The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government were represented by their Agent , PERSON , succeeded by PERSON P. ORG as from DATE .

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

The applicant submits that on DATE he waited for a visitor in front of a house in which his flat was situated . CARDINAL policemen approached him and asked for his citizen ’s card ( , , občiansky preukaz ” ) . The applicant replied that the term citizen ’s card used by the police was incorrect and that in accordance with LAW ) of LAW they should have asked him for a document permitting his identification ( , , doklad totožnosti ” ) . The applicant further stated to the police that they should respect Section CARDINAL(CARDINAL ) of LAW . The policemen informed the applicant that he would be brought ( , , predvedený ” ) to a police station and called a police car . The applicant submits that prior to the arrival of the car he spoke with CARDINAL neighbours CARDINAL of whom had indicated to the policemen who the applicant was .

The applicant was transported to a police station where he was searched and placed in a cell . He was released TIME after his identity had been checked .

A police report established on DATE indicates that the police on duty spotted a man who moved among parked cars and then crossed the street at TIME As they considered his behaviour to be suspicious , the police decided to check his identity . The man informed the police that he was standing in front of the house in which he lived and that he had no document on him permitting to show his identity . He told the police that they had no right to control him and that he would file a complaint about them . The police then called a police car and informed the man that he would be brought to a police station in accordance with LAW . Upon the arrival at the police station the man was searched for security reasons . According to the report , the police checked the applicant ’s identity in the relevant register and released him on TIME

On DATE the applicant complained about the incident to ORG . He alleged , in particular , that the police had proceeded unlawfully , and that he had been subjected to degrading treatment in that he had been searched and placed in a cell . The applicant further expressed the view that his apprehension related to the fact that the Prime Minister had filed a criminal complaint against him in DATE . That criminal complaint concerned the alleged applicant ’s attempt on the Prime Minister ’s life .

On DATE ORG of ORG dismissed the applicant ’s complaint as being unsubstantiated . The letter stated that the policemen had committed no offence and that there was no reason for taking any further action on the applicant ’s complaint .

On DATE the applicant filed a complaint with the Bratislava I ORG . On DATE the latter sent the case back to ORG of ORG with the instruction to carry out further investigation into the case .

According to a police report , on DATE a police officer asked CARDINAL persons living in the same house , including the next door neighbour of the applicant , whether they knew the latter . No one admitted knowing the applicant .

On DATE ORG of ORG informed the applicant that no criminal offence had been committed in the context of his transport to a police station on DATE , and that any minor offence which might have been committed on that occasion had become statute - barred .

On DATE a public prosecutor of the Bratislava I ORG dismissed the applicant ’s complaint of CARDINAL DATE on the ground that the applicant lacked standing to file it . The decision stated that the public prosecutor had nevertheless examined the facts of the case and concluded that ORG of ORG had acted in accordance with the law .

On DATE the applicant challenged this conclusion before ORG .

On DATE the latter dismissed the complaint . The letter stated , with reference to the documents included in the case file , that CARDINAL policemen had asked the applicant to prove his identity , on DATE at TIME , while he was standing in the street in front of the entry of a house . The public prosecutor further established that the applicant had refused to comply with the request and that he had indicated to the policemen that they had no right to do so . The policemen therefore transported the applicant to a police station with a view to establishing his identity .

The public prosecutor ’s letter further indicates that the police were entitled to check the applicant ’s identity in accordance with LAW ) of LAW , and that the CARDINAL policemen did so as they considered that the applicant had moved in a suspicious manner in the vicinity of parked cars and because he wore torn jeans . As the applicant had refused to establish his identity , the policemen had brought him to a police station in accordance with Section CARDINAL(CARDINAL ) of LAW . The applicant was released on DATE at TIME , after his identity had been established . The public prosecutor further found unsubstantiated the applicant ’s allegation that his neighbours had informed the CARDINAL policemen who the applicant was .

The public prosecutor ’s letter of DATE also indicates that the police subsequently contacted the applicant ’s neighbours and that the latter denied knowing the applicant . As to the search of the applicant , it was in conformity with LAW ) of LAW . There was no indication that there was a link between the applicant ’s above apprehension and the activities of the Prime Minister or of the secret service as alleged by the applicant .

On DATE the applicant filed a complaint to ORG . He alleged , inter alia , that he had been identified by a neighbour at the moment of his apprehension . The applicant further stated that he had thus offered assistance to the police with a view to establishing his identity . He requested that the neighbour be heard and maintained that his deprivation of liberty had been contrary to LAW in that , in particular , the police had deprived him of liberty without any relevant legal ground .

The complaint was transferred to ORG which informed the applicant , on DATE , that his further submissions would not be dealt with unless they contained relevant new information .

On DATE the applicant filed a constitutional petition pursuant to LAW . He claimed that his constitutional right to freedom of movement and his rights under LAW had been violated as a result of the above incident of CARDINAL DATE . The applicant proposed that ORG hear CARDINAL persons who had witnessed his apprehension on DATE .

On DATE ORG dismissed the applicant ’s complaint as being manifestly ill - founded . The relevant part of the decision states :

“ ... the fact that the police availed themselves of their statutory right ( Section CARDINAL of LAW of DATE ) to ask a person to prove his identity where it is necessary for carrying out their statutory duties can not result in a violation of LAW . ”

Pursuant to Article CARDINAL ) of the LAW , as in force until DATE , ORG could commence proceedings upon the petition ( , , podnet ” ) presented by any individual or a corporation claiming that their rights had been violated .

According to its case - law under LAW , ORG lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights . It could neither grant damages to the person concerned nor quash the relevant decision or impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .

Under Section CARDINAL(CARDINAL ) and ( CARDINAL ) , the duties of the police comprise , inter alia , the protection of the security of persons and of property and identification of criminal offences and of minor offences as well as of their perpetrators . The police shall also take preventive action within the limits of their competence as defined by LAW .

Section CARDINAL provides that the police shall act within the limits specified in LAW when an offence or a minor offence is being committed or when there is a justified suspicion that an offence or a minor offence will be committed .

Under LAW ) , the police are entitled to ask a person to prove his or her identity by means of a relevant document ( , , doklad totožnosti ” ) when it is necessary for the fulfilment of their duties under LAW .

Paragraph CARDINAL of LAW provides that a person who refuses to prove his or her identity by means of a relevant document may be brought to the police premises with a view to establishing his or her identity .

Pursuant to paragraph CARDINAL of LAW , the police are also entitled to proceed in accordance with Section CARDINAL(CARDINAL ) when the person concerned is unable to prove his or her identity by means of a relevant document , and when such a person is unable to reliably indicate his or her name , date of birth and place of residence despite the fact that he or she was given an opportunity to do so . The police shall assess whether an indication of the name , date of birth and place of residence of the person concerned is reliable in the light of the reasons for which the identity of such a person is to be checked .

Paragraph CARDINAL of Section CARDINAL provides that the police shall draw up a report when a person is brought to their LOC with a view to establishing his or her identity .

Under LAW ) the police are entitled to check whether a person who is about to be brought to their LOC or who was apprehended or arrested carries a weapon .


The applicant was born in DATE and is currently residing in GPE , GPE .

The applicant came to the GPE with his mother and CARDINAL brothers in DATE , when he was DATE , in order to join his father who had already been living there for DATE . He was granted a residence permit ( vergunning tot verblijf ) which was valid for DATE at a time , and , in DATE , he obtained a permanent residence permit ( vestigingsvergunning ) .

On DATE the applicant was convicted by the single - judge chamber of ORG ( arrondissementsrechtbank ) of the offence of breach of the peace ( lokaalvredebreuk ) , and fined MONEY ( NLG – CARDINAL ( ORG ) ) . The same court convicted him on DATE of a violent offence against persons , committed in public ( openlijke geweldpleging ) , and sentenced him to a fine of NLG CARDINAL ( ORG CARDINAL ) and a suspended term of imprisonment of DATE .

NORP In DATE the applicant entered into a relationship with a GPE national . They started living together in or around DATE . A son was born to the couple on DATE .

On DATE the applicant was convicted by ORG ( gerechtshof ) of a violent offence against persons , committed in public , and sentenced to TIME of community service ( in lieu of CARDINAL months’ imprisonment ) .

During the second pregnancy of the applicant ’s partner , the relationship began to suffer tensions . In order to alleviate the situation , the applicant moved out in DATE , but he remained in close contact with both his partner and his son . The pregnancy ended in a miscarriage .

On DATE the applicant got involved in a dispute in a café . He pulled a gun , which was loaded , and shot and hit a man in the leg . Outside the café he then got into a fight with a second man , a friend of his first victim . He pulled a second loaded gun and shot this man in the head . The man died . The applicant was convicted of manslaughter ( doodslag ) and assault ( zware mishandeling ) by ORG on DATE and sentenced to CARDINAL years’ imprisonment .

Whilst serving his prison sentence , from CARDINAL DATE until DATE , the applicant took courses in computer skills , administration and accounting , and he also obtained a retailer ’s certificate ( middenstandsdiploma ) . He further took courses in order to qualify as a sports instructor . His partner and son visited him in prison at least once DATE and regularly more often . A second son was born to the applicant and his partner on DATE , whom he also saw DATE . Both his children have GPE nationality and have been recognised ( erkend ) by the applicant . Neither his partner nor his children speak NORP .

By decision of DATE , the Deputy Minister of ORG ( ORG ) withdrew the applicant ’s permanent residence permit and imposed a DATE exclusion order ( ongewenstverklaring ) on him in view of his conviction of CARDINAL DATE whereby he had been sentenced to CARDINAL years’ imprisonment . The Deputy Minister considered that the interests of public safety and the prevention of disorder and crime outweighed the interest of the applicant in being able to continue his family life with his partner , children , parents and brothers in the GPE .

The applicant lodged an objection ( bezwaarschrift ) against this decision , arguing that the offence in question had been committed long ago in DATE , that he had not reoffended , that there was no indication that he would reoffend , and that his partner and children could not be expected to follow him to GPE . Following a hearing before ORG ( PERSON voor vreemdelingenzaken ) on DATE , on which occasion the applicant was assisted by an interpreter , the Deputy Minister rejected the objection on DATE and ordered the applicant to leave the GPE as soon as he was released from detention .

The applicant appealed to ORG of The Hague , sitting in GPE , submitting that , as there was no risk of him reoffending , there was no necessity to impose an exclusion order on him and that , to do so , amounted to the imposition of a second penalty .

The applicant was released from prison on DATE and subsequently placed in GPE detention ( vreemdelingenbewaring ) with a view to his deportation .

Following a hearing on DATE , ORG rejected the applicant ’s appeal on DATE . ORG did not accept the applicant ’s argument that such a long period of time had elapsed DATE on which his criminal conviction had become irrevocable and the date on which the exclusion order had been imposed , that the Deputy Minister should be deemed to have acquiesced in the applicant ’s continued residence in the GPE . Furthermore , the court did not discern any facts or circumstances capable of justifying a reduction of the period during which the applicant would be excluded from GPE territory . The applicant ’s claim that there was no risk of him reoffending was only based on his own statements and was not supported by the facts , given that he had also been convicted of violent offences in DATE and DATE . In addition , it did not appear that the applicant had put down roots in the GPE and had become dissociated from NORP society to such an extent that he would be unable to return to his country of origin . Finally , ORG considered that the interference with the applicant ’s family life was justified for the prevention of disorder and crime .

The applicant was deported to GPE on DATE . However , it appears that he returned to the GPE soon afterwards , as he was apprehended there on CARDINAL DATE . He was again deported to GPE on DATE , and the request for a provisional measure , which he had lodged with ORG of The Hague in order to suspend his deportation , was declared inadmissible on DATE .

On DATE the applicant requested that the exclusion order be revoked . The Deputy Minister of Justice denied the request on CARDINAL DATE , as well as , on DATE , the objection which the applicant had filed against that denial . The applicant subsequently lodged an appeal , which was declared inadmissible by ORG of The Hague , sitting in GPE , on DATE . No appeal lay against this decision .

NORP The applicant submitted that , prior to his deportation in DATE , he had only been back to GPE once in order to attend the funeral of his grandmother , and that he does not speak the NORP language apart from understanding certain expressions . He only had one uncle in GPE with whom he had no contact .

According to a report drawn up by a psychiatrist in GPE on DATE , the applicant was suffering from psychological problems due to the fact that he was living apart from his family . In particular , the fact that he was missing his children was making him depressed . Treatment began in DATE and was continuing even though some improvement had been noted .

At the relevant time , the decision to withdraw a residence permit and to impose an exclusion order was taken pursuant to sections DATE and CARDINAL of the DATE LAW ( Vreemdelingenwet DATE ) as well as the policy laid down in Chapters ACARDINAL and ACARDINAL of the “ DATE LAW ” ( Vreemdelingencirculaire DATE a body of directives drawn up and published by ORG ) . Underlying this policy is the principle that the longer an alien has lawfully resided in the GPE DATE and the stronger , therefore , his or her ties with the GPE are assumed to be DATE , the more serious an offence must be before it may justify withdrawing a residence permit and excluding the alien from GPE territory ; the authorities thus apply a sliding scale ( glijdende schaal ) .

In accordance with this policy , a residence permit may be withdrawn and an exclusion order imposed on an alien who , at the time of committing the offence , has been lawfully residing in the GPE for CARDINAL but DATE – like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of DATE following a conviction for a serious violent crime or drug trafficking .

If an exclusion order is imposed on the basis of a conviction for a serious violent crime or drug trafficking , this order will in any event be repealed , upon request , if the alien concerned has been residing outside the GPE for a period of DATE .

A person upon whom an exclusion order has been imposed is not allowed either to reside in the GPE or to visit it .


The applicant was born in DATE and lives in GPE .

NORP In DATE criminal charges were brought against the applicant for dissemination of anti - NORP propaganda . On DATE the police searched his home and confiscated certain items – a radio , audio records , books , newspaper clippings and manuscripts – which he had allegedly used in his unlawful activity .

On DATE ORG held that the applicant was not guilty on the ground of insanity and ordered him to be placed in a mental asylum .

On DATE ORG of GPE found that the applicant 's mental health had improved and that he could be released .

On DATE ORG issued a statement to acknowledge that the applicant had been unlawfully persecuted by the ORG . The applicant was reinstated in his rights .

NORP In the course of DATE the applicant made several unsuccessful attempts to recover the property that had been confiscated in DATE . His requests to prosecutors ' offices and the organisations then in possession of the property were rejected .

On DATE the applicant brought a claim for repossession against ORG and ORG of the Voluntary Society for Assistance to the ORG , ORG and ORG . He also brought a claim for damages against ORG .

On DATE ORG of GPE granted the applicant 's claims in part and ordered ORG to pay the applicant MONEY ( RUR ) compensation and RUR CARDINAL by way of legal costs . On appeal , the judgment was upheld by ORG of ORG on DATE .

On DATE the applicant submitted a writ of execution in respect of the judgment of CARDINAL DATE to the registry of ORG .

He was not notified in time whether enforcement proceedings had been opened , or what action had been taken to execute the judgment . For this reason , he issued proceedings against the bailiff in charge of the execution . On DATE ORG found in the applicant 's favour , holding that the bailiff had acted unlawfully . The applicant was also informed that responsibility for enforcement of the judgment had been passed to a different bailiff 's service – ORG of Orenburg .

On DATE ORG issued clarification on how its judgment of CARDINAL DATE was to be enforced . It confirmed that , even though ORG was the defendant in the case , the compensation should be recovered from ORG – the authority liable for debts of ORG . The applicant appealed , insisting that the debtor 's bank account details should be included in the operative part of the judgment to make the enforcement easier . The appeal was dismissed on DATE .

As no progress was made in the enforcement proceedings , on an unspecified date the applicant issued fresh professional negligence proceedings against the bailiff . On DATE ORG of Orenburg examined the complaint and dismissed it . It found that the bailiff had lawfully stayed the enforcement proceedings because an acting Public Prosecutor of the Orenburg Region had initiated supervisory - review of the judgment of CARDINAL DATE . The court stated that under national law , enforcement could be stayed pending supervisory review . The applicant 's appeal was dismissed on DATE by ORG .

On DATE the bailiff attempted to attach the accounts of ORG . ORG challenged the bailiff 's actions in court . The complaint was granted by ORG of Orenburg on DATE . The court concluded that the seizure of the ORG 's assets had been unlawful because , according to the clarifications provided on CARDINAL DATE concerning the enforcement , the debt should have been recovered from the ORG of GPE . The applicant had not been aware of these proceedings , and was not summoned to the hearing . He successfully raised this point on appeal to ORG . The decision of DATE was quashed and a fresh examination of the case was ordered .

On DATE ORG refused the applicant 's application to have the judgment enforced in a different way . His appeal against that decision was dismissed on DATE .

On DATE the bailiff stayed the enforcement proceedings because ORG had requested supervisory - review of the judgment of CARDINAL DATE .

In DATE the applicant learned that the President of ORG had stayed the execution because the supervisory - review of the judgment of DATE had been in progress . The applicant lodged a complaint against the President , which was dismissed on DATE by ORG of GPE as not amenable to judicial review . The applicant was later informed that the stay of execution had been lifted .

On DATE the Senior Bailiff of ORG decided that the execution should be stopped as the writ of execution did not unequivocally identify the debtor . The applicant successfully appealed against this decision : on DATE ORG of Orenburg held that ORG had exceeded her authority when she closed the enforcement proceedings .

On DATE the bailiff responsible for the applicant 's file revoked her decision of CARDINAL DATE commencing the enforcement since the writ of execution did not clearly identify the debtor and its address . The applicant successfully complained to ORG about this decision : on DATE the court ordered the bailiff to proceed with the execution of the judgment .

On DATE the same court ruled that the stay of execution pending the supervisory review was unlawful and ordered the bailiff to continue the execution .

On DATE the bailiff applied to ORG for clarification as to how the judgment should be enforced , what legislation should be applied and which accounts of which branch of ORG should be charged . The court did not satisfy the bailiff 's request as the writ of execution was sufficiently clear , and the court had no competence to advise the bailiff on possible modes of enforcement .

On DATE the acting Public Prosecutor of the Orenburg Region lodged an application for supervisory review of the judgment of CARDINAL DATE on the ground that the compensation should have been awarded against ORG and not against ORG . On DATE the Presidium of ORG granted the prosecutor 's application and quashed the judgments of CARDINAL DATE and DATE . The case was remitted for a new examination .

On CARDINAL DATE ORG of PERSON refused ORG application to lift the attachment of its accounts . Instead , the court ordered that the execution should cease since the judgment debt had been quashed on DATE .

On DATE the ORG gave a new judgment in the case . The applicant was awarded ORG in compensation for the property and ORG in legal costs . The compensation was to be paid by the financial department of ORG . The claims for repossession and non - pecuniary damages were dismissed . The applicant 's appeal against the judgment was disallowed by ORG on DATE .

On DATE the bailiff closed the enforcement proceedings because the award had been credited to the applicant 's bank account on DATE . The applicant challenged this decision in court claiming that he had not received the money . On DATE the NORP ORG established that there was insufficient evidence that the award had indeed been paid to the applicant and annulled the bailiff 's decision to close the enforcement .

NORP By letter of DATE the Government informed the ORG that the award of DATE had been paid to the applicant on DATE .

By letter of DATE the applicant informed the ORG that he had not received the money awarded .

Section CARDINAL of LAW of DATE provides that a bailiff 's order on the institution of enforcement proceedings must fix a time - limit for the defendant 's voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the PERSON , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .


Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s husband died after being hit by a tree in a health resort at PERSON , where he had been staying in a sanatorium . The tree toppled over and fell on the applicant while he was walking on the pavement . CARDINAL other people were injured in the accident .

NORP The police arrived at the scene , examined the tree and took some black - and - white photographs . The police report stated that the tree was partly rotten and the roots had torn . The police heard an eye witness and a post mortem examination of the applicant ’s husband was conducted . ORG ( Prokurator Rejonowy ) opened an investigation into the incident .

On DATE ORG ) discontinued the investigation into the applicant ’s husband ’s death , finding that it had been an unfortunate accident and that no offence had been committed . He established that the tree had fallen in strong winds . The cause of death was a fractured skull . The prosecutor also established that ORG ) was responsible for the condition of trees in the city , and heard evidence from PERSON , ORG ( inspektor do spraw ochrony środowiska ) , who testified that she had carried out a visual inspection of the tree in DATE , together with PERSON who worked for a company specialising in the protection and care of trees and shrubs . She said that the tree had looked healthy and there had been no indication that its removal was required . The prosecutor considered that that assessment was consistent with the examination of the tree after the accident as there were no visible signs that it had been unhealthy or rotten .

The applicant appealed against that decision .

On DATE she obtained an opinion from ORG ( ORG ) on weather conditions in PERSON on DATE . According to the opinion , the wind had been weak or moderate DATE and there had been no violent atmospheric conditions .

On DATE ORG ( Sąd Rejonowy ) allowed the applicant ’s appeal and returned the case to the prosecutor to continue the investigation . It considered that the prosecuting authorities had failed to establish what had caused the tree to fall or to examine whether the visual inspection allegedly carried out by ORG prior to the accident could be considered appropriate . It also pointed to the discrepancy between the police report , which had stated that the tree was partly rotten , and the prosecutor ’s finding that it was healthy . The court instructed the prosecutor to question the police officers who had attended the scene and the persons who had been injured in the accident .

NORP On DATE ORG discontinued the investigation finding that no offence had been committed . From his questioning of the police officers , he established that the tree had looked healthy but that after the accident it had become apparent that it had been partly rotten and had a weak root system . The prosecutor also considered that although ORG had not recorded any violent wind there could have been local gusts . He concluded that the fall of the tree and the death of the applicant ’s husband had not been caused by any negligence on the part of those responsible for maintaining the trees .

On DATE the applicant appealed against that decision .

On CARDINAL DATE the ORG allowed the appeal and remitted the case to ORG . The appellate prosecutor stressed the need to order expert opinions to establish the condition of the tree .

On DATE an expert , ORG , submitted to ORG his opinion on the condition of the fallen sycamore tree ( klon jawor ) . On the basis of the testimonies of the police officers the expert established that the fallen tree was rotten inside and had been totally deprived of its roots . The photographs taken after the accident also showed that the tree ’s root system had already been badly damaged beforehand . On the picture the trunk could be seen to have been completely deprived of its roots , which would not have been the case if the only thing which had caused it to fall had been strong winds . Nevertheless , the expert concluded that it was possible that such damage to the tree had not been visible from the outside , and that persons responsible for tree maintenance could not normally conduct a comprehensive examination of the roots .

On DATE ORG discontinued the proceedings , mainly on the basis of the expert opinion .

The applicant appealed .

On DATE the ORG allowed the appeal and remitted the case to ORG . The appellate prosecutor emphasised that given the gravity of the accident , in which a person had died , all the circumstances had to be comprehensively clarified .

On DATE ORG ordered another expert opinion to determine the exact location of the tree and the owner of the property .

On DATE ORG again decided to discontinue the investigation into the applicant ’s husband ’s death , finding that it had been an accident for which nobody could be held responsible .

NORP The applicant appealed and on DATE the ORG remitted the case to ORG and ordered him to continue the investigation . On DATE the case was transferred to another prosecutor and the prosecutor who had been dealing with the case up to that point was reprimanded for not following the instructions of the appellate authorities and for delaying the proceedings .

On DATE ORG ordered a further expert opinion .

On DATE the expert inspected the scene of the accident and on DATE submitted his opinion to the prosecutor .

On DATE the prosecutor closed the investigation into the death of the applicant ’s husband and on DATE lodged a bill of indictment against PERSON , ORG , with ORG , on charges of having failed to carry out her duty to prevent the sycamore tree from falling , and thereby causing the death of the applicant ’s husband and injuries to CARDINAL other persons .

On DATE the applicant lodged a civil claim with the trial court for compensation in the amount of PLN CARDINAL,CARDINAL under LAW . She also requested the court to begin the trial and hold a hearing . The applicant indicated her wish to act as an auxiliary prosecutor ( oskarżyciel posiłkowy ) .

On DATE the trial court held the first hearing . However , the court failed to examine the admissibility of the applicant ’s civil claim .

On DATE the applicant applied for legal aid as she could not afford to pay for a lawyer of her choice , was in poor health and – given the substantial distance of QUANTITY between her home in GPE and the place of trial DATE it would be difficult for her to commute to hearings . It is not clear whether her application was ever examined .

Subsequently , until CARDINAL DATE the court held hearings at regular intervals , heard evidence from witnesses and ordered an expert opinion . All hearings scheduled thereafter were cancelled owing to the illness of either the accused or the judge rapporteur .

At the next hearing , held on DATE , the composition of the court changed , so the trial had to start from the beginning . Subsequently witnesses were heard and on DATE the trial court ordered an expert opinon . The expert failed to submit his opinion within the time - limit and on DATE the trial court fined him . The expert finally submitted the opinion on DATE .

On DATE the applicant , who had standing in the proceedings as an auxiliary prosecutor , lodged a complaint with ORG ( PERSON ) under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( “ the GPE ” ) .

On DATE the ORG allowed her complaint , found that there had been a breach of her right to a trial within a reasonable time and awarded her ORG CARDINAL,CARDINAL in compensation . It found that there had been several lengthy periods during which the trial court had been totally inactive , for example , no action had been taken for DATE after the bill of indictment was lodged with the trial court .

On DATE the trial court held a hearing .

On DATE it gave a judgment in which it acquitted PERSON after finding that no offence had been committed . It found that she had conducted a proper inspection of the tree prior to the accident and had established that it was healthy . The experts had concluded that the tree looked healthy from the outside and that there had been no signs that the roots were badly damaged . The court considered that the event of DATE was an unfortunate accident which had no direct link with the actions of the accused .

On DATE the applicant appealed against the judgment . She submitted that PERSON did not possess the relevant expertise and had been negligent in the manner in which she had inspected the trees or marked them out for removal . In particular , there was no evidence that the inspections had been carried out on the dates given by the accused . Moreover , the tree had been growing on an escarpment and the roots had apparently been removed during the installation of a gas pipeline directly underneath it . The applicant contended that these elements had not been examined by the trial court .

