CASE OF MAKHARBIYEVA AND OTHERS v. RUSSIA

Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicants are :

CARDINAL ) Ms PERSON , born in DATE ,

CARDINAL ) Mr PERSON , born in DATE ,

CARDINAL ) PERSON , born in DATE ,

CARDINAL ) Mr PERSON , born in DATE , and

CARDINAL ) PERSON , born in DATE .

The first and second applicants live in ORG ; the other applicants live in PERSON in Urus - Martan district , GPE . The first and the second applicants are the parents of PERSON , who was born in DATE ; the third applicant is his wife , and the fourth and the fifth applicants are his children .

At the material time the Urus - Martan district and the town of ORG were under the full control of the NORP federal forces . Military checkpoints manned by NORP servicemen were located on all roads leading to and from the area , which was under a strict curfew . A checkpoint manned by policemen from ORG of the FAC region ( “ the OMON ” ) was located on the road between the town of ORG and the village of PERSON . The applicants and PERSON lived in PERSON , in GPE district . In DATE PERSON was trying to get a job at the PERSON district department of the interior ( the PERSON ) in PERSON .

In TIME DATE , on his way from ORG to PERSON , PERSON stopped at his cousins’ house in GPE on the outskirts of PERSON . On TIME he drove back to PERSON with his cousins , Mr GPE and Mr GPE , in the latter ’s black VAZ-CARDINAL car . At the time Mr PERSON was a police officer at LOC in PERSON . On their way PERSON , Mr GPE and Mr GPE passed through a number of checkpoints ; Mr PERSON showed his police identity card and the car was allowed to pass through . The road to PERSON went through the checkpoint manned by the PERSON from the FAC region ; the servicemen had previously seen Mr GPE crossing the roadblock on a regular basis and knew that he was a police officer .

At TIME the car with the CARDINAL men was stopped for yet another identity check at the checkpoint manned by the ORG from ORG . The servicemen looked at the police identity card provided by PERSON and asked for the passports of PERSON and Mr GPE After the CARDINAL men had produced their documents the servicemen surrounded them , blocked the passage through the checkpoint , handcuffed all QUANTITY men and dragged PERSON inside the checkpoint building , while Mr GPE and Mr PERSON remained outside . The servicemen also took away Mr PERSON ’s service gun . Immediately after this the servicemen called someone on a portable radio and requested that representatives of the military commander ’s office come to the checkpoint .

The detention of PERSON and his cousins was witnessed by CARDINAL residents of PERSON who happened to cross the checkpoint at the same time as the detained men . CARDINAL of them went to the applicants’ house straight away and informed them about the incident . The first and second applicants immediately got into their car and drove to the checkpoint .

TIME after the servicemen had called for representatives of the military commander ’s office to attend , an armoured NORP lorry , CARDINAL black PERSON cars with military registration numbers of the ‘ CARDINAL region and a white ORG ( ‘ Нива’ ) car arrived at the checkpoint . PERSON was forced into CARDINAL of the VAZ-CARDINAL cars ; Mr GPE and Mr GPE were placed in the LOC lorry ; black sacks were put over their heads . Mr PERSON ’s black CARDINAL car was driven away by one of the abductors , who was in military uniform .

When the vehicles with the detained men were leaving the checkpoint , the first and second applicants pulled up at the scene . They followed the convoy of military cars , which went to the centre of ORG . The applicants’ car was stopped at a checkpoint located on the bridge , in the vicinity of the town administration and the military commander ’s office . The first applicant got out of the car and ran after the convoy , which drove into the yard of the Urus - Martan district military commander ’s office ( “ the district military commander ’s office ” ) . The soldiers on duty stopped the first applicant from entering the building . TIME the second applicant also arrived at the military commander ’s office . The applicants asked the soldiers to let them speak with the district military commander . The servicemen refused and demanded that the applicants leave the LOC , as curfew was just starting .

After the arrival at the district military commander ’s office , PERSON GPE and Mr GPE were taken to the third floor , where they were questioned for CARDINAL about involvement in the activities of illegal armed groups . Throughout the questioning they had sacks on their heads and were subjected to beatings .

After the questioning PERSON was taken outside and placed in an UAZ minivan ( ‘ ORG ) . He recognised the model of the car by its engine sound and layout . His brother , Mr GPE , was also put into the vehicle which took them to the building of the ORG temporary district department of the interior ( “ the Urus - Martan VOVD ” ) located QUANTITY from the military commander ’s office .

In the VOVD Mr PERSON was taken to an investigator ’s office and the sack was removed from his head . Mr PERSON asked about his brother , PERSON GPE , and his cousin , PERSON . The investigator told him that he and his brother had been brought over from the military commander ’s office and that he did not know the whereabouts of PERSON . After that PERSON PERSON and Mr GPE were taken to a cell in which there were CARDINAL other detainees .

On TIME , DATE , the head of the Oktyabrskiy ROVD arrived in ORG and spoke with the head of the VOVD . As a result , PERSON was released on DATE ; during his release the PERSON officers mistakenly gave him PERSON official registration card . Mr DATE was released DATE , on DATE . DATE Mr PERSON picked up his VAZ-CARDINAL car , which had been taken away by the abductors , from the district military commander ’s office .

On DATE the first applicant managed to meet the district military commander , General PERSON , and asked him whether his servicemen had taken away her son . He responded : “ Yes , there is a detainee named PERSON . We will question him and then release him . ” DATE first applicant again spoke to the General and asked about her son . The latter told her that PERSON had absconded , taking a pistol from the district military commander ’s office .

On an unspecified date in DATE the first applicant lodged a claim with ORG , requesting that PERSON be declared a missing person . On DATE the court granted her claim and declared PERSON a missing person from DATE .

In support of their application the applicants submitted the following documents : a statement by the first applicant dated DATE ; a statement by the second applicant dated DATE ; a statement by Mr GPE dated DATE , and copies of letters received from the authorities .

The Government neither challenged the version of events presented by the applicants nor provided their own version of the events .

On DATE the applicants complained to the ORG about the abduction of PERSON . They did not retain a copy of this complaint .

On DATE the first applicant again complained to the PERSON about her son ’s abduction . She stated that her son and his CARDINAL cousins had been abducted by NORP military servicemen at the checkpoint located on the road between ORG and PERSON , and that some time later PERSON cousins had been released , but he had remained in detention . She stressed that she could provide the authorities with a detailed description of the ORG vehicles and the names of witnesses to the abduction , and stated that at some point after the abduction her son had been taken to ORG district department of ORG ( “ the ORG ” ) .

On DATE the second applicant wrote to the Urus - Martan district prosecutor ’s office ( the district prosecutor ’s office ) about his son ’s abduction , and on DATE to the district military commander , General PERSON He stated that at TIME on DATE his son had been abducted by NORP military servicemen at the checkpoint located on the road between ORG and PERSON . The applicant further provided a detailed description of the vehicles involved in the abduction and stated that there were witnesses to the events who could provide statements to the authorities . He stated that he had learnt that at some point after the abduction his son had been detained in ORG , and stated that his attempts to establish the whereabouts of his son by lodging complaints with the ORG , the ROVD , the ORG and the local administration had been futile .

On DATE the district prosecutor ’s office instituted an investigation into the abduction of PERSON under LAW ( kidnapping ) . The case file was given the number DATE . The applicants were informed of this on DATE .

On DATE the second applicant again complained to the district prosecutor about his son ’s abduction at the checkpoint . He stated , amongst other things , that his CARDINAL relatives , who had been abducted with his son , had later been released from the PERSON and that CARDINAL of them had been given PERSON registration card by mistake . The applicant further stated that he had applied to various authorities with numerous requests for an investigation to be initiated into his son ’s abduction by the ORG officers who had been manning the checkpoint on DATE and for them to be questioned about his son ’s whereabouts . Finally , the applicant complained of a lack of information from the district prosecutor ’s office and asked to be provided with an update .

On DATE the second applicant wrote to the GPE prosecutor and ORG . He stated that his son and CARDINAL of his cousins had been detained by NORP federal servicemen at a military checkpoint ; that his cousins had been released later on from the PERSON and that CARDINAL of them had mistakenly been given his son ’s documents during the release . He further stated that his numerous complaints to various authorities had not produced any results and that the investigation of his son ’s abduction had been ineffective . In particular , he pointed out that the investigators had failed to question the ORG officers who had been manning the checkpoint and taken away his son and that in spite of numerous witness statements the investigators had failed to establish the circumstances of his subsequent detention in the military prosecutor ’s office and the PERSON . According to the applicant , with this information and evidence at hand the investigators could have solved the crime and established his son ’s whereabouts shortly after the abduction and that such procrastination in the investigation demonstrated their lack of desire to identify and prosecute the perpetrators . The applicant requested that the authorities establish his son ’s whereabouts , inform him of any charges pending against his son and identify the culprits .

On CARDINAL occasions DATE the district prosecutor ’s office informed the applicants about the opening of criminal case no . DATE .

On DATE the second applicant requested that the investigators grant him victim status in the criminal case . No response was made to this request .

On DATE the second applicant again complained to the district prosecutor and challenged the investigator in the criminal case . The applicant stated that the investigator had failed to summon and question both the ORG officers who had been manning the checkpoint and the witnesses to the abduction ; that the investigator had failed to include in the investigation file the witness statements given by him and the first applicant to the authorities ; that during a conversation with the first applicant the investigator had told her : “ it is not my fault that your son got killed ” . The applicant requested that due to this statement demonstrating the investigator ’s awareness of PERSON possible fate , the investigator should be held responsible for covering up his son ’s murder .

On DATE the district prosecutor ’s office informed the applicants that they had suspended the investigation in the criminal case for failure to identify the perpetrators .

On DATE the second applicant again complained to the district military commander about his son ’s abduction by military servicemen and requested assistance in the search for his whereabouts .

On DATE the first applicant complained to a number of local authorities , including the head of the ROVD and the district military commander , about her son ’s abduction by military servicemen and requested assistance in the search for him . She pointed out that immediately after the abduction her son had been taken to the district military commander ’s office and that the military commander had promised to release him after a check and that DATE the officer had told her that her son had absconded with a gun .

On DATE the first applicant again complained about the abduction to the Prosecutor General . She stated that her son had been abducted by servicemen at the military checkpoint when he had been driving with his CARDINAL cousins in a black CARDINAL car from ORG to PERSON ; that after the abduction her son and his relatives had been taken to the district military commander ’s office and that she and the second applicant had witnessed the abduction . She further provided a description of the ORG vehicles and pointed out that PERSON and Mr GPE had been released DATE after the abduction , and that DATE Mr PERSON had returned his car , which had been taken away by the abductors ; that during the release from detention PERSON had mistakenly been given PERSON registration card ; that the district military commander had promised to her that her son would be released , and that on DATE after the abduction the officer had told her that PERSON had absconded from the military commander ’s office with a gun . The applicant further complained that the investigation had had all the necessary information to identify the perpetrators , but that in spite of that they had failed to take even basic steps . In her opinion , the investigators were trying to cover up her son ’s abduction by military servicemen . Finally , she requested that the Prosecutor General assist her in her search for PERSON .

On DATE the first applicant complained to a number of ORG authorities , including the head of ORG , the NORP Defence Minister and the district prosecutor . She provided a detailed description of her son ’s abduction by federal servicemen and his subsequent detention in the military commander ’s office and the ORG , and complained that the investigation had failed to examine the evidence proving the authorities’ involvement in her son ’s abduction . In addition , she stated that on DATE her son had been seen in a bus next to GPE station in the NORP district of GPE . According to a woman who had spoken with PERSON , he had told her that ORG officers were taking him in the bus to the GPE detention centre in GPE . According to the witness , PERSON looked famished and was very pale . The applicant requested that the authorities establish her son ’s whereabouts and release him from detention .

On CARDINAL occasions DATE and DATE the GPE prosecutor ’s office forwarded the applicants’ complaints to the district prosecutor ’s office .

On CARDINAL occasions DATE and DATE the Prosecutor General ’s office informed the applicants that they had forwarded their complaints to the GPE prosecutor ’s office .

On DATE the first applicant again complained about her son ’s abduction by federal servicemen to the district prosecutor ’s office and requested to be granted victim status in the criminal case . On DATE she was granted victim status in the case .

On DATE the military prosecutor ’s office of ORG informed the first applicant that they had forwarded her complaint about the abduction to the military prosecutor ’s office of military unit no . CARDINAL in GPE , GPE .

On DATE the first applicant requested an update from the investigators on the investigation in the criminal case .

On DATE the GPE prosecutor ’s office informed the first applicant that according to their information received from the GPE detention centre PERSON had never been detained on their LOC .

On DATE the first applicant again complained to the district military commander . She stated that her son and his CARDINAL cousins had been abducted by servicemen from a military checkpoint on the way from PERSON to PERSON ; that after the abduction the men had been taken to the district military commander ’s office , and that she and the second applicant had witnessed the events . She further provided a description of the ORG vehicles and pointed out that PERSON and Mr GPE had been released DATE after the abduction and that DATE Mr PERSON had returned his car which had been taken away by the abductors ; that when being released from detention Mr PERSON had mistakenly been given PERSON registration card ; that the district military commander had promised her that her son would be released , and that on DATE after the abduction the officer had told her that PERSON had absconded with a gun from the military commander ’s office . The applicant further complained that the investigation into the abduction had been ineffective , and requested assistance in her search for her son .

On DATE the first applicant complained to ORG of ORG ( the UGA ) . She provided a detailed description of her son ’s abduction by federal servicemen , his subsequent detention in the military commander ’s office and the PERSON and complained that the investigation had failed to examine the evidence proving the authorities’ involvement in her son ’s abduction . She stated that on DATE her son had been seen in a bus next to GPE station in the NORP district of GPE . According to the woman who had spoken with PERSON , he had told her that the ORG officers were taking him in the bus to the GPE detention centre in GPE . The applicant requested that the authorities establish her son ’s whereabouts and release him from detention .

DATE the applicants were not provided with any information concerning the investigation of the abduction .

On DATE the first applicant wrote to the district prosecutor and complained that the investigation of her son ’s abduction was ineffective . She requested an update on its progress and asked for the proceedings to the resumed . No reply was given by the authorities .

On DATE the district prosecutor , on a complaint by the second applicant , requested that the head of ORG and the district military commander inform him whether they had detained PERSON and if so , where he had been taken afterwards .

On DATE the investigators opened criminal case no . DATE in connection with “ ... the detention of PERSON at the checkpoint located between PERSON and ORG on DATE and his subsequent removal in the direction of ORG ... ”

On DATE the ROVD officially registered the second applicant ’s complaint about the abduction .

On an unspecified date in DATE the investigators questioned the first applicant , who provided a detailed description of her son ’s abduction by servicemen at the military checkpoint and his subsequent removal to the military commander ’s office .

On an unspecified date in DATE the investigators questioned the second applicant , whose statement about the circumstances of the abduction was similar to that made by the first applicant . In addition , he stated that DATE after the abduction he and his brother ( the father of Mr PERSON and Mr GPE ) had spoken with the head of the administration , PERSON Ya . , who had told them that on DATE their sons had been taken away from the checkpoint by servicemen of the PERSON and that later on Mr PERSON and Mr GPE had been transferred to the VOVD , whereas PERSON had allegedly absconded from the military commander ’s office .

DATE . On DATE the investigators questioned the third applicant , who stated that in TIME DATE she had learnt about her husband ’s abduction at the checkpoint , from a man who had arrived at her house .

On an unspecified date in DATE the investigation in the criminal case was suspended for failure to identify the perpetrators .

On DATE the investigators resumed the investigation in the criminal case . The text of the decision included the following :

“ ... on DATE during the crossing of the checkpoint located on the road between PERSON and Urus - Martan Mr PERSON , PERSON and PERSON GPE were detained for an identity check ; after that the men were taken to the LOC military commander ’s office and from there they were transferred to ORG , from where PERSON and Mr DATE were subsequently released , but the whereabouts of PERSON have not been known since ... ”

On DATE the investigators again questioned the second applicant , who stated that his son and his CARDINAL cousins , PERSON and PERSON GPE , had been detained at the checkpoint by the ORG servicemen and that subsequently the detainees had been taken to the military commander ’s office and that later on during the release PERSON had noticed that he had mistakenly been given PERSON registration card . The applicant provided the investigators with a detailed description of the vehicles used to transport the detained men from the checkpoint to the military commander ’s office , and pointed out that on DATE after the abduction the military commander had confirmed to him that the servicemen had detained his relatives at the checkpoint .

On DATE the investigators questioned the second applicant ’s brother , PERSON , who stated that his sons had been detained at the checkpoint together with PERSON .

On DATE the investigators questioned the applicants’ neighbour Mr A.B. , who stated that he had heard that PERSON had been taken away from the checkpoint , and provided a positive character reference for him .

On DATE the investigators suspended the investigation in the criminal case for failure to identify the perpetrators .

On DATE the investigators granted the first applicant victim status in the criminal case but did not question her .

On CARDINAL DATE the investigators again questioned the second applicant ’s brother , PERSON , who confirmed his previous statement .

On DATE the investigators questioned the first applicant , who stated that in DATE she had learnt that PERSON . ORG had been detained with her son PERSON in the GPE detention centre . She had spoken with him and found out that her son had been detained in cell no . CARDINAL and that the guards had given him the nickname “ GPE ” ( Old ) . Mr Akh . I. had identified PERSON in the picture shown to him by the applicant . DATE the applicant had learnt that PERSON . I. had been killed . The applicant also provided the investigators with a detailed description of the circumstances under which a woman named PERSON had met her son PERSON in the bus on his way to the GPE detention centre .

On DATE the investigators questioned the head of the administration , PERSON Ya . , who stated that he did not remember the circumstances of his conversation with the second applicant ( see paragraph CARDINAL above ) .

On DATE the investigators questioned the applicants’ relative PERSON , who stated that on DATE he , his brother PERSON and his cousin PERSON had been detained by servicemen at the checkpoint for an identity check . He and his brother Mr GPE had been put into an armoured LOC vehicle ; he had seen PERSON blindfolded and handcuffed . PERSON had remained at the checkpoint and Mr PERSON and Mr GPE had been driven to ORG . On the way there the brothers had also been blindfolded . TIME the brothers had arrived at the ROVD , where they had been questioned separately about their cousin PERSON . After that they had been put into cells and on DATE questioned about PERSON again . DATE PERSON I.M. had been released , and DATE the witness had been released as well . According to the witness , he had collected his car , which had been taken away from him at the checkpoint , from the district military commander ’s office .

On DATE the investigators questioned the applicants’ relative Mr GPE , whose statement about the abduction was similar to the CARDINAL given by his brother PERSON

The investigation failed to establish the whereabouts of PERSON . The investigating authorities sent requests for information to the competent ORG agencies and took other steps to have the crime resolved . The law - enforcement authorities of GPE had never arrested or detained PERSON on criminal or administrative charges , and therefore did not carry out a criminal investigation in his respect .

According to the Government , at the ORG ’s request they furnished the ORG with copies of the entire contents of the investigation file in criminal case no . DATE amounting to CARDINAL pages .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . On DATE the applicant appealed and reconsideration took place on DATE whereby the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


CASE OF MACKAY AND BBC SCOTLAND v. THE UNITED KINGDOM

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General})

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

On DATE CARDINAL men went on trial in the High Court of Justiciary sitting at GPE on charges of importing and supplying controlled drugs . The proceedings were filmed and relayed through a closed - circuit television system to a remote viewing room in the court building . On DATE , it was discovered that police officers and prosecution staff had been watching the proceedings in the remote viewing room with the risk that defence conversations might have been overheard . When this was brought to the attention of the trial judge on DATE , he took the decision to desert the trial diet simpliciter since he believed that no fair trial could continue before him . This decision had the effect of bringing the prosecution case to an end resulting in the acquittal of the accused . The desertion simpliciter meant that the accused could not be reindicted .

DATE , the trial judge heard argument from counsel for ORG before making an interim order under section CARDINAL(CARDINAL ) of ORG DATE preventing the publication of any report of the proceedings . That order was to become final on DATE unless any interested party applied to the court for its recall ( quashing ) or variation . On DATE , ORG appeared before the trial judge and made representations in respect of the order . The trial judge varied the interim order to the effect that publication of any report of the proceedings was prohibited until the completion of any appeal and any further trial . The varied order was to become final on DATE unless there was another application to recall or further vary it .

The ORG appealed against the decision of the trial judge to desert the trial diet simpliciter . The appeal was scheduled to be heard by ORG of Justiciary ( sitting as an appeal court in GPE ) on DATE .

In advance of the hearing , ORG sent a number of letters to ORG of Justiciary , seeking an opportunity to address the court should an application to prevent publication of any report of the appeal proceedings be made . On DATE , counsel for ORG was told verbally by court officials that no opportunity would be made available for it to make representations in court . A further fax asking for a hearing was sent by ORG DATE . No response was received .

On TIME , ORG of Justiciary , on the unopposed motion of the ORG , made a section CARDINAL(CARDINAL ) order prohibiting the publication of a report of any part of the appeal hearing until completion of the appeal . The applicants , in their observations to this ORG , maintain that their representative attended ORG hearing TIME but was not heard . The order made by ORG was to become final on DATE unless an application was made to recall or vary it . The order was posted on ORG website and circulated to the NORP media .

On TIME , ORG sent another fax to ORG stating that it wished to be heard on the order as soon as possible . ORG were then contacted and advised that a hearing would be fixed but not before DATE . The Government , in their observations to this ORG , maintain that ORG did not challenge that decision . On DATE , ORG sent another fax to ORG advising that a telephone call to their offices would be sufficient to enable them to arrange representation before ORG within TIME . The fax also conveyed ORG understanding that , if ORG dismissed the prosecution 's appeal , then ORG would be heard by the court in respect of the section CARDINAL(CARDINAL ) order .

The Government maintain that ORG did not contest the decision not to hold a hearing before DATE and , because no application had been made to recall or vary the interim order before DATE , the interim order became final on DATE . The applicants maintain that their fax of CARDINAL DATE was intended to be an application to recall or vary the interim order ; as such , the interim order did not become final on DATE .

NORP The prosecution 's appeal was determined on DATE . On the basis of further information provided by the prosecution as to who had been watching the trial proceedings in the remote viewing room , ORG recalled the order of the trial judge and substituted an order for desertion pro loco et tempore , which allowed for the re - indictment of CARDINAL of the original accused .

On DATE , ORG deferred its consideration of ORG application for the recall of the section CARDINAL(CARDINAL ) order made on DATE . On DATE , ORG recalled that order .

Section CARDINAL(CARDINAL ) of the Contempt of Court Act DATE provides that where legal proceedings are held in public , in any such proceedings the court may , where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings , or in any other proceedings pending or imminent , order that the publication of any report of the proceedings , or any part of the proceedings , be postponed for such period as the court thinks necessary for that purpose .

