The applicant was born in DATE and lives in GPE .

On DATE the applicant 's DATE brother PERSON was shot dead at QUANTITY ' range by the police following a DATE siege . The following events led up to the shooting :

On TIME DATE J. threatened a taxi driver with a gun , forcing him to abandon his car . PERSON pointed his gun , which had a silencer on it , at the driver 's chest and then pushed it against his abdomen with force causing loss of breath . While on the ground the driver was forced to put his hands up and his clothes were searched . He was then ordered to lie on the ground face down . When he tried to look up , J. held the gun to the back of his head and said “ if you move , you know what this gun will do ” . Finally , J. let the taxi driver go having taken a torch from the car .

TIME , J. shut himself in his rented house on the island of GPE in the municipality of PERSON . He did not take any hostages . The island was subsequently evacuated .

According to the Government , the island comprises QUANTITY of woods with several inhabited houses . It was sealed off from the mainland by the police . The area of the siege was not illuminated by lights other than those coming from ORG . There was daylight TIME At night , there was no moonlight due to cloud . There was not enough snow , either , to provide enhanced visibility . In fact , the greater part of the operation was conducted in darkness . The temperature was CARDINAL .

There were CARDINAL bridges to the mainland . The island could also be left by boat or by walking in the shallow water or on the ice which covered some of the water . The house stood near the water and had doors and windows on all sides . The ground was uneven and covered with rocks , tree trunks and densely growing bushes . The surrounding area did not provide the police officers with cover . Some of them had visual cover only .

According to the applicant , the Government deliberately described the scene of the events as more difficult than it actually was . The location of the house was secluded . The trees surrounding it had been cut down by CARDINAL armoured vehicles at the scene . There was no direct access to the woods from the bedroom door in the north - eastern part of the house .

According to the ORG , a total of CARDINAL police officers took part in the police operation . According to the applicant , CARDINAL police officers and other officials participated in the DATE siege .

The house was surrounded by the police . During TIME and in TIME of DATE the police gathered information from various sources . Having learnt that PERSON had been convicted of criminal activities , they contacted the police in his former home town . The police at the scene were informed that he had previously been involved in an armed siege , that he had been admitted to a psychiatric institution and that he was considered to be especially hostile towards the police . The police also contacted the psychiatric institution where PERSON had received treatment and were informed that it would be very difficult to conduct negotiations with ORG , who was extremely impulsive , paranoid , aggressive and incapable of co - operating . In order to draw up a profile of ORG , further information was received from CARDINAL psychiatrists and CARDINAL psychologist , from police officers who had been involved in PERSON 's previous siege and from his family and acquaintances .

At the beginning of the operation the instructions regarding the use of force were first to apprehend PERSON by issuing instructions to him , to refrain from using weapons and to act within the limits of self - defence :

NORP In a self - defence situation each police officer decides for him or herself on the use of force .

NORP If the suspect comes out without a gun , he shall be issued with instructions and be apprehended using a police dog if necessary .

NORP If the suspect comes out with a gun , he shall first be given instructions and if possible the police dog shall be used . If he approaches carrying a gun , shots may be aimed at his legs as a last resort . The suspect must not be allowed to exit the cordoned area .

The border guard provided assistance in the form of a patrol boat and a helicopter . Units from the fire department were at the scene and an air ambulance was initially on stand - by and was moved closer at a later stage .

The police acquired the construction plan of the house but as a search at TIME would have been too risky it was postponed until TIME . At first light , the police started to approach the house in a line . A police dog and handler were on duty but when PERSON was spotted in the woods , armed , they were too far away to act and they lost sight of him . After J. had been sighted around and in the house and the situation had escalated , the search plan was abandoned altogether .

The police tried several times to contact PERSON by telephone , without success . From TIME a psychologist from ORG was present to assist in the negotiations . However , no telephone calls were successfully put through .

Due to the lack of appropriate maps , the difficult surroundings and the safety hazards facing the police officers , the search was continued using a helicopter , which later spotted J. near the house . Following the sighting , the police moved closer to the house . The proper siege began at TIME . At that time there were QUANTITY police officers present .

At TIME the officer in charge at the scene , PERSON , requested ORG to authorise the use of ORG . The request was granted and CARDINAL specially trained police officers joined the police at the scene under the instruction of their commander , PERSON arrival , PERSON was informed by PERSON of the instructions on the use of force .

NORP The police moved closer to the building to establish direct contact with J. , whereupon he fired shots in the air . Additional shots were fired by J. during DATE some of which at the police officers at the scene . In addition to attempts to make direct contact , the negotiators tried repeatedly to reach J. by telephone , by leaving messages on his answering machine and by sending faxes . During TIME CARDINAL short phone calls were successfully put through . However , PERSON refused to negotiate . At TIME he said “ many will go with me once I come out ” and “ I will count to CARDINAL and there will be nobody in the bushes ” , whereupon he exited the house and shot in the air repeatedly . At TIME he stated “ I will teach [ you ] a third and final lesson ” . At TIME J. called the negotiator to say that he had fired his gun “ because he did not know who [ they ] were ” .

Around that time PERSON 's brother PERSON arrived at the scene . He informed the police that ORG owned a CARDINAL calibre small - bore rifle and a very heavy CARDINAL - CARDINAL calibre sporting gun . J. was also said to be an excellent shot , having practised shooting as a hobby . J. could not however be reached by telephone at the time .

At the scene , the police spotted J. carrying CARDINAL long - barrelled weapons . The operation was scaled up , with enhanced security measures put in place to protect the police officers and any other persons in the area . At TIME O. called to inform that J. had called him and promised to let him into the house at TIME . During TIME J. was heard moving around outside in the darkness . The police had several lights trained on the house , but J. shot them all . At TIME J. fired several shots in the air and at the police . The helicopter , which was training a searchlight on the house , was hit by J. 's small - bore rifle and had to perform an emergency landing in a nearby field . At TIME J. shouted something at the police about a blasting operation , which made them suspect that he might also have explosives in his possession .

NORP The closest Special Task Force hideout was located QUANTITY from the house at the edge of the woods . The police considered it impossible to surround the house from farther away without losing sight of it . Moving the operation further away from the house would have enabled PERSON to move around and possibly to enter other houses .

In TIME of DATE the police used audible flares to locate J. and keep him indoors , from where he fired repeatedly through the windows and the skylight . He aimed some of the shots at the police . At TIME there were CARDINAL police officers on the island . At TIME a police officer , PERSON , from ORG former home town ( situated QUANTITY from the scene of the events ) telephoned to inform that J. had called him . At about that time , CARDINAL was shooting around him . At TIME the negotiators managed to make contact with PERSON , who demanded a written assurance that he would not be committed to a psychiatric institution . The request was refused . At TIME PERSON called J. At TIME the afore - mentioned psychologist arrived at the scene . At TIME J. called PERSON The police 's subsequent attempts to make contact failed .

The senior police officers assessed the situation in the light of the following incidents which had taken place during TIME and during TIME . J. had shot at the police over a CARDINAL times , having an excellent shooting position from the roof , which was accessible to him from the skylight . After the operation CARDINAL bullet holes were found in DATE QUANTITY - sized searchlight situated next to a police hideout . The rock providing cover to the command centre also had CARDINAL of bullet marks on it . The police officers ' gear did not give them adequate protection . The police officers ' attempts to remain as invisible to J. as possible , the attempts at negotiation and the cutting - off of the telephone lines by the police to allow a TIME 's rest , did not have any effect on J. 's behaviour . The police considered it too dangerous to allow the situation to continue TIME , as J. was able to leave the house undetected when it was dark .

The senior police officers had lengthy discussions on whether to abandon the siege . However , they decided that public order and safety could not be guaranteed if the operation was abandoned . The use of a police dog was rejected as too risky , since the dog could not operate without the handler and there was no cover for the dog handler near the house . After weighing up the different possibilities , the officer in overall charge obtained executive assistance from the defence forces in the form of CARDINAL armoured personnel carriers ( CARDINAL . CARDINAL and DATE ) with drivers . It had also been suggested by a psychologist at the aforementioned psychiatric institution that “ a show of strength in the form of military force and vehicles might allow J. to retreat honourably ” . The armoured vehicles also allowed closer monitoring of the house and made possible the use of tear gas and , if necessary , the evacuation of injured persons .

Around TIME , when repeated negotiation attempts had failed , the officer in charge at the scene , PERSON , ordered the use of tear gas to break ORG 's resistance . The order was carried out from armoured vehicle no . CARDINAL . The gas had no visible effect on J. As his whereabouts in the house were unknown , PERSON ordered the window panes and curtains to be removed TIME in order to prevent surprise attacks . Armoured vehicle no . CARDINAL remained at the corner of the green and yellow sides , QUANTITY from the bedroom door , with a view to observing and effecting an arrest . Shortly after the removal of the window panes CARDINAL was spotted on the roof .

During DATE the police tried repeatedly to reach J. by telephone . However , he did not answer their calls . When it got dark , the searchlights were switched on , whereupon J. fired his gun . At TIME brother PERSON arrived at the scene but it was considered too dangerous to let him approach the house . The same considerations applied to having the afore - mentioned police officer PERSON , who arrived at the scene at TIME , approach the house . Meanwhile , at TIME the police used a megaphone to make contact with J. , without success .

