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

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1960 and lives in Oleksandrivka, Kirovograd Region.

On 3 February 2007 the applicant was assaulted. According to the subsequent findings of medical experts, she sustained haematomas on her jaw, shoulder and hip, a bruise under her right eye, concussion, and a displaced rib fracture. The applicant alleges that her assailants were Mr and Mrs K., her daughter’s former parents-in-law, whereas the domestic authorities found that it was only Mrs K. who had assaulted the applicant. The incident occurred in front of the applicant’s two-year-old granddaughter.

On 4 February 2007 the applicant lodged a complaint with the police.

On 5 February 2007 a forensic medical expert examined the applicant. He found that she had haematomas which he classified as “minor bodily injuries”.

On 14 February 2007 the Oleksandrivka District Police Department (“the Oleksandrivka police”) refused to institute criminal proceedings in connection with the incident.

On 22 February 2007 a forensic medical examination of the applicant was carried out. The expert found that in addition to the previously noted haematomas, the applicant had also suffered concussion and a displaced rib fracture. The expert classified the injuries as “bodily harm of medium severity”.

On 20 March 2007 the Oleksandrivka prosecutor overruled the decision of 14 February 2007 as premature and on 21 March 2007 instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant.

On 20 May 2007 the investigator suspended the investigation for failure to identify the perpetrator.

On 29 August and 3 October 2007 the Oleksandrivka prosecutor’s office issued two decisions in which it overruled the investigator’s decision of 20 May 2007 as premature.

On 6 October 2007 the investigator questioned Mr and Mrs K.

On 1 December 2007 the investigator again suspended the investigation for failure to identify the perpetrator.

On 10 December 2007 the Oleksandrivka prosecutor’s office, in response to the applicant’s complaint about the progress of the investigation, asked the Kirovograd Regional Police Department to have the police officers in charge of the investigation disciplined.

On 21 January 2008 the Kirovograd Regional Police Department instructed the Oleksandrivka police to immediately resume the investigation.

On 7 April 2008 the investigator decided to ask a forensic medical expert to determine the degree of gravity of the applicant’s injuries. On 22 September 2008 the expert drew up a report generally confirming the findings of 22 February 2007.

On 15 May 2008 the Kirovograd Regional Police Department informed the applicant that the police officers in charge of the case had been disciplined for omissions in the investigation.

On 23 October 2008 the Oleksandrivka Court absolved Mrs K. from criminal liability under an amnesty law, on the grounds that she had an elderly mother who was dependent on her. On 24 February 2009 the Kirovograd Regional Court of Appeal (“the Court of Appeal”) quashed that judgment, finding no evidence that Mrs K.’s mother was dependent on her.

On 1 July 2009 the investigator refused to institute criminal proceedings against Mr K.

On 7 July 2009 the Novomyrgorod prosecutor issued a bill of indictment against Mrs K.

On 24 July 2009 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding that the applicant had not been informed about the completion of the investigation until 3 July 2009 and had therefore not been given enough time to study the case file. It also held that the refusal to institute criminal proceedings against Mr K. had contravened the law.

On 13 November 2009 the Novomyrgorod prosecutor quashed the decision of 1 July 2009 not to institute criminal proceedings against Mr K. Subsequently the investigator again refused to institute criminal proceedings against Mr K.

On 21 December 2009 the new round of pre-trial investigation in the case against Mrs K. was completed and another bill of indictment was issued by the Novomyrgorod prosecutor.

On 29 March 2010 the Oleksandrivka Court remitted the case against Mrs K. for further investigation, holding in particular that the decision not to institute criminal proceedings against Mr K. had been premature, since his role in the incident had not been sufficiently clarified.

On 13 July 2010 the Novomyrgorod prosecutor quashed the decision not to institute criminal proceedings against Mr K. On 26 May 2011 the investigator again refused to institute criminal proceedings against Mr K.

On 20 December 2011 the Znamyanka Court convicted Mrs K. of inflicting bodily harm of medium severity on the applicant, sentencing her to restriction of liberty for two years, suspended for a one-year probationary period. The court found that the decision not to institute criminal proceedings against Mr K. in connection with the same incident had been correct. Mrs K., the prosecutor and the applicant appealed.

On 6 March 2012 the Court of Appeal quashed the judgment and discontinued the criminal proceedings against Mrs K. as time-barred.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1954 and lives in Rijeka.

On 10 December 1995 the applicant’s employment as an unqualified worker was terminated as a result of her employer becoming insolvent. At that time she had twenty-four years and ten months of service (radni staž) recorded in her “employment book” (radna knjižica).

The medical documentation submitted by the applicant shows that since 1993 she has been suffering from a psychiatric condition – depression and neurosis. The medical documents from various dates show her continuous incapacity of working.

On 5 November 1996 the Regional Office of the Croatian Employment Bureau in Rijeka (Hrvatski zavod za zapošljavanje, Područna služba u Rijeci, hereinafter “the Rijeka Employment Bureau”) granted the applicant unemployment benefits in the amount of 410.89 Croatian kunas (HRK – about 55 euros (EUR)) for 468 days, starting from 11 December 1995. There was no appeal, so that decision became final.

On 17 June 1997 the applicant lodged an application with the Rijeka Employment Bureau for the extension of the duration of unemployment benefits due to her ongoing temporary inability to work. She submitted a medical certificate that she had been ill and thus temporarily incapable of working.

On 27 June 1997 the Rijeka Employment Bureau, relying on section 25(1)(2) of the Employment Act, renewed her entitlement to unemployment benefits until further notice. She was to receive HRK 441 (about EUR 59) per month. This entitlement was to continue unless any legally prescribed conditions for withholding the payments occurred before the entitlement period expired, or until her right to compensation ceased to exist.

In December 1997 two additional pensionable years of service (staž osiguranja) were entered into the applicant’s employment book. However, that did not mean that the applicant was actually employed, but only that contributions for her pension and invalidity insurance had been paid. Such contributions are regularly paid by employers. However, since the applicant was not employed, these contributions were paid by the Croatian Employment Bureau.

On 26 May 1999 the Rijeka Employment Bureau provided the applicant with an “employment benefit card” (kartica korisnika novčane naknade).

On 27 March 2001 the Rijeka Employment Bureau terminated the applicant’s entitlement to unemployment benefits with effect from 10 June 1998. It held that the deadline prescribed in section 25(1)(2) of the Employment Act had expired on 9 June 1998.

On 3 April 2001 the Rijeka Employment Bureau established that the applicant was to repay it the amount of HRK 19,451.69 (about EUR 2,600).

The applicant lodged appeals against both decisions with the Central Office of the Croatian Employment Bureau (Hrvatski zavod za zapošljavanje, Središnja služba, hereinafter “the Central Employment Bureau”). She argued that she had the right to unemployment benefits until she retired. She also relied on her family circumstances and submitted that she was married and that her husband’s pension was HRK 1400 (about EUR 188), and that they had a child of school age and an older son who was employed. However, that body dismissed both her appeals as unfounded on 11 May 2001 and 15 May 2001. It held that she had been entitled to unemployment benefits for as long as she had been unable to work, but subject to a limit of twelve months.

On 25 July 2001 the applicant then lodged two administrative actions with the Administrative Court, seeking the annulment of the Central Employment Bureau’s decisions of 11 and 15 May 2001. She claimed that she had twenty-seven years of service, and as such was entitled to unemployment benefits until she was next employed or until she retired.

On 22 September 2004 the Administrative Court dismissed the claim concerning the decision of 11 May 2001 upholding the decision of 27 March 2001 (see paragraph 10 above) as ill-founded, endorsing the arguments and conclusions of the lower bodies.

In a separate judgment of the same day the Administrative Court quashed the decision of 15 May 2001 which upheld the decision of 3 April 2001 by which the applicant had been ordered to repay the sum of HRK 19,451.69 (see paragraph 14 above). It instructed the parties to seek relief in civil proceedings before a competent municipal court.

On 25 March 2005 the Rijeka Employment Bureau contacted the applicant by letter, proposing to reach an out-of-court settlement within fifteen days regarding the repayment of the unemployment benefits which she had received between 9 June 1998 and 27 March 2001, in total HRK 19,451.69. She was cautioned that the Rijeka Employment Bureau would otherwise be compelled to institute civil proceedings against her for repayment of the amount claimed.

The applicant replied that she was in poor health, unemployed and without any income, and that in these circumstances she could not accept the obligation to repay the money sought.

On 14 April 2009 the applicant lodged an application with the Rijeka Employment Bureau, seeking to overturn its 27 March 2001 decision to terminate her entitlement to unemployment benefits. It was dismissed on 29 June 2009 and this decision was upheld on appeal on 10 July 2009 as well as by the High Administrative Court on 5 July 2012.

