Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants are :

Mr PERSON , born in DATE ,

Ms Deshi Abukhadzhievna GPE , born in DATE ,

Mr PERSON , born in DATE ,

PERSON , born in DATE ,

Ms Diana Isayevna Sagayeva , born in DATE ,

Ms Elza Isayevna Sagayeva , born in DATE ,

Ms Selita Vozukayeva , born in DATE ,

Mr PERSON , born in DATE ,

Ms Petimat Abdulvakhabovna GPE , born in DATE .

PERSON , born in DATE .

The applicants are NORP nationals who live in GPE , GPE .

The first and second applicants are married and are the parents of the third applicant and his brother , Mr PERSON , who was born in DATE . The seventh applicant is the wife of Mr PERSON . The third applicant is married to the fourth applicant and they have CARDINAL children : the fifth and sixth applicants and Mr PERSON , who was born in DATE . The eighth and ninth applicants are a brother and sister - in - law of PERSON PERSON PERSON . The eighth applicant is also an uncle of PERSON PERSON . The tenth applicant is a sister of Mr PERSON and an aunt of Mr PERSON .

CARDINAL members of the PERSON family lived in a family compound at CARDINALA Sheripova Street , ORG . The compound consisted of QUANTITY houses in QUANTITY courtyard . The first , second and tenth applicants lived in the first building . Mr PERSON and the seventh applicant lived in the second building . The eighth and ninth applicants lived in the third building . Ms S. GPE , a sister of Mr PERSON and an aunt of PERSON PERSON , whose permanent residence was in PERSON , temporarily resided at CARDINALA PERSON street as well .

At TIME on DATE a group of CARDINAL armed men in camouflage uniforms wearing masks came to the family compound . They first broke down the doors to the houses of the first and eighth applicants . Then they went to the house of Mr PERSON , broke down the door and apprehended him . They took him into the street and walked towards their vehicles , which they had apparently parked up the road , a short distance from the house . The applicants heard the sound of armoured personnel carriers ( ORG ) while they were standing in the yard outside their houses . They were convinced that the armed men were NORP servicemen as they spoke NORP without an accent , and a curfew prevented civilians from being out on the streets at TIME .

The account of the events was given in written statements by the first , second , seventh , DATE and tenth applicants . PERSON , their neighbour , stated in writing that at TIME on DATE he had seen military vehicles drive past his house along FAC . He had then heard them stop not far from his house before the engines were turned off . He had heard the vehicles again TIME as they were driving away . Ms NORP , another neighbour , confirmed in writing that at TIME on DATE she had heard an ORG park not far from her house and had then heard people talking in NORP .

The Government submitted that in the course of the investigation in case no . DATE it was established that at TIME on DATE unidentified persons in camouflage uniforms and masks had abducted Mr PERSON from a house at LOC , ORG .

In TIME CARDINAL DATE the first applicant went to ORG , ORG , the local police department , and ORG to submit written complaints concerning the events of the previous night . He was questioned by an investigator , PERSON . , who later also questioned the second , seventh , eighth and tenth applicants at ORG . When the first applicant met the head of the ORG , the latter told him that he had no influence over the fate of persons held at ORG .

DATE the first applicant was received by ORG . According to the first applicant , the Commander listened to his story , accepted the written complaint , and left the room without saying a word or promising to conduct an investigation .

NORP In subsequent DATE the applicants visited several prisons in GPE , including GPE , GPE and the organised crime unit in ORG , but received no information about their missing relative . They also made unsuccessful attempts to find intermediaries to track him down .

On DATE the Urus - Martan District Prosecutor ’s Office opened criminal investigation no . ORG into the abduction of Mr PERSON .

The applicants sent numerous applications to various ORG authorities , copies of which have been submitted to the ORG . In particular , on DATE the first applicant applied in writing to the Military Commander , ORG , ORG ( ORG ) and the Urus - Martan police , requesting assistance in locating Mr PERSON and securing his release . The applications filed with ORG and ORG of GPE were forwarded to ORG . The applications filed with ORG of ORG ( UGA ) were forwarded to ORG of military unit no . CARDINAL . Those filed with ORG were forwarded to the Urus - Martan police .

On DATE the Urus - Martan District Prosecutor ’s Office granted the first applicant victim status in the criminal proceedings . According to the Government , he was questioned on DATE . The first applicant was informed of the decision to grant him victim status on DATE .

On DATE the Urus - Martan District Prosecutor ’s Office decided to suspend the investigation . In the decision it was stated that “ all possible investigative measures were taken , [ however , ] the persons to be charged were not identified , and the term of the preliminary investigation has expired . ” The decision did not specify what investigative measures had actually been taken . The first applicant was informed of the decision on DATE .

On DATE ORG informed the first applicant that his letter had been included in the criminal case file and that steps were being taken to establish the identity of the perpetrators of the crime .

On DATE ORG informed the applicants that the investigation had been reopened on an unspecified date and that the department was taking investigative measures in liaison with ORG of GPE .

On DATE the ORG representatives , the ORG , requested ORG to provide information on the status of the criminal investigation and the name of the investigator , as well as copies of the decisions to open the criminal investigation , to suspend it , and to grant victim status .

On DATE ORG informed the PERSON that criminal case no . PERSON had been suspended since , although all investigative measures had been taken , the perpetrators of the crime had not been identified and Mr PERSON whereabouts had not been established . The letter further stated that PERSON . was the investigator in the case and that copies of the decisions to open and suspend the case and to grant victim status to the first applicant had been sent to the latter .

On DATE ORG of military unit no . CARDINAL informed the first applicant that his letter had been examined and found not to contain any evidence of the involvement of military servicemen in the abduction of Mr PERSON .

On DATE the PERSON requested PERSON Prosecutor ’s Office to provide the first applicant with information on the status of the criminal investigation and copies of the relevant decisions .

On DATE ORG of GPE instructed ORG to provide it with detailed information on the results of the investigation and on the grounds of the decision to suspend the investigation if such a decision had been taken . No further information was received by the applicants on this subject .

On DATE ORG quashed the decision of DATE to suspend the investigation and resumed the proceedings . The first applicant was informed accordingly .

On DATE the investigation was again suspended on account of the failure to identify the perpetrators . The first applicant was notified of the decision .

On DATE ORG for ORG and ORG in the LOC informed the first applicant that his application had been forwarded to ORG of the ORG . According to the letter , ORG of military unit no . CARDINAL had opened a criminal investigation and referred it to ORG .

On DATE the ORG informed the first applicant that PERSON PERSON had not been detained by the ORG as there had been no lawful grounds for his detention , and that he was not suspected of any offences . It was also stated that the ORG was taking the necessary measures to identify those involved in Mr PERSON ’s apprehension and to establish his whereabouts .

On DATE the PERSON asked ORG to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation . Although the prosecutor received the letter on DATE , neither the applicants nor the ORG received a response .

On DATE the Urus - Martan District Prosecutor ’s Office quashed the decision of DATE and resumed the investigation . The first applicant was informed accordingly .

On DATE , an official from ORG of ORG of GPE , sent the first applicant a letter informing him that inquiries concerning the whereabouts of his son had been sent to the Departments responsible for the Execution of Sentences of GPE and of other regions of LOC and to ORG of ORG in GPE . A profile of Mr PERSON had been sent to all ORG of the ORG in GPE , as well as to law - enforcement agencies in the Urus - Martan district . However , PERSON had not received any positive replies to any of the inquiries .

On DATE the Urus - Martan District Prosecutor ’s Office informed the first applicant that requests for certain investigative measures had been sent to district prosecuting authorities of GPE . Requests to activate search measures had also been sent to ORG district department of the interior . However , despite the measures taken it was proving impossible to identify the perpetrators or establish Mr PERSON ’s whereabouts .

