Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving some brief particulars ; for the remaining details , reference should be made to paragraphs CARDINAL of the ORG ’s judgment of CARDINAL DATE ( ibid . , pp . DATE ) .

That judgment concerned the length of actions brought by Dr. PERSON before ORG in DATE and in DATE to challenge , respectively , the withdrawal of the permit to run his clinic and the withdrawal of the authorisation to practise medicine .

In the second matter , ORG had dismissed the applicant ’s action by a judgment delivered on DATE which had been affirmed by ORG on DATE . Dr. PERSON lodged an appeal ( NORP ) and an application to quash ( Revision ) but these were rejected by ORG ) , in CARDINAL final decisions , on DATE and DATE .

In the case concerning the clinic , ORG had dismissed Dr. PERSON ’s action on DATE . An appeal by him against that decision is still pending before ORG which , with the agreement of the parties , stayed the proceedings on DATE pending the outcome of the above - mentioned proceedings before ORG .

After delivery of the ORG ’s judgment of CARDINAL DATE , the ORG and the applicant attempted , with the ORG ’s assistance , to arrive at a friendly settlement of the latter ’s claims , details whereof had been given by Mr. PERSON in his letter of DATE ( see paragraph CARDINAL above ) . The attempt met with failure in DATE : Dr. PERSON found that the ORG ’s offer of DM CARDINAL in full and final settlement was not sufficient .

The applicant seeks pecuniary compensation for the CARDINAL heads of damage allegedly caused to him by the violation of Article CARDINAL par . CARDINAL ( article DATE ) : he maintains that his financial and professional situation may have been permanently ruined and , secondly , that his personal and professional reputation had been indirectly lowered . Without quantifying his claims , he furnishes certain particulars DATE regarding notably the average annual income he could have anticipated as a medical practitioner and as the head of a clinic - on the basis of which he considers it possible to gauge the extent of his aggregate loss and to assess the fraction thereof attributable to the fact that the " reasonable time " was exceeded . In addition , the applicant asks for reimbursement of the expenses he incurred both in GPE , in order to expedite the hearing of his actions , and before the Convention institutions .

Dr. PERSON leaves the assessment of the sum to be awarded to him to the ORG ’s discretion , thereby confirming the position he had adopted in DATE ( Series A no . CARDINAL , p. CARDINAL , par . CARDINAL ) .

In their observations of DATE ( see paragraph CARDINAL above ) , ORG stated that they did not wish to comment on the first of the applicant ’s claims which they saw as being concerned with the consequences of the CARDINAL withdrawals of authorisation ; at the hearing , they submitted that in their opinion the attribution of specific material losses to the breach found by the ORG was impossible , at least on the strength of the evidence before it . On the other hand , the Delegates suggest that account should be taken of the fact that the applicant was left in a prolonged state of uncertainty as to his professional future , and this at a time of life - between the ages of forty - nine ( in DATE ) and CARDINAL ( in DATE ) - when a man is normally at the peak of his career . They also consider that the breach of LAW . CARDINAL ( article DATE ) , taken by itself , may be another factor having a bearing on an award of just satisfaction .

As far as concerns the costs of the proceedings , the expenditure incurred by Dr. PERSON in order to expedite the domestic litigation and to present his case in GPE is regarded by the Delegates as a relevant item . They express no firm view as to whether the same applies to the expenditure arising from his applications to the NORP courts for restoration of the suspensive effect of his appeal against the withdrawal of the authorisation to practise ; in their opinion , those applications were aimed not at speeding up the proceedings but at limiting the consequences of their excessive length . Neither do the Delegates comment on the justification for the figures given by the applicant .

The ORG ’s position is as follows : there is no causal link between the breach found by the ORG and the alleged damage to Dr. PERSON ’s professional career ; on the other hand , " reasonable " , " necessary " and proven costs resulting from the exercise of the domestic legal remedies can give rise to compensation to the extent that those remedies were aimed at accelerating the procedure ; furthermore , the " reasonable costs " incurred in connection with the proceedings before the Convention institutions should be reimbursed ; finally , it is for the ORG to determine whether the applicant should be awarded monetary compensation for the " non - material " injury he suffered by reason of the mere fact that the " reasonable time " was exceeded .


The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by ORG , a firm of solicitors practising in GPE , GPE . The respondent Government are represented by their Agent , Mr NORP PERSON , ORG , GPE .

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

On DATE the applicant was arrested on suspicion of being involved in a conspiracy to manufacture a controlled drug ( amphetamine sulphate ) . He co - operated with the police during interview , answering the questions put to him .

The applicant told the police during interview that he had been working with a co - conspirator , PERSON , on the production of a drug and had been aware that PERSON was a police informant . The applicant admitted that , at ORG instigation , he had procured some of the ingredients ( ORG ) for the production of the drug . However , his intention all along had been to persuade others to become involved in the project and that he had acted with PERSON ’s knowledge and , as he believed , with the knowledge and approval of the police operating in the framework of a broader police entrapment operation aimed at netting , amongst others , PERSON .

The applicant , along with ORG and another co - defendant , PERSON , was tried before a jury at ORG from CARDINAL DATE to DATE . The charge against the applicant related to the production of a controlled drug contrary to section CARDINAL ) of LAW DATE .

The applicant ’s and his co - accused ’s lawyers were notified before the start of the trial that the prosecution would be making an ex parte Public Interest Immunity ( “ ORG ” ) application . No indication was given of the categories of materials to be incorporated in the application . However , the applicant acknowledges that his lawyers were informed in the case summary received from the prosecution that “ one matter ” which would be raised with the judge would be the position in respect of PERSON ’s full “ profile ” .

The defence lawyers were subsequently informed that the ORG hearing had been fixed for DATE before His Honour Judge PERSON . At that hearing , the judge ruled in favour of the prosecution . However , he stated that a schedule of information given by PERSON had to be served on PERSON ’s lawyers and that consideration ought to be given to disclosure to the applicant and the other co - accused . The prosecution sent a schedule of ORG activities as an informant to PERSON ’s lawyers with a request that they comment on why the schedule should not be disclosed to the lawyers of the other co - accused . PERSON ’s lawyers objected to disclosure to his co - accused .

According to the applicant , his lawyers were aware that the trial judge granted ORG in respect of at least “ one matter ” DATE , but can not confirm whether a ORG order was sought or made in respect of other materials .

The schedule was produced at the trial by ORG lawyers , without objection from any party . According to the ORG , the bulk of the source documentation from which the schedule was prepared was disclosed during the trial , some of it in edited form with the approval of the trial judge .

There was a further ex parte hearing during the course of the trial , following an application for disclosure by ORG counsel . The prosecution declined to state the category of material raised during the hearing . The judge approved the prosecution ’s ORG claim for the material in question .

The essence of the prosecution ’s case was that the applicant had been intimately involved in the preparation of false documents for the purchase on behalf of ORG ( “ L&W ” ) of a range of chemicals used in the manufacture of amphetamine sulphate including ORG . The documents had been prepared with the knowledge of PERSON , who was a police informant and , at the relevant time , in GPE prison along with the applicant and PERSON . L&W was not a legitimate trading company , and had no legitimate need of ORG . An order was placed with ORG through a third party , J. , acting on behalf of a company called ORG . ORG was suspicious of the order and informed the police , which authorised a controlled release of the ORG . The applicant , who was on home leave from GPE prison , received delivery of a quantity of ORG at ORG home , PERSON being in GPE prison at the time . Around this time , the applicant had also bought a quantity of glucose and other chemicals . The applicant split up the chemicals he had obtained , keeping some and storing others with his sister . He had never himself spoken to the police about his involvement in what he claimed was an entrapment operation with the intention of claiming a reward . The prosecution stressed that PERSON had been repeatedly told by the police not to get involved in the manufacture of drugs . CARDINAL police officers were called to confirm that PERSON was acting on his own initiative and without any encouragement from the police .

According to the applicant , he had intended to give evidence at the trial in line with what he had told the police during the interview . A proof of evidence had been prepared in this connection for use at the trial . Evidence of what was said at the police interview was adduced in open court by the prosecution .

On DATE , CARDINAL men visited the applicant at his home and threatened him and his family with severe physical violence and told him that if he said anything in court about Pollock , “ he had better make sure he had good fire insurance ” . The applicant contacted his solicitor who recalled that the applicant “ sounded very frightened and upset ” . The solicitor relayed the information the following morning to the applicant ’s barrister .

After the close of the prosecution case and before the applicant was due to give evidence , the trial judge , pursuant to section CARDINAL of ORG LAW DATE ( “ the DATE LAW ) , informed the applicant of the consequences of his not giving evidence . The applicant was warned :

“ You have heard the evidence against you . Now is the time for you to make your defence . You may gave evidence on oath and be cross - examined like any other witness . If you do not give evidence or , having been sworn , without good cause refuse to answer questions , the jury may draw such inferences as appear proper . That means that they may hold it against you . You may also call any witness or witnesses whom you have arranged to attend court . Afterwards you may also , if you wish , address the jury by arguing your case from the dock . But you can not at that stage give evidence . Do you now intend to give evidence ? ”

The applicant chose not to give evidence on account of his fear of the consequences for himself and his family . He did not opt to go into the witness box and decline to answer questions about PERSON since , according to the applicant , he did not know at that stage of the proceedings whether the trial judge would accept his plea that he was in fear of Pollock .

Walsh did not testify at the trial . Pollock and PERSON gave evidence . PERSON was cross - examined by the applicant ’s counsel on the basis that PERSON was intimately and actively involved in the manufacture of drugs , had presented himself to the applicant as a “ soldier ” for major drug dealers including a certain “ PERSON ” , had sent another “ soldier ” to give the applicant money to finance the operation and had received from the applicant QUANTITY of ORG at a specific location . According to the applicant , most of the cross - examination of ORG was conducted by the prosecution .

At a stage when the cases for all the defendants had been concluded and before the summing up , the applicant ’s counsel applied to the trial judge for a voire dire with a view to laying an evidential basis to persuade the judge not to direct the jury to draw an adverse inference from the applicant ’s silence in court . The application was made on the basis of the threats which the applicant had received , threats which , the applicant ’s counsel argued , could be confirmed by hearing the applicant ’s solicitor on the voire dire .

The application was opposed on the ground that the correct course of action would be for the applicant to go into the witness box and , whenever a question was asked which he did not wish to answer through fear , to decline to answer it and give the reason . It was also opposed on the basis that it would be unfair for the applicant ’s counsel to be permitted to cross - examine Pollock in a manner designed to incriminate him and for the applicant then to be able to avoid inferences on the basis of a fear of the consequences of giving evidence to the same effect .

According to the applicant , prosecution counsel in effect summarised for the judge the nature of the applicant ’s fears and his defence barrister was only able to correct the version given by prosecution in the briefest of terms .

The judge refused the application , although he was prepared to accept that the applicant was afraid . After the ruling had been given , counsel for the prosecution stated in the presence of all concerned :

“ I take it from [ the ] ruling that you have agreed ... that it would not be right to call [ the applicant ] on a voire dire , and if [ counsel for the applicant ] wishes to establish a reason he can only do so by calling his client to give evidence in front of the jury , he then being cross - examined in the way I had indicated . ”

The judge replied that that was implicit in what he had said . Counsel for the prosecution stated that that was his understanding , but it was as well for the matter to be plain .

The applicant ’s counsel did not make an application to allow the applicant to give evidence and to decline to answer questions in respect of Pollock .

The judge put the applicant ’s case to the jury as it appeared from the transcripts of the police interviews . According to the applicant , since neither he nor PERSON testified at the trial there was no evidence before the jury that the applicant had acted at ORG ’s instigation or that the applicant believed that PERSON was a police informant or that the police had approved of the applicant ’s actions in the light of the wider entrapment plan .

The trial judge directed the jury in accordance with the relevant practice guidelines at the time on the circumstances in which it may draw an adverse inference from the applicant ’s silence in court . The trial judge stated :

“ Now , what then are you permitted to consider about ... the failure to give evidence ? Now , when a defendant does not give evidence , that is his right . The right to silence , as it is sometimes called , has not been removed . A defendant is entitled , as indeed have [ the applicant and PERSON ] made it perfectly clear they are entitled not to give evidence . But the law provides now that you may draw such inferences as appear proper from their failure to do so . But before you draw such inferences you have first to be satisfied that there is a prima facie case against them . So the first thing that you must do is to consider whether there is what we call a prima facie case without taking into account the failure to give evidence . You must be satisfied that the prosecution have established that there is a case to answer before drawing any inference from silence .

Now , if you do draw such an inference and you are satisfied that there is a case to answer , then you may ... , but you do n’t have to , you make take into account the failure to give evidence .

Now what proper inferences can you draw from the [ applicant ’s ] decision not to give evidence ? If you conclude that there is a case for him to answer then you may think that [ the applicant ] would have gone into the witness box to give you an explanation , or give an answer to the case against him . If the only sensible explanation for his decision not to give evidence is that he has no case to answer - or he has no answer , I should say , to the case against him , or none that could have stood up to cross - examination , then it would be open to you to hold against him his failure to give evidence . ... It is open to you , it is open to you to hold against [ the applicant ] his failure to give evidence but only , only if the only sensible explanation for his decision not to give evidence is that he has no answer to the case against him , or that none could have stood up to cross - examination .

Now , in [ the applicant ’s ] case , [ his counsel ] has made a suggestion to you as to why he has n’t gone into the witness box and his answer is because he , [ the applicant ] , has said it all in his interviews ; nothing more to say . Well , you must consider whether that is a good enough explanation because I have already told you that which is said by a defence , a defendant , in interview , in a statement which is not made on oath , not repeated on oath , therefore not subject to cross - examination .... . You may wonder , therefore , whether that is a good explanation . It is a matter for you . ( ... ) .

( ... ) Inference from failure to give evidence can not of its own prove guilt . Again , I am sorry to repeat this but it is very important to this case because it is the nub of it or the crux of it , namely that it is what the defendants had in their minds which matters , and it is therefore for the prosecution to disprove the explanation which they have given . ( ... ) . ”

The applicant ’s conviction and appeal

On DATE the applicant was found guilty as charged and sentenced to CARDINAL years’ imprisonment . ORG were also convicted , each receiving sentences of DATE respectively . The jury were unable to agree a verdict in relation to PERSON . PERSON was later convicted following a new trial .

The applicant appealed against his conviction and sentence to ORG with the leave of the Single Judge . He contended before ORG that the trial judge should have heard evidence on the voire dire since he had been informed by counsel that the applicant was afraid to give evidence .

The applications for disclosure and ORG during the appeal proceedings

During the course of the proceedings on appeal , the applicant and PERSON applied for disclosure of certain specific and identified documents , in particular the schedule of ORG activities as a police informant . The Government point out that the applicant ’s application as framed did not appear to have been an application for all material in possession of the police or the prosecution in relation to PERSON ’s history as an informant .

ORG ruled on DATE that the applicant and PERSON were entitled to full disclosure in relation to PERSON ’s history as an informant , “ save that ORG dated DATE be disclosed in edited form . ” The latter document was included in the original ORG application to the trial judge and was covered by ORG immunity in its entirety . However , the prosecution indicated that it was prepared to disclose the content of this document in an edited format . ORG approved this proposal . The prosecution also disclosed a further CARDINAL extracts from pocketbook entries of police officers . This information had already been served on the defence in the form of intelligence / information reports at the original trial , with the approval of the judge .

The applicant can not confirm whether any or all of the materials at issue were the subject of the trial judge ’s order . The applicant does confirm that the documents listed in ORG order were disclosed to his lawyers , but did not extend to the further material which the applicant sought . It is the applicant ’s understanding that a further disclosure order was made by ORG in relation to documents sought by PERSON , and specified as extending to the applicant , but that no documents were disclosed to the applicant .

The issues relating to ORG activities as an informant were again raised by the applicant in applications dated CARDINAL DATE and CARDINAL DATE to amend and supplement the applicant ’s original grounds of appeal . The original schedule of informing was appended to the application of DATE . The application dated CARDINAL DATE stated that full disclosure had not yet been given in accordance with ORG order of DATE . The application further noted that the prosecution had claimed ORG at the trial and that “ it is believed that [ ORG ] will be asked by the Prosecution to consider that much of this evidence requested by [ the applicant ] in this case should not be disclosed . ” The applicant invited ORG to reconsider the material that the trial judge had decided should not be the subject of disclosure , and to ask itself whether the judge had exercised his discretion properly in relation to disclosure of material which might have assisted the defence , in particular in relation to a schedule of informing concerning PERSON used at the trial . The application of CARDINAL DATE also invited ORG to have regard to whether or not the requirements of LAW had been complied with in his case as regards the issues of the judge ’s failure to hear evidence on the voire dire and non - disclosure of evidence .

On DATE the prosecution gave written notice to the accused ’s lawyers that the ORG intended to make an ex parte application on notice to ORG . The letter stated that the ORG were not able to disclose the category or categories into which the documentation would fall . The Government point out that the application for ORG in ORG was identical to that made to the trial judge save that ORG was disclosed during the appeal proceedings , albeit in edited form .

On DATE ORG , following an ex parte hearing , granted the ORG ’s application in full , including the editing of ORG and the editing of various passages from the supporting source documentation . The order of ORG dated CARDINAL DATE contained the following statement : “ ORG properly claimed in relation to disclosure ” .

The applicant states that his lawyers only became aware that the prosecution had made an ex parte application when they arrived outside the courtroom at TIME on DATE for a CARDINAL hearing and were informed that they could not go into the court because a ORG hearing was being conducted in respect of their case . The applicant does not know which documents were covered by ORG ruling of CARDINAL DATE .

The outcome of the appeal

ORG refused the applicant leave to amend his grounds of appeal in order to raise arguments based on LAW .

On DATE ORG , following a hearing , dismissed the applicant ’s appeal against conviction and sentence .

In delivering the judgment of ORG , Lord PERSON expressed the view that no evidence called on behalf of the applicant on the voire dire could have been of any possible assistance to the defence and might , had the applicant ’s account of intimidation been subjected to cross - examination , been of positive disadvantage to the defence . He considered that the trial judge was under no obligation to hear evidence on the voire dire regarding the applicant ’s fear of reprisal . Lord Justice Rose then stated :

“ At the close of the prosecution case , it is common ground that the judge had , in accordance with section CARDINAL(CARDINAL ) , satisfied himself , in the presence of the jury , that the accused knew that he could give evidence , and , if he chose not to give evidence , or , having been sworn , refused to answer particular questions , without good cause , it would be permissible for inferences adverse to his case to be drawn . The warning of risk was heard by [ the applicant ] , as well as by the members of the jury . That warning having been given , [ the applicant ] ( advised by leading counsel ) indicated that he would not be giving evidence .

In our judgment , the fact that at a subsequent stage the judge gave a ruling entirely in accordance with what was to be anticipated , by virtue of the risk to which he had expressly drawn [ the applicant ’s ] attention , does not change the position adversely to the interests of the defendant . The reality is that [ the applicant ] knew , from the time of the judge ’s warning at the close of the prosecution case , of the risk that a direction would be given permitting adverse inferences to be drawn , and in the light of that knowledge and of the advice which he was given , he decided to take his chance and not give evidence . In our judgment , the subsequent ruling can not be regarded as having in any way impinged on the safety of his conviction . ”

As to the applicant ’s further contention that he was not advised that he could give evidence and not answer particular questions , Lord Justice PERSON referred to what the trial judge had said in relation to section CARDINAL(CARDINAL ) of LAW .

On DATE ORG refused the applicant leave to appeal to ORG .

The interpretation given by the domestic courts to LAW DATE as well as the specimen direction applicable at the relevant time are described in the ORG ’s Condron v. the GPE judgment ( no . CARDINAL , ECHR CARDINAL-V ) and PERSON v. the GPE judgment ( no . CARDINAL/CARDINAL , DATE ) .

Domestic law and practice at the material time on the prosecution ’s duty of disclosure of material to the defence and the circumstances in which such material can be withheld for reasons of public interest immunity are described in the ORG ’s PERSON and PERSON v. the GPE judgment ( [ ORG ] , no . CARDINAL , ORG CARDINAL ) .


The applicant was born in DATE and lives in GPE . DATE he lived together with GPE On DATE PERSON gave birth to a daughter , PERSON , of whom the applicant is the father .

In DATE the couple split up and GPE went to live with her daughter in PERSON . The applicant stayed in PERSON during DATE and DATE and then returned to GPE .

On DATE the applicant , while visiting his daughter , threatened and injured GPE , who subsequently refused him access to M.

On DATE the applicant applied to the Linz - Land District Court ( Bezirksgericht ) seeking visiting rights in respect of his daughter . On DATE the district court heard evidence from the applicant and GPE On DATE a visit took place . On DATE the applicant and PERSON concluded a visiting agreement , under the terms of which visits were to take place on the LOC of a youth centre in the presence of GPE

On DATE , at GPE 's request and with the approval of ORG ( ORG ) attached to GPE ( Bezirkshauptmannschaft ) , GPE withdrew the applicant 's visiting rights . It noted that , at the first arranged visit on DATE , the applicant had insulted PERSON and told PERSON that her mother was an evil witch and a whore . PERSON had subsequently suffered from anxiety , sleep disturbances , gastro - intestinal problems and pneumonia . The court further noted that even before the visiting agreement had been concluded , the arrangements for and exercise of the applicant 's visiting rights had been complicated by the applicant 's constant aggression towards GPE The court found that the repeated threats against her mother were seriously jeopardising PERSON 's mental development . Accordingly , the applicant 's visiting rights were not in the best interest of the child ; on the contrary , they were harmful to her mental and physical well - being .

On DATE ORG ( PERSON ) upheld this decision .

NORP In DATE PERSON started cohabiting with her new partner , PERSON They married in DATE .

Another contact visit between the applicant and his daughter took place during DATE .

On DATE and DATE the applicant again lodged applications for visiting rights with PERSON . He further stated that he objected to the possible adoption of PERSON by PERSON

On DATE the Linz - Land District Court rejected the applications . It noted that the applicant 's visiting rights had been withdrawn and that the applicant had not submitted any arguments to suggest that the circumstances upon which that decision had been based had changed . The decision became final .

On DATE PERSON instituted proceedings with FAC seeking to adopt PERSON requested that the court overrule the applicant 's refusal to give the required consent .

NORP The district court summoned the applicant to a hearing scheduled for DATE . In written submissions of CARDINAL DATE the applicant informed the court that he had not changed his attitude towards the adoption request and still objected to adoption . A hearing was therefore not necessary . He added that the letter should be regarded as his submissions in the case . In further submissions to ORG , the applicant filed a motion accusing judge PERSON , the competent judge of GPE , of bias , and reiterated his request for visiting rights .

The district court subsequently informed the applicant that a hearing in the adoption proceedings was necessary and that any unexcused absence was punishable by a pecuniary penalty ( Ordnungsstrafe ) . On DATE the applicant informed the court that he was unable to attend the hearing scheduled for DATE , as he was attending lectures at ORG . He further referred to his motion accusing judge ORG of bias , and submitted that his case would not be given objective consideration . He could , however , agree to another date under different circumstances .

On DATE the President ( Vorsteher ) of the Linz - Land District Court dismissed the applicant 's motion accusing judge ORG of bias . On DATE ORG upheld this decision . It noted that the applicant had referred to a statement made by judge PERSON during a hearing in DATE in the proceedings concerning the withdrawal of his access rights in respect of PERSON However , the applicant had not complained at the time of any alleged bias on the part of the judge . The motion had therefore been submitted out of time . On DATE the President of the Linz - Land District Court rejected a further motion by the applicant accusing judge ORG of bias , for the same reasons .

Meanwhile , on DATE , the applicant gave evidence to ORG in GPE under letters rogatory . At the hearing he argued that he had developed a close relationship with his daughter in DATE . He had not lost interest in his daughter and still wished to obtain visiting rights . However , PERSON had sought to prevent any contact . In further written submissions to the court he argued that he did not know PERSON , who had no family ties with his daughter . His daughter 's alleged psychological problems had been caused by her mother , who herself had similar problems .

On DATE the Linz - Land District Court heard evidence from PERSON , PERSON and GPE On DATE the court , with the approval of ORG attached to GPE , overruled the applicant 's refusal to give consent and granted PERSON permission to adopt PERSON It noted that PERSON had developed a close relationship with PERSON , who had said she was in favour of the adoption as she regarded PERSON as her father . The adoption would secure PERSON 's position within the family and also act as a material safeguard , as PERSON was able to support her financially . With regard to the applicant , the court found that his allegedly close relationship with PERSON did not correspond to reality . The last contact visit , during DATE , had been disappointing for the child , as the applicant had taken no initiatives , had not complied with the child 's wishes for a special DATE present and , during dinner , had not spoken with the child for DATE . In the past the applicant had repeatedly tried to interfere in the relationship between PERSON and her mother , causing PERSON to develop physical and psychological problems . He had not made any effort to prove his feelings for PERSON in practice . Furthermore , he had not made maintenance payments for DATE . The court therefore considered that the applicant 's objection to the adoption was unjustified .

The applicant appealed against this decision . He complained that the lack of a public oral hearing in the presence of his daughter , PERSON and PERSON was contrary to LAW . He had not been able to put questions to PERSON and PERSON or challenge the criticism made of him in several reports by the social - welfare authorities . In particular , no evidence had been heard from him concerning the accusation that he had told PERSON that her mother was an evil witch and a whore . He further complained that the court had not instructed him to request an opinion from an expert in child psychology . He was of NORP origin , and adoption in these circumstances was tantamount to a denial of CARDINAL of the child 's genetic background . Furthermore , without an expert opinion there was nothing to substantiate the courts ' findings that he had caused PERSON 's physical and psychological problems . The court should also have instructed him to request that evidence be heard from the social workers who had submitted negative reports about him . Instead , it had based its findings on their written submissions . Finally , the applicant contended that there were not sufficient reasons for PERSON 's adoption . PERSON could instead request joint custody with the child 's mother and undertake to make maintenance payments on a contractual basis . The applicant 's visiting rights had been withdrawn only temporarily and he had not failed to make efforts to keep in contact with PERSON had been paying maintenance for PERSON for DATE .

On DATE ORG dismissed the applicant 's appeal . It found that , even in the absence of an oral hearing in the presence of all the parties , which in the proceedings at issue was not obligatory , the applicant had been given a proper hearing for the purposes of LAW . In that regard it noted in particular that FAC had made several attempts to hear evidence from the applicant ; this had eventually been possible only by issuing letters rogatory to another court . The applicant had declared at the beginning of the adoption proceedings that he did not wish to participate further in the proceedings , that his personal appearance before the district court was not necessary and that the letter to that effect should be regarded as his personal statement . Moreover , the applicant had had sufficient opportunity to comment in written submissions , namely in the appeal proceedings , on the accusations made against him . The court further considered that it had not been necessary to seek an expert opinion or to hear evidence from the social workers concerned . In this regard it noted that the regional court had already confirmed the applicant 's aggressive behaviour and its consequences in its decision of DATE , and had rejected the applicant 's arguments to the contrary . Nor had the applicant , in his present appeal , been able satisfactorily to show that his conduct had not been the reason for the child 's problems . The district court had given sufficient and extensive reasons why the adoption should be authorised , namely by referring to the applicant 's conduct . Finally , the regional court noted that the fact that PERSON was in a better financial position than the applicant had not been a reason for granting the adoption . Accordingly , it did not go into the applicant 's arguments regarding the maintenance payments . It refused the applicant leave to lodge an ordinary appeal with ORG ( Oberster Gerichtshof ) . This decision was served on the applicant 's counsel on DATE .

Article CARDINALa of LAW ( Allgemeines Bürgerliches Gesetzbuch ) provides that adoption requires a written contract between the person seeking the adoption and the person to be adopted in addition to authorisation by a court .

Pursuant to LAW , the court may not authorise an adoption if the parents of a minor child have not given their consent to the adoption .

Article CARDINAL § CARDINAL provides that , at the request of CARDINAL of the parties , the court may overrule the refusal of consent by the parent of a minor child , where the person concerned has not given justifiable reasons for his or her refusal .

LAW , which is binding on several of ORG Member States , including GPE , provides as follows :

“ CARDINAL . Subject to paragraphs CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :

( a ) the consent of the mother and , where the child is legitimate , the father ; or if there is neither father nor mother to consent , the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect ;

( b ) the consent of the spouse of the adopter .

NORP The competent authority shall not :

a ) dispense with the consent of any person mentioned in paragraph CARDINAL of this article , or

b ) overrule the refusal to consent of any person or body mentioned in the said paragraph CARDINAL , save on exceptional grounds determined by law .

NORP If the father or mother is deprived of his or her parental rights in respect of the child , or at least of the right to consent to an adoption , the law may provide that it shall not be necessary to obtain his or her consent . ”

In its ORG on principles concerning the establishment and legal consequences of parentage of DATE , ORG on Family Law states as follows :

Principle CARDINAL :

“ CARDINAL . An adoption shall not be granted unless at least the following consents to the adoption has been given and not withdrawn :  the consent of the mother  the consent of the father .

States may also require the consent of the child considered by the internal law as having sufficient understanding .

The law may dispense with the consent of the father or of the mother or of both if they are not holders of parental responsibilities or if this consent can not be obtained , in particular if the whereabouts of the mother or of the father or of both is unknown and they can not be found or are dead .

The competent authority may overrule the refusal to consent of any person mentioned in paragraph CARDINAL only on exceptional grounds determined by law . ”


Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings

The applicant was born in DATE and lives in LOC .

The applicant instituted civil proceedings in GPE , QUANTITY from his place of residence . He sued ORG and ORG in connection with military operations in GPE in DATE . He claimed , in particular , that his property , including his flat , had been destroyed during an attack by federal forces on the centre of ORG in DATE and sought compensation for pecuniary damage . The applicant submitted that the damage had been inflicted as a result of the use by the ORG of hazardous devices ( источник повышенной опасности ) , namely weapons and military equipment , and that he was therefore entitled to compensation under the relevant provision of law without having to prove that the defendant had been at fault . The applicant also stated that he had endured mental suffering when forced to live in the zone of active military action , and claimed compensation for non - pecuniary damage on that account .

On DATE ORG of GPE ( “ the ORG ” ) examined the applicant 's claims . It acknowledged that the applicant 's property had been destroyed as a result of an attack in DATE , but noted that the applicant had failed to prove that his possessions had been damaged by NORP federal troops rather than by rebel fighters , as both parties to the conflict had used weaponry and ammunition of the same standard . The court also noted that under ORG and QUANTITY of LAW of GPE the ORG was only liable in damages for the unlawful acts of its agents . It further held that the military operations in GPE had been launched by presidential and governmental decrees which had been held to be constitutional by ORG and were still in force . Accordingly , the court concluded that the actions of the NORP federal troops in GPE were lawful and dismissed the applicant 's claim for compensation for pecuniary and non - pecuniary damage .

On DATE the applicant lodged a preliminary notice of appeal ( предварительная кассационная жалоба ) in which he requested the appellate court to quash the judgment and remit his case for fresh consideration . He also expressed his intention to adduce detailed arguments after acquainting himself with the text of the transcript of the first - instance hearing and obtaining a full copy of the judgment . Thereafter the applicant left for his place of residence .

In a letter of DATE ORG informed the applicant that he could obtain a full copy of the judgment of DATE and access to his case file at the court registry .

On DATE the applicant applied in writing to ORG for a copy of the transcript of the hearing on DATE , and a document that had been adduced by the defendants at the hearing . According to the applicant , he never received a response to his request .

On DATE the applicant sent another request to ORG , which also remained unanswered .

In a letter of DATE ORG forwarded a copy of the judgment of DATE to the applicant and notified him that a hearing of his appeal was scheduled for DATE . The applicant received this letter on DATE .

On DATE the applicant prepared detailed appeal submissions ( кассационная жалоба ) , in which he claimed that the first - instance court that the defendants had not adduced any evidence capable of refuting his arguments and that therefore the judgment of DATE was unfounded and should be quashed . He further reiterated that his property had been destroyed during an attack in DATE , and that under national law he was entitled to compensation for pecuniary damage . He also stated that he had endured mental suffering when forced to live in the zone of active military action , and therefore had the right to compensation for non - pecuniary damage . The applicant further argued that once ORG had established that his property had , in fact , been destroyed , it should have indicated who was liable to compensate him for that damage . He claimed in this respect that since the military operations in GPE had been launched by ORG , it was the ORG which should compensate him for his losses . The applicant also insisted that during the military operations the ORG had used hazardous devices , namely heavy artillery and other indiscriminate weapons , and that under national law he was absolved of any obligation to prove that the damage had been caused by the defendants ' fault .

At the end of his appeal submissions the applicant provided a list of the documents lodged , namely , CARDINAL copies of his detailed appeal submissions of DATE , a copy of the preliminary notice of appeal dated DATE , a copy of ORG judgment of DATE , a motion to exempt the applicant from payment of the court fee , a copy of a certificate indicating the inflation rate in GPE for DATE and a copy of the summons for the appeal hearing as well as the envelope in which it had been sent marked with the date of receipt .

According to the applicant , TIME before the court hearing on DATE , he attempted to file his detailed appeal submissions and to gain access to his case file at the registry of ORG ( “ the ORG ” ) , but was not allowed to do so . He then attempted to lodge his detailed appeal submissions at the hearing , but the presiding judge refused .

The Government referred to information provided by ORG that the applicant 's appeal of DATE had been accepted and examined by ORG . They did not indicate the date on which the applicant 's appeal had been received and registered by ORG registry .

By a decision of CARDINAL DATE ORG upheld the judgment of DATE . The applicant attended the hearing and presented his arguments . ORG held that the conclusions of the court below were correct and well - founded , since the applicant had not adduced any evidence that the actions of the NORP federal troops within the territory of GPE were unlawful or that the alleged damage had been caused by them rather than by rebel fighters . It went on to address the applicant 's argument that the weapons used were hazardous devices and that the damage should therefore be compensated irrespective of the question of fault . ORG noted that this argument could not constitute a ground for quashing the judgment at first instance , as according to a decision of the Plenary of ORG of GPE , firearms could not be regarded as a hazardous device so that a claim for compensation for the damage caused by the shooting would only lie if the defendant was at fault . It concluded :

“ The arguments advanced in the appeal do not point to any circumstances which have not been examined by the [ first - instance ] court or which could rebut the conclusions of the judgment . They seek to re - evaluate the adduced evidence and can not serve as a basis for quashing the judgment . ”

On DATE the applicant sent a letter to the President of ORG , complaining about the court 's refusal to examine the detailed appeal submissions he had given to the presiding judge at the court hearing on DATE and requesting that the appeal be registered and a copy of the court 's decision of CARDINAL DATE forwarded to him .

In a letter of DATE ORG sent a copy of the requested decision to the applicant without further explanation .

NORP In order to be able to assess the merits of the applicant 's complaint , the Court invited the Government at the admissibility stage to submit documentary evidence to clarify whether the applicant 's detailed appeal submissions had been received and registered by ORG .

In reply , the ORG submitted a copy of the applicant 's preliminary notice of appeal of DATE and of his detailed appeal submissions of CARDINAL DATE .

The first document , which is dated and signed by the applicant , bears the stamp of ORG of GPE together with a reference number and DATE of DATE . There are also a number of handwritten notes , dates and signatures on the document which make it clear that it was sent to , and received by , ORG .

NORP The copy of the applicant 's detailed appeal submissions , which is dated and signed by the applicant , contains no official stamps or dates to indicate whether they were received by ORG and , if so , on what date . The list of the enclosures at the end of the document has been crossed out and the word “ refused ” has been inserted by hand nearby . The date of this “ refusal ” is missing , but the signature is very similar to that of the presiding judge on a copy of the appeal decision of DATE .

Article CARDINAL enshrined the right of any party to a dispute and of other participants in proceedings to appeal against a first - instance judgment .

Article CARDINAL provided that , as a rule , an appeal should be brought through the first - instance court that delivered the judgment . However , the fact that an appeal was lodged directly with an appellate court should not preclude the latter from examining it .

By virtue of LAW , an appeal could be lodged within DATE after the first - instance judgment was finalised .

Article CARDINAL laid down a number of formal requirements for lodging an appeal . In particular , the notice of appeal had to indicate the court to which it was addressed , the name of the person lodging it , the judgment being appealed against and the court which had delivered that judgment , the grounds of appeal and the list of documents enclosed with the appeal . An appellant could not refer to new evidence which had not been before the first - instance court unless he or she could substantiate that it had been impossible to adduce that evidence at first instance .

Article CARDINAL secured the right of the other party to the dispute to submit written pleadings in reply to an appeal .


CASE OF GYARFAS AND HUNAUDIT KFT. v. HUNGARY

The applicant was born in DATE and lives in GPE .

On DATE the predecessor of the second applicant , represented by the first applicant , filed an action for damages against a company before ORG . On DATE ORG ordered intermission of the proceedings for DATE at the joint request of the parties . On DATE the plaintiff requested continuation of the proceedings and extended its action to involve another respondent .

On DATE ORG delivered a judgment dismissing the action .

NORP On appeal , on DATE ORG appellate bench quashed the first instance judgment and remitted the case to ORG .

On DATE the plaintiff extended the action to include a claim of invalidity of a contract . On DATE the plaintiff stated its intention to extend the action to involve further respondents including a company based in GPE . It was therefore instructed to advance the costs of translation but complied with this order only on DATE .

On DATE ORG held a hearing and delivered a judgment dismissing the action . The plaintiff appealed on DATE .

On DATE the plaintiff was struck out of the register of companies and ceased to exist as a legal entity . Its successor was the second applicant . However , neither itself nor its attorney , the first applicant , informed the courts or the parties of this fact .

On DATE ORG quashed the first instance judgment for deficient facts and remitted the case .

In the resumed proceedings , a respondent notified ORG on DATE that the plaintiff had been struck out of the register of companies . On DATE the first applicant , representing the second one , declared that he could not make a statement on the legal succession of his client . He was ordered to do so within DATE . On DATE he informed the court that , by way of a deed of cession , the successor of the plaintiff was his own mother , a pensioner eligible for exemption from court fees .

At the hearing of DATE the first applicant produced a contract of DATE by which part of the claims of the original plaintiff had been ceded to himself . He also submitted another document of DATE by which he had further ceded some of those claims to his mother . He stated that he wished to enter the proceedings as party .

On DATE the Head of ORG of ORG informed the President of ORG of the first applicant 's conduct , deemed profoundly unethical . The applicant was subsequently reprimanded .

On DATE the parties were heard as to the first applicant 's claim to become a plaintiff . On DATE the first applicant was granted leave to become a plaintiff in the proceedings . However , on the respondents ' appeal against the leave , ORG quashed the order on DATE .

On DATE ORG declared interruption of the proceedings on the ground that the plaintiff had ceased to exist . On DATE the court quashed this order finding that the second applicant was the legal successor . On DATE the first applicant stated that he did not wish to become a party to the proceedings . However , on CARDINAL DATE he stated that he nevertheless joined the proceedings .

On DATE ORG delivered a judgment dismissing the applicants ' action . On appeal , ORG held a hearing on DATE and delivered a judgment on CARDINAL DATE upholding in essence the first - instance .

On DATE ORG delivered a judgment dismissing the applicants ' petition for review and upholding the judgment of ORG .


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant came to the GPE on DATE where he married a NORP woman on DATE . Upon his request he was granted a residence permit by the head of the GPE police on DATE which enabled him to live with his spouse and to work in the GPE . This residence permit was valid for DATE and , on CARDINAL DATE , the applicant was given a document showing that as a result of his marriage he was allowed to reside in the GPE indefinitely .

On DATE , a son , PERSON , was born to the applicant and his wife .

The applicant and his wife separated in DATE and divorce proceedings were initiated . As the applicant 's right to reside in the GPE indefinitely had been dependent on his being married and cohabiting with his spouse , he lost this right ex jure from the moment of separation . On DATE , the applicant applied for and was granted an independent residence permit in order to work in the GPE pursuant to the relevant provisions of LAW ( Vreemdelingencirculaire ; see paragraphs CARDINAL below ) . This permit was valid for DATE .

In the period immediately following the separation the applicant made no attempt to see PERSON , but at a later stage he requested ORG ( ORG ) to establish an arrangement concerning parental access ( omgangsregeling – “ formal access arrangement ” ) . ORG requested ORG ( PERSON ) to investigate the feasibility of such an arrangement .

NORP In its report of DATE , ORG stated that after an initial refusal to cooperate in a formal access arrangement , the mother had agreed for the applicant to meet PERSON several times on a provisional basis at the maternal grandparents ' house but that the applicant had failed to contact the Board . ORG concluded that the applicant 's situation had not become sufficiently clear and for this reason the ORG found that a formal access arrangement would not be appropriate .

The applicant requested a prolongation of his residence permit in order to work in the GPE from the head of the GPE police on DATE . At this time the applicant was in receipt of unemployment benefits and for this reason his request was rejected on DATE . As regards LAW , the head of the GPE police considered , inter alia , that since it appeared that the applicant had no regular contacts with his son there was no family life between them within the meaning of this provision . In this respect it was held that the applicant 's claim that it was not his fault that no regular contacts took place could not be taken into account , since regard could only be had to the factual situation . Furthermore , even assuming there was family life between the applicant and his son , an interference with the right to respect for this life would , according to the head of the GPE police , be justified under paragraph QUANTITY of Article CARDINAL .

The applicant requested the ORG Secretary for ORG ( ORG ) on DATE to review ( herzien ) the decision of the head of the GPE police . He submitted that he was in the process of obtaining a permanent employment contract . He conceded that at present the contacts with PERSON had not yet been regularised but that ORG of GPE was expected to examine and to grant a request for a formal access arrangement shortly afterwards .

The applicant 's marriage was officially dissolved on DATE .

On DATE , the applicant was heard by ORG for Aliens ' Affairs ( PERSON voor ORG ) . The applicant stated that since DATE he had visited PERSON CARDINAL times a week .

ORG proposed to the ORG Secretary for ORG that the applicant 's request for revision be rejected . Even though it considered that there was family life between the applicant and PERSON and that the refusal to grant the applicant continued residence in the GPE would constitute an interference with the applicant 's right to respect for his family life , ORG held that this interference was justified for the protection of the economic well - being of the country . In this respect ORG considered that the applicant was in receipt of unemployment benefits . Although it might be true that these benefits would be withdrawn in view of the applicant 's contract as a stand - by employee in the clothing industry , ORG did not regard these activities as serving an essential national interest since it had appeared that on the GPE labour market other people , having priority over the applicant , were available for this kind of work .

ORG further took into account that the applicant had only lived with PERSON for DATE , that he saw PERSON irregularly and briefly , and that he contributed irregularly to the costs of PERSON 's upbringing and education .

In line with the opinion of ORG , the ORG Secretary for ORG rejected the applicant 's request for revision on DATE .

The applicant filed an appeal against the decision of DATE with ORG ( ORG ) of ORG sitting in GPE ( nevenzittingsplaats GPE ) on DATE . He submitted , inter alia , that contrary to what ORG had held , he had an intense relationship with PERSON .

Meanwhile , following a hearing on DATE , ORG on DATE appointed the applicant 's former wife as guardian ( voogdes ) and the applicant as auxiliary guardian ( toeziend voogd ) of PERSON . It further ordered that as a contribution to the costs of the maintenance and education of PERSON , the applicant should pay to the mother any child benefits he might receive under the statutory regulations . In view of the circumstances and the relationship between the parties ORG found it inappropriate , however , to lay down in a formal access arrangement the varying contacts which the applicant was having with PERSON at that time . ORG assumed in this respect that the contacts which the applicant had had and was still having with PERSON would be continued in the future ; it added that , as part of the upbringing of the child , it was incumbent on the mother to ensure that these contacts between father and child took place .

The applicant filed an appeal with ORG ( ORG ) against the decision of ORG not to establish a formal access arrangement . A hearing took place on DATE , during which the applicant 's former wife stated that she was not willing to cooperate in a formal access arrangement , since she felt that the applicant only wished to have such an arrangement established in order to obtain a right to reside in the GPE . Furthermore , she did not believe that the applicant was capable of maintaining regular contacts with PERSON and submitted that irregular contacts would not be conducive to the boy 's well - being .

On DATE , a hearing took place before ORG sitting in GPE on the appeal filed by the applicant against the rejection of his request for revision of the decision not to prolong his residence permit . ORG rejected the appeal by decision of CARDINAL DATE . It held that the refusal to grant the applicant continued residence in the GPE constituted a justified interference with his family life . ORG considered in this respect , inter alia , that ORG had rejected the applicant 's request to establish a formal access arrangement . It found , furthermore , that the contacts between the applicant and PERSON were irregular and short and that the applicant did not contribute regularly to the costs of his son 's maintenance and education . ORG further held that the economic well - being of the country should be taken into account as well . It noted that the applicant had submitted an employment contract from which it appeared that his probationary period had not yet been concluded and that , in any event , there was a sufficient amount of work force with priority over the applicant available on the GPE labour market for the kind of work the applicant was employed to do .

When this decision was sent to the applicant , that is , on DATE , the applicant 's probationary period had come to an end and he was in possession of a contract of employment for an indefinite period .

As regards the applicant 's request for the establishment of a formal access arrangement , ORG decided in an interlocutory judgment of DATE to adjourn these proceedings . The ORG found that at the present time there was insufficient reason to deny the applicant right of access to his son . As it was not clear to what extent the applicant was genuinely interested in ORG requested ORG to organise a number of supervised trial meetings between the applicant and PERSON in order to have the applicant 's motives clarified .

On DATE , the applicant was informed that ORG had further adjourned the proceedings until DATE in view of the heavy workload of ORG . By letter of DATE , the applicant asked ORG whether a different organisation might be appointed to organise the trial meetings as he wished to see PERSON and a further delay would be detrimental to both the applicant and the child .

On DATE , the applicant was placed in detention with a view to his expulsion ( vreemdelingenbewaring ) .

On DATE , the applicant again requested a residence permit in order to work in the GPE , to be able to be with his child and for reasons of a compelling humanitarian nature . On this occasion he told the head of police that as of DATE he had stopped contributing financially to his son 's maintenance since his former wife no longer allowed him to see PERSON .

The first trial meeting between the applicant and PERSON , organised by ORG , took place on DATE at the offices of this organisation . Since the applicant was still in detention , he was accompanied by CARDINAL police officers who observed the meeting between the applicant and PERSON from a different room .

On DATE , the applicant 's representative contacted the officer of ORG who had also been present at the meeting between the applicant and his son . In the opinion of this officer , the meeting had gone well given the circumstances under which it had taken place . Although father and son initially had had to re - accustom themselves to being together , it had been clear that PERSON knew his father and was familiar with him . After the meeting PERSON had spontaneously gone to the window to wave to the applicant . The officer submitted as her opinion that another trial meeting should be organised by ORG , perhaps in the presence of a psychologist , following which the possibility of a supervised access arrangement should be considered .

The applicant 's request of CARDINAL DATE for a residence permit was rejected by the ORG Secretary for ORG on DATE . The ORG Secretary held that no relevant new facts had been adduced by the applicant . On the basis of the information submitted by the police officers who had observed the meeting between the applicant and PERSON on DATE , the ORG Secretary considered furthermore that it had not appeared that the relationship between the applicant and his son at the present time was meaningful , mutual or anything more than shallow and neither was it realistically foreseeable that a closer relationship would develop .

The applicant filed an objection ( bezwaar ) against the refusal of a residence permit with the ORG Secretary for ORG on DATE . He submitted , inter alia , that proceedings concerning access to his son were still pending before ORG and that the trial meeting which had been ordered by ORG on DATE had only taken place as late as CARDINAL DATE . Given the fact that at that time the applicant had been in detention , it was unreasonable to expect that this meeting between the applicant and PERSON would give a true impression of the nature of the relationship between them . The applicant also requested an interim measure from the President of ORG sitting in GPE .

The applicant was expelled to GPE on DATE .

On DATE the President of ORG rejected both the objection which the applicant had filed against the refusal of a residence permit and the request for an interim measure .

The appeal proceedings concerning the formal access arrangement before ORG were adjourned for some time and finally continued in the absence of the applicant who had not been granted an entry visa in order to attend either more trial meetings or the hearing before ORG . On DATE ORG confirmed the decision of ORG not to lay down a formal access arrangement ( see paragraph CARDINAL above ) . Having regard to the report of ORG of DATE ( see paragraph CARDINAL above ) , the fact that PERSON and his father had not seen each other since DATE , that it had not been possible for the trial meetings – except for the CARDINAL of CARDINAL DATE to take place within a reasonable time , the uncertainty as to whether the father would come to the GPE and stay there temporarily , the continued doubt as to whether the father was capable of maintaining regular contacts with PERSON and the continuing tension in respect of the father 's uncertain situation , ORG considered that such an arrangement would be contrary to the compelling interests of the child .

The applicant lodged an appeal on points of law against this decision with ORG ( PERSON ) which was rejected on DATE .

Meanwhile , on DATE , the applicant re - entered the GPE with a visa valid for DATE . He submitted a new application for a formal access arrangement to ORG on DATE , arguing that there had been a change of circumstances since the decision of ORG of CARDINAL DATE ( see paragraph CARDINAL above ) in that he was currently in the GPE and had employment . Following a hearing on DATE , during which PERSON 's mother stated that the boy did not want to see the applicant , ORG requested ORG to examine whether it would be in PERSON 's best interests to be brought into contact with his father .

On DATE ORG rejected the applicant 's request for a formal access arrangement and denied him the right of access to his son . It noted the conclusion reached by ORG , after another trial meeting had taken place , to the effect that the interests of the child militated against access since PERSON had displayed strong opposition to the idea and the applicant had not proved able to overcome this opposition . The applicant has lodged an appeal against this decision , which proceedings are currently still pending .

Under section CARDINAL ) of LAW ( Vreemdelingenwet ) residence permits granted for a specific purpose , such as family reunification or family formation , can be granted subject to restrictions relating to that purpose . If the purpose for which the permit was granted is no longer complied with , the residence permit may be revoked pursuant to section ORG ) of LAW , and prolongation may be refused pursuant to section GPE ) of the Act on grounds relating to the public interest . An alien who has been granted entry to the GPE but is not or is no longer eligible for admission is under an obligation to leave the country pursuant to section CARDINAL(d)(CARDINAL ) . If he or she does not leave voluntarily , expulsion may follow ( section CARDINAL ) .

NORP The GPE authorities pursue a restrictive immigration policy in view of the high population density . Admission is only granted on the basis of treaty obligations , if the individual 's presence serves an essential national interest or if there exist compelling reasons of a humanitarian nature . This policy is laid down , inter alia , in the “ Circular on Aliens ” ( Vreemdelingencirculaire – “ the Circular ” ) : a body of directives drawn up and published by ORG .

At the relevant period , the requirements for admission of aliens for the purpose of family reunification and family formation , and for continued residence after separation , were laid down in LAW of FAC . Aliens married to either a GPE national , a recognised refugee or a holder of a permanent residence permit ( vestigingsvergunning ) acquired , after DATE of legal residence , ex jure an indefinite right to remain pursuant to section ORG ) of LAW . This right expired ex jure when the spouses no longer cohabited .

Pursuant to Article CARDINAL paragraphs ( a ) and ( d ) of LAW PERSON of FAC an alien whose marriage had lasted for DATE before it broke down could be granted DATE residence from DATE of the de facto breakdown of the marriage , subject to the restriction “ for the purpose of finding work , in paid employment or self - employed ” . During DATE , dependence on social security or unemployment benefits would not be held against the alien . When assessing an application for a subsequent prolongation of the residence permit , the authorities had to determine whether the person concerned was in paid employment or was self - employed , and would continue to be so for DATE , regardless whether this durable income was obtained from work in a sector where there were sufficient nationals of ORG member GPE or aliens residing lawfully in the GPE available to fill all vacancies . Where no such employment existed for DATE , the right of continued residence would be denied . Employment found subsequently would not change that decision unless that work served an essential national interest .

Respect for family life as enshrined in LAW constitutes one of the treaty obligations which may lead to the granting of admission or continued residence ( see paragraph CARDINAL above ) . Article CARDINAL.CARDINAL of Chapter BCARDINAL of FAC provided in this respect that where an alien was not eligible for ( continued ) residence on the basis of the applicable rules , the question whether a refusal of ( continued ) residence was in accordance with LAW should always be examined . Similarly , LAW of FAC stipulated that in the decision whether or not to grant continued residence , regard should be had to the individual 's family life within the context of LAW .

Article CARDINALa of Book CARDINAL of LAW ( PERSON ) regulates access between a child and the parent who was not awarded parental responsibility following the divorce , as well as the grounds on which access can be denied . This provision , in so far as relevant , reads as follows :

“ CARDINAL . A child and a parent on whom parental responsibility has not been conferred shall have the right of access to each other .

At the request of CARDINAL or both parents , the court shall establish an arrangement , for an indefinite period or otherwise , for the exercise of the right of access , or shall deny the right of access , for an indefinite period or otherwise .

NORP The court shall deny the right of access only if :

a. access would seriously damage the child 's psychological or physical development ;

b. the parent is clearly incapable or must clearly be deemed incapable of access ;

c. when interviewed , a child over DATE has indicated serious objections to access ;

d. access would be contrary in some other way to the compelling interests of the child .

If the parents disagree about the access arrangement , the courts request ORG for a report . Where the father has seen the child only occasionally since the child was very young and the parents are in dispute about the question of access , the ORG may organise a number of meetings on Board premises , in order to determine how the child responds to the father and how the father treats the child . Such observations are then used to decide on the request for an access arrangement .

The applicant applied to ORG on DATE . He maintained that the authorities ' refusal to grant him continued residence and his subsequent expulsion had infringed Articles CARDINAL , DATE and DATE of the Convention .

On DATE the Commission declared the complaints under Articles CARDINAL and CARDINAL inadmissible , and on DATE it declared the complaint under LAW admissible .

In its report of CARDINAL DATE , the ORG expressed the unanimous opinion that there had been a violation of LAW .


The applicant , Mr. PERSON , is an NORP national , who was born in DATE and lives in GPE . He is represented before the ORG by Mrs. PERSON , a GPE lecturer in PERSON at ORG in Östersund .

The applicant belongs to an ethnic minority in GPE called the PERSON .

On DATE the applicant arrived in GPE with his family , his wife and their CARDINAL sons , born in DATE and DATE respectively , and applied for political asylum under the name of DATE , born in DATE .

On DATE , ORG ) held a first interview with the applicant in which he stated that he had fled from GPE in GPE due to political problems . He claimed that he was an opponent of GPE and the NORP regime and that he was politically active within the ORG ( a leftist movement ) . Further , he alleged that he had been imprisoned due to his political activities on CARDINAL occasions , first in DATE during DATE and then again in DATE for DATE . In DATE he and his family had fled to GPE where , through smugglers , they had bought forged NORP passports and visas and tickets for GPE . They travelled to GPE on DATE and , upon arrival , they threw away the passports since they were forged .

On DATE ORG held a second interview with the applicant where he told about his life and political activities in more detail . He claimed that he had become politically active when the PERSON was ousted in DATE and that as a student he had been involved in an organisation called PERSON ( a communist party ) for which he sold the organisations newspaper , handed out leaflets and painted slogans on walls . He had been arrested for the first time in DATE and , after a trial , he had been sentenced to DATE deportation to another region of GPE , PERSON . In DATE he had married and , DATE he had worked as a driver , delivering products for different stores . He stated that he was not religious , although his parents were NORP , but that it had been particularly difficult for him to be politically active since he was a NORP and the central regime under PERSON had had several conflicts with the ORG . At this point the interview was interrupted and it was not resumed until DATE when he continued his account of events . He stated that after he had returned from PERSON he had resumed his political activities , although not so openly anymore . In DATE he had again been arrested and during the interrogations he had been whipped and placed in very painful positions . He never admitted to anything and , in DATE , he was released . At that time his political organisation had ceased to exist but he had soon joined another organisation , PERSON ( ORG ) , which fought for the independence of GPE from GPE . The applicant claimed that he had transported newspapers and leaflets for the organisation in his car while working as a delivery man for various stores . In DATE a close associate of his in the organisation had been arrested and the applicant had then decided to flee with his family to avoid being arrested as well . He stated that if he was returned to GPE he would be arrested and imprisoned and probably executed due to his political activities .

On DATE ORG granted the applicant political asylum and a permanent residence permit .

In DATE the applicant was arrested and charged with having murdered his wife . He admitted that he had stabbed her but claimed that it should be considered as manslaughter ( dråp ) . He stated that his wife had wanted a divorce and that she had moved to another apartment with the children . He knew that she was seeing other men . He further asserted that his wife ’s family in GPE had repudiated her when she demanded the divorce and that her father had told him that he was not a man if he did not kill her . He claimed that he had regretted the act immediately and had called the emergency services .

On DATE ORG ( tingsrätten ) convicted the applicant of murder and sentenced him to CARDINAL years’ imprisonment and lifetime expulsion from GPE . When deciding the CARDINAL years’ imprisonment ORG took into account the detriment caused to the applicant by the expulsion and reduced the normal prison sentence , which would have been life imprisonment , accordingly .

As concerned the expulsion , ORG had requested that ORG submit its observations on the matter . In its observations , ORG stated that the reasons invoked by the applicant at the time when he was granted asylum were not such that , according to the current practice , he would have been granted asylum . However , in line with ORG practice and the provisions in LAW , there was no reason to recall his refugee status . On the other hand , ORG found that there were no impediments to enforcing a possible order to expel the applicant . ORG also heard a witness called by the applicant who stated that he would be executed in GPE due to his political activities . The court considered that due to the very serious nature of the crime , there were particular reasons for expelling the applicant .

The applicant did not appeal against the judgment .

Following the conviction , the applicant lost custody of his sons and they were taken into care by the social authorities and placed in a foster home . They then had no contact with their father for DATE . In DATE the applicant was granted permission to call them once a month and to visit them when they were visiting his brother , who lived in GPE . The children allegedly had a close relationship with their uncle .

On DATE the applicant requested the Government , through ORG , to revoke the expulsion order . He informed the Government of his true identity , PERSON , and gave an account of what he stated was his true life story . He maintained that he had been politically active within the ORG , distributing newspapers and leaflets , organising demonstrations and writing slogans on walls , and that he had been arrested in DATE and detained for DATE before he was sentenced by a revolutionary court to CARDINAL months’ deportation to the city of PERSON . When he returned home , he married and resumed his political activities . During the autumn of DATE he was again arrested and this time he was tortured during the interrogations . He claimed that he had been whipped , beaten , kicked and placed in very painful positions . After roughly CARDINAL years’ detention , he had been released but had to report to the police once DATE . His relatives had helped him to buy a small lorry to enable him to work and support his wife . During DATE he had decided to flee from GPE and , after careful planning , he had fled with his wife to GPE where he was recognised as a refugee by the ORG High Commissioner for Refugees . In DATE his first son was born . The applicant alleged that many refugees were killed in GPE for which reason he and his family , in DATE , had travelled to the GPE where he had applied for asylum . In DATE his second son was born and , in DATE , his request for asylum was refused by the NORP authorities . On DATE , to avoid being sent back to GPE , the applicant had travelled to GPE with his family , on forged documents , where he had applied for asylum under the name of DATE

Before the Government the applicant submitted that he had continued his political activities in GPE where he had joined ORG ( BNM ) and had become a board member and a member of the editorial board of “ GPE ” , the organisation ’s newspaper . The applicant requested that the Government examine his reasons for asylum based on the information he had submitted . In particular , because of his family situation , an expulsion would mean that his sons would become parentless in GPE . Last , he claimed that the NORP authorities were aware of his political activities and that he would be executed because of this if forced to return to his home country . He submitted several documents to support his claims about his political activities , both in GPE and in GPE , inter alia , of which he submitted the following to the ORG :

A fax from the BNM in GPE , dated DATE , in which it was stated that the applicant was a former member of the central committee of the BNM and a member of the editorial board of the movement ’s news paper , “ Zrombesh ” . It further stated that the applicant would face torture and execution if returned to GPE due to his political activities .

CARDINAL further letter from the GPE , dated DATE , in which it renewed its concerns for the applicant ’s safety if expelled to GPE due to his active opposition to the NORP regime and that country ’s lack of respect for human rights .

A fax from the Spanish Catholic Migration Commission , dated DATE , which drew attention to LAW and noted that to expel the applicant to GPE would imply serious danger to his life and freedom .

A copy of his certificate issued in DATE by the ORG High Commissioner for Refugees in GPE , stating that the applicant was recognised as a refugee by the ORG . His date of birth was noted to be DATE .

On DATE , after a request by the Government , ORG ( Migrationsverket ) submitted its observation regarding the matter . It considered that there were no obstacles to expelling the applicant to GPE .

During DATE the applicant published a book about his life , in NORP , which included information about his political activities , experiences from NORP prisons and criticism of the NORP regime . He claimed that the content of the book would automatically lead to a very harsh sentence for him if he were returned to GPE since he was convinced that ORG in GPE would have obtained a copy of the book . CARDINAL copies of the book had been printed .

Based on this new information , the Government requested that ORG submit supplementary observations . On DATE , ORG maintained that the applicant ’s political activities in his home country as well as the political activities he had performed in GPE before his imprisonment were not such that they could constitute an impediment to the enforcement of his expulsion to GPE . However , it stated that some of the statements made by the applicant in his book were of such a character that it could not be excluded that the NORP authorities had noted them and that the applicant might be apprehended as a result if forced to return . ORG therefore considered that there could be an impediment against enforcing the expulsion for this reason .

On DATE the applicant was conditionally released from prison but placed in detention awaiting expulsion following a decision , DATE , by the Minister of ORG . However , on DATE , the Minister of ORG had also decided that the applicant should not be expelled until the Government decided otherwise .

On DATE the Minister of ORG decided that the applicant should be released from detention .

Apparently , on DATE , the applicant participated in a NORP radio programme which discussed the topic of honour - related murders .

In DATE the ORG requested ORG in GPE to investigate whether the applicant would be at risk if returned to GPE and to submit its assessment on the matter .

On DATE the ORG submitted its answer to the Government . It stated that it was possible that the NORP authorities were aware of the GPE ’s activities outside GPE but that it did not appear that the organisation had any activities or contacts within the country . As concerned the applicant ’s book , the ORG made the assessment that it did not contain any information which could be considered as offensive by the NORP authorities . It noted that the prison conditions in GPE were discussed in the NORP media and that the applicant ’s experiences and descriptions of the prisons were outdated . Moreover , the political activities described by the applicant in his book were not current and were depicted in a vague and summary manner . Thus , the ORG concluded that the applicant would not risk being punished if returned to GPE , neither because of his political activities nor because of his book .

The applicant claimed that the ORG had not seriously read and considered the content of his book . He had also participated in more radio programmes where he had made critical comments against the NORP regime and culture . Moreover , he stated that his wife ’s relatives would kill him if he returned as revenge for having murdered her . Last , he stated that his relationship with his sons was improving all the time and that he met with them and spoke with them on the phone frequently . In particular , his relation to his younger son was getting stronger and his son had asked to be allowed to live with the applicant .

On DATE the Government rejected the applicant ’s request to have the expulsion order revoked . The Government found that there was neither any impediment against the enforcement of the expulsion nor any other special reason , as set forth in LAW , to revoke the expulsion order .

In DATE the applicant lodged a new application with the ORG , requesting that the expulsion order be revoked . He stated that his younger son had had a severe crisis as a result of the ORG ’s rejection since he did not want to lose his father . The younger son spent DATE with his father and had expressed the wish to be allowed to live with him . The older son kept his distance from his father but did not want him to be expelled . He submitted a medical certificated written by a Chief Physician at the Children and ORG in DATE which stated that consideration should be taken of the children ’s difficult situation and need of their father .

On DATE the Government rejected the request , finding no reason to change its previous decision .

In DATE the applicant lodged yet another application with the Government to have the expulsion order revoked . He primarily invoked his younger son ’s deteriorating psychological status which was caused by the fear of losing his father and becoming parentless . The applicant and his younger son had developed a very close relationship and it would cause irreparable damage to the son if his father were to be expelled expelled .

On DATE the Government rejected the application on the same grounds as previously .

On DATE , after a request by the applicant , the President of the ORG to which the case had been allocated decided , under LAW , to indicate to ORG that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE until the ORG had had the opportunity to examine the application on DATE .

Pursuant to LAW , LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .

Provisions on expulsion on this ground are laid down in LAW . According to LAW , section CARDINAL of the LAW , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . Firstly , he or she must be convicted of a crime that is punishable by imprisonment . Secondly , he or she may only be expelled if he or she is in fact sentenced to a more severe punishment than a fine and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he or she will continue his or her criminal activities in GPE or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he or she ought not to be allowed to remain in the country .

Furthermore , under LAW , section CARDINAL of the Act , when considering whether or not an alien should be expelled , the court shall take into account his or her links to NORP society . As regards aliens who are considered to be refugees and in need of protection in GPE , they may be expelled only if they have committed a particularly serious crime and it would entail serious danger for public order and safety to allow them to remain in GPE . An alien with refugee status shall be considered as a refugee in need of protection in GPE unless it is evident that he or she no longer is a refugee with such a need .

Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Further , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .

According to LAW , section CARDINAL of the LAW , if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , the ORG may repeal , in part or completely , the judgment or decision by the court . The ORG may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) grant clemency or reduce a penal sanction or other legal effect of a criminal act .


Violation of Article 1 of Protocol No. 1 - Protection of property

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in different cities in GPE .

On various dates , the applicants inherited or bought plots of land and properties near the coasts in different parts of GPE , namely in GPE , Şarköy , GPE , GPE and GPE . Some of the applicants constructed houses or operated commercial entities on their land .

NORP On different dates , the ORG requested from the competent courts of first instance to determine whether the applicants’ properties were located within the coastal strip . A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area .

Following the conclusion of the expert reports , the ORG brought actions before the relevant courts , requesting the annulment of the ORG title deeds to the land and the properties , on the ground that they were located within the coastal area .

On various dates , the courts of first instance upheld the request of the ORG and annulled in full the applicants’ title deeds in application nos . GPE , CARDINAL/CARDINAL , CARDINAL and CARDINAL , whereas the title deeds in the remaining CARDINAL applications were partially annulled . In their decisions , the courts held that , pursuant to domestic law ( LAW of DATE ) , the coasts could not be subject to private ownership and that , therefore , the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the plots of land .

Appeals by the applicants against these judgments were dismissed by ORG . Some of the ORG requests for rectification of the judgments were also rejected by that court .

In application no . CARDINAL/CARDINAL the applicant brought an action for damages in the Şarköy Civil Court of First Instance on account of his loss of ownership and the demolition of CARDINAL shops located on the land . On DATE ORG Instance dismissed the applicant ’s action on the ground that , inter alia , the ORG was not liable for the damage resulting from the cancellation of the registration of the property in issue . The applicant appealed . In a judgment of DATE ORG upheld the judgment . A rectification request by the applicant was further dismissed by ORG on DATE .

The details concerning the CARDINAL applications are indicated in the table below :

The relevant domestic law and practice in force at the material time are outlined in the PERSON and PERSON v. GPE judgment ( no . CARDINAL , § CARDINAL , DATE ) .