On DATE the ORG allowed the appeal and remitted the case . It pointed to several inconsistencies in the district court ’s findings as to the relevant facts . In particular , it was not clear to what extent the tree had been leaning or whether the angle had been calculated with reference to the slope or the pavement .

The trial court held hearings on DATE , CARDINAL May and DATE .

On DATE ORG gave a judgment in which it acquitted PERSON It established that she had not been under an obligation to inspect the trees or to prevent them from falling because that was not part of her duties .

The applicant and the prosecutor lodged appeals against the judgment .

On DATE the ORG quashed the judgment and remitted the case . It found that the trial court had failed to analyse the legal regulations in force at the material time . It pointed out that issues concerning trees in public places were the responsibility of the municipal authorities and that they could be held criminally liable for failure to carry out their duties properly . Thus , the Mayor of PERSON was obliged by law to order the removal of trees that were unsafe . Moreover , it appeared from the documents in the file that a gas pipeline had been laid under the tree , making it necessary to remove some of the roots , and that that issue had not been clarified . Lastly , the court noted that the trial court had failed to deal with the complaint , raised by the applicant in her appeal , that her claim for compensation had never been examined .

On an unspecified date in DATE the applicant received from the office of the Mayor of PERSON a reply to her letter requesting compensation for her husband ’s death . The Mayor refused to acknowledge the liability of the municipality and stated that the criminal court had not held the municipality responsible for her husband ’s death . The applicant was further informed that if she lodged a civil claim for compensation it would most probably be stayed until the termination of the criminal proceedings .

The trial court held hearings on DATE , DATE , DATE and DATE .

On DATE it gave a judgment in which it again acquitted PERSON The court established that the root system of the tree in question had been seriously damaged . However the disease had not been visible on the external parts of the tree – in particular on its crown . Thus persons checking the state of the tree could not have established that the tree had become a danger to the public and ordered its removal . Furthermore , the court established that there had been no grounds to believe that since the tree had grown on a slope it had been necessary to take any preventive measures by , for example , installing special supports .

The court considered that there had been many shortcomings in the preparatory proceedings . Consequently , many issues relating to the exact location of the tree , its condition , and whether it had been leaning , had not been elucidated . For example , it was not possible to establish if the roots of the fallen tree could have been damaged during the installation of the gas pipeline because it had not been clear where exactly the tree had been growing . Moreover , the tree , or its part , had not been secured for further examination but had been destroyed immediately after the accident . The photographic evidence was of poor quality , black - and - white , and blurred so the reason for the fall of the tree , and where it actually grew , could not be unambiguously clarified . According to the court , the expert opinions prepared on the basis of such poor evidentiary material could not make it possible to conclude that there had been grounds for removal of the tree or use of supports .

As regards the liability of PERSON the court agreed with the previous findings and concluded that the accused had not been obliged to carry out controls of trees and to order their removal . Although her duties included “ issuing of decisions to remove shrubs and trees ” , such decisions had in fact been given by the Mayor and she had only been preparing files for his examination . The court acknowledged that PERSON admitted to having carried out some controls of the trees together with a specialist . However , it considered that she had been doing so either directly in accordance with instructions of the Mayor or following complaints made by the public .

The court considered that the absence of clear regulations regarding who was responsible for the care of green areas and for carrying out checks of trees amounted to clear organisational negligence on the part of the municipality , for which the accused should not be held liable .

Finally , the court found that the applicant ’s request for compensation had been pointless in the light of the acquittal of PERSON because the obligation to compensate damage could arise only in the event of a conviction .

The applicant and the prosecutor each lodged appeals against the judgment .

OnCARDINAL DATE the ORG upheld the judgment . It agreed with the first - instance court in that , according to her contract of employment , the accused had not been required to undertake any actions aimed at protecting trees from falling . According to the law , the legal responsibility for care of the greenery lay with the municipality which should have secured the means and organised a system to fulfil its obligations . A failure of the municipality to take necessary measures to eliminate a danger to the public could result in criminal liability . The court however underlined that it had not been proved that the carrying out of these duties had been vested in the accused . Thus , she could not be held criminally liable for having failed to do so .

The court also established that taking into account the state of the trees discovered during an inspection on DATE , and the lengthy process of development of pathologies in trees , GPE had not been correctly carrying out the above - mentioned duty of care in respect of its green areas . Nevertheless , the responsibility for that failure could not be attributed to the accused .

ORG judgment was final and binding ( prawomocny ) . However , the parties could lodge a cassation appeal with ORG . On DATE the ORG dismissed the applicant ’s request for legal aid for the purposes of lodging a cassation appeal . The applicant submits that a lawyer of her choice refused to lodge a cassation appeal on her behalf because it had no prospects of success .

Article CARDINAL of the Code of Criminal Procedure provides as follows :

“ The victim may , until the start of the judicial examination at the main trial , lodge a civil claim against the accused in order to determine , within the framework of the criminal proceedings , his pecuniary property claims directly resulting from the offence . ”

Article CARDINAL of the Code allows a deceased victim ’s next - of - kin to institute a civil action under Article CARDINAL .

Article CARDINAL reads as follows :

“ CARDINAL . Before commencing its examination , the court shall reject a civil claim if :

CARDINAL ) NORP it is inadmissible by reason of some special provision ;

CARDINAL ) NORP it has no direct connection with the charges included in the indictment ;

CARDINAL ) it has been filed by an unauthorised person ;

CARDINAL ) NORP it is the object of other proceedings or a valid and final decision ; or

CARDINAL ) a public , local - government social institution or a person who is not an accused in the criminal proceedings needs to be joined as a defendant .

NORP If the civil claim is in proper form , and the circumstances set forth in LAW do not apply , the court shall issue a decision regarding the admissibility of the civil claim .

NORP The court shall not hear the civil claim , even if previously declared admissible , if after it has commenced its judicial examination , any of the circumstances listed in LAW , comes to light .

No interlocutory appeal shall lie against the refusal of the court to declare a civil claim admissible , or the fact that it has not been heard pursuant to LAW . ”


Preliminary objection rejected (ratione personae)

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG The applicant , PERSON , is a NORP citizen , born in DATE .

ORG His parents lived together from DATE until DATE . They were not married and , in accordance with NORP law , only the mother had parental rights over the child . After the parents separated in DATE , the applicant remained with the mother and the father had access to him on a " gentlemen ’s agreement " basis . However , this arrangement did not function well and in DATE the father obtained a specific right of access through the competent authorities .

ORG It appears that a closer relationship developed between the applicant and his father during DATE . The NORP legislation at the time , however , did not provide special procedures for having the custody rights transferred from the mother to the father , and the father introduced an application to ORG ( no . CARDINAL/CARDINAL ) complaining about his situation on DATE . During the proceedings before the Commission , the Custody and LAW DATE ( myndighedsloven , " LAW " , see paragraphs CARDINAL below ) was amended with effect from DATE , so that a court might vest parental custody in the father of a child born out of wedlock , when certain conditions were fulfilled . As a result the ORG , on DATE , rejected the application on the ground that the father could no longer claim to be a victim of an alleged violation of ORG and Reports no . CARDINAL , pp . CARDINAL ) .

ORG The father had regular access to the applicant until DATE , when the applicant apparently refused to return to the mother after a DATE holiday with the father . The social authorities were contacted and , with the consent of all parties , the applicant was placed in a children ’s home . However , he disappeared from the home and returned to the father . On DATE , the father instituted proceedings before ORG of ORG ( ORG ret ) to have the custody rights transferred to him according to the new law . Father and child also went " underground " until DATE , when the father was arrested by the police . He was released on DATE .

ORG On DATE , after the father ’s arrest , the social authorities , with the consent of the mother , placed the applicant in ORG in the county hospital , PERSON . On DATE , the father ’s right of access was suspended . The father ’s appeal against this decision was rejected by ORG on DATE . The applicant disappeared from GPE on DATE and thereafter started to live in hiding with his father again .

ORG In the custody proceedings before ORG of ORG ( see paragraph CARDINAL above ) , the court held on DATE that a transfer of custody to the father was not in the interest of the child .

ORG The applicant ’s father appealed against this judgment to ORG for LOC ( PERSON ) . On DATE , the parties agreed that the applicant should undergo a child psychiatric examination by Professor PERSON . This examination resulted in a report of DATE , in which Professor PERSON concluded ( translation from NORP ) :

" After considering the case , I find it in the best interest of the child that the custody rights remain with the mother . Since the boy is developing nervously it is recommended that he and the mother , after [ the applicant ] has returned to her , get child psychiatric support . ... "

On DATE , ORG upheld ORG judgment . The applicant nevertheless remained in hiding with his father , staying with various families in GPE .

ORG In DATE , after having lived " underground " for DATE , the applicant ’s father again instituted proceedings before ORG of ORG in order to have the custody rights transferred to him . Since he was wanted by the police , on suspicion of having kidnapped the applicant , the father did not attend the hearings in person , but only through his lawyer . Before ORG the applicant ’s mother maintained that the applicant had been harmed due to the abnormal circumstances under which he had lived with his father and that she would accept Professor PERSON ’s recommendation and obtain support from ORG ( den børnepsykiatriske afdeling ) of ORG ( ORG ) , a university and general hospital , for a transitional period ( see paragraph CARDINAL above ) .

In its judgment of DATE , ORG found that the custody rights .

ORG The applicant ’s father appealed to ORG , but on DATE ORG upheld ORG judgment . Leave was subsequently granted by ORG to bring the case before ORG ( Højesteret ) ( see paragraph CARDINAL below ) .

Directly after the hearing in ORG on DATE , at which both the father and the applicant were present , the father was arrested by the police and charged with depriving the mother of the exercise of her parental rights in violation of section CARDINAL , read in conjunction with section CARDINAL paragraphs CARDINAL and CARDINAL , of GPE . The applicant was placed in a children ’s home .

ORG The mother , advised by ORG of GPE and Professor PERSON , and with the recommendation of her family doctor , requested that the applicant , who was by then DATE , be admitted to ORG since it was clear that he did not want to stay with her . On DATE , the applicant was admitted to the Ward by Professor PERSON who was Chief Physician at the LOC . On DATE , ORG recorded its approval , pursuant to section CARDINAL of LAW ( see paragraph CARDINAL below ) , that the applicant was to be placed away from home in accordance with his mother ’s wish .

ORG According to Professor PERSON , who was responsible for the applicant ’s treatment at ORG , the procedure followed in connection with admission was the usual CARDINAL : the holder of the parental rights made the request , the family doctor recommended admission and the responsible chief physician of the ward accepted to admit the applicant .

ORG By letter of DATE to ORG , the applicant ’s father , on behalf of the applicant , questioned the lawfulness of the applicant ’s " detention " at ORG contrary to the applicant ’s wish . He maintained , inter alia , that the provisions of the hospitalisation of LAW Act DATE ( Lov om sindssyge personers hospitalsophold , Act no . CARDINAL of DATE , as amended by Act no . CARDINAL of DATE LAW " ; see paragraphs CARDINAL below ) regarding compulsory admission to hospital had not been observed .

ORG submitted the matter to the Chief Physician at ORG . In accordance with the information he gave , the ORG replied , on DATE , that the applicant had not been admitted in accordance with LAW , but on the basis of a decision by his mother as holder of the custody rights , and that it could not make a determination in the matter .

ORG On DATE , the applicant ’s representatives nevertheless petitioned ORG ( ORG byret ) under chapter CARDINALa of ORG ( retsplejeloven ) ( see paragraph CARDINAL below ) for a decision on the lawfulness of the applicant ’s placement in ORG . The defendant , ORG , pleaded dismissal , maintaining that the applicant had not been subjected to administrative deprivation of liberty under LAW .

ORG In its judgment of DATE , ORG upheld ORG plea for dismissal on the following grounds ( translation from NORP ) :

" Considering that [ the applicant ] ... has been admitted to ORG of ORG , GPE , on the basis of a decision made by [ his mother ] , who is the holder of parental rights , [ the applicant ’s ] detention at ORG is not covered by the [ DATE ] Act and it is therefore not subject to judicial review according to chapter DATE of ORG . For this very reason the petition must be dismissed . "

ORG The applicant appealed , through the father , to ORG arguing , in particular , that if he had not been a minor he could have challenged the lawfulness of his detention in ORG before the courts . He added that , although the holder of the custody rights had , according to section CARDINAL of LAW ( see paragraph CARDINAL below ) , an extensive right to make decisions concerning the child , such a right should be subject to certain restrictions ; a totally involuntary detention ought to be an interference which could only be carried out administratively and thus under the conditions mentioned in LAW ( see paragraph CARDINAL below ) , irrespective of any decision by his mother .

The ORG Attorney ( Kammeradvokaten ) again maintained that the case did not concern administrative deprivation of liberty and was thus outside the scope of chapter DATE of ORG . In the alternative he alleged that , if the case disclosed deprivation of liberty within the meaning of chapter DATE , the father would be unable to act on behalf of the child since at that time he had no , and had never had any , parental rights over the child .

ORG Rejecting the ORG Attorney ’s latter argument , ORG stated in its judgment of DATE ( translation from NORP ) :

" The question whether a minor should be subjected to treatment in a hospital is normally decided by the holder of parental rights and such measures can not be challenged by means of chapter CARDINALa of ORG .

Concerning the treatment of mentally deranged persons , inter alia in public hospitals , special rules apply according to the [ CARDINAL Act ] , cf . chapter CARDINALa of ORG . From what has been established in this case it appears that [ the applicant ] does not suffer from any mental illness and according to the above there has been no question of admittance for treatment of a mental illness . The decision to admit [ the applicant ] to ORG of ORG after the disturbances he has been through and the decision on his temporary stay there were taken by his mother , who has the parental rights over him . The appellant ’s claim for judicial review DATE can not therefore be granted and the decision of ORG to dismiss the case is upheld . "

ORG The applicant ’s representatives asked ORG , according to section CARDINAL of ORG , for leave to appeal to ORG . However , on DATE the ORG refused leave since ORG was of the opinion that the judgment would not be overruled by ORG .

ORG On DATE , PERSON , as representative of the father , also sent copies of the complaints to ORG to ORG , an authority under ORG ) . On DATE , he requested that this authority carry out an investigation of whether the applicant was forced to visit his mother and whether Professor PERSON could lawfully prevent him from visiting the applicant . ORG found the legal issues raised by the father to be beyond its authority , but decided nevertheless , on its own account , to take up the question of how the applicant had been treated from a medical point of view .

ORG In the course of ORG investigation Professor PERSON submitted , on DATE , the following report regarding the circumstances of the applicant ’s stay at ORG to ORG of GPE ( PERSON ) ( translation from NORP ) :

" [ The applicant ] has expressed his dislike of staying here , but at no time has he attempted to run away . We have not been able and have not wanted to prevent him from running away , which he could have done , inter alia , when he left the Ward together with the other children , e.g. to visit museums or to go for a hair cut . Also in this respect he has been in hospital on the same terms as the other patients of the Ward .

The treatment involves environmental therapy at the LOC and regular talks with [ the applicant ] .

At no time has he been given treatment involving medication .

Since DATE , his mother has visited the ORG regularly during the usual visiting TIME on DATE and DATE . Since DATE [ the applicant ] has visited his mother at home . The visits were at first short , but since DATE he has been able to spend the weekends there . DATE were spent with his mother and so was New Year ’s Day .

I wish to add that the patients at the LOC are not ‘ compulsorily ORG in the usual sense of the expression in [ LAW ] . ORG of ORG is an ordinary hospital ward run in principle on the same conditions as the other wards of ORG . As the LOC is situated on the seventh floor in a building with a number of somatic wards , the main entrance of each block has a latch ( smæklås ) to prevent the children of the ward , some of whom may be inclined to rush around impulsively , from running about in the hospital or running into town , and possibly being a nuisance to the patients in other wards of the hospital or exposing themselves to danger . This measure is to be compared with the locked front door in a family house . As mentioned above , the children often go out with the staff , e.g. to playgrounds or to visit museums . During their stay in hospital the children are not normally confined to bed , and the LOC offers many possibilities for different activities under homelike conditions . Thus it is entirely misleading ... to talk about ‘ institutional detention’ . "

The treatment given to the applicant at the ORG was explained in more detail by Professor PERSON in a report to ORG on DATE ( see paragraph CARDINAL below ) ( translation from NORP ) :

" The treatment consisted of environmental therapy and individual talks . In the environmental treatment endeavours were made to let him experience relaxed , homelike surroundings together with adults who were neutral in relation to the previous conflicts concerning custody . ORG were also made to protect him from pressure by the media , which however could not be completely averted , because when he went outside the LOC he could read the headlines of the newspapers , and through a completely free and very extensive correspondence he could follow the media reports . As a whole , PERSON seemed to be happy and secure in the LOC , and the objective of the environment therapy had been largely achieved at the time of discharge . However , at that time PERSON had a continued need for ambulatory therapy of individual talks . "

In his report , Professor PERSON also pointed out that the applicant had been allowed to pay visits to his father in prison DATE since DATE ( in total CARDINAL such visits took place ) .

ORG The applicant ’s development in the course of his treatment at the LOC was described by Professor PERSON in a report on DATE to ORG of GPE ( translation from NORP ) :

" ... During the treatment , including the environmental therapy and the personal talks , at ORG since New Year CARDINAL , [ the applicant ] has continued to grow more relaxed , more extrovert and spontaneous and he is now able to show his feelings better . This applies to his relationships both with the staff and with the other children in the LOC . During the entire stay at the hospital he has as before , apart from DATE , been allowed to move about freely just like the other children . In other words , he has gone to the library on his own , has joined visits to museums in town , been to the swimming pool , skating rink , etc .

His relationship with his mother also underwent a similar favourable development in the same period . He saw his mother DATE and participated in the family life together with his mother , her friend , and his sister . At first he was a bit shy to leave his home , apparently for fear of being recognised . On DATE , he started school again in his old class , and the Ward prepared his return together with the school . He has taken up contact with his old school mates when visiting his mother during DATE . In connection with the school ’s DATE , he had his longest stay with his mother from DATE until DATE . During DATE , the whole family went for DATE to his mother ’s parents in GPE . It was obvious that [ the applicant ] enjoyed this family outing ... "

ORG As part of ORG investigation ORG of ORG was also requested to visit the ward in which the applicant was placed . In her report of CARDINAL DATE , she stated ( translation from NORP ) :

" The Child Psychiatric Ward currently keeps CARDINAL children in continuous treatment , the average period of therapy being DATE .

[ The applicant ] was not at home while I was there but in school . During DATE , he has been attending the same elementary school he used to go to and where he apparently feels at ease . DATE he goes to and from the school by cab , alone .

Much is done to make the children feel at home . [ The applicant ] takes swimming lessons together with other children in the LOC accompanied by CARDINAL of the staff members . He has also gone sledge riding and may visit school friends . The entrance door to all children ’s wards is locked , partly to prevent the young children from running all over the hospital LOC where they might hurt themselves in lifts or lose their way . The entrance door is locked also in order to minimise the substantial risk of theft .

[ The applicant ] is allowed to leave the Ward if he asks for permission to go , for instance , to the library . He moves around unaccompanied on these occasions .

My conclusion is that [ the applicant ] is staying in an environment as similar as possible to a real home and that he is by no means kept there against his will . On the contrary , he is allowed to move about outside the LOC all by himself or in the company of staff members and/or other children ... "

ORG In its final report of CARDINAL DATE , ORG concluded ( translation from NORP ) :

" On the present material ORG does not find any reason for not approving Professor PERSON ’s medical evaluation the essence of which was that [ the applicant ] was trapped in a neurotic state requiring treatment , a development which the ORG views as the result of the most unusual circumstances in which [ the applicant ] had been living with his father during DATE . If these circumstances had continued , the risk of a further move towards a personality - stunting , chronically neurotic state of mind would , in the opinion of the ORG , have been extremely likely .

Nor does ORG see any reason for criticising the medical treatment which [ the applicant ] received while hospitalised and which was designed to integrate him in normal human relationships ... , and included talks at regular intervals with [ the applicant ] and his mother , since the ORG , things being what they were , would find it irreconcilable with the welfare of [ the applicant ] to deny him relevant treatment . According to the information available to the ORG , [ the applicant ] is now so well that he may probably be discharged by DATE . By then , the period of his hospitalisation will not have exceeded the average period . While hospitalised [ the applicant ] has been allowed to visit his father regularly at FAC [ prison ] .

To sum up : ORG sees no reason for criticising Professor PERSON or ORG of ORG for their medical treatment of [ the applicant ] . "

ORG The applicant has not repudiated the above statements ( see paragraphs DATE ) . However his representative has added before the Commission that :

" The Child Psychiatric Ward is definitely a closed ward . The door to the Ward was locked and [ the applicant ] was totally unable to receive visitors except with the agreement and under the surveillance of the staff at the Ward ... [ The applicant ] was unable to leave the hospital if he so wished . ...

[ He ] was not permitted to phone [ his father ’s counsel ] or his father , who was in prison charged with the kidnapping of the applicant , who had actually been the active party in the kidnapping . [ The applicant ] was under almost constant surveillance : he was unable to make social contacts ; persons from outside the hospital were unable to get in contact with him without special permission ... "

ORG According to information submitted by the Government in response to a request by ORG , no children had ever been admitted under the compulsory procedure in LAW ( see paragraph CARDINAL below ) to the ward in which the applicant was placed and this ward had never had any patients suffering from mental illnesses of a psychotic nature .

ORG It was planned that the applicant should be discharged to his mother ’s home on DATE . However , on DATE he disappeared from the hospital . His mother reported the disappearance to the police . On DATE , the police found the applicant , who had stayed with various families in GPE , and brought him back to ORG in GPE where he was readmitted to ORG at his mother ’s request .

ORG On DATE , the father , who had been detained on remand since his arrest on CARDINAL DATE ( see paragraph CARDINAL above ) , was sentenced to CARDINAL months’ imprisonment by ORG . Having regard to the time spent in detention on remand , he was released on DATE .

ORG The applicant was discharged from the hospital on DATE and placed in the care of a family not officially known to the father .

ORG The question whether to transfer the custody rights from the mother to the father was , as mentioned above ( see paragraph CARDINAL ) , brought before ORG following the decision of ORG on DATE . Before ORG Professor PERSON maintained , in a report of DATE , that it would be in the best interest of the applicant that the parental rights remained with his mother . This opinion was supported by ORG ( Retslægerådet ) in a statement of CARDINAL DATE . However , on DATE ORG , by a majority of CARDINAL votes to CARDINAL , overruled ORG decisions and awarded custody of the applicant to his father . The majority in their judgment said ( translation from NORP ) :

" The respondent [ the mother ] must be considered well suited to exercise custody and there seems to be no reason to believe that the appellant [ the father ] should not be suited to handle this task . As the desirability of continued child - psychiatric support is not found to counterbalance the need for a decision now on the question as to which parent PERSON is to reside with , these judges find that out of consideration for his welfare it is desirable that custody of him be granted to the appellant in accordance with PERSON ’s own wish , regardless of whether his attitude to his parents may be due to a CARDINAL - sided influence during his stay with the appellant . Their decision is therefore to find for the appellant . "

The applicant now lives with his father .

Section CARDINAL of LAW ( PERSON ) protects the right to personal liberty . Under paragraph CARDINAL deprivations of liberty outside criminal procedure , not executed by order of a judicial authority and not warranted by legislation relating to aliens , are made subject to judicial review .

ORG LAW of ORG deals with judicial review of administrative deprivations of liberty . Its introductory section CARDINAL states that , unless otherwise provided by statute , its provisions apply only to detentions outside criminal procedure not executed by order of a judicial authority .

ORG The NORP rules on parental custody are laid down in the Custody and LAW Act DATE ( myndighedsloven , Act No . CARDINAL of DATE - " LAW " ) . According to this LAW , children and young persons DATE are under parental custody unless they have contracted marriage .

The holder of the parental rights has , according to section DATE , a duty to provide for the care and welfare of the child and has power to take decisions on the personal life of the child .

Parental rights over children born out of wedlock are , according to CARDINAL , vested in the mother . Under that section , as amended in DATE ( see paragraph CARDINAL above ) , they may however be transferred to the father where required out of special regard for the welfare of the child .

ORG At the relevant time , the LAW contained no provisions on the child ’s participation in decision - making concerning the child ’s personal life . On DATE it was amended ( Act No . CARDINAL ) and , according to a new section CARDINAL and section CARDINAL sub - section CARDINAL , any minor who has attained DATE is normally to be heard before a decision on custody , access rights or appointment of a guardian is made . The hearing of the child may however be omitted if it can be assumed to be unnecessary or harmful to the child .

ORG According to section CARDINAL of LAW DATE ( PERSON om social bistand , Act No . CARDINAL of DATE ) ( translation from NORP ) :

" Any person who becomes aware that a child or a young person DATE is exposed to neglect or degrading treatment on the part of the parents or other educators or lives under conditions liable to imperil his health or development shall be under a duty to notify the local social welfare committee . "

ORG According to section DATE it shall be the duty of the local social welfare committee to supervise the conditions under which the children within its area live and to support their parents in their upbringing and care . Sub - section CARDINAL specifies that the committee shall give the holder of the parental rights or the person who in actual fact takes care of the child special guidance and support if the child has difficulties in relation to his environment , his school or the community , or if the child is otherwise living under unsatisfactory conditions .

ORG In the context of its advisory and supervisory duties under LAW , the local social welfare committee may , according to section DATE , " as far as possible in cooperation with the child and his home " , inter alia " provide for the child to be placed away from home " where such a supportive measure is " required in the interests of the child , cf . section CARDINAL , sub - section CARDINAL " .

ORG According to the LAW , the social welfare authorities may however have to provide supportive measures even in the absence of consent from the holder of parental rights . Section CARDINAL specifies ( translation from NORP ) :

" [ CARDINAL ] Where absolutely necessary in the interests of the welfare of the child , the local social welfare committee may , until the child attains the age of CARDINAL , without the consent of the person having the parental rights over the child , decide

( i ) to remove the child from his home ;

( ii ) to commit the child to the psychiatric department of a hospital or to a mental hospital with the acceptance of the chief physician of the hospital , even though the general conditions prescribed in the legislation on the hospitalisation of mentally ill persons are not satisfied ;

( iii ) to refuse to let the child return home or place the child elsewhere , notwithstanding the fact that the initial care was established with the consent of the person having the parental rights over the child .

( CARDINAL ) Where the supportive measures according to sub - section CARDINAL have exceeded CARDINAL year , the local social welfare committee shall reconsider the case . Where the young person is DATE , the supportive measures can only be maintained with his or her consent . "

Before a decision under this section is taken , the holder of the parental rights , the guardian , the child , the attorney and any other adviser shall , according to LAW , have the opportunity to make a statement to the local social welfare committee .

ORG A decision to remove the child from his home under LAW ( see paragraph CARDINAL above ) can , according to section CARDINAL , be appealed against to ORG by the person who has parental rights over the child , the person who in actual fact exercises those rights or , if the matter relates to a person who is not subject to parental authority , the young person himself or his guardian .

These persons may also , under section CARDINAL , have the decision of ORG brought before ORG .

ORG According to section CARDINAL of the hospitalisation of LAW DATE , a patient can only be committed to a mental hospital on a written medical recommendation based on a medical examination made within DATE before the committal . Apart from patients who are admitted at their own request , the medical recommendation shall be made by a medical practitioner who is not an employee of the mental hospital .

ORG The responsible chief physician shall decide , pursuant to LAW , whether the conditions for committal are fulfilled and whether the patient shall be treated for his illness .

ORG According to section CARDINAL , a discharge may be requested by the patient himself or the following persons : the holder of the parental rights , the guardian , the trustee , the husband or wife , a son or daughter if of age , the father or mother , or another close relative .

Where discharge is refused by the responsible medical officer , the person making the request can bring the case before the Minister of ORG .

If the Minister of ORG also refuses the discharge , the person who made the request shall be advised that judicial review of the lawfulness of the detention may be sought in accordance with chapter PERSON of ORG ( see paragraph CARDINAL above ) .

ORG The situations in which the responsible medical officer may refuse a discharge are set out in LAW . These are either that the patient is dangerous to himself or others , or that the discharge would considerably reduce the prospects for the patient ’s recovery . Outside these situations a discharge may be refused only if it must be presumed to cause considerable disadvantages for the patient himself and ORG endorses the refusal .

Where discharge has been refused by the Minister of ORG , the issue of discharge may not be raised again within a period of DATE either from the date of the Minister of ORG ’s decision or , where the issue of lawfulness has been brought before a court , from the date of the court ’s decision .

ORG In DATE ORG appointed a committee to consider possible amendments to LAW ( see paragraphs CARDINAL above ) , in particular with regard to the use of compulsion . The committee was composed of legal and medical experts as well as representatives of ORG organisations . In DATE , the committee published ORG on the Principles on DATE in ORG " ( Principbetænkning om tvang i psykiatrien , no . CARDINAL/CARDINAL ) .

ORG The existing legal situation in respect of admission to hospital of minors not suffering from mental illnesses covered by LAW was described as follows ( translation from NORP ) :

" The holder of the parental rights shall , inter alia , provide the required medical treatment for the child and can in this connection decide where the child shall stay , if need be in a hospital , provided , of course , that the hospital accedes to the request for admission . Admission to a hospital of a child for treatment of physical disorders presents no problems . The holder of the parental rights can with the consent of the medical officer decide on admission to a hospital and detention there , notwithstanding the protests of the child , and the child has no possibility of having tried whether the admission to the hospital and the detention there were justified since this decision rests solely with the holder of the parental rights . To say that the medical doctor , who admits or receives the child into the hospital , by complying with the request of the holder of the parental rights , has made a decision which the child itself may request to be reviewed in court would be meaningless , as indirectly it would constitute an interference with the statutory right of the holder of the parental rights to make decisions , within the limits of the law , on the personal life of the child . The control required is here exercised by the medical officer admitting the child to the hospital or by the hospital doctors , who , as we know , will oppose any unnecessary hospitalisation of minors . Up till now there have been no unpleasant experiences in practice which can justify a possible legal adjustment of the right of parents to have their children hospitalised for treatment of physical disorders .

Where a child is admitted to hospital to be treated for mental disorders , the legal position is described in CARDINAL B above [ section dealing with the situation under LAW , not reproduced here ] , provided that a child is involved here whose opinion will have to be considered and who is admitted as mentally ill . This implies that the exercise of the powers inherent in parental custody must give way to the [ CARDINAL Act ] with the effect that the parents can not per se decide that the minor shall be hospitalised contrary to his wishes , and that the parents can not , on the other hand , have the minor discharged if the chief physician finds that the conditions for compulsory detention have been fulfilled .

The problem arises , however , where the child is hospitalised to be treated for a mental disorder of a non - psychotic nature . Since only mentally ill persons are covered by the [ CARDINAL Act ] , this LAW can not be expected to restrict the exercise of parental rights in these cases . It is therefore natural to treat on the same legal footing as physical disorders , mental disorders other than psychoses , with the consequence that the decision of the holder of the parental rights prevails , provided that the chief physician can justify the hospitalisation of the child for treatment . " ( pp . CARDINAL of the report )

" Here [ i.e. in the case of mental disorders outside the scope of LAW ] , the protection of the child - as in the case of physical disorders - is to be sought in the fact that the medical officer under professional responsibility must assess whether the request made by the holder of the parental rights for admission to a hospital can be considered justified . " ( p. CARDINAL of the report )

The report did not suggest any changes to the existing legal situation described above .


András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants , Mr PERSON , Mr PERSON , PERSON , Mr ORG and ORG are NORP nationals who were born in DATE , DATE , DATE , DATE and DATE respectively and live in GPE . They were represented before the Court by Mr PERSON and Mr ORG , lawyers practising in PERSON .

The first applicant is the father and the remaining CARDINAL applicants are the siblings of Mr PERSON , who joined the ORG in DATE . The applicants have not heard from their relative since DATE .

On DATE a number of newspapers reported that a military operation had taken place in DATE in an area within the administrative jurisdiction of ORG , in south - east GPE . During the military operation a number of ORG members had been apprehended by members of the NORP security forces , killed , their bodies mutilated and female NORP members raped by the soldiers . The bodies were subsequently buried in CARDINAL mass graves . The area where the bodies were buried has been out of bounds for civilians since DATE .

On DATE the applicants , with the assistance of their lawyer , submitted a petition to the ORG prosecutor ’s office and drew the prosecutor ’s attention to the newspaper reports . They alleged that their relative PERSON had also been killed in the operation and asked the prosecutor to exhume the remains , establish their relative ’s identity by carrying out DNA tests and then return the remains to the family for burial .

On DATE the ORG prosecutor visited the location in question and found a large number of bones and clothes scattered around a large area . The prosecutor was accompanied by , inter alios , a doctor , a photographer , a gendarmerie non - commissioned officer and a number of persons from nearby villages . CARDINAL local villagers told the prosecutor that a military operation had taken place in the area at DATE . The photographer took photos of the bones and the clothes and the doctor confirmed that they were human bones . The bones , clothes and several pieces of military equipment also found in the area were secured for forensic examinations .

On DATE the ORG prosecutor sent the bones to ORG in GPE . He requested the ORG to establish whether they were human bones and , if so , to establish how many persons had been killed and the deceased PERSON sex and dates of death .

On DATE the ORG prosecutor decided to close the investigation and not to prosecute any members of the security forces who had taken part in the operation in DATE for the killings . It appears from this decision that , according to the information provided by ORG to the prosecutor , on DATE a military operation had taken place in the area in question . At the end of the operation the soldiers had recovered the bodies of CARDINAL ORG members but as the area was not safe , no autopsies had been carried out and the bodies had been left there .

The prosecutor considered that the persons whose remains were recovered had died in an armed clash with the soldiers . There was insufficient evidence to prove that the persons had been apprehended and then executed , as alleged by the newspapers . In the prosecutor ’s opinion , the fact that no autopsies had been carried out on the bodies did not mean that the soldiers had been trying to cover up any offence or that they had acted negligently ; the area where the bodies were found had not been safe at the time of the incident , was too remote and was inaccessible by vehicle . The prosecutor also decided that the PERSON prosecutor would establish the identities of the deceased and return the remains to their families .

An objection lodged by the applicants against the prosecutor ’s decision was rejected by ORG on DATE .

On DATE ORG prepared its report in response to the prosecutor ’s above - mentioned request of DATE . According to the report , although the macroscopic examination of the bones showed that they belonged to QUANTITY persons , only the bones belonging to QUANTITY of the deceased were suitable for DNA comparisons . It was established that none of the CARDINAL deceased was PERSON .

On DATE the fourth applicant , ORG , asked ORG to prepare an independent opinion on the above - mentioned findings of ORG . According to a report prepared by a professor of forensic medicine , being able to identify CARDINAL of the deceased through DNA analysis suggested that ORG findings were not compatible with the rates of success obtained internationally . It was probable that the ORG had used the organic DNA extraction method rather than silica - based DNA separation . The organic extraction method produced only a MONEY success rate , whereas the success rate of the silica method was much higher .

Following the introduction of the application , the Government were requested by ORG , under LAW ( a ) of ORG , to confirm whether the forensic examinations carried out by the ORG had been compatible with the methods referred to in the independent expert ’s report . Should their answer be in the negative , the Government were also requested , pursuant to Rule CARDINALA of ORG , to ensure that further forensic examinations compliant with the applicable international standards were carried out by their authorities with a view to establishing whether the applicants’ relative was among the dead .

On DATE the Government informed the ORG that new and more advanced forensic examinations had been carried out on the remains at the request of the ORG . According to the report pertaining to the new forensic examinations , it was established that the remains belonged to CARDINAL persons and that PERSON was not CARDINAL of those CARDINAL deceased persons .

On DATE a copy of this report was forwarded to the applicants and they were informed by the Registry that they had the opportunity to submit any written comments they may wish to make on the information supplied by the ORG by DATE . No response was received from the applicants .


T. DALSGAARD AND J. DALSGAARD  v. DENMARK

The first applicant , PERSON , and the second applicant , PERSON , are spouses . They are NORP nationals , born in DATE and DATE respectively and live in GPE . They are represented before ORG , a lawyer practising in GPE . The Government are represented by their Agent , PERSON of ORG .

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

The applicants ran a freshwater fish farm , which formally was owned by the first applicant .

On respectively CARDINAL and DATE the applicants were interviewed by the police and charged with offences against the LAW on freshwater fish farms of DATE ( bekendtgørelse nr . CARDINAL ) , as allegedly during DATE , they had for their own enrichment intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment . An indictment was issued on DATE and filed with ORG of PERSON ( retten i PERSON ) on DATE . As the applicants continued to exceed the fixed feed quotas , the indictment was succeeded by supplementary indictments of CARDINAL DATE , CARDINAL DATE , DATE , CARDINAL DATE and DATE concerning DATE ; the CARDINAL latter concerning an amended Act on freshwater fish farms ( bekendtgørelse nr . CARDINAL ) of DATE , and the latter including charges as to breach of LAW ( PERSON ) .

On DATE the case was adjourned awaiting the outcome of a corresponding pending criminal case , considered to be a “ test - case ” , in which the defendant had alleged inter alia that the CARDINAL Act had no legal authority as it contravened articles of LAW and provisions of LAW ( PERSON ) . The applicants did not object to this adjournment . The proceedings in the test - case were finally determined on appeal by a ORG judgment of CARDINAL DATE which stated that the LAW provided the requisite authority and that the sanction for any violation of it should be imposition of a fine and confiscation of any profit . As a consequence of the judgment ORG of Aalborg ( Statsadvokaten i Aalborg ) , who at the relevant time had CARDINAL similar cases being prosecuted by him in the first instance , forwarded a memorandum to all the Chief Constables in DATE , urging them to expedite the “ fish farms cases ” .

However , in DATE a defendant in another test - case alleged that the CARDINAL Act was anti - competitive and therefore in conflict with ORG law , resulting in ORG of Aalborg requesting ORG ) and GPE set up by ORG ( PERSON for juridiske spørgsmål ) to provide an opinion . Neither found that the LAW fell within the scope of LAW of the ORG treaty , and in DATE , as to the specific test - case , ORG ruled that it found no reason to refer to question to ORG . Against this background in the DATE ORG of GPE forwarded CARDINAL memorandums to the Chief Constables urging them to expedite the fish farm cases as much as possible .

In the meantime , in DATE in yet another test - case , a defendant had alleged in vain that the CARDINAL Act was contrary to section CARDINAL of LAW . Consequently , in DATE ORG of Sønderborg ( Statsadvokaten i ORG ) forwarded a memorandum to all the Chief Constables providing an account of the latest development in the cases concerning fish farms and urging to expedite them .

Also , in the meantime investigation and administrative appeals had been ongoing resulting in the supplementary indictments of CARDINAL DATE , CARDINAL DATE and DATE being filed with ORG of PERSON , and the trial had been scheduled to take place on DATE .

On DATE the applicants retained a new counsel , who shortly thereafter requested an adjournment of the case in order to go through the material and to obtain an expert opinion on the confiscation amount . His request was granted . Therefore , and due to counsel ’s engagement elsewhere , the trial was scheduled to take place on CARDINAL and DATE .

CARDINAL supplementary indictments of CARDINAL DATE and DATE were filed with ORG of Terndrup .

By judgment of CARDINAL DATE the applicants were convicted . The first applicant was sentenced to pay a fine of CARDINAL Danish kroner ( ORG ) and her profit estimated to DKK CARDINAL was confiscated . The second applicant was fined of DKK CARDINAL . In addition , DATE fines in the amount of DKK CARDINAL were to be imposed on the applicants up until DATE or until they had complied with a prohibition of DATE that had been issued by the regional environmental protection authorities ( PERSON ) against carrying on business on a specific part of the applicants’ freshwater fish farm .

On appeal to ORG GPE ( PERSON ) counsel requested information from the prosecution as to whether LAW had been notified to ORG , since in the affirmative he would request a preliminary reference to ORG .

At the relevant time CARDINAL test - cases were already pending before ORG ( Højesteret ) in which the CARDINAL defendants ( see PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) had maintained that the relevant Act lacked legal authority because ORG had not been notified of it as prescribed by a ORG , for which reason they requested the case referred to ORG for a preliminary ruling .

Consequently , in DATE the Prosecutor General ( PERSON ) found that all cases concerning LAW should await the outcome of the cases pending before ORG .

The decision to adjourn the present case in accordance therewith was taken formally by ORG on DATE .

In the test - cases , on DATE ORG decided not to refer the cases to ORG for a preliminary ruling and on DATE ORG passed judgments , published in the Danish Weekly Law Reports ( ORG for DATE , pp . CARDINAL and CARDINAL ( see PERSON and PERSON v. GPE cited above ) .

On DATE the Prosecutor General forwarded a letter to ORG and others stating that the adjourned cases could now proceed .

On DATE ORG requested ORG to set down the applicant ’s cases for trial , however , since the Prosecution and the environmental authorities had to discuss and coordinate the claims made in all the cases concerning fish farming , ORG requested that the case was not scheduled before DATE .

On DATE ORG scheduled the trial for DATE .

On DATE the Prosecutor General procured guidelines to the prosecution ( ORG nr . CARDINAL/CARDINAL ) on how to go about with this kind of criminal cases and which sentences to propose .

On DATE counsel informed ORG that the applicants wished to change counsel , namely to the lawyer who had represented the defendants ( ORG before ORG .

On DATE the ORG new counsel forwarded a request to ORG of Aalborg for the production of CARDINAL additional witnesses and a proposal that the trial be postponed .

In a letter of DATE to the ORG counsel made various submissions in favour of adjourning the case , inter alia that he maintained his request for additional evidence and that the case ought to await the decision of ORG in the case PERSON and PERSON v. GPE ( cited above ) .

In spite of objections by ORG , on DATE ORG decided to adjourn the case . Instead a preparatory hearing was held on DATE , during which counsel ’s request for the production of additional evidence was refused . The trial was listed to take place on CARDINAL and DATE .

The applicants’ request for leave to appeal against ORG decision of DATE to ORG was refused by the Leave to Appeal Board ( Procesbevillingsnævnet ) on DATE .

By judgment of DATE ORG GPE upheld the applicants’ convictions , but partly amended the sentences to be imposed . Thus , the first applicant was sentenced to pay a fine of CARDINAL Danish kroner ( ORG ) and her profit estimated to DKK CARDINAL was confiscated ; the second applicant was fined of DKK CARDINAL ; and ORG imposition of DATE fines was quashed .

The ORG complaint that the length of the proceedings had exceeded a reasonable time was rejected by ORG stating inter alia :

“ Since the issuing of the indictment in DATE , the progress of the case has been influenced inter alia by the fact that the case during longer periods had to await the outcome of other similar cases , including cases which were finally determined by ORG ( Højesteret ) . [ Having regard thereto ] , the length of the proceedings did not breach LAW as to a trial within a reasonable time . ”

On DATE the applicants requested leave to appeal against the High ORG judgment to ORG . In support thereof they maintained , inter alia , that the length of the proceedings was in violation of LAW . Their request was refused by the Leave to Appeal Board on DATE .

ORG provides in as far as relevant :

Section CARDINAL , subsection CARDINAL

ORG notifies ORG of the scheduling of the trial , and informs [ him or her ] and the accused about assignment of counsel [ if any ] . The information to the accused thereon may be given through ORG in connection with the serving of the summons .