On DATE the Prosecutor ’s Office of GPE quashed the decision to suspend the investigation of DATE and resumed the proceedings . The decision stated , inter alia , that in the course of the resumed investigation it would be necessary to verify the first applicant ’s allegations that his son had been apprehended by officers of the Urus - Martan district military commander ’s office and the Urus - Martan district department of the ORG . It ordered ORG to take the investigative steps required . The first applicant was notified of the decision .

On DATE ORG suspended the investigation on the ground that although all necessary investigative measures had been taken the perpetrators could not be identified . The decision did not specify any measures actually taken .

On DATE ORG resumed the investigation on account of the necessity to take additional investigative measures . The first applicant was informed accordingly .

After that the investigation was again suspended on DATE , resumed on DATE , suspended on DATE and again resumed on CARDINAL DATE . According to the ORG , it has been pending since that date .

According to the applicants , the investigative authorities have never inspected the scene of the abduction or questioned their neighbours , who had witnessed the events . Despite their numerous requests , they had not received any information concerning any other investigative measures taken . According to the ORG , an inspection of the PERSON house in FAC was carried out on an unspecified date . No evidence was found or seized .

The third applicant lived together with his family at CARDINAL FAC , ORG . His son , Mr PERSON , who born in DATE , also lived at that address . At TIME on DATE CARDINAL armed men in masks approached the third applicant ’s house on foot after apparently leaving their vehicles around the corner . The whole family was asleep when the armed men climbed over the fence around their courtyard and broke down the door . CARDINAL of the men entered the house , without introducing themselves . Even when specifically asked by the applicants , they refused to show their identity papers . CARDINAL of them went into the room where the third applicant and PERSON PERSON were sleeping , and the sixth man went into the room where the fourth , fifth and sixth applicants were sleeping . They told the fourth applicant that they were conducting identity checks . The men put the third applicant and PERSON PERSON against the wall , while the fourth applicant went into another room to look for their identity papers to show them to the armed men . The men took PERSON PERSON passport and then took him outside . He was dressed in a black tracksuit with red and white details , a red T - shirt with a white stripe and slippers . Before leaving , the men contacted their vehicles by radio and told the fourth applicant that her son would be released later . As they were leaving , they broke the lights outside the PERSON house . The applicants believed that the men were NORP servicemen as they spoke NORP without an accent .

The third , fourth and fifth applicants witnessed Mr PERSON apprehension and gave their account of the events in writing .

The Government submitted that in the course of the investigation in case no . CARDINAL it was established that at TIME on DATE unidentified armed persons in camouflage uniforms and masks had abducted Mr PERSON from a house at CARDINAL FAC , ORG .

In TIME CARDINAL DATE the fourth applicant applied in person to ORG , ORG , ORG , and police for information about her son . Officials of each of these agencies told her that they had not detained her son the previous night . They promised to help establish who had been on duty during TIME but ultimately provided no assistance .

The applicants sent numerous applications to various ORG officials , copies of which have been submitted to the ORG . The applications filed with ORG and ORG of GPE were forwarded to ORG . The applications filed with ORG were forwarded to ORG of military unit no . CARDINAL . The applications filed with ORG were forwarded to the Urus - Martan police .

On DATE the Urus - Martan District Prosecutor ’s Office opened a criminal investigation into the abduction of Mr PERSON in case no . CARDINAL .

On DATE the Urus - Martan District Prosecutor ’s Office granted the fourth applicant victim status in the criminal proceedings .

On an unspecified date the investigators questioned the third and fourth applicants and their neighbours .

On DATE the Urus - Martan District Prosecutor ’s Office suspended the investigation into the abduction of Mr PERSON . In the decision to suspend the investigation it was stated that “ all possible investigative measures have been taken , [ however , ] the persons to be charged have not been identified , and the term of the preliminary investigation has expired . ” The decision did not specify what investigative measures had been actually taken . The applicants were informed of the decision in a letter of DATE .

DATE . On DATE the PERSON applied in writing to ORG requesting information on the status of the criminal investigation and the name of the investigator , as well as copies of the decisions to open and suspend the criminal investigation and to grant victim status .

On DATE ORG informed the ORG that investigation in criminal case no . DATE was , at that date , suspended as all investigative measures had been taken but the perpetrators of the crime had not been identified and Mr PERSON whereabouts had not been established . It was further stated that investigator PERSON . was responsible for the case and that copies of the decisions concerning the criminal proceedings had been sent to the fourth applicant .

On DATE the PERSON wrote to ORG to ask for the first and third applicants to be granted victim status in criminal case no . DATE .

On DATE ORG of military unit no . CARDINAL informed the third applicant that his letter had been examined but had been found not to disclose any evidence of servicemen ’s involvement in Mr PERSON abduction .

On DATE ORG of GPE instructed ORG to provide it with detailed information on the results of the investigation and , if a decision to suspend the investigation had been taken , to provide a report on the grounds of the decision . No further information was received by the applicants on that subject .

On DATE ORG quashed the decision of DATE to suspend the investigation and resumed the proceedings .

On DATE the investigation was again suspended on account of the failure to identify the perpetrators . The fourth applicant was informed accordingly .

On DATE ORG for ORG and ORG in the LOC informed the third applicant that his application had been forwarded to ORG . The letter stated , incorrectly , that ORG of military unit no . CARDINAL had opened a criminal investigation into Mr PERSON abduction and had referred it to ORG .

On DATE the ORG informed the third applicant that the ORG had not detained Mr PERSON as there had been no lawful grounds for his detention . He had not been suspected of any criminal offences .

On DATE the PERSON asked ORG to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation . Although the Prosecutor received the letter on DATE , neither the applicants nor the ORG received a response .

On DATE the Urus - Martan District Prosecutor ’s Office quashed the decision of DATE on the ground that the investigation was incomplete and resumed the proceedings . The fourth applicant was notified of the decision .

On DATE the Urus - Martan District Prosecutor ’s Office again suspended the investigation on account of the failure to identify the perpetrators . The fourth applicant was informed accordingly .

On DATE the Urus - Martan District Prosecutor ’s Office informed the fourth applicant that requests for certain investigative measures had been sent to district prosecuting authorities of GPE . Requests to activate search measures had also been sent to ORG district department of the interior . However , despite the measures taken it was proving impossible to identify the perpetrators or establish Mr PERSON whereabouts .

On DATE the Prosecutor ’s Office of GPE quashed the decision of DATE to suspend the investigation and resumed the proceedings . The decision stated , inter alia , that in the course of the resumed investigation it would be necessary to verify the first applicant ’s allegations that his grandson had been apprehended by officers from the Urus - Martan district military commander ’s office and the Urus - Martan district department of the ORG . It ordered ORG to take the investigative steps required . The fourth applicant was notified of the decision .

On DATE ORG suspended the investigation once again on account of the failure to identify the perpetrators . The fourth applicant was informed accordingly .

After that the investigation was resumed on DATE , suspended on DATE , resumed on DATE , suspended on DATE , resumed on DATE , suspended on DATE and again resumed on CARDINAL DATE . According to the ORG , it has been pending since that date .

According to the applicants , the investigative authorities have not inspected the scene of the abduction . According to the ORG , an inspection of the PERSON house in GPE street was carried out on an unspecified date . No evidence was found or seized .

The applicants submitted that , despite their numerous requests , they have received no information about the investigative measures that have been taken .

On DATE the first applicant filed a complaint with ORG concerning the investigating authorities’ inaction and their failure to provide him with access to case files nos . ORG and DATE . In his complaint , he stated that Mr PERSON and Mr PERSON had been apprehended by servicemen who had arrived on APCs .

DATE . On DATE the Urus - Martan Town Court upheld the part of the complaint relating to the investigation in case no . ORG but dismissed the part relating to the investigation in case no . DATE .

As regards case no . ORG , which concerned the abduction of PERSON PERSON , the court held , in particular :

“ ... [ T]he decision of ORG to refuse [ the first applicant ] the right to study the materials in criminal case no . DATE is in breach of the provisions of the LAW and should be quashed .

The materials from criminal case no . DATE ... show that at TIME on DATE unidentified men in camouflage uniforms and masks broke into the PERSON ’s house ... and took [ Mr ] PERSON with them .

