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24. The Government contested that argument, claiming that the Convention required States to provide for only one institution for the legal recognition of a stable relationship. A positive obligation under Article <mask> of the Convention to provide for such an institution could only arise in so far as couples had no access to marriage within the sense of Article 12. | 11 |
106. The applicant insisted that the estate in its entirety, and not his house alone, should be regarded as his home, within the meaning of Article <mask> of the Convention, given that in a traditional Chechen family such as his, particularly in rural areas, personal connections between various family members were tighter than in a modern nuclear family, and that in his case the tight family connections were, in addition, reinforced by the family business. He also pointed out that all the buildings in the estate were situated very close to each other and represented a single complex with a solid fence and a single entrance. The applicant further argued that although he and his family had been absent from the estate at the time of its occupation by the police units, it had not been abandoned, as public utilities had remained in service, the mill had been operational and grain had been stored in the storage facility. He also contested the Government's argument that the police units had been unable to obtain prior authorisation to move onto the applicant's estate in the absence of the local council in the village of Bratskoye. The applicant submitted that the latter had been properly functioning and that, moreover, at the end of September 1999 the administration of the Nadterechny District had been formed and its then head had held office until 9 December 1999. | 11 |
77. The Government accepted that there had been interference with the applicant’s rights under Article <mask> of the Convention. However, they considered that such interference had been justified. In particular, the secret surveillance orders had been based on Article 180 of the Code of Criminal Procedure and had been issued and supervised by an investigating judge pursuant to reasoned and substantiated requests from the OSCOC which the investigating judge had accepted as such. Moreover, such interference had pursued the legitimate aim of investigating and prosecuting crime and had been proportionate to the circumstances and gravity of the offence at issue. | 11 |
22. The applicant complained of an infringement of his private life on the grounds that he had lived in Greece for twelve years in a situation of uncertainty as regards his status, despite the favourable opinion issued by the Advisory Board on Asylum. More specifically, he submitted that he had been living in a state of insecurity for a very long period, and complained of the impact which that had had on his working and family life throughout that period and the lack of adequate procedural safeguards to protect him against arbitrary treatment by the authorities. He also alleged that he had had no effective remedy in order to complain of the aforementioned situation. He relied on Article <mask> of the Convention read alone and in conjunction with Article 13. | 11 |
38. The Government acknowledged in general terms that there had been interference with the applicants’ right to respect for family life under Article <mask> of the Convention. They submitted that the lawfulness and necessity of the decision to annul the first applicant’s residence permit had been duly examined by the domestic courts. The numerous administrative infractions by the first applicant had provided grounds for his exclusion. The domestic courts had found that he “had not demonstrated loyalty to Russian law and order, had violated Russian laws, and had systematically and intentionally committed administrative violations, including those representing danger to third persons; [such behaviour] had shown that the decision to annul the residence permit had been justified, fair, proportionate and had not contradicted the case-law of the European Court”. The first applicant had committed eighteen administrative infractions during the last three years that he had been living in Russia. The Government stressed that the procedural guarantees under Article 8 of the Convention had been complied with, which had been “verified by [an] independent court”. | 11 |
118. The applicants’ complaint concerning their inability to enjoy family life with Ruslan Askhabov, Isa Dubayev and Isa Dokayev concerns the same matters as those examined above under Articles 2 and 3 of the Convention. Having regard to its above findings under these provisions, the Court considers that this complaint should be declared admissible. However, it finds that no separate issue arises under Article <mask> of the Convention in this respect (see, mutatis mutandis, Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003; Laino v. Italy [GC], no. 33158/96, § 25, ECHR 1999‑I; and Canea Catholic Church v. Greece, 16 December 1997, § 50, Reports of Judgments and Decisions 1997‑VIII). | 11 |
68. The applicant complained, under Articles 2, 3, 8 and 13 of the Convention, about the failure of the domestic authorities to afford him adequate protection from an act of violence. The Court considers that in the particular circumstances of the present case these complaints fall to be examined under Article <mask> of the Convention, which, in so far as relevant, reads: | 11 |
82. The Government submitted that the authorities had taken all the necessary measures, as they had immediately opened an investigation into sexual exploitation and had convicted the perpetrators of that offence and identified the perpetrators of the sexual assault on the applicant. Referring to the Court’s judgment in the case of O’Keeffe v. Ireland ([GC], no. 35810/09, §§ 191-92, ECHR 2014 (extracts)), they argued that the complaint under Article <mask> of the Convention did not raise a separate issue from that raised under Article 3 of the Convention. | 11 |
52. The applicant complained, under Articles 6 and 8 of the Convention, that his right to a fair trial and respect for his family life had been violated on account of the courts’ decisions to discontinue contact between him and his three children and their refusal to order family therapy, and the allegedly inadequate work of the welfare authorities. The Court, master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, ECHR 2018), will examine these complaints from the standpoint of Article <mask> of the Convention alone (see Kutzner v. Germany, no. 46544/99, §§ 56 and 57, ECHR 2002‑I, and Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 111, 1 December 2009). This provision reads as follows: | 11 |
115. The applicant therefore cannot be said to have suffered from a lack of long-stay visits. It follows that the applicant cannot claim to be a victim of an alleged violation of Article <mask> of the Convention in so far as he complained about the lack of long-stay visits from his wife (for the principles concerning victim status, see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). | 11 |
46. The Government conceded that, at the time, the operator of the Internet server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of malicious misrepresentation and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State’s positive obligations under Article 8 to safeguard the individual’s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, 28 October 1998, § 128, Reports of Judgments and Decisions 1998-VIII). For the Court, States have a positive obligation inherent in Article <mask> of the Convention to criminalise offences against the person, including attempted offences, and to reinforce the deterrent effect of criminalisation by applying criminal‑law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened, such injunction assumes even greater importance. The Court notes in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996‑IV). | 11 |
38. The Government submitted that Article <mask> of the Convention was not applicable to the applicants’ case and they were not victims of a violation of the Convention right they relied upon. In this connection, they contended that since the applicants had been staying at the scene of the demonstration as visitors, they could not invoke under Article 8 their right to respect for their home. Furthermore, since the applicants had not suffered any physical injury, they could not rely on Article 8 and the State’s obligation to protect their physical integrity against attacks by third persons. The Government also maintained that the applicants’ complaint concerning interference with their psychological integrity was to be considered under Article 3 rather than under Article 8 of the Convention, as in the cases of Karaahmed v. Bulgaria (no. 30587/13, 24 February 2015) and P.F. and E.F. v. the United Kingdom ((dec.), no. 28326/09, 23 November 2010). In this respect the Government also submitted that the impugned treatment had not reached the minimum threshold of severity required for Article 3 to come into play. | 11 |
34. The applicants also complained under Article <mask> of the Convention that conversations with their lawyers were conducted through a glass wall and were overheard or possibly even recorded and that the authorities had failed to provide proper conditions for private discussions with their lawyers. The Court, which is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, § 44), decided to examine the problem raised by the applicants under Article 5 § 4 of the Convention and to obtain the parties' submissions thereon. | 11 |
118. The Government contested that argument. In particular, they submitted that the applicant had failed to submit any evidence in support of her factual claim that she had been evicted from her flat by the police. The Government further submitted that there had been no violation of Article <mask> of the Convention, as the applicant had sold her flat to Rufan Kazimov. | 11 |
71. The Government contested that argument. They submitted that the applicant’s circumstances were not capable of coming within the ambit of private life under Article <mask> of the Convention as the provision did not provide a right to choose the country in which a person sought to reside and work without regard to that country’s immigration laws. Even assuming that the applicant had established private life in the United Kingdom and that it had been interfered with, such interference was in accordance with the law, pursued a legitimate aim, namely the maintenance and enforcement of immigration control, inter alia, for the preservation of the economic well‑being of the country, the protection of health and morals and the protection of the rights and freedoms of others and was proportionate in the circumstances. | 11 |
59. The applicant pointed out that he had been a lawyer since the age of twenty-six and that he had been elected to Parliament for the first time at the age of sixty-six, when he was at the height of his career. Politics was thus a complement to a successful career; it was not the centre of his life and did not mark the end of his career as a lawyer. However, obliged as he was to withdraw from his parliamentary duties in order to be able to pursue his professional activities – a particularly apt field for the development of any individual’s personality, talents and skills – he had been subjected to an unjustified interference in his private and professional life. He relied on Article <mask> of the Convention, which provides: | 11 |
36. The Government raised an objection based on the inapplicability of Article 1 of Protocol No. 1 to the present application, submitting that it should be examined only under Article <mask> of the Convention. They submitted that whilst, in the Mazurek and Merger and Cros judgments, the Court had found violations of Article 1 of Protocol No. 1 in respect of inheritance disputes concerning illegitimate children, this was only because the applicant’s parent had already died at the material time so the applicant had acquired rights to a share in the estate (see Mazurek v. France, no. 34406/97, § 42, ECHR 2000‑II, and Merger and Cros v. France, no. 68864/01, § 32, 22 December 2004). They submitted that, contrary to the aforementioned cases, the applicant in the instant case did not have any right to a share in his late mother’s estate or property. They alleged, more specifically, that the applicant had inheritance rights but that, by virtue of the deed of inter vivos division of 1970, those rights lacked any real substance. The Government concluded that Article 1 of Protocol No. 1 was inapplicable (see, mutatis mutandis, Alboize-Barthes and Alboize-Montezume v. France (dec.), no. 44421/04, 21 October 2008). | 11 |
34. The applicants complained of the maintenance in force of Article 209 of the Criminal Code, which criminalises homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of their convictions under that provision. Relying on Article <mask> of the Convention taken alone and in conjunction with Article 14, they alleged that their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable. | 11 |
359. The Government contested the applicants’ argument. They submitted, firstly, that the complaint was incompatible ratione materiae with the provisions of the Convention. In their view, the relations between the US applicants and the children they sought to adopt constituted neither “family life” nor “private life” within the meaning of Article <mask> of the Convention and did not fall within the ambit of that provision for the purposes of Article 14 either. The Government pointed out that the right to adopt is not, as such, included among the rights guaranteed by the Convention and that Article 8 does not oblige States to grant a person the status of adoptive parent or adopted child (see X v. Belgium and Netherlands, no. 6482/74, Commission decision of 10 July 1975, and Di Lazarro v. Italy, no. 31924/96, Commission decision of 10 July 1997). Furthermore, according to the Court’s case law, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family (see Fretté v. France, no. 36515/97, § 32, ECHR 2002‑I). | 11 |
111. The applicant complained that, by failing to secure regular contact with her sons, which was necessary to maintain family ties between them, the domestic authorities had breached their positive obligations and thereby violated her right to respect for her family life, as guaranteed by Article <mask> of the Convention. She also complained under Article 13 of the Convention that she had not had an effective remedy by which to complain about that violation. The relevant part of those Articles reads as follows: | 11 |
35. The Government agreed that the eviction order of 8 June 2015 constituted an interference with the applicants’ right to respect for their home. However, that interference had been in accordance with the law, had pursued the legitimate aim of the protection of other individuals in need of social housing and had been “necessary in a democratic society”. In particular, the first applicant’s tenancy agreement had come to an end after his retirement, and after the applicants’ eviction the flat in question had been provided to Sh., an employee of the prosecutor’s office. Therefore, there had been no violation of Article <mask> of the Convention. | 11 |
73. The Government added that as surrogacy was a moral and ethical issue and there was no consensus on the question among the States Parties, the latter should be afforded a wide margin of appreciation in that area and in the manner in which they apprehended the effects of the relevant legal parent-child relationship established abroad. In their view, having regard to that wide margin of appreciation and the fact that the applicants were leading a normal family life on the basis of the US civil status of their children and that the latters’ best interests were protected, the interference in the exercise of their rights guaranteed under Article <mask> of the Convention was “entirely proportionate” to the aims pursued, with the result that there had been no violation of that provision. | 11 |
289. The Government pointed out, first of all, that the relevant applicants had not adduced any documents proving their title to the houses, or any detailed description of the property allegedly lost by them. The Government argued that it was incumbent on the relevant applicants to have their property rights confirmed under domestic law by the competent national authorities. They further argued that the alleged interference with the relevant applicants’ rights secured by Article <mask> of the Convention and Article 1 of Protocol No. 1 had been lawful, as the counter-terrorism operation in the Chechen Republic, in the context of which the strikes of 19 October 1999 had been executed, had been launched and carried out on the basis of Presidential Decrees nos. 2137, 2166 and 2155c of 30 November and 9 December 1994 and 23 September 1999 respectively, Governmental Decree no. 1360 of 9 December 1994, and the Suppression of Terrorism Act of 25 July 1998. In the Government’s submission, the aforementioned decrees, except for certain provisions, had been found compatible with the Russian Constitution by the Russian Constitutional Court. The Government insisted that all the aforementioned legal instruments had met the requirements of foreseeability and accessibility. | 11 |
42. The Government contended that according to the available evidence, the police officers did not carry out a search of the applicant organisation’s premises within the meaning of the criminal procedure rules. Furthermore, the police officers did not enter the offices of the public notaries, and even when collecting the relevant evidence they remained in the waiting area, which was open to the general public. Given that the police officers were not present at the signing of the sale contract behind closed doors, Article <mask> of the Convention was not applicable to the instant case in so far as it concerned the applicant organisation’s right to respect for its home. | 11 |
10. The applicant complained under Article 6 § 1 of the Convention that the principle of equality of arms had been infringed on account of his lack of access to the classified information submitted by the Ministry of Defence to the Supreme Military Administrative Court and the non-communication to him of the written opinion of the principal public prosecutor attached to this court. He further complained under Article <mask> of the Convention that the secret security investigation conducted by the Ministry of Defence in relation to him and his family had breached his right to private life. | 11 |
51. The Government further contended that the circumstances of this case did not fall under the concept of “private life” within the meaning of Article <mask> of the Convention, as there was no sufficient connection between the applicant and her nephew. Firstly, the applicant and her nephew were not close relatives biologically (such as mother and son). Secondly, the applicant had met her nephew only once (see paragraph 12 above). | 11 |
70. The applicant complained that the welfare authorities had unjustifiably taken his children into foster care and restricted his contact with them. He further complained that the court proceedings had not been conducted diligently; in particular that they had been excessively delayed, while his family ties with Y and Z had deteriorated. The Court considers that these issues fall to be examined under Article <mask> of the Convention (see V.A.M. v. Serbia, no. 39177/05, § 115, 13 March 2007, and Karadžić v. Croatia, no. 35030/04, §§ 33-63 and 67, 15 December 2005). | 11 |
19. The applicant alleged a violation of his right to respect for family life on account of the lack of practical opportunities for prison visits stemming from the decision to allocate him to a remote penal facility and his subsequent inability to obtain a transfer elsewhere. He relied on Article <mask> of the Convention, which reads, in so far as relevant, as follows: | 11 |
66. The Government relied on three further arguments in contending that Article <mask> of the Convention was not applicable in the present case. Firstly, there was no evidence to suggest that the transcript of the applicant’s communications had been disclosed to his work colleagues; the applicant himself had produced the full transcript of the messages in the proceedings before the domestic courts, without asking for any restrictions to be placed on access to the documents concerned. Secondly, the national authorities had used the transcript of the messages as evidence because the applicant had so requested, and because the prosecuting authorities had already found that the monitoring of his communications had been lawful. Thirdly, the information notice had contained sufficient indications for the applicant to have been aware that his employer could monitor his communications, and this had rendered them devoid of any private element. | 11 |
35. The Government argued that the authorities had acted diligently, without delays and within the limits of their powers, and had thus complied with their positive obligations under Article <mask> of the Convention. They pointed out that the applicant had not complained about the assistance received from the bailiff and reiterated that the latter could not have forcibly taken the child away from the father. In their view, the person solely responsible for the non-enforcement was I.T. | 11 |
32. The applicant also complained under Article 6 § 1 of the Convention about unfair outcome of the proceedings against the local hospital and the courts’ incorrect assessment of evidence and interpretation of the law. He further complained under Article <mask> of the Convention that the Certificate contained his personal data and was issued in breach of his right to private life. | 11 |
33. The applicant submitted that her inability to adopt Hind constituted an interference with her family life. She asserted that, even though she had been able, by judicial decision, to give the child her surname, her inability to obtain recognition of a legal parent-child relationship was incompatible with Article <mask> of the Convention. She pointed out that Hind was born in Algeria but that she had no family ties in that country since her biological parents remained unknown. Having arrived in France at the age of three months, and having been brought up in that country, the girl had also developed all her cultural, social and emotional associations there. | 11 |
22. The Government invokes the case of B.G. v. Poland concerning Article <mask> of the Convention and Dubjaková v. Slovakia (both cited above) concerning Article 6 and argues that the amount awarded was adequate. However, the Court is of the opinion that the findings in the aforementioned cases cannot be relied on in the case at hand because of the different nature of the alleged violation. In consequence, the amount of compensation awarded at national level in cases related to different violations of the Convention cannot be regarded as decisive in cases raising issues under Article 3. Additionally, the Polish national system does not provide for any alternative form of redress for a violation of a prisoner’s rights on the grounds of detention in inadequate, overcrowded conditions. Financial compensation is the only post-violation measure available to victims but national law does not limit the amount of compensation (see, a contrario, Stella v. Italy (dec.), no. 49169/09, §§ 59-63). | 11 |
34. The Government did not dispute the fact that the censorship of the letter from the Constitutional Court, being a State authority within the meaning of Article 102 (11), and of the letter sent by the Court’s Registry constituted an interference with the applicant’s right to respect for his correspondence. They admitted that it had been in breach of Articles 102 (11) and 103 read in conjunction with Article 214 of the 6 June 1997 Code. In this respect, the Government pointed out that the rights of persons detained on remand should, in principle be at least equal to those of convicted persons serving a sentence of imprisonment. They submitted that under the above mentioned provisions both categories of correspondence were privileged and should not have been subjected to censorship. Accordingly, the measures imposed by the domestic authorities had been unlawful. However, the Government reserved their opinion on the alleged violation of Article <mask> of the Convention in this respect. | 11 |
73. The applicant complained that his right to privacy had been breached because (i) the Internet service provider (hereinafter “the ISP”) had retained his alleged personal data unlawfully and (ii) the police had obtained subscriber data associated with his dynamic IP address and consequently his identity arbitrarily, without a court order, in breach of Article <mask> of the Convention, which reads as follows: | 11 |
56. The Government further contended that, even assuming that they had owed any duty vis-à-vis the applicant under Article <mask> of the Convention, they had taken all reasonable actions to ensure a fair balance between her interests and those of the community. Firstly, K. Street had served as a through road since 1983. In 1998 the street’s status as part of the motorway had merely been confirmed during the stocktaking project. The Government should therefore not be held responsible for the decision to route the traffic via K. Street. Secondly, following the entry of the Convention into force, the authorities had been contemplating the construction of a new through road, bypassing residential streets. However, they had had no choice but to use the existing road until the necessary funding could be found, as closing it off would have caused considerable detriment to the economic well-being of the country. Contrary to the applicant’s argument, the use of the road had not been at odds with applicable law, because paragraph 1.9 of the State Construction Guidelines had recommended, but had not required, that major motorways be constructed outside populated communities. | 11 |
37. The applicant complained that it was impossible for her to obtain cancellation of Mr D.’s registration as permanently resident at her house, a fact which disturbed her and adversely affected the assessment of her situation in various contexts, such as for the purpose of social contributions towards dwelling costs and the calculation of fees for the removal of household waste. She alleged a violation of her right to respect for her private life and home under Article <mask> of the Convention, the relevant parts of which provide: | 11 |
31. The Government accepted that there had been an interference with the applicant’s rights under Article <mask> of the Convention. However, they considered that such interference had been lawful and justified. In particular, the secret surveillance orders had been based on Article 180 of the Code of Criminal Procedure and had been issued and supervised by an investigating judge on the basis of reasoned and substantiated requests from the competent State Attorney’s Office. The interference had also pursued the legitimate aim of investigating and prosecuting the crime of drug trafficking and had been proportionate to the circumstances, the gravity of the offence at issue and the applicant’s criminal activity. | 11 |
68. The applicant complained that the circumstances of his visit to a hospital to see his seriously ill daughter had violated his rights under Article <mask> of the Convention and added, relying on Article 6 § 1 of the Convention, that this matter had not been addressed by the domestic courts. Article 8 of the Convention has already been quoted above. The relevant part of Article 6 § 1 reads as follows: | 11 |
87. The applicant argued that because of the failure of the national authorities to enforce their own decisions adopted in various proceedings instituted against B on charges of verbal and physical violence against her, she had no effective remedy by which to obtain protection against B's violence. The Court notes that these very same issues have already been examined above under Article <mask> of the Convention and have led to a finding of a violation of that Article. Therefore, the Court considers that in the specific circumstances of the present case it is not necessary to examine whether, in this case, there has been a violation of Article 13 of the Convention. | 11 |
61. The applicant submitted that there had been a breach of Article <mask> of the Convention for the same reasons for which there had been a breach of Article 2 of Protocol No. 4. The lengthy and unjustified travel ban had practically destroyed his relations with his family in Germany. That could not be regarded as justified for the achievement of any legitimate aim. Nor could his family be required to mitigate the effects of the ban by settling in Bulgaria. The applicant also submitted that because of the criminal proceedings against him he had remained unemployed for a long period of time and thus been unable to pay maintenance to his family. Lastly, he maintained that, as was evident from the divorce petition lodged by his former wife, the divorce had been a direct consequence of the travel ban. | 11 |
24. The applicant further claimed that he did not have an effective remedy to protect his rights without suffering considerable financial loss, which resulted in him not enjoying the minimum protection of the right set out in Article <mask> of the Convention. The applicant contested the Government’s submissions that the Supreme Court’s decision not to award damages and legal costs had been foreseeable, viewed in the light of the practice in this type of case, where statements are declared null and void. | 11 |
233. The Government asked the Grand Chamber to confirm the Chamber’s finding that the two applicants had lost their “victim” status. They had been granted both ex nunc and ex tunc permanent residence permits in the course of the proceedings before the Chamber and had been afforded just satisfaction in respect of the violation of their rights under Article <mask> of the Convention. In any event, the Grand Chamber could not examine those parts of the application which had been declared inadmissible by the Chamber (they cited Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 61, ECHR 2007‑I). | 11 |
73. The applicants complained that the authorities had not taken effective measures to bring the nuisances from the computer club to an end. The Milevi sisters additionally complained about the passiveness of the authorities with regard to the electronic games club and the office in the flat adjoining theirs. They relied on Article <mask> of the Convention, which provides, in so far as relevant: | 11 |
67. The applicant complained that the facts of the case had given rise to a breach of Article <mask> of the Convention. Her right to due respect for her private life and her physical and moral integrity had been violated both substantively, by failing to provide her with a legal therapeutic abortion, and as regards the State’s positive obligations, by the absence of a comprehensive legal framework to guarantee her rights. | 11 |
133. The applicant stressed that the relevant legislation had given the authorities a virtually unlimited power to interfere with his correspondence. He maintained that, even assuming that the authorities had intended to secure the proper conduct of the criminal proceedings in his case, the duration of that measure, as well as its scope and nature had by no means been necessary in a democratic society. The need to achieve the aim pursued by the authorities had not required them to read all his letters, notwithstanding whether they had been of strictly personal or of official character. In particular, there had been no reason whatsoever to open and read his correspondence to the lawyer representing him before the Commission and the Court, as such letters were privileged under Article <mask> of the Convention. | 11 |
55. The Government, at the outset, submitted that the widow's pension did not fall within the ambit of Article <mask> of the Convention because it was payable following bereavement and, in contrast to the widowed mother's allowance, was not aimed at enhancing family or private life. However, later in the proceedings before the Court the Government accepted the applicant's argument that the widow's pension fell within the ambit of that Article. | 11 |
32. The applicants complained that the decision to remove the first applicant constituted an unjustified interference with their family life, in so far as it had led to the separation of the nuclear family. In particular, the applicants argued that the first applicant's removal had not been necessary in a democratic society and was in breach of the guarantees of Article <mask> of the Convention, which reads as follows: | 11 |
47. The Government denied, however, that the inability to adopt Hind constituted an “interference” with the applicant’s family life. The Court shares that view. It observes in this connection that the applicant did not complain of any major hindrance to the continuance of her family life but argued that to ensure respect for the latter it was necessary to equate kafala with full adoption and thus to recognise a legal parent-child relationship, this being excluded by Article 370-3 of the Civil Code where the child’s country of origin prohibited adoption. In those circumstances, the Court finds it more appropriate to examine the complaint in terms of positive obligations. In this connection, the Court would draw a distinction between, on the one hand, the situation in the present case, where the law of the respondent State merely refuses to equate kafala with adoption and refers to the child’s personal law to determine whether such adoption is possible, and, on the other, the situation in the Wagner and J.M.W.L. judgment (cited above), where it decided that the Luxembourg courts, in refusing to grant enforcement of an adoption decision by a Peruvian court, had disregarded the legal status validly created abroad, in an unreasonable manner, and had thus breached Article <mask> of the Convention. The Court reiterates that the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002‑VI). | 11 |
107. The applicant argued that the courts’ interpretation of section 116 of the Family Act in her case had amounted to discrimination against people with mental illnesses. In particular, the domestic courts’ conclusion that a parent suffering from mental illness was unfit for the everyday care of his or her child and also unworthy of parental rights despite the fact that he or she did not neglect the child voluntarily was in breach of Article 14 in conjunction with Article <mask> of the Convention. States should take effective measures to tackle discrimination against people with disabilities, and those people should be afforded an opportunity to influence decisions which interfered with their rights and interests. Moreover, there was no objective and reasonable justification for her discriminatory treatment. | 11 |
49. The applicant complained about the rupture of her family ties with her daughter caused by the lack of a prompt reaction from the Romanian and Bulgarian authorities in respect of return of the child, the length of the custody proceedings in Romania, and the enforcement of her custody rights over the child. She relied in substance on Article <mask> of the Convention, which reads as follows: | 11 |
55. The applicant submitted that the restrictions on him practising law as an advocate had interfered with his right to respect for his private life and were therefore covered by Article <mask> of the Convention. He relied on a number of Court judgments, including Niemietz v. Germany (16 December 1992, § 29, Series A no. 251‑B). He disagreed with the Government’s objection of non-exhaustion of domestic remedies. | 11 |
44. The applicant complained that the Hungarian authorities had failed to execute the judicial decision establishing the residence of her child with her and thus also failed to ensure the swift return of her child after his father had taken him without her consent. In so doing, the authorities had failed to secure her parental rights with respect to her son. She relied on Article <mask> of the Convention, which reads as follows: | 11 |
27. The applicant considers that donating “her” five cryopreserved embryos that are not destined for implantation pertains to her “private life” within the meaning of Article <mask> of the Convention and fulfils a public interest, since it provides researchers with stem cells much needed for research on incurable diseases[35]. On the basis of the above-mentioned interpretation of Article 8 of the Convention, in conjunction with Article 18 of the Oviedo Convention, the Government’s argument that section 13 of Law no. 40 of 19 February 2004 pursues the legitimate aim of protecting the embryo’s potential for life is acceptable. In that light, scientific research on a human embryo, authorised for therapeutic and diagnostic purposes with the aim of protecting the health and development of that embryo when no alternative methods exist, is an admissible exception to the prohibition of scientific research on human embryos. | 11 |
43. The applicant complained under Article 6 §§ 1 and 2 of the Convention that both the Assize Court and the Court of Cassation had failed to deliver reasoned judgments. Relying upon Article 6 § 3 of the Convention, he also argued that he had not been given sufficient time to prepare his defence and that he had not had the opportunity to examine witnesses. Finally, invoking Article <mask> of the Convention, he repeated the complaint he had made under Article 3. | 11 |
177. The applicants' complaint concerning their inability to enjoy family life with Lecha Basayev and Lema Dikayev concerns the same facts as those examined above under Articles 2 and 3 of the Convention. Having regard to its above findings under these provisions, the Court considers that this complaint should be declared admissible. However, it finds that no separate issue arises under Article <mask> of the Convention in this respect (see, mutatis mutandis, Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003; Laino v. Italy [GC], no. 33158/96, § 25, ECHR 1999‑I; and Canea Catholic Church v. Greece, judgment of 16 December 1997, § 50, Reports 1997‑VIII). | 11 |
98. The Government further indicated that in 2002 municipal decree no. 30 had been annulled, and, at present, the boundary of the sanitary security zone remains undefined. The Federal Program of 1996, which provided for the resettlement of the residents of the zone, is no longer in force. On these grounds on 12 July 2002 the Cherepovets Town Court rejected the first applicant's claims against the steel-plant. However, in the Court's view, it does not mean that the danger for the first and other applicants' health and well-being is no longer there. The de facto abolishment of the sanitary security zone was decided not because the concentrations of toxic substances reached safe levels, but on formal grounds. For almost ten years decree no. 30 was in force and applied by the courts. Its validity has not been called into question either by the steel-plant, or by the municipality itself. Moreover, on many occasions various domestic official bodies confirmed that the applicants lived in the territory of the sanitary security zone where concentrations of certain toxic substances were above acceptable levels and which was therefore unsuitable for human residence. At last, in their observations on admissibility and merits the Government admitted that the applicants' houses were located within the zone (see the decision on admissibility of the present cases of 16 September 2004). Thus, in the eyes of the Court, the annulment of decree no. 30 and ensuing changes in the legal status of the zone has no bearing on the applicants' situation from the standpoint of their complaints under Article <mask> of the Convention. | 11 |
36. The applicant complained under Article <mask> of the Convention of the lack of a regulatory framework for the legal recognition of his gender identity and about the requirement, which had no basis in domestic law, that he undergo genital surgery as a precondition for having his (male) gender identity recognised. Under Article 13, the applicant alleged a lack of an effective remedy. The Court considers that this later complaint is absorbed by the applicant’s complaint about the lack of legal framework for legal gender recognition and will be analysed accordingly. Article 8 of the Convention reads as follows: | 11 |
21. The Government submitted that Article <mask> of the Convention was inapplicable on the grounds that at the material time or at the time of introduction of the application the SNCF could not be regarded as a public authority within the meaning of the second paragraph of Article 8 and that there had been no interference with the exercise of the applicant’s right to respect for his private life within the meaning of that provision. | 11 |
37. The applicant submitted that the interception of his mail in prison, although formally based on the relevant provisions of the 1969 Execution of Punishments Act, had been unlawful, because it had been contrary to the provisions of Articles 34 and 35 § 5 of 1991 Constitution and of section 18(2) of the 1991 Bar Act. A provision similar to the one in the applicant’s case, but applicable only to remand prisoners, had been declared invalid by the Supreme Administrative Court in 2000. Moreover, section 132g of the 1969 Execution of Punishments Act had been declared unconstitutional and contrary to Article <mask> of the Convention in 2006. However, as this declaration had had only prospective effect, it had not impacted on the applicant’s situation. His mail with his lawyer had been opened and read by the prison authorities, which had caused him to feel vulnerable and had obliged the lawyer to visit him in prison. That measure had not been authorised by a judicial authority and had not been intended to uncover or prevent offences. | 11 |
66. The Government took the view that there had not been a violation of Article <mask> of the Convention. The domestic courts’ decisions concerning the applicant’s access to and information about F. had not interfered with the applicant’s right to respect for his family life. Referring to the Court’s case‑law (they cited, in particular, L. v. the Netherlands, no. 45582/99, and Hülsmann v. Germany (dec.), no. 33375/03, 18 March 2008), the Government argued that mere biological kinship, without any close personal relationship, was insufficient to attract the protection of Article 8 § 1. In the present case, F. lived together with his mother and his legal father in a stable family unit. | 11 |
89. The Government emphasised that the right to maintain personal relations and direct contact with both parents on a regular basis is, first and foremost, a right of a child and not of her/his parents. The parents' right of access to their children are protected but should not be given priority over a child's best interests. Under Article <mask> of the Convention a balance should be struck between the interests of all members of the family and, when those interests are at variance, the interests of the child should prevail. Legal regulations, and in particular law enforcement procedures, should not bring about results contrary to the child's best interest. The Government were of the opinion that in the present case the interests and rights of the child might have been violated if the father's access to his daughter had been enforced by more coercive measures than those actually applied. | 11 |
142. The applicant went on to submit that until 2009, when the 1988 Act had been amended, he had not had at his disposal any remedy in respect of the alleged breach of his rights under Article <mask> of the Convention. The existence of such a remedy was not certain even after that amendment, because there was no reliable mechanism allowing those concerned to learn whether they had been subjected to secret surveillance. | 11 |
49. The Government agreed with the Chamber’s reasoning and conclusion to the effect that there had been no violation of Article <mask> of the Convention in the present case. They noted that the impugned legislation had been passed in order to prevent inequality caused by varying administrative practices throughout the country and in order to set coherent preconditions for legal gender recognition. The bill had initially required that the person requesting legal gender recognition be unmarried or not in a registered partnership and had not allowed his or her marriage or registered partnership to continue in another legally recognised form. This had been seen as unreasonable during the legislative procedure and therefore the conversion mechanism had been introduced into the provision. Since the entry into force of the Transsexuals (Confirmation of Gender) Act, at least fifteen marriages had been turned into registered partnerships and sixteen registered partnerships into marriages. In nine cases the spouses had had children together and in none of these cases had the legal parent-child relationship changed. | 11 |
88. The Government agreed that some interference with the applicant’s right to respect for his family life had occurred in the case at issue. However, there had been no violation of Article 8 since, during the period in question, the Regional Court had allowed the applicant’s brother to visit him twice in prison. The applicant had also been permitted to make two phone calls in June 1996 and one call in August 1996. In addition, the Government stressed that both the applicant’s mother and his brother had been witnesses in the proceedings against him. In this respect they submitted that the restrictions imposed on the applicant’s contact with his mother had been justified by the need to secure the proper conduct of the proceedings. They averred that the applicant could have exchanged correspondence with his mother. Moreover, the restrictions imposed on the applicant had been quashed immediately after it had become clear that the applicant’s mother would not testify as a witness in the judicial proceedings. In sum, the domestic authorities maintained a fair balance of proportionality between the need to secure the process of obtaining evidence and the applicant’s right to respect for his family guaranteed under Article <mask> of the Convention. | 11 |
107. The Government considered that there was no family life within the meaning of Article <mask> of the Convention between the first applicant and Mrs Saleh and their children as Mr Al-Nashif had not proven that he had been legally married to Mrs Saleh and had often been away from the family home as he had contracted a second marriage. Those facts were allegedly indicative of the lack of an emotional or family link between Mr Al-Nashif and his children. | 11 |
64. The applicant further made two complaints concerning his right to respect for his correspondence. He firstly complained of the fact that a postal parcel sent to him to Gospić Prison on 30 August 2004 by his parents had never been delivered. Secondly, he complained that some six to eight letters sent by him from the prison had never been forwarded to the addressees. He relied on Article <mask> of the Convention, the relevant parts of which read as follows: | 11 |
79. The Government submit that the rules in force at the relevant time in relation to detainees’ contacts with the outside world were compatible with the Convention. On this point, the Government contend that the new National Ordinance on Prisons, which contains regulations on detainees’ outside contacts by letter, telephone and visits, as well as the grounds on which a detainee’s right to respect for his correspondence may be restricted, fully meets the requirements of Article <mask> of the Convention. | 11 |
83. The applicants complained about the refusal of their requests to have the indication of gender on their birth certificates corrected on the grounds that persons making such a request had to substantiate it by demonstrating that they actually suffered from a gender identity disorder and that the change in their appearance was irreversible. They criticised the fact that the latter requirement meant that transgender persons who, like them, wished to have the indication of their gender amended in their civil-status documents were compelled to undergo prior surgery or treatment entailing irreversible sterility. The applicants relied on Article <mask> of the Convention, which provides: | 11 |
38. The applicant claimed 268,000 euros (EUR) in respect of non-pecuniary damage: (a) EUR 168,000 for suffering and distress due to violation of his right to family life under Article <mask> of the Convention, (b) EUR 50,000 for suffering and distress for the unjustified duration of the proceedings and (c) EUR 50,000 for suffering, distress and psychological damage in respect of the violation of the right to fair trial. | 11 |
31. The applicants further complained under Article 6 § 1 of the Convention that the proceedings regarding the prohibition of use order were unfair. Relying on Article <mask> of the Convention they invoked that the prohibition of use order violated their right to family life. Furthermore, the applicants complained under Article 1 of Protocol No. 1 about the refusal of the building permit. They finally alleged a violation of Articles 2 and 3 of Protocol No. 7 without further substantiation. | 11 |
31. The Government stressed that, since the applicant’s stay in Norway had been unlawful, the impugned expulsion did not constitute an interference with her right to respect for her family life for the purposes of Article <mask> of the Convention. The question was rather whether the Norwegian authorities “were under a duty to allow the .., applicant to reside” in Norway, “thus enabling [her] to maintain and develop family life” in that country (see, Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 38, ECHR 2006‑I). In other words, the case should be regarded as “one involving an allegation of failure on the part of the respondent State to comply with a positive obligation” (ibid.). | 11 |
199. The applicant complained under Article <mask> of the Convention and Article 1 of Protocol No. 1 to the Convention of the interim seizure of her flat. The Court observes that on 11 March 2002 the Yuzhno-Sakhalinsk Town Court lifted the seizure of the applicant's flat, following which she waived her relevant court claim at the domestic level. It also does not appear that she has ever attempted to bring court proceedings for compensation for the allegedly unlawful interim seizure of her flat. The applicant therefore failed to exhaust domestic remedies and her relevant complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. | 11 |
71. The applicant contended that his eviction from the site interfered unjustifiably with his rights under Article <mask> of the Convention, as being unnecessary and disproportionate, in particular as he was not given the opportunity to challenge in a court the allegations made against him and his family. He denied that he or members of his family living on the plot had breached any term of the licence as alleged by Council officers and stated that he had no control over the conduct of visitors to the site, such as his adult sons or Michael Maloney. There was significant support for his family from other occupiers of the site which contradicted the situation as described by the Council. He disputed that it was reasonable or proportionate to evict him and his family for reasons relating to other adults. The Council failed to use other methods to control the alleged misbehaviour, such as injunctions or committal proceedings against those adults who were committing the damage or nuisance and appeared to make no distinction concerning the occupation of the two plots, 35 and 36. Nor when the applicant gave undertakings in court on 14 April 2000 did the Council apply for enforcement measures in respect of alleged breaches. | 11 |
34. The applicants complained that covert listening devices were used by the police to monitor and record their conversations at a flat, that information was obtained by the police concerning the use of a telephone at the flat and that listening devices were used while they were at the police station to obtain voice samples. They relied on Article <mask> of the Convention, the relevant parts of which provide as follows: | 11 |
120. The Government submitted that the applicants had not exhausted domestic remedies with regard to their complaint under Article <mask> of the Convention. In the first place, they had not raised that complaint in substance before the domestic courts; while the applicant Hreiðar Már Sigurðsson had made a passing reference to Article 8 in his appeal to the Supreme Court, the applicants had in their written pleadings relied principally on Article 6 of the Convention. The Supreme Court’s judgment did not indicate that it had addressed directly the question whether the phone tapping had infringed Article 8 and the summary of the applicants’ oral pleadings did not mention that this had been argued at the main hearing. Furthermore, the applicants had not brought any other proceedings, such as a civil action against the State seeking damages for the violation of their rights under Article 8. In their submissions in reply to the applicants’ observations, the Government indicated that the applicant Hreiðar Már Sigurðsson had lodged a civil action against the State in the District Court on 15 November 2016. They subsequently informed the Court that in a judgment of 30 April 2018 the District Court had awarded him ISK 300,000 in respect of telephone tapping which had taken place after the applicant had been told that he was a suspect but had rejected his claim as regards conversations with his lawyer on the ground that they had not been listened to beyond for the purpose of identifying who was speaking. | 11 |
28. The applicant complained that his allegations in respect of Article 3 also gave rise to a violation of Article <mask> of the Convention. In addition, he complained about restrictions on telephone calls. As regards the latter, the applicant submitted that he had often been under pressure from other inmates to terminate his telephone conversations before the allotted time had expired. He also alleged that his correspondence had been limited to certain identified people. | 11 |
97. The Government submitted, firstly, that the first applicant had had an effective remedy for his complaint under Article <mask> of the Convention. In particular, he could have lodged a cassation appeal with the Supreme Court of Russia. The Government further submitted that the Russian authorities had given all possible diplomatic assistance to the first applicant in recovering his daughter from Uzbekistan. However, they had been unable to influence the judicial proceedings there. The first applicant had not appealed against the Uzbek authorities’ decisions to appoint X’s grandmother as her guardian and to deprive him of parental authority. Nor had he applied to the Russian courts with a request to restore his parental authority. | 11 |
209. The Government did not dispute that its refusal of 25 March 2005 to return the body of Aslan Maskhadov (see paragraphs 103-105 above) constituted an interference with the applicants’ rights to private and family life protected by Article <mask> of the Convention. The Court sees no reason to hold otherwise. It notes that the decision was taken in accordance with Article 3 of Decree no. 164 dated 20 March 2003 and section 16 (1) of the Suppression of the Terrorism Act, which precluded the competent authorities from returning the bodies of terrorists who died as a result of the interception of a terrorist act. | 11 |
24. The applicants submitted in reply that the Federal Supreme Court did not have jurisdiction to hear an appeal in their case because of the jurisdictional bar in section 83(c)(3) of the Federal Supreme Court Act. The judgment relied on by the Government had been given after they had lodged the present complaint and did not concern a request for temporary residence. Such an appeal would have lacked prospects of success even if it had been declared admissible by the Federal Supreme Court, which, in its well‑established case-law, did not recognise that persons granted temporary residence in Switzerland could invoke Article <mask> of the Convention. | 11 |
80. The applicant complained under Article <mask> of the Convention that the investigative authorities and the command of the Unit disseminated offensive information about his son’s personal life. However, the Court notes that the applicant did not sue anyone for defamation, thus failing to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. This complaint must, therefore, be rejected in accordance with Article 35 § 4. | 11 |
14. The applicants complained of the maintenance in force of Article 209 of the Criminal Code, which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of their convictions under that provision. Relying on Article <mask> of the Convention taken alone and in conjunction with Article 14, they alleged that their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable. | 11 |
131. The Government seemed to suggest that the applicant should not be considered to have a right to enjoy family life with M. due to his alleged non-payment of child support. The Court observes that the applicant was acquitted of the charges brought against him in this connection and that in any event this argument, which was not even relied on by the domestic authorities, could not be decisive in assessing the nature of the tie between the applicant and M.. Having regard to the facts of the case, the Court therefore considers that the tie between the applicant and M., who are a father and his daughter, falls within the scope of “family life” within the meaning of Article <mask> of the Convention. | 11 |
54. The Government acknowledged that the search of the applicant’s home interfered with his right to respect for his private life. They submitted that it was justifiable under the second paragraph of Article <mask> of the Convention as being necessary in a democratic society for the prevention of disorder or crime. The Government further submitted that the search warrant was executed in compliance with the procedural requirements set out in Articles 227, 228 and 230 of the CCP. | 11 |
49. The applicants alleged that the school authorities had failed to organise a class in ethics for the third applicant and complained about the absence of a mark in his school reports in the space reserved for “religion/ethics”. They claimed that the third applicant had been subjected to discrimination and harassment for not having followed religious education classes. The applicants invoked Articles 9 and 14 of the Convention. The Court raised of its own motion a complaint under Article <mask> of the Convention, namely whether the facts of the case disclose a breach of the State's positive obligation to ensure effective respect for the applicants' private life within the meaning of that provision. | 11 |
27. The Government did not deny that the notion of private life, which is also referred to in Article <mask> of the Convention, could sometimes encompass information enabling a person's physical or social identity to be established. They observed that in Gaskin v. the United Kingdom (judgment of 7 July 1989, Series A no. 160), the applicant, who had been taken into care at a very early age, wished to consult the confidential case records that had been compiled by the local authorities containing reports by everyone connected with the care proceedings. He was not able to gain access to all the information in his file as some of the contributors refused to provide him with information they had given in confidence. In the present case, the French State had not refused to furnish the applicant with information but had taken into account her mother's refusal from the beginning to allow her identity to be disclosed. As in Gaskin, the application in the present case concerned two competing interests: the applicant's interest in finding out her origins and the interest of a woman who from the outset did not wish to be regarded as the applicant's mother in preserving her private life. However, the applicant's request did not concern information on “highly personal aspects of [her] childhood, development and history”, as her aim was to make contact with her siblings, whose existence she had only discovered on becoming an adult and whom she had never met. The Government said in conclusion that, as it stood, the applicant's request did not come within the scope of “private life” within the meaning of Article 8 of the Convention, as it concerned information relating to a natural family from which she had been separated since birth following her mother's decision to abandon her. | 11 |
26. The applicant argued that the measure constituted an interference with his rights under Article <mask> of the Convention, which had also been conceded by the Austrian authorities. However, when applying the relevant provisions of the 1992 Aliens Act, the domestic authorities had wrongly found that the measure was “necessary in a democratic society”. In particular it did not correspond to a “pressing social need” for the prevention of disorder or crime. Unlike the administrative authorities, the Juvenile Court, by suspending the major part of the sentence, had obviously made a positive prognosis in respect of the applicant. The Juvenile Court had taken into account the applicant’s young age of eighteen years, the short period of time during which he had committed the offences, namely two and a half months, together with the fact that the applicant had no previous criminal record. Further, the administrative authorities had grossly disregarded the applicant’s high degree of integration in Austria, namely his lawful residence and that of his family for years, as well as his school education and completion of a vocational training on the one hand, and the lack of any family ties with Serbia and Montenegro after his grandparents’ death on the other. Thus, the imposition of a residence prohibition of an unlimited duration was disproportionate to the aims pursued. | 11 |
69. The applicant asserted that her representatives had spent 32 hours each at the rate of EUR 50 on the Court proceedings. In support of this claim, the applicant submitted a contract dated 14 February 2017 concluded with Mr I. Khatiashvili. The latter document specified that the applicant was to pay the relevant sum to Mr Khatiashvili if the European Court established a violation of her rights under Article <mask> of the Convention. As regards the applicant’s second representative, Ms L. Mukhashavria, the applicant only submitted the first page of a supposed contract. | 11 |
70. The Government contended, as they did at the admissibility stage, that the applicants had not exhausted domestic remedies as required by Article 35 § 1 of the Convention as they had not sought redress by means of an action under Article 11 et seq. of the Civil Code as regards the alleged violation of Article <mask> of the Convention. In the Government's view, that remedy was effective within the meaning of the Court's case-law as it gave the applicants the opportunity to have the unjustified interference with their personal rights stopped and also to obtain financial compensation for any non-pecuniary damage which they may have suffered. That remedy was thus also capable of remedying the negative consequences of the protracted length of the proceedings complained of. | 11 |
35. The applicant claimed under Article <mask> of the Convention that his prison sentence had interrupted his family life and prevented him from taking care of his sick wife. He further claimed that his unconditional prison sentence in the current case meant that he also had had to serve two-thirds of his other two sentences and this had resulted in increased time in prison. | 11 |
83. The Government maintained that the applicant companies had failed to exhaust domestic remedies. Although the applicant companies had referred to Article <mask> of the Convention in their appeal to the Supreme Court, they had not argued that there had been a violation of that provision. They had merely maintained that section 4-10 of the Tax Assessment Act had to be interpreted in the light of Article 8. In this connection, the Government referred to certain passages in the applicant companies’ additional pleadings to the Supreme Court dated 3 October 2007 (apparently referring to those of 6 July 2007, quoted at paragraph 37 above). | 11 |
46. The applicant submitted that the employment tribunals had carried out an insufficient assessment and balancing of the interests at stake. This was consistent with an automatic judicial policy that existed in such matters for the benefit of the Churches, which, in his view, enjoyed a privileged status in German law that was not granted to any other charity-type association. His rights to respect for his private life or his private sphere had not been examined by the employment tribunals. In the applicant’s submission, Article <mask> of the Convention conferred on him the right to discontinue a particular way of life and to begin a new one. He argued that, whilst he did not call into question the right of the Churches to manage their affairs autonomously, that right could not go as far as forcing their employees to observe precepts outside the occupational sphere. He asserted that the employment tribunals had extended their case-law in a totally unforeseeable manner, as until then a dismissal had only been endorsed in the event of remarriage, and not on account of a private extramarital relationship. In view of the large number of ecclesiastical precepts, there was a lack of foreseeability in this connection and the decision to dismiss ultimately depended solely on the view of each human resources manager. The role of the employment tribunal was thus limited to upholding the wishes of the employing Church. According to the applicant, as a consequence of this tendency the employer and the employment tribunal were increasingly scrutinising the employee’s private life in order to establish and assess the facts on which the dismissal was based. Moreover, the fact that a particular employee failed to comply with certain ecclesiastical precepts to the letter would not undermine the credibility of the Church, but would merely be a manifestation of the individual’s human condition. | 11 |
83. The Government argued that it had been open to the applicants to complain to the courts about their allocation to penal facilities located outside their home region, in accordance with the provisions contained in Chapter 25 of the Code of Civil Procedure. Since they had not had recourse to the above remedy, their complaint had to be dismissed for failure to exhaust domestic remedies. In the alternative, the Government argued that the applicants had failed to comply with the six-month requirement for lodging their complaint. They considered that the applicants’ allocation to penal facilities had been a “single moment” decision and did not give rise to a continuous situation for the purposes of calculating the six-month rule under Article 35 § 1 of the Convention. The Government further submitted on the merits of the complaint that the applicants’ allocation to remote penal facilities had amounted to an interference with their rights under Article <mask> of the Convention. However, despite the fact that the legal grounds for allocating persons convicted, as the applicants, under Articles 208 (membership of an illegal armed group) and 317 (attempt on the life of a law-enforcement officer) of the Criminal Code to penal facilities determined by the FSIN (Article 73 § 4 of the CES), had been introduced several months after the applicants’ actual transfer, the interference had nevertheless been in accordance with the law, had been necessary and had not amounted to a violation of Article 8 of the Convention. The applicants had been given long prison sentences, to be served in strict-regime penal facilities. However, at the relevant time there had been no such penal facilities in the Chechen Republic, which was why the applicants had been allocated to penal facilities in other regions. Furthermore, had the applicants remained in the Chechen Republic to serve their sentences, it would have created a serious risk to public order and safety in view of the criminal situation in the region at the material time. | 11 |
65. The Government argued that there had been no interference with the applicant’s right to respect for her family life. All forms of family relationship had been extinguished at the latest at the time of the adoption. Citing Schneider v. Germany, no. 17080/07, § 80, 15 September 2011, the Government pointed out that biological kinship between a biological parent and child alone, without any further legal and factual elements indicating the existence of a close personal relationship, was insufficient to attract the protection of Article <mask> of the Convention. The Government noted that in the case at hand the children never lived with the applicant. | 11 |
29. The Government accepted that the custody proceedings at issue constituted an interference with the applicant's rights under Article <mask> of the Convention. They argued, however, that the obligation of national authorities to take measures to facilitate contact by a non-custodial parent with children pending, or after divorce, was not absolute. In the present case, the Austrian courts were not to be blamed for their inactivity as initially, under the Turkish legislation applicable to the proceedings at issue, no decision on the custody could be taken since such decision had to be taken in the framework of divorce proceedings which were at the time still pending. After the applicant's new request for custody of F. in June 1996, the courts acted without delay. The Government further pointed out that a transfer of F.'s custody from his father to the applicant could at no time be considered as granted. The procedural steps taken in the proceedings at issue exclusively served the best interest of the children. | 11 |
29. The applicant complained that the domestic courts’ refusal to allow him to challenge Mr M.’s paternity and to have his own paternity legally established violated his right to respect for his private and family life as protected by Article <mask> of the Convention. He complained, in particular, that the relevant legislation, as construed by the family courts, let the social family’s interests generally prevail over the biological father’s interests, without allowing for an examination of the specific circumstances of the case. He further complained under Article 8, read in conjunction with Article 6 of the Convention, that the family courts had failed to examine sufficiently whether there existed an enduring relationship between the child and her legal father. He further complained that the alleged excessive length of the proceedings had predetermined their outcome. | 11 |
171. The applicants alleged that the searches carried out in their houses during and after the abduction of their relatives were unlawful and constituted a violation of their right to respect for home. They further complained that the disappearance of their close relatives after their detention by the State authorities caused them distress and anguish which had amounted to a violation of their right to family life. They referred to Article <mask> of the Convention, which provides: | 11 |
96. The Government also submitted that, owing to his frequent business trips abroad, the applicant usually spent more than half a year outside Lithuania, away from his wife and daughter. Accordingly, the gravity of the applicant’s situation could not be compared to the gravity of the situations in other cases involving immigration questions which the Court had examined under Article <mask> of the Convention. | 11 |
37. The Government pointed out that it is not per se incompatible with the Convention to limit access to reopening of paternity cases, in particular when the rules are reasonable and flexible like those in the Danish legislation and they pursue the legitimate aim of safeguarding the interest of the child, including providing stability and legal rights deriving from having a father registered. In the present case, all those concerned were heard and the cases were thoroughly examined by the domestic courts. The High Court’s final decision that the requirements set out in sections 24 and 25 for a reopening had not been fulfilled was taken in what it considered to be the best interests of the children. In these circumstances, and having regard to the margin of appreciation and the principle of subsidiarity, the Government maintained that the refusal to reopen the paternity cases was not in violation of Article <mask> of the Convention. | 11 |
59. The Government submitted that the proceedings brought by the applicant had fully complied with the requirements of Article <mask> of the Convention. The courts had thoroughly and actively examined the case, admitting a number of expert reports and other evidence, but finding no medical malpractice. They had dealt with all relevant points, including whether the operation had been necessary, what was the proper approach by the operating team if the medical imaging tests were inconclusive, and whether the applicant had given informed consent to the operation and more generally whether she had been properly advised. | 11 |
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