Section CARDINAL of LAW DATE provides that in GPE and GPE , where such an order is made , an aggrieved person may appeal such an order to ORG . The section does not apply to GPE . Instead , following ORG of GPE ruling in PERSON v. H.M. Advocate DATE S.L.T. CARDINAL , where the question was considered obiter dicta , it appears that the practice of NORP courts will be to make interim orders for TIME , to give notice of the interim order to the legal representatives of media organisations and give them the opportunity to address the court on the terms of the interim order . A full copy of any section CARDINAL(CARDINAL ) order is intimated to press and media contacts who are listed with ORG . The names of cases where section CARDINAL(CARDINAL ) orders are in place are available from ORG website .

The concept of nobile officium in NORP law is an extraordinary equitable power vested in , inter alia , ORG of Justiciary . It was described by ORG in PERSON v. HMA DATE ORG CARDINAL as :

“ ... a remedy for any extraordinary or unforeseen occurrence in the course of criminal business in any part of the country ... In short , the principle is , that wherever the interposition of some authority is necessary to the administration of justice , and there exists no other judicature by whom it can competently be exercised , or which has been in use to exercise it , ORG is empowered and bound to exercise its powers [ of nobile officium ] , on the application of the proper party , for the furtherance of justice ”

The procedure is used where there is no other remedy provided for by law . A petition to the nobile officium was brought in ORG


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr A. ORG , a lawyer practising in Rīga .

ORG ( “ the Government ” ) were represented by their Agents , PERSON and subsequently by PERSON .

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

According to the applicant , on DATE four armed persons , alleging that they were police officers , tried to enter his apartment at ORG prospekts CARDINAL in ORG . The applicant refused to open the door , as the persons were not in uniform and were behaving aggressively . After a while they left . They returned within TIME and presented a document summoning the applicant to the police station . The applicant dialled the telephone number indicated on the document and was informed that PERSON DATE the head of CARDINAL of the sections of ORG ( Organizētās noziedzības apkarošanas birojs ) – would like to meet him .

The applicant claimed that when he arrived at the police station on an unspecified DATE ( possibly CARDINAL DATE ) , PERSON brandished his gun and demanded a promissory note , apparently in the applicant ’s possession , entitling him to MONEY ( ORG ) . The applicant refused to hand it over , after which PERSON demanded him to pay USD MONEY instead . The applicant refused to pay .

The applicant alleged that following the incident he received threats and anonymous phone calls .

On DATE the applicant secretly left his apartment at ORG prospekts CARDINAL and moved to another apartment .

On DATE an explosion took place in the stairwell of the ORG prospekts CARDINAL apartment building . GPE , who , according to the Government , was a member of a notorious criminal gang , was injured in the explosion . The Government submitted that the explosion had been CARDINAL of many assassination attempts directed against PERSON , who was eventually assassinated in DATE .

On DATE the applicant left GPE and went to GPE . The ORG submitted that after the expiry of his tourist visa , the applicant applied for asylum there . His asylum request was eventually rejected , and on DATE he was deported back to GPE . The applicant argued that he had travelled to GPE on a “ business visa ” , which was permanent , and that after spending DATE in GPE he had applied for a “ refugee visa ” , which would have allowed him to legally seek employment in GPE . The applicant told ORG during the appeal proceedings in the criminal case against PERSON ( see paragraph CARDINAL below ) that he had left GPE voluntarily and legally .

In the meantime , on DATE another explosion took place in a lift at ORG prospekts CARDINAL . Information given by ORG to ORG on DATE suggested that on that date criminal proceedings concerning both the first and second explosions were pending . The applicant had not been granted any procedural status in those proceedings and had not submitted any statements or claims relating thereto . ORG pointed out that , at the time of both explosions , the applicant had no longer been residing at the address in question .

After the applicant ’s return to GPE he changed his name .

On DATE PERSON was remanded in custody on suspicion of having committed various crimes , none of which was related to the applicant or the alleged incidents of DATE .

On DATE a certain PERSON informed the Security Police that PERSON had committed aggravated extortion . PERSON put himself and the applicant forward as victims of PERSON

On DATE the applicant was questioned by ORG . According to the Government , during the interview he gave information about the alleged incident of DATE but did not make any allegations about any current or past threats to his life .

On DATE PERSON was released on bail and , on the following day , the applicant applied to ORG with a request that PERSON be rearrested or else that the applicant be granted special procedural protection .

On DATE ORG refused to grant special procedural protection to the applicant , since such protection was only afforded to persons who were parties to criminal cases , which the applicant was not .

On an unspecified date PERSON was also charged in connection with the alleged events of DATE and the applicant was officially recognised as having the procedural status of victim . A trial before ORG took place DATE and DATE . During the trial the applicant gave evidence about the events of DATE and DATE that followed . He informed the court that he had complained both in writing and orally to various institutions in this regard . He stated that his life had been under threat and on DATE he had been forced to flee to GPE to avoid PERSON taking revenge on him .

ORG delivered its verdict on DATE . It found PERSON not guilty . When assessing the applicant ’s statements , the court noted , amongst other things , that a forensic psychological and psychiatric report had revealed that the applicant was an “ egocentric with paranoid tendencies ” . However , the applicant had not been found to be suffering from a mental disorder . After having assessed the facts of the case and the available evidence , the court came to the conclusion that they were contradictory and did not support the applicant ’s allegations . The court took into account , inter alia , the fact that the applicant had not travelled to GPE until DATE after the alleged incidents of DATE .

It appears that the applicant was sent a NORP translation of the verdict on DATE . The applicant argued that therefore he could not have complied with the requisite time - limit for lodging an appeal . On DATE and DATE the applicant submitted CARDINAL identical petitions to ORG , complaining that the first - instance court had not mentioned in its verdict that he had submitted a civil claim against PERSON

A prosecutor and the other alleged victim , ORG , had in the meantime submitted their appeals , and appeal proceedings had been initiated in ORG . ORG scheduled the hearings to take place CARDINAL and decided to issue a summons to the applicant .

On DATE , DATE after the completion of the first round of appellate court hearings ( in which the applicant had given evidence and which had lasted for DATE from DATE ) , the applicant sought leave to appeal , which he had apparently not been able to do within the requisite time - limit because he had not been in Rīga . On DATE ORG examined that request and denied his request for leave to appeal . That decision was subsequently upheld by ORG .

On DATE the applicant applied to ORG to be granted special procedural protection because he had allegedly “ been attacked ” on DATE .

The application was communicated to the respondent Government on DATE .

After receiving the applicant ’s request for special procedural protection , ORG requested ORG to verify the applicant ’s allegations and , after receiving a reply , on DATE granted special procedural protection to the applicant .

On DATE ORG delivered its verdict , convicting PERSON of charges in connection with ORG ’s allegations but upholding the first - instance court ’s decision to acquit PERSON with regard to the applicant ’s allegations . In its verdict ORG indicated that the applicant ’s suspicions linking PERSON to the explosions , the armed men near his apartment building and the violent deaths of various individuals were not established by the materials in the case file . ORG agreed with the lower court ’s conclusion that the applicant ’s leaving GPE DATE after the alleged events could not have been linked to the events in connection with which PERSON had been charged .

The Government submitted that on DATE the applicant had requested ORG to lift his special procedural protection . That request was granted DATE . The applicant contended that he had waived his special protection after being prompted to do so by the police officers who had been assigned to guard him .

On DATE the ORG of ORG gave its final verdict in the criminal case against PERSON , in which it dismissed the appeals on points of law lodged by the prosecutor , PERSON and his counsel , the applicant , and PERSON ’s counsel .


No violation of Art. 8;Remainder inadmissible

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

The applicant married PERSON on DATE . On DATE their daughter PERSON was born .

At the petition of the applicant the marriage was dissolved by a final decision of CARDINAL DATE and PERSON was awarded resident parent status . The said judgment did not include contact arrangements for the applicant , as no such request was made .

