Violations of Art. 8 (care order and access restrictions);No violation of Art. 8 (other aspects);Not necessary to examine under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE .

The applicant is the father of CARDINAL children , PERSON born in DATE and PERSON born in DATE . He and the mother of the children divorced in DATE , having lived apart since DATE and PERSON having lived with his mother and PERSON with the applicant . The applicant assumed the care of GPE some DATE after her birth . According to an agreement reached in connection with the separation and confirmed by ORG , PERSON was to remain with the mother and PERSON with the applicant . The parents had joint custody of the children .

M. cohabited with the applicant from DATE . Following their separation , she contacted the social welfare authorities , alleging that PERSON had been sexually abused by the applicant . The child 's stories and behaviour had attracted PERSON 's attention and she had observed PERSON frequently touching her genitals and masturbating when going to sleep . PERSON also reported her suspicions to the family day care nurse . The applicant was not informed of the reports .

On DATE during a visit to the day carer 's , social welfare officials requested her to monitor ORG 's behaviour , which according to her was deviant in that she masturbated before going to sleep . The officials witnessed the same during their visit . On DATE they again visited the day carer , who now had kept records of ORG 's behaviour . Based on these notes and their own observations , the officials consulted ORG ( perheneuvola , familjerådgivningen ) and decided to organise ORG 's interviews and other examinations owing to a suspicion that she had been sexually abused . The applicant was not informed of those visits .

On DATE when arriving to pick H. up from day care , the applicant was directed to ORG , where he was informed of the suspicion of sexual abuse . While denying the suspected abuse , he consented to an examination of H. but he did not accept that her place of residence should change for the period of examination .

NORP The applicant was then informed that PERSON was to stay with her mother , who was her other legal custodian . According to the Government , he commented on PERSON 's placement by saying that if PERSON could not stay with him , the best place for her was with her mother . He was also told that if he agreed on ORG 's placement with her mother , the social welfare authorities would not issue a public care order . According to the Government , he consented to ORG 's placement with her mother . This was contested by the applicant .

On DATE the social welfare authorities were contacted by the applicant 's counsel who was told that if the applicant opposed PERSON 's placement with her mother during the examinations , the alternative was to issue an emergency care order . On DATE counsel withdrew the applicant 's alleged consent to ORG 's placement with her mother , following which a meeting with the parents was held at ORG on DATE .

It is undisputed that from DATE there was no consent by the applicant to ORG 's placement outside his home . The parties disagree as to whether the applicant consented to ORG 's placement with her mother for the period DATE and DATE .

By an emergency order issued on CARDINAL DATE the senior social welfare official placed ORG in public care with her mother , pursuant to section CARDINAL of LAW ( lastensuojelulaki , barnskyddslagen ; Act no . DATE ) . The further consideration of the matter was referred to ORG ( hereinafter “ the Board ” ; sosiaali- ja terveyslautakunta , social- och hälsovårdsnämnden ) , pursuant to section CARDINAL of the said Act . The emergency care order referred to the need to conduct the necessary examinations in ORG in the light of the suspicion that PERSON had been sexually abused . The decision had not been written on the form approved by ORG in pursuance of section CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordningen ; Act no . CARDINAL/CARDINAL ) . According to the notice of appeal incorporated into the decision , an appeal could be filed with ORG within DATE .

In its decision of CARDINAL DATE ORG ordered that the emergency care should continue until DATE for the purpose of concluding the examinations . According to the notice of appeal attached to the decision , an appeal could be addressed to ORG within DATE .

The Family Advice Centre 's examinations commenced on CARDINAL DATE and were completed on DATE . CARDINAL psychologists , PERSON and GPE , and a child psychiatrist , PERSON , stated in their written opinion of DATE that it was highly likely that PERSON had been sexually abused by the applicant . He was informed of the results of the examination in a meeting on DATE during which PERSON , PERSON 's mother and a friend of the applicant 's were also present . The examinations resulted in a conclusion that PERSON should be placed in public care away from the applicant .

On DATE and DATE the ORG heard the parents and the paternal grandmother . The applicant again denied having abused PERSON , whereas the paternal grandmother had not noticed anything exceptional in ORG 's behaviour . Following the emergency care , she had repeatedly inquired into ORG 's “ unusual talking ” and had come to the conclusion that it had been triggered by something which had occurred in day care . She agreed to assume the care of H. in her home , as did the mother , who further stated that she had never accepted that PERSON should live with the applicant and that she had tried to avoid any contact with the applicant and his family . He again did not agree that PERSON would be staying with her mother . On DATE the ORG confirmed the care order in accordance with section CARDINAL ( CARDINAL ) of LAW . It reasoned :

“ The examination of [ H. ] in ORG has come to an end ... . The examination results confirm the impression that the child has been sexually abused and that her development would be seriously jeopardised if she continued living with her father . In its opinion ORG recommends that the child be placed in public care in order to ensure her healthy development ( appendix no . CARDINAL ) .

It is not possible to exclude possible abuse by providing open - care support measures .

Placing the child in public care is a precondition for ensuring that she receives care corresponding to her stage of development . ”

The Board referred its decision to ORG ( lääninoikeus , länsrätten ) and the applicant filed an appeal , to which he attached CARDINAL medical opinions . The first opinion was issued by a general practitioner , PERSON , on DATE , who had seen H. CARDINAL times at a child welfare clinic , the last occasion being in DATE . The other opinion was given by a nurse , GPE , of the same clinic on DATE . She had seen H. last in DATE . The opinions found nothing exceptional in the child 's development and no failure on the part of the applicant in providing her with proper care . Given that PERSON had been staying with her mother during the period of examination , the applicant argued that it could not be excluded that the latter had influenced the child 's behaviour . He reiterated that although PERSON had been monitored while in day care , he had not been informed of the suspicions until DATE . He furthermore argued that he had not been heard in accordance with LAW ( hallintomenettelylaki , lagen om förvaltningsförfarande ; Act no . CARDINAL/CARDINAL ) . When invited to the meeting on DATE , he had not been informed of its real purpose , namely the plan to take the child into public care . He had allegedly received a copy of the emergency care order of CARDINAL DATE only after repeated requests and the paragraph indicating the possibility for him to have it reviewed by ORG had allegedly been crossed out .

On DATE social welfare officials and ORG 's mother agreed that ORG would stay with her paternal grandfather and his partner for DATE in DATE owing to the mother 's fatigue . On DATE maternal grandmother informed the social welfare authorities that ORG had not returned home DATE . They unsuccessfully tried to contact the mother , following which on DATE they agreed with the paternal grandfather that ORG would stay with him until the mother could be reached or until the situation could be evaluated . On CARDINAL DATE the mother informed the authorities that ORG could not stay with her as the situation had drained her strength . She suggested that ORG should stay with her paternal grandfather . The same day social welfare officials visited PERSON 's paternal grandfather and his partner , a family day care nurse by profession , who informed the officials that they could not take care of H. in the long term . It was agreed , however , that H. would stay with them until ORG had reached its decision .

On DATE the applicant informed the social welfare authorities that he did not approve of the public care . In an opinion of DATE a senior physician , PERSON , found PERSON to be normally developed both physically and mentally .

In a hearing on DATE ORG examined CARDINAL witnesses . The psychologist PERSON testified to having met once with PERSON , following which the examination had been continued by the psychologist PERSON , who had met her on a few occasions . As the child had appeared to shy away from male interviewers , PERSON had eventually taken over the investigation . He further testified that the child 's statements to PERSON , who had recorded the interviews on audio tape , had been consistent with her earlier statements to the day carer .

The paternal grandmother testified that from DATE had started behaving in an explicitly sexual manner , referring to games played with another child in day care . PERSON had also referred to the day carer 's husband , who had been tickling her . She also testified that the former girlfriend PERSON at the time of the separation in DATE had threatened to “ seek revenge ” on the applicant .

DATE carer testified that PERSON had continued to masturbate after having been removed from the applicant 's home . She denied ever having left PERSON alone with her husband , which was contested by the applicant .

The applicant requested that the court refer H. to a child psychiatrist for examination . ORG did not object to such an examination as long as it was conducted by a public institution . The applicant contended that in the DATE he had , of his own motion , discussed his daughter 's behaviour with a social welfare official in another local office , following which he had requested the day carer to observe H. particularly in this respect . The day carer denied that such a conversation had taken place .

ORG granted the applicant cost - free counsel retroactively from DATE . It however rejected his request for a further medical examination of H. By its decision of CARDINAL DATE it upheld the care order , reiterating the contents of PERSON 's report of DATE and the observations made by DATE carer . From DATE the day carer had seen H. frequently masturbating during naps and when playing . According to her notes , such masturbation had lasted from TIME to TIME at a time . H. had also repeatedly been saying that the applicant had been tickling her in her buttocks and kissing her with his tongue .

ORG reasons for upholding the care order read in extenso as follows :

“ According to the evidence available , the conditions in the home of [ H. ] have seriously jeopardised her health and development . Open - care support measures have not been possible . The public care of [ H. ] and her placement outside her original home must be considered to be in her interests . ”

ORG decision was notified to the ORG on DATE . The following day social welfare officials presented themselves without giving any advance notice in the paternal grandfather 's and his partner 's home , removed PERSON and temporarily placed her in a substitute family .

The applicant appealed against ORG decision , requesting a hearing before ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) and a further examination of H.

In a meeting on DATE between social welfare officials and the applicant , he was informed that PERSON had been transferred to a substitute family , to which he objected . The mother consented to the placement .

On DATE the applicant removed PERSON from the venue of a supervised meeting and hid her during the following DATE . On DATE he and ORG underwent an examination by a psychologist , ORG , who in a written opinion of CARDINAL DATE found PERSON to be more developed than an average child of her age . She was balanced , very attached to her father and there was no indication of her having been sexually abused .

DATE after the abduction the ORG decided that the public care should be implemented in the substitute family . ORG did not accept the paternal grandfather 's and his partner 's offer to care for H. It noted that the applicant had been heard in person on DATE . He had been invited to attend the ORG 's meeting , but he sent instead a letter that was read out at the meeting .

On DATE the ORG filed observations in reply to the applicant 's appeal to ORG . On DATE he submitted a rejoinder .

On DATE the court invited ORG ( hereinafter “ the GPE ” ; terveydenhuollon oikeusturvakeskus , rättsskyddscentralen för hälsovården ) to submit a written opinion on the conduct of the examinations by ORG , which was subsequently communicated to the applicant for comments .

Meanwhile , and following the applicant 's complaint as to the examinations by ORG , ORG had obtained expert opinions from its standing experts , a professor in child psychiatry , PERSON , and a psychologist PERSON , as well as a written opinion from PERSON and PERSON In an opinion dated DATE Dr GPE noted inter alia the following :

“ The examinations carried out on H. were initiated on account of ' the sexual games ' with the father , of which the child had spoken to DATE care nurse , and on account of ORG 's frequent masturbation in day care , especially before taking a nap . Although masturbation is relatively usual at that age , it can no longer be considered to merely relate to the age of the child when it is so extensive and intense as described by DATE care nurse , especially not where the masturbation is placed in the context of the child 's description of ' sexual games ' at home . In this light I find the initiation of the examinations concerning sexual abuse a justified measure . .... [ Dr A - K.R 's ] questions [ that were put to H. ] were not leading although they tended to have an element of pressure given that they were repeated several times as the girl was unable to answer them . ... Whether the girl has undergone psychological tests , either projective tests or tests measuring the child 's abilities , remains unclear . Also the contents of [ H. 's ] playing remain unclear . Thus , I can not assess the quality of psychologist [ PERSON 's ] examinations . Pyschologist [ GPE ] has met both parents , but the documents I have received do not disclose any detailed description of the contents of the discussions , thus preventing me from assessing also the quality of these discussions . With the exception of the interview carried out by child psychiatrist [ A - K.R. ] , which I find appropriate , I can not take a position on the nature of the examinations . ... The decision to take the child into public care was made in an appropriate manner by the social welfare authorities , considering that the father had proved to be the likely abuser of the child ... ”

On DATE the ORG gave the applicant permission to consult , during TIME , CARDINAL tape recordings from the examination of PERSON at ORG . He was not allowed to copy the tapes but had them transcribed .

On DATE ORG invited the applicant 's further observations . In his observations of DATE he submitted a written opinion by the psychologist PERSON , issued following the abduction . He also requested a hearing including the taking of witness evidence from the former girlfriend PERSON , PERSON , the psychologist PERSON and PERSON , a child psychiatrist and consultant to ORG . Moreover , he objected to not having been provided with the full documentation underlying ORG opinion such as PERSON and the psychologist PERSON 's observations . Lastly , he relied on a written opinion , dated DATE , by PERSON , who considered that the examination by ORG had not shown that PERSON had been sexually abused by the applicant . On the contrary , it transpired from the transcripts of the interviews that she had been led and pressurised by PERSON , the clear goal being to detect sexual abuse . Not all interviews had been recorded . Clinical annotations were missing from the records , which rendered it impossible for PERSON to assess the credibility of ORG examinations .

Following ORG request for an additional opinion , PERSON and the psychologist PERSON , in their joint opinion of DATE , expressed the view that the decision to take ORG into care and place her first with her mother and later in a substitute family , had been justified and appropriate , considering both PERSON 's own words and her behaviour . They also took the view that ORG should have considered more thoroughly the conditions for an additional examination of PERSON given the fact that the psychological examination and the interviews with the parents had been insufficient . Further , they took a stand regarding the examinations carried out on the applicant 's request during PERSON 's abduction by the psychologist PERSON As noted above , the applicant relied on a written opinion of H.H in ORG .

“ ... Psychologist PERSON has carried out psychological examinations on both PERSON and her father . A written opinion has been given on account of these examinations . It indicates that ORG had examined the father on CARDINAL occasions and the child on CARDINAL occasion . It is questionable especially in the context of suspected sexual abuse that the same psychologist tests both the suspect and the abused child . .... The examinations were carried out without consultation with those involved in the earlier examination , which in our opinion shows professionally unethical and inconsiderate conduct on the part of the examining psychologist . .... ”

In its further opinion of DATE to ORG the Medicolegal Authority deemed ORG examinations in DATE to have been necessary and based on a reasonable suspicion of sexual abuse . ORG had obtained the audio tapes and documents produced by ORG and had heard the psychologist PERSON , PERSON and the psychologist PERSON in writing . It had also obtained the above joint opinion of its standing experts .

On DATE ORG invited the applicant 's further observations . In his observations of DATE he noted that he had not been provided with copies of the above supplementary opinion by PERSON and the psychologist PERSON

H. was missing from the authorities until DATE when the police fetched her from the applicant 's work place . She was placed in a family support centre ( perhetukikeskus , familjestödscenter ) . The applicant was informed of her whereabouts on DATE .

On DATE underwent an examination in a university hospital . A paediatrician , PERSON , stated in her written opinion of CARDINAL DATE that she had not found any signs of sexual abuse in her examinations and found PERSON 's behaviour to be normal for her age . PERSON did not , however , take any stand regarding the earlier medical opinions .

In a meeting on DATE between social welfare officials and staff of the university hospital hesitation was expressed about undertaking new examinations concerning the alleged sexual abuse .

From DATE to DATE H. underwent child psychiatric examinations at the GPE university hospital on the basis of a referral dating back to DATE . During that period the applicant was heard at the surgery on DATE and DATE and he was consulted over the telephone on DATE and DATE . In her written opinion of DATE a child psychiatrist , PERSON , described PERSON as a very lonely DATE girl , whose basic human relationships with her parents and her brother and other persons close to her were coloured by argument and conflict . The examinations did not concern the sexual abuse suspicion as such an examination would have damaged the child 's mental health . PERSON was considered to suffer from a severe stress reaction and to have adjustment difficulties and she was in need of possibly long - lasting child psychiatric treatment . The opinion recommended child welfare measures with a view to protecting the child .

On DATE ORG dismissed the applicant 's request for an oral hearing and a further examination of H. , and upheld ORG decision with the following reasons :

“ Since an oral hearing was held before ORG , there is no reason to hold one before ORG .

In view of the opinions already obtained there is no need to obtain an additional opinion .

For the reasons given in ORG decision and considering , moreover , the disturbed behaviour of [ H. ] , ORG considers that the conditions stated in section CARDINAL of LAW have been met as regards the public care order issued on DATE . Accordingly , and in view of the requests in the matter , the evidence obtained , and the legal provisions invoked by ORG , there is no reason to amend its decision . ”

In a meeting with social welfare officials on CARDINAL DATE the applicant was informed that PERSON , who was diagnosed as suffering from post - traumatic stress , would be moved out of the family support centre within DATE .

On DATE in a meeting with social welfare officials , the applicant was informed that a substitute family home had been found and he was invited to comment in writing on the intention to transfer H. there .

On DATE he requested ORG to terminate the public care as being no longer justified . He submitted that PERSON 's initial examination in ORG had been conducted on the basis of the preconceived idea that sexual abuse had taken place . This suspicion had been categorically refuted in the written opinions of PERSON and the psychologist PERSON behavioural disturbance had not been shown to result from the conditions in the applicant 's home . Before the taking into care she had not displayed any signs of being disturbed . Moreover , her wish to continue living with him had been recorded repeatedly .

DATE . On DATE the senior social welfare official refused the applicant 's request that the public care be terminated , being of the view that no alternative care solution existed . Open - care assistance would be insufficient for ensuring the child 's healthy physical and mental development . By placing H. in substitute care , the authorities were seeking to provide her with a secure and home - like growing environment and to ensure her mental rehabilitation as well as a healthy development corresponding to her age . Having received the decision , the applicant pursued his request before ORG .

In his submission of CARDINAL DATE he objected to the intended transfer of ORG to a substitute family home and proposed that she be placed in the family of her former day care nurse , who had consented to receiving her . PERSON 's mother again consented to the transfer to a substitute family home .

On DATE the Board decided to transfer H. to the substitute family home . Her removal took place on the following day . The ORG 's decision stated , inter alia , that :

“ According to ORG , the examining doctor of the GPE university hospital , H. suffered from post - traumatic stress , inter alia , because of the abduction , and for the purpose of rehabilitation H. should be provided with a safe home - like growing environment . No suitable substitute family was found that could have taken the child , inter alia , because of the abduction threat by the father . A family home was found which has a home - like atmosphere and has long experience of the care of different children taken into public care . In the family both parents are at home , looking after the children . ”

On DATE ORG also confirmed the official 's refusal to terminate the public care , relying on the reasons given in the official 's decision . It further noted that the care order had been triggered by the disturbed behaviour which ORG had been repeatedly displaying during DATE . From the sexual point of view her symptoms had differed from those of other children of her age . She had been placed in public care on the basis of ORG examinations . Her growing environment had been jeopardising her healthy development and open - care assistance had been considered insufficient .

The applicant appealed against the ORG 's decisions of CARDINAL May and DATE , arguing that it had failed to hear PERSON and the other interested parties . In considering that there was no alternative to the public care and in finding open - care assistance insufficient the ORG had based itself on events which had occurred DATE , without obtaining any fresh evidence as to the justification for its decisions . He furthermore recalled that , when PERSON had been removed from him in DATE , the social welfare officials had requested her fresh examination in the clinic in view of the expert opinions submitted by him . However , after ORG had rejected his final appeal against the care order , social welfare officials had allegedly amended their request to the clinic , asking instead that PERSON receive treatment according to their instructions .

On DATE in a meeting involving social welfare officials , the substitute parents and medical staff , it was observed that according to the patient records of the clinic PERSON 's symptoms , which had already abated in the family support centre , had continued to diminish in the substitute family home .

On DATE ORG heard CARDINAL witnesses . It had at its disposal , inter alia , a written opinion of a psychologist , ORG , whom the personnel of the family home had consulted . On DATE it rejected the applicant 's appeal against the decision to transfer ORG to the substitute family home . It gave the following reasons :

“ ... Having been taken into public care , [ H. ] was officially placed in a substitute family from DATE to DATE . In reality she was a fugitive with her father from DATE to DATE , when she was placed in a family support centre .

A doctor of the university hospital who examined [ H. ] after her escape journey considered that she should be provided with secure conditions resembling a home . Her individual nurse at the family support centre has considered the placing of H. in a substitute family to be in her best interests .

On the basis of the aforementioned and , in particular , given [ H. 's ] age and the fact that she will be beginning school , the decision to change the premises for implementing the public care ... has been in her best interests . ”

ORG also rejected the appeal against the decision not to terminate the public care . It reasoned as follows :

“ On DATE [ the applicant ] abducted [ H. ] , who had been placed in the care of the ORG , and was hiding her at different locations until DATE . After the escape journey [ H. ] was diagnosed as suffering from various behavioural disturbances , a serious post - traumatic stress syndrome and adjustment difficulties . Throughout her public care it has been difficult to initiate cooperation between the social authorities and [ the applicant ] . According to the evidence presented , [ H. ] has adjusted well to the substitute home . In this situation the decision to maintain the public care has been in her best interests . ”

The applicant appealed further , requesting an oral hearing before ORG . He argued , inter alia , that PERSON should have been heard prior to the ORG 's decisions .

In response to the applicant 's further query as to when the public care would be terminated , it was noted in the care plan of DATE that PERSON was in the process of settling into the substitute family home . She was doing well in school and she would be able to stay in the family home as long as she needed to . It was also stated in the care plan that the social welfare authorities would consult child psychiatric experts in order to determine PERSON 's long - term needs as to whether she needed a long - term placement or whether the care could be terminated .

In DATE social welfare officials inspected the home of the applicant and his then common - law spouse . It appears that no report was made .

In a meeting on DATE , which the applicant had not been invited to attend , social welfare officials and staff of the hospital and ORG agreed that the symptoms displayed by PERSON “ more than likely ” resulted from her having been subjected to sexual abuse . By now the substitute care had provided ORG with sufficient security and in the prevailing circumstances she would be able to develop into a balanced young person and adult . A termination of her public care could have unforeseeable consequences . Her meetings with the applicant would be supported also in the future .

On DATE ORG , without having held an oral hearing , rejected the applicant 's appeal against ORG decision of DATE . The court found the various documentary evidence and the evidence taken at the lower court 's hearing sufficient for a ruling as follows :

“ LAW , subsection CARDINAL of LAW provides that ORG must , whenever possible in view of the child 's age and level of development , clarify his or her own wishes and opinion , and afford a child who has reached DATE as well as his or her parents the opportunity to be heard , before a decision as to the child 's placement in public care outside his or her home or as to whether to terminate such care . Considering that [ H. ] underwent examinations at the child psychiatric clinic of a university hospital and that , according to the results , she was suffering from a serious stress reaction and an adjustment difficulty , and considering that , according to [ the ORG 's ] decision of CARDINAL DATE she had stated , after an introductory visit , that she was willing to move to the family home , although her opinion has later varied , her opinion has been clarified in accordance with the requirements of the aforementioned provision of the law .

Before the challenged decisions were reached the parties were afforded an opportunity to be heard . In ORG an opportunity to be heard was provided and an oral hearing was held . ORG has further afforded the applicant an opportunity to consult all documents in the case . Accordingly , he has been provided with the material which has affected the decision .

Section CARDINAL of LAW provides that a child is entitled to a secure and stimulating growth environment as well as to a harmonious and well - balanced development , and has a priority right to protection . Considering the evidence presented in respect of the reasons leading to the public care order , [ H. 's ] mental symptoms and the changes which have occurred in her life , the conditions for maintaining her public care and changing the premises of the care outside her home , as stipulated in sections CARDINAL DATE of LAW , existed at that stage . On these grounds and considering the reasons and legal provisions relied upon in ORG decision , there is no reason to amend the outcome of that decision . ”

In the care plan meeting on DATE and following the applicant 's request that the public care be terminated , it was agreed that the social welfare authorities would hold a meeting with child psychiatric experts to assess when it would be best to carry out the examinations in the child psychiatric family ward at the university hospital .

On DATE the social welfare authorities remitted the applicant and PERSON for an examination at the ward . The examination with regard to the applicant 's parenting skills , his interaction with H. and H. 's psychological state and need for treatment took place in DATE . In their opinion of DATE PERSON and ORG considered , inter alia , that ORG 's mental state had clearly improved during her placement in public care to which she seemed to have adjusted well . She was still suffering from a serious emotional disturbance which would require CARDINAL or CARDINAL psychotherapy sessions DATE during DATE . The relationship between her and the applicant displayed a certain inhibition and distance but the conditions for their bonding to improve were present . H. would need long - term individual therapy and long - lasting cooperation between the family , the carers and the child welfare authorities . They considered that the applicant and PERSON should have their new joint treatment sessions in DATE and DATE .

In a meeting on DATE social welfare officials and the parents agreed that ORG 's and the applicant 's relationship would be observed by the child psychiatric family ward in DATE and DATE with a view to issuing an opinion on the conditions for the termination of the public care . It was further agreed that ORG would begin receiving therapy . The therapy sessions began in DATE .

In her opinion of DATE PERSON stated the following :

“ It has been difficult to achieve cooperation and a treatment relationship at the ward , and no functioning cooperation relationship has emerged . ... The father has difficulties in processing ORG 's situation at an emotional level and in seeing the burdening effects of the continuous ... trials on the child . He has repeatedly voiced mistrust towards the authorities and concerning the aims of and grounds for the treatment . Also his attitude towards ORG 's individual therapy has changed from having been positive to being negative . Owing to this his acceptance of ORG 's treatment has remained problematic ... PERSON needs long - term individual child psychiatric treatment and long - term cooperation between the family , medical staff and child welfare . ... The father 's willingness to ensure the management of ORG 's individual therapy has remained uncertain . Having regard to the above and to the evasive and distant nature of their interaction ... there are no preconditions for terminating the public care . ... The treatment will now be focusing on ORG 's individual therapy . ... Interaction treatment at the ward will not be recommended for now . ... ”

From DATE to CARDINAL DATE there was no formal decision concerning access .

The emergency care order of CARDINAL DATE included an access restriction to the effect that the applicant and PERSON were allowed to meet twice a week under supervision . An agreement concerning access from CARDINAL to CARDINAL DATE was signed by the applicant . According to him , notwithstanding that he signed the agreement , he opposed restricting access . According to the ORG , no access restriction was in force at the relevant time as the applicant had consented to the arrangement .

DATE . The ORG 's decision of CARDINAL DATE to uphold the emergency care included an access restriction to the effect that the applicant and PERSON were allowed to meet once a week under supervision .

According to the ORG 's decision of CARDINAL DATE following a meeting with the parents on DATE , H. would continue living with her mother while seeing the applicant under supervision . The decision did not specify the frequency of the meetings and it was to be reviewed at DATE . The applicant accompanied by counsel took part in the ORG 's meeting on DATE . Following the meeting , the applicant was informed that he could visit H. at the family support centre once DATE .

In a care plan of CARDINAL DATE following a meeting with the applicant on DATE , contacts were reduced to CARDINAL supervised TIME visit once a month , starting on DATE in the family support centre . This arrangement was to be in force until DATE . The applicant objected to the restriction and was allegedly not provided with all relevant documentation . No formal decision was issued .

Following the abduction of CARDINAL DATE , ORG by its decision of CARDINAL DATE prohibited access until DATE , pursuant to LAW and section CARDINAL of LAW . The applicant had been invited to attend the ORG 's meeting , but he sent instead a letter that was read out at the meeting . As noted DATE was found with the applicant on DATE .

On DATE the director of the family support centre issued a formal decision , prohibiting all meetings between the applicant and PERSON until DATE owing to the risk of abduction . The applicant was informed that despite the prohibition he would be allowed to see H. in connection with her therapeutic visits to the clinic . On DATE the ORG issued a decision , maintaining the access prohibition until DATE . It referred to the abduction following which the applicant had been hiding her from the authorities for DATE . Referring to section CARDINAL , subsections CARDINAL and CARDINAL , of LAW , the Board did not hear him , considering that such a hearing could jeopardise the purpose of the decision and that the decision could not be postponed . He appealed to ORG . In its rejoinder of DATE to the applicant 's appeal the ORG submitted that the applicant had allegedly said , during a visit to the clinic on DATE , that he intended to abduct H. again . Moreover , the abduction threat had not been the only reason for the access prohibition as H. had been diagnosed as suffering from post - traumatic stress syndrome for which she needed care .

In a letter of CARDINAL DATE the senior social welfare official clarified the access prohibition ordered on DATE . Despite the prohibition , the applicant was allowed to meet PERSON during her therapeutic visits to the clinic and to write to and telephone her in the family support centre . It appears that , even though encouraged by social welfare officials to do so , he did not use this opportunity .

On DATE ORG quashed the access prohibition imposed on DATE and remitted the matter for a re - examination by ORG , finding that ORG had not shown sufficient grounds for not hearing the applicant prior to its decision . The decision was notified to the social welfare authorities on DATE .

On DATE the Board issued a formal decision restricting access which was to be in force until DATE . The frequency and implementation of the meetings were to be agreed upon in connection with the presentation of the care plan indicating where PERSON was going to live . The applicant had been heard on DATE .

DATE . From DATE the social welfare authorities repeatedly tried to arrange meetings with the applicant to draw up a new care plan in order to arrange future visits between him and H. However , he never accepted the suggested dates nor did he make his own proposals .

In his letter of CARDINAL DATE the applicant demanded that the family home be informed of his right to meet PERSON , given that the last access restriction had ceased on DATE . In a letter of CARDINAL DATE a social welfare official informed him that it was a normal practice concerning the arrangement of meetings with children placed in a substitute family to agree on the conditions at a meeting at which the social welfare authorities , the substitute parents and the parents were present . She further noted that :

“ .... we have on several occasions tried to fix consultations for the purpose of arranging meetings between you and PERSON but no progress has been made . The situation at present is that we have not made any decision on the restriction of the right of access but have agreed with the family home that you will be able to meet PERSON there . The frequency of meetings would be CARDINAL visit per month , and you can directly agree with the family home on the most convenient dates for the meetings . .... ”

On DATE the family home and the applicant agreed that the applicant and PERSON would meet in the paternal grandfather 's home . The social welfare authorities informed the applicant in a letter dated DATE that he could only visit H. in the substitute family home owing to the fact that H. had not seen him for a long time . Neither of the social welfare officials ' letters of DATE constituted a formal decision .

NORP The social welfare authorities tried to arrange meetings to draw up a care plan again in DATE but a meeting was not held until DATE . According to the care plan , the applicant was to visit H. CARDINAL times in the substitute family home and once at the paternal grand father 's . The leading social officer would also visit the applicant in his home on DATE . The social welfare officials did not accept the applicant 's proposal that H. would visit his home DATE . No formal decision was made .

In a care plan meeting on DATE social welfare officials did not accept the applicant 's proposal that H. be allowed to stay with him and his common - law spouse DATE . According to the care plan of CARDINAL DATE , CARDINAL visit DATE would take place in the substitute family home and once DATE the substitute parents would bring PERSON to the paternal grandfather 's for DATE . The applicant would be allowed to organise certain outings with PERSON , as long as she would not be subjected to situations creating confusion in her as to which was really her permanent home at that particular moment . The access restriction was to be in force until DATE . No formal decision was made .

Since a care plan meeting on DATE it appears that the visits have been fully agreed on . It was agreed that ORG would visit the applicant DATE from DATE . She could also spend DATE with her paternal grandfather during DATE . The care plan indicated that her public care remained justified in the light of the conclusions reached in a meeting DATE . In a care plan meeting on DATE it was agreed that H. would visit the applicant DATE from DATE until DATE and spend the DATE with him . The Christmas holiday would be agreed on between the substitute family home and the applicant . In a care plan meeting on DATE it was agreed that DATE visits were to be conducted as earlier . PERSON could also spend DATE with the applicant . In a care plan meeting on DATE it was agreed that ORG would spend DATE with the applicant in DATE . It appears that PERSON has continued to visit the applicant 's home DATE and to spend part of DATE with him .

Meanwhile , in civil proceedings initiated before the GPE ORG ( käräjäoikeus , tingsrätten ) on DATE , PERSON 's mother requested , allegedly on the recommendation of social welfare officials , that she be granted sole custody of the children and that PERSON be ordered to live with her . In an interim decision of CARDINAL DATE ORG ordered that H. should live with her mother , following the termination of the public care . It adjourned the further consideration of the case .

In DATE the applicant started cohabiting with a woman , whom he married in DATE .

On DATE ORG confirmed an agreement between the applicant and PERSON 's mother to the effect that they would exercise joint custody of their son PERSON , whereas the applicant would have sole custody of PERSON and she would live with him following the termination of her public care .

On DATE ORG , in response to the parents ' joint request , awarded the applicant sole custody of PERSON , who had moved into the home of the applicant and his common - law spouse in DATE .

On DATE was placed temporarily with the applicant and the public care was terminated on DATE .

On DATE was again taken into emergency care on the applicant 's request . On DATE she returned to live with him .

On DATE the ORG reported the applicant to the police , on suspicion of having sexually abused PERSON and having abducted her in violation of the public care order and the access restriction .

Further , on an unspecified date , the applicant was charged with having sexually abused PERSON was further charged with having abducted her on DATE . On DATE the GPE ORG held its first hearing . It subsequently heard the applicant and CARDINAL witnesses , including the paternal grandmother , the day carer , PERSON and PERSON , and received several written expert opinions .

In its judgment of CARDINAL DATE ORG , notwithstanding that it considered PERSON 's behaviour at the time of the initial care order not to have been normal for her age , found that the evidence did not show that the applicant had committed the sexual acts that he had been charged with . It thus rejected the charges . It declined to consider the charges relating to the abduction , as ORG had not attested that the bringing of charges was in the interests of the child . The court reasoned as follows :

... Taking into account the incriminating facts , ORG does not find it established in a reliable manner that [ the applicant ] is guilty of aggravated sexual abuse of a child nor of sexually indecent behaviour towards a child . ...

Witness PERSON [ the day carer ] had made notes about PERSON 's behaviour in day care between CARDINAL DATE and CARDINAL DATE . When PERSON was heard as a witness , she explained that by “ bottom ” she had meant “ the genitals ” . The notes contain entries made in DATE . According to the notes of ORG had “ tickled ” her genitals on DATE , which had lasted from TIME . ....

According to witness GPE , who is specialising in child psychiatry , ... a child 's behaviour becomes sexually coloured after sexual abuse . Such children masturbate more than usual . The witness had earlier met CARDINAL child who had masturbated to the extent of the present one . Child psychiatric literature does not give for this extensive masturbation any explanations other than that the child has in some way been subjected to sexuality . The witness is of the view that the child has been subjected to behaviour which is inappropriate for a child , at least when she has clearly had pathological behaviour . .... The witness is not able to tell whether masturbation is something that the child has herself discovered , but it has clearly been indicated that it is something that she has in some way done together with the father . According to the witness , PERSON is a strong and determined child whose words are even more convincing than the words of children usually are . In the view of the witness , the most important report in the case are the notes made by DATE care nurse . ....

Witness PERSON , who worked as a psychologist at ORG , has stated that a girl masturbating is not necessarily a sign of incest that she has experienced . However girls , who have had some kind of sexual experiences , often show disturbed or excessive sexual behaviour . Excessive masturbation could be a sign of experiences other than sexual abuse , for example other kind of mental instability . There may be hyper or overactive children , distressed children or children showing this kind of behaviour without any explanations thereto . ...

On DATE , ORG ( hovioikeus , hovrätten ) confirmed the acquittal . In addition to the reasons given by ORG , it found , inter alia , that it could not be concluded from ORG initial examination that PERSON had been sexually abused .

NORP The relevant legislation is outlined in the ORG 's judgments in PERSON and GPE [ ORG ] ( no . CARDINAL/CARDINAL , § § CARDINAL , ORG CARDINAL-VII ) and NORP v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE , and then by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

NORP The applicant ’s house was built in DATE in GPE . Until DATE , another small building was attached to its side wall , the length of the wall that functioned as a party wall measuring QUANTITY . On the part of the side wall that was not adjoining the other building , the applicant ’s house had several windows , including those of the CARDINAL bedrooms , and a balcony .

On DATE the local development plan was amended to permit the construction of a new QUANTITY building attached to the side of the applicant ’s house . The owners obtained all necessary planning permissions and building permits .

On DATE the construction of a new building began on the neighbouring plot , replacing the old building attached to the applicant ’s house , which was demolished . However , as the new building was larger , the length of the party wall shared with the applicant ’s house now measured QUANTITY . As a result , the house ’s bedroom windows were blocked by a blind wall of the new building and the balcony was destroyed .

After an enquiry by the applicant , he was informed by the municipality and the building control authorities that he had been notified of an intended amendment to the local development plan , envisaging the construction of the new building , and had not objected to it . The applicant contested this fact , arguing that his signature attesting to the fact that he had received the notification had been forged .

NORP In DATE the new building was finished and the municipality authorised its use .

Following that and because of the damage caused to his house , the applicant and his family moved out to another home .

On DATE the applicant appealed against his ORG building permit and sought an order that the construction works be ceased . On DATE the building control authorities rejected the appeal as inadmissible . The applicant applied for judicial review to ORG .

On DATE CARDINAL of the owners of the neighbouring plot asked ORG to authorise the preliminary execution of the building permit , stating that the suspension of the works would inflict contractual penalties and other losses on him . In a final decision issued on DATE ORG authorised the continuation of the construction works , reasoning that their interruption would entail substantial losses for the owners of the plot .

By a final decision of CARDINAL DATE ORG rejected the applicant ’s application for judicial review as inadmissible . It held that the applicant had no standing to appeal against the building permit , as it concerned property which did not belong to him .

In the meantime , on CARDINAL DATE the applicant applied for the judicial review of an order of DATE of the LOC deputy mayor , whereby the amendment to the local development plan of the area envisaging the construction of the new building had been approved . The applicant sought to have the construction works ceased pending the resolution of the dispute .

On DATE ORG dismissed the applicant ’s application for a suspension order as inadmissible , reasoning that his appeal had suspended the implementation of the local development plan by virtue of law .

On an unspecified date CARDINAL of the owners of the neighbouring plot asked the court to authorise the preliminary implementation of the approved layout pending the outcome of the applicant ’s appeal . By a final decision of CARDINAL DATE ORG granted the request , reasoning that a delay in implementation would entail losses for the owners of the building .

By a final judgment of CARDINAL DATE ORG quashed the amendment to the local development plan . It held , in the first place , that it had not been established that the applicant had been informed of the intended amendment ( a name different from his had been indicated on the notification papers ) and therefore his appeal had been submitted in time . The court noted the disagreement amongst the experts appointed by it as to whether the side of the applicant ’s house was officially considered a blind wall , and hence , whether the legislation governing building works had been violated . Without adjudicating on this matter , it held that the order for the amendment did not contain any reasons , which made it impossible to assess its lawfulness . In particular , it was not explained why it was necessary to amend the existing plan . Furthermore , as the applicant had not been duly notified of the amendment , he had not had the opportunity to object to it , which was another violation of the legal requirements .

Although ORG judgment was not subject to appeal , the owners of the neighbouring building tried to challenge it before ORG , which rejected their appeal as inadmissible on DATE .

From the very beginning of the construction works on the neighbouring plot the applicant submitted numerous complaints to the building control authorities , which , however , refused to intervene , pointing out that his neighbours had been issued with all necessary planning permissions and building permits and , later on , that the courts had allowed the building works to be carried out .

The applicant also complained to ORG , the ORG , ORG , the President of GPE , the GPE municipality and other bodies , which all refused to intervene and on most occasions referred the matter back to the building control authorities .

On an unspecified date in DATE the applicant brought an actio negatoria against the owners of the neighbouring building . On DATE ORG dismissed the action . However , in a judgment of CARDINAL DATE ORG reversed and allowed the claim , ordering the neighbours to demolish their building . It held , on the basis of CARDINAL expert reports , that the amendment to the local development plan had breached the applicable legislation . As a result , the newly constructed building had rendered useless CARDINAL of the applicant ’s rooms and had had a detrimental effect on the living conditions in his house . The court held that the violation of the applicable legal provisions had been so serious that it had rendered null and void both the amendment to the local development plan and the building permit .

One of the defendants filed an appeal on points of law , pointing out that his wife had not been summoned as a party to the proceedings , although she was a co - owner .

In a judgment of CARDINAL DATE ORG quashed the judgment of CARDINAL DATE and remitted the case to ORG for fresh examination . It established that the appellant ’s wife had been an interested party to the proceedings and that it had been necessary to ensure the participation of all interested parties . It further found that it could be inferred from the case file that there were other owners of the building who had not been summoned to the proceedings .

After the case was remitted , the applicant identified all owners of the building and notified ORG of their names and addresses . A hearing was scheduled for DATE . The ORG has not been informed of the developments in the proceedings after DATE .

On an unspecified date in DATE the applicant complained to the prosecution authorities that the notification sent to him concerning the amendments to the local development plan had been signed on his behalf by an unknown person . Criminal proceedings for forgery were opened against CARDINAL of the owners of the neighbouring plot , but the investigation was subsequently directed against the applicant . On DATE he was charged with perjury , in that he had lied to the investigator when declaring that he had not himself signed the document in question . The applicant was prohibited from leaving his place of residence without permission .

On DATE the district prosecutor terminated the criminal proceedings against the applicant and cancelled the prohibition on leaving the town . It is unclear whether any investigation against the owner of the neighbouring plot remained underway .

Section CARDINAL of LAW DATE ( ORG за собствеността ) provides that the owner of a piece of immovable property can not carry out actions which impede , in more than the usual way , the use of neighbouring properties .

Under section CARDINAL(CARDINAL ) of the same LAW , an owner may request the cessation of any “ unjustifiable activity ” which hinders him in the exercise of his rights . In an interpretative decision ( no . CARDINAL of DATE ) the former ORG explained that such a claim ( actio negatoria ) provided protection against unjustified interference – whether direct or indirect DATE which might prevent an owner from using his property to the fullest extent . The claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects . ORG held , in particular , that in cases where buildings have been constructed on a neighbouring property without the necessary documents and permits or in contravention thereof , the owner was not obliged to tolerate any restrictions on his right to use and enjoy his property which such a situation might cause . Thus , the actio negatoria could be used to obtain an order to demolish a building . Lastly , ORG held that unlike decisions of the building control authorities , the ORG judgments pursuant to such claims determined with finality disputes between the aggrieved owner and the perpetrator of the interference , and could be enforced as a matter of right .

In judgment no . CARDINAL of DATE ( case no . DATE ) the former ORG of GPE , examining an actio negatoria , held that the very fact of construction in breach of the relevant rules and legal provisions amounted to an impermissible interference with the neighbour ’s right to property , which did not thus need to be proven any further . In judgments no . CARDINAL of DATE ( case no . DATE ) and no . CARDINAL of DATE ( case no . DATE ) ORG held in addition that an actio negatoria could be allowed even where the construction or reconstruction works in the neighbouring property had been carried out in accordance with the relevant construction permits , as in issuing them the administrative authorities had not been under an obligation to take into account the neighbour ’s interests .

In judgment no . CARDINAL of CARDINAL DATE ( case no . CARDINAL/CARDINAL ) , ORG allowed an actio negatoria brought by the owners of a house whose neighbours had constructed a building in contravention of the construction permit granted , thus occupying a portion of the claimants’ plot and blocking the light . ORG , finding that the situation hindered the effective enjoyment of the claimants’ right to use and enjoy their property , ordered the neighbours to demolish their building .

In judgments no . CARDINAL of DATE ( case no . ORG ) and no . CARDINAL of CARDINAL DATE ( case no . CARDINAL ) ORG also ordered , in actions under section CARDINAL of LAW , the demolition of unlawfully constructed buildings .

Section CARDINAL of the DATE State and ORG ( ORG за отговорността на държавата и общините за вреди , “ the ORG ” ) provides that the ORG and municipalities are liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials , committed in the course of or in connection with the performance of an administrative activity . The liability for damages of the municipalities was introduced following legislative amendments of DATE .

The domestic courts have applied this provision in a number of cases concerning the prevention of the effective exercise of the right to use and enjoy property caused by unlawful construction works in neighbouring plots authorised by the authorities . In judgment no . CARDINAL of DATE ( case no . CARDINAL ) , ORG upheld a lower court ’s judgment allowing such a claim against the building supervision authorities and ORG , finding that the construction works on a plot neighbouring that of the claimant , although duly authorised by the defendants , had contravened the relevant construction regulations and had , as a result , infringed the claimant ’s right to light . ORG pointed out that the authorities’ liability was engaged even where none of their decisions related to the disputed construction works had been expressly found to be null and void ; it was sufficient that the construction works were in breach of the statutory requirements .

In another judgment , no . CARDINAL of CARDINAL DATE ( case no . CARDINAL ) , ORG awarded damages to a claimant in a similar situation , pointing out that he had on numerous occasions alerted the building control authorities of the unlawfulness of the construction works on the neighbouring plot . Those authorities had not fulfilled their obligation to order the cessation of the unlawful construction works and have the ORG building demolished , which had resulted in damage to the claimant ’s house .

In another case ( see judgment no . CARDINAL of CARDINAL DATE , case no . CARDINAL , the judgment has entered into force ) , ORG awarded damages to claimants whose neighbours had erected a building without the necessary construction permits . The construction had subsequently been retrospectively approved by the municipal authorities , but the approval order had been annulled by the courts . ORG took note of the fact that even following these developments the ORG building was still standing and its demolition had been neither ordered , nor undertaken , and therefore held that the municipal authorities had failed in their obligations to protect the PERSON property .

In a similar situation , ORG also awarded damages ( judgment no . CARDINAL of DATE , case no . CARDINAL , the judgment has entered into force ) . In that case , the claimant ’s property had been earmarked for expropriation and on that basis the municipal authorities had authorised the construction of a new building in its immediate proximity . However , the intended expropriation had subsequently been abandoned , which had forced the claimant to remain in her house , whose value had already seriously depreciated and which had also been damaged by the construction works close to it .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants were born in DATE and DATE . The first applicant , PERSON , died on DATE . The second applicant lives in the town of ORG , GPE .

On DATE , at TIME , the ORG son was hit and killed by a car being driven by a NORP national , PERSON The car belonged to a NORP national , Ms G.

The law - enforcement authorities examined the scene of the accident immediately after and prepared a vehicular accident scheme with the relevant measurements . The participants in the road traffic accident ( Mr F. and PERSON , who was also in the car during the accident ) gave their account of it .

On DATE ORG instituted a criminal investigation into the road traffic accident and ordered a forensic medical examination of the victim .

On DATE an on - site vehicular accident reconstruction was carried out with the participation of Mr F. and PERSON and in the presence of attesting witnesses ( PERSON and PERSON ) . On DATE other persons were questioned as witnesses .

On DATE the investigator ordered a technical vehicular examination , which was conducted on DATE and established that the applicants’ son had died of serious head trauma as a result of the road traffic accident .

The applicants learned on DATE that their son was dead and his body was in the town morgue .

On DATE the applicants applied to ORG for compensation . On DATE the applicants and their granddaughters were awarded compensation of ORG CARDINAL,CARDINAL as heirs of the victim . In the accompanying letter , ORG informed the applicants that the above amount was the maximum amount it could pay under the law without consent of the foreign insurance company and it was open to them to seek any further compensation by lodging a civil claim against a person or persons liable for the accident . The applicants and their grandchildren received the above amount in equal shares on DATE .

On DATE the forensic medical examination ordered on DATE was conducted . It concluded that the ORG son had died as a result of the road traffic accident from open head trauma , and that he had been moderately drunk when the accident had occurred .

On DATE the investigator ordered a forensic technical vehicular examination , which was conducted on DATE .

On DATE the investigator ordered a vehicular trace examination , which was conducted on DATE .

DATE the applicants made numerous complaints to the different State authorities about delays in the investigation into the death of their son .

On DATE the investigator stayed the proceedings on the ground that the only witnesses to the accident were the driver and the passenger of the car which had hit the applicants’ son , but they could not be questioned as they resided abroad and the police had no funds to arrange for them to travel to GPE .

On DATE ORG ( “ the LRPO ” ) quashed the decision of DATE and instructed the police to continue the investigation .

On DATE the investigator of ORG decided to discontinue the criminal proceedings for lack of corpus delicti in the driver ’s actions . It was established that , given the darkness , the wet road and the headlights from an oncoming car , the driver had only seen the applicant ’s son , who had been walking on the road , at a distance at which he could not avoid hitting him .

On DATE the ORG quashed the decision of DATE on account of the incompleteness of the investigation and gave instructions for further investigative actions .

By a letter of DATE , ORG informed the applicants that the investigation of the case was complicated by the fact that the defendants resided abroad and the ORG had no means available to cover the costs that would be incurred by them travelling to GPE .

On DATE the investigator ordered an additional forensic technical vehicular examination , which was conducted on DATE .

On DATE the investigator again decided to discontinue the criminal proceedings for lack of corpus delicti in the driver ’s actions .

On DATE the ORG quashed the decision of DATE on account of the incompleteness of the investigation , and gave instructions for further investigative actions to be taken .

On DATE the investigator discontinued the criminal proceedings . The decision noted that the investigation had followed all the instructions of the prosecutor but had found no new factual data capable of affecting its previous conclusions .

On DATE the ORG quashed the decision of CARDINAL DATE . It noted that the investigator had followed the instructions given on DATE only in part , while the instructions given on CARDINAL DATE had been ignored altogether .

By a letter of CARDINAL DATE the ORG informed the applicant that the investigation had been reopened and disciplinary proceedings had been instituted against the investigator in their son ’s case for having breached criminal procedure .

On DATE the investigator refused to institute criminal proceedings against Mr F. , PERSON and PERSON

On DATE the investigator stayed the criminal proceedings concerning the death of the applicants’ son , stating that the prosecutor had instructed him to find other witnesses to the accident , which he had been unable to do so far .

On CARDINAL DATE the investigation was resumed .

On DATE the ORG refused to institute criminal proceedings in connection with a complaint by the applicants in which they alleged that Mr. PERSON , Mr. PERSON and Ms. G had bribed the police .

On DATE the criminal proceedings were again discontinued . The investigator noted that he had summoned PERSON , who resided in GPE , to appear for participation in further investigative actions , but he had failed to appear . He also noted that PERSON could not be summoned from GPE , as the investigation had no funds to pay for his travel expenses to GPE . It was further mentioned that there was no evidence that PERSON had been the guilty party in the road traffic accident in question .

On DATE the ORG quashed the decision of DATE on account of the incompleteness of the investigation .

On DATE the investigation conducted an on - site reconstruction of the accident with the participation of PERSON , who was summoned from GPE .

On DATE the investigator refused to institute criminal proceedings against Mr F. and discontinued the criminal proceedings into the road traffic accident that had led to the death of the applicants’ son . This latter decision was quashed by the ORG on DATE .

On DATE the investigator ordered an additional forensic transport trasological examination , which was completed on DATE .

On DATE the investigator discontinued the criminal proceedings once again . He noted that the additional examination had established that the driver could have avoided hitting the victim with the use of emergency breaking only if the victim had been running . Given that there was no confirmation that the victim had been running , the investigator discontinued the proceedings , noting that under LAW an accusation could not be based on assumptions .

On DATE the ORG quashed the decision of DATE , stating that it was necessary to conduct additional investigations .

On DATE the investigator discontinued the criminal proceedings . That decision was quashed by the ORG on DATE .

On DATE the criminal proceedings were stayed by the investigator , who indicated in his decision that on DATE Mr F. had hit an unknown person .

On DATE the investigator resumed the criminal proceedings .

On DATE the investigator refused to institute criminal proceedings against Mr F. for lack of corpus delicti in his actions . By another decision , of the same date , the investigator discontinued the criminal proceedings concerning the road traffic accident which had led to the death of the applicants’ son . That decision by the investigator had been examined and upheld by ORG .

The relevant provisions of domestic law can be found in the judgments in the cases of GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) , and PERSON v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) .


No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-4

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

NORP In DATE the applicant worked in a private asset management company .

In DATE ORG ( “ the NORP ORG ” ) carried out a criminal investigation into the company ’s business . The applicant was twice questioned in the course of the investigation .

In DATE the applicant quit his job and in DATE moved to GPE .

The NORP ORG considered the applicant ’s departure as an attempt to abscond . For this reason , on DATE the NORP ORG charged the applicant in his absence with large - scale fraud and embezzlement , and issued in his respect a detention order and an international search and arrest warrant .

On DATE the NORP police arrested the applicant in GPE . According to the applicant , the policemen did not inform him of the reasons for his arrest and failed to produce any documents justifying it .

On DATE ORG sent an urgent wire to its NORP counterpart . ORG requested conﬁrmation that the applicant was still wanted by the NORP authorities and inquired whether the NORP authorities planned to request his extradition .

On DATE the NORP authorities interviewed the applicant . In the course of the interview , the applicant wrote explanations in which he provided certain details about the investigation in GPE , his questionings and departure to GPE . The applicant noted that , until his arrest , he had not known that the NORP authorities had been searching for him .

On DATE the applicant was placed in a temporary detention unit of ORG .

On DATE the NORP ORG sent to ORG PERSON of GPE ( “ the NORP ORG ” ) a formal request for the applicant ’s extradition , pursuant to LAW . On CARDINAL DATE the NORP ORG received this request .

On DATE ORG replied to its NORP partner ’s wire of DATE and requested the applicant ’s detention pending the extradition proceedings .

On DATE a senior investigator of ORG interrogated the applicant for the ﬁrst time , having come for this purpose from GPE . The investigator informed the applicant about the nature of the accusation against him but did not serve formal charges .

According to the applicant , it was not until then that he was for the ﬁrst time informed – albeit only orally – about the charges .

On DATE ( DATE , according to the Government ) DATE , the applicant was transferred to ORG IZ–CARDINAL/CARDINAL in GPE .

According to the applicant , in DATE his lawyer lodged CARDINAL applications for his release : on DATE with ORG of GPE , on DATE with ORG of GPE , and on DATE with GPE . These applications were made pursuant to LAW which provided for the judicial review of detention on remand .

According to the Government , the applicant ’s lawyer did not lodge these applications .

On DATE the NORP ORG agreed to extradite the applicant .

On DATE ORG Office informed the applicant ’s lawyer that , on DATE , ORG had ordered the applicant ’s continued detention pending the extradition proceedings , pursuant to the request of the NORP authorities and because the applicant was not a NORP citizen .

On DATE the applicant was re - located to ORG no . CARDINAL in GPE .

On DATE ( DATE , according to the Government ) DATE he was handed over to the NORP authorities .

On DATE the NORP ORG of Gomel convicted the applicant and sentenced him to CARDINAL years’ suspended imprisonment with compulsory community work .

GPE and GPE are members of the ORG . On DATE ORG of the ORG signed an ORG - operation in the Sphere of Crime Control ( “ ORG ” ) . LAW provides as follows :

“ A ORG shall , with regard to its internal legislation , assist another ORG who requests :

( a ) the arrest of a person who evades investigating authorities , trial or serving a sentence , or the detention of such a person if necessary ;

( b ) the extradition of a person for criminal prosecution or for serving a sentence . ”

On DATE ORG signed LAW ( “ ORG ) , which provided as follows :

“ CARDINAL . The Contracting Parties shall ... on each other ’s requests extradite persons , who ﬁnd themselves in their territory , for criminal prosecution or serving a sentence .

Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties , and which entail DATE imprisonment or a heavier sentence . ”

“ CARDINAL . A request for extradition ( требование о выдаче ) shall include the following information :

( a ) NORP the title of the requesting and requested authorities ;

( b ) the description of the factual circumstances of the offence , the text of the law of the requesting ORG which criminalises the offence , and the punishment sanctioned by that law ;

( c ) the [ name ] of the person to be extradited , DATE of his birth , citizenship , place of residence , and , if possible , the description of his appearance , his photograph , ﬁngerprints and other personal information ;

( d ) information concerning the damage caused by the offence .

A request for extradition for the purpose of criminal persecution shall be accompanied by a certiﬁed copy of a detention order .... ”

“ CARDINAL . NORP The person whose extradition is sought may also be arrested before receipt of a request for extradition , if there is a related petition ( ходатайство ) . The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow . A petition for arrest ... may be sent by post , wire , telex or fax .

NORP The person may also be detained without the petition referred to in point CARDINAL above if there are legal grounds to suspect that he has committed , in the territory of the other ORG , an offence entailing extradition .

NORP In case of [ the person ’s ] arrest or detention before receipt of the request for extradition , the other ORG shall be informed immediately . ”

“ CARDINAL . The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested ORG ....

A request for the search ... shall contain ... a request for the person ’s arrest and a promise to submit a request for his extradition .

A request for the search shall be accompanied by a certiﬁed copy of ... the detention order ....

The requesting Contracting ORG shall be immediately informed about the person ’s arrest or about other results of the search . ”

“ CARDINAL . A person arrested pursuant to LAW and LAW shall be released ... if no request for extradition is received by the requested ORG within DATE of the arrest .

A person arrested pursuant to LAW shall be released if no petition issued pursuant to LAW arrives within the time established by the law concerning arrest . ”

“ The requested ORG shall inform the requesting ORG about the place and time of the hand - over . If the requesting ORG does not take the person to be extradited within DATE after the ﬁxed date for handing over , the person shall be released . ”

Pursuant to LAW the CCrP ” ) , in force at the material time , a remand prisoner could apply for a judicial review of his pre - trial detention .

Article CARDINAL § CARDINAL of LAW DATE , in force at the material time , provided that appropriation or embezzlement of third parties’ property of which the defendant had custody , or appropriation of the property by abuse of office , committed on several occasions , in concert with others and on a large scale , was punishable by DATE imprisonment , the conﬁscation of property and a prohibition on holding certain offices or on taking up certain activities for a period of DATE .


Violation of Art. 6-1;Non-pecuniary damage - financial award

ORG Mr. PERSON was born in DATE and died in DATE . He was an NORP citizen and lived in GPE .

ORG On DATE , the carabinieri reported the applicant to the GPE public prosecutor ’s office for various alleged offences , including fraud , committed before DATE . They said that they had not questioned the suspect because they had failed to contact him at his last - known address . In fact , his flat , in via PERSON , had been closed and his furniture seized by the judicial authorities ; the manager of the building , who was also the administrator appointed by the court in the attachment proceedings , was unaware of Mr. PERSON ’s new address .

On DATE , the investigating judge issued a " judicial notification " ( comunicazione giudiziaria ) intended to inform the applicant of the opening of criminal proceedings against him . A bailiff attempted to serve it on Mr. PERSON at the address - via Fonteiana - shown in ORG records , but without success : he had moved - DATE according to the carabinieri and DATE according to the police - and had omitted to inform FAC of his change of residence as required by law .

ORG Meanwhile Mr. PERSON , when renewing his driving licence in DATE , had given , as his current address , that shown in ORG records ( via Fonteiana ) .

ORG On DATE , after unsuccessful searches at the latter address , the investigating judge declared the accused untraceable ( irreperibile ) , appointed an official defence lawyer for him and continued the investigations . Thereafter , in pursuance of LAW ( see paragraph CARDINAL below ) , all the documents which had to be served on the applicant were lodged in the registry of the investigating judge , the defence counsel being informed in each case .

On DATE and CARDINAL May and DATE , the investigating judge issued CARDINAL arrest warrants which were not executed because the competent authorities still did not know where Mr. PERSON was living . It should , however , be noted that the address indicated on the warrants was via PERSON . On each occasion , the carabinieri drew up a report of fruitless searches ( vane ricerche ) . Mr. PERSON was thenceforth regarded as " latitante " , that is as a person wilfully evading the execution of a warrant issued by a court ( see paragraph CARDINAL below ) .

ORG By a decision of CARDINAL DATE , the applicant was committed for trial .

A first hearing was held by ORG on DATE . Although he had been informed of the lodging of the summons to appear ( see paragraph CARDINAL above ) , the accused ’s officially - appointed defence counsel did not appear , with the result that the court had to appoint a replacement and postponed the hearings until DATE . On DATE , a new lawyer was officially assigned , because the CARDINAL appointed on CARDINAL May did not appear either . The court adjourned the trial and concluded it on DATE , after appointing , during the sitting and again for the same reason , another official defence lawyer . It sentenced Mr. PERSON to DATE imprisonment ( reclusione ) and a fine ( multa ) of CARDINAL GPE . The public prosecutor had called for sentences of CARDINAL years’ imprisonment and a fine of CARDINAL GPE and the officially - appointed defence counsel had agreed with his submissions .

The judgment was lodged in the registry on DATE and a copy was served on the lawyer . It became final on DATE , as he had not entered an appeal .

ORG On DATE , the public prosecutor ’s office issued an arrest warrant . The applicant was arrested at his home in GPE , CARDINAL via Pian Due Torri , on the following DATE . On DATE , he raised a " procedural objection " ( incidente d’esecuzione ) as regards this warrant and at the same time filed a " late appeal " ( appello apparentemente tardivo ; see paragraph CARDINAL below ) . He appointed a lawyer and instructed him to draft the grounds of appeal . However , he submitted them himself on DATE and lodged a supplementary memorial on DATE . On DATE and DATE , he appointed new lawyers .

ORG On DATE , ORG dismissed the " procedural objection " and ordered that the papers be sent to ORG for a ruling on the " late appeal " .

Mr. PERSON maintained that he had been wrongly declared " latitante " and that the notifications of the summons to appear and of the extract from the judgment rendered by default were therefore null and void .

He explained that , as he had received notice to quit from his landlord at DATE , he had left his flat in via Fonteiana and , before finding a new one , had lived in a hotel . He pointed out that his new address ( via Pian Due Torri ) was known to the police since , on DATE , they had summoned him to the local police station for questioning ; the same applied both to the GPE public prosecutor ’s office , which , on DATE ( that is to say , DATE before adoption of the judgment ) , had sent him a " judicial notification " concerning other criminal proceedings , and to various public authorities , which had served documents on him , using the notification service of FAC .

ORG Mr. PERSON ’s appeal was examined together with an appeal that had been entered by his co - accused . ORG heard Mr. PERSON both on the merits of the case and on the fact that he had been treated as " latitante " .

The public prosecutor attached to ORG also submitted that the judgment of CARDINAL DATE should be set aside ; in his view , Mr. PERSON should not have been regarded as " latitante " .

On DATE , ORG confirmed the conviction of the co - accused . As to Mr. PERSON , it held that his appeal was inadmissible for failure to observe time - limits . It ruled that the time - limit for filing the grounds of appeal - DATE , under LAW had begun to run on DATE , the date on which the arrest warrant had been served , whereas the memorial had not been submitted until DATE .

ORG Mr. PERSON lodged an appeal on points of law but it was dismissed by ORG on DATE . It accepted that ORG had wrongly declared the " late appeal " inadmissible for failure to file the grounds in time : it should first have determined whether , as the appellant alleged , the first - instance proceedings were void . However , ORG concluded that this was not so : it considered that Mr. PERSON had rightly been declared first to be " irreperibile " and then to be " latitante " . It added that ORG should have declared the appeal inadmissible as out of time , since it had been lodged at a time when the judgment under appeal had already become final .

Mr. PERSON , who had been in custody since DATE to serve his sentence , as well as other suspended sentences previously passed on him , died in prison on DATE ( see paragraph CARDINAL above ) .

ORG LAW lays down the methods for notifying an accused person who is not in custody of the various documents pertaining to the investigations and the trial .

When the first procedural step involving the presence of such an accused is taken , the court , the public prosecutor ’s office or the official of the criminal investigation department must ask the accused to indicate the place where notifications should be made or to elect an address for service ( Article CARDINAL , first paragraph ) . If he does not do so , LAW applies ; this provides , inter alia , that if the first notification can not be made to the party concerned in person , it is to be delivered , at his place of residence or of work , to a person living with him or to the caretaker . If those CARDINAL places are not known , notification is to be left where the party concerned is living temporarily or has an address , by delivery to CARDINAL of the above - mentioned persons .

ORG LAW does not define the concept of " irreperibile " . Nevertheless , according to the relevant rules , it may apply to any person on whom a document concerning criminal proceedings opened against him has to be served and whom it has not been possible to trace because his address was unknown . The mere establishment of this fact - the question whether there has been a wilful evasion of the investigations being irrelevant in this context - is enough for this purpose . According to LAW , the bailiff has to inform the judge who ordered the notification . The latter , after directing that further searches be conducted at the place of birth or last residence , will then issue a decree ( decreto ) to the effect that notifications shall be effected by being lodged in the registry of the court before which proceedings are in progress . The defence lawyer must be informed immediately whenever a document is so lodged ; if the accused has no lawyer , the court has to assign one to him officially .

ORG This system of notification is also used if the accused is " latitante " ( LAW ) .

According to the first paragraph of LAW , any person wilfully evading execution of , inter alia , an arrest warrant shall be regarded as being " latitante " . The third paragraph states that whenever classification as " latitante " entails legal consequences , these are to extend to the other proceedings instituted against the person in question . If he does not have a lawyer of his own choosing , an official appointment will be made .

ORG has consistently held that an intention to evade arrest is to be presumed where adequate searches by the criminal investigation police have been unsuccessful . This presumption exists even if the person in question , after moving and failing to make the statutory declaration of change of residence , has not resorted to any special subterfuges to avoid arrest ( ORG , DATE , no . CARDINAL , PERSON , no . CARDINAL ; FAC , DATE , no . CARDINAL , Repertorio DATE , no . CARDINAL ; PERSON delle decisioni penali , DATE , no . DATE ) . In its judgment no . CARDINAL of DATE , ORG specified , however , that the presumption can be rebutted and is thus not irrefutable .

The term " adequate searches " leaves the criminal investigation police with a measure of discretion as to the steps to be taken ; this discretion is however limited , in that the person concerned must be sought at the residence indicated in the arrest warrant ( ORG , DATE , no . CARDINAL , massima no . DATE ) .

ORG Although trial by " contumacia " ( by default ; Articles CARDINAL to CARDINAL of LAW ) is classified as a special form of proceedings , the ordinary procedure is followed ( LAW , first paragraph ) . Such a trial is held when the accused , after being duly summoned , does not appear at the hearing and neither requests nor agrees that it take place in his absence .

ORG Under NORP law , an accused who fails to appear ( contumace ) has the same rights as an accused who is present . He is , for example , entitled to be defended by a lawyer - who will be officially assigned to him by the court if he has not chosen CARDINAL himself - and to lodge an ordinary appeal or an appeal on points of law against the judgment concerning him . The time - limit for entering such an appeal begins to run only from DATE on which he was notified of the decision by means of service of an extract from the judgment . However , in the case of a person who has also been declared to be " irreperibile " or " latitante " , time begins to run from the date of the lodging of the judgment in the registry of the court that rendered it .

ORG According to NORP case - law , individuals who have not entered an appeal and who consider that the notification of the judgment was irregular can lodge a " late appeal " . The time - limits to be observed are the same as for the ordinary appeal ( DATE for giving notice of appeal and DATE for submitting the grounds ) , but both start to run from the date when the person in question had knowledge of the judgment . Nevertheless , in the case of a person regarded as " latitante " the court hearing the appeal can determine the merits of the criminal charge only if it finds that there has been a failure to comply with the rules governing declarations that an accused is " latitante " or governing service on him of the documents in the proceedings ; in addition , it is for the person concerned to prove that he was not seeking to evade justice .

ORG LAW provides , inter alia , that proceedings shall be null and void if the rules on the participation , assistance and representation of the accused have not been observed . Failure to serve a summons to appear at the hearing and the absence , at that stage , of the accused ’s defence counsel constitute grounds of incurable nullity , of which the court must take notice of its own motion at any point in the proceedings .


The applicant is a NORP citizen born in DATE . He is represented before the ORG by Mr PERSON , solicitor , of PERSON and PERSON , GPE , GPE .

In DATE the applicant was convicted of indecent assault and sentenced to DATE imprisonment . His expected release date was in DATE .

On DATE LAW entered into force . As a result of the LAW , the applicant will be required to register with the police for an indefinite period following his release from prison . The applicant considers that this requirement is “ depersonalising ” , robbing him of his “ ability to reinvent [ him]self and start a new life ” and , in addition , he fears that it may put him and his family at risk . In this connection he refers to newspaper reports of vigilante attacks on paedophiles following their identification by the press and television .

Relevant domestic law

According to its preamble , LAW ( “ the LAW ” ) is “ an LAW to require the notification of information to the police by persons who have committed sexual offences ... ” . The registration requirements apply to persons convicted of certain offences after the commencement of the LAW and also , by virtue of LAW ( CARDINAL ) , to those “ ... serving a sentence of imprisonment ... in respect of a sexual offence to which this Part applies ... ” .

A person required to register must inform the police of his name , any other names he uses , his date of birth and his home address , and must inform the police of any change of name or home address within DATE of any change . He must also tell the police his name and address on the date he was convicted of the offence at issue , and must tell the police of any address where he lives or stays for DATE or longer .

For a person who has been sentenced to a term of imprisonment of DATE or more , the registration requirements are indefinite .

Failure to comply with the registration requirements , or to give the police false information , is a criminal offence punishable with DATE imprisonment or a fine .