Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-1 and P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the town of GPE , in LOC .

On DATE the applicant sued ORG of ORG and PERSON in tort . A stamp on his statement of claims shows that ORG of GPE received the statement of claim on DATE . According to the Government , ORG received the statement of claim on CARDINAL DATE and listed the first hearing for DATE .

On DATE the hearing was adjourned due to the judge 's leave . The following hearing on DATE did not take place because of the defendants ' absence .

On DATE ORG ordered an expert study and stayed the proceedings . The experts ' report was received by ORG in DATE .

NORP In DATE the applicant 's representative amended the claims and asked ORG to resume the proceedings and to question witnesses . The applicant then again amended the claims in DATE .

On DATE ORG resumed the proceedings and summoned witnesses .

DATE and DATE ORG listed CARDINAL hearings , of which CARDINAL were adjourned because the defendants defaulted and CARDINAL were postponed because none of the parties attended .

On DATE ORG adjourned the proceedings because the applicant appeared to have lost interest in the case . The applicant 's representative objected to that decision , indicating that neither he nor the applicant had been duly apprised of the hearing dates .

On DATE the ORG quashed the decision of DATE and resumed the proceedings , having found no evidence that the applicant and/or his representative had been duly notified of the hearings .

Upon the applicant 's request , on DATE ORG adjourned the proceedings because a similar claim was pending before another court . The proceedings were resumed on DATE .

DATE and DATE CARDINAL hearings were adjourned because the parties did not attend .

On DATE ORG suspended the proceedings by reason of the applicant 's repeated failure to appear . The proceedings were then resumed on DATE once it had been discovered that the applicant and his representative had not been duly summoned to the hearings .

Of the QUANTITY hearings listed between DATE and DATE , CARDINAL hearings were adjourned due to PERSON absence , CARDINAL hearings due to the parties ' absence , CARDINAL upon the applicant 's representative 's request and CARDINAL because the presiding judge was on leave .

On DATE ORG dismissed the applicant 's claim . On DATE the Rostov ORG quashed the judgment of DATE and remitted the matter for a new consideration by ORG .

ORG listed the first hearing for DATE . Of the CARDINAL hearings fixed DATE and DATE , CARDINAL were adjourned because the defendants defaulted and CARDINAL was postponed upon the defendants ' request .

On DATE , upon the applicant 's request , ORG ordered an expert study and stayed the proceedings .

The proceedings were later resumed and on DATE ORG partly allowed the applicant 's action . The judgment of DATE was upheld on appeal by ORG on DATE .

On DATE the applicant transported goods in his car from GPE to GPE and crossed the border without declaring the goods at the NORP customs . On DATE policemen of the Rostov Regional police department stopped the applicant and seized his car due to a violation of customs regulations . On DATE the ORG town customs issued a confiscation order in respect of the car and organised its sale in DATE through a private company .

The applicant brought an application to a court seeking invalidation of the confiscation order of DATE . NORP On DATE the ORG quashed the confiscation order of CARDINAL DATE and held that the ORG town customs should return the car to the applicant . The judgment did not become final as the town customs appealed against it .

On DATE the ORG issued a charging order over the car with a view to preventing it from being sold , holding that the car should be seized and returned to the applicant . The charging order was binding , enforceable and addressed to any current holder of the applicant 's car .

On DATE the applicant 's representative handed over the charging order of DATE to the bailiffs . The covering letter of CARDINAL DATE listed a writ of execution of DATE as an enclosure and bore a stamp of the NORP Town bailiffs ' service .

In DATE the bailiffs established that the private company had sold the car to Mr S. in DATE . However , they did not impound the car .

On DATE the Rostov ORG quashed the judgment of CARDINAL DATE and remitted the matter concerning the confiscation order of DATE for a fresh examination . The charging order of CARDINAL DATE remained unaffected .

On DATE the applicant successfully amended his claims . He dropped his claims against the ORG town customs and sought repossession of his car from Mr S.

In DATE a bailiff asked PERSON about the location of the car . A written statement by PERSON read as follows :

“ I use [ the car ] for transportation of goods from GPE to GPE . It is kept at my house in the town of GPE , the address : GPE street , CARDINAL , in the territory of ORG “ Ikar ” . The car is now in GPE but it will come back around DATE ... ”

In DATE , DATE the bailiffs ordered that PERSON produce the car to the ORG town bailiffs ' office . Mr S. did not respond .

On DATE the ORG adjourned the enforcement proceedings , upon Mr S. 's request . That decision was quashed by ORG on DATE . The matter was remitted for a fresh examination to ORG and the enforcement was resumed .

In DATE Mr S. asked the local road police department to cancel the car registration on the ground that it would be sold to a purchaser in GPE .

In DATE Mr S. informed the bailiffs that the car had been sold . The bailiffs , in their turn , told the applicant that the car had been sold and that Mr S. had refused to inform them who had bought the car . They asked whether the applicant would be willing to pay for the search of the car . The applicant agreed to bear the costs .

On DATE the ORG issued a judgment by which Mr S. should return the car to the applicant . On DATE a writ of execution was issued . The applicant submitted it to the bailiffs and asked them to calculate an approximate cost of the search . On DATE enforcement proceedings were instituted , but the applicant 's request for the calculation remained unanswered .

In DATE Mr S. bought a new car and asked the road police department to have it registered . A copy of the request indicated PERSON home address .

On DATE the enforcement proceedings related to the judgment of DATE were discontinued because the bailiffs could not , allegedly , find Mr S. 's residence or the vehicle .

On DATE the ORG ordered the bailiffs to impound CARDINAL cars belonging to Mr S. with a view to enforcing the judgment of DATE . According to the Government , the bailiffs began searching for the cars on DATE , but never completed it because the applicant had refused to advance payment .

On DATE the ORG , upon the applicant 's request , ordered that Mr S. pay the applicant MONEY ( RUR ) in lieu of the car . The judgment became final on DATE and on DATE enforcement proceedings were instituted .

In DATE PERSON applied for renewal of his passport . His passport application listed his unchanged place of residence . On DATE Mr S. received the passport .

In DATE the bailiffs , in the enforcement proceedings related to the judgment of CARDINAL DATE , issued a decision stating that PERSON did not have any property and that the place of his residence was unknown .

NORP In DATE the applicant received a calculation of the advance payments for the search of PERSON property . He was to advance RUR CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) .

In DATE the applicant asked a prosecutor 's office to institute criminal proceedings against Mr S. for his failure to abide by an enforceable judicial decision . In DATE , DATE and DATE an investigator questioned Mr PERSON proceedings were not instituted . The prosecutor 's documents listed the same place of Mr S. 's residence as in DATE and DATE .

On DATE the bailiffs initiated the search of PERSON property without any advance payment by the applicant . It appears that the enforcement proceedings are still pending .

On several occasions the applicant complained to the courts about the bailiffs ' failure to enforce the charging order of DATE and the judgments of DATE and CARDINAL DATE .

On DATE the ORG dismissed CARDINAL complaint , finding that the bailiffs had acted properly , that they had known that Mr S. had purchased the car but had no reason to doubt that Mr S. had not been willing to return it . The bailiffs could not be held liable for the sale of the car by Mr S.

On DATE the ORG dismissed another complaint , holding that the decision of DATE ( by which the enforcement proceedings in respect of the judgment of DATE had been discontinued ) had been lawful because it had been impossible to locate Mr S. or his property . Although on DATE the applicant had agreed to pay for the search of PERSON property , the costs had not yet been calculated . The judgment of CARDINAL DATE was upheld on appeal on CARDINAL DATE .

On DATE the ORG dismissed the applicant 's complaint about the bailiffs ' failure to enforce the judgments and to provide him with the calculation of the costs for the search of Mr S. 's property . The court held :

“ From the contents of the applicant 's complaint about the acts ( failures to act ) of the bailiffs ... it does not appear what rights or lawful interests have been violated and whether any damage has been caused , the complaint is unsubstantiated and may not be granted . ”

Article CARDINAL of the NORP federal law “ on enforcement proceedings ” ( Law no . CARDINAL of DATE ) provides for certain measures which the bailiffs may take when private persons or public officials fail to comply with lawful orders , provide false information about a debtor 's income and financial status , do not inform a bailiff about the debtor 's dismissal from work , a change of the debtor 's places of work or residence or when they do not respond to the bailiff 's summonses . These measures include a fine of CARDINAL minimum wages , escorting a defaulting party by force to a place where enforcement actions are performed and institution of criminal proceedings .


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

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

Since DATE the applicant had been living with her uncle PERSON in a oneroom flat in GPE . PERSON , who owned the flat , died on DATE . By a court ’s decision given in DATE Miss PERSON , who was a minor at that time , inherited the flat . The applicant travelled often to GPE but was allowed to live in the flat each time she returned to GPE , since this was in accordance with the last will of ORG , and ORG parents were in agreement with the arrangement .

In DATE ORG title to the flat was challenged before ORG which decided to reopen the inheritance proceedings . In DATE M.M. applied to ORG for an eviction order in respect of the applicant . However , the proceedings concerning her application were stayed pending the outcome of the inheritance proceedings .

In DATE PERSON requested the applicant to leave the flat by DATE . During the applicant ’s absence from GPE PERSON had changed the locks in the flat . Upon the applicant ’s return , on DATE she removed the locks with the assistance of private security agents and entered the flat . On DATE PERSON informed the police that the applicant had been living in the flat without being registered .

On DATE at TIME the applicant heard somebody banging on the door and shouting “ Open , police ” . The applicant opened the door . CARDINAL police officers entered the flat and inspected the applicant ’s identity card , in particular the part concerning the applicant ’s registered address ( zameldowanie ) . The police officers informed the applicant that she should leave the flat and that FAC should be allowed to take possession of it as she had title to it .

At this point several young men who accompanied PERSON started to remove the applicant ’s personal effects from the flat . They carried the applicant , dressed only in her underwear , out of the flat in an armchair . They also humiliated and insulted her . The police officers , who remained inside the flat , did not react to the behaviour of the young men and stated that the applicant had to leave the flat and that their duty was to protect her . In view of the violence used against her , the applicant decided to leave the flat taking only her documents with her . Subsequently , on DATE , PERSON changed the locks .

On DATE at TIME the applicant , accompanied by private security agents , removed the locks fitted by FAC and entered the flat . The applicant verified the contents of the flat and discovered that ORG CARDINAL and a ORG watch were missing . Shortly afterwards , PERSON , together with several individuals , came to the flat . She was followed by police officers . The police officers announced that the applicant had committed a burglary and started to take photographs of the flat . CARDINAL of the individuals accompanying FAC , a certain PERSON , insulted the applicant and pulled a telephone receiver from her hand . The police officers did not react . Moreover , the police officers did not allow the applicant ’s brother to speak to her . CARDINAL p.m. and TIME the entrance to the flat was blocked by QUANTITY police officers .

On DATE PERSON removed the front door of the flat .

On DATE CARDINAL police officers came to the flat and advised the applicant that she was not allowed to install a new front door .

On DATE the applicant was in the flat together with private security agents hired by her . At TIME M.M. came to the flat accompanied by several individuals and QUANTITY police officers . CARDINAL of the police officers was the Warsaw Ochota Deputy Police Commissioner . Initially , the security agents hired by the applicant refused them entry . However the police officers threatened that they would call for reinforcements and the agents let them in . The police officers allowed ORG to move into the flat . PERSON remained in the flat where she lived together with the applicant until DATE .

On DATE the applicant and her belongings were removed from the flat by M.M. assisted by several individuals . The applicant immediately called the police , but the police officers who arrived at the scene did not intervene .

On DATE police officers knocked on the applicant ’s door and she let them in . After having inspected her identity document the police officers informed the applicant that she had been living in the flat without being registered there , which constituted a petty offence , and summoned her to appear at the police station the following day . While the police officers were leaving , PERSON , accompanied by persons who had stayed outside in the corridor , entered the flat . Both the applicant and PERSON requested the police officers to stay as they felt insecure . A police officer spoke on the telephone to the officer on duty who instructed them to remain at the scene . They remained in the corridor until TIME . The applicant signed an agreement with PERSON to the effect that on DATE she would move out and take all her belongings with her . Subsequently , the locks were changed and the keys were deposited with the representative of the housing cooperative .

On DATE the applicant accompanied by private security agents and a locksmith removed the locks and entered the flat . The police were informed by neighbours that there had been a burglary in the flat . Police officers came to the flat and inspected the identity documents of the persons present . They stayed in the corridor as in the meantime PERSON had arrived . Subsequently , the applicant ’s brother tried to enter the flat by force and threatened FAC with an electroshock gun ( paralizator ) . The police intervened in order to stop him and inspected his identity documents .

The applicant stated to the Police Commissioner that she wished to make a formal declaration that ORG had committed a crime . PERSON had also requested the police to investigate the charges of burglary against the applicant , but the proceedings were discontinued on DATE .

The police were called by ORG . On both occasions they inspected the identity documents of the persons present in the corridor , but did not enter the flat .

On DATE the police were called by the applicant ’s sisterinlaw who wanted to enter the flat which had been locked by M.M. and the applicant . Since FAC did not let her in , the applicant stepped out of the flat and spoke to her sisterinlaw . Police officers were present , but did not intervene .

The applicant and PERSON lived together in the flat until DATE . On that date the applicant removed her belongings and left .

On DATE the applicant ’s counsel filed a request with ORG to prosecute the police officers who on DATE had intervened in the dispute over the applicant ’s flat . The counsel informed the prosecution service that the police officers had used force to enter the applicant ’s flat and had proceeded to evict the applicant . The counsel further pointed out that he represented the applicant in several civil cases and was certain that the eviction proceedings against the applicant had been stayed pending the outcome of the inheritance proceedings . The counsel concluded that the police officers had not had an eviction order and their actions had therefore been unlawful .

On DATE the ORG discontinued the investigation into the applicant ’s allegations . The prosecutor heard the applicant , PERSON and the police officers . He concluded that the police officers who were sent to intervene on DATE were ordered to inspect the registration address and that they had then stayed at the request of both women who had been quarrelling . The prosecutor found that the events as alleged by the applicant did not take place . Consequently , he concluded that the actions taken by the police officers were legal and were aimed at preventing a breach of the law by the persons present .

The applicant ’s counsel appealed and it appears that the case was again examined by ORG .

On DATE ORG again decided to discontinue the investigation into the charges brought against the police officers by the applicant . The prosecutor ’s decision included the following conclusion :

“ The evidence collected in the case shows that the police officers intervening DATE and DATE did not violate any of PERSON McKayKopecka ’s rights . The police officers were only ordered to carry out an inspection of her registered address ( kontrola meldunkowa ) .

It should also be pointed out that it is difficult to agree with the victim ’s claims that the police officers by their failure to act approved the removal of her personal effects and by their presence forced her to accept the new situation . The evidence taken from witnesses shows that the police officers on numerous occasions remained at the scene at the request of the victim or M.M. Moreover , the evidence does not confirm the victim ’s allegations that her personal effects were taken away .

In view of the above I conclude that the actions of the police officers complied with legal regulations and were aimed at avoiding breaches of the law by the individuals present at the scene . ”

The applicant appealed against this decision , but her appeal was dismissed on DATE by ORG . ORG decision concluded as follows :

“ As was rightly pointed out by ORG no evidence has been collected which would confirm an abuse of power or a failure by the intervening police officers to fulfil their duty . The interventions concerned verification of the registered address and resulted from a request of the president of the housing cooperative who had misled the police with respect to the title to the flat .

The applicant unsuccessfully attempted to prosecute ORG on charges of inter alia theft and unlawful eviction . On DATE ORG discontinued the investigation and found that no offence had been committed .

On DATE ORG discontinued the investigation against the applicant , instituted upon ORG request , into charges relating to inter alia the breaking down of the door of the flat .

The applicant instituted civil proceedings against ORG in which she sought restitution of the actual possession of the flat . On DATE ORG dismissed the applicant ’s application . She appealed against this decision , but her appeal was dismissed by ORG on DATE .

Article CARDINAL ( CARDINAL ) of LAW ( PERSON ) provides that the failure to register one ’s address is punishable by limitation of liberty ( ograniczenie wolnosci ) , a fine or a reprimand .

Articles CARDINAL et seq . of ORG ( ORG cywilny ) provide for the ORG ’s liability in tort .

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”


Remainder inadmissible;Violation of Art. 10;No violation of Art. 7;Pécuniary and non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE , except for Ms Isosaari who lives in GPE .

The first and second applicants are editors - in - chief of the nationwide magazine ORG and the third and fourth applicants are an editor - in - chief and a journalist of the nationwide magazine ORG .

On DATE , the National Conciliator ( valtakunnansovittelija , riksförlikningsmannen ) at the time , and B. , his female friend , entered late at night A. ’s home where his wife was present . The situation escalated , the police were called and the incident , which subsequently involved also A. ’s grown - up children , led to A. ’s arrest . Due to the incident , criminal charges were brought against both A. and B. on DATE . On DATE ORG ( käräjäoikeus , tingsrätten ) sentenced PERSON to a DATE conditional prison sentence for resisting arrest and for criminal damage ( vahingonteko , skadegörelse ) , and PERSON to a fine for assault . On DATE ORG ( valtioneuvosto , statsrådet ) dismissed PERSON from his post as ORG . On DATE ORG ( hovioikeus , hovrätten ) upheld the judgment with respect to B. As regards PERSON , the case had lapsed as he had died on CARDINAL DATE . On DATE ORG ( korkein oikeus , högsta domstolen ) refused PERSON leave to appeal .

On DATE and DATE , respectively , the magazines published an article about A. The article of DATE in ORG magazine was based on A. ’s interview , and PERSON ’s name and age , together with her picture , were mentioned once in the article . The article was entitled “ A. ’s sincerity in the balance ” and it concerned A. ’s feelings about his dismissal and his possible divorce in the aftermath of the incident of CARDINAL DATE . The article of DATE in ORG magazine , which was entitled “ Divorced wives’ club ” , also dealt inter alia with ORG ’s possible divorce and his feelings about his dismissal . It was claimed that ORG divorce proceedings had accelerated due to the incident of DATE , and PERSON ’s name was mentioned once in that context . This article contained no pictures of B. Prior to these articles , PERSON ’s identity had been revealed at least in a NORP newspaper on DATE and in a NORP nationwide television broadcast on DATE .

In DATE and PERSON requested that criminal investigations be conducted against journalists who had written about the incident on DATE and the circumstances surrounding it . They made such a request with respect to the applicants , claiming that the articles published in ORG and ORG had invaded PERSON ’s privacy . It appears that in regard to all but CARDINAL of these requests no charges were brought . On DATE the public prosecutor decided not to bring charges against the applicants as , according to him , there was no indication of any crime .

On DATE B. complained to ORG ( valtakunnansyyttäjä , högsta åklagaren ) about the decisions not to prosecute and asked him to reconsider the cases . On DATE , after having considered the charges , the Deputy Prosecutor - General requested the public prosecutor to bring charges , inter alia , against the applicants . He reasoned his decision by stating , inter alia , that the facts revealed in the articles fell within the scope of private life and that no derogation could be made in this case as B. was not a public figure .

On DATE the public prosecutor , by order of the Deputy Prosecutor - General , brought charges against the applicants under Chapter CARDINAL , section CARDINAL(a ) , paragraph CARDINAL of LAW . At the same time charges were also brought against another journalist and editor - in - chief of another magazine to be examined in the same proceedings . This journalist and editor - in - chief have lodged a separate appeal with ORG ( see PERSON and others v. GPE , no . CARDINAL , DATE ) .

B. concurred with the charges brought by the public prosecutor . On DATE and DATE she pursued a compensation claim against all the applicants , which was joined to the criminal charges .

Following an oral hearing on DATE , ORG rejected all the charges on DATE , finding that the information concerning PERSON ’s private life in the article could not as such be conducive to causing her particular suffering , except for the information concerning her relationship with PERSON However , since the incident of CARDINAL December CARDINAL B. must have understood that she could no longer seek protection on this ground . Thus , the applicants had not been under a duty to assess whether revealing PERSON ’s identity could have caused her suffering . Furthermore , it had not been proved that the applicants had had the intention of invading PERSON ’s privacy . Accordingly , all the compensation claims against the applicants were also rejected .

By letters dated CARDINAL and DATE , respectively , the public prosecutor and PERSON appealed to ORG , reiterating the charges and the compensation claims . Moreover , on DATE PERSON requested that the case file be declared secret for DATE from the date of the judgment .

In its judgment of CARDINAL DATE , ORG first decided to declare all parts of the case file secret for DATE except for the applicable legal provisions and the conclusions . Additionally , PERSON ’s identity was not to be revealed in the public parts of the judgment . The court found that the matter was very sensitive , that it fell within the scope of private life , and that the secrecy accorded did not violate Articles CARDINAL or CARDINAL of the Convention . As to the merits of the case , the court , without holding an oral hearing , quashed ORG judgment and sentenced the applicants to pay DATE - fines , amounting to QUANTITY ( ORG ) , ORG CARDINAL,CARDINAL , ORG CARDINAL,CARDINAL and EUR CARDINAL respectively , for invasion of private life . Moreover , the first and second applicants were ordered jointly to pay B. EUR CARDINAL plus interest and the third and fourth applicants ORG CARDINAL plus interest for non - pecuniary damage as well as her costs and expenses jointly with the publishing company . The applicants paid in total ORG in fines and compensation .

ORG found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied . ORG had already found in DATE that the national television broadcast on DATE , in which PERSON ’s name had been mentioned twice in the context of an interview with PERSON , had invaded her private life . B. did not hold such a position in society that the exception in LAW , section CARDINAL(a ) , paragraph CARDINAL , of LAW was applicable . The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as ORG did not justify revealing her identity . The fact that PERSON ’s identity as A. ’s friend had previously been revealed in the media did not justify the subsequent invasion of her private life . The Penal Code provision in question did not require that intent be shown ; it was sufficient that the dissemination of information about the private life of a person was capable of causing him or her damage or suffering . The applicants , therefore , had had no right to reveal facts relating to PERSON ’s private life or to publish her picture .

By letter dated DATE the applicants applied for leave to appeal to ORG , claiming , inter alia , that the provision of LAW in question did not define with sufficient clarity which acts fell within its scope and that , as a result , LAW had been applied ex analogia . No intent had been shown , and nor was the ORG judgment adequately reasoned in this respect . Moreover they claimed that , in declaring that the case file was to remain secret , ORG had not given reasons which would constitute sufficient grounds for the measure . Finally , ORG had not even tried to indicate on what grounds freedom of expression could be restricted in this case , and therefore ORG judgment was in contradiction with LAW .

On DATE ORG refused the applicants leave to appeal .

Section CARDINAL of LAW ( Suomen Hallitusmuoto , ORG , Act no . CARDINAL/CARDINAL , as amended by Act no . ORG , which took effect on CARDINAL DATE and remained in force until DATE ) , provided :

“ Everyone has the right to freedom of expression . The right to freedom of expression entails the right to impart , publish and receive information , opinions and other communications without prior hindrance from anyone . More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of ORG . Restrictions on pictorial programmes necessary for the protection of children may be prescribed by LAW .

Documents and recordings in the possession of the authorities are public , unless their publication has , for compelling reasons , been specifically restricted by an Act . Everyone has the right of access to public documents and recordings . ”

The same provision appears in LAW ( NORP perustuslaki , PERSON grundlag , Act no . GPE ) .

Section CARDINAL of LAW ( as amended by Act no . CARDINAL/CARDINAL ) corresponded to LAW , which provides that everyone ’s right to private life is guaranteed .

Section CARDINAL of the Freedom of LAW ( painovapauslaki , tryckfrihetslagen ; Act no . CARDINAL/CARDINAL ) , as in force at the relevant time , provided that the provisions of LAW applied to the payment of compensation for damage caused by the contents of printed material .

Chapter CARDINAL , section CARDINAL , of LAW ( vahingonkorvauslaki , skadeståndslagen , Act no . CARDINAL , as amended by LAW no . CARDINAL ) stipulates that damages may also be awarded for distress arising inter alia from an offence against liberty , honour , home or private life . Under LAW , section CARDINAL , of the said Act , damages shall constitute compensation for personal injury and damage to property . LAW provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury , as well as loss of income and maintenance and pain and suffering .

According to the government bill to amend LAW ( HE CARDINAL ) , the maximum amount of compensation for pain and suffering from , inter alia , bodily injuries had in the recent past been MONEY ( EUR CARDINAL,CARDINAL ) . In the subsequent government bill to amend LAW ( HE CARDINAL , p. CARDINAL ) , it is stated that no changes to the prevailing level of compensation for suffering are proposed .

Chapter DATE ( as amended by Act no . CARDINAL/CARDINAL ) , section CARDINAL(a ) , of LAW ( rikoslaki , strafflagen ) read , at the relevant time , as follows :

“ A person who unlawfully , through the use of the mass media or in another similar manner , publicly disseminates information , an insinuation or an image depicting the private life of another person , such as to cause him or her damage or suffering , shall be convicted of invasion of privacy and sentenced to a maximum term of imprisonment of DATE or to a fine . A publication that deals with a person ’s behaviour in a public office or function , in professional life , in a political activity or in another comparable activity , shall not be considered an invasion of privacy if the reporting was necessary for the purpose of dealing with a matter of importance to society . ”

In the travaux préparatoires of the above - mentioned provision ( see government bill HE CARDINAL ) there was no precise definition of private life but matters such as , inter alia , family life , spare time activities , health and relationships and such conduct in socially significant position that had no significance to the relevant exercise of power , were considered as a part of private life . It was further required that the act might have caused damage or suffering . Such damage might have also been " immaterial damage , which might have manifested itself in problems with social interaction or respect " . An ordinary person enjoyed the strongest protection of private life . His or her involvement in an incident with importance to society might have warranted an exception to the protection . In any case , if an offence was of such a kind that it could not be regarded as having social significance , it was a matter to be protected as belonging to the sphere of private life , otherwise the protection of private life did not restrict publishing . Moreover , the publishing could not be to a greater extent than was necessary . Thus , the necessity of mentioning a person ’s name or other description of a person enabling identification was always subject to careful consideration .

In DATE , LAW , section CARDINAL(a ) , of LAW was replaced by LAW , LAW no . CARDINAL/CARDINAL ) . Under the new provision on the injury of personal reputation ( yksityiselämää loukkaavan tiedon levittäminen , spridande av information som kränker privatlivet ) , a person who unlawfully , through the use of the mass media or in another manner , publicly spreads information , an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt , shall be convicted of injuring personal reputation . However , an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person ’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society .

According to the travaux préparatoires ( see government bill HE CARDINAL ) , the content of the new provision corresponds to the old LAW , section CARDINAL(a ) , of LAW . The amendments and clarifications made to the existing provision were mainly technical . The provision thus still restricts the protection of the private life of persons having important political or economic powers . This restriction , however , applies only to the persons referred to , not to their close friends and family . According to ORG ( lakivaliokunnan mietintö , lagutskottets betänkande PERSON CARDINAL/CARDINAL ) , the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions .

NORP The government bill HE CARDINAL further provides that in the assessment of interferences with private life , the lawfulness of the interference and the concept of private life are taken into account . A person ’s consent to the provision of information has relevance in the assessment of the lawfulness of the interference . Without explicit consent , there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life ( see ORG Report LaVM CARDINAL/CARDINAL ) . With regard to the concept of private life , a reference is made to the explanatory works concerning the LAW ’s provisions on fundamental rights and to the government bill HE CARDINAL ) . Moreover , private life is , in particular , protected against dissemination of information which may be correct as such . In order for the act to be punishable , it is necessary that the information concerns the private life of the person in question ( see the government bill HE CARDINAL ) .

Section CARDINAL of the LAW on ORG ( laki oikeudenkäynnin julkisuudesta , lag om offentlighet vid rättegång ; Act no . ORG ) , as in force at the relevant time , provided that the name , profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest . Section CARDINAL provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation . Section CARDINAL stated that the provisions laid down in ORG ( laki viranomaisten toiminnan julkisuudesta , lag om offentlighet i myndigheternas verksamhet : Act no . CARDINAL ) were applicable to trial documents . Information and documents relating to a trial are , as a rule , public once charges have been brought unless provided otherwise by an Act .

The Supreme Court decision ( ORG CARDINAL-II-CARDINAL ) concerned public showing of a series of photographs of CARDINAL - naked children . The act was committed before the entry into force of LAW , section CARDINAL(a ) , of LAW and no criminal sanctions were requested .

In a ORG decision ( ORG CARDINAL ) the following was noted ( summary from the ORG ) :

“ The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff ’s consent . He was convicted of a violation of private life and ordered , jointly with the political organisations which had acted as publishers , to pay damages for mental suffering . ”

On DATE ORG delivered CARDINAL decisions relating to articles which had given information on cases of arson . The first decision ( ORG CARDINAL:CARDINAL ) concerned a newspaper article ( summary from ORG Yearbook ) :

“ A newspaper published an article concerning cases of arson , in which it was said that the suspect was the wife of the head of a local fire department . As it was not even alleged that the head of the fire department had any role in the events , there was no justifiable reason for publishing the information on the marriage between him and the suspect . The publisher , the editor - in - chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life . ”

The second decision ( ORG CARDINAL:CARDINAL ) concerned an article published in a periodical , which was based on the afore - mentioned newspaper article ( see the previous paragraph ) and on the records of the pre - trial investigation and the court proceedings , but did not indicate that the newspaper article had been used as a source ( summary from the ORG ) :

“ Compensation was ordered to be paid for the reason that the article violated the right to respect for private life . Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage . ”

The article published in the periodical had similarly mentioned the name and profession of the head of the fire department , although the offence was not related to the performance of his duties . Thus , it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence . The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure , before publishing the information again , that the article did not contain information insulting the persons mentioned in it . The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical . Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation . The readers of the newspaper and the periodical were partly different , and the circulation of the newspaper apparently did not entirely coincide with that of the periodical . Therefore , and considering the differences in the content and tone of the articles , ORG found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering . The events reported in the article did not concern the plaintiff ’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant ’s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences . By associating the complainant ’s name and profession with the offences in question , the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering . The disclosure of the complainant ’s name and the emphasis on his occupation had amounted to an insult . By again reporting on DATE after the events had occurred , the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid .

ORG decision of DATE ( ORG CARDINAL ) concerned the publication in a magazine of an article which had described a pending criminal case in which the accused had been charged with , inter alia , aggravated fraud . The article had been illustrated , without the accused ’s permission , with another article published previously in another magazine and with a picture of the accused published in that connection . The accused ’s name had been given in the text of the article and she could be recognised from the picture . ORG found that the criminal case had no such social significance that would justify its publication without the accused ’s permission and , consequently , her private life had been invaded .

ORG decision of DATE ( ORG ) concerned the same facts as the present case : when interviewing A. , B. ’s name was mentioned in the television broadcast in DATE , that is , after they had been convicted . The court found that the facts discussed in the television programme with regard to B. were part of her private life and enjoyed the protection of privacy . The fines imposed on her as punishment for the assault did not constitute a criminal - law sanction justifying publication of her name . The interviewer and the television company were ordered to pay B. damages in the amount of LAW for disclosing her identity in the television programme .

Another decision of DATE ( ORG ) concerned an article about a relationship between A. , who worked as a press officer for a candidate in the presidential elections , and B. , the ex - spouse of a TV journalist . A. ’s photo was included in the article . ORG , having assessed the provision on the invasion of privacy in LAW in the light of this ORG ’s case - law , found that A. did not hold a position that meant that such details of her private life were of public importance . The article had thus invaded GPE ’s privacy .

In a decision of DATE ( ORG CARDINAL:CARDINAL ) , ORG noted that an offence was not a private matter of the offender . In principle , however , a person convicted of and sentenced for having committed an offence also enjoyed the right inherent in private life to live in peace . According to LAW , any information about the commission of an offence and the resulting sentence qualified as “ sensitive ” personal data . The publicity per se of criminal proceedings and of related documents did not mean that information made public during the proceedings could be freely published as such by the media . ORG concluded that publishing the name of a person convicted of , inter alia , assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim ’s human dignity . Furthermore , the article in question did not include his photo .

ORG decision of DATE ( ORG ) concerned the scope of the private life of a leading public prosecutor whose name or identify had not been revealed in an article which mainly concerned his wife who had been suspected of having committed a crime . ORG concluded that the issue had had social significance as the person under suspicion was the public prosecutor ’s wife . Even though the public prosecutor could have been identified from the article , this was justified by the fact that his own impartiality as a prosecutor was at stake .

In ORG latest decision of DATE ( ORG CARDINAL:CARDINAL ) A. had been convicted of incest with his children and the case file was declared secret . Later PERSON revealed certain details of the case in a television programme . The court found that even though the children had remained anonymous in the programme , they could still be identified through the fact that A. had appeared in the programme undisguised and his first name had been given . The privacy of the children and their mother had thus been invaded .

The Union of Journalists in GPE ( ORG , PERSON ) publishes Guidelines for Journalists ( NORP ohjeet , PERSON ) for the purposes of self - regulation . The DATE Guidelines were in force at the material time and provided , inter alia , that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved . The suspect ’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect ’s position which justified publication ( Article CARDINAL ) .

New Guidelines came into force in DATE , which noted that when publishing public material regard must be had to the protection of private life . The public nature of information does not necessarily mean that it may be published . Special care must be observed when discussing matters concerning a minor ( LAW . The name , photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his or her position or offence . As regards a minor or an unaccountable person information should be disclosed with restraint ( Article CARDINAL ) . A journalist must be careful not to present information that may lead to the identification of a person in cases where he or she is only a suspect or has merely been charged ( Article CARDINAL ) .

Also ORG ( GPE sanan neuvosto , PERSON för massmedier ) , which is a self - regulating body established in DATE by publishers and journalists in the field of mass communication and whose task is to interpret good professional practice and defend the freedom of speech and publication , has issued a number of resolutions and statements , inter alia , in DATE and DATE . The former concerned the content of private life and the latter disclosure of names in crime news coverage .

In its statement of DATE , ORG stated , inter alia , that according to the main principle of protection of identity , it is justifiable to publish a person ’s name in crime news coverage only if there is a significant public interest in doing so . A journalist shall consider such publication separately in each individual case , weighing the harm that may be caused to the person concerned and to his or her family and close persons against the general importance of publishing the name . Furthermore , the ORG stated that the aggravated , cruel or special nature of an act does not alone suffice to justify disclosing the perpetrator ’s identity . An offence may , however , arouse so much public attention as to warrant publishing the name . Finally , the ORG divided persons into CARDINAL groups as to the protection of identity : ( CARDINAL ) persons exercising political , economic or administrative power ; ( CARDINAL ) other public persons , for example in the sectors of entertainment , sports , arts or science ; and ( CARDINAL ) ordinary citizens . The ORG noted that the protection of identity is narrowest for group CARDINAL and most extensive for group CARDINAL .

On DATE ORG Recommendation No . Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . In point CARDINAL of the principles appended to the recommendation , it considers as follows :

“ Protection of privacy in the context of on - going criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”

The commentary to the recommendation considers as follows ( paragraphs CARDINAL and DATE ) :

“ Everyone has the right to the protection of private and family life under LAW . Principle CARDINAL recalls this protection for suspects , the accused , convicted persons and other parties to criminal proceedings , who must not be denied this right due to their involvement in such proceedings . The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court . It furthermore may prejudice the reintegration into society of the person concerned . The same applies to the image of the accused or convicted . Therefore , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle .

An even stronger protection is recommended to parties who are minors , to victims of criminal offences , to witnesses and to the families of suspects , the accused and convicted persons . In this respect , member states may also refer to Recommendation No . R ( CARDINAL ) CARDINAL on the position of the victim in the framework of criminal law and procedure and Recommendation No . R ( CARDINAL ) CARDINAL concerning the intimidation of witnesses and the rights of the defence . ”

On DATE ORG of ORG DATE ) , Towards decriminalisation of defamation , in which it urged those member GPE which still provide for prison sentences for defamation , even if they are not actually imposed , to abolish them without delay .


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

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born on DATE and lives in GPE , GPE .

The applicant was married to PERSON and the couple had CARDINAL children , GPE , born on DATE , and ORG . ORG , born on DATE .

Following divorce and child custody proceedings initiated by ORG on DATE , the Bucharest ORG of First Instance held on DATE that the children should live with their mother . The applicant was entitled to visit his children according to the following schedule : every first and third weekend of DATE , from TIME on DATE to TIME on DATE ; DATE during DATE ; and DATE during DATE .

During the proceedings , CARDINAL environment studies were conducted at the applicant ’s home and at ORG ’s home respectively . The studies concluded that the children were well taken care of and that their development was in accordance with their age . It was noted that the elder child , ORG , had started living with the applicant on DATE , and that their relationship was based on good communication . The applicant expressed his wish that ORG be placed with him , in the light of their close relationship .

The court did not interview the CARDINAL children , given their young age .

In delivering its judgment , the court took into consideration the evidence adduced , including the CARDINAL studies ; it held that the mother had proved to have spent more time with the CARDINAL children , but it also underlined that it was in the QUANTITY children ’s best interests to be placed with their mother , particularly in view of their age .

The applicant appealed against the judgment , reiterating his wish that he be awarded custody of his elder son , ORG , with whom he had a very close relationship .

On DATE the ORG modified the first - instance court ’s judgment concerning the custody of ORG , which was awarded to the applicant , in view also of the child ’s own choice in the matter . The first - instance court ’s reasoning concerning ORG . ORG was upheld without being reassessed , seeing that none of the parties contested that part of the judgment . The court ’s reasoning observed that :

“ In the present case , it is beyond any doubt that both parents provide for their children a very good environment for their development , both financially , and also morally .

The fact that during the marriage it was the mother who dedicated more time to the children was because she had more free time available , and also because traditionally , in any family , it is the mother who predominantly takes care of the children , especially during DATE of their lives .

It follows that the father can not be regarded as not having shown interest in the upbringing and education of the children . ”

I.R. appealed against the judgment , arguing mainly that it was not in the best interests of the children that they be separated . In support of her request , she submitted several statements given by the children ’s teachers , but also by the psychologist ORG , who had examined both children ; the reports mainly noted that the CARDINAL children were extremely happy to see each other , as it was obvious that they had a very affectionate relationship and that their separation had affected them both :

“ The behaviour of the CARDINAL brothers reveals a strongly affectionate relationship , and their break - up was followed by the psychological breakdown of ORG ( ... ) ; their separation has been very traumatising for both children ” .

In another report written by ORG , it was noted that ORG . ORG had suffered as a result of the conflict - ridden relationship of his parents , and that :

“ The state of conflict that marked the GPE divorce evidently affected the child . The younger child is stable at present , even though he intensely resents the absence of his older brother .

The rare contact he had with his father following the latter ’s separation from his mother evidently perturbed the psychological state of the younger child , owing to the father ’s attempts to inculcate in him a hostile attitude towards the mother and to undermine his trust and his affection for her ” .

The applicant for his part submitted a copy of a psychological report of DATE , as well as a medical certificate issued on DATE concerning ORG , stating that : the boy was normally developed , presented a level of maturity appropriate for his age and did not have adjustment difficulties as a result of his GPE separation ; the sadness he had shown TIME after seeing his little brother proved only that he had reactions which were normal in the case of CARDINAL separated brothers ; and that ORG had expressed his wish to stay with his father , even though he loved his brother and his mother .

ORG gave its final judgment on DATE , upholding ORG determination . The court held that considering ORG ’s age , his choice to live with his father was relevant and could not be ignored . The court also held that it was in the children ’s best interests that their parents made it possible for them to see each other and to spend time together , whether at the mother ’s house or at the applicant ’s house .

Following PERSON ’s refusal to let the applicant take ORG . ORG from her home , allegedly because he did not want to “ leave his mum ’s house ” , the applicant asked the courts to specify the exact manner in which his rights of contact were to be implemented .

In its final judgment of DATE ORG held that the applicant was entitled to take ORG . ORG from ORG ’s home according to the visiting schedule which had been previously accepted by the courts .

On DATE the applicant initiated enforcement proceedings against ORG ; on DATE his request was granted in court .

The first summons was therefore issued by the bailiff for DATE ; on that occasion , the official record drawn up noted ORG ’s absence from her residence .

On DATE , the bailiff requested information from the competent authorities regarding ORG ’s current residence .

A further summons was issued on DATE ; the record drawn up on DATE in the presence of the bailiff , the applicant and a policeman stated that no one had allowed them to enter the LOC , even though noises and a human voice could be heard inside the house .

In a further report issued on CARDINAL DATE the bailiff noted that ORG . ORG had not been at home .

The official report drawn up on CARDINAL DATE noted ORG ’s assertions , according to which it was not she who had opposed the applicant seeing ORG . ORG , but , rather , it was the child who had refused any contact with his father . In order for the father - child relationship to reach a normal level , ORG further asserted that she would make efforts to encourage the child to grow closer to his father . The parties agreed to allow the CARDINAL children to meet in a public place , firstly on DATE , TIME , and then also on DATE , DATE and DATE , TIME , after which the parents would agree upon the new schedule for mutual visits , so that the children would spend the weekends together , with each parent alternately .

On DATE PERSON lodged an objection to the report of CARDINAL DATE , essentially asking for a suspension of its enforcement , on account on the child ’s alleged refusal to leave with his father . In support of her claims , she adduced CARDINAL reports drawn up by the psychologist PERSON on DATE and DATE ( see also paragraph CARDINAL below ) .

On DATE ORG dismissed PERSON ’s objection , holding that the annulment of the report drawn up by the bailiff was not justified , in so far as the reasons relied on concerned the merits of the dispute over contact rights .

The judgment became final , as it was not appealed against by any of the parties .

On DATE the parents met at the bailiff ’s office and agreed that during the summer vacation the children should stay alternately , for DATE at a time , with each parent . ORG , however , could not agree on the period of time at issue , and thus opposed the applicant ’s request that ORG . ORG should stay with him starting on DATE at the latest .

On DATE , in the presence of the bailiff , the applicant went to ORG ’s known residence , where he talked with ORG mother , who informed him that PERSON and ORG . ORG had left on vacation DATE .

On DATE the applicant and the bailiff went to ORG ’s known residence , where they found PERSON ’s father . He told them that ORG . ORG were not at home and asked them to leave .

On DATE another report was drawn up by the bailiff , noting ORG . ORG ’s refusal to join his father and go to his home .

On DATE I.R. again contested the enforcement of the impugned judgment of DATE , seeking to prove that its enforcement had become impossible , having regard to the precarious state of health of ORG . ORG , following his CARDINAL visits to his father ’s house on DATE CARDINAL and DATE . On those occasions , the child allegedly came back to ORG ’s home sick and confused . Following some urine tests , ORG . ORG was found to have been intoxicated with benzodiazepine ( the first time ) and with nicotine ( the second time ) .

With respect to the alleged incidents , ORG also lodged a criminal complaint against the applicant , accusing him of having endangered ORG . ORG s physical integrity ( see also paragraph CARDINAL below ) .

On DATE the GPE ( GPE dismissed ORG ’s complaint , holding that in an objection to enforcement proceedings , the parties were not allowed to submit arguments concerning the merits of the enforceable judgment . Moreover , the court held that ORG had not proven in any way her accusations against the applicant .

I.R. appealed against that judgment , reiterating her allegations that the applicant had endangered ORG . ORG ’s state of health , thereby rendering it objectively impossible to continue with the enforcement of the disputed judgment allowing him contact .

On DATE ORG dismissed the appeal . In its final judgment , the court held that :

“ Indeed , medical documents were contained in the file , proving that during a specific period of time , the minor did have in his body certain toxic substances ; however , no fault or negligence can be imputed to the father in this regard ; therefore , no impediment exists to the enforcement of his contact rights . ”

In the meantime , on DATE the applicant , in the presence of the bailiff , went to ORG ’s known residence , where they found that ORG had moved to an unknown place . Consequently , on DATE the bailiff requested the competent authorities to inform him of ORG ’s new residence . The authorities’ reply of DATE indicated ORG ’s residence , as noted in the official records .

On DATE the applicant and the bailiff went to that address , where they learnt that the house had been sold to third parties in DATE .

On DATE the bailiff requested updated information from the competent authorities regarding the current residence of ORG ; however , in the meantime , on DATE PERSON had sent a letter to the bailiff , notifying him and the applicant of her new residence . She had also informed the bailiff that the proceedings seeking to suspend the enforcement of the judgment of DATE granting the applicant contact rights were still pending ( see paragraphs CARDINAL - CARDINAL below ) , and thus asked the bailiff to avoid any type of harassment of ORG . ORG until those proceedings had come to a conclusion .

On an unspecified date in DATE ORG lodged a criminal complaint against the applicant . She submitted that after PERSON . ORG had spent DATE of CARDINAL to CARDINAL June CARDINAL with his father , he had come back home in a general state of confusion and tiredness . The medical examination performed DATE had revealed that ORG . ORG had been intoxicated with benzodiazepine .

On DATE , when she had picked up the child from his father , with whom ORG . ORG had spent DATE , the child was again in a state of tiredness . The medical examination conducted TIME had shown no signs of benzodiazepine ; however , an examination carried out TIME had found nicotine in the child ’s blood .

The investigating authorities required an expert report to be prepared by ORG . On DATE PERSON went to the ORG and declared that she refused to allow ORG . ORG to be examined . The report was drawn up based on the existing medical documents , noting that the source and the context of both intoxications could not be established . As the minor had not been examined , no conclusion on any potential violent acts against him or on potential traces of medical treatment could be formulated .

The decision not to indict the applicant delivered by the prosecutor on DATE was based on the fact that the adduced evidence had not revealed beyond doubt signs of serious negligence or omission imputable to the applicant in the exercise of his parental rights with respect to the incidents of DATE .

ORG contested that decision before the courts . Her request was dismissed as out of time on DATE by the GPE ( GPE .

On DATE PERSON applied to the courts , requesting that she be granted contact rights with respect to ORG ; she also requested that the contact arrangements of the applicant concerning ORG . ORG be altered , so as to take place on CARDINAL DATE , TIME She submitted that this change was necessary in view of the “ negative influence ” that the applicant exerted on the child , who was afraid that he would be taken away from his mother and who , each time when he was required to leave with his father , had nightmares , states of anxiety and crying fits .

On DATE , following a social worker ’s visit to both of the GPE homes , a report was drawn up , stating that :

“ The mother is preoccupied with raising and educating ORG . ORG ; the CARDINAL have a good relationship , based on affection and communication . In the mother ’s opinion , the father should be allowed to visit ORG . ORG at her home and in her presence , for fear that by leaving the child at the father ’s house , he might have a bad influence on the child .

The mother declared that she had attempted to have personal contact with the minor ORG , but had been obstructed by the father , who had not allowed her to enter his home and who had created a bad image of her in the child ’s mind . ”

While acknowledging that ORG enjoyed “ optimal living conditions ” at his father ’s house , the social worker also noted that the CARDINAL had a harmonious relationship , based on affection and mutual understanding . The applicant had declared that he wished that he could have a closer relationship with his other child , ORG . ORG , but on account of the mother ’s attitude , such a goal had become unattainable . ORG had expressed his wish to spend more time with his brother , whom he truly loved .

The social worker also noted that the headmaster of the kindergarten attended by ORG . ORG had informed him that the applicant was interested in his son ’s activities and that “ he was sometimes allowed to talk to the child , but only in the presence of another person ” .

The report ’s conclusion pointed to the fact that the CARDINAL brothers had a very warm relationship , and also that both parents showed an affectionate and caring attitude towards the CARDINAL children , both expressing their full receptiveness to developing a closer relationship with the child who lived with the other parent .

ORG ’s request for a psychological report assessing ORG . ORG was dismissed by the court on DATE as unnecessary .

I.R. subsequently submitted to the file CARDINAL psychological opinions ( aviz psihologic ) issued by the psychologist PERSON , who had seen and examined ORG . ORG starting in DATE , immediately after had been separated from his brother . In his report of DATE , the psychologist stated :

“ The minor ( ORG . ORG ) is an intelligent child , who tries to understand the situation , but the fear of being separated from his mother , as happened with his brother , causes new states of anxiety , crying fits , nightmares and nocturnal enuresis [ bed - wetting ] .

His current state is also provoked by his father ’s unscheduled visits , the child feeling threatened by a possible kidnapping , bearing in mind his brother ’s experience . His relationship with his father has deteriorated also on account of the latter ’s using insulting words in relation to ORG and his aggressive behaviour towards the mother in the presence of the child .

The minor does not wish to be visited by his father , not even if his brother is also present , owing to the fact that his brother ( ORG ) has attempted several times to persuade him that it is very nice to live with their father , because ‘ at dad ’s you do n’t need to respect mummy ’s rules : you do n’t need to brush your teeth , you do n’t need to learn , you do n’t need to take piano PERSON ; his brother also made him swear that when he reached DATE , he would move in with them . ”

In a further report issued on DATE the same psychologist noted the following :

“ I have re - examined ORG . ORG , seeing that new anxiety attacks , episodes of nocturnal enuresis and bruxism [ teeth - gnashing ] have appeared .

I have noted that these symptoms appeared following the child ’s being visited by his father , who was accompanied by the brother ( ORG ) , and also by the bailiff and the father ’s lawyer . The child has difficulties in relating the incident , as he fears ‘ the gentleman who forces him to go to his dad’s’ .

The symptoms presented are caused , on the one hand , by the fact that his relationship with his father has deteriorated and , on the other hand , by the brutality used in enforcing the [ father ’s ] contact arrangements .

A pronounced state of anxiety on the child ’s part when in the presence of his father , and an increasing change in their relationship are noted . ”

The applicant contested ORG ’s arguments , mainly stating that it was impossible for him to have exerted a bad influence on the child PERSON . ORG , since he was never really around him because he was not allowed to see him . Moreover , the few times when they had actually met had been in the presence of the bailiff or of the staff at the child ’s school . His constant attempts to see ORG . ORG had been undermined by ORG repeated changes of address and of the child ’s kindergartens , and subsequently his schools , changes which had never been brought to his attention .

On DATE PERSON was heard by the court in camera , where he declared that he would like to be visited at his home only by his brother PERSON . ORG , and not by his mother .

On DATE the GPE ( GPE partly allowed ORG ’s request to be allowed to visit ORG every other weekend , from DATE at TIME until DATE at TIME , DATE during DATE and DATE during the DATE vacation . The court dismissed PERSON ’s request for an alteration of the applicant ’s contact arrangements with respect to ORG . ORG as ill - founded , holding that the circumstances which had been taken into account by the courts in the previous proceedings concerning contact had not changed .

The judgment was appealed against by ORG , who reiterated her request that the applicant should be allowed to visit ORG . ORG one DATE only , on DATE , from TIME

On DATE ORG dismissed PERSON ’s appeal , holding that the visiting schedule she proposed would be unfair , considering that she herself was allowed to see the other child , ORG , for more than TIME . Besides , PERSON had not proven that the circumstances assessed by the courts in DATE , when the applicant ’s contact rights had been established , had changed in any substantial way so as to warrant an alteration of those rights .

In a dissenting opinion , Judge PERSON stated that the contact arrangements vis - à - vis Th . ORG needed to be changed , namely reduced . ORG had produced sufficient evidence proving that ORG . ORG had been psychologically traumatised by the separation from his brother , and that he was convinced that this separation had been caused by his father , who also wanted to separate him from his mother ; at the same time , in the process of enforcing his rights of contact with the bailiff ’s aid , the father had threatened the child that he would take him with the help of the police if he did not voluntarily come with him ; there was evidence in the file ( testimonial and expert psychologist opinions ) stating that ORG . ORG suffered from anxiety attacks , nightmares and nocturnal enuresis , on account of his fear of being separated from his mother , and owing to the perceived threat that he would be kidnapped . From that perspective , the judge considered that the child needed a more stable environment , and that he was developing well in the ambience created by his mother and his maternal grandparents .

I.R. lodged an appeal on points of law . On DATE it was struck out by ORG for failure to pursue the proceedings .

On DATE lodged a request seeking to be granted resident parent status with respect to her son GPE

She submitted that on DATE PERSON had left his father ’s house and moved in with her , and implicitly with his brother PERSON . ORG and with her new family ( husband and their few months’ old twins ) .

ORG alleged that as a consequence of her tense relationship with the applicant , as evidenced by the several criminal complaints he had lodged against her , it had become very difficult for her to maintain contact with ORG , which also impeded the CARDINAL children ’s possibility of spending time together . In DATE her elder son had told her that he wanted to move in with her , to live with her and with his younger brother . His wish was allegedly motivated by his strong and affectionate relationship with his brother , but also by the fact that he felt neglected and badly treated at home , following his father ’s moving in with his new girlfriend and her own eleven- DATE son .

NORP The applicant denied these assertions . He reiterated that it was PERSON who had obstructed the development of a normal relationship between the brothers by not allowing him to take ORG . ORG according to the schedule approved in DATE by the courts .

The applicant also filed counterclaims , asking to be granted custody of ORG . ORG , mainly contending that ORG would not be able to take care of all the CARDINAL children she had , in view of the fact that she had many other responsibilities ( ORG being a doctor and a professor as well as a mother and a wife ) . Moreover , it was important for the children to be raised by their real father , and not a “ surrogate father ” , namely ORG ’s new husband .

On DATE a report was drawn up by a social worker who had visited both GPE homes and had interviewed the parties .

The report reiterated the fact that the intense , litigious past of the parties had decisively aggravated and strained the relationship between the parents , on the one hand , and between them and the children , on the other hand . Such incidents had also contributed to the fact that the CARDINAL brothers had not been able to see each other as often as they wanted .

The social worker also interviewed ORG , who had stated that :

“ he decided in desperation to escape from his father ’s home by taxi , as he felt neglected , isolated , offended ; he was not allowed to speak to his mother and to his brother PERSON . ORG , he was not allowed to have friends over , he did not have a good relationship with his father ’s girlfriend or with her son , who had been living with them for DATE ; moreover , he ( ORG ) was eager to meet his twin brothers and to spend more time with his maternal grandparents , whom he had not seen for DATE . ”

The report noted that at the time of the social worker ’s visit , ORG seemed very happy to stay at his mother ’s house , together with all of his brothers , whom he loved , and with his mother ’s husband , who was very open and fond of children . He expressed in categorical terms his intention to stay with his mother . He declared that his father had come CARDINAL times to see him at school and made him believe that he would not oppose his wish to stay with his mother .

In conclusion , the report recommended that ORG should be granted resident parent status with respect to ORG , as not only was this the child ’s firm wish , but also , in the new family , the child had been greeted with much love , making him feel included and protected .

On DATE the CARDINAL children , aged QUANTITY and DATE at the time , were heard by the court , separately and in camera . The judge noted ORG . ORG ’s statements , according to which :

“ he lived with his mother and with her husband , whom he loved more than he loved his dad ; his father came several times to take him ;

- DATE , he spent DATE with his dad , and was not allowed to sleep with his brother PERSON , but instead he slept with his dad ; on DATE he was sick , and when he was taken to hospital by his mother , it became apparent that he had been intoxicated with nicotine ; before DATE , he had spent CARDINAL other weekends with his dad , but nothing bad had happened to him ;

- DATE , on DATE , he went to the police with his mum , to meet his dad ; he said that he did not want to leave with his dad , even though the policeman insisted that he do so ;

- many times , his father had talked badly about his mum , telling him to stop living with her ;

- prior to his GPE separation , he had witnessed his father strangling his mother . ”

ORG , for his part , declared that :

“ - when his parents separated , he had decided to leave with his dad , as he had told him that mum had stolen money , and that mum did not care for him and would mistreat him ; he witnessed some violent scenes when his father had forced mum to tell him where the money was ;

- his brother had felt sick following a visit to their dad ’s , and then his father had shown him a printed paper , telling him that it was proof that mum had given drugs to his brother ;

- at his dad ’s , he had felt that he was a burden ; his father was not interested in him , did not help him with his homework , never asked anything about how he was getting along at school nobody hugged him while he lived with his dad ;

- mum took care of him , helped him with his homework , bought him clothes , hugged and kissed him ;

-he felt that he could not complain about all these things to anybody ; he only saw his mum at school , and his dad was telling him bad things about her ; he was afraid to complain to anybody for fear that his father would hear about it and beat him ;

- his father had beaten him when he took some of his [ father ’s ] own food ; from that moment on , he had followed all the rules , for fear that he would otherwise be beaten ;

- before he had left for his mother ’s house , he had warned his dad that he would leave if he continued to behave in such a way , and his dad had told him that if he left , he should never come back ;

- following his moving in with his mum , his dad had visited him at school DATE , promising that he would change , blaming stress at work for his behaviour ;

- if possible , he would like to stop seeing his dad . ”

Several witnesses were also heard , mainly stating that the CARDINAL brothers were well taken care of by their mother and that they were both happy together .

On DATE the GPE ( GPE allowed ORG ’s request to be granted resident parent status with respect to ORG ; at the same time , the court allowed the applicant contact , to be exercised during DATE , from TIME on DATE to TIME on DATE , but also for DATE during DATE and DATE during DATE .

In so doing , the court held that it was in the best interests of the minor to stay with the parent he felt closer to :

“ Even assuming that the minor ORG had only imagined a complete scenario of abuse and neglect from his father , the fact that he reproduced the same scenario to several people , as transpired from the evidence , proved the existence of a serious breakdown in communication between him and his father . ”

Taking into account the child ’s own choice , but also his best interests , on the basis of the file , the court held that ORG should stay with his mother , while also allowing the applicant contact on an identical schedule to that set out with respect to ORG . N. The court further held that concurrent efforts on the part of both parents were essential for the improvement of the father ’s relationship with his CARDINAL children .

In dismissing the applicant ’s request to be granted custody of ORG . ORG , the court held :

“ The disputes between the parties regarding the enforcement of the judgment allowing the father contact are not a good enough reason to justify a change with respect to the custody of ORG . ORG ; the father has at his disposal several procedural means aimed at addressing the non - enforcement of a judgment , but he must also find the appropriate means to allow him to grow closer to the child , while the mother ’s duty is to explain to the child the importance of staying in touch with his father . ”

The judgment was not appealed against and thus became final .

The relevant domestic legal provisions are set out in the ORG ’s judgments in the cases of GPE v. GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) , and GPE v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) . The role and responsibilities of the local public authorities in respect of social assistance and child protection , as well as the relevant provisions of LAW ( no . CARDINAL ) , are described in the judgment in the case of GPE , ( no . CARDINAL , § § DATE and DATE , CARDINAL DATE ) .


Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger

The applicant , PERSON Terletskaya , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their former Agent , Mr PERSON , from ORG .

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

The applicant worked as an assistant in a shop belonging to Mr. PERSON

On DATE a tax police squad visited Mr F. ’s shop in order to carry out an unscheduled inspection due to PERSON failure to submit tax returns .

The inspection was not conducted , as Mr F. , his relatives and his employees , including the applicant , prevented the officers from accessing the store ’s tax records . It led to a fracas .

As was later established by the investigation , at some point Mr F. switched off the light and the applicant screamed that she had been punched in her face by tax officer PERSON escalated the scuffle and PERSON tried to leave the scene in his car . Mr F. and the applicant tried to prevent PERSON from leaving . Mr F. jumped on the hood of the car , then broke a side window and tried to pull officer PERSON out of the car , while the applicant blocked the rear of the car and jumped on it when the car tried to move . Tax officer PERSON tried to pull the applicant away from the car .

DATE , the applicant lodged a complaint with the PERSON police department against officer PERSON for punching her in her face .

Again on DATE , the members of the tax police squad that had conducted the inspection gave statements to the police .

At TIME the applicant was examined by a doctor , who found a bruise on her right arm .

On DATE the applicant lodged a complaint against tax police officers PERSON and PERSON with ORG . She complained that officer PERSON had beaten her and that officer PERSON had “ applied brutal physical force ” to her .

On the same date the applicant was questioned and underwent a medical examination . The examination revealed the following injuries on her : CARDINAL bruise of CARDINAL x QUANTITY on the inner side of the right forearm ; CARDINAL bruise of QUANTITY just above the left buttock ; and CARDINAL bruise of QUANTITY on the outer surface of the right thigh .

Again on the same date , the tax inspectorate transferred the applicant ’s complaint to ORG ( “ the ORG ” ) , which started an investigation .

On DATE ORG conducted an internal query and concluded that the tax police had acted lawfully in conducting the tax inspection of PERSON shop .

On DATE the applicant underwent a forensic medical examination ordered by the investigator . The forensic expert concluded that the applicant ’s injuries certified by the medical examination of DATE could have been caused by blunt hard objects , including by jumping on the car and grasping its metal parts and by having been pulled off the car by officer L.

On several occasions the investigation questioned the individuals involved in the scuffle and some by - passers who had witnessed the beginning of the scuffle .

On DATE the ORG refused to institute criminal proceedings against officers PERSON and L. The investigation established that on DATE a squad of CARDINAL officers had arrived at Mr F ’s shop in order to conduct a tax inspection . Mr F. had refused to give them access to financial documentation . The squad had called their supervisor , PERSON , who had arrived at the shop with a lawyer to draft a report recording that it had been impossible to conduct the inspection . At that time , the applicant had arrived at the shop to start her shift as an assistant . When the members of the squad had tried to read out the document , PERSON had switched off the light , claiming that the shop ’s TIME were over , and had started pushing the squad ’s officers out of the shop . When they were out in front of the shop , Mr F. had temporarily switched off the light in front of the shop and the applicant had then started shouting that PERSON had punched her in her face . Following that , PERSON and his relatives and other shop assistants that had been present had blocked PERSON ’s car , preventing it from leaving . The applicant had been jumping on the back of the car . Meanwhile , Mr F. had jumped on the hood of the car and , kicking the wind shield , had broken it . Mr F. had then broken CARDINAL of the car ’s side windows and , trying to pull PERSON PERSON out of the car , had cut his hand on the broken glass . At the same time , officer PERSON had tried to pull the applicant away from the car but she had resisted .

The investigator further noted the results of the forensic medical examination of the applicant and its conclusions that the applicant could have caused the minor bodily harm established herself by jumping on the car or that her injuries could have been caused by officer PERSON when he had tried to pull her away from it . The investigator also noted that the applicant had not had any injuries on her face .

As it could not be established that the bodily harm ascertained had been caused to the applicant by the tax police officers , the investigator refused to institute criminal proceedings against officers PERSON and PERSON for a lack of corpus delicti .

On DATE ORG quashed the decision of DATE and instructed the ORG to conduct additional investigation on the grounds that officers PERSON and PERSON had not been questioned and that the decision of DATE had mistakenly been taken within the criminal proceedings against PERSON and not in connection with the preliminary examination of the applicant ’s complaint .

On DATE officers PERSON and PERSON were questioned again .

On DATE the applicant lodged a private prosecution with ORG . On DATE the court left the complaint without consideration for failure to comply with procedural formalities .

On DATE the ORG quashed the ORG ’s decision of CARDINAL DATE and returned the case to the ORG for further investigation . It noted that the decision of DATE had mistakenly been taken within the criminal proceedings against PERSON and not in connection with the preliminary examination of the applicant ’s complaint and that PERSON had not been questioned as witnesses .

In DATE Mr F. and PERSON were questioned .

On DATE the ORG refused to institute criminal proceedings . It was noted that there was no objective proof that officer PERSON had punched the applicant in her face at all , that the applicant ’s other injuries could have been caused by her jumping on the car and that it could not be established beyond reasonable doubt that officer PERSON had caused any of the minor injuries found on the applicant .

On DATE the ORG rejected the applicant ’s subsequent appeal against the decision of DATE .

On DATE ORG upheld the decision of the first - instance court .

On DATE ORG upheld the decisions of the lower courts .

The applicant lodged CARDINAL administrative complaints against ORG for its alleged failure to act on her complaints .

On DATE and CARDINAL DATE ORG found that ORG had failed to consider criminal complaints which the applicant had brought against ORG . The court ordered ORG to consider the applicant ’s complaints and to take reasoned decisions on them .

The applicant maintained that the court decisions of CARDINAL DATE and DATE DATE have remained unenforced .