Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 6 - Right to a fair trial (Article 6-1 - Access to court;Civil rights and obligations);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ganna Yudkivska;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE in ORG , where he lived until DATE and where his CARDINAL - sister and his father ’s second wife , his only close relatives , also live . On DATE a panel of occupational physicians declared him unfit to work . The panel found that as a result of being diagnosed with schizophrenia in DATE , the applicant had a PERCENT degree of disablement but did not require assistance . He is in receipt of an invalidity pension on that account .

On an unspecified date in DATE , at the request of the applicant ’s CARDINAL relatives , the Ruse regional prosecutor applied to ORG ( GPE съд ) for a declaration of total legal incapacity in respect of the applicant . In a judgment of DATE , the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since DATE , and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired . The court found that the applicant ’s condition was not so serious as to warrant a declaration of total incapacity . It observed , in particular , that during the period from DATE he had been admitted to a psychiatric hospital on several occasions . The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant . Furthermore , according to certain other people it interviewed , the applicant had sold all his possessions , begged for a living , spent all his money on alcohol and became aggressive whenever he drank .

That judgment was upheld in a judgment of DATE by ORG ( ORG съд ) on an appeal by the applicant , and was subsequently transmitted to ORG on DATE for the appointment of a guardian .

NORP Since the applicant ’s family members had refused to take on any guardianship responsibilities , on DATE ORG appointed PERSON , a council officer , as the applicant ’s guardian until DATE .

On DATE PERSON asked the ORG social services to place the applicant in a social care home for people with mental disorders . She appended to the application form a series of documents including a psychiatric diagnosis . Social services drew up a welfare report on the applicant , noting on DATE that he was suffering from schizophrenia , that he lived alone in a small , run - down annexe to his CARDINAL - sister ’s house and that his CARDINAL - sister and his father ’s second wife had stated that they did not wish to act as his guardian . The requirements for placement in a social care home were therefore deemed to be fulfilled .

On DATE a welfare - placement agreement was signed between GPE and the social care home for adults with mental disorders near the village of LOC in the municipality of GPE ( “ the NORP social care home ” ) , an institution under the responsibility of ORG . The applicant was not informed of the agreement .

DATE , the applicant was taken by ambulance to the NORP social care home , QUANTITY from Ruse . Before the ORG , he stated that he had not been told why he was being placed in the home or for how long ; the ORG did not dispute this .

On DATE , at the request of the Director of the NORP social care home , the applicant was registered as having his home address in the municipality of GPE . The residence certificate stated that his address had been changed for the purpose of his “ permanent supervision ” . According to the most recent evidence submitted in DATE , the applicant was still living in the home at that time .

On DATE the applicant ’s lawyer requested ORG to appoint a guardian for her client . In a letter dated DATE , she was informed that ORG had decided on DATE to appoint the Director of the NORP social care home as the applicant ’s guardian .

The agreement signed between the guardian PERSON and the NORP social care home on DATE ( see paragraph CARDINAL above ) did not mention the applicant ’s name . It stated that the home was to provide food , clothing , medical services , heating and , obviously , accommodation , in return for payment of an amount determined by law . It appears that the applicant ’s entire invalidity pension was transferred to the home to cover that amount . The agreement stipulated that PERCENT of the sum was to be used as payment for the services provided and PERCENT put aside for personal expenses . According to the information in the case file , the applicant ’s invalidity pension , as updated in DATE , amounted to MONEY ( ORG – MONEY ( ORG ) ) . The agreement did not specify the duration of the provision of the services in question .

The NORP social care home is located in an isolated area of the GPE mountains in south - west GPE . It is accessible via a dirt track from the village of NORP , the nearest locality QUANTITY away .

The home , built in DATE , comprises CARDINAL buildings , where its residents , all male , are housed according to the state of their mental health . According to a report produced by ORG in DATE , there were CARDINAL people living in the home , CARDINAL was in hospital and CARDINAL had absconded . Among the residents , CARDINAL were entirely lacking legal capacity , CARDINAL were partially lacking capacity and the others enjoyed full legal capacity . Each building has a yard surrounded by a high metal fence . The applicant was placed in block CARDINAL of the home , reserved for residents with the least serious health problems , who were able to move around the LOC and go alone to the nearest village with prior permission .

According to the applicant , the home was decaying , dirty and rarely heated in DATE and , as a result , he and the other residents were obliged to sleep in their coats during DATE . The applicant shared a room measuring QUANTITY . m with CARDINAL other residents and the beds were practically side by side . He had only a bedside table in which to store his clothes , but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes . The home ’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed .

The applicant asserted that the food provided at the home was insufficient and of poor quality . He had no say in the choice of meals and was not allowed to help prepare them .

Access to the bathroom , which was unhealthy and decrepit , was permitted once DATE . The toilets in the courtyard , which were unhygienic and in a very poor state of repair , consisted of holes in the ground covered by dilapidated shelters . Each toilet was shared by CARDINAL people . Toiletries were available only sporadically .

NORP In their memorial before FAC , the Government stated that renovation work had been carried out in DATE in the part of the home where the applicant lived , including the sanitary facilities . The home now had central heating . The diet was varied and regularly included fruit and vegetables as well as meat . Residents had access to television , books and games . The ORG provided them all with clothes . The applicant did not dispute these assertions .

The home ’s management kept hold of the applicant ’s identity papers , allowing him to leave the home only with special permission from the Director . He regularly went to the village of ORG . It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant .

DATE the applicant returned to Ruse CARDINAL times on leave of absence . Each trip was authorised for a period of DATE . The journey cost ORG ( approximately ORG CARDINAL ) , which was paid to the applicant by the home ’s management .

The applicant returned to ORG before the end of his authorised period of leave after his first CARDINAL visits to ORG . According to a statement made by the Director of the home to the public prosecutor ’s office on an unspecified date , the applicant came back early because he was unable to manage his finances and had no accommodation .

The third period of leave was authorised from DATE . After the applicant failed to return on the scheduled date , the Director of the home wrote to the Ruse municipal police on DATE , asking them to search for the applicant and transfer him to GPE , where employees of the home would be able to collect him and take him back to NORP . On DATE the Ruse police informed the Director that the applicant ’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice . He was driven back to the social care home on DATE , apparently by staff of the home .

The applicant had access to a television set , several books and a chessboard in a common room at the home until TIME , after which the room was kept locked . The room was not heated in DATE and the residents kept their coats , hats and gloves on when inside . No other social , cultural or sports activities were available .

The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that , as he did not have access to his own money , he could not buy any either . The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him .

It appears from a medical certificate of DATE ( see paragraph CARDINAL below ) that , following his placement in the home in DATE , the applicant was given anti - psychotic medication ( carbamazepine ( CARDINAL mg ) ) under the DATE supervision of a psychiatrist .

In addition , at ORG hearing the applicant ’s representatives stated that their client had been in stable remission since DATE and had not undergone any psychiatric treatment in DATE .

DATE , the Director of the social care home and the home ’s social worker drew up evaluation reports on the applicant ’s behaviour and social skills . The reports indicated that the applicant was uncommunicative , preferred to stay on his own rather than join in group activities , refused to take his medication and had no close relatives to visit while on leave of absence . He was not on good terms with his CARDINAL - sister and nobody was sure whether he had anywhere to live outside the social care home . The reports concluded that it was impossible for the applicant to reintegrate into society , and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and , in the long term , reintegration into his family . It appears that he was never offered any therapy to that end .

The case file indicates that in DATE the applicant ’s guardian asked ORG to grant a social allowance to facilitate his reintegration into the community . Further to that request , on DATE the municipal social assistance department carried out a “ social assessment ” ( социална оценка ) of the applicant , which concluded that he was incapable of working , even in a sheltered environment , and had no need for training or retraining , and that in those circumstances he was entitled to a social allowance to cover the costs of his transport , subsistence and medication . On DATE the municipal social assistance department granted the applicant a DATE allowance of ORG MONEY ( approximately ORG CARDINAL) . On DATE the allowance was increased to ORG MONEY ( approximately EUR CARDINAL ) .

