Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1978 and lives in Osijek.

On 27 April 2011 the applicant was arrested on suspicion of trafficking illegal substances. On the same day an investigating judge of the Osijek County Court (Županijski sud u Osijeku) heard his evidence and ordered his pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The decision also stated that the detention could not exceed forty-eight hours.

On 28 April 2011 another investigating judge of the Osijek County Court summoned the applicant, who said that he would be remaining silent because he wanted to be represented by a lawyer, D.O. The judge issued a decision on opening an investigation against him and two other suspects, G.D. and I.D., on charges of trafficking illegal substances. He also ordered his detention for one month, referring to Article 104 § 1 and Article 102 § 1 (3) of the Code of Criminal Procedure. The applicant’s detention was ordered because G.D. had said that he had been buying illegal drugs from him. Furthermore, he was unemployed and another set of criminal proceedings on similar charges was pending against him. Following an appeal lodged by the applicant, on 3 May 2011 the decision on his detention was upheld by a three-judge panel of the Osijek County Court.

On 24 May 2011 the investigating judge ordered the applicant’s immediate release because G.D. had retracted his previous statement that he had been buying illegal drugs from him. Furthermore, the applicant had submitted documents showing that he had his own candle-making business. The applicant was released that same day. However, following an appeal lodged by the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku), on 26 May 2011 a three-judge panel of the Osijek County Court quashed that investigating judge’s decision and ordered him to re-examine the case.

On 31 May 2011 the investigating judge confirmed his previous decision. On 1 June 2011 the Osijek County State Attorney’s Office lodged an appeal, which was not communicated to the applicant or his counsel. It was argued that the risk of the applicant reoffending continued to exist for several reasons. Firstly, G.D. had given a detailed statement describing how he and I.D. had been buying illegal drugs from the applicant, and the evidence showed that the applicant had had frequent telephone contact with G.D. and I.D. Furthermore, G.D.’s retraction of his previous statement had been unconvincing. Secondly, the applicant had already been convicted of a similar offence, and another set of criminal proceedings concerning charges of trafficking illegal substances were pending against him. Thirdly, the evidence indicated that the applicant had been suspected of selling illegal substances over a longer period of time. Fourthly, he was unemployed and had no lawful means of subsistence.

On 10 June 2011 a three-judge panel of the Osijek County Court, composed of Judges D.K., A.B. and M.J., held a closed session in the parties’ absence. They reversed the investigating judge’s decision and ordered the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure. The decision did not set any time-limit for the detention.

On 14 June 2011 the applicant was again placed in pre-trial detention.

On 17 June he lodged an appeal with the Supreme Court against the decision of 10 June 2011. Judge M.R., acting as a single judge of the Osijek County Court, declared it inadmissible on 27 June 2011 on the grounds that it was not amenable to further appeal. This decision was upheld on 1 July 2011 by a three-judge panel of the same court, composed of Judges R.Š., A.R. and N.S.

On 6 July 2011 the Osijek County State Attorney’s Office indicted the applicant in the Osijek County Court on charges of trafficking illegal substances.

On 8 July 2011 a three-judge panel of the court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure. An appeal lodged by him against that decision was dismissed by the Supreme Court on 20 July 2011.

On 12 July 2011 the applicant lodged two constitutional complaints, about the decisions of 10 June and 1 July 2011 respectively (see paragraphs 10 and 12 above).

On 15 July 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the constitutional complaint about the decision of 10 June 2011 inadmissible, on the grounds that on 8 July 2011 a new decision extending the applicant’s detention had been adopted. It also declared his constitutional complaint about the decision of 1 July 2011 inadmissible, endorsing the lower courts’ reasoning (see paragraph 12 above).

On 18 October 2012 the Osijek County Court dismissed the indictment against the applicant because the prosecutor had withdrawn the charges against him. On 14 June 2012 the Supreme Court ordered his release.

On 15 April 2013 the applicant submitted a request for settlement with the Ministry of Justice in connection with his wrongful detention. A settlement was not reached.

On 1 August 2013 the applicant brought a claim in the Osijek Municipal Court against the State under Article 480 of the Code of Criminal Procedure, seeking non-pecuniary and pecuniary damages for his detention, which he claimed had been unfounded (neosnovan).

On 18 February 2014 the court allowed the applicant’s claim and awarded him 137,550 Croatian kunas (HRK – about 18,560 euros) in non-pecuniary damages. It held that his detention had been unfounded because a judgment dismissing the charges (presuda kojom se optužba odbija) had been adopted after the State Attorney’s Office had dropped the charges against him. The proceedings are still pending as regards the claim for pecuniary damages. The relevant part of the judgment reads:

“The claimant’s claim is well founded in its entirety.

The documents in the case file show that the claimant was finally acquitted of the charge [sic] that he had committed the criminal offence against the values protected by international law – abuse of illegal drugs, described and punishable under Article 173 § 2 of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act (Official Gazette no. 71/06) by the Osijek County Court’s final judgment no. K-43/2012-86 of 18 October 2012.

Further documents show that the claimant was actually detained in connection with the criminal proceedings against him for 393 days.

The Osijek County Court’s decision no. Kv-138/2011-3 of 26 May 2011 (pages 16 and 17 of the case file) shows that the claimant had already been finally convicted by the Donji Miholjac Municipal Court of the criminal offence of abuse of illegal drugs under Article 173 § 1 of the Criminal Code, that is to say for an offence of the same type but in its basic form.

Against the above background, this court considers that the claimant is to be awarded the amount of HRK 350 for each day he spent in detention, which in total amounts to HRK 137,550 since the claimant was detained without basis for 393 days.

When assessing the adequate amount of [just] satisfaction, the Court has taken into account all the circumstances of this case: that the claimant was indicted for the criminal offence of abuse of illegal drugs, described and punishable under Article 173(2) of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act; was deprived of his personal liberty for 393 days; [and] that the proceedings ended by the Osijek County Court’s judgment no. K-43/2012-86 of 18 October 2012 because the County State Attorney’s Office had withdrawn the charges.

It is true that the claimant was previously convicted of the above-mentioned criminal offence. However, in the opinion of this court the sole fact that the claimant was previously convicted has no effect on the defendant’s obligation to compensate him for his unfounded deprivation of liberty, or his detention. Therefore, since the defendant has not proved that the claimant caused his arrest by some unlawful act such as absconding or concealing evidence, this court considers that there was no contribution on his part to the ordering of his detention.”


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

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in 1968 and lives in Vittorio Veneto.

The applicant entered into a relationship with D.P., an Austrian national, and lived together with her in Vittorio Veneto. Their daughter, who is an Italian and Austrian national, was born in December 2006. Under Italian law the applicant and D.P. had joint custody of her.

The relationship between the applicant and D.P. deteriorated and the latter left the family home on 31 January 2008, taking their daughter with her.

The applicant applied to the Venice Youth Court (tribunale per i minorenni di Venezia) for an award of sole custody of the child and asked the court to issue a travel ban prohibiting her from leaving Italy without his consent.

On 8 February 2008 the Venice Youth Court issued a travel ban in respect of the applicant’s daughter. On the same day the applicant learned that D.P. had left Italy with the child and had travelled to Austria, where she intended to take up residence.

On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the applicant’s daughter, granted preliminary joint custody of the child to both parents, and authorised her to reside with her mother in Austria, having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody. In addition, the court granted the applicant access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert.

According to the applicant, D.P. brought their daughter to Italy only once. Visits took place in Austria, although D.P. did not facilitate their organisation. At a later date visits ceased, allegedly due to D.P.’s obstructive behaviour. In a report of 15 May 2009 the expert noted that she was not in a position to evaluate the applicant’s ability to take care of his daughter.

According to the Government the applicant met his daughter fifteen times in Austria, where supervised visits took place between October 2008 and June 2009. Subsequently, he refused to travel to Austria without giving any reasons.

The applicant applied for assistance to secure his daughter’s return under the Hague Convention. His application was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court (Bezirksgericht), where proceedings began on 19 June 2008. Subsequently, the court appointed an expert.

On 3 July 2008, the Leoben District Court dismissed the applicant’s application for the return of the child under the Hague Convention. Referring to the expert’s opinion and having regard to the very young age of the child, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention.

On 1 September 2008, the Leoben Regional Court (Landesgericht) set aside that decision because the applicant had not been duly heard in the proceedings.

On 21 November 2008 the Leoben District Court, having heard the applicant, again dismissed his application for his daughter’s return, referring to the Venice Youth Court’s decision of 23 May 2008.

On 7 January 2009 the Leoben Regional Court dismissed the applicant’s appeal, finding that returning the child to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention.

Meanwhile, in March 2009 D.P. brought proceedings before the Judenburg District Court, seeking an award of sole custody of the child.

On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and maintenance issues in respect of the child by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”).

On 25 August 2009 the same court made a preliminary award of sole custody to D.P., referring to the child’s close links with Austria and the risk of danger to her well-being upon a possible return to Italy.

On 8 March 2010 the Judenburg District Court awarded D.P. sole custody of the child.

In the meantime, on 9 April 2009 the applicant made an application to the Venice Youth Court for his daughter’s return under Article 11(8) of the Brussels IIa Regulation.

In a judgment of 10 July 2009 the Venice Youth Court, having held a hearing, ordered the child’s return to Italy. The child would live with her mother, should the latter decide to return to Italy with her. In that event the Vittorio Veneto social services department was required to provide them with accommodation. In addition, a programme for the exercise of the applicant’s access rights would have to be established. If the child’s mother did not wish to return to Italy, the child was to reside with the applicant.

The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody of the child. However, the child’s mother had failed to co-operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child’s best interests in a satisfactory manner.

On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation.

On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009. He was represented by counsel in these and all subsequent proceedings.

On 12 November 2009 the Leoben District Court dismissed the applicant’s request for enforcement of the Venice Youth Court’s order to return the child. It noted that the child’s mother was not willing to return to Italy with her. However, the child’s return without her mother would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention.

On 20 January 2010 the Leoben Regional Court quashed that decision and granted the applicant’s request for enforcement.

The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was irrelevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child’s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as D.P. had unlawfully removed the child from Italy and the applicant had immediately requested her return. Moreover, the applicant had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue. The Austrian courts therefore had to recognise the judgment and to enforce it. They were not to establish anew whether the child’s return would be contrary to her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement.

D.P. lodged an appeal on points of law with the Supreme Court (Oberster Gerichtshof) on 16 February 2010.

On 20 April 2010 the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation.

On 1 July 2010, the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court’s judgment of 10 July 2009. It found, in particular, that:

(1) a provisional measure [such as the one issued by the Venice Youth Court in 2008] did not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed;

(2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to custody of the child;

(3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which made a provisional award of custody could not preclude enforcement of a certified judgment previously delivered by the court which had jurisdiction in the Member State of origin and had ordered the return of the child; and

(4) enforcement of a certified judgment [ordering the child’s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin, which also had to hear any application to suspend the enforcement of its judgment.

On 13 July 2010 the Supreme Court dismissed D.P.’s appeal on points of law. It noted that according to the CJEU’s ruling the Austrian courts’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to conduct any review of the merits of the decision. If D.P. asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect.

The Supreme Court noted that it was now for the first-instance court to enforce the Venice Youth Court’s judgment. In doing so, it had to take into account the fact that the Venice Youth Court had in the first place envisaged that the child should reside with her mother upon her return to Italy and had ordered the Vittorio Veneto social services department to make accommodation available for them. The first-instance court would therefore have to ask the applicant to submit appropriate evidence, in particular confirmation from the Venice Youth Court or Vittorio Veneto municipal council, that accommodation was indeed available. The first-instance court would then have to order the mother to return with the child within two weeks. Should she fail to comply within that time-limit, the first-instance court would, upon the applicant’s request, have to order coercive measures for the child’s return, while still giving the mother the opportunity to avoid such drastic measures by voluntarily returning to Italy with the child.

On 31 August 2010 the Venice Youth Court refused to grant an application by D.P. for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, the applicant asked the Leoben District Court to order his daughter’s return to Italy.

The applicant claimed that he had offered to make accommodation (apparently a flat belonging to him) available to D.P. and his daughter, but that the Leoben District Court had found that this did not fulfil the conditions set by the Venice Youth Court in its judgment of 10 July 2009.

On 17 February 2011 the Leoben District Court asked the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the Vittorio Veneto social services department, as required by the Venice Youth Court’s judgment of 10 July 2009.

By letter of 22 March 2011 the Austrian Federal Ministry of Justice, as Central Authority, informed its Italian counterpart accordingly and also noted that to date the condition had not been complied with. A similar letter was sent to the Italian Central Authority on 27 May 2011. Three further letters with similar content were sent to the Italian Central Authority prior to November 2011.

By a judgment of 23 November 2011 the Venice Youth Court withdrew D.P.’s custody rights and awarded the applicant sole custody of the child. It further ordered the child’s return to Italy to reside with the applicant in Vittorio Veneto. The court ordered the Vittorio Veneto social services department – if need be in co-operation with the neuropsychiatry department of the local health authority – to ensure that contact between the child and her mother was maintained and to give the child linguistic and educational support in order to assist her integration into her new family and social environment.

The Venice Youth Court referred to its decision of 23 May 2008, which had been aimed at preserving the child’s relationship with her mother while re-establishing contact with the applicant, noting that such attempts had failed owing to a lack of co-operation from the mother. It had therefore ordered the child’s return to Italy in its judgment of 10 July 2009. It further considered that D.P. had unlawfully removed the child to Austria and had subsequently deprived her of contact with the applicant without good reason. She had thus acted contrary to the child’s best interests. It therefore found that sole custody was to be awarded to the applicant. Given that to date any attempts to establish contact step by step had failed, his daughter was to reside with him immediately. The court noted that this would entail a difficult transition for her, but considered that the damage caused by growing up without her father would weigh even heavier. The court considered that the social services department would have to give the child educational and linguistic support to help her settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the child’s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention.

D.P. did not appeal against this judgment.

On 19 March 2012 the applicant notified the Leoben District Court of the Venice Youth Court’s judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation.

On 3 May 2012 the Leoben District Court dismissed the applicant’s request for enforcement of the Venice Youth Court’s order for the child’s return. Referring to the Supreme Court’s decision of 13 July 2010, it considered that he had failed to submit proof that appropriate accommodation would be made available for the child and her mother upon their return.

The applicant appealed. He submitted, in particular, that the Venice Youth Court’s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she was to reside with him.

On 15 June 2012 the Leoben Regional Court granted the applicant’s appeal and ordered D.P. to hand the child over to the applicant within fourteen days, noting that enforcement measures would be taken in case of failure to comply.

The Regional Court found that the condition that appropriate accommodation be made available to the child and the mother was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the child to the applicant and had ordered that she return to reside with him. The applicant had submitted that judgment together with a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The mother’s obligation to return the child to the applicant thus resulted directly from the Venice Youth Court’s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the award of custody made by the Judenburg District Court on 8 March 2010 could not prevent the enforcement of the Venice Youth Court’s judgment. The latter had retained its competence to rule on custody matters, as D.P. had unlawfully removed the child to Austria and the applicant had made a timely request for her return under Article 10 of the Brussels IIa Regulation.

D.P. did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court.

On 13 September 2012 the Supreme Court rejected D.P.’s extraordinary appeal on points of law, as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42(1) of the Brussels IIa Regulation, the requested court had to proceed with the enforcement of the main judgment. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return had been met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the issue of whether a return would endanger the child’s well-being had to be raised before the competent court of the requesting State. D.P.’s argument that the child’s return would lead to serious harm for her and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts, but rather had to be raised before the competent Italian courts.

On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, apparently on account of a change of residence by D.P. and the child.

On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child being traumatised, especially if the parents’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be held in order to seek a constructive solution. Accordingly, he asked both parents to indicate within two weeks whether they were ready to take part in the proposed hearing. The judge further noted that if the parents were not willing to take part in the hearing, the enforced return of the child would be arranged. In this connection, the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents. Moreover, the applicant would be required to find a way to deal with the trauma caused to the child.

On 16 October 2012 the applicant informed the Wiener Neustadt District Court that he was not ready to take part in a hearing with the child’s mother, but wanted to arrange the return of the child with the least traumatic impact possible. He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that D.P. travel to Italy with the child to hand her over. He therefore asked D.P. to either set a pick-up date in Austria or to inform him of a date when she would bring the child to Italy.

On 23 October 2012 D.P. informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the latter court’s competence had not become final. She therefore asked the court to await the decision on her appeal before taking any further steps.

In the related case brought before the European Court of Human Rights by the mother of the child (Povse v. Austria (dec.), no. 3890/11, 18 June 2013), the Court granted a request for interim measures on 4 December 2012. It asked the Government to stay the child’s return to Italy. Having obtained information from the Austrian and Italian Governments and from the applicants, the Court lifted the interim measure on 18 February 2013.

On 4 April 2013 the applicant’s counsel requested that the enforcement proceedings be continued.

On 25 April 2013 the Wiener Neustadt District Court decided to continue the enforcement proceedings and, on 30 April 2013, requested that the parties submit their views within two weeks in order to reach a comprehensive solution for the benefit of the child. According to the Government, the applicant refused to contribute to that process.

In a decision of 20 May 2013 the Wiener Neustadt District Court ordered D.P. to hand over the child to the applicant by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for D.P. to choose whether she would accompany her daughter to Italy or whether she would set a date within that timeframe for the applicant to pick up the child in Austria. Furthermore, the District Court, referring to the Supreme Court’s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any issues relating to the child’s well-being. It noted finally that the deadline for handing over the child had been set in such a way as to allow her to finish the school year in Austria.

As D.P. did not comply with the order to hand over the child, an attempt to enforce it by means of coercive measures was made in the early hours of 24 July 2013 without prior notice. The attempt, in which the judge, trained bailiffs and police officers participated, was unsuccessful, as D.P. and the child were not present at their place of residence. The applicant had been informed of the planned enforcement and was present.

On 9 August 2013 D.P. asked the Venice Youth Court to stay the enforcement of its judgment of 23 November 2011. Furthermore, she sought an award of sole custody in her favour. She alleged that she had not been adequately heard in the initial proceedings. Furthermore, she asserted that there had been a change of circumstances, in that her daughter was fully integrated into her living environment in Austria and had formed bonds with D.P.’s family, consisting of her mother, the latter’s partner and her younger half-brother. There had been no contact between father and child for a lengthy period and the child had no knowledge of Italian. D.P. submitted an expert opinion, according to which the child’s return to her father through the use of coercive measures would cause serious harm to the child.

On 14 August 2013 the Wiener Neustadt District Court dismissed D.P.’s application for a stay of enforcement, but decided to provisionally refrain from returning the child until the Venice Youth Court gave a decision on D.P.’s action before it.

In his observations of 18 October 2013 the applicant claimed that he had not yet been duly notified of the fresh proceedings before the Venice Youth Court. The Government, in their submissions of 18 November 2013, stated that the proceedings were pending before the Italian courts and that the parties had been notified of the dates of hearings. Moreover, the Government submitted that the applicant had not taken advantage of numerous opportunities to re-establish communication between himself and his daughter.

According to information provided by the applicant in a letter of 17 November 2014, the Venice Youth Court held hearings in January and April 2014 in the presence of both parents and fixed a series of meetings between the applicant and his daughter. A number of meetings took place between February and May at intervals of three weeks in Austria and then in June in Italy. The mother of the child was present at the meetings and on some occasions also her partner. The applicant alleges that on two occasions the mother’s partner threatened him and disrupted the meetings. According to the applicant meetings which had been scheduled for July and August 2014 did not take place as the mother refused to bring the child to Italy. The Venice Youth Court held a further hearing on 29 September 2014 and scheduled further meetings in Italy between the applicant and his daughter for December 2014 and January 2015. The proceedings before the Italian courts are still pending.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant was born in 1950 and lives in Belgrade, Serbia.

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

On 18 September 1995 the applicant and her family members instituted proceedings before the Court of First Instance (Osnovni sud) in Herceg Novi, seeking division of their joint property.

On 5 May 1997 the Court of First Instance in Herceg Novi discontinued these proceedings and instructed the parties to initiate a separate civil case given a number of contentious issues.

On 8 September 1997 the applicant’s cousins brought a claim against the applicant and her parents before the Court of First Instance in Herceg Novi. On 30 December 1997, the cousins lodged an additional claim concerning the same matter. Both claims were subsequently joined and examined in the same civil proceedings.

On 1 October 2002 the Court of First Instance in Herceg Novi ruled against the applicant and her parents.

On 25 June 2004 the High Court (Viši sud) in Podgorica upheld this judgment on appeal. The judgment, thereby, became final. It was served on the applicant on 15 July 2004.

On 17 August 2004 the applicant lodged an appeal on points of law (revizija) with the Supreme Court of Montenegro.

This appeal was misplaced until 20 January 2006, when the applicant’s lawyers intervened and urged the authorities to find it. On 12 January 2007 the applicant amended her appeal on points of law.

On 14 February 2008 the Supreme Court of Montenegro rejected the applicant’s appeal on points of law as unfounded. This decision was served on the applicant on 6 March 2008.


CASE OF GARETH TAYLOR v. THE UNITED KINGDOM

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney

The applicant was born in 1985 and is currently in detention at HMP Leyhill.

He was convicted of offences of sexual activity with a child and breach of a Sexual Offences Prevention Order. In May 2007 he received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of eighteen months was fixed.

He was initially detained at HMP Preston and was transferred to HMP Albany in October 2007. Between December 2007 and April 2008 he incurred seven adjudications for failure to obey or comply with orders and regulations and one adjudication for destroying property. He also underwent assessment of his suitability for a sex offender treatment programme.

On 11 January 2008 the applicant was informed of his suitability for the adapted Sex Offender Treatment Programme (“adapted SOTP”). As this was not offered at HMP Albany it was recommended that he transfer to a suitable establishment.

On 3 February 2008 the applicant wrote to the National Probation Service (“NPS”) seeking a transfer to another prison to undertake the adapted SOTP. By letter dated 8 February 2008 the NPS Service replied:

“I have today spoken to your offender supervisor... I have asked him to try and speed up a transfer for you so that you can at least undertake the adapted SOTP, which you should be suitable for. He says that the only CAT B prison that does this is HMP Hull, but he will try and get you transferred there to do it if possible.”

The applicant subsequently complained to HMP Albany on various dates about the failure to transfer him. He was informed that a suitable establishment was being sought.

On 5 June 2008 the applicant completed the Enhanced Thinking Skills (“ETS”) course.

In around November 2008 the applicant’s tariff expired.

In February 2009 a Parole Board Review took place. The Parole Board decided on the papers that the applicant should remain in detention. The Board noted that the applicant had completed the ETS course and would be assessed for, and if found suitable, complete a sex offenders treatment programme.

Subsequent correspondence with the Ministry of Justice refers to long prison waiting lists for access to the adapted SOTP and delays in processing applications for prison transfer.

By letter dated 3 September 2009 the Secretary of State informed the applicant that he agreed with the Parole Board February 2009 recommendation. He indicated that the applicant was to be assessed for and complete the adapted SOTP. A provisional hearing before the Parole Board was fixed for March 2011.

Meanwhile, the applicant was again assessed for suitability for a sex offenders treatment programme. By letter dated 23 October 2009 he was informed that he would be most likely to benefit from the Becoming New Me course (“SOTP BNM”), the replacement for the adapted SOTP.

On 24 November 2010 the applicant was transferred to HMP Bure.

On 23 December 2010 a Parole Board review took place.

On 4 January 2011 the Parole Board notified the applicant of its decision not to direct his release or to recommend his transfer to open conditions. It observed that since his last review the applicant had undertaken training courses in assertiveness skills, understanding the cause of conflict/domestic violence, understanding the boundaries of respectability in relation to children, alcohol awareness and unlocking financial capability. It noted the positive change in his attitude but considered that his risk remained high. It confirmed that he would be required to complete the adapted SOTP prior to release. It concluded:

“[We] shared your concern at the fact you have so far been unsuccessful in your attempts to secure a referral to the courses identified as targets on your sentence plan and that furthermore you have recently been moved to a prison that does not run these programmes. However, prisoner location is an operational matter which sits outside of the Parole Board’s remit and is for the prison service and your offender manager to resolve. What does this mean however, is that you remain an untreated sex offender who is unable to demonstrate that the risk you pose has reduced sufficiently to be manageable in the community.”

