Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE in GPE , GPE , and currently lives in GPE .

The applicant was a unit commander in ORG . On DATE he was arrested in PERSON , GPE , due to his alleged participation in the coup d'Etat organised by PERSON .

On DATE ORG , sitting as a court of first instance for especially serious crimes , convicted the applicant for high treason , use of armed forces against the citizens and constitutional government authorities , creation of illegal armed units , and illegal possession of weapons . He was sentenced to DATE imprisonment and confiscation of property . This judgment was final and not subject to appeal under the rules of criminal procedure applicable at that time .

Upon GPE 's admission to ORG , the applicant 's name was included in the lists of the “ alleged political prisoners in GPE ” submitted to the experts of the Secretary General .

Pursuant to a presidential pardon decree of DATE , the applicant 's sentence was reduced by CARDINAL .

Pursuant to another presidential pardon decree of CARDINAL DATE , the applicant was released from serving the remainder of his sentence . As the applicant was no longer imprisoned , no final opinion was adopted by the experts of the Secretary General on whether he could be considered as a political prisoner .

In DATE a new Code of Criminal Procedure ( “ the CCrP ” ) and new Criminal Code of GPE were adopted . Before the new ORG 's entry into force on DATE , on DATE ORG passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules ( “ the LAW ” ) .

On DATE the applicant , using the opportunity granted to him by LAW , filed a cassation appeal against the judgment of DATE with ORG . On DATE ORG refused to accept the appeal due to the applicant 's failure to enclose a copy of the challenged judgment .

On DATE the applicant again filed the cassation appeal , which was registered by ORG on DATE . In his appeal he noted that , although he had been pardoned and released from imprisonment , his conviction for high treason remained intact . He argued that his trial by the first - instance court had been unfair . He also argued that , under LAW the actions for which he had been convicted could not be qualified as “ high treason ” . He asked the court to quash the judgment of DATE .

According to the Government , on DATE ORG “ informed the applicant that the appeal hearings concerning his case would be held on DATE ” . According to the applicant , he did not receive any such summons and , in general , did not receive any information concerning his case for DATE .

On DATE the applicant wrote a letter to ORG inquiring about the status of the proceedings . He also requested to add an issue concerning the confiscation of property to his appeal . In reply , by a letter dated DATE , the Head of ORG informed the applicant that the court had not received from him any documents in this respect .

On DATE the applicant was sent a copy of the ORG decision concerning his case , dated DATE . The applicant was informed that on DATE ORG had examined his cassation complaint in the presence of a public prosecutor but in the absence of the applicant . The judgment was silent as to the reasons for holding the hearing in the applicant 's absence . During the hearing , the prosecutor asked the court to dismiss the appeal . The court found that the applicant 's guilt had been duly established during the trial in the first - instance court and that his actions had been properly qualified under the criminal law . Accordingly , the court dismissed the applicant 's appeal as being unsubstantiated .

In accordance with the PERSON of DATE on ORG into Force of LAW ( “ LAW ) , judgments and other final decisions delivered by first instance courts under the old ORG before the entry into force of the new CCrP , may be reconsidered by an appellate court or ORG in accordance with the relevant provisions of the new CCrP.

In accordance with Article CARDINAL of the new ORG , ORG may leave the cassation appeal unexamined if the person lodging the appeal fails to attach to his appeal a copy of the disputed judgment or decision .

A cassation appeal lodged with ORG is transmitted to one of the judges of the relevant chamber of ORG for preliminary examination ( Article CARDINAL of the CCrP ) . Within DATE of receiving the appeal , the judge carrying out the preliminary examination of the appeal must , inter alia , inform the public prosecutor , the convicted ( or acquitted ) person and other parties to the case or interested parties about the time and place of examination of the merits of the appeal ( Articles CARDINAL and CARDINAL of the ORG ) .

When examining the merits of the appeal , ORG deals only with the points of law and verifies whether rules of criminal law and criminal procedure had been applied correctly ( Article CARDINAL of the CCrP ) . The examination on the merits is carried out by a chamber composed of CARDINAL judges . The persons having a right to lodge an appeal and the public prosecutor representing the prosecution before ORG have the right to be present at the court hearing ( LAW CCrP ) .

ORG hearing is opened by the president of the chamber who announces which court decision will be examined and on what grounds , the composition of the chamber examining the case , and which of the parties to the criminal proceedings are present at the hearing . The absence of the person who has lodged the appeal , if he has been duly informed about the hearing , does not prevent ORG from deciding to proceed with the hearing in his or her absence ( Article CARDINAL of the CCrP ) .


The applicant is a Cape Verdean and NORP national , born in DATE and living in the GPE . She is represented before the ORG by Ms Y.M. Schrevelius , a lawyer practising in GPE .

A.

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

On DATE the applicant moved from the LOC to the GPE where she married a NORP man . On the basis of the marriage she obtained a residence permit .

At the time the applicant came to the GPE she had CARDINAL minor children , PERSON and GPE , who stayed behind in LOC in the care of their grandmother .

On DATE the applicant ’s husband passed away . The applicant ’s residence permit was subsequently withdrawn . She remained in the GPE , however , and in DATE she obtained NORP citizenship .

On DATE the applicant filed a request to the head of police ( korpschef ) of the PERSON region for a provisional entry visa ( machtiging tot voorlopig verblijf ) for her CARDINAL children . The request was forwarded for consideration on the merits to ORG ( ORG ) of ORG . At the time of the request the children were CARDINAL , DATE of age respectively .

On DATE ORG , on behalf of ORG , rejected the applicant ’s request . ORG concluded that the family ties had been broken since , after the applicant had left , the children had been living with the grandmother and were being brought up by her . There was no indication that this situation could not be maintained . Moreover , the applicant had not shown that she had been involved with the upbringing and care of the children . The fact that the applicant had regularly transferred money to LOC was insufficient to assume that family ties had continued to exist .

The decision further stated , in accordance with national aliens policy , that , apart from international obligations , aliens could only be allowed for residence in the GPE if this served “ essential interests of the GPE ” ( wezenlijk Nederlands belang ) or in case of cogent reasons of a humanitarian nature ( klemmende PERSON aard ) . Neither of these conditions was met in the case of the applicant ’s children .

On DATE the applicant filed an objection ( bezwaar ) through her counsel to the head of ORG with respect to her CARDINAL youngest children , PERSON and DATE .. On DATE she filed additional grounds for her request which emphasised the applicant ’s special and emotional ties with her children . The explanation given for the time elapsed between the applicant ’s departure from the LOC and the request for entry of her children ( DATE ) was that the applicant had waited for naturalisation before applying for family reunification . The applicant submitted that she had been back to the LOC twice , in DATE , to visit her children , that she made DATE phone calls to her children , that she received child benefits in the GPE and had made CARDINAL money transfers for her children DATE and DATE . She moreover held that her mother , who was DATE and suffering from a nervous disease - for which the applicant submitted a medical certificate - was unable to provide further care for the children .

On DATE an inquiry commission ( hoorcommissie ) of ORG of ORG ( ORG en GPE van het ministerie PERSON ) held a hearing with the applicant with a view to her objection .

On DATE the Minister of ORG rejected the applicant ’s objection concluding that , other than mere kinship , no special relationship could be distinguished between the applicant and the children . Furthermore , as regards the care of the children in LOC , the applicant had not sufficiently shown why her mother , in spite of her disease , would not be able to continue taking care of the children . Moreover , the Minister established that a brother and sister of the applicant ’s children who were of age were living with the applicant ’s minor children at the same address and they could contribute to their care .

The applicant lodged an appeal on behalf of her children with ORG of the Hague ORG sitting in GPE ( Arrondissementsrechtbank te ‘ s - Gravenhage zittinghoudende in GPE , PERSON ) . She invoked , among others , LAW in support of her claim .

On DATE ORG rejected the appeal as unsubstantiated . It held that the children in fact did no longer belong to the applicant ’s family . It dismissed the argument of the applicant ’s uncertain status in the GPE before her naturalisation , with a reference to the fact that she had not tried to get her children to come to the GPE when her NORP husband was still alive . ORG further held that the financial contributions made by the applicant could not be considered as a real contribution to the care and upbringing of the children . It stated that no evidence had been produced as to the mentioned phone calls from the applicant to the children and also that the applicant had only visited the children twice after her departure . ORG assessed that the applicant had brought the family ’s living as a unit to an end when she decided to leave LOC and come to the GPE . ORG concluded that no other special relation had further been established between the applicant and her children and that therefore the family ties between applicant and her children should be considered to have ceased to exist . It found no grounds therefore to grant admission for family reunification .

