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

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

In DATE the applicant moved to GPE after marrying C , an NORP national who had come to GPE in DATE . The couple ’s first daughter , A , was born in DATE . Their second daughter , B , was born in DATE .

On DATE the emergency unit at the child welfare authorities in F. municipality received a request to assist the police with an incident in which the applicant and C were having a heated argument in the presence of their child . DATE , on DATE , the police were called again . The applicant then said that C had hit her and tried to strangle her and A on DATE . C was arrested and placed in custody . The applicant and A were taken to a crisis centre .

DATE , on DATE , the applicant was admitted to hospital with pain and bleeding . She then consented to A being placed in an emergency foster home while she was in hospital . The applicant asked the hospital for protection during her stay , because she was afraid that C ’s family would come to the hospital to kill her .

The applicant was discharged from hospital on DATE . She withdrew her consent to the emergency placement of A and they moved into a crisis centre . The child welfare authorities made a decision on assistance measures on DATE and informed the applicant that they would be concerned about A ’s welfare if the applicant were to move back in with C. The applicant then stated that she did not wish to move back in with him . She wanted to have a domestic abuse alarm device if she moved back .

On DATE the applicant moved back home with A. She did not want to give evidence in the criminal proceedings against C , A ’s father , and refused to release her doctor from the duty of confidentiality . On DATE C was released from custody and moved back home . A restraining order that had been imposed on him in relation to the applicant was lifted at her request .

Taking into account that C had tried to strangle the applicant and A with an electrical cord ( see paragraph CARDINAL above ) , the child welfare authorities gave the applicant a choice between moving into a crisis centre with A or having her forcibly taken into care . On DATE the applicant moved back into the crisis centre in F. with A.

While at the crisis centre the applicant had a lot of contact with C by telephone . She expressed a wish to move back in with him with A , but also stated that he should not be at home at the same time as them . After she let C into the crisis centre on DATE , the centre no more wanted her to stay there . As the applicant expressed a wish to move back home to C , the child welfare authorities decided on CARDINAL DATE to place A in an emergency foster home for the second time because they were of the opinion that the mother was unable to protect A from violence from her father .

NORP In a consultation at the emergency clinic DATE , the mother denied that C represented a risk to her or the child and that he had previously hurt them .

On DATE the applicant moved into a crisis centre in O. This crisis centre was of the opinion that A should be returned to her . The child welfare authorities disagreed , and cooperation between the crisis centre and the authorities became difficult . In the end , A was returned to the applicant on DATE and they then stayed together at the crisis centre .

On DATE the applicant and A moved back in with C. The child welfare authorities closed the case , but reopened it after the applicant ’s lawyer raised concerns ( “ bekymringsmelding ” ) and stated that mother and child still had great need of the authorities’ help . On DATE the authorities initiated assistance measures , including parenting guidance , couple therapy , a NORP language course for the applicant , and aggression management therapy for C. An application was also submitted for a kindergarten place for A. After a while the kindergarten raised concerns owing to A ’s high absence rate and the fact that many verbal expressions of anger were being directed at the staff by C.

On DATE the police raised additional concerns with the child welfare authorities after they had been called out to the hospital in F. The mother had been admitted DATE before with a suspected ectopic pregnancy . C had taken A to the hospital and the police had regarded his behaviour as so aggressive and threatening towards the hospital staff that they had thought it appropriate to notify the child welfare authorities . C had influenced the applicant to discharge herself from hospital against medical advice . However , she had suffered heavy bleeding and had been readmitted . C had been banned from visiting her at the hospital . He was at home with A , about whom the police were concerned , as the father was aggressive and threatening towards the applicant and their daughter .

On DATE , DATE , the child welfare emergency unit visited the family . C was very upset and angry , as he claimed that he had not consented to such a visit .

In DATE the applicant attended an appointment at a crisis centre in NORP According to the child welfare authorities’ records , C had been “ aggressive and out of control ” because of this meeting .

In DATE the couple ’s second daughter , B , was born .

On DATE ORG ( tingrett ) gave a judgment in which C was acquitted of violating LAW on the maltreatment of family members , but convicted of some other offences . The counts in the indictment under LAW concerned the incidents in DATE ( see paragraph CARDINAL above ) . In the course of the criminal case , the applicant had withdrawn her previous statements concerning violence by C.

On DATE the child welfare authorities received a call from a crisis centre in S. informing them that the applicant and her CARDINAL children had arrived there after C had been violent towards them and had threatened to kill the applicant . C had been arrested , but had then been released . The applicant had withdrawn her statement about his acts of violence and was preparing to go home . Based on this and previous incidents , the authorities decided to issue an emergency care order DATE to place the children in an emergency foster home at a secret address . This was A ’s third emergency placement ( see paragraphs CARDINAL above ) . The order was approved by ORG ( fylkesnemnda for barnevern og sosiale saker – hereinafter also “ the Board ” ) DATE .

On DATE , DATE , the applicant went to the crisis centre in O. At a meeting held there on DATE she stated that she never wanted to return to C. The child welfare authorities emphasised that she could not have any contact with him once the children were returned to her . Initially , the authorities’ intention was to return the children to the applicant at the crisis centre in GPE , where they would all stay . The specialist team in PERSON expressed concern about this solution , and the authorities decided that the children could not be returned until the applicant was settled in her own flat . They thought it would be unfortunate to return the children only to put them through another emergency placement if the mother moved back to C.

On DATE a restraining order was imposed on C in relation to the applicant .

The parents appealed against the emergency care order of CARDINAL DATE to ORG , which granted the appeal in part in a decision of DATE . The decision regarding the emergency placement was upheld , but the amount of contact with the children was increased and the decision not to inform the parents of the children ’s whereabouts was set aside .

On DATE the applicant moved from the crisis centre in O. to the crisis centre in S. She subsequently stayed at a crisis centre in GPE from DATE to CARDINAL DATE .

An application for the children to be taken into care was first submitted to ORG by F. municipality on DATE . The municipality wanted consideration of the case to be postponed so that an expert assessment could be prepared , but the parents were opposed to this . ORG considered the case at a meeting from DATE . On DATE the ORG nevertheless decided to adjourn the case in order to appoint experts to carry out an assessment of it . The appointed experts were a specialist in educational and psychological counselling , GPE , and a specialist in clinical psychology , GPE The experts’ joint statement was submitted on CARDINAL DATE .

The child welfare authorities wanted the contact sessions to be supervised and engaged trained personnel from a company to do so . The supervisers started their work on DATE and submitted a report on DATE .

C was dissatisfied with the work of the appointed experts ( see paragraph CARDINAL above ) , and therefore hired PERSON , a specialist in child and adolescent psychology , as a private expert to observe contact sessions between the applicant and the children . PERSON submitted his report on DATE .

The care order case was considered by ORG on DATE .

The applicant stayed at the crisis centre in PERSON again from DATE , after which time she moved into her own flat in GPE

Before the ORG reached a decision , the CARDINAL children were abducted from a contact session with the applicant . The incident took place on DATE at G. Volunteer Centre ( “ frivillighetssentral ” ) in B. CARDINAL people wearing balaclavas and sunglasses forced their way in during the contact session , used an electroshock weapon on the applicant and abducted the children . The contact session was being supervised by a member of the company ’s staff ( see paragraph CARDINAL above ) . The staff member managed to escape through the veranda door and summon help . The applicant was injured and unconscious and was taken away to hospital by air ambulance . The children were found in a flat in GPE DATE . C later admitted that he had been behind the abduction and that he had been in the vicinity when it had happened .

The ORG found out about the abduction before it made its decision , and it was therefore decided that there should be no contact between the children and the parents . The operative part of the ORG ’s decision of CARDINAL DATE read as follows :

“ CARDINAL . F. municipality , represented by the child welfare authorities , shall take A , born ... DATE , into care .

F. municipality , represented by the child welfare authorities , shall take B , born ... DATE , into care .

A and B shall be placed in separate foster homes at secret addresses . A shall be placed in enhanced foster care [ where foster parents have extensive support from the child welfare authorities ] .

No minimum level of contact between the mother and the girls is set out . If contact sessions are to take place , the child welfare authorities are authorised to supervise them .

No minimum level of contact between the father and the girls is set out . If contact sessions are to take place , the child welfare authorities are authorised to supervise them . ”

The decision was brought before ORG ( tingrett ) . When the hearing started , on DATE , the applicant was not present . Her counsel was there and argued that the case should be postponed . After ORG had decided not to do so , the applicant ’s counsel left as he was of the opinion that he could not attend to the interests of his client . However , C informed the court that he was in touch with the applicant . She arrived DATE at the court and stated that she had spoken to her counsel . She also argued that the case should be adjourned . When told that it had already been decided to continue the hearing , the applicant left the court .

On DATE ORG upheld the ORG ’s decision . As to the applicant and her counsel leaving the hearing , the court noted that it found it difficult to view this as anything but an attempt to force the court into postponing the case , although it did not find it clear why they wanted the case to be postponed . Based on the evidence presented to it , ORG found it highly likely that C would attempt to abduct the children . Moreover , it was found to be the case that C was in control of the applicant and that she followed his orders . Among other things , ORG referred to the fact that the applicant under the hearing had made herself unavailable to her counsel , but not to C. The City Court stated that the abduction risk might possibly be regarded differently when the criminal case against C had been heard by the court . At present , however , it took account of how C had declared that the abduction had been in the children ’s best interests and concluded that there should be no visiting rights .

Instructed by the applicant ’s lawyer on DATE , a specialist psychologist , PERSON , submitted an expert report in the case on DATE .

The parents appealed to ORG ( lagmannsrett ) against ORG judgment .

On DATE the applicant submitted an official complaint to the police against C in relation to rape , deprivation of liberty , and threats made in her flat . The applicant went to the crisis centre in PERSON , but moved back to her own flat DATE . C also contacted the applicant in PERSON later in DATE . A restraining order was imposed on him , and the applicant was moved to a secret address .

The High Court appointed the clinical psychologist ORG as expert ( see paragraph CARDINAL above ) . He submitted his report on CARDINAL DATE . ORG then heard the case from DATE . The parents were present together with their counsel and gave evidence . CARDINAL witnesses were heard , including CARDINAL expert witnesses . ORG , the court - appointed expert , gave testimony .

On DATE ORG rejected the appeal . It noted that a care order presupposed serious deficits in the applicant ’s caring abilities and though the applicant , if viewed in isolation , would have sufficient capacity to take care of the children with assistance of the child welfare authorities , the question was whether the children would be sufficiently protected from C. The applicant did not want further dealings with him . C ’s behaviour showed , however , that he was unwilling to respect her wish . As to contact rights , ORG did not take a stance on whether a secure regime for visits could be established . At that time , there was in any event an obvious risk that C would again try to kidnap the children .

Leave to appeal to ORG ( PERSON ) was denied by ORG on Leave to Appeal ( Høyesteretts ankeutvalg ) on DATE .

During DATE , the applicant was subject to threats from her CARDINAL - brother , on paid assignment from C , in order to make her move back to GPE . On DATE she was granted divorce . The hearing of the criminal charges against C took place in DATE .

On DATE the child welfare authorities applied to ORG for an order that the applicant and C have their parental responsibility in respect of A and B removed ; parental responsibility would then be transferred to the authorities . The authorities also applied for the ORG ’s authorisation of the foster GPE adoption of the children . The applicant applied to ORG for an order that A and B ’s placement in care be discontinued .

On DATE ORG convicted C of abducting the children ( see paragraph CARDINAL above ) and sentenced him to DATE and CARDINAL months’ imprisonment , of which DATE were suspended . C appealed against the judgment .

On DATE the ORG appointed ORG , the psychologist , as its expert . He submitted a report on DATE ( see paragraph CARDINAL below ) .

The case was heard on CARDINAL and DATE . ORG sat with a chairperson who was qualified to act as a professional judge , a psychologist and a layperson , in accordance with the first paragraphs of sections CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant was present with her legal aid counsel and gave evidence . C was in GPE , but testified by telephone as a party to the case and was represented by his counsel . The appointed expert attended the proceedings and testified . CARDINAL other witness was heard .

In its decision of CARDINAL DATE , ORG noted that the previous care order case had been considered as directed against the applicant , as C had accepted that she had DATE care and control of the children . This situation had not changed , and C now supported the applicant ’s claim for revocation of the care order .

The Board first reiterated the following from ORG judgment of CARDINAL DATE concerning the children ’s placement in care ( see paragraph CARDINAL above ) :

“ In ORG opinion , seen in isolation , the mother will be capable of providing adequate care for the children , provided that adequate assistance measures are offered . ORG understands that this opinion is shared – although to a varying extent – by all the experts who have appeared before [ it ] . ”

There was limited updated information about the applicant ’s situation at the time of the ORG ’s decision , but it was clear that she had been granted a divorce from C. She had also passed a NORP language course and established a small social network in PERSON Seen in isolation , her ability to provide care thus appeared to have improved somewhat since ORG hearing .

On the other hand , ORG had concluded that there were serious deficiencies in the applicant ’s ability to provide care because of the threat that C represented to her and the children . ORG made reference to the following passages from ORG judgment :

“ ... the question at issue in this case is whether the children will be sufficiently protected against violence from their father if they are returned . It is very important to the father that the children grow up in accordance with their NORP background , and he is clearly willing to go to great lengths to achieve this , possibly also by using violent methods . He has stated that the purpose of the abduction was to take them to GPE . ...

After the presentation of the evidence , ORG is in no doubt that the father is violent and represents a threat to the mother . ...

Based on the facts described above , the High Court finds that there is a strong preponderance of likelihood of the father having committed violent acts against the mother , and that it is probable that he , or someone acting on his behalf , will be violent to the mother again . Among other things , [ the court ] points out that the expert witness GPE , who has assessed the violence described in the case in a cultural context , believes that the mother ’s ‘ life probably was [ or ] is in serious danger’ .

The mother and father are divorced , and the mother wants no further contact with the father . His behaviour as recently as in DATE in PERSON shows that he is not willing to respect the mother ’s wish to break off contact [ with him ] . In the High Court ’s opinion , there can be little doubt that the father ’s further contact with the mother will be harmful to the children and constitute a significant deficiency in relation to the children ’s safety if the care order is revoked . ”

However , ORG had stated in its judgment that the question of contact for the applicant could be seen in a different light if C were expelled from the country . This was because the security concerns described in the judgment would then not apply to the same extent .

The expert appointed by ORG , ORG , had not carried out a new assessment of the applicant ’s ability to provide care in his report of CARDINAL DATE ( see paragraph CARDINAL above ) . In a statement dated CARDINAL DATE from ORG ( barnesakkyndig kommisjon ) , CARDINAL of the CARDINAL commission members had remarked that it would have been preferable for the mother to have been given an opportunity to comment on such a serious matter . It was also stated that it was expected that this would form part of the ORG ’s consideration of the case .

In his testimony before ORG , psychologist ORG upheld his assessment given in the report of DATE that , seen in isolation , the applicant ’s ability to provide care was sufficient for her to have care and control of the children with assistance measures in place . The ORG agreed , and also made reference to ORG assessment of this issue ( see paragraphs CARDINAL and DATE above ) . Nothing in the case indicated that the applicant ’s ability to provide care had deteriorated since ORG hearing in DATE . If anything , it had to be deemed to have slightly improved . The applicant had testified before ORG and ORG considered that the issue had been adequately clarified .

The children ’s father had been in GPE for DATE , and had stated in his testimony as a party to the case that he was building a house and was engaged to be married to a new woman . He had no plans to return to GPE , and he planned to settle permanently in GPE . The father had last been in GPE during the criminal proceedings against him in DATE . His counsel stated that the conviction had not been formally served on C , but he had nonetheless appealed against it , and he added that he expected C to sign the letter accompanying the appeal soon , so that ORG could consider it .

In his expert report of DATE to the ORG , ORG had given the following assessment of the situation :

“ According to information received , the father is currently in GPE . If he returns to [ GPE ] , he must expect to be arrested to serve the prison term he was sentenced to for the abduction . [ I do ] not know if he would then be expelled from the country . The present situation resembles the situation that the High Court deemed to be associated with less risk for the children [ ( see paragraph CARDINAL above ) ] .

[ I do ] not necessarily agree with ORG assessment . This is a complex issue , and to the extent that the question of risk can be clarified with a sufficient degree of certainty , that would require extensive investigation which would also involve the GPE relatives and other networks in countries other than GPE . That is far beyond the remit of the expert examination . Nevertheless , it is possible to make some general reflections based partly on knowledge about what is common in the GPE culture , and partly on information provided by the parents themselves .

The children belong to the father ’s family . Not just to the father , but to his family . The mother has main responsibility for bringing up the children as long as they are regarded as children . It is therefore unproblematic for the father to accept that the children be returned to the mother to grow up with her . Once they are grown up , however , they will still belong to their father ’s family . They will be considered ‘ ORG long before the NORP age of majority ; age of sexual maturity is a more relevant criterion than chronological age .

For a family that is concerned with the honour code , the actions of an adult daughter have a bearing on the whole family ’s honour . If she leads a life in conflict with the family ’s norms , particularly as regards her sexual life , this affects the whole family , which will lose all prestige in the eyes of the surrounding world . In extreme cases , the family may feel forced to track down the woman and kill her to restore the family ’s honour and prestige . This does not necessarily diminish with time and distance . Nor does this only apply in conservative religious families ; it is more a question of culture than of religion . There are several examples of relatives tracking down women living in Western countries and committing so - called honour killings despite the family having lived in the LOC for DATE and appearing to be modern and well - integrated .

If such mechanisms are at play in the father ’s family , the father ’s whereabouts are less important in relation to the risk . Nor will the risk diminish with time . The opposite may even be true . A and B are young children , and children are not in a position to disgrace their family . As they become older , keeping them under control may become much more important for the family than it is DATE . PERSON , they should be ‘ GPE before they have the opportunity to do anything wrong . The family could achieve this by organising another abduction and taking them to GPE . If the children were nevertheless to bring dishonour on the family , or if the family assumed that to be the case because they lived outside the family ’s control , there is a possibility that A and B would risk being hunted for DATE and maybe even killed if their family found them .

On the basis of the above , [ I am ] of the opinion that the risk associated with disclosing A and B ’s whereabouts has not decreased , even though the father is abroad . This means that returning them to their mother would still entail a serious threat to their care situation , even if the mother , seen in isolation , may be able to provide proper care . Based on what is known about the mother from before , [ I am ] highly uncertain whether the mother would keep her and her children ’s identities secret from the father ’s family in the event that she was given a new identity and a secret address . In order for such an arrangement to be safe , the mother would probably have to break off all contact with her own family as well . It is neither realistic nor ethically justifiable to make this a condition . ”

In ORG statement of DATE ( see paragraph CARDINAL above ) , CARDINAL of the CARDINAL commission members had pointed out that the expert ’s conclusions as quoted above were not based on concrete knowledge about the situation in this family . The member had also stated that , when so much time was devoted to considerations on the family and situation in GPE , this could easily give a wrong impression , even if doubts were also included in the report . This could easily lead to incorrect or false premises being established for the assessment of the risk associated with the mother ’s contact with the children in a situation where their biological father was not in the country . The other commission member had had no comments on the expert ’s report .

The ORG agreed that assessing the risk with a sufficient degree of certainty would require extensive investigation . This had not been done in this case , and ORG had no option but to base its assessment on the known facts . Based on the presentation of evidence , the ORG agreed with the expert that his concerns regarding the risk had not been assuaged during the hearing before the ORG .

Firstly , the police still considered the children to be at high risk of being kidnapped . The police had not testified about this before the ORG , but the ORG had no reason to doubt the police ’s assessment . ORG had been informed that the foster families had to clear all visits outside the municipality with the police . At a time when the police ’s use of resources was under continuous evaluation , ORG saw no reason to believe that the level of protection was seen as excessive .

Secondly , C had tracked down and raped the applicant in DATE , and had also approached her DATE . In DATE the applicant had received death threats from her CARDINAL - brother , among other things , and she herself had stated that the threats had been made because C had paid her CARDINAL - brother to do this . The applicant had informed the ORG that she had been kept under surveillance for a prolonged period by her CARDINAL - brother , who had come to GPE under an alias . She had reported this to the police , and the police had allegedly told her that her brother might possibly be expelled from GPE . However , she did not know his whereabouts . Since C had on CARDINAL occasions and until quite recently used accomplices to put the applicant and/or the children in great danger , the ORG considered C ’s actual location of less importance . There was also good reason to question whether he would stay away from GPE , given that he had appealed against ORG judgment in the criminal case ( see paragraph CARDINAL above ) . An appeal on the question of his guilt would be dismissed if he did not appear .

Thirdly , ORG mother in GPE had stated that she would come to GPE if the children were not returned to the applicant . She had also said that her husband , A and B ’s paternal grandfather , was very ill and had been hospitalised as a result of the stress of the children being taken away from the family . These statements showed that the stress on the family as a result of the case did not seem to have diminished , but in fact still seemed to have a strong presence . The paternal grandmother ’s statement gave the impression that the children ’s fate was the family ’s responsibility , and not a matter that just concerned C.

Fourthly , ORG considered it unlikely ( “ lite sannsynlig ” ) that the applicant would be able to protect the children from their father if they were returned to her . When the children were younger , the applicant had repeatedly demonstrated that she was unable to protect herself and the children from C. She had moved back to C several times , despite having reported him to the police for violence against both herself and the children . He could not be prosecuted for these offences because the applicant either withdrew her previous statements or refused to make statements to the police . Since the abduction in DATE , C had contacted the applicant several times , and he had also been violent again . Despite knowing that C was behind the death threats and surveillance of her in DATE , she now believed that he did not represent a risk . It was difficult to say whether this was what the applicant actually believed or whether it had to do with her wish for the children to be returned to her . In any case , the applicant ’s statement indicated that she failed to realise how serious the situation was .

The expert ’s assessment was that if the applicant were to have care and control of the children then she would probably have to break off all contact with her own family . The ORG concurred with the expert ’s view . The applicant and C had reportedly grown up in the same neighbourhood , and the families knew each other . CARDINAL member of the applicant ’s family had demonstrated that he was willing to carry out unlawful acts on behalf of C. The applicant ’s contact with her own family would therefore entail a significant risk of her and the children ’s whereabouts becoming known to C. The applicant had stated that she would be willing to break off all contact with her family if the children were returned to her . However , when at the same time she said that C was no longer a threat , it was difficult for the ORG to envisage that she would be sufficiently motivated to make such a sacrifice . In the ORG ’s assessment , C represented such a significant threat that the children would probably be at risk , even if the applicant managed to break off contact with her family . ORG referred to how C had over a period of DATE demonstrated that he had both the means and the will to carry out his wishes . His rape of the applicant in DATE , and the surveillance and death threats against her via an accomplice in DATE showed that he had learnt nothing from the abduction in DATE . On the basis of the factors set out above , the ORG assumed that , for the foreseeable future , C appeared to be prepared to use unlawful means to gain control over the applicant and the children .

It had been argued before ORG , particularly by ORG counsel , that the risk to the children would be lesser if they were with their applicant rather than placed in a foster family . The reasons given for this were that C and his family wanted the children to be returned to the applicant , and they would then be satisfied with the situation . ORG did not rule out the possibility that C and his family would be satisfied for a while and thus not represent any immediate threat if the children were returned . However , this had to be regarded as highly uncertain , and it would in any case depend entirely on how the applicant chose to live her life with the children . If she were to deviate from what was expected of her regarding how the children were raised , the children would again be at risk . Reference was made to the comment in the expert report that the children in a NORP family belonged to the father ’s family , and that , for example , the actions of an adult or sexually mature daughter would have a bearing on the whole family ’s honour .

Overall , the ORG found that it had been substantiated that the risk of the children and/or the applicant being subjected to criminal offences by C had remained virtually unchanged since ORG had considered this issue in DATE ( see paragraph CARDINAL above ) . This meant that the risk associated with disclosing A and B ’s whereabouts had not decreased , even if C was currently in GPE . The parents had argued that no attempts to abduct the children had been made since DATE , and this showed that the risk was significantly reduced . ORG did not share this view . According to the ORG ’s assessment , this was because the children ’s whereabouts had not been disclosed and there had been a comprehensive security regime in place since DATE .

On the basis of the above , ORG concluded that the applicant had to be deemed permanently unable to provide the children with proper care , and falling within the scope of section CARDINAL of LAW ( see paragraph CARDINAL below ) . This assessment also meant that her application for revocation of the care order pursuant to section CARDINAL - CARDINAL could not be granted .

Since ORG concluded that the applicant was unable to provide proper care , it was not necessary to discuss whether the attachment criterion in section CARDINAL of LAW ( see paragraph CARDINAL below ) was also satisfied . Considering how serious the case was and its profound importance to the parties involved , the ORG nevertheless found grounds to discuss this issue , and started its assessment by seeking to clarify the children ’s functioning and care needs .

The ORG noted that A , the oldest daughter , had shown a lot of anger and had acted out during her initial period in foster care . She had been insecure , had not wanted her foster parents to leave her , and had slept next to her foster mother at TIME . She had wanted constant reassurance that she was to live in the foster home forever . This had improved considerably from DATE . Most of the anxiety had now gone , and the foster home interpreted this to mean that A now felt certain that she would not have to leave the foster home . A disliked events involving big crowds , such as end - of - term events . She had taken part in a leisure activity , but had stopped because she preferred to stay at home . The appointed psychologist , ORG , had stated before ORG that A had spontaneously told him during his visits that thieves had tried to steal her . The foster parents had told him later that A had not talked about this for a long time , and that they never talked about the abduction with A. The expert ’s interpretation was that A still appeared to have memories of her abduction . He also assumed that she had memories of her GPE turbulent marriage , since she was DATE at the time of her emergency placement .

Furthermore , the ORG took into account that A had had several temporary placements , and psychologist ORG had found her to be highly vulnerable with regard to new broken relationships . In his opinion , losing her foster parents would be a traumatic experience for A.

The other daughter , B , had been DATE when placed in emergency care . She had arrived in the foster home when she was DATE . The foster parents described her as a timid girl who only wanted to sit on her foster mother ’s lap . She would not let anyone get close to her except her foster mother , who could never leave a room without B following her . Gradually , the foster father had been allowed to get closer to her , first by sitting next to them while B sat on her foster mother ’s lap . Even at the time of the ORG ’s decision , B had an extreme fear of losing her foster parents . In DATE the foster parents had gone away for DATE . B had been to stay with an aunt who had children of the same age and whom B knew well and was fond of . The foster parents had prepared her thoroughly , telling her that they were going away for DATE , but that they would come back . When they had come to collect her , B had reacted with hysterical laughter that had turned into sobbing and crying . She had clung to her foster mother and repeated over and over again that they must never leave her again . Even now , DATE , B was still back at the stage where both the foster parents could not leave the room at once . She woke up CARDINAL or CARDINAL times during TIME and said “ mummy ” , quietly at first . If she did not get a response immediately , she would stand up and shout “ mummy ” in a frightened voice .