By letter dated 28 March 2011, the Secretary of State agreed with the Parole Board’s recommendation. He referred to the need to complete the SOTP BNM. The applicant’s review period was set at eighteen months consisting of:

“ Three months transfer and settling in period in a new establishment

Three months assessment for the Becoming New Me programme

Six months to complete the Becoming New programme

Six months to complete the post Becoming New Me programme report (SARN).”

The next parole review was therefore scheduled to commence in January 2012 with the target date for the oral hearing being July 2012.

On 8 July 2011 the applicant was transferred to HMP Wymott on his own request on compassionate grounds to be closer to his father, who was unwell. He subsequently asked to remain at HMP Wymott and to be given a place on the SOTP BNM course scheduled to commence in September 2011. As that course was already full, the applicant was informed that he could, if he wished, await the next course to be delivered at HMP Wymott in August/September 2012, for which he would be a priority.

On 7 September 2011 the applicant’s representatives wrote to the Governor of HMP Bure and HMP Wymott notifying them that judicial review proceedings were being contemplated against them and the Secretary of State. They sought confirmation that the SOTP BNM course would be made available to the applicant.

By letter dated 1 November 2011 HMP Wymott replied in the following terms:

“I acknowledge that your client’s initial transfer to HMP Wymott was on compassionate grounds ... The fact that Mr Taylor elected not to return to HMP Bure is a factor that must be considered when determining whether or not his progress through the prison service has been slow ... Although, I would argue that the prompt intervention of his newly appointed Offender Supervisor and the attempts he made to source a suitable course at HMP Wymott would indicate that HMP Wymott were not at fault for any delays to your client’s progress.

Your client is known to our Programmes team, is in the assessment process and his post tariff status will ensure that he is prioritised accordingly for the next BNM courses which should be delivered from approximately August/September 2012.”

The prison offered to facilitate a transfer to another prison where the applicant might be able to access the SOTP BNM more speedily. He chose to remain at HMP Wymott to await a place on the SOTP BNM there.

On 25 April 2012 a Parole Board review took place on the papers. The Board decided not to direct the applicant’s release or recommend his transfer to open conditions. It concluded:

“You committed serious index offending, which targeted a vulnerable victim ... The panel was also concerned that, at a young age, you already had a conviction record that included previous violent and sexual offending against vulnerable female victims. It is to your credit that you have some understanding of the risk you pose, and that you are motivated to undertake work to address your sexual offending behaviour. However, you have yet to undertake this work. The panel is also concerned that you have a history of breaching trust and reoffending despite measures being put in place to contain your risk ...”

By letter dated 5 July 2012 the Secretary of State indicated that he agreed with the Parole Board recommendation. He confirmed the SOTP BNM as an appropriate course to reduce the applicant’s risk of reoffending. The next review was scheduled to commence in April 2013 and to be concluded by December 2013.

The applicant commenced the SOTP BNM as planned on 23 August 2012 and completed it on 2 February 2013.

A further Parole Board review took place on 26 February 2014. The Board decided not to direct the applicant’s release, but recommended his transfer to open conditions.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Positive obligations;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1953 and lives in Heidelberg. He is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with him. In 2004 the applicant unsuccessfully attempted to establish contact.

On 19 May 2005 the applicant lodged a request with the Frankfurt/Main District Court for the regulation of contact rights. The course of proceedings before the District Court is summarised in the Court’s judgment in the case of Kuppinger v. Germany [Committee], no. 41599/09, §§ 6-33, 21 April 2011. By interim order of 22 May 2007 the District Court ordered weekly supervised contact between the applicant and his son. Three supervised contact meetings took place between 14 June and 19 July 2007.

On 21 December 2009 the District Court suspended the applicant’s contact rights for one year. This decision was amended on 22 March 2010 with respect to the applicant’s right to be informed about the child’s personal circumstances.

By judgment of 21 April 2011 (see Kuppinger, cited above, § 51), the Court found that the length of the proceedings before the Frankfurt District Court, which had lasted from 19 May 2005 to 22 March 2010, violated the applicant’s right to a trial within a reasonable time under Article 6 § 1 of the Convention. The Court further considered that there had been a violation of the right to an effective remedy under Article 13 of the Convention.

On 30 December 2009 the applicant lodged an appeal against the decision given by the District Court on 21 December 2009. On 15 April 2010 the Frankfurt Court of Appeal held a hearing.

By interim decision of 12 May 2010 the Court of Appeal decided that the applicant had the right to see his son for three hours on six specific dates between 26 May and 6 August 2010. The first three contact meetings were to take place in the presence of a supervisor. The Court of Appeal further ordered the child’s mother to take the child to the meetings on time. Finally, the Court of Appeal warned the mother that an administrative fine (Ordnungsgeld) of up to 25,000 euros (EUR) could be imposed if she did not comply with her obligations under this decision.

The Court of Appeal noted that the last contact meeting had taken place in 2007. There was no indication that contact with the applicant would jeopardise the child’s welfare. According to expert opinion, the child’s refusal to meet the applicant was not based on an autonomous decision, but was influenced by the mother’s stance. This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child. The Court of Appeal acknowledged that the conflict between the parents, and their ensuing lack of communication, posed a risk to successful contact. However, the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help. As it was unlikely that the parents would change their attitude, the granting of contact rights could not await the outcome of successful counselling.

The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the failure of contact visits. In view of the lengthy proceedings, which imposed an emotional burden on the child, it was particularly important to reestablish contact carefully after a regrettable interruption of two years.

On 31 May 2010 the supervisor reported on the first contact meeting, scheduled for 26 May 2010, which had been postponed to 29 May 2010. After a short conversation and some playful interaction with the applicant, the child had decided to go to his mother and subsequently refused to play with his father. The supervisor further informed the Court of Appeal that the mother would be on holiday for the two meetings scheduled for 25 June and 2 July 2010 and that the parties’ counsels would have to agree on alternative dates.

On 18 June 2010 the supervisor reported on the second contact meeting scheduled for 11 June 2010. According to the report, the meeting had lasted around 35 minutes during which the applicant and his son had engaged in several play activities. The meeting was interrupted by two interactions between the child and his mother. Subsequently, the child told the applicant that he did not wish to play with him and left with his mother.

On 25 May 2010 the mother’s counsel informed the Court of Appeal that it had not been possible to find alternative dates for the meetings scheduled during the mother’s absence and that she expected that the meetings would be re-scheduled for 20 August and 3 September 2010.

On 28 June 2010 the applicant requested the Court of Appeal to schedule alternative dates for the meetings which were to take place during the mother’s holidays.

On 1 July 2010 the Court of Appeal informed the applicant that it did not see any reason to issue additional orders as to the organisation of the contact meetings, which fell within the competence of the supervisor. Furthermore, there was no room for scheduling alternative meetings. The Court of Appeal further requested the mother to submit proof of her alleged holiday absence.

On 21 July 2010 the applicant lodged a request with the District Court to impose an administrative fine of at least EUR 3,000 on the mother for having failed to enable him to exercise his contact rights on 26/29 May and a further EUR 5,000 for having prevented him from exercising his contact rights on 11 June 2010. He submitted that the mother had failed to deliver the child on 26 May 2010, allegedly for professional reasons. On the alternative date, 29 May 2010, the mother had brought the child, but taken him away after approximately five minutes. On 11 June 2010 the mother had left the meeting place with the child after half an hour and had thus prevented further contact. In view of the urgency of the subject matter and relying on the case-law of the Court (the applicant’s counsel referred to the case of Koudelka v. the Czech Republic, no. 1633/05, 20 July 2006), the applicant further requested the District Court to reach a decision speedily.

On 29 July 2010 the supervisor reported on the contact scheduled for 23 July 2010. The unsupervised contact ordered by the Court of Appeal had not taken place because the child had refused to go with his father and the supervisor’s mediation attempts had been to no avail.

