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

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

The applicant was born in 1950 and lives in Cubinec.

Part of the house where the applicant has been living since 1991 with her family is occupied by a bar, and for a certain period of time a shop (see paragraph 43 below), run by company O-P. and its predecessor company F. (hereinafter “the company”), since August 2002.

The applicant is the owner of 59.63% of the house, while the company owns the remainder of the house with a share of 40.37%.

The bar is located on the ground floor of the house, below the applicant’s flat. The applicant also owns a flat on the ground floor adjacent to the bar.

In August 2002 the company began reconstruction work on its premises in order to open a bar and a shop.

On 21 August 2002 a building inspector (građevinski inspektor), acting on a complaint by the applicant, found that the reconstruction carried out by the company had not required any additional planning permission or authorisation.

The applicant lodged an appeal against the decision of the building inspector with the Ministry of Ecology, Spatial Planning and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, hereinafter “the Ministry of Construction”), arguing that the company had demolished one of the load-bearing walls and had made a hole in the façade.

On 28 June 2004 the Ministry of Construction allowed the applicant’s appeal and remitted the case to the building inspector on the grounds that he had failed to establish all the relevant facts.

On 7 June 2005 the building inspector found that the company had carried out the construction within the scope defined by the existing planning permissions.

The applicant again appealed to the Ministry of Construction, arguing that she had not had an opportunity to participate in the proceedings and that the findings of the building inspector were erroneous.

On 6 February 2006 the Ministry of Construction remitted the case to the building inspector on the grounds that he had failed to take into account the obvious modifications to the building, in particular the demolition of the load-bearing wall and fissures on the surrounding walls.

On 4 June 2007 the construction inspector ordered the applicant and the company to remove certain walls, a balcony, staircases and part of a rooftop, considering that they had been constructed without the necessary planning permissions.

The applicant appealed against that decision to the Ministry of Construction and on 26 October 2007 the Ministry dismissed her appeal.

On an unspecified date in 2008 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske) challenging the decisions of the building inspector and the Ministry of Construction.

On 3 November 2011 the Administrative Court quashed the decisions of the administrative bodies and ordered that the case be re-examined on the grounds that the relevant facts had not been correctly established.

The administrative proceedings are still pending.

In August 2002 the company applied to the Koprivničko-Križevačka County State Administration Office (Ured državne uprave u Koprivničko-križevačkoj županiji, hereinafter “the County Office”) for an operating licence to run a bar and a shop.

An administrative commission, established to examine whether the premises in which the company intended to run a bar met the necessary operating requirements, noted in its report of 27 August 2002 that those requirements had been met. It relied on an expert report provided by company Z. which, without measuring the noise in the applicant’s flat, because she allegedly would not allow such measurements to be taken in her flat, found that the necessary measures of noise insulation had been put in place.

On 30 August 2002 the County Office granted the company a licence to run a bar.

The applicant complained to the County Office about that decision, arguing that she had not been allowed to participate in the administrative proceedings. She requested that the proceedings be reopened.

On 18 June 2003 the County Office dismissed the applicant’s complaint as ill-founded.

The applicant lodged an appeal against that decision with the Ministry of Tourism (Ministarstvo turizma) and on 17 September 2003 the Ministry quashed the decisions of the County Office and ordered that the applicant be allowed to participate in the proceedings. This decision was later, on 6 September 2007, upheld by the Administrative Court.

On 22 February 2004 the County Office dismissed the applicant’s request for reopening of the administrative proceedings, and this decision was upheld by the Ministry of Tourism on 22 April 2004. The Ministry held that the applicant had been allowed access to all the relevant documents from the case file, and that therefore it was not necessary to reopen the proceedings.

On an unspecified date in 2004 the applicant lodged an administrative action with the Administrative Court. She contended that noise measurements had never been taken in her flat and that the decisions of the lower administrative bodies had numerous substantive and procedural flaws.

In October 2005, after company O-P. succeeded to the business activity of company F., it applied to the County Office for operating licences to run a bar and a shop.

The company submitted a report drawn up by company E. of noise measurements taken on 5 October 2005. The report measured the level of noise during the night (after 10 p.m.) in the bar, the parking area and the entrance to the applicant’s flat located on the first floor. In assessing the maximum permitted noise levels, this report took into account that the house was situated near a road and considered the applicant’s house to fall within zone 4 under section 5 of the by-law on the maximum permitted levels of noise in areas where people live and work (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, hereinafter “the by-law”) relevant to properties consisting of dwellings and business premises but predominantly used for business purposes (see paragraph 110 below). However, the report indicated that it had not taken into account the relevant spatial planning documents placing a property in the relevant zone because no such documents had been presented to the experts when the measurements were taken (see paragraph 110 below and section 5 § 3 of the by-law).

The measurements showed that the external level of noise in the parking area and in the entrance to the applicant’s flat was 48 dB, while the permitted level was 50 dB. It concluded that the noise emanating from the bar to the nearby open and closed areas daily and during the night did not pose any danger to the health of the persons living there.

On 6 October 2005 the County Office granted the company O-P. a licence to run a shop.

On an unspecified date the applicant challenged this decision before the Ministry of the Economy (Ministarstvo gospodarstva, rada i poduzetništva, hereinafter “the Ministry of the Economy”) arguing that she had not had an opportunity to participate in the proceedings.

On 10 October 2005 the County Office agreed with the report drawn up by company E. concerning the level of noise emanating from the bar. This decision was never served on the applicant and it became final and enforceable on 27 October 2005.

On 28 October 2005 the County Office issued the company with a licence to run a bar.

On an unspecified date in 2005 the applicant lodged an appeal against the County Office’s decision with the Ministry of Tourism, and on 22 December 2005 the Ministry dismissed it as ill-founded.

The applicant brought an administrative action against that decision in the Administrative Court, complaining of a number of substantive and procedural flaws in the proceedings before the lower administrative bodies. She contended that she had not had an opportunity to participate in the proceedings, that no measurements of noise and other emissions had ever been taken in her flat, and that the house had not been equipped with the necessary noise insulation.

On 15 May 2006 the Ministry of the Economy dismissed the applicant’s appeal against the County Office’s decision granting the company a licence to run a shop (see paragraphs 32 and 33 above).

The applicant lodged an administrative action with the Administrative Court Against that decision, reiterating her complaints that she had not been able to participate in the proceedings granting the company a licence to run a shop.

On 17 December 2009 the Administrative Court allowed the applicant’s action against the decisions granting the company a licence to run a bar (see paragraphs 35-37 above) and ordered the administrative bodies to re-examine the case on the grounds that they had failed to decide on the applicant’s request for disqualification of the officials who had previously participated in the proceedings.

On the same day, the Administrative Court quashed the decisions of the County Office and the Ministry of the Economy granting the company a licence to run a shop (see paragraphs 32-33 and 38-39 above) and remitted the case for re-examination, on the grounds that the applicant had not had an opportunity to participate in the administrative proceedings.

On 25 October 2010 the Administrative Inspectorate of the Ministry of Administration (Ministarstvo uprave, Upravna inspekcija, hereinafter “the Administrative Inspectorate”) urged the County Office to adopt a decision on the applicant’s complaints. It stressed that the County Office had failed to comply with the judgments of the Administrative Court (see paragraphs 40 and 41 above) and that the relevant thirty-day time-limit for adopting a decision in the administrative proceedings had been significantly exceeded. It also considered that the central problem lay in the impossibility for the applicant to participate in the proceedings, and thus it instructed the County Office to allow the applicant to take part in the proceedings and to take her arguments into account.

On 12 November 2010 the company informed the County Office that it was closing the shop.

On 24 November 2010 the Administrative Inspectorate again urged the County Office to terminate the proceedings. It considered that there had been no justified reason for not adopting a decision concerning the applicant’s complaints. As regards the company’s request for a licence to run a bar, the Administrative Inspection identified two central problems: first, insufficient height of the ceiling in the bar, and second, the problem of noise insulation. In respect of the latter, the Administrative Inspection considered that the operating licence issued five years earlier (see paragraph 35 above) could no longer be a valid ground for consideration. It also noted the inordinate length of the proceedings and numerous procedural flaws in the decisions of the County Office, considering such procedural defects contrary to the relevant domestic law.