A subsequent constitutional complaint by the applicant was declared inadmissible on 19 December 2012.

On 3 August 2005 the Rijeka Employment Bureau brought a civil action against the applicant for unjust enrichment, seeking repayment of HRK 19,451.69, together with statutory interest, on the basis of the unemployment benefits she had received between 10 June 1998 and 27 March 2001.

On 16 November 2005 the applicant responded to the civil action, alleging, inter alia, that the Rijeka Employment Bureau’s actions violated her human rights. She also submitted medical documentation demonstrating her fragile state of health, numerous health problems caused by her difficult personal situation due to long-term unemployment, the poverty in which she and her family lived, and her inability to work. She also brought a counterclaim against the Rijeka Employment Bureau, seeking payment of unemployment benefits from 31 January 2011 to the date of her future retirement, in the amount of HRK 55,680.15.

On 26 June 2006 the Rijeka Municipal Court (Općinski sud u Rijeci) dismissed the Rijeka Employment Bureau’s claim as unfounded, relying on section 55 of the Employment Mediation and Unemployment Rights Act (see paragraph 36 below). It held that the applicant could not be held responsible for the bureau’s errors and negligence, particularly bearing in mind that she had not concealed any fact or misled it. The same court also rejected the applicant’s counterclaim, given that a final and binding decision on her entitlement to unemployment benefits had already been adopted in the administrative proceedings, and that such a decision could not be contested in the context of civil proceedings.

Both the applicant and the Rijeka Employment Bureau lodged appeals against the firstinstance judgment.

On 25 February 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed the applicant’s appeal and upheld the first-instance judgment with regard to her counterclaim. It also allowed the Rijeka Employment Bureau’s appeal and, relying on section 210 of the Civil Obligations Act, reversed the first-instance judgment in respect of the unjust enrichment claim, and ordered the applicant to pay HRK 19,451.69 plus statutory interest running form 3 August 2005 (the date of lodging the claim against the applicant) to the Rijeka Employment Bureau. It held that the applicant was obliged to return the amount in dispute in view of the fact that a legal basis for the unemployment benefits had ceased to exist on 10 June 1998.

The applicant then lodged both an appeal on points of law and a constitutional complaint.

On 28 April 2010 the Supreme Court declared her appeal on points of law inadmissible. The applicant then lodged a constitutional complaint against that decision.

On 14 March 2013 the Constitutional Court dismissed both of her constitutional complaints as unfounded. It served its decision on the applicant’s representative on 27 March 2013.

Meanwhile, on 5 December 2012 the applicant had replied to the Rijeka Employment Bureau’s letter offering her an out-of-court settlement for the amount owed to be reimbursed in sixty instalments. She had stated that she was not able to repay the amount due because she was unemployed, in ill health and had no income. She asked the Rijeka Employment Bureau for debt relief.

On 22 April 2013, before the Rijeka Municipal Court, the Rijeka Employment Bureau lodged an application to enforce the Rijeka County Court’s judgment of 25 February 2009 against the applicant.

On 20 June 2013 the Rijeka Municipal Court issued a writ of execution in respect of the applicant’s bank account(s).

On 26 June 2013 the first-instance court ordered the applicant to pay court fees in the amount of HRK 540 (about EUR 72), on account of the enforcement application and the writ of execution.

By a letter of 14 August 2013 the Financial Agency (FINA) informed the first-instance court that there were no records of the applicant’s active bank accounts.

By a conclusion (zaključak) of 30 September 2013 the Rijeka Municipal Court informed the Rijeka Employment Bureau about the Financial Agency’s letter and ordered it to give the court information about the applicant’s bank account or make a further proposal.

On 22 October 2013 the Rijeka Employment Bureau lodged an application to change the object of the enforcement (prijedlog za promjenu predmeta i sredstva ovrhe), and requested enforcement in relation to the applicant’s movable property, given that she was unemployed and had no income, real property or motor vehicle.

By a decision taken on 8 December 2014 the Rijeka Municipal Court declared the application of 22 October 2013 inadmissible on the basis that it was premature, since changing the object of enforcement is not possible before a writ of execution becomes final.

The enforcement proceedings are still ongoing.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1964 and lives in Vukovar.

The events at issue took place in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People’s Army and paramilitary Serbian armed forces during the armed conflict in Croatia from August to November 1991 and was finally occupied at the end of November 1991. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (the “UNPA”).

In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

Between 4 p.m. and 5 p.m. on 2 October 1991, during a general alert, two unknown uniformed men, armed with firearms, apprehended the applicant’s husband, Lj.N., in the basement or the courtyard of a building in Kudeljarska street in Vukovar, and drove him away.

On 24 November 1991, the body of Lj.N. was found in the River Danube at Novi Sad, Serbia.

On 25 November 1991 the Institute for Forensic Medicine of the Medical Faculty in Novi Sad carried out an autopsy on the body of Lj.N. which established that the cause of death was a gunshot wound caused by a bullet fired from a hand gun.

In 2004 the applicant brought a civil action before the Vukovar Municipal Court against the State, represented by the Vukovar Municipality State Attorney’s Office, seeking damages in connection with the death of her husband.

In connection with the above civil proceedings, the Vukovar Municipality State Attorney’s Office asked the Vukovar police to submit all information concerning the death of the applicant’s husband. The police thereby learned about the death of the applicant’s husband for the first time and opened an enquiry into it.

On 24 January 2005 the police interviewed the applicant, who stated that on 2 October 1991 her husband had been abducted from the basement of a building in Vukovar by two Croatian soldiers and driven away. She named six other persons who had been present in the basement on that occasion, B.Š., K.Š., J.T., S.P., M.P. and J.M. However, K.Š., S.P. and M.P. had died in the meantime.

On the same day the police interviewed J.T., who stated that the applicant’s husband had been taken from the basement of a building in Vukovar in October 1991 by two uniformed and armed men wearing masks.

On 3 February 2005 the police interviewed B.Š., who stated that he had joined the Croatian Army in August 1991 and had only been visiting his wife K.Š. and their children, who had sought shelter from the shelling of Vukovar in the same basement as the applicant and her husband. He said he had not been present when the applicant’s husband had been taken.

On 15 February 2005 the Vukovar police lodged a criminal complaint with the Vukovar County State Attorney’s Office against an unknown perpetrator in connection with the killing of the applicant’s husband, classifying the offence as a war crime against the civilian population.

On 5 May 2009 the applicant approached the Vukovar County State Attorney’s Office and told them that B.Š. had been present when her husband was taken. She also stated that after K.Š. had died around 10 November 1991, one of the men who had taken her husband had come to the basement to take J.M. On that occasion B.Š. ‒ who had also been present ‒ whispered to the applicant: ‘This is the man who took Lj.[N.]’. The applicant also stated that B.Š. lived in Zagreb.

On 9 July 2009 the Zagreb police interviewed B.Š. He said that he had not been present when the applicant’s husband had been taken and did not know the identity of those who had taken him.

On 21 July 2009 the Vukovar police interviewed J.M., who said that she had been present in the basement on the day Lj.N. had been taken but had not seen the men who had taken him.

On 24 March 2011 an investigating judge of the Zagreb County Court heard evidence from B.Š., who repeated his prior statement.

On 3 May 2011 an investigating judge of the Vukovar County Court interviewed the applicant, who repeated her statement.

On 12 November 2011 the Vukovar police informed the Vukovar County State Attorney’s Office that they had not learned any new information.

As indicated above (see paragraph 11) in November 2004 the applicant brought a civil action against the State in the Vukovar Municipal Court, seeking compensation in connection with the death of her husband. The claim was dismissed on 18 September 2008 and was upheld on appeal by the Vukovar County Court and the Supreme Court on 21 April 2009 and 16 February 2011 respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired.

A subsequent constitutional complaint lodged by the applicant was dismissed on 12 July 2011.


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

The applicant was born in 1955 and lives in Yuzhnoukrayinsk. At the time of the events he was the director of a private joint stock company.

In November 2003 the local court delivered a judgment ordering a debt recovery by a certain Mr Ts. to the applicant. On 12 December 2003 Mr Ts.’s wife, acting under a power of attorney, authorised the applicant to use their car. On 9 March 2004 she revoked her power of attorney. The car, however, remained with the applicant.

On 25 and 29 March 2004 criminal proceedings were instituted against the applicant on suspicion of forcible assertion of private rights and extortion, following a complaint by Mr Ts. The latter claimed that the applicant was arbitrarily retaining his car and was extorting money for it.