On 30 July 2010 the mother submitted documents to justify her absence.

On 11 August 2010 the applicant requested the District Court to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision. Relying on the report by the supervisor, he submitted that the mother had prematurely terminated the contact visit on 18 June 2010. Furthermore, she had failed to appear at the meeting place on 25 June and 2 July 2010. On 23 July 2010 the mother had failed to hand over the child to the supervisor, and induced the child to declare that he did not wish to have any contact. On 6 August 2010 the applicant informed the supervisor that he would be approximately 30 minutes late because of traffic problems. The supervisor informed him that mother and child had left the building after ten minutes.

On 25 August 2010 the Youth Office submitted comments.

On 26 August 2010 the District Court scheduled a hearing for 10 September 2010.

On 9 September 2010 the District Court, on the mother’s counsel’s request, postponed the hearing to 24 September 2009.

During the hearing on 24 September 2010 the District Court heard the supervisor’s oral submissions.

On 1 September 2010 the District Court informed the applicant that no decision could yet be taken for lack of the main case file on the contact proceedings.

On 22 October 2010 the applicant’s counsel requested the District Court to expedite the proceedings. He further submitted that the District Court was in possession of all relevant documents and that it was not necessary to await the return of the main case file.

By decision of 12 November 2010 the District Court imposed an overall administrative fine of EUR 300 on the mother for having contravened the contact order six times. The District Court noted that it was not in dispute between the parties that contact did not take place, or took place only for a limited period of time, on the six dates relied upon by the applicant. The District Court further considered that the mother was accountable for the failed contact, albeit to a limited degree.

The District Court considered that the fact that contact visits were terminated because of the child’s resistance did not exonerate the mother. The Court of Appeal had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contact visits. The mother had failed to establish that she had undertaken such measures. She might have had good reason for requesting the dates to be rescheduled. However, she did not have the right to cancel these dates without the Court of Appeal’s or the applicant’s consent. Finally, the mother was under an obligation to wait for the applicant on 6 August 2010, taking into account that the applicant had informed her beforehand that he would be late.

The District Court observed that the relevant provisions prescribed an administrative fine of up to EUR 25,000 for each established contravention of the court order. Based on an overall assessment of the circumstances, the District Court considered that only administrative fines within the lowest range could be envisaged. The District Court took into account that, according to a report submitted by an access custodian on 2 October 2010 (see paragraph 45, below) there were serious indications that it would not even have been possible for a professional counsellor to establish contact. Against this background, the mother’s personal responsibility appeared to be minor. This was even more so as the mother did not completely prevent contact, but took the child to four of the scheduled meetings. The demands on her educational capabilities had been high, as she had not only been obliged to reconsider her own stance on the problems within a period of a few weeks, but also to change the child’s established pattern of behaviour. It had further to be taken into account that comparable contraventions would not have to be sanctioned in the mid-term future, because a contact custodian had been appointed. Against this background, the administrative fine had primarily the character of a sanction for past behaviour, but not of a coercive measure.

According to the District Court, account also had to be taken of the fact that the purpose of the first dates, on which the child had prematurely terminated the contact visits, was to institute contact. It was inherent in this constellation that contact could only be established gradually and might fail. The Court of Appeal had pointed out this possibility and had also indicated that no undue pressure should be exerted on the child.

With regard to the contact meetings scheduled for 25 June and 2 July 2010, the applicant had been informed beforehand that mother and child would be absent and this fact should also be taken into account. He had thus incurred travel and other expenses on these dates in spite of this knowledge.

Considering these circumstances, the Court found it reasonable to impose an administrative fine of EUR 80 for each of the three occasions when contact did not take place at all and of EUR 20 each for the three remaining contraventions.

Both parties lodged complaints. The applicant submitted that the administrative fine imposed was far too low and obviously ineffective. He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under Article 8 of the Convention.

On 2 December 2010 the District Court refused to amend its decision of 12 November 2010 and forwarded the complaints to the Frankfurt Court of Appeal.

On 17 December 2010 the Court of Appeal invited both parties to submit comments in reply by 6 January 2011.

On 2 February 2011 the Court of Appeal rejected both parties’ complaints. In respect of the applicant’s complaint, the Court of Appeal considered that the District Court had exercised its discretion in an acceptable way, taking into account all relevant circumstances. The Court of Appeal further considered that while it was true that the proceedings on administrative fines had to be processed speedily, the courts had to retain the possibility of availing themselves of all relevant information. Even though there were several reasons to assume that the length of the proceedings had been acceptable, the Court of Appeal did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time, as there was no legal basis for establishing that the length of proceedings had been excessive.

On 28 February 2011 the applicant lodged an application to be heard (Anhörungsrüge) with the Court of Appeal, which was rejected by that court on 4 May 2011.

On 16 August 2011 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication (no. 1 BvR 1544/11).

In the meantime, on 14 February 2011 the applicant requested the District Court to execute its decision of 12 November 2010. On 21 March 2011 the District Court ordered the applicant to advance court fees. On 26 April 2011 the District Court requested the applicant to submit an original version of the decision to be executed. On 4 May 2011 the applicant pointed out that the decision had to be executed ex officio. On 1 June 2011 the mother, who had been granted leave to pay by instalments, had paid the administrative fine in full. On 19 July 2011 the District Court informed the applicant that the administrative fine had already been paid.

On 1 September 2010 the Frankfurt Court of Appeal, in the main proceedings, quashed the decision of the District Court of 21 December 2009 (suspension of contact rights) and granted the applicant contact rights on every second Wednesday afternoon for three hours each time, beginning on 29 September 2010. Following four supervised contact meetings, the applicant was to have the right to unsupervised contact meetings of up to eight hours each. The Court of Appeal further appointed Mr. H. as custodian for the implementation of contact rights (Umgangspfleger). The mother was ordered to hand over the child to the custodian for the purpose of contact meetings. Both parents were ordered to have preparatory conversations with the custodian.

The Court of Appeal confirmed its previous finding that there was no indication that contact with his father would jeopardise the child’s welfare and that there was thus no reason to suspend contact rights. There was furthermore not sufficient evidence that the child insistently refused to see his father. The Court of Appeal considered that the child’s verbal refusals to meet his father were not based on the child’s own assessment, but stemmed from the child’s loyalty to his mother as his immediate caregiver. It was evident that contact meetings had solely failed because of the mother’s lack of willingness or her inability to allow such contact.

The Court of Appeal further observed that both parents had contributed to the lack of communication and to the overall development of the proceedings.

In view of the mother’s continuing failure to fulfil her parental duties, the Court of Appeal considered it necessary to appoint a custodian for the implementation of contact rights. The Court of Appeal observed that the custodianship had to be subject to a time-limit. It considered that the time until 31 March 2011 should be sufficient for establishing a stable relationship between the applicant and his son, allowing continued contact.

On 2 October 2010 the custodian informed the Court of Appeal that he had met the applicant, who had been uncooperative and did not seem to take an interest in the child’s welfare. Under these circumstances, contact could not take place as scheduled. Nevertheless, in order to allow for contact, he recommended that the applicant seek professional counselling.

On 15 November 2010 the applicant requested the District Court to discharge the custodian from his duties.

On 16 November 2010 the District Court appointed a curator ad litem to represent the child’s interests and submitted the request to the mother, the custodian and to the Youth Office for comments within one week.

On 30 November and 9 December 2010 the Youth Office and the mother asked the District Court to reject the request.

On 10 December 2010 the applicant requested the District Court to expedite the proceedings. On the same day, the District Court scheduled a hearing for 21 January 2011.

On 17 December 2010 the applicant complained that the District Court, when scheduling the hearing, had not respected the time-limit of one month laid down in section 155 § 2 of the Act on Proceedings in Family Matters (see Relevant Domestic Law, below).

On 12 January 2011 the District Court informed the applicant that it had not been possible to schedule an earlier hearing, as the judge in charge had been replaced by 1 January 2011 and the hearing was scheduled immediately after the new judge’s return from holidays.

On 21 January 2011 a hearing took place in the absence of the custodian, who had informed the District Court that he was on holiday.

On 29 January 2011 the custodian requested the District Court to discharge him from his duties.