The administrative proceedings are still pending.

On 9 September 2008 the County Office instigated administrative proceedings to ascertain whether the noise emanating from the bar and the shop exceeded the permitted levels under the relevant law.

On 15 September 2008 the County Office commissioned an expert report from company EL. concerning the noise insulation in the applicant’s house.

On 24 November 2008 EL. submitted its report, in which it examined the structure of the separating wall between the living room of the applicant’s flat on the first floor and the bar, and the flooring in the bar. It also examined the separating wall between a room in the applicant’s flat and the shop, as well as the flooring in the shop.

The report found that the noise insulation did not satisfy the necessary requirements. Specifically, the noise insulation between the applicant’s living room and the bar was insufficient, while the noise insulation between the shop and the applicant’s flat was within the required parameters.

On 15 December 2012 a hearing was held at the County Office, at which the company requested that a new noise report be commissioned, arguing that in the meantime it had taken the necessary measures to improve the noise insulation.

On 22 December 2008 an official of the County Office carried out an on-site inspection and heard the parties’ arguments concerning the expert report of 24 November 2008.

On 13 February 2009 EL. carried out further measurements of the noise insulation in the structure of the wall separating the applicant’s living room from the bar, and in the flooring of the bar. It found that at the time there was no relevant legislation requiring noise insulation, because at the beginning of 2009 the Croatian Standards Institute (Hrvatski zavod za norme) had repealed all previously existing standards for noise insulation. Thus the report only compared the new results with the results from the previous measurements (see paragraph 49 above). Basing its reasoning on that methodology, and relying on the noise measurements carried out by company B-I. (see paragraphs 62 and 63 below) and company E. (see paragraphs 30 and 31 above), the report found that the noise insulation in the bar was sufficient.

On 23 February 2009 the County Office agreed with EL.’s report and found that the noise insulation in the bar and the shop was sufficient.

On an unspecified date in 2009 the applicant lodged an appeal with the Ministry of Health (Ministarstvo zdravlja) challenging the decision of the County Office.

On 19 March 2009 the Ministry of Health declared the applicant’s appeal inadmissible on the grounds that she did not have standing to lodge an appeal.

The applicant lodged an administrative action in the Administrative Court against the decision of the Ministry of Health, arguing that as the owner of a flat located in the same building as the bar she had every interest in lodging an appeal against the decision concerning the noise insulation measures.

On 6 June 2012 the Administrative Court quashed the decision of the Ministry of Health and ordered that the applicant’s appeal be examined on the merits.

In May 2005 the applicant and her husband, B.U., complained to the sanitary inspector (sanitarni inspektor) about the level of noise coming from the bar.

On 6 June 2007 the Administrative Court, acting upon a complaint concerning the sanitary inspector’s failure to respond, ordered that the complaints be examined.

During the proceedings, the inspector commissioned an expert report from company B-I.

On 21 January 2008 company B-I. submitted a report on its measurements of the level of noise in the bar and in the applicant’s flats. The level of noise during the day was measured in the entrance and inside the living room of the applicant’s flat on the first floor, with all sources of noise inside the bar switched on; with only an air-conditioning fan running; and while chairs were being dragged across the floor inside the bar. Measurements were also taken inside the applicant’s flat on the ground floor, with all sources of noise switched on, and while chairs were being dragged across the floor inside the bar. The level of noise during the night (after 10 p.m.) was measured under the same conditions and in the same places, with an additional measurement of the level of noise in the entrance and inside the living room of the applicant’s flat on the first floor while only the audio system in the bar was switched on.

For the daytime, taking into account the fact that house was situated near a road, the measurements showed that the level of noise was excessive in the applicant’s flat on the ground floor (42dB while the permitted level was 31 dB) and inside the living room of the applicant’s flat on the first floor (40 dB while the permitted level was 36 dB) when chairs were being dragged across the floor inside the bar. During the night, the level of noise was excessive in the entrance to the living room of the flat on the first floor while all sources of noise inside the bar were switched on and in the same area with only the fan running in the bar (46 dB when the permitted level was 44 dB). Furthermore, the level of noise was excessive inside the living room while all sources of noise inside the bar were switched on, and in the same area with only the fan running (30 dB when the permitted level was 27 dB), as well as when chairs were being dragged across the floor inside the bar (40 dB when the permitted level was 27 dB). The level of noise was excessive inside the flat on the ground floor with all sources of noise switched on (30 dB when the permitted level was 26 dB) and while chairs were being dragged across the floor inside the bar (42 dB when the permitted level was 26 dB).

On 8 February 2008 the environmental health inspector heard the parties’ objections and commissioned further expert reports from companies B-I. and E.

On 7 March 2008 company B-I. submitted its report, in which it found that the company had replaced the air-conditioning system which had been generating noise. It then measured the average noise level inside the living room of the applicant’s flat on the first floor for three fifteen-minute periods during the day and two fifteen-minute periods during the night. It also measured the average noise level in front of the air-conditioning system during the night for two fifteen-minute periods. The report found that the level of noise coming from the bar was not excessive.

In March 2008 company E. submitted its report, which also found that the level of noise coming from the bar was not excessive.

On 12 March 2008 the sanitary inspector found that the noise coming from the bar had not exceeded the permitted levels.

On an unspecified date in 2008 the applicant’s husband lodged an appeal with the Ministry of Health challenging the findings of the sanitary inspector.

Meanwhile the applicant’s husband obtained an expert report drawn up by company G-P. and dated 15 March 2008 concerning the level of noise emanating from the bar. This report measured the level of noise during the day and night inside the living room of the flat on the first floor and in front of a window in the living room. In assessing the maximum permitted noise levels this report considered that the applicant’s house fell within zone 3 under section 5 of the by-law pertaining to dwellings and business premises where the predominant use is as residential property (see paragraph 110 below). It found, taking into account the ambient noise, that the level of noise measured inside the applicant’s living room during the night was excessive (30.9 dB with sources of noise switched on when the permitted level was 25 dB) and that the bar’s noise protection measures were not adequate.

On 28 April 2008 the Ministry of Health upheld the sanitary inspector’s decision of 12 March 2008 (see paragraph 67 above).

The applicant’s husband then lodged an administrative action with the Administrative Court, arguing that the noise measurements had not been taken correctly and that the relevant facts had not been correctly established.

On 12 May 2008 the sanitary inspector declared the applicant’s complaint of noise nuisance inadmissible on the grounds that he was not competent to examine the case since at the time civil proceedings were pending before the Križevci Municipal Court (Općinski sud u Križevcima) (see paragraphs 79-95 below).

The sanitary inspector’s decision was upheld by the Ministry of Health on 23 June 2008.

On an unspecified date in 2008 the applicant lodged an administrative action with the Administrative Court against the above decision of the Ministry of Health.

On 28 September 2010 the sanitary inspector carried out an on-site inspection in the bar and found that the necessary noise insulation measures had been put in place.

On 22 September 2011 the Administrative Court quashed the decision of the Ministry of Health of 28 April 2008 (see paragraphs 67 and 70 above) and ordered a re-examination of the case on the grounds that the decision had been based on contradictory expert reports.

On 10 November 2011 the Administrative Court quashed the decision of the Ministry of Health of 23 June 2008 (see paragraph 72 above) and ordered the sanitary inspector to examine the applicant’s complaints on the merits.

The proceedings before the sanitary inspector are still pending.

On 10 January 2006 the applicant lodged a civil action in the Križevci Municipal Court (Općinski sud u Križevcima) against the company and its director, seeking an injunction against any further noise emissions from the bar.

At a hearing on 1 June 2006 the applicant gave evidence before the Križevci Municipal Court. She contended that the noise emanating from the bar had become unbearable and that it was affecting her everyday life. She also complained about smell and other nuisance coming from the bar, in particular about the problems she and her husband had had with drunk and violent customers of the bar.

On 29 September 2006 the Križevci Municipal Court conducted an on-site inspection, to which it invited two expert witnesses from the Zagreb Public Health Institute (Zavod za javno zdravstvo Grada Zagreba, hereinafter “the Institute”). It ordered the experts to take the necessary measurements and commissioned noise and pollution expert reports.

In its report of 2 October 2006 the Institute took into account the expert report drawn up by company E. (see paragraphs 20 and 31 above). In assessing the maximum permitted noise levels this report observed that the house was situated near a road and considered that it fell within zone 3 under section 5 of the by-law pertaining to dwellings and business premises but predominantly residential properties (see paragraph 110 below). The report found that the level of noise in the open area surrounding the bar and inside the applicant’s flat did not exceed the permitted levels for daytime and evening.

The Institute also submitted a report concerning the level of pollution emanating from the bar, which found that all emissions were within the permitted levels.

On 3 and 5 January 2007 the applicant objected to the Institute’s reports. She contended that noise measurements had been taken only in the living room of her flat on the first floor, and that all sources of the noise in the bar had been switched off when the measurements were taken. She asked the Križevci Municipal Court to question four witnesses, Z.S., Ž.P., I.Č. and D.B., who could confirm her allegations. She also pointed out that the experts had failed to take into account the documentation concerning the noise insulation in the building, and had thus erred in their findings.

On 15 February 2007 the Križevci Municipal Court heard the expert witnesses in the presence of the applicant’s lawyer. The noise expert reiterated his findings, and argued that the level of noise had been measured only in the living room, which was the closest area to the bar and in which, as the applicant had told him herself, the noise nuisance was the greatest. He also submitted that the noise had been measured on the balcony of the applicant’s flat on the first floor and that while the measurements were being taken all sources of the noise in the bar had been switched on. He explained that he had not taken into account the documentation on noise insulation because that was not part of his remit. He also considered that the operation of the air-conditioning fan in the bar could in no way influence the level of noise in the applicant’s flat. Lastly, the expert witness pointed out that the previous noise measurements had not found the level of noise in the applicant’s flat to be excessive.

At a hearing on 27 March 2007 the Križevci Municipal Court heard the applicant, who reiterated her objections to the expert reports. She asked for the witnesses who had been present during the measuring to be questioned and for a new expert report to be commissioned.

At the same hearing the Križevci Municipal Court dismissed the applicant’s request and terminated the proceedings.

On 3 April 2007 the four witnesses, Z.S., Ž.P., I.Č. and D.B., who the applicant had asked to be heard at the trial, submitted a statement to the Križevci Municipal Court expressing their dissatisfaction with the manner in which that court had accepted the expert report which, according to them, had contained a number of incorrect statements.

On 10 April 2007 the Križevci Municipal Court dismissed the applicant’s civil action, on the grounds that the expert report showed that the level of noise had not exceeded the permitted level and that other evidence from the case file showed that there had been no other nuisance coming from the bar. As regards the applicant’s request for witnesses to be heard, that court held that all relevant facts had been sufficiently established and that there had been no need to take further evidence in respect of the level of noise, particularly since it considered the expert reports well drafted and convincing.

The applicant lodged an appeal against the above judgment with the Koprivnica County Court (Županijski sud u Koprivnici) on 29 May 2007, challenging the findings of the first-instance court and reiterating her previous arguments.

On 27 March 2008 the Koprivnica County Court dismissed the applicant’s appeal against the Križevci Municipal Court’s judgment as ill-founded. It considered the expert reports convincing and well constructed.

On 28 May 2008 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgment of the Koprivnica County Court, reiterating her arguments that her private life, home and property had been unjustifiably interfered with by the company.

On 2 June 2008 the applicant lodged a criminal complaint with the Križevci Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Križevcima) against the Institute’s experts and the managing director of the company, accusing them of perjury.

On 16 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the findings of the lower courts. This decision was served on the applicant on 28 November 2008.

On 17 December 2008 the Križevci Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that any objection as to the findings of the experts was within the competence of the civil courts and that there was no evidence that the experts or the company director had deliberately given false evidence to the court.

In the period between 2002 and 2013 the applicant called the police on a number of occasions in connection with noise and other emissions from the bar.

The police were called in total fifty-seven times (of which forty-nine calls were by the applicant) to the bar in connection with breaches of public peace and order; these calls resulted in twenty-six minor offences proceedings against various individuals.

The police also instigated thirty visits by other state bodies (the revenue service, health inspectorate and so on) to the bar, which resulted in sixteen minor offences proceedings for breaches of public peace and order.

The applicant also complained to the Križevci Municipal State Attorney’s Office, the Central Inspectorate (Državni Inspektorat), the Office of the Prime Minister of the Republic of Croatia and the Croatian Parliament (Hrvatski sabor) that local and domestic authorities had taken no action, contending that the level of noise and other nuisance coming from the bar had adversely affected her health, dignity, her private and family life and respect for peaceful enjoyment of her possessions.

On 27 March 2009 a parliamentary board dealing with the individual complaints urged the Ministry of Health and the Central Inspectorate Office to examine the applicant’s complaints.

On 11 October 2012 the parliamentary board again urged the competent authorities to examine the applicant’s complaints, pointing out that the Administrative Court’s judgments had never been complied with and that there had been numerous police call-outs to the bar.


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

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

The applicant was born in 1974 and lives in Moscow.

On 10 November 2009 the applicant gave birth to a son, I., whose father was E., her partner.

Following their separation in November 2010, the applicant and E. agreed that I. would live with the applicant and E. would visit him regularly.

On 22 October 2013 E. took the boy to Grozny in Chechnya.

The applicant followed them to Grozny, where she attempted to visit her son, but was prevented from doing so by E.

On 18 February 2014 the applicant applied to the Leninskiy District Court of Grozny (“the District Court”) for a residence order under which I. would live with her. She submitted that I. had lived with her from birth until his removal by his father the previous October. They were very attached to each other. She had a stable income, a spacious flat, good character references, and was capable of providing I. with everything necessary in terms of his living expenses, education and development. She also complained that since the removal she had made many attempts to visit her son, but E. had prevented her from seeing him.

On 19 March 2014 the childcare authority of the Chertanovo District of Moscow visited the applicant’s flat in Moscow and found the living conditions there suitable for a small child.

On 19 March 2014 the Justice of the Peace of the 230 Court Circuit of the Chertanovo District of Moscow convicted E. of assault and battery, finding E. guilty of assaulting and injuring the applicant in August 2013, and sentenced him to a fine.

On 9 April 2014 the childcare authority of Grozny visited E.’s flat in Grozny and found that the living conditions there were suitable for a small child. The officials noted that E. lived in the flat with his mother A. and his son I.

On 15 April 2014 the childcare authority of Grozny issued its report on the case. The report reiterated that E.’s living conditions were suitable and further read as follows:

“[E.] works as a senior medical officer at [a private medical clinic] and, according to him, has a monthly income of 50,000 roubles ...

The child has been living with his father [E.] for a long time. His mother lives in Moscow and does not participate in his upbringing. The boy is very attached to the father and receives a lot of attention, tenderness and care. Bearing in mind the best interests of [I.], [the childcare authority of Grozny] considers that a residence order in respect of [I.] in favour of his father [E.] would not be contrary to the child’s interests and would not hinder his contact with the mother.”

At the hearing concerning the applicant’s application for a residence order, E. stated that I. had indeed lived with his mother until recently, but he was not at all attached to her. E. had financially supported them and had visited them regularly. The applicant was “not leading the right kind of life” and she would have a bad influence on I.

At the hearing, an official of the childcare authority of Grozny reiterated the findings contained in the report of 15 April 2014.

On 17 April 2014 the District Court dismissed the applicant’s application for a residence order in her favour. It held that a residence order in respect of I. should be granted to his father, even though he had not requested it. The court held as follows:

“Article 196 § 3 of [the Code of Civil Procedure] provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law.

Article 65 of [the Family Code] provides that if no agreement can be reached, a dispute between parents must be decided by a court, having regard to the child’s best interests.

It follows that the court may go beyond the parties’ claims and make a residence order in respect of the child in favour of the father [E.].

The report of the childcare authority of Grozny no. ... of 15 April 2014 indicates that it is preferable to make a residence order in respect of the child [I.] in favour of his father [E.], and not to hinder his contact with his mother.

