Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

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

The applicant was born in 1944 and lives in Kaliningrad.

Until 1999 the applicant was married to Z. and was living with her in a state-owned flat which had been provided to Z.’s parents. The applicant was registered as living in that flat.

In 1999 the applicant and Z. divorced and the applicant moved in with his new partner, B. At that time he did not apply for deregistration from the flat which he had occupied with his former wife. Later Z. privatised that flat, and the applicant lost occupational right to it.

B. occupied a room in a three-room communal flat under a social tenancy agreement. The other two rooms were occupied by her neighbours. The applicant and B. lived together in that room for the following ten years. They never married and the applicant was not registered as living in the room.

In May 2009 B. died and her neighbours locked the applicant out of the flat. The local housing authority informed the applicant that he had to vacate the room, since he had no legal right to occupy it.

On 28 September 2009 the applicant instituted court proceedings against the local administration, seeking recognition of his right to occupy the room as B.’s family member. He submitted that he and B. had been living in the room as husband and wife since 1988, but that after her death her neighbours had locked him out of the room. He considered that despite the fact that he had not been married to B. and had not been registered as living in the room, he should be regarded as a member of her family who had acquired the right to occupy her room. In particular, he raised the following arguments:

- he had shared a common household with B.;

- he had paid for the maintenance of the room;

- he had assumed the cost of B.’s burial;

- he had no other housing: he could not return to the flat of his former wife Z. since she had become the owner of that flat and lived there with her new family;

- on 8 September 2009 he had asked the authorities to deregister him from the flat of his former wife Z.;

- since his eviction, he had been obliged to live in the school in which he was working as a night watchman.

The local administration submitted that the applicant had not been registered as living in B.’s room, he was not a member of B.’s family and, therefore, he had not acquired any right to occupy her room.

B.’s neighbours were invited to participate in the proceedings as third parties. They confirmed that between 1999 and 2009 the applicant had lived in the room with B. and had provided her with financial support. However, they considered that B.’s room should be allocated to them and not to the applicant, since there were six of them living in two rooms and they needed to upgrade their living conditions.

On 6 May 2010 the Leninskiy District Court (“the District Court”) of Kaliningrad granted the applicant’s claim with reference to Articles 69 and 70 of the Housing Code (see Relevant domestic law and practice below). The District Court established, in particular, that between 1999 and 2009 the applicant had cohabited with B. in the room in question, had shared a common household with her and had been removed from the register at his previous place of residence. The District Court considered that the above circumstances should be regarded as exceptional within the meaning of Article 69 of the Housing Code and that the applicant should therefore be regarded as a member of B.’s family who had acquired the right to reside in the room previously occupied by her.

The local administration did not appeal against the judgment of 6 May 2010.

The third parties appealed against that judgment to the Kaliningrad Regional Court (“the Regional Court”). They submitted that B. had on several occasions chased the applicant away. She had not applied to the authorities with a request to register him as living in her room, and had not asked that his name be added to the social tenancy agreement as a member of her family. The applicant had not paid any utility charges for the room and had been registered as living elsewhere until B.’s death.

On 22 September 2010 the Regional Court quashed the judgment of 6 May 2010 and dismissed the applicant’s claims. The relevant part of the decision of 22 September 2010 reads as follows:

“When granting the claims of Mr Zakharov Ye. N. [the applicant], the court [the District Court] proceeded from the premise that there existed exceptional circumstances allowing it to recognise him as a member of Ms Brazhnikova’s [B.’s] family in accordance with Article 69 § 1 of the Housing Code.

The Civil Chamber [of the Kaliningrad Regional Court] cannot agree with such a decision.

The court [the District Court] established on the basis of the plaintiff’s and witnesses’ submissions that the plaintiff had lived together with Ms Brazhnikova L.P. [B.] since 1999 and had shared a common household with her.

The above circumstances are not in themselves exceptional, in particular given that no irrefutable evidence had been submitted to the court to prove that Ms Brazhnikova L. P. had let Mr Zakharov live in the flat as a family member rather than as a temporary resident. Throughout the period in which he lived together with Ms Brazhnikova L.P., the plaintiff had been registered as living in house no. 6, Pionerskaya street in the village of Aleksandrovka in the Zelenogradskiy district. He asked to be removed from the register on 8 September 2009 after the death of Ms Brazhnikova and just before applying to the court.

the court to recognise Mr Zakharov Ye. N. as a family member of the social tenant Ms Brazhnikova L.P. as well as acknowledging his right to occupy the flat in question. It follows that the court judgment should be quashed and a new decision should be taken dismissing those claims.”

On 3 March 2011 a judge of the Supreme Court of Russia (“the Supreme Court”) refused to refer the applicant’s application for supervisory review of the decision of 22 September 2010 to the Civil Chamber of the Supreme Court for examination, finding no grounds for such review and relying on the principle of legal certainty.


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

Dmitry Dedov;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in 1969 and is detained in Mozzhukha, Kemerovo Region.

On 15 July 2009 the applicant was arrested on suspicion of large-scale embezzlement.

On 16 July 2009 he was formally charged with the crime.

On 17 July 2009 the Tsentralnyy District Court of Kemerovo remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of a serious crime, (2) his involvement in embezzlement was confirmed by the evidential material in the case file, (3) he might put pressure on witnesses or (4) he might interfere with investigation.

On 10 November 2009 the Zavodskoy District Court of Kemerovo extended the applicant’s pre-trial detention. The court referred to the gravity of the charges and reiterated that the applicant might threaten witnesses or interfere with investigation. It also observed that the applicant might reoffend or abscond.

On 26 November 2009 the Kemerovo Regional Court upheld the detention order of 10 November 2009 on appeal.

The applicant remained in custody pending investigation and trial until his release on 24 June 2010.

On 5 November 2013 the applicant was found guilty of the charge.


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

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1981. According to the most recently available information, in January 2014 the applicant was released from detention having served his sentence. He did not inform the Court of his current whereabouts.

According to the available medical documents, the applicant has been using drugs since 1996. In 1997 the applicant was diagnosed with hepatitis C and hepatic cirrhosis. The applicant has been HIV-positive since 2008. In 2008 he also had tuberculosis.

In March 2010 the applicant was taken into custody and placed in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”). On 13 July 2010 the Obolonskyy District Court, Kyiv, sentenced the applicant to five years’ imprisonment for drug-related offences and theft. On 4 September 2010 the applicant was transferred to serve his sentence in the Bilotserkivska Correctional Colony No. 35. In May 2011 the applicant was diagnosed HIV-positive at clinical stage 4. On 24 May 2011 the applicant’s CD4+ cell count was 687 (16.3%). On 7 July 2011 the Irpinskyy Town Court released him from serving the remainder of his sentence in view of his poor state of health.

On 25 July 2011 the applicant was registered for regular medical checks at the Kyiv City Aids Centre.

On 1 February 2012 the Dniprovskyy District Court sentenced the applicant to four years’ imprisonment for theft.

On 2 February 2012 the applicant was placed in the Kyiv SIZO. On arrival the applicant was examined by medical staff and had two chest Xrays. It was recommended that the applicant consult a tuberculosis specialist.

On 8 February 2012 the applicant was examined by a tuberculosis specialist and diagnosed with post-tuberculosis residual changes in the right lung.

On 16 or 20 March 2012 (relevant documents contain both dates) the applicant was placed in the SIZO medical ward. He stayed there until 18 February 2013 with the following diagnoses: acute haemorrhoidal bleeding, haemorrhoids, chronic multiple drug use, HIV at clinical stage 3, oropharyngeal candidiasis, chronic secondary candidiasis, acute enterocolitis, chronic hepatitis, residual post-tuberculosis changes, liver cell failure, and other conditions. The applicant was prescribed various medication.

According to the Government, the applicant was examined by doctors in the SIZO medical ward on numerous occasions. In particular, on 22 March 2012 the applicant was examined by a surgeon and was examined by a general practitioner on the following dates: on 11, 16, 21 and 25 May 2012 with complaints of fever and weakness; on 18 and 22 June 2012 with complaints of fever and weakness; on 16 July 2012 with complaints of coughing with sputum, sweating, general weakness and fever; on 1, 3, 10, 15, 23 and 28 August 2012; on 4 and 10 September 2012; on 4, 10, 15, 22 and 29 October 2012; on 5, 9, 16, 23 and 29 November 2012; and on 5, 11, 18, 24 and 27 December 2012.

On the majority of those occasions it was decided to continue the prescribed treatment.

In addition to the above consultations, between March 2012 and 18 February 2013 the applicant received the following medical care: on 10 April 2012 the applicant had a chest X-ray and it was recommended that he see a tuberculosis specialist. Subsequently the applicant was examined and diagnosed with post-tuberculosis residual changes in the right lung. On 13 July 2012 he had another consultation with a tuberculosis specialist; on 24 October 2012 the applicant was examined by an infection diseases specialist and diagnosed, inter alia, with HIV at clinical stage 4. It was also suspected that the applicant had had a tuberculosis relapse, so an additional X-ray was recommended; on 7 November 2012 the applicant had an X-ray. On 14 November 2012 a tuberculosis specialist examined the applicant and concluded that there were no signs of active tuberculosis.

Between 18 April and 20 December 2012, according to the test results, the applicant’s CD4+ cell count dropped from 762 (18.4%) to 467 (14.3%).

Meanwhile, on 23 July 2012 the Kyiv City Court of Appeal quashed the decision of 1 February 2012 in the applicant’s criminal case and remitted the case for a fresh court examination. On 3 September 2012 the Dniprovskyy District Court, Kyiv, found the applicant guilty of drug-related offences and theft, and sentenced him to two years’ imprisonment.

On 14 January 2013 the applicant was examined in the Kyiv City Diagnostic Centre. Two days later the applicant was examined by a tuberculosis specialist and diagnosed with tuberculosis. The applicant was prescribed anti-tuberculosis treatment.

On 23 January 2013 the applicant’s CD4+ cell count was 314.

On 25 and 30 January and 4 February 2013 the applicant was examined by a general practitioner. The prescribed treatment was continued.

On 5 February 2013 the applicant requested under Rule 39 of the Rules of Court that the respondent Government be asked to secure an appropriate medical examination and treatment for him which, according to the applicant, was impossible in the Kyiv SIZO. On 7 February 2013 the Court refused the applicant’s request.

On 11 February 2013 it was recommended by a tuberculosis specialist that the applicant be transferred to a specialised tuberculosis hospital.

On 18 February 2013 the applicant was transferred to Zhovtnevska Correctional Colony No. 17 (Жовтневська виправна колонія №17). He arrived there on 21 February 2013 and was placed in a specialised tuberculosis hospital. Upon arrival the applicant complained of a cough with mucopurulent sputum, pain in the chest and armpits, headache, and abdominal pain and distension. It was concluded that the applicant’s state of health was of medium severity. He underwent various blood, urine and sputum tests, X-rays and ultrasound examinations. On 21 and 22 February 2013 the applicant was examined by an otolaryngologist, a psychiatrist and a general practitioner. The applicant was diagnosed with tuberculosis, HIV, encephalopathy, chronic hepatitis and other diseases. The applicant was prescribed anti-tuberculosis treatment.

The Government provided a detailed description of the examinations, prescriptions and treatment the applicant received in the hospital between February and October 2013. It included numerous X-rays, ultrasound examinations, blood, urine and sputum tests, examinations by hospital doctors and external specialists: a tuberculosis specialist (on 28 February 2013 and 15 August 2013), an otolaryngologist (on 26 March 2013: the applicant was diagnosed with otitis), a psychiatrist (on 22 February 2013: the applicant was diagnosed with opium narcotic addiction in remission); a dentist (3 April 2013), a general practitioner (on 13, 14, 19, 25 and 30 March 2013; on 1, 2, 3, 10, 12, 22, 26, 28 and 29 April 2013; on 7, 12 and 16 May 2013; on 1, 4, 15, 21 and 26 June 2013; and on 5, 8 and 17 July 2013); a surgeon (on 24 April 2013); a dermatologist (on 24 April 2013); an infectious diseases specialist from the Kharkiv Regional HIV/Aids Centre, who prescribed antiretroviral therapy (“ART”) for the applicant (22 July 2013); and a neuropathologist (on 13 August 2013).

On 3 May 2013 the applicant’s CD4+ cell count was 477 (15.7%).

On 21 August 2013 the applicant started the ART.

On 4 September 2013 the applicant’s CD4+ cell count was 297 (12.1%).

On 20 September 2013 a tuberculosis specialist from the Kharkiv Medical Academy of Postgraduate Education concluded that the applicant’s anti-tuberculosis treatment had been effective.

On 3 October 2013 the applicant was discharged from the hospital with the diagnosis of, inter alia, post-tuberculosis residual changes, HIV (clinical stage 4), chronic hepatitis in unstable remission, and chronic thrombophlebitis. The applicant was transferred to Buchanska Correctional Colony No. 85 (Бучанська виправна колонія №85) since his state of health had improved. He was provided with ART medication for two months.

According to the parties, while in the hospital the applicant also received various medication from his relatives.

The applicant spent the majority of the time between 1 November and 30 December 2013 in the Buchanska Correctional Colony Hospital. On 23 December 2013 the applicant’s CD4+ cell count was 314 (14.8%).

On 31 January 2014 the applicant was released, having served his sentence.


CASE OF MAKHLYAGIN AND BELYAYEV v. RUSSIA

Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)

The applicants, Mr Makhlyagin and Mr Belyayev, were born in 1983 and 1979 respectively and were held in different detention facilities. The facilities’ officials opened and/or inspected letters that the applicants exchanged with the Court.

From September 2008 until October 2009 the applicant, detained in a correctional colony, lodged several letters with the Court. All of them were accompanied by cover letters from a chief officer of the colony summarising the content of the applicant’s letters. Some letters also bore the colony’s registration stamps.

The applicant lodged a claim, alleging that the colony’s staff had impeded his correspondence with the Court. On 22 January 2009 the Tagilstroyevskiy District Court of Nizhniy Tagil dismissed his claim

The applicant lodged an appeal with the Sverdlovskiy Regional Court. On 4 March 2009 the Sverdlovskiy Regional Court rejected his appeal, stating that it should be lodged through the first-instance court. The regional court also noted that the applicant could request that the time-limit in respect of the appeal be re-set.

On 30 March 2009 the applicant lodged his appeal with the firstinstance court. Instead of requesting that the time-limit in respect of his appeal be re-set the applicant asked the court to restore his case to the list of pending cases. On 9 April 2009 the District Court refused to examine the appeal as belated.

The applicant appealed against this decision. However, he once again lodged his appeal with the Regional Court instead of the first-instance court. His appeal statement did not contain a request for the missed timelimit to be re-set. The Sverdlovskiy Regional Court dismissed the applicant’s appeal.

On 2 November 2010 the applicant received a letter from the Court; the letter was opened by a member of the remand prison staff.

The applicant lodged a claim for compensation. By a final decision of 7 June 2011 the Tver Regional Court dismissed his claim. The court stated that Russian law did not prohibit the opening of incoming correspondence from the Court.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Mr Stanisław Zabor, is a Polish national, who was born in 1954 and lives in Wrocław. He was represented before the Court by Mr B. Latos, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.

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

On an unspecified date the applicant’s mother was granted, by way of an administrative decision, the right to a protected lease of an apartment located in a building owned by the Wrocław municipality. The applicant had lived in this apartment since 1955. It appears that he moved out in 1980 following his marriage (see paragraph 34 below).

In 1995 the applicant’s father signed a tenancy agreement with the municipality, which replaced the earlier administrative decision. The agreement stipulated that other tenants would be the applicant, his mother and his brother.

In 1999 the applicant’s brother and father, who apparently had both been in conflict with the applicant, instituted proceedings to strike out the registration of the applicant’s permanent residence in the apartment on the ground that he did not live there. According to the applicant, in those proceedings his mother confirmed that he has been living in the apartment. On 22 October 1999 the Mayor of Wrocław refused the request.

The applicant’s father died on an unspecified date.

On 13 January 2001 the applicant’s mother died. The applicant’s brother was recognised as a successor to the tenancy agreement.

The applicant requested that the municipality recognise him also as a successor to the tenancy agreement. This was refused by a letter of 10 July 2001 on the ground that the applicant did not comply with the requirement for such a succession set out in section 8 of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (“the 1994 Act”) since he had not lived in the apartment. At the same time the municipal housing administration instituted proceedings to strike out the registration of his permanent residence in the apartment.

On 27 February 2002 the municipal administration reiterated their refusal to sign a tenancy agreement with the applicant.

On an unspecified date in 2002 the applicant was allegedly forced to leave the apartment due to the aggressive behaviour of his brother.

The Government submitted that according to the Mayor of Wrocław’s internal inquiry the applicant had not been living in the flat for many years. They contended that this fact had been confirmed by the applicant during his interview before the Wrocław Municipal Office on 21 January 2002.

In consequence of the above-mentioned internal inquiry, on 17 April 2002 the Mayor of Wrocław gave a decision striking out the registration of the applicant’s permanent residence in the apartment. The Mayor, having regard to the evidence of two residents of the building and the applicant’s brother, established that the applicant had not been living in the apartment for many years. The applicant confirmed this fact, but stated that he had been prevented from occupying the flat by his brother. On 10 June 2002 the Governor of Dolny Śląsk Region upheld the Mayor’s decision. He noted that the applicant had not attempted to use legal remedies to recover the occupation of the apartment. The applicant appealed. On 22 June 2004 the Supreme Administrative Court dismissed his appeal. It emphasised that the act of registration was solely a technical act confirming the fact of residence in the flat and did not concern the right to a given dwelling.

On 24 July 2002 the applicant brought an action against the municipality, claiming that he should be recognised as a successor to the tenancy agreement after his mother’s death. On 6 November 2002 the Wrocław Śródmieście District Court gave a judgment in default, allowing his claim. The municipality lodged an objection against that judgment.

On 7 March 2003 the Wrocław Śródmieście District Court upheld the judgment in default and confirmed that the applicant was the successor in respect of the tenancy agreement. Neither party filed an appeal against that judgment.

On 5 May 2003 the applicant requested the Wrocław municipality to take steps to make the judgment operational by concluding a tenancy agreement with him.

In a letter of 18 July 2003 the municipality stated the following:

“In reply to your letter and with reference to the attached judgment of 7 March 2003, I should inform you that under that judgment you became your mother’s successor in respect of the tenancy agreement, but that it is impossible to sign such an agreement with you.

This is so because an internal enquiry showed that you had not been living in that apartment on a permanent basis. This has already resulted in the decision of the Mayor striking out the registration of your permanent residence in the apartment.

Consequently, pursuant to Article 11 (3) 1 of the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code, the municipal office hereby gives six-month notice in respect of the agreement which you obtained under the judgment referred to above, the agreement expiring on 29 February 2004. The factual basis for the termination of the agreement is the fact that you have not been living in this apartment for a period longer than twelve months.”

On 9 December 2003 the applicant lodged an action with the Wrocław Śródmieście District Court in which he sought a declaration under Article 189 of the Code of Civil Procedure that a tenancy agreement existed between him and the municipality.

On 25 February 2005 the court gave a judgment in default and allowed the applicant’s claim. The municipality filed an objection to that judgment. On 23 September 2005 the Wrocław Śródmieście District Court upheld the judgment in default. It appears that subsequently the judgment became final and enforceable.

On 19 December 2005 the applicant requested the Wrocław municipality to sign a tenancy agreement with him, having regard to the final judgment of 25 February 2005. He also requested the municipality to evict his brother from the apartment.

On 28 March 2006 the municipality informed the applicant that it recognised him as a tenant in accordance with the judgment of 25 February 2005. It further informed the applicant about the significant rent arrears in respect of the apartment and set a time-limit to pay them. The applicant’s brother was also requested to clear the rent arrears as a joint tenant.

The applicant replied that on 10 July 2001 the municipality had refused to recognise him a successor to the tenancy and that subsequently the registration of his permanent residence in the apartment had been struck out. In those circumstances the applicant could not occupy the apartment. He requested the municipality to seek payment of rent arrears from his brother who had been the sole occupant of the apartment.

On 21 June 2006 the municipality informed the applicant that it had initiated the procedure with a view to terminating the tenancy agreement since the rent arrears had not been paid. On 23 May 2007 it informed the applicant that it did not have legal means to reinstate his possession of the apartment. On 6 June 2007 the municipality terminated the tenancy agreement with the applicant and his brother with effect from 31 July 2007.

On 12 June and 24 July 2007 the municipality again confirmed that the applicant and his brother were the lawful tenants. It underlined that there were no obstacles to the applicant’s use of the apartment occupied by his brother in the absence of a written tenancy agreement. The signing of the written agreement had been postponed until the time when the applicant and his brother cleared the rent arrears.

On 9 April 2008 the applicant requested the Mayor of Wrocław to authorise the registration of his permanent residence in the apartment. On 22 August 2008 the request was dismissed on the grounds that the applicant had not lived in the apartment for many years. That decision was upheld on appeal.

On 21 May 2008 the municipality filed an action against the applicant and his brother with the Wrocław Śródmieście District Court, seeking payment of rent arrears. On 27 May 2008 the court issued an order for payment against the applicant and his brother. The applicant filed an objection to the order. The municipality submitted in the proceedings that it was the applicant’s brother who had refused to allow the applicant’s access to the apartment. The municipality had no legal means to resolve the family conflict and it was up to the applicant to institute proceedings for repossession.

On 10 February 2009 the Wrocław Śródmieście District Court dismissed the municipality’s action against the applicant. It found that the municipality had consistently obstructed the applicant in taking possession of the apartment. The court noted firstly that the municipality had struck out the registration of his permanent residence in the apartment which had had adverse effects on the applicant’s ability to occupy the apartment. The applicant’s brother had used the lack of the applicant’s registration as a pretext not to let the applicant into the apartment. Secondly, the municipality had not recognised the applicant as the successor to the lease and thus had forced him to assert his rights in court proceedings. Thirdly, the municipality had refused to confirm in writing the conditions of the tenancy agreement. Consequently, the applicant had not known his obligations as a tenant, in particular as regards the amount of his rent. The court found that since the municipality had not respected its obligations under the tenancy agreement towards the applicant it was not entitled to claim rent from him.

The municipality appealed. On 23 June 2009 the Wrocław Regional Court dismissed the appeal.

On 2 July 2009 the municipality filed an action with the Wrocław Śródmieście District Court against the applicant and his brother, seeking their eviction. On 10 September 2009 the Wrocław Śródmieście District Court gave judgment. It ordered the applicant’s brother to vacate the flat and ruled that the municipality was under an obligation to provide him with social housing.

The court dismissed the action against the applicant. It noted that the applicant’s right to the lease of the flat had been confirmed in its final judgment of 25 February 2005. The court further noted that in accordance with the final judgment of the Wrocław Regional Court of 23 June 2009 the applicant had not been obliged to pay the rent arrears. The court found invalid the municipality’s notice of termination of the tenancy agreement issued on the grounds of the failure to pay the rent arrears and confirmed the applicant’s right to use the flat. The municipality did not appeal.

On 5 May 2010 the municipality summoned the applicant to sign an appendix to the tenancy agreement to the apartment, specifying him as a tenant.

On an unspecified date the applicant complained to the municipality about its failure to provide social housing to his brother in accordance with the Wrocław Śródmieście District Court’s judgment of 10 September 2009. In its reply of 23 June 2010 the municipality informed the applicant that it did not question his right to the lease of the apartment and did not refrain from confirming the lease in writing. In any event, the applicant was informed that his right to the apartment did not depend on the written confirmation thereof. With regard to the eviction of his brother, the municipality informed the applicant that due to a significant number of eviction judgments and the limited stock of municipal social housing it could not immediately satisfy his request to have his brother evicted.

In his reply of 21 July 2010, the applicant informed the municipality that he decided to refrain from signing the agreement for the duration of the proceedings before the Court.

On 14 November 2011 the applicant brought an action against the municipality in the Wrocław Regional Court. He sought compensation for rendering him long-term homeless in connection with the municipality’s failure to enforce four final judgments. The applicant submitted that he had succeeded to the tenancy agreement after his mother’s death on 13 January 2001. He had been expelled from the flat by his brother who was an alcoholic. Subsequently, the municipality had struck out the registration of his permanent residence in the apartment and refused to sign a tenancy agreement with him. The applicant claimed that as a result he could not find employment for a period exceeding ten years.

On 13 February 2013 the Wrocław Regional Court dismissed the applicant’s action. It found that the applicant had failed to demonstrate that he had suffered the alleged damage, namely the long-term homelessness and the lack of employment as a result of the municipality’s actions. With regard to the alleged homelessness, the court noted that the applicant had succeeded to the tenancy agreement after his mother’s death. The municipality had initially refused to confirm the content of the tenancy agreement and had struck out the registration of his permanent residence in the disputed apartment. However, it did not result from these circumstances that the applicant had become homeless. The court noted that the applicant had not demonstrated that he had been homeless in the period of ten years preceding the lodging of his action. The court established that the applicant had moved out of the flat in 1980 after his marriage. Initially, he had lived with his wife at his parents-in-law and subsequently in an apartment located at Starościńska Street. After about twelve years he had moved out following a conflict with his wife. Subsequently, he had rented flats, lived at his sister and at an allotment. The applicant had not attempted to move into the apartment at issue for more than ten years on account of the conflict with his brother. Currently, he was living in a garden hut owned by his son-in-law. The court concluded then that the applicant had not been a homeless person at the relevant time.

With regard to his alleged unemployment, the court established that up until 2007 the applicant had run a transportation firm. Subsequently, he had worked as a security guard and helped his son-in-law with the latter’s business. He had registered as an unemployed only on 22 February 2010 and had lost the right to an unemployment benefit on 2 March 2011. Having regard to the above, the court found that the applicant had been able to rent a flat or a room in order to avoid the alleged homelessness. In addition, besides his brother, the applicant had other close family, including his wife, two adult children and three sisters.

The court also found that regardless of the issue of damage, the applicant had not proved that the municipality had acted unlawfully in his case. It noted that the applicant had been deprived of the possibility of living in the apartment at issue after his parents’ death because of the conflict with his brother. The applicant admitted this in the proceedings. The applicant had reproached the municipality for having struck out the registration of his permanent residence in the apartment; however, the court observed that this decision had been upheld on appeal as having been made in accordance with the law. In addition, the court noted that the applicant had not been living in the apartment for more than thirty years. The allegation that the municipality had not signed a tenancy agreement with the applicant had been also unjustified. The court noted that the applicant had succeeded to the tenancy agreement after the death of his mother by operation of the law. The lack of written confirmation of the applicant’s tenancy agreement had had no effect on the existence of the applicant’s right to the apartment. In any event, the municipality had invited the applicant to sign the relevant agreement but the applicant had so far not responded to the invitation.

Lastly, the court found that the applicant had not established a causal link between the actions of the municipality and his situation in the last ten years. In particular, the municipality could not be held responsible for the applicant’s situation, such as the conflict with his brother as well as the applicant’s marital problems and the moving out of the flat which he had shared for long years with his wife.

The applicant appealed.

On 19 June 2013 the Wrocław Court of Appeal dismissed the applicant’s appeal. It accepted the facts as established by the Regional Court.

The Court of Appeal confirmed that the applicant had not demonstrated that the municipality had acted unlawfully. It noted that the applicant had blamed the municipality for its inactivity in making the apartment available to the applicant. However, the tenancy agreement in respect of the disputed apartment had been in the name of the applicant and his brother, while it was only the latter who had been the sole occupant of the apartment. The Court of Appeal noted that the municipality had had no powers to compel the applicant’s brother to allow the applicant’s access to and use of the apartment. It further noted that if the applicant’s brother had prevented him from occupying the apartment to which he had been entitled under the tenancy agreement, the applicant should have directed his claims against the brother and not against the municipality.

From 1945 to 1994 housing matters were subject to a high degree of state control under successive provisions of housing legislation. The most important characteristic of this system, a so-called “special lease scheme”, was that a lease was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid a controlled rent and the owners could not terminate the lease by giving notice to the tenant. The special lease scheme was also applicable to houses owned, until 1990, by the State Treasury, and after the reform of the local administration, by the municipalities.

The “special lease scheme” was abolished under the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), (“the 1994 Act”) which entered into force on 12 November 1994. However, the special lease scheme (protected lease) was still applicable to tenants who were allocated their apartments on the basis of administrative decisions.

Under transitional provisions of the 1994 Law, lease agreements which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for an indefinite period and governed by the provisions of the 1994 Law. The 1994 Act maintained, albeit with slight modifications of wording, the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease.

Section 8(1) of the 1994 Act read:

“1. In the event of a tenant’s death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant’s household until his or her death, succeed to the tenancy agreement and acquire the tenant’s rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling.

In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.”

In 2001 parliament adopted a new law governing housing matters and relations between landlords and tenants. The Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”) entered into force on 10 July 2001. It repealed the 1994 Act.

Under Article 11 (3) 1 of that Act, the owner of apartment may give sixmonths notice on the lease agreement if the tenant has not been living in that apartment for more than twelve months.


CASE OF EUGENIA AND DOINA DUCA v. THE REPUBLIC OF MOLDOVA

Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The case originated in an application (no. 75/07) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Ms Eugenia Duca and Ms Doina Duca (“the applicants”), on 27 December 2006.

In a judgment delivered on 3 March 2009 (“the principal judgment”), the Court held that there was a breach of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention on account of the upholding by the Supreme Court of Justice on 27 November 2006 of a revision request against a final judgment of 1999, in breach of the principle of legal certainty (Eugenia and Doina Duca v. Moldova, no. 75/07, 3 March 2009). As a result of that quashing the second applicant lost all of her shares (94.46%) in her company.

Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicants to submit, within three months of the date on which the judgment became final in accordance with Article 44 § 2 of the Convention, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach.

The applicants and the Government each submitted observations in respect of the just satisfaction.

In the meantime, after the adoption of the principal judgment by the Court, the Supreme Court of Justice reviewed its judgment of 27 November 2006 and quashed it on 26 October 2009. The Supreme Court also awarded the applicants compensation of MDL 35,000 (the equivalent of EUR 1,963) for the non-pecuniary damage suffered as a result of the abusive quashing of the judgment of 1999.

The judge elected in respect of Moldova, withdrew from sitting in the case (Rule 28 of the Rules of Court) after it had been notified to the Government. On 31 January 2009, the Government, pursuant to Rule 29 § 1 (a), informed the Court that they were content to appoint in his stead another elected judge and left the choice of appointee to the President of the Chamber. On 1 February 2009, the President of the Fourth Section appointed Judge Šikuta to sit in the case. This decision was confirmed by the President of the Third Section after Judge Grițco, the judge elected in respect of Moldova, also withdrew from sitting in the case.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1974 and lives in Vsesvyatskaya.

At the material time the applicant was a journalist at a Lithuanian weekly publication.

He was also a civil activist. As was later established by the domestic courts, since approximately the summer of 1998 the applicant had identified himself as a member of an informal liberal democratic movement, Revolyutsionnoye Kontaktnoye Obyedineniye (“the Revolutionary Contact Union” – hereinafter “the RKO”). Also, in the period from 2000 until 2004 the applicant was the founder, owner, publisher and editor-in-chief of a monthly newsletter entitled Radikalnaya Politika (“Radical Politics”). He determined the contents of the newsletter and published his own articles in it, as well as articles by people with similar views and excerpts from official and non-official sources of information and the mass media. He, himself, prepared each issue of the newsletter at his home address by typing it up on his personal computer, and then had it printed out and reproduced in multiple copies. The exact number of copies of each issue is unknown. The applicant then distributed the newsletter in person or through other unidentified individuals by selling it or giving it out for free at various places in Moscow. The articles touched, to a great extent, on the events in the Chechen Republic.

An article headlined “From the interview given by M. Udugov to the Kavkaz Center press agency” (“Из интервью М. Удугова агенству Кавказ Центр”) mentioned the large-scale hostage-taking at the Dubrovka Theatre in Moscow in October 2002 referring to it as “the action of Movsar Barayev’s heroic Chechen rebels in Moscow” (“акция героических чеченских повстанцев Мовсара Бараева в Москве”). It stated, in particular:

“Russia has clearly demonstrated that it is at war and permanently in danger of being hit by retaliatory blows, because its rulers have perpetrated a despicable attack on a sovereign State and are killing innocent civilians there. Even the western community is compelled to admit that Putin’s Russia is waging a war aimed at the physical extermination of Chechens as an ethnic group.”

An article entitled “Insanity [defence] of Budanov [is] a guarantee of victory for Basayev” (“Невменяемость Буданова – залог победы Басаевa”) commented on the case of a high-ranking Russian officer who was standing trial on charges of torture and murder for the strangulation of an 18-year-old Chechen woman and, in particular, on the judgment of the first-instance court by which the defendant had been found not guilty by reason of temporary insanity. The article, of which the applicant was one of the authors, stated, in particular:

“... The whole of Chechnya is filled now with the same Budanovs – maniacs, bloodthirsty sadists, murderers and degenerates in epaulettes. Russia’s whole occupying army consists of those Budanovs.”

It also stated that:

“... The fact that a [someone who posed a] danger [to] society, an insane maniac was in command of a regiment ... sets a new task before the revolutionary-democratic forces of Russia. From now on we should require immediate compulsory psychiatric examination of all commanders of the military and naval forces, service personnel of the Ministry of the Interior, the border guard, the police and the FSB, starting from a captain and finishing with the Commander-in-Chief – V.V.Putin.”

It also appealed:

“Let dozens of Chechen snipers take up their positions in the hills and the city ruins and hundreds and thousands of aggressors perish from their holy bullets! No mercy! Death to the Russian invaders!”

An article headlined “Accomplices to the murderers of the Chechen people” (“О соучастниках убийства чеченского народа”), authored by a third person, commented on the hostage-taking at the Dubrovka Theatre in Moscow in October 2002 and contained the following paragraph:

“I, as a national of the Chechen Republic of Ichkeriya (CRI), who is daily suffering from the Russian State Terror, can understand the reasons which pushed Chechen patriots to this extraordinary act. It had been brought about by the continuing attacks by Russia on the Chechen State and [the Chechen] people. There are no documents condemning the mass murder of nationals of the CRI, to say nothing of Russia’s aggression against the Chechen State ... Chechen patriots, reduced to a state of despair by Russia’s Terror, were compelled to commit this guerrilla act in Moscow, the capital of Russia. In so doing they pursued their sole goal, namely to alert the international community to the total genocide of the Chechen people being cynically committed by the Russian invaders”.

The same article mentioned the “national liberation struggle of the Chechen people against the colonial expansion of Russia”.

In an article headlined “The Chechen resistance is alive! Maskhadov has visited Dzhokhar and Argun” expressions such as “President Maskhadov”, “President of the CRI”, “Commander-In-Chief of the CRI Maskhadov”, “the capital of the CRI, Dzhokhar” were used.

In an article headlined “In memoriam, Salman Raduyev” (“Памяти Салмана Радуева”) the applicant wrote:

“Chechen heroes are leaving ... Dudayev, Atteriyev, Khattab and today – Raduyev. As if they would be devoured by a scary black noisome abyss. And the name of this abyss is Russia.”

In the same article the applicant stated:

“... Salman Raduyev fought against Russia to his last breath, without making compromises with the murderers of his people. His life was an example of how one should fight against Russia. His death has become an example, amongst a million of such examples, of the immeasurable scoundrelism and perfidy of Russia, the pathological falsity and criminality of Russia as a State, as a civilisation, as a subject of history.

Salman Raduyev is the brightest page [in the history] of the heroic Chechen Resistance movement. He was a hero of an entire generation, not only in Chechnya, but also in Russia. His life and death are a guarantee that damned imperial Russia will be destroyed and the Chechens and all other peoples oppressed by it will finally obtain freedom. We will avenge you, Salman!”

In an article entitled “A new joke by Vova” (“Новая шутка Вовы”) the applicant stated:

“Lawful convictions issued by the Sharia court of the CRI against national traitors are being executed rigorously.”

In the same issue of the newsletter the applicant reproduced information from the website regions.ru regarding a police operation by a unit of the regional Department of the Interior aimed at setting free Uzbek nationals who had been held in slavery by Russian nationals. The applicant headlined that article with the words “Russians have slaves and dare to squawk something about Chechens” (“Русские держат рабов и еще смеют что-то вякать в адрес чеченцев”).

In the same issue the applicant published an article headlined “Orthodox [believers] went completely nuts” (“Православные совсем охренели”) in which information had been given about some unidentified “Orthodox theologians” who, in a booklet called “Foundations of the Orthodox Faith” had allegedly claimed that “Jesus Christ [had been] crucified not by Jews but by Chechens”.

In an article headlined “‘Chechen syndrome’ inside out” (“Чеченский синдром навыворот”), the applicant wrote:

“... Most importantly, we realised with our hearts and skin that Freedom is, indeed, the most precious thing that a man has, the most precious treasure, the only thing worth dying for. And if [an individual is] lucky[, he or she will] take with [him or her]self to the other world at least some enemies, as selfless Chechen women do when they put on their ‘shaheed belts’. The life of a human is in any event brief and fragile and is only worth living if you are free. Otherwise it is better to die at once. As these Chechen women die.”

He went on as follows:

“... In supporting Chechnya at war, demonstrating our solidarity with Basayev, openly supporting Movsar Barayev in Moscow on the days of the ‘Nord-Ost’ [theatre siege], we crossed a line, a certain border, past which all connections to our past and the environment and people among which we had been born and grown up and lived broke down; we had trustingly considered ourselves to be part of them, until we read on a foreign, enemy website, and saw with our own eyes, all the awful details of the atrocities committed by [our] people in a tiny neighbouring mountain country. Hence, the Rubicon has been crossed, the choice has been made and there is no room to back off – we no longer have any other family than all peoples oppressed by ‘our’ Empire, than partisans fighting to be freed from its yoke, than famous warlords like Basayev and political parties which claim monetary compensation [from Russia] for their occupation and return of the territories Russia has annexed ...”

“... It is the bloody cannibalistic atrocity of this State towards a tiny and helpless mountain people that first brought this thought into our conscience: Russia must be destroyed forever, a State doing similar things to an entire nation should not exist at all!”

An article headlined “Chechnya shielded the Caucasus” (“Чечня заслонила собою Кавказ”), authored by a third person, stated:

“... Maskhadov, Basayev, Khattab and other heroes of the Chechen resistance courageously and firmly got in the way of Russia’s aggression and, in fact, saved not only the independence of Chechnya but also its very existence, as well as the existence of other States in the Caucasus ...”

In an article entitled “No comments” the applicant stated:

“... Putin’s cheap propaganda can jabber as long as it wishes that Maskhadov is a bandit and that he is responsible for the ‘Nord-Ost’ [theatre siege] and the recent explosions in Tushino. Anyone who shows at least some interest in contemporary Chechnya knows that it is Maskhadov who is the legitimate President of Chechnya. And until he is re-elected in accordance with the constitution of the CRI, and not the Russian constitution, any other ‘presidents of Chechnya’ are out of the question. Lawful elections of the president of the CRI under the constitution of the CRI of 1992 will only be possible when the CRI army, headed by Commander-in-Chief Maskhadov, defeats occupying Russia’s illegal armed groups of the Ministry of Defence, the Ministry of the Interior and the Federal Security Service, and chucks them out of the territory of independent Ichkeriya ...”

In an article headlined “Retribution-2” (“Возмездие-2”) the applicant stated:

“... Retribution for genocide will take place sooner or later. If we live up to it, we will be its witnesses and it would be good to become its punishing sword. Until then we are only capable of organising lamentably small candlelight vigils to commemorate all those killed and tortured in Chechnya, Ukraine, Lithuania and Poland – from the White (Baltic) to the Black Seas – by our State which has become frenzied because of blood. It is impossible to live with this heavy burden in the soul, as the terrible knowledge of Russia’s history requires retribution from all those who remain conscious. It is possible that the hands which hold a commemoration candle today will hold a gun tomorrow – it is hard to believe that but Lord help us to live in the happy time when this happens. For the time being we don’t have any other weapons, except for the alarm bell of our words.

... We remember and grieve for all those killed and tortured by ‘our’ Empire, hated by us. However, a better gift to all Chechens being exterminated will be not [to have] yet another meeting with candles to commemorate their genocide, but each blow struck – even though they are still weak, for now – against the criminal State which is killing them and depriving us of our freedom, mutilating our souls, striving to turn us into butchers and binding us with blood. ‘Less words and more action’ – this is the slogan of slogans of the day! Particularly given that there is much to be done for the radical anti-imperial opposition in the country!”

The article also read:

“... let Russia spit blood for yesterday’s and today’s genocide of the Chechen people – it serves it right, it deserved it. Let our commemoration candles at the meetings of 23 February turn into flaming torches, in whose purgatorial flames this rotten block, lying in the way of humankind, will burn!”

In the same article the applicant wrote:

“... As to the writing of inscriptions on the walls of buildings, fences and bus stops, one cannot overestimate the importance of those acts. From today on and until 14 [March 2004] we have to strike persistently at one point: slaves, become free for at least a moment, do not participate in fake ‘elections’! We need not campaign among the limited circle of revolutionaries, human-rights activists, extremists, and members of radical and marginal social groups – they already know everything. Each direct and open appeal to ... the people other than politicised consumers of ... TV cud [тележвачки] is an open and powerful blow to the regime and will hasten its end ...”

In the same article the applicant also issued the following call:

“... We have to accumulate, hate and keep record of their crimes – the endless list of all those ‘sweep operations’, ‘identity checks’, ‘counter-terrorist operations’, gagging laws, unlawful searches and politically motivated criminal prosecutions. It would also be good to make lists of all those who carried out a particular ‘sweep operation’ in a particular village, who instituted criminal proceedings, on whose information and on which date. It is known from the historical perspective that those people are most of all afraid of personal responsibility, which they would not be able to shift on to their commanders who had given illegal orders. One day executioners in uniforms and narks without uniforms in Moscow, as well as in Chechnya, will be held accountable to us for everything ...”

An article headlined “Kremlin looters” (“Кремлевские мародеры”), authored by a third person, criticised the actions of the Russian Army in the Chechen Republic and, in particular, accused them of a large-scale extrajudicial executions of civilians during a “sweep” operation in a Chechen village in 1995. It also stated:

“In Chechnya the Russian Army stopped existing as a military force of the State, having, once and for all, turned itself into a frenzied gang of looters and murderers; a herd intoxicated with drugs.”

In his “editorial note” to the “Declaration of the Committee ‘2008: a free choice’” the applicant stated:

“We, [the RKO] and Radikalnaya Politika, are united with the Committee and prepared to cooperate with them. Obviously, we are much more radical than them. We consider that we should not wait until 2008 and be worried about the Constitution but call on the people to overthrow and liquidate Putin’s regime as soon as possible. We also don’t consider it possible to preserve the contemporary Russian Federation as an integral State. However, we are for a common ground with all our allies, even those who are much more moderate.”

On the front page the following statement was published on behalf of the “editorial team”:

“Zelimkhan Yandarbiyev died a hero and he will remain [a hero] in the memory of humankind, historians and grateful future generations. He fought the bloody Rusnya as long as he could”.

In an article headlined “The price to be paid for genocide” (“Расплата за геноцид”) the applicant wrote:

“The explosion in the Moscow metro is justified, natural and lawful ... Chechens have a moral right to blow up everything they want in Russia, after what Russia and Russians have done to them; no objections regarding humanism or love for humankind can be accepted.”

In the same article the applicant stated:

“It has been ten years since the Russian Federation and its people [began] a totally destructive genocidal war against the Chechen people, who before the war numbered only one million people”.

In an article headlined “Will Russia be allowed to participate in the Summer Olympics in Athens?” (“Пустят ли Россию на летнюю олимпиаду в Афинах?”) the applicant wrote:

“Russia’s bloody attack on the CRI led to, among millions of other similar bloody consequences, Russia’s security forces’ killing of the ex-President of the CRI, Zelimkhan Yandarbiyev, who had helped his people to repel this attack.”

In eight issues of the Radikalnaya Politika newsletter, in a column entitled “The Good News” (“Благие вести”), the applicant published information which he had copied from various news agencies’ websites, such as Interfax, or websites like strana.ru and KMNews.ru. The information mostly concerned events such as deaths of federal servicemen or law-enforcement officers in the Chechen Republic; violent attacks and assaults on public officials or police officers in various regions of Russia; and so forth.

On 23 February 2004 the applicant took part at an unauthorised meeting, where he displayed banners with slogans condemning the current political regime, such as: “Zakayev is not a terrorist, unlike Putin and Co.” (Закаев не террорист, в отличие от Путина и К), “Europe! Do not betray the Chechen resistance!” (Европа! Не предай Чеченское сопротивление!), “Russian invaders – get out of Chechnya” (Русские оккупанты – вон из Чечни!), “When will the Chechen people be freed and rehabilitated?” (Когда будет освобожден и реабилитирован чеченский народ?) and also a flag with the words “Radical Party”.

On 10 March 2004, while participating in a meeting at Pushkin Square in Moscow, the applicant, personally and with the participation of an unidentified person, disseminated issues nos. 2 (40) and 3 (41) of the Radikalnaya Politika newsletter and informed people interested in it about the forthcoming issues, how to subscribe and other ways to financially support the newsletter, of which he was the editor-in-chief.

On 18 December 2003 criminal proceedings were instituted against the applicant on suspicion that the views expressed in the Radikalnaya Politika newsletter amounted to appeals to extremist activities and incitement to racial, national, social and other hatred.

A psychological-linguistic expert examination of the texts published by the applicant was carried out. In a report of 13 April 2004 the expert stated, in particular, that the impugned texts contained negative emotional assessments of Russia’s servicemen; of people of Russian ethnicity; and of Orthodox believers. The report further mentioned that, by criticising Russia’s actions in the Chechen Republic, the texts gave negative assessments of Russia, as a State; of the existing political regime; of Russia’s army as a part of the machinery of the State. The report also pointed out numerous expressly negative words and expressions used by the applicants when describing Russia. It also mentioned that the impugned texts positively assessed and justified the actions and activities of a number of Chechen separatist leaders and fighters; terrorist attacks, including explosions, within the territory of Russia.

On 26 April 2004 the applicant was formally charged with the above-mentioned offences and on an unspecified date the case was transferred to the Butyrskiy District Court of Moscow (“the District Court”) for trial.

At the trial, the applicant pleaded not guilty. He confirmed that he had been the editor-in-chief and publisher of the Radikalnaya Politika newsletter but argued that he had printed the newsletter only for himself and had not distributed it. He further argued that he had merely expressed his opinion regarding various political events in Russia, and, in particular, his civic position regarding the ongoing armed conflict in the Chechen Republic. In his words, he had never called for extremist activities or violent overthrow of the existing political regime in Russia; he had only called for a change of the leadership in the country.

The District Court called and examined a number of witnesses, who submitted that they had bought the applicant’s newsletter or seen him distribute it for free in public. It also examined the expert who had drawn up the report of 13 April 2004. The expert confirmed his conclusions made in the report. A number of witnesses on the applicant’s behalf were also called and examined.

The trial court further examined other pieces of evidence, including the expert report of 13 April 2004; written complaints from eight private individuals in which they had stated that the applicant’s articles had aimed at inciting hatred and had contained insulting language in respect of Russians, Orthodox believers and law-enforcement officers; reports of seizure of issues of the applicant’s newsletter; reports of a search of the applicant’s flat and seizure of his computer; a report on the applicant’s forensic psychiatric examination, which confirmed that he was fully able to understand the meaning of his actions and to control them.

The District Court examined the applicant’s arguments and those raised by his defence counsel and dismissed them as untenable on the facts of the case, with reference to the witness statements and other pieces of evidence.

In a judgment of 20 November 2006 the District Court found the applicant guilty of “having publicly appealed to extremist activities through the mass media” (Article 280 § 2 of the Russian Criminal Code) and of having committed “actions aimed at inciting hatred and enmity as well as at humiliating the dignity of an individual or group of individuals on the grounds of ethnicity, origin, attitude towards religion and membership of a social group, through the mass media” (Article 282 § 1 of the Russian Criminal Code).

The trial court 6-7 above, and referred to the texts mentioned in the expert report of 13 April 2004 (see paragraph 39 above). It considered that the impugned texts had had a clear extremist leaning and incited actions prohibited by the Suppression of Extremism Act (see paragraph 69 below). In particular, in those texts the applicant had called for extremist acts, such as a forcible overthrow of the constitutional order and the President of Russia; had called for a breach of the territorial integrity of Russia; had justified and glorified terrorist acts; had called for violence against the Russian people and abased their dignity; and had incited religious discord by arguing that the Orthodox faith had been inferior and by insulting its followers. In those texts the applicant had used insulting language in respect of Russia as a State, the political regime in the country, and servicemen of Russia’s armed and security forces.

More specifically, the District Court observed that in various issues of his newsletter the applicant had represented the conflict in the Chechen Republic as a war between two States – Chechnya and Russia; had approved of terrorist attacks carried out in Russia, and of the actions of criminals and terrorists aimed at the extermination of the Russian people as a nation. In this respect, the District Court referred to the applicant’s relevant texts in issue no. 1 (27) (see paragraph 16 above) and in issue no. 9 (35) (see paragraphs 21 and 23 above), stating that in those texts, while “mentioning a number of persons implicated in terrorist and extremist activities”, the applicant had used words and expressions aimed at creating positive public opinion about those persons and their criminal acts.

The District Court also pointed out that “the texts of the applicant’s articles contain[ed] positive assessment of the bombings in Russia perpetrated by Chechen terrorists as well as the acts of Chechen snipers from illegal armed groups who kill[ed] Russia’s servicemen in Chechnya”. In this respect, it quoted an extract from issue no. 1 (27) (see paragraph 11 above) and extracts from issue no. 3 (41) (see paragraphs 31-32 above).

The trial court went on to note that the applicant had qualified Russia’s actions in the Chechen Republic as aggression and had considered the Russian Army to be an occupying force. Accordingly, he “[had] negatively assessed Russia’s actions and those of Russia’s armed forces; similarly negatively [the applicant had] assessed Russia as a State, the Russian Army as a part of the machinery of the State and Russia’s servicemen as a social group”. The District Court continued to state that, on the other hand, the applicant “[had] represented the events in the Chechen Republic as a war waged by Russia against the Chechen people (the Chechen ethnic group) and as genocide against the Chechen people”. The court corroborated these findings with reference to relevant texts published in issue no. 1 (27) (see paragraphs 8 and 12 above) and in issue no. 3 (41) (see paragraphs 33 and 34 above).

The District Court also observed that the applicant had justified and positively assessed the acts of Chechen rebel fighters, and that he had regarded the Chechen Republic as an independent State with its own President (A. Maskhadov), capital (Dzhokhar), constitution, armed forces and Commander-in-Chief, courts (Sharia courts) and legislation. In particular, in issue no. 1 (27), the applicant had interpreted the events in the Chechen Republic as “a national liberation struggle of the Chechen people against the colonial expansion of Russia” (see paragraph 13 above), referred to “lawful convictions of the Sharia court of the CRI” (see paragraph 17 above), and mentioned “President Maskhadov”, “President of the CRI”, “Commander-In-Chief of the CRI Maskhadov”, “the capital of the CRI, Dzhokhar” (see paragraph 14 above). Also, in issue no. 3 (41) the applicant published a “decree by President Maskhadov” and in the article “No comments” he praised “President Maskhadov” as “the legitimate President of Chechnya” (see paragraph 24 above).

The District Court further referred to the texts in eight issues of the applicant’s newsletter published in the column entitled “Good news” (see paragraph 35 above). It pointed out that the applicant had represented bad events in a positive way, that is to say as actions approved by the authors and by the applicant himself and as an example to be followed. The court pointed out that another example to be followed, according to the applicant, had been actions of Chechen women putting on “shaheed belts”; in the latter respect, the court quoted a relevant extract from the article “‘Chechen syndrome’ inside out” (see paragraph 20 above).

The District Court went on to observe that “in all issues of his newsletter ... [the applicant had] wilfully made use of insulting characteristics, negative emotional assessments and attitudes towards ethnic, racial, national, religious and social groups”. In particular, in respect of Russia as a State he had employed such negative emotional references as metaphors “scary noisome abyss”, “bloody cannibalistic atrocity”, “rotten block”; humiliating characteristics “immeasurable scoundrelism, perfidy, pathological falsity” and negative attitudes aimed at destruction (the metaphor “to spit blood”), which, according to the trial court, was a clear indication of an attitude aimed at inciting bloodshed. The court corroborated these findings with reference to relevant extracts from issue no. 1 (27) (see paragraph 15 above), issue no. 9 (35) (see paragraph 22 above) and issue no. 2 (40) (see paragraph 26 above).

The District Court also considered that in the article headlined “Insanity of Budanov, a guarantee of victory for Basayev”, “the applicant [had] insult[ed ...] servicemen of the Russian Army and law-enforcement officers by launching an appeal to act criminally against them”. In particular, the court stated that “in that article [the applicant gave] an emotional and negative description of the servicemen of the Russian Army as a social group” (see paragraph 9 above) and “[made] an appeal for actions against [army] servicemen ..., such as requiring an immediate compulsory psychiatric examination of its commanders” (see paragraph 10 above). In support of its relevant findings, the District Court also relied on an extract published in issue 2 (40) (see paragraph 29 above).

It went on to state that “by publishing and disseminating the Radikalnaya Politika newsletter [the applicant had] wilfully acted with a view to stirring up enmity and conflict, including armed conflict, on national, racial and religious grounds between citizens living in the European and Asian parts of the country and people living in the Caucasus”. In this respect, the trial court referred to the applicant’s “editorial note” published in issue no. 2 (40) (see paragraph 30 above), observing that in that publication the applicant had “demonstrated a negative attitude towards the existing political system and Russia as a State”. The trial court pointed out that “the stance taken by [the applicant] concerning the liquidation of the existing State regime (“Putin’s regime”) presuppose[ed] not only actions in conformity with the constitution but also the possibility of deviating from it (“to overthrow the regime, without really caring about the Constitution”)”.

The court further noted that in the article “Retribution-2” the applicant had referred to “the following acts aimed against the State and the existing political regime in Russia: organisation of meetings concerning events in the Chechen Republic, participation in those meetings, writing inscriptions on the walls of buildings, fences and bus stops” with the contents reflected in the relevant extracts of that article (see paragraph 25 above). The court also stated that “the applicant [had] also suggested carrying out other unlawful acts against the State and the political regime in the texts of his newsletters but [had] failed to specify which”.

The District Court then observed that in various issues of his newsletter the applicant had “intentionally appealed for records to be kept of such acts as ‘sweep operations’, ‘identity checks’, ‘counter-terrorist operations’, ‘unlawful searches and politically motivated criminal prosecutions’, which he [had] qualified as ‘crimes’ and the persons who [had] carried them out as ‘executioners in uniforms’ and ‘narks without uniforms’”. The court referred, in particular, to the applicant’s appeal made in the relevant extract from the article “Retribution-2” (see paragraph 28 above).

The trial court went on to note that in the article “Orthodox [believers] went completely nuts” (see paragraph 19 above) the applicant had made use of a heading carrying a negative and emotional assessment of the followers of the Orthodox denomination (“went nuts”). However, in the court’s words, “the content of the article [did] not correspond to its title, because it concern[ed] an isolated case (a statement that “Jesus Christ was crucified not by Jews but by Chechens”, contained in a booklet called “Foundations of the Orthodox Faith”); this isolated case [was] generalised from and represented as a typical situation of Orthodox believers by virtue of using the impugned heading”. In the same vein, the District Court pointed out that in issue no. 1 (27) the applicant had reproduced information concerning certain Uzbek nationals held in slavery by certain Russian citizens (see paragraph 18 above). The court noted that the applicant had entitled that article “Russians have slaves and dare squawk something about Chechens” and had represented an isolated fact to the readers as typical and characteristic of all Russians, whereby he had “made a negative and emotional assessment (‘to squawk’) in respect of Russian citizens as a nation”.

Moreover, in issues nos. 1 (27) and 9 (35) the applicant had argued that “Orthodox people [православный народ] had been inferior by using insulting characteristics and negative emotional assessments of believers, discriminatory expressions in respect of the Orthodox denomination as a religion and stating that this religion, practised by Russians, should be abolished, thereby abasing the national dignity of the people practising [it]”. According to the trial court, statements regarding the inferiority of the Orthodox faith had been made by the applicant in an attempt to stir up interethnic and racial conflicts in society so as to cause indignation in society and eventually to call for a change of the existing political regime. The court did not specify which particular articles in the above-mentioned issues contained those characteristics and assessments.

Lastly, the court referred to the fact that “at an unauthorised meeting on 23 February 2004 the applicant [had] called on individuals to support his movement by openly displaying banners with slogans condemning the regime” (see paragraph 36 above) and during the meeting of 10 March 2004, “to continue to commit crimes aimed at incitement to hatred and enmity among the population, abasement of dignity of an individual or group of individuals on the grounds of gender, nationality, language, origin or religious beliefs and membership of a social group, the applicant, personally and with a participation of an unidetified person, had distributed issues nos. 2 (40) and 3 (41) of the Radikalnaya Politika newsletter and had informed the persons interested in it about the forthcoming issues, how to subscribe and other ways to financially support the newsletter, of which he had been the editor-in-chief”. In the trial court’s view the applicant thus had called for extremist activities to be supported by way of their financing on a charitable basis.

The District Court rejected the applicant’s argument that in the relevant articles he had made no appeals to extremist activities, and, in particular, that he had not called for the overthrow of the constitutional order nor stirred up inter-ethnic discord; and that he supported the constitutional order, the Russian Constitution and the Chechen people’s right to self-determination and had merely availed himself of the right to freedom of expression. The trial court noted, with reference to the expert report of 13 April 2004, that the language used by the applicant in the impugned texts enabled the court to conclude that the applicant’s actions had constituted criminal offences and that he had clearly abused his right to freedom of expression secured by the Russian Constitution.

The District Court furthermore dismissed the applicant’s argument that he had been the author of only some of the articles held against him whereas the others had been written by other individuals. The court observed in this connection that the applicant had been the editor-in-chief of the newsletter and, in this capacity, had had the power to shape its editorial direction and he had been responsible for its content.

As regards the punishment to be imposed on the applicant, the District Court had regard to the state of his health and the fact that he had no criminal record, had positive references and had a dependant mother. At the same time it stressed the “high social danger” posed by the applicant’s offences and his personality and sentenced him to five years’ imprisonment. The court also prohibited the applicant from practising journalism for three years to run concurrently.

The applicant appealed, referring, among other things, to Article 10 of the Convention and stating that as the editor-in-chief of the impugned newsletter he had expressed in it his personal views concerning political events in Russia and his attitude, as a citizen of that country, to the war in the Chechen Republic. He had not made any appeals for extremist activities and had not declared the superiority of any one religion over another. Nor had he called for the overthrow of the constitutional order, but he had expressed the view that the Government should be changed. The applicant further pointed out that the number of copies of the newsletter in question had been so miniscule that the statements published therein had presented no public danger. He also argued that the measure of punishment imposed on him was excessively severe, given, in particular, the fact that he had no criminal record and had positive references from the place where he lived.

On 23 May 2007 the Moscow City Court upheld the applicant’s conviction on appeal. It stated, in particular, that the applicant’s newsletter had been a mass medium despite the low number of copies produced. It also considered that .

The applicant was released on 21 March 2011 after he had served the prison sentence in full. In his submission, numerous requests by him for release on parole had been refused.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Pere Pastor Vilanova

In 2005 the applicant, an information technology specialist, moved from Kazakhstan to the Krasnodar Region in Russia to live with his parents and brother, O.Z., who were Russian citizens. He resided there on the basis of visas and temporary residence permits.

In January 2007, the applicant married Ms M.K., a Russian national, with whom he had a son in June 2009.

On 23 December 2008 the Kazakh authorities provided the applicant, upon his request, with an official statement certifying that he had no criminal record in Kazakhstan. The applicant had requested the document with view to applying for Russian nationality through the simplified procedure for spouses of Russian nationals.

In January 2009 the applicant submitted his application for Russian nationality to the Federal Migration Service in the Krasnodar Region (Управление Федеральной миграционной службы по Краснодарскому краю (ФМС)) (hereinafter “the Krasnodar FMS”).

In May 2009 the Krasnodar FMS rejected the application, referring to information provided by the Federal Security Service (Федеральная Служба Безопасности (ФСБ)) (hereinafter “the FSB”) that the applicant posed a threat to Russia’s national security.

On 13 August 2009 the FSB informed the applicant about a decision it had made on the undesirability of his presence (residence) in Russia and on prohibiting him from re-entering the country until July 2014 (hereinafter “the exclusion order”). The applicant was to leave Russia within fifteen days of receipt of the letter. He was not provided with the reasons for the decision, its date or number.

On 13 November 2009 the applicant appealed against the exclusion order to the Oktyabrskiy District Court in Krasnodar, which forwarded it for examination to the Krasnodar Regional Court (hereinafter “the Regional Court”), which had jurisdiction under domestic legislation to look at cases involving State secrets. In his complaint, the applicant alleged, inter alia, that the exclusion order was arbitrary, that it had been taken on the basis of undisclosed information and that his removal from Russia would disrupt his family life. In particular, the applicant stated that he was ethnically Russian, had no connection with Kazakhstan and that his wife and child, as well as his brother and parents, were Russian nationals residing in Russia. He was the family breadwinner and his exclusion would entail distress and financial hardship for his wife and son.

On 24 March 2010 the Regional Court examined the applicant’s appeal in camera. The applicant testified before the court and stated that in 1999 his brother O.Z. had been prosecuted by the United States’ authorities for a computer crime perpetrated in that country; after serving his sentence in the United States, in 2004, his brother had returned to Russia, of which he was a national, and had been offered a job by the FSB. Meanwhile, the applicant and his parents had been pressured by the Kazakh security services to convince his brother to return to Kazakhstan and collaborate with them. Shortly thereafter, in 2005, the Kazakh authorities had opened a criminal case against the applicant on suspicion of computer fraud. Later that year, due to the Kazakh authorities’ pressure and his Russian ethnic origin, the applicant had decided to move to Russia. In 2006, the Kazakh authorities had pardoned the applicant and his criminal record had been expunged. The applicant stressed that throughout his time living in Russia he had been a law-abiding person, had been in full compliance with immigration regulations and had a wife and child who were Russian nationals. He pointed out that he was an ethnic Russian, that he did not speak Kazakh, had no family in that country, and that he had neither a place to live in Kazakhstan nor the financial means to move there with his wife and infant son.

Also at the hearing on 24 March 2010, the applicant’s counsel requested that the court examine the factual grounds for the exclusion and allow him to access the documents which had served as its basis. He stressed that the FSB had failed to produce a single item of evidence to substantiate their allegations about the threat the applicant posed for national security. Referring to the case of Liu v. Russia (no. 42086/05, 6 December 2007), he pointed out that the authorities had to provide evidence proving the applicant was a threat to national security, given that the sanction against him, the five-year exclusion, would lead to the disruption of his family life. The court examined and dismissed the request, stating that as the matter was within the FSB’s exclusive competence it fell outside the scope of judicial review. From the documents submitted to the Court, it is unclear whether the FSB presented the Regional Court with any evidence concerning the applicant’s case, other than its letter to the applicant of 13 August 2009 (see paragraph 10 above) and copies of the relevant legal provisions governing the activities of the FSB and the applicable immigration regulations.

On the same date, 24 March 2010, the Regional Court rejected the applicant’s appeal and upheld the exclusion order. Its decision stated, amongst other things, the following:

“ ... in July 2009 the Federal Security Service took a decision on the undesirability of Mr Zezev’s presence (residence) in the Russian Federation and on prohibiting his re-entry into the country until July 2014 ...

In his complaint, Mr Zezev seeks to have the decision of the Federal Security Service declared unlawful and for it to be overruled, referring to the following:

He has resided in the Russian Federation for five years. He has never committed any crime, either in Russia or Kazakhstan. He does not have a criminal record. His character has been described in positive terms. He does not represent a threat to the security of the Russian Federation. He does not have a place to live in Kazakhstan. He is ethnically Russian and wants to work and live in Russia. The FSB’s decision is unlawful and unsubstantiated ...

... [According to the applicant] the court should examine [his] case in the light of the right to respect for his private and family life and respect for a citizen’s choice of the place for his family life. There is no evidence of any alleged criminal activities ...

... the FSB decided on the undesirability of Mr Zezev’s presence (residence) in Russia and on prohibiting his re-entry into the country until July 2014.

The application of such preventive measures is within the Federal Security Service’s scope of discretion.

