Remainder inadmissible;No violation of Art. 6-1

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of having committed robberies . He was detained pending trial . The trial , at which he was represented by counsel , began on DATE . At DATE of the trial , and after evidence had been heard , the court set the next trial hearing for DATE at TIME According to the court transcript , the trial only started at TIME on that date .

On DATE between TIME and TIME negotiations took place inside the court building , the content of which are in dispute between the parties .

According to the applicant ’s submissions , the court , having previously indicated that the potential penalty that the applicant faced could amount to CARDINAL years’ imprisonment , promised a maximum penalty of DATE imprisonment in exchange for the applicant ’s waiver of his right to appeal , as well as a waiver of the applicant ’s and his wife ’s claims over confiscated assets and an agreement that he would not call for further evidence .

According to the ORG , the public prosecutor did not take part in the agreement reached . The court , following a proposal made by the applicant ’s counsel , promised a penalty of PERCENT imprisonment in exchange for the applicant ’s waiver of claims over confiscated assets .

According to the court transcript of the hearing on DATE , which makes no mention of the agreement , further documents were then read out , the presiding judge gave legal advice as to the qualification of the alleged offences and both the applicant and his wife , who was present in the courtroom , declared that they waived any rights to the assets confiscated by the prosecution service .

At the end of the hearing , ORG convicted the applicant of aggravated extortion , aggravated robbery and attempted aggravated robbery ( CARDINAL counts of each offence ) and dangerous bodily injury ( CARDINAL count ) and sentenced him to CARDINAL - and - a - half years’ imprisonment . The court , stating that the applicant had not entered a plea , based its findings on DNA expert evidence pointing to a high probability that the applicant had been the person that had caused marks found at the crime scenes and on further circumstantial evidence derived , in particular , from witness testimony . The court considered the fact that the applicant had eventually waived his right to the confiscated assets and had thus delivered a major proportion of his criminal profits as a mitigating factor .

After delivery of the judgment , the court verbally informed the applicant of his right to lodge an appeal on points of law . In the applicant ’s presence , counsel for both the defence and the prosecution waived their rights to appeal .

The applicant subsequently appointed new counsel . On DATE the applicant ’s new counsel applied for restitution of the status quo ante and lodged an appeal on points of law , arguing that the waiver of the right to appeal had been invalid because it had not complied with the requirements of ORG case - law . As the applicant had not been aware of the invalidity of his waiver , he could not be held responsible for having failed to comply with the statutory time - limit of DATE for lodging an appeal on points of law . In a written statement attached to the application , the applicant submitted that his previous counsel had informed him that he would have to expect the imposition of a prison sentence of DATE if he did not accept the court ’s proposal and that he was only informed about the invalidity of the waiver during a first conversation with his new counsel which took place on DATE .

In pleadings dated DATE counsel specified the grounds of appeal on points of law . He complained that the negotiated agreement had not been recorded in the court transcript , as required by the case - law of ORG ( see paragraph CARDINAL below ) . In his view , this constituted a breach of the principle of a public hearing . He also argued that the actual waiver of the right to appeal had been declared before delivery of the judgment DATE namely when negotiating the agreement DATE and had been invalid for this reason as well .

On DATE ORG ( file no . CARDINAL StR CARDINAL/CARDINAL ) dismissed the applicant ’s request for restitution of the status quo ante and rejected his appeal on points of law as inadmissible . Relying on its own settled case - law , the court observed that a waiver of the right to appeal could not be revoked , rescinded or withdrawn . ORG did not find it necessary to establish whether the waiver had been part of a negotiated agreement , as this fact did not call into question the validity of the waiver as such . The waiver had to be measured by different standards : notably , whether the accused had retained the freedom to either accept a judgment against him or lodge an appeal had to be verified . This freedom had to be preserved , even if the judgment had been based on an objectionable agreement and the waiver had constituted honouring such an agreement . Notwithstanding any procedural defect in the alleged agreement , the accused may have pursued his interests in an autonomous and appropriate way . The only decisive factor was whether the accused had been unduly influenced when waiving his right to appeal . In the present case , there was no indication that there had been such undue influence . The applicant ’s submissions neither disclosed an error or misunderstanding on the applicant ’s part , nor any deceit or false information given by the court , nor any impairment of the interests of the defence .

The court further considered that , as a result of the valid waiver of the right to appeal , ORG judgment had become legally binding on DATE and that the appeal on points of law thus had to be rejected as inadmissible . It followed that the applicant could not be granted restitution of the status quo ante . If a person had knowingly waived a right to appeal , he had not been “ prevented from observing a time - limit ” within the meaning of Article CARDINAL § CARDINAL of the Code of Criminal Procedure . The decision was served on the applicant ’s counsel on DATE .

On DATE the applicant lodged a constitutional complaint , claiming that he had been unduly influenced when waiving his right to appeal in exchange for a maximum penalty of CARDINAL - and - a - half years’ imprisonment . Furthermore , ORG had failed to consider the fact that his wife , who had not been involved in the trial , had also been asked to waive any rights she had to the confiscated assets . This procedural method had been arbitrary , had not been in accordance with the statutory provisions governing the confiscation of assets in criminal proceedings and had also constituted a violation of the right to an effective remedy . On DATE ORG ( file no . CARDINAL BvR CARDINAL/CARDINAL ) , relying on the relevant provisions of its rules of procedure , refused to admit the constitutional complaint for examination without giving further reasons . This decision was served on the applicant ’s counsel on DATE .

Relevant provisions :

“ If a person was prevented from observing a time - limit through no fault of his own , he shall be granted restitution of the status quo ante upon application . ... ”

“ ( CARDINAL ) The application for restitution of the status quo ante shall be filed with the court where the time - limit should have been observed within DATE after the reason for non - compliance no longer applies . To observe the time - limit , it shall be sufficient for the application to be filed in time with the court which is to decide on the application .

“ ( CARDINAL ) In suitable cases the court may , in accordance with the following subsections , come to an agreement with the other parties to the proceedings regarding the further progress and outcome of the proceedings . ...

( CARDINAL ) The subject matter of such an agreement may only comprise the legal consequences which could form part of the judgment and of the associated rulings , other procedural measures related to the proceedings , and the conduct of the parties . The verdict and measures of correction and prevention may not be the subject of an agreement .

( CARDINAL ) The court shall announce what content the agreement might have . In this context , it may ... also indicate an upper and lower limit of the sentence .

“ ( CARDINAL ) Withdrawal of an appeal , as well as waiver of the right to lodge an appeal , may also take effect before expiry of the time - limit for filing . ...

( CARDINAL ) ORG counsel shall require express authorisation for such withdrawal . ”

“ ( CARDINAL ) Withdrawal of an appeal , as well as waiver of the right to lodge an appeal , may also take effect before expiry of the time - limit for filing . If a negotiated agreement ( Section CARDINALc ) has preceded the judgment , a waiver shall be excluded . ...

There has always been agreement between the Chambers of ORG that agreements with a view to terminating criminal proceedings are not per se inadmissible . It has also been accepted that a waiver of the right to appeal should not be negotiated in the context of such an agreement and that such a waiver is not legally binding on the defendant . However , the ORG have differed on the question of the consequences of such a waiver if a defendant has nevertheless promised to grant the waiver and has made a declaration that he or she will do so to the trial court .

The First and Second Chambers have held that a waiver of the right to appeal is not invalid simply because it formed – though inadmissibly DATE part of an agreement between the court , the prosecution and the defence . Rather , it has only been considered to be invalid if the procedural defect led to undue influence at the time the waiver was declared .

The Third , Fourth and , since DATE , ORG have found a waiver of the right to appeal , which has been the subject of an agreement with a view to terminating criminal proceedings , to always be invalid . They have held that a promise not to lodge an appeal , made before delivery of a judgment , albeit not legally binding , always constitutes undue influence on the accused .

In a leading decision of DATE , ORG of ORG laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements entered into with a view to terminating criminal proceedings ( file no . GSSt CARDINAL ) . It considered such agreements , in which the criminal courts make a binding declaration on the maximum penalty to be imposed in exchange for the defendant ’s confessing to ( part of ) the offences he has been charged with , to be compatible with LAW and LAW if certain conditions are met .

NORP In particular , all participants in the proceedings ( that is , professional and lay judges , the prosecution , the defence counsel and the defendant ) must be involved in reaching the agreement , the result of which must be made public at a hearing and must be duly noted in the court transcript . The veracity of any confession made by the defendant in accordance with the agreement must be verified . The agreement is not allowed to concern the legal qualification of the acts the defendant has been charged with . The penalty proposed by the court still must reflect the defendant ’s guilt and the penalty which , according to the court , could be expected without a confession may not be disproportionately severe in order to subject the defendant to undue pressure to confess . The court is only allowed to agree a maximum penalty ( as opposed to a specific penalty ) and may only exceed that penalty if relevant factual or legal issues have been overlooked and if it has previously advised the defendant at a hearing of its intention to set a higher penalty . ORG noted that in view of their heavy workload , the courts would be unable to render criminal justice and to avoid delays in proceedings without being allowed to have recourse to such agreements .

ORG further observed that in the past , such agreements had in practice often involved the defendant ’s promise to waive his right to appeal against the judgment , or at least the court ’s suggestion to do so . However , the criminal courts were not authorised , in the context of these agreements , to arrange for a waiver of the right to appeal . An agreement aimed at terminating the proceedings was not to prevent the effective review , by the appeal courts , of the lower courts’ judgments . After the delivery of a judgment which was given following an agreement – irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to inform the defendant not only of his right to appeal , but also of the fact that he was free to lodge an appeal irrespective of the agreement reached ( what is termed a qualified instruction ) . If such a qualified instruction had not been given , the defendant ’s waiver of his right to appeal was void .

These guidelines of ORG have meanwhile been incorporated in Sections CARDINALc and CARDINAL of the Code of Criminal Procedure ( see paragraph CARDINAL above ) .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before ORG by Professor M.W.C. PERSON of ORG of ORG , who also works as a fiscal advisor in GPE

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

DATE , the applicant ’s employer provided him with a company car . The respective catalogue prices of the CARDINAL cars concerned were CARDINAL Netherlands Guilders ( “ NLG ” ) ( car used until DATE ) , ORG . CARDINAL ( car used as from DATE ) and ORG . CARDINAL ( car used as from DATE ) . The applicant used his company car DATE a week for transport from his home to his office . The distance between both places was QUANTITY . The applicant further used this car for private purposes . The distances travelled for private purposes in DATE exceeded QUANTITY .

On DATE , ORG issued the applicant ’s income tax assessment ( aanslag inkomstenbelasting ) for DATE . In the determination of the applicant ’s taxable income for DATE , ORG had added – pursuant to the DATE LAW ( Wet op de Inkomstenbelasting ; hereinafter “ FAC ” ) as amended by LAW DATE – an amount of ORG . CARDINAL ( PERCENT of the catalogue price of the applicant ’s company car in DATE ) to the applicant ’s taxable income .

In the applicant ’s income tax assessment for DATE of DATE , the assessment for DATE of CARDINAL DATE and the assessment for DATE of CARDINAL DATE – on the same grounds as in the assessment of CARDINAL DATE PERCENT of the catalogue value of the company car provided to the applicant in DATE , i.e. NLG . CARDINAL , ORG . CARDINAL and ORG . CARDINAL respectively , was added to his taxable income .

The applicant filed an objection ( bezwaar ) with the ORG against the income tax assessments for DATE . He complained that the PERCENT increase of his taxable income instead of PERCENT was contrary to the prohibition on discrimination under LAW , in that employees having a company car who drive CARDINAL per year for private purposes and who live QUANTITY from their place of work - like himself - must add a further PERCENT ( PERCENT instead of PERCENT ) to their taxable income , whereas employees with a company car in identical circumstances , apart from the fact that they drive QUANTITY per year for private purposes , do not have to add PERCENT of the car ’s catalogue value to their taxable income , but are in fact fully exempted from any addition to their taxable income . He requested that PERCENT of his company car ’s value be deducted from his taxable income for DATE .

In a judgment of DATE in a similar case to the applicant ’s , the ‘ s - ORG ( Gerechtshof ) found in favour of the taxpayer . It held that the reasons stated by the legislator for creating the difference in treatment at issue could not be regarded as constituting an objective and reasonable justification . Consequently , it quashed ORG challenged decision , reduced the determination of that taxpayer ’s taxable income and ordered ORG to reimburse the appellant ’s legal costs , including court fees . The ORG Secretary of ORG ( Staatssecretaris PERSON ) filed an appeal in cassation with ORG ( PERSON ) against this judgment of DATE .

ORG rejected the applicant ’s objections against the income tax assessment for DATE on DATE . ORG did , however , mention in his decision that proceedings were pending before ORG in relation to the complaint made by the applicant . The decision further stated that the applicant ’s tax assessment for DATE would be reduced ex officio if the final judicial decision on the matter would warrant such a course of action .

ORG rejected the applicant ’s objections against the income tax assessment for DATE on DATE . In this decision , ORG mentioned that , in its judgment of DATE , ORG had made a remark to the effect that , possibly , there was prohibited unequal treatment of persons having company cars , living more than QUANTITY from their place of work and who used their company car for , on the one hand , QUANTITY a year for private purposes and , on the other hand , QUANTITY for private purposes .

ORG had , however , not determined this question in that judgment . The applicant was further informed that proceedings on this question were ongoing in which the same complaints as those made by the applicant had been raised . The applicant was finally informed that , in order to prevent numerous proceedings concerning the same matter , his income tax assessment for DATE would be reduced ex officio if the final decision by ORG would warrant this . The applicant ’s attention was , however , drawn to the fact that this would only take place when , at the appropriate moment , the applicant would make a request to this effect .

The applicant ’s objection against the income tax assessment for DATE was rejected by ORG on DATE .

Although an appeal against a rejection of an objection against a tax assessment lies with ORG , the applicant decided , on the basis of the ORG Secretary ’s decision of DATE , not to file an appeal against the rejection of his objections . For the same reason , he also decided not to file an objection against his income tax assessment for DATE .

In its judgment of DATE in the other identical case ( reported in GPE Fiscal Law Reports [ FAC in FAC ” – “ FAC ” ) no . CARDINAL , ORG ruled that the tax payers concerned was treated unequally without justification . However , it upheld ORG decision of DATE . Consequently , ORG quashed the judgment of DATE . with the exception of the costs order against ORG . ORG further ordered the ORG Secretary to reimburse the adversary party ’s legal costs in the cassation proceedings . This judgment , insofar as relevant , reads as follows :

“ CARDINAL . In objecting to the application of this so - called increased fixed amount for car costs ( verhoogde autokostenforfait ) , the < applicant > has argued before ORG that the legislator unjustly subjects him to different treatment from those taxpayers to whom LAW , fourth paragraph , is not applied , as those taxpayers , unlike the < applicant > , use their company car for private purposes for a distance of QUANTITY per year > but , like the < applicant > , live CARDINAL kms from their place of work and drive with their ORG car to and from work . ...

In answering the question whether it concerns an inequality in treatment prohibited by these Treaties [ including LAW in conjunction with LAW No . CARDINAL ] , it must be stated at the outset that they do not prohibit every inequality in treatment of equivalent cases . The legislator has a certain margin of appreciation in answering the question whether cases , for the purposes of the application of these Treaties , are to considered as equivalent and , if so , whether there is an objective and reasonable justification for nevertheless regulating those cases in a different manner .

The difference in treatment challenged by the < applicant > has been created by LAW DATE ... The aim of this LAW was to make a contribution to both reducing commuter traffic as such ( limitation of mobility ) and reducing the use of cars for commuting purposes ( limitation of car mobility ) . ...

It thus follows from the < legislative > history of the creation of the < PERCENT > addition ... that the legislator , as a basic premise , no longer wished to make a link between the strictly private use of the car and its use for commuting purposes . The legislator did not therefore intend to tax – through the introduction of an increased percentage of the fixed amount for car costs ( autokostenforfait ) – the higher sum of income considered as being derived from employment as an extra advantage , made dependent on the travel distance , on account of private use .

This entails that the addition of PERCENT of the catalogue price of the < company > car , though in form an increase of the fixed amount for car costs , in nature has the character of an independent addition for the cases where tax payers habitually travel DATE a week over a CARDINAL - way distance of QUANTITY between their home and their work place using for this a car placed at their disposal for work purposes . ORG fails to see that , for the application of that independent addition , it is of any relevance whether or not the car , apart from commuter travel , has not or only to a limited extent been used for private purposes .

The considerations set out in CARDINAL . to CARDINAL . lead to the conclusion that the legislator , by not prescribing the addition of PERCENT of the catalogue price in cases where there is no or only a limited private use of the < company > car , has given preferential treatment to a limited group within a category of equivalent cases - in short : commuter travel CARDINAL kms - , and has thus treated equivalent cases unequally .

Members of ORG ( PERSON ) have shown doubts as to the legitimacy of that unequal treatment . It has been stated in justification on the ORG side that , from the point of view of transport arranged by the employer , the employees privileged by the proposed regulation are on a par with employees who , either collectively or not , are transported by their employer in minibuses and the like . That contention is , however , in all reasonability untenable . Within the group of employees whose transport is arranged by the employer , those disposing of a < company > car are in a completely different situation from those who are , either collectively or not , transported by the employer in minibuses and the like . As of old , the legislator itself has not viewed these cases as equivalents . It has long since made a difference within the relevant group of employees by including employees disposing of a < company > car as being liable to income tax for the private use of such a car . The form chosen for this , the fixed amount for car costs , prompted an addition of a fixed amount for private use < of a company car > to the taxable income in all cases where an employer has made a car available , unless the tax payer can convincingly prove that , on an DATE basis , the car has been used for private purposes for less than ( at present ) QUANTITY . In addition , the “ employer ’s car ” in the latter situation is further treated differently from other transport arranged by the employer , as in that situation the value of the real private use is taxed . Also , given this long standing difference , the argument made in an earlier phase of the examination of the draft Act , that the distinction of the employees with a < company > car runs up against practical difficulties , is defective .

Moreover , ORG has not found outside this legislative history any grounds of a fiscal or non - fiscal nature that can justify the unequal treatment at issue .

Further , it can not be said that the unequal treatment results in a quantitatively unimportant advantage as , with the addition of PERCENT of the catalogue price of a < company > car , quickly one finds that an increase in income of ORG . CARDINAL to ORG . CARDINAL is involved .

Even taking into consideration the margin of appreciation of the legislator , the above also leads to the conclusion that the legislator can not in all reasonability have held that it concerns here unequal cases , or that there is a reasonable and objective justification for the unequal treatment of those cases . The < cassation > complaints I and II , insofar as they are based on a different opinion , fail .

The < cassation > complaint I ... is however successful insofar it points out that not to apply the rule contained in LAW CARDINAL of the ORG would result in an equally unjustifiable inequality in treatment , namely in respect of employees who habitually commute , involving a CARDINAL - way travel distance of QUANTITY , with their own car or with public transportation without having a public - transport - declaration [ for fiscal deduction purposes ] ( openbaar vervoerverklaring ) . This could only be remedied by the non - application of the entire < regulation on the > “ capping < of the tax allowance for commuters > ” ( “ aftopping ” ) . ORG considers for the time being that such a consequence of the inequality found is disproportionate . It is for legislator to remove the inequality found . ORG assumes that the PERSON announced in the < cassation > complaint III will be presented < to Parliament>. ”

In a further judgment given on DATE in yet another case concerning the same subject matter , ORG rejected the argument that , on the basis of its judgment of DATE , an increase of PERCENT instead of PERCENT should not be imposed . It held :

“ CARDINAL . ... In cassation , the appellant argues .... that the fiscal judge should now refrain from applying the regulation at issue , because the legislator has failed to introduce in a timely manner a PERSON in order to remove the inequality which has been found .

As to this argument , the following applies .

ORG . In consideration CARDINAL of its judgment of DATE , ORG held that it was for the legislator to remove the inequality found and that it assumed that to this end the ORG Secretary < of ORG > would submit < to ORG > the PERSON announced in the ORG Secretary ’s cassation memorial .

In its advice of CARDINAL DATE on draft legislation on amendments to forthcoming statutory fiscal regulations ... ORG ( PERSON ) noted that this PERSON did not contain a regulation designed to remove the above inequality under the law , and advised that such a regulation be included already in this PERSON . In the further report ( ... ) , the Government replied as follows :

“ ORG > advises , with reference to ORG judgment of DATE ... , as to the application of the ... increased fixed amount for car costs to repair the inequality found in respect of the fixed amount for car costs already < in this PERSON ... this inequality will be repaired by a change of legislation . This change is however connected to the elaboration of the announcement in LAW ( NORP ) to replace the fixed amount nature ( forfaitaire karakter ) of the car ORG fiction ( autokostenfictie ) by an approach that more befits the factual private use of the company car . The manner in which this reparation is to take place is further dependent on the new modelling of the fiscal treatment of company cars in the framework of legislation on tax reforms for DATE ( belastingherziening CARDINALe eeuw ) . In this it will also be considered whether the above - intended reparation , if required , can already occur as of DATE in anticipation of the announced fiscal reform for DATE . ”

The Government have subsequently .... stated the following :

“ In LAW < this point made by > ORG is resolved . It has been considered whether it was feasible to advance < this solution > without great problems . To advance < this regulation > would , in the light of the proposed fiscal reform for DATE lead to an unbalanced < global > package . In the Fiscal Plan CARDINAL it was not possible to incorporate the compensation – connected with < this solution > – in the sphere of tariffs and the further retrenchments from the fiscal reform for DATE . In addition , justice would no longer be done to the policy connection with other regulations on fiscal reform ( commuter travel expenses and labour reduction ) . In the fiscal reforms for DATE , on the other hand , the budgetary and revenuepolitical consequences of the < solution > are incorporated in the total package of measures .

Apart from this , a reparation within the current system as an extra intermediate step to the fiscal reform leads to confusion for taxpayers and the fiscal executive , and to extra administrative charges . Taxpayers and the fiscal executive would thus be confronted with an adapted system that will change totally again within DATE . To achieve a balance , we have therefore opted for resolving the inequality pointed out < by ORG > as to the < fixed amount for car costs > in the Bill on Fiscal Reform DATE . In taking up this option , the fact that this PERSON has already been submitted to ORG of ORG also plays a role . ”

In the PERSON mentioned here by the Government , that has been submitted on DATE to ORG and which PERSON has been adopted in the meantime ( LAW DATE on the Determination of LAW DATE ( Fiscal Reform DATE ) , ORG ) DATE , no . CARDINAL ) , the inequality referred to above has in fact been removed .

DATE . It appears from the above that the legislator has opted to remove the inequality in the framework of a general fiscal reform in connection with other regulations that , in the legislator ’s opinion , also required revision ... in order to establish in that way a coherent overall < system>.

ORG is of the opinion that there are insufficient grounds for finding that the legislator could not reasonably have taken this decision , although the removal of the inequality therefore took longer than was desirable . In this finding , ORG takes into consideration , apart from the above circumstances and the duration of the delay , that apparently initially a totally different regulation was considered , that a change in legislation could possibly have resulted in an increase of fiscal charges for certain groups , and that it is understandable that the legislator did not wish to alter the regulation twice within a short space of time . These considerations lead to the conclusion that ORG has correctly refrained from not applying LAW DATE .

Moreover , it must be noted that the appellant in the present case , as regards the income tax imposition for DATE , can not successfully argue that this statutory provision should not be applied in his case because , in any event , the legislation was not obliged to remove the instant inequality found with retroactive effect for DATE . ”

On DATE , ORG issued the applicant ’s income tax return assessment ( voorlopige teruggaaf inkomstenbelasting ) for DATE . Like in the previous assessment , PERCENT of the catalogue value of the his company car was added to his taxable income .

The applicant filed an objection ( bezwaar ) with the ORG against the income tax return assessment for DATE . Relying on ORG judgment of DATE , he complained that LAW ITA was contrary to the prohibition on discrimination insofar as it resulted an increase of PERCENT . He submitted that , in its judgment of DATE , ORG had refrained from action , in the form of a reduction of the income tax assessment , on the assumption that a new LAW would be submitted to ORG in the near future . As this PERSON had not yet been presented to ORG , the applicant considered that the need for judicial action had now arisen .

ORG rejected the applicant ’s objection on DATE . ORG noted that that ORG , although it had found that the application of LAW of the DATE LAW was contrary to the principle of equal treatment , had declined to render this provision inoperative as this would have entailed an equally unjustifiable inequality , with disproportionate consequences . ORG further noted that ORG had concluded that it was for the legislator to remove the unequal treatment . ORG did not accept the applicant ’s argument that the legislator had failed to act with due diligence in drawing up new legislation .

The applicant filed an appeal with ORG . He did not avail himself of the possibility to claim a reimbursement of his legal costs by the other party . By judgment of DATE and referring to ORG findings in its judgment of DATE , ORG rejected the applicant ’s appeal as ill - founded .

Although it was open to the applicant to file an appeal in cassation with ORG , he did not avail himself of this possibility , considering that this would not have had any prospects of success .

Pursuant to LAW ( Wet op de Inkomstenbelasting ) , employees disposing of a company car provided by their employer must add a fixed amount to their taxable income because of the use of such a car for private purposes . The wording of this provision fixes this amount , the so - called fixed amount for car costs ( autokostenforfait ) , at PERCENT of the catalogue price of the car concerned .

Following the adoption of LAW of DATE amending income tax and salaries tax [ capping of the tax allowance for commuters ] ( PERSON wijziging van de inkomstenbelasting en de loonbelasting [ aftopping reiskostenforfait ] ) , this fixed amount was increased by PERCENT ( i.e. to PERCENT ) in those cases where an employee habitually travels DATE a week between his or her home and work place when the distance of a oneway journey between these CARDINAL places exceeds QUANTITY ( Article CARDINAL § CARDINAL ) .

LAW provides that the rules contained in LAW are not applied where it appears that , on an annual basis , the company car has been used for private purposes for a total distance not exceeding QUANTITY . In that situation no fixed amount for car costs has to be added to the taxable income , but the actual benefit must be added on the basis of a fixed amount per CARDINAL , e.g. QUANTITY at MONEY per kilometre .

The underlying rationale of the LAW of DATE was of an environmental nature , i.e. to reduce commuter traffic by encouraging employees to live closer to their place of work , as well as to reduce the use of cars for commuter travel by encouraging employees to opt either for public transport or other forms of collective transport arranged by the employer .

In the original proposal contained in the PERSON , which resulted in LAW of DATE , the existing possibilities for tax deduction of costs for commuting to work and the exemption from taxes of compensation paid by employers in respect of commuting costs were limited to a maximum ( aftopping ) . Costs for commuting to work for distances in excess of QUANTITY were to be considered as “ private ” and no longer eligible for tax allowances .

As to the application of the fixed amount for car costs in cases concerning a company car , the commuter traffic in excess of QUANTITY was to be considered as “ private “ and lead to the application of a higher percentage . This would only apply , however , where a car was also being used for private purposes . If the car would only be strictly used for work purposes , including commuting , the fixed amount for car costs would not come into play .

As this approach met with the objection that QUANTITY driven by a company car for private purposes could result in the addition to the taxable income of the fixed amount for car costs , the PERSON was amended . The fixed amount for car costs would be applied when a company car was to be used for private purposes involving a distance of QUANTITY or DATE . In the determination of this question , the distance between the home and place of work DATE whether or not it was QUANTITY – would be irrelevant . If the limit of QUANTITY for private use were exceeded , an addition of PERCENT of the car ’s catalogue price would be applied where the commuting to work remained limited to a distance of QUANTITY from the home . For commuting involving a distance between the home and place of work of QUANTITY , a percentage of PERCENT would be applied .

Although some critical questions were put during the parliamentary debate the system as amended was adopted by LAW DATE .

In a judgment of CARDINAL DATE ( BNB no . CARDINAL ) , ORG held that :

“ In the present proceedings , the question has not been raised whether the rules contained in LAW and QUANTITY [ ITA ] entail a prohibited unequal treatment in respect of those case in which a car made available by an employer is used for private purposes for QUANTITY per year . That question must at present , however , remain unresolved , since its answer also requires an investigation of the facts for which there is no scope in cassation proceedings . ”

The rules contained in LAW remained in force until DATE when fiscal reform legislation came into force - LAW DATE . This Act provided that the distance between the home and place of work is no longer relevant in the determination of the addition of the fixed amount for car costs in respect of company cars . Only the distance for private purposes for which the company car is used is relevant . In case this use is less than CARDINAL kms per year , no fixed amount has to be added to the taxable income . For a distance QUANTITY , PERCENT of the car ’s catalogue value must be added to the taxable income , for distances QUANTITY , PERCENT , and for distances exceeding QUANTITY , PERCENT . Commuter travel is considered to be work - related .

LAW ( PERSON ) , provides :

" All persons present in the GPE shall be treated in the same way in similar situations . Discrimination on the ground of religion , philosophical convictions , political leanings , race , sex , or any other ground whatsoever shall not be allowed . "

LAW reads :

" The courts shall not rule on the constitutionality ( grondwettigheid ) of statutes and treaties . "

Under LAW , as interpreted in the constant caselaw of ORG , the judiciary is not permitted to examine the lawfulness of Acts of ORG . The courts can , however , review the lawfulness of subordinate legislation and of all other acts of the administration including the lawfulness of decisions which have a general character such as regulations , plans or directives ( cf . PERSON , DATE , Beslissingen in DATE , no . CARDINAL ) .

LAW provides that provisions of international treaties and decisions of international ( intergovernmental ) organisations which , according to their content , may be binding on anyone shall have binding force after they have been published . Pursuant to LAW , such provisions of international treaties and decisions of international organisations take precedence over domestic statutory rules in case of conflict .

As regards the prohibition on discrimination , ORG recognised in a judgment of CARDINAL DATE ( PERSON “ GPE ” , DATE , no . CARDINAL [ corrected in GPE DATE , no . CARDINAL ] ) , that LAW is a provision of an international treaty which , according to its content , may be binding on anyone , and must therefore in principle be applied directly by the GPE courts .

However , in a number of judgments ORG has declined to construe DATE the LAW in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted unlawful discrimination , holding that – where various options were open to the national authorities to remove such discrimination – the choice should be left to the legislator in view of the social and legal implications attending each possible course of action ( PERSON , DATE , GPE DATE , no . CARDINAL ; and PERSON , DATE , GPE DATE , no . CARDINAL ) .

In its judgment of DATE ( GPE DATE , no . CARDINAL ) , cited in the ORG ’s Kroon and Others v. the GPE judgment of DATE , ORG came to a similar finding with regard to LAW taken together with LAW no CARDINAL-C , p. CARDINAL , § CARDINAL ) .


CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2)

Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (ratione materiae);Remainder inadmissible;Violation of Art. 10

NORP The applicant association is dedicated to animal protection , campaigning in particular against animal experiments and battery farming .

NORP In response to various advertisements produced by the meat industry , the applicant association made a television commercial lasting TIME , consisting of CARDINAL scenes .

The first scene showed a sow building a shelter for her piglets in the forest . With soft music playing in the background , the voiceover referred , among other things , to the GPE sense of family . The second scene showed a noisy hall with pigs in small pens , gnawing nervously at the iron bars . The voiceover compared the conditions in which pigs were reared to concentration camps , and added that the animals were pumped full of medicines . The film concluded with the exhortation : “ Eat less meat , for the sake of your health , the animals and the environment ! ”

Permission to broadcast the commercial on the channels of ORG ( Schweizerische Radio- und Fernsehgesellschaft ) was refused on DATE by the company responsible for television advertising ( ORG ( ORG für das LOC ) , now called ORG ) and , at final instance , by ORG , which dismissed an administrative - law appeal by the applicant association on DATE .

In respect of the applicant association ’s complaint under LAW , ORG found that the prohibition of political advertising laid down in section PERSON ) of ORG pursued various aims ; in particular , it was designed to prevent financially powerful groups from obtaining a competitive political advantage , to protect the formation of public opinion from undue commercial influence , to bring about a certain equality of opportunity among the different forces of society , and to contribute towards the independence of radio and television broadcasters in editorial matters .

On DATE the applicant association lodged an application with ORG under former LAW .

The application was transmitted to ORG on DATE , when Protocol No . CARDINAL to the LAW came into force ( LAW ) .

In a decision of DATE the ORG declared the application partly admissible .

In a judgment of DATE the ORG held that the refusal by the relevant NORP authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by LAW ( see ORG gegen PERSON v. GPE , no . CARDINAL , ORG CARDINALVI ) .

The ORG found that the measure taken had been “ prescribed by law ” and had pursued a legitimate aim for the purposes of LAW .

As to whether the measure had been “ necessary in a NORP society ” within the meaning of that provision , the ORG noted , in particular , that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster ’s independence , unduly influencing public opinion or endangering equality of opportunity among the different forces of society . On the contrary , it had simply intended to participate in an ongoing general debate on the protection and rearing of animals . Accordingly , in the ORG

The ORG also found that there had been no violation of LAW and CARDINAL of the Convention . As to the application of Article CARDINAL , it ordered GPE to pay MONEY ( CHF – approximately CARDINAL ( ORG ) DATE ) for costs and expenses . However , it made no award to the applicant association for non - pecuniary damage .

Subsequently , the applicant association again applied to ORG for permission to broadcast an amended version of the commercial . In a letter of CARDINAL DATE ORG refused the application .

On DATE , on the basis of the ORG ’s judgment , the applicant association applied to ORG for the final judgment given at domestic level to be reviewed , in accordance with section CARDINALa of the former LAW ( see “ Relevant domestic law and practice ” , paragraph CARDINAL below ) .

In their respective observations of DATE and DATE , which were duly transmitted to the applicant association , ORG , ORG and ORG submitted that the application to reopen the proceedings should be dismissed .

In a judgment of DATE ORG dismissed the application to reopen the proceedings . It held that the applicant association had not provided a sufficient explanation of the nature of “ the amendment of the judgment and the redress being sought ” , a formal requirement imposed by CARDINAL of the former LAW ( see “ Relevant domestic law and practice ” , paragraph CARDINAL below ) . It observed , in particular , that the applicant association had been unable to show how redress was possible only through the reopening of the proceedings . It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial , which now appeared out of date almost eight years after it was initially intended to have been broadcast . Lastly , ORG considered that the fact that ORG , the competent authority in such matters , had again refused to sign an agreement to broadcast an amended version of the commercial should have formed the subject of separate proceedings .

On DATE ORG dismissed an appeal by the applicant association against ORG decision of CARDINAL DATE refusing permission to broadcast the amended version of the commercial .

ORG , which had not been informed either by the applicant association or by ORG that ORG had dismissed the application for review , concluded its examination of application no . CARDINAL on DATE by adopting PERSON , the relevant parts of which read :

“ ... Having regard to the Rules adopted by ORG concerning the application of Article CARDINAL , paragraph CARDINAL , of the LAW ; ...

Whereas during the examination of the case by ORG , the government of the respondent state gave ORG information about the measures taken preventing new violations of the same kind as that found in the present judgment ; this information appears in the appendix to this resolution ; ...

Declares , after having taken note of the information supplied by the Government of GPE , that it has exercised its functions under LAW , paragraph CARDINAL , of the LAW in this case .

Appendix to ORG ResDH(CARDINAL)CARDINAL : Information provided by the Government of GPE during the examination of the VGT Verein gegen Tierfabriken case by ORG

As regards individual measures , the judgment was transmitted to the applicant , who was entitled to request the revision of ORG judgment of DATE .

Concerning general measures , the judgment has been sent out to ORG , ORG , ORG , and ORG and to ORG .

In addition , the ORG ’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération n.CARDINAL/IV(CARDINAL ) , and can be consulted on the following website : ... The judgment has also been mentioned in the ORG DATE report on the NORP activities at ORG in DATE , which has been published in the GPE fédérale DATE .

The Government of GPE considers that , given the information mentioned above , there will no longer exist a risk of a repetition of the violation found in the present case and , consequently , GPE has satisfied its obligations under LAW § CARDINAL of the LAW . ”

In a letter of CARDINAL DATE the applicant association informed ORG refusal to review the judgment of DATE following the ORG ’s finding of a violation of LAW .

On DATE ORG informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the ORG ’s consideration of the application lodged in DATE in the present case .

Sections CARDINAL et seq . of the former LAW , which was in force until DATE , concerned , inter alia , the review of judgments of ORG . Section CARDINALa provided :

A decision of ORG or of a lower court may be reviewed if ORG has granted an individual application on account of a breach of LAW DATE for ORG and its Protocols , and redress is possible only through such a review .

NORP If ORG determines that a review is called for , but a lower court has jurisdiction , it shall refer the case to the lower court to reopen proceedings in the matter .

NORP The cantonal court shall then also decide on the request for a review if cantonal law does not envisage such a ground for the reopening of proceedings . ”

Section CARDINAL of the Act provided :

The application for review must indicate , with supporting evidence , the ground relied on for the reopening of proceedings and whether it has been raised in due time ; it must also state the nature of the amendment of the judgment and the redress being sought . ”

On DATE , on the basis of that provision , ORG granted , at least in part , an application for review of CARDINAL of its judgments , after the ORG had found a violation in the case of GPE v. GPE ( judgment of CARDINAL DATE , Reports of Judgments and Decisions CARDINALVI ) . It held :

“ ... The judgment of ORG may afford the applicant satisfaction and , through the award of CHF CARDINAL , financial compensation for the cost of the proceedings . But it does not remove the restrictions imposed on the applicant by ORG and confirmed by ORG in its judgment of DATE . These restrictions may be upheld only within the bounds of necessity as defined by ORG . Since those restrictions may be lifted or limited only by means of an appeal to ORG , the requirement of section ORG is met ... ”

Section CARDINAL of LAW of DATE , in force since DATE , reproduces section CARDINALa of the former LAW . It provides :

An application for review of a judgment of ORG on account of a violation of LAW DATE for ORG ) may be submitted if the following conditions are satisfied :

( a ) ORG , in a final judgment , has found a violation of the ORG or its Protocols ;

( b ) compensation can not remedy the effects of the violation ;

( c ) the review is necessary to remedy the effects of the violation . ”


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney

The CARDINAL applicants , PERSON , her adult son and her CARDINAL other minor children ( “ the applicants ” ) are NORP nationals . The President of the Section decided of his own motion to grant the applicants anonymity ( Rule CARDINAL § CARDINAL of ORG ) and confidentiality of the case file documents ( Rule CARDINAL of ORG ) . The applicants , who had been granted legal aid , were represented by PERSON , a lawyer practising in PERSON , and by PERSON .

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

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

The applicant mother , born in DATE , and her husband were married in DATE . They have CARDINAL children : NORP , born in DATE , PERSON , born in DATE , NORP , born in DATE , NORP , born in DATE , PERSON , born in DATE and PERSON , born in DATE . In DATE the applicant mother suffered a stroke which paralysed her left side . She was able to return home from hospital DATE . During that time her husband took care of the children and the home . He continued to do so even after her return as she could hardly walk and usually used a wheelchair .

NORP In DATE the oldest child NORP reached the age of majority .

In DATE the husband was killed in a car accident . The applicant mother and the children lived at first with her parents but moved back to their home in DATE . As of DATE and during DATE the applicant mother received considerable help from the social services . A team of CARDINAL to CARDINAL social workers worked with the family practically round the clock .

On DATE , a family worker made an evaluation of the situation in the applicant ’s family . According to the evaluation , the applicant mother used a wheelchair whenever she moved from CARDINAL place to another and managed to get into and out of the wheelchair independently . She was quite capable of writing but needed help with opening envelopes . As to everyday routines , the report noted that the applicant mother could eat her food independently if it was already portioned . For dressing and undressing she needed verbal support and also physical help and she could not button or zip up her clothes . She was able to go to the toilet independently . When washing herself she needed help only with washing her back and feet and rinsing her hair . Regarding the applicant mother ’s understanding and memory , the evaluation stated that the applicant mother lived in an imaginary reality and could not see the real situation of her family . She misunderstood things and could even understand some things quite in reverse . The applicant mother had problems with her memory and sense of time : she confused DATE of DATE and the children DATE and could not always remember when she had washed herself last , for example . The family worker reported that the applicant mother ’s mental ability varied from day to day and she easily became anxious .

The family workers found their work in the family challenging and tiring in all respects because each of the CARDINAL youngest children showed various symptoms due to their traumatic past . The applicant mother ’s parents took an active part in the everyday life of the family , and this caused occasional conflicts . The family workers also experienced threats from the applicant mother ’s eldest child , NORP , who disturbed their work . The family workers had said that they would not continue working with the family until the problems were solved .

On DATE the child welfare authorities decided , as a support measure , to place the children in foster care , either in family care or in support families , until DATE .

As there were a lot of problems in the family , on an unspecified date the social services asked a private firm to evaluate the parenting in the family .

On DATE the CARDINAL minor children were taken into emergency public care . These decisions were reasoned by the fact that the social workers could no longer cope with the family . The children were also afraid of their grandparents and feared that they would be kidnapped and taken abroad by them . The grandparents treated the children unequally and used corporal punishment . The grandfather drank a lot of alcohol . The children showed excessive sexual behaviour , and they had all wanted to stay in their support families rather than returning home . According to the preliminary results of the on - going evaluation by the private firm , the applicant mother was unable to meet the emotional needs of the children and they had suffered from insecurity for a long time . The children violated each other ’s limits sadistically but the applicant mother did not intervene . Before taking the decisions , S. , NORP and NORP had been heard and none of them opposed the taking into public care . All the children were placed in different families .

On DATE the social welfare authorities received the evaluation made by the private firm . According to the evaluation , the children were , inter alia , left on their own , even when in the company of their mother . They tried as individuals to obtain attention and care from any adult but their mother was not the primary option for any of them . The mother was mentally and physically dependent on the social workers and she was not able to cope with the children ’s aggression or other feelings . She was not in practice capable of adequate parenting . The social workers had to bear too much responsibility for the children ’s safety . It was more important to provide an adult to care for each child than to keep all the siblings together .

By letter dated CARDINAL DATE the applicant mother sought rectification of this decision and proposed that the grandparents could help her to take care of the children .

On DATE the emergency taking into public care was maintained by the child welfare authorities .

On DATE the Director of social services submitted a request to ORG ( hallinto - oikeus , förvaltnings - domstolen ) for a care order for each of the children .

NORP By letter dated DATE the applicant mother appealed to ORG .

On DATE the request for rectification was rejected by the child welfare authorities . All of the children had integrated well in their foster families and were concerned about their possible return home . Taking into account what the children had said about their grandparents , they could not be considered as persons with whom the children could be placed .

On DATE ORG held an oral hearing in the case . The oldest children PERSON and NORP were heard separately by the court and it met the youngest children , NORP , PERSON and PERSON , in their respective foster homes .

On DATE ORG confirmed the taking into public care and the placement of the children . CARDINAL of the children were placed in the same foster home . The court found that the taking into public care was needed due to the lack of parenting and the circumstances at home . The lack of care endangered seriously the health and development of the children . The aid provided in different forms by the social workers had proved to be insufficient . Taking the children into public care was in their best interest .

By letters dated DATE and DATE the applicant mother appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting that an oral hearing be held . She claimed that the authorities had neglected to evaluate the role of the grandparents who were able and willing to take care of the children . The grandmother had previously worked in a children ’s day - care centre . Also , her brother had promised to help her with the children .

On DATE the emergency public care order was continued in the best interest of the children .

On DATE the local social welfare authority requested ORG ( maistraatti , magistraten ) , in accordance with section CARDINAL of LAW , to appoint the children a guardian . From the documents submitted by the applicants it appears that such a guardian was appointed .

On DATE ORG rejected the request for an oral hearing as well as the appeal . Concerning the former , it found that ORG had already organised an oral hearing and that a new oral hearing was not needed to clarify the matter . As to the appeal , it found that the criteria for taking into public care had been fulfilled and that there was no reason to change the outcome reached by ORG .

On DATE the child welfare authorities decided to change the placement of the youngest child . This decision was based on the fact that the former foster family was exhausted and could no longer continue to cope with the youngest child .

The applicant mother appealed against this decision to ORG , demanding that the child be placed with her . She also requested that an oral hearing be held . She referred , inter alia , to the LAW and demanded that the authorities actively work to reunite the family .

On DATE ORG rejected the appeal . It found that it was not possible to place the child with his mother as he had no affectionate relationship with his mother . As the same difficulties as before still existed , it was not in the best interest of the child to place him with his mother . It was in his interest to be placed in another foster home which could provide him a model of normal family life .

NORP By letter dated CARDINAL DATE the applicant mother appealed against this decision to ORG .

On DATE ORG rejected the applicant mother ’s appeal , confirming the reasoning of ORG in its decision of DATE .

The children have been able to meet each other only a couple of times during their placement . Since being taken into public care , they have been able to meet their mother only occasionally under supervision . There were no visits DATE .

On DATE the child welfare authorities decided that none of the children could meet their mother or otherwise contact her at all during the period from DATE to CARDINAL DATE . This decision was reasoned by the fact that forensic psychiatric examinations of the children were on - going and that they required the creation of stable and clear conditions . No meetings were held during the validity of the decisions . Letters or other mail or confidential messages sent by the children or addressed to them were withheld . The applicant mother appealed against these decisions to ORG .

On DATE and CARDINAL DATE ORG rejected the applicant mother ’s appeals against the decisions of CARDINAL DATE . It found that contact restrictions were necessary due to the on - going forensic psychiatric examinations of the children and were in their best interest .

On DATE the child welfare authorities decided that , during the period from DATE to DATE , CARDINAL of the children , PERSON , PERSON , could meet their mother DATE in the foster home for DATE at a time in the presence of the foster parent . The meetings for the CARDINAL other children , NORP and PERSON , were cancelled until DATE . The applicant mother appealed against these decisions to ORG .

On DATE the child welfare authorities decided that , during the period from DATE to DATE , the youngest child PERSON could meet his mother under supervision for DATE at a time , DATE . The applicant mother appealed against this decision to ORG .

On DATE the child welfare authorities also prohibited contact between PERSON and his grandparents until DATE .

On DATE ORG decided the applicant mother ’s appeal against the decisions of DATE . As concerned PERSON , PERSON , the court quashed the decisions of DATE , finding that there had been no reasons to restrict contact of the applicant mother with PERSON , I. and L. between DATE and DATE . The court considered , however , that it had been in the best interest of the children to implement the visits under supervision . As concerned NORP , the court noted that he had repeatedly expressed his unwillingness to meet with the applicant mother . Given that NORP was already DATE , his opinion had to be taken into account . NORP had had severe symptoms and his behaviour had changed considerably after having met with his family members . It was thus in the best interest of NORP to have the underlying reasons for his symptoms examined so that adequate therapy could be provided . Therefore , the contact restrictions were necessary until DATE . Finally , as concerned the youngest child PERSON , the court noted that his excessively sexual behaviour called for forensic psychiatric examination . It was in his best interest to have the underlying reasons for his symptoms examined , and it was therefore necessary to keep his circumstances stable during the examinations . Interaction with his mother might have disturbed his physical and mental development and jeopardised the purpose of the foster care . Therefore , the court found that the contact restrictions applicable until DATE had been necessary .

On DATE the child welfare authorities decided to restrict the contact between the second youngest child PERSON and his mother until DATE on the ground that contact would endanger his health , development and safety as well as the fulfilment of the purpose of the foster care . The applicant mother appealed against this decision to ORG .

On DATE the child welfare authorities decided to continue restricting the contact between NORP and his mother between CARDINAL DATE and DATE on the same grounds as earlier and because NORP himself opposed meetings . On DATE the child welfare authorities also prohibited contact between NORP and his grandparents until DATE .

On DATE the child welfare authorities ordered that meetings between S. and NORP and their mother were to take place under supervision . This decision was valid from DATE to DATE . On the same date the child welfare authorities also prohibited contact between S. and NORP and their grandparents until DATE .

On DATE ORG rejected the applicant mother ’s appeals against the decisions of CARDINAL and DATE .

On DATE and DATE the restrictions concerning the contacts between the applicant mother and PERSON were continued for the period of DATE to CARDINAL DATE . An additional ground for this was that contact with the mother could endanger L. ’s health because the meetings between them might cause psychological stress to L. and thus risk worsening his psychotic symptoms . The applicant mother apparently appealed only against the decision of CARDINAL DATE to ORG which rejected her appeal on DATE . It is not known whether she appealed further against this decision .

On DATE the restrictions on contact between the applicant mother and NORP were further continued for the period from DATE to CARDINAL DATE due to NORP ’s child psychiatric examinations . During that period NORP met with his mother on DATE and CARDINAL DATE . The applicant mother appealed against this decision to ORG where it is apparently still pending .

On DATE ORG rejected the applicant mother ’s appeal against the decisions of ORG on DATE , DATE and DATE . The court found restrictions imposed between CARDINAL DATE and CARDINAL DATE in respect of all the children justified . As concerned the visits DATE and DATE , the court noted that the dispute concerned only , as far as S. , I. and L. were concerned , whether those meetings needed to be held under supervision . The court noted that , on DATE , the applicant mother had agreed on a visiting schedule , according to which she had met PERSON and NORP in the foster home and PERSON in the foster family at DATE intervals . Visits had been supervised by the staff of the foster home or a foster parent . The applicant mother had also had the possibility to telephone S. , NORP and PERSON , and they had had a possibility to make supervised telephone calls to the applicant mother . In addition , PERSON and NORP could send her letters . The court thus found that there had been legitimate reasons to keep the visits supervised . As concerned NORP , the court found that the restrictions on contact had been legitimate as such restrictions had been necessary due to NORP ’s forensic psychiatric examinations . Taking into account NORP ’s age , his severe symptoms and the fact that he had repeatedly expressed his unwillingness to meet his mother , the restrictions on contact had been essential for his treatment . Finally , as concerned PERSON , the court found that the restrictions on contact between PERSON and his mother had been essential for his treatment .

The supervised meetings between the applicant mother and PERSON and NORP have been quite regular . Since DATE there have also been regular supervised meetings with B. Since DATE the applicant mother has apparently met NORP five times and CARDINAL times under supervision . The last meeting with PERSON was on DATE . The oldest child NORP has apparently only been able to meet his CARDINAL younger siblings once since the emergency care order .

On DATE the social worker responsible for the children ’s affairs requested the police to investigate whether the CARDINAL minor children of the family had been sexually abused . Suspicion had been raised during the family work as some of the children had shown excessively sexual behaviour . Even after their placement , such behaviour had become more pronounced when the children had met with their mother or other relatives .

The criminal investigation concerning the alleged sexual abuse of the children was finalised in DATE , and the case was transmitted to the public prosecutor .

On DATE the public prosecutor brought charges against the grandmother and the grandfather for having assaulted the children . The prosecutor decided not to bring charges against the applicant mother for aggravated sexual abuse of the children .

On an unspecified date the applicant mother requested the child welfare authorities to terminate the care or , alternatively , change the placement of PERSON and NORP As concerned PERSON , she stated in her application that PERSON ’s psychological well - being had been deteriorating in the current foster family . Also the cooperation between her and the foster family had been complicated . As far as NORP was concerned , the applicant mother stated in her application that the foster parent had isolated NORP from his biological family and manipulated him .

DATE . On DATE the Director of ORG rejected the applicant mother ’s application . She found in her decisions that the applicant mother ’s situation had not changed and that the legitimate reasons for care continued to exist in relation to both PERSON and NORP Terminating the care at this stage or changing their placement would not have been in the best interest of either of the children .

By letter dated DATE the applicant mother appealed against these decisions to ORG where they are apparently still pending .

Section CARDINAL of LAW ( lastensuojelulaki , barnskyddslagen , Act no . CARDINAL/CARDINAL ) stipulates , as regards the duration and termination of care , as follows :

“ Taking into care is valid indefinitely . When the need for care and substitute care under section CARDINAL no longer exists , the municipal officeholder determined under section CARDINAL(CARDINAL ) must make a decision on terminating the care when the social worker responsible for the child ’s affairs has prepared the case . Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection CARDINAL .

The social worker responsible for the child ’s affairs must assess the conditions for continuing care when the client plan is reviewed , when a child or custodian applies for termination of care or when it otherwise proves necessary .

When a child ’s interests are being considered in a case concerning termination of care , in addition to what is said in section CARDINAL(CARDINAL ) , the following must be taken into account : the duration of substitute care , the quality of the affection between the child and the party providing substitute care , interaction between the child and the parents and the child ’s views .

Care is terminated when the child concerned reaches DATE . ”

According to section CARDINAL of the Act , the rights of children in substitute care to keep in contact with their parents or other persons close to them may be restricted by a decision if it has not been possible to reach agreement on contact and if :

“ CARDINAL ) the contact endangers the purpose of a child ’s substitute care and the restriction is necessary for the child ’s care and upbringing ; or

CARDINAL ) NORP the contact endangers a child ’s life , health , development or safety ; or

CARDINAL ) NORP the restriction is necessary because of the safety of the parents or other children in the family or the family care home or other children or personnel in an institution ; or

CARDINAL ) a child of DATE or more opposes contact ; the same applies to children DATE if they are sufficiently developed for their views to be taken into account . ”

It is possible CARDINAL ) to restrict children ’s rights to meet their parents or other people close to them ; CARDINAL ) to restrict children ’s rights to keep in contact with persons close to them by telephone or using other devices or means of contact ; CARDINAL ) to read and withhold private letters sent by children or addressed to them or other similar confidential messages or inspect and withhold some other delivery ; and CARDINAL ) for the place of substitute care to confiscate for the duration of the restriction all communication means or equipment held by the children concerned or restrict their use . Restriction of contact can only be applied to the extent necessary in each individual case to achieve the purpose laid down in law .

According to section CARDINAL of the LAW ,

“ A decision must be made concerning restrictions on contact referred to above in section DATE which must be issued for a fixed term and last for a maximum of DATE at a time . The decision must include the reason for the restriction , the persons restricted , the kind of contact the restriction concerns and to what extent the restriction is enforced .

Decisions on restricting contact are made by the officeholder ... Restrictions on contact must be lifted as soon as they are no longer necessary in the manner referred to in section CARDINAL . ”


PROSSER and OTHERS v. THE UNITED KINGDOM

In all the following cases , the Government are represented by their Agent , PERSON , ORG .

The applicant is a NORP national who was born on DATE and who lives in GPE , ORG . He is not represented before the ORG .

The applicant was widowed on DATE . On DATE , aged DATE , he made an application for survivors’ benefits , which was finally refused on DATE .

The applicant is a NORP national who was born on CARDINAL DATE and lives in GPE . He is not represented before the ORG .

The applicant was widowed on DATE , when he was DATE . He subsequently claimed survivors’ benefits and was refused .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is represented before ORG RDW , solicitors practising in GPE .

The applicant was widowed on DATE . There was one child of the marriage , born on DATE . The applicant made an enquiry about survivors’ benefits to ORG in DATE , and was informed by a letter dated DATE that men were not eligible for such benefits . He wrote to ORG again in DATE , asking for his claim to be reconsidered , and was informed again , on DATE , that he was not entitled .

The applicant made a formal application for bereavement benefits on DATE , aged DATE , and was refused on DATE . He appealed , and his appeal was finally rejected by ORG on DATE .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is also represented before ORG RDW .

The applicant was widowed on DATE . On DATE , aged DATE , he applied for survivors’ benefits , and was finally refused on DATE .

The applicant was widowed on DATE , when he was DATE . He claimed survivors’ benefits on DATE and was finally refused at some point after DATE .

The applicant was widowed on DATE . In DATE , aged DATE , he claimed survivors’ benefits , and was finally refused on DATE .

The applicant is a NORP national who was born on DATE and who lives in PERSON . He is also represented before ORG RDW .

The applicant was widowed on DATE . On DATE , aged DATE , he claimed survivors’ benefits , and was refused DATE .

The applicant was widowed on DATE . On DATE , aged CARDINAL , he claimed survivors’ benefits , and was finally refused on DATE .

The applicant was widowed on DATE . Shortly after his wife ’s death he made enquiries about survivors’ benefits but was told these were not available for men . On DATE , aged DATE , he claimed survivors’ benefits , and was refused DATE .

The applicant was widowed on DATE . In DATE , aged CARDINAL , he enquired about survivors’ benefits and was informed on DATE that such benefits were not available to men . He subsequently made a formal application , which was refused on DATE .

The applicant was widowed on DATE . In DATE , aged DATE , he applied for survivors’ benefits , and was refused on DATE .

The applicant was widowed on DATE . Following his wife ’s death the applicant enquired about survivors’ benefits but was informed by ORG that men were not eligible . He made a formal application in DATE , aged DATE , to which he never received a response .

The applicant was widowed on DATE . He made a formal application for survivors’ benefits in DATE , aged CARDINAL , which was finally refused on DATE .

The applicant was widowed on DATE . Following his wife ’s death , he enquired about survivors’ benefits and was informed that they were not available for men . On DATE , aged DATE , he applied for survivors’ benefits , and was finally refused on DATE .

The domestic law relevant to these applications is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .