Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart ideas;Freedom to impart information;Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

Mr PERSON was born in DATE and lives in GPE . He is a lecturer at ORG of ORG and is an expert and legal practitioner in the field of freedom of expression .

Mr PERSON and PERSON were born in DATE and DATE respectively . Mr PERSON is a professor of law at LAW . PERSON is an assistant professor of law at ORG and director of the university ’s FAC .

PERSON ( http://www.youtube.com ) is the leading video - hosting website on which users can upload , view and share videos . Most videos on the site or on PERSON channels can be viewed by any Internet users , but only users with a ORG account may upload video files . The platform is available in CARDINAL countries . CARDINAL users visit the site DATE , viewing DATE of videos .

On DATE , under section CARDINAL(CARDINAL)(b ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of PERSON no . ORG on regulating Internet publications and combating Internet offences ( “ Law no . CARDINAL ” ) , ORG made an order for the blocking of access to the website ORG and the IP addresses CARDINAL providing access to the website . The court held , among other things , that the content of CARDINAL pages on the website ( CARDINAL video files ) infringed PERSON no . DATE prohibiting insults to the memory of GPE .

On DATE the first applicant lodged an objection against the blocking order of CARDINAL DATE . Relying on his right to freedom to receive and impart information and ideas , he sought to have the order set aside .

On DATE the second and third applicants , as ORG users , also lodged an objection against the blocking order of CARDINAL DATE . They sought to have the order set aside , arguing that there was a public interest in having access to GPE and that the blocking of such access seriously impaired the very essence of their right to freedom to receive information and ideas . They also submitted that CARDINAL of the CARDINAL pages to which the order of CARDINAL DATE related had already been deleted and that the other CARDINAL were no longer accessible from inside GPE . This meant , in their submission , that the blocking order had become devoid of all purpose and constituted a disproportionate restriction on the rights of Internet users to receive and impart information and ideas .

On DATE ORG Instance dismissed the applicants’ objection , holding in particular that the blocking order complied with the requirements of the legislation . Addressing the inaccessibility of the video files from inside GPE , it stated that while access to the files had indeed been blocked by GPE within GPE , the videos in question had nevertheless not been removed from the website ’s database and thus remained accessible to Internet users worldwide . It also held that as they had not been parties to the investigation procedure , the applicants did not have locus standi to challenge such orders . Lastly , the court noted that an objection against the same blocking order had already been dismissed on DATE .

On DATE ORG upheld the decision of DATE of ORG , holding that it had complied with the procedural rules and fell within the court ’s discretion .

On DATE ORG Instance adopted a further decision concerning PERSON , ordering the blocking of access to the website ORG and CARDINAL other IP addresses belonging to the site .

On DATE the second and third applicants lodged an objection against the additional blocking order of CARDINAL DATE .

On DATE ORG Instance dismissed the objection lodged by those CARDINAL applicants and by representatives of GPE and ORG . Addressing the inaccessibility of the video files from inside GPE , it reiterated that while access to the files had indeed been blocked by GPE within GPE , the videos in question had nevertheless not been removed from the website ’s database and thus remained accessible to Internet users worldwide . It also held that as they were not parties to the case , the applicants did not have locus standi to challenge such orders . It added that , given that the website in question had continued to infringe the law by remaining active , the blocking order was compatible with the requirements of the legislation . Lastly , it rejected the argument that the provision applied in the present case was unconstitutional .

In the judgment of DATE referred to above ( see paragraph CARDINAL ) , ORG also upheld the decision of CARDINAL July DATE of ORG .

The Government indicated that in the period before and after the order blocking access to GPE , between CARDINAL DATE and DATE , CARDINAL complaints had been made to ORG ( “ the ORG ” ) to the effect that PERSON was hosting content that was illegal under PERSON no . CARDINAL , in particular concerning sexual abuse of minors and insults to the memory of GPE .

The Government also stated that prior to the order of CARDINAL DATE , the domestic courts had already made CARDINAL orders blocking access to GPE on account of illegal content hosted by the site . Following the orders , the ORG had contacted GPE ’s legal representative in GPE under the “ notice and take down ” procedure . The order of CARDINAL DATE , according to the Government , indicated that there were CARDINAL web addresses ( URLs ) hosting defamatory content about PERSON . Access to CARDINAL of the pages had been blocked , but the other CARDINAL had remained accessible both from within GPE and abroad . Accordingly , the ORG had notified PERSON of its decision to remove the content in question . However , PERSON had not stopped hosting the offending pages and the ORG had had no other solution than to block access to the entire ORG website , as GPE had not set up a URL filtering system .

The applicants stated that following the order of CARDINAL DATE , access to GPE had been blocked in GPE by the ORG until CARDINAL October DATE . On DATE , the blocking order in respect of PERSON had been lifted by the competent public prosecutor ’s office following a request from a company claiming to own the copyright to the videos . However , from CARDINAL DATE PERSON had decided to restore the videos , finding that they did not infringe copyright . The second and third applicants also pointed out that they had discovered that in DATE , CARDINAL video files ( CARDINAL . CARDINAL , CARDINAL , DATE and CARDINAL) out of the CARDINAL concerned by the order of CARDINAL DATE were still accessible on GPE . They noted that among those files , videos nos . CARDINAL and CARDINAL did not include any content that could be construed as insulting the memory of PERSON and thus fell outside the scope of LAW no . ORG . In particular , video no . CARDINAL was TIME long and showed a burning NORP flag . Video no . CARDINAL was TIME long and showed a former chief of staff of the NORP armed forces . Only videos nos . QUANTITY and DATE might have been regarded as insulting , but there had been no proceedings to establish that their content was illegal .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE , GPE . At the relevant time he was a professional basketball player .

On DATE the applicant brought a claim against the basketball club for which he had been playing , Vojvodina BFC ( PERSON ) , based in Novi Sad . The club had the status of a ORG association .

On DATE ORG ( hereinafter “ the ORG ” ) ruled in favour of the applicant , ordering Vojvodina BFC ( hereinafter “ the debtor ” ) to pay him , within DATE , the sum of QUANTITY ( ORG – approximately MONEY ( ORG ) at the time ) and ORG CARDINAL ( approximately EUR CARDINAL ) in costs , together with statutory interest . The judgment became final on an unspecified date in DATE .

Following a request by the applicant on DATE for enforcement , on DATE ORG issued an enforcement order .

On DATE the applicant informed the court that the debtor did not have sufficient funds in its bank account and proposed that the judgment be enforced by the sale of the debtor ’s immovable assets situated on the premises of the Vojvodina Sports and Business Centre . On DATE an enforcement order to that effect was issued .

In the meantime , a new basketball club , ORG , was formed .

On DATE ORG in GPE informed the court that the debtor ’s bank account had been frozen .

On DATE the applicant informed the court of another bank account in the debtor ’s name . On CARDINAL DATE he asked the court not to carry out the enforcement by sale of the debtor ’s immovable assets as he had asked previously , because it appeared that assets did not belong to the debtor , but to the basketball club PERSON .

On DATE ORG ordered enforcement in accordance with the applicant ’s request of DATE .

On DATE ORG in ORG informed the court that the account details the applicant had provided did not concern the debtor but the basketball club GPE , and that the debtor ’s account was still frozen .

On DATE PERSON appealed against the enforcement order of CARDINAL DATE . It claimed not to be the debtor ’s legal successor .

On DATE a CARDINAL judge panel of ORG ( hereinafter “ the panel ” ) refused to hear the appeal until the enforcement judge determined the debtor ’s liabilities .

On DATE NIS - Vojvodina filed a submission , denying any connection with the applicant ’s debtor .

On DATE ORG asked the applicant to comment on ORG submission and propose another method of enforcement .

As the applicant failed to do so , on DATE ORG suspended ( obustavio ) the enforcement against LAW . The applicant appealed .

On DATE the panel instructed the enforcement judge to establish if there was any relationship between the debtor and GPE before transferring the file back to it again .

On CARDINAL DATE ORG and ORG informed ORG that the applicant ’s debtor had appeared on their register of sports organisations since DATE , while PERSON had never been registered .

In the proceedings that followed , the enforcement judge , relying on the ORG ’s information note of CARDINAL DATE , found that PERSON was not the debtor ’s legal successor and transferred the case file to the panel on DATE .

On DATE the panel upheld the decision of CARDINAL DATE , finding that there were no grounds to continue enforcement against ORG .

On DATE ORG opened insolvency proceedings in respect of the debtor and adopted the restructuring plan it had devised . According to the plan , the debtor would pay the applicant ORG DATE ( approximately EUR CARDINAL,CARDINAL ) over DATE , paying him CARDINAL of the total amount DATE .

. On DATE the debtor paid the applicant CARDINAL of the above - mentioned sum , that is to say ORG PERSON ( approximately EUR CARDINAL,CARDINAL ) .

There is no information in the case file as to whether the applicant received any payments thereafter .


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . The President granted the applicant ’s request for her identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . She is represented before ORG , a firm of solicitors based in PERSON .

NORP The facts of the case may be summarised as follows .

On DATE the applicant reported to the police that she had been raped by her husband . Her husband was immediately arrested . He denied the offence and was subsequently charged with CARDINAL counts of rape . On DATE he was released on conditional bail , with a specific condition that he should not contact any prosecution witness , including the applicant .

On DATE the applicant contacted the police to withdraw her complaint against her husband . She indicated that she wanted to put everything behind her and move forward for her own sake and the sake of her children . The police explained that the case might still proceed and that , if it did , she might be required to give evidence .

On DATE the applicant was informed that the prosecution would proceed . On DATE the applicant ’s husband pleaded not guilty and the trial date was fixed .

On DATE the applicant told the police that she had lied about having ever being raped by her husband . A police officer explained that she needed to think very carefully about what she was saying and be sure that what she was saying was in fact the truth . The applicant said that she was not bothered about what happened to her and did not care if she was charged or dealt with for “ whatever offence ” . She was told that ORG would have to be consulted and that when a decision had been made she would be informed .

On DATE the applicant attended the police station voluntarily . She said that the rape allegations were lies . The police warned her of the potential seriousness of having made false allegations of rape . She was given legal advice and cautioned . A solicitor attended the police station to represent and advise her . The applicant provided a written statement to the police and maintained that her allegations were false .

On DATE the applicant ’s husband appeared at ORG . In light of the applicant ’s retraction of her complaint , the prosecution had no alternative but to offer no evidence against him . Not guilty verdicts were accordingly entered . He was released from custody .

A criminal investigation subsequently commenced into the applicant ’s admission that she had made a false allegation of rape against her husband . On DATE she was arrested . A tape - recorded interview in the presence of her solicitor took place . The police discussed with her whether her husband had put emotional pressure on her to withdraw the allegation , whether she was concerned about the position of her children and whether her support network was limited . The police told her that if the allegations were true and the retraction was in fact a lie , she could tell them about it . She insisted that the allegations were untrue .

On DATE the applicant was charged with perverting the course of justice by making a false allegation against her husband .

On DATE the applicant contacted the police . She said that she had come to her senses and that she had in fact been raped .

NORP On DATE the applicant was arrested and , with her solicitor present , interviewed . She said that the significance of lying about the rape had become clear when her counsel had told her that she would receive a sentence of CARDINAL eighteen months’ imprisonment .

On DATE the applicant was charged with an additional offence of perverting the course of justice by falsely retracting a true allegation of rape .

On DATE at ORG , the applicant pleaded guilty to the charge of having falsely retracted a true allegation of rape . She pleaded not guilty to the charge of making a false allegation of rape and , the prosecution having offered no further evidence , a not guilty verdict was entered in respect of this charge .

On DATE the applicant was sentenced to CARDINAL months’ imprisonment . She was taken into custody .

The applicant lodged an immediate appeal against sentence . Her appeal was granted by ORG on DATE . In its judgment , the court emphasised the public interest in the investigation and , if appropriate , the prosecution and conviction of those who had committed crime . For this reason , perverting the course of justice was not confined to making false allegations or giving false evidence but also extended to the retraction of truthful allegations or the retraction of truthful evidence . However , the court recognised that the difference between the culpability of an individual who had instigated a false complaint against an innocent man and a complainant who had retracted a truthful allegation against a guilty man would often be very marked . It referred to pressures resulting from relationships and , in particular , the vulnerability of women who had been ill - treated by their partners . In such cases , it said , the sentencing court should recognise and allow for the pressures to which the truthful complainant in such a relationship had been exposed and should be guided by a broad measure of compassion for a woman who had already been victimised . It concluded :

“ CARDINAL . This is an exceptional case . We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in ORG . The sentence for perverting the course of justice normally is , and will normally continue to be , a custodial sentence . That is a requirement of the administration of justice and , where possible , the reduction of crime . But this was not such a case . We have come to the conclusion that the appropriate sentence in this case is a community sentence with a supervision order for DATE . ”

The applicant was immediately released .

The applicant ’s conviction was widely reported . On DATE The ORG newspaper published an article about the conviction . The article explained that ORG ( “ ORG ” ) had ordered a change in the way Government lawyers dealt with cases against women who withdrew rape claims , acknowledging “ failings ” in the handling of the applicant ’s case . In future , similar cases would require his personal approval .

On DATE ORG published revised policy guidance in relation to prosecutions concerning rape and domestic violence . The revised guidance applies to cases where a complainant of rape or domestic violence makes a false allegation , retracts an allegation or withdraws a retraction .

Meanwhile , the applicant instructed new solicitors and obtained advice on appeal against conviction dated DATE . Counsel expressed the view that she had a complete defence to the indictment which ought to have been considered and pursued on her behalf in the exceptional circumstances of her case . The advice stated that her guilty plea had been equivocal and should not be a bar to an appeal ; and that the guilty plea had ignored the defences of duress and coercion and had ignored “ human rights and international law , the experience of the courts , the experience of those experts in the field , the experience of victims and plain common sense ” . Counsel suggested that the original prosecution should have been stayed as an abuse of process for , inter alia , the following reasons :

“ It would have been untenable for the ORG to argue that the [ applicant ] ... was not a victim of rape and domestic violence ...

We contend that the [ applicant ’s ] behaviour was arguably both normal and understandable for a victim of such abuse .

We would have called the ORG ’s own acknowledged expert in this field ... [ who ] is able to comment on the dynamics and effects of domestic violence . This will show that far from having an intent to pervert the course of justice the [ applicant ] was behaving normally for a victim of such extreme abuse .

The prosecution was in breach of its own policy , LAW . ”

The grounds of appeal against conviction were as follows :

“ CARDINAL . The conviction is unsafe .

The appellant ’s plea was equivocal and ignored her defences in law of duress , coercion and those human rights and international law arguments outlined in counsel ’s advice .

The original criminal proceedings should have been stayed as an abuse of process .

This is a conviction in a case where the ORG is on public record as saying justice was not done or seen to be done when offering an unreserved apology to the appellant .

The Lord Chief Justice , in the appeal against sentence , commented that ‘ This is an exceptional case . We hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Court’ . ”

In their response to her grounds of appeal , the prosecution did not seek to raise any positive argument in support of the safety of the applicant ’s conviction . They explained that the acceptance of the guilty plea in respect of the false retraction implied acceptance that the rape allegation had been truthful , and conceded that the applicant would in all likelihood not have been prosecuted had her case been considered at the time of the response , applying the criteria now contained in the revised guidance ( see paragraph CARDINAL above ) .

Leave to appeal conviction out of time was granted .

In the applicant ’s subsequent written submissions to ORG dated DATE , she referred extensively to the ORG ’s comments and the revised guidance ( see paragraphs CARDINAL above ) . She made , first , further arguments in respect of her first ground of appeal and the part of her second ground of appeal related to the defences of duress and coercion ( see paragraph CARDINAL above ) . There was reference to development of the abuse of process and human rights arguments “ at paragraph CARDINAL below ” and , later , to the arguments regarding human rights issues “ in paragraph CARDINAL below ” .

Paragraph DATE simply repeated the second part of her second ground of appeal and CARDINAL grounds of appeal ( see paragraph CARDINAL above ) . Further arguments in respect of these matters followed in subsequent paragraphs . There was a section on recent domestic case - law on prosecuting victims , a section on the revised guidance and a section on the Code for Crown Prosecutors . The latter section contended that the applicant ’s prosecution was unfair for a number of reasons , including because “ the case was brought in circumstances that breached the applicant ’s human rights ” . It went on to explain that the applicant met none of the criteria tending in favour of prosecution , while her situation fell under some of the factors tending against prosecution .

Finally , there was a section in the written submissions headed “ Human Rights ” , in which it was submitted that the applicant ’s treatment had breached her human rights . The written submissions referred to a number of judgments of this ORG concerning domestic violence against women which , it said , clarified that GPE had positive obligations in this area , including an obligation to protect victims from violent behaviour , by reference to ORG , DATE and DATE ( citing PERSON v. GPE , no . CARDINAL , CARDINAL DATE ; PERSON and PERSON GPE , no . CARDINAL/CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ; ORG and Others v. GPE , no . CARDINAL , DATE ; GPE v. GPE , no . CARDINAL/CARDINAL , DATE ; and GPE v. GPE , no . CARDINAL , DATE ) . It continued :

“ It is clear from this line of authority that domestic violence can potentially engage ORG , DATE , DATE and DATE of the ... Convention ... States have a positive obligation to protect the rights of victims . It is when a ORG becomes aware of a domestic violence situation that they have the obligation to take steps to protect people . ”

The submissions explained that the applicant had suffered DATE of domestic abuse which had been exacerbated by her subsequent dealings with the police . It should have been abundantly clear to the officers that the applicant was under extreme duress when she retracted her rape complaint . However , rather than make proper investigations they had accepted her story and charged her . To treat her as a criminal while releasing the perpetrator indicated “ degrading treatment ” , as defined in the ORG ’s Article CARDINAL case - law .

In their response of DATE , the prosecution acknowledged the applicant ’s argument that her Convention rights were engaged and that her prosecution amounted to a breach of those rights . Much of the response was devoted to addressing the submissions concerning the defences of duress and marital coercion and the safety of the conviction in light of the revised guidance . In the context of their response to the abuse of process submission , the prosecution accepted that the LAW attached special significance to the protection of vulnerable groups and argued that what it required was that the decision to prosecute be taken following careful analysis of the circumstances and characteristics of the individual and the case against her . The prosecution pointed out that the cases cited did “ not reflect the position in this case ” and were of “ little if any assistance ” . They emphasised the important distinction to be made between the role of those who investigated crime and those who prosecuted , noting that in many of the cited cases the impugned failure was a failure to investigate .

The applicant ’s appeal against conviction was dismissed on DATE . The ORG referred to the remarks made by ORG in the sentencing appeal and to the publicity that the applicant ’s conviction had received in the press , in particular the reporting of the ORG ’s comments ( see paragraphs CARDINAL and CARDINAL above ) . It pointed to the revised guidance ( see paragraph DATE above ) and accepted that , had the guidance been in force at the date of the applicant ’s conviction , she would in all likelihood not have been prosecuted . However , it considered that while the applicant had plainly been under pressure , the pressures were far removed from constituent elements of the defence of duress . It was also satisfied that there had been no abuse of process . Guidance issued by the ORG did not , and as a matter of law could not , create any immunity or defence . It merely publicly reflected the considerations which , in an individual case , were considered to be relevant to the exercise of the prosecutorial discretion not to bring the case to trial notwithstanding admissible evidence which would otherwise justify a prosecution . The court concluded that the final submission came down to the proposition that it was somehow not fair for the applicant to remain convicted . However , the principles relating to abuse of process had not extended to enabling the court to quash a conviction on a broad , somewhat nebulous basis of unfairness where the conviction , following due process , was in every respect safe .

The applicant applied for certification of a point of law of general public importance and permission to appeal to ORG . In her application for leave , she identified CARDINAL points of law of general public importance , namely :

“ i. Whether or not an individual subject to an accepted background of rape and/or domestic violence , as in the current case , can raise in law a defence of duress to a criminal charge , which is capable of being left to a jury ?

ii . Whether or not the prosecution of a victim of rape and domestic violence , as per the circumstances of the current case , amounted to an abuse of process by the ORG and/or was a breach of fundamental human rights ? ”

In respect of ground ( ii ) , the application referred to the ORG ’s comments and to the revised prosecution guidance ( see paragraphs CARDINAL above ) . It explained that a senior lawyer from ORG had expressed an interest in the case and continued :

“ This case clearly raises important issued of equality and human rights and we would welcome any intervention by the ORG into this appeal ... That ... perhaps serves to further demonstrate the public importance of this proposed appeal . ”

The prosecution lodged submissions dated DATE . As to whether there had been a breach of fundamental human rights , they noted that , as previously submitted , the applicant could not reasonably argue that her Convention rights had not been protected . They contended that where an individual had conducted herself so as to deliberately and knowingly place herself beyond the ORG ’s protective reach and in jeopardy of a prosecution by denying her status as a victim , she had no arguable complaint when she found herself charged with a criminal offence . They maintained that the applicant ’s submissions continued to confuse the role of investigators and prosecutors , and that the ORG required the decision to prosecute to be taken in application of the LAW for ORG Prosecutors on a case - by - case basis . As the decision to prosecute had arisen from a correct application of the LAW , there had been no failure to protect the applicant ’s Convention rights .

On CARDINAL DATE ORG refused to certify a question for ORG .

At the relevant time , the Code for ORG Prosecutors provided that a prosecution would usually take place unless the prosecutor was sure that there were public interest factors tending against prosecution which outweighed those tending in favour .

On DATE ORG published revised policy guidance in relation to prosecutions concerning rape and domestic violence . It stated that when applying the public interest stage of the LAW test , prosecutors should bear in mind the comments of the Lord Chief Justice in the applicant ’s appeal against sentence . The revised guidance sets out the relevant factors in favour of and against prosecution .

LAW DATE ( “ LAW ” ) incorporates the LAW into GPE law . Under section CARDINAL(CARDINAL ) of the LAW , a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the LAW rights concerned in any legal proceedings . LAW requires a court determining a question which has arisen in connection with a LAW right to take into account the case - law of this Court .

The case of G v. R [ DATE ] ORG CARDINAL concerned an appeal against conviction by a defendant convicted of raping a girl under DATE . At the time of the offence the applicant had been DATE and had believed that the girl was the same age . He argued that his prosecution for rape , instead of a less serious offence , and his subsequent conviction were disproportionate in the circumstances of his case and thus violated his right to respect for private life protected by LAW . ORG dismissed the appeal in DATE , although it accepted that the prosecution of a minor for rape in the circumstances of the applicant ’s case might in certain cases give rise to a violation of LAW . In DATE ORG dismissed the appeal , holding by CARDINAL judges to CARDINAL that there had been no violation of LAW . The majority found that even if the defendant ’s LAW had been engaged , his prosecution and conviction were proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others .

The claimant in S.H.X. v Crown Prosecution Service [ DATE ] EWCA Civ CARDINAL ,


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions according to which the applicants were entitled to various pecuniary amounts and/or to have certain actions taken by ORG authorities in their favour . Some applicants also raised other complaints under various ORG of the Convention .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in DATE and lives in Mysłowic

From DATE to CARDINAL DATE the applicant was detained on remand in ORG . Subsequently , from CARDINAL DATE to CARDINAL DATE , from DATE DATE to DATE and from DATE to DATE he served his sentence of imprisonment there .

On DATE the applicant received a disciplinary punishment of DATE of solitary confinement . He was also subject to certain restrictions concerning accessibility of the prison canteen , religious service , outdoor activities , etc . Furthermore , he was limited in receiving packages until DATE .

The applicant submitted that throughout his detention in FAC he had been held in overcrowded cells which did not meet the basic standards of hygiene . According to the official statistics published by ORG ( NORP PERSON ) at the relevant time the overcrowding in the facility ranged from PERCENT .

The Government did not submit any information as to the number of detainees held in FAC .

On DATE the applicant brought a civil action in tort against ORG , seeking compensation for the infringement of his personal rights on account of the inadequate conditions of his detention .

On DATE ORG ( Sąd Rejonowy ) acknowledged that , at times , the applicant had indeed been held in overcrowded conditions . It dismissed his claim , finding that this practice had not been unlawful , as the penitentiary judge had been duly informed about the situation . ORG also held that the applicant had failed to demonstrate that he had suffered any harm as a result of the overcrowding . It further considered that the overall sanitary conditions and the quality of food in the defendant remand centre had been adequate .

On DATE the applicant appealed against the above first instance judgment .

On DATE ORG decided to exempt the applicant from the court fee for appeal . The applicant was called to rectify the appeal by providing the court with a copy of the appeal , by informing the court about the scope of his appeal , by informing the court about the content of his appeal request and by paying the basic fee of MONEY [ ORG ] ( approx . CARDINAL [ ORG ] within DATE . The court also informed the applicant that lack of rectification would result in rejection of the appeal .

On DATE the same court rejected the applicant ’s appeal for failure to pay the basic court fee .

The applicant ’s interlocutory appeal against that decision was rejected on DATE for failure to pay the applicable court fee . The applicant did not appeal against the latter decision .

On DATE the applicant filed a complaint about the conditions of his detention to ORG of ORG ( ORG PERSON ) .

On DATE the ORG acknowledged that the applicant had been occasionally held in overcrowded cells and it apologised for this situation , but refused to remedy the situation , finding that the problem affected GPE ’s entire penitentiary system .

On an unspecified date the applicant filed a request for a temporary release from prison ( przerwa ) , arguing that the release was necessary in order to allow him to participate in person in CARDINAL sets of court proceedings which he had instituted .

On DATE ORG ( PERSON ) refused to grant the release . The court considered that neither the reasons invoked by the applicant nor his family situation nor the state of his health warranted such release . The applicant , who attended the sitting , was also advised that he had a right to lodge , within DATE , an interlocutory appeal against that decision .

On DATE the applicant requested to be served with a copy of the decision , which was served on him on DATE .

On DATE the ORG refused to entertain the applicant ’s appeal , filed on DATE , finding that it had been lodged out of time .

On DATE ORG ( ORG ) dismissed the applicant ’s interlocutory appeal against ORG refusal . It held that the time - limit for filing an appeal against ORG decision , delivered on DATE , had expired DATE after DATE of its delivery .

On DATE the applicant requested ORG to release him on probation .

On DATE the court granted the applicant ’s request . The court observed that the applicant ’s overall behaviour in detention had been correct , that he could be given a relatively positive socio - criminological forecast and that his resocialisation process could be continued at liberty .

Following an appeal by the prosecutor , on DATE ORG amended ORG decision and refused to release the applicant on probation . ORG did not share ORG findings and considered that the applicant ’s sociocriminological forecast was CARDINAL . It stressed that the applicant had been an unrepentant , habitual offender who had often been subjected to disciplinary penalties while in detention . Lastly , the court observed that the applicant had not shown any interest in following an individualised resocialisation programme and that he had no specified plans for the future .

On the applicant ’s request , filed on DATE , on DATE ORG issued an aggregate sentence composed of the applicant ’s previous convictions ( wyrok łączny ) .

On DATE ORG upheld the firstinstance court ’s judgment .

The applicant applied for a legal - aid lawyer for the purposes of a cassation appeal . Simultaneously , he drafted his own cassation appeal and lodged it with ORG .

On DATE ORG appointed a legalaid lawyer for the purposes of the cassation proceedings . By a letter of DATE the lawyer informed ORG that he had not found any grounds to lodge the cassation appeal . By a letter of CARDINAL DATE ORG informed the applicant of the legal - aid lawyer ’s refusal . Furthermore , the applicant was instructed that he could appoint a lawyer of his choice and that the time - limit of DATE for lodging a cassation appeal by that lawyer would start to run on the date of service of that letter . The court ’s letter was served on the applicant on DATE . The applicant did not appoint a lawyer of his choice .

On DATE ORG refused to accept the applicant ’s cassation appeal as it had not been prepared by a lawyer as required by law .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

NORP The list of applicants , their representatives and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant was born in DATE and lives in GPE LOC .

On DATE the applicant ’s wife , PERSON , gave birth to a son , PERSON On DATE I. gave birth to another son , PERSON The family lived in PERSON .

NORP In DATE the applicant and I. divorced .

On DATE the applicant took the children away from their home in PERSON and brought them to the town of GPE in GPE NORP Region where his mother lived . He did not obtain I. ’s consent .

On an unspecified date the applicant applied to ORG of Nizhniy Novgorod Region for a residence order under which ORG and ORG would live with him in GPE . On DATE I. lodged a counterclaim , asking for a residence order under which the children would live with her in PERSON .

On an unspecified date in DATE the applicant returned the children to their mother in PERSON .

On DATE experts appointed by the court issued their report . They found that the applicant was self - confident , domineering and inclined to lie . He was emotionally stable but , at the same time , easily carried away and fickle in his interests , which could mean that he would not always wish to take care of his children . The applicant strived to spend a lot of time with the children and was against punishing them . I. was seen to be impulsive , anxious , diffident and emotionally unstable . Her intellectual capacities were low . Her manner of upbringing was erratic : she vacillated between excessive demands and punishments and insufficient demands and punishments . Her manner of upbringing could be detrimental to the children ’s psychological development . The children were anxious and stressed . N. had a closer emotional connection with his father than with his mother . As regards PERSON , any situations involving his mother were stressful to him because they were associated with excessive demands and punishments .

NORP The childcare authority issued an opinion that the children should reside with their mother . The mother had better living conditions . The children attended school ( N. ) , a nursery school ( PERSON ) and various extracurricular activities at her place of residence in PERSON . PERSON took good care of the children and did not prevent them from seeing their father .

The applicant submitted audio recordings of his conversations with his children . A psychologist , who had analysed those recordings , stated in court that the parents were both uncooperative and were both equally responsible for the stress from which ORG and ORG suffered . The audio recordings submitted by the applicant showed that he had tried to manipulate the children into saying that they wanted to live with him . In her opinion , the children had a stronger attachment to the mother . It was preferable that they lived with her in PERSON where the living conditions were more comfortable and where they had constantly lived since their birth .

On DATE the ORG granted ORG application for a residence order in her favour and dismissed a similar application by the applicant . The court doubted the authenticity of an employment certificate from a private company submitted by the applicant . Given that he had not produced any official documents confirming his employment , the court found that he had not proved that he had a permanent income . There was no evidence that the applicant had supported his children financially during the period since his separation from ORG in DATE until DATE , when the children had been living with their mother . He had started to pay child maintenance only after he had lodged his application for a residence order in DATE . The applicant had moreover asked that the children ’s residence be fixed at his mother ’s address , which showed that he did not have any intention of taking care of them personally . It was clear from the audio recordings submitted by the applicant , as analysed by a psychologist , that the applicant had attempted to manipulate the children and to force them to make a choice between the parents . He was therefore willing to reach his aims by any means , even at the price of making his children suffer . He had moreover taken the children away from their home in PERSON and brought them to his mother ’s residence in GPE without ORG consent . According to witness statements , PERSON had always taken good care of the children . It was PERSON who had always accompanied them to school and extracurricular activities . The fact that she had a partial disability had never so far prevented her from raising them and caring for them . The fact that the applicant ’s living conditions were better was insufficient in itself for making a residence order in his favour . Nor was the court convinced by the applicant ’s assertion that the children had a stronger attachment to him than to their mother . The children had always lived with their mother , except for DATE during DATE when they had stayed with him at his mother ’s residence in GPE . There was no evidence that PERSON had shouted or excessively punished the children . Although the experts had indeed found her manner of upbringing to be erratic , their report did not mention that she could cause detriment to their psychological development . Moreover , it was evident from the audio recordings that it was the applicant who had tried to turn the children against their mother . The childcare authorities had also considered that it was in the children ’s interest to live with the mother . Given that PERSON had never prevented the applicant from seeing the children , the applicant would be able to visit them as often as he liked , while the children would continue living in the environment familiar to them .

On CARDINAL DATE the Nizhniy ORG upheld the judgment on appeal , finding that it had been lawful , well reasoned and justified . The applicant ’s cassation appeal was rejected by a judge of ORG on DATE .

NORP In DATE the applicant applied to ORG of PERSON for a reconsideration of the children ’s residence arrangements . He asked for a residence order under which ORG and ORG would live with him in PERSON . He submitted , in particular , that the children wished to live with him . He had been picking them up from school almost every day lately and bringing them back to PERSON only to sleep . I. shouted at the children , slapped them and humiliated them . She did not work and lived on social benefits and child maintenance . In the alternative , he asked for a contact order , claiming that NORP occasionally prevented him from seeing the children .

