Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The first applicant , PERSON , is an NORP national who was born in DATE . The second applicant , PERSON , is an NORP and NORP national who was born in DATE . The President decided that their identity should not be disclosed to the public ( Rule CARDINAL § CARDINAL ) . The applicants live in GPE , GPE . They were represented before the ORG by Mr T. Pilv and PERSON , lawyers practising in GPE .

The first applicant met PERSON , an NORP national and the father of the second applicant , their daughter , during her studies in the GPE . They developed a relationship and after completing her studies she often stayed with NORP in GPE near GPE . On DATE the second applicant was born in GPE . After the birth of the child , relations between the parents deteriorated . According to the first applicant she suffered mental abuse from ORG , NORP had only wished to bring the child up in accordance with NORP traditions and with assistance from his parents , whereas the first applicant ’s opinions had been disregarded . NORP had worked TIME and had barely participated in taking care of the child .

The applicants travelled to GPE on a number of occasions , including for DATE starting from DATE . Thereafter , they went to GPE on DATE with ORG ’s consent . However , they did not return to GPE on DATE , as had been agreed , but stayed in GPE .

On DATE the first applicant asked ORG to award her sole custody of the child .

On DATE NORP travelled to GPE . He wished to see the child but refused to do so in a law firm , as proposed by the first applicant . However , he met the first applicant who gave him the keys to his apartment in GPE at his request .

On DATE R. made a request to ORG for the child ’s return under LAW on the Civil Aspects of International Child Abduction ( “ LAW ) . On DATE the NORP authorities forwarded the request to ORG and on DATE it was sent to ORG .

ORG dealt with the requests of both parents in the same proceedings . A hearing took place on DATE , with the participation of the first applicant , NORP , the second applicant ’s ORG - appointed lawyer and a social worker from the GPE rural municipality where the applicants resided in GPE . At the closure of the hearing , the court announced that it would make its ruling after the receipt of an opinion from the NORP child protection services . The subsequent proceedings were conducted in writing .

On CARDINAL DATE ORG issued a temporary injunction concerning NORP ’s access rights to the child according to which he could meet her in the presence of her mother and CARDINAL person of his choice . This arrangement was later amended by the court so as to enable the first applicant to be also accompanied by a person of her choice during the meetings . NORP met the child on CARDINAL weekends between May and DATE . At least at some of the meetings both NORP and NORP psychologists were present . According to the first applicant , NORP subsequently ceased to show interest in the child .

On DATE ORG notified the first applicant that she had until DATE to send them her written submissions concerning PERSON ’s claim for the return of the child to GPE . It informed her of its intention to rule on the matter by DATE at the latest . In her submissions the first applicant referred to the need for several items of evidence yet to be received ( opinion of the GPE rural municipality , medical expert opinion , and additional information from the NORP authorities ) and requested the postponement of ORG ruling until the receipt of further evidence . She raised the issue of the child ’s sexual abuse by NORP The first applicant also submitted to the court written statements from a number of persons ( her mother and other relatives , friends , colleagues and a teacher ) describing the relations between the parties and NORP ’s abusive behaviour , as well as a psychotherapist ’s observations based on the first applicant ’s counselling . According to a note by a child psychiatrist the child was restless and nervous and had sleep disorders ; it was suggested that the meetings with NORP be conducted at home in a secure environment .

On DATE the NORP ORG transferred to its NORP counterpart a report by ORG . It was noted that no extensive replies to the questions formulated by the NORP authorities could be given on the basis of the information gathered . The NORP authorities had met PERSON and his parents and visited NORP ’s residence . They had also met the first applicant ’s music teacher . It was noted in the report that NORP had a controlling and egocentric character and traits of dependence . Latent depressive tendencies could be seen in NORP ’s family of origin where the woman ’s natural role was seen as that of taking care of children , even at the expense of her professional self - fulfilment . A family pattern of this kind could have also been established in the relationship between NORP and the first applicant and caused her uneasiness . It was noted that NORP had denied that his mother had been treated for mood disorders , although this had been the case . Lastly , it was noted that in order to conclusively answer the questions posed it was necessary to assess both of the parents and to observe the father ’s relationship with the child .

On DATE a psychology expert drew up a written opinion at the request of ORG . She had met the applicants on CARDINAL and DATE . In response to ORG questions she noted that it was not possible to decide on the issue of sexual abuse as alleged by the first applicant . In respect of whether her transfer to GPE would cause her serious mental suffering , the expert noted that the child needed a secure , customary and stable environment , that she had a close attachment relationship with her mother and that her separation from her mother would definitely cause her serious mental suffering and could have a serious life - long negative influence on her . At the age in question the child and mother belonged together . Even if the mother could stay in GPE without being prosecuted , she would be fully dependent on the child ’s father and at risk of mental and physical violence ; there would be a resurgence of the situation from which the mother had escaped from GPE . Traumatisation of the mother would have a negative effect on the child ’s development . The expert concluded that in these circumstances the return of the child to GPE would cause her serious mental suffering and would definitely not proceed from the child ’s well - being and needs .

On DATE the first applicant submitted further written observations and documentary evidence to ORG and noted , inter alia , that all the relevant circumstances had not been established and that the court ’s delivery of its ruling on the matter should be postponed .

By a decision of CARDINAL DATE ORG ordered the second applicant ’s return to GPE pursuant to LAW . It established that the child had resided in GPE together with her parents until DATE and that this finding was not affected by the first applicant ’s argument that she had only studied and temporarily lived in that country . The court further established that the parents had joint custody of the child in GPE ; the father had consented to the child ’s travelling to GPE but not to her settling in GPE . The court found that the retention of the child in GPE was wrongful within the meaning of LAW and that the father was entitled to claim her return under LAW . In respect of the question whether the return of the child was excluded under LAW ( b ) of LAW , the court noted that it had to consider the information concerning the child ’s social background provided by the central authority or other competent authority of the child ’s habitual residence . It referred to ORG judgment of DATE , according to which a child could only not be returned on the basis of LAW ( b ) of LAW if this would result in extremely serious damage to the child ’s well - being . Such exceptional threat to the child ’s well - being had to be sufficiently specific and probable .

ORG considered that the second applicant ’s return to GPE would not cause her more suffering than it would an average DATE . On the basis of evidence at the court ’s disposal ( expert opinion by a psychologist and information from DATE ) it could not be concluded that the father had ill - treated the child or been violent towards the first applicant . Nor could it be established on the basis of the information provided by the FAC child protection agency that the child ’s return to GPE would be contrary to her interests . As the NORP authorities had referred to the need to monitor relations between the father and the child , their supervision of what was going to happen in the family was ensured . The court noted that pursuant to LAW the child was not returned to the other parent but to the other country ; therefore , the court did not find the first applicant ’s arguments about the separation of mother and child relevant . A close relationship between the mother and child would also contribute to the child ’s sense of security in GPE where she had been living until DATE . NORP had confirmed at the court ’s hearing that he was ready to provide the applicants with lodging and subsistence . The conflict between the parents could not determine the choice of the child ’s country of residence ; these matters could be taken into account in the determination of the GPE rights of custody . The first applicant ’s arguments related to her impossibility to return to GPE because of the risk of arrest were irrelevant because the NORP authorities could in any event make use of the NORP arrest warrant . The court concluded that there were no circumstances that allowed dismissing the request for the second applicant ’s return to GPE .

The court acknowledged that the second applicant had developed certain routines and a feeling of security in GPE . Nevertheless , courts could not favour a parent altering a child ’s country of residence without the consent of the other parent . The first applicant should have sought the determination of her custody rights in the first place and only thereafter changed her and DATE depending on the custody rights awarded – the child ’s residence .

ORG ruled that it had no jurisdiction over the first applicant ’s claim for sole custody as the child was to be returned to GPE . The court dismissed the first applicant ’s requests for a further hearing to be held , for her and witnesses to be examined and for a psychiatric expert examination of NORP to be ordered . It noted that owing to exceptional circumstances ( delayed receipt of the reply from the NORP social services and the lodging of complaints of abuse ) it had not been able to resolve the matter within DATE . Nevertheless , further suspension of the proceedings was not possible but it was open to the first applicant to make the requests in question in the proceedings concerning the custody rights .