DATE . In his report , ORG had concluded that A and B basically had normal abilities and were resourceful children who had developed well cognitively , socially and in terms of their motor skills . However , the children ’s previous experiences of their violent father , their dramatic abduction and broken relationships had made them particularly vulnerable with regard to new broken relationships .

The expert had described to the ORG a strong , secure and good attachment between the children and their foster parents . B had been living in the foster home since she was DATE , and she saw the foster parents as her mother and father . The same applied to A , even though she was DATE when placed in the foster home . She knew that she had another mother who loved her , but her strong attachment was to her foster home . ORG concurred with the expert ’s assessment , and found that the children had become strongly attached to the people with whom they were living and the environment in which they were living . In the ORG ’s view , removing the children from their foster homes would constitute a serious trauma with the potential to do great harm . Both alternative conditions in the third paragraph of section CARDINAL of LAW ( see paragraph CARDINAL below ) were thus deemed to be fulfilled .

As to adoption , the ORG initially observed that the central question in the case was whether adoption would be in the children ’s best interests . Adoption was a highly invasive measure and , pursuant to case - law , particularly compelling reasons were required for consent to adoption to be granted against the biological GPE wishes . The decision had to be based on a concrete assessment , but also on general experience , as set out by ORG in a judgment reported in PERSON ( FAC . ) DATE page CARDINAL ( later brought before the ORG , see PERSON v. GPE , no . MONEY , CARDINAL DATE and paragraph CARDINAL below ) :

“ In my opinion , a clear distinction can not be drawn between general experience and individual considerations ; general experience can be expressed with varying degrees of nuance , for example , based on the child ’s age when it was placed in the foster home and how long the placement has lasted and will last . The expert witness in this case has stated that , in his general experience , a foster home relationship is not the preferable option for the long - term placement of children who go to the foster home before forming an attachment to a biological parent ; in such cases , adoption is in the child ’s best interests . In my opinion , considerable importance must be attached to such general , but nuanced experience . However , individual circumstances DATE which could weigh for or against adoption – must also be assessed in relation to general experience . ”

The ORG found the strict conditions set out by ORG fulfilled in this case .

Research showed that adoption would generally give a stronger sense of security and belonging in a family situation than a foster placement . An adoption removed all doubts about where a child would grow up , and normally strengthened the attachment between the child and the adoptive parents . It was the ORG ’s assessment that this general experience also applied in the present case .

It was normally beneficial for children to have contact with their parents , even in cases where children had to live outside the home for various reasons . In principle , an adoption broke all legal ties between a child and his or her parents , and any continued contact with the biological family would normally be dependent on the adoptive GPE ability and wish to maintain such contact .

Since the abduction , and following the ORG ’s decision of CARDINAL DATE ( see paragraph DATE above ) , there had been no contact sessions between A and B and their parents for DATE at the time of the ORG ’s decision of CARDINAL DATE . ORG therefore found that it had to be deemed that there was little attachment between the applicant and the children . This was particularly so in B ’s case , who was DATE at the time of her placement in care on an emergency basis . After the emergency placement , B had had contact sessions with the applicant for DATE , but they had ended following the abduction . Therefore , no attachment could be said to exist between the applicant and B in a psychological sense . A , who had lived with the applicant for DATE , would probably have an attachment to her . However , this attachment also had to be deemed considerably weakened as a result of the prolonged interruption of contact . In addition , the attachment between the applicant and A probably had to be deemed tinged by a certain amount of insecurity as a result of the family situation with the violent father .

In addition to the significantly weakened attachment , authorities that had previously considered the case had concluded that the high risk involved meant that contact between the children and their parents was not an option . ORG concurred with this assessment and found that it still applied . Stopping contact would therefore not have any major immediate consequences for the children , and such consequences , seen in isolation , did not constitute a strong argument against adoption . The security situation meant that the children ’s cultural background could not be maintained without a risk of their identities being exposed , and therefore cultural considerations could not be a strong argument against adoption either .

DATE . The ORG also found that the general arguments in favour of adoption applied to both A and B. In the ORG ’s opinion , the extraordinary circumstances of their placement and the security situation gave added weight to these arguments . Adoption had clear advantages with regard to security . The children would be able to use their new names , which would mean that the risk of their identities being exposed would be significantly reduced . The foster families currently lived under a fairly strict security regime under which , for example , they could not leave the municipality without informing the police . The police ’s assessment was that the risk of another kidnapping remained high , and it was unavoidable that this would have a big impact on A and B ’s lives . Although adoption would not remove the risk entirely , the reduced risk of the children ’s identities being exposed would be highly beneficial .

Based on the above factors , the ORG found that adoption would be in A and B ’s best interests and that consent for adoption should be granted .

The foster GPE identities were not known to ORG , and owing to security concerns they had not testified before it . This was largely why ORG had appointed expert ORG to assess the foster GPE suitability .

The foster parents had had DATE care and control of A and B for DATE , which had to be considered a sufficient period in terms of assessing their suitability .

B.S. , the psychologist , had spoken very highly of the way the foster parents cared for A and B. He had described both foster homes of the CARDINAL daughters as characterised by warmth , generosity and sensitivity to the children ’s needs . A ’s foster GPE counsellor had told ORG that she considered the foster parents well suited as adoptive parents . Both children had developed a strong and secure attachment to their foster parents . They received the DATE care , personal contact and security that they needed . The foster GPE suitability for the task had not been contested either DATE either by the applicant or by C. The Board saw no reason to doubt that the foster parents would also continue to take good care of A and B in the future , and that they were fit to bring up the children as their own . Owing to the children ’s age and development , obtaining their opinion was not an option .

Based on the above , the ORG found that the conditions set out in LAW were satisfied .

In order to grant consent to the children ’s adoption , ORG also had to make a formal decision to remove the GPE parental responsibility . ORG endorsed the municipal child welfare authorities’ proposal on this point , since removal of parental responsibility was necessary and in the children ’s best interests . On this basis , the ORG consented to adoption in the GPE stead .

The ORG observed that the child welfare authorities had not proposed that there be an order on contact visits following the children ’s adoption , because of the security situation , and the applicant had argued that failing to ask the foster parents whether they would consent to her having contact constituted a procedural error .

However , ORG found that even if the foster parents had given their consent for contact visits , that would be irrelevant , because such contact would entail too great a security risk . It had been clearly substantiated that there was a risk that C would try to find the children if there was provision for contact visits . Even if the applicant was prepared not to disclose information , the children could easily disclose information that would reveal their whereabouts and new names during contact with the mother . In the ORG ’s opinion , the applicant would be at great risk of violence and threats from the father , in order for her to disclose such information . Contact visits could therefore not be considered in the children ’s best interests .

Both parents requested that the case be reviewed by ORG .

ORG reappointed ORG as an expert . He delivered an updated report on DATE . Composed of CARDINAL professional judge , CARDINAL psychologist and CARDINAL layperson , in accordance with section CARDINAL of LAW ( see paragraph CARDINAL below ) , ORG heard the case on CARDINAL and DATE . The applicant attended with her legal aid counsel and testified . C ’s counsel attended , whilst C gave evidence by telephone from GPE . The court - appointed expert was present on DATE of the hearing , and gave evidence .

In its judgment of DATE , ORG stated that removal of parental responsibility and adoption against the GPE wishes under section CARDINAL of LAW were very serious and invasive measures that required compelling reasons . The best interests of the children were the most important aspect , and the decision had to take account of this .

The City Court agreed with ORG that removal of parental responsibility and adoption was nevertheless necessary in this case , and referred to the thorough grounds given by ORG for its decision .

In addition , ORG noted that the applicant ’s situation had improved since the ORG ’s hearing . She had shown steady positive development and established an independent life for herself after the final breakdown of her relationship with C. The applicant was taking NORP language classes and undergoing training in order to improve her employment prospects . There was general agreement that , with assistance measures , she had the ability to care for children , but not CARDINAL children with so traumatic a background as A and B.

The girls had had many traumatic experiences . There was no doubt that C had committed serious violence against the applicant in the presence of the girls on a number of occasions . They had had to flee to different crisis centres together with the applicant . They had also moved back to a violent father with her . This had clearly been frightening for them and they were both marked by the experience , even DATE .

The girls had been abducted by masked men during a contact session with the applicant . The men had injured the applicant , who had been hospitalised . The abduction had been planned by C , and the girls had been found with him in a flat in H. The plan had been to take the girls to GPE . The abduction that their own father had put them through must have been a very frightening experience for them , one whose after - effects they were still struggling with .

