CASE OF A.P. AND R.P. v. POLAND
This judgment, *A.P. and R.P. v. Poland* (application no. 1298/19), concerns the refusal of Polish authorities to transcribe a foreign birth certificate of a child born to a same-sex couple. The applicants, a Polish mother and her son, challenged the refusal to register the child’s birth certificate, which listed two women as parents, arguing it violated their rights under Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. The Polish authorities had relied on the “public policy” clause, asserting that the registration of a same-sex parentage would contradict the fundamental principles of the Polish legal order, which defines a family as a union between a man and a woman. The Court found that while the refusal did not violate the applicants’ right to family life, it did constitute a disproportionate interference with the second applicant’s (the child’s) right to respect for his private life. The Court concluded that the authorities failed to conduct a sufficient analysis of the child’s best interests and that the refusal, based on the parents’ sexual orientation, created a situation of legal uncertainty for the child. Consequently, the Court found a violation of Article 8 and Article 14 in conjunction with Article 8 regarding the second applicant’s private life.
### Structure and Provisions
The decision is structured into the following key sections:
1. **Preliminary Remarks:** The Court addresses the Government’s objections regarding victim status, exhaustion of domestic remedies, and the “significant disadvantage” threshold, ultimately joining these to the merits and dismissing them in relation to the child’s private life.
2. **Article 8 (Private and Family Life):** The Court distinguishes between the applicants’ family life (finding no violation) and the child’s private life (finding a violation). It emphasizes that the child’s identity and legal status were negatively impacted by the legal uncertainty created by the refusal.
3. **Article 14 (Discrimination) in conjunction with Article 8:** The Court examines whether the refusal was based on the parents’ sexual orientation. It finds that the distinction made by the authorities was based “solely or decisively” on the circumstances of the child’s birth into a same-sex family, which is unacceptable under the Convention.
4. **Just Satisfaction:** The Court awards the second applicant 5,000 EUR for non-pecuniary damage.
**Changes compared to previous versions:** This judgment reflects an evolution in the Court’s approach by explicitly distinguishing this case from previous surrogacy-related cases (like *S.-H. v. Poland*). It moves away from a strict “consequence-based” test by acknowledging that the reasons for the refusal—specifically the parents’ sexual orientation—are intrinsically linked to the applicants’ private lives, thereby engaging the Convention more robustly.
### Main Provisions for Use
The most important provisions for legal practitioners and observers are:
* **Best Interests of the Child:** The Court reaffirms that in all decisions concerning children, their best interests must be a primary consideration. The interests of a child cannot depend solely on the sexual orientation of their parents.
* **Legal Uncertainty:** The Court establishes that a state’s refusal to recognize a parent-child relationship legally established abroad, which leaves a child in a state of “legal uncertainty” regarding their identity and access to citizenship-related documents, constitutes a disproportionate interference with the right to private life.
* **Non-Discrimination:** The judgment clarifies that distinctions based “solely or decisively” on the sexual orientation of parents are not acceptable under the Convention.
* **:** This decision is highly relevant for Ukraine and Ukrainians, as it reinforces the protection of children’s rights and identity within the European legal space, particularly for families residing abroad or in cross-border situations where legal recognition of parentage is contested. It underscores that states must provide an effective mechanism to recognize parent-child relationships established in other jurisdictions to protect the child’s best interests.
CASE OF CĂLDĂRARI v. THE REPUBLIC OF MOLDOVA
This judgment concerns a tragic case of medical negligence in the Republic of Moldova, where a young boy suffered severe neurological damage and permanent paralysis following a dental procedure under general anaesthesia, eventually leading to his death. The applicants, the boy’s mother and the boy himself, alleged that the medical staff acted negligently and that the subsequent domestic investigations were entirely ineffective in establishing the truth or providing redress. The European Court of Human Rights (ECtHR) examined the case under Article 2 (the right to life), focusing on both the substantive medical care and the procedural adequacy of the state’s response. While the Court found no violation regarding the substantive medical treatment itself, it ruled that the state failed its procedural obligations. The judgment highlights a systemic failure to conduct a thorough and independent investigation into arguable claims of medical malpractice.
### Structure and Provisions
The decision is structured into three main parts: the facts of the case, the relevant legal framework, and the Court’s legal assessment.
* **Substantive Aspect:** The Court applied the criteria from *Lopes de Sousa Fernandes v. Portugal*, noting that for a state to be held substantively liable for medical negligence, there must be a denial of emergency treatment or a systemic/structural dysfunction. Finding neither, the Court ruled there was no violation of the substantive limb of Article 2.
* **Procedural Aspect:** The Court scrutinized the criminal, disciplinary, and civil remedies available in Moldova. It found that the criminal investigation was plagued by delays, a narrow focus on individual doctors, and a failure to follow judicial instructions to investigate broader issues like equipment safety and the lawfulness of the anaesthetic used.
* **Changes/Evolution:** Unlike previous cases where civil remedies might have been deemed sufficient, the Court here emphasized that because the criminal investigation was so fundamentally flawed, it effectively “poisoned” the applicants’ ability to pursue a successful civil claim, rendering the entire domestic system ineffective.
### Key Provisions for Legal Use
This decision is highly significant for practitioners dealing with medical negligence cases in the Council of Europe area for the following reasons:
1. **The “Procedural Poisoning” Effect:** The Court established that when a criminal investigation is so deficient that it fails to gather basic evidence (such as inspecting medical equipment or clarifying conflicting expert reports), the state cannot then argue that the applicant should have exhausted civil remedies. If the state’s own investigative failure makes a civil claim “highly uncertain” or impossible to win, the civil remedy is no longer considered “effective.”
2. **Standard of Thoroughness:** The judgment provides a clear checklist for what constitutes a “thorough” investigation. It explicitly criticizes the reliance on “hasty or ill-founded conclusions” and the failure to conduct actual physical inspections of medical equipment, noting that relying on paper records alone is insufficient when there is an arguable claim of negligence.
3. **Independence of Experts:** The Court reiterated that while it is not its role to act as a medical expert, it will intervene if domestic findings are based on a “manifestly arbitrary” or “incomplete” investigation. The fact that the Court compared Moldovan forensic reports with independent Romanian reports underscores the importance of seeking objective, cross-border expertise in complex medical cases.
4. **Positive Obligations:** The case serves as a reminder that even if a state is not substantively responsible for a medical error, it has a strict positive obligation to provide a legal system that allows victims to find out *what* happened.
**:** This decision is highly relevant for the Ukrainian legal context, as it addresses the effectiveness of investigations into medical negligence and the interplay between criminal and civil proceedings. Given the current challenges in the Ukrainian judicial and investigative systems, this judgment provides a strong precedent for arguing that incomplete or “formalistic” investigations into medical malpractice constitute a violation of the procedural requirements of Article 2 of the Convention.
CASE OF DRAGONI AND OTHERS v. ITALY
This judgment concerns the case of *Dragoni and Others v. Italy*, which centers on the Italian authorities’ decision to declare a child available for adoption and permanently sever her ties with her biological parents and grandparents. The European Court of Human Rights (ECtHR) found that the domestic courts failed to provide sufficient justification for such a radical measure and did not adequately support the family in overcoming their difficulties. The Court emphasized that the authorities prioritized a definitive break in the family bond over less intrusive, supportive measures, despite evidence of the parents’ progress. Furthermore, the domestic courts failed to order a necessary updated expert assessment, relying instead on stale evidence while the family’s personal situation had evolved. Consequently, the Court ruled that the interference with the applicants’ right to family life under Article 8 was disproportionate and lacked the necessary procedural safeguards.
### Structure and Main Provisions
The decision is structured as a standard Chamber judgment, moving from the facts of the case to the legal assessment of Article 8 complaints.
* **Admissibility:** The Court dismissed the Government’s objection regarding the failure to exhaust domestic remedies, confirming that the applicants had sufficiently raised their grievances throughout the national proceedings.
* **Merits:** The Court applied the established principles regarding the “necessity in a democratic society” of separating a child from their family. It highlighted that while the state has a margin of appreciation, the severance of family ties is an extreme measure reserved for exceptional circumstances, which were not sufficiently proven here.
* **Article 46 (Individual Measures):** A key feature of this judgment is the Court’s reference to the new Article 391 *quater* of the Italian Code of Civil Procedure. This provision allows for the revocation of final domestic judgments that have been declared contrary to the Convention, providing a direct mechanism for the applicants to seek a re-examination of their case.
### Key Provisions for Practical Use
For legal practitioners and observers, the most important aspects of this decision are:
1. **The “Last Resort” Principle:** The Court reaffirmed that the removal of a child and the declaration of adoptability must be a measure of last resort. The state has a positive obligation to provide targeted social assistance to help parents overcome vulnerabilities (such as mental health issues or lack of integration) before opting for permanent separation.
2. **Requirement for Updated Assessments:** The judgment underscores that when a significant amount of time passes during proceedings, courts cannot rely on outdated expert reports. If there is a claim of positive development in the parents’ situation, the failure to order a fresh expert assessment constitutes a significant procedural flaw.
3. **Protection of Grandparents’ Rights:** The Court explicitly recognized that the relationship between grandparents and grandchildren falls under the scope of “family life” under Article 8. It held that authorities have a duty to facilitate these ties, and the reduction of contact without sufficient justification or support is a violation of the Convention.
4. **The Role of New Domestic Remedies:** The Court’s reliance on the “Cartabia Law” (Article 391 *quater* of the Italian Code of Civil Procedure) signals a shift in how the ECtHR expects states to handle the execution of its judgments, encouraging the use of national revocation mechanisms to rectify human rights violations directly.
***
*Note: This case involves the rights of parents and grandparents to maintain contact with a child in the context of state-ordered adoption, emphasizing the necessity of preserving family bonds whenever possible.*
CASE OF UBEDA AND OTHERS v. ITALY
This judgment in the case of *Ubeda and Others v. Italy* (application no. 9993/24) concerns the failure of Italian authorities to protect a mother and her two minor children from domestic and sexual violence. The Court found that the state failed to conduct a prompt and effective criminal investigation, which was marred by sexist stereotypes and significant procedural delays. Simultaneously, the Juvenile Court’s handling of custody proceedings was deemed characterized by inertia and a failure to address the victims’ safety, resulting in a three-year, disproportionate placement in a restrictive shelter. The Court concluded that these systemic failures violated the applicants’ rights under Articles 3 and 8 of the Convention. This decision is **** as it highlights the critical need for a holistic, gender-sensitive approach by both criminal and civil judicial bodies in cases of domestic violence.
### Structure and Provisions
The judgment is structured into three main legal sections:
1. **Admissibility:** The Court rejected the Government’s objection regarding the non-exhaustion of domestic remedies, ruling that the applicants were not required to wait indefinitely for the conclusion of proceedings that were clearly ineffective.
2. **Articles 3 and 8 (Criminal Investigation):** The Court analyzed the state’s positive procedural obligations. It found that the public prosecutor’s initial request to discontinue the case—which dismissed violent acts as “bad jokes” or “disciplinary measures”—reflected a dangerous, stereotyped culture. The Court emphasized that the lack of progress in the criminal trial for over three years constituted a failure to provide a proportionate response to the alleged violence.
3. **Article 8 (Juvenile Court Inaction):** The Court examined the civil proceedings, noting that the Juvenile Court failed to rule on custody, maintenance, and relocation requests for years. It criticized the use of “pre-printed templates” that ignored the specific allegations of violence, thereby causing secondary victimization and failing to protect the children’s best interests.
### Key Provisions for Legal Use
For practitioners and observers, the following points are the most significant:
* **The “Holistic” Requirement:** The Court explicitly stated that protection against domestic violence must be ensured not only in criminal courts but also in civil and juvenile proceedings. Judges are under a duty to assess the credibility of violence allegations and their impact on parental capacity.
* **Secondary Victimization:** The judgment reinforces that judicial decisions based on gender stereotypes or the failure to acknowledge domestic violence in custody disputes constitute a breach of the Convention. It validates the concerns raised by GREVIO regarding the “backfiring” of the justice system against protective mothers.
* **Proportionality of Protective Measures:** The Court established that placing victims in a shelter for years without ongoing assessment of the necessity or proportionality of that measure—especially when it restricts the victims’ freedom more than the perpetrator’s—is a violation of Article 8.
* **Procedural Diligence:** The judgment clarifies that the “effectiveness” of an investigation is linked to its speed. Prolonged, unjustified adjournments in criminal and civil proceedings are sufficient to establish a violation of the state’s positive obligations.
* **Pre-printed Templates:** The Court expressed serious concern over the use of standardized, pre-printed judicial templates in complex domestic violence cases, noting that such practices prevent the necessary individualized assessment of the victims’ specific circumstances and safety needs.
CASE OF BAŞTOVOI v. THE REPUBLIC OF MOLDOVA
The case of *Baştovoi v. the Republic of Moldova* (application no. 22126/15) concerns the violation of the presumption of innocence by state authorities during the early stages of a criminal investigation. In 2011, the Moldovan Ministry of Internal Affairs published a press release and video footage of the applicant’s arrest and home search, explicitly suggesting his guilt before any court had reached a verdict. The applicant, a former member of parliament, challenged this through domestic civil courts, but his claims were dismissed, leading him to apply to the European Court of Human Rights (ECtHR). The Court found that the authorities’ use of accusatory language and the public dissemination of sensitive investigative materials effectively bypassed the judicial process. Consequently, the ECtHR ruled that the state had breached Article 6 § 2 of the Convention. This judgment serves as a stern reminder to law enforcement agencies that public communication must remain neutral and avoid prejudging the outcome of criminal proceedings.
### Structure and Provisions
The decision follows the standard structure of a Committee-level judgment, comprising the facts of the case, the admissibility assessment, the merits, and the application of Article 41 (just satisfaction).
* **Admissibility:** The Court rejected the Government’s arguments regarding the loss of “victim status” and the alleged premature nature of the application. It affirmed that civil-law remedies in Moldova are, in principle, an effective way to address breaches of the presumption of innocence, thereby satisfying the exhaustion of domestic remedies requirement.
* **Merits:** The Court focused on the “choice of words” used by public officials. It distinguished this case from others where information was purely procedural, noting that the Ministry’s release went beyond informing the public by asserting that “sufficient evidence was gathered to prove the guilt” of the applicant.
* **Changes/Evolution:** The judgment reinforces the Court’s recent trend (as seen in *Rytikov v. Ukraine* and *Kezerashvili v. Georgia*) of confirming that civil litigation is a valid and necessary avenue for individuals to seek redress for reputational damage caused by state-sponsored media campaigns during ongoing criminal investigations.
### Key Provisions for Legal Practice
For practitioners and observers, the following points are the most critical:
1. **The “Choice of Words” Standard:** The Court established that public officials must exercise extreme caution. Using phrases that imply established guilt—such as claiming evidence “proves” guilt or highlighting an “admission” before a court has ruled—constitutes a violation of Article 6 § 2.
2. **Visual Impact:** The decision highlights that the publication of video footage of an arrest or search, when paired with accusatory text, significantly increases the risk of violating the presumption of innocence by creating a “trial by media” atmosphere.
3. **Effectiveness of Civil Remedies:** The Court has clearly signaled that applicants do not necessarily need to wait for the conclusion of criminal proceedings to seek redress for prejudicial statements. If a domestic civil remedy exists, it must be utilized, and the ECtHR will recognize it as a legitimate path to exhaustion.
4. **Independence from Criminal Outcomes:** The Court clarified that the eventual outcome of the criminal trial is immaterial to the specific complaint regarding the violation of the presumption of innocence caused by the state’s public statements.
***
**:** This decision is highly relevant for the legal landscape in Ukraine and for Ukrainian citizens. Given the ongoing war and the high volume of criminal proceedings involving public interest, the Court’s emphasis on the responsibility of state authorities to avoid “trial by media” and the validation of civil-law remedies for such violations provide a clear precedent for Ukrainian lawyers to protect the rights of their clients against prejudicial official communications.
CASE OF CUCEROV v. THE REPUBLIC OF MOLDOVA
This judgment in the case of *Cucerov v. the Republic of Moldova* (application no. 44393/15) addresses the critical issue of police entrapment and the right to a fair trial under Article 6 § 1 of the Convention. The applicant, a former police officer, was convicted of bribe-taking after a private individual, acting under the supervision of the National Anticorruption Centre, initiated contact to facilitate a sting operation. The European Court of Human Rights (ECtHR) found that the domestic courts failed to address the applicant’s substantive argument that he had been incited to commit the crime. By ignoring the entrapment defense and failing to verify whether the crime would have occurred without police intervention, the national courts deprived the applicant of a fair trial. Consequently, the Court ruled that there was a violation of Article 6 § 1 of the Convention. This decision reinforces the principle that judicial authorities must rigorously examine allegations of entrapment to distinguish between legitimate investigative activity and state-induced crime.
### Structure and Provisions
The decision follows the standard structure of an ECtHR judgment:
1. **Subject Matter:** Outlines the core complaint regarding the failure of domestic courts to examine the entrapment defense.
2. **Factual Background:** Details the timeline from the initial confiscation of a driving license in 2012 to the sting operation in October 2013 and the subsequent criminal proceedings.
3. **The Court’s Assessment:** This section applies the established “substantive” and “procedural” tests for entrapment. The Court notes that while it could not definitively prove entrapment, the applicant’s claim was “arguable,” thereby triggering a duty for the domestic courts to investigate.
4. **Application of Article 41:** The Court determined that the finding of a violation itself constitutes sufficient just satisfaction, rejecting the applicant’s claim for monetary compensation.
Compared to previous jurisprudence (such as *Matanović v. Croatia* and *Akbay and Others v. Germany*), this decision does not alter the fundamental legal principles but serves as a stern reminder of the procedural obligations of national courts when an entrapment defense is raised.
### Key Provisions for Legal Practice
The most important aspects of this judgment for legal practitioners are:
* **The Procedural Burden:** The Court reaffirmed that once a defendant raises an “arguable” claim of entrapment, the burden shifts to the prosecution to prove that no incitement occurred. If the prosecution fails to do so, the judiciary is strictly obligated to examine the facts to uncover the truth.
* **The “Arguable” Threshold:** The Court clarified that even if the evidence is “equivocal,” if the defendant’s allegations are not “wholly improbable,” the courts cannot simply dismiss the defense or ignore it.
* **Duty to Reason:** The judgment highlights a failure of the Supreme Court of Justice to properly review the case file, as it incorrectly claimed the entrapment argument had not been raised in lower courts. This serves as a warning that domestic courts must accurately verify the procedural history of a case before dismissing arguments on technical grounds.
* **Scope of Entrapment:** The Court reiterated that the entrapment doctrine applies even when the “agent” is a private individual acting under the direction or supervision of law enforcement, not just when police officers act undercover.
This case is a significant reminder that the fairness of a trial is compromised if the judiciary remains passive in the face of credible allegations of state-sponsored incitement.
CASE OF RUSSU v. THE REPUBLIC OF MOLDOVA
This judgment in the case of *Russu v. the Republic of Moldova* (application no. 2697/15) concerns the critical importance of the principle of legal certainty in civil litigation. The applicant, Ms. Maria Russu, lost ownership of half of her late parents’ house and land after a court annulled a donation contract twelve years after its execution. The domestic courts had permitted the applicant’s brother to challenge the contract long after the statutory limitation period had expired, citing the brother’s disability and alleged deception. The European Court of Human Rights (ECHR) found that by applying new legislation retroactively to reopen a settled legal situation, the domestic courts violated the applicant’s rights. Consequently, the Court ruled that the state must compensate the applicant’s heir for the loss of property and the resulting non-pecuniary damage.
### Structure and Provisions
The decision follows the standard structure of an ECHR judgment:
1. **Facts of the Case:** Outlines the 2000 donation contract, the 2012 challenge by the brother, and the subsequent domestic court rulings that voided the contract.
2. **Locus Standi:** The Court affirms that the applicant’s daughter has a legitimate interest in continuing the case following the applicant’s death, specifically due to the economic nature of the claim.
3. **Legal Assessment:** The Court addresses the violation of Article 6 § 1 (Right to a fair trial/legal certainty) and Article 1 of Protocol No. 1 (Protection of property).
4. **Article 41 (Just Satisfaction):** The Court awards the applicant’s heir EUR 42,500 for pecuniary damage, EUR 3,000 for non-pecuniary damage, and EUR 1,500 for costs.
Compared to previous case law, this judgment reinforces the established doctrine that states cannot use the enactment of new procedural laws to retroactively unsettle legal situations that were already finalized under previous limitation periods.
### Key Provisions for Legal Practice
The most significant aspects of this decision for legal professionals are:
* **Prohibition of Retroactive Application of Time-Limits:** The Court explicitly ruled that applying new civil code provisions to “revive” claims that were already time-barred under the old law is incompatible with the Convention. This serves as a vital safeguard against the arbitrary reopening of settled civil disputes.
* **The Primacy of Legal Certainty:** The judgment reiterates that while domestic courts have the power to interpret local law, they must do so in a way that does not undermine the finality of judicial decisions. Allowing a challenge to a 12-year-old contract effectively destroyed the applicant’s “legitimate expectation” of ownership.
* **Protection of Property Rights:** The ruling confirms that the annulment of a property title based on a time-barred action constitutes an interference with the peaceful enjoyment of possessions, triggering a violation of Article 1 of Protocol No. 1.
* **Economic Interest of Heirs:** The Court’s decision to allow the daughter to pursue the case confirms that claims involving significant property loss are transferable to heirs, ensuring that the state cannot evade liability simply because an applicant passes away during the proceedings.
This decision is a stark reminder to national judiciaries that the principle of legal certainty acts as a fundamental barrier against the erosion of property rights through procedural manipulation.
CASE OF ZAYETS v. UKRAINE
This judgment, **** for the Ukrainian legal landscape, concerns the tragic death of a ten-year-old boy who was struck by a train at an informal, unfenced railway crossing in Irpin in 2016. The European Court of Human Rights (ECtHR) examined the case under Article 2 of the Convention, focusing on the State’s failure to implement preventive safety measures and the subsequent lack of an effective investigation. The Court found that the authorities were aware of the high-risk nature of this specific crossing, which was frequently used by children, yet failed to take timely, reasonable steps to secure the area. Furthermore, the Court highlighted a systemic failure in the domestic investigation, which was characterized by prolonged inactivity, loss of evidence, and a disregard for the rights of the victims’ parents. Ultimately, the Court ruled that Ukraine violated both the substantive and procedural limbs of Article 2, ordering the State to pay damages to the applicants.
### Structure and Provisions
The judgment follows the standard structure of an ECtHR ruling:
* **Introduction and Facts:** Details the incident, the lack of fencing at the time of the accident, and the subsequent, belated safety improvements.
* **Legal Assessment:** Divided into the “Preventive Obligation” (substantive limb) and the “Procedural Obligation” (procedural limb) of Article 2.
* **Just Satisfaction:** The Court’s decision on financial compensation for non-pecuniary and pecuniary damages, as well as legal costs.
* **Key Changes/Context:** Unlike some previous cases where the State might argue that an accident was solely due to individual negligence, this decision emphasizes that when the State is aware of a “real and immediate risk” in a dangerous activity (like rail transport), it has a positive obligation to act. The judgment notes that the eventual installation of fences proved that such measures were neither excessively burdensome nor technically impossible, rendering the State’s previous inaction a violation.
### Main Provisions for Practical Use
For legal practitioners and human rights advocates, the following elements are the most critical:
1. **Positive Obligations in Dangerous Activities:** The Court clarifies that when a State authorizes dangerous activities (railway transport), it must ensure a system of rules and control to minimize risk. If the State knows of a specific, high-risk location (like an informal crossing near a school), it is legally required to take reasonable, timely physical measures to prevent loss of life.
2. **Standard of “Effectiveness” in Investigations:** The Court provides a checklist of what constitutes a failed investigation. In this case, the investigation was deemed “flagrantly deficient” due to the failure to question key witnesses (the train crew), the failure to conduct medical examinations, the loss of evidence, and the refusal to grant the parents formal victim status.
3. **Accountability of Authorities:** The judgment underscores that internal disciplinary inquiries are not a substitute for an effective criminal investigation. The fact that police officers were only “symbolically” disciplined for their failure to investigate further highlights the Court’s intolerance for impunity in cases involving the right to life.
4. **Evidence Management:** The ruling serves as a warning that the failure to secure original documents and the reliance on formalistic, non-substantive responses to victims’ requests will be viewed by the Court as evidence of either “manifest incompetence or sabotage.”
This decision is a significant precedent for **** future litigation in Ukraine regarding state negligence in public safety and the standard of investigative diligence required by law enforcement agencies.