In addition , at his lawyer ’s request , the applicant was examined on DATE by Dr V.S. , a different psychiatrist from the one who regularly visited the social care home , and by a psychologist , ORG The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on DATE ( see paragraph CARDINAL below ) was inaccurate in that the patient did not display all the symptoms of that condition . It stated that , although the applicant had suffered from the condition in the past , he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “ verbal aggression ” ; that he had not undergone any treatment for the condition DATE ; and that his health had visibly stabilised . The report noted that no risk of deterioration of his mental health had been observed and stated that , in the opinion of the home ’s Director , the applicant was capable of reintegrating into society .

According to the report , the applicant ’s stay in the NORP social care home was very damaging to his health and it was desirable that he should leave the home , otherwise he was at risk of developing “ institutionalisation syndrome ” the longer he stayed there . The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible , and that the only aspect to monitor was his tendency towards alcohol abuse , which had been apparent prior to DATE . In the view of the experts who had examined the applicant , the behaviour of an alcohol - dependent person could have similar characteristics to that of a person with schizophrenia ; accordingly , vigilance was required in the applicant ’s case and care should be taken not to confuse the CARDINAL conditions .

On DATE the applicant , through his lawyer , asked the public prosecutor ’s office to apply to ORG to have his legal capacity restored . On DATE the public prosecutor requested the NORP social care home to send him a doctor ’s opinion and other medical certificates concerning the applicant ’s disorders in preparation for a possible application to the courts for restoration of his legal capacity . Further to that request , the applicant was admitted to a psychiatric hospital from DATE to DATE for a medical assessment . In a certificate issued on DATE , the doctors attested that the applicant showed symptoms of schizophrenia . As his health had not deteriorated since he had been placed in the home in DATE , the regime to which he was subject there had remained unchanged . He had been on maintenance medication since DATE under the DATE supervision of a psychiatrist . A psychological examination had revealed that he was agitated , tense and suspicious . His communication skills were poor and he was unaware of his illness . He had said that he wanted to leave the home at all costs . The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the NORP social care home .

On DATE the regional prosecutor refused to bring an action for restoration of the applicant ’s legal capacity on the grounds that , in the opinion of the doctors , the Director of the NORP social care home and the home ’s social worker , the applicant was unable to cope on his own , and that the home , where he could undergo medical treatment , was the most suitable place for him to live . The applicant ’s lawyer challenged the refusal to bring the action , arguing that her client should have the opportunity to assess by himself whether or not , having regard to the living conditions at the home , it was in his interests to remain there . She pointed out that the enforced continuation of his stay in the home , on the pretext of providing him with treatment in his own interests , amounted in practice to a deprivation of liberty , a situation that was unacceptable . A person could not be placed in an institution without his or her consent . In accordance with the legislation in force , anyone under partial guardianship was free to choose his or her place of residence , with the guardian ’s agreement . The choice of residence was therefore not a matter within the competence of the prosecution service . Despite those objections , the regional prosecutor ’s refusal was upheld on DATE by the appellate prosecutor , and subsequently on DATE by ORG at ORG .

On DATE the applicant , through his lawyer , asked the mayor of GPE to bring a court action for his release from partial guardianship . In a letter of DATE , the mayor of PERSON refused his request , stating that there was no basis for such an action in view of the medical certificate of DATE , the opinions of the Director and the social worker , and the conclusions reached by the public prosecutor ’s office . On DATE the applicant ’s lawyer applied to ORG for judicial review of the mayor ’s decision , under LAW ( “ the ORG ” ) ( see paragraph DATE below ) . In a letter of DATE , ORG stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him , and that it should be specified whether his guardian had intervened in the procedure . On an unspecified date the applicant ’s lawyer submitted a copy of the form of authority signed by the applicant . She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed . On DATE the court held a hearing at which the representative of the mayor of GPE objected that the form of authority was invalid as it had not been countersigned by the guardian . The guardian , who was present at the hearing , stated that he was not opposed to the applicant ’s application , but that the latter ’s old - age pension was insufficient to meet his needs and that , accordingly , the NORP social care home was the best place for him to live .

The Dupnitsa District Court gave judgment on DATE . As to the admissibility of the application for judicial review , it held that , although the applicant had instructed his lawyer to represent him , she was not entitled to act on his behalf since the guardian had not signed the form of authority . However , it held that the guardian ’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer , and that the application was therefore admissible . As to the merits , the court dismissed the application , finding that the guardian had no legitimate interest in contesting the mayor ’s refusal , given that he could apply independently and directly for the applicant to be released from partial guardianship . Since the judgment was not subject to appeal , it became final .

Lastly , the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home . However , his requests had always been refused .

Section CARDINAL of the Persons and Family Act of CARDINAL DATE provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable . Adults with milder forms of such disorders are to be partially incapacitated . Persons who are entirely deprived of legal capacity are placed under full guardianship ( настойничество ) , whereas those who are partially incapacitated are placed under partial guardianship ( попечителство – literally “ trusteeship ” ) . In accordance with sections CARDINAL and CARDINAL of the LAW , persons under partial guardianship may not perform legal transactions without their guardian ’s consent . They may , however , carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work . Accordingly , the guardian of a partially incapacitated person can not independently perform legal transactions that are binding on that person . This means that contracts signed only by the guardian , without the consent of the person partially lacking legal capacity , are invalid .

Under LAW ( “ the ORG ” ) , persons under full guardianship are represented before the courts by their guardian . Persons under partial guardianship , however , are entitled to take part in court proceedings , but require their guardian ’s consent . Accordingly , the guardian of a partially incapacitated person does not perform the role of a legal representative . The guardian can not act on behalf of the person under partial guardianship , but may express agreement or disagreement with the person ’s individual transactions ( ORG , GPE , GPE гражданско процесуално право , ORG , DATE г. , стр. CARDINAL ) . In particular , a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian ( ibid . , стр. CARDINAL ) .

There are CARDINAL stages to the procedure for placing a person under partial guardianship : the declaration of partial incapacity and the appointment of a guardian .

The first stage involves a judicial procedure which at the material time was governed by ORG CARDINAL to CARDINAL of the DATE ORG , which have been reproduced unchanged in ORG CARDINAL to CARDINAL of the new DATE ORG . A declaration of partial incapacity may be sought by the person ’s spouse or close relatives , by the public prosecutor or by any other interested party . The court reaches its decision after examining the person concerned at a public hearing DATE or , failing that , after forming a first - hand impression of the person ’s condition DATE and interviewing the person ’s close relatives . If the statements thus obtained are insufficient , the court may have recourse to other evidence , such as an expert medical assessment . According to domestic case - law , an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded ( ORG DATE от CARDINAL г. по гр. д. № DATE г. ; ORG № CARDINAL от ORG г. по гр. д. № CARDINAL/CARDINAL г. ) .

The second stage involves an administrative procedure for the appointment of a guardian , which at the material time was governed by LAW ( ORG CARDINAL to CARDINAL ) of the DATE ORG ; these provisions have been reproduced , with only minor amendments , in LAW to CARDINAL of the new DATE ORG . The administrative stage is conducted by an authority referred to as “ the guardianship authority ” , namely the mayor or any other municipal council officer designated by him or her .

The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests .

Measures taken by the guardian are subject to review by the guardianship authority . At the authority ’s request , the guardian must report on his or her activities . If any irregularities are observed , the authority may request that they be rectified or may order the suspension of the measures in question ( see Articles CARDINAL § CARDINAL and CARDINAL of the DATE ORG , and Articles CARDINAL and CARDINAL § § CARDINAL and CARDINAL , of the DATE ORG ) . It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian .

Decisions by the mayor , as the guardianship authority , and any refusal by the mayor to appoint a guardian or to take other steps provided for in the ORG are , for their part , amenable to judicial review . They may be challenged by interested parties or the public prosecutor before the district court , which gives a final decision on the merits ( LAW DATE ORG ) . This procedure allows close relatives to request a change of guardian in the event of a conflict of interests ( ORG DATE от CARDINAL г. по гр. д. № CARDINAL/CARDINAL г. ) . According to domestic case - law , fully incapacitated persons are not among the “ interested parties ” entitled to initiate such proceedings ( GPE № DATE от CARDINAL г. на ORG по адм. д. № DATE ) . There is no domestic case - law showing that a partially incapacitated person is authorised to do so .

Furthermore , the guardianship authority may at any time replace a guardian who fails to discharge his or her duties ( LAW DATE ORG ) . By LAW , a person can not be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship . LAW DATE ORG provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests . In both cases , the guardianship authority may also appoint an ad hoc representative .

By virtue of LAW ORG , this procedure is similar to the partial - guardianship procedure . It is open to anyone entitled to apply for a person to be placed under partial guardianship , and also to the guardianship authority and the guardian . The above - mentioned provision has been reproduced in LAW ORG . On CARDINAL DATE ORG delivered a decision ( no . CARDINAL/CARDINAL ) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity . Paragraph CARDINAL of the decision refers to the procedure for restoration of legal capacity and reads as follows :

“ The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity ( Articles CARDINAL and CARDINAL § § CARDINAL and CARDINAL of the ORG ) . The persons who requested the measure or the close relatives are treated as respondent parties in the procedure . There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed .

Persons under partial guardianship may request , either individually or with the consent of their guardian , that the measure be lifted . They may also ask the guardianship authority or the guardianship council to bring an action under LAW ORG in the regional court which deprived them of legal capacity . In such cases , they must show that the application is in their interests by producing a medical certificate . In the context of such an action , they will be treated as the claimant . Where the guardian of a partially incapacitated person , the guardianship authority or the guardianship council ( in the case of a fully incapacitated person ) refuses to bring an action for restoration of legal capacity , the incapacitated person may ask the public prosecutor to do so ( Постановление № CARDINAL от CARDINAL.II.CARDINAL г. , GPE на ВС ) . ”

In addition , the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian ’s request and the person had been released from guardianship ( ORG № DATE от CARDINAL г. на ORG по PERSON DATE г. , V г.о. ) .

Section PERSON ) of the Obligations and Contracts Act DATE provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void .

In accordance with section CARDINAL of the same Act , contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable . A ground of incurable nullity may be raised on any occasion , whereas a ground of voidability may be raised only by means of a court action . The right to raise a ground of voidability becomes time - barred after a period of DATE from the date of release from partial guardianship if a guardian is not appointed . In other cases , the period in question begins to run from the date on which a guardian is appointed ( section CARDINAL ) , in conjunction with section CARDINAL(CARDINAL)(e ) , of the above - mentioned LAW ; see also ORG № CARDINAL от CARDINAL г. по гр. д. № CARDINAL г. , I г. о. , ORG съд ORG от CARDINAL г. по т. д. № DATE г. на I състав , GPE Районен съд ORG CARDINAL от CARDINAL г. по гр. д. № DATE ) .

By virtue of ORG CARDINAL and CARDINAL § CARDINAL of the DATE ORG , persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “ exceptional reasons ” require them to live elsewhere . Where the place of residence is changed without the guardian ’s consent , the guardian may request the district court to order the person ’s return to the official address . By LAW and QUANTITY of the DATE ORG , before reaching a decision in such cases , the court is required to interview the person under guardianship . If it finds that there are “ exceptional reasons ” , it must refuse to order the person ’s return and must immediately inform the municipal social assistance department so that protective measures can be taken .

NORP The district court ’s order may be appealed against to the president of the regional court , although its execution can not be stayed .

Under LAW DATE , social assistance is available to people who , for medical and social reasons , are incapable of meeting their basic needs on their own through work , through their own assets or with the help of persons required by law to care for them ( section CARDINAL of the Act ) . Social assistance consists of the provision of various financial benefits , benefits in kind and social services , including placement in specialised institutions . Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices ( section CARDINAL ) ) .

By virtue of the implementing regulations for LAW DATE ( PERSON за прилагане на Закона за социално подпомагане ) , CARDINAL categories of institutions are defined as “ specialised institutions ” for the provision of social services : ( CARDINAL ) children ’s homes ( homes for children deprived of parental care , homes for children with physical disabilities , homes for children with a mental deficiency ) ; ( CARDINAL ) homes for adults with disabilities ( homes for adults with a mental deficiency , homes for adults with mental disorders , homes for adults with physical disabilities , homes for adults with sensory disorders , homes for adults with dementia ) ; and ( CARDINAL ) old people ’s homes ( Regulation CARDINAL(CARDINAL ) ) . Social services are provided in specialised institutions where it is no longer possible to receive them in the community ( Regulation CARDINAL(CARDINAL ) ) . Under domestic law , placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty .

Similarly , in accordance with Decree no . CARDINAL of DATE on the conditions for obtaining social services ( ORG № CARDINAL за условията и реда за извършване на социални услуги ) , adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment ( Articles CARDINAL , point ( CARDINAL ) , and CARDINAL of the Decree ) . Article CARDINAL § CARDINAL , point ( CARDINAL ) , of the LAW provides that when a person is placed in a social care home , a medical certificate concerning the person ’s state of health must be produced . By LAW , a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative , on the basis of a model approved by ORG . The person may be transferred to another home or may leave the institution in which he or she has been placed : ( CARDINAL ) at his or her request or at the request of his or her legal representative , submitted in writing to the director of the institution ; ( CARDINAL ) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home ; ( CARDINAL ) in the event of failure to pay the DATE social welfare contribution for DATE ; ( CARDINAL ) in the event of systematic breaches of the institution ’s internal rules ; or ( CARDINAL ) in the event of a confirmed addiction to narcotic substances .

Furthermore , the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in LAW , which replaced LAW DATE .

Article CARDINAL CARDINAL of the ORG provides that , in the event of a conflict of interests between a person being represented and the representative , the court is to appoint an ad hoc representative . The NORP courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative . Thus , the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings ( ORG № CARDINAL от CARDINAL г. по гр. д. № CARDINAL г. , II г. о. ) , disputes between adoptive and biological parents ( ORG DATE от CARDINAL г. по гр. д. № ORG г. , II г. о. ) or property disputes ( ORG № CARDINAL от CARDINAL г. на ORG по гр. д. № CARDINAL г. , II г. о. ; PERSON – PERSON от CARDINAL г. по в. ч. гр. д. № CARDINAL/CARDINAL ) .

The State and Municipalities Responsibility for Damage Act DATE ( ORG за отговорността на държавата и общините за вреди – title amended in DATE ) provides in section CARDINAL(CARDINAL ) that the ORG is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis .

Section CARDINAL(CARDINAL ) of the same LAW provides that the ORG and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions , acts or omissions by their own authorities or officials while discharging their administrative duties .

In a number of decisions , various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have , where appropriate , partly or fully upheld claims for compensation brought by the persons concerned ( реш. от CARDINAL г. по гр. д. № CARDINAL , ORG , PERSON г. о. and реш. № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по гр. д. № DATE , ORG , PERSON г. о. ) .

There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes .

NORP Moreover , it appears from the domestic courts’ case - law that , under section CARDINAL(CARDINAL ) of the Act in question , anyone whose health has deteriorated because bodies under the authority of ORG have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation ( реш. № CARDINAL от CARDINAL г. по гр. д. № DATE , ORG , V г. о. ) .

Lastly , the ORG and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting , for example , from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency , on the ground that the staff of the home had failed to discharge their duty of permanent supervision ( реш. № CARDINAL от CARDINAL г. по гр. д. № DATE , ORG , III г. о. ) .

DATE . Under this Act , the police are , inter alia , authorised to arrest anyone who , on account of severe mental disturbance and through his or her conduct , poses a threat to public order or puts his or her own life in manifest danger ( section CARDINAL(CARDINAL)-(CARDINAL ) ) . The person concerned may challenge the lawfulness of the arrest before a court , which must give an immediate ruling ( section CARDINAL(CARDINAL ) ) .

Furthermore , the police ’s responsibilities include searching for missing persons ( section CARDINAL(CARDINAL ) ) .

ORG conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type . It appears from the survey that there is no uniform practice . Some police officers said that when they were asked by employees of a home to search for a missing person , they carried out the search and took the person to the police station , before informing the home . Other officers explained that they searched for the person but , not being empowered to perform an arrest , simply notified the staff of the home , who took the person back themselves .

ORG obtained statistics from CARDINAL regional courts on the outcome of proceedings for restoration of legal capacity DATE and DATE . During this period CARDINAL persons were deprived of legal capacity . Proceedings to restore capacity were instituted in CARDINAL cases : CARDINAL of them ended with the lifting of the measure ; total incapacitation was changed to partial incapacitation in CARDINAL cases ; the applications were rejected in CARDINAL cases ; the courts discontinued the proceedings in CARDINAL cases ; and the other cases are still pending .

This convention came into force on DATE . It was signed by GPE on DATE but has yet to be ratified . The relevant parts of the Convention provide :

“ CARDINAL . DATE States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law .

DATE States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life .

DATE States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity .

DATE States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law . Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights , will and preferences of the person , are free of conflict of interest and undue influence , are proportional and tailored to the person ’s circumstances , apply for the shortest time possible and are subject to regular review by a competent , independent and impartial authority or judicial body . The safeguards shall be proportional to the degree to which such measures affect the person ’s rights and interests .

Subject to the provisions of LAW Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property , to control their own financial affairs and to have equal access to bank loans , mortgages and other forms of financial credit , and shall ensure that persons with disabilities are not arbitrarily deprived of their property . ”

“ CARDINAL . DATE States Parties shall ensure that persons with disabilities , on an equal basis with others :

( a ) Enjoy the right to liberty and security of person ;

( b ) Are not deprived of their liberty unlawfully or arbitrarily , and that any deprivation of liberty is in conformity with the law , and that the existence of a disability shall in no case justify a deprivation of liberty .

DATE States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process , they are , on an equal basis with others , entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention , including by provision of reasonable accommodation . ”

The relevant parts of this Recommendation read as follows .

“ CARDINAL . The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient , in scope or flexibility , to enable suitable legal response to be made to different degrees of incapacity and various situations .

The range of measures of protection should include , in appropriate cases , those which do not restrict the legal capacity of the person concerned . ”

“ CARDINAL . NORP The legislative framework should , so far as possible , recognise that different degrees of incapacity may exist and that incapacity may vary from time to time . Accordingly , a measure of protection should not result automatically in a complete removal of legal capacity . However , a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned .

NORP In particular , a measure of protection should not automatically deprive the person concerned of the right to vote , or to make a will , or to consent or refuse consent to any intervention in the health field , or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so .

“ CARDINAL . Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned .

NORP The measure of protection should interfere with the legal capacity , rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention . ”

“ The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity . ”

“ CARDINAL . Measures of protection should , whenever possible and appropriate , be of limited duration . Consideration should be given to the institution of periodical reviews .

There should be adequate rights of appeal . ”

NORP This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency , which are under the authority of ORG . Part NORP of the report is devoted to the NORP social care home .

The ORG noted that the home ’s official capacity was CARDINAL ; it had CARDINAL registered male residents , of whom CARDINAL were present at the time of the visit . CARDINAL residents had absconded and the others were on home leave . PERCENT of the residents were suffering from schizophrenia and the remainder had a mental deficiency . The majority had spent DATE in the institution , discharges being quite uncommon .

DATE . According to the ORG ’s findings , the premises of the NORP social care home were in a deplorable state of repair and hygiene and the home was inadequately heated .

In particular , the buildings did not have running water . The residents washed in cold water in the yard and were often unshaven and dirty . The bathroom , to which they had access once DATE , was rudimentary and dilapidated .

The toilets , likewise located in the yard , consisted of decrepit shelters with holes dug in the ground . They were in an execrable state and access to them was dangerous . Furthermore , basic toiletries were rarely available .

The report notes that the provision of food was inadequate . Residents received CARDINAL meals a day , including CARDINAL g of bread . Milk and eggs were never on offer , and fresh fruit and vegetables were rarely available . No provision was made for special diets .

The only form of treatment at the home consisted of the provision of medication . The residents , who were treated as chronic psychiatric patients in need of maintenance therapy , were registered as outpatients with a psychiatrist in ORG . The psychiatrist visited the home once DATE , and also on request . In addition , residents could be taken to the psychiatrist DATE who held DATE surgeries in the nearby town of GPE – if changes in their mental condition were observed . All residents underwent a psychiatric examination twice a year , which was an occasion for them to have their medication reviewed and , if necessary , adjusted . Nearly all residents received psychiatric medication , which was recorded on a special card and administered by the nurses .

Apart from the administration of medication , no therapeutic activities were organised for residents , who led passive , monotonous lives .

The ORG concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment . It requested the NORP authorities to replace the NORP social care home as a matter of urgency . In their response of CARDINAL DATE , the NORP authorities acknowledged that the home was not in conformity with NORP care standards . They stated that it would be closed as a priority and that the residents would be transferred to other institutions .

The ORG further observed , in part II.CARDINAL of its report , that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty . The placement procedure should therefore be accompanied by appropriate safeguards , among them an objective medical , and in particular psychiatric , assessment . It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court . The ORG recommended that such a right be guaranteed in GPE ( see paragraph CARDINAL of the report ) .

In this report the ORG again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home ( see paragraphs CARDINAL of the report ) .

It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law . Contracts for the provision of social services should specify the legal rights of residents , including the possibilities for lodging complaints with an outside authority . Furthermore , residents who were incapable of understanding the contracts should receive appropriate assistance ( see paragraph CARDINAL of the report ) .

Lastly , the ORG urged the NORP authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution ( see paragraph CARDINAL of the report ) .

The ORG made a further visit to the NORP social care home during its periodic visit to GPE in DATE .

A comparative study of the domestic law of CARDINAL ORG member GPE indicates that in the vast majority of cases ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure .

In GPE , people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted ; this does not apply to those who have been declared fully incapable , who may nevertheless challenge before a court any measures taken by their guardian .

Judicial proceedings for the discontinuation of an order depriving a person of legal capacity can not be instituted directly by the person concerned in GPE ( where an application may be made by the public prosecutor or the guardianship council ) or in GPE .

A comparative - law study of the legislation of GPE Parties to the LAW shows that there is no uniform approach in LOC to the question of placement of legally incapacitated persons in specialised institutions , particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned . It may nevertheless be observed that in some countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the decision to place a person in a home on a long - term basis against his or her will is taken directly or approved by a judge .

Other legal systems ( GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) authorise the guardian , close relatives or the administrative authorities to decide on placement in a specialised institution without a judge ’s approval being necessary . It also appears that in all the above - mentioned countries , the placement is subject to a number of substantive requirements , relating in particular to the person ’s health , the existence of a danger or risk and/or the production of medical certificates . In addition , the obligation to interview or consult the person concerned on the subject of the placement , the setting of a time - limit by law or by the courts for the termination or review of the placement , and the possibility of legal assistance are among the safeguards provided in several national legal systems .

In certain countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian ’s consent .

Lastly , several GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement .

It should also be noted that many NORP laws on legal capacity or placement in specialised institutions have recently been amended ( GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ; GPE : DATE ) or are in the process of being amended ( GPE ) . These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status , or additional safeguards when they are placed in specialised institutions against their will .


The applicants are a mother and her CARDINAL children . They are all NORP nationals . The first applicant , PERSON , was born in DATE and is currently residing in the GPE together with her son PERSON , who was born in DATE . The other CARDINAL children , PERSON , PERSON , were born in , respectively , DATE , DATE and DATE and are currently residing in GPE with a sister of their maternal grandmother . They are represented before the ORG by PERSON , a lawyer practising in ‘ ORG . ORG are represented by their Agent , Mr R.A.A. Böcker , of ORG .

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

In DATE , the applicants’ home in GPE was searched and ransacked by the ORG . A hand grenade thrown in their kitchen killed the first applicant ’s mother and seriously injured her sister .

The first applicants’ husband and the other applicants’ father disappeared in DATE , likely after having been arrested by the ORG . DATE after his disappearance , the applicants fled from GPE to GPE where they stayed in the home of the first applicant ’s father . However , also in GPE , the ORG regularly visited and questioned them about the whereabouts of their husband / father . At an unspecified date , when trying to take the first applicant ’s injured sister to hospital , the second applicant , PERSON , was stopped by the ORG who beat him and broke his hand .

On DATE , in order to escape from the continuous ORG harassment and as the first applicant ’s sister could not obtain adequate medical treatment in GPE , the first applicant together with her sister and PERSON fled to GPE . PERSON , PERSON remained in GPE in the care of their maternal grandfather . They were to join the first and second applicants in GPE as soon as possible . On DATE , with the assistance of a “ travel agent ” who had been paid by her father , the first applicant , her sister and PERSON travelled by air from GPE to the GPE , where they applied for asylum .

On DATE , the Deputy Minister of Justice ( ORG ) rejected the asylum request filed by the first applicant and her son PERSON , but did grant them a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) valid until DATE as – in light of the general situation in GPE at that time – their expulsion to GPE would entail undue hardship .

On DATE , the first applicant filed an objection ( bezwaar ) against this decision with the Deputy Minister .

On DATE , the validity of the first and second applicants’ conditional residence permit was prolonged by DATE , i.e. until DATE .

On DATE , the Deputy Minister rejected the first applicant ’s objection of DATE . The first applicant filed an appeal against this decision with ORG of GPE on DATE .

On DATE , the validity of the first and second applicants’ conditional residence permit was again prolonged by DATE , i.e. until DATE . As from DATE , the first applicant became entitled to work in the GPE . She further started attending GPE language and sewing courses . She successfully passed a first exam in both courses on DATE .

On DATE , pursuant to the terms and the transitory arrangements under the CARDINAL Aliens Act ( vreemdelingenwet ) which entered into force on that date and replaced the DATE LAW , the first and second applicants’ conditional residence permit was automatically transformed into a residence permit for the purposes of asylum for a fixed period ( verblijfsvergunning asiel bepaalde tijd ) .

In DATE , the first applicant learned from a friend , who had gone to GPE for a family visit , that her CARDINAL children DATE who had stayed behind in GPE in the care of their maternal grandfather and with whom the first applicant had not had any contacts since she had left GPE in DATE were living in GPE with a maternal aunt of the first applicant .

On DATE , the first applicant filed a request with the Minister of ORG ( Minister PERSON ) for a provisional residence visa ( machtiging tot voorlopig verblijf ) for the purposes of family reunion for her QUANTITY children living in GPE . The first applicant was not able to produce these children ’s birth certificates but submitted CARDINAL photographs of them , and declared to be willing to undergo DNA testing . She further declared that she had never been gainfully employed and was livinglived on benefits under LAW ( PERSON ) .

By letter of CARDINAL DATE , she advised her CARDINAL children in GPE to apply as soon as possible to the GPE consular authorities in GPE for the purposes of obtaining a provisional residence visa .

On an unspecified date and in accordance with the policy rule that after DATE a temporary residence permit for the purposes of asylum is replaced by a residence permit for the purposes of asylum for an indefinite period ( verblijfsvergunning asiel voor onbepaalde tijd ) , the temporary residence titles granted in the instant case were changed into permanent residence permits for the purposes of asylum .

On DATE , the first applicant passed a second exam in the GPE language and sewing courses attended by her .

On DATE , the first applicant withdrew the appeal that she had filed on DATE .

On DATE , the Minister of ORG rejected the request of CARDINAL DATE , considering at the outset that the transformation of the first applicant ’s residence title from a conditional residence permit under LAW to a temporary residence permit for the purposes of asylum under LAW did not entail entitlement to a residence permit under LAW ( e ) or ( f ) for family members having joined the person who has been granted asylum in the GPE within DATE after the latter ’s arrival in the GPE . This rule applied only where it concerned a first issuance of a residence permit for the purposes of asylum , which was not the first applicant ’s case . Consequently , her request fell to be examined under the regular immigration rules on family reunion set out in Chapter BCARDINAL/CARDINAL of the CARDINAL LAW ( Vreemdelingencirculaire ) .

The Minister further found that the first applicant ’s family tie with the CARDINAL children had not been demonstrated by means of official documents as no birth certificates of the CARDINAL children had been submitted . Although this requirement could be replaced by DNA testing , this possibility was only offered if all other conditions for family reunion were met . This did not apply to the instant case , as in addition the first applicant did not comply with the minimum income requirements under the applicable immigration rules . On this point , the Minister noted that her sole income consisted of general welfare benefits whereas , pursuant to LAW ) of the CARDINAL LAW ( Vreemdelingenbesluit ) and the provisions of Chapter BCARDINAL/CARDINAL.CARDINAL.CARDINAL.CARDINAL of the CARDINAL LAW , benefits under LAW are not accepted as constituting ( a part of the ) means of subsistence within the meaning of the immigration rules . The Minister further found no special circumstances on the grounds of which it should be held that the aim served by the income requirement under the immigration rules entailed disproportionate consequences for the first applicant .

As regards LAW , the Minister acknowledged the possibility of the existence of an objective obstacle to family life being exercised in the country of origin . Although this possible obstacle weighed heavily in the balancing - of - interests exercise to be carried out under this provision , it was not necessarily decisive . The first applicant ’s personal interests were to be weighed against the general interest served by the restrictive immigration policy pursued by the GPE and in which context it was justified to require persons seeking family reunion to have , independently and lastingly , sufficient means of subsistence . The Minister considered – in order to avoid that the exercise of family life would become permanently impossible DATE that in balancing these interests it had to be assessed whether it was possible that the first applicant ’s personal situation would change within a reasonable time . The Minister was only prepared to accept the existence of a positive obligation under LAW when , despite serious efforts made by the first applicant , there were no real prospects for her to obtain , lastingly , sufficient and independent means of subsistence and , given the circumstances in which she was finding herself , it would be unreasonable to maintain the income requirement . Finding that it was not excluded that the first applicant would be able to comply with the income requirement within a reasonable time , the Minister concluded that , for the time being , it could not be said that a hopeless situation had arisen in which it was impossible for the first applicant ever to comply with the requirements for family reunion . Consequently , the Minister concluded that the GPE authorities were not under a positive obligation to allow the CARDINAL children in GPE to join the first applicant in the GPE .

On DATE , the CARDINAL children filed an objection against this decision with the Minister of ORG .

On DATE , after a hearing held on DATE before an official committee ( ambtelijke commissie ) , the Minister of ORG rejected the objection in CARDINAL separate decisions . The Minister noted that the family tie between the first applicant and the children had still not been demonstrated by means of official documents and that , as the first applicant did not comply with the income requirement , she and the children did not qualify for the possibility of DNA testing in lieu . Furthermore , as PERSON had come of age in the meantime , the first applicant ’s request was also to be examined under the policy rules on extended family reunion ( verruimde gezinshereniging ) . The Minister noted that , according to the contents of a letter submitted , the CARDINAL children had left GPE after the death of their maternal grandfather and , since DATE , were staying in GPE with a maternal aunt of the first applicant . As her younger brothers were also not granted entry to the GPE , the Minister held that the refusal to grant PERSON entry to the GPE could not be regarded as entailing disproportionate hardship .

As regards LAW , the Minister found no particular facts or circumstances on the basis of which the GPE were under a positive obligation to admit the CARDINAL children . The Minister considered that , in view of the first applicant ’s personal situation in her country of origin , there was in any event a suspicion of an objective obstacle to family life being exercised in that country . Although this possible obstacle weighed heavily in the balancing exercise to be carried out , it was not necessarily decisive . The responsibility of the first applicant to ensure that she would comply with the requirements for family reunion also played an important role . In this context it was expected of the first applicant that , for a reasonable period of time , she would make serious efforts to find employment so that she would lastingly possess sufficient and independent means of subsistence . This reasonable period , of generally DATE , had begun to run when the first applicant had become entitled to work in the GPE , i.e. on DATE . The Minister found no special circumstances on the basis of which this DATE period should be shortened in her case . The Minister further stated that the serious efforts asked from the first applicant required an active attitude on her part , implying actively looking for and accepting work even where a job would not correspond to her education or professional experience , registering at an employment office ( arbeidsbureau ) and interim employment agencies indicating to be willing to accept any kind of work , reacting to vacancy announcements , intensive writing of ( un)solicited job applications , and undertaking labour - market oriented studies . In so far as the first applicant had argued that she had to care for her wheel - chair bound sister who refused aid from strangers and that she did not wish to leave her sister alone in the house fearing that she might cause a fire , the Minister held that it was the first applicant ’s own choice to care for her sister and that she could appeal to aid providing bodies . Finding it not excluded that the first applicant would be able to comply with the income requirement within a reasonable time , the Minister held that it could not be said that a hopeless situation had arisen entailing a permanent impossibility for family reunion in the GPE and that , therefore , at present no positive obligation arose under LAW to allow the CARDINAL children entry to the GPE . It could be expected from the first applicant that she would make serious efforts aimed at complying with the income requirement and , in all reasonableness , there was no reason in the present case to anticipate this by giving more weight to the personal interests of those concerned than to the general interest at issue .

On DATE , the CARDINAL children filed an appeal with ORG of The Hague .

On DATE , the applicant registered at the GPE office of ORG ) .

In its judgment of DATE , following a hearing held on DATE , ORG rejected the appeal of DATE . In so far as the appellants relied on LAW , ORG held :

“ Where , such as in this case , there is no interference [ with the rights under LAW as the refusal at issue does not concern a withdrawal of a residence permit ] the question arises whether there are facts and circumstances of such a nature that the right to respect for family life nevertheless gives rise to a positive obligation for the Minister to grant the appellants residence [ in the GPE ] . In order to determine that question , the interests [ involved ] ... must be balanced against each other . To strike a ‘ fair ORG between those interests is of primary importance , in which [ exercise ] the Minister enjoys a certain margin of appreciation .

In the court ’s opinion , the Minister could in all reasonableness conclude that the appellants’ interests did not outweigh the general interest of ORG . In this finding , the court takes into account that , given that at the present time there is no hopeless situation for the [ first applicant ] to comply eventually with the income requirement , there is no situation entailing a permanent impossibility of family reunion . The Minister has therefore considered on good grounds that there is no positive obligation to admit [ the CARDINAL children ] under LAW .

In this , the court further takes into consideration that , in the present case , the Minister has held that , due to the [ first applicant ’s ] personal situation in her country of origin , there is a suspicion of an objective obstacle to the exercise of family life in the country of origin , but that this was not decisive in the context of the balancing of interests . In this connection the court further notes that [ the appellants’ ] submission made in the present proceedings that [ the first applicant and PERSON ] are recognised refugees and that the Minister – other than suspecting – has acknowledged the existence of an objective obstacle to the exercise of family life in GPE finds no support in the documents .

Noting this and the improving human rights situation in GPE after the removal of the ORG regime and the prior , apparently ill - founded request [ of the first applicant ] for admission as refugee [ under LAW relating to LAW ] , it can not be excluded in the court ’s opinion that the [ first applicant ] can also exercise her family life in GPE . This applies even more since the [ first applicant ] has submitted that she has been separated for a long time from her children and that she has difficulties integrating into the GPE society whereas she and [ the children ] are rooted in the NORP culture .

In the court ’s opinion , the [ Minister ] did further in all reasonableness not have to see grounds to deviate from the guideline that within a reasonable period of DATE everything should be undertaken to comply with the income requirement as meant in [ Chapter ] BCARDINAL/CARDINAL.CARDINAL.CARDINAL.CARDINAL of the CARDINAL LAW . The point of departure for the [ Minister ’s ] policy is that the main person with whom stay is sought bears his or her own responsibilities , also as regards his or her living expenses and those of the family members by whom he or she wishes to be joined . That is why it is expected from the main person that he or she has done everything during a lengthy period to find work and thus lastingly to dispose of sufficient and independent means of subsistence . In this an active attitude is expected from him or her .

The above - cited LAW also provides that in a special case the position in which the family members outside of the GPE find themselves , also if that position is not so harrowing ( schrijnend ) that already for that reason alone residency should be granted , may form a ground for applying a shorter DATE . Also special circumstances in respect of the admitted main person can in principle lead to applying a shorter period .

The court is of the opinion that the [ Minister ] has correctly found no special circumstances as regards the [ first applicant ] which should lead to applying a shorter period . The court agrees with the [ Minister ] that it has not or at least insufficiently appeared that the [ first applicant ] has done the utmost to find work as meant in the DATE LAW . She has not substantiated by means of concrete documents – such as for instance several negative written replies to job applications – that she has intensively applied for several existing job openings or has sought assistance in every feasible manner [ in finding gainful employment ] .

On the other hand it has appeared that the [ first applicant ] has taken on the care for her disabled sister , which choice apparently entailed that she distanced herself from the labour market and thereby indirectly from her [ CARDINAL ] children on account of failing to comply with the income requirement . In this connection the [ Minister ] has , in the court ’s opinion , justly considered that there is no hopeless situation in which the conditions for admission can never be met . In this [ finding ] the court takes into account that according to the case file documents the [ first applicant ] was allowed already since DATE to look for work on the labour market and that the [ Minister ] could hold in all reasonableness that the [ first applicant ] could appeal to aid providing agencies for the care of her sister .

Consequently , the appellants’ reliance on LAW fails . ”

The CARDINAL children ’s subsequent appeal to ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) was rejected on DATE . It upheld the impugned ruling of DATE . It held , inter alia , that ORG had correctly concluded that it had not been established that the first applicant had made any effort to meet the income requirement . Further noting that the first applicant was not permanently and completely unfit for work and having found no indication that she would be permanently unable to meet the income requirement , it concluded that ORG had correctly rejected the ORG arguments under LAW .

On an unspecified date , the first applicant and PERSON were granted GPE nationality and , on DATE , a GPE passport was issued to both of them .

On an unspecified date in DATE , the first applicant travelled to GPE in order to visit her youngest son PERSON who had been admitted to hospital as he was suffering from serious diarrhoea . DATE after having arrived in GPE , the first applicant suffered a stroke , causing partial paralysis . She returned to the GPE , where she is currently staying in hospital . It is still uncertain whether the stroke she suffered will have any lasting effects . Her son PERSON was discharged from hospital in GPE after DATE .

The ORG pursue a restrictive admissions policy due to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations under international law , if their presence serves an essential national interest , or for compelling humanitarian reasons , with most policy rules for admission being more detailed formulations of this last criterion . Until DATE , the admission , residence and expulsion of aliens were regulated by DATE Aliens Act ( Vreemdelingenwet ) . Further rules were laid down in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ) . On DATE , the DATE LAW was replaced by QUANTITY ( “ the LAW ” ) . On DATE , LAW , the Regulation on Aliens and LAW were replaced by new versions based on LAW ( “ the Decree ” and “ the LAW ” ) .

Under the system in force until DATE , a person having been granted asylum in the GPE on grounds of being a “ refugee ” within the meaning of LAW relating to LAW DATE was in principle entitled to family reunion if his or her family members had joined him or her within DATE after his or her admission to the GPE . For this specific category , no income requirement applied . However , a limited income requirement had to be met if it concerned family reunion with family members having joined him or her in the GPE DATE after his or her admission to the GPE . For persons having been granted a residence permit on any other ground , a higher income requirement applied when family reunion was sought . Persons having been granted a conditional residence permit were not entitled to family reunion under domestic law , as their residence title was only of a provisional nature .

Under the system in force after DATE , the income requirement for all categories of persons having been granted an “ asylum - related ” ( i.e. on the basis of personal facts and circumstances , or the general situation in the country of origin ) residence permit who seek family reunion in the GPE is identical . For a person holding an “ asylum - related ” residence permit , no income requirement applies if his or her family members have joined him or her within DATE after his or her admission to the GPE . After this date , an income requirement must be met where family reunion is sought . Under the new system , also persons having been granted a temporary residence permit for the purposes of asylum are entitled to family reunion .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .

Pursuant to LAW , a temporary residence permit ( verblijfsvergunning voor bepaalde tijd ) for the purpose of family reunion may be issued by ORG if a number of eligibility requirements – set out in GPE CARDINAL to CARDINAL of the Decree – have been satisfied . These requirements include , inter alia , the possession of a valid provisional residence visa , actual cohabitation in the country of origin ( “ feitelijk behoren QUANTITY in het land van herkomst ” ) , possession of a valid international travel document , and the person in the GPE with whom family reunion is sought having sufficient means of subsistence as defined in LAW ( a ) of the LAW , i.e. having a net income from work of at least the amount equal to benefits under LAW for the corresponding category ( such as for instance a single parent ) .

ORG ) is an independent administrative body that works on assignment from ORG ( PERSON en GPE ) . It is centrally managed and has CARDINAL offices throughout the GPE . It invites employers to offer vacancies and helps and activates job seekers to find work in every possible way . It can further help job seekers to apply for unemployment or supplementary benefits . If attempts to find work are unsuccessful , the municipal social services together with ORG will do everything possible to provide the person concerned with work or training . If necessary , a route plan will be drawn up . This contains all concrete arrangements that have been made for job application courses , for example , acquiring work experience and participation in a social assimilation .


The applicant was born in DATE and lives in GPE .

On DATE the GPE police initiated criminal proceedings against the applicant on the suspicion of having committed an offence of satisfying his sexual desire in an unnatural manner .

On DATE the applicant was formally charged with this offence . On DATE he was subjected to a preventive measure in the form of an obligation not leave his place of residence .

On DATE the applicant was further charged with attempted rape .

On DATE the preliminary investigation of the charges was complete .

On DATE , upon approval of the indictment by ORG , the applicant 's criminal case - file was sent to ORG ( ORG ) .

On DATE , by a decision of ORG judge , the applicant was committed for trial .

On DATE the judge ordered the serving of the indictment on the applicant who received it on DATE .

On DATE the applicant wrote a letter notifying ORG of his change of residence . However , he did not send out the letter , but handed it to his lawyer .

On DATE ORG summoned the parties and the witnesses to a hearing which was scheduled for DATE .

On DATE ORG was informed that it had not been possible to serve the summons on the applicant at the address indicated by him in DATE . Consequently , the hearing was postponed .

In DATE , the applicant 's lawyer delivered to ORG the applicant 's letter of DATE about his new address .

On DATE ORG scheduled a hearing for DATE .

On DATE the hearing was adjourned on account of the absence of the applicant 's lawyer for health reasons .

On DATE ORG ordered that the applicant be taken into custody . It noted that the applicant had CARDINAL prior convictions and considered that he could re - offend .

The applicant filed an appeal against the order directly with ORG ( GPE ) which , on CARDINAL DATE , forwarded it to ORG as appeals to a higher court must be presented through a lower court . On DATE ORG rejected the applicant 's appeal .

In the meantime , on DATE , ORG scheduled a new hearing for DATE .

On DATE the applicant 's lawyer requested that the hearing be adjourned as it was not possible for him to attend because of a meeting of ORG . His request was granted .

On DATE the applicant complained to ORG ) about the delay in examining his case .

On DATE he addressed a similar complaint to ORG , which asked ORG to inform it of the reasons for lack of progress in the case .

On DATE ORG scheduled a hearing for CARDINAL DATE .

By letters of CARDINAL DATE and CARDINAL DATE ORG and the prosecutor 's office , respectively , informed the applicant that the reason for the delay in dealing with the case from DATE until DATE was ORG heavy workload . They also stated the reasons for the postponement of the hearings .

On DATE the applicant requested the appointment of a lawyer by the court as he was dissatisfied with the services of the lawyer chosen by him .

ORG heard the applicant 's case on DATE .

On DATE the applicant sought the adjournment of the hearing , arguing that the preliminary investigation had been incomplete and that he did not have a copy of the indictment , which was in the hands of his previous lawyer . He also disputed the legality of the appointment of his new lawyer and requested the removal of the public prosecutor from the case . His requests were dismissed as unfounded .

By a judgment of CARDINAL DATE ORG convicted the applicant of attempted rape and sentenced him to DATE imprisonment . ORG heard the testimonies of the victim and CARDINAL witnesses and examined CARDINAL medical expert reports .

On DATE the applicant lodged an appeal against ORG judgment , arguing that his trial and conviction had been unlawful . ORG had infringed procedural time - limits concerning the start of the trial stipulated in Articles DATE ) and CARDINAL of the Code of Criminal Procedure according to which the court must take a decision to try the accused within DATE from the seizure of the court , and the trial must start DATE from the taking of that decision . The applicant pointed out that his criminal case - file arrived in ORG on DATE , but the decision committing him for trial was taken only on DATE .

At the hearing before ORG on DATE the applicant also pointed to the delay in examining his case at the first instance court .

By a judgment of CARDINAL DATE ORG dismissed the applicant 's appeal and upheld ORG judgment . It admitted that the time - limit for committing the applicant for trial had been exceeded , but found no substantial infringement of procedural law which would have entailed a reversal of the lower court judgment .

On DATE the applicant filed an appeal with ORG ( NORP ) in which he argued that the DATE delay in dealing with his case at the trial court was unlawful .

On DATE ORG refused the applicant leave to appeal .

On DATE the competent prosecutor refused the applicant 's request to initiate criminal proceedings against the judge of the first instance court as the failure to comply with the procedural time - limits did not constitute a criminal offence .

By a letter of CARDINAL March CARDINAL ORG informed the applicant that there were no grounds to initiate disciplinary proceedings against the judge since there was no evidence of an intentional infringement of procedural rules by him . However , the judge 's attention had been drawn to deficiencies in his work .


Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

On DATE the applicant 's daughter , PERSON , who was DATE and was studying at ORG at the time , left the premises of the students ' dormitory in which she was residing and did not come back .

On DATE Ms S. , an acquaintance of the applicant 's daughter , informed the police of the latter 's disappearance .

On DATE the body of an unidentified woman was found in LOC .

On DATE an autopsy was carried out by an expert from a local medical institution . The expert noted that the body was considerably decayed . The expert concluded that the woman had died of asphyxia caused by drowning and that there were no traces of other injuries on the body .

On DATE , the applicant 's other daughter , Mr O. , the former partner of PERSON , and the applicant were invited to the morgue , where the body was being kept , to identify it . The unclothed body was brought to the door entrance . The clothes and jewellery which had allegedly been on the body when it was found on DATE were placed nearby . PERSON and Mr O. confirmed that the body and clothes was that of PERSON The applicant , having also confirmed that the clothes belonged to her daughter , denied that it was her body .

By decisions of DATE , CARDINAL DATE and CARDINAL DATE , and CARDINAL January and CARDINAL DATE the investigators , who had been conducting an inquiry into the matter , refused to open criminal proceedings and found that the applicant 's daughter had committed suicide .

Upon appeals by the applicant , those decisions were annulled by the higher prosecutors or the courts on the ground that the investigators ' Ms L. A. P. before her death .

In particular , the investigators ' decision of DATE was overturned by ORG on DATE . The court found that the investigators had failed to check the possibility that the applicant 's daughter had been murdered and that there was insufficient evidence to conclude that the body found on DATE was that of the applicant 's daughter . The court ruled to return the case to the investigators for another inquiry and also ordered the body 's exhumation and genetic examination .

By a ruling of DATE the ORG of Appeal confirmed the findings of the first - instance court concerning the incompleteness of the inquiry and upheld its decision to return the case for another inquiry . ORG further held that the exhumation and genetic examination of the body could only be carried in the framework of criminal investigation and ruled to exclude the first - instance court 's instruction to that effect , as no criminal investigation had been initiated in the applicant 's case .

During the fresh inquiry DATE , the investigators questioned PERSON , and Ms B. , the administrator of the dormitory in which ORG had resided .

Ms S. and Mr O. both stated that , before her disappearance , PERSON had been suffering from depression and that she had on a number of occasions expressed her intention to commit suicide . Mr O. also confirmed that , on DATE , he had said that the body was that of Ms L. A. P. , because he had recognised her clothes and jewellery .

Ms S. further stated that she had seen Ms L. A. P. leaving the premises of the students ' dormitory on DATE and that the latter had been dressed in the clothes which were on the body found on DATE .

Ms B. stated that the applicant had had arguments with PERSON before the latter 's disappearance .

The applicant was also questioned and stated that , before her disappearance , her daughter had behaved strangely and had made notes in her diary suggesting that she would “ do something to herself ” . The applicant further insisted that the body found on DATE was not that of her daughter .

On DATE the investigators issued a decision , by which they refused to start criminal investigations into the death of Ms L. A. P. , finding no evidence of a crime . According to them , she had committed suicide because she had been suffering from a serious psychological disorder and had suicidal tendencies .

On DATE ORG upheld that decision .

Following several reconsiderations of the admissibility of the applicant 's appeal against the decision of DATE by the courts of appeal and cassation , on CARDINAL DATE ORG rejected it as having been lodged out of time .

In her submissions of DATE , the applicant stated that she would have to go through the whole procedure of challenging the decision of CARDINAL DATE , without informing the ORG whether she had in fact lodged an appeal against that decision .

According to the applicant , she was not allowed to take part in the official inquiry into the matter and was not given access to the materials of the inquiry .

On DATE the applicant instituted civil proceedings in the Zavodskyy ORG of PERSON against the authorities , including ORG , and ORG , seeking compensation for their failure to protect her daughter 's life and to investigate the circumstances of her disappearance and death .

On DATE the court dismissed the applicant 's claim , holding that she had failed to provide evidence that any damage had been caused to her as a result of the authorities ' actions or inactivity . The court also noted that the investigators ' conclusions that the applicant 's daughter had committed suicide and that there had been no evidence of a crime had been confirmed by the decision of ORG of DATE .

By a ruling of DATE ORG upheld the judgment .

On DATE the applicant appealed in cassation . She submitted that she had missed the DATE time - limit for lodging an appeal in cassation because she had not been able to afford a lawyer in order to prepare her appeal in due time , and requested a time - limit extension .

On DATE the judge of ORG refused that request and rejected the applicant 's appeal as lodged out of time .

The relevant domestic law is quoted and summarised in the judgments of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , ECHR CARDINALXI ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Art. 5-3;Violation of Art. 5-4

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

On DATE the applicant was arrested by the police . On DATE the applicant was charged by ORG with having helped to sell CARDINAL stolen cars while acting in an organised criminal gang . The applicant was instructed that it was open to him to make a request under LAW to be served with the written reasons for the decision to charge him .

On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged . The court held that keeping him in custody was necessary to secure the proper conduct of the proceedings as there was a fear that the applicant would influence witnesses .

On DATE ORG lodged a request to prolong the applicant 's detention . In his motion he indicated CARDINAL investigative actions that would be taken with respect to CARDINAL suspects . ORG on DATE accordingly prolonged the applicant 's detention , relying in particular on evidence obtained from CARDINAL of the co - accused .

In his subsequent application of DATE for an extension of the applicant 's detention the prosecutor relied on extensive evidence that had already been obtained from CARDINAL witnesses and an expert witness . The application was granted on DATE .

On DATE ORG further prolonged the applicant 's pre - trial detention .

On DATE ORG decided to supplement the charges against the applicant , adding several other offences relating to the handling of stolen cars . The applicant was again informed of his right to request the written reasons for the decision , but he failed to make a request .

On DATE ORG ( Sąd Apelacyjny ) , on the application of the appellate prosecutor , decided to prolong further the applicant 's detention . In addition to the existence of a reasonable suspicion that the applicant had committed the offences , the court relied on the complexity of the case , the severity of the penalty that might be imposed and the need to secure the proper conduct of the investigation .

On DATE and DATE ORG prolonged the applicant 's detention . It reiterated the grounds previously given for keeping him in custody . It further pointed to the particular complexity of the case , which explained the length of the investigative phase of the proceedings . The court in particular relied on the evidence gathered by the prosecutor and referred in its decision to the statements given by the witnesses and co - accused which were included in the case file .

On DATE the prosecutor decided to sever the charges against the applicant and CARDINAL co - accused and to deal separately with his charges .

On DATE the applicant was indicted before ORG . The applicant was accused of having committed CARDINAL offences , in particular handling stolen cars and forging licence plates while acting in an organised criminal gang .

Subsequently , his detention on remand was prolonged on DATE . The applicant 's numerous applications for release and his appeals against the detention decisions were to no avail .

The trial started on DATE . Afterwards , hearings were held at regular intervals . In DATE the applicant and the prosecutor negotiated an agreement whereby the applicant would plead guilty and voluntarily submit to a penalty .

At the hearing held on DATE the court gave a judgment in which it accepted the agreement concluded between the applicant and the prosecutor according to which the applicant voluntarily accepted a sentence of DATE and DATE imprisonment and a fine . The applicant was released on DATE .

The applicant did not appeal against the judgment and it became final on DATE .

On DATE and DATE the applicant , represented by his lawyer , requested leave to consult the case file against him .

NORP ORG , on DATE and DATE respectively , dismissed the applicant 's requests . The reasoning of both decisions was identical . The prosecutor referred to the fact that the preparatory proceedings were still pending and since the case concerned an organised criminal gang the documents in the file should not be revealed until all suspects had been arrested and charged . Finally , the prosecutor noted that most items of evidence had been considered confidential which “ automatically prevents access being granted to them ” .

NORP The applicant appealed against both decisions complaining that he had been detained for DATE and that during this time he had had no access to the case - file . That constituted a breach of his defence rights in violation of ORG .

On DATE and DATE ORG dismissed the appeals against the decisions of DATE and CARDINAL DATE respectively . In identically reasoned decisions ORG found that the interests of the investigation could in some circumstances limit the defence rights of the accused . Therefore , in the present case the applicant should not be allowed to consult the file . In addition , in the decision of DATE the prosecutor concluded :

“ As regards the ORG invoked by the [ applicant ] it should be noted that the overriding aim of the criminal proceedings is to establish all the circumstances in which the offence was committed and to find the perpetrators . It is a concrete aim and in achieving it the prosecutors and the courts aim at ensuring respect for the rule of law and the security of the ORG and its citizens . Therefore , it is not the intention of the LAW to disregard those rules by making the rights of the citizens who breached the laws absolute . A premature disclosure of the documents in the case - file could prevent the achievement of the aims of the proceedings ... ”

On DATE the applicant 's lawyer acquainted himself with the casefile . The applicant was allowed to consult the file between CARDINAL and DATE .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG 's judgments in GPE v. GPE [ ORG ] , no . GPE , § CARDINAL , ORG CARDINALXI and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL and CARDINAL , CARDINAL DATE .

Article CARDINAL § CARDINAL of the Code concerns access to the file during investigation . It provides :

“ Unless provided otherwise by law , during the preparatory proceedings parties , defence counsel , and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the preparatory proceedings . With the permission of a prosecutor and in exceptional circumstances access to the files in the preparatory proceedings may be given to another person . ”

Article CARDINAL § CARDINAL provides as follows :

“ Before a suspect is given notice of the date on which he can have access to the investigation materials , he may request an oral presentation of the grounds for the charges against him and the written reasons , on which he shall be advised . The written reasons shall be notified to the suspect and his counsel within DATE . ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Velenje .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZTi .

On DATE the applicant instituted civil proceedings against ZTi in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

On DATE and DATE he made requests that a date be set for a hearing .

Of the CARDINAL hearings held on DATE and DATE , none was adjourned at the request of the applicant .

During the proceedings , the court appointed a medical expert .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZTi cross - appealed .

On DATE the court dismissed the applicant ’s appeal and upheld ZTi ’s appeal as far as the costs of the proceedings were concerned .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) and requested that ORG judge be recused .

On DATE the court dismissed the applicant ’s appeal .