The available information shows that both parents have good character references from their employers and their neighbourhoods, have permanent employment, stable incomes, and real estate.

According to inspection reports, the living conditions of both parents meet the conditions necessary for raising and accommodating a child.

Point 5 of Ruling no. 10 of the Plenary Supreme Court of 27 May 1998 enumerates, in line with Article 65 § 3 of [the Family Code], factors which must be taken into account when deciding on a dispute concerning a child’s residence arrangements. These factors are the child’s attachment to each of the parents and [any] siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating [proper] conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation), and other factors defining the situation in each parent’s place of residence. The Plenary Ruling stresses, in particular, that the better financial or living conditions of one of the parents cannot, in themselves, constitute a decisive reason for granting this parent’s application for a residence order in his [or her] favour.

The better financial and living conditions of one of the parents (the claimant has a higher income and owns residential property in Moscow) cannot constitute a decisive reason for making a residence order in her favour and for rejecting the other parent’s claim, because there are other factors.

By contrast, [the applicant] is a single mother who has one more child from her previous marriage: a daughter [R.] born on 25 June 1997. This age is most difficult, and requires special attention from the mother.

Because she works, on 2 September 2013 the claimant placed I. in a [nursery school] in Moscow, despite the fact that, by her own admission, he suffers from a congenital central neural system anomaly: dysgenesis of the corpus callosum.

The [factors considered] above indicate that [the applicant] is unable to create [proper] conditions for the child’s upbringing and development. Because of her work, she does not have enough time to devote to her children. These circumstances could have a disastrous impact on the child’s immature mind.

It has been established that the defendant occupies a managerial position at work. His income allows him to create comfortable financial and living conditions. He lives with his mother [A.], who helps to raise [I.]. The childcare authorities’ report indicates that the child is attached to his father.

The defendant has not hindered [the applicant’s] contact with the child.

Under Articles 56 and 57 of [the Code of Civil Procedure], each party must prove the circumstances on which [he or] she relies in support of [his or] her claims or submissions.

In the court’s opinion, the claimant has not submitted evidence in support of her arguments in [the] adversarial proceedings.”

The applicant appealed. She complained, in particular, that the residence order had been granted to E. at the District Court’s own initiative, as E. had never requested it. She further submitted that she was perfectly capable of providing I. with everything which he needed for his development. Her elder daughter was healthy and self-reliant and did not require any special attention. Her daughter would therefore not hinder her ability to take care of I.; on the contrary, she was of great help. The applicant had placed I. in a nursery school to give him a pre-school education and to further his social adaptation. His medical condition was not an obstacle to his attending a pre-school. The District Court’s finding that she did not have enough time to take care of her children was not based on any evidence. Neither her working schedule nor that of E. had been examined. Nor had the court explained how, within such a short period of time, I. could have become more attached to his father than his mother, with whom he had lived from birth until his recent abduction. Lastly, the applicant complained that E. was preventing her from seeing her son. That fact had been confirmed by the childcare authorities’ representative at the hearing, who had recounted E.’s assertions that he would not allow any contact between I. and his mother.

On 3 July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it was lawful, well-reasoned and justified. The judgment was based on the best interests of the child, taking into account his age, his attachment to the father, and the father’s ability to create proper conditions for his son’s upbringing and development.

In reply to a complaint by the applicant that she had been prevented from seeing her son for a long time, by a letter of 7 August 2014, a deputy mayor of Grozny informed her that E. had stated to the childcare authorities that he would not allow any contact between I. and his mother.

By a letter of 12 September 2014, the head of the childcare authority of Grozny informed the applicant that the childcare official who had issued the report of 15 April 2014 had been disciplined. An internal inquiry had established that the report was based on incorrect and incomplete information. In particular, E.’s statement that he had high income had not been checked. The finding that the applicant had not participated in I.’s upbringing was not based on any evidence. The length of time I. had lived with each of the parents had not been established. Lastly, the fact that I. had a half-sister living with his mother had not been taken into account. The report of 15 April 2014 had therefore violated the applicant’s rights and legitimate interests.

The applicant lodged a cassation appeal, referring, in particular, to the letter of 12 September 2014.

On 27 November 2014 a judge of the Supreme Court of the Chechen Republic refused to refer the applicant’s cassation appeal to the Presidium of that Court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. Relying, in particular, on the childcare authorities’ report of 15 April 2014, the judge found that it was in I.’s interests to live with his father.

On 5 December 2014 E. died in a car accident. I continued to live with his paternal grandmother A.

On 14 January 2015 the applicant applied to the Shali Town Court of the Chechen Republic (“the Town Court”), asking that I. be returned to her.

On 31 July 2015 the Town Court granted her application. The court held that I. should be taken away from A. and returned to the applicant, with whom he should live from that point onwards. On 12 November 2015 the Supreme Court of the Chechen Republic upheld the judgment on appeal.

On 24 November 2015 the Town Court issued a writ of execution. On the same day bailiffs initiated enforcement proceedings.

On 28 November 2015 the bailiffs visited A. and ordered that she return I. to the applicant on 3 December 2015. When the bailiffs visited A. on 3 December 2015 to take I. away, A. and I. were not at home. The bailiffs visited A. again on 5 and 25 December 2015 and 4 February 2016, but could not find her or I. The childcare authorities also visited A.’s address on several occasions, but found nobody at home. It was finally established that A. had moved out with I.

On 24 December 2015 the bailiffs banned A. from leaving the country.

On 10 February 2016 A.’s and I.’s names were put on the list of wanted persons.

On 28 April 2016 I. was returned to the applicant by the police. On the next day the enforcement proceedings were closed.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić

The applicant was born in 1929 and lived in Budakalász.

He had a joint title to a plot of land in the value of 4.59 “gold crowns” (aranykorona). The land was, from an unspecified date on, in the possession of, and used by, a Socialist “collective farm”. Following the adoption of Act no. II of 1993 on Land Settlement and Land Distribution Committees, the Pest County Land Registry adopted a plan on the division of such properties. That decision was subsequently upheld by the Bács-Kiskun and Pest County Office of Compensation.

On 15 November 1999 a plot of arable land of 979 square metres, situated in the village of Budakalász, was designated by the Pest County Land Registry for the purpose of privatisation, under lot no. 3305. This measure was approved by the Regional Office for Restitution and Compensation Affairs. On 15 November 1999 the applicant was granted ownership of the plot by the Regional Office of Agriculture. His title to the land was registered on 28 August 2000.

However, he could not enter into possession, because the plot which he had been granted was apparently occupied and being used by the owners of the neighbouring plots.

The applicant brought a trespass claim before the District Notary, asserting that his use had been unjustifiably interfered with. Following the dismissal of his request, he sought judicial review of the decision, bringing a civil action before the Budapest II/III District Court against the neighbours, seeking protection of his possession rights.

While this case was pending, the respondents initiated the correction of the land register maps. In the ‘remapping’ proceedings, the District Land Registry observed that plot no. 3305 did not exist in reality. On appeal, the County Land Registry confirmed this finding, designating a new plot for the applicant, under no. 3305/1, on 21 June 2006. This plot was nonetheless smaller than that originally allocated to the applicant, and was apparently not suitable for farming.

Quite independently of the present dispute, on 16 December 2005 a new, digitally compiled land register was put in place by the Budakalász authorities, with the apparent intention of eliminating the existing inaccuracies.

The applicant’s civil action was stayed for the duration of the remapping proceedings. After the adoption of the County Land Registry’s final decision, the District Court dismissed the action on 15 December 2006, observing that the respondents had not used the applicant’s land unlawfully, as the plot of land registered under plot no. 3305 did not exist in reality. The applicant appealed.

The appeal proceedings appear to have been subsequently suspended since the applicant sought judicial review of the remapping decision. In the course of these administrative court proceedings, it was confirmed by an expert land surveyor that the applicant had originally been granted a plot which had been registered with topographic and editing errors, and that these had been duly corrected in the remapping proceedings. Therefore, the Pest County Regional Court dismissed the applicant’s claim on 13 March 2008. This was confirmed by the Supreme Court on 28 April 2009.

Since in the remapping proceedings the location of the land belonging to the applicant eventually became indisputable and it turned out that this plot was not possessed by any of the respondents, the applicant withdrew his appeal against the first-instance judgment of 15 December 2006.

As a result of the above proceedings, the applicant could finally obtain possession of the land in question ten years after having acquired it, that is, sometime in 2009.

On 28 October 2009 the applicant lodged an official liability action against the District and the County Land Registries. His action was dismissed by the Buda Surroundings High Court on 13 March 2012. The court found that the applicant’s damage had been caused by his own conduct since he had initiated a number of futile proceedings before various authorities.

The applicant appealed; however, the appellate proceedings were suspended on account of his death on 16 March 2012, with a view to the successor’s joining the case. It appears that the proceedings are still pending, that is, remain suspended.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Change religion or belief;Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1973. She grew up in Šiauliai, which in 2003, the time relevant in this case, had about 130,000 inhabitants. She currently lives in Vilnius.

The applicant’s medical records show that in May 1992 she was treated for three weeks at Kaunas Psychiatric Hospital (Kauno psichiatrijos ligoninė), where doctors diagnosed her with an acute paranoid reaction disorder (ūmi paranoidinė reakcija). The applicant had been taken to hospital by her parents, who had stated that she had previously joined the Believers in God religious sect (Dievo tikėjimo sekta) and that she had become agitated and disorientated. At her parents’ request and once her health had improved, in summer 1992 she continued treatment at a psychiatric institution in Šiauliai (Šiaulių psichoneurologijos dispanseris), where her diagnosis was acute paranoid psychosis (ūmi paranoidinė psichozė). The doctors noted that the applicant had joined another religious sect, the Hungarian sect (Vengrų), and that her condition had worsened after joining in certain of the sect’s activities in a forest. In particular, she had not been able to communicate well and had spoken only about religion-related topics while at the hospital. Subsequently, the applicant received treatment in the same psychiatric institution in Šiauliai in 1994, when she was diagnosed with paranoia (paranoidinė būsena). She was disorientated and depressed. The doctors noted that the applicant had an inner conflict – she was dissatisfied with the hyper care (hipergloba) given to her by her mother, but was nevertheless not independent or mentally mature. In the summer of 1996 the applicant was again admitted to hospital and treated in the psychiatric institution in Šiauliai, where she was diagnosed with moderately severe endogenous depression (endogeninė depresija, vidutinio gilumo). Once her mental state had improved, the applicant refused to stay in psychiatric institution and was released.

On an unknown date, the applicant obtained a degree in law. In 1997 she won a competition to pursue postgraduate studies (podiplominei stažuotei) in the United States, where she studied for two years.

In May 2002, the applicant’s father became ill with cancer. The applicant was distressed, did not sleep well and had a car accident. Her mother took her the same month to the Volte private hospital in Vilnius, where she was diagnosed with post-traumatic stress disorder (potrauminio streso sutrikimas). She spent a week in the hospital and was released at her own wish so she could be treated as an outpatient.

In December 2002 the private company which employed the applicant as an in-house lawyer was put into liquidation. The applicant later found a job as a lawyer at the Ministry of Economy (Ūkio ministerija).

In February 2003 the applicant made her first visit to the Ojas Meditation Centre, the Lithuanian branch of the Osho religious movement (see Leela Förderkreis e.V. and Others v. Germany (no. 58911/00, § 6, 6 November 2008), where she started meditating (pradėjo medituoti). She states that she found “inner spiritual and emotional healing for [her] stressed and disharmonious inner state, [caused by her] father’s illness, car accident and the loss of [her previous private sector] job”.

According to the applicant’s medical records and court decisions (also see paragraphs 29, 33 and 45 below), on the morning of 7 May 2003 she arrived for work as usual at the Ministry of Economy in Vilnius. She suddenly felt exhausted and asked her superior (viršininkė) for some time off. When her superior refused, the applicant slammed doors and ran out of the office. She was stressed and agitated. She then left her vehicle unlocked in the middle of the street, returned to her apartment, undressed completely, and began screaming on her balcony. She did not open the door to her work colleagues. The applicant’s mother called her the same day, but could not communicate with her because of the applicant’s state of mind. The mother then asked for help from the applicant’s cousin, E.Š.

At about 8 p.m. the applicant’s sister, G.M., and her cousin, E.Š., arrived in Vilnius, and called an ambulance. The applicant was then taken by force to Vilnius Psychiatric Hospital (Respublikinė Vilniaus psichiatrijos ligoninė), a public hospital under the Ministry of Health Care.

At the psychiatric hospital, the applicant refused to sign a form consenting to her admission and treatment. Her cousin did so instead, at 9.15 p.m. The applicant was agitated, aggressive and could not understand the situation. She was physically restrained three times for forty minutes, and forcibly administered neuroleptics, including haloperidol. She fell asleep at 4.20 a.m. on 8 May.

Later the same morning, the applicant was seen by a psychiatrist, doctor D.Š., who was also a head of division at that hospital, and doctor A.G. The doctors indicated in her medical records that the applicant “did not object to being treated” at that hospital (also see paragraph 29 below).

In her application to the Court, and without being contradicted on this point by the Government, the applicant stated that from 8 May to 13 May 2007 she had been placed under the strictest patient regime at Vilnius Psychiatric Hospital. She had been supervised by a nurse twentyfour hours a day in a ward with eight other patients. She had not been able to leave the ward without a nurse.

From 13 May to 5 June, the applicant was under a strict care regime. She could have a walk around the hospital grounds, but only if accompanied by a nurse.

On 5 June, and until her release on 26 June 2003, the applicant’s care regime was changed and at certain times of the day she could take walks on her own within the territory of the hospital.

The applicant’s medical record of 26 May 2003 reads that the applicant at that time did not yet fully understand how sick she was (pilno liguistos būklės suvokimo dar nėra). The record also states that “it has emerged that the patient attends the Osho non-traditional meditation and improvement centre. During conversation [the applicant] states that attending the centre ‘brings her peace’ while not disturbing her social functions; it is also her ‘essential interest’. [The applicant] has an uncritical attitude to attending the centre. Psycho-correction therapy to be continued”.

The record of 2 June 2003 reads that the applicant was clear-headed (mąstymas nuoseklus) and was not agitated (afektas adekvatus). The applicant “was gradually adopting a critical attitude towards psychotic behaviour and also about ways to spend her free time. The treatment was to be continued.”

The record of 20 June 2003 reads that “during psycho correction, the applicant was categorical about attending the Ojas Centre, and asserted that ‘it was a personal matter (tai jos asmeninis reikalas)’. The applicant showed no psychotic symptoms.”

The applicant was released from Vilnius Psychiatric Hospital on 26 June 2003, after fifty-two days. Her medical records, issued by that hospital and later confirmed by the court appointed experts, stated that from 8 May until 26 June 2003 the applicant had a transitory psychotic disorder (tranzitorinis psichozinis susirgimas), which was a serious mental disorder.

The applicant’s medical record of 26 June 2003 stated that her affect (mental state) was flat (calm) and stable (afektas lygus, stabilus) and that she was clearheaded. She had realistic and concrete plans for the future, had a critical attitude towards psychotic behaviour (atsiradusi kritika psichoziniam elgesiui), and had promised to continue treatment as an outpatient.

On 17 June 2003, while the applicant was still being held in Vilnius Psychiatric Hospital, an episode of the Srovės television programme was aired on the LNK national television channel. The channel made an announcement (anonsas) about the forthcoming broadcast in the following way:

“R.S. [journalist]: a secret has been revealed (demaskuota paslaptis). There is a centre which has not been registered anywhere and where the meditation practised is so powerful that to become a member you have to submit medical proof that you are not ill with HIV. ... After such meditation Violeta is today in a psychiatric hospital. Her mother is in tears ...”

The programme itself contained the following statements, including two by doctor D.Š., head of division and a psychiatrist at Vilnius Psychiatric Hospital, who was interviewed by the journalist on what appeared to be the premises of Vilnius Psychiatric Hospital:

“A.K. [journalist]: B. is a woman who has had a management job all her life. ...Today B. has agreed to talk because what has happened is completely unexpected. The woman did not foresee disaster, she did not foresee how her older daughter, who is now an adult, the thirty-year-old Violeta, had been charmed and what she got herself involved with.”

“R.S.: The organisation we are talking about today has many secrets ...”

“Doctor D.Š.: It does not appear that this young woman (mergina) would participate in orgies. She is not hypersexual, and, well, you know, as far as I have learned, she is of high morals and studied for a couple of years in America for a master’s degree.”

“R.S.: We are meeting Violeta’s mother and her seventeen-year-old sister at Vilnius train station. The mother and her daughter came here by train from Šiauliai, wishing to tell Violeta’s story. They did not wish to meet in Violeta’s home town (gimtuosiuose namuose), Šiauliai. They are afraid to hurt Violeta’s father. He is seriously ill and it would be hard for him to accept (išgyventi žinią) what has happened to his elder daughter. More than a month ago, in the apartment in the capital where Violeta lives, the most horrible event in the young woman’s life took place. Violeta suddenly had a complete nervous breakdown, acute psychosis. For Violeta’s family, the reason for that psychosis is the influence of the Ojas Meditation Centre.”

The programme then discussed the activities of the Ojas Meditation Centre in Vilnius. The journalist implied that the followers of Osho in Vilnius held sex orgies. As to the applicant’s identity, the journalist also mentioned that “Violeta obtained a master’s degree abroad, had an important job in State service (dirbo atsakingą valstybinį darbą)” and that the person was “currently being treated at a psychiatric hospital”. The programme included the following statements:

“R.S.: Violeta’s family state that a couple of weeks before the tragedy Violeta would meditate all day and practically not speak to anyone else. She is currently being treated in a psychiatric hospital. ...After two months of meditation Violeta was placed in a psychiatric hospital, in a state of acute psychosis (ūmios psichozės būsenoje).”

“Doctor D.Š.: They [people belonging to sects] do not talk about it at all. As far as I have heard, the teachings there [at the Ojas Meditation Centre] take a couple of years, and enlightment happens or something of that kind. This takes place over four years, something is being cleansed. She [Violeta] does not talk about that. She even says that she performs some kind of practice (atlieka praktikas) there; she hides [things]. This is a common trait of members of sects, that they very much hide that fact. Or, if [things] come to light, they portray it as completely innocent. That is very common.”

M.V., who according to the register of religious organisations in Lithuania is the “leader” and master (lyderis (meistras)) of the Ojas Meditation Centre in Vilnius, stated during the broadcast that the applicant had been terrorised by her mother. The broadcast concluded with statements by the journalist and M.V.:

“R.S.: Maybe it is a coincidence, but a clear danger to Violeta’s mental state appeared just after she had started meditating in accordance with Osho teachings. The young woman will need a long and difficult course of medical treatment (mergina dar ilgai ir sunkiai gydysis). The fact that she has only been in this [Ojas Meditation] centre for a couple of months leads one to reflect on how the practices of the Ojas Meditation Centre can affect someone who is constantly seeking to liberate their soul.”

“M.V.: Actually, there is a Catholic atmosphere and a Catholic resistance, maybe even a Christian resistance, against meditation, because there is no God in meditation ...”

The applicant’s mother and sister were shown during the programme and identified by their real first names as “B., Violeta’s mother” and “G., Violeta’s sister”. They made statements about the destructive influence that, in their view, the Ojas Meditation Centre had had on the applicant.

On 14 August 2003 on the internet site of the Ojas Meditation Center the applicant published a five-page open letter to the journalists at Srovės, signing it with her real name and surname. She expressed regret that the broadcast had not been an objective portrayal of her story. She stated that “by using me, you have maybe created an interesting story, but it is very one-sided. Maybe by unraveling (narpliodamos) the story through my mother you also wanted to protect me and sought to help me, but in reality your broadcast has caused me to feel much distrust and a lot of pain”. The applicant then mentioned that she had previously been admitted to psychiatric institutions in 1992 and 2002, emphasising that those two periods had been unrelated to meditation. She also wrote that she had only started attending the Ojas Meditation Centre in February 2003 and that her emotional breakdown in May 2003 had had no connection to those visits. For the applicant, the Srovės journalists had therefore given an unfair account of her story, and had shown bias by implying that her mental health issues had been caused by meditating at the Ojas Centre. The applicant also stated that in 2002 she had consulted several psychotherapists (psichoterapeutai), who had helped her realise that her psychological problems had roots in her childhood, when she had been controlled by and had lived in fear of emotional and physical violence from her mother. Even at the time of writing there had been resistance and mockery from her family when the applicant had shared her new interests, such as yoga or meditation. The applicant also stated that she “had not been put under a spell (neapžavėjo)” by meditation. Instead, meditation had entered her life naturally as the result of a long and intense spiritual search. She continued:

“Meditation for me is a way to learn about myself and the world, and on the basis of that understanding and by deepening it, to open myself to peace, joy, truth and love. Today meditation for me is a means to reduce emotional, spiritual and psychological tension and stress, to understand the reasons behind unhappiness, including by learning how to avoid it. Meditation allows me to live a more conscious life (sąmoningesnis) and one which is full of joy.”

The applicant also referred in the letter to her involuntary admission to Vilnius Psychiatric Hospital in 2003, where she had been taken by force and deceit, and where she had never agreed to be treated. She wrote that the psychiatrists had blindly believed her mother’s stories and had diagnosed her as being under the influence of a sect (sektantiškumas). That had led to the psychiatric treatment she had received being mainly directed at how to cure her from practising meditation (pagydyti nuo meditacijos) in a hostile environment that had damaged her psychologically and emotionally. In particular, the psychiatrists at the hospital had interrogated her (buvau kamantinėjama) about the Ojas Meditation Centre and its practices, forced her to promise not to meditate, alleged that sex orgies had taken place there, that meditation was harmful for her mental health, that she should follow the Catholic religion which is traditional in Lithuania and that meditation was not compatible with her “social status”. During one visit (vizitacija), a doctor had called her “the one from the Ojas Centre”, rather than using her name. The applicant also wrote that when she had spoken about meditation at the Ojas Meditation Centre doctor D.Š. had simply made fun of it, had said that that was not meditation, and that the applicant knew nothing about what meditation actually was. The applicant had not been able to resist the psychiatrists at the hospital because refusing to talk to them or disagreeing with their statements about the Ojas Meditation Centre or their instructions to stop meditating had been treated as signs of mental illness. For that reason, the amount of medication at the hospital had not been reduced for a long time, strong drugs had been injected into her, and her release from hospital had been postponed. The applicant also noted that she had intended to submit a written statement to the hospital that she refused treatment, but she had been persuaded not to do so because the doctors had threatened that otherwise they would diagnose her problems in such a way that could later prevent her from getting a job.

The applicant concluded by noting that in July 2003 she had attended a session at the Ojas Meditation Centre, and had finally been able to meditate and recover after nearly two months in Vilnius Psychiatric Hospital in a hostile environment that had harmed her mind and body. She saw meditation as means to live a more conscious and meaningful life.

In May 2006 the applicant sued Vilnius Psychiatric Hospital for compensation for non-pecuniary damage. She alleged: (1) unlawful deprivation of liberty; (2) a violation of her right to a private life; (3) a violation of her right to freedom of religion; (4) a violation of her right to the inviolability of her body; (5) failure to provide proper medical care; and (6) a breach of her right to be properly informed about her diagnosis, methods of treatment and prognosis.

Vilnius Psychiatric Hospital responded by saying that on 7 May 2003 the applicant had been involuntarily hospitalised since she had been in a state of acute psychosis and had posed a danger to herself and others. The hospital also submitted that the applicant had never complained in writing about being held unlawfully. The hospital argued that it had not disclosed any confidential information about the applicant, and that it could not be responsible for the actions of the applicant’s mother and the way the Srovės broadcast had been presented. It added that the Osho religious movement had been acting outside the law in 2003 because it had only been registered in Lithuania as a religious movement on 12 April 2005 (see paragraph 56 below). Furthermore, the applicant had not proved that the hospital had had no reason to think that her non-traditional religious beliefs had been the reason behind her emotional outburst (emocinės iškrovos priežastis).

The Vilnius Regional Court ordered the State Forensic Psychiatry Service at the Ministry of Health Care to produce a report to answer certain questions regarding the applicant’s medical condition and her admission to Vilnius Psychiatric Hospital between 7 May and 26 June 2003 on the basis of her medical records. The forensic report was produced in November 2007.

On 25 June 2008 the Vilnius Regional Court granted the applicant’s action.

The Vilnius Regional Court noted at the outset that according to Articles 27 and 28 of the Law on Mental Health Care a person could be placed in hospital without his or her consent if there was a clear and present danger of him or her harming themselves or others. Even then, a court order was needed within two days to keep the person in hospital. Should a court refuse such an order, the forced hospitalisation and treatment had to be discontinued (see paragraph 69 below).

On the basis of the forensic expert report and other material, the Vilnius Regional Court firstly observed that the applicant had not actually denied that she might have required medical assistance on 7 May 2003 because of her state of mind. However, the court found that as of 8 May 2003 she had no longer been in need of medical support. That was confirmed by the applicant’s medical file, where doctor D.Š. had noted on 8 May at 8.15 a.m. that “the patient is responding to meaningful contact, is correctly orientated (pacientė prieinama prasmingam kontaktui, orientuota teisingai)”. Also, at 8.30 a.m. on the same day, doctor A.G., the other psychiatrist treating her at Vilnius Psychiatric Hospital, had written that “currently the patient is sleepy because of medication ... her mind is clear, she is well orientated when it comes to place and time ... currently the affect is flat (pacientė š.m. mieguista dėl vaistų poveikio, sąmonė aiški, orientacija vietoje ir laike tiksli... šiuo metu afektas lygus)”. The court also based itself on the applicant’s other medical records. All that meant that the applicant’s state of health had no longer corresponded to that set down in Article 27 of the Law on Mental Health Care to permit her further forced hospitalisation. Despite that, the applicant had been held against her will and treated at Vilnius Psychiatric Hospital until 26 June 2003, without the hospital ever asking for a court order. That had been in breach of the twoday time-limit set in Article 28 of the Law on Mental Health Care.

The Vilnius Regional Court also agreed with the applicant’s argument that she had not been able to leave the hospital because she was under the influence of drugs, had faced a threat of being physically restrained if she disobeyed the doctors, and had been under a strict regime. The court noted that the requirement that a psychiatric patient should normally be able to express his or her consent to be hospitalised and treated had also been underlined by the Committee for the Prevention of Torture.

The Vilnius Regional Court also observed that there was no written evidence that the applicant had ever agreed to be placed in Vilnius Psychiatric Hospital between 7 May and 26 June 2003. According to the forensic expert report, the applicant had not been able to understand her actions on 7 May 2003; however, the experts had not reached the same conclusion about the period between 8 May and 26 June 2003. That notwithstanding, the applicant had been forced to stay in hospital for fiftytwo days for treatment. The court also emphasised that the patient was always the weaker party in relation to the hospital and its personnel. The hospital’s argument that the applicant had agreed to stay by acquiescence was therefore null and void. The court also relied on doctor D.Š.’s admission during court hearings that the applicant’s life had “not necessarily been in danger” for all of the fifty-two days of treatment and to the same conclusion by the applicant’s treating doctor A.G. In fact, the records signed by doctor A.G. on 8 and 12 May 2007 stating that the applicant was being treated at the hospital had given only one side (vienašališki) of the situation as they had not been countersigned by the applicant. In that context, the court also had regard to the applicant’s explanation that because of the side effects of the medication (sleepiness, inability to concentrate) and the possibility of physical restraint (being tied down) in case of disobedience, she had not been able to express her disagreement about being treated at the hospital in writing. The court also considered that the consent given on 7 May 2013 by the applicant’s cousin, E.Š., for the applicant to be put in hospital and treated could also not be considered as an act of agreement expressed by the applicant.

In the light of those factors, the Vilnius Regional Court concluded that the procedure set down in domestic law for forced admission to hospital and treatment had not only been breached in the applicant’s case, but outright disregarded.

The applicant’s mother also testified before the Vilnius Regional Court. She said that she had learned on 7 May 2003 that the applicant was delirious and had asked E.Š. for help. That had led to the applicant being taken to Vilnius Psychiatric Hospital. The mother also said she had contacted the Ojas Meditation Centre in Vilnius about her daughter, but had not received a constructive response. She had then contacted the journalists from Srovės, because she had wished to find out what was happening to her daughter. She had not known what diagnosis the psychiatric hospital had given the applicant and had only told the Srovės journalists which hospital her daughter was in.

Doctor D.Š. testified that she was head of division (skyriaus vedėja) at Vilnius Psychiatric Hospital when the applicant had been treated there. She said that the journalists had not called her directly but that the hospital administration had informed her that they would come and had “kind of stated that the talk would be about Mockutė”. The doctor testified that she had “not discussed [the applicant’s] health” with the journalists, only the Ojas Meditation Centre and meditation as such.

The Vilnius Regional Court then turned to the applicant’s complaint of a breach of her right to privacy. Relying on Article 14 of the Law on Mental Health Care and Article 2 § 1 of the Law on the Legal Protection of Personal Data (see paragraphs 59 and 61 below), the court noted that “there was evidence in the case-file (byloje yra pateiktas įrodymas) that doctor D.Š. had, without obtaining the applicant’s consent to disclose confidential information, revealed to the Srovės journalists that the applicant had been diagnosed with acute psychosis (ūminė psichozė), that she was being treated at Vilnius Psychiatric Hospital, and that she had studied in the United States”. The interview with the doctor had been shown during the Srovės programme on 17 June 2003. The court noted that even in 2008 (šiuo metu) there were not many people in Lithuania who had studied in the United States and so that characteristic had not been very common. The court also considered that “other information revealed to the journalists about the applicant could also allow the applicant’s identity to be established”, although the court did not specify what other information it meant.

The court then had regard to the applicant’s complaint about freedom of religion by referring to Article 9 of the Convention. It also relied on Article 7 of the Law on Mental Health Care (see paragraph 67 below).

The court found valid the applicant’s complaints that the doctors had tried to dissuade (atkalbėti) her from meditating, attempted to alter her views on non-traditional meditation religion and had treated her against meditating and attending the Ojas Meditation Centre. That conclusion was based on the applicant’s medical file, which contained the following records for 26 May and 20 and 23 June 2003: “ ... absence of a critical attitude towards attending [the Ojas Meditation] Centre”; “during psycho-correction expressed opinion in categorical terms about attending the Ojas Centre, argues, that ‘it is a personal matter’”; “when efforts were made during psycho-correction to get the applicant to form a critical attitude (suformuoti kritiką) towards non-traditional religious beliefs, [the applicant] for a long time remained uncritical and also categorical”. The first-instance court underlined the fact that the psychiatric hospital had not provided any proof of the suggestion that practising a non-traditional religion would place the applicant or others in danger. The court thus concluded that “by attempting to alter the applicant’s attitude to non-traditional religion, meditation, and their practice at the Ojas Meditation Centre” the hospital had breached her right to freedom of religion. Lastly, the court rejected as legally irrelevant the hospital’s assertion that at the time of the applicant’s admission to hospital the meditation centre had been operating “unlawfully”. The Vilnius Regional Court observed that the religious movement had been a party to court proceedings for its registration at the time and had been registered on 12 April 2005.

After finding that between 9 May 2003 and 26 June 2003 the applicant had been placed in hospital and given treatment against her will in breach of domestic law (see paragraph 31 above), the Vilnius Regional Court considered that there had therefore been a breach of the applicant’s right to the inviolability of her body. Furthermore, Vilnius Psychiatric Hospital had failed to prove that it had properly informed the applicant about her state of health, her diagnosis, the methods of treatment and the prognosis for her condition (see paragraph 70 below).

However, the Vilnius Regional Court dismissed as unsubstantiated the applicant’s claims that she had been provided with inappropriate medical care at Vilnius Psychiatric Hospital and that the doctors there had forged her medical records.

The Vilnius Regional Court thus granted the applicant’s civil claim in full and awarded her 110,000 Lithuanian litas (LTL, approximately 31,850 euros (EUR)) in compensation for non-pecuniary damage. She was also awarded legal costs of LTL 1,000 (EUR 290).

Vilnius Psychiatric Hospital appealed. According to the hospital, there was no proof that doctor D.Š. had disclosed confidential information about the applicant’s acute psychosis and that she was being treated at the hospital. The doctor had merely given an opinion about an unidentified person. Moreover, the doctor had pointed out during the firstinstance hearings that she had only given her views when answering the questions the journalists had put to her. Three witnesses – the applicant’s mother, sister and the journalist R.S. – had explained during the firstinstance court’s hearings that the television programme had been initiated by the applicant’s relatives, who had provided information about the applicant. The first-instance court’s reference to studies in the United States as a way of identifying someone was not sufficiently weighty either, and such information was not protected under Article 14 of the Law on Mental Health Care.

As to the applicant’s right to freedom of religion, the hospital argued that the lower court had erred in equating meditation with religion. The fact that since February 2003 the applicant had attended meditation sessions of “unknown origin and manner (neaiškios kilmės ir pobūdžio meditacijas)” and that they could have been one of the reasons behind her illness, had not been denied. The hospital insisted that in February 2003 the Ojas Meditation Centre had been operating outside the law. The hospital also relied on a 29 August 2003 statement by the Ministry of Justice that Osho movement centres did not have the status of a religion (see paragraph 55 below), which supported the hospital’s view that meditation was not a religious practice. Accordingly, the applicant’s “fictitious” (tariama) religious freedom had not been breached.

The applicant responded by submitting that the right to privacy included the right not to have her health or other confidential information revealed to the journalists or her mother. The applicant added that when she had been in the psychiatric hospital, doctor D.Š. had persistently asked about the meditation she practised and had spoken of it with contempt. Doctor A.G. would tenaciously try to persuade her to denounce her religion and give up meditation.

On 20 March 2009 the Court of Appeal upheld the hospital’s appeal in part.

The appellate court upheld the Vilnius Regional Court’s finding that on the basis of her health on 7 May 2003 the applicant had been lawfully placed in Vilnius Psychiatric Hospital. Her condition that day had corresponded to the domestic legal requirements for involuntary hospitalisation (see paragraph 68 below). However, the hospital had not provided any evidence that her treatment from 8 May had been indispensable. It was therefore clear that as of that date her treatment at the hospital and her presence there had been involuntary and also amounted to an unlawful deprivation of liberty. The Court of Appeal relied on the Supreme Court’s practice in case no. 3K-3110/2004 of 11 February 2004 to the effect that it was obligatory to follow the procedure set out in Articles 16 and 28 of the Law on Mental Health Care, both when providing a patient with the necessary help (būtinoji pagalba) and when placing that person in hospital without his or her consent. Under that procedure, it had been possible to place the applicant in hospital and treat her without her consent for no longer than forty-eight hours. Without a court order, the forced hospitalisation and forced treatment had to be discontinued. However, there was no information in the case file that such an order had been granted. To make matters worse, the hospital had never even asked the court for such an authorisation. The Court of Appeal thus fully shared the lower court’s view that legal procedures had been outright disregarded, making the applicant’s stay in the hospital unlawful.

The Court of Appeal noted that under Article 22 of the Constitution and Article 14 of the Law on Mental Health Care, patients had a right to have information about their health kept confidential (see paragraphs 58 and 59 above). It could not be disclosed by doctor in charge of treatment or by hospital administration.

That being so, the Court of Appeal did not agree with the firstinstance court’s conclusion that doctor D.Š.’s interview with the journalists, which had been shown during the television programme of 17 June 2003, had disclosed information that had revealed the applicant’s identity. The appellate court relied on the Supreme Court’s ruling in case no. 3K-3-630/2004 of 24 November 2004, where it had found that in cases where there was no direct mention of a person in a publication, the process of identification was based on the aggregate evidence of the presence of features which could sufficiently describe the person in mind (see paragraph 63 below). In the particular case of the applicant, the Court of Appeal also referred to her open letter of 14 August 2003 to the Srovės journalists (see paragraphs 21 and 22 above), where she had acknowledged that the television broadcast had been instigated by members of her family, that she had not been shown in the programme in person, and that she had been given a different name. The Court of Appeal considered that the fact that the main character of the programme (laidos herojė) had studied in the United States was not sufficient to establish that the programme was about the applicant. As the applicant had not established that the information disclosed during the broadcast had allowed her to be identified, her claim for breach of privacy had to be dismissed.

Lastly, the appellate court rejected the applicant’s argument that her privacy had been breached because confidential information had been given to her mother. The applicant had been treated earlier in psychiatric institutions in Kaunas and Šiauliai because of mental health problems and her mother had been aware of those previous periods in hospital. Moreover, providing information to close relatives about the applicant’s health could not be regarded as a breach of her right to privacy.

The Court of Appeal noted that the right to freedom of religion had been enshrined in Article 26 of the Constitution (see paragraph 64 below) and Article 9 of the Convention. It also noted that under Article 7 of the Law on Mental Health Care, people in hospital had the right to perform religious rites. That right could be restricted by a psychiatrist’s decision only if there was a clear danger to the patient or others, and such restrictions had to be recorded in the patient’s medical file (see paragraph 67 below).

On the facts of the case, the Court of Appeal disagreed with the lower court’s conclusion that there had been a breach of the applicant’s right to freedom of religion while she was in Vilnius Psychiatric Hospital. For the Court of Appeal, there was no evidence in the file that the applicant had been forbidden from performing religious rites. Even though the medical records showed (yra matyti) that her doctors had tried to get the applicant to form a critical attitude towards her religious convictions (religinius įsitikinimus), there was no information that any restrictions had been applied to her. The Court of Appeal found that “the doctors’ attempts to get the applicant to form a critical attitude towards her religious convictions did not mean that [the applicant’s] religious freedom had been breached”.

The Court of Appeal upheld the lower court’s findings that there was no proof that the applicant had received inappropriate medical treatment. It also shared the lower court’s conclusion that Vilnius Psychiatric Hospital had not properly informed the applicant about the treatment she received therein.

Having dismissed part of the applicant’s complaints, the Court of Appeal lowered the award for non-pecuniary damage to LTL 20,000 (approximately EUR 5,800). The applicant was also ordered to pay Vilnius Psychiatric Hospital’s legal costs of LTL 3,202 (approximately EUR 927). Lastly, the appellate court quashed the part of the first-instance decision on the applicant’s costs being paid by the hospital so she had to bear the legal costs herself.

On 17 June 2009 the applicant submitted an appeal on points of law. She argued that the lower courts had failed to properly apply Convention norms on the right to privacy and freedom of religion.

By a ruling of 19 June 2009 the Supreme Court refused to admit the appeal for examination, holding that the applicant’s arguments were not sufficient to merit examination.

On 12 March 2003 the Ojas Meditation Centre applied to the Ministry of Justice to be registered as a religious community.

On 29 August 2003 the Ministry of Justice rejected the application because it considered that although the Centre was on the “border between self-help psychology and religion (egzistuojantis savipagalbos psichologijos ir religijos paribyje)”, it should not be treated as a religious community. Even though the Osho teachings mentioned in the Ojas Meditation Centre’s by-laws were called religious, meditation there was more based on esoteric doctrines of self-improvement than on a religious practice whose main feature was connecting with God, gods or other sacred forms. The Ministry of Justice also noted that Osho movements did not have the status of a religion in western Europe countries.

The Ojas Meditation Centre then started court proceedings. Its action was eventually granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that the Ojas Meditation Centre propagated any controversial practices amongst its members. It was registered as a religious community (religinė bendruomenė) on 12 April 2005 (see Gineitienė v. Lithuania, no. 20739/05, § 24, 27 July 2010).

In her observations sent to the Court on 13 January 2015, the applicant stated that she had continued to that day to practise meditation at the Ojas Meditation Centre.