The applicant is a NORP national , born in DATE and residing in Nordmaling . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

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

On DATE the applicant gave birth to a daughter , T. After having received a report from the child welfare centre in DATE indicating certain shortcomings of the applicant ’s care of ORG ( socialnämnden ) of PERSON started an investigation into the matter . It made several visits to the applicant ’s home . The applicant was also provided with various supporting measures , including the assistance of a home help , a family guidance counsellor and a so - called contact family . Furthermore , for some time the applicant and her daughter were staying with a foster family and for another period of time they were admitted to a children ’s psychiatric clinic .

ORG investigation ended with the conclusion that the applicant ’s care of T. was deficient and constituted a risk to ORG ’s health and development . As a consequence , T. should be placed with foster parents . As the applicant had discontinued some of the supporting measures she had been provided with , ORG considered that the placement could not be realised on a voluntary basis . In DATE , it therefore applied to ORG ( länsrätten ) of PERSON for a care order concerning ORG The application was made pursuant to LAW on ORG ( lagen med särskilda bestämmelser om vård av unga ; hereinafter “ the DATE LAW ) .

ORG held a hearing in the case , during which it heard the applicant , her counsel , ORG ’s counsel and representatives of ORG . It also heard evidence from CARDINAL witnesses proposed by the applicant . ORG ’s counsel supported the ORG ’s application .

By judgment of DATE , ORG rejected ORG application . Having noted that the application was based on alleged deficiencies in the applicant ’s physical care of her daughter and in the emotional contact between them , the court gave the following reasons for its judgment :

( Translation )

“ With respect to [ the applicant ’s ] practical care of [ T. ] , the investigation does not show that there are such serious deficiencies as regards personal hygiene , diet and clothing that the child could be considered badly cared for . Accordingly , there is no reason to order care under [ LAW ] on this ground .

As regards the other aspects of the care of [ T. ] , the [ court ] first notes that [ the applicant ] gives the impression of being immature and apparently has difficulties in fully understanding her responsibilities as a parent and the needs of a small child . According to assessments made during the investigation , this has led to certain reactions from [ T. ] . She has , inter alia , avoided eye contact with [ the applicant ] on some occasions , dissociated herself from her and failed to react when confronted with strangers or when separated [ from the applicant ] . It is true that these could be considered as worrying signs , but they do not express , in [ the court ’s ] view , any permanent disturbance in [ T. ’s ] ability to relate to other people or other injuries . The question is then whether [ the applicant ’s ] difficulties as a parent will henceforth entail such deficiencies in the care of [ T. ] that there is a palpable risk of impairment of the health and development of the child . In this respect , [ the court ] notes that [ the applicant ] has demonstrated that she is able to accept help and that an improvement has been brought about through the assistance of [ ORG ] . She has also a continuous positive attitude to [ ORG ] and is prepared to accept its assistance . Furthermore , the family ’s situation is generally more favourable since [ the applicant ] has found employment and [ T. ] is with the childminder during TIME . According to the childminder , who gave a reliable impression when giving evidence , the care is working well and [ T. ’s ] behaviour during DATE and when brought to and taken home from the childminder does not differ from that of other children . Further , the prospects of a positive development of the relationship between [ the applicant ] and [ T. ] will probably be better after the demanding period of infancy . [ The applicant ’s ] social network , principally her parents who have realised her need of support , also contributes in making things easier for [ the applicant ] and provides [ T. ] with normal relationships with other people . Even if [ the applicant ] has been very negative towards the efforts of the family guidance counsellor , she has demonstrated that she is aware of her difficulties and has not categorically rejected the assistance from the social authorities . Consequently , in the [ court ’s ] view , it can not be considered hopeless for the social authorities to attain a contact based on mutual trust with [ the applicant ] and provide her with continuous supporting measures trough persons whom she can regard as role models . In these circumstances , [ the court ] considers that [ the applicant ’s ] situation does not entail the clear risk of impairment to [ T. ’s ] development which is required for compulsory measures under [ the DATE Act ] . ”

ORG appealed to ORG ( kammarrätten ) in GPE , which held a further hearing in the case , during which it heard the same persons as the inferior court . CARDINAL of the witnesses who had appeared before ORG gave evidence also before ORG . In addition , the appellate court heard evidence from a psychologist proposed by ORG . The psychologist , who gave expert evidence , had not met the applicant or her daughter . ORG ’s counsel recommended the appeal be granted .

On DATE ORG reversed the appealed judgment and , accordingly , ordered that T. be taken into care . The court gave the following reasons :

( Translation )

“ ORG shares ORG view that the physical care of [ T. ] is not deficient in such a way as to give reason for a care order under the [ CARDINAL Act ] .

What has emerged from the statements in the case , principally the report submitted by [ ORG ] and the report on the situation in the home from the family guidance counsellor but also the report from the psychologist [ ORG ] acting as expert witness for ORG in ORG , is that serious shortcomings exist in the care of [ T. ] as regards [ the applicant ’s ] ability to communicate and be emotionally approachable as well as her ability to console ; in brief , shortcomings in the relationship between [ the applicant ] and [ T. ] which , given [ T. ’s ] age , presumably will lead to a palpable risk to [ T. ’s ] health and development .

The investigation into the case reveals that the support given to [ the applicant ] has resulted in mother and daughter beginning to interact well , but that [ the applicant ] still would require considerable support for a long period of time in the form of , inter alia , a family guidance counsellor in the home and closer contact with [ the Children ’s Psychiatric Clinic ] – along with the support of the childminder and other parts of her social network , most of all her parents – in order for [ T. ] to receive the requisite care and attention . The alternative is that [ T. ] may bond with another adult in a foster family who , during DATE of her life , would be able to give her the loving care she needs without contact with the mother being broken .

As concerns [ the applicant ’s ] ability to meet [ T. ’s ] care needs with the help of supporting measures it should be noted that [ the applicant ] , in many respects in her contacts in her working life and with [ ORG ] and ORG , has shown immaturity and dependence on others and also an ambivalent attitude towards the various supporting measures . Against this background and since both the help offered and the help requested have materialised only to a limited extent , there is reason to assume that [ the applicant ] does not possess the ability or the strength to utilise voluntarily the immense support required to give [ T. ] the necessary care . Instead , in order to secure such care for [ T. ] , it will probably be necessary to place her outside her home with foster parents in accordance with ORG care plan . As [ the applicant ] does not consent to this and there are such deficiencies in the care of [ T. ] that there is a palpable risk of her health and development being impaired , the requisite circumstances exist for [ T. ] to be taken into care under LAW , subsection CARDINAL and LAW of the [ DATE Act ] . ”

On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal .

On DATE ORG decided to place T. with foster parents in GPE , QUANTITY from Nordmaling . The decision was upheld on appeal by ORG on DATE and by ORG on DATE . ORG refused leave to appeal on DATE .

On DATE , in its review of the case under the provisions of Section CARDINAL of LAW , ORG decided to prolong the public care of T. The decision was based on a report dated DATE , drawn up by officers of ORG . The report concluded that ORG was in need of further care and it was not considered that the applicant ’s situation had changed in such a positive way as to give cause for moving T. back home . The applicant was still considered incapable of taking care of T.

The applicant appealed against the decision . ORG decided that ORG ’s further need for care should be examined at FAC at ORG .

Before ORG the applicant submitted that , on a voluntary basis , she was now willing to accept the continuation of ORG ’s placement in a family home during a transitional period , and further that she admitted that she was in need of support in taking care of T. ORG argued that ORG was still in need of care under LAW . T. ’s legal counsel also opposed to a termination of the care order .

In DATE the applicant requested that the foster family placement of T. be terminated . On DATE ORG rejected this request .

Following the termination of the examination at the clinic at ORG ordered the termination of the care under LAW by judgment of DATE . In its reasons the court stated that the decision of CARDINAL DATE to take T. into care was , inter alia , based on a statement by a psychologist which concluded that DATE are a very important period in a child ’s life . In considering the question of termination the court gave special weight to the fact that T. was now DATE . The court also considered it to be important that the applicant was now aware that she was in need of support in her care of T. and that she understood that ORG could move back home only after a transitional period and not immediately . The court concluded that the applicant at the time was not lacking the ability to take care of T. in such a way that T. ’s needs of emotional security and stimulus would be seriously neglected in the case of a reunion between mother and daughter .

The judgment was appealed against by ORG . On DATE ORG rejected the appeal for the following reasons :

( Translation )

“ The initial care order for [ T. ] was based on the fact that , in several aspects , there were serious shortcomings in [ the applicant ’s ] ability to provide [ T. ] with the care she needed in view of her age and development , inter alia with regard to the possibilities of letting [ T. ] adequately interact with an adult . Although the matter of interaction does not seem as crucial DATE , the facts of the case DATE especially the results of the child psychiatric examination and the hearing of the expert , [ GPE ] – indicate that there is still a substantial lack in the ability of [ the applicant ] to provide care . These shortcomings can be assumed to be of such a character as to lead to a palpable risk to [ T. ’s ] health and development , should steps not be taken in order to handle them .

ORG has , in this respect , made the assessment that adequate care for [ T. ] can not be provided in her own home but that it is necessary for [ T. ] to stay with a foster family while [ the applicant ] inter alia through continued contacts with [ ORG ] gains strength and develops so that she on the one hand learns to better understand and interpret [ T. ’s ] signals , CARDINAL the other hand is motivated and realises as well the need as the ability to accept the relatively extensive supporting measures necessary to eliminate the shortcomings in her ability to provide care . The reason for this is to make it possible for [ the applicant ] , with continuing supporting measures , to take care of [ T. ] in her own home after a gradual termination of the placement with foster parents .

In particular as regards the implementation of a transfer from the foster home to the own home the expert has highlighted the risks for [ T. ’s ] health and development of a more abrupt termination of the ongoing placement with foster parents and has recommended that such a transfer in order not to harm [ T. ] be done gradually over a lengthy period with , for example , mother and child staying at [ the Children ’s Psychiatric Clinic ] and with measures supporting interaction , and that it is then continued with personal and other supporting steps in the own home .

[ The applicant ] , who has now accepted that there are shortcomings in her ability to provide care and that , at present , there is also a risk for [ T. ] being harmed if she were to be taken care of in [ the applicant ’s ] home , has also expressed that DATE she is willing to consent to continued foster home placement for an undetermined period of time and that she accepts also otherwise the supporting measures in the form of contacts with [ ORG ] , personal assistance in the own home etc . necessary in order for her to be able to give her daughter the care she needs .

The previous decision by [ ORG ] as regards the need for a care order was made in the light of the fact that [ the applicant ] was deemed to lack the ability and strength to utilise voluntarily the support required to give [ T. ] necessary care in her own home and that a placement outside the home was therefore necessary . At that time [ the applicant ] did not consent to that form of care .

Taking into account what has previously occurred and not least the results of the psychiatric examination and the hearing of the expert , there are also DATE grounds for doubt as regards [ the applicant ’s ] ability to realise the need for necessary support in order to be able to provide care for [ T. ] in her own home . In this respect no decisive change seems to have taken place as regards [ the applicant ’s ] own personal development since [ T. ] was taken into care but [ T. ] is still in need of care outside her own home . Care in a foster home is necessary DATE not only because a sudden discontinuation in itself would be harmful for [ T. ] but foremost because [ T. ] can not be expected to receive the necessary care in her own home even if [ the applicant ] is given special support . In contrast to the previous situation , however , [ the applicant ] now consents to a placement of her daughter with a foster home for a transitional period .

In the light of [ the applicant ’s ] attitude as regards the question of further care outside her own home it must first be assessed whether the necessary care for [ T. ] can be provided on a voluntary basis . These measures would consist of a placement with foster parents until further notice and of an immediately initiated continuing and active work by ORG in order to motivate and try to make [ the applicant ] realise as well [ T. ’s ] need of care as her own possibilities to meet this need with the help of active support . By a gradually more intensified right of access , [ T. ] can be transferred to her own home when both [ T. ] and [ the applicant ] are deemed mature enough to handle that .

The question at present is not , however , whether [ the applicant ] has the ability or the strength to meet the necessary extensive and interfering measures needed as well before a transfer is possible as , if it is carried out , after [ T. ] is placed again in her own home , but primarily whether [ the applicant ] is likely to interfere with an ongoing voluntary placement with foster parents before it is possible to ascertain that the necessary care can be provided for [ T. ] in her own home by [ the applicant ] with the support provided by society .

