Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and is currently detained in GPE .

On DATE the applicant , accused of international drugtrafficking , was arrested in GPE . He was in possession of a false passport in the name of PERSON .

On DATE the applicant was questioned by ORG . Criminal proceedings were instituted against PERSON .

By an order of CARDINAL DATE , the GPE investigating judge remanded the applicant in custody . He observed that there was strong evidence of guilt against the applicant , who was in possession of documents showing that he was in contact with persons connected to drug - trafficking . Given the amount of cocaine ( QUANTITY ) imported by those persons and the fact that they were probably part of a major criminal organisation , the investigating judge considered that there was a serious risk of re - offending and a risk of tampering with evidence . Moreover , the applicant had declared that he was a tourist and that he had no links whatsoever to GPE . It was therefore reasonable to believe that he would try to abscond in order to avoid the consequences of the legal proceedings commenced against him .

The applicant challenged the order before ORG , which dismissed his appeal on DATE . ORG observed that new evidence had emerged against the applicant , who had been recognised as the person who had rented a deposit box in which the cocaine had been found , had helped to move a container into the deposit box and was facing another set of proceedings for drug - trafficking pending in ORG . ORG held that there was a serious risk of his re - offending , as evidenced by the fact that the applicant was part of a powerful criminal organisation . Moreover , if he were released , the applicant might try to get in touch with the other members of the organisation in order to tell them about the investigations with a view to tampering with the evidence . Finally , there was a risk of his absconding , confirmed by the fact that the applicant had given a different name to ORG judicial authorities .

The applicant did not appeal on points of law to ORG against the order of DATE .

On DATE ORG requested that the applicant and CARDINAL other persons be committed for trial . The preliminary hearing was scheduled for DATE , on which date the applicant was committed for trial , to begin on DATE before ORG .

In a judgment of DATE , filed with the registry on DATE , ORG declared that the case was outside its jurisdiction ratione loci and ordered the transmission of the case - file to ORG .

In a decision of CARDINAL DATE the Genoa investigating judge extended the applicant ’s detention on remand . After confirming the observations made in the orders of CARDINAL DATE and DATE , he noted that further investigation had revealed that the applicant had played an active role in renting the deposit box where the cocaine had been found and in sending the container in which it was concealed and had kept in contact with the other defendants who had been caught by the police in the act of removing the cocaine from the container . The investigating judge considered moreover that there was a risk of his re - offending and absconding after having committed the offence . He noted in that respect that another set of criminal proceedings had been instituted against the applicant in ORG , and that the accused had tried to abscond , producing false identification papers .

The applicant did not appeal against the decision of CARDINAL DATE .

On DATE ORG attached to ORG forwarded the case - file to ORG .

In a judgment of DATE , filed with the registry on DATE , ORG found the applicant guilty of the charges against him and sentenced him to DATE imprisonment and imposed a fine of MONEY ( ITL ) . The applicant ’s name was established as being in reality PERSON .

On DATE the applicant appealed against that judgment . He challenged , in particular , the jurisdiction of ORG .

The hearing was scheduled for DATE . On that date , the applicant concluded a plea bargain ( applicazione della pena su richiesta delle parti ) with ORG attached to ORG . The applicant agreed to withdraw his appeal in return for a reduction in his sentence .

In a judgment of DATE , ORG recognized the agreement reached by the parties and reduced the applicant ’s sentence to TIME years’ imprisonment and a fine of ITL CARDINAL .

NORP The applicant ’s appeal on points of law was declared inadmissible by ORG in a judgment of DATE .

Meanwhile , on DATE , ORG had requested that the applicant be placed in detention with a view to his extradition to GPE . In an order of CARDINAL DATE ORG had provisionally granted the request .

On CARDINAL DATE the applicant was interviewed by the President of ORG . He declared that he did not agree to be extradited since the absence of diplomatic relations between GPE and GPE could result in his being detained for an indefinite period of time ( a situation commonly known as “ limbo incarceration ” ) .

On CARDINAL DATE the applicant challenged the order of CARDINAL DATE . He contested in particular the authorities’ assumption that it was necessary to prevent him from absconding before the extradition decision could be enforced . By an order of CARDINAL DATE ORG rejected his claim . The applicant ’s appeal on points of law was declared inadmissible .

On DATE GPE authorities requested the applicant ’s extradition for offences related to drug - trafficking ( importation and possession of QUANTITY of cocaine ) .

On DATE ORG requested that extradition be granted . It was noted that an arrest warrant had been issued against the applicant on DATE by ORG and that in the light of the evidence produced by GPE authorities it was reasonable to believe that the applicant was guilty of the offences with which he had been charged .

In a judgment of DATE , filed with the registry on DATE , ORG ruled in favour of extradition .

On DATE the applicant appealed on points of law . He submitted that NORP nationals incurred a serious risk of indefinite detention in GPE .

By a judgment of DATE , filed with the registry on DATE , ORG dismissed the applicant ’s appeal .

On DATE ORG granted the extradition request . However , noting that criminal proceedings against the applicant were then pending before ORG , ORG decided , according to LAW hereinafter , the “ ORG ” ) , to suspend the enforcement of the extradition .

Meanwhile GPE authorities had once again requested the applicant ’s extradition in relation to a charge of false statements . The applicant had allegedly declared that his name was PERSON in order to obtain a GPE passport and had produced evidence corroborating the assertion .

By an order of CARDINAL DATE ORG decided that the applicant should be detained with a view to extradition . It noted , in particular , that the applicant had already left the jurisdiction of the GPE courts and that there was a specific risk of his absconding . The order indicated that the applicant was a NORP citizen who , in DATE , had obtained a permanent residence permit in GPE .

On DATE the applicant appealed on points of law against the order of DATE .

By a judgment of DATE , filed with the registry on DATE , ORG declared the applicant ’s appeal inadmissible because it had been lodged out of time .

By a judgment of DATE , filed with the registry on CARDINAL DATE CARDINAL , ORG ruled in favour of extradition .

The applicant appealed on points of law . By a judgment of DATE , filed with the registry on DATE , ORG , considering that ORG had duly given reasons for its decision , dismissed the applicant ’s appeal .

By an order of CARDINAL DATE ORG granted the extradition request . However , noting that criminal proceedings against the applicant were still pending , ORG decided to suspend enforcement of the extradition .

The first paragraph of LAW ORG provides that “ no one shall be detained pending trial unless there is serious evidence of his guilt ” .

Article CARDINAL ORG goes on to provide that detention pending trial may be ordered : “ ( a ) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ... ; ( b ) if the accused has absconded or there is a real danger of his absconding , provided that the court considers that , if convicted , he will be liable to a prison sentence of DATE ; and ( c ) where , given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct , acts or criminal record , there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ... ”

Under LAW ORG , precautionary measures should be adapted , in each individual case , to the nature and degree of the conditions set out in LAW ; they must be proportionate to the seriousness of the offence and to the sanction which is likely to be applied . Detention pending trial may be ordered only if all other precautionary measures appear to be inadequate .

Article CARDINAL ORG provides inter alia that a detention order must contain an explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt , including the factual elements on which the evidence is based and the grounds for its relevance , and must also take into account the time elapsed since the offence was committed .

According to ORG case - law , the existence of evidence of guilt and of the reasons for detention set out in LAW ORG should be re - examined in the light of any new relevant facts , such as the time elapsed since the beginning of the enforcement of the precautionary measure ( see the Fourth Section ’s judgment no . CARDINAL of DATE in the case of PERSON ) .

Article CARDINAL CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings and according to the seriousness of the offences with which the accused is charged .

In DATE ORG held that the LAW provisions were applicable in GPE , provided that they were drafted in sufficiently precise terms ( see ORG judgment no . CARDINAL of CARDINAL DATE in the case of PERSON ) . According to ORG , the ORG is a special source of law which can not be modified by ordinary law ( judgment no . CARDINAL of DATE ) .

However , in more recent decisions , ORG has held that LAW is not directly applicable in GPE , by reason of its general and indeterminate character ( natura programmatica NORP see , in particular , the following judgments : no . CARDINAL of CARDINAL DATE ( First Section ) in the case of GPE ; no . CARDINAL of CARDINAL DATE ( First Section ) in the case of PERSON ; no . DATE ( Fourth Section ) in the case of PERSON ) .

According to LAW ORG “ The enforcement of extradition shall be suspended if the person to be extradited ought to be judged [ in GPE ] or must serve [ in GPE ] a sentence imposed on him or her for offences committed before or after the offence in respect of which the extradition has been granted ... ” .


CASE OF DEAK v. ROMANIA AND THE UNITED KINGDOM

Violation of Art. 6-1 (Romania);No violation of Art. 6-1 (the UK);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Nicolas Bratza

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

The applicant married PERSON ( hereinafter referred to as “ the mother ” ) , also a NORP national , in DATE . In DATE their son C.A. ( hereinafter referred to as “ the child ” ) was born .

NORP In DATE they divorced and according to the divorce agreement between them , endorsed by a final court judgment , the mother was to have custody of the child , while the applicant obtained a right of access of DATE per year and was to pay a DATE allowance .

In DATE the mother travelled to GPE to commence studying for a Master degree in Business and Administration and left the child in GPE with her parents .

In DATE the mother married a NORP national . She later returned to GPE and on DATE , without informing the applicant , took the child with her to GPE .

The applicant found out about the child ’s removal from GPE to GPE in DATE .

On DATE he instituted proceedings in GPE before ORG , ORG ( “ the High Court ” ) , under LAW October CARDINAL on ORG ( “ LAW ) . The child and the mother were located by the NORP authorities ; however , their place of residence was not disclosed to the applicant .

A directions hearing was held on DATE before ORG at which the parties were requested to file observations on the question whether the removal of the child from GPE was wrongful under NORP law within the meaning of LAW . The judge in charge of the case also directed that the matter be set down for final hearing on DATE .

On DATE the parties received permission to file further evidence .

By the time of the next hearing , on DATE , ORG was presented by the applicant with documentary evidence emanating from ORG , ORG , ORG and the ORG , according to which the child ’s removal was wrongful under NORP law . However , the court was not convinced and , in accordance with LAW , requested a NORP court decision on the matter .

On DATE the applicant instituted civil proceedings before ORG ( “ ORG ” ) seeking a ruling that the child ’s removal from GPE had been illegal .

On DATE the applicant introduced a new application before the same court seeking a ruling that the child ’s removal was contrary to LAW because he also had custody rights over the child .

On DATE ORG held the first hearing in respect of the applicant ’s first action ; however , as a result of the mother ’s request for an adjournment , the proceedings were adjourned until DATE .

On DATE ORG wrote to ORG in GPE , informing it that the NORP courts had exclusive competence in issuing decisions in accordance with LAW .

On DATE ORG in GPE held the first hearing in respect of the second action and adjourned the case on the grounds that the applicant had failed to sign the application and that the mother had failed to sign her request for an adjournment .

On DATE ORG in GPE resumed its examination of the case . The judge in charge of the case indicated that since his decision of DATE a number of documents from GPE had become available which seemed to indicate that the child ’s removal from GPE by his mother was wrongful , and that , had these documents been available earlier , he would not have sought a declaration under LAW . Nevertheless , in view of the fact that the proceedings in GPE had commenced , and in view of the letter from ORG of DATE it was decided to adjourn the proceedings to a date after DATE ( the date on which ORG in GPE was to hear the case ) . The judge expressed concern about the time that had elapsed in the proceedings and indicated that if the DATE hearing in GPE was not conclusive he would discharge the order he had made in DATE and proceed to adjudication .

On DATE the mother submitted her observations concerning the applicant ’s actions in the NORP proceedings and introduced a counter - action seeking , inter alia , a ruling that the applicant did not have a right of custody over the child and that he did not have the right to decide on the child ’s place of domicile .

On DATE ORG in GPE adjourned the hearing at the applicant ’s request so that he could examine the mother ’s observations and the counter - action lodged by her . On DATE CARDINAL actions lodged by the applicant and the mother ’s counter - action were joined .

On DATE the judge at ORG in GPE , having learned that the final determination of the case before the NORP court had yet again been put back , made an order that the final hearing in GPE should take place “ as a matter of urgency ” in DATE .

On DATE ORG in GPE adopted a final ruling in the case and declared inadmissible the applicant ’s actions without entering into the merits of the case . It decided not to examine the mother ’s counter - action . Both parties appealed against the judgment .

On DATE the proceedings in GPE were adjourned at the request of the parties to DATE to allow time for receipt of the written reasons from the NORP court .

On DATE ORG in GPE delivered its judgment and on CARDINAL and DATE the parties appealed against it .

On DATE the case file was transmitted by ORG to ORG and the latter fixed DATE as the date of the hearing in the case .

On DATE the applicant requested ORG to speed up the proceedings in view of the proceedings pending in GPE . His request was granted and the date of the hearing was set for DATE .

On DATE the applicant applied for an adjournment in the ORG proceedings in GPE pending determination of the case by ORG . His request was granted and the judge in charge of the case ordered that the final hearing should take place as soon as possible after receipt of an authorised translation of the decision of ORG .

On DATE the mother filed her observations with ORG .

On DATE the applicant ’s representative requested an adjournment from ORG in order to study the mother ’s observations .

On CARDINAL DATE ORG held a hearing in the case and heard submissions from the parties . The pronouncement of the judgment was adjourned to CARDINAL DATE .

On DATE the Fourth Section of the Bucharest Court of Appeal quashed the judgment of the first - instance court in part . It examined the applicant ’s action on the merits and dismissed it as ill - founded , finding that the applicant did not have custody rights over the child and that the child ’s removal from GPE was legal under domestic law and not wrongful within the meaning of LAW . The judgment of ORG was communicated to the parties on DATE .

On DATE the applicant lodged an appeal on points of law with ORG ( Înalta Curte de Casaţie şi Justiţie ) against the judgment of ORG .

On DATE the case file was sent by ORG to ORG of GPE .

On CARDINAL occasions DATE the applicant lodged requests with ORG asking it for a speedier examination of his case on grounds of the urgency of the matter .

It appears that during that period LAW was undergoing changes and that it was not clear which court was competent under the new rules to examine the applicant ’s appeal on points of law . On DATE ORG declined jurisdiction in favour of ORG and on DATE the case file was sent back to that court .

ORG scheduled the first hearing in the case for DATE .

On DATE the applicant requested that the proceedings be speeded up in view of an upcoming hearing in the GPE proceedings . On DATE the applicant ’s request was upheld and the hearing was rescheduled for CARDINAL DATE .

NORP On DATE the Third Section of ORG held a hearing ; however , it decided to adjourn the proceedings to DATE .

On DATE ORG resumed the examination of the case and dismissed the applicant ’s appeal on points of law . It found , inter alia , that , under NORP family law , after divorce the parents of a child do not have equal rights in respect of their child . In particular , the parent who has custody of the child does not need the consent of the other parent in respect of measures concerning the child except for matters relating to adoption and/or losing or re - obtaining NORP nationality . The parent who does not enjoy custody can not veto a decision of the other parent concerning the child ’s domicile . Accordingly , the removal of the child from GPE by the mother was lawful under NORP law .

In DATE , after the NORP proceedings had ended and the final NORP judgment had become available in LANGUAGE , ORG in GPE resumed its proceedings and listed the case for a final hearing on DATE .

On DATE the judge in charge of the case at ORG in GPE acceded to the applicant ’s application for an expert opinion on the law of GPE . The expert was to file his report by DATE .

Both parties agreed to instruct PERSON to draft a report on NORP family law and on DATE ORG confirmed the joint instructions to the expert and the time for lodging of the expert report was extended to DATE with the final hearing listed for DATE .

On DATE ORG in GPE extended the time - limit for the expert report to DATE and relisted the case for DATE .

The expert ’s report was ready on DATE ; however , the parties wished to put more questions to him . Therefore , on DATE , on an application from the applicant , the court adjourned the proceedings to CARDINAL DATE and made further procedural directions in relation to any further questions to be put to the expert .

On DATE the final hearing was listed before ORG in GPE for DATE and DATE .

On DATE and DATE ORG held the final hearings in the case and gave judgment on DATE . The court found in favour of the applicant , choosing to rely on the expert opinion and to disregard the decisions of the NORP courts . It found that the applicant had custody rights within the meaning of LAW and that therefore the child ’s removal from GPE had been wrongful under LAW . The court also rejected an objection based on LAW raised by the mother and issued an order for the return of the child to GPE .

DATE . On DATE the mother sought leave to appeal . This was granted on DATE and the case was fixed for hearing in ORG on DATE .

On DATE ORG heard and dismissed the mother ’s appeal while varying the order for the peremptory return of the child until the end of the school term .

The mother appealed to ORG . Her appeal was heard DATE and on DATE ORG gave judgment allowing the appeal . ORG reversed the judgment of ORG , finding that the applicant did not have custody rights within the meaning of LAW and that therefore the child ’s removal from GPE was not wrongful under LAW of the same LAW . ORG criticised the decision of ORG to seek a further expert opinion after having obtained a final decision on the matter from the NORP courts and expressed regret about the length of the proceedings .

Lord Hope of PERSON observed , inter alia , that :

“ LAW contemplates that the court may need to be provided with a determination from the authorities of the state of the child ’s habitual residence that the removal was wrongful . So a judge is not to be criticised if he decides to use this procedure because he can not responsibly resolve the issue on the information provided by the applicant . Nevertheless if he decides on this course delay will be inevitable . Great care must therefore be taken , in the child ’s best interests , to keep this to the absolute minimum . The misfortunes that have beset this case show that , once the court has received the response , it should strive to treat the information which it receives as determinative .

In this case the response that was received from GPE was sufficient to show that the child ’s removal was not wrongful within the meaning of article CARDINAL . On DATE the final ORG of GPE , upholding the court of first appeal , stated in the clearest terms that , under the law as it then stood in GPE , termination of marriage through divorce brings joint custody to an end , that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited , and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child ’s place of residence . It is wholly understandable that the father should feel aggrieved by what has happened in this case . The effect on his ability to exercise his rights of access is plain to see . But the phrase “ rights of custody ” has been given a particular definition by the Convention . It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes . The information provided by the NORP court shows that , as the law stood at the time of the child ’s removal , the father had no such rights . ”

Baroness PERSON of GPE commented , inter alia , that :

“ ... ORG concluded that the removal of the child in DATE had not been wrongful ... How then should the courts of the requested state respond to such a determination ? Most certainly not as they did in this case . Having received a determination , binding between the parties , in the final court of the requesting state , the ORG proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence . The fact that the expert was jointly instructed does not cure the vice . ”

Lord PERSON stated that :

“ It was quite wrong to permit the father to adduce further expert evidence from Dr PERSON which challenged not only the conclusion but the statement of the content of the father ’s rights set out in the judgment of the NORP court . The NORP court should have considered the terms of the judgment itself , without any subsequently obtained expert evidence . If it had done so it could only have come to the same conclusion as the NORP court , even without applying any presumption in its favour . ”

Lord PERSON commented as follows :

“ This is an extraordinary case . It is , we are told , unique in the length of time which elapsed before the judge ’s order for the child ’s summary return to GPE ( over DATE after the commencement of GPE Convention proceedings ) ; and unique too in being the only case in which a GPE court has rejected a foreign court ’s LAW determination that the child ’s removal was not in the event wrongful within the meaning of LAW ...

In circumstances like these it seems to me almost inconceivable that the court requesting the article CARDINAL determination would then not simply accept it . Certainly there would need to be some compelling reason to reject it such as a flagrant breach of the rules of natural justice in the foreign judicial process or a manifest misdirection as to the autonomous meaning of the Convention term “ rights of custody ” . There is nothing of that sort here . On the contrary , the judge - neither PERSON ( who had requested the determination ) nor PERSON ( who later ordered the child ’s return to GPE ) - on DATE , acting merely on the father ’s request , ordered that an expert in NORP law be jointly instructed by both parties to cover exactly the same ground as ORG had themselves just covered ... ”

NORP Throughout the entire proceedings in GPE the applicant was allowed to meet his child on a number of occasions in special contact centres for periods not exceeding TIME . According to him , however , over DATE he has only been able to spend TIME with his son .

It does not appear that the applicant ever applied to the GPE courts in order to obtain a judgment from them giving him access to the child . However , on an unspecified date in DATE he applied to ORG in GPE for the recognition of the NORP judgment of DATE ( see paragraph CARDINAL above ) . The ORG is not aware of the outcome of those proceedings .

The relevant provisions of LAW read as follows :

The divorced parent who was entrusted with the child shall exercise the parental rights ...

The divorced parent , who was not entrusted with the child , keeps the right to have personal ties with the child , as well as to observe his or her bringing up , education , studies and professional instruction .

The relevant provisions of LAW provide :

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

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 . ”

“ For the purposes of this Convention –

a ) ’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 ) ’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 . ”

“ ORG shall co - operate with each other and promote co - operation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures -

a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

b ) DATE to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

d ) to exchange , where desirable , information relating to the social background of the child ;

e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organizing or securing the effective exercise of rights of access ;

g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

i ) to keep other each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ Any person , institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to ORG of the child ’s habitual residence or to ORG of any other ORG for assistance in securing the return of the child ... ”

“ ORG of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child . ”

“ 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 . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . ”

LAW

“ 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 –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal of retention ; or

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 . ”

Article CARDINAL

“ The judicial or administrative authorities of a Contracting ORG may , prior to the making of an order for the return of the child , request that the applicant obtain from the authorities of the ORG of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of LAW , where such a decision or determination may be obtained in that ORG . ORG shall so far as practicable assist applicants to obtain such a decision or determination . ”

Article CARDINAL

“ An application to make arrangements for organizing 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 co - operation 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 organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . ”


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . She is represented before the ORG by her father , PERSON . The respondent Government are represented by PERSON , Deputy ORG - Secretary , ORG .

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

At the applicant ’s request , in DATE ORG ordered her neighbours to arrange for the drainage of rainwater on their land . On DATE ORG ) quashed this decision and remitted the case to the first administrative instance . The applicant ’s related court action was finally dismissed on DATE .

On DATE ORG discontinued the resumed administrative proceedings . On DATE ORG quashed this decision and again remitted the case to the first administrative instance .

On DATE ORG discontinued the resumed proceedings . On DATE ORG quashed this decision and again remitted the case to the first administrative instance .

Subsequently , the ORG was appointed to deal with the case as a first administrative instance in the resumed proceedings . On DATE it ordered the neighbours to carry out the necessary works by DATE . On DATE ORG essentially upheld this decision .

On DATE the neighbours brought an action seeking judicial review of the above administrative decisions . On CARDINAL DATE the applicant challenged the competent ORG for bias . On DATE she intervened in the proceedings on the side of the defendant ORG .

On DATE ORG appointed ORG to hear the case .

On DATE ORG dismissed the plaintiffs’ action holding that the defendant ORG ’s procedure had been in compliance with the law .

On appeal , on DATE PERSON upheld this decision . The plaintiffs filed a petition for a review by ORG .

On DATE the applicant requested the enforcement of ORG decision . In reply to the applicant ’s enquiry , on DATE the President of ORG confirmed that the pending review proceedings were not an obstacle to the execution of the decision of DATE .

On DATE ORG dismissed the GPE petition for review .

On DATE the ORG ordered the execution of its decision of DATE . A time - limit was set for DATE .

On DATE the neighbours notified ORG that the works had been completed .

On DATE the applicant informed ORG that she was not satisfied with the technical solution adopted for the drainage works . On DATE the ORG appointed an expert . On DATE ORG , relying on the expert opinion , ordered the neighbours to alter the construction . After several postponements , ORG decided that they would have until DATE to complete the necessary works .

An inspection of the works was carried out on DATE . On DATE a fine was imposed on the neighbours for non - compliance with the administrative orders . On appeal , on CARDINAL DATE ORG increased the amount of the fine . A further fine was imposed on the neighbours on DATE .

On DATE another inspection took place . It was found that a major part of the works had been completed .

The applicant ’s criminal complaints against various officials involved in the case were to no avail .


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 .

On DATE the applicant filed an application for dissolution of joint property with ORG ( Sąd Rejonowy ) .

The proceedings were terminated by the decision of ORG of DATE , after the entry into force of LAW . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ CARDINAL . NORP Parties

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


The applicant is a NORP national . She was born in DATE and lives in GPE , PERSON ( GPE ) . She was represented before the ORG by PERSON PERSON and Mr PERSON , of the GPE and ORG respectively .

On DATE Mr PERSON ( “ Mr NORP ” ) , who had been tetraplegic since DATE following an accident on DATE , died a voluntary and painless death after having sought recognition from the NORP courts since DATE of his right not to have the ORG interfere with his decision to end his life in that way .

Those proceedings , which he had instituted in the GPE civil courts , ended with a decision of ORG of DATE dismissing his amparo appeal on the ground that the remedies in the ordinary courts had not been properly used because the applicant had failed to bring his case in the courts with territorial jurisdiction . That decision was examined by the ORG , which declared the application ( no . CARDINAL ) inadmissible on CARDINAL DATE for non - exhaustion of domestic remedies .

The applicant , PERSON sister - in - law , is the heir legally appointed by him to continue the proceedings which he had instituted while he was alive .

On DATE Mr PERSON brought an action ( jurisdicción voluntaria ) in ORG ) requesting :

“ ... that my general practitioner be authorised to prescribe me the medication necessary to relieve me of the pain , anxiety and distress caused by my condition without that act being considered under the criminal law to be assisting suicide or to be an offence of any kind ; I fully accept the risk that such medication might entail and hope thus to be able , at the appropriate time , to die in dignity . ”

In a judgment of CARDINAL DATE ORG Instance refused PERSON request , holding that LAW did not allow a court to authorise a third party to help a person to die or to bring about that person ’s death .

Mr PERSON appealed . In a decision ( auto ) of DATE , the Corunna Audiencia provincial upheld the judgment on the basis of LAW and ORG interpretation of that LAW ( see Relevant domestic law and practice , below ) , LAW and CARDINAL of LAW , LAW , and LAW .

Mr PERSON then lodged an amparo appeal with ORG on the basis of the rights to human dignity and the free development of the personality , to life and to physical and psychological integrity , and to a fair trial ( Articles CARDINAL , CARDINAL and DATE of the LAW ) . The appeal was registered on DATE . On DATE Mr Sampedro was given DATE in which to submit his final observations .

In TIME of CARDINAL DATE Mr GPE died , assisted by CARDINAL or more anonymous persons . Criminal proceedings were instituted against a person or persons unknown for aiding and abetting suicide .

After Mr Sampedro ’s death , the applicant informed ORG on DATE that she intended to continue the proceedings instituted by PERSON in her capacity as his heir .

On DATE the applicant reworded as follows the grounds of appeal submitted by PERSON in support of his amparo appeal in order to adapt them to the new situation arising as a result of his death : “ [ that ] the Audiencia [ provincial ] should have acknowledged [ Mr Sampedro ’s ] right for his general practitioner to be authorised to administer him the medication necessary ... ” .

In a decision of CARDINAL DATE ORG discontinued the proceedings and refused the applicant the right , in her capacity as Mr ORG heir , to continue the proceedings brought by him . It did not rule , however , on the applicant ’s allegation regarding the excessive length of the proceedings in ORG , which had still been pending at the time of Mr PERSON ’s death . The following is an extract from the court ’s judgment :

“ It must be acknowledged that our legal system allows continuity in the exercise of actions for the recognition and protection of certain personal rights by heirs and other persons after the death of the person bringing the action . Such is the case for actions concerning civil status , such as establishing descent ... and those concerning civil protection of the right to honour , personal and family privacy and personal image ( section CARDINAL(CARDINAL ) of Institutional Law CARDINAL/CARDINAL of CARDINAL DATE ) . Those substantive legal conditions do not suffice , however , to justify PERSON request to continue the proceedings merely on the basis of the declaration contained in LAW of LAW ... .

There are CARDINAL aspects to the right granted under that provision to continue legal proceedings : ( a ) it concerns legal rights and relations that are not exhausted in themselves but are projected onto the family group , extending beyond the holder of the right to other persons affected by the court decision recognising or remedying the right infringed , and , essentially , ( b ) ... not successors to legal proceedings under succession law , but successors ope legis , in so far as expressly provided for by law .

That said , in the case of the right to die in dignity by euthanasia without the intervention by a third party constituting a criminal offence , which was the right in respect of which Mr ORG lodged his amparo appeal , the above conditions are not met . There is no explicit legal provision to that effect ( LAW being limited to indicating the time at which succession takes effect ) and the case does not concern rights such as a personal honour , reputation , image or privacy , the effects of which are not confined to the holder of the right but extend to his family circle or relatives . On the contrary , it is here a request of a “ strictly personal ” nature and inextricably linked to the person exercising it as “ an act of will concerning that person alone ” ( Constitutional Court Judgment ( “ CCJ ” ) DATE seventh ground , and CCJ CARDINAL/CARDINAL , fifth ground ) .

In the light of the foregoing , the request to continue the proceedings must be rejected . The applicant ’s claim lapsed from the moment at which Mr PERSON , the appellant , died and his heir , PERSON , can not continue to rely on it in the constitutional proceedings . Our conclusion is further supported by the nature of an amparo appeal in constitutional proceedings , which has been established for the purpose of challenging actual and effective breaches of fundamental rights . As stated in the ORG CARDINAL/CARDINAL , an amparo appeal “ is not a proper remedy for requesting and obtaining an abstract and generic decision determining declarative claims which concern allegedly erroneous interpretations or incorrect applications of constitutional provisions , but only and exclusively those claims which are intended to re - establish or protect fundamental rights in the event of an actual and effective breach ” ( second ground ) . ”

“ Heirs shall inherit all the rights and obligations of the deceased by the fact of his death alone . ”

“ Anyone who helps or encourages another to commit suicide shall be liable to a prison sentence [ of DATE ] ; if he assists to such an extent that he causes the death , he shall be liable to a prison sentence of DATE . ”

Anyone who performs an act necessary to assist another to commit suicide shall be liable to a prison sentence of DATE .

If that assistance causes the death , the person providing it shall be liable to a prison sentence of DATE .

Anyone who , at the express , genuine and unequivocal request of a person suffering from a serious terminal illness or CARDINAL causing him serious permanent and intolerable suffering , causes that person ’s death or actively performs an act necessary to assist him to die shall be liable to a sentence in the first or second category below the one provided for in DATE and QUANTITY of this Article ” .

“ CARDINAL . Where the holder of the infringed right dies without having been able to bring , either himself or through his legal representative , an action under this LAW , on account of the circumstances in which the infringement occurred , the action may be brought by the persons referred to in section CARDINAL [ the person designated in the will or , failing that , the spouse , descendants , ascendants and brothers ... ]

Those persons may continue an action previously instituted by the holder of the infringed right when he dies . ”

“ ... The right to life is , accordingly , an inherently positive and protective one which can not therefore be considered as a right of freedom encompassing the right to die . It is not , however , inconsistent with that principle to acknowledge that , in so far as life is a personal asset forming an integral part of a person ’s freedom , an individual can dispose of his own life . However , such an example of “ licence to act ” ( agere licere ) , in the sense of taking one ’s own life or accepting one ’s own death , is an act permissible by law but not in any way a subjective right allowing an individual to solicit support from the public authorities to overcome resistance to his desire to die ; still less is it a fundamental subjective right in respect of which that possibility would extend over and above even legislative resistance , which can not reduce the essential content of a fundamental subjective right .

Accordingly , LAW , as in force , can not be construed to guarantee the individual a right to his own death ... ”


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in PERSON .

On DATE the applicant instituted civil proceedings before the ORG seeking annulment of a purchase contract .

On DATE the first - instance court annulled the contract . An appeal was lodged .

On DATE ORG upheld the appeal and remitted the case for re - examination .

DATE and DATE CARDINAL hearings were held .

On DATE the applicant withdrew the claim and a decision on termination of proceedings was issued on DATE .

A description of relevant domestic law can be found in the PERSON v. GPE decision ( no . CARDINAL/CARDINAL , DATE , § § CARDINAL ) .


CASE OF RINGEISEN v. AUSTRIA (ARTICLE 50)

Pecuniary damage - financial award;Non-pecuniary damage - financial award

The ORG is called upon to rule only on the question of the application of LAW ) in the present case . Thus , as regards the facts the ORG will confine itself here to giving a brief outline and for the rest it refers to paragraphs CARDINAL of its judgment of DATE .

That judgment concerned , inter alia , the detention of PERSON while on remand from DATE to DATE , that is DATE and DATE , and from DATE , that is DATE and DATE .

PERSON ’s lawyer wrote , on DATE , to the NORP Federal Minister of ORG requesting him , with reference to the judgment of DATE and to Articles CARDINAL § CARDINAL and CARDINAL ( article DATE , article CARDINAL ) of the LAW , to make proposals for the reparation of the damage allegedly sustained by the applicant . It was claimed that the applicant had , " as a result of his unjustified detention " , suffered over and above the loss of his fortune irremediable damage to his health which reduced his life expectancy and made constant medical care necessary . The applicant ’s lawyer therefore requested the Minister to advance on account the sum of MONEY ( DM ) . In a reminder dated DATE , he insisted that the matter should be dealt with promptly , having regard , in particular , to ORG state of health .

On DATE , the Minister replied that in view of his ORG ’s competence under LAW it was not in a position to deal with the matter .

Meanwhile , PERSON had addressed his request to the ORG on DATE . He laid emphasis on the fact that he was still in very difficult circumstances due to his poor state of health and he asked the Commission " to apply to ORG ... on ( his ) behalf and to have a decision taken in accordance with LAW .

The applicant has set out more particulars of his claims in letters which he and his wife sent to the ORG on DATE , DATE , QUANTITY DATE and CARDINAL DATE . He alleges that he has sustained considerable material damage resulting , inter alia , from interference with the conduct of his business and from loss of property and rents in GPE and for this he claims MONEY . Furthermore , he states that he is entitled to compensation , in an amount which he leaves the ORG to assess : for personal injury , for damage to his reputation and " for detention " .