In the course of the investigation ... the following investigative measures were taken . [ The second , seventh , eighth applicants and PERSON were questioned as witnesses . Requests for certain investigative measures were sent . According to the Urus - Martan district department of the ORG , they had not apprehended [ Mr PERSON ] PERSON or taken him to their LOC . Similar responses were received from ORG district military commander ’s office , the head of military unit no . DATE , the operational - search bureau of ORG , district prosecutor ’s offices and ORG .

On DATE [ the first applicant ] ... was granted victim status .

In the course of the investigation [ the perpetrators ] were not identified and the whereabouts of [ Mr PERSON ] PERSON [ were not established ] , as a result of which the investigation was repeatedly suspended on account of [ the failure to identify the person ] to be charged with the offence . The investigation was suspended for the last time on DATE .

At the same time , the materials in the case file show that the investigator failed to take all the investigative measures necessary to establish the whereabouts of the abducted person and to identify the perpetrators . In particular :

- it has not established to which [ authority ] within the territory of the Urus - Martan district at the time of [ Mr ] PERSON apprehension the APCs belonged , where each [ ORG ] was located at the time of the abduction and on whose orders it was being used ;

- neither the heads of the [ authorities ] which operated APCs nor the drivers of individual [ APCs ] were questioned ;

- the [ military ] register concerning the use of military vehicles at the time of the abduction was not examined ;

- the heads of the military commander ’s office , of the district department of the ORG and of the district department of the interior were not questioned with a view to finding out who had been granted permission to pass through the town of ORG on TIME when freedom of movement was restricted ;

- the register of persons detained in the period concerned was neither seized nor examined , and the persons in charge of detention facilities were not questioned with a view to establishing the circumstances relating to the [ placement ] of abducted person in such facilities ;

- G. , the military commander of ORG district , was not questioned , whereas from the records of questioning of [ the first applicant ] it would appear that he had claimed to have been able to influence the fate of [ his abducted relatives ] . PERSON , head of the ORG department , who had admitted his involvement in [ Mr PERSON ] PERSON ’s abduction , was not questioned either .

The above circumstances prove that [ the first applicant ’s ] request for the [ proceedings ] to be resumed and for a more thorough and complete investigation is well - founded ... ”

As regards case no . DATE , the court dismissed the complaint on the ground that the first applicant had not been granted victim status in those proceedings and had failed to submit to the court documents corroborating his claim to be Mr PERSON grandfather .

Following the delivery of the judgment , on DATE the first applicant requested ORG to give him access to materials in case file no . ORG and to allow him to make copies of relevant documents . His request was refused . The first applicant complained to ORG against the refusal .

On DATE ORG dismissed the complaint . The first applicant appealed .

On DATE ORG of GPE dismissed his appeal . It noted that LAW provided that a victim could only inspect records pertaining to investigative actions in which he had participated . He could inspect the entire case file once the investigation had been completed . Since the investigation in case no . PERSON was still pending , the refusal of ORG to provide the applicant with access to the entire case file was lawful .

On DATE the fourth applicant filed a complaint with ORG concerning the inaction of the investigating authorities and their failure to give her access to case file no . DATE . In her complaint she stated that Mr PERSON had been apprehended by servicemen who had arrived on APCs .

On DATE ORG upheld her complaint . It held , in particular , that the prosecuting authorities’ refusal to allow her access to the materials in the case file was in breach of the LAW . It further noted that in the course of the investigation the first , second , third and fourth applicants , PERSON and PERSON had been questioned as witnesses . In reply to requests for information ORG district department of the ORG had stated that they had not apprehended Mr Yunadi PERSON or taken him to their LOC . Similar responses had been received from ORG district military commander ’s office , the head of military unit no . DATE , the operational - search bureau of ORG , district prosecutor ’s offices and ORG .

DATE . The court further noted a number of flaws in the investigation no . DATE similar to those noted in its decision of CARDINAL DATE in respect of the investigation in case no . MONEY ( see paragraph CARDINAL above ) and ordered ORG to conduct a more thorough and complete investigation .

Following the delivery of the judgment , on DATE the fourth applicant requested ORG to give her access to the materials in case no . DATE and to allow her to make copies of relevant documents .

On DATE ORG refused the request on the ground that in accordance with LAW a victim could only inspect records pertaining to investigative actions in which he had participated .

Despite a specific request by ORG , the Government did not submit copies of the investigation files in cases nos . ORG and DATE concerning the abduction of Mr PERSON and Mr PERSON . They submitted CARDINAL pages of case - file materials containing decisions to institute , suspend and resume the investigation and to grant victim status . The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the “ materials of the criminal cases containing no state or military secrets ... without making copies thereof ” at the location of the preliminary investigation in GPE .

For a summary of relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


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

The applicant was elected to ORG during the municipal elections of DATE and has served as a councillor since DATE . His term of office lasts DATE .

On DATE amendments to the DATE ORG ( County ) Act , enacted in DATE , came into force . These amendments impose an obligation on local councillors to disclose information to the public concerning their financial situation and property portfolio . This is to be done through a declaration which is submitted to the president of the local council . These declarations are subsequently published in ORG , available to the general public via the Internet .

In DATE the applicant asked the ORG to lodge a request with ORG to examine whether the provisions of LAW , as amended in DATE , were compatible with the LAW insofar as they imposed an obligation on local councillors to make detailed information available to the general public about their property and income . The applicant argued that the provisions of LAW had not previously provided for such a disclosure . He was of the opinion that this obligation was in breach with the DATE ORG . He argued that making such information publicly available would facilitate political harassment and could expose him and his family to the threat of theft or burglary . He could refuse to submit a declaration , but he would then be deprived of the DATE emoluments payable for his work as councillor . He drew the ORG ’s attention to the fact that , even in such a scenario , he would not be deprived of his office . In his view , this cast doubt on the effectiveness of the obligation to submit the impugned declaration . Insofar as declarations were designed to curb corruption , it was illogical that a failure to submit such a declaration would not result in removal from office .

In his replies of DATE , CARDINAL DATE and CARDINAL DATE , the ORG indicated that he was in receipt of voluminous correspondence drawing attention to various aspects of the transparency obligations imposed by the DATE amendments to LAW . His correspondents argued that the scope of the obligation to make publicly available details pertaining to the financial situation of various local politicians and officials was too extensive and breached the right to respect for private and family life . In the light of the public reaction to those amendments , the ORG was considering whether to ask ORG to examine their compatibility with LAW .

Eventually , however , after analysing various provisions of the LAW , the ORG complained to ORG only about those amendments to LAW which imposed a wide - ranging obligation on certain local politicians to submit declarations about various aspects of the business activities of their close and extended families , in particular insofar as these activities concerned companies owned or co - owned by local municipalities .

In a judgment of DATE , ORG found certain of those provisions constitutional and declared others incompatible with LAW . However , it did not examine the obligation complained of in the present case , but only dealt with those obligations under LAW which related to the business activities of local LOC families .

The applicant does not wish to disclose details about his income and property as required by LAW as amended . He has not submitted a declaration as required . Consequently , he has received no emoluments for his work as a councillor since DATE , these emoluments amounting to MONEY ( ORG ) per month .

LAW reads :

Every citizen shall have the right to obtain information on the activities of public bodies and of persons discharging public functions . This right shall also include the receipt of information on the activities of self - governing economic or professional bodies and other persons or organisational units in connection with fields in which they perform public duties and manage communal assets or property belonging to ORG .

The right to obtain information shall guarantee access to documents and entry to the sittings of collective public bodies which have been formed by universal suffrage and shall include the opportunity to make sound and visual recordings .

Limitations on the rights referred to in DATE and CARDINAL above may be imposed by statute solely in order to protect the freedoms and rights of other persons and economic subjects , public order , security or important economic interests of the ORG .

The procedure for the provision of information referred to in DATE and CARDINAL above shall be specified by statute and , as regards the PERSON and the ORG , by their rules of procedure .

Article CARDINAL of the LAW provides :

Everyone shall have the right to legal protection of his private and family life and of his honour and good reputation and the right to make decisions about his personal life .

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles to be specified by statute , everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision concerning his freedoms or rights or on his obligations as set out in the LAW . ”

By a judgment of DATE ORG examined a request to examine the compatibility with LAW ( which was later replaced by the legislation complained of in the present case ) .

In this request the complainants argued that the provisions of LAW insofar as they prevented members of executive boards of local councils and various other officials of local administration from conducting business activities on their own account were incompatible with the LAW . This was because , the complainants averred , they imposed undue restrictions on business freedom guaranteed by its LAW . It was also argued that these restrictions were in breach of the principle of equality guaranteed by its LAW .

ORG recalled the history of legislation intended to limit the scope of business freedom of persons engaged in various bodies of local government since the first such law was adopted in DATE . It reiterated that these laws were to curb possible corruption by making it impossible for certain categories of public officials to combine their public functions with business activity .

The ORG further considered that the provisions complained of could not be said to breach the principle of equality as guaranteed by LAW . This principle meant that all persons having the same legally relevant characteristics were to be treated equally , without differences to their advantage or disadvantage . However , this principle accepted that different classes or groups of persons be treated differently ( GPE ) .

In this connection , it reiterated that the case - law of the ORG regarding restrictions of business activity of persons holding public functions was already established in that it had repeatedly held that such persons had to expect that such restrictions would be imposed on them . It recalled that these restrictions were meant to prevent public officials from engaging in situations and dilemmas of such a nature as to be capable of not only casting doubt on their personal honesty and integrity , but also of undermining authority of the ORG ’s bodies and of weakening the trust of the electorate and public opinion in their functioning ( W CARDINAL/CARDINAL ) .

The ORG referred to its judgment given in DATE in which it had stated that the legislature was empowered to impose various restrictions on local councillors in respect of their professional activities , provided that such limitations would be reasonably linked to public interest they were intended to serve and that the scope of such limitations remained proportionate to the importance of such public interest ( K CARDINAL/CARDINAL ) .

As regards the temporal scope of application of LAW , the ORG noted the ORG argument that the introduction of that Act adversely the legal situation of the public officials concerned in that it had extended during their mandate the scope of limitations applicable to them . The ORG considered that the prohibition on laws which harmed the position of individuals applied only to existing legal relationships within the area of civil , social insurance or administrative law . It could not be interpreted in such a way as to constitute a total ban on the introduction of new public law regulations which would be less advantageous for persons carrying out public functions during their mandate . It was of the view that such persons could not be considered as having any ‘ acquired rights’ in respect of the conditions of their mandate that could be compared to such rights within the meaning of this term for the purposes of civil or social insurance law .

Under LAW ( c ) LAW of CARDINAL DATE as amended in DATE , local councillors , members of local government executive boards , executive secretaries to county councils and members of governing boards of legal entities with legal personality , such as companies owned or co - owned by local municipalities , are to submit declarations on their financial situation and property portfolio , hereinafter referred to as “ declarations ” .

The declarations must cover their personal property and assets owned as marital property , and must list the following assets : savings and other liquid assets , all immovable property and shares and actions in public companies owned by both public - law and private - law persons . The declarations must also include information on property purchased by way of tender from any public - law entities and information about businesses owned or run by the persons obliged to submit declarations .

The obligation to submit a declaration also covers information on income earned in the context of paid employment or any other income - generating professional or business activity . Further , information on all movable property exceeding PLN CARDINAL,CARDINAL in value is to be included . Information on all loans of CARDINAL taken out by the individual concerned and the conditions under which these loans were granted is to be disclosed .

Pursuant to LAW , the declaration must be submitted within DATE of the date on which a councillor makes a solemn oath to perform his or her duties honourably . ORG declarations are to be submitted to the President of ORG .

Declarations are to be submitted for DATE until DATE of DATE at the latest , and also DATE prior to the end of a councillor ’s term of office .

The declaration is to be accompanied by a copy of the DATE income - tax declaration for the relevant DATE .

Declarations are to be submitted on a standardised form , provided in the LAW issued by the Prime Minister on DATE .

The president of the local council is empowered to examine the declaration submitted by councillors and is obliged to transmit a copy to the local tax office .

A copy of the declaration is to be kept for DATE in the local council ’s public records .

Under LAW ( c ) § CARDINAL , the local tax office is empowered to examine whether the declaration is compatible with the councillor ’s income - tax declaration for the relevant year . Where doubts arise as to its veracity , the president of the local council or the tax office may request the local tax inspectorate to institute a tax audit procedure in respect of the councillor .

Pursuant to LAW , the president of the council is obliged to submit a report to the council by DATE , listing those councillors who have failed to submit declarations . This report should include information about any irregularities discerned in the declarations and about any measures taken in connection with these irregularities , such as those provided for in LAW ) § CARDINAL of the Act .

Under LAW ( d ) , the information contained in the declaration is to be made public , with the exception of ORG home addresses and the address of other real estate that they own .

Pursuant to LAW , a councillor who fails to submit a declaration will not be paid his or her DATE emoluments until such time as a declaration is duly submitted .

Electronic copies of all submitted declarations are accessible to the general public through ORG , as provided for in the DATE LAW .

Pursuant to LAW , a Public Information Bulletin has been created . It is an official publication and is accessible to the general public via the Internet . ORG is responsible for its creation and functioning . He or she is also responsible for ensuring that all public - law entities which are legally so obliged submit any information which is to be made public and that the ORG ’s home - page contains links enabling visitors to access all such information .


The applicant was born in DATE and lives in PERSON . He is a businessman .

On DATE the applicant requested ORG to bring criminal proceedings against ORG , a businessman from GPE whom he suspected of having committed fraud . The request was examined by various authorities but no criminal proceedings were brought .

On DATE the applicant complained to the police that CARDINAL unknown men had left a message at the entrance to his flat saying that they would break his hands if he did not “ abstain from writing ” . On DATE the applicant complained to the police that a shot had been fired through a window in his flat . He claimed that he was being harassed because he had written articles about several former members of ORG . Subsequently the applicant was informed that the police could not identify the perpetrators .

On DATE the applicant complained to the head of ORG that , following a change of the central switchboard , telephone conversations at his agency were frequently interrupted . The applicant stated that there was a noise on the telephone prior to the interruption of a call which was similar to that which had formerly occurred when telephone calls were tapped by the NORP secret police . He requested that the fault be remedied .

On DATE a police investigator brought criminal proceedings against the applicant on the ground that he was suspected of having stolen goods from NORP The decision was based on a written communication by the district prosecutor in ORG ) .

On DATE the applicant asked ORG to discontinue the criminal proceedings against him . In his letter the applicant complained , without providing further details , that the police investigator dealing with his case had obtained information on him by unlawfully tapping his telephone . He requested that criminal proceedings be brought against a person or persons unknown for illegal telephone tapping .

On DATE the applicant addressed a letter to P. , the ORG I district prosecutor . The letter contained , inter alia , the following statements :

“ Since you have not succeeded , comrade prosecutor , in attaining your aims in CARDINAL area , you continue energetically , in accordance with the practice of the [ former ] ORG agents , to fabricate another case [ against the applicant ] as you have learned to do under the so - called infallible socialist law . On this occasion I can assure you , however , that I have not bowed to the high representatives of the former political system and , in particular , the [ former ] ORG agents who paid at least as much attention to my person as you do now . I do not intend DATE to let myself be intimidated , especially not by individuals such as yourself , a person with a dubious past , not to speak of [ your ] other qualities ...

It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity , professionalism and respect for the law . I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself ... to be an almighty lord of the NORP [ LOC ] and the GPE [ LOC ] and , as such , beyond anyone ’s reach as you are , for the time being , under the protective hand of comrade [ M. ] . Abuse of the law may have very unpleasant consequences for you . For the time being , I will only mention some of the abuses which do not call for any comments . ”

In the letter the applicant further stated that the addressee was responsible for the dismissal of his criminal complaint against ORG and the institution of criminal proceedings against him in DATE , and that he had unlawfully ordered the tapping of his telephone .

P. submitted the letter to his hierarchical superior , ORG . In a letter of CARDINAL DATE the latter informed the applicant that it had not been established that PERSON had given an order to tap his telephone or that he had otherwise acted unlawfully .

In the meantime , on DATE , the applicant complained to ORG PERSON had committed an offence in that he had misused his authority . The letter read , inter alia , as follows :

“ [ P. ] accepted the request of [ ORG ’s lawyer ] ... that no criminal proceedings would be brought against [ H. ] in GPE notwithstanding that sufficient evidence existed to do so ... Of course , money paid by [ H. ] with a view to covering up his fraudulent activity also played a role in the matter . It would therefore be worth examining in this context whether [ an offence of bribery was not committed ] ...

Following a ... threat ... by ... an investigator from ORG in the context of the case of [ H. ] ... I went to the aforesaid office on DATE . After I had rejected an ‘ agreement’ which was proposed to me , [ the investigator ] , a former ORG agent , accused me of having stolen [ goods from H. ] in DATE . Thus [ P. ] has been unwilling to bring proceedings against [ H. ] since DATE , and has arranged , through a police investigator who can easily be blackmailed , for proceedings to be brought against me in revenge for the justified complaints I had lodged against him . [ P. ] did so contrary to [ the relevant provisions of LAW ] because so far ... there is no evidence before [ the relevant authorities ] from which to conclude with sufficient certainty that I stole anything from [ H. ] Subsequently I realised that my telephone , which was also used by my detective agency , had been tapped contrary to LAW . ”

On a petition by ORG , ORG agreed that criminal proceedings be brought against the applicant for insulting a public prosecutor . The case was transferred to a public prosecutor in Liptovský Mikuláš . On DATE the applicant was charged with insulting a public official in his letters of DATE and DATE mentioned above .

In a letter of CARDINAL DATE addressed to ORG , the applicant expressed the view that the purpose of the harassment to which he was subjected in DATE and DATE had been to make him withdraw his criminal complaint against PERSON He requested that an investigation be opened .

In DATE the newspaper ORG noviny published an article by a third person describing the applicant ’s case in detail . It was entitled “ How the Red Plague operates in LOC ” and contained quotations from the applicant ’s letters . The relevant parts read as follows :

“ ... It is on this basis that the district prosecutor ’s office in PERSON started a prosecution against [ the applicant ] on DATE . In order to give the reader an idea of what is possible in [ GPE ] , I will quote the text which , according to public prosecutor [ L. ] , constitutes a criminal offence .

In his message of DATE addressed to ORG in GPE , [ the applicant ] stated in respect of [ public prosecutor P. ] that in the criminal case of [ H. ] he had deliberately acted wrongly so that ‘ he could satisfy his friend [ M. ] from PERSON , the former President of ORG whom ORG of GPE had identified as a key official and who is now [ H. ] ’s lawyer , that no criminal proceedings would be brought against [ H. ] in GPE notwithstanding that sufficient evidence existed to do so ... Of course , money paid by [ H. ] with a view to covering up his fraudulent activity also played a role in the matter . It would therefore be worth examining in this context whether the facts do not fall under Articles CARDINAL and CARDINAL of the Criminal Code [ which govern the offence of bribery]’ .

In the same document [ the applicant ] stated : ‘ Subsequently I realised that my telephone , which was also used by my detective agency , had been tapped contrary to LAW

In a letter dated DATE and addressed to public prosecutor [ P. ] , [ the applicant ] stated among other things : ‘ Since you have not succeeded , comrade prosecutor , in attaining your aims in CARDINAL area , you continue energetically , in accordance with the practice of the [ former ] ORG agents , to fabricate another case as you have learned to do under the so - called infallible socialist law . On this occasion I can assure you , however , that I have not bowed to the high representatives of the former political system and , in particular , the [ former ] ORG agents who paid at least as much attention to my person as you do now . I do not intend DATE to let myself be intimidated , especially not by individuals such as yourself , a person with a dubious past , not to speak of [ your ] other qualities ... ’

In the same letter [ the applicant ] went on : ‘ It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity , professionalism and respect for the law . I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself to be an almighty lord of the NORP [ LOC ] and the GPE [ LOC ] and , as such , beyond anyone ’s reach since you are , for the time being , under the protective hand of comrade [ M. ] . Abuse of the law may have very unpleasant consequences for you . For the time being , I will only mention some of the abuses which do not call for any comments.’

Thus , on the basis of these statements , prosecutor [ L. ] , on the instructions of [ the General Prosecutor ] , started a prosecution against [ the applicant ] . Every decent person must be astonished to learn of such stupid behaviour . ”

On DATE the applicant stated before the prosecutor in PERSON that he had intended to criticise PERSON for his wrongful actions but not to insult him . He further informed the public prosecutor dealing with the case that he had not written any newspaper article on the issue , but had merely provided the author with the relevant documents .

On DATE ORG submitted a document to the district prosecutor ’s office in PERSON indicating , with reference to the relevant register , that the PERSON I district prosecutor had not ordered the tapping of the applicant ’s telephone DATE .

On DATE the FAC district prosecutor indicted the applicant before LOC on the charge of insulting a public official . On DATE FAC transferred the case to ORG for reasons of jurisdiction . As the public prosecutor affected by the applicant ’s statements was responsible for the same district , ORG , on DATE , transferred the case to ORG .

On DATE ORG issued a penal order in which it convicted the applicant of attacking a public official , on the ground that , in his letters of DATE and DATE , he had insulted a public prosecutor . The court sentenced the applicant to CARDINAL months’ imprisonment suspended for DATE .

The applicant appealed against the order . The case was assigned to another judge . On DATE the ORG convicted the applicant under LAW of LAW of insulting a public official and sentenced him to CARDINAL months’ imprisonment suspended for DATE . The judgment stated , in particular , that in his letters the applicant had alleged that the public prosecutor had deliberately acted improperly as regards the applicant ’s request of DATE for criminal proceedings to be brought against ORG ; that the public prosecutor had done so at the request of the lawyer representing PERSON ; and that ORG had paid a sum of money for this purpose . ORG also noted that the applicant had accused P. of having been unwilling to uphold his criminal complaint , of having ordered criminal proceedings to be brought against him and of having his telephone illegally tapped .

The judgment further stated that the applicant had not shown that the public prosecutor in question had failed to act in accordance with the law . The court therefore concluded that the applicant ’s statements were defamatory and grossly offensive .

ORG did not accept the applicant ’s defence that the sole purpose of his letters had been to have his request for criminal proceedings to be brought against PERSON dealt with appropriately . The court noted that , besides the CARDINAL letters in question , the applicant had sent a considerable number of other complaints concerning the same issue which , however , had contained no defamatory or offensive remarks . Both ORG and ORG had dealt with the applicant ’s complaints and had dismissed them as being unsubstantiated .

The applicant appealed , both personally and through his lawyer . He alleged that the purpose of his remarks had been to prevent further delays in the proceedings concerning his criminal complaint of DATE , and not to offend P. He further claimed that the statements in question were not offensive and did not constitute an offence .

On DATE ORG dismissed the appeal after hearing evidence from the applicant and asking him to substantiate his allegations .

ORG found that in the statements made in his letters of DATE and DATE the applicant had grossly insulted a public prosecutor without justification . In particular , it stated that the applicant had failed to substantiate his allegation that ORG had paid a sum of money in order to prevent criminal proceedings being brought against him and reiterated that ORG had not established that P. had acted unlawfully in this or any other respect .

ORG further considered defamatory and grossly offensive the applicant ’s statements that the public prosecutor had acted in accordance with the practice of the former ORG agents , had a dubious past , not to speak of his other qualities , and possibly considered himself to be an almighty lord of LOC and LOC who was “ beyond anyone ’s reach ” .

In ORG view , the applicant had failed to show that he had a justified reason to make such statements . The court did not accept the applicant ’s argument that he had doubts about the past and qualities of the public prosecutor because the latter had studied socialist law , had failed to take appropriate action on the applicant ’s criminal complaint of DATE , and initiated criminal proceedings against him .

In its judgment ORG pointed out that the applicant had not been hindered in seeking redress before the appropriate authorities for the actions of PERSON which he considered inappropriate or unlawful . It held , however , that by making defamatory and offensive remarks the applicant had committed an attack against a public official within the meaning of LAW of LAW . ORG upheld the sentence which ORG had imposed on the applicant .

On DATE ORG revoked the trading licence under which the applicant had been authorised , inter alia , to run a detective agency , on the ground that he had been convicted of an offence . On DATE ORG dismissed the applicant ’s appeal against this decision .

On DATE the ORG quashed the administrative decisions concerning the revocation of the applicant ’s trading licence and remitted the case to ORG . In its judgment ORG noted that both administrative authorities , deciding at lower instances , had failed to establish any relevant legal grounds for their decisions .

On DATE ORG issued a decision noting that the applicant had not committed any offence during the probationary period and stating that he was to be considered as not having been convicted .

As from DATE the relevant law was amended in that persons wishing to run private security agencies were required to obtain the approval of the police headquarters . The applicant did not ask for such approval and returned his trading licence of DATE , under which he had been allowed to run a detective agency , to ORG on DATE . In the meantime , on DATE , he registered with the relevant authorities as running a different business . He attached a certificate indicating that his criminal record was clean and received a new trading licence on DATE .

Article CARDINAL § CARDINAL of LAW provides that a person who utters grossly offensive or defamatory remarks in respect of a public official relating to that official ’s exercise of his or her powers shall be punished by DATE imprisonment or a fine .


The applicants are NORP citizens , born in DATE and DATE respectively and resident in PERSON . Before the ORG they are represented by Mr. Christian Holmsten , a lawyer and member of the Bar practising in GPE . The respondent Government are represented by Mr PERSON , Director ORG , and Mr PERSON , Director , both of ORG .

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

The applicants are married and the parents of PERSON , born in DATE , and PERSON , born in DATE . The applicant mother has a third child , PERSON , born in DATE , who also lived with the applicants at the beginning of the events of relevance to the application .

On DATE the first applicant was apparently informally told by a social welfare official that public care orders regarding the children were being prepared . On DATE ORG ’s father was formally heard in respect of the proposed public care of her . At a meeting on DATE the applicants were formally notified that ORG ( sosiaalijaosto , socialsektionen ) of ORG ( sosiaalilautakunta , socialnämnden ) of GPE would , on DATE , consider a proposal that the children should be placed in public care . The applicants opposed the proposal . They allegedly obtained the material which was to form the basis for the proposal only on DATE , CARDINAL DATE . According to ORG , the material was at the applicants’ disposal in ORG from DATE , CARDINAL DATE . The material contained various expert opinions and affidavits and totalled CARDINAL pages .

In their submissions of CARDINAL DATE the applicants , represented by their current counsel , opposed the proposed public care , invoking , inter alia , an opinion submitted by PERSON , a general practitioner , according to whom the children were normally developed physically . A further opinion of DATE was issued by PERSON , Acting Head of ORG at ORG of GPE , who had been examining PERSON during DATE . PERSON stated in essence that the delay in PERSON 's mental development was being successfully followed up by various support measures . This opinion was submitted to the members of ORG on DATE .

Having heard the applicants and the leading social welfare official at its meeting on DATE , ORG placed the children in public care , considering that the applicants were incapable of ensuring their basic care and education , that their home was lacking incentives and that the applicants had shown indifference in regard to the children 's overall well - being . The support measures provided by ORG had proved to be insufficient . The children were to be placed in a local children ’s home pending their placement in a foster family . According to the care orders , the public care was expected to last until the children had reached the age of majority . The children ’s right to maintain regular contact with their parents and with each other would be ensured . They could receive visits in the children ’s home during visiting TIME . The Social Section relied on section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag DATE ) . The children were fetched from the applicants ' home on DATE TIME

On DATE the applicants appealed to ORG ( lääninoikeus , länsrätten ) of GPE , requesting an oral hearing for the purpose of hearing PERSON and ORG as experts concerning the children ’s health as well as various other persons as witnesses in regard to the conditions in the applicants ' home . The applicants considered it unfair that the care orders had been based on the written reports of various public officials and experts consulted by the social authorities without the applicants’ having been able to question them orally . The applicants conceded that they had had financial problems but contended that they had always provided their children with satisfactory care .

In DATE ORG responded to the ORG appeals and the applicants submitted a rejoinder alleging that the children had expressed a strong wish to return home . On DATE ORG rejected the appeals , having found an oral hearing unnecessary . ORG reasoning read in extenso as follows :

( translation from NORP )

“ According to the evidence transpiring from the documentation on file , the shortcomings in the children ’s care and the other conditions in their home seriously jeopardise the children ’s development . The open - care assistance has proved to be insufficient and substitute care has been deemed to be in the children ’s best interests . ORG has therefore been under an obligation to place [ the children ] in the care of [ the ORG ] . ”

ORG relied on LAW , subsection CARDINAL , of LAW and on sections CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordning DATE ) .

The applicants appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting that the case be referred back to ORG for an oral hearing of experts and witnesses . The applicants again argued that they had only had DATE at their disposal for preparing for the decisive meeting on DATE . In addition , the preparation of their subsequent appeals had been hampered by the impossibility of having the children , then already removed from the applicants’ home , examined by experts of the applicants’ choosing .

On DATE ORG rejected the applicants ' request and appeal as a whole by upholding the lower court ’s decision .

According to the information available to the ORG , PERSON is still staying at a children 's home in GPE . S. and PERSON are staying in foster families at Jalasjärvi , QUANTITY from GPE . According to the applicants , they met PERSON in the children ’s home once DATE but were allegedly able to meet PERSON and ORG only in DATE

DATE and DATE . During DATE the applicants and the children met twice .

The relevant legislation is outlined in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , CARDINAL , § § DATE ) . Those provisions of particular relevance to the present case are described below .

According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) .

If a child is in imminent danger or otherwise in need of an immediate care order and foster care , ORG may take him or her into care without submitting the decision to ORG for prior approval ( section CARDINAL ) . An emergency care order shall expire within DATE of the decision , unless referred for reconsideration under LAW of LAW . An ordinary care order pursuant to section CARDINAL must be issued within DATE , or on special grounds within DATE , of the emergency order . Both ordinary and emergency care orders may be appealed to the administrative courts .

The child ’s custodians , biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .

According to section CARDINAL of LAW ( sosiaalihuoltolaki , socialvårdslag PERSON ) , a decision made by ORG is enforceable regardless of an appeal ( a ) if the decision requires immediate implementation ; ( b ) if , for reasons due to the arrangement of social welfare , the enforcement of the decision can not be delayed ; or ( c ) when ORG has ordered the decision to be enforced at once .

According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child ’s contacts with his or her parents and other close persons ( subsection CARDINAL ) .

According to section CARDINAL of LAW and section CARDINAL of LAW , ORG or the director of a children ’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children ’s home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .

The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child ’s care and upbringing and for the child ’s parents ; ( c ) how the child ’s right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

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

The applicant ’s wife died on DATE , leaving CARDINAL dependant children . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was confirmed by an appeal tribunal 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 applicant was not in receipt of child benefit at the time of his claim .

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


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

Giorgio Malinverni;Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE ( in GPE ) .

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

The applicant arrived in GPE on DATE as an asylum seeker .

On DATE she was placed in an accommodation centre for asylum seekers in the GPE of GPE .

On DATE she was moved to the “ CARDINAL ” accommodation centre in GPE ( Aargau ) .

On DATE the applicant gave birth to a stillborn baby , the father of whom was a NORP national . The autopsy established that the fœtus had died DATE before delivery , at DATE and DATE . At the request of the midwife , the applicant , who was in a state of shock , was taken from the “ LOC ” accommodation centre to the hospital in the GPE of GPE . When asked by the midwife , both the applicant and the baby ’s father said that they did not want to see the baby ’s body .

On DATE the social worker ( PERSON ) and the registrar of births , marriages and deaths ( PERSON ) of the municipality of NORP were informed of the child ’s birth . Believing that it was not compulsory in the case of a child stillborn at the start of DATE of pregnancy to be buried with an attendant ceremony , they ordered a burial without a ceremony , in the absence of the applicant . They based their decision in particular on the fact that the parents had not expressed a wish to see the body before the autopsy and took the view that , given her mental state , the applicant was not fit to attend the burial .

On DATE , after having been placed in a wooden coffin by a firm of undertakers , the child ’s body , on instructions from the municipality social worker , was carried in a delivery van to the cemetery of the municipality of Buchs for burial in a communal grave for stillborn babies ( GPE für GPE ) .

It appears that the applicant left the hospital that DATE ( see the decisions of the GPE of ORG of DATE , paragraph CARDINAL below ) .

On DATE a member of the psychiatric services department took the applicant to the cemetery to lay flowers .

According to the Government , the applicant was informed on DATE that it would be possible to organise a funeral for her child at DATE . In her statements of DATE ( see paragraph CARDINAL below ) the applicant disputed that assertion .

On DATE she went to the cemetery and , accompanied by the priest , placed various stones and laid flowers at the site at which her child had been buried .

On DATE the applicant lodged a criminal complaint against persons unknown at the district office ( PERSON ) of ORG and joined the proceedings as a civil party . Criminal proceedings were brought against the social worker and the registrar of births , marriages and deaths of the municipality of PERSON for misuse of official authority , disturbing the repose of the dead and , in the alternative , removal of property within the meaning of LAW . The applicant submitted that her child ’s body had been unlawfully removed from her and that it had been carried in an inappropriate vehicle without the authorisation required for this kind of transport . In this context , she complained of a violation of her personal freedom guaranteed by LAW and , in her submission , protecting the feelings of an individual vis - à - vis a deceased family member ( see paragraph CARDINAL below ) .

On DATE the applicant moved to GPE where her partner was living .

On DATE the applicant and her partner were questioned by the GPE cantonal police concerning the birth of their child and the circumstances that had surrounded it . Extracts of the interview with the applicant are reproduced below :

“ Question ( hereafter : “ Q ” ) CARDINAL : Were you informed of the various types of funeral ( burial , cremation or other ) for stillborn babies ?

Reply ( hereafter : “ R ” ) CARDINAL : The midwife , and then Dr R , asked me what I wanted to do with the body of my child .

Q CARDINAL : What type of funeral did you choose ?

R CARDINAL : I chose a normal burial with a ceremony .

Q CARDINAL : Did anyone mention to you that you could see your child ’s body ?

R CARDINAL : The midwife offered to let me see the child .

Q CARDINAL : Did you see your child ’s body ?

R CARDINAL : I was in shock and I declined because I did n’t feel up to seeing my dead child .

Q CARDINAL : Did the hospital staff give you any guidance on the subject of funerals ?

R CARDINAL : Yes . The formalities were carried out by C. [ the firm of undertakers ] . I just was n’t told the date .

Q CARDINAL : Were you informed of the funeral by GPE of births , marriages and deaths ?

R CARDINAL : No .

Q CARDINAL : Were you informed of the place , date and time of the burial ?

R CARDINAL : No .

Q CARDINAL : If so , by whom ?

R CARDINAL : ---

Q CARDINAL : If not , did you ask the child ’s father or any other person , in particular PERSON ( the director of the LOC accommodation centre ) for this information ?

R CARDINAL : I had a visit from Dr H on the following DATE , unless I am mistaken , at TIME She told me that my baby had been buried that very day at TIME I was very angry that I had not been present . She told me she was n’t familiar with the system .

Q CARDINAL : Did you feel up to attending your child ’s funeral ?

R CARDINAL : I was preparing myself because to convince myself that he had died , I had to see him placed in the ground .

Q CARDINAL : Why did n’t you attend the burial ?

R CARDINAL : I did n’t get the chance .

Q CARDINAL : Did the hospital staff suggest that you attend the funeral accompanied by a nurse ?

R CARDINAL : No . No such suggestion was made to me .

Q CARDINAL : Have you visited your child ’s grave and with whom ?

R CARDINAL : On DATE , DATE , I met PERSON , a social worker . He told me that I was not entitled to know where by baby was . I told him that even though I was an asylum seeker , I was first and foremost a mother and that I had the right to see my son ’s grave .

As he refused to tell me anything , I went to the police where I spoke to PERSON told me that she was not able to deal with this kind of problem . I insisted and after she had obtained some information , she told me that the “ municipality ” had made the decision .

I then contacted the priest of ORG in ORG and a pastoral assistant . They were astonished that I had not obtained satisfaction . They tried to obtain information but were unsuccessful .

Q CARDINAL : Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child ’s burial ?

R DATE : A huge loss . I experienced the shock of losing my child and on top of that , I do n’t know where he is buried .

Q CARDINAL : What type of loss have you suffered ?

R CARDINAL : I feel as though I have not been respected as a mother . I was kept out at every step .

Q CARDINAL : Would you have attended the burial if you had known the time and place ?

R CARDINAL : Yes .

Q CARDINAL : Were you informed that it was still possible to have a private funeral ?

R CARDINAL : No .

The following are extracts of the interview with the applicant ’s partner :

“ Q CARDINAL : Were you informed of the various types of funeral ( burial , cremation or other ) ?

R CARDINAL : The midwife asked me what kind of funeral I wanted for the child . I told her that as a NORP , I wanted a burial ( burial and ceremony ) . She asked me to contact a company called C.

Q CARDINAL : Were you told that you could see your dead child ?

R CARDINAL : Yes , the midwife suggested it to me .

Q CARDINAL : Did you see your dead child ?

R CARDINAL : No , I was n’t up to seeing him . I did however see some photographs of the baby at the cantonal hospital .

Q CARDINAL : Did you feel up to attending a burial ?

R CARDINAL : Yes

Q CARDINAL : Did you visit your child ’s grave at the cemetery and who went with you ?

R CARDINAL : I went with my girlfriend to the LOC “ unknown persons ” cemetery on DATE . As far as I ’m concerned , it ’s not a cemetery but a public park . There is no cross to indicate that it is a cemetery . There are CARDINAL statues and a few stones with names on them . According to the information provided by the NORP social services department , my child is buried at the edge of the trees . There is no proof .

R CARDINAL : Yes I have suffered a loss . After all , the dead baby was my son .

Q CARDINAL : What kind of loss ?

R CARDINAL : An emotional and human loss .

Q CARDINAL : Would you have attended the funeral if you had been aware of the date and place ?

R CARDINAL : Yes , absolutely .

Q CARDINAL : Were you told that it was possible to hold a funeral ceremony at a later date ?

R CARDINAL : I was given no such information .

On DATE , on the basis of the final reports from the NORP district office ( PERSON ) dated DATE , the GPE of GPE public prosecutor ’s office issued CARDINAL orders discontinuing the proceedings against the CARDINAL defendants . With regard to the offence of disturbing the repose of the dead , the public prosecutor ’s office considered that CARDINAL of the constituent elements of the offence – the mens rea of the defendants – had not been established . With regard to the inappropriate transport of the child ’s body , the public prosecutor ’s office acknowledged that the municipality ’s registrar of births , marriages and deaths had made a mistake of law . The accused were however ordered to pay some of the costs of the proceedings .

The applicant lodged CARDINAL appeals against the orders of CARDINAL August DATE before ORG ) of GPE . She argued that the CARDINAL accused had disturbed the repose of the dead through “ recklessness ” ( PERSON ) and that they should therefore be held criminally liable . In the context of the appeal concerning the registrar of births , marriages and deaths , the applicant complained more specifically of a violation of her personal freedom and the right to a decent burial , as individual rights protected by LAW , due in particular to the fact that she had not been invited to attend the burial of her child . Lastly , as regards the transport of the child , the applicant challenged the contentions of the public prosecutor ’s office , which had acknowledged a mistake of law .

In CARDINAL judgments of DATE ORG declared the appeals inadmissible . With regard to the offence of disturbing the repose of the dead , it considered that the constituent elements of the offence had not been made out in that case , but considered , nevertheless , that by ordering the child to be buried without a ceremony , the CARDINAL accused had been in breach of the relevant legislation . Indeed , both LAW , paragraph CARDINAL , of the order concerning funeral services in the GPE of LOC and LAW , paragraph CARDINAL , of the regulations governing cemeteries and funerals in the municipality of Buchs permitted burial DATE after DATE of the birth of the stillborn child . Furthermore , paragraph CARDINAL of Article CARDINAL of the regulations governing cemeteries and funerals in the municipality of Buchs made provision for a ceremony to be organised ( see paragraph CARDINAL below ) . ORG therefore considered that there had been a prima facie violation of the applicant ’s right to hold a ceremony . Furthermore , the applicant ’s mental and physical state would not have prevented her from attending her child ’s burial , since it was on precisely that date that she had left hospital . ORG stated , however , that it would have been possible to conduct a ceremony after the burial ( LAW , paragraph CARDINAL , of the regulations governing cemeteries and funerals in the municipality of LOC ; see paragraph CARDINAL below ) but that the applicant had made no such application .

As regards the complaint relating to the transport of the child , ORG acknowledged that the registrar of births , marriages and deaths had acted in breach of LAW since no authorisation , as provided for in paragraph QUANTITY thereof , had been granted . It considered however that the mistake committed by the official , who had little experience in such matters , had to be put in perspective , as did the actual effects ( NORP ) of his conduct . Therefore , in accordance with the principle of discretionary prosecution , the public prosecutor ’s office had legally entitled to discontinue prosecution of the accused .

On DATE the applicant lodged CARDINAL public - law appeals and CARDINAL applications for judicial review with ORG ( PERSON ) . As regards the offence of disturbing the repose of the dead , the applicant claimed that all the elements thereof , both objective and subjective , had been made out in the case at hand . She then submitted that her arguments concerning the right to a decent burial and the violation of personal freedom had not been properly considered by the lower courts . On that point , she asked ORG to transfer the part of her appeal concerning the right to a decent funeral to ORG , the only authority having jurisdiction in the matter . As regards the violation of her personal freedom , the applicant submitted that for the family of a deceased person , the mourning process was an essential manifestation of personality development , according to the relevant case - law of ORG . Lastly , she challenged the reasoning of the cantonal authorities concerning the inadequate transport of the child .

In CARDINAL judgments of CARDINAL DATE ORG dismissed all CARDINAL of the applicant ’s appeals . It declared the ground based on the right to a decent funeral inadmissible and determined that her application to transfer part of her appeals to ORG was vexatious ( geradezu mutwillig ) , pointing out that a specific type of appeal to that court existed for complaints of that nature .

Subsequently , leaving aside the matter of whether the objective elements of the offence of disturbing the repose of the dead had been met , ORG held that whatever the circumstances , mens rea on the part of the accused had not been established . Lastly , as regards the violation of personal freedom complained of by the applicant for having been prevented from completing her mourning process , and the violation of the right to a decent funeral , ORG held that these claims were well - founded , or at least could have been , but that they were not relevant in the context of the proceedings at issue , in which the only matter to be decided was whether or not the perpetrators were guilty of the acts complained of .

Under the federal law on assistance to victims of crime , the applicant lodged a parallel application for payment of compensation for the non - pecuniary damage suffered as a result of the infringement of her personality rights .

That application was rejected first by the social services of the GPE of GPE , then by ORG of that canton and , lastly , by ORG on DATE . While acknowledging that an offence committed by negligence could , as the case may be , fulfil the requirements of section CARDINAL(CARDINAL ) of the federal law on assistance to victims of crime even if it were not , as such , punishable as a crime because it lacked the requisite mens rea , ORG held that the offence in question in the present case , namely , misuse of authority , inherently fell outside the scope of that law .

By a decision of DATE the Buchs municipal council authorised the child ’s body to be exhumed at the expense of the municipality . The exhumation took place on DATE and the body was transferred to the applicant ’s new home in GPE where it was buried following a NORP ceremony .

On an unspecified date , the applicant married her partner .

Before DATE , when LAW came into force , LAW made no specific provision for the protection of the private sphere . However , in a judgment of DATE ( ORG CARDINAL I CARDINAL ) the ORG afforded it constitutional value as an element of personal ( or individual ) freedom .

In a judgment of DATE ( ORG CARDINAL Ia CARDINAL ) ORG acknowledged more specifically that personal freedom also encompasses the feeling of parental devotion and , accordingly , the right of parents to object to any unjustified intervention in relation to the remains of a deceased family member .

Article CARDINAL of the new LAW protects the private sphere and is worded as follows :

“ CARDINAL . Everyone has the right to respect for their private and family life , their correspondence and their relations established by mail and telecommunications .

Everyone has the right to be protected against the misuse of their personal data . ”

Article CARDINAL , paragraph CARDINAL , of the old LAW provided for an obligation on the authorities to ensure that the dead received a decent burial :

“ The disposal of burial grounds is a concern of the civil authorities . They shall make sure that every deceased person can have a decent burial . ”

LAW has not explicitly reproduced this provision .

Under the old section PERSON ) , paragraph a , sub - paragraph CARDINAL , of LAW on administrative procedure in force at the material time , ORG was the only authority with jurisdiction to deal with appeals lodged against the acts of cantons concerning burial grounds . The relevant paragraph was worded as follows :

“ An appeal to ORG shall be admissible against decisions taken at final instance at cantonal level and against legislative acts of the cantons for violation

a. of the following provisions of LAW or the provisions corresponding to cantonal constitutions :

Article CARDINAL , paragraph CARDINAL ( of LAW ) concerning burial grounds .

This provision was repealed with effect from DATE in line with the entry into force of the new LAW .

Paragraph CARDINAL of LAW concerning disturbing the repose of the dead punishes the removal of human remains . The provision reads as follows :

“ Any person who removes a dead body or part of a dead body or the ashes of a dead person against the will of those entitled thereto shall be liable to a custodial sentence or to a fine . ”

Article CARDINAL of the road traffic regulations reads as follows :

“ Motor vehicles shall not be used to transport dead bodies unless they are specifically equipped for this purpose . This shall not apply to the transport of victims from the scene of an accident .

The cantonal authorities may allow the use of another vehicle where it can be guaranteed that the body will be transported decently and in optimum conditions of hygiene . ”

Article CARDINAL , paragraph CARDINAL of the canton of GPE order concerning funeral services ( Verordnung über das PERSON ) is worded as follows ( unofficial translation ) :

“ Burial must take place within a time - limit which is in line with local custom and practice and as a general rule , not less than TIME after death . ”

Article CARDINAL , paragraph CARDINAL , of the regulations governing cemeteries and funerals ( Bestattungs- PERSON ) in the municipality of NORP establishes a similar rule . Paragraphs CARDINAL and CARDINAL thereof read as follows ( unofficial translation ) :

“ In principle , burials shall take place on DATE following the death ... .

After consultation with the family and the priest , the registry of births , marriages and deaths shall regulate the ceremony and burial ... ”

Article CARDINAL , paragraph CARDINAL , of the same regulations is worded as follows ( unofficial translation ) :

“ The burial or cremation of the coffin at the cemetery must be organised in person by the family , together with the registrar and the priest . Burial or cremation shall normally take place before the ceremony . Upon request , they may be scheduled to take place at a different time . ”