At TIME J. fired shots towards the armoured vehicles and the border guard boat apparently with a view to shooting the searchlights . In addition , he threw a gas canister and CARDINAL “ Molotov cocktails ” . At the same time it appears that PERSON set the house on fire . J. was seen walking around inside carrying a rucksack and breaking glass and furniture in an uncontrolled manner . The police estimated that the situation had become more dangerous and more difficult as it seemed that PERSON was planning an escape . His conduct was becoming increasingly hostile and self - destructive . His life was deemed to be in danger from the fire .

At that point , abandoning the operation was not an option owing to the serious threat posed by J. The use of a dog was impossible under the circumstances , as was the sending of an action team into the burning house . It was decided that the only possible way to stop and apprehend J. in the dark and smoke - filled conditions before he could escape was to order a police officer to shoot with a shotgun aimed at ORG leg , although shooting was considered extreme and a last resort .

At TIME flares were used to have the scene lit . The Special Task Force commander , PERSON , and the officer in charge at the scene , PERSON , decided that J. should be shot at , on the firm understanding that he be hit only in the leg . The goal of the shooting operation was to rescue ORG from the burning building without endangering the other persons at the scene . Senior Constable ORG was assigned the task of firing the shot . The manner in which he carried out the order was left to his discretion . He chose a shotgun in order to cause as little injury as possible . According to the Government , the shotgun was chosen also in order to minimise the danger to the police officers and rescue personnel on the opposite side of the house . The officer in overall charge , ORG , authorised the change of instructions on the use of force at TIME , whereupon ORG fired CARDINAL x QUANTITY lead shot through the porthole of armoured vehicle no . CARDINAL at QUANTITY ' range . J. was hit in the right hand and the upper part of the right thigh . J. was issued with instructions to surrender .

The shot had no visible effect on PERSON , who continued to throw objects into the fire and to move around inside the house . No further shooting was authorised since it had proved ineffective . According to the subsequent indictment , PERSON did not fire his gun after he had been hit .

By TIME the house was ablaze . TIME later the Special Task Force commander , PERSON , estimated that ORG would exit the house within TIME if he intended to come out at all before its expected collapse . Due to the noise of the fire no further contact with PERSON was possible . The police expected him to leave the house either through the bedroom window from which the glass had been removed or through the bedroom door . According to the subsequent indictment , the only way out had been the lower part of the door on the so - called green side of the house .

At TIME J. broke the glass on the lower part of the bedroom door and cleared the frame of shattered glass with his weapon . He started to crawl out through the opening , which was QUANTITY high . He was carrying CARDINAL weapons . At that point he was hit by CARDINAL shots fired simultaneously by Senior PERSON and L. , from armoured vehicle no . CARDINAL at QUANTITY ' range . Both shots were aimed at J. 's shoulder and arm , but owing to his position , the firing angle through the porthole of the armoured vehicle and the short time available , he was hit in the head .

According to the Government , in the final stage of the siege there had been a total of CARDINAL police officers surrounding the building . Out of these , CARDINAL officers were inside the armoured vehicles . According to the applicant , the total number had been greater .

The prompt resuscitation efforts at the scene were unsuccessful and PERSON died at TIME The site was sealed off and an investigation was started immediately .

During the siege a log was kept of the decisions made and actions taken . Due to the geographical conditions not all the radio conversations were recorded on tape , but the later part of the siege was recorded on audio tape and the use of tear gas was also recorded on video tape . Although the area was sealed off for the crime - scene investigation , some evidence may have been destroyed when the fire was extinguished . Despite this , it was possible to collect details of the bullet holes in and around the building . The investigation , which started immediately , was carried out by ORG ( keskusrikospoliisi , centralkriminalpolisen ) , which is one of the national units of ORG . ORG specialises in investigating and preventing serious , organised and international crime . At the national level , it is responsible for criminal intelligence and identification of new types of crime . ORG also develops criminal - investigation techniques and provides training in the aforementioned subjects . On DATE the investigation into the cause of J. 's death began .

At the particular request of ORG 's family , certain additional lines of inquiry were followed during the pre - trial investigation . The autopsy report and the results of all the forensic and other investigations , as well as the reports on the siege , were included in the pre - trial documentation , together with a large number of witness statements .

Having received the investigation report concerning the cause of death , ORG , on DATE , began to investigate whether anyone involved in the siege had acted in an unlawful manner .

In DATE the decisions made and the actions taken during the operation were studied by a permanent investigation team set up by ORG . The tasks of the team include investigation of the tactics , plans and actions of particularly dangerous police operations . Occupational safety requirements are considered and improvements suggested where necessary . In addition , the team has an educational role , creating educational material for police forces and giving advice on future operations where appropriate .

The investigation team studied the operation in question hour by hour , drew conclusions and made recommendations on the basis of the investigation . The team drew attention in particular to the inadequacies of the police officers ' protective equipment and stressed the importance of improving their occupational safety in future operations . The report was finalised within DATE of the operation in question .

Meanwhile , on TIME of DATE the local police issued a press release stating that the situation at the scene had become extremely serious as the suspect had been firing at the police with the apparent intention of breaking through the cordon in order to escape . The police had made tactical use of gas , but the suspect had continued to direct heavy fire at the police and had thrown fire bombs both outside and inside the house , causing the house to catch fire . Finally , the armed suspect had run out of the building . The situation had become so serious that the police had been forced to act . There had been an exchange of fire as a result of which the suspect had been hit and had died .

On DATE ORG issued a press release stating that according to the investigations so far QUANTITY police officers had each fired once at J. It also stated that there were grounds for investigating whether PERSON had committed suicide in an unusual manner .

At ORG request , ORG conducted an additional investigation during the consideration of the charges .

On DATE ORG decided to charge the commander of ORG , PERSON , with negligent homicide and negligent breach of official duty . The indictment was to the following effect .

Upon his arrival at the scene , PERSON had received the afore - mentioned instructions on the use of force ( see paragraph CARDINAL above ) . It was PERSON 's responsibility to inform his subordinates of the instructions on the use of force . H. duly informed his men , but added the following :

“ If , despite everything , [ the suspect ] tries to break through the cordon of police officers , he must be stopped . In the last resort , this may be done by shooting at him in the upper body . ”

ORG considered that PERSON 's own adaptation of the instructions on the use of force , according to which his men had the right under certain conditions to shoot J. in the upper body , was a fundamental change in orders which ORG did not have the right to give without the explicit approval of the officer in charge at the scene or the officer in overall charge . H. must therefore be considered to have breached his official duties on account of his negligence in relaying the instructions to his men . Having regard to the fact that PERSON was to be considered as having sought to clarify the instructions for his men rather than to deliberately alter them , ORG took the view that his conduct , although reprehensible , should be considered only as negligence in the performance of duty .

Towards the end of the chain of events of DATE , just before TIME , J. broke the glass on the lower part of the bedroom door and was about to exit the building with no apparent intention of surrendering to the police , apparently intent on escaping , armed , through the police cordon . At that moment he was hit by CARDINAL shots fired simultaneously from armoured vehicle no . CARDINAL at QUANTITY ' range by QUANTITY police officers , Senior PERSON and L. They considered , as did their superior officer , that there was no other way of stopping J. , who received a fatal shot to the head . A. and L. were acting on the orders of their superior officer , PERSON Accordingly , ORG considered that PERSON had negligently caused PERSON 's death , having provided his men with an arbitrary interpretation of the instructions on the use of force , which NORP and PERSON had tried to act upon .

On DATE ORG decided not to bring charges against the officer in overall charge , ORG , and the officer in charge at the scene , PERSON , for negligent breach of official duty , finding that the shooting of J. in the legs had been justifiable under LAW , LAW . He also decided not to prefer charges for negligent breach of official duty against NORP and PERSON , who had both fired shots at QUANTITY ' range . He found that the decision to stop J. by using a gun had been in line with the instructions on the use of force , and justified in the circumstances . While it could be argued that the shots had been fired too early , it was unreasonable in the circumstances to direct criticism at A. and L.

Lastly , he decided against bringing charges of manslaughter against PERSON , finding that he had given an order to take lawful action against J. There was no evidence that he had ordered A. and L. to shoot to kill .

The District Prosecutor therefore concluded that the evidence did not warrant the prosecution of any of the persons involved in the siege , with the exception of the commander of the Special Task Force , PERSON , whom he had decided to prosecute by his decision of CARDINAL DATE .

On DATE ORG also decided against bringing charges of endangering others and committing an offence in the performance of duty against PERSON in his capacity as the superior of the police officer who had fired tear gas into the house .

Following ORG decision not to bring charges , PERSON 's family brought a private prosecution . It appears that some of them were granted free legal assistance . In DATE they brought charges against Senior Constable ORG for aggravated assault and abuse of office , on the ground that he had shot at J. at QUANTITY ' range , inflicting bodily harm . They also preferred charges against Senior PERSON and L. for manslaughter and aggravated abuse of office , on the ground that they had shot J. in the head at QUANTITY ' range with a QUANTITY lead shot , in a situation where he had manoeuvred only his upper body through the door opening . Lastly , PERSON was charged with manslaughter in his capacity as A. and PERSON 's superior officer , who had ordered them to shoot . The complainants also claimed damages from the ORG .

In the proceedings against the commander of ORG , PERSON , ORG 's family did not submit any claims .

ORG held QUANTITY hearings in DATE and took forensic and oral evidence . The members of the ORG involved in the siege appeared before the court and gave evidence to the effect that they had understood their commander , PERSON , orders as relating to a self - defence situation in the strict sense . The officer in charge at the scene , PERSON , testified that at TIME he had heard PERSON say on the police radio that J. could be shot in the legs when he appeared and that if his gun was pointed towards the police he should be shot dead . T. had been about to correct the order but he had then heard PERSON correct it himself by saying that PERSON should not be shot dead but shot in the upper body . T. had accepted the change of order and perceived it as an operational tactic in a genuine self - defence situation . He had therefore not intervened . T. considered that PERSON 's order was in line with the instructions on the use of force .

A. gave evidence to the effect that , had PERSON managed to get up on his feet , he would have posed an immediate threat to the life or health of the police officers in the cordon . A. had perceived the situation as requiring self - defence and had therefore fired his gun . He had done so independently and irrespective of PERSON 's amendment to the instructions on the use of force .

L. gave evidence to the effect that the sector of fire had been too narrow to await a possibility to shoot at J. 's legs . When exiting the house J. had posed a threat to the police officers in the cordon . Due to J. 's position it had not been possible to aim at his legs . L. had perceived the situation as requiring self - defence . H 's amendment to the instructions on the use of force had not influenced his judgment .

On DATE ORG ( käräjäoikeus , tingsrätten ) of GPE dismissed the charges . It observed that the forensic reports revealed that PERSON 's death had been caused by a shot fired at QUANTITY ' range . It was not known which of the shots fired by Senior PERSON and PERSON had brought about his death . The court observed that the instruction had been given to a trained team of specialists used to working closely together . A. and PERSON had shot at J. independently of their commander PERSON amendment to the instructions on the use of force , because they had perceived the situation as requiring self - defence .

ORG appealed . On DATE ORG ( hovioikeus , hovrätten ) upheld the lower court 's judgment . The acquittal appears to have become final .

ORG conducted an inspection in an armoured vehicle and heard evidence from TIME witnesses , including CARDINAL doctors on the subject of the autopsy , PERSON 's mental health prior to and during the siege and his treatment in a psychiatric institution ; CARDINAL persons responsible for the forensic investigation ; the senior police officers ; CARDINAL police officers and other police personnel who had been at the scene or working with the remote units ; the drivers of and police officers in the armoured vehicles ; a negotiator and a firefighter ; CARDINAL experts on ammunition , weapons and tear gas ; and CARDINAL other persons on the nature of the information provided by the police after the operation . The court also had before it the pre - trial investigation records , the medical reports on J. and the reports and opinions concerning the forensic investigation . It also had audio and video tapes of the siege .

The doctors testified that PERSON had been suffering from a serious personality disorder and paranoia , had had a grandiose perception of himself and had been aggressive and violent . They considered that he had been in need of compulsory care at the time of the events . All these factors had made the situation dangerous and urgent .

In his testimony , a forensic medical expert , ORG , expressed the view that firing a shotgun with lead shots , with a scatter of QUANTITY , at QUANTITY ' range could be considered tantamount to executing the target . The weapon in question was not a precision weapon .

Sergeant R. gave evidence to the effect that PERSON 's behaviour and the way he had exited the house had made clear his intention not to surrender but to break through the cordon while armed . J. had had to be stopped by having shots fired at him from the armoured vehicle , as the lives of the police officers outside would have been endangered by any cross - fire . Several police officers gave evidence to the effect that PERSON had come out crouching . He had also been carrying the guns , which were pointing outwards . Senior PERSON and A had aimed at J. 's shoulder , but had hit him in the head .

In its judgment of CARDINAL DATE ORG observed that the scope of the case was not to assess whether the actions of the police taken as a whole had been appropriate to the purpose of the siege . The scope was confined to the examination of the charges .

The court dismissed the charges against Senior Constable ORG , finding that he had not exceeded his powers .

As to the charges against Senior PERSON and L. , the court noted the following . Several witnesses had given evidence to the effect that the shotguns had been pointing outwards when PERSON had made his way out of the building , whereas the forensic report had stated that the guns had been found pointing inwards after the fire had been extinguished . A firefighter had testified that the power of the fire brigade 's hoses might possibly have altered the shotguns ' position . In any event , the court found that the position of the shotguns was not decisive . What was decisive was the fact that PERSON had brought the guns when making his way out and that PERSON and PERSON had been convinced that the guns were pointing towards them . The court also attributed importance to the fact that J. had crawled out through the door although he could have opened it and walked out . The manner of exit strongly suggested that he had not planned on surrendering . On the contrary , the court drew the conclusion that PERSON had tried to exit the building undetected with a view to breaking through the cordon and escaping into the dark woods . As to whether any blame could be attributed to PERSON and PERSON for not waiting TIME before shooting in order to be able to target the lower part of his body , the court observed that the forensic examination and a reconstruction of the events had disclosed that ORG 's sector of fire had ended QUANTITY to the left of the doorway and the sector available to L. had ended QUANTITY to the left of the doorway . Having regard to the narrowness of the sectors of fire and the inside of the armoured vehicle and the fact that J. could have disappeared from their sectors of fire at any moment , the court concluded that QUANTITY and PERSON had fired their guns in self - defence .

As to their superior officer , PERSON , the court found that A. and PERSON had acted independently and in self - defence , and that his order to shoot had therefore not caused PERSON 's death .

Accordingly , ORG dismissed the charges and the other claims .

The applicant and his co - complainants appealed , requesting a hearing . On DATE and CARDINAL September CARDINAL ORG held an oral hearing during which the defendants and CARDINAL witnesses were re - examined . In addition , it heard evidence from CARDINAL new witness proposed by the complainants , making a total of CARDINAL witnesses . The court refused the complainants ' request to re - examine QUANTITY other witnesses as being manifestly unnecessary , since their statements either concerned circumstances that had already been clarified during the proceedings in the lower court or were irrelevant . It appears that the defendants did not adduce any oral evidence and that ORG , of its own motion , called CARDINAL of the witnesses who had been examined before ORG .

DATE . By a judgment of DATE ORG upheld the lower court 's judgment . With regard to the charges against Senior Constable PERSON , it found that he had acted in order to effect PERSON 's arrest under LAW , Article CARDINAL(CARDINAL ) of LAW , which justified the use of force . As to Senior PERSON and LAW , it found that , following PERSON 's appearance , armed , in the doorway the arrest situation had turned into a situation requiring self - defence under LAW , LAW . Making an assessment based on the circumstances at the scene , the court considered that the shooting had been justified and necessary in order to repel an imminent attack and had fulfilled the requirements of the principle of proportionality .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused the complainants leave to appeal by a majority ( CARDINAL votes to CARDINAL ) .

The right to life is guaranteed under LAW ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL , section CARDINAL ) . At the material time , it was guaranteed under LAW ( NORP hallitusmuoto , NORP för GPE ; Act no . CARDINAL/CARDINAL , section CARDINAL ) .

Manslaughter carried a minimum sentence of DATE imprisonment or , under mitigating circumstances , DATE ( LAW , LAW as amended by Act no . TIME ) of LAW ( rikoslaki , strafflagen ) as in force at the relevant time ) .

A person who caused the death of another through negligence could be sentenced to a fine or to imprisonment for a maximum period of DATE for negligent homicide ( LAW , DATE ( as amended by Act no . MONEY ) as in force at the time of the criminal proceedings ) .

Aggravated assault carried a maximum penalty of DATE imprisonment ( LAW , LAW ( as amended by Act no . CARDINAL/CARDINAL ) as in force at the relevant time ) .

In matters other than breaches of official secrecy , public servants acting in an official capacity who , as a result of carelessness or inattention , were in breach of or neglected to fulfil their official duties as set out in the relevant provisions or regulations , were liable to a reprimand or a fine for negligent breach of official duty , unless the act viewed overall , in the light of any harmful effects and of other circumstances , was of minor importance ( LAW , LAW ( as amended by Act no . DATE ) as in force at the relevant time ) .

Persons committing an act which , though otherwise punishable , was necessary in order to repel a present or imminent unlawful attack against themselves or others , or against their property or that of others , were deemed to have acted in self - defence and were therefore not liable to punishment ( LAW , LAW ( as amended by Act no . CARDINAL/CARDINAL ) as in force at the relevant time ) .

A person committing an act not necessary to repel an attack , protect the sanctity of the home or retrieve his or her property , was liable to either a full or a reduced sentence , at the discretion of the court , for overstepping the bounds of self - defence . If the circumstances were such that the person could not reasonably have been expected to retain his or her self - control , no punishment was imposed ( LAW , Article CARDINAL , paragraphs CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) and CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) . That provision was amended with effect from DATE . It now provides that an act which is necessary in order to repel a present or imminent unlawful attack constitutes legitimate self - defence , unless it manifestly exceeds what , on the basis of an overall assessment , may be deemed justifiable , taking into account the nature and force of the attack , the identity of the defender and the attacker and the other circumstances . However , if the act oversteps the bounds of self - defence ( excessive self - defence ) , the offender is exempt from criminal liability if the circumstances were such that he or she could not reasonably have been expected to act otherwise , taking into account the danger and the sudden nature of the attack and the situation in general ( LAW , LAW ( as amended by Act no . CARDINAL/CARDINAL ) .

LAW in force at the material time ( Act no . CARDINAL/CARDINAL ) provided that the duty of the police was to maintain public order and security ( section CARDINAL ) . A police officer had the right to remove or apprehend a person and temporarily keep the person in custody if he or she was causing a disturbance or was posing an immediate danger to public order or security . A police officer had the right to apprehend and temporarily keep in custody a person who , on the basis of his or her threats or other behaviour , was likely to commit an offence . A person could also be taken into custody to protect him or her from imminent danger to his or her life or health ( section CARDINAL ) .

Where a police officer met resistance in the performance of his or her duty , he or she was entitled to use such force as could be deemed justified in view of the nature of the duty , the seriousness of the resistance and the other circumstances prevailing in the situation ( LAW , Article CARDINAL , paragraph CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) of LAW as in force at the relevant time ) . When a person being apprehended , arrested or detained attempts to avoid capture by resisting or escaping , the use of force is allowed in order to capture him or her , to prevent his or her escaping , or keep order , when such measures can be justified in view of the circumstances ( LAW , Article CARDINAL , paragraph CARDINAL ( as amended by Act no . CARDINAL/CARDINAL ) . In a situation where greater force has been used than can be deemed justified , the sentence may be reduced on grounds of mitigating circumstances or , if there are very persuasive reasons for so doing , a decision may be taken not to impose any punishment ( LAW , Article CARDINAL , paragraph CARDINAL , as amended by Act no . CARDINAL/CARDINAL ) .

ORG has established precedents concerning the right of self - defence in cases relating to police actions in siege situations ( nos . ORG CARDINAL:CARDINAL , ORG and CARDINAL ) .

A public corporation is vicariously liable in damages for injury or damage caused through error or negligence in the exercise of public authority . The same liability also applies to other corporations that perform public duties on the basis of an LAW , a LAW or an authorisation given in an LAW . However , liability is incurred in the exercise of public authority only if the performance of the activity or task , in view of its nature and purpose , has not met the reasonable requirements laid down for it ( LAW , section CARDINAL of LAW ( Act no . CARDINAL ) .

Damages shall constitute compensation for personal injury and damage to property . Where the injury or damage has been caused by an act punishable by law or in the exercise of public authority , or in other cases where there are especially compelling reasons , damages shall also constitute compensation for economic loss that is not connected to personal injury or damage to property ( LAW , section CARDINAL ) .

A person who has suffered a bodily harm or other personal injury shall be entitled to damages to cover medical costs and the other costs arising from the injury and to compensate for loss of income and maintenance , pain and suffering , invalidity and other permanent disability ( LAW , section CARDINAL ) .

The provisions on personal injury apply also to damages for the distress caused by an offence against individual liberty , honour or domestic peace or by another comparable offence ( LAW , section CARDINAL ) .

The court shall decide what is to be regarded as the truth in the case after having carefully evaluated all the facts submitted to it ( LAW , LAW , paragraph CARDINAL ( as amended by Act no . CARDINAL ) of the Code of Judicial Procedure ) .

NORP The police force operates under the supervision of ORG . It is a CARDINAL - tier organisation . At the top is ORG or ORG . Below are ORG , the national police units , the police training establishments , LAW and , for operational purposes , ORG . The third level is the local police , who operate under the relevant ORG .

ORG also comprises ORG set up by the Government . Each district police force has its own police advisory committee , appointed by the local council .

Provisions on the organisation of the police and the duties of the different police units and advisory committees are laid down by LAW ( laki poliisin hallinnosta , polisförvaltningslagen ; Act no . DATE ) .

The national police units also come under the supervision of ORG . However , ORG is separate from the provincial and local police forces .

A ORG is maintained by ORG , answerable to ORG . It has no special privileges and must comply with the legal , operational and ethical standards laid down for the police . It is a part of the police structure and always operates under the command of the unit whose operation it is participating in . The lines of action are decided by the officer in overall charge and , on the ground , ORG is subordinated to the officer in charge at the scene .

The duty of the Special Task Force is to be prepared and equipped for situations where normal police operations fail to produce the desired outcome . Its members are trained to act as a specialist team , and have more elaborate protective equipment than the local police . They receive regular training in special operations such as siege and hostage situations . They are members of the police patrol force . In DATE special operations and training accounted for MONEY of their work time .

At the material time , the Special Task Force 's equipment did not include protective gear against rifle - calibre weapons . The amount of TIME - vision equipment which they had was not adequate and their clothing was unsuitable for prolonged operations in DATE conditions .

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ( ORG ) were adopted on DATE by ORG on ORG and the Treatment of Offenders .

Paragraph CARDINAL of ORG provides , inter alia , that “ intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life ” .

Other relevant provisions read as follows :

Paragraph CARDINAL

“ ... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . ”

Paragraph CARDINAL

“ ... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . ”

Paragraph CARDINAL

“ Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . ”


Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 14+8;Not necessary to examine Art. 8;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants , who are NORP nationals , have both lived in GPE since DATE . They were married in GPE in DATE and PERSON has NORP citizenship also . In accordance with NORP law ( LAW ) , they chose the wife ’s surname , " PERSON " , as their family name ; the husband availed himself of his right to put his own surname in front of that and thus call himself " PERSON " .

The NORP registry office ( GPE ) having recorded " Schnyder " as their joint surname , the couple applied to substitute " PERSON " as the family surname and " PERSON " as the husband ’s surname . On DATE the cantonal government ( NORP ) of GPE turned down the application .

On DATE the applicants made a further application to the cantonal ORG ) of ORG , following an amendment to LAW as regards the effects of marriage , which had been made on DATE and had come into force on DATE ( see paragraph CARDINAL below ) .

On DATE their application was again refused , on the ground that they had not pointed to any serious inconvenience arising from the use of the surname " PERSON " . Furthermore , in the absence of any transitional provisions the new LAW para . CARDINAL of LAW could not apply to couples married before DATE . Lastly , under the new LAW para . CARDINAL , only a wife could put her own surname before the family name ( see paragraph CARDINAL below ) .

The applicants then lodged an appeal ( GPE ) with ORG ( PERSON ) in which they complained of , among other things , a breach of the new LAW and CARDINAL para . CARDINAL of LAW and LAW para . CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG allowed the appeal in part . While refusing to apply paragraph CARDINAL of Article CARDINAL , which concerned only engaged couples and had no retrospective effect , it held that in the particular case there were important factors which justified applying paragraph CARDINAL in order to allow the applicants to call themselves " Burghartz " ; apart from DATE and profession , account had to be taken of the differences between the relevant NORP and NORP systems , which were made more acute by the fact that PERSON was a frontier city .

As to Mr PERSON ’s application to be allowed to bear the name " PERSON " , no support for it could be found in LAW para . CARDINAL of LAW ; the drafting history showed that ORG , out of a concern to preserve family unity and avoid a break with tradition , had never agreed to introduce absolute equality between spouses in the choice of name and had thus deliberately restricted to wives the right to add their own surnames to their husbands’ . This rule therefore could not avail by analogy a husband in a family known by the wife ’s surname . There was , however , nothing to prevent Mr PERSON from using a double - barrelled name ( see paragraph CARDINAL below ) or even , informally , putting his surname before his wife ’s .

According to the applicant , a large number of official documents , in particular the certificate of his doctorate in history , had not since then contained the " Schnyder " element of his surname .

Article CARDINAL para . CARDINAL of the Swiss Federal LAW provides :

" Men and women shall have equal rights . Equality shall be provided for by law , in particular in relation to the family , education and work ... "

The relevant new Civil Code provisions that came into force on DATE read as follows :

" ( CARDINAL ) The government of the canton of residence may , if there is good cause , authorise a person to change his or her name .

( CARDINAL ) Engaged couples shall be authorised , if they so request and if they prove a legitimate interest , to bear the wife ’s surname as the family name once the marriage has been solemnised .

" ( CARDINAL ) Married couples shall take the husband ’s surname as their family name .

( CARDINAL ) A bride may , however , make a declaration to the registrar that she wishes to keep the surname she has borne to date , followed by the family name .

" ( CARDINAL ) The children of married couples shall bear their family name .

" Within DATE of the entry into force of the new Act , a woman who was married under the old law may make a declaration to the registrar that she wishes to put the surname she bore before her marriage in front of the family name . "

By a custom recognised in case - law , married couples may also put the wife ’s surname after the husband ’s surname , joining the CARDINAL with a hyphen . This double - barrelled name ( Allianzname ) , however , is not regarded as the legal family name ( ORG , judgment of CARDINAL DATE , Judgments of ORG , vol . CARDINAL II CARDINAL ) .


Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant , PERSON , is a NORP national who was born in DATE . She is currently confined in a psychiatric hospital in GPE . She was represented before the ORG by Mr. PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , PERSON , of ORG .

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

By a decision of DATE ORG ordered that the applicant , who was suspected of having killed her husband and had shown signs of a personality disorder in the past , be provisionally placed in the psychiatric department of the LOC hospital in accordance with Article ORG of the Code of Criminal Procedure providing for such a measure if there are strong grounds to assume that a person has committed an unlawful act while lacking criminal responsibility and that committal to a psychiatric hospital will be ordered ( see Relevant domestic law below ) .

