, their upbringing and education and that, at the same time, the children have verbalised the wish to live with their father.

At the hearing ... the representative of the social welfare centre stated that she maintained the opinion provided [in the report of the social welfare centre] and reiterated that the children were very attached to each other and that it would not be advisable to separate them.

The first petitioner [the plaintiff] stated at the same hearing that he did not dispute that the mother met the conditions to be awarded custody of the children but that he considered that it would be in the best interests of the children to live together, which was what the children wanted, and that he was willing to allow the second petitioner [the defendant] to maintain more extensive contact with L.V. given that she was not burdened by school obligations.

When awarding custody it has to be taken into account that brothers and sisters with existing emotional connections should not be separated unless that is their wish or in their best interests. Given that according to the report of the social welfare centre the children have verbalised the wish to live together, the court, promoting the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, has decided to award custody to their father.

When deciding on the mother’s access (contact) rights, the court has, having regard to the agreement of the parties that the mother shall exercise those rights in the manner proposed by the social welfare centre, but so that the mother takes the children to her home in Austria, [decided] that [she should have contact with the children] on the last weekend of every month or any other weekend if the parties agree otherwise, as well as during the seven days of the winter holidays, fifteen days of the summer holidays and during other holidays interchangeably.”

On the same day the applicant and S.V. signed a written agreement (hereinafter: “interim custody agreement”) regulating the applicant’s access rights in the period until the first-instance judgment became final. They agreed that in that period the applicant would exercise her access rights according to the visiting schedule set forth in the first-instance judgment. In addition, the parties agreed that the applicant would immediately take their youngest daughter, L.V., with her to Austria and return her to S.V. on 9 January 2011. However, on 9 January 2011 the applicant did not return their youngest child to S.V., but retained her in Austria.

Meanwhile, on 17 December 2010 the applicant appealed against the first-instance judgment. She argued that: (a) under Article 16 of the Hague Convention (see paragraph 54 below) the first-instance court was not allowed to proceed until the adoption of the final decision in the proceedings for the return of children; (b) the first-instance court had not referred S.V. and her to the mandatory mediation procedure before divorce, contrary to section 44 of the Family Act (see paragraph 52 below); and (c) she had not participated in the family assessment procedure carried out by the social welfare centre. The applicant also reiterated her earlier argument that her younger daughter, L.V., was emotionally attached to her and was at an age when it was in her best interests to live with her mother, as her separation from the mother would be more detrimental than separation from her siblings. As regards her two older children, the applicant emphasised that if they really wanted to remain living with their father in Croatia, she was prepared to respect that wish. However, the decision on their custody should not have been made before the decision in the return proceedings.

By a judgment of 23 February 2011 the Vukovar County Court dismissed an appeal lodged by the applicant and upheld the first-instance judgment, which thereby became final. The second-instance judgment was served on the applicant’s representative on 16 March 2011. The relevant part of that judgment reads as follows:

“In her appeal the appellant argues that ... the [first-instance] court was not allowed to proceed in these [civil] proceedings until the final resolution of the [non-contentious] proceedings for the return of wrongfully retained children pending before the same court, in accordance with Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction. The purpose of that Convention was that children were returned to the State from which they had been abducted. Only then should proceedings for custody have been conducted, given that the children had been uprooted from the milieu in which they had lived hitherto.

[The appellant] also argues that she did not participate in the [family assessment] carried out by the Vinkovci Social Welfare centre. She considers that the youngest child L.V. was very emotionally attached to her and that the [first-instance] court should have taken that into account.

As the parties, however, did not agree on custody in respect of their youngest child, L.V., the court, deferring to the opinion of the social welfare centre and respecting the wishes of the children, decided that she should remain living with her father, brother and sister in Komletinci.

In particular, during an interview with the expert team of the Vinkovci Social Welfare Centre the children expressed the wish to live with their father because they considered their relationship with the father closer, they liked the life in Komletinci [that is] in a smaller community where they had more free time, spent time with children of their age, spent free time playing which was not the case in Austria, and also because they went to school here where they were well accepted.

From the report of the Vinkovci Social Welfare Centre it follows that the children are very attached to each other and that it would not be wise to separate them and change their environment, which corresponds to the children’s wishes.

Since the children verbalised the wish to live together and given that L.V. did not yet have school obligations – which made it possible for her to maintain more extensive contacts with her mother, if the parents agreed – the first-instance court, endorsing the best interests of the child within the meaning of Article 3 of the International Convention on the Rights of the Child and [in accordance with] the basic principles of the European Convention on the Exercise of Children’s Rights, correctly decided that the children should remain living with their father [while] leaving open the possibility that this decision could be altered if circumstances change.

The case file also contains certificates of domicile in respect of all the parties’ children from which it is evident that their registered address is in Komletinci since 17 October 2006. In any event, the whole family previously lived together in Komletinci.

Having regard to the above, the appellant’s argument that she was prevented from participating in the assessment carried out by the social welfare centre is unfounded because she participated in the proceedings before the [first-instance] court, as did the father, where the representative of the social welfare centre was present and where the parents reached an agreement on the custody [of the children] except L.V. Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contact with their mother, it could not be said that they were abducted or uprooted from the milieu in which they were living, particularly taking into account the wishes of the children and the fact that the two older children go to school in Komletinci.”

The applicant then, on 15 April 2011, lodged a constitutional complaint alleging, inter alia, that her constitutional rights to a fair hearing and to respect for her family life, guaranteed by Article 29 § 1 and Article 35 of the Croatian Constitution (see paragraph 51 above) had been violated.

On 25 January 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 15 February 2012. The relevant part of that decision reads as follows:

“... the report of the Vinkovci Social Welfare Centre of 20 October 2010 and the opinion of a psychologist are enclosed with the case file of the first-instance court. Both [documents] come to the same conclusion that the children of the parties should continue living with their father after the divorce.

At the main hearing held in the case on 19 November 2011 both parties proposed that the two older children (E.V. and F.V.) remain living with their father and that [the youngest child] L.V. remain living with her mother – who lodged the constitutional complaint. At that hearing the complainant as the defendant did not ask for the application of the Hague Convention on the Civil Aspects of International Child Abduction.

The Constitutional Court considers that in every [set of] proceedings concerning custody of children the best interests of the child must be a primary consideration.

The Constitutional Court finds that ... the Vinkovci Social Welfare Centre undertook the necessary steps before adopting the report concerning custody of the children.

The proposal expressed in the report of the Social Welfare Centre that all three children should continue living with their father after the divorce is, after all, in line with the opinion of the psychologist.

The proposal was based on the fact that both older children (E.L. and F.L.) had expressed the wish as to which parent they wanted to live with, whereas as regards the [youngest child] L.V. it was established that she was ‘still at an age where she does not completely understand her parents’ situation, that all three children were very emotionally attached to each other and that, [while] accepting the fact that their parents were divorcing, they wanted to continue living together, with at least one parent.

In view of the above, the Constitutional Court considers that the constitutional rights provided for in Article 29 paragraph 1 and Article 35 of the Constitution, and the rights guaranteed by Articles 6 and 8 of the European Convention on Human Rights were not breached by the contested decisions.

The Constitutional Court also notes that the legal views expressed in the contested judgments ... are primarily based on the best interests of the child and are also founded on the established principles of international law.

As regards the complainant’s arguments that the Hague Convention on the Civil Aspects of International Child Abduction was applicable in the instant case, the Constitutional Court finds correct the ... reasoning expressed in the contested judgment of the Vukovar County Court, which ... reads:

‘... Given that an agreement was reached as to where the children would live, even if they go to Austria on weekends to maintain contacts with their mother, it could not be said that they were abducted ...’ ”

Given that the applicant did not respect the interim custody agreement of 19 November 2010 (see paragraph 43 above) and did not return L.V. to Croatia on 9 January 2011 but retained her in Austria, on 13 April 2011 S.V., relying on the Hague Convention, requested the Croatian Ministry of Health and Social Welfare, as the Croatian Central Authority, to contact the Austrian Ministry of Justice, as the Austrian Central Authority, with a view to returning L.V.

On 11 May 2011 the Graz First-Instance Court instituted proceedings relating to the applicant’s request for return of the children.

On 22 September 2011 the Graz First-Instance Court, relying on Article 13 paragraph 1 (b) of the Hague Convention (see paragraph 54 below), dismissed S.V.’s request. It held that returning L.V. to Croatia would expose her to psychological harm or otherwise place her in an intolerable situation. In so deciding it relied on the opinion of an expert in psychology which suggested that separating L.V. from her mother would have devastating consequences. The court added, obiter dictum, that the Vinkovci Municipal Court had breached the Hague Convention when it had decided on custody of the applicant’s three children before a final decision had been delivered on her request for the return of the children.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants were born in 1973 and 1975 respectively and live in P.

The applicants lived with their parents in A, Croatia. In August 1991 the first applicant joined the Croatian Army and left his home, and in November 1991 the second applicant went to live in Germany.

In the second half of November 1991 the Yugoslav People’s Army, together with Serbian paramilitary forces, gained control of A, which thus became a part of the “Serbian Autonomous Region of Krajina” (hereinafter “the Krajina”).

On 6 January 1992 two unknown men took the applicants’ parents, S.C. and P.C., from their home in A. On 7 January 1992 the bodies of the applicants’ parents were driven by municipal employees in a truck to the front of their house. The applicants’ uncle was called and he gave the municipal employees clothes for the burial of the applicants’ parents.

On 7 January 1992 the A police carried out a search of a flat occupied by X in A and found an automatic gun, a hand gun and some bullets.

On 7 January 1992 the A police interviewed police officers R.B., M.S., D.J., V.K., M.T., D.K. and M.M. The police officers, apart from R.B., had been on duty at a checkpoint in R. Street in A between 7 p.m. on 6 January 1992 and 7 a.m. on 7 January 1992.

R.B. said that on 6 January 1992 at about 7 p.m. police officer X had asked him, R.B., as his hierarchical superior, for permission to take a short leave of absence. He, R.B., had granted the request. R.B. did not know when X had returned to duty at the police station, but thought that he had seen him between 11 p.m. and midnight that same evening.

M.S. said that at about 8 p.m. on 6 January 1992 a vehicle had approached the checkpoint and D.J. had stopped it. At that time he, M.S., had been in the barracks. D.J. and D.K. had entered and asked him if he knew a police officer with a birthmark on his face or a Volkswagen vehicle with the number 44 as the last digits on its registration plates, which he did not. At about 10 p.m. the same day, however, he stopped a Volkswagen vehicle which had 44 as the last two digits on its registration plates. The vehicle was driven by police officer X, who was known personally to M.S., D.J. and D.K. confirmed that it was the same vehicle which had passed from the opposite direction at about 8 p.m.

D.J. said that at about 8.10 p.m. on 6 January 1992 a vehicle of Volkswagen make had approached the checkpoint and that he had stopped it. The driver had been dressed in the uniform of the civil police. D.J.’s attention had been diverted by a vehicle which had come from the opposite direction and he had stopped it. At that moment the Volkswagen had suddenly started up and left in the direction of K. D.K. told him that he had not had the time to fully examine the vehicle but that he had seen that the driver and the person in the front passenger seat were dressed in the uniforms of the civil police. He had also seen two civilians in the back seat, a man and a woman. D.K. noted down the registration number of that vehicle. At about 11 p.m. the same day police officer M.S. stopped a vehicle which had arrived from the direction of K and asked the other police officers on duty whether it was the same vehicle they had stopped at about 8 p.m., which D.J. confirmed. The only occupants were the driver and the person in the front passenger seat. D.J. asked them who the other passengers had been and where they had taken them. The driver said that the passengers had been S.C. and P.C. and that they had left them in a village.

M.T. and D.K. confirmed the above events.

On 8 January 1992 the A police interviewed X and Y, two police officers. They both admitted that on 6 January 1992 they had taken S.C. and P.C. in X’s vehicle. On the outskirts of A the police had stopped them. However, the attention of the police had been diverted by another vehicle and X and Y had quickly driven away. They had taken S.C. and P.C. to the village of J. X said that there they had taken S.C. and P.C. out of the vehicle and started walking. He had been carrying an automatic gun and at one point S.C. had attempted to take it from him, resulting in a commotion in which the weapon had fired and killed S.C. After that Y had shot and killed P.C. Y said that X had killed S.C. when they had arrived in J and then forced him, Y, to kill P.C.

On 9 January 1992 the A police lodged a criminal complaint with the B public prosecutor against X and Y, alleging that on 6 January 1992 at 10.30 p.m. in J, a village near the town of A, they had killed S.C. and P.C. They had first driven the victims in X’s vehicle to J and taken them out of the vehicle. X had then killed S.C. with an automatic gun and Y had killed P.C. with a hand gun.

On 28 January 1992 the B County Court opened an investigation in respect of X and Y on suspicion of killing S.C. and P.C.

On 13 April 1992 an investigating judge of the B County Court commissioned a ballistics report.

In August 1995 the Croatian authorities regained control of the town of A. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (“UNTAES”). On 15 January 1998 the UNTAES mandate came to an end and the transfer of power to the Croatian authorities began.

On 16 April 1996 the A police interviewed M.C., the brother of the late S.C., who told them that his brother and his brother’s wife had been killed on 6 January 1992. Their bodies had been given to him by the police of the “Serbian Autonomous Region of Krajina” and he had been allowed to bury them.

On 19 September 2000 the C police interviewed M.M., who said that on 6 January 1992 he had been on duty, together with M.B., at the entrance to village J. At about 9 p.m. he and M.M. had been walking towards a ramp by the barracks where all patrols had their meeting point and had heard a vehicle being driven, followed by several gun shots and then a vehicle starting up again. When they arrived at the meeting point they found Lj.Č., D.J. and M.P. there, who told them that “two fools [had] just brought two people in a car and killed them by the road.” None of the officers on patrol dared go to the crime scene. Soon they all went home. In the morning of 7 January 1992 the police from A came to M.M.’s house and took him to A police station, where they interviewed him and told him that X and his friend had killed S.C. and his wife. He had heard that X had moved to Bosnia and Herzegovina.

On 21 September 2000 the C police interviewed the applicants, who had learned from B.Ž., who lived with their parents during the relevant period, that X and Y had been charged with the killing of the applicants’ parents.

On 4 January 2001 an investigating judge of the C County Court (Županijski sud u C) ordered an investigation concerning X and Y, who were not available to the Croatian authorities, on suspicion of killing S.C. and P.C. An international arrest warrant was also issued against the suspects, who had absconded.

On 8 February 2002 the Ministry of the Interior asked the Ministry of Justice whether extradition proceedings would be instituted against the suspects.

On 14 January 2005 Interpol in Washington informed the Croatian authorities that the Department of Homeland Security in Cleveland, Ohio, had a valid location for Y. On 19 January 2005 the Ministry of the Interior informed the Ministry of Justice, asking the latter to institute proceedings for Y’s extradition. On 20 January 2004 the Ministry of Justice asked the C County Court for the relevant documents with a view to seeking Y’s extradition from the United States authorities. All the evidence from the case file was translated into English and on 11 January 2006 the Ministry of Justice sent a “request for [Y’s] temporary arrest” to the US Department of Justice through diplomatic channels.

On 10 January 2007 the Ministry of Foreign Affairs informed the Ministry of Justice that the US Department of Justice had requested some additional documents. On 10 May 2007 the C County Court sent the requested information and documents to the Ministry of Justice.

It appears that on 12 and 13 February 2008 the Croatian and US authorities held consultations in Zagreb in connection with the extradition of Y.

On 8 April 2008 the C County State Attorney’s Office again asked the Ministry of Justice to seek Y’s extradition. On 17 June 2008 the Ministry of Justice sent additional documents to the US Department of Justice in connection with Y’s extradition.

In April 2009 the US Department of Homeland Security asked the Croatian Ministry of Justice for legal assistance in connection with the criminal investigation pending against Y in the United States on charges of attempted procurement of United States citizenship by fraud, and fraud and misuse of visas, permits and other official documents. They asked for all documents related to any criminal offences Y might have committed. This request was forwarded to the State Attorney’s Office on 7 January 2013.

On 26 March 2014 the State Attorney’s Office forwarded the requested documents, translated into English, to the US Department of Homeland Security.

In 2002 the Ministry of Justice agreed that an international arrest warrant should be issued in respect of X.

On 2 January 2008 an investigating judge of the C County Court asked the competent court in Serbia to hear evidence from X in connection with the killing of S.C. and P.C. On 28 July 2008 the Serbian authorities asked for a certified translation of that request and all relevant documents into the Serbian language.

On 13 August 2008 the Croatian Ministry of Justice sent a note to the Serbian Ministry of Justice to the effect that, according to an agreement between the two States, each State party had the right to communicate in its own language and to submit documents in that language without the need for translations.

On 18 February 2009 the Serbian authorities heard evidence from X. He said that the criminal proceedings against him and Y for the murder of S.C. and P.C. had been instituted in 1992 in the B Municipal Court and that they had been acquitted. He also denied any involvement in the killing of S.C. and P.C. On 3 March 2009 his statement was forwarded to the Croatian authorities.

On 16 March 2006 the applicants brought a civil action against the State in the C Municipal Court (Općinski sud u C), seeking non-pecuniary damages in the amount of 500,000 Croatian kuna (HRK) each (about 65,500 euros (EUR)), in connection with the killing of their parents. They relied on sections 1 and 2 of the 2003 Liability Act.

On 9 March 2007 the C Municipal Court granted the applicants’ claim and awarded them each HRK 300,000 (about EUR 40,000), finding that the killing of the applicants’ parents had been an act of terror. This judgment was reversed by the C County Court on 3 December 2009. The applicants were also ordered to pay the State HRK 52,500 (about EUR 6,800) in costs, comprising the fees chargeable for the State’s representation by the State Attorney’s Office. The relevant part of that judgment reads as follows:

“The plaintiffs in the first-instance proceedings based their claim for damages on the provisions of the 2003 Liability Act .... It is necessary to point to the content of section 3 of that Act, which provides that the obligation to compensate for damage exists irrespective of whether the person responsible has been identified, criminally prosecuted or found guilty. However, having regard to the correct establishment of the facts by the first-instance court, which found that the events at issue had occurred on 7 January 1992 in the village of J, in the then occupied territory of the Republic of Croatia which at that time was under the control of illegal formations of the “Serbian Republic of Krajina” and outside the control of the Republic of Croatia and its lawful bodies, the appellant’s submission that [the killing of the plaintiffs’ parents] ... amounted to war-related damage is well-founded.

Section 2 of the Act on the Assessment of War-related Damage ... provides that war-related damage is damage caused by enemy or illegal groups, or legal bodies of the Republic of Croatia, as well as accomplices of these groups and bodies, where that damage occurred directly or indirectly at the time specified in section 1 of that Act (from 15 August 1990 until the end of hostilities and war operations conducted against the Republic of Croatia). Therefore, given the nature, place and time of the events at issue (the killing of innocent civilians in the occupied territory of the Republic of Croatia during the Homeland war), it is to be concluded that the events at issue are to be legally classified as war-related damage and that the appellant is not responsible for them or for the damage thus caused.

This judgment was upheld by the Supreme Court on 19 June 2012. The court endorsed the County Court’s finding that the killing of the applicants’ parents amounted to war-related damage and added, in so far as relevant, the following:

“Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [both] imply [an act of] violence, the act of damage [in the present case] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war-related damage for which the defendant is not liable. This is because the damage did not occur in the territory under the de facto sovereignty of the Republic of Croatia but in the then occupied territory, where there was no possibility for lawful action by the bodies of the Republic of Croatia; this circumstance excludes the otherwise objective liability of the defendant. Furthermore, the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order (this being the aim characteristic of an act of terror) but also involved the use of force, killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of the Republic of Croatia and preventing its lawful bodies from functioning.

On 1 February 2013 the applicants lodged a constitutional complaint. They argued, inter alia, that in a number of its previous judgments the Supreme Court had recognised the plaintiffs’ right to compensation for damage caused by death during the Homeland War in Croatia, and cited seven judgments of that court adopted between 2006 and 2010 (see paragraph 52 below). The constitutional complaint was dismissed on 9 May 2013.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Dmitry Dedov;Guido Raimondi;Helena Jäderblom;Iulia Motoc;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Síofra O’Leary;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Pere Pastor Vilanova

The applicants, a married couple and their son, were born in 1964, 1965 and 2000 respectively.

The applicants were brought up in Baghdad. Since the 1990s the husband (the first applicant) had run his own construction and transport business with exclusively American clients and had had his office at the United States military base “Victoria camp” (seemingly referring to Camp Victory). Several of his employees had on occasion been warned not to cooperate with the Americans.

On 26 October 2004 the first applicant was the target of a murder attempt carried out by al-Qaeda. He had to stay in hospital for three months. There, unknown men asked for him, after which he was treated in three different hospitals.

In 2005 his brother was kidnapped by al-Qaeda members, who claimed that they would kill him because of the first applicant’s collaboration with the Americans. His brother was released through bribery a few days later and immediately fled from Iraq. The applicants fled to Jordan and stayed there until December 2006, before returning to Iraq.

Soon afterwards, al-Qaeda members placed a bomb next to the applicants’ house. However, it was detected by the first applicant’s wife (the second applicant), and the American forces arrested the perpetrator. During interrogation, the perpetrator confessed that he had been paid by al-Qaeda to kill the first applicant and disclosed the names of sixteen people who had been designated to watch the applicants. Thereafter, the applicants moved to Syria, although the first applicant continued his business in Iraq. During this time, al-Qaeda destroyed their home and the first applicant’s business stocks.

In January 2008 the applicants returned to Baghdad. In October 2008 the first applicant and his daughter were shot at when driving. The daughter was taken to hospital, where she died. The first applicant then stopped working and the family moved to a series of different locations in Baghdad. The first applicant’s business stocks were attacked four or five times by al-Qaeda members, who had threatened the guards. The first applicant stated that he had not received any personal threats since 2008 as the family had repeatedly moved around. The son (the third applicant) had spent most of his time indoors for fear of attacks and had only attended school for his final examinations. The applicants had never asked the domestic authorities for protection, fearing that the authorities lacked the ability to protect them and might disclose their address, on account of alQaeda’s collaboration with the authorities. The applicants maintained that, in the event of their return to Iraq, they risked persecution by al-Qaeda and that the first applicant appeared on al-Qaeda’s death list.

On 14 December 2010 the first applicant applied for asylum and a residence permit in Sweden. On 11 July 2011 his application was rejected since he was registered as having left the country.

On 25 August 2011 the first applicant applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19 September 2011. As to their state of health, the first applicant still had an open and infected wound on his stomach where he had been shot in 2004. They submitted several documents, including identity papers, a death certificate for the first and second applicants’ daughter and a medical certificate for the first applicant’s injury.

All three applicants were given an introductory interview by the Migration Agency (Migrationsverket) on 26 September 2011. Subsequently, the first and second applicants were given a further interview on 11 October 2011, which lasted almost three and a half hours. The third applicant was interviewed briefly for a second time and the first applicant was interviewed a third time. The applicants were assisted by State-appointed counsel.

On 22 November 2011 the Migration Agency rejected the applicants’ asylum application. In respect of the Iraqi authorities’ ability to provide protection against persecution by non-State actors, the Agency stated:

Every citizen should have access to police authorities within a reasonable visiting distance. During the past few years the police authorities have taken numerous measures to fight against corruption, clan and militia connections and pure criminality within the police.

The current country information, however, shows that there are serious shortcomings in the police’s work on crime-scene investigations and inquests. One of the reasons is probably that many police officers are relatively new and lack experience, and that it takes time to introduce a new method of investigation based on technical evidence. This problem is naturally accentuated by the fact that many individual police officers live under a threat emanating from different terrorist groups, which is likely to diminish their effectiveness. Nevertheless, the current country information shows that the number of suspects who have been prosecuted during the past few years has increased significantly. Even if fewer than half of all suspects are eventually prosecuted, this is still an improvement.

The Iraqi security forces have been reinforced significantly and no longer have any shortcomings in human terms. Instances of police infiltration, which were previously widespread, have decreased significantly. The leading representatives of the police authority have expressed both their willingness and their ambition to maintain general security in Iraq. The current country information also shows that it has become more difficult for al-Qaeda Iraq to operate freely in Iraq and that there has been a significant decline in sectarian violence. Today violence is mainly aimed at individual targets, especially civil servants, police, security forces and some minorities.

Regarding the assessment of the applicants’ refugee status, as well as their need for alternative protection, the Agency held as follows:

The Migration Agency notes that [the first applicant] had a contract with the Americans until 2008. For this reason [the first applicant] has been exposed to two murder attempts, his brother has been kidnapped and [the first and second applicant]’s daughter has been killed. Furthermore, on several occasions, [the first applicant] has suffered physical damage to his house and stock. [The first and second applicants] are convinced that al-Qaeda is behind these abuses. The family are also afraid of al-Qaeda in the event of their return.

The Migration Agency notes that [the first applicant] stopped working for the Americans in 2008 after his and [the second applicant]’s daughter was killed. The Migration Agency further notes that [the first applicant] stayed in Baghdad until December 2010 and that [the second and third applicants] lived in Baghdad until September 2011. During this period they were not exposed to any direct abuses. [The first applicant] has, however, been indirectly threatened on four or five occasions by the people who guard his stock. Also, his stock has been attacked. [The first and second applicants] explained that they had managed to escape from abuses because they were in hiding and living in different places in Baghdad. The Migration Agency notes that [the first and second applicants] have two daughters who live with their grandmother in Baghdad and a daughter who is married and lives with her family in Baghdad. These family members have not been exposed to any threats or abuses.

The Migration Agency notes that the abuses which the family claim to be at risk of being exposed to are criminal acts which their home country’s authorities have a duty to prosecute. In order to decide whether the family can enjoy protection against the abuses they fear, the Migration Agency notes the following.

In accordance with the principle that it is for an asylum-seeker to justify his or her need for protection and that it is primarily for the applicant to provide relevant information for the assessment in the case, the onus must be on the applicant to plead that he or she cannot or, owing to a severe fear of the consequences, for example, will not avail himself or herself of the protection of the authorities available in Iraq. In addition, the applicant must justify this. The shortcomings which still exist in the Iraqi legal system are then to be noted and evaluated in the context of the individual assessment of each asylum case. The circumstances on which an applicant relies in arguing that protection by the authorities is deficient are first of all examined in the usual way. In those cases in which the alleged risk of persecution or other abuses does not emanate from the authorities, which as a rule is the case in Iraq, the applicant must show what efforts he or she has made to be afforded protection by the authorities. The applicant can do this either by relying on evidence or by giving a credible account of events which appear plausible. When assessing the authorities’ ability to protect against threats of violence emanating from terrorist groups or unknown perpetrators in a specific case, the individual’s situation, as well as the severity of the violence or threats, their nature and their local reach, must be assessed individually (see Migration Agency, Legal opinion on protection by the authorities in Iraq, 5 April 2011, Lifos 24948).

The Migration Agency considers that the family have been exposed to the most serious forms of abuses (ytterst allvarliga övergrepp) by al-Qaeda from 2004 until 2008. Such abuses, however, took place three years ago and nowadays it is more difficult for al-Qaeda to operate freely in Iraq. [The first and second applicants] never turned to the Iraqi authorities for protection. [The first applicant] has stated that the Iraqi authorities lack the capacity to protect the family. Further, he has stated that he did not dare to turn to the authorities because he would then have been forced to disclose his address, which could have resulted in al-Qaeda being able to find him. [The second applicant] has stated that al-Qaeda works together with the authorities. As stated earlier, the Migration Agency finds that there has been a significant decline in instances of police infiltration, which previously were widespread. Against the background of the fact that [the first and second applicants] have not even tried to seek the protection of the Iraqi authorities, the Migration Agency considers that they have not made a plausible case that they would not have access to protection by the authorities in the event of potential threats from al-Qaeda upon returning to Iraq.

Against this background, the Migration Agency finds that [the first and second applicants] have not made a plausible case that the Iraqi authorities lack the capacity and the will to protect the family from being exposed to persecution within the meaning of Chapter 4, section 1, of the Aliens Act or to abuses within the meaning of Chapter 4, section 2, first subsection, first point, first line, of the Aliens Act. The Migration Agency notes in this context that there is no armed conflict in Iraq. The Migration Agency therefore finds that the family are not to be regarded as refugees or as being in need of alternative or other protection, for which reason the family do not have the right to refugee status or alternative protection status.

The Migration Agency notes that fierce tensions between opposing factions are prevalent in Baghdad. Nevertheless, against the background of the above reasoning, the Migration Agency finds that the family also cannot be regarded as being otherwise in need of protection, within the meaning of Chapter 4, section 2a, first subsection, of the Aliens Act. The family do not therefore have any right to a status falling under any other need of protection.

In conclusion, the Migration Agency found that there were no grounds to grant the family residence permits. Against this background, the Migration Agency rejected the family’s application and ordered their deportation from Sweden on the strength of Chapter 8, section 1, of the Aliens Act.

The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire to their home and the first applicant’s business stock in 2006 and 2008 and the murder of the first and second applicants’ daughter in 2008, but thereafter they had not dared to contact the authorities owing to the risk of disclosing their residence. Together with their written submissions, they enclosed a translated written statement allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the first applicant on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the first applicant had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that their house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a DVD containing an audiovisual recording of a public debate on television concerning corruption and the infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the first applicant had participated in the public debate, which had been broadcast on the Alhurra channel in Iraq on 12 February 2008, that is to say, four years earlier. Finally, submitting various medical certificates, the applicants contended that the first applicant’s health had deteriorated and that he could not obtain adequate hospital care in Iraq.

The Migration Agency made submissions before the Migration Court. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and of little value as evidence.

On 23 April 2012 the Migration Court upheld the Migration Agency’s decision. Concerning the need for protection, the court held:

“It is undisputed in the present case that the applicants’ grounds for protection must be examined in relation to Iraq. The general situation in Iraq is not such that as to confer the automatic right to a residence permit. Therefore, an individual assessment of the grounds for protection invoked by the applicants must be made.

The applicants have alleged that they are in need of protection upon returning to Iraq as they risk being exposed to ill-treatment by al-Qaeda because [the first applicant]’s company did contract-based work for the Americans in Iraq until 2008.

The Migration Court considers that the alleged events took place in the distant past, that it is difficult to see why there would still be a threat as [the first applicant] no longer performs such work, and that, in the event that some threats should still exist, it appears likely [framstår som troligt] that the Iraqi law-enforcement authorities are both willing and able to offer the applicants the necessary protection. In such circumstances, there are no grounds to grant the applicants any residence permit on the basis of a need for protection.

The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012.

On 29 August 2012 the applicants submitted an application to the Migration Agency for a re-examination of their case. They maintained that the first applicant was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the first applicant being interviewed in English, a video showing a demonstration, and a video showing a television debate.

On 26 September 2012 the Migration Agency refused the applicants’ application. The applicants did not appeal to the Migration Court against that decision.


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

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1957 and lives in Penza.

The applicant sued the Penza town administration and the Penza committee for municipal property management (“the property management committee”), seeking to obtain free of charge the title to a plot of land under the office building he owned.

On 16 November 2005 the Leninskiy District Court of Penza (“the District Court”) held for the applicant and ordered the town administration to establish his title to the land at issue. The judgment was not appealed against and became final within the statutory ten-day time-limit.

On 7 March 2006 the Penza town administration lodged an application for supervisory review.

On 19 June 2006 the Presidium of the Penza Regional Court quashed the judgment of 16 November 2005, considering that the District Court had incorrectly established the facts of the case and erroneously applied the domestic material law. It consequently remitted the case to the District Court for consideration anew.

On 10 August 2006 the District Court dismissed the applicant’s claim in full. The applicant did not appeal and the judgment became final within the statutory ten-day time-limit.