Between 2 and 9 February 2011 the District Court judge contacted by telephone eight potential custodians. Ms R. was ready to supervise the first contacts, while Ms Z. declared her readiness to hand over the child for the ensuing unsupervised visits.

On 11 February 2011 the District Court informed the parties that custodian H. could only be dismissed if a new custodian was appointed. The District Court’s intensive endeavours to find a person who was ready to implement the decision of 1 September 2010 proved difficult. On that same date, the District Court judge wrote letters to 22 potential custodians and enquired about their readiness to take up duties in the instant case. Furthermore, the District Court informed the parties that it had instituted ex officio fresh contact proceedings in order to review the existing regulations (Abänderungsverfahren, see paragraphs 67-81, below).

On 16 March 2011 the mother challenged the District Court judge for bias. She withdrew her motion on 12 April 2011.

On 12 April 2011 the applicant’s counsel informed the mother’s counsel that the applicant intended to exercise contact rights on 16 April 2011 and that he expected the mother to hand over the child. The applicant expressed the opinion that the Court of Appeal’s decision of 1 September 2010 still provided for unsupervised visits on every second Saturday. On 14 April 2011 the mother’s counsel replied that she considered that the applicant did not have the right to unsupervised contact.

Between 16 April and 9 July 2011 the mother did not open the door when the applicant appeared for contact visits. Between 10 May and 11 July 2011 the applicant lodged 6 requests to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant. He further requested the District Court to expedite the proceedings.

On 27 June 2011 the mother’s counsel requested the District Court to suspend proceedings pending the proceedings on the review of contact rights.

By decision of 29 June 2011 the District Court established that Mr H.’s custodianship had expired on 31 March 2011.

On 5 July 2011 the applicant requested the District Court to decide without further delay. On 8 July 2011 the District Court informed the applicant that the mother still had to be allowed to submit comments on the request of 1 July and on the applicant’s letter of 5 July 2011.

On 19 July 2011 the applicant complained that the District Court’s failure to decide on his requests violated his right to an effective legal remedy.

On 19 July 2011 the District Court informed the parties of its intention to decide in written proceedings on the basis of submissions lodged by 19 August 2011.

On 26 August 2011 the District Court rejected the applicant’s requests to impose administrative fines on the mother. The District Court observed that the supervised contact ordered in the decision of 1 September 2010 had not taken place. There was no indication that unsupervised contact could take place without an initial phase of supervised contact. This question was the subject matter of the new proceedings on the review of contact rights instituted by the District Court. Under these circumstances, it could not be said that the mother had failed to comply with the contact order of 1 September 2010.

On 13 September 2011 the applicant lodged a complaint which was rejected by the Frankfurt Court of Appeal on 12 December 2011.

On 11 February 2011 the Frankfurt District Court instituted ex officio fresh contact proceedings in order to review the existing regulations and scheduled a hearing in the presence of Ms Z. and Ms R., who had previously declared their readiness to take on duties as custodians, for 16 March 2011.

During the hearing on 16 March 2011, the applicant and Ms Z. could not reach an agreement on the modalities of the contact, in particular the envisaged length of the first unsupervised contact meeting. The mother challenged the District Court judge for bias (compare paragraph 56 above for the parallel proceedings). On 31 March 2011 the substitute judge requested the mother’s counsel to submit reasons for this motion. On 12 April 2011 the mother’s counsel withdrew the motion.

On 18 May 2011 the District Court judge heard the child.

On 29 June 2011 the District Court decided to hear expert opinion on the question of whether the decision on contact rights issued by the Court of Appeal on 1 September 2010 could still be implemented or whether it was in the child’s best interests either to order unsupervised contact or to suspend contact rights.

On 15 July 2011 the applicant challenged the court-appointed expert for bias. On 25 July 2011 the District Court rejected the motion as being unfounded. On 5 August 2011 the applicant lodged a complaint. On 3 November 2011 the Court of Appeal accepted the motion.

On 19 December 2011 District Court appointed a new expert. On 15 March 2012 the expert informed the court that he had been unable to contact the applicant. The applicant informed the court that he was unavailable for further examination. On 29 March 2012 the applicant’s counsel abandoned his brief.

On 17 April 2012 the applicant requested the District Court to schedule a hearing immediately.

On 20 April the District Court, having received the expert report on 19 April, scheduled a hearing for 29 May 2012 and informed the parties that the applicant could be assessed on the basis of the expert’s personal impression gained during the hearing. On 22 May 2012 the applicant rejected the District Court judge on grounds of bias and the hearing was cancelled.

On 22 June 2012 the challenge for bias was rejected as being unfounded. On 9 July 2012 the applicant lodged an appeal which was rejected by the Court of Appeal on 31 October 2012.

On 16 November 2012 the District Court scheduled a hearing for 30 January 2012. On 5 December 2012 the applicant lodged a fresh challenge for bias, which was dismissed on 29 January 2013. On 15 March 2013 the District Court scheduled a hearing for 11 April 2013. Upon the applicant’s request, the hearing was postponed to 6 June 2013.

On 1 June 2013 the applicant informed the District Court that health reasons prevented him from attending the hearing. The District Court, taking into account the parties’ absences during the summer months, postponed the hearing to 22 August 2013.

On 14 August 2013 the applicant once again requested the District Court to cancel the hearing. He did not appear at the hearing which took place on 22 August 2013. On 11 September 2013 the applicant requested the District Court to re-open the hearing, while at the same time submitting that he was unfit to appear in court.

On 12 November 2013 the Frankfurt District Court suspended the applicant’s contact rights until 31 October 2015 on the ground that contact against the child’s expressed will would jeopardise his welfare. The applicant lodged an appeal.

The applicant did not appear at the hearing which took place before the Frankfurt/Main Court of Appeal on 11 February 2014. The Court of Appeal scheduled a further hearing for 21 May 2014, to which the court-appointed expert was also summoned. On 20 May 2014 the applicant asked the Court of Appeal to allow him to bring a private expert to the hearing and, at the same time, to postpone the hearing scheduled for the following day as the private expert was unable to attend. The Court of Appeal referring, inter alia, to section 155 of the Act on Procedure in Family Matters, refused the request. On 21 May 2014 counsel for the applicant, who did not attend the hearing in person, challenged the Chamber of the Court of Appeal for bias, which was dismissed on 21 July 2014.

On 17 September 2014 the Frankfurt/Main Court of Appeal confirmed the suspension of contact rights until 31 October 2015. It furthermore allowed the father to write monthly letters, which the mother was ordered to hand over to the child. Relying on expert opinion, the Court of Appeal considered that personal contacts against the consistently expressed will of the child, who had now reached the age of eleven, would jeopardise the child’s psychological development and had thus to be temporarily excluded. The Court of Appeal further observed that the administrative fine imposed on the mother might have been insufficient and that the refusal of contacts between father and child, which had already lasted more than a decade, had not only been caused by the parents’ and, in particular, the mother’s failure, but also by a failure of the judiciary and of the children and youth welfare services involved.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

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


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

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Ksenija Turković

The applicant was born in 1974 and lives in Istanbul.

On 7 June 1999 the applicant and a number of other suspects were taken into police custody by officers from the Security Branch of the Istanbul Security Headquarters (Güvenlik Şube Müdürlüğü) on suspicion of membership of the DHKP-C (the abbreviation for the Revolutionary People’s Liberation Party/Front, an illegal organisation). The applicant alleges that she was subjected to torture by police officers for four days.

On 9 June 1999 the applicant was taken to a forensic doctor, who noted that the applicant had complained that she had been hung by her arms for approximately ten minutes and that her head had been banged against a wall. The medical report indicates that she had a scrape under her left armpit, a 7-8 cm-long large brown macule on her right forearm and a 3 cmlong oedema on her forehead above the nose.

On 11 June 1999 the applicant was brought before the Istanbul public prosecutor and then before a judge at the Istanbul State Security Court. Before both authorities she denied all accusations against her and complained that she had been subjected to ill-treatment while in police custody. She was subsequently detained pending trial.

On 14 June 1999 the applicant was examined by the prison doctor, who reported a 4x5 cm mark on her right forearm and a swelling on her right clavicle. According to the medical report, the applicant had stated that her arms felt painful and she had a headache.