The applicant had already voluntarily admitted herself to the psychiatric department of the LOC district hospital on DATE and had remained there on the basis of decisions by the department for guardianship affairs of ORG ( Vormundschaftsgericht ) of CARDINAL DATE and DATE .

Following a decision of ORG dated DATE the applicant was transferred to the forensic psychiatric department of the ORG district hospital .

On DATE the Nuremberg - Fürth Public Prosecutor ’s Office applied for the initiation of separate preventive proceedings ( selbstständiges PERSON ) pursuant to Articles CARDINAL et seq . of LAW ( see Relevant domestic law below ) with the Nuremberg - Fürth Regional Court .

In the course of the subsequent court proceedings it was established that the applicant , who had no previous criminal record , had killed her husband , to whom she had been married for DATE and with whom she had raised CARDINAL children . Since DATE the applicant had developed a pathological compulsion to collect rubbish , which she stored in the family home . Over DATE this compulsion became her main purpose in life and she felt increasingly disturbed by her husband ’s interfering with her compulsive hoarding . On DATE , in an attempt to sedate her husband , she secretly dissolved tranquillisers in his drink . Her aim was to attach him to his bed once he had fallen asleep so as to immobilise him for some time and prevent him from interfering with her compulsive hoarding . Since her attempts were to no avail , the next morning she hit her still sedated and unsuspecting husband several times on the head with a mineral water bottle until he lost consciousness . He died DATE as a result of the blows . During the following night , after discovering her husband ’s death , the applicant dismembered the corpse and deposited the various parts in waste containers of a nearby housing area .

In its judgment of CARDINAL DATE the GPE - ORG , relying in particular on a confession by the applicant and corroborating witness statements , held that the killing of the applicant ’s husband constituted the offence of murder . However , referring to an expert opinion established at the request of the public prosecutor ’s office at FAC by a deputy medical director ( ORG ) of the relevant department of the ORG psychiatric hospital on DATE , ORG considered that the applicant had committed the offence without criminal responsibility . The expert had diagnosed the applicant as suffering from a psychotic disorder that had to be qualified as schizophrenia ( schizophrenia simplex ) and confirmed that she was incapable of understanding the wrongfulness of her act or of acting in accordance with such an understanding due to her mental disorder . She had thus acted without guilt when committing the criminal offence in accordance with LAW ( see Relevant domestic law below ) . The expert further found that the applicant ’s illness had developed gradually over DATE and that a recovery was not to be expected .

In accordance with the findings of the expert , ORG found that the applicant presented a danger to society , since there was a high risk that she would commit further serious unlawful acts , and therefore ordered her placement in a forensic psychiatric clinic ( Articles DATE of LAW , see Relevant domestic law below ) . ORG specified that since the applicant did not recognise that she was suffering from schizophrenia and refused all medication , her continued detention was necessary and a suspension unjustified .

The applicant ’s appeal on points of law against ORG judgment was dismissed as unfounded by ORG ( ORG ) by a decision of DATE .

The applicant , now DATE , has meanwhile been confined in psychiatric hospitals for DATE .

Following her placement in the psychiatric hospital at ORG , the applicant was transferred on DATE to the psychiatric hospital at ORG , where she stayed until DATE , the date she was transferred to the forensic clinic at Straubing , where she remained until DATE . The attending doctors in the psychiatric hospitals at ORG and Straubing upheld the initial diagnosis of schizophrenia when subsequent reviews of the applicant ’s detention were conducted . Further experts involved in separately conducted guardianship proceedings came to the conclusion that guardianship should be ordered in respect of the applicant and that it was necessary to administer medication used for the treatment of psychotic disorders . An attempt to treat the applicant with anti - psychotic medication was nevertheless discontinued in DATE , due to adverse effects on the applicant ’s health , and the applicant later objected to any further treatment with similar medication . On DATE the applicant was transferred to a psychiatric hospital in GPE .

The applicant ’s placement in a psychiatric hospital has been reviewed DATE since DATE ( compare Article CARDINAL Article CARDINAL of LAW , see Relevant domestic law below ) by the competent ORG at GPE and GPE , which have consistently refused her requests to suspend her detention on probation or grant relaxations of her detention ( PERSON ) . Her related appeals to the relevant ORG in GPE and GPE were to no avail .

In their decisions the domestic courts , having heard the applicant and relying on the statements of the attending doctors at the Taufkirchen / NORP psychiatric hospital , found it established that the applicant was still suffering from schizophrenia , did not show any insight into her illness and its seriousness and objected to the necessary treatment with anti - psychotic medication that would be required for a long - term therapy of her disorder . Since no therapeutic progress had been made , there persisted a risk that the applicant would commit further serious unlawful acts if released . The domestic courts further held that in view of the applicant ’s persisting mental disorder and the seriousness of the crime committed the continuation of her detention was necessary and proportionate .

Within the scope of their DATE reviews the domestic courts also referred on several occasions to external expert opinions which had been commissioned by the applicant ’s lawyer , CARDINAL and further ones in the period from DATE . These experts had found that the applicant ’s personality disorder did not constitute schizophrenia and the negative prognosis as to the danger presented by the applicant could not be confirmed . Several of these experts recommended that relaxations of the applicant ’s detention should be implemented rapidly with a view to examining whether she could cope with life outside the hospital .

For instance , on DATE ORG , in a decision confirmed on appeal , took into account an external expert opinion of DATE obtained by the applicant ’s lawyer , which contested the diagnosis of schizophrenia . Considering that the doctors at the Taufkirchen / Vils hospital had been attending to the applicant for DATE on a DATE basis , whereas the findings of the external expert dated from DATE , the court found no reason to doubt the attending LOC diagnosis and the negative prognosis for the applicant in terms of the likelihood that she would commit further crimes .

In preparation of the DATE review of the applicant ’s detention in DATE , ORG commissioned an external expert opinion by the director of the Straubing district hospital , with a view to clarifying whether there was still a risk that the applicant would commit further unlawful acts , making the continuation of her detention necessary . In his opinion , issued on DATE , the expert found that the applicant was suffering from a schizophrenic disorder ( schizotype Störung ) and that the prognosis , that she was likely to commit further crimes if released , was a negative one . During her continuing placement in the psychiatric hospital she had not shown any serious insight into her illness , and according to the hospital ’s records she had collected and hidden various , sometimes perishable , objects in her room on repeated occasions . The hospital staff ’s attempts to dispose of the collected items had triggered anxiety and despair in the applicant , which showed that the compulsive nature of her mental disorder had lost nothing of its intensity .

In a related decision of CARDINAL DATE ORG pointed out that the applicant ’s statements on the occasion of the hearing had confirmed the thorough and well - founded assessment by the external expert , which was also in line with the initial assessment of the applicant by the experts in DATE . For this reason the court found that there was nothing to indicate a positive prognosis in respect of the applicant if released . The court specified that it was unable to share the opinion of a further external expert heard during the proceedings at the applicant ’s request , who suggested that relaxations of the latter ’s detention could be envisaged on the ground that her deed had been related to a specific conflict situation between her and her husband , which would not be reproduced . In the court ’s view the applicant presented a potential danger to any housemate who interfered with her compulsive hoarding if she was released .

In view of the discrepancies between the external expert opinion commissioned by ORG in DATE and the several external expert opinions obtained by the applicant ’s lawyer , the latter obtained a further expert opinion ( GPE ) from the head physician of the general psychiatric department of the Rhineland clinics at LOC , which was rendered on DATE and supplemented on DATE . This expert found that while the applicant was suffering from a complex personality disorder ( schizothyme NORP ) and showed a pathological compulsive personality structure ( anankastisch strukturierte PERSON ) there was nothing to establish that her disorder constituted a schizophrenic psychosis or schizophrenia ( schizophrenia simplex ) . The expert emphasised that the related initial diagnosis of DATE , as upheld during the applicant ’s continued detention by the attending doctors , was most likely wrong .

’s assistant prior to her marriage , and thereafter had taken care of her family and raised CARDINAL children . She regretted and did not show any tendency to trivialise the offence she had committed . The insufficient therapeutic progress made during her detention was mainly due to the fact that the attending doctors had made further therapeutic measures subject to the applicant ’s treatment with anti - psychotic medication , to which she had objected . In the expert ’s opinion the applicant ’s personality disorder did not require such medication and there was no justification for making it a precondition for further therapeutic measures or for the applicant ’s release on probation . If released on probation the applicant had the opportunity to live with and care for her mother , and in addition she had the lifelong prospect of being integrated into her twin sister ’s farm household where she could participate in farming chores . In the light of the above , the expert concluded that in the applicant ’s case there was a low risk of reoffending , that her prognosis was most likely positive in terms of likelihood to commit criminal offences if released , and that her continued detention in a psychiatric hospital pursuant to LAW was no longer justified .

ORG addressed this expert opinion within the scope of a review of the applicant ’s detention in DATE . The court noted in its related decision of DATE that the expert ’s findings and his conclusion that the applicant ’s continued detention in a psychiatric hospital under LAW was no longer justified contradicted the assessments of the applicant by the attending doctors at the Taufkirchen / Vils hospital over DATE , as well as those of the external expert opinion commissioned by the court in DATE , and its recommendations should therefore not be followed . In the court ’s opinion the expert failed to establish that there was no risk of the applicant being confronted with new situations of conflict if released which , given her disorder , might result in further criminal offences .

ORG , by a decision of DATE endorsing ORG reasoning , dismissed the applicant ’s appeal . ORG found in particular that in view of the applicant ’s resurgent addiction to compulsive hoarding , as evidenced by the attending doctors at the Straubing district hospital in a statement dated DATE , it could not be excluded that the applicant , once released , would be confronted with conflict situations in her personal environment similar to the one that had been the origin of her husband ’s murder . Having regard to the numerous expert opinions and due to the fact that the applicant had been transferred to the Straubing district hospital in DATE , ORG took the view that it had not been necessary to commission a further external expert opinion at that point in time .

By a decision of ORG dated DATE , as confirmed by ORG decision of DATE , the applicant ’s renewed request for a suspension of her detention was refused . In their decision - making the courts again opposed the findings of the external expert opinion of DATE and relied on statements by the attending doctors indicating that the applicant was continuing her compulsive hoarding and did not show any insight into her illness .

On DATE ORG dismissed a further request by the applicant to have her detention suspended on probation ( see Article PERSON and LAW of LAW ) and held that a further similar request would be inadmissible if made within DATE .

Relying on a statement of the Straubing psychiatric hospital of DATE , ORG found that it was established that the applicant was suffering from a schizophrenic disorder ( schizotype LAW ) and that her therapy had not led to any progress that would allow a positive legal prognosis . In particular , the applicant did not show any insight into her illness or its seriousness and objected to treatment with the medication which would be required for long - term therapy for her disorder . In view of these findings , ORG held that for the time being the risk persisted that the applicant would commit further serious unlawful acts if released on probation and that thus her continued placement in a psychiatric hospital was proportionate .

On DATE ORG dismissed an appeal by the applicant against ORG decision . ORG specified that the applicant ’s continued detention was still proportionate . The principle of proportionality required that placement in a psychiatric hospital only continued as long as it served its purpose and as long as that purpose could not be achieved by a less severe measure . The longer the detention lasted the higher were the standards for scrutiny as to whether its duration was still proportionate to the gravity of the offences committed by or to be expected from the detained person and to the danger he or she presented to society . Having regard to the ORG statement of DATE confirming that the applicant could be expected to commit further serious unlawful acts if released and as long as the applicant was not following a successful course of therapy , her continued detention was justified in view of the threat she still posed to society . Furthermore , since there was no indication that the applicant ’s condition would change in the near future , ORG decision to set a time - limit of DATE before which the applicant could make a new request for suspension of her detention pursuant to LAW did not pose a problem .

ORG also argued that the divergent expert opinions obtained by the applicant in the past had already been the subject of her previous requests for suspension of her detention and had been addressed by ORG decision of DATE . Referring to its assessment of the applicant ’s complaint in this previous decision , ORG confirmed its conclusion that the continued detention of the applicant was justified . In the instant case it had not been necessary to obtain a further psychiatric expert opinion , since the court did not even consider suspending the applicant ’s detention on probation . Furthermore , the DATE period as stipulated in LAW had not elapsed since the last external psychiatric expert opinion had been obtained by the competent courts on DATE .

By written submissions dated DATE the applicant lodged a constitutional complaint against the decisions of ORG of DATE and of ORG dated DATE .

She alleged in particular that in view of the several external expert opinions contesting the diagnosis of schizophrenia and confirming that her criminal prognosis was positive , her continued detention in a psychiatric hospital was disproportionate . The domestic courts’ failure to thoroughly examine the expert opinions commissioned by her lawyer , the global reference to previous court decisions rejecting the applicant ’s requests for a suspension of her detention , and the ORG refusal to obtain a decisive expert opinion showed that their decision - making had been arbitrary .

On DATE the ORG declined to consider the applicant ’s constitutional complaint ( file no . DATE ) on the ground that it had no prospect of success . However , ORG pointed out that in view of the fact that the last external expert opinion had been obtained by the relevant courts in DATE , the requirement to obtain the best possible clarification of the circumstances of a case as reflected in LAW necessitated the commissioning of a new opinion by an external expert who had not yet been involved in the case at hand with regard to the upcoming review of the applicant ’s detention .

ORG decision was posted on DATE .

Following the applicant ’s transfer to the GPE psychiatric hospital on DATE occasional relaxations of her detention were granted , such as accompanied exits from the clinic .

On the occasion of the subsequent review of the applicant ’s detention , the now competent ORG , by a decision of DATE , after hearing the applicant and relying on an opinion by the GPE district hospital of CARDINAL DATE , again ruled that the applicant should remain in a psychiatric hospital . The attending doctors had confirmed the diagnosis of schizophrenia and found that her behaviour was characterised by an inability to show emotionally adequate reactions and a lack of motivation , accompanied by increased fatigue . The applicant ’s state of health had reached a certain stability in the protected hospital environment that might be at risk if she was subjected to pressure . Referring to the external expert opinion obtained by the applicant on DATE , as supplemented on DATE , the court found that , even taking into account that the applicant ’s victim had been her husband her illness was so serious that it could not be established that the crime had been an isolated event . The danger the applicant posed to society resulted from her illness , and since she had not made any progress in her therapy , there was still a risk that she would commit further criminal offences if released .

The applicant ’s related appeal was dismissed by ORG on DATE , confirming that the applicant ’s placement in a psychiatric hospital was proportionate in view of the danger she still presented to society . However , ORG pointed out that ORG had not based its decision on a new external expert opinion as required by LAW after every DATE period of a detainee ’s committal to a psychiatric hospital . While failure to comply with that requirement did not give the applicant the right to be released , any decision to continue confinement in a psychiatric hospital following the expiry of the DATE period that was not based on a new external expert opinion had to be regarded as provisional until a decision in accordance with that requirement had been rendered . ORG held that therefore ORG was obliged to proceed immediately to a new review of the continuation of the applicant ’s detention on the basis of a new external expert opinion .

On DATE ORG ordered an external expert opinion with a view to clarifying whether the applicant was likely to reoffend , what type of offences could be expected and what would be the appropriate therapeutic and accompanying measures to diminish the risk of reoffending . The applicant ’s objection of DATE to the expert , who had been appointed at her own request , was rejected by a decision of ORG of DATE , and her related complaint was dismissed by a decision of ORG of DATE .

By a further decision of DATE ORG again ordered that the applicant ’s confinement in a psychiatric hospital be continued , and set the next review of the applicant ’s detention for DATE . The court pointed out that the external expert opinion commissioned on DATE had still not been rendered , due to the applicant ’s repeated objections to an examination and to the appointed expert . Relying on a statement of the GPE district hospital of CARDINAL DATE confirming that the diagnosis of schizophrenia for the applicant remained unchanged , that she still did not show any insight into her disease and that she was refusing the necessary medication , the court found it established that the risk persisted that the applicant would reoffend and therefore a release , even on probation , could not be envisaged . In the court ’s view , the expert opinions obtained by the applicant which were at variance with these findings did not lead to a different conclusion .

By a decision of CARDINAL DATE ORG dismissed the applicant ’s related appeal against ORG decisions of DATE . As regards her objection to the appointed expert , the court held that there were no objective grounds to doubt the latter ’s impartiality . Concerning the applicant ’s continued detention , ORG , having regard to the statements of the GPE district hospital of CARDINAL DATE as well as a statement by ORG , found it established that the risk persisted that the applicant would commit similar offences if released . Referring to the reasoning in its decision of CARDINAL DATE ORG further reiterated that the confinement was still proportionate . It specified that it had not been able to base its decision on the required new external expert opinion , due to the applicant ’s obstructive behaviour .

The external expert opinion dated DATE was finally submitted to ORG on DATE . Following examination of the applicant and taking into account the partly conflicting expert opinions previously established , as well as the statements of the attending doctors at the relevant psychiatric hospitals , the expert concluded that the applicant was suffering from schizophrenia which , however , did not meet the characteristics of the previously diagnosed schizophrenia simplex but had to be qualified as so - called undifferentiated schizophrenia ( undifferenzierte PERSON ) . According to the expert , an assessment of all relevant factors led to the conclusion that the prognosis for the applicant was still negative , since there persisted a risk that she might commit offences involving bodily harm towards persons in her personal environment in particular in the event she was subject to pressure . The expert , while pointing out that anti - psychotic medication was no longer essential , recommended that the applicant ’s psychiatric treatment be continued . Furthermore , relaxations of the applicant ’s detention should be envisaged and gradually increased over a period of DATE , in order to enable the applicant to confront and learn to deal with situations of stress . In the event these relaxations proved successful , she could be transferred to an appropriate therapeutic institution or an elderly people ’s home . Following a stay of DATE in such an institution under therapeutic supervision a reunion with her relatives might be considered , subject to consultation with all parties concerned .

The German Criminal Code distinguishes between penalties ( PERSON ) and socalled correction and prevention measures ( Maßregeln der Besserung und GPE ) to deal with unlawful acts . Penalties ( see Articles CARDINAL et seq . of LAW ) consist mainly of prison sentences and fines . The penalty is fixed according to the defendant ’s guilt ( LAW ) . Measures of correction and prevention ( see Articles CARDINAL et seq . of LAW ) consist mainly of placement in a psychiatric hospital ( LAW ) or a detoxification facility ( LAW ) or in preventive detention ( LAW of LAW ) . The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them . Placement in a psychiatric hospital may be ordered against offenders who have acted without or with diminished criminal responsibility . The measure must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants concerned , as well as to the danger they present ( LAW ) .

Pursuant to LAW , a person who upon commission of a criminal offence is incapable of appreciating the wrongfulness of an act or of acting in accordance with such appreciation due to a pathological emotional disorder , profound consciousness disorder , mental defect or any other serious emotional abnormality , acts without guilt .

Article CARDINAL of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility pursuant to Article CARDINAL , the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive assessment of the defendant and his act reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public .

Pursuant to Article PERSON of the NORP Code of Criminal Procedure , if there are strong grounds to assume that while lacking criminal responsibility or in a state of diminished responsibility someone has committed an unlawful act and that his committal to a psychiatric hospital or to an institution for withdrawal treatment will be ordered , the court may , in a committal order , direct that he be provisionally committed to CARDINAL of these institutions if public security so requires .

Article CARDINAL of the Code of Criminal Procedure stipulates that if the public prosecutor does not conduct criminal proceedings because of the perpetrator ’s lack of criminal responsibility or his unfitness to stand trial , it may file an application for an order imposing measures of correction and prevention on their own , if this is admissible by virtue of a statute and the order is to be anticipated in the light of the outcome of the investigations ( procedure for preventive detention ) .

Article PERSON of the Criminal Code governs the duration of detention . If the court considers that following the commencement of detention in a psychiatric hospital the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate , it declares the measure terminated ( Article CARDINAL § CARDINAL ) .

Article CARDINAL of LAW provides for the review of a person ’s detention , inter alia , in a psychiatric hospital . The court may review at any time whether the further execution of the detention order should be suspended on probation . It is obliged to do so within fixed time - limits ( § CARDINAL of Article CARDINAL ) . For a person detained in a psychiatric hospital , this time - limit is DATE ( § CARDINAL of Article CARDINAL ) . The court may shorten these time - limits . Within the scope of the stipulated review periods it may fix time - limits within which requests for a review are inadmissible ( § CARDINAL of Article CARDINAL ) .

Article CARDINAL § CARDINAL of LAW specifies that as part of its examinations pursuant to section CARDINAL of LAW the court shall obtain the opinion of an expert after DATE period of committal to a psychiatric hospital . The expert shall not , within the framework of such a committal , have been involved in the treatment of the person committed , nor shall he be working in the psychiatric hospital in which the person committed is located .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in PERSON .

On DATE the applicant filed for divorce .

After CARDINAL remittals to the first instance court , the proceedings ended on DATE when ORG rejected the parties’ petition for review , after the lower instances had pronounced the parties’ divorce , granted the custody of the couple ’s son to the applicant . The father ’s right of access was also regulated and the matrimonial property divided , allowing the applicant and the son to stay in the couple ’s flat against compensation payable to the ex - husband for his share of the flat . The proceedings thus lasted DATE and DATE for CARDINAL levels of jurisdiction .

The first - instance decision adopted after the last remittal allowed the customary PERCENT deduction from the value of the flat on account of the mother ’s statutory obligation to lodge her minor son in it , which would have reduced her debt to the ex - husband by MONEY ( ORG ) . However , the second - instance court annulled this advantage because it miscalculated the son ’s age , holding that he was no longer a minor . ORG rejected the applicant ’s objection to the latter ruling as the son in the meantime had become of age .


Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicants , whose names and dates of birth appear in the appendix , are all NORP nationals . They are represented before the ORG by PERSON K. ORG , a lawyer practising in GPE .

The applicants were shareholders of a plot of land located in GPE , GPE .

On an unspecified date GPE ( hereinafter “ GPE ) expropriated the applicants’ plot of land and paid them the sum of MONEY ( TRL ) in compensation for expropriation .

On DATE the applicants initiated proceedings against the Municipality before ORG seeking additional compensation .

On DATE the first - instance court awarded the applicants additional compensation of ORG plus interest at the statutory rate accruing from DATE .

On DATE the applicants commenced enforcement proceedings against the Municipality .

On DATE , on an appeal by the Municipality , ORG quashed the judgment in part in respect of some of the applicants due to procedural irregularities and remitted the case to the first - instance court .

On DATE ORG remedied the procedural irregularities indicated by ORG and awarded additional compensation to the applicants on the same terms as determined in its previous judgment .

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

DATE GPE made certain payments to the applicants in several instalments in the total sum of GPE CARDINAL . On DATE ORG declared that the applicants had an outstanding claim of GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL as of that date .

On DATE the applicants signed an agreement with the GPE whereby the latter agreed to make the outstanding payments by DATE with the proviso that the applicants renounce PERCENT of their claims and discontinue all enforcement proceedings .

The outstanding payments for additional compensation were made in DATE and DATE by the GPE .


Preliminary objection rejected (victim);Violation of Art. 14+P1-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant , who was born out of wedlock in DATE , is an NORP citizen and resides at GPE , PERSON .

ORG Until DATE , the applicant lived on a farm at GPE , GPE , which had belonged first to his maternal grandmother and then to his mother , PERSON . When his mother married Mr. PERSON , the applicant remained in the house not only with his grandmother and his mother , but also with her husband and subsequently with their son , PERSON , who was born in wedlock in DATE . At DATE , he left the farm and later he married and settled down QUANTITY away .

The applicant ’s mother died intestate on DATE and left as her heirs , apart from the applicant , her husband and her second son . According to the provisions of LAW , the widower was entitled to a CARDINAL part of the inheritance ( LAW ) and each of the sons ( irrespective of their illegitimate or legitimate birth ) to CARDINAL thereof ( Articles CARDINAL and CARDINAL ) . In proceedings commenced ex officio before ORG ( Bezirksgericht ) , the applicant , his step - father and his CARDINAL - brother stated that they were willing to accept these shares . ORG decided on DATE that the declarations of acceptance were valid .

ORG However , the farm in question was subject to the special regulations in the Carinthian Hereditary Farms Act of DATE ( ORG , ORG , no . CARDINAL , " LAW " ) providing that farms of a certain size may not be divided in the case of hereditary succession and that one of the heirs must take over the entire property and pay off the other heirs ( see paragraph CARDINAL below ) .

The applicant had claimed on DATE that he should be called to take over his mother ’s farm as he was the eldest son . He later submitted that the regulation giving precedence to legitimate children had in the meantime been abrogated , and that both his step - father and his CARDINAL - brother were in any event excluded as being unfit to work the farm , under section DATE ) of LAW ( see paragraph CARDINAL below ) .

ORG On DATE , ORG held a hearing in the presence of the parties . On DATE , it appointed an expert to submit an opinion concerning the following matters : first , the classification of the farm as a " hereditary farm " within the meaning of LAW ; second , its value for the purpose of determining the sums to be paid to the ceding heirs ; and third , the conditions of its exploitation since the death of the applicant ’s mother .

ORG The opinion , dated DATE , was filed with the court on DATE . According to the expert , the farm was subject to the provisions of LAW , and its value was CARDINAL NORP schillings ( ORG ) . However , the property was in a very bad condition and could not by itself provide a sufficient livelihood for a family . After the previous owner ’s death , it had been worked mainly by her widower , who had kept only a few cattle and used all the land for pasture . The grassland had partly run wild and the fields had no longer been tilled .

ORG After a further hearing on DATE , the court decided on DATE that the property had the character of a " hereditary farm " and fixed its value , in accordance with the expert opinion , at CARDINAL ORG . This decision became final , as none of the parties appealed .

ORG The question of the determination of the heir entitled to take over the farm , including the applicant ’s claim that his step - father and half - brother should be excluded for this purpose , was referred to ORG ( PERSON ) in accordance with section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

ORG communicated its file to ORG on DATE . After a hearing scheduled to take place on DATE had been cancelled , ORG returned the file to ORG on DATE , with the request to take further evidence relating to the ability of the applicant ’s CARDINAL - brother to work the farm . The expert opinion was therefore to be supplemented in this respect , and ORG was asked to add its own legal opinion when re - submitting the file ( section CARDINAL(CARDINAL ) of LAW ; see paragraph CARDINAL below ) .

ORG then ordered a supplementary expert opinion which was lodged on DATE . It stated that the conditions of the exploitation of the farm had further deteriorated , some lands having been left to a motor - cross club and some to a neighbour who had deposited various construction materials there . It was therefore hardly possible to speak of an orderly exploitation of the farm .

As regards the ability of the applicant ’s half - brother to run the farm at the same time as continuing with his job as an unskilled worker , the expert answered in the affirmative . Not very much was required to be done on the farm and his workplace was not so far away as to prevent his DATE presence on the property .

ORG At a hearing held on DATE , after several postponements , the parties failed to arrive at any agreement as to who should take over the farm even just for the duration of the proceedings , the applicant ’s step - father and CARDINAL - brother being opposed to the appointment of a curator .

ORG re - submitted the file to ORG in DATE . ORG decided on DATE to declare the applicant ’s claim inadmissible in so far as he sought a ruling that his step - father was excluded from taking over the farm , since the latter had not in fact maintained that he was entitled to do so . As regards the claim for exclusion of the applicant ’s CARDINAL - brother , ORG found that he was neither prevented by his profession from working the farm , nor incapable of doing so at the same time as continuing with his job . Furthermore , he could not be held responsible for the negligent exploitation since his mother ’s death because it was his father who had run the farm in the meantime .

ORG The applicant appealed against this decision to ORG ( Oberlandesgericht ) , claiming that certain evidence had been disregarded by ORG when refusing the exclusion of his CARDINAL - brother . He also submitted that the provision in section CARDINAL(CARDINAL ) of LAW giving precedence to legitimate children ( see paragraph CARDINAL below ) had been abrogated by the new version of LAW , enacted in DATE , and by LAW . He requested the court to submit the question of the constitutionality of the provision to ORG ) .

ORG dismissed the appeal on DATE . After confirming ORG finding that the applicant ’s CARDINAL - brother was not excluded , it stated that it had no doubts as to the constitutionality of the provision giving precedence to legitimate children . In its opinion , the provision had an objective justification because it was a peculiarity of the rural family and economic structure that legitimate children lived with the family on the farm , whereas illegitimate children were not infrequently brought up elsewhere and therefore did not have the same close link with the farm as legitimate children . This was also the situation in the present case . ORG therefore saw no reason to submit the issue of constitutionality to ORG .

ORG The applicant appealed against this decision to ORG ( Oberster Gerichtshof ) , adducing essentially the same arguments as before ORG . ORG rejected the appeal by a decision of DATE , on the ground that it was directed against a decision of ORG confirming a previous decision of ORG ; in such a case , an appeal is admissible only when a decision is clearly contrary to law or inconsistent with the file , or when there has been a procedural defect entailing nullity of the proceedings . As to the first condition , ORG denied that section CARDINAL(CARDINAL ) of GPE had been abrogated by LAW , as amended .

ORG also held that there was no reason to submit the matter to ORG , on the following grounds .

As regards the conformity of section CARDINAL(CARDINAL ) with the constitutional provision in LAW CARDINAL ( article CARDINAL ) was applicable only in relation to the enjoyment of the rights and freedoms set forth in the LAW . In its opinion , the LAW did not deal with the question of hereditary succession , and LAW No . CARDINAL ( PCARDINAL - CARDINAL ) , which secured the right to the peaceful enjoyment of possessions , did not exclude regulations providing for different rules of succession according to birth in wedlock or out of wedlock .

Furthermore , there was no doubt as to the compatibility of section CARDINAL(CARDINAL ) with the constitutional principle of equality . This principle required that legislation make no legal distinction based on the personal status of an individual unless this was justified by objective reasons . The impugned regulations in LAW did not , however , appear to be unjustified . Similar provisions also existed in the provincial legislation of GPE ( ORG ) and in the federal legislation for the other provinces ( Anerbengesetz ) and these limited illegitimate children ’s rights even further , in that they could take over a hereditary farm only if they had been brought up on it .

The preparatory materials on this legislation showed that the precedence accorded to legitimate children was based on convictions of rural society . Neither was the regulation in question contradicted by attempts to assimilate the legal position of illegitimate children to that of legitimate children , because it reflected the special convictions and attitudes of the rural population which , among other things , also affected the legal position of the widower . Furthermore , ORG observed , the family was an important element of the legal organisation of human relationships . Having regard to all these circumstances , it could not be said that the regulations contained in LAW were not based on objective considerations .

ORG After LAW born out of PERSON , of DATE , had entered into force in respect of GPE with effect from CARDINAL DATE , the applicant again appealed to ORG , asking it to reconsider its decision of DATE . LAW provides that " a child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father ’s or mother ’s family , as if it had been born in wedlock " . However , GPE ratified that Convention with the following reservation :

" In pursuance of LAW , the Republic of GPE reserves the right not to accord to a child born out of wedlock , as provided for in LAW , the same right of succession in the estate of its father and of a member of its father ’s family , as if it had been born in wedlock . "

On DATE , ORG rejected the appeal as inadmissible , having regard to the binding effect of its previous final decision and to the absence of a legal possibility to re - open the procedure .

ORG The first - instance proceedings were resumed in DATE . On DATE , a judicial settlement was reached between the applicant and his CARDINAL - brother whereby the applicant renounced any claim to take over his mother ’s hereditary farm , which would pass to his CARDINAL - brother . In return , he was to receive a certain piece of land which had been promised to him by his mother during her lifetime , but no other compensation .

The judicial proceedings in the hereditary case were then terminated on DATE by the transfer ( GPE ) of the title to the whole farm to the applicant ’s half - brother .

ORG The implementation of the above settlement was left to subsequent agreement between the parties , which they concluded on CARDINAL DATE .

However , the separating - off of the piece of land , which consisted of forest , assigned to the applicant under the agreement still required the approval of certain administrative authorities , including in particular the competent forestry authority , having regard to the provisions of ORG , no . CARDINAL ) . Certain difficulties arose in this respect . The piece of land was not sufficiently large for its separating - off to be permissible under the above Act except in the case of a predominant public interest , the existence of which the authority denied . The difficulties were apparently overcome after ORG had in a different case found the relevant provisions of ORG to be unconstitutional .

The land was then registered in the applicant ’s name in the official land register . This has been confirmed in an extract from the land register , dated DATE .

ORG The relevant provisions of LAW read as follows ( translation from NORP ) :

" Capacity to inherit can be determined only when the estate actually passes . This is generally when the de cuius dies ( LAW ) . "

" Once he has accepted the inheritance , the heir represents the de cuius in respect of the estate . Both shall be regarded as being one and the same person as regards third parties . Until the heir has accepted the inheritance , the estate shall be treated as if it were still in the deceased ’s possession . "

" Where there is CARDINAL heir , they shall be regarded , in respect of their joint right to inherit , as being CARDINAL person . Until the estate is transferred by court order , the heirs shall be jointly and severally liable . The extent to which they shall be liable thereafter is laid down in the chapter on taking possession of the estate . "

ORG The Carinthian Hereditary Farms Act , while leaving unaffected the general rules in LAW on the determination of hereditary shares , regulates the attribution of these shares in cash or in kind .

The following provisions of this LAW are relevant ( translation from NORP ) :

" If the estate of the owner of a farm devolves on several persons , CARDINAL person , the principal heir ( Anerbe ) , may inherit the farm and its equipment ... "

" The principal heir shall be determined according to law and the order which it prescribes for the devolution of estates . When there are several heirs and no agreement can be reached among them , they shall be called to take over the farm in the following order :

( CARDINAL ) In general , male heirs shall take precedence over female , and older over younger heirs of the same sex ; lots shall be drawn between heirs of DATE . Those more closely related shall , however , take precedence over those more distantly related .

( CARDINAL ) Children related by blood shall always take precedence over adopted children and legitimate children over illegitimate children .

( CARDINAL ) The following shall , in general , be excluded from taking over the farm :

( b ) persons who , by reason of a mental or physical disability , seem incapable of running the farm themselves ,

( d ) persons who are prevented by their profession from managing the farm on the spot and working it in person .

... The decision regarding ... the existence of grounds of exclusion under paragraphs ( b ) to ( e ) shall be reserved to the court of first instance ( PERSON and GPE ) , to which ORG ( Bezirksgericht ) shall submit the file on the administration of the estate , together with its own opinion . "

" When the estate is being divided , the farm ( section CARDINAL ) shall devolve on the principal heir , who shall become the estate ’s debtor for the value of the farm free of charges . "

" ( CARDINAL ) The value of the farm shall be determined by agreement among the persons concerned .

( CARDINAL ) If no such agreement can be reached , the court shall call on experts to make an assessment , shall hear the municipal council and the parties and shall determine on an equitable basis the value of the farm in such a way that the principal heir is not burdened with undue financial difficulties ( wohl bestehen kann ) . "

" ( CARDINAL ) The law on reserved portions ( Articles CARDINAL and CARDINAL of LAW ) is not affected by the regulations on division of estates .

( CARDINAL ) The value of reserved portions shall be assessed with reference to the value of the farm , determined in accordance with section CARDINAL(CARDINAL ) ... "

ORG To meet social changes that have occurred in DATE , the Federal Minister of ORG has prepared CARDINAL Bills , CARDINAL for all provinces except GPE and LOC and another concerning only LOC . The latter PERSON was , in accordance with the usual practice , the subject of a consultation procedure in DATE . It is being amended in the light of the views expressed and will be laid before ORG in the near future . Section CARDINAL of the PERSON reads as follows ( translation from NORP ) :

" If the deceased was the sole owner of the farm , the person taking it over shall be determined according to law and the order which it prescribes for the devolution of estates . If there are several heirs and no agreement has been reached among them , they shall be called to take over the farm in the following order :

ORG Heirs who have been trained as farmers shall take precedence over those who have not . If several heirs have been trained as farmers , those who were brought up on the farm in question shall take precedence over those who were not .

Children , including adopted children , of the deceased shall take precedence over a surviving spouse ; a surviving spouse shall , however , take precedence over descendants who were not brought up on the farm and over other relatives . "

The explanatory report states that this provision is designed to eliminate , inter alia , the disadvantages suffered by illegitimate and adopted children as compared with legitimate children .