The decision [in respect of the applicant] was taken by FSB officials within the scope of their authority and the procedure defined by federal legislation and was approved by the competent official.

Given the circumstances, Mr Zezev’s request to have the FSB’s decision on the undesirability of his presence (residence) in Russia and on the prohibition on his re-entry until July 2014 declared unlawful should be rejected ...”

On 5 April 2010 the applicant appealed against the above decision to the Supreme Court of the Russian Federation (hereinafter “the Supreme Court”). He referred, in particular, to the Court’s case-law on Article 8 of the Convention concerning the right to respect for family life. He stated that the Regional Court had failed to examine whether the FSB decision had been substantiated by proof. He pointed out that the FSB had not furnished any evidence to the court of alleged activities by him that posed a threat to national security. The applicant further stated that even though he was a Kazakh national he was an ethnic Russian, did not speak Kazakh, and had nowhere to live in Kazakhstan as his parents had also moved to Russia in 2005. He further stressed that he had married a Russian national in 2007 with whom he had had a son in 2009 and that all his family members were Russian nationals. Lastly, the applicant pointed out that he was the sole breadwinner for his wife and infant child.

On 2 June 2010 the Supreme Court upheld the Regional Court’s judgment stating, amongst other things, the following:

“...On 22 July 2009 the Federal Security Service issued a decision on the undesirability of the presence (residence) of the Kazakh national Mr Zezev in the Russian Federation and on the prohibition of his re-entry ...

In the cassation appeal Mr Zezev seeks to have the judgment of the Krasnodar Regional Court overruled as unlawful.

The court sees no basis for granting that request ...

When deciding to reject Mr Zezev’s request, the Regional Court had in its possession information which served as the basis for the [FSB] order.

Mr Zezev’s arguments concerning the unlawfulness of the FSB order were examined by the Regional Court.

In those circumstances, the Chamber finds that the applicant’s right to a proper defence was fully complied with and that the reasons for the decision concerning the undesirability of his presence (residence) in Russia and on the prohibition of his re-entry, which was taken owing to the real threat he posed to national security, have been confirmed by concrete facts.

As for the applicant’

In those circumstances, the decision of the Krasnodar Regional Court should remain unchanged ...”

On 17 August 2010 the FMS issued an order for the applicant’s deportation. It appears from the case file that the sanction was not enforced as, according to the applicant, he informed the local authorities that he had an application pending before the Court. He continued to reside in Russia.

In May 2011 the applicant and his wife had another child.

On 19 November 2013 the police arrived at the applicant’s home and fined him for a breach of immigration regulations under Article 18.8 of the Code of Administrative Offences (“the COA”). Then the police detained him on the spot and took him to the court.

The applicant was then taken to the Sovetskiy District Court in Krasnodar, which on 21 November 2013 ordered his deportation and placed him in a special centre for the detention of foreigners.

On 26 December 2013 the applicant was deported from Russia.

On an unspecified date in February 2014 the applicant attempted to re-enter Russia but was informed at the border that he was banned from entering until 31 July 2014.

The applicant has submitted that on 30 July 2014 police officers arrived at his wife’s home in Russia and informed her that he was wanted on suspicion of a crime. The applicant’s wife explained that he had been deported from Russia in December 2013.

It is unclear whether the applicant returned to Russia after the expiry of his re-entry ban on 31 July 2014. According to the Government, the applicant neither applied for a temporary residence permit nor sought Russian nationality between 2014 and 2016.

In their submission to the Court, the Government stated that on 12 December 2008 and 25 November 2012 the applicant was fined for being intoxicated in public and then on 19 November 2013 for a violation of immigration regulations (see paragraph 19 above). The Government further stated that on 31 July 2014 the police in Krasnodar had opened a criminal case against the applicant on suspicion of involvement in computer fraud. As of October 2016 the criminal proceedings against the applicant were still pending.

In reply to a request by the Court for a copy of the documents which served as the basis for the decision to exclude the applicant, the Government only furnished a thirteen-page copy of the transcript of the hearing of the applicant’s appeal by the Krasnodar Regional Court on 24 March 2010 (see paragraphs 12-14 above).


André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The first applicant, T.S., is a Polish national who was born in 1949 and lives in Warsaw. The second applicant, J.J., is a Polish national who was born in 1971 and lives in Sandnes. The applicants were represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.

The first applicant is the maternal grandmother of X, a boy born in 2003 and who lives in Norway. The second applicant is X’s father. The second applicant moved to Norway in 2006 and X and his mother, also Polish, followed in September 2007. The parents separated in 2010, after which X stayed with his mother. In April 2011, X’s mother died. The second applicant was given custody of X.

On 23 June 2011 X was taken into public care on an interim basis by decision of Sandnes Child Care Protection Services (barneverntjenesten), because the second applicant could not take care of him. The measure became permanent on 8 December 2011 by decision of Sandnes County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker) and as the second applicant lacked ability to care for X, he was placed with a foster family. The second applicant kept parental responsibility for X and had contact rights for four hours per month with him.

X was born prematurely and has special needs. He was born with periventricular bleedings, his motor skills are delayed and he has complex visual impairments. His condition is characterised by early traumas tied to domestic violence and alcohol abuse.

The first applicant had good contact with X until he was four years old and moved to Norway. After that they talked on the telephone once or twice per week. Up until the death of his mother, X visited the first applicant in Poland regularly. After the public care decision, the first applicant visited X in Norway three times between 2011 and 2013.

X’s foster family is not Polish-speaking and X is fluent in Norwegian, although he has received Polish lessons at his school as part of his native language education. X has not wished to take any extra-curricular Polish lessons. According to a report issued by the Child Care Protection Services on 30 November 2012, X’s foster parents proposed to X that he might participate in activities at a Catholic church, as his mother was a Catholic. However, X showed no interest in such activities.

In September 2012 the first applicant requested regulated contact rights from the Norwegian authorities. By decision of 4 April 2013, Rogaland County Social Affairs Board (henceforth “the Board”) granted the first applicant contact rights with X during two periods per year. Each period consisted of three visits, with every visit being up to three hours long. The visits were to be supervised if needed. X was heard through a contact person, who gave testimony at the oral hearing. X expressed his desire to meet the first applicant twice per year, although not in Poland, and with the presence of another adult. The Board stressed the importance of contact between X and the first applicant while, at the same time, observing that X had negative reactions, consisting of stomach pain and diarrhoea, before and after visits by the first applicant. X had also objected to further visits by the first applicant at his foster home. With regard to visits in Poland, the Board considered that it was a long journey and that X had special needs. He had also objected to going there for visits. Finally, the Board stressed that the Child Care Protection Services could allow more extended visits if such measures were in the best interests of the child. The Board held an oral hearing and the first applicant was represented by a lawyer.

The first applicant appealed against the Board’s decision and demanded extended contact rights in order to avoid X reacting negatively during visits.

By judgment of 8 September 2014, Jæren City Court (tingrett) limited the first applicant’s contact rights to four hours, twice per year. The first applicant was heard at the oral hearing, along with five witnesses. One of the witnesses had been representing X before the Board and she had talked to X before the oral hearing so that he could have his say. X stated that he did not want to have a lot of contact with the first applicant, but agreed to meet once per year.

The court found it established that the relationship between the first applicant and X had been harmed because the first applicant had criticised and discredited X’s foster family. She had also criticised X for being too thin, for not speaking better Polish and for religious matters. Finally, she wanted to forbid X to do physical exercise such as playing football, although X liked this and was fit for it, according to medical certificates. The court noted that the contact rights could increase in the future if the relationship between the first applicant and X improved. Also, the Child Care Protection Services had offered the first applicant advice on how visits should be carried out. Despite the advice offered, the first applicant had not adapted her behaviour so that the visits would become positive experiences for X. Moreover, the first applicant had been given special counseling twice during two hours. Although the results had improved, the Court had the impression of the first applicant that she was not that easily guided.

Regarding X’s Polish identity, the court agreed with the first applicant that she could play an important part in preserving that identity. However, X’s right to identity, language and culture did not, in the court’s opinion, override the consideration for the best interests of the child. The court agreed with the Board that it was necessary to allow the Child Care Protection Services to supervise the visits in order to prevent the first applicant from saying harmful things to X.

Upon appeal by the first applicant, on 20 November 2014, Gulating High Court (lagmannsrett) refused leave to appeal on the ground that the City Court’s judgment was well-reasoned and that nothing in the appeal indicated that the High Court would make a different assessment from that of the lower court.

On 23 January 2015 the Supreme Court (Høyesterett) refused leave to appeal.

According to Section 4-1(1) of the 1992 Child Welfare Act (lov om barneverntjenester) decisive weight shall be given to the best interests of the child while deciding on measures under the Act.

Section 4-19(4) of the Act provides as follows:

“The child’s relatives, or other persons to whom the child is closely attached, may demand that the county social welfare board determine whether they shall be entitled to access to the child and the extent of such right of access when

a) one or both of the parents is/are dead, or

b) the county social welfare board has decided that one or both parents shall not be entitled to access to the child or that the parents’ right of access shall be very limited.”

It follows from Section 6-3(1) of the Act that a child who has obtained the age of seven shall be informed and be given the opportunity to have his or her say in the matter before any decision is taken. The views of the child shall be given due weight in accordance with the age and maturity of the child.

The Convention on the Rights of the Child contains, in so far as relevant, the following provisions:

Article 3

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. “

Article 8

“1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”

Article 12

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”