CASE OF MAUMOUSSEAU AND WASHINGTON v. FRANCE

No violation of Art. 8;No violation of Art. 6-1

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa

The first applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She lodged the application in her own name and on behalf of her daughter , PERSON , the second applicant , who was born on DATE in GPE , GPE ( GPE ) , and who has dual NORP and GPE nationality .

In DATE the first applicant married Mr GPE , a GPE national , in GPE . Their daughter GPE was born on DATE .

Following a serious marital crisis , on an unknown date PERSON initiated divorce proceedings in the GPE , but she was unable to pursue them because , according to her , she could not afford to .

On DATE , together with the second applicant , she went to stay with her parents in GPE for the holidays with her husband 's consent . She finally decided to remain there and did not return to the GPE , despite her husband 's repeated requests .

On a petition from Mr GPE dated DATE , ORG of the State of GPE , GPE , in an order of DATE , awarded temporary custody of GPE to her father , decided that she should live with him , and ordered the mother to return GPE immediately , requesting all competent bodies in GPE to assist the petitioner in repatriating the child to ORG . A hearing was scheduled for DATE for the purposes of examining the father 's petition for sole custody of his daughter and of hearing the mother 's reasons for her opposition to such a decision .

On DATE PERSON 's father applied to ORG in order to secure the return of his child . In accordance with the DATE LAW on the Civil Aspects of ORG , ORG , on DATE , transmitted to ORG , ORG in civil and commercial matters , a request for GPE 's return to GPE .

On DATE that request was forwarded to ORG at the Aix - en - ORG , on whose initiative the mother was summoned for interview by the gendarmerie . She stated that she refused to return the child to the father .

NORP The public prosecutor at the NORP tribunal de grande instance , having been authorised by an order of DATE on his ex parte application , brought proceedings against the first applicant for the purposes of obtaining an order that the child be returned to her father on the basis of Articles CARDINAL and CARDINAL of LAW . Mr GPE intervened on a voluntary basis in those proceedings .

In a judgment of DATE the court dismissed the claims of the public prosecutor and Mr GPE . It took the view that whilst GPE 's removal had not been in any way wrongful , since it was not disputed by Mr GPE that he had agreed to the child 's temporary removal to GPE , the fact that the child had been prevented from returning to her place of habitual residence , where Mr GPE exercised his rights of custody , was to be considered wrongful within the meaning of LAW , regardless of the reasons for which the applicant was opposed to her return . As to the risk for GPE in the event of her return , the court found as follows :

“ In the present case , in the light of the various attestations produced in the proceedings , both by PERSON GPE and by [ the applicant ] , there is no evidence of harmful conduct [ on the part of the father ] towards the child ... .

However , it has been established and is not disputed by Mr GPE that the child GPE , who was born on DATE [ sic ] and who is therefore aged DATE and DATE , has lived throughout her infancy mainly in the company of her mother , especially as the latter was not employed while in GPE . PERSON , who was PERSON 's doctor from her birth until DATE , has moreover certified that the applicant herself brought the child to most of the consultations and did not miss any appointments .

The attestations produced in the proceedings in respect of GPE 's life in GPE show that the mother / daughter relationship is extremely sound , as pointed out by Dr T. , who reports that the child is not suffering from any psychological disturbance and has adapted well , particularly in her school life , as indicated by the attestation from the headmistress of the nursery school that [ she ] attends .

The applicant arranged for the child to undergo a psychological examination by Dr V. Concerning the relations that the child had developed emotionally with her parental figures , this clinical psychologist noted the very strong predominance of the mother figure :

The child 's psychological , psycho - affective and cognitive development is healthy , and there is an excellent relationship , with sound emotional ties , between GPE and her mother , and also between the child and her maternal grandparents . It also appears that she refers to the father figure , that she may mention when prompted by the therapist , without expressing any affect .

GPE seems to be developing harmoniously , having found a balanced life with her mother and maternal grandparents , and does not seem to have been affected mentally by her separation from her father or her departure from GPE , where she was born . It would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother 's family out of a concern for effective restoration of the father 's role .

It transpires from the foregoing that , in view of GPE 's infancy and her close relationship with her mother , in whose company she has always lived , both in GPE and since her arrival in GPE , her return would place her in an intolerable situation on account of the resulting separation from her mother , but also because of her removal from the environment to which she has adapted and her transfer to a new environment with her father in the State of her habitual residence , no concrete information having been forthcoming in this connection .

In these circumstances , and in accordance with LAW b ) of LAW , it is not appropriate to order GPE 's return to GPE ... on account of a grave risk that she would be placed in an intolerable situation . ”

On DATE the public prosecutor appealed against the decision of the GPE tribunal de grande instance .

In parallel to the NORP proceedings , by an order of DATE delivered on DATE , ORG of the State of GPE , ruling on the merits of the father 's petition , in the absence of the mother – who had failed to appear despite having been served notice of the hearing DATE , awarded the father sole custody of the child , ordered that the child be returned and held that the court retained jurisdiction to reconsider the child 's best interests as well as the court 's directions in the case if requested by either party .

In a judgment of CARDINAL DATE , served on DATE , the Aix - en - ORG of Appeal set aside the judgment of DATE and ordered GPE 's prompt return to the place of her habitual residence in GPE . The judgment gave the following reasons :

“ ... [ the first applicant ] requested the benefit of the exception provided for in LAW ( b ) of LAW ...

It is not for the ORG to assess the educative and affective capacities of each parent but to ascertain whether the parent who retains the child has adduced evidence to show that if returned the child would be exposed to real and immediate physical or psychological harm and would be placed in an intolerable situation before a decision on the merits is taken by the court of the place of habitual residence , it being understood that , in accordance with LAW , a decision under that Convention concerning the return of the child will not be a determination on the merits of any custody issue .

PERSON has argued that the child should not be returned to GPE on child protection grounds , on account of the violent and alcoholic behaviour of Mr GPE who , she has also alleged , took drugs .

The attestations produced by PERSON , issued by her parents , PERSON and PERSON , PERSON , PERSON , PERSON and PERSON , mainly relate to her own allegations , which she had imparted to them , about her husband 's behaviour towards her . None of them provide evidence of any harmful attitude on the part of Mr GPE towards his daughter . He has himself produced various affidavits from work colleagues , friends of the couple and neighbours , testifying that he is a caring father , is not an alcoholic and does not take drugs . He has also produced the results of tests dated DATE showing the absence of any trace of drugs .

The domestic incident report of DATE from GPE , the medical certificates of DATE and DATE issued by PERSON , that of DATE by PERSON , and the complaint for violence filed on DATE , do not relate to GPE at all .

The only document concerning GPE is a child protection report filed on DATE by the social services of GPE , which noted a lack of supervision imputable to the child 's mother following a fall by the child in the fire - escape stairwell . This incident shows that the GPE services are protective of the child 's interests .

PERSON has not shown that the child 's return would be harmful for her on account of the father 's behaviour . In fact , she had herself written to him on CARDINAL DATE requesting that he send various belongings and objects for GPE and adding : “ we hope you will come and see us soon and live with us ” .

PERSON argues that the child 's return would place her daughter in an intolerable psychological situation on account of being separated from her mother after having adapted to her new life .

GPE , now DATE , has been living with her mother and maternal grandparents for DATE . She has settled well in the village life , has been attending nursery school since DATE and takes gymnastics lessons .

The headmistress of the nursery school describes her as a well - behaved child who works well , plays with all her classmates , speaks fluent NORP , understands everything she is told and makes herself understood , has adapted perfectly to school , and shows much self - fulfilment and contentment .

PERSON , a psychiatrist , certified on DATE that she was a smiling and lively child with a very satisfactory psychomotor and intellectual development for her age and that she showed no signs of psychological disorder . He also pointed out that the mother - child relationship was very sound .

PERSON , a clinical psychologist , certified that he had seen the child at the request of PERSON and had drawn up an examination report dated DATE .

He noted the child 's very strong emotional relationship with her mother and maternal grandparents , a very strong predominance of the mother figure reflected in her imaginative creations and in symbolic games , and her reference to the father figure without expressing any affect .

He concluded his report by stating that the child was in good psychological , psycho - affective and cognitive health , which was apparently developing harmoniously , that she seemed to have found a balanced life with her mother and maternal grandparents , and did not seem to have been affected mentally by her separation from her father or her departure from GPE , where she was born . He added that ' [ PERSON would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother 's family out of a concern for effective restoration of the father 's role ' .

The harm referred to in LAW ( b ) of LAW can not be constituted solely by separation from the parent who acted unlawfully and created the risk .

The observations of the psychiatrist , psychologist and headmistress show that the child has the capacity to adapt to new circumstances .

Mr GPE has been employed by the company ORG , as a consultant since DATE , and as a video specialist since DATE . In DATE his DATE salary amount to QUANTITY .

He has been a tenant in the same residence since DATE , i.e. before GPE was born , renting a CARDINAL - room apartment for a DATE rent of MONEY that he pays regularly .

His employer wrote to him on DATE that he agreed to adapt his working hours so that he could work DATE when necessary , as the nature of his work allowed him to work outside the company 's LOC , whether at home or elsewhere .

PERSON , a graduate of a nursing school and a neighbour of Mr GPE , informed him in a letter of DATE that she agreed to look after GPE , DATE or TIME , as required .

The head of the nursery section of a children 's day care and learning centre in GPE confirmed by a letter of DATE that GPE had been admitted to it .

The affidavits and photographs produced by Mr GPE further show that he has the support of his family and friends .

The environment that Mr GPE would provide on his daughter 's return , being the environment in which she lived from DATE until her removal on DATE , does not indicate a risk of any harm that would place the child in an intolerable situation .

PERSON alleged that there was a risk that she would no longer be allowed to travel freely to GPE .

She produced the form for entry into GPE that has to be filled in by non - immigrant visitors without a visa , showing that entry into the country may be refused to a person who has prevented a GPE citizen from exercising his or her custody rights .

A permanent resident card , valid from DATE to DATE , was granted to PERSON née ORG on DATE , further to her application of CARDINAL DATE .

As a result , the GPE authorities can not prevent her from returning to GPE where the family 's habitual residence is located and where she will be able to assert her rights in the context of adversarial proceedings . The decisions concerning the exercise of parental authority are essentially temporary and may be modified to take the child 's interest into account . The judge of ORG , GPE , moreover stipulates in his order of DATE that ' the court reserves the right and retains jurisdiction to decide on the child 's interest and will consider any new measures that may be taken by the CARDINAL parties in accordance with this decree [ sic ] ' .

Having regard to all of the foregoing elements , which are sufficient for adjudication without it being necessary to order any investigation , PERSON née ORG has not shown that there is a grave risk that GPE 's return would expose her to physical or psychological harm or place her in an intolerable situation .

Consequently , it is appropriate to set aside the judgment appealed against and to order the child 's prompt return to the place of her habitual residence , in accordance with LAW DATE . ”

The first applicant appealed against this judgment to ORG claiming a violation of LAW ( b ) of LAW and of LAW , and a failure to take into account the child 's “ best interests ” as guaranteed by LAW of ORG on the Rights of the Child ( the “ GPE ” ) .

On DATE the first applicant was interviewed by the police with a view to the voluntary return of the child , who had been taken into hiding . On DATE the mother was questioned by the public prosecutor for the same purpose . On those latter occasions she took note of the fact that she was committing a criminal offence by keeping her daughter in the current situation and refused to enforce the judgment of CARDINAL DATE .

On DATE the public prosecutor of GPE , assisted by QUANTITY police officers , entered GPE 's nursery school seeking to enforce the judgment of ORG . It can be seen from the various press articles in the file that the first applicant , the child 's grandparents and school staff physically opposed the police intervention by forming a protective barrier around the child , helped by the prompt arrival of several villagers and the village mayor himself . Faced with this resistance , in the course of which blows and insults were apparently exchanged , the public prosecutor provisionally discontinued the enforcement of the decision . The operation attracted widespread media attention , nationally as well as locally . The then Minister of ORG announced that he would request ORG to study the means of intervention best adapted to this type of dispute ; however , no such report has ever been filed or published .

In the meantime , on DATE , the first applicant had applied to ORG seeking a measure of “ educational assistance ” for her daughter . In a decision of DATE ORG ordered a measure of investigation and educational guidance and prescribed a psychiatric examination as follows :

“ It appears that GPE , who is DATE , is embroiled in a relentless conflict between her parents , before the courts and in the media , and this must be upsetting or disturbing for her . GPE may also feel and apprehend fear about the prospect of being separated for good from her father or mother . These conditions may particularly give rise to anxiety , suffering and worry for a little girl . ”

In an educational assistance order of DATE ORG decided on the placement of the second applicant for DATE in specialist family care with the ADSEA for the département of Var , with a right of access for both parents , on the following grounds :

“ It transpires from the interim report issued by the department responsible for the investigation and educational guidance , from the representations of the parents and the child 's ad hoc administrator , from the submissions of the parties and the public prosecutor , from the press articles in the case file , from correspondence and from judicial decisions , that the conflict between the parents reached a climax on DATE in PERSON , inevitably causing this little girl psychological distress , fear , anxiety , terrors and confusion .

GPE was at the heart of a situation of severe and active physical and mental violence and witnessed serious clashes between adults of which she was the subject .

These circumstances have entail for this child a strong emotional condition that endangers her health and security .

The idea , for GPE , of being constantly reminded that she risks being permanently separated from her father or mother must inevitably have been strengthened on that occasion ...

GPE is living DATE in semi - clandestine conditions , deprived of contact with her father , the subject of concern among members of her family , and a hostage in the conflict between her parents , as enshrined in various decisions .

In order to give her some respite , some time to catch her breath and get on with her childhood , to distance her from the competition of which she is the target , with the risk of a psychological breakdown , it is appropriate to order that she be placed for DATE in specialist family care with the ADSEA for the département of Var . ”

NORP In a judgment of DATE the ORG - en - ORG endorsed the child 's temporary placement in care but , when ruling on the merits , ordered that she be removed from care and returned to her father in accordance with the GPE court 's decision and its own decision of CARDINAL DATE .

On DATE GPE left GPE for the GPE .

In a judgment of CARDINAL DATE ORG ordered the discontinuance of the educational assistance measure :

“ The conflict over this child must have placed GPE in a situation of uncertainty , anxiety and suffering .

The present outcome of this conflict , namely GPE 's separation from her mother , must have been very psychologically harmful for this DATE child who until then had benefited from the warm and orderly environment provided by the mother .

A whole sphere of her past life has thus disappeared – left behind in TIME on the plane .

This wrench will take a long time to heal .

In this sense , GPE remains in a situation of danger in terms of her health , within the meaning of LAW .

The fact that GPE lives with her father in the GPE nevertheless precludes the continuation of any measure of support for the girl or her parents .

On that ground alone it is ordered that the educational assistance measure be discontinued . ”

In a judgment of DATE ORG dismissed an appeal by the first applicant in spite of the advocate - general 's submissions to the contrary . The judgment is reasoned as follows :

“ It is apparent from LAW ( b ) of LAW DATE that an exception to the child 's prompt return may be allowed only if there is a grave risk of harm or of an intolerable situation . Under LAW of FAC on the Rights of the Child – a provision which is directly applicable in the NORP courts – the best interests of the child must be a primary consideration in the assessment of the relevant circumstances .

Without having to deal with a mere argument , ORG noted , in its discretion , after referring to the conditions of the child 's life with her mother , that there was no evidence that the father had displayed a dangerous attitude towards his daughter , that it had been established that he was neither an alcoholic nor a drug addict , that the child 's psychological condition was satisfactory , and that her father would offer her favourable living conditions in GPE , with the assistance of a nursing school graduate . These findings show that the child 's best interests were taken into consideration by ORG , which rightly concluded , without laying itself open to the complaints in the present appeal , that it was appropriate to order the child 's prompt return in accordance with LAW . ”

In parallel to the various sets of proceedings mentioned above , the first applicant initiated divorce proceedings in GPE on DATE , when she filed a petition for divorce , on the grounds of fault , with the PERSON family - affairs judge . In a decision of DATE , a hearing for an attempt at reconciliation was scheduled for DATE . At that hearing , Mr GPE claimed that the NORP family - affairs judge should decline jurisdiction in favour of ORG .

In a decision of DATE the judge upheld the objection to jurisdiction . In a judgment of CARDINAL DATE the Aix - en - ORG of Appeal set aside that decision and held that the NORP court had jurisdiction to rule on the divorce .

On DATE the first applicant filed an updated petition for divorce . In a decision of DATE , a hearing for an attempt at reconciliation was scheduled for DATE . In connection with that hearing , Mr GPE filed pleadings seeking an order that he be examined before ORG of the State of GPE , and in the alternative the postponement of the hearing so that he would be able to attend . The proceedings were adjourned until a hearing of DATE . Mr. GPE failed to appear and did not give reasons for this . The reconciliation hearing was thus held in his absence .

In a non - reconciliation decision of CARDINAL DATE , and after pointing out that a decision on the child 's return given in the context of LAW did not determine the merits of any custody issue ( LAW , the family - affairs judge ruled that parental authority would be exercised jointly by both parents , that the child would habitually reside in GPE at her mother 's house , and that the father would have rights of visiting and staying contact for CARDINAL of DATE , and DATE , alternately with the mother , for the whole of DATE . The decision states as follows :

“ The petitioner 's claims , in the light of the evidence concerning the living conditions offered to the child , as noted by the judges of the Aix - en - Provence Court of Appeal , do not appear to be contrary to the child 's interests . They must therefore be granted as to their principle . ”

In a judgment of DATE the GPE tribunal de grande instance granted the parties ' divorce and held that the second applicant should live with her mother , with her father being granted a right of contact .

The Government indicated that subsequent to the enforcement of the decision concerning the child 's return , ORG had received requests from the first applicant 's lawyer for the purpose of transmitting to ORG a request for GPE 's return on the basis of the non - reconciliation decision holding that the child should live with her mother . No action had been taken in response to these requests on the ground that LAW was not applicable as the child 's habitual residence had been in GPE at the time of the NORP decision . Lastly , during the public hearing before ORG , the Government explained that on DATE the first applicant had summoned Mr GPE to appear before ORG , for the offence of failing to hand over a child to the person having custody , in breach of the decision of DATE , and that the court , having found that it was not established that the summons had been served on its addressee , had invited her to serve a new summons for a hearing on DATE .

Following the orders of DATE and DATE ( see paragraphs CARDINAL and DATE above ) , ORG of the State of GPE made a new order ( “ order to show cause ” ) on DATE in which the first applicant was summoned to a hearing scheduled for DATE for the purpose of submitting the reasons why an order should not be made , upon a petition from Mr GPE , to the effect that her visits to GPE would be restricted to the courthouse under the supervision of the child 's paternal grandmother and an officer of the court and that she would have to surrender the child 's NORP passport prior to the first visit and refrain from applying for a new one . She was moreover ordered to post with the court a bond in the amount of MONEY which would be subject to forfeiture in the event she removed the child from the country .

On DATE the first applicant received a letter from ORG which stated as follows :

“ In your interview of DATE you expressed your fear that you would not be given leave to enter GPE and thus would not be able to visit your daughter GPE , since , on the GPE immigration questionnaire that you would have to complete , you would be asked expressly if you had committed a wrongful child abduction .

ORG is not in a position to give you an assurance that GPE authorities would allow you to enter their country .

I am able to inform you , however , that a representative of ORG in GPE , who was asked about this matter on the telephone , indicated that as you would be coming from a ORG which is a co - signatory with GPE of LAW on the Civil Aspects of International Child Abduction of DATE , you should not be prevented from entering GPE territory . ”

On DATE the first applicant 's representative in GPE requested an adjournment of her court appearance until DATE and filed an “ affirmation in support of request for adjournment ” stating that she had been informed of the court 's objection to her contacting her daughter before that appearance .

At the hearing of DATE representations were heard from the parties . The first applicant requested the court , among other things , to dismiss the father 's application and to register the non - reconciliation decision of CARDINAL DATE of the GPE tribunal de grande instance granting her custody of GPE .

In a decision of DATE , delivered on DATE , the judge of ORG granted Mr GPE 's application to restrict the mother 's right of visitation . The court found first that GPE alone had the authority and jurisdiction to rule on issues of custody relating to the child , that it would not relinquish jurisdiction , that no NORP law or ruling could change the domestic law and that it would not recognise the orders of any other court which purported to exercise jurisdiction which was not in conformity with the applicable laws of GPE and international treaties which governed such issues . As regards the non - reconciliation decision of CARDINAL DATE granting custody of GPE to the mother , it refused to recognise it as binding on that court . The court found that the father 's request was justified by the mother 's conduct and by the attitude of the NORP courts and authorities , which had for DATE aided the mother in her appropriate actions . Observing that immediately after the child had returned to GPE a NORP court had determined that the mother should have custody , the judge was of the opinion that if the child were to return to GPE the likelihood for the father of having that most recent ruling overturned would be remote . The judge concluded as follows :

“ Based on the foregoing , this ORG will not consider granting the mother unsupervised visitation and will conduct no further hearings on the issues of custody and visitation unless and until all of the following things have taken place :

The mother must apply to the appropriate NORP courts and obtain the following results :

a. An order which vacates any orders which purport to grant custody of this child to the mother .

b. An order which unequivocally and irrevocably acknowledges that GPE alone has exclusive subject matter jurisdiction over the issue of custody of this child so long as the father continues to be a resident of GPE .

c. An order registering and recognizing the GPE order , granting the father full custody of the subject child , as the only valid order relating to the custody of this child .

d. ...

Before any unsupervised visitation is granted , the mother must post a cash or surety bond in the amount of $ MONEY ...

Any time the mother is exercising any form of visitation with the child , she must surrender her passport to the child 's law guardian ...

... , all visitation with the child shall be supervised and shall be confined to the area of GPE , GPE , unless prior court approval has been granted .

I realize these may seem like harsh conditions and restrictions . However , these conditions and restrictions are born of the extremely inappropriate conduct of the mother and the clear attitude and intentions of the NORP courts and authorities to favor the mother , ignoring applicable laws and international protocols relating to the issues involved in this case .

The mother shall have the right to apply to this court for a relaxation of the conditions outlined above upon notice to this court that the NORP order purporting to grant her custody of the child has been vacated and the order of this court has been registered and recognized in GPE as the only valid order ... ”

The order was followed by the usual indications about the possibility of lodging an appeal before ORG , ORG , DATE after receipt of the order . The first applicant did not exercise her right of appeal .

Lastly , there is evidence that on DATE ORG sent a letter to counsel for the first applicant , beginning as follows :

“ Dear Madam ,

I have been informed by my counterpart in GPE that Mr GPE does not accept the offer of mediation that was made to him , since he can not be certain of the mother 's intentions , and this perhaps explains why you decided , at the same time as he was approached about a friendly settlement , to reactivate the criminal proceedings , of which I have been informed by the public prosecutor of Aix - en - GPE .

The terms of the GPE judgment being unequivocal , it seems pointless to bring any proceedings in GPE with a view to extending the contact between GPE and her mother before securing a change in the NORP decision concerning parental authority .

It is up to your client to lodge an application for that purpose with the family - affairs judge . ORG is quite prepared to confer once again with ORG in order to ascertain what assistance could be provided to PERSON should she wish to bring proceedings in GPE for an extension of her access rights , as and when such proceedings are justified by new developments . ... ”

Article CARDINAL of the NORP Civil Code provides :

“ In all proceedings relating to him , a minor capable of discernment may , without prejudice to the provisions as to his intervention or consent , be heard by the court or , when his interests so require , a person appointed by the court for that purpose .

A minor shall be granted a hearing if he so requests . If a minor refuses a hearing , the court shall assess the merits of the refusal . He may be heard alone , with a lawyer or with a person of his choosing .

Where that choice does not appear to be consonant with the child 's interests , the court may appoint another person .

The hearing of a minor does not confer on him the status of a party to the proceedings .

The court shall ensure that the minor has been informed of his right to be heard and to be assisted by a lawyer . ”

ORG was consistent in its case - law concerning the application of LAW until the above - cited judgment of DATE ( see paragraph CARDINAL above ) . In a judgment of CARDINAL DATE , ORG of ORG gave the following reasons for its decision :

“ The harm or intolerable situation , within the meaning of [ LAW DATE ] , results as much from the further change in the removed child 's current environment as from the environment that he will discover or rediscover in the ORG of his habitual residence .

Furthermore , after observing , in the light of the expert 's report , that PERSON 's separation from his mother , taking into account the child 's tender age and the circumstances in which he had come to live exclusively with her for DATE , ' would be experienced by the child as the loss of a loved one ' , ORG , exercising its power of discretion , held that for the time being his return to GPE would expose him to a grave risk of psychological harm . It therefore justified its decision in accordance with the law . ”

In a judgment of DATE ORG dismissed an appeal on points of law as follows :

“ ORG , which rightly found , based on its own reasoning and that of the court below , that a grave risk of harm or of an intolerable situation – circumstances that under LAW ( b ) of LAW justify the retention of children who have been removed – might be entailed by a further change in the children 's environment , decided in its discretion that separating a DATE child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm , and that the sudden return of the children to GPE would place them in an intolerable situation in view of their tender age . ” ( Court of Cassation , ORG , DATE ) .

CARDINAL NORP The relevant provisions read as follows :

“ The GPE signatory to the present Convention ,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody ,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the ORG of their habitual residence , as well as to secure protection for rights of access ,

Have resolved to conclude a Convention to this effect , and have agreed upon the following provisions : ”

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention .

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

“ ORG shall cooperate with each other and promote cooperation amongst the competent authorities in their respective GPE to secure the prompt return of children and to achieve the other objects of this LAW .

In particular , either directly or through any intermediary , they shall take all appropriate measures :

( a ) to discover the whereabouts of a child who has been wrongfully removed or retained ;

( b ) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures ;

( c ) to secure the voluntary return of the child or to bring about an amicable resolution of the issues ;

( d ) to exchange , where desirable , information relating to the social background of the child ;

( e ) to provide information of a general character as to the law of their ORG in connection with the application of the ORG ;

( f ) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and , in a proper case , to make arrangements for organising or securing the effective exercise of rights of access ;

( g ) where the circumstances so require , to provide or facilitate the provision of legal aid and advice , including the participation of legal counsel and advisers ;

( h ) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child ;

( i ) to keep each other informed with respect to the operation of this LAW and , as far as possible , to eliminate any obstacles to its application . ”

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith ... ”

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . ”

“ The return of the child under the provisions of LAW may be refused if this would not be permitted by the fundamental principles of the requested ORG relating to the protection of human rights and fundamental freedoms . ”

“ An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to ORG in the same way as an application for the return of a child .

ORG are bound by the obligations of co - operation which are set forth in DATE to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject . The Central Authorities shall take steps to remove , as far as possible , all obstacles to the exercise of such rights .

ORG , either directly or through intermediaries , may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . ”

LAW was adopted on DATE by the Fourteenth Session of the Hague Conference on Private International Law ( the “ Conference ” ) , an intergovernmental organisation , in Plenary Session . In DATE the Conference produced and published a final Explanatory Report on LAW to which the ORG refers . The report was drafted by PERSON , Reporter to the organisation 's ORG , which had been responsible for preparing LAW ; it is available on the Internet at http://hcch.e-vision.nl/upload/explCARDINAL.pdf . Paragraph CARDINAL of the report reads as follows :

“ ... it would seem necessary to underline the fact that the CARDINAL types of exception to the rule concerning the return of the child must be applied only so far as they go and no further . This implies above all that they are to be interpreted in a restrictive fashion if the LAW is not to become a dead letter . In fact , the LAW as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition . The practical application of this principle requires that the signatory GPE be convinced that they belong , despite their differences , to the same legal community within which the authorities of each ORG acknowledge that the authorities of CARDINAL of them – those of the child 's habitual residence DATE are in principle best placed to decide upon questions of custody and access . As a result , a systematic invocation of the said exceptions , substituting the forum chosen by the abductor for that of the child 's residence , would lead to the collapse of the whole structure of the LAW by depriving it of the spirit of mutual confidence which is its inspiration . ”

CARDINAL The relevant provisions of the Convention on the Rights of the Child read as follows :

“ ... Convinced that the family , as the fundamental group of society and the natural environment for the growth and well - being of all its members and particularly children , should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community ,

Recognizing that the child , for the full and harmonious development of his or her personality , should grow up in a family environment , in an atmosphere of happiness , love and understanding , ... ”

“ In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration . ”

“ CARDINAL . DATE States Parties shall take measures to combat the illicit transfer and non - return of children abroad .

To this end , GPE Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements . ”

In its “ General Comment No . CARDINAL ( DATE ) ” , on GPE Parties ' obligations to develop general measures of implementation of the DATE LAW , ORG on the Rights of the Child , ORG body that monitors its implementation , encouraged GPE Parties to ratify LAW for the purposes of implementing the above - mentioned LAW .

“ CARDINAL . GPE Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child , the views of the child being given due weight in accordance with the age and maturity of the child .

For this purpose , the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child , either directly , or through a representative or an appropriate body , in a manner consistent with the procedural rules of national law . ”

The Committee on the Rights of the Child , in its Concluding Observations of DATE concerning GPE , in the context of the second periodic report submitted by that ORG ( ORG ) , indicated that it was concerned about “ inconsistencies in legislation as well as the fact that in practice , the interpretation of the legislation , and determination of which child is ' capable of discernment ' , may leave possibilities of denying a child this right or make it subject to the child 's own request and may give rise to discrimination ” ( § § CARDINAL of its Observations ) . In its “ General Comment No . DATE ) ” on implementing child rights in early childhood , the ORG stated that LAW applied both to younger and to older children , early childhood being defined as the period below DATE .

Recommendation CARDINAL ( DATE ) of ORG of ORG on a NORP Charter on the Rights of the PERSON states the following as the first of a number of general principles :

“ a. Children must no longer be considered as parents ' property , but must be recognised as individuals with their own rights and needs ; ... ”


Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

NORP In DATE criminal proceedings were instituted against the applicants and other suspects . In the context of a series of complicated economic offences , they were charged with several counts of aggravated fraud , tax fraud , forgery of documents , bribery , fraudulent bankruptcy and accounting crimes . In the ensuing proceedings the applicants were assisted by defence counsel of their choice .

On DATE the first applicant ’s bank accounts were frozen in order to secure the eventual confiscation of any criminal profit he might have made . Simultaneously , the applicants’ homes were searched . On DATE the FAC Regional Court changed the decision of DATE and extended the freezing measure to include all of the first applicant ’s assets .

On DATE ORG preferred a bill of indictment . The charges concerned altogether CARDINAL defendants .

After having held CARDINAL hearings DATE and DATE , on DATE ORG convicted the applicants of several counts of fraud , tax fraud , fraudulent bankruptcy , forgery of documents as well as accounting crimes , while acquitting them of other charges . The first applicant was sentenced to DATE imprisonment and to the confiscation of his frozen property in the value of MONEY ; the second and the third applicants were sentenced to DATE and CARDINAL years’ imprisonment respectively . In the reasoning of its CARDINAL judgment , ORG relied on evidence given by numerous witnesses , several opinions prepared by expert accountants , tax advisers and engineers , and documentary evidence .

NORP In DATE the applicants submitted their initial and , on DATE , their detailed appeal . Meanwhile , on DATE ORG was appointed to hear the case , for reasons of incompatibility , instead of the competent FAC .

After having held a hearing on DATE , on DATE ORG re - characterised part of the offences committed by the applicants , acquitted them of some charges , and reduced the first applicant ’s prison term to DATE , and the second applicant ’s term to DATE . For the remainder , it upheld the first - instance judgment .

On DATE the second and third applicants filed a petition for review . On DATE ORG acquitted them of the charge of tax fraud and upheld the remainder of the second - instance judgment in their respect .

The first applicant ’s repeated requests for a retrial were finally refused on DATE .


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

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

In DATE as well as in DATE and DATE the applicant was apprehended by the police in his home after having disturbed his wife and grown - up daughter in a drunken state . On DATE the LOC police authority revoked his licences to keep CARDINAL rifles and CARDINAL pistols and seized them . The decision was based on CARDINAL , subsection CARDINAL ( CARDINAL ) , of LAW ( ampuma - aselaki , skjutvapenlag CARDINAL ) which had entered into force on DATE . On the strength of this provision a licence may be withdrawn due to the holder ’s state of health or dangerous lifestyle or behaviour such that it endangers the safety of himself and others and renders him unsuitable to possess guns , ammunition or related parts . The reason indicated in the decision was , in extenso , “ the applicant ’s repeated , disturbing behaviour while drunk ” .

The applicant appealed , requesting an oral hearing of himself as well as his wife and daughter so as to prove that there was no causal link between his being drunk and the purported risk that he might use the firearms while under the influence of alcohol . His heavy alcohol consumption had been due largely to conflicts between himself and his daughter , who had moved away from home after the incidents leading to his apprehension . He had never assaulted her or anyone else and had never touched the firearms while drunk . The firearms had furthermore been locked . He further denied abusing alcohol continuously such that his behaviour met the condition in LAW for withdrawing his licences . That law required , in addition , that his behaviour was so problematic as to engender a risk that he might use his firearms for other than permissible purposes . The police authority ’s position that he was an alcohol abuser had not been backed up by any medical evidence . The revocation and seizure order had come as a surprise as he had not been warned that this might be the consequence of the behaviour which had led to his apprehension for drunkenness . Some of the firearms had been inherited by the applicant and had been in the family for CARDINAL generations .

In its decision of DATE ORG ( lääninoikeus , länsrätten ) of GPE and PERSON refused the request for an oral hearing , considering that the applicant “ had accepted the basis ” for the revocation and seizure order , i.e. that he had behaved in a disturbing manner while drunk . Even though it had been contended that he had never been violent , in the circumstances at hand and given “ the other information emanating from the documents ” , it was manifestly unnecessary to hold a hearing , whether for the purpose of examining whether the legal conditions for the order had been met or for any other reason .

The court went on to uphold the revocation and seizure order , noting that it had been based on the applicant ’s “ repeated , disturbing behaviour while drunk ” . The court recognised that no attempt had been made to establish whether he had acted violently but noted that the order had been based not on his violence but on his alcohol abuse which in itself could be considered a lifestyle endangering the safety of others and thus warranting a withdrawal of his licences .

In its decision of DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , by CARDINAL votes to CARDINAL , dismissed the applicant ’s complaint about the lack of an oral hearing before ORG . It also refused his request for an oral hearing before ORG . The highest court , like the lower court , noted that the applicant had accepted the basis of the decision made by the police , namely his alcohol problem and disturbing behaviour , adding that he had been apprehended in his home in DATE as well as in DATE and in DATE . In view of this and “ other information emanating from the documents ” a hearing was unnecessary .

ORG also upheld the revocation and seizure order , essentially relying on the lower court ’s reasons . The justices in the minority would have remitted the case for an oral hearing before the lower court . They considered that the evidence which the applicant had wished to present as to the effect of his use of alcohol on his suitability to possess guns concerned a fact of relevance to the assessment of whether the legal conditions for the revocation of his licences were met . Considering also the importance of the licences for him , it was not “ manifestly unnecessary ” to hold an oral hearing .

Under LAW , subsection CARDINAL of LAW a licence for the acquisition or possession of a firearm , firearm component , cartridges and specially dangerous projectiles may be revoked if , inter alia , the licence holder is to be deemed unsuitable to acquire or possess such objects , given that due to his state of health or his way of life or his behaviour he is endangering his own safety or that of others .

According to the Government PERSON ( no . CARDINAL/CARDINAL ) for the enactment of LAW , a licence could for example be revoked for reasons relating to the licence - holder ’s health , way of life or behaviour . Before a licence can be revoked for reasons relating to the licence - holder ’s way of life or behaviour , this way of life or behaviour should endanger the licence - holder ’s own safety or that of others . Continued abuse of intoxicants – alcohol or drugs – may be considered such a way of life endangering safety as gives reason to revoke the licence . Thus , the danger caused thereby would not necessarily have to be related to firearms but even violent , dangerous or threatening behaviour without use of guns could constitute a ground for revoking the licence . However , in cases where the licence - holder ’s way of life was considered problematic to the extent that there was a risk of misuse of guns , it would always be necessary to revoke the licence .

The revocation should nonetheless take account of all particular circumstances , the decisive matter being to what extent the act or conduct in question impacts on the license holder ’s suitability to handle firearms .

