Preliminary objection joined to merits and rejected (victim);Violation of Art. 4;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

She arrived in GPE on DATE , aged DATE and DATE , with PERSON , a NORP national of NORP origin . She had a passport and a tourist visa .

It had been agreed that she would work at PERSON home until the cost of her air ticket had been reimbursed and that PERSON would attend to her immigration status and find her a place at school . In reality , the applicant became an unpaid housemaid for PERSON and PERSON and her passport was taken from her .

NORP In DATE , PERSON lent ” the applicant to PERSON and PERSON , who had CARDINAL small children , so that she could assist the pregnant PERSON with household work . PERSON also had another daughter from a first marriage who stayed with her during DATE . The applicant lived at Mr and PERSON home , her father having given his consent .

On her return from the maternity hospital , PERSON told the applicant that she had decided to keep her .

The applicant subsequently became a general housemaid for PERSON and PERSON She worked DATE , without a day off , and was occasionally and exceptionally authorised to go out on DATE to attend mass . Her DATE began at TIME , when she had to get up and prepare breakfast , dress the children , take them to nursery school or their recreational activities , look after the baby , do the housework and wash and iron clothes .

In TIME she prepared dinner , looked after the older children , did the washing up and went to bed at TIME In addition , she had to clean a studio flat , in the same building , which Mr B. had made into an office .

The applicant slept on a mattress on the floor in the baby 's room ; she had to look after him if he woke up .

She was never paid , except by PERSON mother , who gave her CARDINAL or MONEY ( ORG ) notes .

NORP In DATE the applicant was able to escape with the help of a NORP national who took her in for DATE . She looked after the latter 's CARDINAL children , was given appropriate accommodation and food , and received FRF CARDINAL per month .

Subsequently , in obedience to her paternal uncle , who had been in contact with Mr and PERSON , she returned to the couple , who had undertaken to put her immigration status in order . However , the situation remained unchanged : the applicant continued to carry out household tasks and look after the couple 's children . She slept on a mattress on the floor of the children 's bedroom , then on a folding bed , and wore second - hand clothes . Her immigration status had still not been regularised , she was not paid and did not attend school .

On an unspecified date , the applicant managed to recover her passport , which she entrusted to an acquaintance of PERSON and PERSON also confided in a neighbour , who alerted ORG ( Comité contre l'esclavage moderne ) , which in turn filed a complaint with the prosecutor 's office concerning the applicant 's case .

On DATE the police raided Mr and PERSON home .

The couple were prosecuted on charges of having obtained from DATE the performance of services without payment or in exchange for payment that was manifestly disproportionate to the work carried out , by taking advantage of that person 's vulnerability or state of dependence ; with having subjected an individual to working and living conditions that were incompatible with human dignity by taking advantage of her vulnerability or state of dependence ; and with having employed and maintained in their service an alien who was not in possession of a work permit .

On DATE the GPE tribunal de grande instance delivered its judgment .

It found that the applicant 's vulnerability and dependence in her relationship with Mr and PERSON was proved by the fact that she was unlawfully resident in GPE , was aware of that fact and feared arrest , that PERSON and PERSON nurtured that fear while promising to secure her leave to remain – a claim that was confirmed by her uncle and her father – and by the fact that she had no resources , no friends and almost no family to help her .

As to the failure to provide any or adequate remuneration , the court noted that it had been established that the young woman had remained with PERSON and PERSON for DATE , was not a member of their family , could not be regarded as a foreign au pair who had to be registered and given free time in order to improve her language skills , was kept busy DATE with housework , did not go to school and was not training for a profession and that , had she not been in their service , PERSON and PERSON would have been obliged to employ another person , given the amount of work created by the presence of CARDINAL children in the home .

It therefore concluded that the offence laid down in LAW of LAW ( see paragraph DATE below ) was made out .

NORP The court also found it established that PERSON and PERSON were employing an alien who was not in possession of a work permit .

The court noted that the parties had submitted differing accounts concerning the allegations that the working and living conditions were incompatible with human dignity .

It found that the applicant clearly worked TIME and did not enjoy a day off as such , although she was given permission to attend mass . It noted that a person who remained at home with CARDINAL children necessarily began his or her work TIME and finished TIME , but had moments of respite during DATE ; however , the scale of PERSON involvement in this work had not been established .

The court concluded that , while it seemed established that employment regulations had not been observed in respect of working hours and rest time , this did not suffice to consider that the working conditions were incompatible with human dignity , which would have implied , for example , a furious pace , frequent insults and harassment , the need for particular physical strength that was disproportionate to the employee 's constitution and having to work in unhealthy LOC , which had not been the case in this instance .

As to the applicant 's accommodation , the court noted that PERSON and PERSON , who were well - off , had not seen fit to set aside an area for the applicant 's personal use and that , although this situation was regrettable and indicated their lack of consideration for her , her living conditions could not be held to infringe human dignity , given that a number of people , especially in the GPE region , did not have their own rooms . Accommodation which infringed human dignity implied an unhygienic , unheated room , with no possibility of looking after one 's basic hygiene , or LOC which were so far below the applicable norms that occupation would be dangerous .

Accordingly , the court found that the offence laid down in Article CARDINAL of LAW ( see paragraph DATE below ) had not been made out .

Nonetheless , the judges concluded that the offences of which PERSON and PERSON were convicted were incontestably serious and were to be severely punished , particularly as the couple considered that they had treated the applicant quite properly .

Accordingly , they sentenced them to DATE imprisonment each , of which DATE were suspended , imposed a fine of ORG CARDINAL,CARDINAL and ordered them to pay , jointly and severally , FRF CARDINAL,CARDINAL to the applicant in damages . In addition , PERSON and PERSON forfeited their civic , civil and family rights for DATE .

Mr and PERSON appealed against this decision .

On DATE ORG gave an interlocutory judgment ordering further investigations .

On DATE it delivered its judgment on the merits .

ORG found that the additional investigation had made it possible to confirm that the applicant had arrived in GPE aged DATE and DATE , in possession of a passport and a DATE tourist visa . During the period that she lived with PERSON , from DATE , she had been employed by the latter , firstly , to do housework , cook and look after her child , and , secondly , in the latter 's clothing business , where she also did the cleaning and returned to the rails clothes that customers had tried on , without remuneration .

Around DATE the applicant had spent DATE at Mr and PERSON home , shortly before PERSON gave birth to her fourth child . She travelled by underground to PERSON and PERSON home DATE and returned to PERSON house in TIME to sleep .

In DATE she was “ lent ” to PERSON and PERSON , and stayed in their home until DATE , when she left for PERSON home , where she was remunerated for her work and given accommodation . She had returned to PERSON and PERSON in DATE on her uncle 's advice .

ORG noted that it had been established that the applicant was an illegal immigrant and had not received any real remuneration .

Further , it noted that it appeared that the applicant was proficient in NORP , which she had learnt in her own country .

In addition , she had learnt to find her way around GPE in order , initially , to go from PERSON home to the latter 's business LOC , and later to travel to LOC , where PERSON lived , and finally to return to Mr and PERSON home .

She had a degree of independence , since she took the children to the locations where their educational and sports activities were held , and subsequently collected them . She was also able to attend a NORP service in a church near PERSON and PERSON home . In addition , she left the house to go shopping , since it was on one of those occasions that she had met PERSON and agreed with her to go to the latter 's home .

The Court of Appeal further noted that the applicant had had an opportunity to contact her uncle by telephone outside Mr and PERSON home and to pay for calls from a telephone box . She had met her father and her uncle and had never complained about her situation .

Furthermore , PERSON mother confirmed that the applicant spoke good LANGUAGE and that she was in the habit of giving her small sums of money for family celebrations . She had frequently had the applicant and her grandchildren to stay in her country house and had never heard her complain of ill - treatment or contempt , although she had been free to express her views .

The applicant 's uncle stated that she was free , among other things , to leave the house and call him from a telephone box , that she was appropriately dressed , in good health and always had some money , which could not have come from anyone but PERSON and PERSON He had offered to give her money , but she had never asked for any . He added that he had raised this question with PERSON , who had told him that a certain amount was set aside DATE in order to build up a nest egg for the applicant , which would be given to her when she left , and that the girl was aware of this arrangement .

He stated that , on the basis of what he had been able to observe and conclude from his conversations with the applicant and with PERSON , the girl had not been kept as a slave in the home in which she lived .

ORG ruled that the additional investigations and hearings had shown that , while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out ( although the defendants ' intention to create a nest egg that would be handed over to her on departure had not been seriously disputed ) , in contrast , the existence of working or living conditions that were incompatible with human dignity had not been established .

It also considered that it had not been established that the applicant was in a state of vulnerability or dependence since , by taking advantage of her ability to come and go at will , contacting her family at any time , leaving PERSON and PERSON home for a considerable period and returning without coercion , the girl had , in spite of her youth , shown an undeniable form of independence , and vulnerability could not be established merely on the basis that she was an alien .

Accordingly , ORG acquitted the defendants on all the charges against them .

The applicant appealed on points of law against that judgment . No appeal was lodged by ORG .

In a letter of DATE to ORG , the public prosecutor attached to ORG wrote :

“ In your letter of DATE you asked me to inform you whether the public prosecution office under my direction has lodged an appeal on points of law against the judgment delivered on DATE by ORG of the court which heard the appeal in the criminal proceedings against PERSON and PERSON

ORG decision to acquit the defendants of the CARDINAL offences of insufficiently remunerating a person in a vulnerable position and subjecting a person in a vulnerable or dependent state to demeaning working conditions was based on an assessment of elements of pure fact .

Since ORG considers that such assessments come within the unfettered discretion of the trial courts , an appeal on points of law could not be effectively argued .

That is why I have not made use of that remedy . ”

ORG delivered its judgment on DATE . It ruled as follows :

“ All judgments must contain reasons justifying the decision reached ; giving inadequate or contradictory reasons is tantamount to giving no reasons .

After an investigation into the situation of [ the applicant ] , a young NORP national whom they had employed and lodged in their home since she was DATE , PERSON and PERSON were directly summoned before the criminal court for , firstly , taking advantage of a person 's vulnerability or dependent state to obtain services without payment or any adequate payment , contrary to LAW and , secondly , for subjecting that person to working or living conditions incompatible with human dignity , contrary to LAW .

In acquitting the defendants of the CARDINAL above - mentioned offences and dismissing the civil party 's claims in connection therewith , the appeal court , having noted that [ the applicant ] was a foreign minor , without a residence or work permit and without resources , nonetheless stated that her state of vulnerability and dependence , a common constituent element of the alleged offences , had not been established , given that the girl enjoyed a certain freedom of movement and that vulnerability could not be established merely on the basis that she was an alien .

Furthermore , in finding that the offence defined in LAW of LAW had not been made out , the court added that ' it does appear that the applicant has not been paid or that the payment was clearly disproportionate to the amount of work carried out ( although the defendants ' intention to build up a nest egg that would be handed over to her on departure has not been seriously disputed ) ' .

Finally , in acquitting the defendants of the offence set out in LAW , the courts found that subjection to working or living conditions incompatible with human dignity ' had not been established ' .

However , in ruling in this way , with reasons that were inadequate and ineffective with regard to the victim 's state of vulnerability and dependence and contradictory with regard to her remuneration , and without specifying the factual elements which established that her working conditions were compatible with human dignity , ORG failed to draw from its findings the legal conclusions that were required in the light of LAW of LAW and did not justify its decision in the light of LAW of that Code .

The judgment must therefore be quashed .

For these reasons ,

[ ORG ] quashes the above - mentioned judgment of ORG dated DATE but only in respect of the provisions dismissing the civil party 's requests for compensation in respect of the offences provided for in Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW , all other provisions being expressly maintained , and instructs that the case be remitted , in accordance with the law , for a rehearing of the matters in respect of which this appeal has been allowed . ... ”

ORG , to which the case was subsequently referred , delivered its judgment on DATE . It ruled , inter alia , as follows :

“ As was correctly noted at first instance , the evidence shows that [ the applicant ] , an alien who arrived in GPE at DATE , worked for DATE for PERSON and PERSON , carrying out household tasks and looking after their DATE , and subsequently CARDINAL , children for DATE a week , from TIME , without receiving any remuneration whatsoever ; contrary to the defendants ' claims , she was not considered a family friend , since she was obliged to follow PERSON instructions regarding her working hours and the work to be done , and was not free to come and go as she pleased .

In addition , there is no evidence to show that a nest egg has been built up for her , since the list of payments allegedly made by the defendants is in PERSON name .

It was only at the hearing before the tribunal de grande instance that the defendants gave the victim the sum of MONEY .

Finally , far from showing that [ the applicant ] was happy to return to PERSON and PERSON home , the conditions in which she did so after an absence of DATE are , on the contrary , indicative of the pressure she had been subjected to by her family and of her state of resignation and emotional disarray .

With regard to the victim 's state of dependence and vulnerability during the period under examination , it should be noted that this young girl was a minor , of NORP nationality , an illegal immigrant in GPE , without a passport , more often than not without money , and that she was able to move about only under PERSON supervision for the purposes of the children 's educational and sports activities .

Accordingly , it was on appropriate grounds , to which this court subscribes , that the court at first instance found that the constituent elements of the offence punishable under LAW of LAW were established in respect of the defendants .

With regard to the offence of subjecting a person in a vulnerable or dependent position to working or living conditions that are incompatible with human dignity :

As the court of first instance correctly noted , carrying out household tasks and looking after children throughout DATE could not by themselves constitute working conditions incompatible with human dignity , this being the lot of many mothers ; in addition , the civil party 's allegations of humiliating treatment or harassment have not been proved .

Equally , the fact that [ the applicant ] did not have an area reserved for her personal use does not mean that the accommodation was incompatible with human dignity , given that PERSON and PERSON own children shared the same room , which was in no way unhygienic .

Accordingly , the constituent elements of this second offence have not been established in respect of PERSON and PERSON

Independently of the sums due to [ the applicant ] in wages and the payment of MONEY in a belated gesture of partial remuneration , PERSON , whose intellectual and cultural level was such as to enable him to grasp fully the unlawfulness of his conduct , but who allowed the situation to continue , probably through cowardice , has , together with PERSON , caused [ the applicant ] considerable psychological trauma , for which should be awarded MONEY in compensation , as assessed by the court of first instance . ”

On DATE the GPE industrial tribunal delivered judgment following an application submitted by the applicant . It awarded her MONEY ( ORG ) in respect of arrears of salary , LAW in respect of the notice period and ORG CARDINAL in respect of holiday leave .

The Criminal Code as worded at the material time

“ It shall be an offence punishable by DATE imprisonment and a fine of MONEY to obtain from an individual the performance of services without payment or in exchange for payment that is manifestly disproportionate to the amount of work carried out , by taking advantage of that person 's vulnerability or state of dependence . ”

“ It shall be an offence punishable by DATE imprisonment and a fine of MONEY to subject an individual to working or living conditions which are incompatible with human dignity by taking advantage of that individual 's vulnerability or state of dependence . ”

LAW as amended by the LAW DATE

“ It shall be an offence punishable by DATE imprisonment and a fine of CARDINAL to obtain from an individual whose vulnerability or state of dependence is apparent or of which the offender is aware , the performance of services without payment or in exchange for payment which is manifestly disproportionate to the amount of work carried out . ”

“ It shall be an offence punishable by DATE imprisonment and a fine of MONEY to subject an individual whose vulnerability or state of dependence is apparent or of which the offender is aware to working or living conditions which are incompatible with human dignity . ”

“ The offences set out in Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL shall be punishable by DATE imprisonment and a fine of CARDINAL if they are committed against CARDINAL person .

If they are committed against a minor , they shall be punishable by DATE imprisonment and a fine of QUANTITY .

If they are committed against CARDINAL person , including CARDINAL or more minors , they shall be punishable by DATE imprisonment and a fine of QUANTITY . ”

Information report by ORG joint fact - finding taskforce on the various forms of modern slavery , tabled on DATE ( extracts )

“ The situation of minors , who are more vulnerable and ought to receive special protection on account of their age , strikes the taskforce as highly worrying : ... , children doomed to work as domestic servants or in illegal workshops ... represent easy prey for traffickers of all kinds ...

What solutions can be proposed in view of the growth in these forms of slavery ? Some already exist , of course . We have available a not inconsiderable arsenal of punitive measures . However , these are not always used in full and are proving an insufficient deterrent when put to the test . The police and the justice system are obtaining only limited results .

The determination of the drafters of the new LAW to produce a text imbued with the concept of human rights is particularly clear from the provisions of Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of the Code , which created new offences making it unlawful to impose working and living conditions that are contrary to human dignity . As demonstrated by the explanatory memorandum to the initial DATE bill , the purpose of those provisions was primarily to combat ' slum landlords ' or other unscrupulous entrepreneurs who shamelessly exploit foreign workers who are in the country illegally .

The concept , found in both Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW , of the abuse of an individual 's vulnerability or state of dependence contains ambiguities that could be prejudicial to their application .

Thus , by failing on the one hand to specify the possible categories of individuals defined as vulnerable and , further , by failing to require that the vulnerability be of a ' particular ' nature , the legislature has conferred on Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL an extremely wide , or even vague , scope , CARDINAL that is likely to cover circumstances of vulnerability or dependence that are ' social or cultural in nature ' .

The current wording of LAW , especially that of LAW , is highly ambiguous , since it requires , on the one hand , that the victim has been subjected to working or living conditions that are incompatible with human dignity and , on the other , that those conditions have been imposed through the ' abuse ' of his or her vulnerability or state of dependency .

It may therefore logically be concluded , as Mr PERSON , deputy public prosecutor at the GPE public prosecutor 's office , stated before the taskforce , that , ' by converse implication ... provided one has not taken advantage of [ an individual 's ] vulnerability , it is alright to undermine human dignity [ ... ] Undermining human dignity ought to be an offence in itself and , possibly , abuse of [ an individual 's ] vulnerability or status as a minor an aggravating factor ' .

That said , and since the law is silent , it is up to the court to determine where the scope of those provisions ends . In this connection , analysis of the case - law reveals differences in evaluation that impede the uniform application of the law throughout GPE , since , as PERSON rightly noted when addressing the taskforce : ' We are in a sort of ephemeral haze in which everything is left to the judge 's assessment . '

Even more surprisingly , on DATE the same court of appeal refused in another case to apply the provisions of Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL in favour of a young woman , a domestic slave , despite the fact that she was a minor at the relevant time . In its judgment , the court noted , inter alia : ' It has not been established that the young girl was in a position of vulnerability or dependence as , by taking advantage of the possibility of coming and going at will , contacting her family at any time , leaving Mr and PERSON home for a considerable period and returning without coercion , she has , in spite of her youth , shown an undeniable form of independence , and vulnerability can not be established merely on the basis that she was an alien . '

It is therefore apparent that , in the absence of legal criteria enabling the courts to determine whether there has been abuse of [ an individual 's ] vulnerability or state of dependence , the provisions of Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW are open to interpretation in different ways , some more restrictive than others .

Whether with regard to actual or potential sentences , the shortcomings of the provisions are clearly visible , in view of the seriousness of the factual elements characteristic of modern slavery .

Bearing in mind , on the one hand , the constitutional status of the values protected by Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL of LAW and , on the other , the seriousness of the offences in such cases , the inconsequential nature of the penalties faced by those guilty of them is surprising , and raises questions about the priorities of the NORP criminal justice system .

The minors whose cases the taskforce has had to examine are minors caught up or at risk of being caught up in slavery , whether for the provision of sex or labour . More often than not they are illegal immigrants . ”

“ In GPE , since its foundation in DATE , ORG ) has taken up the cases of over CARDINAL domestic slavery victims , mostly originating from GPE ( GPE , GPE , GPE ) but also from GPE , GPE , GPE , GPE and the GPE . The majority of victims were women ( PERCENT ) . CARDINAL arrived in GPE before they came of age and most of them suffered physical violence or sexual abuse .

The employers mostly came from GPE or LOC . PERCENT are NORP nationals . PERCENT enjoyed immunity from prosecution , among them CARDINAL diplomat from GPE and CARDINAL NORP diplomats in post abroad . Victims working for diplomats mainly come from GPE , GPE , the GPE and GPE . It has been estimated that there are CARDINAL victims of domestic slavery in GPE . ”

“ CARDINAL . In DATE a new form of slavery has appeared in LOC , namely domestic slavery . It has been established that CARDINAL women are sold DATE in the world .

NORP In this connection the ORG recalls and reaffirms DATE , paragraph CARDINAL of ORG ) , which prohibits slavery and servitude , and also the definition of slavery derived from the opinions and judgments of ORG and ORG .

The ORG also recalls Article CARDINAL of the ORG , which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment , and LAW , which proclaims the right of access to a court in civil and criminal matters , including cases where the employer enjoys immunity from jurisdiction .

It notes that the victims ' passports are systematically confiscated , leaving them in a situation of total vulnerability with regard to their employers , and sometimes in a situation bordering on imprisonment , where they are subjected to physical and/or sexual violence .

Most of the victims of this new form of slavery are in an illegal situation , having been recruited by agencies and having borrowed money to pay for their journey .

The physical and emotional isolation in which the victims find themselves , coupled with fear of the outside world , causes psychological problems which persist after their release and leave them completely disoriented .

It regrets that none of ORG member States expressly make domestic slavery an offence in their criminal codes .

It accordingly recommends that ORG ask the governments of member GPE to :

i. make slavery and trafficking in human beings , and also forced marriage , offences in their criminal codes ;

ii . strengthen border controls and harmonise policies for police cooperation , especially with respect to minors ;

vi . protect the rights of victims of domestic slavery by :

a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds ;

b. taking steps to provide them with protection and with social , administrative and legal assistance ;

c. taking steps for their rehabilitation and their reintegration , including the creation of centres to assist , among others , victims of domestic slavery ;

d. developing specific programmes for their protection ;

e. increasing victims ' time limits for bringing proceedings for offences of slavery ;

f. establishing compensation funds for the victims of slavery ;

“ CARDINAL . ORG is dismayed that slavery continues to exist in LOC in DATE . Although , officially , slavery was abolished over DATE , CARDINAL of people are still held as slaves in LOC , treated as objects , humiliated and abused . Modern slaves , like their counterparts of old , are forced to work ( through mental or physical threat ) with no or little financial reward . They are physically constrained or have other limits placed on their freedom of movement and are treated in a degrading and inhumane manner .

DATE 's slaves are predominantly female and usually work in private households , starting out as migrant domestic workers , au pairs or ' mail - order brides ' . Most have come voluntarily , seeking to improve their situation or escaping poverty and hardship , but some have been deceived by their employers , agencies or other intermediaries , have been debt - bonded and even trafficked . Once working ( or married to a ' consumer husband ' ) , however , they are vulnerable and isolated . This creates ample opportunity for abusive employers or husbands to force them into domestic slavery .

ORG must have CARDINAL tolerance for slavery . As an international organisation defending human rights , it is ORG duty to lead the fight against all forms of slavery and trafficking in human beings . The ORG and its member GPE must promote and protect the human rights of the victim and ensure that the perpetrators of the crime of domestic slavery are brought to justice so that slavery can finally be eliminated from LOC .

The ORG thus recommends that ORG :

i. in general :

a. bring the negotiations on ORG convention on action against trafficking in human beings to a rapid conclusion ;

b. encourage member GPE to combat domestic slavery in all its forms as a matter of urgency , ensuring that holding a person in any form of slavery is a criminal offence in all member GPE ;

c. ensure that the relevant authorities in the member GPE thoroughly , promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible ;

ii . as concerns domestic servitude :

a. elaborate a charter of rights for domestic workers , as already recommended in Recommendation CARDINAL ( DATE ) on domestic slavery . Such a charter , which could take the form of ORG recommendation or even of a convention , should guarantee at least the following rights to domestic workers :

– the recognition of domestic work in private households as ' real work ' , that is , to which full employment rights and social protection apply , including the minimum wage ( where it exists ) , sickness and maternity pay as well as pension rights ;

– the right to a legally enforceable contract of employment setting out minimum wages , maximum TIME and responsibilities ;

– the right to health insurance ;

– the right to family life , including health , education and social rights for the children of domestic workers ;

– the right to leisure and personal time ;

– the right for migrant domestic workers to an immigration status independent of any employer , the right to change employer and to travel within the host country and between all countries of ORG and the right to the recognition of qualifications , training and experience obtained in the home country ;

Council of Europe Convention on Action against Trafficking in Human Beings , opened for signature on DATE ( extracts )

Considering that trafficking in human beings may result in slavery for victims ;

Considering that respect for victims ' rights , protection of victims and action to combat trafficking in human beings must be the paramount objectives ;

Considering that all actions or initiatives against trafficking in human beings must be non - discriminatory , take gender equality into account as well as a child - rights approach ;

Bearing in mind the following recommendations of ORG of ORG : ... DATE ( DATE ) Domestic slavery : servitude , au pairs and mail - order brides ;

“ CARDINAL . The purposes of this Convention are :

( a ) to prevent and combat trafficking in human beings , while guaranteeing gender equality ;

( b ) to protect the human rights of the victims of trafficking , design a comprehensive framework for the protection and assistance of victims and witnesses , while guaranteeing gender equality , as well as to ensure effective investigation and prosecution ;

“ For the purposes of this Convention :

( a ) ' Trafficking in human beings ' shall mean the recruitment , transportation , transfer , harbouring or receipt of persons , by means of the threat or use of force or other forms of coercion , of abduction , of fraud , of deception , of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person , for the purpose of exploitation . Exploitation shall include , at a minimum , the exploitation of the prostitution of others or other forms of sexual exploitation , forced labour or services , slavery or practices similar to slavery , servitude or the removal of organs ;

( b ) The consent of a victim of ' trafficking in human beings ' to the intended exploitation set forth in sub - paragraph ( a ) of this Article shall be irrelevant where any of the means set forth in sub - paragraph ( a ) have been used ;

( c ) NORP The recruitment , transportation , transfer , harbouring or receipt of a child for the purpose of exploitation shall be considered ' trafficking in human beings ' even if this does not involve any of the means set forth in sub - paragraph ( a ) of this Article ;

( d ) ' PERSON ' shall mean any person DATE ;

( e ) ' Victim ' shall mean any natural person who is subject to trafficking in human beings as defined in this Article . ”

“ Each ORG shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law , the use of services which are the object of exploitation as referred to in DATE paragraph ( a ) of this Convention , with the knowledge that the person is a victim of trafficking in human beings . ”

“ CARDINAL . For the purposes of this Convention the term ' forced or compulsory labour ' shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily .

Nevertheless , for the purposes of this Convention the term ' forced or compulsory labour ' shall not include :

( a ) Any work or service exacted in virtue of compulsory military service laws for work of a purely military character ;

( b ) Any work or service which forms part of the normal civic obligations of the citizens of a fully self - governing country ;

( c ) Any work or service exacted from any person as a consequence of a conviction in a court of law , provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals , companies or associations ;

( d ) Any work or service exacted in cases of emergency , that is to say , in the event of war or of a calamity or threatened calamity , such as fire , flood , famine , earthquake , violent epidemic or epizootic diseases , invasion by animal , insect or vegetable pests , and in general any circumstance that would endanger the existence or the well - being of the whole or part of the population ;

( e ) ORG communal services of a kind which , being performed by the members of the community in the direct interest of the said community , can therefore be considered as normal civic obligations incumbent upon the members of the community , provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services . ”

“ For the purposes of this Convention the term ' competent authority ' shall mean either an authority of the metropolitan country or the highest central authority in the territory concerned . ”

“ CARDINAL . The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals , companies or associations .

Where such forced or compulsory labour for the benefit of private individuals , companies or associations exists at the date on which a Member 's ratification of this Convention is registered by ORG , the Member shall completely suppress such forced or compulsory labour from the date on which this LAW comes into force for that Member . ”

“ For the purpose of the present Convention , the following definitions are agreed upon :

Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised ;

NORP The slave trade includes all acts involved in the capture , acquisition or disposal of a person with intent to reduce him to slavery ; all acts involved in the acquisition of a slave with a view to selling or exchanging him ; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged , and , in general , every act of trade or transport in slaves . ”

“ The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade . ”

“ The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake , each in respect of the territories placed under its sovereignty , jurisdiction , protection , suzerainty or tutelage , to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery .

It is agreed that :

Subject to the transitional provisions laid down in paragraph CARDINAL below , compulsory or forced labour may only be exacted for public purposes ;

NORP In territories in which compulsory or forced labour for other than public purposes still survives , the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice . So long as such forced or compulsory labour exists , this labour shall invariably be of an exceptional character , shall always receive adequate remuneration , and shall not involve the removal of the labourers from their usual place of residence ;

NORP In all cases , the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned . ”

“ Each of the GPE Parties to this LAW shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices , where they still exist and whether or not they are covered by the definition of slavery contained in LAW signed at GPE on DATE :

( a ) Debt bondage , that is to say , the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt , if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined ;

( b ) Serfdom , that is to say , the condition or status of a tenant who is by law , custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person , whether for reward or not , and is not free to change his status ;

( d ) Any institution or practice whereby a child or young person under DATE , is delivered by either or both of his natural parents or by his guardian to another person , whether for reward or not , with a view to the exploitation of the child or young person or of his labour . ”

“ CARDINAL . DATE States Parties shall take all appropriate legislative , administrative , social and educational measures to protect the child from all forms of physical or mental violence , injury or abuse , neglect or negligent treatment , maltreatment or exploitation , including sexual abuse , while in the care of parent(s ) , legal guardian(s ) or any other person who has the care of the child .

Such protective measures should , as appropriate , include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child , as well as for other forms of prevention and for identification , reporting , referral , investigation , treatment and follow - up of instances of child maltreatment described heretofore , and , as appropriate , for judicial involvement . ”

“ CARDINAL . DATE States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child 's education , or to be harmful to the child 's health or physical , mental , spiritual , moral or social development .

DATE States Parties shall take legislative , administrative , social and educational measures to ensure the implementation of the present Article . To this end , and having regard to the relevant provisions of other international instruments , GPE Parties shall in particular :

( a ) Provide for a minimum age or minimum ages for admission to employment ;

( b ) Provide for appropriate regulation of TIME and conditions of employment ;

( c ) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article . ”

“ GPE Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child 's welfare . ”


The applicant , Mr DATE , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms J. Starling , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr C. Whomersley of ORG .

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

The applicant ’s wife died on DATE , leaving CARDINAL children born in DATE and DATE . His claim for widows’ benefits was made on DATE and was rejected on CARDINAL DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant appealed to the appeal ORG which heard and dismissed his claim on DATE . 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 benefits were payable to widowers under GPE law .

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


Ants Kull;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant is a lawyer ( advokaat ) who practises law mainly in ORG where he has established the Andres Tamm Law Firm , a private limited company ( OÜ PERSON ) .

On DATE the applicant ’s law firm concluded a rental agreement with ORG , a private limited company , in respect of rooms at FAC in GPE . The rooms were to be used by the law firm .

On DATE the applicant applied to ORG ) for authorisation to act as a member of the management board of ORG , which had its registered office at FAC in GPE . He also informed ORG of his intention to open a branch of his law office at the same address in GPE on DATE .

On DATE a criminal investigation was initiated in respect of tax offences related to a company , PERSON , a client of the applicant . The applicant and his law firm as well as ORG were among those involved in business transactions with ORG

On DATE a police investigator interviewed the applicant as a witness . According to the applicant , he had had business transactions with ORG In the record of the interview the applicant is not mentioned as a legal counsel of ORG

On DATE the police investigator drew up a seizure order in respect of CARDINAL documents concerning transactions between the applicant ’s law firm and ORG The documents were seized on DATE in ORG , at an unspecified location . According to the seizure report the applicant voluntarily handed over the documents , making no statements or complaints .

On DATE the police investigator drew up a search warrant , approved by ORG , in respect of the LOC of ORG at FAC in GPE . According to the warrant , the evidence collected in the criminal case of PERSON referred to the possibility that documents and other items relevant for the criminal case might be found at ORG at FAC in GPE . The search was carried out on DATE . Several documents and letters and a laptop computer were seized . The applicant was present but did not state that the search and seizure concerned privileged lawyer - client information .

On DATE the police investigator drew up a further seizure order in respect of CARDINAL specific accounting documents of the applicant ’s law firm from DATE and its accounting documentation for the whole of DATE . The documents were seized on DATE at the applicant ’s law firm in ORG in the applicant ’s presence ; the latter , according to the seizure report , gave the documents voluntarily to the investigator and made no statements or complaints .

On DATE the applicant lodged a complaint with ORG and the police investigator . He argued that the search in his law office ’s branch in GPE and the seizure of confidential legal documents and a computer as well as the seizures at his law office in ORG had been unlawful as the investigator had not presented a court order authorising these measures . Such a court order had been required , since inviolable data carriers ( puutumatud teabekandjad ) related to the provision of legal services by a lawyer had been concerned . He noted that his state of health at the time when the search and seizure orders were executed had been such that he could not complain about the investigator ’s activities .

On DATE the police investigator made CARDINAL applications to ORG ( linnakohus ) in which he requested , under LAW ORG koodeks ) , judicial authorisation for the seizure from the applicant of the laptop computer and the DATE accounting documents of the applicant ’s law firm .

In the request concerning the seizure of the computer , the investigator noted that on DATE the police had searched the LOC of ORG at FAC in GPE . Certain documents and a laptop computer had been seized , the latter having been securely sealed . The investigator had presumed that in the registered office of ORG there could not be inviolable data carriers related to the provision of legal services . However , considering the applicant ’s allegation that the seized data carriers could contain information related to the provision of legal services , the investigator requested the court to authorise the seizure .

On DATE ORG authorised the seizure of the laptop computer . It held that , since the search had been performed in the LOC of another private limited company ( not a law firm ) , the investigator had had no reason to presume at the time of the search that the computer could contain inviolable information related to the provision of legal services by a lawyer . The computer had been packed and sealed and no unauthorised persons had examined its contents . In order for the investigator to find out whether the computer contained information required for the investigation of the criminal case , it was necessary for him to examine its contents . At the same time , it could not be ruled out that the computer might contain information protected by the lawyer ’s professional confidentiality , which the investigator had the right to become aware of only if authorised by a court . Accordingly , the judge authorised , apparently with immediate effect , the seizure of the laptop computer from the applicant , relying on Article CARDINAL - CARDINAL § CARDINAL of LAW . The judicial decision bears the applicant ’s signature to the effect that he has familiarised himself with it on DATE . It was not specified in the decision whether an appeal lay against it .

In the second request , made on DATE , concerning the seizure of the law firm ’s accounting documents , the investigator noted that the applicant had been requested voluntarily to hand over the documents specified in the seizure order , which he had done without objection . He had not disclosed during the seizure that the documents could include inviolable data carriers and since , according to LAW ( ORG ) , the lawyer had to store data carriers related to the provision of legal services separately from other data carriers ( section MONEY ) ) , the investigator had presumed that the seized accounting documents did not contain inviolable information .

On DATE ORG granted this request as well , noting that since the seizure had concerned accounting documents of the law firm and it had not been immediately challenged by the applicant , the investigator had had no ground to presume , at the time of the search , that the seized accounting documents could contain inviolable information related to the provision of legal services by a lawyer . The seized documents had been packed and sealed and no unauthorised persons had examined their contents . In order for the investigator to find out whether the seized documentation contained information required for the investigation of the criminal case , it was necessary for him to examine its contents . At the same time , it could not be ruled out that the documents might contain information protected by the lawyer ’s professional confidentiality , which the investigator had the right to become aware of only if authorised by a court . Accordingly , the judge authorised , apparently with immediate effect , the seizure from the applicant of the applicant ’s law firm ’s accounting documents from DATE , referring to LAW . The judicial decision bears the applicant ’s signature to the effect that he has familiarised himself with it on DATE . It was not specified in the decision whether an appeal lay against it .

On DATE the accounting documents and the computer – the packaging and seals not having been opened in the meantime – were returned to the applicant on police premises in GPE . The applicant requested that the documents seized at FAC on DATE also be returned , but the investigator refused . At the applicant ’s request , it was stated in the report that the investigator had not accessed the content of the returned items or copied or opened them . TIME on DATE , still on police premises , the computer and the accounting documents were seized again . The applicant objected , arguing that both the computer and the accounting documents contained information related to the provision of legal services by a lawyer and they were therefore inviolable under LAW . Only ORG could assess whether the computer also contained other information .

On DATE the police investigator declared the applicant a tax evasion suspect .

On DATE ORG replied to the applicant ’s complaint of DATE . It asserted that on DATE the computer and documents had been returned to him ; accordingly , his complaint was without substance . Nevertheless the applicant had voluntarily surrendered the accounting documents without arguing that they contained inviolable information and therefore the investigator had had no grounds not to seize the documents . At FAC , a search had been carried out in respect of ORG and not in respect of a law office . ORG noted that at the time it was replying to the applicant , ORG rulings served as grounds for the seizure of the documents and the computer . In so far as the documents seized at FAC were concerned , ORG was of the opinion that they did not relate to the provision of legal services by a lawyer but were items related to the business transactions of ORG Therefore , the guarantees provided for under LAW were not applicable and , accordingly , the search of the LOC of ORG and seizure of the documents had been lawful .

On DATE the applicant lodged a new complaint with ORG . He argued that the search and seizure carried out on CARDINAL and DATE could not be legitimised retroactively by the judicial rulings of DATE . He also asserted that the seizure executed on DATE had been unlawful . LAW was flawed as it did not set out the grounds on which a judge had to grant the investigator ’s request and in which circumstances a request could be refused . He was of the opinion that lawyer ’s privilege had been insufficiently protected . The applicant referred to ORG ( NORP ) judgment of DATE , according to which search and seizure were measures in public law that restricted a person ’s fundamental rights and freedoms . ORG had held that judicial review of such measures fell within the jurisdiction of administrative courts under LAW ( ORG seadustik ) . The applicant concluded that he had the right to judicial protection up to the “ ORG ” .

On DATE ORG replied that LAW explicitly provided for a possibility of search and seizure in a law office , on the condition of judicial authorisation . In the case at hand such an authorisation had been granted and , accordingly , there was no ground for declaring the investigator ’s activities unlawful . It was also emphasised that the seizure had not been aimed at obtaining information concerning the clients of the applicant ’s law firm or at taking any data carriers related to the provision of legal services . The seizure had related to a criminal case in which a possible tax offence committed by PERSON had been investigated . Therefore , it had been necessary to gather information on persons who had had business relations with this company . It had been necessary to verify the applicant ’s assertion that certain sums he had received from ORG had not been his personal income but had belonged to his law firm . On the basis of the above , ORG rejected the complaint .

On DATE the seized computer was examined on police premises in the applicant ’s presence . The data on its hard disc were copied and the computer was returned to the applicant .

On DATE the investigator interviewed the law firm ’s chief accountant as a witness . After a list of the seized accounting documents had been presented to her , she stated that the ledger and file no . CARDINAL had not been included in the list .

On DATE the police investigator made CARDINAL applications to ORG in which he requested , under LAW , judicial authorisation for searches in the applicant ’s law firm and at his home in ORG in order to find the law firm ’s ledger for DATE and other important evidence in the criminal case .

On DATE the ORG granted the requests , referring to Article CARDINAL of the Code of Criminal Procedure . It noted that in the criminal case at hand the applicant was not acting as a lawyer , neither did he represent other legal ORG interests ( he was not a contractual representative ) but he was himself a tax evasion suspect . In ORG decision it was noted that an appeal could be lodged with ORG within DATE . The decision was presented to the applicant on DATE .

On the same date a search was conducted at the applicant ’s home in ORG . CARDINAL documents related to the criminal investigation were seized .

On DATE the applicant was charged with tax offences committed by him as the sole member of the management board and sole shareholder of the Andres Tamm Law Firm . According to the charges he had presented incorrect information to the tax authorities in his law firm ’s tax return for DATE and in other documents , evading payment of CARDINAL kroons ( EEK ; corresponding MONEY ( ORG ) ) in taxes .

On DATE the criminal case concerning the applicant was separated from the case concerning ORG

On DATE ORG discontinued the criminal investigation in respect of the applicant . It was noted that the applicant had paid most of the outstanding taxes on behalf of his law firm , his guilt was negligible and there was no public interest in pursuing the case . The applicant undertook to pay the remaining taxes plus a lump sum of EEK CARDINAL ( corresponding approximately to EUR CARDINAL,CARDINAL ) into the public revenues . The seized documents were to be returned to the applicant after he had fulfilled the obligations imposed on him .

On DATE the accounting documents of the applicant ’s law firm and the documents taken from FAC were returned to the applicant .

LAW ( ORG põhiseadus ) reads as follows :

“ Everyone whose rights and freedoms are violated has the right of recourse to the courts . Everyone has the right , while his or her case is before the court , to petition for any relevant law , other legislation or procedure to be declared unconstitutional .

The courts shall observe the LAW and shall declare unconstitutional any law , other legislation or procedure which violates the rights and freedoms provided by LAW or which is otherwise in conflict with LAW . ”

The relevant provisions of LAW ( ORG koodeks ) , as in force at the material time , provided :

“ ( CARDINAL ) Documents of notarial acts and other documents which contain confidential information on notarial acts and data carriers ( teabekandjad ) related to the provision of legal services by lawyers ( advokaadid ) shall be inviolable ( puutumatud ) .

( CARDINAL ) NORP If the search of a notary ’s office or law office or seizure therein concerns data carriers specified in paragraph CARDINAL of this Article , the procedural act may be performed only on the basis of a ruling of a county or city court .

( CARDINAL ) A notary or lawyer who is in the possession of documents specified in paragraph CARDINAL of this Article shall be present during the search or seizure , or if this is not possible , another notary or lawyer who acts in the same office or provides legal services through the office shall be present during the search or seizure . ”

The relevant provisions of LAW ( ORG ) , as in force at the material time , provided :

( CARDINAL ) ORG carriers ( teabekandjad ) related to the provision of legal services by a lawyer ( advokaat ) shall be inviolable ( puutumatud ) .

( CARDINAL ) A lawyer shall not be detained , searched or taken into custody in circumstances arising from his or her professional activities , except on the basis of a ruling of a county or city court . A law office through which a lawyer provides legal services shall also not be searched in circumstances arising from his or her professional activities . ”

“ ( CARDINAL ) A lawyer is required to :

CARDINAL ) maintain a list of matters in which the lawyer acts as a representative ;

CARDINAL ) NORP store data carriers related to the provision of legal services separately from other data carriers in his or her possession .

( CARDINAL ) In the provision of legal services , a lawyer shall not acquire the rights of his or her clients . ”

“ ( CARDINAL ) A lawyer shall provide legal services through a law office .

( CARDINAL ) Another undertaking ... shall not operate in a law office ... ”

“ ( CARDINAL ) A company of lawyers ( advokaadiühing ) shall engage in no other area of activity than the provision of legal services .

According to sections CARDINAL - CARDINAL ) , CARDINAL ) and CARDINAL ) of LAW , a lawyer may be a member of the management board of a company only when authorised by ORG .

In a judgment of DATE ( case no . CARDINAL ) , ORG , sitting in plenary session in order to ensure the uniform application of the law , dealt with complaints lodged with an administrative court by CARDINAL companies on whose premises search and seizure of documents had been carried out by police and tax officers with the approval of ORG . The first- and second - instance administrative courts had rejected the complaints , finding that they were not authorised to review the lawfulness of measures taken in the context of a criminal investigation . However , ORG found for the appellants , quashed the lower courts’ decisions and referred the case to ORG for examination on the merits . It held :

“ CARDINAL . ... [ T]he ORG en banc finds it necessary to note , firstly , that Articles CARDINAL , CARDINAL and DATE of the LAW give rise to the right to an effective remedy . ORG has observed that according to LAW an effective remedy means a remedy which is as effective as possible ( see PERSON and others v. GPE , judgment of DATE , Series A , No CARDINAL , p CARDINAL § CARDINAL ) . The ORG has also said that if a person alleges that his or her Convention rights have been violated , he or she should have a remedy before a national authority in order both to have his or her claim decided and , if appropriate , to obtain redress ( see PERSON and others , cited above , § CARDINAL ; GPE v. GPE [ ORG ] , no . GPE , § CARDINAL , ORG CARDINALXI ; and PERSON and PERSON v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALXI ) . It can not be a prerequisite for the application of LAW that the Convention be in fact violated . Effective remedy must be guaranteed to everyone who claims that his rights and freedoms under the Convention have been violated ( see PERSON and others , cited above , § CARDINAL ) .

Postponement of a review of the legality of an investigative activity infringing fundamental rights and freedoms of persons until the judicial hearing of a criminal matter can not be regarded as an effective remedy , because the hearing may take place DATE after the investigative activity was conducted . The harm caused by the violation of fundamental rights and freedoms may essentially increase or redress may become impossible by that time . Furthermore , the court hearing a criminal case has no right to decide on compensating the damage caused by an investigative activity . The possibility can not be excluded that a criminal matter never reaches a court , or that an investigative activity infringes the fundamental rights and freedoms of a person who is not a party to a proceeding and therefore can not seek judicial protection from violation of his or her rights and freedoms .

Search of a dwelling , possession or place of work and seizure of documents are acts of public law , which infringe fundamental rights and freedoms of persons . According to LAW adjudication of disputes in public law falls within the jurisdiction of administrative courts . According to the special clause of paragraph CARDINAL of the same Article adjudication of disputes in public law for which a different procedure is prescribed by law does not fall within the jurisdiction of administrative courts . As LAW prescribes that appeal against the referred measures may be filed only with a prosecutor , then judicial review of such measures falls within the jurisdiction of administrative courts , pursuant to the general clause of LAW of LAW ; that is why the administrative court should not have refused to hear the complaints on the substance . Any person whose fundamental rights and freedoms are violated by a procedural act is entitled to file a complaint with a prosecutor or an administrative court . ORG en banc considers it necessary to note that the duty of an administrative court is not to review the necessity and expediency of an investigative activity or look into the question whether the information obtained can be used as evidence in criminal proceedings . The task of an administrative court is to review whether a person ’s fundamental rights and freedoms were infringed by a procedural act . ”

In a judgment of DATE , ORG sitting in plenary session ( case no . CARDINAL ) dealt with a request to reopen the domestic administrative court proceedings related to unlawfulness of search and seizure executed in respect of the applicant ’s company after a finding of a violation by the ORG in the case of Veeber v. GPE ( no . CARDINAL ) ( no . MONEY , DATE ) . ORG noted , referring to its judgment of DATE , that it was within the administrative courts’ jurisdiction to examine on the merits complaints against the actions of the police . It held that the violation of LAW on account of an administrative court ’s failure to examine the complaint lodged with it also constituted a violation of LAW . In case the legislature had not provided for an effective and seamless mechanism for the protection of fundamental rights , the judicial power had to ensure , proceeding from LAW , the protection of fundamental rights . ORG referred the case to a first - instance administrative court for a new examination .

In subsequent proceedings ORG and ORG delivered judgments on the merits of the case ( judgments of ORG were delivered on DATE ( case no . CARDINAL ) and DATE ( case no . CARDINAL ) and those of ORG on DATE ( case no . CARDINAL ) and DATE ( case no . CARDINAL ) ) . The proceedings resulted in a declaration of unlawfulness of search and seizure measures taken by the police and an award of compensation .


The applicant , ORG , is a NORP national , who was born in DATE and lives in GPE . He is represented before the Court by Mr G. Dinç , a lawyer practising in GPE . ORG ( “ the Government ” ) did not designate an Agent for the purposes of the proceedings before the Court

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

On DATE the applicant retired from his post at ORG as a judge of the highest grade . Until CARDINAL DATE he worked as a lawyer .

On DATE , following a request made by the applicant , ORG and Prosecutors re - appointed him to ORG as a judge .

On DATE the applicant lodged an application with ORG and Prosecutors requesting that his salary be calculated on a different basis and be increased accordingly . He argued that the period during which he had practised as a lawyer ( i.e. DATE and DATE ) should be included into his civil service while calculating his salary .

On DATE ORG and Prosecutors dismissed the applicant ’s request .

The applicant lodged an application with ORG to annul the ORG ’s decision . On CARDINAL DATE ORG declined jurisdiction ratione loci and referred the case to ORG .

On DATE ORG rejected the applicant ’s request . The court ruled that it was not competent to examine the applicant ’s claim as the decisions of ORG and Prosecutors were final and not subject to any judicial review . The applicant learned of this judgement on DATE .

On DATE the applicant appealed to ORG against the judgment of ORG .

On DATE ORG dismissed the applicant ’s appeal . The decision of ORG was served on the applicant on DATE .

On DATE the applicant requested the rectification of ORG decision . On DATE ORG dismissed the applicant ’s request for rectification of the decision .

According to LAW no . CARDINAL on ORG and Prosecutors , the Minister of ORG or interested parties can ask the ORG for the rectification of a decision within DATE from its notification .

LAW provides that the interested parties can object to the ORG ’s decision on rectification within DATE from the date on which the decision is served on them . A committee presided over by the Minister of ORG examines the objection . The decision of the committee is definite . No appeal against this final decision can be lodged before another judicial authority .


Violation of Art. 5-1;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE

On DATE the applicant ’s neighbour called the ambulance service and the municipal police and informed them that the applicant was going to jump out of the window of her fifth - floor apartment . She also reported that the applicant was shouting and swearing in her apartment , throwing papers outside and pouring water out of the window .

After the ambulance arrived , the applicant refused to comply with the paramedic ’s request that she open the door , whereupon rescuers were called . They entered the applicant ’s apartment through a window and let the paramedic in .

The applicant told the paramedic that she had received threats and that the mafia had kidnapped her and operated on her organs without leaving any marks . After having observed that the applicant ’s overall condition was satisfactory and that her mood had shifted during the conversation , the paramedic suggested that the applicant might be suffering from an endogenous disease and took her to the PERSON psychiatric hospital in the ambulance car . The applicant was accompanied to the hospital by her mother and a police officer .

DATE the applicant was examined by a duty doctor , PERSON , who made the following notes :

“ The neighbours called the police saying that [ the applicant ] had been throwing papers out of the window and swearing and shouting . According to [ the applicant ] , for DATE [ she ] has been receiving threats from unknown persons ... According to [ the applicant ’s ] mother , [ the applicant ] has been suffering from a mental disease for DATE , which began as depression and evolved into delusions of persecution . [ The applicant had ] said that her organs had been operated on ... [ The applicant ’s ] speech is chaotic ; [ she ] tries to deny everything , except the delusions . [ The applicant ] is nervous ... asks to be allowed to go home . [ She ] denies the hallucinations ... [ Her ] somatic condition [ is ] without pathology . Diagnosis : hallucinatory paranoid condition ... ”

On DATE the applicant was admitted for in - patient medical treatment and prescribed medicines .

On DATE a panel of CARDINAL psychiatrists , consisting of the doctor PERSON and CARDINAL other doctors practising at the same medical establishment , concluded that the applicant suffered from paranoid schizophrenia and that it was necessary for her to continue in - patient medical treatment .

“ Regard being had to the anamnesis of the illness and symptoms , the patient suffers from paranoid schizophrenia : it is therefore necessary to continue with emergency in - patient medical treatment ” .

DATE the applicant underwent in - patient medical treatment in a psychiatric hospital . CARDINAL DATE she was given hospital leave , which was extended until DATE , after which she was discharged from hospital .

On various occasions after her release from hospital the applicant asked the PERSON prosecutor ’s office to institute criminal proceedings concerning the allegedly unlawful actions of the municipal police officer and the medical staff at the time of her compulsory admission to the psychiatric hospital . She appealed to the NORP district public prosecutor ’s office against the refusals to institute criminal proceedings . Her appeals were dismissed in DATE and DATE . The applicant appealed against those decisions to ORG , which dismissed them in DATE .

On DATE the applicant asked the administration of the Liepāja psychiatric hospital to provide her with the excerpts from her medical file concerning the reasons for her compulsory confinement in a psychiatric hospital on DATE . She also sought to obtain information about the medical treatment she had received during her stay in hospital . On DATE the hospital informed the applicant that the requested information would be furnished only at a court ’s request .

On DATE the applicant complained to ORG ( “ the MADEKKI ” ) about her allegedly unlawful compulsory confinement in a psychiatric hospital . In its response dated CARDINAL DATE the PERSON concluded that on DATE the applicant had been committed for an in - patient medical examination pursuant to section CARDINAL of the Law on Medical Treatment ( LOC likums ) and that her medical treatment had been adequate .

On DATE the applicant and her mother filed an administrative complaint with ORG against the doctor PERSON and the paramedic who had accompanied the applicant to hospital on DATE . The claimants asked the court to declare the applicant ’s confinement unlawful and to overturn the diagnosis in part .

The court refused to register the claim , owing to various procedural deficiencies . On appeal by the applicant , ORG upheld the lower court ’s decision , stating that the doctor and the paramedic were not public officials whose decisions could be the subject of an administrative complaints procedure . Besides , it was noted that the applicant had failed to submit the complaint within the DATE time - limit from the adoption of the final decision of the PERSON . It also indicated that the claimants should bring a civil claim if they considered that they had sustained damage as a result of the GPE actions . The decision became final because none of the parties appealed .

On an unspecified date the applicant and her mother lodged defamation proceedings against their neighbours , asking ORG to find that the defendants had uttered false information concerning the applicant ’s behaviour on DATE . The applicant also claimed damages from the paramedic who had taken her to hospital and allegedly provided false information concerning her health to the duty doctor .

On DATE the court upheld the claim in part , finding that it could not be established that on DATE in question the applicant had threatened to jump out of the window . However , it dismissed the remainder of the claim . The court noted , inter alia , that the information from the applicant ’s neighbours and the conversation with the applicant ( see paragraph CARDINAL , above ) , as well as the latter ’s appearance and her mother ’s statements , had provided sufficient grounds for the paramedic to admit the applicant to hospital . It appears that none of the parties appealed .

On DATE the applicant and her mother lodged a civil claim against the doctor S. They asked ORG to declare that the applicant had been unlawfully confined in the psychiatric hospital and to order the doctor to remove the allegedly false symptoms from her medical records , in particular , the aggression , hallucinations and paranoid delusions . In the statement of claim the claimants argued that , despite her stable state of health , the applicant had been confined in a psychiatric hospital owing to false information provided by her neighbour and that the doctor had reached her diagnosis without duly examining the patient .

On DATE the applicant underwent a court - ordered forensic psychiatric examination . The experts concluded that the applicant suffered from chronic schizophrenia and that , according to her medical records , on DATE she had been in a condition which potentially endangered her health and life .

On DATE ORG dismissed the applicant ’s claim . It established that the defendant had acted in accordance with ORG ; that the expert had correctly diagnosed her condition ; and that her mental state had necessitated compulsory hospitalisation .

On DATE ORG upheld the lower court ’s judgment . The court dismissed as irrelevant the outcome of the defamation proceedings ( see paragraph CARDINAL above ) , establishing that this was not crucial in reaching the decision regarding the applicant ’s compulsory admission to the psychiatric hospital and that the panel of psychiatrists had made its diagnosis after having examined the applicant .

On DATE the ORG of ORG dismissed an appeal on points of law lodged by the applicant .

The relevant parts of the Law on Medical Treatment ( ORG likums ) , as in force at the material time , provide :

“ Psychiatric assistance shall be provided on a voluntary basis . In - patient assistance shall be provided in a psychiatric establishment where , owing to the state of health of the patient , such assistance can not be provided on an out - patient basis or at the patient ’s place of residence . ”

“ Involuntary in - patient or out - patient medical treatment shall be administered only in the following circumstances :

CARDINAL ) NORP where , owing to mental disorder , the patient ’s behaviour poses a danger to his or her own or another person ’s health or life ;

CARDINAL ) NORP where , owing to mental disorder and its clinical evolution , the psychiatrist foresees behaviour dangerous to the patient ’s own or another person ’s health or life ;

CARDINAL ) where the patient ’s mental disorder is such that it precludes him or her from making conscious decisions and the refusal to submit to treatment may cause serious deterioration of his or her heath or social condition , or result in a disturbance of public order .

If the patient has been subjected to involuntary hospitalisation , a panel of [ CARDINAL ] psychiatrists must examine the patient within TIME and adopt a decision concerning further medical treatment . The panel shall immediately communicate the decision to the patient , his or her relatives ... If it is impossible to inform the aforementioned persons [ orally ] , they shall be informed in writing ... ”

“ Where , owing to mental disturbance or psychiatric illness , a person commits a breach of the peace , [ the person ] shall be apprehended , escorted and supervised by the police in accordance with the provisions of LAW .

The police officer shall send the psychiatrist a written report on the patient ’s antisocial behaviour . ”

Section CARDINAL of the Law on Medical Treatment , as in force at the material time , provided that ORG ( “ the MADEKKI ” ) was responsible for monitoring the professional quality of medical treatment ... in health - care establishments .

Section CARDINAL of the Law on Medical Treatment was amended by a PERSON which came into force on DATE and provided as follows :

“ Psychiatric assistance may be provided without the patient ’s consent if :

CARDINAL ) NORP the patient has threatened or is threatening , has attempted or is attempting to cause bodily harm to him or herself or others , or has acted or is acting violently towards him or herself or others and the treating doctor finds that the patient suffers from mental disorder which may result in serious bodily harm to the patient or to another person ;

CARDINAL ) NORP the patient has shown or is showing an inability to care for him or herself or persons dependent on him or her and the treating doctor finds that the patient suffers from mental disorder which may result in irreversible and serious deterioration of the patient ’s health .

When providing psychiatric assistance without the consent of a patient in the cases specified in Part I , clauses CARDINAL and CARDINAL of this section , where possible , the necessity of providing compulsory psychiatric assistance shall be explained to the patient . The patient has the right to receive information regarding his or her rights and duties .

Where , in providing psychiatric assistance , it is necessary to admit a patient to a psychiatric establishment without his or her consent , a panel of [ CARDINAL ] psychiatrists shall examine the patient within TIME and take a decision regarding involuntary psychiatric assistance in a psychiatric establishment or the suspension of such assistance .