The applicants appealed against ORG decision , requesting the dismissal of PERSON ’s request for the second applicant ’s return to GPE and resumption of the examination of the first applicant ’s claim for sole custody of the second applicant . The first applicant submitted to ORG , inter alia , an extract of the second applicant ’s medical record according to which the applicants had been examined in a psychiatric department of ORG in DATE . It had been found that the child had a secure attachment relationship with her mother and that in the event of the continuation of the stressful period related to the court proceedings the mother and child would need psychological support .

By a decision of CARDINAL DATE ORG upheld the first - instance court ’s ruling . It considered that the child had lived with her parents in GPE until DATE and had become accustomed to her social and family environment in that country . It was natural that she had also developed such relations in GPE after her unlawful retention but neither this nor the child ’s earlier visits to GPE meant that her habitual residence was in GPE . ORG agreed with ORG finding that the return of the child was not excluded under LAW of LAW . It considered that according to the spirit of LAW the child ’s swift return to her habitual living environment was presumed to be in her best interests . This also had a general preventive effect ensuring that parents would not take their children unlawfully to another country . Accordingly , a child could only not be returned in exceptional circumstances .

ORG was of the view that the second applicant ’s return to GPE would not necessarily lead to her separation from her mother and accordingly the related arguments of the appeal were unfounded . It referred to several items of evidence adduced by NORP including , inter alia , an opinion of NORP experts , according to which the child ’s return to GPE was in her interests , and a notice from the kindergarten the second applicant had attended in GPE , according to which there had been nothing to indicate the use of physical or mental violence against the child . ORG concluded that the second applicant would not be placed in an intolerable situation upon her return to GPE and that the first applicant ’s claims of the abuse of the child by her father were groundless .

ORG noted that the evidence adduced by the first applicant , which the first - instance court had disregarded , did not demonstrate reliably that NORP had abused the child . The psychology expert who had examined the second applicant had not confirmed that she had been abused by her father . The expert ’s opinion that the child ’s return to GPE would cause her serious suffering had been based on the first applicant ’s groundless claim that the child would be separated from her on return . ORG noted that the first applicant had confirmed at ORG hearing that NORP had not been violent towards the child and only later in the proceedings had she claimed that NORP had abused the child . ORG was in agreement with NORP ’s opinion that the first applicant had raised the accusation about the abuse of the child in order to justify her retention in GPE . The allegation of abuse had not been raised in GPE or immediately after the applicants’ arrival in GPE ; it had only been made to the police on DATE . ORG considered the first applicant ’s allegations of abuse were not credible . The GPE mutual accusations indicated that there were strained relations between them but did not in themselves prove the existence of the grounds for refusing the return of the child under LAW ( b ) of LAW .

ORG referred to ORG judgment of DATE , according to which a child could only not be returned on the basis of LAW ( b ) of LAW if this would result in extremely serious damage to the child ’s well - being . The harmful effects that could arise from the separation of the child from the parent could be avoided by the return of the child together with the parent in question .

On DATE ORG declined to examine appeals lodged by the first applicant and the second applicant ’s representative .

On DATE ORG refused to reopen the proceedings .

On DATE the first applicant received a bailiff ’s notice ( deposited on DATE ) , according to which the child had to be returned to GPE within DATE .

On DATE PERSON made a request to ORG seeking the return of the child and a prohibition on her leaving GPE ; he also claimed sole custody of the child with visitation rights accorded to the first applicant . On CARDINAL DATE ORG suspended the proceedings . It appears that a time - limit was subsequently set for NORP to settle the case , regard also being had to the proceedings pending in GPE , and that the first applicant ’s submissions in LANGUAGE were not admitted by ORG . Pursuant to ORG provisional ruling of DATE , the first applicant was ordered to return the child to GPE to her father to whom sole custody of the child was accorded . In the event of her failure to do so she would lose her parental rights . ORG were requested to take the matter under their supervision and arrange the meetings between the child and the mother in a neutral environment as well as give the court feedback about the relationship between the child and each of the parents .

A hearing before ORG took place on DATE with the participation of the first applicant and NORP According to the first applicant , the court considered that she and the child should move into NORP ’s residence for DATE and stay there with NORP and a psychologist or psychiatrist of his choosing . Thereafter the mother ’s access rights to the child would be terminated and the child would remain under the supervision of social workers .

On DATE , in GPE , the NGO Järva Naiste Varjupaik ( Järva Women ’s Shelter ) reported NORP for sexually assaulting the second applicant on the basis of information received from the first applicant in the course of counselling . On DATE the first applicant was interviewed by a police investigator . She submitted that she had seen NORP sexually abusing their daughter in DATE . The first applicant further submitted that in DATE NORP had pushed her over while she had been holding the then DATE child .

A similar criminal investigation was opened in GPE on the basis of the first applicant ’s complaint of CARDINAL DATE . On DATE the police informed ORG of the state of the investigation . According to the information provided , the first applicant ’s music teacher and NORP ’s former wife had been interviewed in DATE . The first applicant had talked to the music teacher about her problems with NORP and his parents and had also made comments about R. ’s behaviour towards their daughter . PERSON ’s former wife had described NORP as reliable and affectionate in a relationship , and said that he had never been violent , aggressive , disrespectful , controlling or jealous . What had been decisive for ending their marriage had been the influence that NORP ’s parents , particularly his father , had exercised over him . Such influence had never been contested by NORP who had had very strong ties , verging on dependence , with his family . She had also made reference to NORP ’s obsession with cleanliness . The police also examined a report by ORG in GPE concerning the second applicant ’s living conditions in GPE DATE which were described in positive terms – and information from the ORG child protection agency . In respect of the alleged sexual abuse , the police considered that there was a lack of information allowing this to be put into context and found that a precise understanding of the circumstances and sequence of the events was necessary for assessing their criminal relevance or their inappropriateness from a parental education point of view . The information available demonstrated the first applicant ’s difficulty in living with NORP , above all in relation to the interference and influence exercised by his father . At the same time , nothing had emerged to suggest that NORP was sexually deviant . Lastly , the police noted that there were separate criminal proceedings pending concerning child abduction and detention abroad in respect of the first applicant initiated on the basis of a complaint by NORP

Criminal proceedings have also been opened in GPE in respect of NORP ’s alleged violence towards the first applicant .

In DATE the first applicant reported NORP to the NORP authorities for allegedly making a false accusation and using a forged document . It appears that NORP , in turn , has reported the first applicant for allegedly making a false accusation .

In a judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) ORG of ORG dealt with a case under LAW . It noted , inter alia , that as a rule , a child who had been wrongfully removed or retained in another Contracting State had to be promptly returned . Pursuant to LAW ( b ) a wrongfully removed or retained child could only not be returned in exceptional circumstances , that is when his or her return would cause extremely serious harm to the child ’s well - being . In this connection , the child ’s well - being had to be under extraordinary threat that was sufficiently specific and probable . An extensive interpretation of LAW ( b ) and other grounds for refusal to return a child would undermine the purpose of LAW . Proceeding from the above , ORG considered it impossible not to return the child concerned merely because the mother ’s care was important for an infant and the child had continuously been with the mother up until the material time and had no experience of living alone with the father . Since the dispute between the parties did not concern the child ’s place of residence but the return of the child under LAW , there was no need to resolve the question of which parent should be given priority in bringing up the child . The only matter to be determined was that of the child ’s prompt return . Under LAW the child was not to be returned to the other parent but , as a rule , simply returned to the country of his or her habitual residence . The harmful effects that could arise from the separation of the child from a parent could in most instances be avoided by the return of the child together with the parent , separation from whom could cause serious damage to the well - being of the child . ORG also noted that the risk to the child ’s well - being , referred to in the provision concerned , had to be proved .

The relevant provisions of LAW , which entered into force in respect of GPE on DATE , read , in so far as relevant , as follows .

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ The removal or the retention of a child is to be considered wrongful where DATE

a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph a ) above , may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ The Convention shall apply to any child who was habitually resident in a ORG immediately before any breach of custody or access rights . The Convention shall cease to apply when the child attains DATE . ”

“ The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children .

If the judicial or administrative authority concerned has not reached a decision within DATE from the date of commencement of the proceedings , the applicant or ORG of the requested ORG , on its own initiative or if asked by ORG of the requesting ORG , shall have the right to request a statement of the reasons for the delay . If a reply is received by ORG of the requested ORG , that ORG shall transmit the reply to ORG of the requesting ORG , or to the applicant , as the case may be . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that –

a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

“ A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue . ”

“ The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-3

Anatoly Kovler;Christos Rozakis;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Luis López Guerra;Margarita Tsatsa-Nikolovska;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Sverre Erik Jebens;Volodymyr Butkevych;Zdravka Kalaydjieva

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

J. was the youngest son of a banking family in GPE am Main . He got to know the applicant , a law student , as an acquaintance of his sister .

On DATE the applicant lured PERSON , aged DATE , into his flat in GPE am GPE by pretending that the child ’s sister had left a jacket there . He then killed the boy by suffocating him .

Subsequently , the applicant deposited a ransom note at ORG GPE place of residence stating that J. had been kidnapped and demanding MONEY . The note further stated that if the kidnappers received the ransom and managed to leave the country , then the child ’s parents would see their son again . The applicant then drove to a pond located on a private property near GPE , TIME drive from GPE , and hid J. ’s corpse under a jetty .

On DATE at TIME the applicant picked up the ransom at a tram station . From then on he was under police surveillance . He paid part of the ransom money into his bank accounts and hid the remainder of the money in his flat . TIME , he was arrested at GPE am GPE airport with the police pinning him face down on the ground .

After having been examined by a doctor at the airport ’s hospital on account of shock and skin lesions , the applicant was taken to the GPE am GPE police headquarters . He was informed by detective officer PERSON that he was suspected of having kidnapped PERSON and was instructed about his rights as a defendant , notably the right to remain silent and to consult a lawyer . He was then questioned by PERSON with a view to finding ORG , the police , having searched the applicant ’s flat , found CARDINAL of the ransom money and a note concerning the planning of the crime . The applicant intimated that the child was being held by another kidnapper . At TIME he was allowed to consult a lawyer , PERSON , for TIME at his request . He subsequently indicated that GPE and GPE had kidnapped the boy and had hidden him in a hut by a lake .

Early in the morning of DATE , before PERSON came to work , PERSON PERSON ( “ NORP ” ) , deputy chief of the GPE police , ordered another officer , PERSON ( “ E. ” ) , to threaten the applicant with considerable physical pain , and , if necessary , to subject him to such pain in order to make him reveal the boy ’s whereabouts . ORG ’s subordinate heads of department had previously and repeatedly opposed such a measure ( see also paragraph CARDINAL below ) . Detective officer PERSON thereupon threatened the applicant with subjection to considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child ’s whereabouts . According to the applicant , the officer further threatened to lock him in a cell with CARDINAL huge black men who would sexually abuse him . The officer also hit him several times on the chest with his hand and shook him so that , on CARDINAL occasion , his head hit the wall . The Government disputed that the applicant had been threatened with sexual abuse or had been physically assaulted during the questioning .

NORP For fear of being exposed to the measures he was threatened with , the applicant disclosed the whereabouts of J. ’s body after TIME .

The applicant was then driven with LOC and numerous other police officers to PERSON . He had refused to go with detective officer PERSON The police waited for a video camera to be brought to the scene . Then , the applicant , on the communicated order of the police officer in command and while being filmed , pointed out the precise location of the body . The police found PERSON ’s corpse under the jetty at the pond near PERSON as indicated by the applicant . The applicant claimed that he had been obliged to walk without shoes through woods to where he had left the corpse and , on the orders of the police , he had had to point out its precise location . The Government disputed that the applicant had had to walk without shoes .

Upon forensic examination of the scene , the police discovered tyre tracks left by the applicant ’s car near the pond near PERSON . Under questioning by detective officer PERSON on the return journey from PERSON the applicant confessed to having kidnapped and killed PERSON He was then taken by the police to various other locations indicated by him where they secured ORG school exercise books , a backpack , J. ’s clothes and a typewriter used for the blackmail letter in containers . An autopsy carried out on ORG ’s corpse on DATE confirmed that J. had died of suffocation .

Having returned to the police station , the applicant was then permitted to consult his lawyer , En . , who had been instructed to act on his behalf by his mother and who had tried , in vain , to contact and advise the applicant TIME .

In a note for the police file dated DATE , the deputy chief of the GPE police , NORP , stated that he believed that that morning J. ’s life had been in great danger , if he was still alive at all , given his lack of food and the temperature outside . In order to save the child ’s life , he had therefore ordered the applicant to be threatened by detective officer PERSON with considerable pain which would not leave any trace of injury . He confirmed that the treatment itself was to be carried out under medical supervision . NORP further admitted that he had ordered another police officer to obtain a “ truth serum ” to be administered to the applicant . According to the note , the threat to the applicant was exclusively aimed at saving the child ’s life rather than furthering the criminal proceedings concerning the kidnapping . As the applicant had disclosed the whereabouts of J. ’s body , having been threatened with pain , no measures had in fact been carried out .

A medical certificate issued by a police doctor on DATE confirmed that the applicant had a haematoma ( QUANTITY ) below his left collarbone , skin lesions and blood scabs on his left arm and his knees and swellings on his feet . A further medical certificate dated DATE noted that , following an examination of the applicant on DATE , CARDINAL haematomas on the left - hand side of the applicant ’s chest of a diameter of QUANTITY were confirmed , together with superficial skin lesions or blood scabs on his left arm , his knees and his right leg and closed blisters on his feet . According to the certificate , these discreet traces of injuries indicated that the injuries had been caused DATE before the examination . The precise cause of the injuries could not be diagnosed .

During subsequent questioning by the police on DATE , by a public prosecutor on CARDINAL , DATE and DATE , and by a district court judge on DATE the applicant confirmed the confession he had made on DATE .

In DATE the GPE am Main public prosecutor ’s office opened criminal investigation proceedings against the deputy chief of the GPE police , NORP , and detective officer PERSON on the basis of the applicant ’s allegations that he had been threatened on DATE .

On DATE , DATE of the hearing , the applicant , represented by counsel , lodged a preliminary application for the proceedings to be discontinued . The basis of his claim was that during interrogation and prior to confessing he had been threatened by detective officer PERSON with being subjected to severe pain and sexual abuse . He argued that this treatment had been in breach of LAW ( see paragraph CARDINAL below ) and LAW and warranted the discontinuation of the proceedings against him .

The applicant also lodged an alternative preliminary application seeking a declaration that , owing to the continuous effect ( GPE ) of the threat of violence against him on DATE , all statements which he had made to the investigation authorities should not be relied upon in the criminal proceedings . Moreover , the applicant sought a declaration that on account of the violation of LAW , the use in the criminal proceedings of all items of evidence , such as the child ’s corpse , which had become known to the investigation authorities because of the confession extracted – the so - called “ fruit of the poisonous tree ” – was prohibited ( Fernwirkung ) .

On DATE , in response to the first preliminary application , the GPE am ORG dismissed the applicant ’s application for the discontinuation of the criminal proceedings . The court noted that in the applicant ’s submission , detective officer PERSON had threatened that a specialist was on his way to the police station by helicopter who , without leaving any traces , would inflict on him intolerable pain the likes of which he had never before experienced , if he continued to refuse to disclose ORG whereabouts . To underpin the threat , PERSON had imitated the sound of the rotating blades of a helicopter . PERSON had further threatened that the applicant would be locked up in a cell with CARDINAL big “ Negroes ” who would anally assault him . He would wish that he had never been born . The court found as a fact that the applicant had been threatened with the infliction of considerable pain if he refused to disclose the victim ’s whereabouts . However , the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced . The threat to inflict pain upon the applicant had been illegal pursuant to LAW , and also pursuant to LAW ( see paragraphs CARDINAL below ) and in violation of LAW .

NORP However , notwithstanding this breach of the applicant ’s constitutional rights , the court found that the criminal proceedings were not , in consequence , barred and could proceed . It found that the use of the investigation methods in question , though prohibited in law , had not so restricted the rights of the defence that the criminal proceedings could not be pursued . In view of the seriousness of the charges against the applicant on the one hand , and the severity of the unlawful conduct during investigation on the other , there had not been such an exceptional and intolerable violation of the rule of law as to bar the continuation of the criminal proceedings .

NORP In response to the applicant ’s second preliminary application , the GPE am ORG found that , in accordance with LAW § CARDINAL of LAW , all confessions and statements hitherto made by the applicant before the police , a public prosecutor and a district court judge were inadmissible as evidence in the criminal proceedings because they had been obtained through the use of prohibited methods of interrogation .

The court found that on DATE detective officer PERSON had used prohibited methods of interrogation within the meaning of LAW § CARDINAL of LAW by threatening the applicant with intolerable pain if he did not disclose the child ’s whereabouts . Therefore , any statements which the applicant had made as a consequence of this forbidden investigative measure were inadmissible as evidence . This exclusion of evidence ( Beweisverwertungsverbot ) did not only comprise the statements made immediately after the unlawful threat . It covered all further statements which the applicant had made to the investigation authorities since that date in view of the continuous effect of the violation of LAW .

The procedural irregularity caused by the use of a prohibited method of investigation could only have been remedied if the applicant had been informed before his subsequent questioning that his earlier statements made as a consequence of the threat of pain could not be used as evidence against him . However , the applicant had only been instructed about his right not to testify , without having been informed about the inadmissibility of the evidence that had been improperly obtained . He had therefore not been given the necessary “ qualified instruction ” ( qualifizierte GPE ) before making further statements .

NORP However , the court limited the inadmissible evidence to the above - mentioned statements . It went on to dismiss the applicant ’s application for a declaration that , on account of the prohibited investigation methods , the use in the criminal proceedings of all items of evidence , such as the child ’s corpse , which had become known to the investigation authorities as a consequence of the statements extracted from the applicant ought to be excluded from trial ( Fernwirkung ) . The court found as follows :

“ ... there is no long - range effect of the breach of LAW meaning that the items of evidence which have become known as a result of the statement may likewise not be used [ as evidence ] . The ORG agrees in this respect with the conciliatory view ( GPE ’s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant ’s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate . ”

Following the above ruling on the applicant ’s preliminary applications lodged on DATE of the trial , the proceedings continued . DATE , in his statement on the charges , the applicant admitted having killed J. , but stated that he had not initially intended to do so . His defence counsel submitted that by confessing , the applicant wanted to take responsibility for his offence notwithstanding the interrogation methods used on DATE . As the trial proceeded , all further items of evidence found as a consequence of the applicant ’s original statement and which the applicant sought to have excluded were adduced . At the close of the trial on DATE the applicant admitted that he had also intended from the outset to kill the child . He described his second confession as “ the only way to accept his deep guilt ” and as the “ greatest possible apology for the murder of the child ” .

On DATE the GPE am ORG convicted the applicant , inter alia , of murder and kidnapping with extortion causing the death of the victim . It sentenced him to life imprisonment and declared that his guilt was of particular gravity , warranting a maximum sentence ( see paragraph CARDINAL below ) .

The court found that at the hearing the applicant had been instructed anew about his right to remain silent and about the fact that none of his earlier statements could be used as evidence against him and had thereby been given the necessary qualified instruction . However , the applicant had , following the qualified instruction , confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential , if not the only , basis for the court ’s findings of fact . They were corroborated by the testimony of ORG sister , the blackmail letter and the note concerning the planning of the crime found in the applicant ’s flat . The findings of fact concerning the execution of the crime were exclusively based on the applicant ’s confession at the trial . Further items of evidence showed that he had told the truth also in this respect . These included the findings of the autopsy as to the cause of the child ’s death , the tyre tracks left by the applicant ’s car near the pond where the child ’s corpse had been found , and the discovery of money from the ransom which had been found in his flat or paid into his accounts .

In assessing the gravity of the applicant ’s guilt , the court observed that he had killed his DATE victim and demanded MONEY in ransom in order to preserve his self - created image of a rich and successful young lawyer . It did not share the views expressed by the public prosecutor ’s office and the private accessory prosecutors that the applicant ’s confession “ was worth nothing ” as the applicant had only confessed to what had in any event already been proven . The fact that the applicant had volunteered a full confession at the trial , even though all his earlier confessions could not be used as evidence pursuant to LAW § CARDINAL of LAW , was a mitigating factor . However , even without his confession , the applicant would have been found guilty of kidnapping with extortion causing the death of the victim . The applicant had been kept under police surveillance after he had collected the ransom , which had later been found in his flat or paid into his accounts . Furthermore , it had been proved by the autopsy on ORG ’s corpse that the boy had been suffocated , and tyre tracks left by the applicant ’s car had been detected at the place where ORG body had been found .

The court further observed that in questioning the applicant , methods of interrogation prohibited under LAW had been employed . Whether and to what extent detective officer PERSON and the deputy chief of the GPE police , NORP , were guilty of an offence because of these threats had to be determined in the criminal investigations then pending against them . However , their allegedly illegal acts did not mitigate the applicant ’s own guilt . The misconduct of police officers , belonging to the executive power , could not prevent the judiciary from assessing findings of fact in accordance with the law .

On DATE following his conviction , the applicant lodged an appeal on points of law with ORG . He complained that ORG , in its decision of DATE , had refused his preliminary application to discontinue the criminal proceedings against him . It had further refused to declare that the use in the criminal proceedings of all other items of evidence , such as the child ’s corpse , which had become known to the investigation authorities because of the statements unlawfully extracted was prohibited . The applicant included a full copy of these applications of DATE , including the grounds given for them . He further included a copy of ORG decision of DATE dismissing his application for the proceedings to be discontinued and argued in respect of the police ’s threats of torture against him that , developing the case - law of ORG , such conduct “ leapt beyond ” the exclusion of evidence and led to an impediment to the proceedings ( dass ein derartiges Verhalten das PERSON “ überspringt ” und ein NORP begründet ) .

In his observations dated DATE ORG objected that the applicant ’s appeal on points of law was manifestly ill - founded . He argued that the use of prohibited methods of interrogation did not lead to an impediment to the criminal proceedings . LAW expressly provided that the use of any of the prohibited methods enumerated entailed only the exclusion of evidence . The applicant had not complained of a breach of LAW CARDINAL of the Code of Criminal Procedure . In any event , there would be no grounds for such a complaint as ORG had only used the applicant ’s confession at the trial , which he had made after having been informed that his previous statements had not been admitted as evidence .

On DATE ORG , without giving further reasons , dismissed the applicant ’s appeal on points of law as ill - founded .

On DATE the applicant lodged a complaint with ORG . PERSON the facts underlying the case and the content of the impugned decisions , he complained under LAW and LAW , second sentence , of LAW about the way in which he had been questioned by the police on TIME . He argued that he had been threatened with being subjected to torture and sexual abuse if he did not disclose the child’ CARDINAL § CARDINAL of LAW . It also violated his absolute right to human dignity under LAW , which lay at the heart of the provisions in question . These unjustifiable human rights violations ought to have been a bar to the criminal proceedings for murder and a prohibition on using the evidence obtained as a consequence of the confession extracted from him by means of prohibited measures .

On DATE ORG , sitting as a panel of CARDINAL judges , held that the applicant ’s constitutional complaint was inadmissible .

Firstly , in so far as the applicant complained of the failure of the criminal courts to discontinue the proceedings against him , the court found that he had not sufficiently substantiated his complaint . It observed that ORG had already stated that the police ’s threat to inflict pain on the applicant had violated LAW and that the applicant ’s rights under LAW and LAW , second sentence , of LAW had been disregarded .

However , the violation of fundamental rights outside the trial did not necessarily warrant the conclusion that the judgment delivered by a criminal court , which was based on the findings made during the trial , breached constitutional law . In the present case , the criminal courts had found that the methods of investigation used by the police had been prohibited , but had differed from the applicant as to the legal consequences that flowed from that finding . They had taken the view that the statements obtained as a result of the measures in question could not be used but that there was no bar to the specific criminal proceedings being pursued .

According to ORG , the procedural flaw of having used prohibited investigation measures could be regarded as having been remedied by the criminal courts , because they had prohibited the admission of the statements obtained thereby . Such a prohibition was prescribed by LAW § CARDINAL of LAW in order to compensate for a prior infringement of the rights of the person concerned . However , the circumstances in which substantial procedural irregularities might entail a bar to criminal proceedings were not laid down in law . In these circumstances , the applicant had failed to explain why the contested methods of investigation had not only required a prohibition on using the statements obtained thereby as evidence , but should also lead to a bar to criminal proceedings against him .