In this respect it should first be noted that she herself as well as her father , who has continuously as counsel for her daughter acted actively in concert with [ the applicant ] , clearly expressed that she accepts a continued placement with foster parents and that she realises that an expeditious transfer would be detrimental to [ T. ] . Furthermore , it should be taken into account that [ the applicant ’s ] actions so far evidently have been characterised to a relatively large extent by passivity . The reason to why various measures have not been commenced or have been terminated seems , accordingly , have been that [ the applicant ] by evasion or negligence to act has let the matter come to nothing . On the other hand she has not actively terminated or refused various help efforts . It seems that neither has [ the applicant ] consciously acted in a way she would understand as being harmful to her daughter . Therefore it may reasonably be possible to conclude that [ the applicant ] now , having experience also from compulsory care , does not reject the demands caused by the needs of [ T. ] . The [ court ] therefore comes to the conclusion that an overall assessment indicates that the consent expressed by [ the applicant ] , however at a late stage of the proceedings , should be accepted as adequate . Under these circumstances the [ court ] also finds that it is possible on a voluntary basis to provide [ T. ] with the necessary care outside her own home until it is possible to return [ T. ] to [ the applicant ] . This means that there are no longer grounds for compulsory care . ”

On DATE the applicant revoked the power of attorney for her father , who had until then been representing her in the matter of the public care of T.

On DATE the applicant ’s father requested ORG to decide on a gradual termination of [ T. ’s ] placement with the foster parents . On DATE the ORG concluded that he was no longer representing his daughter and decided to respond to him accordingly .

On DATE the applicant ’s father requested ORG to secure the implementation of the judgment of ORG of DATE . On DATE the court rejected the request , finding no legal basis therefor .

The applicant ’s father appealed to ORG . On DATE the appellate court , noting the provisions of LAW , LAW , referred the case back to the inferior court since it had not examined the question whether the applicant ’s father was still legally representing her .

It appears that ORG is still living with foster parents .

B. Relevant domestic law

a. LAW

Care pursuant to the DATE Act shall be provided for a young person DATE if one of the situations referred to in LAW CARDINAL of the LAW is at hand and the necessary care presumably 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 the age of DATE , with his own consent . According to LAW care shall be provided if there is a palpable 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 .

Decisions on whether to place a young person under public care are made by ORG following an application from ORG .

The concept of health or development in the DATE Act was taken directly from the previous legislation in this area as a description of a person ’s physical or mental health or development . The concept refers to situations where the young person is risking his physical health or where mental suffering is inflicted because of the situation in the home .

According to the travaux préparatoires to the DATE Act the expression palpable or apparent risk ( påtaglig risk ) was deemed well suited for indicating at what level a compulsory care order could be justified . A subjective assumption that a young person is in danger is not enough and irrelevant circumstances such as public order must not be the basis of a care order . There has to be concrete or apparent circumstances supporting the fact that there is a risk for the young person ’s physical or mental health ( cf . Government PERSON , pp . DATE and CARDINAL ) .

According to LAW may order the immediate taking into care of a young person ( “ provisional care order ” ) if he probably needs to be provided with care under 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 . If such a decision by ORG can not be awaited , an order on taking into public care may be made by the Chairman of the ORG . A provisional care order shall be put before ORG which shall rule on whether the order shall be upheld awaiting the ORG ’s judgment regarding the application for public care .

According to LAW of the DATE ORG shall maintain close observation of the care provided for a young person by virtue of the LAW . When a care order has been made according to the LAW , the responsibility for the young person is taken over by the social authorities . It is ORG that decides about the necessary care . If care has been provided under LAW , the ORG must ex officio review , at least once DATE , whether care under the Act is still necessary .

According to LAW of the DATE LAW may , on being petitioned by ORG , prohibit , for a specified period or until further notice the removal of a minor from a foster home by the person having custody of him , if there is a palpable risk of the young person ’s health or development being impaired if he is separated from the home ( removal prohibition ) . The ORG shall , according to LAW , review , at least once DATE , whether a removal prohibition is still necessary .

According to the DATE ORG may issue a temporary removal prohibition if i ) it is probable that a removal prohibition is needed , and ii ) a court decision concerning a removal prohibition can not be awaited , in view of the risk of the young person ’s health or development ( Section CARDINAL ) . If the ORG has decided on a temporary removal prohibition , the decision shall be submitted to ORG ( Section CARDINAL ) . If the court confirms the decision , the ORG shall apply for a removal prohibition within DATE of the court ’s decision ( Section CARDINAL ) . A temporary removal prohibition ceases to apply i ) if a removal prohibition has not been applied for within DATE of the court ’s decision , or ii ) when the court determines the question of a removal prohibition ( LAW ) . If necessary in view of the purpose of a removal prohibition or temporary removal prohibition , ORG may decide how the right of access to the young person to which a parent or other custodians may be entitled is to be exercised ( LAW ) .

According to LAW of the DATE Act appeals against decisions by ORG may be lodged with ORG if the ORG , inter alia , has made an order concerning access , pursuant to LAW .

b. The Parental Code

Provisions concerning the enforcement of judgments and decisions concerning the custody of children are laid down in LAW of LAW ( föräldrabalken ) .

Section CARDINAL of that LAW reads :

( Translation )

“ Even when no judgment or decision as described in Section CARDINAL exists [ i.e. judgments by ordinary courts concerning custody , access to , or surrender of children ] , the child ’s guardian may , when the child is staying with someone else , request ORG to have the child transferred to himself or herself .

ORG may refuse to take the measure requested if the best interests of the child require that the question of custody be examined by a general court .

A measure according to the first paragraph may not be decided if , according to [ LAW ] , the guardian of the minor has been prohibited from taking the minor from a foster home . ... ”

c. The Administrative Court Procedure Act

According to LAW , subsection CARDINAL of the DATE LAW ( förvaltningsprocesslagen ) a decision made by a county administrative court or an administrative court of appeal may be appealed against by a person whom the decision concerns , provided that the decision affects him adversely .


Violation of Art. 6-1 due to lack of impartial tribunal;Violation of Art. 6-1 due to the impossibility of being heard in person on appeal;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

On DATE the first applicant 's business associate , PERSON ORG , lodged a criminal complaint with ORG ( tribunale commissariale civile e penale ) of GPE , accusing the first applicant of irregularities in the management of their business affairs . On DATE Mr PERSON lodged a second complaint together with supporting documents , seeking , in particular , to have the first applicant 's bank accounts frozen .

By a summons issued by the PERSON della PERSON ( judge ) of ORG , PERSON , on DATE and served on DATE , the first applicant was required to appear before that court on DATE ; at the first applicant 's request , the hearing was postponed until DATE .

On DATE Mr PERSON filed further documents .

On CARDINAL DATE Mr PERSON and the first applicant were questioned by the PERSON della PERSON , Mr L.E.

On DATE the first applicant filed pleadings .

On DATE the Commissario della PERSON , PERSON , ordered an expert to draw up a report with a view to ascertaining the nature of the business relationship between the first applicant and his associate and verifying the propriety of the first applicant 's management of the company .

On DATE the expert submitted his report , concluding that , on account of irregularities attributable to the first applicant , the latter owed his associate the sum of MONEY . On DATE the Commissario della PERSON , PERSON , allowed a further application by PERSON C.B. , dated DATE , for the attachment of the first applicant 's assets in order to prevent him disposing of them .

On DATE the PERSON della PERSON , PERSON , questioned the expert , who reaffirmed his findings . The first applicant 's lawyer asked for time to submit various documents .

On DATE and DATE the first applicant 's lawyer filed his observations and various documents ; PERSON lawyer did likewise on CARDINAL May and DATE .

On DATE another Commissario della PERSON authorised a second preventive attachment of the first applicant 's property , including a number of cars , bank accounts and any other items of value . In an order of DATE the second PERSON della PERSON specified the items that were to be attached and appointed the first applicant as their legal guardian ( custode giudiziale ) .

On DATE and DATE the bailiffs ( cursori ) drew up a record of the attachment , noting that CARDINAL cars had disappeared and that the first applicant , who was responsible for them in his capacity as legal guardian , was unable to indicate their whereabouts . Mr PERSON 's lawyer consequently lodged a further complaint against the first applicant , accusing him of the offence of fraudulent conversion of property under attachment ( frode nel pignoramento o nel sequestro ) .

On DATE the missing cars were located ; on DATE the first applicant was questioned by the PERSON della PERSON , Mr L.E.

On DATE a defence witness was questioned by the PERSON della PERSON , Mr L.E.

On DATE and DATE Mr PERSON 's lawyer lodged a third application for preventive attachment of the first applicant 's property . On DATE the PERSON della PERSON , PERSON , allowed the application and authorised the attachment of certain cars belonging to the first applicant , and also of his share in another company . On DATE the first applicant was committed for trial on charges of fraud and fraudulent conversion of property under attachment .

On DATE the first applicant was issued with a summons to appear in court .

Since the shortened form of procedure ( procedura sommaria ) was applicable , the trial was held before the same Commissario della PERSON , PERSON ORG , who had already dealt with the case as the investigating judge . Evidence was heard from the parties and from various defence witnesses .

In a judgment delivered by the PERSON della PERSON , PERSON , on DATE and deposited at the registry on DATE the first applicant was found guilty on both charges ( fraud and fraudulent conversion of property under attachment ) , and was given a DATE suspended prison sentence and ordered to pay a fine .

On an unspecified date the first applicant appealed against that judgment . He argued , firstly , that he could not be held criminally liable and that the only issue that could be raised was that of his civil liability , basing his submission , in particular , on the content of agreements he had concluded with PERSON He also complained that he had not been given permission to consult certain accounting documents which could have established that his actions had at the very most amounted to misappropriation ( appropriazione indebita ) rather than to fraud . As regards the charge of fraudulent conversion of property under attachment , he added that he had never intended to break the law but had quite simply misunderstood the content of a ORG decision of DATE and had , accordingly , believed that the attachment order had been lifted ; on realising his error , he had immediately informed the judge of the cars ' whereabouts . Lastly , he maintained that the charge of fraud had become time - barred on DATE .

The complainant likewise appealed , arguing that the first applicant 's criminal liability was beyond dispute because he had misrepresented their firm 's financial position in order to make him accept a sum well below the value of his share . He further submitted that the charges were not time - barred and that the PERSON della PERSON had not taken into account certain aggravating circumstances , the continuation of the offence in question or the commission of other offences , such as issuing bad cheques , fraudulent conversion of property under attachment and misappropriation . The complainant also claimed damages and sought to have the orders for the attachment of the first applicant 's property upheld .

State Counsel ( ORG ) sought to have the judgment at first instance upheld in its entirety .

In the meantime , the PERSON della PERSON had ordered the lifting of the attachment of certain of the first applicant 's assets .

Without holding a hearing , and on the basis of the documents relating to the investigation at first instance ( alla stregua delle risultanze processuali ) , which the PERSON della PERSON , PERSON , had added to the file for the appeal , the criminal appeals judge ( PERSON delle appellazioni per le cause penali ) held , in a judgment of CARDINAL DATE which was deposited at the registry on DATE and became final on DATE , firstly that the applicant 's objection that he had been unable to consult the accounting documents was manifestly ill - founded and in any event of no consequence , since he had never been denied access to the documents .

The appellate judge further held that the file on the investigation at first instance showed that the first applicant had concealed his activities from his associate PERSON , and had falsely represented their firm 's financial position to him for the purpose of deception ; his conduct consequently amounted to fraud . As regards misappropriation , that offence DATE which had , moreover , become subject to limitation – did not preclude fraud , but should rather be added to it as a preliminary step towards it . The judge accordingly upheld the first applicant 's conviction .

As regards the offence of fraudulent conversion of property under attachment , the judge considered that the first applicant 's explanation was legally irrelevant , since it referred to a decision delivered after the perpetration of the offences for which he had been tried . The judge also dismissed the objection that the charge of fraud was time - barred , pointing out that time had ceased to run while the expert report was being drawn up and that the limitation period had consequently not expired until DATE .

The appellate judge also upheld the order for the attachment of the first applicant 's property and referred the case to the civil courts for quantification of the damages to be paid to the complainant .

Lastly , the judge forwarded the procedural documents to the Commissario della PERSON , instructing him to ascertain whether the first applicant could be held liable for the fraudulent conversion on DATE of a further car under attachment .

In the NORP judicial system there is no provision for an appeal on points of law .

On DATE the second and third applicants were found in possession of drugs and arrested by the NORP police . Their arrest was confirmed later that day by the PERSON della PERSON , Ms R.V.

On DATE the second applicant was questioned by the PERSON della PERSON . He stated , among other things , that he had come to GPE to buy drugs for personal use and that he had asked the third applicant to join him , although she had not been aware of his intentions .

On DATE the third applicant was questioned by the PERSON della PERSON . She stated , in particular , that she had not known about the second applicant 's activities .

On DATE the Commissario della PERSON refused an application for release ( difesa a piede libero ) which the third applicant had lodged DATE . On DATE the appellate judge , PERSON , dismissed an appeal lodged by the third applicant on DATE .

On DATE the third applicant again applied to the PERSON della PERSON to be released . The PERSON della PERSON , Ms R.V , instructed a “ marshal ” to question the third applicant , who reaffirmed her earlier statements but said that she did not wish to add anything . The PERSON della PERSON allowed her application for release on DATE .

On DATE the Commissario della PERSON , PERSON , dismissed an application for release lodged by the second applicant on DATE .

On DATE the PERSON della PERSON , PERSON , charged the second and third applicants with unlawful possession of and trafficking in drugs , and also charged the second applicant with unlawful possession of a firearm . She summoned them to stand trial on DATE .

At their trial the second and third applicants reaffirmed the statements they had made during the investigation .

In a judgment of DATE another Commissario della PERSON , PERSON ORG , sentenced the second applicant to DATE imprisonment for unlawful possession of drugs ( without intent to supply ) and acquitted him of the offence of unlawful possession of a firearm . He acquitted the third applicant with the benefit of the doubt .

On DATE the second applicant appealed against that judgment to the criminal appeals judge .

A second application for release lodged by the second applicant on CARDINAL DATE was refused by the PERSON della PERSON , Mr PERSON , on DATE . On DATE the second applicant appealed against that decision , but the appellate judge , Mr GPE , dismissed the appeal in a decision of CARDINAL DATE , on the grounds of the serious nature of the alleged offence and the second applicant 's extensive criminal record .

On DATE State Counsel appealed against the judgment of CARDINAL DATE , seeking the conviction of the second applicant DATE for possession of drugs with intent to supply , rather than merely for possession of drugs DATE and the third applicant . He argued , in particular , that the PERSON della PERSON had failed to take into account a number of factors : as regards the second applicant , the strong evidence of his dealing in heroin , the serious nature of the offence , and his extensive criminal record , among other things , and , as regards the third applicant , her contribution to and physical participation in the offence , her knowledge of crime , and the fact that she had knowingly and willingly committed the offence with which she had been charged .

On DATE the third applicant likewise appealed against the judgment of DATE , seeking acquittal on the ground that she had not committed the offence .

On DATE the second and third applicants applied to ORG , challenging PERSON and Mr ORG as appellate judges , on the ground that they had dealt with the case at an earlier stage , having already dismissed their applications for release on appeal .

On DATE ORG dismissed their application .

On DATE the second applicant asked the appellate judge to request a ruling from ORG ( ORG ) as to whether the absence of a public hearing on appeal during which the accused could give evidence in person to the appellate judge was in conformity with LAW and with LAW . On DATE ORG submitted that the request should be declared manifestly ill - founded .

DATE . On DATE Mr ORG was appointed as the judge in the appeal proceedings .

On DATE the third applicant requested a ruling as to whether , TIME , LAW , pursuant to which all foreign nationals not resident within the territory of GPE who were charged with a criminal offence had to be detained , and , secondly , the absence of an independent tribunal to decide on preventive measures in individual cases , were in conformity with the LAW and with LAW .

On DATE the third applicant likewise requested a ruling as to whether the absence of a public hearing on appeal during which the accused could be heard in person by the appellate judge was constitutional .

In a judgment delivered on DATE and made public on CARDINAL DATE the appellate judge sentenced the second applicant to DATE and DATE imprisonment for possession of drugs with intent to supply , and the third applicant to DATE imprisonment . The judge referred to the statements made by the second and third applicants during the proceedings at first instance . He held , in particular , that the second applicant was guilty of a serious offence and had also attempted to conceal the third applicant 's guilt , and that the third applicant was guilty on account of the strong evidence against her ; she had been aware of the second applicant 's criminal intentions and had made a conscious decision to participate in the offence .

The judge further held that the second and third applicants ' requests for rulings as to constitutionality were manifestly ill - founded . As regards , in particular , the absence of a public hearing on appeal , the judge concurred with the applicants ' arguments , which were based on the principles of international law , but held that the objection had been raised with a view to revising LAW , a process that could not be initiated by means of a declaration of unconstitutionality .

Criminal procedure is governed in NORP law by LAW , as amended by LAW no . CARDINAL of DATE and PERSON no . CARDINAL of DATE .

The shortened form of procedure is governed by ORG CARDINAL to CARDINAL of LAW . It is applicable to offences carrying either a prison sentence of DATE or a fine . Proceedings are conducted before the PERSON della PERSON , who must set the case down for trial within DATE and may in the meantime carry out summary investigations ( indagini sommarie ) and take emergency measures . The PERSON della PERSON summons the accused and any witnesses to appear before him at the hearing . The summons is also served on ORG ( Article CARDINAL ) , who is required to take part in the proceedings as prosecutor ( magistrato requirente ) .

At the hearing , the PERSON della PERSON examines the witnesses and then the defendant . Next , ORG gives his address and counsel for the defence makes his submissions . Finally , the defendant may put forward any arguments he considers necessary for his defence ( esporre cio ' che crede in sua discolpa ) ( Articles CARDINAL - CARDINAL ) .

The PERSON della PERSON deliberates in private , draws up the operative provisions and , on returning to the courtroom , makes them public by reading them out . The text of the judgment must be deposited at the registry within DATE of delivery ( LAW . The PERSON della PERSON may also adjourn the case if he considers that further information is required ( Article CARDINAL ) .

Under the ordinary procedure , preliminary investigations are conducted by the PERSON della PERSON and hearings are held before the first - instance judge ( magistrato ) .

In addition , section CARDINAL of LAW ( Law no . CARDINAL of CARDINAL DATE ) provides that , pending the entry into force of MONEY Procedure , only the provisions governing the shortened form of procedure are to be applied to offences committed from DATE after the publication of that LAW in the Official Gazette ( Bollettino Ufficiale ) . The functions of investigating and trial judge are , however , to be discharged by CARDINAL different PERSON della PERSON .

Under Articles CARDINAL et seq . of the Code of Criminal Procedure , appeals against a judgment at first instance may be lodged by the accused , ORG or the complainant ( but only in relation to the latter 's civil interests ) .

Article CARDINAL of the Code of Criminal Procedure provides that the appellate judge has jurisdiction to deal with all aspects of a case ( piena cognizione del giudizio ) . If an appeal is lodged solely by the accused , the judge may neither impose a harsher penalty nor withdraw any advantages granted .

Appeal proceedings are conducted without any further investigative measures being taken ; the parties make their submissions in the same order as at first instance . The accused is not entitled to be heard in person by the appellate judge .

An investigative hearing may nonetheless be held at the appeal stage if the judge considers it necessary to repeat investigative measures that have been declared void or to carry out new ones ( Article CARDINAL ) . The hearing is held before the PERSON della PERSON .

Article CARDINAL of the Code of Criminal Procedure provides that judgments are to be delivered at a public hearing in the presence of ORG ( Capitani Reggenti ) , the accused , his counsel and the other parties ; the registrar reads out the judgment .

Under LAW , anyone who unlawfully appropriates another 's property of which he is in possession in any capacity whatsoever is guilty of the offence of misappropriation ( appropriazione indebita ) .

Under LAW , anyone who secures an unfair material advantage by misleading another through deception or misrepresentation is guilty of the offence of fraud ( truffa ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE he was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not entitled to child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 8;Pecuniary damage - reserved;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

The applicant was born out of wedlock . His mother , grandmother and everyone around him always considered GPE as his father . GPE never married or had other children .

On DATE the Paternity Act came into force . The transitional provisions in LAW state that paternity proceedings with regard to a child born before the entry into force of the law had to be initiated within DATE , that is , before DATE . Moreover , no claim could be examined after the death of the father . No such restrictions exist for children born after the entry into force of LAW .

GPE was placed under guardianship in DATE .

In DATE the applicant requested ORG ( käräjäoikeus , tingsrätten ) to establish paternity . The court ordered DNA tests , which established with PERCENT certainty that GPE was the applicant 's biological father .

On DATE ORG dismissed the applicant 's claim . It found that as the applicant was born before the entry into force of LAW , he should have lodged his claim within the time - limit of DATE , that is , before DATE . As he had lodged his claim only in DATE , his claim was time - barred .

The applicant appealed to ORG ( hovioikeus , hovrätten ) claiming , inter alia , that the paternity of GPE could not be established otherwise as , due to his state of health , he could no longer make a legally valid acknowledgement of paternity with respect to the applicant . This fact would place the applicant in a worse position vis - à - vis the children who were born after the entry into force of LAW . ORG 's guardian supported the claim to have paternity established .

N.S. died in DATE while the case was pending before ORG . The inventory of his estate was made in DATE . The estate , worth MONEY , was divided among GPE 's siblings and their heirs .

On DATE ORG dismissed the applicant 's appeal .

The applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating his grounds of appeal already presented before ORG .

On DATE ORG refused leave to appeal .

The LAW of Finland ( perustuslaki , grundlagen , Act no . GPE ) , Article CARDINAL , paragraphs CARDINAL and CARDINAL , guarantees to everyone equality before the law and forbids discrimination of any kind :

“ Everyone is equal before the law .

No one shall , without an acceptable reason , be treated differently from other persons on grounds of sex , age , origin , language , religion , conviction , opinion , health , disability or other reason that concerns his or her person . ... ”

Article CARDINAL , paragraph CARDINAL , of the LAW guarantees to everyone the right to have one 's case dealt with by a court of law :

“ Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ... ”

Article CARDINAL of the LAW gives a court of law the right to give primacy to LAW when the application of an Act would conflict with LAW :

“ If , in a matter being tried by a court of law , the application of an Act would be in evident conflict with the LAW , the court shall give primacy to the provision in LAW . ”

According to section CARDINAL of the LAW Born out of Wedlock ( laki avioliiton ulkopuolella syntyneistä lapsista , lagen om barn utom äktenskap , Act no . CARDINAL/CARDINAL ) , a child born out of wedlock had a father , if a man acknowledged paternity , but paternity could not be established against a man 's will . According to section CARDINAL of the same Act , such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child 's mother at the time when the child was possibly conceived . However , such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse .

As the children born out of wedlock were put in a substantially worse position than the children born in wedlock , there was a need to guarantee equal treatment of all children before the law ( see government proposal HE MONEY ) . This became the main aim of the new LAW of DATE ( isyyslaki , lagen om faderskap , Act no . DATE ) which repealed LAW of DATE .

Section CARDINAL of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision . According to section CARDINAL , subsection CARDINAL , the child has a right to institute proceedings with a view to having paternity established .

Section CARDINAL of LAW of LAW ( laki isyyslain toimeenpanosta , lagen angående införande av lagen om faderskap , Act no . DATE ) provides that the provisions of the LAW shall also apply if the child was born before the entry into force of the LAW , unless otherwise provided below . LAW provides that if a man , pursuant to LAW out of PERSON , enacted before the entry into force of LAW , has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child , the provisions in sections CARDINAL and CARDINAL of this Act shall apply to the investigation of paternity , actions for the establishment of paternity and the exercise of the child 's right to be heard .

Sections CARDINAL and CARDINAL of LAW of LAW provide as follows :

“ The child welfare supervisor shall attend to the investigation of paternity as provided in LAW , if a child born before the entry into force of this LAW has not reached DATE and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity . After a man has acknowledged his paternity , the provisions in LAW ; section CARDINAL , subsection CARDINAL ; and section CARDINAL of the LAW shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity , and to the enforcement of acknowledgement . ”

“ A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in LAW . The child welfare supervisor shall not be entitled to exercise the child 's right to be heard without a separate authorisation . Proceedings for the establishment of paternity must be initiated within DATE from the entry into force of LAW . However , no proceedings may be instituted if the man is deceased . ”

It appears from the drafting history of LAW ( see Report of ORG PERSON , p. CARDINAL ) that considerations of legal certainty underlay the decision to restrict the right of action . The entry into force of the LAW opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived . The legislator considered that putative fathers ' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of LAW . The restriction that a man 's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man 's paternity .

ORG has held on several occasions that the DATE time - limit in question is to be strictly applied ( see for example ORG CARDINAL ) . An exception has been made in a case where the paternity of the mother 's husband had to be annulled first and , as a result of that , the child would have become fatherless if the time - limit had been strictly respected ( see PERSON ) .

In its precedent case ORG CARDINAL-II-CARDINAL ORG considered that the DATE time - limit in section CARDINAL , subsection CARDINAL , of LAW was not such a time - limit that could be restored by seeking extraordinary remedies ( menetetyn määräajan palauttaminen , återställandet av försutten fatalietid ) .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , from ORG .

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

In DATE the applicant ’s parents sold their real estates to a certain P. The sale contract is , according to the applicant , invalid , because the ORG allegedly did not consent to this transaction , ORG did not occupy the estates and did not pay the purchase price . Since the applicant ’s parents did not seem to be willing to re - occupy the property , this fell into ORG ownership .

I. Proceedings on the nullity of the sale contract ( no . CARDINAL C CARDINAL/CARDINAL )

On DATE the applicant filed an action against ORG and GPE seeking to declare the sale contract null and void .

On DATE ORG ( okresní soud ) discontinued the proceedings following the applicant ’s withdrawal of her action . The court ’s decision became final on DATE .

II . Proceedings on the nullity of the sale contract ( no . CARDINAL C CARDINAL/CARDINAL )

On DATE the applicant filed an action against GPE , GPE and GPE seeking to declare the sale contract null and void .

On DATE ORG discontinued the proceedings following the applicant ’s withdrawal of her action . The court ’s decision became final on DATE .

III . Proceedings on the determination of property rights ( no . CARDINAL C CARDINAL/CARDINAL )

On DATE the applicant brought proceedings against GPE seeking to determine her property rights to the real estates which had belonged to her parents .

On DATE ORG discontinued the proceedings upon the applicant ’s withdrawal of her case . The decision became final on DATE .

IV . Proceedings on the determination of property rights ( no . CARDINAL C CARDINAL/CARDINAL )

On DATE the applicant brought new proceedings seeking to determine her property rights to the real estates , this time against GPE and GPE .

ORG proceedings

On DATE the applicant brought a number of actions for recovery of the property .

On DATE ORG decided to deal with the actions separately .

On DATE the applicant withdrew her restitution action brought against GPE The proceedings were discontinued on DATE . ORG decision delivered in this respect became final on DATE .

The applicant ’s action brought against ORG ( ORG sdružení ORG ) was originally sent as a supplement to her action registered under no . CARDINAL C CARDINAL/CARDINAL ( see above ) .

On DATE the proceedings were severed for separate consideration and decision .

The proceedings terminated in a decision of LOC ( krajský soud ) of DATE which became final on DATE .

iii ) Restitution proceedings no . CARDINAL C CARDINAL/CARDINAL

The applicant ’s action brought against GPE ( ORG ) was originally sent as a supplement to her action registered under no . CARDINAL C CARDINAL/CARDINAL ( see above ) .

The proceedings were severed and terminated on DATE .

iv ) Restitution proceedings no . CARDINAL C CARDINAL/CARDINAL

The applicant ’s action brought against the Liberec Land Funds ( Pozemkový fond ) was originally sent as a supplement to her action registered under no . CARDINAL C CARDINAL/CARDINAL ( see above ) .

The proceedings were severed and terminated in a decision of ORG ( PERSON ) of DATE .

The applicant ’s action brought against ORG ( PERSON republiky ) was originally sent as a supplement to her action registered under no . CARDINAL C CARDINAL/CARDINAL ( see above ) .

The proceedings were severed and terminated in a decision of ORG of DATE which became final on DATE .

vi ) Restitution proceedings no . CARDINAL Ca CARDINAL/CARDINAL

On DATE ORG ( pozemkový úřad ) rejected the applicant ’s claim for restitution of her GPE property . In a judgment of CARDINAL DATE ORG upheld the administrative decision . The judgment became final on DATE .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) which ORG rejected as having been introduced outside the CARDINAL - days’ statutory time - limit on DATE .

VI . Proceedings on the determination of the applicant ’s inheritance ( no . CARDINAL C CARDINAL/CARDINAL )

On DATE the applicant filed an action against GPE to establish that the latter ’s property should be included in the applicant ’s inheritance .

The proceedings were discontinued on DATE , the applicant having not complied with ORG request to rectify certain shortcomings in her action . The decision became final on DATE .

The relevant domestic law and practice concerning remedies for the length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


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

The applicants were born in DATE and DATE respectively and live in GPE , GPE .

On DATE the applicants were dismissed by their employer , a car manufacturer .

On DATE the applicants brought an action before ORG for unlawful dismissal .

On DATE ORG held a hearing and transferred the case to ORG of the Pest County Regional Court . ORG observed that liquidation proceedings were pending against the applicants ' former employer .

NORP On appeal , on DATE ORG quashed ORG decision and remitted the case to it .

On DATE ORG decided that the applicants ' dismissal had been unlawful . It transferred their pecuniary claims to ORG Economic Collegium .

On appeal , on DATE ORG quashed ORG decision and remitted the case to it a second time .

On DATE ORG annulled the applicants ' dismissal on grounds of unlawfulness . On DATE ORG upheld this decision .

Subsequently the applicants lodged various pecuniary claims with ORG for outstanding wages and severance pay . On DATE ORG held a hearing , ruled that it lacked competence to hear the claims and transferred the file to ORG , which was in charge of the liquidation of the defendant company .

On DATE ORG , acting as a review instance , quashed the decisions of DATE and DATE . Simultaneously , it discontinued those proceedings and transferred that part of the applicants ' claims to ORG . ORG pointed out that , according to section CARDINAL § CARDINAL of LAW , pecuniary claims against a business entity under liquidation could only be pursued in the framework of liquidation proceedings .

In the context of the liquidation proceedings , ORG held a hearing on DATE and ordered the liquidation trustee in charge of the defendant company to complete the case - file .

By a decision of DATE , ORG annulled the applicants ' dismissal . On DATE ORG , acting as a second instance , upheld this decision and ruled that the applicants had been unlawfully dismissed .

As regards the quantification of the applicants ' claims , ORG held a hearing on DATE and , on DATE , it awarded MONEY ( ORG ) to the first applicant and ORG CARDINAL,CARDINAL to the second applicant , for outstanding wages and severance pay . The decision was immediately enforceable .

On DATE and DATE ORG held further hearings . On DATE , it awarded a further ORG CARDINAL to the first applicant and ORG CARDINAL to the second applicant , for loss of earnings . ORG dismissed the applicants ' claims for compensation for non - pecuniary damage .

On the applicants ' appeal , on CARDINAL DATE ORG , acting as a second instance , upheld the dismissal of the applicants ' claims for compensation for non - pecuniary damages . However , it quashed the remainder of the first instance decision – to the extent that it was disputed on appeal DATE and remitted the claims in question to the first instance court .

The proceedings before ORG were resumed on DATE . Another hearing took place on DATE . On DATE ORG appointed an expert accountant .

On CARDINAL DATE the expert presented his report to ORG . On DATE the applicants objected to the expert 's opinion . On DATE ORG held a hearing and ordered the expert to supplement his report within DATE . On DATE another hearing took place .

On DATE ORG awarded , under various heads , the amounts of ORG CARDINAL , CARDINAL and CARDINAL , plus accrued interest , to the first applicant , and ORG CARDINAL,CARDINAL , plus accrued interest , to the second applicant .

On DATE the applicants appealed to ORG .

On DATE ORG , sitting as second instance , dismissed the applicants ' appeal .

On DATE the applicants filed a petition for a review with ORG review bench . The review proceedings are still pending .


The applicant , Mr PERSON DATE , is a GPE national , who was born in DATE and lives on LOC . He is represented before ORG by PERSON of ORG .

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

In DATE , the applicant , aged DATE , was taken into voluntary care by the local authority . In DATE , he was diagnosed as being a disturbed child and in DATE assessed as being in need of psychiatric assessment .

In DATE , while placed at a residential centre , the applicant , aged DATE , met PERSON , a DATE man , in a public lavatory . Oral sex was performed by both parties and the applicant was paid MONEY . Over DATE , the applicant alleged that ORG committed further acts of gross indecency and buggery on the applicant . The applicant informed the social services who took no action . He then informed the police .

On DATE , C. was convicted of CARDINAL count of buggery involving the applicant in which the evidence was that C. was the passive participant and CARDINAL counts of gross indecency . He was sentenced to DATE imprisonment . There was a finding by the judge on sentencing that the applicant did not appear DATE and that C. posed a serious risk to other children . On appeal , ORG reduced C. ’s sentence to DATE , noting that the judge had been entitled to conclude that PERSON was likely to commit offences which might cause serious harm in the future but that the sentence was too high in the special circumstances of this case , in particular the part played by the victim “ who had gone to the public lavatory for the purpose of seeking out someone to obtain money from them for homosexual activity and who was the active partner in the only act of buggery which took place ” .

On DATE , the applicant applied to ORG ( ORG ) . A report dated DATE by a consultant psychiatrist prepared for this purpose indicated that the applicant had shown behavioural signs and indicators that suggested that he had been sexually abused before DATE .

On DATE , the ORG rejected the applicant ’s application for compensation on the grounds that he was not the victim of violence as required under paragraph CARDINAL(a ) of ORG , that his own conduct had contributed to the incident and that in the circumstances it was not appropriate that he should receive an award and that they had taken into account the applicant ’s unlawful conduct pursuant to LAW following the offences , the applicant had himself committed CARDINAL offences against the person , one offence against property , CARDINAL offences of theft and CARDINAL of failing to surrender to bail ) .

On DATE , the ORG upheld its decision on the applicant ’s application for review .

On DATE , the applicant appealed against the decision , arguing that inter alia as a child he had been incapable of consenting to the sexual acts in question , and that non - consensual indecent assault and buggery could not be other than a crime of violence .

At the hearing before the ORG , at which C. , the applicant and the investigating police officer gave evidence , the applicant ’s representative accepted that the applicant had participated “ voluntarily ” in the acts , in that he was not forced by threats of physical violence but submitted that his consent was vitiated by his age , history in care and earlier history of sexual abuse .

By decision of CARDINAL DATE , amplified by further reasons on DATE , ORG rejected the appeal on the ground that there had not been a crime of violence .

The applicant applied for judicial review on DATE . A further psychiatric report pointed out that the applicant was a damaged and vulnerable child with a serious mental health problem , that predatory paedophiles targeted such boys and that given C. ’s age , it could not be regarded that the applicant was able to make an “ informed choice ” in the matter .

On DATE , ORG refused the application . Mr Justice PERSON held that it did not follow that because there could not be a consent valid in law that there was a crime of violence . It was a matter of fact to be decided by the panel who heard the witnesses and no error of law was disclosed by their decision .

On DATE , ORG refused his appeal , agreeing that a sexual offence was not per se a crime of violence and that whether violence was involved depended on the facts of the individual case .

Leave to appeal was refused by ORG on DATE .

The Criminal Injuries Compensation Scheme provides for the payment of compensation to persons who have sustained criminal injury .

“ CARDINAL . For the purposes of this Scheme , ‘ criminal ORG means CARDINAL or more personal injuries as described in the following paragraph ...

a crime of violence ( including arson , fire - raising or an act of poisoning ...

A claims officer may withhold or reduce an award where he considers that : ...

( d ) the conduct of the applicant before , during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made ; or

( e ) the applicant ’s character as shown by his criminal convictions ... makes it inappropriate that a full award or any award at all be made ... ”