The panel of psychiatrists shall notify the patient of its decision without delay . If the panel has decided on involuntary psychiatric assistance , the lawful representative of the patient shall be informed accordingly . If the patient does not have a lawful representative , the panel shall inform the patient ’s spouse or one of the patient ’s nearest relatives ... , or , at the request of the patient , another person . ...

If the panel has decided on involuntary psychiatric assistance , the psychiatric establishment shall inform a district ( city ) court in writing within a maximum of TIME ... , sending it a certified true copy of the decision and copies of the documents at the disposal of the psychiatric establishment which justify the placement of the patient in a psychiatric medical institution , and provide information regarding the representative of the patient if there is one . ”

The aforementioned section also provides that the judge shall review the case material within DATE in a closed meeting on the premises of the hospital concerned , attended by the patient ( if his or her state of health permits ) , his or her representative or lawyer and a representative of the hospital . Having heard their arguments , the judge may decide on the patient ’s placement in the hospital for a period of DATE or order his or her release . The decision shall be served on the patient and his or her representative , who can appeal against it to the president of the court within DATE . Further extensions of involuntary placement , each for a period not exceeding DATE , may be authorised by the judge on the recommendation of the panel of psychiatrists , in accordance with the same procedure as for the initial placement .

The travaux préparatoires with respect to the aforementioned amendments to the Law on Medical Treatment state as follows :

“ The decision [ concerning the patient ’s involuntary hospitalisation ] adopted by the panel of psychiatrist is ... an administrative act ... and LAW required that hospitalisation in a psychiatric establishment should be reviewed by a court ” .

The Law on Compensation for Damage Caused by ORG ( Law on Compensation ) came into force on DATE . It lays down a procedure for compensation for damage caused by unlawful administrative acts adopted by ORG institutions or for de facto unlawful acts of those institutions . Individuals must submit a claim for damages within DATE from the time when they learnt of the loss , but DATE from the date when the unlawful decision was adopted or the de facto unlawful act was carried out .

Section DATE of the Civil PERSON provides that any wrongful act as a result of which harm has been caused shall give the victim the right to claim just satisfaction from the perpetrator , in so far as he or she may be held liable for that act .

On DATE ORG instituted constitutional proceedings in order to assess the constitutionality of section DATE of the Law on Medical Treatment . The proceedings were instituted on the basis of a constitutional complaint submitted by ORG . On DATE ORG decided to terminate the proceedings because the contested provision had become inoperative as from DATE . It also established that the applicant organisation had not asked the court to declare the contested provision null and void since the date of its enactment .

The relevant parts of the judgment of ORG in case no . DATE read as follows :

“ The third sentence of LAW provides that in the event of a groundless infringement of their rights , everyone has the right to commensurate compensation . This provision contains a general guarantee : if the ORG has violated the rights of an individual , the latter has a right to compensation .

Like any human rights norm , the legal norm incorporated into the third sentence of LAW shall be applied directly and immediately . In addition , the norm does not envisage the necessity of a special implementing law . The reason that such a PERSON does not exist is that LAW sentence ) of the LAW is directly applicable . It can not serve as a reason for the court to refuse to allow an individual ’s claim for compensation .

The experience of the courts of general jurisdiction shows that the non - existence of a specific PERSON is not an obstacle to allowing a claim [ in the event that the rights of an individual have been violated ] or satisfying it . ...

If the applicant considers that his or her rights have been infringed , he or she has a right to lodge a claim for compensation with the ordinary court by referring solely to the third sentence of LAW ... The non - existence of a special PERSON does not limit or endanger the constitutional right of the applicant to the protection of his or her rights ” .

In the report to ORG on the visit to GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) from DATE to DATE , the ORG , after a visit to ORG , noted and recommended :

“ CARDINAL . On account of their vulnerability , the mentally ill and mentally handicapped warrant much attention in order to prevent any form of conduct - or avoid any omission - contrary to their wellbeing . It follows that involuntary placement in a psychiatric establishment should always be surrounded by appropriate safeguards ; in particular , the procedure by which involuntary placement is decided should offer guarantees of independence and impartiality as well as of objective medical expertise . As far as the delegation could ascertain , the decision - making procedure concerning the involuntary placement of many patients at the ORG had not offered such guarantees .

The ORG understands that new mental health legislation is currently being examined by ORG . The ORG recommends that , in the context of that examination , the NORP authorities pay particular attention to the issue of safeguards concerning involuntary placement in psychiatric establishments ... ” .

After the visit from DATE to DATE , during which the ORG visited various health - care establishments , it noted :

“ CARDINAL . Involuntary placement in a psychiatric establishment can be challenged by the person concerned ( or his / her legal representative ) before ORG and ORG . However , it would appear that the person concerned does not have a right to be heard in person during the appeal procedure . Moreover , NORP legislation does not provide for a regular review of placement in a psychiatric hospital / social welfare institution . The ORG recommends that steps be taken to ensure that patients / residents who are admitted without their consent to a psychiatric hospital / social welfare institution are granted the right to be heard in person during the process of appeal against such placement . Further , the ORG recommends that steps be taken to ensure that the need for such placement is reviewed by an appropriate authority at regular intervals ” .

Following the visit from DATE to DATE the ORG recognized that , since the last visit , a number of important amendments had been made to the procedure of involuntary placement in a psychiatric establishment , introducing , inter alia , a judicial review procedure in the context of involuntary hospitalisation . After visiting ORG , the ORG noted :

“ CARDINAL . ... The panel of psychiatrists that was called upon to provide the competent judge with a medical report concerning the necessity of involuntary hospitalisation under LAW of ORG was composed of the hospital ’s own psychiatrists ( including the patient ’s treating doctor ) . In this regard , the ORG wishes to stress that it would be desirable that an expert who is independent of the establishment in which the person concerned has been placed be involved in every placement procedure ( i.e. initial placement and any renewal of a placement order ) ” .

The Recommendation Rec(CARDINAL)CARDINAL of ORG to member states concerning the protection of the human rights and dignity of persons with mental disorder :

“ CARDINAL . A person may be subject to involuntary placement only if all the following conditions are met :

i. the person has a mental disorder ;

ii . NORP the person ’s condition represents a significant risk of serious harm to his or her health or to other persons ;

iii . the placement includes a therapeutic purpose ;

iv . no less restrictive means of providing appropriate care are available ;

v. the opinion of the person concerned has been taken into consideration .

The law may provide that exceptionally a person may be subject to involuntary placement , in accordance with the provisions of this chapter , for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if :

i. his or her behaviour is strongly suggestive of such a disorder ;

ii . his or her condition appears to represent such a risk ;

iii . there is no appropriate , less restrictive means of making this

determination ; and

iv . the opinion of the person concerned has been taken into consideration . ”


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

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

The applicant brought proceedings against the ORG and ORG . He claimed that the value of his personal savings , which he had deposited with ORG , had significantly dropped following economic reforms , and that the ORG had not properly discharged its obligation to revalue the deposits in ORG банк ) in order to offset the effects of inflation , even though it had assumed that obligation under LAW of GPE enacted on DATE ( Федеральный закон « О восстановлении и защите сбережений граждан Российской PERSON , hereinafter DATE “ Savings Act ” ) .

On DATE , ORG of GPE ( ORG районный суд г. PERSON ) dismissed the applicant ’s case , having found that the current legislation did not create a right to compensation as claimed by the applicant .

On appeal , this finding was confirmed by ORG ( ORG городской суд ) on DATE . It was held , inter alia , that the applicant had benefited from preliminary compensation in respect of his savings pending the launch of the full - scale compensation envisaged in LAW .

On DATE , ORG informed the applicant that his devalued savings would be converted into special bonds as set out in LAW only after all the necessary subordinate legislation had been passed .

By LAW , the ORG guarantees the restoration and preservation of the value of monies deposited with ORG before DATE . The LAW recognises guaranteed savings as an internal ORG debt secured by ORG property and assets at the ORG ’s disposal . It provides that savings shall be converted into special ORG bonds guaranteeing a purchasing power equivalent to that of the national currency in DATE . LAW provides that the conversion shall be carried out on the basis of relevant federal laws .

Pending full implementation of LAW , several presidential decrees and governmental orders have been passed to enable certain socially vulnerable groups of the population to receive partial reimbursement of their savings , e.g. Presidential Decrees no . CARDINAL of CARDINAL DATE and no . CARDINAL of DATE , Government Regulations no . CARDINAL of DATE , no . CARDINAL of CARDINAL DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE .