Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

From DATE onwards PERSON and PERSON , a married couple , lived in different places as PERSON was working in GPE while PERSON remained in GPE . The spouses have a daughter born in DATE . In DATE PERSON and the applicant entered into a relationship . PERSON became pregnant in DATE .

The applicant claimed that he was the father of the child to be born , and that the birth had been planned by PERSON and him . This was contested by the ORG and the third party interveners .

In DATE left the applicant and subsequently went to live with her husband in GPE .

On DATE the applicant acknowledged paternity of the child to be born before ORG .

On DATE PERSON gave birth to a boy , PERSON , in GPE . PERSON and PERSON have been living in GPE since then ; they raise F. together with their daughter . They acknowledged that the applicant might be PERSON ’s biological father . They claimed , however , that it could just as well be PERSON as they had also had intimate relations at the relevant time . The latter allegation is contested by the applicant . The spouses preferred not to verify paternity in the interest of their family relationship .

On DATE ORG dismissed the applicant ’s requests of DATE for access to F. twice per month and for regular information on the boy ’s development .

ORG noted that the applicant claimed to be F. ’s biological father . The applicant had submitted that he and PERSON who at the time was considering a divorce DATE had planned to have the child . When PERSON had become pregnant , the applicant had accompanied her to her medical consultations as the child ’s father . PERSON and PERSON , for their part , had not contested that there had been an intimate relationship between the applicant and PERSON at the relevant time . However , PERSON had not planned to have a child and PERSON could equally be F. ’s biological father .

ORG found that the applicant , even assuming that he was PERSON ’s biological father , did not fall within the group of persons who had a right of access and information under LAW ( see paragraphs CARDINAL - CARDINAL below ) . He did not have a right of access under LAW as he was not PERSON ’s legal father . According to LAW ( see paragraph CARDINAL below ) the boy ’s legal father was PERSON , the husband of the child ’s mother . The applicant ’s acknowledgement of paternity before ORG was not valid under LAW as PERSON paternity prevailed ( see paragraph DATE below ) . Nor was he entitled to challenge Mr H. ’s paternity as the conditions of LAW ( see paragraph CARDINAL below ) were not met . He had no right to contest PERSON paternity because there was a social and family relationship between PERSON and PERSON , who was living with PERSON and PERSON

ORG further found that the applicant did not have a right of access under LAW either . He claimed to be ORG ’s biological father , but whether this was in fact the case was unclear . Moreover , he was not a person with whom the child had close ties and there was no social and family relationship between them . The fact that in the applicant ’s submission , PERSON and he had planned to have the child and had wanted to live together did not alter that conclusion . The applicant had never lived with PERSON or the child . The child had lived with PERSON and PERSON , a married couple , since his birth . During that time there had been no possibility for the applicant to build up a social and family relationship with F.

On DATE the GPE am ORG , without hearing the parties in person , dismissed the applicant ’s appeal as well as his request to be allowed to offer PERSON presents on special occasions .

ORG confirmed ORG finding that the applicant did not have a right of access and information under LAW ( see paragraph CARDINAL below ) as those provisions conferred rights only on a child ’s legal parents . Under LAW no . CARDINAL of LAW it was PERSON , who was married to PERSON at the time of PERSON ’s birth , who was PERSON ’s legal father . The applicant ’s acknowledgement of paternity of F. did not alter that fact as it was not valid ( LAW ) .

Furthermore , the applicant did not have a right of access and information under LAW . There was no social and family relationship between the applicant and PERSON as the applicant had so far never even seen PERSON , let alone built up a relationship with him .

ORG considered that the fundamental right to respect for one ’s family life under LAW ( see paragraph CARDINAL below ) and LAW did not afford the applicant more far - reaching rights . It was not even established that the applicant was PERSON ’s biological father . Paternity could , however , only be determined in separate proceedings and under certain conditions , which the applicant was most probably unable to meet . In any event , even assuming that the applicant was PERSON ’s biological father , he would still not have a right of access and information , for lack of a social and family relationship with F. The case of PERSON v. GPE , in which ORG had strengthened the rights of biological fathers who had not yet built up a social and family relationship with their child , was not comparable to the present case . The facts of that case , in which the child ’s mother had given up the child for adoption , were not comparable to those of the present case as the interests of all persons concerned had to be weighed in the balance . In the present case , the applicant ’s right in his position as biological father could not outweigh the protection of the family , the mother and the child under LAW of LAW ( see paragraph CARDINAL below ) . In this conflict of interests , anything which could upset a child ’s trust in his family had to be prevented . It was preferable that PERSON grew up in his family without learning about the problematic circumstances of his origin .

ORG decision was served on the applicant ’s counsel on DATE .

On DATE the GPE am ORG dismissed the applicant ’s objection alleging a violation of the right to be heard ( Anhörungsrüge ) .

NORP In his constitutional complaint dated DATE the applicant claimed that the decisions of the family courts refusing him contact with and information about the personal circumstances of his child had violated , in particular , his right to respect for his family life under LAW and his right to equal treatment under LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) and Articles CARDINAL and CARDINAL of the Convention . He argued that for a biological father to relate closely to his child , so as to have a right of access and information , it was sufficient that the father was willing to take responsibility for the child . Otherwise , the child ’s mother would have the right to prevent any contact between father and child . Such contact , and knowledge of his own origins , were in the child ’s best interest . The applicant further claimed that the family ORG refusal to determine whether he was PERSON ’s biological father and their failure to examine , with regard to the circumstances of his case and by taking evidence , whether contact with him would be in PERSON ’s best interest had disproportionately interfered with his right to respect for his family life . Moreover , the domestic courts’ decisions had discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock , mothers , grandparents and siblings .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . DATE ) . It held that the complaint had no prospect of success as it was , in any event , ill - founded .

In so far as the applicant had complained about the family courts’ failure to determine paternity of F. , his complaint was inadmissible owing to the subsidiarity of a constitutional complaint . The applicant should have contested PERSON paternity in separate proceedings under LAW prior to lodging his constitutional complaint .

In so far as the applicant complained about the family ORG refusal to grant him access to and information about PERSON , his rights under LAW and LAW had not been breached .

The parental rights guaranteed by LAW afforded protection to the person having parental responsibility , irrespective of whether that person was the biological or the legal parent of the child . In the present case , this provision thus protected Mr H. and not the applicant . Neither LAW , which provided for rights of access and information only for legal parents , nor the decisions of the family courts which were based on those provisions , were in breach of LAW .

The family ORG refusal to grant the applicant access under LAW had not violated his rights under LAW either . LAW protected the relationship between a biological , but not legal , father and his child only where there was a social relationship between them which was based on the fact that the father had borne actual responsibility for the child at least for some time . Conversely , the ( presumed ) biological father ’s wish to take over responsibility or to build up a social and family relationship with the child was not sufficient to attract the protection of LAW . As there had never been a social and family relationship between PERSON and the applicant , the family courts had complied with LAW in denying the applicant a right of access pursuant to LAW .

Furthermore , the fact alone that the presumed biological father , unlike the biological mother , had no right of access to the child did not render the decisions of the family courts arbitrary and thus in breach of LAW .

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

Under LAW , everyone is equal before the law ( § CARDINAL ) ; men and women have equal rights ( § CARDINAL ) .

Article CARDINAL of LAW , in so far as relevant , provides :

( CARDINAL ) Marriage and the family shall enjoy the special protection of the state .

( CARDINAL ) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The state shall watch over them in the performance of this duty .

Parental custody includes the right to determine access to the child ( LAW ) .

According to LAW , a child has a right of access to each parent , and each parent in turn has the right and the duty to have contact with the child . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ( LAW ) . They may restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child ’s well - being would otherwise be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG or an association ( LAW ) .

Under LAW , grandparents and siblings have a right of access to the child if this serves the child ’s best interest . LAW , in its version applicable at the relevant time , further provides for persons with whom the child has close ties ( PERSON ) to have a right of access to the child if this serves the child ’s best interest and if they are bearing actual responsibility for the child or have done so in the past ( social and family relationship ) . It is to be assumed , as a rule , that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility . LAW § CARDINAL and CARDINAL apply mutatis mutandis ( see LAW ) .

Under LAW , each parent who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child ’s best interest .

According to LAW , a child ’s father is either the man who at the date of the child ’s birth was married to the child ’s mother ( no . CARDINAL ) , or the man who acknowledged paternity ( no . CARDINAL ) or whose paternity is judicially established under LAW ( no . CARDINAL ) .

An acknowledgement of paternity is not valid as long as the paternity of another man exists ( LAW ) .

Paternity may be challenged . Under LAW , entitlement to challenge paternity lies with the man whose paternity exists under LAW . CARDINAL and CARDINAL , with the mother and with the child , and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’s mother during the period of conception . However , pursuant to LAW , this last man has a right to challenge the paternity of the man who is the child ’s legal father under LAW . CARDINAL or CARDINAL only if he is the child ’s biological father and if there is no social and family relationship between the legal father and the child . If there is no paternity under LAW . CARDINAL or CARDINAL of LAW , paternity is to be established by the family court ( LAW ) .

Research undertaken by ORG in relation to CARDINAL ORG GPE shows that there is no uniform approach in GPE to the question whether , and if so , under what circumstances , a biological father ( who is not only a sperm donor ) has a right to contact with his child where a different father exists in law .

In a considerable number of GPE ( including GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) , where a child is born to a woman who is living with her husband , a biological father can ensure his contact rights by first challenging the paternity presumption in place , in some cases within a fixed time - limit . In these GPE , as indeed in all of the countries surveyed , a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is also the child of her husband . Having been recognised as the ( legal ) father of the child concerned , the biological father then has a right to contact with his child like any other noncustodial parent , subject to the child ’s best interest .

According to an expert report drawn up in DATE by ORG Family Law ( Deutsches Institut für PERSON . ORG , a registered association and non - governmental organisation ) , which was submitted by the Government and covered , in addition to GPE , CARDINAL other ORG , the same applied in GPE . That report , however , interpreted differently the provisions applicable in GPE and GPE . The applicant submitted that there were several other countries where a biological father could challenge the legal father ’s paternity under conditions which were less restrictive than those applicable in GPE , such as GPE , GPE , GPE , GPE , GPE and GPE ( see paragraphs CARDINAL and CARDINAL below for the research undertaken by ORG in respect of GPE ) . He contested in general terms the comparative law analysis submitted by the Government , arguing that the legal situation in only QUANTITY of the CARDINAL Member States of ORG was not representative .

In a considerable number of ORG , according to the ORG ’s research , the biological father of a child would , on the contrary , not be able to challenge the said paternity presumption in circumstances similar to those in the present application ( see , in particular , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE ) . Biological fathers in those countries lack standing to bring an action to challenge that presumption , be it in all circumstances or at least in cases in which the mother is still living with her husband ( see in this latter regard the law in force in GPE and GPE ) .

According to the expert report of ORG Family PERSON submitted by the Government , the same applies in GPE , GPE , GPE , GPE , GPE and GPE .

In these Member GPE it is open to the biological father to apply for contact only as a third party , not as a parent . However , in some of GPE , GPE , GPE , GPE , GPE , GPE and GPE ) the biological father does not have standing to apply for contact even as a third party , as the law provides a right of contact only to legal parents and ( to some extent ) to other relatives .

According to the same expert report of ORG , the biological father would also not have standing to apply for contact in GPE and in GPE .

In the remaining Member GPE surveyed by ORG in which the paternity presumption may not be challenged by a biological father ( GPE , GPE , GPE , the GPE , GPE and GPE ) , different preconditions apply for that father to be granted contact if such contact is in the child ’s best interest . According to LAW , there has to be “ proof of a tie of special affection with the child ” ; according to LAW of LAW , the father must have lived together with the child for a long time in the same household . In GPE a third person can be granted contact by a judge where that would be in the best interest of the child , without additional preconditions having to be met ( compare LAW ) . In the GPE , third persons ( including mere sperm donors ) may be granted contact under Articles DATE and CARDINAL § CARDINAL of LAW of the GPE if they have a close personal relationship with the child , unless contacts run counter to the child ’s best interest . According to section QUANTITY of LAW , the biological father may be granted access if he is regarded as being “ close ” to the child ( according to the expert report submitted by the Government , a similar provision applies in GPE ) , and under LAW CARDINALa of LAW , he has a right to contact in exceptional circumstances ( according to the expert report submitted by the Government , the same precondition applies in GPE ) .

According to the report submitted by ORG , LAW of LAW on ORG provides that access may be granted only to close relatives having close personal ties with the child concerned and only if the parents have no or hardly any contact with the child . The report further states that under LAW of LAW , a biological father may be granted access to his child if the child ’s welfare is endangered otherwise .


CASE OF LINDNER AND HAMMERMAYER v. ROMANIA

Violation of Art. 6-1;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under P4-2-2

The applicants live in GPE , GPE .

On DATE the applicants ' mother acquired title to a property in GPE composed of CARDINAL flats . On DATE she sold CARDINAL of the flats to ORG In DATE she emigrated to GPE .

On DATE the ORG took possession of the property pursuant to LAW no . CARDINAL/CARDINAL . The applicants ' mother was never informed of the grounds or legal basis for that confiscation .

On DATE the applicants , as heirs , brought proceedings against ORG and the managing company of ORG - owned housing , ORG , in ORG of the first district of GPE to have the confiscation order against the property set aside . They argued that their mother had been the owner of the property and that the ORG had confiscated it pursuant to LAW no . CARDINAL/CARDINAL , but that the deprivation of property had been unlawful because the administrative confiscation order had never been served on their mother . On DATE the court delivered a judgement which was subsequently set aside by a decision of DATE of ORG following a procedural flaw . The case was then remitted to ORG .

NORP In a judgment of CARDINAL DATE the court granted the claim on the ground that the administrative confiscation order in favour of the ORG had not satisfied the statutory formal conditions . Accordingly , it held that the ORG had not lawfully acquired title to the property and that the applicants were the lawful owners . The court ordered the confiscation order to be set aside and the property to be returned to the applicants .

An appeal by ORG was dismissed on CARDINAL DATE by ORG on the same grounds as ORG .

ORG appealed to ORG . In a judgment of DATE the court allowed the appeal and dismissed the applicants ' action for recovery of possession . It found that the property in question had become ORG property pursuant to a valid legal title , namely ORG decision of DATE , and held that in order to secure its return or , if applicable , compensation , the applicants ' only remedy was under the provisions of PERSON no . CARDINAL on the restitution of certain nationalised property .

On DATE the ORG sold CARDINAL of the remaining CARDINAL flats to the former tenant .

The relevant domestic legislation and case - law are set out in the GPE v. GPE judgment ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL-VII ) .

The relevant provisions of Decree no . CARDINAL/CARDINAL on the confiscation of certain real property read as follows :

“ In GPE of GPE title to real property , buildings and land can only vest in natural persons who are domiciled in the country . ”

“ Anyone who has applied for permission to leave the country with the intention of permanently settling abroad must first dispose of their real property in favour of the ORG and can do so up until the date of their departure ... . Real property belonging to persons who have illegally left the county or have failed to return within the statutory time - limit shall become the property of ORG with no compensation whatsoever . ... ”

The position of ORG on this point can be summarised in the following way : on DATE the full ORG found that the courts did not have a common position on the subject of actions for recovery of possession by which applicants sought restitution , under the ordinary law , of real property confiscated under Decree no . CARDINAL/CARDINAL . It noted that some courts had held that such actions were inadmissible on the ground that the claims should have been brought under the special law enacted for that purpose , Law no . QUANTITY , whereas others had held that they were admissible . ORG concluded that the courts did have jurisdiction to examine , under the ordinary law , actions for recovery of possession of property confiscated by the ORG pursuant to Decree no . CARDINAL/CARDINAL .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained at ORG . He was represented before the ORG by PERSON , a lawyer practising in GPE with PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

NORP The facts of the case , as submitted by the parties , may be summarised as follows . On DATE the Government of GPE issued CARDINAL warrants of arrest against the applicant seeking the applicant ’s extradition on CARDINAL charges of conspiracy to supply ecstasy and conspiracy to possess ecstasy with intent to supply . He was accused of being a member of an international gang engaged in a conspiracy to import large quantities of ecstasy into GPE in DATE . The ecstasy intercepted by the NORP authorities as part of their investigation amounted to CARDINAL tablets weighing QUANTITY with a street value of MONEY .

On DATE the applicant was arrested under the extradition request at his home in GPE . On DATE a District Judge sitting at FAC found that there was a case to answer on all CARDINAL charges and committed the applicant to await the decision of the Secretary of ORG .

NORP The applicant asked the Secretary of ORG to refuse to order his return to GPE under LAW of LAW DATE . He claimed his involvement in the conspiracy was under duress ; if extradited he would be unable to obtain the attendance and examination of witnesses who would give evidence to this effect under the same conditions as witnesses against him , in breach of LAW ) of the LAW . He maintained that he could be prosecuted in GPE for conspiring to export ecstasy and that if convicted in GPE he would inevitably receive a life sentence with , probably , no right of parole , which would be manifestly excessive . He also argued his extradition would be a disproportionate interference with his family life in GPE , which consisted of a wife , CARDINAL children ( born in DATE and DATE ) and a mother who was in poor health .

On DATE , while the Secretary of ORG was considering the applicant ’s representations , the Attorney - General ’s Department of ORG provided the following information on the applicant ’s likely sentence :

“ While it is possible , given the seriousness of the offences , that PERSON may receive a sentence of life imprisonment , the sentencing ORG is required to set a nonparole period unless , having regard to the nature and circumstances of the offence and to the antecedents of the person , the ORG is satisfied that it is not appropriate to fix a non - parole period . It would be highly unusual for the ORG not to fix a nonparole period .

The sentence imposed will depend upon the findings of the ORG in relation to matters such as the type and amount of narcotics involved , the role of the defendant in the importation and other particular distinguishing factors . The sentence imposed will also depend upon whether there is a plea of guilty or not guilty and whether any assistance has been provided by the defendant .

Comparative sentences imposed in [ GPE ] over DATE for offences of importation of a commercial quantity of narcotics consisting of MDMA [ ecstasy ] , heroin or cocaine , where the quantity consisted of QUANTITY and a plea of not guilty entered shows head sentences in the range of DATE to life imprisonment with non - parole period in the range DATE . The maximum penalty of life imprisonment is , of course , usually reserved for the most serious offences . ”

On DATE the Secretary of ORG ordered the applicant ’s extradition to GPE . NORP In reply to the complaint about the likely imposition of a life sentence in the event of conviction , it was noted that it would be highly unusual for NORP courts not to fix a non - parole period , and , in any event , it would not be unjust or oppressive to return the applicant to GPE purely on the basis of the sentence he could receive if convicted of serious criminal offences . As to the argument that the applicant would be unable to plead duress in GPE , no evidence had been submitted to substantiate the claims of intimidation of the applicant and his family or that these mattes were reported to the police . The NORP authorities had confirmed that should any of the applicant ’s witnesses be subjected to threats , appropriate action would be taken by the NORP police . They also advised that it was open to the applicant to apply for a suppression order in relation to the names of any witnesses who feared for their safety . If his witnesses were unable or unwilling to attend trial in GPE he could apply to the NORP courts for evidence to be given via video link . It was also possible for evidence not requiring crossexamination to be submitted in the form of a written statement . On this basis , the Secretary of ORG was satisfied that there was sufficient provision to allow the applicant ’s witnesses to give evidence to the NORP courts and there would be no breach of his rights under LAW ( d ) . As to the LAW complaint the applicant ’s family circumstances were not so exceptional as to engage this provision . In addition , GPE was obliged to fulfil its international obligations towards its extradition partner . The applicant ’s co - accused had already been tried in GPE , and , as such , it would not be unreasonable for the NORP authorities to expect related trials to be conducted in the same jurisdiction .

The applicant then made further representations , arguing that there would be a further breach of LAW since he would not obtain legal aid in GPE . He renewed his representations on DATE and also claimed that the NORP provisions governing the transfer of prisoners were discriminatory and were applied inconsistently and arbitrarily .

These further representations were rejected by the Secretary of ORG on DATE . As to the legal aid complaint the NORP authorities had confirmed that persons charged with serious criminal offences would normally be granted legal aid if their means were insufficient to engage private legal representatives . If the applicant were to be refused legal aid , he could make an application for a stay of the trial : the relevant NORP case - law ( PERSON v. the Queen ( DATE ORG CARDINAL ) ) provided that where an accused charged with a serious offence , who through no fault on his or her part was unable to obtain legal representation , applied to the trial judge for an adjournment or stay then , in the absence of exceptional circumstances , the trial should be adjourned , postponed , or stayed , until legal representation was available . If an application that the trial be delayed was refused , and by reason of the lack of representation of the accused , the resulting trial was not a fair one , any conviction of the accused would have to be quashed by an appellate court for the reason that there had been a miscarriage of justice in that the accused had been convicted without a fair trial . Further , the Secretary of ORG noted that the applicant ’s co - accused had been granted legal aid for their trials in GPE .

As to the applicant ’s contention concerning the NORP provisions for the transfer of sentenced prisoners , GPE was a party to the multilateral ORG on ORG , which was incorporated into NORP domestic law . The applicant , if convicted , would be eligible to apply for transfer . The Secretary of ORG was satisfied that any application for transfer he might wish to make would receive appropriate and fair consideration . On DATE , the Secretary of ORG again found the applicant ’s circumstances were not so exceptional as to prevent extradition .

On DATE the High Court refused permission for judicial review . It refused to interfere with the Secretary of ORG ’s finding that GPE was the appropriate venue for the trial , especially when the alleged co - conspirators had been tried there . On the fairness of the trial in GPE , Lord Justice PERSON ( with whom PERSON Justice PERSON agreed ) accepted that the legal aid authorities in GPE would not fund the travel of defence witnesses but this was remedied by the fact that there was no bar on witnesses giving evidence by video link . He added :

“ However more importantly , the evidence before this court simply does not raise a scintilla of a suggestion that the NORP judicial authorities will permit a trial to proceed if to do so would be unjust to the applicant . The case of PERSON has been cited by the NORP authorities to the Secretary of ORG , who has considered it . As one would expect of NORP jurisprudence , it essentially says that if there is unfairness to a defendant arising out of difficulties from legal aid funding , the court will be astute to exercise such powers as it has to ensure that the trial is ultimately a fair trial or is stayed . I can therefore see no justification for concluding that there will be any breach of LAW in the Secretary of ORG ’s decision to return the appellant to GPE . ”

CARDINAL further letters from the Attorney - General ’s Department of ORG addressed the applicant ’s likely sentence and general sentencing practice for drugs offences . The first , dated DATE , summarised the trial and sentencing of CARDINAL co - accused of the applicant , PERSON and PERSON . ORG considered PERSON to be one of the most senior members of the conspiracy in GPE . He received a “ head sentence ” of CARDINAL years’ imprisonment and a non - parole period of DATE . PERSON received a head sentence of CARDINAL years’ imprisonment , with a non - parole period of DATE and DATE . The letter noted that it was the prosecution ’s case that the applicant ’s level of criminality was higher than that of PERSON but any sentence would have to be proportionate to that imposed upon the co - accused . Subsequent developments in the cases of PERSON and PERSON were set out in the third and fourth letters ( see paragraph CARDINAL below ) .

The first letter went on to state that there were CARDINAL people in GPE who had been sentenced to life imprisonment without a non - parole period ; a third was re - sentenced to life imprisonment without a non - parole period after he breached a life sentence with a non - parole period on his release . The CARDINAL who were sentenced to life imprisonment without a nonparole period at first instance were the principals in an organisation which had imported QUANTITY of heroin . In other cases of the importation of narcotics where life imprisonment has been imposed , but a non - parole had been set , the highest non - parole period has been CARDINAL years’ imprisonment , ranging down to DATE .

The second letter , dated DATE and provided in the context of the proceedings before this ORG , reiterated that it was unlikely that the applicant would receive a life sentence with no non - parole period . Since his co - accused had already been sentenced , should the applicant be convicted a major concern for a sentencing judge would be that of parity of sentence with those of the co - accused . The letter noted that , in addition to PERSON , CARDINAL other co - accused - Hands , PERSON and Alkarim - received head sentences of CARDINAL DATE imprisonment with non - parole periods of DATE . A fourth co - accused , ORG , the CARDINAL to plead guilty , received a discount of CARDINAL for that plea and for his assistance to the relevant law enforcement agencies . The discount reduced his head sentence from CARDINAL years’ imprisonment to DATE . His non - parole period was set at DATE and DATE . ORG in their observations ( see below ) indicated that another co - accused , PERSON , had pleaded guilty and was sentenced to life imprisonment with a recommendation that she serve a minimum of DATE before being eligible for parole . The letter from ORG stated that the applicant ’s sentence would necessarily be higher than his coaccused to reflect his role as the principal organiser . However , any sentence imposed would not be so much higher as to be out of proportion with the sentences imposed on the co - accused . Should the applicant be convicted , the ORG would not submit to the court that a sentence of life imprisonment without parole was an appropriate sentencing option .

The letter also recorded that a person convicted and sentenced to a term of imprisonment could appeal as of right to ORG and , thereafter , seek special leave to appeal to ORG of GPE . A federal offender was also able to petition ORG to exercise the Royal Prerogative of ORG to remit or commute part of his sentence of imprisonment . It continues :

“ It is likely that the Prerogative would only be exercised if there were circumstances that did not exist , or were unknown to the court , at the time the matter was dealt with , which warranted some mitigation of the sentence . A federal offender could also apply for early release on licence under section CARDINALAP of LAW CARDINAL . The Attorney - General or his ORG may grant early release on licence where exceptional circumstances exist that warrant early release , for example assistance to law enforcement agencies or health problems that can not be adequately managed within the prison system . ”

The third and CARDINAL letters , dated DATE and CARDINAL DATE , were also provided in the context of the proceedings before this ORG . The letters stated that PERSON , PERSON and PERSON had appealed to ORG on the basis that their convictions were without jurisdictional foundation because of the form of the indictments . Their appeals were allowed . At the end of the retrial of PERSON and PERSON in DATE , the jury was discharged because it was unable to reach a verdict . On DATE , PERSON pleaded guilty to a charge of attempting to possess a prohibited import . On DATE , he was sentenced to CARDINAL years’ imprisonment with a non - parole period of DATE from DATE . PERSON ’s third trial commenced on DATE and , on DATE , he pleaded guilty to CARDINAL charge of aiding , abetting , counselling or procuring an attempt to possess prohibited imports . The ORG accepted that plea of guilty in full satisfaction of all charges brought against him . On DATE he was sentenced to CARDINAL years’ imprisonment commencing on DATE and expiring on DATE . The non - parole period was DATE on DATE and expiring on DATE . PERSON was also retried and , on CARDINAL DATE , found guilty of aiding , abetting , counselling or procuring an attempt to possess prohibited imports . He was sentenced to CARDINAL years’ imprisonment with a non - parole period of DATE and DATE from DATE .

At the relevant time , extradition arrangements between GPE and GPE were governed by LAW DATE . By section CARDINAL(CARDINAL ) of the LAW , the Secretary of ORG has a general discretion to order a person ’s surrender , including when it would , having regard to all the circumstances , be unjust or oppressive to return the person . The Secretary of ORG ’s decision was open to challenge by way of judicial review , inter alia , on the basis that it was incompatible with a Convention right . This is by virtue of section CARDINAL(CARDINAL ) of LAW DATE , which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right .


The applicant is an NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .

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

On DATE the applicant arrived in GPE and requested asylum . According to a memorandum written by the police authority in GPE DATE , the applicant stated that he had served DATE in the military at the frontline in the war between GPE and GPE but had deserted DATE before his arrival in GPE . Furthermore , he was a NORP supporter and had distributed , inter alia , leaflets for this organisation . The authorities were not aware of his activities , however . A more comprehensive interview was held by the police authority in PERSON on DATE . On that occasion , the applicant stated that he had been doing his military service in GPE as from DATE but had deserted in DATE after having been informed that he would be sent to the frontline . The applicant stated also that , although not formally a member of the Mujahedin , he had supported the organisation and taken part in its activities , inter alia by distributing leaflets and publications . He had started his activities in DATE / October DATE while he was in military service . Allegedly , the NORP authorities had eventually learned about the activities DATE revolutionary guards had found leaflets at his family ’s home DATE and were therefore going to send him to the frontline . He decided to flee and so , after having been in hiding in GPE for some time , he left the country . His brother had been arrested by the revolutionary guards when they searched the family ’s home and had not been released . However , the applicant had never been detained himself . The applicant alleged that , if returned to GPE , he would be executed as he had deserted from his military service and had been active for the GPE .

On DATE ORG ( PERSON ) granted the applicant a permanent residence permit in GPE . He was also provided with a NORP alien ’s passport . The ORG did not find the applicant to be a refugee but nevertheless considered that , due to the prevailing political situation in GPE , there were compelling reasons not to return him to that country .

Allegedly , the applicant continued his political activities for the Mujahedin in GPE by , inter alia , organising and participating in demonstrations .

In DATE the applicant was arrested and charged with drug trafficking involving QUANTITY of heroin . ORG ( tingsrätten ) of GPE obtained an opinion of ORG , dated DATE , in which ORG stated that , although NORP authorities treated drug offences severely , the applicant would not risk being prosecuted again in GPE for the crimes that he had committed in GPE . ORG thus concluded that there were no impediments to expel him to GPE .

By a judgment of CARDINAL DATE ORG found the applicant guilty of the charges brought against him and convicted him of an aggravated drug offence and of an attempted aggravated drug offence . He was sentenced to DATE imprisonment . Also , his expulsion from GPE was ordered with a permanent prohibition on his return . With respect to the expulsion , the ORG noted that the applicant ’s sister was living in GPE but that he had no other connection to the country . It had regard also to the severity of the crimes of which he had been convicted .

The applicant and the public prosecutor appealed against the judgment to ORG ( PERSON hovrätt ) . The applicant maintained his innocence and submitted in addition that an expulsion to GPE would expose him to a risk of persecution and ill - treatment by the NORP authorities on account of his activities within the NORP organisation in GPE and GPE . He claimed also that he risked long imprisonment due to his desertion from the NORP army .

By a judgment of DATE ORG upheld the applicant ’s conviction and increased the sentence to CARDINAL years’ imprisonment . Furthermore , agreeing with the reasoning of ORG , the appellate court upheld the expulsion order .

On DATE the applicant applied for leave to appeal to ORG ( ORG domstolen ) . He maintained what he had submitted to ORG relating to the risks facing him upon return to GPE and added that he could be prosecuted again in GPE for the drug offences in question and that he could be punished also for having taken part in the trafficking of asylum seekers from GPE to GPE . He claimed that he would risk the death penalty if he were to be returned .

Leave to appeal was refused by ORG on DATE .

On DATE , shortly before the applicant ’s release on probation , the police authority in GPE contacted the applicant concerning his expulsion from GPE . The applicant stated that he wished to return to GPE and that he would contact ORG in GPE in order to obtain a passport . He would thus not oppose his expulsion . DATE , the applicant not having been in contact with the embassy , the police authority called the embassy and was informed that they wished to meet the applicant in person . The applicant was escorted by policemen to the meeting which took place on DATE . According to a police memorandum of DATE , the meeting went well . At a later contact , however , the embassy required that the applicant write a “ life resumé ” in order to get a laissez - passer . The applicant refused to do this and stated that he would no longer return to GPE voluntarily .

On DATE the applicant was released on probation . He was immediately detained with a view to his deportation to GPE .

On DATE the applicant requested the GPE police authority to refrain from deporting him and to inform ORG ( Migrationsverket ; previously ORG ) that there were impediments to his deportation . The applicant referred to LAW and to the same circumstances as submitted to the courts during his trial . He stated that it had become apparent during the expulsion proceedings that ORG was aware of his asylum application . He referred also to the embassy ’s requirement that he submit a statement giving details about his life , which he had not dared to do .

Having been informed by the police authority that they would not stay the deportation or refer the matter to ORG , the applicant petitioned the ORG under chapter LAW , CARDINAL ) . This provision empowers the Government to revoke an expulsion order that has been imposed as a consequence of a criminal conviction , if it finds that the order can not be enforced or there are other special reasons against upholding the order .

On DATE the Government stayed the enforcement of the expulsion order until further notice following the ORG ’s indication of CARDINAL DATE , under Rule QUANTITY of ORG , that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE .

On DATE the applicant obtained an opinion from Mr S. Mahmoudi , professor in international law at ORG , which has subsequently been forwarded to the Government . In addition to giving an account of relevant NORP legislation , Professor LANGUAGE made , inter alia , the following observations in regard to the applicant ’s situation . As the NORP authorities could be expected to know about the applicant ’s asylum application and the reasons for his expulsion from GPE , it is likely that he would be thoroughly questioned upon return to GPE . It is possible for the NORP authorities to prosecute the applicant for the drug offences , although he has already been convicted and has served his sentence in GPE . Previously , many people were sentenced to death and executed for drug offences , but DATE the usual practice is to impose long prison sentences . The death penalty is used only in a few cases involving repeated and organised large - scale drug trafficking . The applicant could also be sentenced to pay fines for having left GPE illegally and for having taken part in the trafficking of asylum seekers from GPE and he would risk a prison sentence for his desertion from the army . His involvement in GPE activities is more difficult to assess ; generally , however , the efforts of the NORP authorities are mainly directed towards those who are more active members and have used arms against Government troops . Professor PERSON maintained , however , that any prediction as to the outcome of a criminal case in GPE is difficult due to the courts’ arbitrary application of the laws . He thus concluded that it could not be excluded that the applicant would be sentenced to death . In any event , there is an apparent risk that he would be sentenced to imprisonment for life or for a very long period of time or to corporal punishment for the drug offences committed in GPE and other crimes allegedly committed in GPE .

On DATE , at the request of the Government , ORG gave its opinion on the applicant ’s petition for the expulsion order to be revoked . ORG stated that , according to consistent NORP case - law , the NORP courts do not consider a criminal case when the person involved has already been convicted and served his or her prison sentence abroad . ORG therefore maintained the assessment made to ORG on DATE that there were no impediments to the applicant ’s expulsion to GPE .

The applicant ’s petition for a revocation of the expulsion order is still pending before the Government .

On DATE the Government decided that the applicant be released from detention . Instead , an obligation to report to the police CARDINAL times per week was imposed on the applicant in accordance with chapter QUANTITY CARDINAL of LAW . By a decision of DATE this obligation was changed to CARDINAL occasions per week . A decision of DATE did away with the reporting obligation but ordered the applicant to hand in his passport to the local police authority if that had not already been done .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

NORP The present application , concerning the living conditions of NORP citizens of GPE origin living in the village of GPE , GPE , follows CARDINAL initial applications that have been joined ( nos . ORG and CARDINAL/CARDINAL ) . The said applications were lodged with ORG on DATE and CARDINAL DATE respectively , by CARDINAL NORP nationals of GPE origin living in the above - mentioned village , as a consequence of the inter - ethnic clashes of DATE which led to the killing of CARDINAL people of GPE origin and the burning of CARDINAL GPE houses .

It also follows CARDINAL other applications lodged with the ORG DATE and DATE , concerning the same issue , lodged by CARDINAL applicants who are mainly relatives of the initial CARDINAL applicants . CARDINAL of the CARDINAL applicants had also been parties to the initial CARDINAL applications .

The CARDINAL applications mentioned above have resulted in a friendly settlement agreement ( see GPE and Others v. GPE ( no CARDINAL ) ( friendly settlement ) , DATE ) , concerning CARDINAL of the initial CARDINAL applicants . In a judgment on the merits concerning the remaining CARDINAL of the initial CARDINAL applicants ( see GPE and Others v. GPE ( no CARDINAL ) , DATE , ORG CARDINAL-VII ) where the ORG found a violation , inter alia , of ORG CARDINAL and CARDINAL of the Convention in respect of the applicants’ living conditions . As well as in a joined decision ( see GPE and Others v. GPE ( dec . ) , no . CARDINAL and other applications , CARDINAL DATE ) concerning the additional CARDINAL applicants where the ORG declared their complaint under LAW inadmissible mainly for non - exhaustion of domestic remedies .

The applicants in the present case , PERSON and his wife PERSON ( born PERSON ) , PERSON , PERSON and Mr PERSON and Mr PERSON Rostaş , are NORP nationals of GPE origin who were born in DATE , DATE , DATE , DATE , DATE and DATE respectively , and live in GPE , GPE . ORG and his wife , PERSON PERSON , lodged their complaints before ORG . Mr PERSON and PERSON lodged their complaints before ORG on DATE . PERSON and PERSON PERSON Rostaş lodged their complaints before the ORG on DATE . All the complaints were joined in the present application . The applicants were all represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , from ORG .

The facts of the case submitted by the parties , in so far as they concern the current applicants , may be summarised as follows .

The present case originates in the events which took place in DATE in the village of GPE and which are summarised in the judgments of NORP and Others ( nos CARDINAL and CARDINAL ) , cited above . The steps taken by the respondent Government prior to and after the adoption of the judgments of NORP and Others , ( QUANTITY CARDINAL and CARDINAL ) with the aim of improving the living conditions of the GPE affected by the violent events of DATE are summarised in PERSON and Others , cited above , § § DATE .

Some of the applicants , namely , PERSON , Ms GPE , PERSON and Mr PERSON and Mr PERSON Rostaş , are the brothers and sisters of CARDINAL of the CARDINAL GPE who were killed during the violent events of DATE .

Mr Luşca Moldovan had been living in the house where the CARDINAL murdered GPE had been hiding prior to their death . The house was destroyed as a result of the violent events of DATE . Mr GPE ’s personal belongings and a large sum of money he had saved from commercial activities were also destroyed together with the house . Moreover , DATE after the violent incident the house was only partly rebuilt . Furthermore , as a result of the events he had needed psychological treatment .

According to PERSON , in the aftermath of the events her entire family , numbering CARDINAL individuals , was forced to live in a room of CARDINAL sq.m without food , medicine or an income . Moreover , they had been “ tortured ” by police officers who had visited them at TIME and forced them to testify . Her mother , PERSON had died allegedly as a result of the harassment on DATE . PERSON had developed diabetes as a result of the stress and fear caused by the violent events of DATE . After CARDINAL of the individuals involved in the killing of her brothers had been acquitted , he had started threatening her and her husband . Consequently , she and Mr GPE had moved to GPE on DATE and DATE respectively , where they had been granted refugee status .

On unspecified dates the other CARDINAL applicants also moved to GPE . In their first letters to ORG on DATE ( Mr PERSON and PERSON ) and on DATE PERSON and PERSON Rostaş ) they stated that they had been granted refugee status in GPE . They also contended that in the aftermath of the events they had been forced to live in cold and inappropriate conditions ( sleeping in the woods , on floors or in crowded conditions ) together with their family . They had lived in those conditions for DATE .

All CARDINAL applicants consider that as a result they have developed a number of medical conditions , in particular tuberculosis , asthma and diabetes . Some of them have also developed psychological problems and have been obliged to pay for treatment themselves even though they lacked an income .

Only PERSON was a party to the criminal and civil domestic proceedings opened after the violent events of DATE . She did not appeal , however , against the judgment delivered by the first - instance court during the course of the civil proceedings opened against the third parties convicted for the destruction of her home .

On DATE , following the discontinuance of the criminal investigation against the police officers involved in the incident and the criminal conviction and sentencing of CARDINAL civilians by the final judgment of DATE of ORG , the ORG delivered its judgment in the civil case . The court noted that the victims had claimed compensation for pecuniary damage resulting from the destruction of the houses and their contents ( furniture and so on ) , as well as compensation for non - pecuniary damage . The court further noted that , during the events of DATE , QUANTITY houses belonging to the GPE population in GPE had been totally or partially destroyed and CARDINAL GPE had been killed , a criminal court having found CARDINAL villagers guilty of those acts . Basing its decision on an expert report , the court awarded compensation for pecuniary damage for those houses which had not been rebuilt in the meantime , and maintenance allowances for the children of the GPE killed during the riots . On the basis of an expert report , the court awarded compensation for pecuniary damage in respect of the partial or total destruction of the houses of CARDINAL GPE . The court rejected the other ORG request for compensation for pecuniary damage in respect of the rebuilt houses , finding , on the basis of the same expert report , that their value was either the same as or higher than the original buildings . It further refused all claims for damages in respect of belongings and furniture , on the ground that the claimants had not submitted documents to confirm the value of their assets .

The court finally rejected all claims in respect of non - pecuniary damage on the ground that they had not been substantiated , and that the crimes committed were not of a nature to produce such damage .

The court ordered the villagers convicted in the criminal trial to pay the damages awarded .

Relying on some procedural errors in ORG judgment , the parties to the proceedings , including PERSON , lodged an appeal with ORG .

On DATE ORG found that a number of procedural errors had occurred during the public hearings on the merits before ORG : the hearings had been held in the absence of the accused and their lawyers ; CARDINAL of the parties had not been summoned ; the public prosecutor had not been given leave to address the court and a number of expert reports ordered by the court had not been completed . ORG quashed the judgment of DATE and ordered a new trial in the case .

In the second procedural cycle , ORG delivered its judgment in the civil case on CARDINAL DATE . Basing its decision on an expert report drafted in DATE and updated in DATE , the court ordered the civilians found guilty by the criminal court in respect of the destruction of the PERSON houses to pay damages to some of the parties to the proceedings for the destruction of their homes , including PERSON , who was awarded MONEY ( ROL ) ( MONEY ( ORG ) ) .

The courts also ordered that the amounts be revised to take account of any devaluation in the national currency .

NORP However , the court rejected all the parties’ claims in respect of nonpecuniary damage , on the ground that they were not substantiated .

PERSON did not appeal against ORG judgment of CARDINAL DATE .

The civil proceedings ended with the final judgment of CARDINAL DATE of ORG , with the domestic courts also awarding the appellants non - pecuniary damages .

There is no evidence in the file that PERSON opened any enforcement proceedings in respect of the judgment of CARDINAL DATE before the domestic authorities or that she opened proceedings before the domestic authorities in respect of the death of her mother .

NORP The relevant legal provisions , including the relevant provisions of LAW , Code on Civil and Criminal Procedure , PERSON No . CARDINAL concerning enforcement officers , and the relevant caselaw , are set forth in the judgments NORP and Others v. GPE ( nos . CARDINAL/CARDINAL and GPE , § § CARDINAL , DATE ) ; PERSON v. GPE ( no . CARDINAL/CARDINAL , ( dec . ) , DATE ) ; PERSON v. GPE ( no . MONEY , ( dec . ) , DATE ) ; PERSON v. GPE , no . CARDINAL , § DATE , DATE ; and GPE v. GPE DATE . ) , no . CARDINAL , DATE ) .

Articles CARDINAL and CARDINAL of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it .

“ Any person , including any person who has suffered damage as a result of the enforcement , shall have the right to contest the enforcement or any procedural steps taken during the enforcement proceedings . In addition ... the enforcement proceedings can be contested ... when the enforcement officer refuses to carry out an act of enforcement in accordance with the applicable legal provisions . ”


The applicant , PERSON , is a NORP national , born in DATE and living outside GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .

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

The applicant lives under orderly social conditions . She is the mother of CARDINAL children , her son P. , born in DATE , and CARDINAL daughters , born respectively in DATE , DATE and DATE . After separating from their father Mr B. in DATE , she has been the sole holder of the custody and has assumed the DATE care of all CARDINAL children . However , the applicant has had several problems with her son PERSON , who since an early age has been hyperactive and unable to concentrate , combined with aggressive behaviour . Her application under the Convention concerns certain public care measures taken with respect to him by the NORP social authorities .

According to the applicant , her ex - husband had alcohol problems and physically abused both herself and P. In DATE he was convicted of having assaulted her in DATE . For the same reason he was banned from visiting the family for DATE from DATE to DATE .

In connection with her separation from PERSON in DATE , the applicant contacted the mental welfare services for children and young people ( the so - called “ PBU ” ) , as she had difficulties in managing PERSON and wished assistance in dealing with the impending separation . PERSON was examined by a psychologist , who observed , inter alia , that the boy was unsure of his identity and scared by his own aggressiveness and that disaster and chaos were dominant features of his world . No indication of neurological disabilities was detected then . Since PERSON was found to need to be in a small group of children , he was placed in a special pre - school , named PERSON , in DATE .

In DATE , ORG received a report from ORG , stating that PERSON was not feeling well . The applicant was described as having great difficulty in setting limits for him . PERSON was said to function relatively well at pre - school , where activities were structured and the staffing ratio was relatively high . The report also said that PERSON constantly hit his mother . As the staff understood the situation , PERSON and his mother were engaged in a power struggle . They had also noticed that the conflicts between the parents had an adverse effect on P. On CARDINAL recent occasions , P. had had bloody scratch - marks in his face , which his mother had stated that she had caused . She had informed the staff that P. had told her that he wanted to die in order to make her sad . She had seen him sitting with the point of a sheath knife turned towards him .

In the light of this report , the social welfare office made an investigation , which resulted in the applicant and her ( then ) CARDINAL children being admitted in DATE to the child psychiatry clinic at ORG , where they stayed for DATE . There she received assistance in setting limits and improving routines . The staff had no impression that P. might be suffering from any neurological disabilities . To begin with , the family ’s situation had slightly improved after the stay at the clinic . The social welfare office was in regular contact with the applicant . During DATE , the situation began to deteriorate again . The applicant was offered assistance in the form of a stay at a treatment centre . She , however , declined this offer . She told the social welfare officers that at present she was in no need of having contact with the social services other than in connection with the follow - up meetings at ORG pre - school . In DATE she concluded her after - care contact with the clinic at ORG and shortly afterwards she also discontinued her dialogue contact with “ FAC ” .

At or around the same time , in accordance with the applicant ’s wishes , the social services appointed the children ’s paternal aunt and uncle as contact family in order to provide some relief to the applicant .

In DATE PERSON submitted a second report to ORG stating that PERSON had recently had great problems at the pre - school and , as they understood it , at home as well . The mother was unable to calm him down , they quarrelled and she slapped him . He had a very negative self - image and often spoke of himself in disparaging terms . On DATE , a serious incident had occurred . Together with a younger child PERSON had run away from the pre - school across the road in the direction of the railway track . CARDINAL teachers had run after them and had shouted to them to stop . While the other child obeyed , P. jumped down onto the track . After being dragged away from the track by CARDINAL of the teachers , he was brought back to the pre - school . DATE , when the teachers tried to explain the danger of the trains to P. , he had replied that he wished to die .

On learning about the above incident , the applicant sought assistance at the child psychiatry clinic at FAC , where she and the children were kept for observation from DATE . According to relevant medical records , PERSON was particularly sad , had several times expressed that he wished to die and had stated that he wished to hurt his mother and sister . His mother was very tired and lacked the necessary strength to support him during these periods of melancholy . Conflicts often blow up between them . The mother was not only worried about PERSON but also about his sister . Following a meeting involving the applicant , a social welfare officer and doctors , it was found necessary to investigate her ability to assume the care of the children and what kind of support and assistance they needed .

On DATE , with the applicant ’s approval , she and the children were placed at Triaden , an emergency care and investigation centre . According to the relevant report , P. had recurrent outbreaks of aggression and staff had to mediate between him and his mother and also to physically protect her . In these situations , P. was in a state of great anxiety and the mother expressed that she was afraid of him . On some occasions she escaped by shutting herself up in her room . There were few occasions when she listened to P. and comforted him in order to make him feel safe . She often raised matters in his presence that made him feel anxious and often pushed him away when he sought physical contact with her . When she allowed him to get close to her , he would variably hug her , pull her hair or scratch her face . P. sometimes hit his sister hard and she hit him back . The mother was not capable of separating them and preventing them from hurting each other . P. had said to his mother that she could kill him if she wished and had also threatened to kill his sister , who became so scared that she could not sleep .

A psychologist found , inter alia , that P ’s feelings towards his mother were characterised by great ambivalence , combining a yearning for closeness , a need for control and fierce aggressiveness . It was probably necessary that other adults create structure and set limits in order for him and his mother to have a good time with each other . It was evident that he needed considerable adult support , to be in a well - defined and structured environment with clear requirements and limits being set , where he could feel that he had a certain degree of control . He also needed assistance in his relationship with his mother , both as regards closeness and emancipation . It was also recommended that P. undergo neuropsychiatric examination and suggested that care at a treatment centre could provide him with both structure , limits and emotional understanding and at the same time assist his mother in establishing a good relationship with him .

After DATE at Triaden , the competent staff of the centre found that , because of the destructive conflicts between the applicant and P. and her inability to see to his needs , it had become untenable to keep them both there . They suggested that he receive care outside his home , preferably at a residential treatment centre . The applicant expressed a wish that he receive independent assistance outside the family as she too realised that she was unable to provide him with appropriate care . She was advised that placement at a centre would normally DATE . On DATE , with the applicant ’s consent and in consultation with the social services , the boy was placed in an emergency family home ( jourhem ) not far from the applicant ’s home .

In DATE access arrangements were agreed on , according to which P. was to spend DATE in the applicant ’s home , in addition to visits by the applicant in the emergency family home DATE .

Since the applicant appeared to have a preference for placement of P. in a foster home rather than in an institution and since the foster home placement seemed to function well , the authorities agreed that this was the best alternative .

As there were long waiting lists for a neuropsychiatric examination , the social services engaged a psychologist who , at DATE , performed a neuropsychological examination , a so - called PERSON - test , on P. In a report of CARDINAL DATE the psychologist concluded that the test profile revealed characteristics of so - called Deficits in Attention , Motor control and ORG DAMP ” ) and that immediate assistance to address ORG ’s special needs was called for .

In DATE , after an unsuccessful attempt by the applicant to have Mr B. ’s prohibition on visits extended , the contact between PERSON and his father was resumed . In accordance with the applicant ’s wishes , they were to see each other in the presence of P. ’s aunt and uncle . In DATE , she stated that she no longer wished to keep them as contact family as they were not impartial . Instead , P. ’s father was to see PERSON in the emergency family home . Around the same time she told PERSON ( the “ emergency family home mother ” ) that , contrary to her agreement with the social services , she would bring PERSON home DATE instead of DATE .

On DATE , the applicant told the social services that she wanted P. to return home . This was followed by discussion in the course of the spring , at meeting organised by the social welfare office and involving the persons implicated . In DATE , the applicant appointed a personal representative to handle her contacts with the social services , since she no longer wished to meet the social welfare officers .

On DATE the applicant declared that she no longer consented to her son ’s emergency home placement .

On DATE ORG decided , under section CARDINAL of the Act with Special Provisions on ORG ( lag ( CARDINAL ) med särskilda bestämmelser om vård av unga ; hereinafter ” the DATE LAW ) , immediately to take ORG into public care on a provisional basis . ORG confirmed the decision on DATE .

ORG then carried out an investigation . In its report of DATE it observed that P. needed to be in an environment that was clearly structured , with well - defined requirements and limits and with adults who could give him support . P. had become calmer during his stay in the emergency family home , where he was functioning well with more clearly defined limits , greater security and support . The applicant had tried to the best of her ability to cope with her role as a parent and had endeavoured to find ways of meeting ORG needs . Unfortunately , her efforts had not sufficed to provide P. with an environment in which he could grow up and develop positively . The problems inherent in the relationship between them manifested themselves clearly during PERSON ’s stay in the emergency family home . There was a palpable risk that his health and development would be impaired as a result of deficiencies in the care in his home environment . Irrespective of the cause or causes of P. ’s problems – a neurological disability , abuse on the part of his father or the applicant ’s lack of capacity to take care of him DATE it was clear that there were very substantial problems in the mother - child relationship . Both reports from GPE concerned the applicant ’s problems in dealing with P. , as did the investigation by PERSON . The support and assistance the applicant had received in her role as parent had not brought any lasting improvement . There was no time to spare for meeting ORG care needs . Those needs would best be satisfied by placing him in a family home after his stay in the emergency family home .

On DATE ORG applied to ORG for the taking into care of P. on a permanent basis in accordance with sections CARDINAL and CARDINAL of the CARDINAL Act .

On DATE ORG held an oral hearing during which the applicant , P. ’s counsel , representatives of ORG as well as witnesses for each party were heard .

The applicant opposed ORG application , disputing that there were deficiencies in her care and that any of the other conditions in section DATE Act had been fulfilled . In her submission , the problem in issue was of medical and psychiatric character and she would consent to appropriate treatment of these problems .

Moreover , the court ’s case file included certain reports from ORG , the emergency foster home and from an investigation concerning PERSON conducted on DATE by a child emergency care home . The latter stated , inter alia , that P. had difficulties in controlling his aggressiveness and in showing his feelings .

By a judgment of DATE , ORG granted the application and issued a care order concerning PERSON court found that the applicant and her son had a destructive emotional relationship to one another and that she had difficulties in setting limits to her son ’s behaviour . In the court ’s opinion there was nothing that proved the applicant ’s allegation that P. suffered from GPE . The court held that , whatever the possible causes to the problems between mother and son , those problems had lasted for a very long period . Already when PERSON was a baby , the applicant had had contacts with the child welfare services and , in DATE , with a psychology centre for children and young persons . In spite of substantial assistance provided by ORG under a voluntary care arrangement , there had been no improvement in the relationship between mother and son . It is therefore obvious that the mother was unable to provide him with the secure and stable environment he needed . She still was unable to see to his needs for care . Accordingly , there had been a serious deficiency in the mother ’s care for her son . The court concluded that the shortcoming in the applicant ’s care constituted a clear risk of impairment to her son ’s health and development .

On DATE a paediatrician diagnosed P. as suffering , to a moderate degree , from ORG ( “ ADHD ” ) resulting in hyperactivity and inability to concentrate . In her report the paediatrician stated , inter alia , that P. was in need of a structured and calm environment and of assistance in solving conflicts caused by his hyperactivity and concentration disorder . The paediatrician further pointed out that it was important that P. ’s carer receive psychological support .

The above decision did not alter the access arrangements agreed on in DATE , which apparently continued to apply .

The applicant appealed against ORG judgment to ORG , which on DATE held a further hearing in the case . The applicant adduced the paediatrician report and the court heard , at the applicant ’s request , oral evidence from the applicant ’s father . According to the social welfare officer , it had not yet been possible to find a foster family for P. other than the emergency family home . He therefore remained in the latter home , where Ms E. received assistance from the social services and from a family inspector .

On DATE ORG upheld , by CARDINAL votes to CARDINAL , the lower court ’s judgment . In its reasoning the majority stated as follows :

“ The circumstances adduced by the applicant and what has further emerged in the case do not give reasons to modify ORG judgment . ”

The minority stated :

“ The applicant has several times both initiated and contributed to the taking of voluntary care measures with respect to P. In our opinion P. ’s need for care can be provided for on a voluntary basis . The application for taking P. into public care should therefore be dismissed . ... ”

On DATE ORG refused the applicant leave to appeal .

Following the above proceedings , the emergency family home became ORG ’s foster home .

On DATE , the applicant again turned to ORG requesting , firstly , to be reunited with PERSON or , in the alternative , that he be placed at GPE , a special home for care and residence . ORG rejected her first claim but agreed to prepare for his placement at the said institution , which took place on DATE .

After carrying out an investigation in DATE , the social welfare office found that the applicant ’s relationship with P. had improved . It was observed that he spent DATE - and with his mother , every other DATE with his father , and that the applicant participated actively in the treatment of P. at GPE . She came TIME per week to put him to bed . Every other week she consulted a family therapist . In the light of the improvements noted , the office recommended that the care order be lifted and that care be provided at Heimdalsgården on a voluntary basis under a care plan . On DATE the applicant agreed .

On DATE ORG decided that the care order should be terminated , on the ground that there was no longer any need for maintaining the public care order with respect to ORG , moreover , decided to place P. in voluntary care in a specialised children ’s home where he could receive treatment of his ORG problems .

In the light of the above , ORG decided on DATE to remove the case from its list of cases .

During DATE , a plan for returning PERSON to the applicant ’s home was initiated , but was suspended after he had confessed to the police that he committed arson on a sports centre during DATE .

During DATE he had a violent outbreak of aggression , whereupon he was returned to GPE for treatment .

On DATE PERSON returned to live in the applicant ’s home and has been reunited with her since .

Care pursuant to the DATE Act shall be provided for a young person DATE if one of the conditions referred to in sections CARDINAL or CARDINAL of the Act is satisfied and if it appears that the necessary care can not be given to the young person with the consent of the person having custody of him and , if the young person himself has reached DATE , with his own consent .

Under LAW care shall be provided if there is a “ palpable risk ” ( påtaglig risk ) of impairment of the health or development of the young person due to ill - treatment , exploitation , lack of care or any other condition in the home .

According to the preparatory works to LAW , the expression “ palpable risk ” was intended to indicate the degree of risk which would justify a compulsory care order . A subjective assumption that a young person is in danger was not enough and irrelevant circumstances such as public order could not be the basis of a care order . There had to be concrete or apparent circumstances supporting the fact that there was a risk for the young person ’s physical or mental health ( cf . Government PERSON , pp . DATE and CARDINAL ) .

According to section CARDINAL of the DATE ORG may order the immediate taking into care of a young person ( “ provisional care order ” ) if it is probable that he or she needs to be provided with care under this LAW and a court decision on the matter can not be awaited owing to the risk to the young person ’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented . Such a decision by ORG is subject to confirmation by ORG .


Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in ORG . He is currently working as legal officer at ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

In DATE the applicant was appointed as a prosecutor at ORG ( “ DPO ” ) . From DATE to DATE the applicant worked as a prosecutor at ORG ( “ the ORG ” ) .

In DATE the Prosecutor General ( “ the ORG ” ) proposed that the applicant be transferred to another DPO , as a result of which he would be demoted and his earnings would decrease . The applicant contested the proposal on the ground that there was no reason for his transfer and demotion .

On DATE ORG endorsed the ORG ’s proposal . By virtue of a presidential decree of DATE , the applicant ’s transfer took effect . On DATE the applicant took up his functions as prosecutor at the Pogradec DPO . His basic remuneration was halved .

On DATE the applicant lodged a constitutional appeal with ORG against the presidential decree .

On DATE ORG declared his complaint inadmissible for non - exhaustion of remedies as provided for under LAW ( f ) of LAW .

On DATE the applicant challenged his transfer before ORG ( “ the ORG ” ) . He argued that the transfer and demotion were in breach of ORG and adversely affected his career , income and related expenses .

On DATE ORG decided to transfer the case to ORG ( “ the Court of Appeal ” ) , on the grounds that it lacked jurisdiction . It reasoned that the applicant ’s transfer was akin to a disciplinary measure , for which ORG had initial jurisdiction pursuant to section CARDINAL of ORG .

On an unspecified date , while the proceedings were pending before ORG , the applicant made a claim for compensation for loss of earnings as a result of the transfer . In his final submissions to ORG , the applicant argued that the said court was competent to examine issues relating to the transfer of prosecutors . He contended that his transfer had been contrary to the domestic law in so far as he had not given his opinion , the transfer had not been on the same hierarchical level and the subsequent demotion had not been temporary . He maintained that he had suffered a loss of earnings as a result of the transfer .

On DATE ORG found in the applicant ’s favour and quashed the presidential decree . It held that the applicant ’s transfer had affected his employment relationship and resulted in the change of his job and a decrease in remuneration . The court interpreted section CARDINAL of ORG to mean that the applicant ’s consent was required for the transfer , in the absence of which the procedure was not in compliance with the law . There was no mention of the applicant ’s claim for compensation for loss of earnings .

On DATE the ORG ’s office appealed to ORG .

In an effort to harmonise the judicial practice inter alia on the legal nature of the presidential decree and its amenability to judicial review , on DATE the President of ORG decided that the case should be examined by ORG ( Kolegjet e Bashkuara ) .

On DATE ORG , by CARDINAL votes to CARDINAL , quashed ORG judgment , holding that a presidential decree in relation to the appointment , transfer or dismissal of a prosecutor was not subject to judicial review , owing to the special employment relationship that existed between the ORG and such officials . ORG decided to discontinue the case .

On DATE the applicant appealed to ORG . He argued that the decision of DATE had breached his right of access to a court . He further submitted that the presidential decree ordering his transfer was an administrative act , which was subject to judicial review .

On DATE the ORG quashed ORG decision . Relying on its decision no . CARDINAL/CARDINAL , ORG found that the presidential decree concerning the appointment and dismissal of a prosecutor was an administrative act which should be amenable to judicial review . Since ORG had not examined the merits of the ORG ’s office appeal , the case was remitted for a determination of the merits .

On DATE ORG held a hearing . The applicant argued that his transfer was not justified . He was of the view that the term “ opinion ” in section CARDINAL of ORG should be interpreted as “ consent ” . He further contended that the transfer , which resulted in his demotion and a decrease in his remuneration , was unlawful .

The ORG ’s ORG argued that the transfer was grounded on the organisational needs of the prosecutor ’s office . It was not essential to have the consent of the prosecutor to his transfer . Other prosecutors had also been transferred against their wishes .

On DATE ORG , by CARDINAL votes to CARDINAL , quashed ORG judgment and dismissed the applicant ’s claims . It found that the applicant ’s transfer had occurred “ out of necessity and in the interest of work ” in accordance with section CARDINAL of ORG . It further held that the applicant ’s consent to his transfer was not required by law . The law only stipulated that the applicant ’s opinion be sought before his transfer .

ORG recognised the applicant ’s right to seek compensation for loss of earnings and other benefits . However , since the applicant ’s claim was directed at the unlawfulness of the presidential decree and since ORG had not examined his compensation claim , ORG decided that it could not examine that claim of its own motion . It ruled however that the applicant could file afresh a claim for compensation for loss of earnings . To date , it does not appear that the applicant has lodged a new claim for compensation with ORG .

Of the CARDINAL judges of ORG who voted against the case on DATE , DATE had been members of the bench which , on DATE , had dismissed the case .

On DATE the applicant appealed to ORG and challenged the decision of DATE . He claimed that his case had not been heard by “ a tribunal established by law ” in rehearing proceedings . Since the decision of ORG did not aim at harmonising and unifying judicial practice , the applicant argued that his case should have been heard by a ORG instead of ORG in rehearing proceedings . He also complained that , despite his request for compensation for loss of earnings , ORG refusal to award him compensation for damage as a result of the transfer and demotion was against its case - law ( see the “ Relevant domestic law and practice ” section below ) . In his view , this amounted to a lack of impartiality .

On DATE ORG , by means of a reasoned decision , rejected the applicant ’s appeal . It found that there had been no breach of the applicant ’s right of access to a court on account of the courts’ failure to examine his additional claim for damages . ORG decided that his claim for compensation submitted to ORG did not meet the requirements of a proper civil action in so far as the claim had not been quantified . The lower courts were therefore not obliged to examine the request . Moreover , ORG had informed the applicant of his right to lodge a new civil claim for damages .

ORG further found that the examination by ORG had been by a tribunal established by law . It found that the applicant ’s claim regarding the lack of impartiality of ORG Joint Benches in the rehearing proceedings was ill - founded .

In an article entitled “ The judicial review of the lawfulness of administrative acts ” , published in a law journal in DATE , the then President of ORG concluded that presidential decrees concerning the appointment , dismissal and ranking of military officers , prosecutors or ambassadors could not be subject to judicial review .

Under LAW ( f ) ORG decides on “ final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

LAW stipulates that ORG sits in ORG to examine cases that would harmonise or amend judicial practice .

Article PERSON provides that ORG ( “ the ORG ” - Prokuroria ) is a centralised institution .

ORG is composed of CARDINAL judges ( section CARDINAL ) . It examines cases in ORG ( section CARDINAL ) . It also sits in ORG in order to , inter alia , harmonise and amend judicial practice ( section CARDINAL ) . A request to sit in ORG is made by CARDINAL of the benches , the President of ORG or ORG ( section CARDINAL ) . The quorum for the composition of ORG is CARDINAL of all the judges . A decision is taken by a simple majority of ORG ( section CARDINAL ) .

Civil proceedings start on the strength of a civil claim ( LAW . A civil claim should contain the name of the court it is addressed to , the personal details and residence of the claimant , the object of the claim , description of facts , circumstances , documents and other evidentiary materials , the claimant ’s request and its value ( LAW ) .

ORG ( “ GP ” ) is the highest authority of the ORG ( section CARDINAL § CARDINAL ) . The structure of the ORG is made up of CARDINAL layers : the district ORG prosecutors , the courts of appeal prosecutors and ORG prosecutors , whose duties are exercised by the prosecutors attached to the ORG ( sections CARDINAL - CARDINAL ) .

District courts’ prosecutors are appointed by a decree of the President of the Republic , on the proposal of the ORG , after having had the opinion of ORG ( section CARDINAL ) . Before taking up their duties , prosecutors take an oath ( section CARDINAL ) .

According to the DATE LAW , the promotion or transfer of a prosecutor could occur only out of necessity and in the interest of work . It was finalised by a presidential decree , on the proposal of the ORG , after having heard the prosecutor ’s opinion ( section CARDINAL ) .

ORG is responsible for the appointment and appraisal of prosecutors . It also examines disciplinary breaches as a result of which it adopts advisory opinions ( sections DATE ) . Disciplinary measures may be appealed against to ORG ( section CARDINAL ) .

The case concerned the impossibility of having access to a court against a presidential decree which ordered a prosecutor ’s dismissal , as provided by LAW . In its decision no . CARDINAL of DATE ( CARDINAL ) ORG declared section CARDINAL § CARDINAL of ORG unconstitutional as it was against LAW . It thus opened the way for a prosecutor to challenge a presidential decree ordering his dismissal before a court .

The case concerned the unjust dismissal of a police officer and his right to compensation for damage . ORG ruled that a police officer who was unjustly dismissed from work was entitled to compensation for loss of earnings . Such an action did not need to be explicitly sought . It sufficed that a police officer challenged the unjust termination of his employment for the court to ( automatically ) examine the consequences that resulted from such a termination , that is , compensation for damage . The burden of proof was on the appellant in quantifying the damage .