ORG dismissed the claim for admission of the children on humanitarian grounds since it had not been shown that care for the children could not be continued in LOC .

When assessing whether the ORG ’s actions had been in compliance with the requirements of LAW firstly acknowledged that there was “ family life ” in terms of that provision . It reasoned , with reference to the Gül v. GPE judgement of DATE and the PERSON v. the GPE judgement of DATE , that its task was to strike a balance between the interests of the applicant and those of the society as a whole ( the latter interest being the necessity of a restrictive immigration policy ) . ORG finally concluded in the light of the ORG ’s jurisprudence that the applicant ’s choice of family life had been one of not being with her children and that if the applicant wished to re - establish direct family life with her children , this would also be possible in LOC .

The Regional Court decision was final and not subject to appeal .

B. Relevant domestic law

LAW ( Vreemdelingenwet ) provides that the Minister of Justice ( Minister PERSON ) decides on requests lodged by aliens for admission to and residence in the GPE . The Minister may refuse access and residence on general interest grounds ( gronden aan het algemeen belang ontleend ) .

In view of the situation in the GPE as regards population size and employment , Government immigration policy - defined in LOC ( Vreemdelingencirculaire ) of DATE - is aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if : ( a ) the GPE are obliged under international law to do so ; ( b ) this serves “ essential interests of the GPE ” , e.g. economic or cultural interests ; ( c ) there are “ cogent reasons of a humanitarian nature ” ( LAW ACARDINAL/CARDINAL.CARDINAL of FAC ) .

The policy for admission for family reunification purposes is laid down in LAW PERSON of the Aliens Circular . This provides , insofar as relevant , that a residence permit for the purposes of family reunification may be granted to a parent of NORP nationality with minor children , when the children factually belong to his / her family and family ties with one of the parents already existed abroad . Family ties are considered to have definitely ceased to exist in case of long - term integration of the child into another family while the parent(s ) no longer exercise parental authority and no longer provide for the costs of upbringing and care of the child .


CASE OF NEULINGER AND SHURUK v. SWITZERLAND

Violation of Art. 8 (in case of enforcement of the Federal Court's judgment)

András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE ( GPE of GPE ) .

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

The first applicant , who refers to herself as NORP , decided to settle in GPE in DATE . There she met an NORP national , who is also NORP , and they were married on DATE in GPE . They had a son , PERSON , who was born in GPE on DATE . He has NORP and NORP nationality .

According to the applicants , in DATE the child ’s father joined the NORP “ NORP ” movement , which they have described as an ultra - orthodox , radical movement that is known for its zealous proselytising .

Marital difficulties then arose , and the first applicant , fearing that her husband would take their son to a “ NORP - Lubavitch ” community abroad for religious indoctrination , applied to ORG for a ne exeat order to prevent PERSON ’s removal from GPE . On DATE the court made a ne exeat order that was to expire when the child attained his majority , that is to say on DATE , unless annulled by the court in the meantime .

In an interim decision of DATE , the same court granted “ temporary custody ” of the child to the mother and requested the GPE social services to draw up an urgent welfare report . The “ guardianship ” of the child was to be exercised jointly by both parents .

NORP In a decision of CARDINAL DATE , the court , on the recommendation of a social worker , confirmed the first applicant ’s custody of the child and granted a right of visitation to the father .

On DATE the NORP social services were obliged to intervene . They instructed the parents to live apart , in the interest of the child . The letter they sent to the parents read as follows :

“ CARDINAL . We take the view that to maintain a common home and live , as you have been doing , under the same roof is not in the child ’s interest – and that is an understatement . It appears to us that the environment of constant recrimination and invective created by PERSON against GPE has caused her permanent stress that may prevent her from fulfilling her role as a mother , when she is already faced with the need to find a job in order to support herself and pay the rent . It should be noted that PERSON pays neither the maintenance ordered by the court nor the rent .

We felt that some of PERSON ’s recriminations verged on the absurd . He has decided that the child ’s illness , like the glandular fever and the epileptic fit that the child has suffered , are the mother ’s fault . PERSON persists in asserting that Isabelle ‘ is not a good mother’ ; he does not accept the fact that the child attends nursery school , and claims that the medical certificates are insufficient . We advise PERSON to speak to the doctors who are treating the child .

Although he is maintained by GPE , PERSON demands that the food complies to a very strict degree with NORP dietary laws , observing CARDINAL dietary rule or another ...

There is no doubt that living apart will resolve some of these problems .

We find that PERSON creates a hostile environment at home DATE an atmosphere of verbal aggression and threats that terrorise the mother .

In the light of the foregoing , we can not but find that the mother is exposed to mental harassment and that the maintaining of a common home is harmful to the child .

NORP Under the powers conferred on us by sections DATE of the PERSON on legal capacity , we reiterate our warning to PERSON , calling on him not to take his child with him to engage in religious proselytising on the public highway , where he encourages passers - by to put on phylacteries and collects donations .

Likewise , the father is requested not to take the child with him to the synagogue for DATE at a time .

We emphasise that the provisions on access in respect of the child are intended to bring father and child together for their common activities , and not for other purposes . ”

DATE , the first applicant filed a complaint with the police accusing her husband of assault .

NORP In an injunction of CARDINAL DATE the competent judge of ORG , upon an urgent application lodged DATE by the first applicant , prohibited the father from entering the child ’s nursery school or the first applicant ’s flat , from disturbing or harassing her in any manner whatsoever , and from carrying or possessing a weapon . Restrictions were also imposed on the access right granted to the father , who was now authorised to see the child only twice a DATE under the supervision of the social services at a contact centre in GPE .

The couple ’s divorce was pronounced on DATE with no change in the attribution of guardianship .

As the father had defaulted on his maintenance payments to the first applicant , an arrest warrant was issued against him on DATE .

In a decision of DATE , a judge of ORG dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from GPE . The judge found , in particular , that there was a serious risk that the mother would not return to GPE with the child after visiting her family abroad , in view of the fact that she had no ties in that country .

On DATE the first applicant secretly left GPE for GPE with her son .

On DATE PERSON ’s father contacted ORG , which was unable to locate the child until DATE , when ORG forwarded him a note from ORG indicating that the first applicant was in GPE .

On DATE ORG transmitted to ORG an application for the return of the child pursuant to LAW of DATE ( the “ LAW ” ; see paragraph CARDINAL below ) . In support of its application it indicated , among other things , that ORG had notified it only DATE before that PERSON and his mother were living in GPE and that the latter had applied for the renewal of her NORP passport .

In a decision of CARDINAL DATE , delivered upon an application by the child ’s father , ORG observed that the child was habitually resident in GPE and that , as of DATE , the date of the ORG departure , the parents had been joint guardians of their son , with the mother having temporary custody and the father a right of access . The court held that the child ’s removal from GPE without the father ’s consent had been wrongful within the meaning of LAW .

On DATE the child ’s father lodged an application with the Lausanne District Justice of the FAC seeking an order for his son ’s return to GPE . He requested in particular , as an extremely urgent measure , that ORG be ordered to retain the applicants’ NORP passports .

On DATE the Justice of the FAC made an order allowing the application by PERSON ’s father for an extremely urgent measure .

Following a new application for an extremely urgent measure , faxed by the child ’s father on DATE , the Justice of the FAC , in a provisional - measures order made that DATE , ordered the first applicant to deposit her passport and that of PERSON immediately with the court registry of ORG , on pain of criminal sanctions for refusal to comply with the decision of an authority .

The first applicant , assisted by counsel , and the legal representative of the father , whose obligation to appear in person had been waived , made representations to the Justice of the FAC on DATE .

In a decision of CARDINAL DATE , after a hearing , the father ’s application was dismissed by ORG of the Peace . The court took the view that , whilst the child ’s removal had been wrongful within the meaning of LAW , it had to apply LAW , sub - paragraph ( b ) , of that LAW , as there was a grave risk that the child ’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation .

On DATE the father appealed against that decision before ORG ( chambre des tutelles ) of ORG , which ordered an expert ’s report and for that purpose appointed PERSON , a paediatrician and child psychiatrist . In his report , delivered on DATE , he stated that the child ’s return to GPE with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return , in particular the conditions awaiting the mother and their potential repercussions for the child ; that the return of the child without his mother would expose him to a risk of major psychological harm ; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term .

On DATE the competent court in GPE cancelled an indictment for domestic violence that the second wife of PERSON ’s father had initiated , as she had left the country .

In a letter of CARDINAL DATE , in connection with the proceedings to secure the child ’s return , ORG made the following observations to its NORP counterpart :

“ We acknowledge receipt of your letter dated DATE . We wish to respond to the questions raised in that letter as follows :

PERSON states that in the event that the mother refuses to return to GPE , he will take care of the child . He currently lives in an apartment with a roommate , however if the child is returned to GPE , he states that he will immediately secure an apartment to live in with the child . He is currently working and studying at an institution for religious learning , from TIME The child would be in DATE care / nursery school during TIME . PERSON points out that prior to the child ’s abduction to GPE , he was in day care as the mother worked . PERSON advises that his extended family would provide a back - up system for him in the event that he would need assistance from time to time .

ORG in GPE has raised a concern as to how PERSON can care for the child when his right of access has been restricted . As we stated in our letter to your office dated DATE , it must be remembered that according to the report of the social worker in GPE , the father and child had a wonderful relationship . There were plans to expand the visitation , to include TIME visits , however these plans were interrupted as a result of the mother ’s abduction of the child . If the mother were to refuse to return to GPE with the child , she would in effect be agreeing to the father having de facto custody , and PERSON could apply to the NORP court to grant an order reflecting the new reality .

You further asked what steps could be taken to protect the mother should she return , given her allegations of violence on the part of PERSON . PERSON denies all such allegations . Furthermore , we are attaching a copy of the decision of ORG dated DATE , together with a translation into LANGUAGE . This decision concerned an indictment filed against PERSON for allegations of assault by his second wife . As you can see , the complainant apparently left GPE and could not be located , therefore the court cancelled the indictment against PERSON .

In any event , we wish to draw your attention to the law in GPE that provides protection in cases of allegations of family violence ; that law is ORG . We are attaching a translation of that law into LANGUAGE , and an unofficial translation into LANGUAGE . LAW provides for protection orders that can be made . Therefore , if the mother has any concerns for her safety , she can apply to the court in GPE and request any necessary protection . Her allegations should not constitute a basis for the NORP court to refuse to return the child to GPE .

You informed us that the court ordered a psychological evaluation of the child . We must express our concern in this respect . Such evaluation was not ordered by the lower court , and we wish to inquire as to why it has been ordered at this late stage . It must be remembered that the child was abducted by the mother in DATE . The child has not seen his father in DATE . During this period he has been subject to the sole influence of the mother . We therefore question what can be gained by a psychological evaluation of the child . It must be remembered that this is LAW proceeding , and not a custody case . It seems that the mother is trying to prove that the child will be psychologically damaged by being separated from her if he is returned to GPE . However this can be avoided if the mother will act in the child ’s best interests and return with him . As we stated in our letter of DATE , the mother does not appear to have any justifiable reason under LAW to prevent her return ... ”

NORP In a letter of DATE to the lawyer acting for PERSON ’s father , ORG made the following observations on the question whether the first applicant would be prosecuted or imprisoned if she returned to GPE :

“ ... You have requested that we inform you as to the legal consequences that would face the mother , PERSON , should she return to GPE with the child , as a result of the act of abduction of the child .

In terms of criminal consequences for the act of abduction , abduction is an offence under GPE ’s Penal Law CARDINAL and carries a possible penalty of imprisonment . However , according to the guidelines of the ORG Attorney of GPE , upon receipt of a criminal complaint of parental abduction , the police are to forward the matter to ORG under LAW for guidelines as to how to proceed in the matter . The ORG Attorney ’s guidelines provide that criminal proceedings should be commenced only in very exceptional circumstances . In PERSON case , should she comply with an order to return the child to GPE , not disappear with the child upon her arrival to GPE , cooperate with the NORP authorities and comply with the existing court order for supervised visitation by PERSON ( pending any further decision ) , ORG for GPE would positively consider instructing ORG to close the criminal file for lack of public interest , provided that Ms Neulinger not commit further acts of abjection with respect to the child .

In terms of civil consequences , we can inform you that the sole consideration in both the NORP civil courts and ORG courts , when deciding matters such as custody and access , is the best interests of the child ... ”

In a judgment of CARDINAL DATE , ORG of ORG dismissed the father ’s appeal . Having carried out an additional investigation , and taking into account the expert ’s report by PERSON of DATE , it took the view that the child ’s return carried a grave risk of psychological harm , whether or not he was accompanied by his mother , and would also place him in an intolerable situation . It therefore considered that the conditions of LAW , sub - paragraph ( b ) , of LAW were met . Finding , however , that the child could not be deprived of all relations with his father , it prescribed measures with a view to rebuilding the personal relationship between them . Its judgment read as follows :

“ CARDINAL . ( d ) ... In response to the questions put to him , expert B. ... states in his conclusions that PERSON ’s return to GPE with his mother would expose him to psychological harm , the intensity of which can not be assessed without knowledge of the conditions of such return , in particular those awaiting his mother and the repercussions which they might have on the child ; as regards the child ’s return to GPE without his mother , [ the expert ] is of the opinion that it would expose him to major psychological harm , as described in detail in the report . In the ‘ discussion’ part of his report the expert emphasises that PERSON ’s situation seems at present to be completely blocked . On the one hand , given his young age and his complete lack of recollection of DATE in GPE , including of his father , any visit to that country without his mother , even a brief visit , and even if the legal situation allowed it , would be psychologically highly traumatic , involving extreme separation - related anxiety and a major risk of severe depression . On the other hand , the possibility of the mother ’s return to GPE with PERSON , even for a short period , is totally out of the question for the mother . In answer to the question whether PERSON ’s return to GPE might place the child in an intolerable situation , the expert replied that it was ‘ GPE the conditions of the child ’s possible return to GPE that would or would not render the situation intolerable . He observed that , likewise , it was the conditions of his continuing residence in GPE that would or would not render his situation there intolerable and that the maintaining of the status quo represented a long - term major psychological risk for the child , with the result that , if there were no understanding between his parents , an agreement would urgently be required between the child protection services of GPE residence in order to make up for their failure to act .

In accordance with LAW paragraph , of LAW , this court also requested ORG to provide information about the child ’s social background , by answering the following questions : ‘ in the event that , as she has stated , the mother does not return to GPE , who will take care of the child and where will he stay ? As the father does not appear to be in gainful employment , who will provide for the child ’s upkeep ? As the right of access has been restricted by judicial decisions , what measures will be taken to ensure that the exercise of the right of access does not harm the child ’s physical and psychological welfare?’ In its letter of CARDINAL DATE ORG did not really answer the questions put to it , so it is impossible to be satisfied about the interests of the child . ORG merely mentioned the appellant ’s intentions concerning his son if his son should return to GPE without his mother , in the following terms : ‘ [ I]n the event that PERSON ’s mother refuses to return to GPE , the father will take care of the child . He currently lives in an apartment with a roommate ; however if the child is returned to GPE , he states that he will immediately secure an apartment to live in with the child . He is currently working and studying at an institution for religious learning , from CARDINAL a.m. to CARDINAL p.m. The child would be in DATE care / nursery school during TIME . Mr GPE points out that prior to the child ’s abduction to GPE , he was in day care as the mother worked . PERSON advises that his extended family would provide a back - up system for him in the event that he needs assistance from time to time.’ As to the issue of how PERSON would be able to take care of the child , given that he has only a restricted right of access , ORG emphasised : ‘ As we stated in our findings of DATE , according to the report of the social worker in GPE , the father and child had a wonderful relationship . There were plans to expand the visitation , to include TIME visits ; however these plans were interrupted as a result of the mother ’s abduction of the ORG concluded that ‘ [ i]f the mother were to refuse to return to GPE with the child , she would in effect be agreeing to the father having de facto custody , and PERSON could apply to the NORP court to grant an order reflecting the new ORG .