According to the applicant and to the information available in the case file , in the period following the divorce and until DATE or DATE , he was able to see PERSON without any restrictions . Their relationship was close and affectionate .

During DATE the applicant announced to E. that he was remarrying and that he and his new wife were expecting a new baby girl .

From that point onward , PERSON started refusing to meet him on her own , expressing the wish that her mother also be present during these meetings . The applicant ’s explanation was that PERSON was trying to punish him by preventing him from having contact with his daughter , after she realised that he was starting a new life and that the separation from her was therefore final .

On DATE , the applicant brought an action for the establishment of his rights of contact with the child . He stated that PERSON was not respecting his right to spend time alone with their daughter .

During the proceedings , PERSON indicated that , although the divorce decision did not set out any contact schedule , she had always encouraged PERSON to spend time with her father . Nevertheless , lately she had noticed that the child had a reserved attitude towards meeting her father alone , and the girl had asked her also to be present during those meetings .

A report on the social investigation conducted by social services after carrying out on DATE a home visit to GPE and discussions with both the child and the mother indicated that the mother had not prevented the applicant from visiting the child , but on the contrary she tried to encourage their relationship , given the fact that the girl suffered considerably after her GPE divorce . The report also indicated that the applicant continued to see PERSON

In a judgment of DATE , ORG ( “ the district court ” ) concluded that the applicant had the right to maintain personal relations with the child in the absence of GPE , as , on the basis of the evidence adduced , it could not be concluded that such a visiting schedule would be contrary to PERSON ’s interests . The court noted further that with wisdom , tact and affection the new reality could be explained to the child and she had to be helped to accept the existing situation .

The court established that the applicant could spend time with PERSON at his home TIME DATE TIME , and every other alternating DATE TIME , as well as for DATE during DATE , CARDINAL of the DATE and DATE and on DATE , New Year ’s Eve and GPE celebrations .

The judgment became final , as no appeal was lodged .

On DATE , the applicant lodged a criminal complaint against GPE , alleging that she had not complied with the final judgment of CARDINAL DATE , which defined his contact rights with E.

During DATE , the investigating authorities took statements from the proposed witnesses and the mother . The child also gave a statement on DATE , stating that she did not want to see her father and that her mother allowed her to meet him but she did not want to .

On DATE , the prosecutor decided not to pursue PERSON criminally , considering that the non - compliance with the said judgment could not be imputed to her , but to the child ’s refusal .

The applicant lodged a judicial complaint against the prosecutor ’s decision . By a first - instance judgment of DATE the GPE ORG referred the case back to the prosecutor for the investigation to be continued . The court considered that , given her age , the girl did not have a full understanding of her refusal to meet her father and under these circumstances , it was expected that it was PERSON ’s duty to inculcate in her a positive attitude towards the father and that the prosecutor had ignored statements by PERSON in which she admitted that she had agreed to allow the father to visit the girl only in her presence . The court also considered that it was necessary to prepare a psychological expert report ( “ expertiză psihologică ” ) in order to identify the real cause of the girl ’s refusal to meet her father .

The file was sent back to the prosecutor . PERSON and CARDINAL witness indicated by the applicant were heard again . The mother declared again that she was not preventing the child from having contact with the father , but the child was afraid of him and did not want to meet him . The witness said that on CARDINAL occasion she had met the CARDINAL of them and PERSON had refused to join her father , pleading with PERSON not to go away .

E. gave further statements , on DATE and DATE , stating that she refused to have contact with the applicant because he had threatened on several occasions that he would hurt her mother if she refused to do so .

The investigating authorities asked for a psychological assessment ( “ evaluare psihologică ” ) to be prepared . The assessment , carried out by social services on CARDINAL DATE , indicated that the child was suffering from anxiety and sleep problems and that she needed to be in a harmonious environment , avoiding situations that could stress her .

No psychological expert report could be prepared , as several institutions summoned to carry out such a report declared that it was not within their responsibilities .

In a decision of CARDINAL DATE , the prosecutor decided not to pursue criminal proceedings against GPE because she did not intend to prevent the applicant from having a personal relationship with the child . It further held that it was not necessary to conduct a psychological expert report , taking into account that such a report could not establish with certainty whether PERSON was in bad faith on this matter .

The applicant was notified of the decision only at DATE , and he lodged a judicial complaint against it .

NORP In a first - instance judgment of DATE ORG dismissed the complaint . The court noted that the prosecutor heard the witnesses indicated by the parties again and that a psychological expert report would not have been conclusive for the outcome of the case . The child had many times expressly stated in front of the investigating authorities and social workers that she did not want to see her father . The same state of affairs had been confirmed by her teacher and by the neighbour taking care of her . None of the evidence indicated that the child wanted to see her father and PERSON was preventing her .

The court further held that the father ’s expectation that the child should understand that state authority prevails over parental authority was exaggerated ; the child only understood his intention to harm her mother , hence her reaction ; PERSON ’s failure to attend some of the meetings with the social workers needed to be assessed in a general context , and taking into account that this attitude had been shown only after a number of meetings with social workers , conducted at their home .

The court concluded that the decision not to pursue PERSON criminally did not amount to an incentive not to comply with the final judgment defining the applicant ’s contact rights with the child ; this decision was the result of the conclusion that the conditions required to attract criminal liability had not been met . The applicant could pursue the forced enforcement of the said judgment , according to the procedure regulated by LAW ; but regard must be had to the fact that only a responsible attitude on the part of the parents and of the experts to whom the parents have turned could lead to a normalisation of the father - child relations .

ORG , in a final decision of DATE , allowed an appeal by the applicant against this judgment , holding that the prosecutors should have listened to other witnesses and should have conducted a psychological expert report .

The case was again referred back to the investigating authorities .

The child was assessed psychologically by the psychologists of ORG during DATE . The conclusions of the report are presented in paragraph CARDINAL below .

The applicant , PERSON and PERSON made statements before the prosecutor on different dates in DATE .

The main elements of the girl ’s statement were the following :

a ) for a while , until DATE , she had a good relationship with her father . Then he started visiting her at school and sending letters asking her not to tell GPE about it ; she felt uncomfortable as she did not have any secrets from her mother ;

b ) because of the letters she started fearing that he had something to hide , and this was why she wanted her mother to be present too ; she spoke DATE with him on the phone , she did not understand why he had to send her letters ;

c ) her father used to call her on the phone to tell her that he would hurt GPE badly ; he kept her for TIME on the phone to tell her this ; she started having nightmares and dreaming about her mother ’s grave ;

d ) at DATE , he took her by force and pushed her into his car . She was very upset . He did not even call to announce that he was coming . Her opinion did not matter to him ;

e ) maybe in his own way he loved her ; but she did not like it that he had something against GPE ; he acted as if he intentionally wanted to harm her . If he loved her , he would not do so . This was her reproach to him . She told him this several times and he told her that he could not do anything about it , but he had to lodge judicial actions . She did not understand it ;

f ) since DATE she had not wanted to see him at all . He did not call her for DATE , after which he appeared at their door with the bailiff and several policemen . She started shaking when she saw so many policemen ;

g ) she would like her father to stop all his complaints against her mother ;

h ) she still cared for her father , but only a little now . There were things that disturbed her about him . She did not have the feeling that he tried to make any effort to make things better ;

i ) she went several times to the child protection authorities . The people there were nice , but she did not like going there . Her classmates who had divorced parents did not have to go there ; it was difficult for her to tell them why she was upset , because they were like foreigners to her .

By a decision of CARDINAL DATE , the prosecutor terminated the criminal proceedings against GPE , concluding that she was not obstructing the enforcement of the judgment defining the applicant ’s visiting rights .

In respect of the indications given by ORG in its decision of CARDINAL DATE , the prosecutor noted that the applicant had been asked to suggest other witnesses who would support his allegations . However , he did not produce such witnesses , stating that “ [ he ] had lost [ his ] trust in this prosecution unit and therefore , [ he ] refused to produce these witnesses . [ He ] reserved the right to indicate their name when [ he ] considered the moment to be opportune . ”

As regards the indication to conduct a psychological expert report , the prosecutor noted that ORG had responsibility to conduct only psychiatric expert reports , which was not the type of report needed in the instant case . The prosecutor nevertheless relied on the conclusions of the psychological assessment carried out by social services .

The prosecutor further took note of the applicant ’s statements according to which “ it was the mother ’s duty to comply with the visiting programme . If she had not been able to influence the child in the direction set by the court ( ... ) , she had to pay for it ” . The prosecutor indicated that the crime punished by LAW implied an action from the side of the accused ; or the factors for which the applicant held GPE responsible were actually a lack of action , namely that she failed to inspire in the girl positive feelings towards him .

In other statements taken into account by the prosecutor in his decision , the applicant declared that he did not see any harm in the fact that a child needed to be aware that state authority was above GPE authority and that even if a harsh law might frighten a child , that law should be obeyed . The applicant considered that it was not in the best interest of the child to take her moods into account . A child needed to learn that he or she had responsibilities too . The fact of taking a child away with him , even by force , did not mean that he was torturing the child .

As regards PERSON ’s refusal to attend some of the psychological counselling sessions , the prosecutor underlined that this obligation had not been set by the final judgment defining the applicant ’s contact rights . The prosecutor then analysed whether this absence showed PERSON to be in bad faith . The prosecutor relied on the child ’s statements according to which she did not like to go to the social assistance office . He considered that one could not expect a parent to remain indifferent to a child ’s attitude towards these meetings , and that this was the reason why PERSON had refused to attend some of the meetings with social workers .

The applicant ’s complaint against the prosecutor ’s decision was dismissed by a first - instance judgment of CARDINAL DATE . This judgment was upheld by ORG , in a final decision of DATE . The county court explained that the crime under LAW implied acts by a person who had resident status with a child aimed at preventing the other parent from maintaining a personal relationship with the child . But in the instant case GPE had not taken such actions ; she had only expressed her disagreement with forcing the child to do something she did not want to do . No elements indicated that PERSON was the one who had induced the negative feelings in the child . It was also concluded that no other psychological report was needed , in the light of the reports already conducted and relied upon by the prosecutor and the first - instance court .

During DATE the applicant lodged several requests for assistance from social services , indicating that he still had problems in communicating with his daughter , who was refusing to meet him . He held that this was due to the pressure exerted on the child by GPE

A social worker visited the mother and the child at their home on CARDINAL May and DATE . On both occasions , they noted that the CARDINAL had a strong and affectionate relationship . The child declared she did not love her father and she was afraid of him ; the mother undertook to enrol PERSON on a counselling programme . Further interviews were conducted by social services with the neighbour who sometimes took care of TIME until PERSON returned from work , and with her school teacher . Both indicated that PERSON had previously had a good relationship with her father , but that recently she had refused to see him any more . According to these statements , PERSON refused to meet or talk to her father even when she was alone , without her mother around . The school teacher indicated that the father had visited PERSON several times at the school .

On DATE , a written notification was sent to GPE recommending her to enrol PERSON on a counselling programme .

From the information available in the case file , it appears that the girl was enrolled on a counselling programme with a psychologist from an unspecified date during DATE .

Following a new request from the applicant , by a letter of CARDINAL DATE social services informed him of the steps taken and confirming that they would continue to monitor the situation of the child in DATE .

The applicant made renewed requests for assistance , indicating that he was willing to do anything possible to help restore the psychological balance of the child .

M.S and PERSON were invited for a meeting with social services on DATE . The report drawn up on that occasion indicated again that PERSON did not want to meet her father , that she did not trust him any more and that she feared that he had tried to hurt her mother . The social worker proposed a trilateral meeting , but PERSON refused this proposal , after seeing that PERSON did not agree with it .

PERSON informed the social worker that PERSON visited a psychologist DATE .

On DATE , PERSON gave a new statement to social services , reiterating the same elements . She also mentioned that she had insisted that PERSON go to the birthday party of her paternal grandfather , who was ill . Since then , the girl had seen her father once , when he came to bring her a birthday gift , but she had refused to leave with him .

The mother indicated that all these events in the life of her daughter had created in her a feeling of fear , and that she had therefore enrolled the girl in a counselling programme , which she attended DATE .

A new social investigation report was prepared on DATE , following a home visit and discussions between the social worker and PERSON and the mother . The report concluded that PERSON was still refusing to meet her father and she was not prepared to meet him . The child believed that her relationship with the applicant would have been better if he had not tried to hurt her mother by making all “ his complaints to the courts , the police and threats ” ; the mother reiterated that she was not preventing her daughter from having a personal relationship with her father , but that she did not want to force her to meet him against her will .

During a visit to the child ’s home on DATE , the social worker obtained the mother ’s approval for more frequent meetings at their home . The mother refused to have meetings at their headquarters .

The social worker made a new home visit on DATE . She talked with the child about the relation between the child and the father , PERSON repeating that she did not wish to see him and that she would like to be left alone .

On DATE , PERSON and PERSON went to social services and they discussed the counselling programme in which PERSON was enrolled within ORG ; the girl refused the proposal to meet the applicant at their offices .

DATE . On DATE , the psychologist in charge of E ’s case prepared a psychological assessment ( “ evaluare psihologică ” ) . The test concluded that the girl presented certain disorders of a neurotic character ( reactive to stress ) . It recommended psychotherapy and a harmonious emotional climate , by avoiding stress and situations that may cause psychological trauma .

By a letter of CARDINAL DATE the applicant was informed that the social worker had come to the conclusion that it was the child ’s own decision not to meet him and that their attempts to set up a meeting at their office between him and the child had failed because of a very vehement refusal from PERSON ’s side .

The applicant lodged several complaints with the social services office and with the superiors of the social worker in charge of the case , expressing the concern that the case had not been handled properly .

Following the applicant ’s renewed complaints , social services proceeded to request PERSON to present herself at their office for further discussions . PERSON did not attend the proposed meetings .

During DATE , PERSON was invited several times to attend meetings with the social worker in charge of the case . She did not attend these meetings .

On DATE , ORG invited ORG ( formerly ORG , hereinafter “ GPE ” ) , to submit a copy of their file on the case , as well as to state whether they had experts who could conduct psychological expert reports ( “ expertiză psihologică ” ) on minors .

By a letter of CARDINAL DATE , GPE informed the district court of their activities in respect of PERSON and that they had employees who were psychologists whose responsibilities included the psychological assessment and counselling of children .

The county court then asked ORG to specify whether their experts could determine with certainty whether the rejection of CARDINAL parent by a child is due to influence exerted by the parent who is resident with the child . ORG informed the county court that their experts were of the opinion that it was not possible to determine with certainty the influence exerted by the parent with residence in respect of a child ’s attitude towards the other parent .

On DATE , the social worker in charge of the case file closed it , noting that the mother held that she did not oppose the child having a relationship with her father , but that the child was continuing to refuse to meet him and that after several complaints addressed to different public authorities the father had stopped contacting social services .

On DATE the applicant again contacted social services , complaining that the situation had worsened . He asked them to reopen the case . Letters were sent to GPE on several occasions inviting her to meetings to discuss the situation of the child . PERSON did not reply to the invitations , although a few times she telephoned them to notify them that she would not be able to attend the meetings , either due to her work schedule or to illness .

On DATE the social worker talked to the maternal grandfather , who declared that the applicant saw PERSON often and they went out together for walks . On DATE the social worker had a telephone conversation with PERSON , who informed her that PERSON had spent the first part of DATE with her father .

On DATE GPE and PERSON visited the office of GPE . On that occasion , PERSON gave another written statement in front of CARDINAL social assistants , declaring that she did not want to meet her father , that she did not like the way he had behaved towards her during DATE , when she had had to spend DATE with him and he had threatened to harm her mother if she did not agree to go with him .

On DATE , at the request of the prosecutor investigating the case against GPE , GPE issued a report on the case . The report showed that the applicant had lodged a criminal complaint against GPE , which strengthened the feelings of rejection shown by his daughter . In respect of PERSON the report concluded that at the beginning she had cooperated well with them , but that lately her attitude had changed and she was not responding to their requests for meetings .

From the information submitted by the applicant it appears that during DATE PERSON was subjected again to a psychological evaluation by experts from social services . The assessment report was prepared on DATE , after CARDINAL meetings with the child .

NORP The report noted that the child was tense during these meetings . In respect of her relationship with her parents , the report concluded that her relationship with her mother had an emotional basis , PERSON perceiving her mother as a supporting element , while she was ambivalent in her relationship with the applicant . The girl showed a strongly negative attitude towards paternity , the report concluding that the basis of the child - father relationship was insufficiently structured and consolidated . The current situation had triggered the development of a latent aggressiveness , the child being “ overloaded ” with problems specific to her parents .

The conclusions of the report were as follows : there was a need to ensure an emotional basis which would support the development of the child ’s personality . It was necessary for the parents ( especially the father ) to respect the child ’s rhythm and adapt to its specific characteristics so that the child could internalise according to her own feelings both her relationship with her parents and the situation she was facing . This could allow an adequate and balanced integration of the maternal and paternal sides of the girl ’s life . The report further recommended psychological counselling for the child , as well as for the parents , in order for the latter to understand and assume their roles as parents . It was recommended that a stable environment be ensured for her , in order to avoid exposing the girl to situations that could generate inner conflicts and have a negative impact on her psychological state .

The mother , informed of the conclusions of the report , indicated that she would enrol PERSON again in a counselling programme , with a psychologist the girl knew from before and was comfortable with .

A note prepared by social services on DATE showed that the relations between PERSON and the father remained tense , the father having lodged a new judicial action to obtain residence rights in respect of the child , despite the fact that she wanted to stay with her mother .

During DATE , GPE and the child were again invited to social services to discuss their case further . PERSON declared that she was aware that her father had the right to see her , but she did not want to see him , because she did not feel good in his presence . She said that when they met he brought along various people to act as witnesses . One day , in front of her mother and a friend of his father , the applicant took her by force and put her in his car . Her father called her almost daily and they could not have a normal conversation because he did not listen to her and told her she was not right .

On DATE the applicant made a request to the bailiff for the enforcement of the judgment setting out his contact rights . He asked for the necessary actions to be taken so that he could spend DATE with PERSON , starting from on DATE .

DATE . On DATE ORG authorised the request to proceed with the enforcement on a non - working day , a DATE , with a view to taking the child away for DATE .

On DATE the bailiff , in the presence of GPE , the applicant and the child , drew up a report noting that she could not proceed with the enforcement , as PERSON refused to join her father .

On DATE the applicant made a new request for the bailiff to continue with the enforcement . The bailiff refused to take further action , noting that the first request concerned DATE , which were already over . The bailiff also considered that the applicant had actually disputed the note prepared on DATE because he judged that PERSON ’s refusal to join him did not constitute an obstacle to the enforcement and that if she tried to resist “ she could be forced , obviously not by slapping or ill - treatment , but by being firmly taken by the hand by the bailiff or by the policemen and then passed over to the father ” ; “ [ the father ] in principle could be waiting at home and the child be brought to [ him ] ” .

The applicant lodged a judicial complaint against the bailiff , asking that the note of DATE be declared void . The complaint was dismissed by a final decision of ORG on DATE , with the reasoning that in his initial request of DATE the applicant had limited his enforcement request to the DATE holidays and that that request had been dealt with by the document of CARDINAL DATE .

The applicant lodged a new request for enforcement with the bailiff in respect of DATE . The bailiff lodged a request with the court for the enforcement to be authorised . A summons was sent to GPE on DATE . The latter replied on DATE , indicating that PERSON would be starting school on DATE and the holidays were already over . Moreover , she indicated that PERSON , DATE at the time and with the ability to make her own decisions , was still refusing to meet him .

On DATE , GPE and PERSON visited the bailiff ’s office . PERSON declared that she wanted her father to stop spoiling her peace of mind with his complaints and legal actions . She wanted to clarify all misunderstandings , as well as to define their future relations . In this respect she wanted to have these discussions with him at the bailiff ’s office , in the presence of the bailiff , a lawyer and her mother . It was agreed that PERSON would propose a date for this discussion , to be communicated well in advance to the applicant too .

By a letter of CARDINAL DATE the bailiff informed the applicant that PERSON was proposing a meeting on DATE .

On DATE , the applicant emailed the bailiff , indicating that he could not accept the proposed meeting , because accepting PERSON ’s invitation would mean teaching her that her moods were superior to her legal obligations , especially in a vital issue such as relations with a parent .

DATE . According to the report drawn up by the bailiff on DATE , PERSON declared that she was disappointed that her father had not come and that he considered her request to meet him a sign of disrespect . She further stated that she did not understand why her father had lodged numerous complaints with the police , the bailiff , the prosecutor and social services , when no one had ever been opposed to her having a personal relationship with him , especially given the fact that they communicated very often by telephone . She declared that she was aware that her father had the legal right to visit her , but at the same time she also had the same right to visit him when she wanted to , without being forced against her will to exert this right . She further stated that the applicant had said to her that she did not have the right to choose whether she wanted to be with him or not , because he was the one who had to decide and she had to listen to him .

On DATE , GPE lodged a civil action on behalf of PERSON to have the applicant ’s contact rights redefined in the sense that PERSON would have the freedom to choose the dates and means of maintaining the personal links with her father . PERSON indicated that the girl started to fear that she would be taken by force against her will and had asked her to do everything possible to avoid such disturbing events and make sure that her right to meet her father when she wanted and when she needed it was officially recognised . Hence the civil action lodged by GPE

A report on the psychological assessment of the child indicated that PERSON was suffering from slight emotional immaturity , shyness and social introversion , and was afraid of being separated from her mother . She presented feelings of fear in respect of the father , hostility and aggressiveness . The cause of these feelings proved to be her emotional identification with the mother but also the methods chosen by her father to enforce his contact rights with her .

In a decision of DATE , the county court considered that it was its duty to establish a balance between the necessity to pursue the best interest of the child against the right of the divorced parent who did not have residence rights to maintain personal relations with the child . It then considered that the girl ’s wishes could not represent the only criteria to be taken into account when deciding on the specific way of maintaining personal links between the parent and the child . Therefore it concluded that there was no need to modify the contact schedule .

No information is available in the case file as to whether this decision was appealed against .

The initial quantum of the child support to be paid by the applicant to the child was set out in the divorce decision of DATE . Since then GPE asked twice for an increase in the amount , in proportion to the increase in the applicant ’s income . Her first request was allowed by a final decision of ORG of DATE .

The second action was allowed in a first - instance judgment of DATE . The GPE ORG increased child support from CARDINAL NORP lei ( PERSON ) , MONEY ( ORG ) , to ORG CARDINAL ( approximately EUR CARDINAL ) .

The applicant lodged an appeal on points of law , arguing that a child could not have higher needs than the equivalent of the minimum salary per economy ( RON CARDINAL , approximately ORG CARDINAL ) and it had not been proven what needs were meant to be covered by this increase . He held that the fact that the mother had interfered with the child ’s compliance with his right of contact meant that he had no guarantees that the child support would be spent in the best interest of the child . There were no guarantees that the mother , in order to satisfy the momentary wishes of the child and to keep the child on her side , would not use the money to buy heroin to the girl .

By a final decision of DATE , ORG dismissed the appeal , by showing that LAW provided that the level of child support was determined according to the financial means of the debtor and that the obligation to pay child support and the obligation of the mother to comply with his contact rights were independent of each other .

From the information submitted by the applicant , it appears that he lodged a separate civil action in order to obtain residence rights in respect of E. No information is available as to the final outcome of these proceedings .

The applicant also lodged various civil and criminal complaints against the prosecutors investigating his complaint against ORG and against the lawyer representing her in the different proceedings , accusing counsel of inciting PERSON to show disrespect to the final judgment of DATE .

The relevant provisions of LAW and of LAW are stated in the ORG ’s judgment in the case of GPE v. GPE , ( no . CARDINAL , § § DATE and CARDINAL , DATE ) . The role and responsibilities of the local public authorities for social assistance and child protection as well as the relevant provisions of Law no CARDINAL/CARDINAL on child protection are described in the judgment PERSON , ( no . CARDINAL , § DATE and DATE , CARDINAL DATE ) .

Article CARDINAL of the Criminal Code provides :

“ It shall be an offence punishable by CARDINAL to CARDINAL months’ imprisonment or a fine for CARDINAL of the parents of an under - age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child .

The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents CARDINAL of the parents from having personal relations with an under - age child on the terms agreed by the parties or laid down by the appropriate body .

Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim .

No criminal liability shall be incurred where there has been reconciliation between the parties . ”

Article CARDINAL § QUANTITY of the Law no . CARDINAL provides that a child who has attained a degree of maturity has the right to express his / her opinion freely on any matter concerning him / her . Paragraph CARDINAL of the same article provides that a child who has attained the age of ten must be listened to in any judicial or administrative procedure concerning him or her . Paragraph CARDINAL provides that the child ’s opinions shall be taken into account and relied upon to the necessary extent , depending also on the age and maturity of the child .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , ORG , ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows’ benefits was made in DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON and Mr PERSON , lawyers practising in GPE and GPE , respectively .

The applicant is a military officer of the NORP PERSON holding the rank of a Lieutenant Colonel ( Oberstleutnant ) .

On DATE the applicant published an article in the journal “ PERSON ” . “ PERSON ” is a journal for politics , culture and economy which is published bi - DATE with a print run of CARDINAL copies per issue . It is available in selected bookshops , by subscription and on the internet . The article was titled “ Spirit or evil spirit of the general officers ” ( “ Geist oder ORG der ORG ” ) and criticised the process of coming to terms with the army 's past and the NORP generals ' role in the GPE conflict .

Extracts of the article read as follows :

“ It can be ruled out that the general officers , for reasons of intellectual deficiency , could not realise what was going on . ( ... ) As stupidity can thus be ruled out , only the second alternative remains as an explanation , which is : opportunism , cowardice , unscrupulousness . ( ... )

If the NORP generals had just CARDINAL spark of sense of honour , justice and morals , the Inspector General and the generals of the different services would have refused to obey ORG orders which breached international law and were unconstitutional . ”

The journal mentioned the applicant 's military rank with the addition that the article exclusively contained the author 's personal views .

On DATE the applicant 's supervising officer imposed a disciplinary fine of CARDINAL on the applicant for having published statements which were suited to debase his superior generals in a defamatory way .

On DATE the applicant 's disciplinary appeal was rejected .

On DATE ORG ( Truppendienstgericht Süd ) rejected the applicant 's further appeal . That court considered that the applicant had the right publicly to express his opinion even in an exaggerated and polemic way . However , this right had to cede if the statement infringed on another person 's human dignity . ORG found that the applicant 's statements did not fall within the ambit of the right to freedom of expression ( LAW , see “ relevant domestic law ” , below ) , because they infringed on the concerned generals ' human dignity . It followed that the applicant had disrespected his duties to exercise self - restraint , to respect the dignity , the honour and the rights of his comrades , to maintain discipline and to respect his superiors ' rank even when off duty ( Articles QUANTITY and DATE , DATE ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of LAW ORG ( GPE ) , see “ relevant domestic law ” , below ) .

On DATE ORG refused to accept the applicant 's constitutional complaint for adjudication for lack of prospect of success . Contrary to ORG finding , ORG did not consider that the impugned statements infringed on the concerned generals ' human dignity ; neither did they amount to abusive insult ( Schmähkritik ) . The right to freedom of expression protected value judgment and statements of facts as a prerequisite to form one 's opinion . The statements made by the applicant were an expression of opinion which clearly fell within the ambit of that right .

It followed that the courts had to balance the competing interests in the light of the aim pursued by the relevant provisions of LAW , which was to preserve the proper functioning of the GPE . This aim had to be preserved by the military officers both in their professional and in their private conduct . The functioning of the LOC could be jeopardised by private statements which were suited to demoralise and undermine discipline within the army . Under these circumstances , the right to freedom of expression had to cede . According to ORG , ORG had respected these principles when applying the relevant provisions of LAW . ORG had assumed that the applicant had violated his duty to exercise self - restraint with regard to the impugned statements . This could lead to undermining the applicant 's own authority and put into question his loyalty . The applicant 's statements , in which he denied the generals any sense of honour , justice and morals , were suited to debase the generals and to expose them to derision . This could jeopardise military cooperation , mutual trust and the readiness to stand by one another . Furthermore , the applicant had breached his legal obligation to preserve his superiors ' authority , as the terms employed exceeded any form of rational criticism . To preserve the superiors ' authority was necessary for the ORG 's internal order . ORG considered that this weighing of interests was not objectionable from a constitutional point of view . There was no doubt that the manner the applicant chose for expressing his opinion , in particular the personal attacks , was suited severely to disturb the Bundeswehr 's functioning . It did not violate the right to freedom of expression if such behaviour was not permitted , but was treated as a disciplinary offence .

This decision was served on the applicant 's counsel on DATE .

LAW ) , insofar as relevant , reads as follows :

“ ( CARDINAL ) Every person shall have the right freely to express and disseminate his opinions in speech , writing , and pictures and to inform himself without hindrance from generally accessible sources . Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed . There shall be no censorship .

( CARDINAL ) These rights shall find their limits in the provisions of general laws , in provisions for the protection of young persons , and in the right to personal honour .

Article CARDINALa of LAW provides :

Article CARDINALa [ Restriction of certain basic rights by laws respecting defence and alternative service ]

“ ( CARDINAL ) Laws respecting military and alternative service may provide that the basic right of members of ORG and of alternative service freely to express and disseminate their opinions in speech , writing , and pictures ( first clause of paragraph ( CARDINAL ) of LAW ) ... be restricted during their period of military or alternative service . ”

The relevant provisions of LAW GPE ) read as follows :

Article CARDINAL ( duties of a superior )

“ ( CARDINAL ) The superior shall serve as an example both in his actions and in the performance of his duties .

( CARDINAL ) When making statements on or off duty , officers have the duty to exercise self - restraint in order to maintain confidence in their position as a superior . ”

Article CARDINAL ( camaraderie )

“ The ORG 's unity considerably depends on camaraderie . It obliges all soldiers to respect their comrades ' dignity , honour and rights and to stand by them in case of danger and need . This includes mutual respect and the acceptance of other opinions . ”

DATE ( behaviour on and off duty )

“ ( CARDINAL ) The soldier has the duty to maintain discipline and to respect his superior 's position both on and off duty .

( CARDINAL ) His conduct has to comply with the ORG 's reputation and with the respect and confidence necessary for the service as a soldier . When off duty , the soldier has to behave outside the army accommodations and LOC in a way that does not seriously impair the ORG 's reputation and the confidence which is necessary for his official standing . ”

DATE ( disciplinary offence )

“ ( CARDINAL ) A soldier who intentionally breaches his duties commits a disciplinary offence . ”