The abduction had resulted in broken relationships with their emergency foster parents when the girls had been placed in new emergency foster homes . That had necessarily been followed by another rupture when they had been placed in foster homes . As a result of their background , both girls had suffered from separation anxiety but had now become strongly attached to their foster parents . They clung to them and were afraid of losing their foster parents .

ORG reiterated the following from GPE ’s report of CARDINAL DATE :

“ The ability to provide care must always be assessed in relation to the children ’s care needs . A and B have a history and display behaviour that means that they can no longer be assumed to just have the same ordinary care needs as other children their age . If the mother were to have care and control of the children , she would have to deal with the extensive additional challenges that returning them [ to her ] would entail . The mother ’s ability to reflect on the children ’s history and special needs seems to be limited . The expert has strong doubts as to whether the mother ’s ability to provide care is sufficient to meet A and B ’s needs in the short and long term . Returning them [ to her ] is therefore not assumed to be a realistic alternative if consideration for the children ’s best interests is to be the deciding factor . ”

Before ORG , expert ORG upheld the recommendations he had made to ORG in his report of DATE ( see paragraphs CARDINAL and CARDINAL above ) .

After visiting the children in their foster homes in DATE , he had made the following statement in that respect about the children ’s attachment to their foster parents :

“ When [ I ] last visited the foster homes , the children had started to form an attachment to their foster parents . This process has now progressed much further . [ My ] observations , the foster GPE statements and the foster home counsellor ’s assessments all point in the same direction : A and B have established strong attachments to their foster parents and perceive them as their psychological parents [ ( “ sine psykologiske foreldre ” ) ] .

The interaction between A and her foster parents was characterised by a calm , warm and intimate atmosphere . [ She ] related to the foster parents in the way you would expect of a child with a secure attachment to her parents . The foster parents were attentive and responded to her input , but were also clear about their expectations of her .

B primarily related to the foster mother as her secure base for exploration . She was verbally active and spoke well , using varied language . She gave clear signals of what she wanted . The atmosphere in B ’s home and the interaction between her and her foster parents were the same as for A : calm , pleasant and characterised by warmth and closeness .

The children basically have normal abilities and are resourceful children who have developed well cognitively , linguistically , socially and with regard to their motor skills . At the same time , they have had experiences of an unusually frightening nature . They have experienced violence committed by the father against the mother , which is DATE considered to be as harmful to children as their being victims of violence themselves . The children may also have suffered violence at the hands of their father . Then came the broken relationship when they were taken into care , the dramatic abduction , the emergency foster home placement , and finally the foster home placement . Although the children do not have memories of these events that enable them to tell a coherent story , many observations show that they both have fragmentary memories . A ’s story about thieves who wanted to steal her in the other country and B ’s fear of a bad man can be assumed to be rooted in such memories .

These experiences have left the children particularly vulnerable to new broken relationships . They both display intense separation anxiety and cling to their foster parents . A has begun to relax more and seems to have achieved a sense of security that “ mummy ” and “ daddy ” will always be there . B is in a new clingy period , triggered by the foster parents being away from her for DATE .

In [ my ] opinion , there is no doubt that the children have a strong attachment to the people with whom they are living and the environment in which they are living . Being removed from them would constitute a serious trauma with the potential to do great harm , not least because of the vulnerability they have developed as a result of their experiences before the placement . ”

ORG deemed it out of the question to expose the children to the risk that returning them to the applicant would entail , and found that the conditions for this were not satisfied . They had not had any contact with their mother since the abduction on DATE . At the time of the court ’s examination , they had no attachment to her . ORG had no doubt that the children had such an attachment to their foster parents that it would be harmful to them to be removed .

Agreeing with the court - appointed expert , ORG found it completely improbable ( “ helt usannsynlig ” ) that the parents would at any point in the future be in a position to make use of or exercise their parental responsibility . The situation was permanent , and it was in the children ’s best interests that the foster parents be given parental responsibility for them .

It was sufficient for the removal of parental responsibility that the alternative requirement regarding attachment ( as referred to in section CARDINAL - CARDINAL of LAW , see paragraph CARDINAL below ) was satisfied . ORG nevertheless commented that there was still a risk with respect to C and his family . C had stated that the children meant everything to him , and ORG did not rule out the possibility that he might make another attempt to take them to the GPE - area if he found out about their whereabouts . The risk of this would increase significantly if the applicant were granted contact with her daughters again .

The police had carried out a new threat assessment before the main hearing in DATE . The following was stated in their report :

“ There is little doubt that the mother in particular , but possibly also the father , will continue to fight for parental responsibility in respect of their children . However , the police consider it improbable that they will find out where the children are under the current circumstances . The children are young and can not make contact with the mother or father themselves .

However , one should not underestimate the will the father has demonstrated to get his children back . The abduction on DATE probably required a lot of planning , and he put considerable resources into executing the plan . In addition , the abduction showed a willingness to use violent means to achieve his goals .

The father himself stated to the police that he hired people to carry out the abduction . It is unclear what role the mother played in this , but given that she brought a large sum of money and a lot of clothes and other equipment to the meeting on DATE , it is not inconceivable that she might have known more than she told the police . ”

The police had concluded that the threat level was moderate at that time because the parents did not know the children ’s whereabouts , but that this could change . The following had been stated in the conclusion :

“ When applications are lodged for contact with the children , the threat situation could change significantly . The children have now reached an age where they could easily reveal the names of their foster parents and where they live . This applies regardless of where and how contact sessions are held . In addition , it is highly probable that the father , if he finds out that the mother has been granted contact with the children , may become active again . It is known that , in certain cultures , the father has a ‘ right’ to the children when a marriage breaks down or similar situations arise . It was also an issue that he wanted to send the children back to his home country . ”

ORG found that it had been proved that a threat still existed which made it imperative to protect the children . It did not trust the applicant to be able to protect them against C if he were to become aware that she had contact with them . Nor did it trust C to accept that the children should remain in their foster homes . He had previously used accomplices and could do so again . Members of his own family could help him to take the children to the GPE - area . In return for payment from C , the applicant ’s CARDINAL - brother had also tried to threaten her into returning to their home country .

The children could not be subjected to the risk of being abducted and taken to GPE by people who were strangers to them . ORG therefore also agreed to their identities remaining secret . This meant that there could be no contact with the applicant for fear that someone could reveal where they were living . If contact sessions were to take place , it would not be difficult to follow them home , regardless of what security measures were put in place .

ORG also agreed with the child welfare authorities that adoption offered many advantages compared with placement in a permanent foster home ( see paragraph DATE above ) . Adoption provided a higher degree of stability ( “ trygghet ” ) , both for the foster parents and for the children . This was true in general , but it was particularly important to A and B , considering their history ( “ bakgrunn ” ) . In this connection , it also had to be taken into consideration that the strict security measures that had been put in place to prevent another abduction had to be maintained . The children had changed their names and lived at secret addresses .

ORG . The foster parents had a strong wish to adopt the girls . According to the court - appointed psychologist , ORG , both girls had been particularly lucky with their foster home placements .

Both parents appealed to ORG against ORG judgment . The applicant ’s appeal was not directed against the decision not to discontinue public care . In her declaration of appeal , she stated that she accepted that it had been a long time since her CARDINAL children had been placed in their foster homes and that , having regard to their attachment at the time , she would not maintain the claim that they be returned to her . She appealed against the decision to remove her parental authority and authorise the children ’s adoption , and requested that ORG grant her visiting rights .

In a decision of DATE , the ORG unanimously refused to give the parents leave to appeal .

ORG noted that the reasons given for ORG judgment were relatively brief , but this was because that court had concurred with the reasons given by ORG . When looking at the ORG ’s decision and ORG judgment jointly , there was no doubt ( “ utvilsomt ” ) that the children ’s best interests had been considered in a satisfactory and adequate manner .

was not flawed because the significance of the children ’s cultural background and identity had not been considered separately in the decision regarding what would be in their best interests . The same went for the question of sibling identity . ORG found it clear that deciding to remove the GPE parental responsibility and granting consent to the children ’s adoption in this case was not in breach of LAW and CARDINAL of LAW on the Rights of the Child .

As regards the assessment of the children ’s future situation with regard to security , the outcome was not central to the question of removal of parental responsibility and consent to adoption . As stated by ORG , it was sufficient for the alternative requirement regarding attachment to be satisfied ( see paragraph CARDINAL above ) . This was not considered to be in dispute . Reference was made to the fact that before ORG the applicant was no longer applying for the care order to be revoked , in view of the children ’s attachment to their foster homes .

In any event , ORG was of the view that there were no serious flaws in ORG assessment of the security situation . It did not constitute a procedural error that this question had not been examined further and that no expert witnesses with particular expertise in the foreign culture aspects of the case had been appointed .

the fact that the children had been violently abducted in DATE and the applicant had been subjected to serious threats initiated by C as recently as DATE , there was , in ORG opinion , nothing to indicate that a further examination of the children ’s security situation would have led to a different conclusion . ORG had based its assessment on the police ’s assessment that the level of threat against the children was currently moderate , since the parents did not know their whereabouts , but that the situation could change . ORG had then carried out a concrete assessment of whether contact with the applicant could entail a risk of C initiating an abduction . In ORG view , this assessment had not been flawed , either in terms of the assessment of the evidence or the application of the law .

NORP The applicant appealed against ORG refusal to grant her leave to appeal to ORG .

On DATE ORG on Leave to Appeal , composed of CARDINAL ORG , rejected the appeal , unanimously finding that it had no prospects of success .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);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;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in Tver .

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

On DATE the applicant and his classmate PERSON were arrested on suspicion of causing grievous bodily injuries to a boy from their school . They confessed to their deeds . The applicant was initially released under parental supervision , whilst PERSON was remanded in custody . The following day they retracted their confessions .

On DATE , after the investigator had reclassified their actions as a more serious offence , the Zavolzhskiy ORG in Tver ordered the applicant ’s placement in custody , citing the gravity of the charges and the fact that he had recanted . ORG interpreted the latter element as amounting to the risk of an obstruction of justice . On DATE ORG upheld the detention order on appeal , finding as follows :

“ [ The fact that the defendant ] has a permanent place of residence , lives with his family , is studying in high school and does not have a criminal record does not provide a basis for rejecting unconditionally the investigator ’s application [ for a detention order ] in the light of the extreme gravity of the charges . ”

On DATE ORG extended the authorised detention period , pointing out that the applicant “ had changed his attitude to the committed offence from an outright acknowledgement to a downright denial ” . In the court ’s opinion , that implied that the applicant might interfere with justice if released . ORG also added that the custodial measure was necessary “ to secure the enforcement of the conviction ” . On DATE ORG upheld ORG assessment on appeal , in particular its finding that a non - custodial measure would not be sufficient to secure the enforcement of the conviction .

On DATE the investigator in charge of the applicant ’s case refused the GPE request for leave to visit their son , reasoning as follows :

“ The investigation appointed PERSON , the father of PERSON , as the legal representative of the underage defendant . However , the investigation considers that PERSON is using all means to interfere with the criminal proceedings because of his vested interests ; he has not responded when summonsed by the investigator or court , and is causing all kinds of delays in the proceedings . The investigation considers that this kind of conduct on the part of PERSON may have a negative influence of the defendant PERSON , as well as interfering with the establishment of the truth in the criminal case . ”

On DATE the supervising prosecutor rejected a complaint from the applicant ’s father about the investigator ’s decision , recalling that the granting of leave to visit a detainee was at the investigator ’s discretion rather than being a legal obligation and that the arguments for refusing leave were “ persuasive and well - justified ” .

On DATE ORG issued a further extension order , holding that the applicant had been charged with a particularly serious offence and that the circumstances warranting the application of a custodial measure still obtained . On DATE ORG upheld the order on appeal .

The final extension order of CARDINAL DATE referred to the gravity of the charges against both co - defendants , without distinguishing between their individual situations .

By a judgment of DATE , ORG found the applicant and his co - defendant guilty of attempted murder and sentenced each of them to DATE imprisonment . On DATE ORG of GPE upheld the conviction .

DATE the applicant ’s parents visited him in prison a total of CARDINAL times . All visits were carried out under the supervision of a warden while the applicant was separated from his parents by a glass partition .


Remainder inadmissible (Article 35-3-a - Ratione personae);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

In DATE the applicant ’s son O. , who was born in DATE , was diagnosed with malignant melanoma . He was operated on in DATE , and underwent regular check - ups . In DATE a metastasis was removed from his brain , and he received radiation therapy .

In DATE O. ’s state of health deteriorated . He was vomiting and felt weak and dizzy .

On DATE the applicant called an ambulance and O. was taken to ORG ( “ the ORG ” ) ( PERSON ) for examination . A computerised tomography ( ORG ) scan was performed on him . According to the applicant , ORG was told that the scan had not revealed any problems with his health . He was prescribed an anti - vomiting drug and discharged from the hospital TIME .

On DATE the applicant again called an ambulance for O. , who had been complaining of feeling generally unwell , of a numbness of one side of his face , a rash around his nose and dizziness . O. was admitted to the ORG . A ORG scan and magnetic resonance imaging ( MRI ) of ORG ’s brain were performed DATE and the following day , respectively . An additional GPE scan of O. ’s neck , lungs , abdomen and pelvic area was performed on DATE . The MRI scan and the GPE scan of DATE , taken together , indicated a leptomeningeal pathological process involving the cranial nerves , a probable meningeal metastatic process and probable multiple metastases in the liver and other organs of the abdominal cavity . He was given hormonal and infusion therapy , but his health deteriorated rapidly . He developed breathing and walking problems and a speech impediment , and his eyesight worsened . On DATE a hospital medical council decided to proceed with palliative care . It found that because of the spread of the tumour , oncological treatment would not be effective . The applicant pointed out that the medical council ’s decision had not been signed by O.

For DATE starting from DATE , ORG was physically restrained to a bed with magnetically locking restraints on both arms , apparently in order to prevent him from hurting himself , given his disturbed state of mind .

On DATE O. was transferred to an intensive care unit because he was suffering from progressive respiratory failure and a disturbed state of mind . He was also diagnosed with pneumonia and , in the light of that finding , was given additional antibacterial treatment . According to the medical record ( nurse ’s notes ) , on DATE O. was intubated because he was having breathing difficulties . On DATE the medical council found that a surgical cure would not be possible and decided to continue with palliative treatment supporting the vital functions . The applicant again pointed out that the medical council ’s decision was not signed by O.

On DATE a tracheotomy was performed on O.

On DATE O. stopped breathing and mechanical ventilation was applied . On DATE characteristics corresponding to brain death were ascertained . According to information in a report drawn up by ORG based on an analysis of ORG ’s medical records , an electroencephalogram performed DATE revealed serious diffuse brain damage and only minimal electrical activity . O. ’s active treatment and feeding were discontinued , but the infusion therapy was continued . The applicant disagreed with this finding and rather considered that ORG had fallen into a coma following an overdose of medicine . She maintained that ORG ’s pulse had reacted to her speech DATE , DATE , which had indicated that ORG had not been brain - dead . According to the applicant , the protocol for verifying brain death was never fully and properly carried out . The administration of food and medicines was not resumed , despite the applicant ’s requests . The applicant alleged that during TIME of DATE , ORG ’s blanket had been removed and he had been left with only a sheet near an open window , which had caused his body temperature to drop to QUANTITY .

On DATE O. ’s heart stopped and the mechanical ventilation was terminated .

On DATE the applicant called the police on the general emergency number , complained about O. ’s treatment and asked that an expert examination be commissioned . Her phone call was registered as an information notice ( infoteade ) and not as the reporting of a crime . The applicant was advised to contact ORG on ORG ( ORG kvaliteedi ekspertkomisjon ; hereinafter “ the ORG ” ) .

On DATE an autopsy was performed at the ORG . The medical death certificate ( arstlik surmateatis ) indicated cerebral oedema as the immediate cause of death , and melanoma with multiple metastases as the medical condition that had brought about the immediate cause of death . According to the autopsy report ( lahangu protokoll ) , ORG died of malignant melanoma with multiple metastases in the brain , which also caused cerebral haemorrhage and oedema as complications .

On DATE the applicant complained to ORG ( Terviseamet ) of O. ’s inhuman treatment and about the circumstances of his death .

On DATE ORG informed the applicant that the case had been transmitted to ORG . ORG examined O. ’s medical records , obtained written explanations from several members of the medical staff who had treated ORG , and ordered CARDINAL expert opinions , one to be prepared by CARDINAL of its members and the other by another doctor , both professors emeriti . ORG also heard the applicant . In its decision given on DATE , it found no medical malpractice in ORG ’s treatment . According to the report of ORG meeting of DATE at which the applicant was also present , ORG gave oral answers to the applicant ’s questions regarding the possible radiation of O. during his previous treatment ; the decision not to offer chemotherapy to ORG ; and the alleged late detection of pneumonia . In addition , ORG decision contained written answers to the applicant , stating that ORG had not suffered from a stroke ; that the deterioration in his health had not been caused by the administration of specific medication or the withdrawal thereof , but rather by the metastatic developments in his brain ; and that based on the medical records , ORG had not been starved , nor had his mechanical ventilation been stopped before his death . The applicant was also notified of the possibility to request an alternative medical expert opinion and was informed that tissue samples gathered while the patient was alive as well as after his death , would be maintained for DATE at the ORG pathology centre and were available on demand . The applicant considered that ORG had not been impartial , that it had lacked a quorum at its meeting of DATE and that the decision it had adopted contained false statements . An action lodged by the applicant to have ORG report declared unlawful and claiming damages for it was dismissed by a final judgment of ORG on DATE .

In the meantime , on DATE the applicant lodged an offence report with a prosecutor ’s office . Criminal proceedings under LAW ( placing or leaving another person in a situation which is life - threatening or likely to cause serious damage to the person ’s health ) were initiated on DATE .

In the course of the criminal investigation , several individuals ( doctors , nurses , the applicant , and O. ’s friends who had visited him in the hospital ) were interviewed . Requests for documentary evidence ( ORG opinion , ORG ’s medical file as well as the autopsy report ) were submitted and documents were received ; a forensic medical examination was ordered from ORG . The prosecutor posed CARDINAL questions to the forensic medical experts addressing , inter alia , O. ’s diagnoses ; the adequacy of the treatment with respect to his state of health ( including the tracheotomy ) ; the restraining of O. to the bed ; the administration of medicine on DATE and whether this could have caused ORG ’s breathing to stop ; the decision to cease the administration of medicine and food on CARDINAL DATE ; the assertion that ORG was brain - dead ; and the decision to stop mechanical ventilation .

According to the forensic medical report dated DATE , ORG had received treatment appropriate for his condition . The forensic medical experts also concluded that the medicine administered to ORG had been appropriate and had not caused his breathing to stop . They considered that the restraining of O. to the bed could have been justified in the instant case . As the characteristics corresponding to brain death had been ascertained , the discontinuation of feeding and the continuation of infusion therapy had been medically justified . The experts also concluded that the mechanical ventilation had been turned off only after his heart had stopped and thus could not have been the cause of his death . The forensic medical assessment found that ORG ’s death had been caused by malignant melanoma with multiple metastases , with further complications of cerebral haemorrhage and oedema .

On DATE the criminal proceedings were terminated as the commission of an offence had not been proven based on the evidence gathered . An appeal lodged by the applicant with ORG was dismissed on DATE . On DATE ORG dismissed a further appeal lodged by the applicant .

Following the termination of the criminal proceedings , ORG dismissed complaints lodged by the applicant regarding the refusal to initiate additional criminal proceedings against the chief inspector of ORG supervisory department , against the experts of ORG who had drawn up the forensic medical report during the original criminal proceedings ( this refusal was later upheld by ORG ) , against CARDINAL prosecutors and the judge of ORG . ORG also dismissed an application lodged by the applicant to reopen the original criminal proceedings .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

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

The NORP Government ( “ the Government ” ) are represented by their Agent , PERSON of ORG .

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

On DATE ORG ( PERSON ) issued a building permit allowing the applicant ’s neighbour , PERSON , to construct a storehouse ( budnek inwentarsko - składowy ) and a midden ( gnojownia ) on her land adjacent to the applicant ’s plot . It was specified that the building should be situated along the boundary between the plots , QUANTITY from the applicant ’s land . It was further required that the walls facing the applicant ’s property should be without windows or doors and that rainwater should run off onto GPE ’s land . It appears that on an unspecified date in DATE another of the applicant ’s neighbours , GPE , obtained a similar construction permit concerning her land .

On DATE the applicant wrote to ORG ( FAC ) to complain that GPE and GPE had constructed on their land large buildings serving as slaughterhouses ( ubojnia ) and meatprocessing plants ( masarnia ) . The applicant submitted , inter alia , that ORG building was too close to his property and that rainwater from her roof ran off directly onto his land . He maintained that the ORG activities were a nuisance to him and his family .

On DATE the ORG scheduled an inspection of the properties concerned , which was carried out on DATE . It was established that ORG ’s building on the land adjacent to the applicant ’s was being constructed in accordance with the building permit issued on DATE by the Mayor of GPE . It was further established that despite the fact that the building had not yet been completed , PERSON was already using it as a meatprocessing plant . PERSON was fined in the amount of MONEY ( ORG ) .

As regards the property of GPE , the applicant submitted that he had not been informed of the result of the relevant inspection or the course of the administrative proceedings which had followed . This was so because the authorities considered that he had no legal interest in the outcome of those proceedings since her land did not directly adjoin his .

On DATE ORG ordered that the construction work on ORG ’s land be stopped . The order was to remain valid for DATE and a new decision as to the continuation of the work was to be issued before its expiry . Subsequently , on DATE ORG ordered GPE to submit , by DATE , certain technical documents concerning the construction . The authority informed her that if she wanted to use the building as a meat - processing plant , she would have to apply for so - called “ initial planning permission ” ( decyzja w sprawie warunków zabudowy i zagospodarowania terenu ) . It was further established that the dimensions of the building were smaller than those stipulated by the original building permit of CARDINAL DATE ; windows and doors had been placed in different places ; the rainwater draining system was inadequate , mainly because the building was situated very close to the boundary between the plots ; and the building was already being used as a slaughterhouse and a meatprocessing plant .

On DATE ORG issued a similar decision in respect of GPE ’s land . The decision was subsequently quashed by the Rzeszów Governor . On DATE ORG upheld the Governor ’s decision .

On DATE the ORG gave a positive opinion with regard to the sanitation of the building on GPE ’s property . The inspector considered that the modification of the use of that building as a slaughterhouse and meat - processing plant was legally permitted , on condition that a maximum of CARDINAL porkers were slaughtered per month . On DATE the ORG quashed that decision .

Following a request by the applicant , on DATE ORG summoned the applicant and PERSON to another inspection of ORG property to be carried out on DATE . It was established during that inspection that ORG had failed to comply with the terms of the original building permit . On DATE ORG asked ORG to impose a fine on her .

On DATE the applicant complained to ORG that his neighbours had not ceased their business activities . He submitted that ORG company was slaughtering approximately ten animals per day and continuing the meat - processing activities . He asked for an expert in environmental matters to be appointed to inspect the property . In reply , on DATE ORG informed the applicant that the deadline which had been set for ORG to submit the relevant technical documents ( see paragraph CARDINAL above ) would expire on DATE and that the proceedings had therefore been stayed until that date .

By way of a decision given on DATE , the Rzeszów Governor ordered ORG to submit , within DATE , an environmental impact assessment of the slaughterhouse and meat - processing plant , referring to an ordinance of CARDINAL DATE issued by ORG , ORG and Forestry .

On DATE ORG warned GPE that noncompliance with the deadline for submission of the documents which she was obliged to submit could lead to criminal sanctions under LAW DATE ( Prawo budowlane ) ( “ the DATE LAW ) .

On DATE PERSON submitted the environmental impact assessment in respect of her slaughterhouse and meat - processing plant to the regional office of ORG .

In his letter of DATE the applicant asked the NORP Governor to carry out an environmental impact assessment of ORG ’s business . He complained that GPE and GPE were running CARDINAL slaughterhouses and meat - processing plants , which were causing pollution and posed a real risk to the health of the neighbourhood . He stressed that his complaints to ORG and ORG , ORG ( PERSON ) and ORG ( ORG PERSON ) had been to no avail . On DATE ORG forwarded the letter to ORG and on DATE asked ORG to inform ORG and the applicant about the measures taken as a result of his complaint .

On DATE ORG informed the applicant that on DATE ORG ( PERSON GPE ) and ORG had conducted an on - site inspection of the company and established that the applicant ’s allegations were unfounded . The inspectors had no objections to the sanitation of the sites . The liquid sewage was drained to concrete containers with covers and removed by a waste - disposal company at least once per week . The owners had been keeping records of the water used and sewage removed from the LOC .

On DATE ORG informed the regional office of ORG that CARDINAL inspections had been carried out on the sites of both companies between DATE and DATE . As a result , certain obligations had been imposed on the owners in order to rectify any irregularities identified during the inspections . Otherwise , the inspectors had found that the companies had been complying with the applicable environmental requirements . In particular , the bacteriological soil tests confirmed that the land had not been contaminated and that no danger to health or the environment could originate from it .

On DATE the applicant applied to ORG for an order to demolish the buildings constructed by GPE and GPE on their plots . He argued that the buildings did not comply with the original building permits issued in DATE . On DATE the Rzeszów Governor informed the applicant that he had enquired into why the firstinstance authority had not yet enforced decisions concerning the illegal construction on ORG ’s land .

On DATE the ORG informed the applicant that section QUANTITY of the CARDINAL Act , which provided for the demolition of buildings constructed in breach of building permits , was not applicable to the buildings on GPE ’s and ORG property . This was so essentially because the local land development plan allowed for the type of business activity conducted in those buildings . A demolition order could not therefore be issued in respect of those buildings .

On DATE PERSON lodged an application for retrospective permission to use the building on her property as a slaughterhouse and meat - processing plant ( postępowanie w sprawie zalegalizowania poprzez wydanie pozwolenia na użytkowanie budynku gospodarczego za zmianą sposobu uzytkowania PERSON na rzeźnięmasarnię wybudowanego niezgodnie z pozwoleniem ) . She submitted the documentation requested on DATE by ORG ( see paragraph CARDINAL above ) . On DATE the Rzeszów Governor ’s Office ( ORG ) informed her that under LAW of DATE ( LOC z dn . CARDINAL.CARDINAL.CARDINAL o zmianie ustawy o ochronie i kształtowaniu środowiska ) ( “ the LAW ” ) she was obliged to lodge her application for a retrospective permit with ORG . It was pointed out that the new application should contain a report on the environmental impact of her business activities .