Secondly , ORG found that , in so far as the applicant complained that ORG had refused to exclude the use in the proceedings of all items of evidence obtained as a result of the confession extracted under duress , his constitutional complaint was likewise inadmissible . It held that the applicant had failed to raise this issue in the proceedings before ORG .

The decision was served on the applicant ’s lawyer on DATE .

On DATE the GPE am ORG delivered judgments against the deputy chief of the GPE police , NORP , and detective officer PERSON court found that on TIME DATE NORP had ordered that the applicant was to be questioned while being subjected to pain in the manner set out in his subsequent note for the police file ( see paragraph CARDINAL above ) . By doing so , he had acted against the advice of all his subordinate heads of department entrusted with the investigation into ORG kidnapping . The heads of department had opposed this measure , which NORP had previously ordered on TIME DATE and then twice on TIME . The heads of department had resisted the orders , proposing instead further questioning and confrontation of the applicant with PERSON ’s family . NORP had then issued an order to detective officer PERSON directing him to comply with his instructions that the applicant should be threatened with torture and , if necessary , subjected thereto . The subjection to pain was to be carried out under medical supervision , without any traces being left , by another specially trained police officer , who would be brought to the police station by helicopter . A police doctor had agreed to supervise the execution of NORP ’s order . The court noted that the measure had been aimed at finding out where the applicant had hidden J. , whose life NORP believed was at great risk . Therefore , PERSON had threatened the applicant in the manner ordered by NORP and had also informed him that a “ truth serum ” would be administered . After TIME , the applicant confessed that he had hidden J. ’s body under a jetty at a pond near PERSON .

ORG observed that the method of investigation had not been justified . It rejected the defence of “ necessity ” because the method in question violated human dignity , as codified in LAW . Respect for human dignity also lay at the heart of LAW , second sentence , of LAW . The protection of human dignity was absolute , allowing of no exceptions or any balancing of interests .

The GPE am ORG convicted detective officer PERSON of coercion committed by an official in the course of his duties . However , in terms of penalty , it cautioned the defendant and imposed a suspended fine of MONEY ( ORG ) per diem for DATE , which the defendant would be required to pay if he committed another offence during the probation period . Furthermore , the court convicted the deputy chief of the GPE police , NORP , of having incited PERSON , a subordinate , to commit coercion in the course of his duties . It also cautioned NORP and imposed on him a suspended fine of ORG CARDINAL per diem for DATE . The applicant had given evidence as a witness in these proceedings .

In determining the sentences , ORG considered that there were significant mitigating factors to be taken into account . It took into consideration that the GPE sole concern had been to save PERSON ’s life and that they had been under extreme pressure because of their respective responsibilities vis - à - vis the superior authority and the public . They had been exhausted at the relevant time and had acted in a very tense and hectic situation . They did not have any previous convictions . Moreover , NORP had taken responsibility for his acts by admitting and explaining them in a note for the police file on DATE . The proceedings had lasted a long time and had attracted immense media attention . The defendants had suffered prejudice in their professional career : NORP had been transferred to ORG of the Interior , and PERSON had been prohibited from acting in the prosecution of criminal offences . Furthermore , it was the first time that a conflict situation such as the one in the GPE case had been assessed by a NORP criminal court . The court took into consideration as aggravating factors that NORP had not acted spontaneously as he had already directed the use of force on TIME before he had given the order to E. Moreover , by their acts , the defendants had risked compromising the applicant ’s conviction for murder . The court further found that the preservation of the legal order did not warrant the enforcement of the fines imposed . Through the GPE criminal conviction it had been made clear that an order by a ORG agent to use force to obtain information was illegal .

The judgment became final on DATE .

Subsequently , NORP was appointed chief of ORG .

On DATE the applicant applied to the GPE am ORG for legal aid for bringing official liability proceedings against ORG for the payment of compensation . He claimed that he had been traumatised and in need of psychological treatment because of the methods deployed during the police investigation .

In its submissions dated DATE the GPE am GPE police headquarters contested that PERSON ’s conduct when questioning the applicant in TIME of DATE was to be legally classified as coercion and amounted to a breach of official duties .

On DATE the GPE am ORG dismissed the applicant ’s application for legal aid and the applicant appealed .

On DATE the GPE am ORG dismissed the applicant ’s appeal . Endorsing the reasons given by ORG , it confirmed , in particular , that police officers NORP and PERSON , when threatening the applicant , had infringed human dignity , which was inviolable , and had thus breached their official duties . However , the applicant would face difficulties establishing causation between the threats of torture and alleged mental damage allegedly necessitating psychological treatment . The ORG threat was negligible compared to the traumatisation caused by the fact of having killed a child . Moreover , even assuming that the applicant would be able to prove that detective officer PERSON had shaken him , causing him to hit his head against a wall , or had once hit him on the chest , allegedly causing a haematoma , such physical damage would be too minor to necessitate the payment of compensation . Furthermore , the violation of his human dignity by the threat of torture did not warrant the payment of compensation since the applicant had obtained sufficient satisfaction for this by the exclusion of his statements as evidence and the criminal conviction of the police officers .

On DATE ORG , allowing a constitutional complaint by the applicant , quashed ORG decision and remitted the case to that court . It found that in refusing to grant the applicant legal aid , ORG had violated the principle of equal access to court . In particular , that court had speculated that the applicant would not be able to prove that the threat to torture him had led to mental damage . In addition to that , it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation , during which he had been handcuffed , could be considered to be of minor importance . Moreover , the question whether the violation of the applicant ’s human dignity necessitated the payment of damages despite the satisfaction he had already obtained was a difficult legal question on which no precedent existed in a judgment of a court of final instance . It should , therefore , not be determined in an application for legal - aid proceedings .

The remitted proceedings are still pending before the GPE am ORG .

Article CARDINAL § CARDINAL of LAW , on the protection of human dignity , reads as follows :

“ Human dignity shall be inviolable . To respect and protect it shall be the duty of all ORG authorities . ”

Article CARDINAL § CARDINAL , second sentence , of LAW , on the rights of persons in detention , provides :

“ Persons taken into custody may not be subjected to mental or to physical ill - treatment . ”

Article CARDINALa of the Code of Criminal Procedure , on prohibited methods of interrogation ( verbotene Vernehmungsmethoden ) , provides :

“ CARDINAL . NORP The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill - treatment , induced fatigue , physical interference , the administration of drugs , torment , deception or hypnosis . Coercion may be used only in so far as it is permitted by the law on criminal procedure . Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited .

Measures which impair the accused ’s memory or ability to understand and accept a given situation [ Einsichtsfähigkeit ] shall not be permitted .

The prohibition under sub - paragraphs CARDINAL and CARDINAL shall apply even if the accused has consented [ to the proposed measure ] . Statements obtained in breach of this prohibition shall not be used [ in evidence ] , even if the accused has agreed to their use . ”

According to LAW , the intentional killing of a person is to be classified as murder if certain aggravating elements are present such as cupidity , treachery or intent to cover up another offence . Murder is punishable by life imprisonment .

A declaration by the sentencing court that the defendant ’s guilt is of a particular gravity may , inter alia , have a bearing on a subsequent decision regarding suspension of the latter part of the defendant ’s prison sentence on probation . Article CARDINALa of the Criminal Code states that the court is to suspend the remainder of a life sentence on probation if the convicted person has served DATE of his sentence , provided that this can be justified in the interests of public security and the particular gravity of the defendant ’s guilt does not warrant the continued execution of the sentence .

The United Nations Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment ( “ LAW ” ) , which was adopted by ORG on DATE ( Resolution CARDINAL ) and which came into force on DATE , provides :

“ CARDINAL . For the purposes of this Convention , the term ‘ torture’ means any act by which severe pain or suffering , whether physical or mental , is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . It does not include pain or suffering arising only from , inherent in or incidental to lawful sanctions .

“ ORG shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings , except against a person accused of torture as evidence that the statement was made . ”

“ CARDINAL . Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel , inhuman or degrading treatment or punishment which do not amount to torture as defined in DATE , when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . In particular , the obligations contained in LAW , DATE , DATE and CARDINAL shall apply with the substitution for references to torture of references to other forms of cruel , inhuman or degrading treatment or punishment .

Several institutions which monitor observance of the prohibition of torture and of other inhuman or degrading treatment have addressed the question of the scope of that prohibition in the context of threats of subjecting a person to physical harm .

ORG , in its judgment of DATE ( Merits , Reparations and Costs ) in the case of PERSON v. GPE ( Series C No . CARDINAL ) , found :

“ CARDINAL . With regard to the treatment that the ORG officials afforded to PERSON while she was unlawfully and arbitrarily detained , the court has considered proven that the alleged victim ’s head was covered by a hood , she was kept handcuffed to a bed , in a room with the light on and the radio at full volume , which prevented her from sleeping . In addition , she was subjected to very prolonged interrogations , during which she was shown photographs of individuals who showed signs of torture or had been killed in combat and she was threatened that she would be found by her family in the same way . The ORG agents also threatened to torture her physically or to kill her or members of her family if she did not collaborate . To this end , they showed her photographs of herself and her family and correspondence from her to her former husband ... Lastly , PERSON was obliged to film a video , which was subsequently broadcast by CARDINAL NORP television channels , in which she made a statement against her will , the contents of which she was forced to ratify at a press conference held after her release ...

An international juridical regime of absolute prohibition of all forms of torture , both physical and psychological , has been developed and , with regard to the latter , it has been recognised that the threat or real danger of subjecting a person to physical harm produces , under determined circumstances , such a degree of moral anguish that it may be considered ‘ psychological torture’ . ...

In light of the foregoing , the court declares that the ORG violated LAW [ on Human Rights ] , in relation to LAW thereof , and the obligations established in ORG and CARDINAL of ORG , to the detriment of PERSON . ”

The United Nations Special Rapporteur for ORG found in his report of DATE to ORG on the question of torture and other cruel , inhuman or degrading treatment or punishment ( ORG . ORG ) as follows :

“ As stated by ORG in its General Comment No . DATE ) , on LAW , the Special Rapporteur would like to remind governments that the prohibition of torture relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim , such as intimidation and other forms of threats . ” ( paragraph CARDINAL )

He pointed out that “ the fear of physical torture may itself constitute mental torture ” ( paragraph CARDINAL ) . Furthermore , the Special Rapporteur was of the opinion that :

“ ... serious and credible threats , including death threats , to the physical integrity of the victim or a third person can amount to cruel , inhuman or degrading treatment or even to torture , especially when the victim remains in the hands of law enforcement officials . ” ( paragraph CARDINAL)

DATE . The United Nations Human Rights Committee , in its Views adopted on DATE in the case of LOC v. GPE ( Communication No . CARDINAL ) , found as follows regarding the author of the communication , a concert pianist :

“ The author was subjected to severe physical and psychological torture , including the threat that the author ’s hands would be cut off by an electric saw , in an effort to force him to admit subversive activities . ” ( paragraph CARDINAL.CARDINAL )

ORG held that the author had been subjected to torture in violation of LAW ( ORG ) ( paragraph CARDINAL ) .

Materials before the ORG show that there is no clear consensus in GPE Parties to the Convention on the scope of the exclusionary rule .

The United Nations Human Rights Committee stated in its General Comment No . CARDINAL on torture or cruel , inhuman or degrading treatment or punishment ( LAW ORG ) of CARDINAL DATE :

“ CARDINAL . ... it follows from DATE , read together with LAW , that GPE must ensure an effective protection through some machinery of control . Complaints about ill - treatment must be investigated effectively by competent authorities . Those found guilty must be held responsible , and the alleged victims must themselves have effective remedies at their disposal , including the right to obtain compensation . Among the safeguards which may make control effective are ... provisions making confessions or other evidence obtained through torture or other treatment contrary to LAW ; ... ”

General Comment No . CARDINAL was replaced by General Comment No . CARDINAL concerning prohibition of torture and cruel treatment or punishment of DATE . In the latter , it is stated :

“ CARDINAL . It is important for the discouragement of violations under LAW that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment . ”

ORG , which monitors the implementation of ORG , stated in its Concluding Observations on GPE of CARDINAL DATE ( ORG . ORG ) as follows :

“ The ORG recommends that further legislative attention be paid to the strict enforcement of LAW and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognisance of the deciding judges in all judicial proceedings . ” ( paragraph CARDINAL )

The prohibition on using , in any manner prejudicial to the accused , information derived from facts learned as a result of the unlawful acts of ORG agents ( the so - called doctrine of the “ fruit of the poisonous tree ” ) is firmly rooted in the legal tradition of GPE ( see , for instance , ORG , no . DATE , PERSON v. PERSON , decision of DATE , CARDINAL GPE CARDINAL ( DATE ) , pp . CARDINAL et seq . ; ORG , no . CARDINAL , GPE v. GPE , decision of CARDINAL DATE , CARDINAL GPE CARDINAL ( DATE ) , pp . CARDINAL - CARDINAL and CARDINAL ; and ORG , no . CARDINAL - CARDINAL , Herring v. GPE , decision of DATE , CARDINAL GPE ... ( DATE ) , part II . A. , with further references ) . The prohibition applies to information obtained from coerced confessions ( see , on the issue of coercion , ORG , no . CARDINAL , GPE v. GPE , decision of CARDINAL DATE , CARDINAL GPE CARDINAL ( DATE ) , pp . CARDINAL , and ORG , no . CARDINAL , PERSON v. PERSON , decision of CARDINAL DATE , CARDINAL US CARDINAL ( DATE ) , pp . CARDINAL and CARDINAL - CARDINAL ) , meaning that if the confession leads to additional evidence , such evidence is also inadmissible in court in addition to the confession itself ( compare PERSON , cited above , p. CARDINAL , and PERSON , cited above , p. CARDINAL ) . The evidence is to be excluded , however , only if the illegality is the proximate cause of the discovery of the evidence . In other words , evidence will be excluded if it can be shown that “ but for ” the illegal conduct it would not have been found . The exclusionary rule does not apply where the connection between the illegal police conduct and the discovery of the evidence is so remote as to dissipate the taint . This is the case , for example , where the police relied on an independent source to find the evidence ( see PERSON , cited above , pp . CARDINAL - CARDINAL , and PERSON , cited above , pp . CARDINAL - CARDINAL , CARDINAL - CARDINAL and CARDINAL , with further references ) or where the evidence would ultimately or inevitably have been discovered even had no violation of any constitutional provision taken place ( see PERSON , cited above , pp . DATE ) .

The exclusionary rule is also applied in other jurisdictions . ORG found in its recent judgment of DATE in the case of LOC v. The ORG , case no . CARDINAL/CARDINAL , [ DATE ] ZASCA CARDINAL as follows :

“ Summary : The evidence of an accomplice extracted through torture ( including real evidence derived from it ) is inadmissible ...

... The ORG and the metal box were real evidence critical to the ORG ’s case against the appellant on the robbery counts . Ordinarily , as I have mentioned , such evidence would not be excluded because it exists independently of any constitutional violation . But these discoveries were made as [ a ] result of the police having tortured GPE . There is no suggestion that the discoveries would have been made in any event . If they had the outcome of this case might have been different .

Ramseroop made his statement to the police immediately after the metal box was discovered at his home following his torture . That his subsequent testimony was given apparently voluntarily does not detract from the fact that the information contained in that statement pertaining to the ORG and metal box was extracted through torture . ... therefore , there is an inextricable link between his torture and the nature of the evidence that was tendered in court . The torture has stained the evidence irredeemably .

To admit ORG ’s testimony regarding the ORG and metal box would require us to shut our eyes to the manner in which the police obtained this information from him . More seriously , it is tantamount to involving the judicial process in ‘ moral ORG . This ‘ would compromise the integrity of the judicial process ( and ) dishonour the administration of justice’ . In the long term , the admission of torture - induced evidence can only have a corrosive effect on the criminal justice system . The public interest , in my view , demands its exclusion , irrespective of whether such evidence has an impact on the fairness of the trial .

For all these reasons I consider ORG ’s evidence relating to the ORG and metal box to be inadmissible . ... ”


The applicant company , which conducted business within the textile industry , was not a member of any employers ' association . Thus , it was not automatically bound by any collective bargaining agreement ( kollektivavtal ) negotiated in the industry , and had not signed any such agreement of its own volition . It had CARDINAL employees CARDINAL of whom were members of ORG ( GPE ; hereinafter “ the union ” ) , an affiliated member of ORG ; hereinafter “ the ORG ” ) .

In DATE the union requested negotiations with the applicant company with a view to concluding a collective agreement . Such negotiations were held on DATE . TIME of the negotiations stated , inter alia , that the applicant company was not interested in reaching an agreement at that time but would consider the matter . TIME also recorded that the parties had concluded that the salaries paid by the applicant company were higher than the minimum wage stipulated in the collective agreement proposed by the union .

NORP In a subsequent written exchange the applicant company stated that it had no intention of concluding a collective agreement with the union .

Soon thereafter the union demanded that the applicant company sign the so - called ORG agreement ( ORG ) , a collective agreement specially conceived by the union for employers who were not members of an employers ' association . The applicant company declined , stating that its terms of employment were considerably more favourable to the employees than those stipulated in the ORG agreement , that the existing employment contracts were perfectly adequate and that the employees belonging to the union objected to the union intervening on their behalf . However , it offered to sign a collective agreement with the union incorporating its existing terms of employment . The union rejected this proposal and announced that it might take industrial action .

On DATE the union gave the applicant company formal notice ( varsel ) that it would take action by ordering the cessation of all work at the company and by imposing a “ blockade ” on the company from CARDINAL DATE onwards unless an agreement had been reached before that date .

On DATE the applicant company instituted proceedings against the union in ORG ( tingsrätt ) , claiming that the threatened industrial action was unlawful and that the union should be ordered to withdraw the notice . The applicant company also requested that ORG make an interim order to that effect .

On DATE the union took the industrial action . It lasted DATE . The notice remained effective , however .

Negotiations were thereafter held before ORG ( Statens förlikningsmannaexpedition ) . The union stated that certain parts of the ORG agreement were not negotiable . The applicant company indicated that it was considering joining an employers ' association , ORG ) , to which the union responded that it would not take any further industrial action against the company . However , the applicant company did not join that association and the negotiations broke down .

On DATE ORG rejected the applicant company 's request for an interim order .

In the substantive proceedings , the union claimed that ORG had no jurisdiction to decide the dispute and that , instead , it should be referred to ORG ) , whose decision should be final . By a decision of DATE ORG , referring to chapter CARDINAL , section CARDINAL , subsection CARDINAL of the Litigation in Labour Disputes Act ( NORP om rättegången i arbetstvister , PERSON ; hereinafter “ the DATE LAW ) and section CARDINAL of ORG ( ORG om medbestämmande i arbetslivet , LOC ; hereinafter “ the DATE LAW ) , agreed with the union and transferred the case to ORG .

Before ORG , the applicant company claimed that the composition of the court which would determine the case should be restricted to professional judges – i.e. without members representing employers ' and employees ' interests – as it would otherwise not meet the requirement of objective impartiality under LAW .

On DATE a bench of ORG composed of members who did not represent labour market interests rejected the applicant company 's claim , stating that at the main hearing of a case , the composition of the court had to be in accordance with chapter CARDINAL , section CARDINAL of LAW .

ORG held a hearing in the case on DATE .

The applicant company maintained that the industrial action taken by the union was aimed at forcing it to join an employers ' association or to accept the collective ORG agreement drawn up by the union . It stated that CARDINAL union members were employed at the company and both of them had declared that they did not want to take part in the industrial action . The applicant company also claimed that its terms of employment were more favourable than those stipulated in the ORG agreement . Since the means employed by the union were not reasonably proportional to the aim sought to be achieved , the industrial action had violated the applicant company 's right not to join an employers ' association and thus its right to negative freedom of association under LAW . Alternatively , the applicant company asserted that the industrial action conflicted with a general principle of proportionality which it maintained was applicable under NORP law , as it could entail serious economic consequences for the company .

For its part , the union claimed that , on the whole , the terms of employment provided by the applicant company were not more favourable than those contained in the ORG agreement although it accepted that the salaries of its CARDINAL members were higher than the minimum salary prescribed by that agreement . The union also stated that the ORG agreement could be adapted to meet the special requirements of the applicant company . It further argued that the ORG was not applicable to the dispute as it only governed relations between individuals and the ORG and LAW was applicable as lex specialis . Alternatively , it asserted that LAW did not afford any protection to a limited liability company and that , in any event , the judgment of ORG in the case of PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE , p. CARDINAL et seq . ) showed that LAW did not confer any right not to sign a collective agreement . As regards the industrial action that had been taken , the union stated that it served the legitimate aims of improving the employment situation for union members and protecting them in various ways and could not be considered disproportionate to those aims . The union also claimed that a general principle of proportionality , as invoked by the applicant company , could not be used to limit the constitutional right to take industrial action . In its submission , the right to take such action against employers who were not bound by collective agreements was in principle unlimited under NORP law .

By a judgment of CARDINAL DATE ORG found in favour of the union . Noting at the outset that the parties agreed that the industrial action in question was not unlawful under LAW , it went on to examine in detail whether it could involve a violation of the applicant company 's right to negative freedom of association under LAW , which had been part of NORP law since its incorporation into domestic law on DATE .

First , ORG rejected the union 's preliminary objections as to the applicability of the LAW , as such , to the dispute at hand . It noted , inter alia , that the rules on industrial action in LAW which were based on the constitutional principle that the right to take such action is unlimited unless otherwise provided by law – prescribed the situations in which such action would be unlawful . Thus , it could not be excluded that further restrictions on the right to take industrial action could follow from other legislation , including the Convention . The provisions of LAW , therefore , did not prevent LAW from being applicable .

ORG then went on to examine whether the industrial action had violated LAW . It noted that the rationale behind the union 's action was not to force the applicant company to join an employers ' association but to conclude a collective agreement with it which , according to the union , would promote the economic interests of its members . Among other things , the proposed agreement prescribed that compensation be paid for overtime work , which , indisputably , was not the case under the applicant company 's terms of employment . Having regard , inter alia , to the aforementioned judgment in the case of PERSON v. GPE , ORG concluded that the industrial action had not violated the applicant company 's rights under LAW . It found also that there was no basis in law for the applicant company 's contention that a general principle of proportionality was applicable in labour disputes .

ORG which heard the case and delivered judgment was composed of CARDINAL members . In accordance with LAW , ORG was composed of CARDINAL legally trained and qualified judges and CARDINAL lay assessors . CARDINAL assessor had been appointed because of her special knowledge of the labour market . However , she did not represent any employers ' or employees ' interests . Of the other CARDINAL assessors , CARDINAL had been nominated by employers ' associations ( a director of ORG Confederation ( Svenska Arbetsgivareföreningen ; hereinafter “ the ORG ” ) and an employee of ORG representing the ORG employers ) and CARDINAL by employees ' associations ( ombudsmen in the ORG and the joint ORG of Salaried Employees and ORG ( NORP FAC and ORG Centralorganisation ; hereinafter “ the ORG ” ) , respectively ) .

The member nominated by the ORG disagreed with ORG judgment and considered that the industrial action in question violated LAW , as the union had failed to show that the terms of employment stipulated by the ORG agreement were more favourable than those provided by the applicant company .

Following ORG judgment , the union made a further approach to the applicant company with a view to concluding a collective agreement . The applicant company again refused but informed the union that the rules on overtime work set out in the ORG agreement had been introduced at the company .

On DATE the union applied to ORG for a declaratory judgment establishing the union 's right to take immediate industrial action against the applicant company . It also requested the court to take an interim decision on this matter .

The applicant company opposed the union 's claims and again objected to the composition of ORG . It also requested an order requiring the union to provide security for any damage the company might sustain .

By a decision of CARDINAL DATE ORG , composed of members who did not represent labour market interests , rejected the applicant company 's challenge to its impartiality on the same grounds as in its decision of DATE .

Following a hearing on CARDINAL DATE , ORG , by a decision of DATE , granted the union 's request for an interim declaration that the proposed industrial action was lawful . It thus rejected the applicant company 's claims that the union 's application was res judicata on account of its previous judgment and that the requirements under NORP law for a declaratory decision – whether final or interim – were not met . It also rejected the applicant company 's claim that the proposed action should be deemed unlawful as the rules on overtime work set out in the ORG agreement had been introduced at the company DATE an assertion which was not confirmed by the union – and as the CARDINAL union members had been dismissed owing to scarcity of work at the company . Referring to its established case - law , ORG further found that the union , being an organisation , did not have to provide security .

The composition of ORG which heard and examined the union 's claims was the same as for the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , including CARDINAL assessors nominated by employers ' associations ( another ORG director and the same employee of ORG ) and CARDINAL by employees ' associations ( a former vice - president of a trade union affiliated to the ORG and a former head lawyer of a trade union affiliated to ORG ) .

The member nominated by the ORG submitted an opinion dissenting from ORG decision , on the ground that it was not perfectly clear that the proposed industrial action was lawful , for which reason the union 's interim request should be rejected .

The applicant company complained to ORG domstolen ) , requesting that ORG decision of CARDINAL DATE be set aside owing to a grave procedural error ( domvilla ) . It argued that ORG could not rule on the union 's request unless security had been furnished for the applicant company 's potential loss . Alternatively , the applicant company 's negative freedom of association had been breached as a consequence of the union having been afforded procedural privileges in its capacity as an organisation . On DATE ORG refused the applicant company 's request , finding that it had not established any grounds for quashing ORG decision .

It would appear that the union proceeded with industrial action on DATE . Supportive industrial action was also taken by other trade unions . On CARDINAL DATE the applicant company joined ORG and thus became bound by a collective agreement . The union 's own industrial action was immediately suspended but supportive action by another trade union lasted over the Easter DATE until DATE .

On DATE , following a settlement between the applicant company and the union and the latter 's withdrawal of the application it had lodged on DATE , ORG struck the proceedings out of its list .

Due to declining profitability , the applicant company went into voluntary liquidation in DATE . By a decision of DATE the ORG of GPE declared the applicant company insolvent . On DATE the winding up was terminated and the applicant company dissolved .

The right to take industrial action is guaranteed under LAW . LAW , section CARDINAL of ORG ( Regeringsformen ) provides the following :

“ Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement . ”

The law referred to is ORG at Work Act ( “ the LAW ” ) . The right of association is defined in section CARDINAL :

“ Right of association means the right of employers and employees to belong to an organisation of employers or employees , to benefit from their membership as well as to work for an organisation or for the founding of CARDINAL . ”

This right is further regulated in section CARDINAL :

“ The right of association shall not be violated . A violation ... will occur , if anyone from the employer 's side or the employee 's side takes any action to the detriment of anybody on the other side by reason of that person having exercised his right of association , or if anybody on either side takes any action against anybody on the other side with a view to inducing that person not to exercise his right of association . A violation will occur even if the action so taken is designed to fulfil an obligation towards another party .

An employers ' or employees ' organisation shall not have to tolerate a violation of its right of association encroaching upon its activities . Where there is both a local and a central organisation , these provisions shall apply to the central organisation .

If the right of association is violated by termination of an agreement or another legal measure or by a provision in a collective agreement or other contract , that measure or provision shall be void . ”

Section CARDINAL provides a right of negotiation :

“ An employees ' organisation shall have the right to negotiate with an employer regarding any matter relating to the relationship between the employer and any member of the organisation who is or has been employed by that employer . An employer shall have a corresponding right to negotiate with an employees ' organisation .

A right of negotiation ... shall also be enjoyed by the employees ' organisation in relation to any organisation to which an employer belongs , and by the employer 's organisation in relation to the employees ' organisation . ”

Under section CARDINAL there is an obligation for parties bound by a collective agreement to maintain peaceful industrial relations :

“ Employers and employees who are bound by a collective agreement may not initiate or take part in a work stoppage ( lockout or strike ) , blockade , boycott or other comparable industrial action , if the agreement has been concluded by an organisation and that organisation has not decided on the measure in the prescribed manner , if the measure is contrary to a provision on peaceful industrial relations in a collective agreement or if the measure is designed :

NORP to exert pressure in a dispute concerning the validity , continuance or meaning of the collective agreement or whether particular conduct is contrary to the agreement or this Act ,

NORP to bring about changes to the agreement ,

NORP to give effect to a provision which it is intended will be applied once the agreement ceases to be valid , or

NORP to support a person who has no right to take industrial action .

Industrial action taken in contravention of the first paragraph shall be unlawful .

Labour disputes are generally governed by the provisions of LAW ( PERSON ) . However , ORG ( “ the DATE LAW ) contains specific rules relevant to disputes concerning the application of LAW and to other labour disputes . The courts ' jurisdiction is set out in chapter CARDINAL of LAW . LAW provides :

“ The ORG shall , as a court of first instance , hear and decide disputes referred to it by an employers ' or an employees ' organisation or by an employer which has itself entered into a collective agreement , if the case concerns :

a dispute relating to a collective agreement or other labour dispute referred to in [ LAW ] ,

NORP another labour dispute on condition that there is a valid collective agreement between the parties or that an individual employee concerned by the dispute is employed in work covered by a collective agreement by which the employer is bound .

The ORG shall also be the competent court under the first paragraph when a collective agreement temporarily ceases to be valid .

Other labour disputes between the same or other parties may be heard together with a labour dispute under the first or second paragraphs , if the ORG finds it expedient in the light of the investigation or other circumstances . When appropriate , the cases may be severed again .

ORG shall have jurisdiction , as a court of first instance , to hear and decide all disputes referred to in section CARDINAL of [ LAW ] ” .

Other labour disputes are heard by ORG ( section CARDINAL ) and an appeal lies to ORG ( section CARDINAL ) . ORG judgments and decisions are final ( section CARDINAL ) .

The composition of ORG is regulated in chapter CARDINAL of LAW . Sections CARDINAL contain rules on the number of members of ORG and the eligibility , term of office , nomination and election of members . Section CARDINAL states :

“ The ORG shall be composed of CARDINAL presidents , CARDINAL vice - presidents and CARDINAL other members .

Members shall be NORP citizens and may not be minors , undischarged bankrupts or under guardianship ... . Before taking up office in ORG , they shall take the judicial oath .

Members ... shall be appointed by the Government for DATE . ”

Section CARDINAL provides :

“ The presidents , vice - presidents and CARDINAL other members shall be elected from among persons who can not be considered to represent employers ' or employees ' interests .

The presidents and vice - presidents shall be legally qualified and experienced in the judicial profession .

The CARDINAL other members shall have special knowledge of the conditions on the labour market . ”

Section CARDINAL reads :

“ Of the other CARDINAL members , CARDINAL shall be elected on the proposal of ORG [ Föreningen PERSON ; until DATE ORG ] , one on the proposal of ORG [ ORG ] , one on the proposal of ORG [ ORG ] , one on the proposal of ORG [ ORG ; until DATE the text read “ one as a representative of the ORG as employer ” ] , CARDINAL on the proposal of ORG , CARDINAL on the proposal of ORG and CARDINAL on the proposal of ORG .

Section CARDINAL regulates the composition of ORG in individual cases . It reads as follows :

“ The ORG shall sit with a president and CARDINAL or CARDINAL other members . Of the members referred to in section CARDINAL , CARDINAL or CARDINAL shall take part . Of the members referred to in section CARDINAL , CARDINAL or CARDINAL shall take part , in equal numbers from the employers ' side and the employees ' side .

ORG may also sit with a president and CARDINAL member each from the employers ' side and the employees ' side :

at a main hearing in a case which has no jurisprudential significance and is in other respects uncomplicated ;

NORP in the determination of a case without a main hearing ;

NORP in other proceedings not conducted at a main hearing .

ORG may further sit with CARDINAL professional judges in proceedings referred to in subsections CARDINAL ( CARDINAL ) and ( CARDINAL ) if the examination essentially concerns matters unrelated to labour law .

LAW , section CARDINAL of ORG , which contains provisions on safeguarding the independence of the judiciary , is applicable to the members of ORG . It provides :

“ Neither a public authority nor ORG may decide how a court should adjudicate an individual case or otherwise apply a rule of law in a particular case . ”