On 18 June 1999 the applicant filed a complaint with the public prosecutor’s office in Istanbul against the police officers of the Security Branch of the Istanbul Security Headquarters, accusing them of having tortured her. She stated in particular that she had been hung by her arms and had received blows to her head.

On 8 June 2001 the Fatih public prosecutor issued a decision not to prosecute. The public prosecutor considered that the applicant had not been questioned as a suspect and that there was no evidence showing that the accused police officers had committed the crime of torture. The applicant claims that she was not notified of this decision.

On an unspecified date the investigation was reopened. Accordingly, on 18 April 2003 the applicant’s statement was taken by a public prosecutor in the prison where she was detained on remand. The applicant stated that at some time in June 1999 she had been taken into custody at the Anti-Terror Branch of the Istanbul Security Headquarters, where she had been ill-treated for seven to eight days. She noted in particular that she had been undressed, threatened with rape, beaten and hung by her arms by the police officers. The applicant stated that she had been unable to use her arms for approximately one month subsequent to her detention in police custody. She further stated that she could identify the police officers in question.

On 6 August 2003 the Fatih public prosecutor filed an indictment with the Fatih Criminal Court, charging two police officers, A.T. and Z.T., under Article 245 of the former Criminal Code with inflicting illtreatment on the applicant while in police custody between 7 and 10 June 1999.

On 8 September 2005 the Fatih Criminal Court considered that it lacked jurisdiction to hear the case. The court held that the accusations against A.T. and Z.T. could not be qualified as ill-treatment within the meaning of Article 245 of the former Criminal Code but should be qualified rather as torture under Article 243 of the same Code. The court therefore ordered the transfer of the case to the competent court.

The case was referred to the Istanbul Assize Court, which on 22 November 2005 also held that it lacked jurisdiction. It held that in order for Article 243 of the former Criminal Code to apply, the acts of illtreatment or torture had to be inflicted with the intention to extract information. The court held that the applicant had complained about having been subjected to torture, but she had not alleged that the intent behind such acts had been to extract information from her. The complaint therefore fell under Article 245 of the former Criminal Code and accordingly within the jurisdiction of the Fatih Criminal Court. Consequently, the court referred the case to the Court of Cassation to resolve the jurisdictional dispute.

On 2 October 2006 the Court of Cassation held that the case fell within the jurisdiction of the Istanbul Assize Court.

On 6 March 2007 the Istanbul Assize Court held a hearing in the case during which the applicant joined the proceedings as a civil party. At the same hearing, the applicant made statements to the court. During her examination, she identified Z.T. in the courtroom as one of the police officers who had interrogated and tortured her. The applicant stated that she had been held at two different facilities while in custody. According to her statements to the court, at the first facility she had been beaten; at the second facility, she had been subjected to various forms of torture, including reverse hanging and sexual harassment by around ten police officers. She had been stripped naked and threatened with rape in front of her sister, and she had been sprayed with pepper gas. At the end of the hearing, the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offences proscribed by Articles 243 and 245 of the former Criminal Code had become timebarred (the period being seven years and six months at the relevant time).

On an unspecified date the applicant lodged an appeal against the judgment of 6 March 2007.

On 31 January 2008 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of the Istanbul Assize Court.


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Konstantin Vladimirovich Ryazanov, is a Russian national who was born in 1975 and lives in the town of Kamensk-Uralskiy in the Sverdlovsk Region.

The Russian Government (“the Government”) were represented by Mr P. Laptev and subsequently by V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

On 3 November 2000 the applicant and his brother stole some copper cable from a car park and then went to a river bank nearby to strip it and prepare it for sale. After following their tracks, the police arrested the brothers, who at that very moment were burning the cable jacket. On the same day the police drew up a report detailing the circumstances of their arrest, together with a crime scene inspection record.

The applicant and his brother were questioned and cross-examined by an investigator immediately after the events and both confirmed their involvement in this incident of theft. Later on that day, they were released against an undertaking not to leave their town of residence during the proceedings.

On 29 January 2001 the brothers were caught red-handed removing one hundred metres of copper cable from the basement of a block of flats. The police officers drew up a crime scene inspection record and an arrest record describing the circumstances of the arrest. In the presence of attesting witnesses they seized the applicant’s bag containing the freshly removed copper cable.

Shortly afterwards the brothers were taken to the police station. A police officer drew up an “explanation” record, which set out the reasons for the arrest.

According to the applicant, in the police station he was put in a small, dark, overcrowded cell. A few hours later he was called for an interview, during which the police officers ill-treated him, forcing him to make a confession. They allegedly punched him in the back, put a gas mask over his face preventing him from breathing, and stood on his hand. Eventually he signed several blank sheets of paper. The applicant claims that he did not have any visible injuries on his body as a result of the ill-treatment and that he did not undergo any medical examinations in that connection after the events. The applicant did not bring any complaints in connection with the alleged ill-treatment before competent domestic authorities.

On 30 January 2001 the applicant’s brother confessed to ten incidents of theft committed together with the applicant on 3 November, 1, 4, 13, 18, 19, 30 (2 incidents) and 31 December 2000 and 29 January 2001. The confessions were made in the presence of attesting witnesses at the locations at which the offences had been committed.

Subsequently, the investigating authorities accused the applicant and his brother of additional incidents of theft of copper cable. In total, the investigation brought charges in respect of fifty counts of theft allegedly committed on 3 November, 1 (two incidents), 4 (two incidents), 7 (two incidents), 9, 11, 13, 15 (two incidents), 16 (four incidents), 18 (five incidents), 19, 20 (three incidents), 21 (three incidents), 23 (two incidents), 24, 30 (three incidents) and 31 (four incidents) December 2000, and 2, 9, 11, 12, 22, 26 (two incidents), 28 (four incidents) and 29 January 2001.

On 22 August 2002 the Krasnogorskiy District Court of the Town of Kamensk-Uralsk in the Sverdlovsk Region (“the District Court”) examined the applicant’s criminal case.

During the hearing, which was held in the presence of two defence counsel, the brothers admitted their involvement in the incidents of 3 November 2000 and 29 January 2001, but denied any participation in the rest of the incidents. They also stated that the investigating authorities had put pressure on them on 29 January 2001, forcing them to sign blank sheets of paper. The relevant part of the record of that hearing reads as follows:

“... Prosecutor: What incidents of theft do you admit [were committed by you]?

[The applicant]: I admit to the incident of [3] November committed in the car park, but I don’t agree with the legal classification of our actions. I consider that we committed an attempted crime as we were caught near the place of the incident and at the moment of the arrest we had not [yet] stripped the cable ...

[The applicant]: I also admit to the incident of 29 January 2001. I do not admit the remaining incidents of theft. We were interviewed in breach of the Criminal Procedure Code of Russia.

The prosecutor: What do you mean, in breach of?

[The applicant]: Formal charges had not been brought against me and also I was forced to sign blank sheets of paper ...”

At the court hearing of 22 August 2002 the prosecutor withdrew the charges in respect of forty incidents of theft allegedly committed on 1, 4, 7 (two incidents), 9, 11, 15 (two incidents), 16 (four incidents), 18 (four incidents), 20 (three incidents), 21 (three incidents), 23 (two incidents), 24, 30 and 31 (three incidents) December 2000 and 2, 9, 11, 12, 22, 26 (two incidents) and 28 (four incidents) January 2001 owing to lack of evidence.

On 28 August 2002 the District Court convicted the applicant and his brother of multiple counts of theft and attempted theft committed by an organised criminal group. The court established the applicant’s involvement in ten incidents of theft committed on 3 November, 1, 4, 13, 18, 19, 30 (2 incidents) and 31 December 2000 and 29 January 2001. The applicant was sentenced to five years’ imprisonment.

The court’s findings in respect of the applicant’s involvement in the incident of 3 November 2000 were based on the self-incriminating statements given by the brothers during the cross-examination of 3 November 2000, and confirmed by them in person at the trial court hearings; the statements of the attesting witnesses and police officers, according to which on 30 January 2001 the applicant’s brother had confessed to the thefts and indicated the block of flats where they had stripped the wires; the crime scene record of 3 November 2000; the police report of 3 November 2000; and material evidence such as a hand cart and a plastic bag full of copper wires.

The applicant’s conviction in respect of the incidents of theft of 1, 13 and 19 December 2000 rested on the statements of his brother given on 30 January 2001 at the locations of the thefts and in the presence of attesting witnesses and a police officer; the statements of these attesting witnesses and the police officer given in court; and the crime scene inspection records of 1, 13 and 19 December 2000.

The court’s conclusions regarding the applicant’s involvement in the incidents of 4 and 18 December, the two incidents of 30 December and the incident of 31 December 2000 were based on the statements of the applicant’s brother of 30 January 2001 given at the locations of the thefts and in the presence of attesting witnesses and a police officer, and the statements of these attesting witnesses and the police officer given at the trial court hearings.

The conviction concerning the incident of 29 January 2001 rested on the statements of the applicant and his brother admitting their involvement in the incidents of theft, given by them in person at the trial court hearings; the crime scene inspection record; and the arrest record of 29 January 2001, which confirmed that the brothers had been caught red-handed. It was also supported by the court statements of the attesting witnesses and the police officers confirming the applicant’s brother’s confession of 30 January 2001, and material evidence such as a plastic bag containing copper wires.

The relevant part of the decision reads as follows:

“[The applicant and his brother], acting in concert and as an organised criminal group, committed repeated thefts and attempted thefts aggravated by unlawful entry to premises.

The crimes were committed in the town of Kamensk-Uralsk in the following circumstances: [description of ten incidents of theft].

At the court hearing the [applicant] partially admitted his guilt, stating that on 3 November 2000 he and his brother, equipped with a hand cart and pliers, had gone to a [parking area], removed the copper wires located there and then gone to a river bank to burn the jackets [off the wires]. At the river bank they had been caught by police. On 29 January 2001, at night time, together with his brother, he had removed a telephone cable from the basement of a block of flats in order to sell it. Shortly afterwards [he and his brother] had been arrested by the police. He had not committed any other offences.

At the court hearing [the applicant’s brother] partially admitted his guilt, stating that on 3 November 2000 he and his brother had gone to a [car park]. There they had removed copper wires and then walked down to a river bank around 30-40 metres away to strip the cable. When they were burning and stripping the wires, they had been apprehended by the police. On 29 January 2001, at night time, together with his brother, he had found a door open leading into the basement of a block of flats. They had gone inside and [the applicant] had removed copper wires. [The applicant’s brother] had stripped them and put them in his bag. Then they had been arrested by the police. He had not committed any other offences.

The court has assessed the evidence in the present case. It is convinced that the guilt of [the applicant and his brother] is confirmed by the statements of the witnesses and the other pieces of evidence gathered by the investigating authorities.

When questioned in court, [the first witness] stated that in December 2000 a police officer had invited her to be an attesting witness. In her presence a man had said that together with his brother he had removed wires from near a block of flats located at [address of the block of flats]. The man had also pointed to another house and stated that they had also removed wires there. The man had given his statements in her presence and in the presence of another attesting witness, her neighbour. [The first witness] signed the relevant investigation record.

When questioned in court, [the second witness] stated that around December 2000, near a block of flats located at [address of the block of flats], he had performed the duties of an attesting witness. Police officers had introduced a young man to him; that man had stated that, together with his brother, he had removed a cable from the basement of a block of flats nearby. [The second witness] signed the relevant investigation record.

When questioned in court, [the third witness] stated that around eighteen months earlier he had attended investigative measures as an attesting witness. During the relevant procedural action a man had told him that he and his brother had removed a cable from a block of flats located at [address of the block of flats].

When questioned in court, [the fourth witness] stated that around two years earlier, near his house, police officers had invited him to play the role of an attesting witness. A man had confessed to the theft of cabling from near entrance no. 6 of a block of flats nearby. Police officers had not instructed that man what to say. The man had spoken voluntarily.

[The fifth witness] did not appear before the court. The statements she had given at the preliminary investigation stage were read out. She stated that in January 2001 she had been out walking with an acquaintance when police officers had invited them to act as attesting witnesses. They had agreed. They had seen a man standing near a car. He had said that he had removed a cable from the basement of the block of flats located at [address of the block of flats]. He had stated that they had then burned the cable, stripped it and sold it. The man had said all this of his own volition. No one had put pressure on him.

When questioned in court, [the police officer who had been present at the investigative action of 30 January 2001] stated that at the preliminary investigation stage the brothers had given self-incriminating statements of their own volition in respect of all the offences.

The court casts no doubt on the validity of the witness evidence because it was consistent and collaborated by other pieces of evidence ...

The arrest of the accused persons in possession of the stolen wires is confirmed by the arrest record of 3 November 2000. According to this record, when patrolling a territory, police officers found an open junction box with no wires inside. There were footprints and cart tracks in the snow nearby that led towards a river. On the river bank the police found the accused, who were stripping wires.

During cross-examination the [applicant and his brother] confirmed that on 3 November 2000 they had stolen copper wiring from near a parking area.

The confiscated cart and bag of copper wires were examined during the preliminary investigation and added to the case file as pieces of concrete evidence. Later the bag of wires was given for storage to one of the victims of their crimes ...

During the investigative activities, the [applicant’s brother], of his own volition, indicated the locations where the crimes had been committed.

Stolen cables confiscated from [the applicant] at the stage preliminary investigation stage were placed in a storage room at the Krasnogorsk Department of the Interior.

An analysis of the evidence shows that the statements of the accused persons were aimed at hindering the investigation.

In the court’s opinion, in refusing to admit their guilt the accused persons were attempting to avoid criminal liability ...

The court accepts the classification of the offences suggested by the prosecutor. The brothers, acting as an organised criminal group, committed thefts and an attempted theft aggravated by unlawful entry to premises...”

According to the applicant, the trial court hearing records were inaccurate, but he never made any request for them to be amended.

The applicant and his brother appealed against sentence. They complained that their conviction was unfounded. No complaints were made by the brothers about a lack of legal assistance.

On 18 October 2002 the Sverdlovsk Regional Court examined the case on appeal and upheld the applicants’ conviction on seven counts of theft committed on 3 November, 1, 4, 13, 18 and 31 December 2000 and 29 January 2001.

The court dropped the charges relating to the incident of theft of 19 December 2000 and the two incidents of theft of 30 December 2000, as the damage caused by the brothers in those incidents was insignificant and therefore could not lead to a prosecution.

On 27 May 2003 the Sverdlovsk Regional Court refused to reopen the case by way of supervisory review.

Article 21 of the Constitution provides that no one may be subjected to torture, violence or any other cruel or degrading treatment or punishment.

Article 48 provides that everyone has a right to qualified legal assistance. It also provides that an arrested or detained person or a person accused of a criminal offence has a right to legal representation from the moment of his or her arrest, placement into custody, or the bringing of charges.

Article 51 provides that no one is obliged to give evidence against himself or herself or a spouse or close relative.

Article 116 § 1 of the Criminal Code of the Russian Federation of 13 June 1996 provides that the application to another person of physical force which has caused physical pain but has not resulted in any damage to health is punishable by a fine, compulsory or correctional labour, or detention for a period of up to three months.

Article 286 § 3 (a) of the Criminal Code provides that actions on the part of a public official which clearly exceed his authority and entail a substantial violation of the rights and lawful interests of citizens, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years.

Article 47 of the Code of Criminal Procedure of the Russian Federation (“the Code”), as in force at the material time, provided that a lawyer must be called to take part in a case at the moment when charges were brought or, if a person suspected of a criminal offence was arrested or detained before charges were brought against him, at the moment when the arrest record or a detention decision was read out to him.

Article 50 of the Code established that an accused could refuse legal assistance at any point in the criminal proceedings. If the accused was charged with criminal offences punishable by the death penalty, such a refusal was not binding on a court, an investigator or a prosecutor.

31 Article 3, 108 and 109 of the Code required that a competent authority institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts.

No criminal proceedings could be brought in the absence of a corpus delicti (Article 5). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209).

During criminal proceedings, persons who had been granted victim status could submit evidence and file applications, had full access to the case file once the investigation was complete, and could challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53).