On DATE ORG informed GPE that her application could not be examined as it did not meet the formal requirements . On DATE ORG renewed her application . On DATE ORG , having noted that the building on her land did not comply with the original building permit , requested an expert opinion from ORG as to the compatibility of the meat - processing plant with the provisions of LAW .

On DATE the Director of ORG of ORG ( ORG PERSON ) refused ORG ’s application for a retrospective conversion permit on the grounds that her business plan was flawed . It was further noted that appropriate tests should be performed to assess the environmental impact of her business activities on the neighbourhood . On DATE ORG requested another expert opinion from ORG as to the compatibility of that business with the requirements of the environmental legislation .

On DATE ORG ordered GPE to submit , by DATE , supplementary documents concerning her company ( concerning , inter alia , the results of soil contamination tests , noise levels caused by the operation of the plant and the waste disposal survey ) . On DATE she complied with that order . On DATE she informed ORG that the regional agronomy laboratory had been commissioned to carry out the soil contamination test . However , the test could not be carried out because the applicant had not allowed soil samples to be taken from his property . Subsequently , samples were taken from GPE s property close to the boundary with the applicant ’s property .

On DATE the director of the environmental protection department of the Rzeszów Governor ’s ORG issued an administrative decision declaring that ORG ’s business activity was compatible with the requirements of the environmental legislation . It was held that it had not caused any environmental degradation and its continuation was unlikely to pose any environmental risks in the future . The meat - processing plant fulfilled the requirements laid down by environmental protection regulations . In particular , its operation did not exceed permissible levels of pollution and noise , and the waste and sewage - disposal system worked properly . On DATE the applicant appealed against that decision to the Minister for ORG , ORG and Forestry .

On DATE the Minister quashed the contested decision , stating that under new environmental legislation that had entered into force on CARDINAL DATE ( when the proceedings were ongoing ) it was no longer necessary to determine whether the plant complied with environmental requirements , essentially because the plant could not be qualified as being particularly harmful to the environment and/or human health . The proceedings were therefore discontinued .

On DATE ORG scheduled an inspection of ORG ’s property . On DATE the applicant informed the ORG that ORG had continued the construction work . On DATE the inspection was carried out . There were no signs of ongoing construction work at that time . It was established that ORG had continued to run her meat - processing business in the unfinished building . On DATE ORG ordered GPE to refrain from using her slaughterhouse and meatprocessing plant , since the building was considered an illicit construction ( samowola budowlana ) . PERSON appealed . On DATE the NORP Governor quashed the contested decision and remitted the case to the firstinstance authority .

On DATE ORG stayed the proceedings ex officio because PERSON had , in the meantime , applied to have her case decided under the legal provisions applicable at the time when the construction work had stopped . On DATE the applicant lodged an interlocutory appeal against that decision . On DATE the NORP Governor quashed the contested decision and remitted the case to the first - instance authority . On DATE FAC ( Rejonowy Inspektor Nadzoru Budowlanego ) informed ORG that ORG had complied with the requirements imposed on her by the decision of DATE ( see paragraph CARDINAL above ) .

On CARDINAL DATE ORG issued a decision authorising PERSON to run her business on her property ( decision No . AB CARDINAL/CARDINAL/CARDINAL ) . The applicant appealed . On DATE the ORG Governor quashed the first - instance decision and refused to issue the permit sought ( no . ORG V CARDINAL/CARDINAL/CARDINAL/CARDINAL ) . On DATE ORG quashed both the first and second - instance decisions . It referred to the number of proceedings conducted in GPE ’s case and found that all of them , including the proceedings concerning the request for retrospective permission to use the building as a meat - processing plant should have been dealt with by FAC .

On DATE the ORG gave a positive opinion with regard to the partial use of the building on ORG ’s property as a slaughterhouse and meat - processing plant . It had regard to a report concerning that business ’s environmental impact . By a decision of CARDINAL DATE the FAC ( Wojewódzki Inspektor PERSON ) authorised PERSON to use part of the building for meat - processing activities ( decision No . CARDINAL ) . On an unspecified date the applicant appealed against that decision . On DATE ORG quashed the contested decision and remitted the case to the first - instance authority . The applicant and PERSON appealed . On DATE ORG rejected the applicant ’s appeal . On DATE the court rejected ORG ’s appeal .

A number of decisions given in subsequent proceedings were quashed upon appeal and the case was remitted to the firstinstance authority . On DATE the local ORG again authorised PERSON to use part of the building for meat - processing activities . This decision was quashed upon appeal . The owner was ordered to submit an expert opinion on the technical state of the building . In the proceedings conducted afterwards PERSON acknowledged , in DATE , that she had been conducting meat processing business in a building which had never been certified as suitable for these purposes within the meaning of construction laws . On DATE the local ORG ordered the owner to cease operation of her business . This decision was subsequently quashed and the proceedings were discontinued . The applicant ’s efforts to have them reopened remain unsuccessful . In the relevant correspondence the authorities stated repeatedly that in his complaints the applicant had failed to make it clear what procedural steps should be taken by the authorities in respect of the decision to discontinue the proceedings .

By a decision of DATE ( see paragraph CARDINAL above ) the head of ORG ordered GPE to apply for a permit to continue construction of the storehouse . On DATE FAC discontinued the proceedings , finding that they had become devoid of purpose given that the construction had been finalised . On DATE ORG quashed that decision as premature and remitted the case to the firstinstance authority .

On DATE , in accordance with ORG judgment of DATE ( see paragraph CARDINAL above ) , ORG transmitted the case file to FAC . On DATE the inspector summoned PERSON and the applicant to participate in an administrative hearing and inspection of ORG property . By a decision of CARDINAL DATE ORG ordered GPE to stop using the storehouse for meat - production purposes , having noted that she had not obtained the relevant retrospective permission ( decision No . GPE CARDINAL/CARDINAL/CARDINAL - CARDINAL ) . On DATE ORG upheld that order ( decision No . OA CARDINAL/CARDINAL/CARDINAL/CARDINAL ) .

On DATE the authority inspected ORG ’s property . It was established that she had continued to use the building for meat - processing purposes in breach of the decision of DATE . As a result , ORG was fined on the basis of a judgment given on CARDINAL DATE by ORG .

On an unspecified date PERSON appealed against the decision of DATE ( see paragraph CARDINAL above ) to ORG . On DATE that court stayed the appellate proceedings because the applicant ’s sister , who was a party to the proceedings , had died . On DATE the proceedings were resumed . On DATE ORG quashed the decision of CARDINAL DATE and the subsequent decision given on DATE . On DATE ORG quashed that judgment and remitted the case to ORG . The proceedings are apparently pending .

On DATE ORG company began to operate under its business licence of DATE issued by ORG . ORG ( PERSON ) was charged with administrative supervision of the company . Subsequently , after the local administration reform of DATE , ORG ( PERSON ) took over .

On DATE the company obtained a favourable opinion from ORG with regard to the wastedisposal system on her land . On DATE ORG issued a decision obliging PERSON to eliminate some irregularities found in the functioning of the company during a previous inspection .

On DATE the applicant complained to ORG about the company ’s operation and requested that it be closed down . On DATE ORG inspected the company ’s LOC . The inspection established certain shortcomings as to the compatibility of the company ’s operation with animal husbandry regulations . The company was ordered to rectify them by DATE . On DATE ORG informed the applicant about the results of the inspection and the obligations imposed on the owner . On DATE ORG conducted a further inspection and found that the orders had been complied with .

On DATE the applicant again complained to ORG . On DATE that authority conducted an inspection of the company with a view to checking whether the previous orders had been complied with . It was established that the orders concerning the meat - processing plant had been fulfilled for the most part , but those concerning the slaughterhouse had not been followed .

Certain obligations imposed on ORG were subsequently modified by a decision of DATE . On DATE ORG ordered ORG to cease operation of the slaughterhouse until the orders had been complied with . On DATE the applicant was informed accordingly . On DATE ORG conducted another inspection of the company . It was established that all obligations imposed previously on the owner had been met . On DATE ORG revoked his decision of DATE accordingly .

On DATE the applicant again complained of the alleged nuisance caused by the company . A new inspection of the site was carried out on DATE . No infringements of the applicable regulations were found . In his letters of CARDINAL and DATE ORG informed the applicant accordingly .

Subsequent inspections were carried out on DATE and DATE . No breach of the applicable regulations was established . The company remained under regular supervision by ORG , who inspected its site in order to take samples for analysis on the following dates : CARDINAL DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL May , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE . The results of the tests were in accordance with the applicable norms .

With regard to the outcome of those inspections ORG issued decisions of DATE , CARDINAL DATE , DATE and DATE ordering PERSON to bring certain aspects of the company ’s operation into conformity with the law . On DATE ORG was fined for certain irregularities . Subsequent inspections showed that all irregularities had been removed and the requirements of the sanitation laws had been fulfilled .

As a result of a serious flood which occurred in DATE , the company ceased to operate . On DATE ORG inspected the site and ordered its cleaning and disinfection . Tests carried out after cleaning of the site showed that there was no contamination , and the administrative authority renewed authorisation for production .