In its decision no . CARDINAL:CARDINAL ORG found that a case concerning the revocation of a licence to possess firearms involved no right or obligation within the meaning of section CARDINAL , subsection CARDINAL ( CARDINAL ) of the LAW ( perustuslaki , grundlagen ) or LAW . The case concerned a prohibition to appeal against a decision under LAW ( CARDINAL/CARDINAL ) and sections CARDINAL and CARDINAL of the Decree on Firearms and Ammunition . Under those provisions , the police had the right to revoke a licence to possess firearms if it was found necessary . ORG voted on the case ( CARDINAL ) . According to the dissenting members of the ORG , the revocation of a firearms licence involved the determination of a “ right ” or “ obligation ” within the meaning of LAW , subsection CARDINAL , of the LAW .

Under LAW of the Act on Administrative Court Procedure ( hallintolainkäyttölaki , förvaltningsprocesslag ORG ) , in its then form , the applicant was in principle entitled to a hearing once he had requested CARDINAL , but this request could be refused if a hearing would have been manifestly unnecessary in light of the subject - matter or for any other reason .

Under LAW the applicant was entitled to designate or accept someone else as the owner of his firearms provided that person had been granted the requisite licence to that end . There is no indication that the applicant availed himself of this right within DATE ( possibly extended to CARDINAL ) or whether the firearms were sold at a public auction the yield of which was to be passed onto the applicant following a deduction of administrative costs . Any firearms that could not be sold were automatically transferred into ORG ownership without any compensation ( sections CARDINAL ) .


Preliminary objections dismissed (non-exhaustion of domestic remedies, six month period);Violations of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . He was a member of ORG of a local bank and a director of a private brokerage firm .

On DATE ORG charged the applicant and PERSON ( the “ accused ” ) with malfeasance . The charge was later dropped , on an unspecified date , due to lack of a punishable offence .

ORG also charged the accused with embezzlement on DATE and transferred the case to ORG .

On DATE , DATE , ORG imposed on each of the accused bail in the amount of CARDINAL old NORP levs [ QUANTITY ( ORG ) ] .

The preliminary investigation against the accused continued for DATE with various investigative procedures being conducted in the meantime .

Sometime in DATE the applicant 's coaccused , Mr A. , absconded .

On DATE the applicant was detained on remand under an order of ORG .

The preliminary investigation against the accused was concluded in DATE .

At DATE an indictment for embezzlement of MONEY was filed against the accused with ORG .

The criminal proceedings continued at the trial stage where an undisclosed number of hearings were held before ORG .

In a judgment of DATE ORG found the accused innocent of the charges brought against them . It is unclear whether ORG appealed against this judgment and whether it subsequently entered into force .

In DATE the authorities established that the applicant 's coaccused , Mr A. , could not be found and suspected that he had left the country .

On DATE ORG ordered that the applicant be detained on remand despite recognising that he had always punctually and voluntarily attended the investigative procedures conducted during the proceedings . In justifying the detention , ORG referred to intelligence data received from ORG on DATE that the applicant was purportedly planning to abscond . The applicant was detained on DATE .

On DATE the applicant appealed against his detention whereby he challenged the need and justification to amend the measure for securing his appearance in court to detention on remand . In addition , he contested the legal grounds for relying on unverified intelligence data in justifying his detention .

In a letter of CARDINAL DATE ORG once again informed ORG that on DATE it had received intelligence data that the applicant was intending to abscond . It also noted that without authorisation from the Minister of ORG it could not provide the intelligence data to ORG .

A hearing was held before ORG on DATE at which the prosecutor informed the court that his office did not have access to the intelligence data of DATE , because the police had refused to provide it without the prior approval of the Minister of ORG . The court considered that it was essential for it to obtain the intelligence data as this affected the rights of the detained to challenge it . The court ordered that the intelligence data be obtained from the police . The applicant insisted that the court rule on his appeal and challenged the possibility of using such intelligence data as evidence . The hearing was adjourned without a ruling on the applicant 's appeal .

In a letter of DATE to ORG the Vice - President of ORG requested that the police provide the court with the facts on which they based their information that the applicant was intending to abscond . In its response of DATE ORG reiterated the statement contained in its letter of CARDINAL DATE .

The hearing of CARDINAL DATE was postponed because ORG considered that it was vital for the police to provide the intelligence data before it ruled on the appeal . The applicant maintained that ORG had failed to prove the applicant 's intention to abscond , challenged the need to postpone the hearing and insisted that the court rule on his appeal on the basis of the facts before it . The hearing was adjourned without a ruling on the applicant 's appeal .

NORP In CARDINAL letters to the Minister of ORG and ORG of DATE , the Vice - President of ORG once again requested that the police provide the court with the facts on which they based their information that the applicant was intending to abscond . In its response of CARDINAL DATE ORG reiterated its previous statements and informed the court that it had received intelligence data that in a conversation on DATE the applicant had declared his intention to leave the country because he was worried about the outcome of the criminal proceedings against him and in view of the absconding of his co - accused . The police refused to provide the source of the data .

At the next hearing on DATE , ORG examined and dismissed the applicant 's appeal against his detention . It found that , in view of the charges against him , his detention on remand was mandatory and , moreover , that there was evidence that he would abscond .

After the preliminary investigation was concluded the applicant filed an appeal on DATE against his detention arguing that this was a change in circumstances which required a reassessment of his detention on remand . At a hearing held on DATE ORG dismissed the applicant 's appeal . It considered that there was no change in circumstances and , in any event , that his detention was mandatory in view of the charges against him and the likelihood that he would abscond .

On DATE amendments to LAW entered into force concerning the regime of detention on remand ( see below , Relevant domestic law and practice ) .

The first CARDINAL hearings at the trial stage of the proceedings were held on DATE and CARDINAL DATE . On both occasions the applicant appealed against his detention , which ORG dismissed by essentially relying on the intelligence data that he would abscond , that he was charged with a serious intentional offence for which detention on remand was mandatory and that he had another preliminary investigation opened against him . At the hearing of CARDINAL DATE a medical expert 's report was presented to the court concerning the applicant 's deteriorating state of health , but it was found that his treatment could be continued in prison . The applicant appealed against the ruling of CARDINAL DATE for dismissing his appeal , which ORG upheld in a formal decision of DATE .

In a decision of CARDINAL DATE ORG found that there was no evidence that the applicant would abscond or re - offend and that he had always cooperated with the investigation . In addition , it noted that the police in its letters to the courts had never indicated that the applicant had undertaken any specific actions to abscond . The court also found that the applicant 's health condition required treatment and a special diet , which could only be provided in a home environment . As a result , it replaced the applicant 's detention on remand with house arrest but without citing any specific reasons for placing the latter restriction on the applicant .

On an unspecified date , the applicant appealed against the imposed house arrest .

ORG dismissed the applicant 's appeal at a hearing on DATE as it found that there were no new circumstances warranting a re - evaluation of the imposed restriction on the applicant . On further appeal , ORG upheld the decision on DATE .

On an unspecified date , the applicant filed a second appeal against the imposed house arrest .

On DATE ORG dismissed the second appeal of the applicant as it found that there were no new circumstances warranting a re - evaluation of the imposed restriction and also because he had another preliminary investigation opened against him .

On further appeal , in a decision of DATE ORG quashed the lower court 's decision of CARDINAL DATE and amended the measure for securing the applicant 's appearance in court to bail in the amount of CARDINAL new NORP levs ( approximately ORG CARDINAL,CARDINAL ) . The court found that the applicant had always attended court hearings and had never been the cause for any delays or postponements . Thus , it considered that the imposition of house arrest on the applicant had never been justified and that its overall length ( DATE and DATE ) represented a new circumstance warranting a re - evaluation of the imposed restriction . The court also found that ORG had mistakenly relied on the statutory provisions governing detention on remand when dismissing the applicant 's appeal against his house arrest but did not find the imposed house arrest to have been unlawful as such .

The relevant provisions of LAW ( the “ ORG ” ) and the NORP courts ' practice at the relevant time are summarised in the ORG 's judgments in several similar cases ( see , among others , PERSON GPE [ ORG ] , no . ORG , § § DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ( extracts ) ) .

As of that date the legal regime of detention under the ORG was amended with the aim to ensure compliance with ORG ) .

The relevant part of the amended LAW provided , as in force at the material time and until DATE :

“ ( CARDINAL ) ORG pending trial shall be ordered [ in cases concerning ] offences punishable by imprisonment ... , where the material in the case discloses a real danger that the accused person may abscond or commit an offence .

( CARDINAL ) In the following circumstances it shall be considered that [ such ] a danger exists , unless established otherwise on the basis of the evidence in the case :

NORP in cases of special recidivism or repetition ;

where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non - suspended sentence of not less than DATE imprisonment ;

where the charges concern an offence punishable by not less than DATE imprisonment or a heavier punishment .

( CARDINAL ) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence . ”

It appears that divergent interpretations of the above provisions were observed in the initial period of their application upon their entry into force on DATE .

In DATE ORG clarified that the amended LAW excluded any possibility of a mandatory detention . In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities . The presumption under paragraph CARDINAL of Article CARDINAL was only a starting point of analysis and did not shift the burden of proof to the accused ( ORG ) .

Under LAW ORG , a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecuted offence . Apart from pretrial detention , CARDINAL such measure is house arrest .

Article CARDINAL of the ORG , as in force at the material time , provided that the measures to secure appearance were imposed to prevent the accused from absconding , re - offending or impeding the enforcement of a judgment . When imposing a particular measure , the competent authority had to have regard to the dangerousness of the alleged offence , the evidence against the accused , his or her health , family status , profession , age , etc . ( LAW ORG ) .

Article CARDINAL § CARDINAL of the ORG , as in force at the material time , defined house arrest as follows :

“ ORG arrest shall consist in prohibition for the accused to leave his home without permission by the relevant authorities . ”

In its interpretative decision no . CARDINAL/CARDINAL ( реш. № CARDINAL от CARDINAL юли DATE г. по конституционно дело № CARDINAL от DATE г. , обн. , NORP брой CARDINAL от DATE г. ) ORG held as follows :

“ ... [ ORG arrest is also a form of detention and [ constitutes ] an interference with the inviolability [ of the person ] . ”

The ORG , as in force at the relevant time , provided in its LAW for full initial and subsequent judicial review of house arrest .

ORG of DATE ( the “ ORG ” ) provides that the ORG is liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for unlawful pretrial detention , if the detention order has been set aside for lack of lawful grounds ( sections CARDINAL - CARDINAL ) .

The relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. GPE ( no . MONEY , § § CARDINAL , DATE ) and PERSON v. GPE ( no . MONEY , § § CARDINAL , CARDINAL DATE ) .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

During TIME of DATE the applicant assaulted PERSON in an attempt to steal her handbag . After searching the surrounding streets , PERSON and her acquaintance , PERSON . , located the applicant at a bus stop nearby .

As quoted in the report of the internal security office of ORG of LOC of DATE ( see paragraph CARDINAL below ) , police officers PERSON , who arrived at the scene after a telephone call from PERSON , stated that when they arrived they saw that the applicant ’s head had been bleeding and his jacket was torn . They handcuffed him when he attempted to escape .

After taking the applicant to NORP police station , the police officers called an ambulance which took him to a hospital for first aid to be administered . Afterwards he was taken back to the police station and released on DATE after questioning .

On DATE criminal proceedings were instituted by the investigative department of NORP police station against the applicant in connection with the incident of DATE . On DATE the investigator drew up a record of the inspection of PERSON handbag describing its appearance and contents which included a cell phone and a certain amount of money . The record also included an estimate of the cost of the objects . CARDINAL attesting witnesses , P. and PERSON , put their signatures on the record of inspection and on the decision of the same date to include in the body of evidence the above - mentioned objects .

The records of the questioning of PERSON and PERSON . of DATE contain the following identical statements :

“ [ The applicant ] tried to run away but PERSON . stopped him and grabbed his arms . [ The applicant ] made several other attempts at absconding before the arrival of the police , which is why PERSON . had to physically restrain him , and that might have caused some bodily injury ... Upon their arrival the police handcuffed [ the applicant ] . ”

When being questioned on DATE as a suspect , the applicant stated the following :

“ The woman pushed me in the chest , and the man hit me on the head with the handle of a handgun , causing bleeding ... The woman walked to a nearby shopping centre and returned with CARDINAL security guards , after which the CARDINAL men started beating me . Then the woman used her mobile phone to call the police ... I was then taken to NORP police station where I was handcuffed to the iron bar of a cell .

In the questioning office ... I was told to sit down on the floor . On several occasions I tried to get up and the police officer took a truncheon and hit me across the legs . The other police officers started mocking me and told me to sing [ a children ’s song ] to identify my voice , which I did as I feared that I would be subjected to physical violence . ”

On DATE an expert forensic report concluded that he suffered from “ shift - like ” schizophrenia with pronounced psychological effects .

On DATE the ORG of GPE ( “ the ORG ” ) , while considering the criminal charge against the applicant , refused a request by the applicant ’s counsel to summon the attesting witnesses PERSON and PERSON , who were allegedly ex - police officers , for lack of sufficient grounds to question their identity . Counsel further demanded that the signed documents be struck out of the list of evidence as they were improperly drawn up . This request was also dismissed as the court held that the documents had been drawn up in accordance with the law .

On DATE ORG found that the applicant had committed attempted robbery with assault , but relieved him of criminal liability on account of his mental - health status and ordered his placement in a psychiatric hospital . The court based its conclusion on the statements of PERSON and PERSON . made in court , as well as various procedural documents , including the record of inspection of PERSON belongings and the decision to include the objects in the body of evidence signed by the attesting witnesses . It also referred to the statement made by the applicant ’s mother , who acted as his lawful representative , to the effect that the applicant had been beaten up by strangers who had subsequently turned him in to the police .

On DATE ORG ( “ the ORG ” ) upheld the above - mentioned decision on appeal .

On DATE the applicant ’s mother complained to the prosecutor of GPE of GPE , requesting the opening of criminal proceedings in connection with the applicant ’s alleged ill - treatment in custody . On an unspecified date her complaint was referred by the prosecutor to the internal security office of ORG of LOC for an inquiry .

On DATE the applicant went to a municipal hospital which recorded multiple bruises on his head , neck and torso , and an abrasion on the back of his head .

On DATE he attended at another hospital which recorded an infected wound on his head and hypoesthesia of the fingers of the right hand .

Both records contain the following references :

“ According to the [ applicant ] , on DATE he was beaten up by the officers of NORP police station ” .

On DATE the investigator in charge of the applicant ’s criminal case commissioned an expert forensic report on account of the applicant ’s allegations of ill - treatment made in the course of the criminal investigation against him . In his order he indicated that the experts should examine the available medical documents . He also referred the complaint of ill - treatment for examination to the prosecutor ’s office of GPE of GPE .

On DATE the internal security office of ORG of LOC completed the inquiry prompted by the applicant ’s mother ’s complaint , producing a report of DATE . In particular , the inquiring officer stated as follows :

“ Police officers PERSON and PERSON questioned in the course of the inquiry stated that they had put handcuffs on [ the applicant ] as during the apprehension the latter had put up resistance and had tried to hit PERSON

The above - mentioned officers also stated that when they had discovered that [ the applicant ] had a head injury , they called an ambulance after escorting [ the applicant ] to the police station .

After [ the applicant ] was administered medical aid at GPE municipal hospital no . CARDINAL , he was again brought to NORP police station .

Duty officer PERSON . and investigator PERSON stated that there had been no unlawful actions during [ the applicant ’s ] apprehension and questioning .

Thus , the allegations of unlawful actions by police officers were not proved during the inquiry , and the use of handcuffs was not in breach of LAW .

However , given that the complaint refers to unlawful actions by police officers which fall within the competence of the prosecutor ’s office , [ I ] suggest terminating the internal inquiry , sending the material collected by the internal inquiry to the LOC prosecutor ’s office for taking a decision in accordance with the law , and informing the parties concerned about the decision . ”

On DATE the ORG forensic experts issued a conclusion which reiterated the medical data as described above ( see paragraphs CARDINAL and CARDINAL above ) and stated that the recorded injuries had not led to any consequences for the applicant ’s health . The experts could not determine the circumstances or the date of the injuries due to the lack of comprehensive data .

On DATE the prosecutor of the Cheremushkinskiy District of GPE , relying on the statements made by police officers PERSON . in the context of the investigation by the internal security office , decided not to institute criminal proceedings in respect of the applicant ’s alleged ill - treatment .

On DATE the applicant , his mother and counsel challenged the above decision in court .

On DATE the ORG heard the applicant ’s mother , his counsel and a representative of the prosecutor ’s office and dismissed the complaint as unfounded after concluding that the applicant ’s injuries had been caused by the third parties who had restrained him at the scene . In particular , the court said :

“ As follows from the statements given by PERSON , PERSON . and police officers PERSON , at the moment of the arrest [ the applicant ] ... had injuries which had occurred before arrival of the police . [ The applicant ’s mother ] ... also confirmed at the hearing that her son had been beaten up with a handgun before arrival of the officers of NORP police station . ”

On DATE ORG upheld the above decision on appeal .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , a city in PERSON .

A retiree of ORG , in CARDINAL the applicant contested in court a stoppage of his pension .

On DATE the ORG of PERSON ordered the Ministry to resume the pension in the amount of MONEY ( RUB ) per month , to pay arrears in the amount of RUB PERSON , and to adjust the arrears for the cost of living by paying RUB CARDINAL,CARDINAL.CARDINAL . This judgment became binding on DATE with the exception of the cost - of - living adjustment , this part of the award having been quashed on appeal .

On DATE ORG once again awarded the cost - of - living adjustment in the same amount . This judgment became binding on DATE .

On DATE the applicant requested bailiffs to enforce the judgment of DATE . On the ORG ’s request , from DATE to DATE the enforcement proceedings were stayed pending proceedings in ORG . On DATE the judgment was enforced in the part concerning the resumption of the periodic payments .

On DATE the applicant requested the bailiffs to enforce the judgment of CARDINAL DATE .

On DATE the applicant requested the bailiffs to enforce the judgment of DATE in the part concerning the arrears .

Meanwhile , on DATE the ORG requested a supervisory review of the judgments , and on DATE ORG of PERSON stayed the enforcement . On DATE the Presidium of ORG quashed the CARDINAL judgments on supervisory review . The ORG rejected the applicant ’s claim , having found that the court below had misinterpreted material laws concerning the applicant ’s entitlement to the pension .

The applicant was absent from this hearing , because he had allegedly not been properly notified of it .

NORP Under section CARDINAL of LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


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

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

In DATE a plot of land , originally owned by the applicant ’s parents , was expropriated . The compensation for the property was deposited with a court , because the administrative organ responsible for the expropriation had not established the address of the owners ( in fact they had died before the expropriation ) . The applicant was not satisfied with the amount of the compensation .

On DATE the applicant obtained a court decision declaring him the only heir to his late GPE estate .

On DATE the applicant lodged with the PERSON District Office ( PERSON ) a request to reopen the proceedings concerning the compensation , claiming that he had not taken part in the DATE proceedings , because he had not been informed about them , and that the final decision had been based on false documents .

On DATE the Head of ORG ( ORG ) refused the applicant ’s request . The applicant appealed against that decision . On DATE his appeal was dismissed by the GPE Governor ( Wojewoda ) as lodged out of a prescribed time limit . The applicant lodged with ORG ( PERSON ) an appeal against the Governor ’s decision .

On DATE ORG quashed the decisions of DATE and CARDINAL DATE , considering that the applicant had lodged his request to reopen the proceedings DATE after receiving the text of the DATE expropriation decision , therefore within the time limit .

On DATE the Head of ORG reopened the proceedings concerning the compensation for DATE expropriation . On DATE , in the course of the proceedings , the Head of ORG declared that the DATE decision had been issued in breach of LAW . However , the decision could not be quashed DATE had passed since the date of its issuance . The applicant lodged with the GPE Governor an appeal against the decision of the Head of ORG .

On DATE the GPE Governor quashed the decision of DATE and remitted the case for re - examination . The Governor ordered the Head of ORG to establish whether it had been the applicant ’s fault that he had not taken part in DATE proceedings .

On DATE there came into force a new law , according to which the governors became the first - instance organs in cases concerning expropriation and compensation therefor . As the Head of ORG had not completed the relevant procedure before that date , the GPE Governor took over the case .

On DATE the GPE Governor dismissed the applicant ’s appeal and refused to quash the DATE decision . The Governor stated that there was no indication that the documents were false . He also found that the fact that the applicant had not taken part in DATE proceedings had resulted from his own fault , because according to law he should have informed promptly the relevant authorities about his GPE death and the fact that he had inherited the property . The applicant appealed against that decision to the President of ORG ( Prezes PERSON i PERSON ) .

On DATE the President of ORG dismissed the applicant ’s appeal . It appears that the applicant did not lodge with ORG an appeal against that decision .

On DATE the applicant filed with the Head of ORG a request for reassessment of the compensation granted in the course of the DATE expropriation proceedings .

On DATE the applicant lodged with ORG a complaint about the inactivity on the part of the administrative organs , which despite his requests had not issued any decision . On DATE the court delivered a judgment in which it obliged the Head of ORG to issue a decision with respect to the reassessment .

On DATE the Head of ORG decided to reassess the compensation . Subsequently , on DATE the applicant lodged an appeal against that decision , as he was not satisfied with the amount of compensation and contested the legal grounds for the reassessment .

On DATE the GPE Governor dismissed his appeal , quashed the decision of the Head of ORG and refused to reassess the compensation . The Governor considered that the compensation could not be reassessed , as it had been actually paid in the form of so - called “ substitute payment ” , i. e. it was deposited with a court .

The applicant did not lodge an appeal against that decision .

LAW lays down time - limits ranging from DATE to DATE for dealing with a case pending before an administrative authority . If those time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new time - limit . Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures preventing in future such delays be applied .

On DATE a new LAW DATE on ORG ( “ the DATE LAW ) came into force .

According to the provisions of LAW , a party to administrative proceedings may , at any time , lodge with ORG a complaint about inactivity on the part of an authority obliged to issue an administrative decision .

LAW provides :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity is legally binding on the authority concerned . If the authority has not complied with the decision , the court may , under section CARDINAL of the DATE Act , impose a fine on it and may itself give a ruling on the right or obligation in question .