On DATE N. and ORG were assessed by a psychologist who found that their psychological state was good . They were resigned to their GPE divorce and no longer experienced any negative emotions in that connection . Their relationship with their mother was friendly and supportive . They considered her as family , while their father was considered to be a friend who came regularly to play with them .

On DATE the childcare authority issued its opinion on the case . It found that both parents had satisfactory living conditions . N. had expressed a wish to live with the applicant . The childcare authority considered that it was desirable to perform a psychological expert examination of the children to assess their attachment to each parent . However , ORG objected to any assessment of her children by a psychologist . The childcare authorities had however learned that she had secretly seen a psychologist . The children had told the psychologist that they wished to live with their father . However , given that the children had not yet reached an age at which they were able to form their own opinions on the matter , as they were still highly impressionable and changeable , the childcare authority considered that it was possible for the children to continue living with their mother . The applicant should be able to have regular contact with the children for CARDINAL weekends per month .

On DATE ORG rejected the applicant ’s application for a residence order and maintained the residence order in favour of I. It found it established that NORP was unemployed and that the applicant had a permanent job . The living conditions of both parents were satisfactory . The court took note of the expert report of DATE ( see paragraph CARDINAL above ) , observing that the experts had found that the parent - child relationships were complicated in the applicant ’s family . The expert report did not however contain an explicit finding that the children were attached to their father more than to their mother . The applicant had not proved that PERSON had shouted at the children , humiliated them or neglected her parental responsibilities . Evidence showed that she was taking good care of the children . There was therefore no reason to change the children ’s residence arrangements established by the judgment of CARDINAL DATE .

The court further held that ORG and ORG were entitled to maintain contact with their father and his paternal family and determined the contact schedule as follows . The applicant was to be able to have contact with the children DATE from TIME on DATE until TIME on DATE at the applicant ’s place of residence , with the mother ’s prior agreement .

On DATE ORG upheld the judgment on appeal . A cassation appeal by the applicant was rejected by a judge of ORG on DATE .

On DATE the applicant lodged a new application for a residence order in his favour with ORG . He submitted that PERSON currently lived with him and did not want to return to his mother who shouted at him and physically punished him . Both PERSON and ORG had stated many times that they wanted to live with him . He devoted a lot of time to the children by picking them up after school , bringing them for walks and educating them . He had a comfortable and stable income and good living conditions . By contrast , ORG did not work and did not have any income except social payments and the child maintenance payments that she received from the applicant . It was therefore the applicant who maintained the children financially . The applicant further relied on the expert report of DATE ( see paragraph CARDINAL above ) from which it was apparent that the children had a stronger attachment to their father than to their mother , that any situations involving their mother were stressful for them and that the mother ’s methods of upbringing were detrimental to the children ’s psychological development . The applicant submitted audio recordings of many conversations he had had with the children DATE and DATE . The children invariably stated that they wanted to live with the applicant , complained that their mother shouted at them and whipped them with a belt , and protested , crying , that they did not want to return living with her .

On DATE the childcare authority issued its opinion on the case . It found that ORG had indeed lived with the applicant during his ( PERSON ’s ) illness from DATE to DATE . He had however then returned to his mother . The children also stayed with the applicant on DATE . The applicant always accompanied PERSON to nursery school and ORG to extracurricular activities . He paid child maintenance without delay and regularly gave additional financial support to the children . The applicant and ORG were attending mediation sessions . The applicant was in permanent employment and had a high stable income . PERSON was partly disabled and did not work . Her mother and grandmother helped her in raising the children . According to I. , the children were very attached to their father , spoke to him over the telephone every day and spent their holidays with him . The childcare authority concluded that the children were attached to both parents , that PERSON was taking good care of their health and development and that their living conditions were comfortable . It was therefore possible for the children to continue living with their mother .

A representative of the childcare authority stated at the hearing that she had followed the family for some time . She had the impression that the children were equally attached to both parents and both parents took equally good care of them . Recently she noted positive changes in the highly conflictive relationship between the parents . In particular , the mother allowed the father to spend more time with the children than before . The father picked up the children from school and they spent DATE and part of their holidays with him . She considered that there was no reason to change the children ’s residence arrangements and recommended that the children should continue living with their mother .

I. stated that she loved her children and took good care of them . She also alleged that the applicant ’s motives for asking for a residence order in his favour were mercenary as he wanted to use the flat that belonged to the children . She therefore asked that the residence order previously granted to her be maintained .

The applicant ’s neighbour stated that she often saw the applicant walking and playing with the children . She thought that he was a very good father and that the children loved him . In DATE I. had come to the applicant ’s flat in the middle of the night on CARDINAL occasions . She had shouted , had threatened to break the windows and to take the children away from the applicant by force . The neighbours had had to call the police , who took PERSON away .

NORP In reply to the applicant ’s request to play the audio recordings submitted by him on CARDINAL October CARDINAL ( see paragraph CARDINAL above ) , the judge stated that it was not necessary because the other party had not contested them . The applicant ’s written description of those audio recordings had been examined at the hearing .

The applicant also asked that a copy of the expert report of DATE be admitted as evidence . Both PERSON and the childcare authority objected , arguing that the expert examination had been made DATE before and was therefore out of date . The court rejected the application , finding that the expert report had been analysed by the courts which had issued previous residence orders .

On DATE ORG ordered an expert psychological examination of the children to assess their relationship with both parents .

On DATE the expert found that it was not possible to make an expert report because ORG had refused to come to the examination or to bring the children . The court considered that it was not necessary to reiterate the order for an expert examination as there was sufficient material for making a decision on the case .

On DATE ORG rejected the applicant ’s application for a residence order in his favour . The court found no circumstances warranting the change of the residence arrangements established in the residence orders of DATE and DATE . It had no reason to doubt that NORP loved her children and took good care of them . The applicant ’s allegations that PERSON ’s manner of upbringing were detrimental to the children ’s development had not been confirmed by the evidence in the case . The criminal proceedings on charges of fraud against her had been discontinued . Her living conditions were satisfactory . The fact that she had no employment or income did not justify granting a residence order to the applicant . She did not prevent the applicant from seeing the children as much as he liked . As indicated in the judgment of CARDINAL DATE , the expert report of DATE did not contain an explicit finding that the children were more attached to their father than to their mother . The childcare authorities had found that the children had been equally attached to both parents . There were therefore no reasons to issue a residence order in favour of the applicant .

On DATE ORG upheld the judgment on appeal , finding that it had been lawful , well - reasoned and justified . In particular , it held that the applicant had not proved that there had been sufficient reasons to change the residence arrangements established by the earlier residence orders . No exceptional circumstances warranting the children ’s separation from their mother had been established . It had not been proved that the children had had an exceptionally strong attachment to the father or wished to live with him and him only . In such circumstances , and taking into account the children ’s age , their established way of life , the satisfactory living conditions of both parents and the opinion of the childcare authorities’ on the case , the decision to maintain the residence order in favour of the mother was in the best interests of the children . ORG further dismissed the applicant ’s complaint that ORG had not assessed the family situation with sufficient thoroughness because it had not questioned the children and had refused to admit the expert report of DATE as evidence . ORG held that , given that the children were under DATE , their opinion on the residence issue could not be taken into account . As regards the expert report of DATE , it had been made in the framework of separate proceedings and had been already assessed by the courts in those proceedings . ORG considered that the expert opinion was not necessary because the evidence included in the case file was already sufficient to adjudicate the dispute .

A cassation appeal by the applicant was rejected by a judge of ORG of GPE on DATE .

On DATE ORG of PERSON authorised , against the applicant ’s will , a trip abroad for the children for DATE . On DATE the children left for GPE with their mother . They returned to GPE on DATE . The decision of CARDINAL December CARDINAL was later annulled by ORG because it found that it had no territorial jurisdiction over the case .

On an unspecified date PERSON applied to ORG of PERSON for a judicial authorisation for the children to travel to GPE during the approaching school summer holidays , complaining that the applicant had refused to give such an authorisation . The applicant submitted in reply that if the children left for DATE he would not be able to see them for DATE . He also submitted that there was a risk that the children might not return from GPE . He asked for an interim measure prohibiting the children from leaving GPE pending the proceedings .

On DATE ORG rejected the applicant ’s application for interim measures , finding that the application of interim measures requested would amount to a prejudgement of the case .

On DATE ORG authorised the children ’s trip abroad for the period from DATE to CARDINAL DATE . The court found it established that NORP intended to travel to GPE together with ORG and PERSON during the DATE . She had received an accommodation guarantee from her new partner ’s sister , who lived permanently in GPE . The applicant had however refused to give ORG and ORG an authorisation to travel without giving reasons . The court found that the parents could not exercise parental rights to the detriment of their children ’s rights . In particular , the children ’s right to travel could not be made dependant on the GPE willingness to authorise their going abroad , especially in the case of a disagreement between the parents . The court considered that the children ’s trip abroad would not breach the applicant ’s rights and would encourage the children ’s development , education and broad - mindedness .

The applicant appealed . He submitted that under domestic law if a child left GPE accompanied by one of the parents an authorisation from the other parent was not required ; such authorisation was required only if the child went abroad unaccompanied by the parents . A judicial travel authorisation could be given only if one of the parents had formally objected to the child ’s going abroad ( see paragraph CARDINAL below ) . Given that the applicant had never lodged such an objection in accordance with the procedure prescribed by law , the judicial travel authorisation had been unlawful and unnecessary .

On DATE I. married her partner , a national of GPE . She then left for GPE with ORG and ORG In DATE she gave birth to a child . N. and V. are now living in GPE with their mother , her new husband and their CARDINAL - brother .

NORP The applicant lodged an additional appeal , submitting that although the decision of DATE had not yet become enforceable , ORG had been able to leave with the children for GPE . That fact had clearly demonstrated that a judicial authorisation was not required for leaving GPE . It had however been used by PERSON to obtain a NORP visa for the children , which she could not have otherwise obtained without his agreement . The applicant also complained that the children had not returned to GPE by DATE , although the judicial authorisation had been valid only until that date .

On DATE ORG upheld the decision of DATE on appeal . ORG held that it had been lawful , well reasoned and justified . In particular , it found that the applicant had not submitted to ORG any evidence showing that the trip abroad would have been contrary to the children ’s best interests .

On DATE the bailiffs service opened , at the applicant ’s request , enforcement proceedings in respect of the contact order of CARDINAL DATE ( see paragraph CARDINAL above ) .

In DATE the applicant complained about the bailiffs’ inaction to ORG . On DATE ORG rejected his complaint , finding that the bailiffs had taken measures to enforce the contact order but enforcement had been impossible through no fault of the bailiffs service , specifically because NORP and the children had been living in GPE . On DATE ORG upheld that decision on appeal . Cassation appeals by the applicant were rejected by a judge of ORG on DATE and then by a judge of ORG on DATE .

Meanwhile , the bailiffs asked ORG for a suspension of the enforcement proceedings on the grounds that ORG and the children were abroad and it was therefore impossible to take any coercive measures against her . On DATE ORG rejected the bailiffs’ request , finding that the children ’s residence abroad was not a sufficient reason to suspend the enforcement proceedings .

The applicant also submitted numerous requests to various NORP authorities , including in DATE to ORG and Science of GPE , for assistance in recovering his children and in enforcing the contact order of DATE . In DATE he complained of the authorities’ inaction to ORG . On CARDINAL DATE ORG rejected the applicant ’s complaint , finding that those authorities had no competence in the matter . The only authority competent to assist him in re - establishing contact with his children was the bailiffs service . On CARDINAL DATE ORG upheld that judgment on appeal .

According to the Government , in DATE the bailiffs service advised the applicant to apply for recognition and enforcement of the contact order to the competent NORP authorities , via ORG and Science of the Russian Federation , in accordance with ORG on LAW ORG , Enforcement and Co - operation in ORG for ORG . There is no evidence that the applicant used that procedure .

On an unspecified date PERSON applied to ORG for a residence order under which ORG and ORG would live with her in GPE . The applicant lodged a counterclaim , asking for a residence order under which the children would live with him in PERSON . He also asked for an interim order to return the children to GPE and to ensure that until their return the children communicated with him via VOIP calls TIME , DATE and DATE at TIME ( GPE time ) . On DATE ORG refused the applicant ’s application for an interim order , finding that he had not proved that the failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment . On DATE ORG upheld that decision on appeal . The residence order proceedings are pending .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement;Freedom to choose residence)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano

The applicant was born in DATE .

The applicant is a man who is intellectually disabled . On DATE he was taken , with his CARDINAL brothers , into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since DATE . The foster family lived in a village situated QUANTITY from the applicant ’s home town , which is in LOC .

NORP In DATE the foster family , the applicant and one of his brothers moved to a village in GPE . The removal of the children was not authorised by the competent child welfare authority . In DATE the applicant finished his compulsory school education as a special needs student integrated into a normal school . Thereafter his foster parents planned to place him in a vocational school QUANTITY away from their village , without authorisation by the competent child welfare authority .

On DATE the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children ’s home in his home town in southern GPE . The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities , such as moving north and planning to place the applicant in a vocational school QUANTITY away from their home . The foster parents brought an appeal in court against that decision , but the decision was upheld by ORG ( hallinto - oikeus , förvaltningsdomstolen ) on DATE and subsequently by ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) on DATE .

On DATE the applicant was placed in a children ’s home in his home town in southern GPE . CARDINAL of his brothers was placed in the same home in DATE .

On DATE the applicant turned DATE . On DATE he began studying at a local vocational school . On DATE a mentor ( edunvalvoja , intressebevakare ) was appointed for the applicant for matters other than those pertaining to his person . The applicant could thus freely make his own decisions in matters pertaining to his own person .

On DATE the social welfare authorities requested ORG ( käräjäoikeus , tingsrätten ) to appoint a mentor for the applicant also for matters pertaining to his person . The request was , inter alia , based on the fact that a conflict had emerged between the child welfare service and the applicant ’s former foster parents as to where the applicant should live . The appointment of an external mentor was therefore needed in order to assess the applicant ’s best interests and settle the matter accordingly . The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor .

On DATE the former foster parents took the applicant to the North of GPE , invoking his decision to move there to live with them . He considered them to be his real family . DATE , the social welfare authorities arrived with the police to fetch the applicant and to take him back , against his will , to his home town . He was placed in his home town in a special living unit for intellectually disabled adults .

On DATE ORG , on the basis of LAW , appointed a mentor for the applicant in matters concerning his property and economy , as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance . The court found that , owing to his diminished mental faculties , the applicant was incapable of looking after his own interests and taking care of his personal affairs . The decision was based on medical records concerning the applicant ’s level of development and on submissions according to which the applicant was gullible and keen on small children ’s play . The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind .

On DATE , after having received a psychologist ’s report dated DATE on the applicant , the appointed mentor decided , against the applicant ’s will , that it was in his best interests for him to live in his home town , where his family members also lived . He had better educational and work opportunities there than in the village in GPE , where he only knew his elderly former foster parents . The applicant was given a possibility to go for holidays to his foster parents in GPE .

On DATE the applicant asked ORG to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned . He requested that another person of his choosing be appointed as his mentor in those matters .

On DATE ORG , having heard the applicant in person , as well as witnesses including the applicant ’s mentor , his former foster mother , his brother and CARDINAL staff members from his housing service , refused his request . In its judgment , the court put on record the various testimonies . According to the record of the testimony of the applicant ’s mentor , she had discussed with the applicant his plan to move prior to her decision . The mentor was of the view that the applicant did not understand all the consequences of the plan , and did not realise that the good things in his present situation would not be relocated with him . In the light of all the circumstances , the mentor considered that the move would have been against the applicant ’s interests .

As regards the facts , the court recalled the background of the previous decision , taken on DATE ( see paragraphs CARDINAL and CARDINAL above ) . The court further noted that , according to an expert evaluation dated DATE and established by a psychologist , the applicant ’s decision - making skills were equal to those of a child aged DATE . Consequently , the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have . The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town . There was no evidence that the applicant ’s situation in his home town was not good . The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country , especially as he had previously lived there for DATE , and what the implications of the move would be for his situation . Moreover , the court found it uncertain how clear or strong the applicant ’s will actually was , taking into account the evidence regarding his gullibility . It was likely that his opinion was influenced by that of the former foster parents . The applicant ’s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults , to go to work and to cycle independently around town . The applicant had in his home town a support network consisting of relatives , friends and staff of the social welfare authorities , a job , hobbies and educational possibilities . Due to the remote and isolated location of the former foster GPE home , the applicant would miss out on all these possibilities if he were to move there . The court further noted that according to the plan , the applicant would attend a vocational school far away from his new home , requiring DATE long - distance trips DATE , more specifically a QUANTITY taxi ride to a bus station followed by a QUANTITY bus transport , and the reverse after school . The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a DATE basis .

As matter of law , ORG stated that as , on the evidence , the applicant was not able to understand the significance of the envisaged decision , the mentor was not required , or even permitted , to resolve the question of the applicant ’s place of residence in accordance with the applicant ’s own wishes . Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant ’s best interests .

Taking into account the evidence and the factual findings referred to above ( see paragraph CARDINAL above ) , ORG concluded that it was in the applicant ’s best interests to remain in his home town . The mentor had not acted in breach of her powers and ORG found no reason to replace the mentor by another person as regards matters concerning the applicant ’s place of residence and his education .

On DATE the applicant lodged an appeal with ORG ( hovioikeus , hovrätten ) . He pointed out that LAW guaranteed everyone the right to choose their place of residence . Moreover , a mentor had to enjoy the confidence of his or her client , which was not so in the present case .

On DATE ORG , after holding an oral hearing , rejected the applicant ’s appeal and upheld ORG decision by CARDINAL votes to CARDINAL . ORG found no reason to deviate from the assessment of the evidence as conducted by ORG and affirmed the conclusions reached by the latter . The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long - standing and safe relationship in his life . The applicant had clearly understood the importance of this relationship in his life , he knew the former foster family and what life with them entailed , although he might not be able to understand all the implications of the envisaged move . When the applicant had been removed from the former foster family in DATE and placed in a children ’s home in LOC , no specific reasons had been given as to why this measure had been in the applicant ’s best interests . The decision taken subsequently by the mentor in DATE had merely confirmed the earlier decision . These decisions had created distrust between the applicant and his mentor . As both the present mentor and the proposed replacement were equally competent , the one who had the applicant ’s trust should be chosen .

By a letter dated DATE the applicant lodged an appeal with ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds of appeal already submitted before ORG .

On DATE ORG refused the applicant leave to appeal .

According to the information provided by the Government , in DATE the applicant learned that his foster father had died and he attended his funeral in GPE . From DATE to DATE the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability . Since DATE he has been residing in sheltered accommodation , in a small CARDINAL - room flat . He is employed by his home town , undertaking work DATE a week in a shelter for intellectually disabled people . He is a talkative , efficient and well - liked employee and fits in very well in the working community .

The applicant ’s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known . She moved to the eastern part of GPE before DATE and invited the applicant to spend DATE with her , but in the end he decided not to visit her . Instead , the applicant spent DATE with his brother and other relatives . According to the Government , the applicant has not discussed the possibility of moving elsewhere for a long time . He is happy with his work and plays floorball twice DATE as a hobby . The applicant states that he has stopped talking about his desire to move since there is no point in doing so , given the fact that the social welfare authorities do not want him to leave his home town . Although he now has a girlfriend in his home town , he maintains that his true and most sincere wish is still to live with or near to his former foster mother . There is nothing in his home town that keeps him there or makes him want to stay there .