It should be noted that neither the conclusions of the child psychiatrist ’s report nor the information provided by ORG are conducive to PERSON ’s return to GPE . Not only would such a return entail a grave risk of exposure to psychological harm , whether or not he is accompanied by his mother , it would also place him again in an intolerable situation . Firstly , the psychiatric expert observes that if the child returns to GPE with his mother , he will risk being exposed to psychological harm whose intensity can not be assessed without knowledge of the conditions of that return . In that connection , ORG is of the opinion that , since the child ’s removal to GPE , even if his mother accompanies him , may expose the child to psychological harm and since , unlike the ‘ classic scenario’ envisaged by LAW , the respondent has custody of her son , she can not reasonably be required to return to GPE . An additional factor is that the mother ’s return to GPE would also undermine the child ’s economic security , since the mother would be required to find a job there , in order to provide not only for her own needs but also for those of her son . The fact that the appellant has never provided for his child ’s upkeep and that he is known to earn CARDINAL [ Swiss ] francs per month can not be disregarded when the interests of the child are taken into consideration in that context . Lastly , it must be considered that the requirement of the mother ’s return is disproportionate to the reason for the return : the object of LAW is to put the child back into the legal situation in which he was before he was abducted . However , the present return is requested in order to allow the appellant to exercise his right to a personal relationship , a right which is shown to have been exercised before the child ’s departure under the supervision of the social services in the form of CARDINAL DATE meetings of TIME each . To require a mother to uproot herself in order to permit the exercise of such a restricted right of access , when the child ’s return certainly entails a risk of grave psychological harm , in view of the conditions of insecurity in which the return will take place , constitutes an intolerable situation for the child within the meaning of LAW , sub - paragraph ( b ) , of LAW .

As to PERSON ’s return to GPE without his mother , the expert is of the opinion that it would be psychologically highly traumatic , involving extreme separation anxiety and a major risk of severe depression , which can be explained by his young age and his total lack of recollection of DATE in GPE , including of his father . That element is sufficient for a finding that the condition laid down in DATE , sub - paragraph ( b ) , is satisfied . In addition , the information provided by ORG about the arrangements envisaged in the event that the child returns without his mother are , at the very least , a matter for concern : although the appellant has , legally speaking , only a very restricted right of access , under supervision , it is envisaged , according to the information provided by ORG , that the appellant will take his son home ( without any guarantee that he will by then have an individual flat ) and will thus have de facto custody . In that connection , ORG claims that by refusing to return to GPE with her son , the respondent is implicitly acquiescing in that change of situation – a new reality of which the appellant will then seek validation by the NORP judicial authorities . That does not correspond to the aim pursued by LAW , which provides for the immediate return of the unlawfully removed child in order to put it back in the status quo ante . Such a return can not therefore be ordered on the basis of LAW , and it is emphasised that there is no doubt that PERSON ’s return to GPE in such circumstances would definitely expose him to a risk of major psychological harm , owing not only to the fact that he would be abruptly separated from his mother , when she has been his principal parental reference since he was born and has been the only one to provide for his upkeep , but also to the fact that he will be just as abruptly faced with a father of whose existence he has just learnt . In the light of the foregoing , the appeal on this point must be dismissed . ...

NORP ... In the present case , it is apparent from the file that PERSON has lived with his mother , who has custody of him , for DATE in GPE . Thus , the Justice of the Peace of LOC had jurisdiction , ratione loci and ratione materiae , to take the disputed protective measure . As to the merits , it is sufficient to state that , since the child has no recollection of his father , owing to the process of physiological amnesia attributable to his very young age , there are valid grounds for avoiding an abrupt reunion , as the welfare of the child requires that the resumption of a personal relationship with his father should take place calmly and gradually , after he has been properly prepared for that new situation , as may be seen from the expert ’s convincing submissions on that point . The ground of appeal is therefore ill - founded and must be rejected ... ”

The father lodged a civil appeal with ORG seeking the quashing of ORG judgment and the return of the child to GPE . He alleged that the court had misapplied LAW , sub - paragraph ( b ) , of LAW , principally , and LAW , secondarily .

In a decision of DATE , the President of the appropriate division of ORG granted the father ’s request for immediate suspension of the judgment .

In a judgment of CARDINAL DATE , served on the first applicant ’s lawyer on DATE , ORG allowed the father ’s appeal . The relevant passages of its judgment read as follows :

“ CARDINAL . The object of LAW on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any ORG ( DATE , sub - paragraph ( a ) ) . The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ( Article CARDINAL , sub - paragraph ( a ) ) . ‘ Rights of custody’ include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ( DATE ( a ) ) . In the present case it is not in dispute that the child ’s removal to GPE was wrongful , since the father retained , jointly with the respondent , the right of ‘ ORG , which under NORP law includes the right to decide on the child ’s residence . Moreover , since the application for return was presented within DATE after the removal , the respondent can not deny either that , in principle , pursuant to LAW , the child ’s prompt return should be ordered . The only matter in dispute is therefore the question whether an exception to that return may be applied under LAW , sub - paragraph ( b ) , of LAW .

According to the appellant , by refusing to order the child ’s return to GPE , ORG misapplied LAW , sub - paragraph ( b ) , of LAW .

CARDINAL Under LAW , sub - paragraph ( b ) , of LAW , in respect of which ORG is entitled to examine matters of compliance freely ( section CARDINAL(b ) of LAW ) , the judicial authority of the requested ORG is not bound to order the child ’s return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The exceptions to return provided for LAW must be interpreted restrictively ; the parent who has abducted the child can not take advantage of his or her unlawful conduct ( judgment CARDINAL of DATE , recital CARDINAL , in DATE , p. CARDINAL ) . Only grave risks must be taken into consideration , excluding any grounds relating to the GPE child - rearing capacities , as the purpose of LAW is not to attribute parental authority ( ORG judgment CARDINAL III CARDINAL , recital CARDINAL ; CARDINAL II CARDINAL , recital CARDINAL , p. CARDINAL ) . An exception to return under LAW , sub - paragraph ( b ) , of LAW , is therefore not open to consideration unless the child ’s intellectual , physical , moral or social development is under serious threat ( judgment CARDINAL of DATE , recital CARDINAL / bb , in DATE , p. CARDINAL and the reference cited therein ) . The burden of proof lies with the person who opposes the child ’s return ( ibid . , recital CARDINAL , in DATE , p. CARDINAL and the reference cited therein ) .

CARDINAL ORG observed that the case concerned a very young child in the custody of his mother , who had always provided for him . The father , for his part , lived in a religious community where he was fed , and from his activity as a sports and art teacher he had a DATE income of CARDINAL [ Swiss ] francs . The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home . For the same reason , the NORP courts ordered him to live separately and prohibited him from approaching the mother ’s flat . Before the child ’s removal to GPE he had only had a restricted right of visitation , limited to TIME twice a week , under the supervision of the NORP social services . Concerning the conditions of a possible return of the child without his mother , according to the information provided by ORG on DATE , the father , who now shares a flat with CARDINAL other tenant and still works in an institution for religious education , would be prepared to take care of the child . Taking into account the laconic and not very reassuring nature of this information , together with the expert ’s report by PERSON ... , a psychiatrist , ORG considered that a return to GPE involved a risk of psychological harm for the child and might place him in an intolerable situation , whether or not he was accompanied by his mother . The court added that , in view of the father ’s low income , the return to GPE of the respondent would also undermine the child ’s economic stability and the mother would have to find a job in order to provide for them both .

In his appeal , the appellant does not criticise ORG finding that there was a grave risk that the child would be exposed to psychological harm if he returned to GPE without his mother . He is of the opinion , however , that such a risk would not exist if the child ’s mother accompanied him to GPE , as could be reasonably expected of her . As regards that latter hypothesis , the judgment of ORG fails to provide any evidence of such a grave risk of harm , or of any intolerable situation for the child . The expert psychiatrist failed , in particular , to address that question , simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return . As to the appellant ’s aggressive behaviour towards the respondent , it does not appear from ORG judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother . She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well . The social worker appointed to supervise the right of visitation had described as ‘ ORG the father - son relationship as established just before the child ’s abduction by his mother . She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her . As to the considerations relating to the father ’s low income and his ties with the ‘ Lubavitch’ religious community , as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of LAW , sub - paragraph ( b ) , of LAW . Whilst such considerations may help to determine which of the CARDINAL parents offers the best child - rearing capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence ( Article CARDINAL of LAW ) – they are not pertinent , however , for a decision about the return of a child after a wrongful abduction ( see recital CARDINAL above ) .

As to the mother ’s threat not to return to GPE , the judgment of ORG did not deal at all with the reasons for her refusal , whereas it should have established the existence of objective circumstances justifying that attitude . ORG judges quoted the expert psychiatrist who had referred to the ‘ judicial ORG that would be entailed in the event of a return to GPE , without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction . Supposing that such a risk were proven , she could not be expected to return to GPE with the child – and that would accordingly rule out the return of [ the child ] in view of the major psychological harm that would be caused to him by the separation from his mother . She made no comment on that question in her reply to ORG ; in particular , she has not claimed that immediate imprisonment , or even any criminal sanction at all , would be imposed on her . Neither has she argued that in the event of her return to GPE it would be impossible or very difficult for her to integrate , or , in particular , to find a new job . Consequently , it can not be said that the mother ’s return , and therefore that of the child , would be unbearable for economic reasons either . Therefore , as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to GPE , it must be accepted that she could reasonably be expected to return to that ORG of origin accompanied by the child . In these circumstances , it is of no import that the information provided by ORG ( see recital CARDINAL above ) on which the ORG based , in particular , its justification of the exception to the child ’s return as provided for by DATE , sub - paragraph ( b ) , of LAW , was deemed not very reassuring , because that information was based only on the hypothesis of the child ’s return without his mother .

Accordingly , ORG judges breached LAW , sub - paragraph ( b ) , of LAW in finding that they were entitled to apply an exception to the child ’s return to the ORG of his habitual residence . The appeal must therefore be allowed and the judgment of the court below quashed , without it being necessary to examine the complaint concerning a violation of LAW . It is incumbent on the respondent to secure the return of the child ... to GPE by DATE . ...

ORG therefore finds as follows :

The appeal is allowed and the judgment of the court below is quashed .

The respondent is ordered to secure the return of the child ... to GPE by DATE .

On DATE the child ’s father , through counsel , lodged an application with LOC of the Peace , who was responsible for the enforcement of the return decision , seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure . On DATE he withdrew that application after the ORG had decided , on DATE , to indicate interim measures to the Government .

Subsequently , the applicants transmitted to the ORG a medical certificate issued on DATE by PERSON , a paediatrician in GPE , which reads as follows :

“ I , the undersigned , certify that I have seen the child PERSON , born on DATE , on a number of occasions since DATE .

On each occasion PERSON has been accompanied by his mother , with whom he has a very good relationship .

His behaviour is appropriate and his level of psychomotor development and language are above average . He does not appear to suffer from any psychological trauma or from any emotional or educational deficiencies .

He is a confident boy , capable of forming good relationships , in particular with adults .

He is in good physical health , with little trace of intercurrent infections .

An abrupt return to GPE without his mother would constitute a significant trauma and a serious psychological disturbance for this child . ”

In a provisional - measures order of CARDINAL DATE the President of ORG , at the request of the first applicant , decided that PERSON should live at his mother ’s address in GPE , suspended the father ’s right of access in respect of his son and granted parental authority to the mother , so as to allow her to renew the child ’s identity papers . The decision was based on the following grounds in particular :

“ [ I]t is noted that the respondent was summoned to appear by court order served at his last known address in GPE .

The letter was returned marked ‘ gone NORP , which can be translated as ‘ parti sans laisser d’adresse’ ( gone without leaving a forwarding address ) .

... It appears that the mother has custody of the child while parental authority is still held jointly .

The father was apparently required to ‘ exercise a right of GPE under the supervision of the social services ...

In the context of the proceedings , the respondent never appeared at the hearings but was represented by counsel , who is apparently no longer acting for his client ...

According to case - law , the wrongful removal of a minor does not in itself preclude the establishment of a new habitual residence for the child in the country to which it has been taken ( see ORG judgment CARDINAL III CARDINAL , Journal des Tribunaux CARDINAL I CARDINAL ) .

In the present case , PERSON has been living in GPE continuously since DATE .

He attends school there .

He has family ties there on his mother ’s side .

He receives medical attention there .

He is also a national of GPE ,

of which he speaks the language , in this case NORP .

Interim measures in favour of the applicant were decided by ORG , which requested ORG not to return PERSON to GPE in spite of ORG decision .

Despite his legal battle , the respondent has never sought to see his child ,

and his place of residence is unknown .

He appears to have lost interest in the present case .

Consequently , the child now has a stable relationship only with his mother .

It is therefore appropriate to allow her application and to decide provisionally that PERSON should reside in GPE , GPE , at the place of his habitual residence , with his mother .

Article CARDINAL § CARDINAL of the Civil Code provides that the father or mother not having parental authority or custody and the minor are reciprocally entitled to maintain such personal relations as may be appropriate in the circumstances .

The right to personal relations is intended to preserve the bond between parents and children ...

The maintaining and development of this bond is obviously beneficial to the child .

Personal relations must accordingly be fostered , unless the child ’s welfare is endangered .

The scope of personal relations and the manner in which they are carried on should be appropriate to the situation , in other words taking fair account of the parti

The child ’s welfare is the most important assessment criterion ( see ORG judgment CARDINAL III CARDINAL , с CARDINAL ) .

The entitled person ’s situation and interests should also be taken into consideration : his or her relationship with the child , personality , place of abode , free time and environment .

Special conditions for the exercise of access rights may be imposed ...

The applicant has requested the withdrawal of the respondent ’s access right in respect of their son PERSON .

I ’s access right was already limited by decisions given by the NORP authorities before the child ’s departure for GPE .

The child has not seen his father since DATE .

They apparently have no common language .

In any event , the resumption of access rights , if requested by the respondent , could only be gradual .

The respondent ’s place of residence is currently unknown .

In the circumstances it appears appropriate to order the provisional suspension of the respondent ’s access rights in respect of his son PERSON .

The applicant requests that ‘ parental authority in respect of PERSON , born on DATE , be exclusively and provisionally granted to his mother PERSON in GPE for the purposes of renewing his identity papers’ .

The applicant has explained that her son , who has dual NORP and NORP nationality , currently has no identity documents .

He had a NORP passport until recently .

However , when it expired the administrative authorities refused to issue him with a new one without the father ’s consent , as the parties had joint parental authority in respect of the child .

The respondent ’s place of abode is currently unknown .

The applicant is thus unable to ask him for such consent .

The child lives in GPE with her ,

and she has custody of him .

The present case , on the merits , admittedly concerns a change in the attribution of parental authority , since the applicant requests that by virtue of NORP law it be exclusively granted to her .

It may appear that the provisional measure requested , if granted , settles the case on the merits .

However , the requested measure is far more limited in scope since it is only to ensure the possibility of obtaining identity papers for the applicant ’s child .

The child is a NORP national resident in GPE .

It is therefore necessary for him , like any other citizen , to obtain identity papers .

The applicant ’s request is therefore granted .

It does not appear , from the information currently before the ORG , that either party to the dispute has appealed against that decision .

The relevant provisions of the Convention on the Rights of the Child of DATE , which came into force in respect of GPE on DATE , read as follows :

“ The States Parties to the present Convention ,

Convinced that the family , as the fundamental group of society and the natural environment for the growth and well - being of all its members and particularly children , should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community ,

Recognizing that the child , for the full and harmonious development of his or her personality , should grow up in a family environment , in an atmosphere of happiness , love and understanding , ...

Have agreed as follows :

“ CARDINAL . The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents . ... ”

“ CARDINAL . DATE States Parties shall ensure that a child shall not be separated from his or her parents against their will ... ”

“ CARDINAL . DATE States Parties shall respect the right of the child to freedom of thought , conscience and religion .

DATE States Parties shall respect the rights and duties of the parents and , when applicable , legal guardians , to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child . ... ”

“ CARDINAL . DATE States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child . Parents or , as the case may be , legal guardians , have the primary responsibility for the upbringing and development of the child . The best interests of the child will be their basic concern .

The concept of the child ’s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by ORG on DATE . It provides as follows :

“ The child shall enjoy special protection , and shall be given opportunities and facilities , by law and by other means , to enable him to develop physically , mentally , morally , spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity . In the enactment of laws for this purpose , the best interests of the child shall be the paramount consideration . ”

The term was used again in DATE in LAW :

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

Neither the working group during the drafting of the Convention nor the Committee on the Rights of the ORG has developed the concept of the child ’s best interests or proposed criteria for their assessment , in general or in relation to specific circumstances . They have both confined themselves to stating that all values and principles of the LAW should be applied to each particular case ( see PERSON and PERSON ( DATE . ) , ORG for the Convention on the Rights of the Child , United Nations Children ’s Fund DATE , p. CARDINAL ) . In addition , the ORG has emphasised on various occasions that the LAW must be considered as a whole , with the relationship between the various articles being taken into account . Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions ( ibid . , p. CARDINAL ) .

The “ Guidelines on Determining the Best Interests of the Child ” were issued by the ORG High Commissioner for Refugees ( ORG ) . They provide , inter alia :

“ The term ‘ best interests’ broadly describes the well - being of a child . Such well - being is determined by a variety of individual circumstances , such as the age , the level of maturity of the child , the presence or absence of parents , the child ’s environment and experiences . ” ( ORG , DATE )

The principle of “ the child ’s best interests ” is also embodied in Articles CARDINAL and CARDINAL of LAW on LAW . LAW b ) reads as follows :

“ GPE Parties shall take all appropriate measures :

( b ) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children , it being understood that the interest of the children is the primordial consideration in all cases . ”

Under LAW ( d ) of LAW are committed to ensuring the following , with regard to equality between men and women :

“ [ t]he same rights and responsibilities as parents , irrespective of their marital status , in matters relating to their children ; [ and ] in all cases the interests of the children shall be paramount ” .

Even though the principle does not appear in LAW , ORG in its General Comments Nos . CARDINAL and DATE referred to “ the paramount interest ” of the child in the event of the separation or divorce of its parents . In its General Comment CARDINAL ( adopted at its CARDINALth Session , DATE ) ORG stated that if a marriage is dissolved , steps should be taken , keeping in view the paramount interest of the children , to guarantee , so far as is possible , personal relations with both parents . For abandoned children , special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment . In its General Comment No . DATE ( adopted at its CARDINALth Session , DATE ) ORG indicated that any discriminatory treatment in regard to divorce , child custody , visiting rights , etc . , must be prohibited , unless the paramount interest of the child required otherwise .

ORG LAW , which became legally binding with the entry into force of LAW on DATE , contains the following Article :

“ CARDINAL . Children shall have the right to such protection and care as is necessary for their well - being . They may express their views freely . Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity .

NORP In all actions relating to children , whether taken by public authorities or private institutions , the child ’s best interests must be a primary consideration .

Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents , unless that is contrary to his or her interests . ”

The relevant provisions of LAW , which came into force in respect of GPE on DATE , read as follows :

“ The GPE signatory to the present Convention ,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody ,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , as well as to secure protection for rights of access ,

Have resolved to conclude a Convention to this effect , and have agreed upon the following provisions :

The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE .

The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG .

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE .

For the purposes of this Convention –

( a ) NORP ’rights of custody’ shall include rights relating to the care of the person of the child and , in particular , the right to determine the child ’s place of residence ;

( b ) NORP ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child ’s habitual residence .

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . ...

Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child .

Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence .

In ascertaining whether there has been a wrongful removal or retention within the meaning of LAW , the judicial or administrative authorities of the requested ORG may take notice directly of the law of , and of judicial or administrative decisions , formally recognised or not in the ORG of the habitual residence of the child , without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable .

The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms .

An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to ORG in the same way as an application for the return of a child .

ORG are bound by the obligations of cooperation which are set forth in DATE to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject . The Central Authorities shall take steps to remove , as far as possible , all obstacles to the exercise of such rights .

ORG , either directly or through intermediaries , may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . ”

The Explanatory Report by PERSON on the drafting of the PERSON states as follows :

“ ... since CARDINAL factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge , CARDINAL effective way of deterring him would be to deprive his actions of any political or juridical consequences . The LAW , in order to bring this about , places at the head of its objectives the restoration of the status quo ... ” . ( paragraph CARDINAL , p. CARDINAL )

NORP However , LAW contains CARDINAL exceptions to the principle of the child ’s prompt return , among which the most commonly invoked exception is that of LAW , sub - paragraph ( b ) .

ORG , ORG and ORG have all expressly incorporated the concept of the “ child ’s best interests ” into their application of the exception based on a “ serious risk ” within the meaning of LAW , sub - paragraph ( b ) , of LAW .

In a case from DATE , ORG stated the following :

“ ... under LAW , sub - paragraph ( b ) , an exception can be made to the child ’s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation ; ”

and

“ by virtue of LAW of the [ ORG on the Rights of the ORG , a provision that is directly applicable before the NORP courts , such circumstances must be assessed with the child ’s best interests as the primary consideration ” . ( Court of Cassation , ORG , DATE , appeal no . DATE )

That court thus upheld a judgment of the Aix - en - Provence Court of Appeal of CARDINAL May CARDINAL , finding as follows :

“ ... the child ’s best interests [ had been ] taken into consideration by ORG , which [ had ] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under LAW . ”

ORG conducted a similar assessment in applying the exception under LAW , sub - paragraph ( b ) , indicating as follows :

“ ... the court had pointed out that a grave risk of harm would not exist if the mother returned to GPE with her children and ensured that their living conditions were adapted according to their best interests ... ” ( [ DATE ] ORG of GPE CARDINAL:CARDINAL , ORG )

In a case examined on DATE by ORG concerning the abduction of a child from GPE to GPE , Lord Hope observed :

“ ... it is impossible to believe that the child ’s best interests would be served by his return forthwith to GPE . ” ( In re D ( a child ) , [ DATE ] UKHL CARDINAL , [ DATE ] CARDINAL AC CARDINAL )

DATE ( a ) of LAW defines custody rights as “ rights relating to the care of the person of the child , and , in particular , the right to determine the child ’s place of residence ” . The LAW recognises that custody may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of the ORG in which the child had its habitual residence immediately before removal or retention ( Article CARDINAL in fine ) . Furthermore , the Explanatory Report on the ORG emphasises the ORG intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child :

“ In terms of LAW , custody rights may have been awarded to the person who demands that their exercise be respected , and to that person in his own right or jointly . ... Now , from the ORG ’s standpoint , the removal of a child by CARDINAL of the joint holders without the consent of the other , is equally wrongful , and this wrongfulness derives in this particular case , not from some action in breach of a particular law , but from the fact that such action has disregarded the rights of the other parent which are also protected by law , and has interfered with their normal exercise ” ( Explanatory Report by PERSON , Acts and Documents of the Fourteenth Session , vol . III , Child Abduction , Hague Conference on Private International Law , paragraph CARDINAL , pp . CARDINAL - CARDINAL )

The drafters of the ORG created an autonomous definition of custody rights quite apart from domestic - law interpretations of that concept . This autonomous nature was confirmed in the “ Overall Conclusions of the Special Commission of DATE on the operation of LAW of DATE on ORG ” ( § CARDINAL , p. CARDINAL ) , which stated as follows :

“ ... ‘ rights of custody’ as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept , and thus such rights are not necessarily coterminous with rights referred to as ‘ custody rights’ created by the law of any particular country or jurisdiction thereof . ... [ T]he award of what is called ‘ custody’ to CARDINAL parent under domestic law , does not necessarily mean that all ‘ rights of custody’ within the intent of LAW have been granted to that parent . Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children , and even some LANGUAGE - language systems do not employ the term ‘ custody’ , it is necessary to look to the content of the rights and not merely to their name . ”

The autonomous meaning of “ rights of custody ” was further confirmed during the second meeting of ORG when the following conclusion , among others , was adopted :

“ ... the expression ‘ rights of custody’ ... does not coincide with any particular concept of custody in a domestic law , but draws its meaning from the definitions , structure and purposes of the Convention . ” ( Report of ORG to review the operation of LAW on the Civil Aspects of International Child Abduction held on DATE , p. CARDINAL )

DATE . In addition , according to ORG , the LAW is engaged only by issues relating to breaches of custody rights . It does not in principle concern situations arising from breaches of access rights , in particular where the child is taken abroad by its custodian ( Explanatory Report , paragraph CARDINAL ) .

LAW provides no enforcement mechanism or oversight body to ensure that GPE implement it . Therefore , it is possible that the case - law of domestic courts relating to LAW may differ from CARDINAL ORG to another . In practice , there is a lack of consistency in the interpretation of the various judicial bodies as regards ORG distinction between custody rights and access rights , more specifically where they have to decide whether to grant the remedy of return to non - custodial parents who hold access rights .

NORP However , there seems to be a trend towards a wide interpretation of wrongful removal or retention , thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the ORG ’s protection .

In the case of PERSON and ORG ; [ DATE ] CARDINAL WLR CARDINAL , CARDINAL ) , for example , a custodial parent had removed a child from GPE in breach of a restraining order ( also called a ne exeat order , prohibiting a child ’s removal from a given geographical area ) . In that case the child could not be removed without the consent of the non - custodial parent . The court found that the ORG ’s judicial remedy of return applied . They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial “ right to determine the child ’s place of residence ” .

ORG took the same approach in the case of PERSON , where a father lodged an application under LAW return of his children after they had been taken to GPE by their maternal grandparents ( PERSON and PERSON , [ DATE ] CARDINAL ) . The NORP court considered both a custody order , which gave the father “ reasonable access ” to the youngest child , and an injunction restraining both the mother and the father from removing the children from GPE . It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father ’s custody rights that had been created by the restraining order . Similarly , ORG found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events , which implicitly included decisions on the residence of the child ( PERSON v. PERSON , ORG , DATE ) . The court thus considered that the father had rights of custody within the meaning of the Convention .

It appears that other national courts , in particular in common - law countries , have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non - custodial parent before removing the child from a country , a removal without such permission may be regarded as “ wrongful ” within the meaning of LAW ( see Re F , GPE and ORG , [ DATE ] CARDINAL WLR CARDINAL , where the father had rights of custody , even though the mother had a court order giving her temporary “ care and control ” and there was no order barring the child ’s removal ) .

NORP However , the practice of domestic courts is not homogeneous . Thus , for example , ORG found that access rights coupled with a ne exeat clause did not constitute “ rights of custody ” within the meaning of LAW ( PERSON v. PERSON , CARDINAL F.CARDINALd CARDINAL , CARDINAL , ORG , DATE ) .

On DATE the Swiss ORG enacted the “ LAW and LAW , for the purpose of clarifying certain notions , especially in relation to the application of LAW of DATE . The LAW came into force on DATE . The sections of the LAW referred to by the applicants read as follows :

“ The return of a child places him or her in an intolerable situation , within the meaning of LAW , sub - paragraph ( b ) , of LAW , in particular where the following conditions are met :

( a ) placement with the parent who lodged the application is manifestly not in the child ’s interests ;

( b ) the abducting parent is not , given the circumstances , in a position to take care of the child in the ORG where the child was habitually resident immediately before the abduction , or this can not reasonably be required of that parent ; and

( c ) placement in the care of a third party is manifestly not in the child ’s interests . ”

“ The court dealing with the application for the return of the child shall decide , as required , on the child ’s personal relations with his or her parents and order the measures necessary to ensure his or her protection .

Where the application for return has been received by ORG , the competent court may , at the request of ORG or any of the parties , order the appointment of a representative or a guardian for the child , or take other protective measures even if the application for return is not yet pending before the court . ”

DATE . In connection with the federal decree concerning this LAW , ORG submitted to ORG a “ dispatch ” ( PERSON DATE , pp . CARDINAL - CARDINAL ) , of which the relevant passages read as follows :

In order to ensure an application of LAW of DATE that is better adapted to the interests of the child , it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation . The rule in section CARDINAL is not supposed to supersede the provision of LAW , sub - paragraph ( b ) , of LAW of DATE . The term ‘ in ORG means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention .

Firstly , sub - paragraph ( a ) refers to the situations in which the child ’s accommodation by the parent who requested the return is manifestly not in the child ’s interests . If that is not so , in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility , there will not , in principle , be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused . This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child .

ORG - paragraph ( b ) governs cases in which the appropriateness of the child ’s return can be assessed only from the standpoint of his or her relationship with the abducting parent . Where the child ’s accommodation by the parent who requested the return is manifestly not to be taken into consideration , the problem of his or her return to the ORG of origin will be addressed differently , depending on whether the person who wrongfully removed or retained the child ( usually the mother ) is or is not in a position to return to that ORG . If the said parent is not able to do so because , for example , he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in GPE ( for example following remarriage or on account of a situation of hardship suffered by another family member living in GPE ) , the child ’s psychological and physical stability may be at stake , because the child would , after the return , be obliged to live apart from his or her parents . Such separation is tolerable only in exceptional cases and must constitute an ultima ratio .

Second type of situation : where , given all the circumstances , it can not reasonably be required of the abducting parent that he or she take care of the child in the ORG where the child had his or her habitual residence immediately before the abduction ( section CARDINAL(b ) ) . It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that ORG . He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there , with the child , the court ’s final decision on the granting of custody . In that context , we have in mind especially those cases in which the mother can not be guaranteed safe or affordable accommodation outside the home of her former partner . One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order , whilst the abducting parent is clearly the child ’s primary carer . In such a case the child would only be taken to the ORG of origin to await the final attribution of the right of custody to the abducting parent , before coming back to GPE again with that parent . Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former ORG of residence . Such a solution would be inadmissible according to the spirit and purpose of LAW , because it would be incompatible with the child ’s interests . But the situation would have to be beyond doubt for the NORP court dealing with the request for return . Unless the circumstances can be established clearly , the court will have to rule that the return to the parent ’s ORG of origin is bearable and that , accordingly , the child will not be placed in an intolerable situation such as to justify a decision denying the return under LAW , sub - paragraph ( b ) , of LAW .

ORG - paragraph ( c ) refers to placement with third parties . If the child ’s return were to lead to separation from the parent who wrongfully removed or retained the child ( because return is impossible for that parent or can not reasonably be required of him or her ) , it could only be carried out in appropriate conditions if the child were placed with a third party in the ORG of origin . However , such a solution should only be sought , with the resulting possibility for the competent NORP court to order the child ’s return , if placement with CARDINAL party is not manifestly contrary to the child ’s interests . That third condition can be satisfied only if separation from the parent remaining in GPE is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent DATE and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child . In any event , such a situation should only be envisaged as an ultima ratio .

It must further be noted that , for the return to be compatible with the child ’s interests and , in particular , for the conditions of LAW to be fulfilled , the authority ruling on the matter has to be apprised of the situation prevailing in the ORG of origin and of the legal provisions in force there . Thus , the parties , and in particular the parents , have a duty to participate in the establishment of the facts . The hearing of the parties in person by the court ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) is therefore of great importance . The new provisions concerning the procedure and the cooperation with the competent authorities of the ORG of origin also play an essential role . The court must be able to verify whether , and in what manner , it is possible to ensure the child ’s return ( section ORG ) ) . If it does not succeed in that task , or succeeds only partially , it will not be in a position to weigh up all the consequences that a return might have for the child . The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child ’s reception and protection , in particular when there is some doubt about the requesting parent ’s capacity to look after the child properly . In this respect , section CARDINAL is thus directly related to the practical application of section CARDINAL . ”

The concept of guardianship is defined in LAW Law DATE . The term custody is not defined as such but is mentioned .

Section CARDINAL of that PERSON provides that “ [ p]arents shall be the natural guardians of their minor children ” . In GPE , parents , whether married , divorced or unmarried , are joint and equal guardians of their children . The term “ guardianship ” may be regarded as equivalent to “ parental authority ” in other jurisdictions .

Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances ( where a ORG adopts CARDINAL of the measures mentioned in section CARDINAL(CARDINAL ) or ( CARDINAL ) of ORG ) . This rule is set out in section CARDINAL of the PERSON .

Section CARDINAL defines and describes the role of parents in NORP law and outlines what parental guardianship entails in the following terms :

“ The guardianship of the parents shall include the duty and the right to take care of the needs of the minor , including his education , studies , vocational and occupational training and work and to preserve , manage and develop his property ; it shall also include the right to the custody of the minor , to determine his place of residence and the authority to act on his behalf . ”

Section CARDINAL sets the standard of GPE duties . It states that in exercising their guardianship , “ parents [ must ] act in the best interests of the minor in such manner as devoted parents would act in the circumstances ” .

There is a general presumption that parents should cooperate in taking decisions relating to their guardianship ( section CARDINAL ) . However , where no agreement is reached , they may refer to the court to decide the issue ( section CARDINAL ) .

Section CARDINAL provides that , when parents live apart , they may reach an agreement as to : who is going to have guardianship of the minor , wholly or in part ; who is going to have custody of the minor ; and what rights the other parent is going to have , in particular as regards contact with the child . Such an agreement is subject to the approval of the court .

Under LAW , if the parents can not reach such an agreement these issues may be determined by the court having regard to the best interests of the child .

Section CARDINAL further creates a presumption of custody in favour of the mother for children DATE unless there are special reasons for directing otherwise .

Accordingly both parents share joint decision - making authority regarding their child ’s place of residence . CARDINAL parent can not remove the child from GPE without the permission of the other parent or of a court . If CARDINAL parent wishes to remove the child from GPE without the other parent ’s consent , then the parent wishing to leave must apply to the NORP courts for a relocation order and an order for custody of the child .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .

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

In DATE the applicant placed MONEY on a DATE deposit account in the GPE branch of ORG ( « СБС-Агро » ) , then one of the largest banks in GPE . In DATE , during a financial crisis and rapid currency devaluation , the applicant requested the ORG to refund the capital with interest . The ORG refused . On DATE , at the applicant 's request , ORG ordered the ORG to pay him the money owed together with interest .

In its judgment , ORG excluded from the time for calculating interest the period from DATE to DATE , pursuant to decisions of ORG temporarily to halt all operations on private deposits due to a banking crisis . The applicant appealed that part of the decision , and requested the GPE branch of the ORG to be named as respondent , and not its GPE headquarters . ORG rejected the applicant 's appeal and confirmed the decision of ORG on DATE .

The decision was forwarded by ORG for enforcement to ORG service , as the ORG 's headquarters were situated in GPE .

The applicant complained about this decision to various judicial and executive authorities , including ORG , ORG , ORG and ORG and ORG .

On CARDINAL and DATE the applicant was informed by ORG that enforcement proceedings ( исполнительное производство ) had been initiated by a bailiff in GPE on DATE . The applicant did not receive a copy of that decision . The applicant was also informed that the bailiff in charge of the case had taken measures under LAW ( ORG исполнительном производстве ORG ) , including the freezing of the ORG 's assets , funds and real estate . However , the ORG 's funds were not sufficient to satisfy the numerous creditors who also had enforcement proceedings pending against ORG . The applicant was informed that he had to wait until ORG had money on its account to enforce the decision .

On DATE the applicant was informed by ORG of ORG that , by DATE , CARDINAL enforcement proceedings had been initiated against the ORG , with an additional CARDINAL being initiated DATE . The applicant was informed that the bailiffs had seized the ORG 's cars , real property and other assets . ORG also informed the applicant that it was monitoring the enforcement of the court decisions against the ORG , and that the applicant would be notified as soon as funds were available to pay him .

On DATE the applicant was informed by ORG that the consolidated enforcement proceedings were continuing , and that the applicant 's number in the list of creditors was CARDINAL . The letter further stated that the applicant would be informed of developments in his case .

On DATE and DATE ORG declared a moratorium until DATE on execution of all creditors ' demands against the ORG . On DATE the management of the ORG was taken over temporarily by ORG ( ARKO ) , set up by the ORG in accordance with the Law on Restructuring of ORG ( Закон « О реструктуризации кредитных организаций ORG ) . On DATE , in accordance with the same PERSON , a moratorium was f all creditors ' demands against ORG . This period was prolonged by ARKO on DATE for DATE , until DATE . On DATE the Constitutional Court found unconstitutional the legislative provision that allowed ORG unilaterally to extend the moratorium for DATE , and ruled that such decisions should be subject to judicial control .

After the communication of the complaint to ORG on DATE , the applicant continued his efforts to have the court decision enforced . In particular , he sued ORG for compensation for pecuniary and non - pecuniary damage . His claim was rejected in the final instance by ORG on DATE . He also filed a request with ORG ( ORG г. GPE ) for the ORG to be declared bankrupt , but his request was rejected on DATE for lack of standing under national law . It also appears that the applicant attempted to complain about the actions of ORG . On DATE and on DATE the Presnenskiy District Court of GPE adjourned consideration of the complaint , as the applicant failed to distinguish between a complaint and a claim for damages . On DATE the same court rejected the applicant 's request to have the requirement to pay a fee for bringing his civil claim against ORG lifted . On DATE the same court adjourned the applicant 's complaint concerning the actions of ARKO on account of his failure to comply with formal requirements . In DATE the ORG of GPE rejected the applicant 's claim for compensation against ORG for pecuniary and non - pecuniary damage

On DATE ORG approved the text of a tripartite friendly settlement involving ORG , the ORG and ARKO . The text of the friendly settlement was adopted at the general meeting of ORG on DATE by a majority of votes . The applicant , who had been invited to the meetings in DATE and DATE , did not participate and it is not clear if he submitted his vote by post . According to the agreement , the applicant is entitled to the immediate refund in cash of CARDINAL per cent of his deposit , and to CARDINAL bonds of CARDINAL ORG each with maturity dates in DATE and DATE .

On DATE ORG of ORG ( апелляционная инстанция Арбитражного Суда г. GPE по проверке законности и обоснованности решений арбитражных судов , не вступивших в законную силу ) , and on DATE ORG for ORG округа ) confirmed the decision of DATE .

In the same set of proceedings the courts reviewed the complaints of those creditors who were dissatisfied with various aspects of the friendly settlement . The courts found the settlement and the procedures leading to its conclusion to be in accordance with national legislation . In particular , the courts rejected the complaint that the moratorium , and later the friendly settlement , conflicted with the principles of compulsory execution of judgments and inviolability of property rights . The courts referred to the decision of ORG of DATE on the constitutionality of a legislative provision allowing ORG to declare a moratorium on the execution of a lending agency 's debts . It noted that the aim of these provisions was to ensure a fair division of assets among all the creditors of a bank , which would not be possible if the “ first - come - first - served ” principle were to be applied . The courts also noted that ORG allowed closure of enforcement proceedings once a friendly settlement between the parties had been approved by a court .

On DATE , following an order of ORG of GPE , ORG closed the consolidated enforcement proceedings on court decisions against the ORG . The applicant appealed against this order , and on DATE the ORG found the bailiff 's actions lawful , as they were based on a previous court order .

Throughout DATE the applicant was informed by ORG , the ORG and ORG about the terms of the agreement . In DATE ARKO informed the applicant that PERCENT of the total number of debtors had presented their claims and benefited from the terms of the agreement . The scheme would remain open until DATE , after which date the remaining liabilities would be deposited with a public notary .

In an unrelated set of proceedings , the applicant complained that in DATE his apartment was burgled . The burglars , PERSON and PERSON , were convicted in DATE , sentenced to prison terms and ordered to compensate the applicant for the value of the stolen items . These sums were not paid until DATE , as the debtors were in prison and did not have any assets . The applicant applied to ORG to have the amount adjusted to take account of inflation . ORG rejected the claim on DATE . Its decision was confirmed by ORG on DATE .

On DATE the Presidium of ORG , acting upon a request for supervisory review lodged by ORG , quashed the decisions of DATE and DATE and remitted the case for a new consideration . On DATE ORG awarded the applicant MONEY , to be paid jointly by PERSON and PERSON On DATE and CARDINAL DATE ORG opened enforcement proceedings . On DATE these proceedings were adjourned in respect of debtor PERSON as his location was unknown . The applicant did not appeal against this order .

LAW provides that the bailiff shall issue within DATE after receiving a court order an act initiating enforcement procedure ( постановление о возбуждении исполнительного производства ) . Copies of the act are to be forwarded to the parties and to the court which made the order . LAW provides that the enforcement proceedings take place at the location of the debtor or his property . LAW provides that the bailiff shall enforce the order within DATE from the date of receiving it . Article CARDINAL provides that complaints about actions of the bailiff should be submitted to the district court for the area where the bailiff is located .

The Law on Insolvency ( bankruptcy ) of ORG ( Закон « О несостоятельности ( банкротстве ) кредитных организаций GPE ) , Article CARDINAL thereof , provides that ORG may introduce a DATE moratorium on execution of all debts of a bank / lending agency if there is a threat of bankruptcy .

The Law on Restructuring of Lending Agencies gives details on the transfer of the management of a lending agency to the ORG on Restructuring of ORG ( ARKO ) . Article CARDINAL states that when ARKO takes over management of a bank / lending agency which is under threat of bankruptcy , a moratorium of DATE is declared on execution of all its debts . ARKO may extend the moratorium for DATE .

On DATE ORG adopted a decision ( PERSON Российской PERSON № CARDINAL ) by which it found unconstitutional the legislative provisions which allowed ORG to extend a moratorium for DATE . The ORG noted that ORG was not a public authority and that it enjoyed an unlimited discretion in this decision , which could interfere with the rights of creditors . It further noted that ORG 's actions should be subject to judicial control .