On 30 March 2004 the applicant was arrested in his office as a criminal suspect. He was placed in the Arbuzynka Temporary Detention Facility (“the Arbuzynka ITT”). Following a search of the company’s premises, the police seized the car in question.

Two days later, on 1 April 2004, Mr Ts. wrote a receipt confirming that the applicant had paid him 1,700 US dollars (USD) in respect of pecuniary and non-pecuniary damage and that he had no claims against the applicant. He addressed the receipt in question to the investigator dealing with the applicant’s criminal case.

On the same day the applicant was released subject to a commitment not to leave the town.

On 20 April 2004 the Yuzhnoukrayinsk Town Court (“the Yuzhnoukrayinsk Court”) quashed the decisions of 25 and 29 March 2004. On 3 June 2004 and 5 April 2005 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court, respectively, upheld that ruling. The courts held that there had been no grounds for instituting criminal proceedings against the applicant as there was no indication of a criminal offence.

On 21 September 2005 the applicant lodged a claim for damages against the local prosecutor’s office and police. He claimed compensation for pecuniary and non-pecuniary damage in respect of the following four issues: his arbitrary criminal prosecution, his unlawful arrest, the allegedly unlawful search of the company’s premises, and the seizure of the car as having amounted to his deprivation of property. More specifically, the applicant complained that there had been no reasons to arrest him and that he had never been summoned to the police. He further noted that his arrest had taken place in his office, in front of his colleagues, and that he had suffered stress and humiliation. He also observed, in the context of the complaint about his unlawful detention, that the conditions of his detention in the Arbuzynka ITT had been very poor (poor food and dirty linen, and impossibility to receive any parcels from the outside).

The applicant’s claim in respect of pecuniary damage included the amount of the debt owed by Mr Ts. to him, which the applicant estimated as being equivalent to the value of the impounded car. The applicant therefore claimed that that car should be returned to him. Furthermore, he claimed an equivalent to USD 5,000, which he had allegedly been forced to pay to Mr Ts. as a result of the unlawfully instituted criminal proceedings (whereas Mr Ts. had indicated a lower amount, USD 1,700, in his receipt – see paragraph 8 above). The applicant also claimed UAH 150,000 (at the time equivalent to EUR 24,650) in respect of non-pecuniary damage.

On 5 May 2006 the Yuzhnoukrayinsk Court allowed the applicant’s claim in part. It awarded him UAH 8,585 in compensation for pecuniary damage, as that was the amount (equivalent to USD 1,700) paid by the applicant to Mr Ts. and confirmed by the latter’s receipt. The court also awarded the applicant UAH 25,000 (at the time equal to about EUR 3,800) in respect of non-pecuniary damage. It relied, in particular, on the Compensation Act and Article 5 of the Convention. The aforementioned amounts were to be paid to the applicant from the State budget.

The applicant, the State Treasury of Ukraine and the Mykolayiv Regional Prosecutor’s Office appealed.

By a letter of 6 July 2006 the Court of Appeal sent the applicant copies of the defendants’ appeals and informed him that he could comment on them by 14 July 2006. The letter also contained a court summons for 19 July 2006. As indicated on the post stamp, it was dispatched on 14 July 2006. The applicant received that letter on 19 July 2006.

On 19 July 2006 the Court of Appeal, following a hearing with the participation of the defendants, but in the applicant’s absence, quashed the judgment of 5 May 2006 and issued a new one. It agreed with the first-instance court’s conclusion that the applicant “had suffered distress as a result of the illegal actions of law-enforcement officials”, but considered the compensation award to be unreasonably high. The appellate court awarded the applicant UAH 5,000 (around 750 euros at the time) in compensation for non-pecuniary damage and UAH 1,000 in costs and expenses. In rejecting his claim for compensation in respect of pecuniary damage, the court noted that the car did not belong to the applicant and the State was not required to reimburse him money paid to a private individual.

Neither the decision of the appellate court nor the verbatim records of its hearing contain any information regarding the notification of the applicant of that hearing.

The applicant appealed on points of law. He complained, in particular, that he had received the summons on the day of the hearing before the appellate court, which prevented him from participating in it.

On 26 November 2007 the Kherson Regional Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal on points of law with broadly couched reasoning that it was unsubstantiated.


CASE OF ALEKSANDROV AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

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


Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

The applicant was born in 1959 and lives in Baku.

Gahramanli and Others v. Azerbaijan (no. 36503/11, §§ 6-32, 8 October 2015).

The applicant was nominated by the Classic wing of the Popular Front party to stand as a candidate in the parliamentary elections of 7 November 2010 in the single-mandate Zangilan-Gubadly Electoral Constituency No. 125. The applicant lost the election in his constituency.

After election day, the applicant lodged a complaint with the Central Electoral Commission (the “CEC”) concerning a number of irregularities in his constituency that had allegedly taken place during election day. He complained of various types of irregularity, including interference by public officials, illegal campaigning, obstruction and intimidation of election observers, ballot-box stuffing, repeated voting by the same individuals, incorrect vote-counting procedures, and a falsely inflated voter turnout. In support of his allegations, the applicant submitted various types of evidence documenting specific instances of the irregularities complained of, including statements made by election observers, and video and audio recordings.

On 20 November 2010 the CEC issued a decision rejecting the applicant’s claims. Its reasoning was similar to that in the CEC decision in Gahramanli and Others (cited above, §§ 21-26).

The applicant lodged further complaints with the Baku Court of Appeal and the Supreme Court which, on 24 November and 1 December 2010 respectively, dismissed the applicant’s appeals. Their reasoning was similar to that in their respective decisions in the Gahramanli and Others case (cited above, §§ 27-32).

In the meantime, before the Supreme Court delivered its final decision in the applicant’s case, on 29 November 2010 the Constitutional Court had confirmed the country-wide election results, including the election results in the applicant’s constituency, as final (ibid., § 30).

At the material time Mr Intigam Aliyev was representing not only the applicant in the present case, but also a total of twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court.

On 8 August 2014 criminal proceedings were instituted against Mr I. Aliyev, which are the subject of a separate application brought by him before the Court (application no. 68762/14). On 8 and 9 August 2014 the investigation authorities seized a large number of documents from Mr I. Aliyev’s office, including all the case files relating to the proceedings pending before the Court, which were in Mr Aliyev’s possession and which concerned over 100 applications in total. The file relating to the present application was also seized in its entirety. The facts relating to the seizure and the relevant proceedings are described in more detail in Annagi Hajibeyli v. Azerbaijan (no. 2204/11, §§ 21-28, 22 October 2015).

On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the file relating to the present application, to Mr Aliyev’s lawyer.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1971 and lives in London.

The applicant met V.T., a Lithuanian citizen, in the United Kingdom in 2005. They lived together in London.

On 18 September 2007 a son, A.M., was born to them. A.M. is a Lithuanian citizen.

In March 2008 V.T. went with the child to visit her family in Lithuania. After a month, the father went to Lithuania to fetch them. They all returned to the United Kingdom. In June the mother and their son went back to Lithuania for the summer. In July the mother wrote to the applicant stating that their relationship was over. She went to the United Kingdom shortly afterwards to collect their son’s belongings and returned to Lithuania, where she remained with the boy. On 17 July 2008 V.T. registered her and her son’s permanent residence at her parents’ address in Kuktiškės village, Utena district in Lithuania.

The applicant claimed that his son had been abducted and held in Lithuania without his consent. He initiated proceedings before the Vilnius Regional Court, asking that the child be returned to the United Kingdom, which was his son’s usual permanent place of residence.

By a decision of 6 March 2009, the Vilnius Regional Court dismissed the applicant’s request. The applicant, V.T., two of her lawyers and representatives of the Lithuanian child care authorities were present at the hearing. The child care specialist asked the court to resolve the issue of the child’s return to his country of birth as it saw fit. This notwithstanding, the authorities observed that the child had good living conditions in Lithuania and was growing up in a secure environment among loving people.

The court acknowledged that since his birth the boy’s parents had taken care of him together and that consequently his permanent place of residence was the United Kingdom. Both of the parents had custody rights in respect of the boy. The Vilnius Regional Court also dismissed V.T.’s allegation that the applicant had agreed that the child could settle permanently in Lithuania. Moreover, V.T. had no legal basis on which to decide to change the child’s permanent place of residence on her own. Her refusal to return the child to the country of his birth after the holidays in summer 2008 could not be recognised as being justified.

The Vilnius Regional Court nevertheless ruled that the child should stay in Lithuania. In setting out its reasons, the court held that before arriving in Lithuania the child had lived in London for some seven months. It was therefore his mother, who did not go out to work, who had predominantly taken care of him during that time. Moreover, his living conditions in the United Kingdom were worse than those in Lithuania. In particular, the boy and his parents had lived in London in one small room, with construction work going on close by. By contrast, in Lithuania the child lived at V.T.’s parents’ house where, according to a child care representative, the boy felt happy and was spry, active, communicative and loved. The court also observed that the boy’s mother had taken care of him the entire time since birth, that they were very close and that the boy had never been left with a nanny or any other person. Furthermore, even though there was no evidence that the applicant had ever behaved improperly in front of the child, or that he had abused alcohol, used drugs or resorted to violence, the applicant had not demonstrated that he had the skills to take care of such a small child. Accordingly, the boy’s separation from the mother and transfer to the father would not be in the child’s interests. It followed that the child could be returned to the United Kingdom only with the mother. Given that the mother could not survive financially in London on her own and that the applicant refused to guarantee having enough money to maintain the child’s mother or to guarantee living conditions for her if she were to come back with the child to the United Kingdom, the applicant’s request that the child be returned to the United Kingdom had to be denied.

The applicant then started new court proceedings in the High Court of Justice in England and Wales (hereinafter – “the HCJ”). In summer 2009 that court appointed a guardian ad litem for A.M.

In January 2010 the boy’s guardian recommended that he remain in the care of his mother. The guardian also recommended to the HCJ that there be a period of contact between the father and his son, so that they could rebuild their relationship.

During these proceedings, the applicant appeared in person, and V.T. gave evidence in person; she was also represented by her lawyers.

On 28 April 2010 the HCJ ruled that the child should permanently reside in Lithuania with his mother. The option for V.T. to come to the United Kingdom and take up a job there was not in the child’s best interests, given that the child would be placed in a nursery and would have two parents who were emotionally distant. Moreover, V.T. did not wish to live in England, even if she were to be supported by the applicant. Having acknowledged that the father had a genuine and serious interest in his son, the court held that the “central underlying problem” thus related to the promotion and preservation of a good relationship between the two of them.

The HCJ accepted that the applicant felt vulnerable in Lithuania but rejected his allegations about concerted attempts by the Lithuanian authorities to act against him. That notwithstanding, the HCJ also held:

“99. (...) it seems to me that in Lithuania [the applicant] will have very real difficulties in engaging in the contact in an appropriate way because of the pressures he will have in Lithuania. (...) I see real advantage in the contact being here [in London] so that the child gets to know his father in the father’s own environment.”

The HCJ thus considered that the correct place for their contact would be England. Furthermore, the preferred timing was “clearly as soon as possible”.

Accordingly, the child’s mother was to come to the United Kingdom and spend up to six weeks there, during which time a regime of contact between the father and the child would take place. Afterwards the mother was free to return to Lithuania with the child and to live there permanently. The HCJ also “wished to make it abundantly clear” to both parents that “albeit the issues relating to the welfare of children could change with circumstances, it was going to take a very significant change for there to be any re-visiting of the overarching plan described above”.

Once the child had settled permanently in Lithuania, the applicant would have a right to ongoing contact: essentially, four times a year there would be seven to ten days’ residential contact between him and his son. The first two meetings would take place in the United Kingdom, once the mother had brought the child there. That was contingent upon the father paying a sum to fund the trip, namely 600 pounds sterling (GBP) for each visit. Thereafter the father would have the choice as to where this contact was to take place and he could travel to Lithuania, pick up the child and communicate with him in any location worldwide that he wished.

The applicant attended the court hearing. At the end thereof the judge informed the applicant that the judgment would be enforceable in Lithuania subject to applications being made there in respect of the contact order after the child had returned to live there permanently.

On 18 June 2010 the HCJ adopted a revised judgment and order, reiterating that the applicant and V.T. were not on good terms with each other and that it had thus had to take a difficult decision on 28 April 2010 when it ruled that the mother should have permission to take the child to live in Lithuania permanently. There was a risk, as portrayed by the applicant, that the applicant could be shut out of the child’s life by the mother’s family. However, in the meantime no significant or dramatic change of circumstances had occurred which would necessitate amending the custody decision. On this point the HCJ also expressed its confidence in the Lithuanian courts:

“An additional point is that it seems to me that it is not open to me to proceed on the basis that the Lithuanian courts will do anything other than deal with this matter pursuant to [child’s] welfare principle. They are subject to Brussels II revised. Albeit I understand that the father was unhappy with the conclusions reached in the Lithuanian court, to my mind I cannot accept his submission that even if the mother and her family demonstrate the hostility he asserts, the Lithuanian court will join in and will not seek to promote the underlying theme of my judgments, namely, that there should be a contact between this father and son”.

As regards the jurisdiction of the Lithuanian courts for further examination of issues relating to parental responsibility and thus contact, the HCJ held:

“(a) recognising and intending that, subject to Article 9(1) of Council Regulation (EC) No 2201/2003, upon the Child, A.M., leaving the jurisdiction of England and Wales to live permanently in Lithuania pursuant to paragraph 3 of this Order, the courts of Lithuania will have jurisdiction in matters of parental responsibility, and thus contact ...”

The contact order established by the HCJ on 28 April and revised by it on 18 June 2010 set out three stages of contact:

– the first stage covered the period from 19 June until 14 July 2010, when the mother was to bring the child to the United Kingdom for paternal contact, subject to and conditional upon the applicant paying the sum of GPB 3,000 to the mother of the child;

– the second stage of the parental contact covered two periods of contact – 18-25 September and 11-18 December 2010 within the jurisdiction of England and Wales; two weeks before they were to take place, the applicant was to pay GBP 600 to the mother’s solicitors for the purpose of meeting the costs incurred by the mother when travelling with the child to the jurisdiction of England and Wales;

– the third stage covered two periods of paternal contact from 19-28 March and 18-27 June 2011, when the applicant was to pick up his son at the Romanian Embassy in Vilnius and was allowed to choose any location worldwide to be with his son; as of July 2011, the applicant could take his son from Vilnius and travel with him worldwide four times a year, for ten days on each occasion.

Lastly, the applicant raised the argument that from a practical point of view it would be easier for him to travel with his son if the boy had a passport from the same country. The HCJ thus ordered that after 1 September 2010 V.T. would provide the Romanian and/or Moldovan authorities with relevant documents and information to enable the applicant to obtain Romanian and/or Moldovan passports and/or travel documents for the child. Should the mother fail to comply, the applicant could lodge a complaint with the HCJ, which retained jurisdiction on this sole issue of passports/travel documents.

The applicant sought leave to appeal against the HCJ judgment and order of 18 June 2010, but on 16 September 2010 the Court of Appeal of England and Wales refused his application.

The first stage of the contact order adopted by the HCJ was implemented. The applicant paid V.T. the sum of GPB 3,000 for the costs incurred by her when taking their son to the United Kingdom, and V.T. took the child to London for four weeks’ paternal contact, which should have lasted from 19 June until 14 July 2010.

During that visit, on 8 July 2010 the boy’s guardian ad litem informed the HCJ that she was concerned about the risk factors in relation to ensuring the boy’s safety and his return to his mother’s care in the light of their imminent return to Lithuania. The guardian noted that she had been made aware that the applicant had made an application to the Court of Appeal for leave to appeal against the HCJ judgment and order of 18 June 2010. In the words of the boy’s guardian, the applicant had made abundantly clear his “obdurate attitude” to the judgment and order issued by the HCJ and his “steadfast view” that his son should live in the United Kingdom, irrespective of the child’s needs and best interests, which, as agreed by the HCJ court and the child care specialists, were best met on a day to day basis by his mother. The guardian also noted that the previous month the applicant had informed the United Kingdom authorities of his intention to leave the United Kingdom following the last session of his July 2010 contact period. Furthermore, the HCJ order of 18 June 2010 had allowed for the applicant to apply for a Romanian or Moldovan passport. In that connection, in June the applicant’s solicitor had urged V.T.’s solicitor to sign her son’s Romanian passport application form immediately. For the above reasons, the boy’s guardian ad litem had serious concerns that there was an increased risk of A.M. being abducted by his father. She thus recommended that the order of 18 June 2010 be varied and that the court suspend the last session of contact scheduled for 10 July to 13 July, allowing the boy and his mother to return to Lithuania before the expected time.

In addition to that, in an email of 9 July 2010 to the applicant from the Children and Family Court Advisory and Support Service (hereinafter – “Cafcass”) of England, a Cafcass lawyer wrote:

“Dear Mr Manic

I understand you have been served with the passport and tipstaff orders. I am concerned to note that you initially informed the tipstaff you only had one passport but after further discussions handed over two passports. The tipstaff have also reported to us that you had several passport photos of A.M., again this is of concern.

I realise you are not legally represented and I think it would be advisable for you to obtain legal advice before we next attend court. I can however impress upon you that if you breach the current orders and A.M. is not returned to his mother at the conclusion of contact then there will be very serious implications on your future contact with A.M. I therefore hope that you enjoy the following four days of contact and that you return him to his mother at the appropriate time and date.”

On 9 July 2010 the HCJ found the Cafcass communication ill-advised. The Moldovan and Romanian embassies were nonetheless ordered to advise V.T.’s solicitors if the applicant had made any application for travel documents in respect of the child and to refrain from issuing any such document. Having in the following days been informed by those two embassies that they had not been approached for a passport for the boy, the HCJ then ordered that V.T. make the boy available for the full visit in July. The boy’s mother afterwards took the boy to live with her in Lithuania.

On 16 September 2010 V.T.’s lawyer wrote to the applicant stating that V.T. was not proposing to bring their son to the United Kingdom so that the boy could see his father. V.T. believed that it would be too stressful for the boy and that the child was not ready to spend a week away from his mother. The applicant was also informed that jurisdiction over contact arrangements had now passed to the Lithuanian courts. V.T.’s lawyer also enclosed a cheque for GBP 600 by way of reimbursement of the sum the applicant had paid in relation to V.T.’s travel and accommodation expenses for the staying contact in September 2010.

On 7 October 2010 the applicant contacted the International Child Abduction Unit, the Central authority within the meaning of Council Regulation (EC) No. 2201/2003 in England, as regards the non-enforcement of the second stage of the HCJ mandate of 18 June 2010. The applicant noted that even though the GBP 600 for the September visit had been returned to him, he was ready to pay it again at any time should the contact go ahead.

On 18 October 2010 the aforementioned United Kingdom authority contacted the Child Rights Protection and Adoption Service in Lithuania (Valstybės vaiko teisių apsaugos ir įvaikinimo tarnyba, hereinafter – “the Service”) regarding the non-enforcement of the HCJ judgment and order. All the relevant documents ‒ including the HCJ contact order of 18 June 2010, the letter from V.T.’s solicitor (see paragraph 30 above) and the application form where the applicant stated that he was ready to pay GBP 600 so that a future visit would take place ‒ were transferred to the Lithuanian authority.

On 25 October 2010 the Service informed the International Child Abduction Unit in England that certificates issued in EU member states were directly enforceable in Lithuania, and they had therefore been submitted to a bailiff for execution (see paragraph 73 below). The Service also provided its counterpart in England with a list of the bailiffs acting in Utena region, where V.T. and the applicant’s son lived, and advised the applicant to contact one of the suggested bailiffs directly so that the HCJ order could be executed. The Service also noted that the procedural activity of the bailiff responsible for the enforcement of a foreign contact order was supervised by a regional court.

On 30 October 2010 the applicant contacted a bailiff working in Utena district of Lithuania. As is evidenced by the documents in the Court’s possession, between 30 October 2010 and 10 February 2011 the applicant wrote twenty six emails to the bailiff. The emails were written in English, with a Google translation into Lithuanian. In his very first email to the bailiff, the applicant noted that he had a certificate for a contact order under Article 41 of Regulation (EC) No. 2201/2003. As explained in his emails of 2 and 4 November 2010, he attached the enforcement certificate, a letter to the Lithuanian Central authority, the letter from V.T.’s solicitors (see paragraph 30 above) and proof that he had paid 130 Lithuanian litai (LTL, approximately 37 euros (EUR)) for the execution of the HCJ judgment in Lithuania, and promised to send other relevant information. The applicant also asked the bailiff to notify him if she was missing any documents and to inform him about the enforcement procedure. In his email of 2 November 2010 the applicant also indicated that, if it made it easier for the bailiff, she could reply to the applicant in Russian, a language he declared that he could understand.

In those emails to the bailiff, the applicant wrote, in particular, that he had sent the documents needed for the execution of the HCJ judgment by post (email of 5 November), and that Cafcass had assured him that the documents as posted by him to Lithuania were in order (email of 19 November, also attaching his email correspondence with Cafcass). It is apparent that the applicant and the bailiff spoke on the phone on 19 November, when the bailiff confirmed to the applicant that she had received the documents by DHL delivery the day before, but stated that the documents were not “original”. On 23 November the applicant again sent the documents to the bailiff via DHL post. He explained that the courts in England used black ink for the stamps but that, even so, the documents were marked as “original”. The same day the bailiff emailed the applicant saying that she needed the original paperwork, not photocopies. The applicant then asked the court in England to seal the HCJ order and posted the documents to the bailiff again.

By emails of 3 and 7 December the applicant asked the bailiff to inform him how the bailiff’s meeting with the child’s mother had gone, as regards the execution of the HCJ order, and mentioned that he was ready to make the payments according to the HJC order, so that the next visit [that of December 2010] would take place. By email of 9 December the applicant asked the bailiff to update him in writing about the steps she had taken to enforce the contact order. He mentioned that time was passing and this would cause damage to his relationship with his son. The applicant also asked the bailiff a number of times at what stage the enforcement procedure was (email of 13 December). In the applicant’s view, even though the bailiff’s assistant had told him over the phone that the matter had been passed over to the Lithuanian court, the applicant had received no explanation in writing as to which court that was and when the Lithuanian court decision was to be taken. The applicant wrote that “the blackout of information was leading me to believe that there was something wrong in the middle. I do not want to speculate and would be grateful if you wrote me a few lines to explain what is going on” (email of 15 December 2010). Later on, the applicant wrote that the bailiff’s “silence was agonising” (email of 5 January 2011). On 27 January the applicant reiterated his complaint that the bailiff had not informed him why the case was “dragged out”. He also asked the bailiff to provide him with answers in writing as well as with information about what he named “Complaints and Procedures”. Further, as is evident from the applicant’s emails of 1 and 7 February, the bailiff had told him over the phone that the Lithuanian court wanted the applicant to be present in the courtroom in Lithuania. He asked the bailiff what would be the reason for his appearance in court, but the bailiff did not respond. In an email of 8 February the applicant also wrote that, according to the bailiff, V.T. had not complied with the contact order because he had not paid her the GBP 600. The applicant explained however, that he had paid that sum, as mentioned in the letter of 16 September from 2010 V.T.’s lawyers, and asked the bailiff whether that evidence had been put before the Lithuanian court. Lastly, by an email of 10 February the applicant wrote that he could not understand the bailiff’s silence and why his emails went unanswered. He asked whether the bailiff had received instructions from her superiors or from Government agencies not to engage in any correspondence with him.

On 20 December 2010 the bailiff established that V.T. had not delivered the child for paternal contact which, in accordance with the order of the HCJ, was due to take place between 11 and 18 December 2010. For that reason, on 27 December 2010 the bailiff initiated court proceedings against V.T. concerning the non-enforcement of the United Kingdom court’s order.

On 26 January 2011 the Utena District Court sent to the applicant’s address in London a notification that court proceedings regarding non-execution of the HCJ judgment about his contact rights had been opened in Lithuania. The court wrote to the applicant that his “participation in the oral court hearing was not obligatory”. It was also explained to the applicant that he should nominate a representative in Lithuania on whom all the procedural documents could be served. Failing that, all procedural documents intended for the party residing abroad would remain in the case file and would be deemed to have been served.

In April 2011 the Lithuanian authorities granted the applicant legal aid for one year for the proceedings concerning non-execution of the HCJ order in Lithuania.

On 22 April 2011 the State-appointed lawyer wrote to the applicant that she had become acquainted with the case regarding the non-execution of the HCJ judgment. She wrote that V.T. had not taken the son for the visit [of December 2010] because the applicant had not transferred GBP 600, and asked him to explain the situation and send her a copy of the document confirming the transfer of that sum.

The same day the applicant wrote to the State-appointed lawyer stating that both the bailiff and the Utena District Court had the relevant documents. The applicant also attached to the letter some documents detailing the facts. He further attached the letter of 16 September 2010 (see paragraph 30 above) as proof that the child had not been taken to England in September, even though he had sent the money for that visit to materialise. Lastly, the applicant expressed his willingness to provide any other information, if needed.

On 27 April 2011 the Utena District Court dismissed the bailiff’s complaint. The applicant did not take part in that hearing, but had a State-appointed lawyer. As the court decision reads, “from V.T.’s explanations, information existing in the case-file, the explanations of the bailiff, and those of the [applicant’s] lawyer, it is clear that [V.T.] failed to execute the [HCJ] judgment, i.e. between 11 and 18 December 2010 she did not take the child A.M., born on 18 September 2007, for the contact visit with his father, because the father of the child had not paid GBP 600, and V.T. is unemployed and has no funds to take the child to England”. The Utena court also noted that by interim protective measures (laikinosios apsaugos priemonės) of 1 March 2011 imposed by the same court, the applicant was prohibited from removing the child from Lithuanian territory (see paragraphs 47-49 below). The decision stated that it could be appealed against within seven days.

On 2 May 2011 the Panevėžys State legal aid office informed the applicant by email about the court decision of 27 April 2011 and sent him its unofficial translation into English. Later that day the applicant emailed the State-appointed lawyer asking for an explanation as to what had happened in the courtroom on 27 April 2011. In an email of 2 May he asked that lawyer to appeal against the decision of 27 April, so that the seven days’ time-limit to appeal was not missed. On 16 May 2011 the lawyer acting under the legal aid scheme posted the decision of 27 April 2011 to the applicant. The Government stated that the applicant had not appealed against the 27 April 2011 decision.

According to the medical documents dated 19 July, 2 August and 30 September 2010, after the child’s and his mother’s visit to England for the contact visit, the boy returned very anxious, he could not sleep at night and he was afraid of people. The boy was also very active, irritable and required exceptional attention from his mother. As of 9 September 2010 the boy had been visiting a mental health centre. He had been diagnosed with emotional disorder, manifested as increased anxiety and frequent mood change.

On 13 December 2010 V.T. addressed to the Utena District Court a request that the child contact arrangements as set out in the HCJ judgment of 18 June 2010 be changed and that she be awarded child support and child support arrears (skola už vaiko išlaikymą) by the applicant. In support of her request, V.T. included the aforementioned medical records.

She submitted a modified claim on 9 February 2011. On that day she also applied to the court for interim protective measures to suspend execution of the contact order of the HCJ, and not to allow the applicant to be alone with his son. V.T. stated that the applicant had not paid the sum of money mentioned in the HCJ judgment and that the contact visits between him and the child had therefore not taken place. It was also her belief that the child did not recognise his father. Moreover, it was not in the child’s interests to communicate with the applicant in England, as the HCJ had ordered, because that environment was unfamiliar to the boy. She attached to her request what appears to be the Cafcass email of 9 July 2010 and the HCJ decision of the same day. V.T. insisted that the boy should never communicate with his father without her being present.

On 22 February 2011 the Utena District Court accepted for examination V.T.’s request for the change of parental contact. On the same day the court decided to examine V.T.’s request for interim protective measures on 1 March 2011, and not to inform the applicant about that oral hearing, without indicating in the text of the decision the reason why the applicant should not know about the hearing beforehand. The child care authority and V.T. were invited to attend the hearing. Moreover, the court deemed V.T.’s participation at the hearing to be obligatory. The court further held that, as the applicant resided in England and the question of interim protective measures had not yet been decided, for reasons of procedural economy any procedural decisions should be sent to the applicant only once the issue of interim protective measures had been examined. This procedural ruling was not appealable.

On 28 February 2011 V.T. submitted to the Utena District Court further written clarifications as to the necessity of interim protective measures. She claimed that the applicant might kidnap and not return their son should the boy be taken to England for a contact visit. She also stated that the applicant had also been prohibited from having contact with the boy for four days of the contact period in July 2010. It is apparent that V.T. relied on an email of 9 July 2010 from Cafcass to the applicant as evidence (see paragraph 28 above). V.T. also stated that after his last meeting with his father, the boy had been nervous and afraid of other people.

By a decision of 1 March 2011 the Utena District Court granted in part V.T.’s request for interim protective measures. At the hearing the child’s mother was present, as was a representative of the child care authorities, who observed that the applicant ought to retain the right to have contact with his son in Lithuania. The authority nevertheless took the view that the applicant should not be allowed to remove the child from Lithuania for fear that he might flee with his son. In Lithuania, the boy was spry and V.T. took good care of him. As the record of the hearing reads, V.T.’s request was essentially based on her fear that the applicant would not return the child to her if he was allowed to take his son from Lithuania. She also stated that after the staying visit of July 2010 the boy had been nervous and exhausted and would not leave her side.

The Utena District Court noted a conflict between the applicant and V.T. over the child’s contact arrangements. On the basis of the email from Cafcass dated 9 July 2010 (see paragraph 28 above), the Utena District Court found:

“The documents submitted prove that the [applicant] was going to take the son away from the United Kingdom and prepared other personal documents for him for that purpose; during his contacts with the child, the latter’s personal documents were therefore taken from him and he was prohibited from removing the child from the jurisdiction of England and Wales. Taking this into account, there is a real risk that the execution of the [Lithuanian] court decision might become more complicated (if it were to become necessary to apply to a national court of a foreign State for acknowledgment and permission to execute a Lithuanian court decision, if one were to be made in V.T.’s favour) or even impossible (if, for example, the applicant were to conceal the child’s whereabouts or change them periodically). The risk that the execution of the court decision might become more complicated or even impossible constitutes a basis for ordering interim protective measures (...). It was also taken into account that the child’s domicile is in Lithuania, where he attends a kindergarten, and a sudden change in the environment might therefore have a negative impact on a child.”

The Utena District Court nevertheless acknowledged that a child whose parents were separated had the right to have constant and direct contact with both parents irrespective of their places of residence. It was also of paramount importance to avoid the alienation of the child from his father. Given that the applicant resided outside Lithuania and this could make it problematic for him to have contact with his son on certain days, the court determined that the applicant had the right to have contact with the child on any day on the premises of the Utena region child care authorities and in the presence of their representative. With prior notice, the applicant could see the child every day from 4 p.m. to 6 p.m. V.T. was obliged to make the child available for the contact.

On 3 March 2011 the Utena District Court sent a notice to the applicant’s address in London about the pending civil case for maintenance of his son, the establishment of the new contact order and the applicant’s right to respond to V.T.’s claim. The court further reiterated the applicant’s duty to appoint a representative living in Lithuania, on whom all the procedural documents would be served by the court (Article 805 of the Code of Civil Procedure). On the same day V.T.’s lawyers informed the applicant by email about the district court’s decision to apply interim protective measures and sent him an electronic copy of that decision, in Lithuanian. It was explained to the applicant that the court decision would be translated and served on him as soon as possible by the Utena court itself or by post. The lawyer also explained to the applicant that by the decision of 1 March 2011 the Utena District Court had decided to apply interim protective measures and to prohibit the applicant from removing his son from the territory of Lithuania. The applicant was informed that the decision had entered into force on the day it was issued.

The next day the applicant wrote an email to the Utena court acknowledging that he had received a court decision, but complaining that the content was in Lithuanian, and therefore he could not understand it.

The decision of 1 March was translated into English and on 14 March 2011 the Utena court posted it to the applicant’s address in London. Because of technical problems, the decision was served on the applicant on 1 June 2011. The 1 March 2011 decision could be appealed against within seven days from the day it had been served.

As established on 4 March 2014 by the Panevėžys Regional Court, the applicant did not appeal against the decision of 1 March 2011.

On 29 July 2011 the Utena District Court sent a written notice to the applicant informing him that on 29 September 2011 it was going to consider V.T.’s claim for changing the child contact arrangements and awarding the child support. The applicant was also informed that, in accordance with Article 805 of the Code of Civil Procedure, when a party living abroad does not designate any authorised person, all procedural documents intended for the party living abroad will remain in the case file and will be deemed to have been served.

The Utena District Court held the planned preparatory meeting on 29 September 2011, which the applicant did not attend. Nor did he take part in a subsequent hearing on 24 November 2011, even though he had been informed about it by that court.

At that subsequent hearing, about which the applicant was informed but which he did not attend, the Utena District Court asked the English judicial authorities to question the applicant as a witness so that it could be established what property he owned in England in connection with the claim for child support. Later on, the Utena District Court postponed hearings scheduled for 12 January and 23 February 2012 until such time as it had received, from the United Kingdom authorities, information about the property the applicant owned in England.

In December 2011, the applicant asked the Lithuanian child care authorities about the well-being of his son. In reply, the Lithuanian child care authorities described the child’s living conditions in Lithuania: he had a room of his own in V.T.’s parents’ house and V.T. paid for his kindergarten, food and clothes. In sum, the boy’s living conditions were good and the child care authority had no concerns about his well-being.

On 2 April 2012 the applicant gave evidence about his property in England. The Utena District Court received that evidence at the end of April. On 8 May 2012 the court scheduled a preliminary hearing in the civil case for maintenance and contact rights for 6 June 2012. The parties to the case, including the applicant, were informed about that future hearing.

On 26 June 2012 the Utena District Court adopted the decision regarding the maintenance of the applicant’s son and the order for the establishment of the contact between the applicant and the child. The court also noted that judicial documents had been served on the applicant, he had been granted the right to file a statement of defence with regard to the claim, and he had been informed about the preparatory hearing; moreover, he was obliged to submit details about his financial situation but he had neither filed any statement of defence, nor submitted the requisite details about his financial situation. Neither had the applicant expressed his opinion regarding V.T.’s claim in his written explanations. The court established that V.T. had taken all the measures necessary to satisfy her son’s interests so that he could grow up in a healthy environment. Having assessed the parties’ financial situations, the Utena District Court ordered the applicant to pay LTL 400 (EUR 115) per month in child support.

As to the child contact arrangements, the Utena District Court held:

“The details of the case show that the child contact arrangements were established by the Order issued by the United Kingdom High Court of Justice, Family Division, on 18 June 2010 and under this Order the defendant was expected to have contact with his son on the following dates: from 18 September 2010 to 25 September 2010; from 11 December 2010 to 18 December 2010; from 19 March 2011 to 28 March 2011; from 18 June 2011 to 27 June 2011, and thereafter four times a year for a period of ten days each time. After the first two contact sessions the father was to have the right to choose any place in the world for all further contact sessions and to travel with his child without being accompanied by his mother.

The [applicant] has not submitted any details proving that he had any contact with his child on the aforementioned dates or stating what the reasons were if he did not have such contact. [V.T.] stated that the last time the father saw his child was June 2010. The email submitted shows that no payment was received with regard to the contact that was due to occur on 11 December 2010 ... During the period of examination of the case, the [applicant] was allowed to contact his son in Lithuania in the presence of the representative of the Department for Protection of Children’s Rights ... According to the information provided by the representative of the Department for Protection of Children’s Rights ... no contact sessions between father and son took place during the period of application for interim protective measures lasting from 1 March 2011 to June 2012. As there is no evidence that there has been any contact between father and son since June 2010, there are no reasonable grounds to state that the [applicant] considers the meetings with his son significant and that there exists a close relationship between him and his son so it is indeed probable that the sudden departure of the child with his father and his removal from his habitual environment would not enhance the child’s sense of security or his emotional stability and might be harmful to him. Therefore the approach in this matter should be more cautious.

The court agrees with the argument put forward by [V.T.] that the overriding interest regarding the child is to develop in a healthy, safe and quiet environment where he would not experience psychological tension, fear and perpetual conflict. It would appear from [V.T.’s] explanations and from email communications that there are reasonable grounds for stating that there is conflict in the relationship, personal discord, and an absence of tolerance between the parties, making communication between the respondent and his child complicated. However, according to medical documents submitted it cannot be unequivocally asserted that the child’s irritability is purely a consequence of the respondent’s contact sessions with the child. The medical reports state that the child is especially active and demanding of exceptional attention from his mother and that this condition was recorded on 30 August 2010 but ‒ as stated by [V.T.] ‒ the last time the [applicant] saw his child was June 2010. This condition could therefore be caused by strained relations between [V.T.] and [the applicant]. On the other hand, it should be noted that a child who is a minor cannot be a hostage of his parents’ conflict and the conflict relationship between the parties is not a circumstance justifying a need to restrict the [applicant’s] contacts with his child.

During the proceedings it is permissible for a child to be questioned, unless this cannot be done due to his age or degree of maturity. A.M. was born on 18 September 2007, i.e. his age allows it to be concluded or to express his opinion, and he was therefore not questioned during the hearing.

In circumstances such as these, the court determines the procedure for the father to have contact with the child by taking into consideration the child’s interests and by creating a possibility for the separated father to be involved in the child’s upbringing (...). At the same time, the period during which a close emotional bond between the [applicant] and the child might be restored should be established as lasting until the child is seven years old.”

Accordingly, for the first six months after the date when the Utena District Court decision came into effect, the applicant was to communicate with his son for no more than two hours per working day for ten days per month, in an environment to which the child was accustomed – at the child’s home or the child care authority’s premises, in the presence of his mother, a psychologist and a child care specialist. During the following six months the applicant could communicate with his son no more than four hours per day for twelve days per month, either in the child’s accustomed environment or in another place, in the presence of the child’s mother or without her, if she so agreed. Lastly, during the period starting from the thirteenth month and until his son’s seventh birthday, the applicant could see him on a daily basis for twelve days in March, June, September and December, in the child’s accustomed environment, as agreed by the applicant and V.T., but without her being present. The applicant also had the right to visit his son unimpeded whenever his child was sick. The parents were to ensure that the possibility existed for each of them to communicate with the child by telephone (or other electronic means) or some other form of communication.

The applicant acknowledges that he received the Utena District Court decision on 13 August 2012.

In response to the applicant’s request for information, on 28 August 2012 the Utena District Court sent the applicant a letter concerning his right to appeal against the decision of 26 June 2012 within thirty days. The court also informed the applicant about his right to restore a missed procedural time limit, if that time limit had been missed for serious reasons. The court further reiterated that the applicant had not appointed a representative living in Lithuania for dealing with contact rights and child maintenance, and on whom all the procedural documents would be served by the court. That being so, pursuant to Article 805 of the Code of Civil Procedure, all procedural documents addressed to a party residing abroad were left in the case file and were deemed to have been served.

On 13 February 2013 the applicant asked the Utena District Court to reopen the court proceedings. He argued that he had missed the statutory three-month time-limit for such reopening because he was a Romanian citizen residing in the United Kingdom and did not speak Lithuanian.

By a ruling of 14 June 2013 the Utena District Court refused the applicant’s request for reopening. The court first pointed out that a judge’s notice dated 3 March 2011 had explained the applicant’s duty to appoint a representative or an authorised person and the consequences of the failure to fulfil that duty (see paragraph 50 above). However, the applicant had not appointed any such representative. Furthermore, although the applicant acknowledged that he had been served with the 26 June 2012 decision (translated into English and containing the provisions as to how it could be appealed against) on 13 August 2012, he had not asked for a re-opening of the proceedings until 13 February 2013, that is nearly six months after receiving it. In reply to the applicant’s argument that he was a foreigner, the Lithuanian court noted that the applicant knew the rules regulating State-provided legal aid and could have asked for it in a timely fashion, because in earlier proceedings for non-enforcement of the HCJ contact order, he had been provided with State-provided legal aid by a decision dated 24 March 2011 (see paragraph 39 above).

On 4 March 2014 the Panevėžys Regional Court dismissed another request by the applicant to reopen the civil proceedings and to review the Utena District Court’s decision of 26 June 2012 concerning the contact order between the applicant and his son. The court reiterated that the applicant had not communicated directly with his son since June 2010. Similarly, there was no evidence of the applicant ever having visited his son either after the court decision of 1 March 2011 regarding interim protective measures or after the subsequent decision of 26 June 2012, both of which allowed the applicant to see his child for several hours each day. As to the applicant’s plea that the Lithuanian court order would cause him inconvenience – especially the necessity of travelling to Lithuania ‒ this did not mean that the contact as established by the Utena District Court on 26 June 2012 had established was negligible. According to the contact order, the applicant could see his son on workdays, ten to twelve days a month. Knowing about such a contact order, the applicant could plan his work and income accordingly. It was also significant that, according to the contact order issued by the HCJ on 18 June 2010, the child had to be collected from the Romanian embassy in Vilnius. Consequently, the applicant would in any case have to leave his place of residence and job in England and come to Lithuania. He would also inevitably have to invest time and money. Accordingly, taking into account the child’s interests – his age, state of health, need for mother’s attention, and the fact that the applicant had not directly communicated with his son since June 2010 ‒ the contact order as set by the Utena District Court on 26 June 2012 reasonably gave priority to the child’s interests whilst not neglecting the applicant’s right to be in contact with his son.

Lastly, the Panevėžys Regional Court noted that V.T. had moved to Lithuania in the summer of 2008. The child’s residence had been declared to be Lithuania in July 2008. V.T. had lodged the request that the child contact order be modified with the Utena City District Court when more than three months had passed after the move to Lithuania (see paragraphs 22 and 43 above). It followed that ‒ pursuant to Articles 8 and 9 of the Regulation (EC) No. 2201/2003 ‒ in 2011 the United Kingdom courts were no longer able to consider decisions concerning the modification of contact orders, as those cases fell within the jurisdiction of the court of the Member State where the child was habitually resident, in this case Lithuania.

By a ruling of 12 May 2014 the Supreme Court refused to examine the applicant’s appeal on points of law.

On an unknown day, V.T. asked the Utena District Court to permanently restrict the applicant’s parental rights. She argued that the applicant did not communicate with his son. In turn, the applicant asked the Lithuanian court to suspend the proceedings until the Court had examined his application against Lithuania (no. 46600/11). On 10 June 2014 the Utena District Court suspended the proceedings in Lithuania until the applicant’s case is decided by the Court.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant was born in 1945 and lives in L’Aquila.

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

The applicant was the owner of a plot of land designated as industrial land in L’Aquila. The land in issue – of a surface area of 10,059 square metres – was recorded in the land register as Folio no. 4, Parcel no. 222.

In 1989, the regional administrative authorities granted the Consortium for the industrial development of L’Aquila (“Consorzio per il nucleo di sviluppo industriale di L’Aquila”, hereinafter “the Consortium”) permission to occupy a portion of the applicant’s land in order to begin the construction of an industrial compound.

On an unspecified date, the applicant brought an action for damages in the L’Aquila District Court against the regional administrative authorities seeking compensation for the remaining portion of land which had become unusable following the occupation.

On 9 April 1991 the regional administrative authorities issued an expropriation order in respect of the land.

Pursuant to the order, the consortium offered the applicant a global sum of 106.400.000 Italian lire (ITL) (equivalent to EUR 55,000) as compensation for the expropriation and compensation for the period during which the land had been occupied before the expropriation order had been issued.

The offer was refused by the applicant on the ground that he considered it inadequate.

On 9 May 1991, contesting the amount that he had been awarded, the applicant brought proceedings against the Consortium in the L’Aquila Court of Appeal. He argued that the amount determined by the regional authorities was extremely low in relation to the market value of the land.

On 14 August 1992 Law no. 359 of 8 August 1992 came into force (“Urgent measures aimed at stabilising public finances”). Article 5 bis of the Law laid down new criteria for calculating compensation for the expropriation of building land. The Law was expressly applicable to pending proceedings.

On 3 November 1993, the applicant accepted the consortium’s offer and requested the termination of the proceedings (“cessazione della materia del contendere”).

By a provisional judgment delivered on 22 November 1994, the Court of Appeal acknowledged the entry into force of Law no. 359 of 8 August 1992 and held that the amount of the compensation for the expropriation had to be in accordance with the new criteria laid down in the legislation’s Article 5bis. The court therefore rejected the applicant’s request to terminate the proceedings, appointed an expert and instructed him to assess the compensation for the expropriation according to the new criteria.

On an unspecified date, the expert submitted his report.

By a judgment delivered on 23 July 2002 and filed with the court registry on 1 August 2002, the Court of Appeal held that the applicant was entitled to compensation in the sum of EUR 77,556.40, as calculated according to the criteria laid down in Law no. 359 of 1992. Moreover, the Court of Appeal held that the applicant was entitled to compensation for the period during which the land had been occupied before the expropriation order had been issued, in the sum of EUR 12 778,37. The amounts were subject to tax, deducted at the source at a rate of 20%.

On an unspecified date the consortium appealed on points of law.

By a judgment delivered on 21 November 2006 and filed with the court registry on 8 January 2007, the Court of Cassation remitted the case to the L’Aquila Court of Appeal.

By a judgment delivered on 24 January 2013, filed with the court registry on 12 March 2013, the L’Aquila Court of Appeal acknowledged the Constitutional Court’s judgment no. 348 of 24 October 2007, whereby Article 5 bis of Law no. 359 of 8 August 1992 had been declared unconstitutional, and held that the applicant was entitled to compensation corresponding to the full market value of the property.

Therefore, drawing on the court-ordered expert report submitted during the first set of proceedings, the Court of Appeal concluded that the applicant was entitled to compensation in the sum of EUR 108,578.96 (equivalent to ITL 210,236,000), which reflected the market value of the land at the time of the expropriation (1991), plus statutory interest. It did not, however, adjust the amount for inflation.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Štefan Barilik, is a Slovak national, who was born in 1955 and lives in Košice. He was represented before the Court by Mr A. Fuchs, a lawyer practising in Košice.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

The applicant is a judicial enforcement officer (“JEO”). In this capacity, he acted on behalf of a creditor with a view to enforcing an order for payment against a private commercial company (“the debtor”). In the furtherance of those proceedings, following the creditor lodging an enforcement petition, the applicant applied for a court order authorising the enforcement of a sum consisting of the principal judgment debt and his costs.

The costs were calculated on the basis of a formula applicable in instances when enforcement is actually carried out by the JEO, which is to say as a percentage of the principal amount to be enforced. It would later become the object of a dispute whether, in the event of voluntary payment by the debtor in the course of the enforcement proceedings, the costs were to be calculated differently, in particular on the basis of an hourly fee for the time actually spent by the JEO on the given file.

In the present case, prior to the issuance of the authorisation, the debtor had of its own motion paid the principal judgment debt and the applicant had been informed of that payment.

Nevertheless, after the authorisation had been granted, the applicant proceeded with the enforcement of the amount of his fees in full, in other words the sum that he would have been awarded as a JEO if he had actually carried out the enforcement of the order for payment.

Upon successful enforcement of the applicant’s fees, the proceedings were terminated.

On 12 August 2003 the debtor filed an action against the applicant seeking an order for payment of the equivalent of some 3,400 euros (EUR) by way of unjustified enrichment. It was argued that it had been absurd for the applicant to carry on with the enforcement knowing that the debtor had paid its debt before the enforcement had even been authorised.

The applicant defended the action and was represented by a lawyer. The action was heard by the Košice I District Court (Okresný súd) on 6 December 2005, 27 March, 13 June and 16 June 2006.

At the conclusion of the hearing of 16 June 2006, the District Court dismissed the claim. It held that the course of action taken by the applicant had been lawful in view of the fact that, at the time of the introduction of the petition for enforcement, the principal judgment debt had been payable and still outstanding. The requisite elements of a claim for compensation in respect of unjustified enrichment had therefore not been met.

The debtor filed an appeal (odvolanie) to the Košice Regional Court (Krajský súd), which heard the appeal on 19 April and 14 June 2007.

On 14 June 2007, following the hearing held that day, the Regional Court allowed the appeal and overturned the first-instance judgment. It held that in instances of voluntary payment the JEO’s costs were to be calculated on an hourly-fee basis (see paragraph 5). Calculating the applicant’s costs as a percentage of the original award was disproportionate to the work carried out by him to complete the enforcement.

The enforcement of his costs thus calculated had therefore been unlawful and unjustified, which constituted unjustified enrichment on his part to be repaid to the debtor. As for the applicant’s recoverable costs, he should have pursued them by way of a separate costs order.

On 31 March 2009 the Supreme Court (Najvyšší súd) dismissed the applicant’s appeal on points of law (dovolanie). It concurred with the Regional Court’s conclusion, albeit on different legal grounds. In particular, it held that the case at hand was not one of unjustified enrichment, but rather one of damages. No hearing was held and the parties were not allowed to comment on this new legal qualification of the case.

On 14 August 2008 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd). He relied on Article 6 § 1 of the Convention and argued (a) the proceedings had been unfair in that the Supreme Court’s judgment had been arbitrary and (b) his right of access to court had been violated in that the Supreme Court had substantially changed the legal qualification of the case without allowing him an opportunity to comment. The proceedings had thus not been adversarial.

On 1 October 2009 the Constitutional Court declared the complaint inadmissible as being manifestly illfounded. It observed that it was not a court of final appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgment. In particular, it found no merit in the applicant’s arguments, observing that proceedings on appeals on points of law were of a specific and extraordinary type which, as a general rule, called for no hearing and for the taking of no further evidence.

The decision was served on the applicant on 27 October 2009.

The relevant provisions concerning appeals on points of law are laid down in Articles 236 et seq. They are summarised in the Court’s judgment in the case of Ringier Axel Springer Slovakia v. Slovakia (no. 41262/05, §§ 61-68, 26 July 2011).

In addition, Article 243a provides that, as a general rule, appeals on points of law are to be determined without a hearing; that a hearing may nevertheless be held as an exception if it is deemed necessary; and that if a hearing is held, no evidence is to be taken.

In a judgment on an appeal in an unrelated case (no. 15Co 165/2008), the Bratislava Regional Court held that a reduction of the costs of enforcement to be paid by an enforcement debtor was only applicable if the enforcement debtor had voluntarily paid both the principal judgment debt and the costs of the enforcement.

In a judgment on an appeal on points of law in an unrelated case (no. 3Cdo 58/09), the Supreme Court observed that, when exercising their office, JEOs exercise functions of a State organ. Their relationship with the parties to the enforcement proceedings is not, therefore, one of private law. There is therefore no scope for a claim for compensation in respect of unjustified enrichment. The JEOs are rather liable for damages under special provisions of the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended).