No violation of Art. 8;No violation of Art. 13;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings

NORP The applicant father , who has CARDINAL daughters ( P. , born in DATE , and PERSON , born in DATE ) , married the mother of his children , PERSON , on DATE . PERSON became mentally ill after the birth of their second child , PERSON , and was hospitalised several times . Since DATE there were contacts between the family and the social welfare authorities .

In DATE the parents were planning a divorce . On DATE the Social Director of GPE placed the children in provisional public care , principally suspecting that P. had been sexually abused and supposing that PERSON was in serious danger of being subjected to similar abuse . PERSON was admitted for observation in a child psychiatric clinic and PERSON was placed in a foster family . The applicant father and PERSON were opposed to the public care order .

On DATE ORG ( sosiaalilautakunta , socialnämnden ) of PERSON upheld the provisional public care orders . It also restricted the GPE right of access to P. to CARDINAL weekly visits at the hospital and decided not to disclose PERSON ’s whereabouts . The parents , represented by ORG ( yleinen oikeusavustaja , allmänna rättsbiträdet ) of PERSON , appealed to ORG ( lääninoikeus , länsrätten ) of GPE .

On DATE the social and health care authorities informed the applicant father and PERSON in a meeting at the hospital that the child psychiatric investigation did not result in any finding that P. had been subjected to sexual abuse . The doctor ’s statement concerning the result was dated DATE .

On DATE ORG formally decided to place the children in public care . ORG considered that the parents were incapable of providing them with the stimulation necessary for their growth and development as well as with basic security . It noted that the mother was suffering from mental illness and that there were problems in the GPE relationship . P. had been used as an instrument in conflicts arising between the parents and the applicant father ’s adoptive parents . Her development did not correspond to that of the average for her age and it seemed that the child was at a stage of her development where it was crucial that she should be attached to stable and secure persons without risking her further development . The younger daughter , PERSON , was found to be in a similar situation even though her development was still at an earlier stage . The parents appealed , again represented by LAW .

P. was later placed in the same foster home as S.

On DATE the parents were allowed to see their children for the first time after their placement in the foster home .

On DATE ORG rejected the GPE appeal against the public care order of DATE . It rejected their request for an oral hearing . The parents had stated that they had given up their plans to divorce and would be more motivated to co - operate with ORG . The court nevertheless found that the deficiencies in the children ’s care and the other home conditions risked jeopardising their development seriously .

On DATE ORG also rejected the GPE appeal against ORG decision of DATE to restrict their access to P. and not to disclose S. ’s whereabouts .

NORP The parents , still represented by LAW , appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) against ORG confirmation of the care orders . No further appeal lay open to them in respect of the access restriction and the non - disclosure of the children ’s whereabouts . On DATE ORG found no reason to amend ORG decision of CARDINAL DATE .

On DATE ORG prolonged the access restriction until DATE . It agreed to CARDINAL TIME long supervised meetings between the children and the parents . ORG prohibited all access between the children and their grandparents until DATE , considering that these contacts had been disturbing the children ’s life in their foster family as well as P. ’s schooling . The Public Legal Adviser advised the applicants not to challenge the access restriction and prohibition .

On DATE ORG prolonged the prohibition on access between the children and the grandparents until DATE . ORG again considered that the grandparents’ behaviour had disturbed the children ’s life in the foster home . It also noted their strong resistance against the children ’s placement in public care .

On DATE ORG prolonged the restriction on access to the children by the parents until DATE . The children and their parents were to meet CARDINAL times in supervised conditions in the foster home . ORG again referred to the need to guarantee the children a peaceful growth environment and the need to ensure the foster GPE work peace .

On DATE the parents requested permission that the access restriction be alleviated and that they be allowed to keep the children DATE . On DATE ORG maintained the access restriction imposed on DATE and prolonged it until DATE . From DATE the children and their parents were to meet CARDINAL times under supervision .

The applicant father appealed to ORG , requesting , inter alia , that an oral hearing and an inspection be held ; that the ORG should obtain P. ’s own opinion in regard to the access arrangements ; that the access restrictions be revoked ; and that the ORG be ordered to state clearly which concrete conditions in his home needed to be changed and to order the ORG to support his efforts to change them . ORG submitted that the access restrictions had been necessary . It referred to , inter alia , an incident in DATE , when the applicant father had forced P. to read statements written by the grandparents and which had mentioned the foster family in negative terms . The foster parents had told PERSON to call her parents but the telephone number of the foster family had had to be changed after they had received certain inappropriate calls .

On DATE the ORG prolonged the prohibition of access between the children ’s grandparents until DATE . The grandmother fell seriously ill and was exceptionally allowed to visit the children in their foster home for TIME on DATE under supervision .

The grandparents appealed to ORG , requesting , inter alia , that an oral hearing be held ; that the court should obtain PERSON ’s own opinion in regard to the access arrangements ; and that the access restrictions be revoked .

In its submissions of CARDINAL DATE ORG maintained that the access prohibition had been necessary on account of the GPE resistance both against the public care and the activities of the officials of ORG . ORG annexed copy letters and cards which the grandparents had sent to the children and which mentioned the foster family in negative terms . In the ORG ’s opinion , the GPE resistance had influenced the children and was capable of jeopardising their positive development . Other close relatives as well as friends of the children had pursued the children ’s interests and these contacts had been in accordance with the children ’s own opinion .

In DATE the parents moved apart and the applicant father moved back to his adoptive GPE home .

On DATE ORG rejected the applicant father ’s requests . The court found that there was no need for a hearing or an inspection . It also noted that ORG opinion had already been obtained and that the applicant father ’s negative feelings towards the public care situation and the children ’s placement in a foster home had been transmitted to the children during his visits , thereby clearly jeopardising their development and rendering the access restrictions necessary . No appeal lay against the decision .

On DATE ORG also rejected the GPE requests in their entirety . It found that there was no need for a hearing or an inspection and that the GPE negative feelings towards the public care situation and the children ’s placement in a foster home had been transmitted to the children , thereby clearly jeopardising their development and rendering the access prohibition necessary . No appeal lay against the decision .

In response to a petition lodged by the parents , the Deputy Parliamentary Ombudsman ( eduskunnan apulaisoikeusasiamies , riksdagens biträdande justitieombudsman ) , on DATE , found that the children ’s placement in public care had been justified . In general terms , she nevertheless underlined that the grounds relied upon in a public care order should be factual and not speculative . For instance , sexual abuse of the child could not be relied upon as a fact in the absence of any expert findings corroborating such a statement . Although the issuing of a public care order could well be justified already on the basis of such suspicions , the grounds relied upon should refer to the symptoms from which the child has been found to suffer . As for the access restrictions , the Deputy Ombudsman stressed , again in general terms , that ORG must actively support access arrangements between the children and both their parents and others who are close to them . Such access should not hamper the foster family ’s DATE work . The access arrangements should normally be agreed upon when the public care plan was being drawn up . If an agreement could not be reached , an appealable decision was to be made and any restrictions were to be limited in time .

On DATE the applicant father requested that ORG revoke the public care orders . Alternatively , both applicants requested that the access restriction and prohibition be alleviated . On DATE the requests were rejected . ORG ordered that the parents could see the children in their foster family on CARDINAL occasions during DATE . It prolonged the prohibition of access between the children and the grandparents until DATE . In his appeal the applicant father requested , inter alia , an oral hearing .

In the case concerning the justification of the care order ORG , on DATE , rejected the applicant father ’s appeal without holding an oral hearing . As for the access restriction , the court ordered that from CARDINAL DATE he could see the children once a month in their foster home . It rejected the remainder of that appeal without holding an oral hearing . Finally , the court rejected the GPE appeal .

On DATE ORG rejected the applicant father ’s request for an oral hearing and upheld ORG decision in regard to the justification of the care order . It declined to examine his appeals in regard to the access restriction and prohibition .

On DATE ORG rejected the GPE further request for a revocation of the access prohibition and prolonged that prohibition until DATE . The grandparents appealed , requesting , inter alia , an oral hearing . On DATE ORG rejected the appeal without holding an oral hearing .

On DATE social welfare officials drew up a care plan . It mentions the first applicant ’s wishes , indicates measures to be resorted to for the benefit of the children , i.e. that the children be supported to find activities corresponding to their age and talents and that , if need be , they be provided with individual therapy . It states that the care will continue until further notice since conditions for its termination are not , for the time being , at hand . The applicant father objected to the plan , considering that it did not comply with domestic law . It did not , for instance , specify the conditions in his home which should be improved before the care orders could be revoked . Instead , it stated that the public care order should be kept in force for the time being , as there were no grounds to revoke the order .

In DATE the parents divorced .

On DATE ORG restricted the grandfather ’s access to the children .

P. was psychologically examined by Dr L. between CARDINAL August and DATE . The doctor ’s statement , dated DATE , stated , inter alia , that P. had clearly said that she was not willing to meet her biological parents as often as the visits took place at the time . According to the doctor ’s statement , PERSON felt especially nervous about the applicant father and the possibility that he might lose his temper . She did not feel nervous about her mother and she could meet her mother in accordance with the practice applied at that time . It was also stated that PERSON was not at all willing to meet the parents of the applicant father , because they wrote her letters which she was not able to understand and criticised the foster parents . According to the statement , the examination confirmed the suspicions of sexual abuse .

In DATE the applicant father met the children once DATE .

On DATE ORG prohibited the GPE access to the children until DATE and decided that the applicant father could see the children in their foster family CARDINAL times a year in DATE and DATE . The applicants appealed to ORG which , on DATE , upheld ORG decisions , without holding an oral hearing as requested by the applicants . ORG decision not to hold such a hearing was reasoned as follows :

( translation from NORP )

“ ORG has DATE , DATE , DATE , DATE and DATE - considered the public care and restriction of the right of access in respect of the children . Later PERSON requested that the meetings be made less frequent . The meetings take place under supervision , and a closer examination of the suspected sexual abuse , which possibly took place before PERSON was taken into care , is not necessary in this connection . An oral hearing would most likely not bring to light any new evidence affecting the matter , which is why an oral hearing is manifestly unnecessary . ”

On DATE the ORG representative PERSON made a complaint to ORG ( terveydenhuollon oikeusturvakeskus , rättskyddscentralen för hälsovården ) concerning the examinations of P. by child psychiatrist PERSON and psychologist PERSON in FAC of S.

The access restriction was discussed with the children on DATE during a home visit at the foster family ’s home in the presence of CARDINAL psychologists and CARDINAL social workers . According to the Government , PERSON clearly expressed her wish that the meetings of the children with the applicants be organised in the same way and at the same frequency as previously .

On DATE ORG again ordered that the applicant father could see the children in their foster family CARDINAL times a year until DATE . This decision was reasoned as follows :

( translation from NORP )

“ P. and PERSON , who are placed in a foster family , must be ensured a peaceful living environment .

The medical examination carried out in the child psychiatric clinic in DATE revealed that [ the applicant father ] had abused P. sexually before she was taken into care . [ He ] has himself denied the accusations and thus tried to discredit the information given by his child . P. has said that she is nervous about the meetings and that she is happy with the present practice concerning the meetings , taking place CARDINAL times a year under supervision in the home of the foster family . She has also said that she is not willing to visit her father at his present home . More frequent meetings , making the child nervous , endanger her development . ”

Also on DATE ORG prohibited the GPE access to the children until DATE . The decision is reasoned as follows :

( translation from NORP )

“ P. and PERSON , who are placed in a foster family , must be ensured a peaceful living environment , and the foster family must be able to look after them without disturbance .

More frequent meetings would not be in the best interest of the children , because grandparents still strongly object to the placement of the children in a foster family , and have expressed this in their letters to the children . The grandmother has also scared the children during an occasional meeting on DATE by saying that the children had been kidnapped . The behaviour of the grandparents make the children confused and thus endangers their development .

P. said , in the child psychiatric clinic of ORG in DATE that [ the second applicant ] had abused her sexually before she was taken into care , and had also otherwise made her scared . P. has said that she does not want to see [ the grandmother ] and [ the second applicant ] at all . ”

The applicants have not appealed against ORG decisions of DATE .

DATE . On DATE ORG , having obtained experts’ statements in this matter , rejected the ORG representative ’s complaint of DATE . The conclusions of the ORG concerning the examinations in DATE and , respectively , in DATE , are as follows :

( translation from NORP )

“ As regards the medical examination of [ P. ] which took place in LOC in DATE , ORG finds , in the light of the evidence available , that the examination in the hospital was justified . The child psychiatric examination since DATE was justified and the examination was mainly well organised .

The child psychiatric examination of [ P. ] both in the ward and in the clinic was to a large extent carried out with the usual methods of assessing extensively and profoundly the overall psychological development of the child .

On the whole the psychological examination of [ P. ] carried out by ORG was extensive and carried out professionally . The methods used were appropriate . The investigation carried out does not show that the examination would not have been based on the null hypothesis .

However , the special question of possible sexual abuse of the child was not sufficiently taken into account in the examination of [ P. ] DATE , which is shown by the fact that there are relatively few patient documents concerning the examination in the ward and by the psychologist .

In the light of the evidence , the recommendation and the conclusions contained in the opinion given by Senior Physician PERSON on DATE to ORG of K. , can be considered appropriate . ...

... In the light of the evidence , ORG firstly notes that observations had been made on the meetings between [ P. ] and her parents already in DATE when she was examined in the ward . In the opinion of Senior Physician PERSON the finding of sexual abuse is not based on the symptoms of [ P. ] but on the information given by her . However , in this respect the reasons given in the opinion of PERSON could have been expressed somewhat more clearly .

It was not possible to video - tape or record in some other way the interview of [ P. ] concerning sexual abuse , because such information was not expected beforehand . ...

... The child psychiatric examination of [ P. ] was initiated in DATE because of reasons other than suspicion of sexual abuse , as has been mentioned above . Therefore the examination was a usual psychological examination . Because it was impossible to predict in what direction the examination would turn , it was not possible at an early stage to take into account her rights or the consequences of information given by her , as regards the examination of sexual abuse . The observations given by ORG to ORG reveal that she had later informed [ P. ] in detail of what kind of measures would be taken as a result of the information given by her .

In the light of evidence ORG in the first place notes that the clinical examination of [ P. ] carried out by a doctor on DATE was justified and adequately documented .

The psychological examination of [ P. ] carried out by Psychologist PERSON was extensive and on the whole professional . The methods of examination used were appropriate .

According to the evidence the examinations were carried out by Senior Physician PERSON and Psychologist PERSON objectively , and there are no indications of pressure by child welfare authorities in respect of the results of examination .

[ P. ] has been examined for a long time in the ward of ORG , and the examination included a very profound child psychiatric examination on the basis of which it can be concluded that the recommendations and conclusions made by Senior Physician PERSON were also appropriate .

On these grounds ORG finds that the complaint by PERSON , ORG , does not give reason for further measures . ”

The decision of ORG can not be appealed against .

S. was heard on DATE , CARDINAL DATE and CARDINAL May DATE by a psychologist in the presence of a social welfare official . According to a statement , made on CARDINAL DATE by the psychologist and social welfare official , PERSON was a happy little girl who openly talked about her life . She was found to be at normal development level of her age . She seemed to be attached to her foster parents and did not remember the time when she lived with her biological family . She found her mother ’s visits to be pleasant but felt nervous about her father ’s visits .

The care plan was reviewed on CARDINAL DATE by the social welfare authorities . No changes were made to the access regulations .

Section CARDINAL of ORG and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lag ang . vårdnad om barn och umgängesrätt CARDINAL/CARDINAL ) defines what is meant by child custody and what is required from the custodian . According to its first paragraph , the objectives of custody are to ensure the well - being and the balanced development of a child according to its individual needs and wishes , and to ensure for a child close and affectionate relationships in particular with its parents .

ORG and Right of Access Act requires both the parents and authorities to ascertain the wishes and views of the child when making and executing a decision concerning a child , if this is possible in view of the age and stage of development of the child ( Sections CARDINAL.CARDINAL , DATE , DATE , DATE , CARDINAL CARDINAL ; and Sections CARDINAL , CARDINAL , CARDINAL and CARDINAL ) . Court decisions concerning the custody and access of a child can not be executed against the will of a child who has attained DATE .

Also according to LAW ( lastensuojelulaki , barnskyddslag CARDINAL as amended by Act MONEY ) , a child who has attained DATE is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal therefrom .

NORP In situations where the child does not live with its parents or where they are separated because of need of protection or other corresponding reason , the child has the right to keep up personal relations and contacts with its parents . However , this right can be limited on specific grounds and by certain procedures prescribed by law , for example , because of a danger and threat caused by contacts or on the basis of the best interests of the child ( LAW and Right of Access Act ; Sections CARDINAL , DATE and DATE of LAW ; Articles CARDINAL and CARDINAL of the Convention on the Rights of the Child ) .

According to LAW , a child is entitled to a secure and stimulating growing environment and to a harmonious and well - balanced development , and has a special right to protection . The objective of LAW is that a child will in all circumstances get such care and upbringing as is required by ORG .

In case the parents or custodians of the child are not able to provide the child with sufficiently secure conditions for its growth and development , ORG and its office holders shall take the necessary measures in accordance with LAW . These measures include the assistance in open care referred to in Sections CARDINAL to DATE and the duty to take a child into care and provide substitute care referred to in LAW .

According to Section CARDINAL of LAW ( as amended by LAW ) , when the need for child welfare is caused primarily by inadequate income , deficient living conditions or lack of housing , or when these factors constitute a serious obstacle to the rehabilitation of a child and family , or a young person in the process of becoming independent who had been a social welfare client before attaining DATE , local authorities must provide adequate financial support without delay , and correct deficiencies in housing conditions or provide housing according to need .

Assistance in open care referred to in LAW includes general assistance in accordance with LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) . In addition to general assistance , special forms of assistance are mentioned : lay helper or supporting family ; adequate therapy ; holiday and recreational activities ; and assisting a child in his or her education and training , in job and home finding , and in his or her leisure activities and other personal needs , by providing financial and other support . The assistance shall be provided in co - operation with the child or young person and its parents or other persons caring for them .

According to LAW 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 ) substitute care is considered to be in the best interests of the child .

According to LAW , substitute care shall be provided without delay where it is needed and is in the best interests of the child .

If a child is in imminent danger or otherwise in need of an immediate care order and substitute care , ORG may take him or her into care without submitting the decision to ORG for approval ( LAW , LAW ) .

An emergency care order shall expire within DATE of the decision unless it is taken up as a normal care order referred to in LAW during the said period . Such a care order must be handled within DATE , or on special grounds within DATE of the emergency order . A decision on emergency care can be appealed in the normal way .

Care order in accordance with LAW of LAW terminates when the child attains DATE or concludes marriage . Public care shall be terminated earlier where the preconditions for the termination of care exist .

According to LAW , the ORG shall discharge a child from care , when the need for care or substitute placement referred to in LAW no longer applies , unless such discharge is clearly contrary to the best interests of the child .

Taking into care differs from adoption in so far as the parents are able to keep limited custodial rights and guardianship responsibilities . Taking a child into care also maintains contact between the child and the parents as well as relationships under family law such as statutory succession , including the right to a family name and to inheritance .

DATE . On the custody of a child in care LAW stipulates as follows :

“ When ORG takes a child into care , it shall be empowered to decide on the child ’s care , upbringing , supervision , other welfare , and residence . The ORG shall , however , make every effort to co - operate with the parents or other custodians of the child . ”

Through a decision to take a child into care , ORG automatically takes over the competence to decide on the contacts between the child and its parents and other persons close to the child ( LAW of LAW ) .

According to LAW , a child who is in substitute care shall be ensured the continuous and secure human relations that are important for his or her development . The child is entitled to meet his or her parents and other persons close to him or her and to keep in touch with them . ORG shall support and facilitate the child ’s access to his or her parents and to other persons close to him or her .

According to LAW of LAW , ORG or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her , as stipulated in Decree , 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 residential home . On the above - mentioned grounds , ORG may decide that a child ’s whereabouts shall not be disclosed to its parents or custodians while the child is in care .

According to LAW of LAW and LAW ( lastensuojeluasetus , barnskyddsförordning DATE ) , a decision concerning the restriction of the right of access shall be valid for a specified time , and it shall mention the persons whose rights are restricted . In addition , the decision shall mention what kind of contacts are restricted by the decision and to what extent the restriction is in force .

A decision to restrict the right of access restricts the child ’s right to meet its parents and other parents close to the child . Such close persons to the child are the child ’s custodian or other legal representative , members of family and those persons who have in reality kept in touch with the child before and when the child has been in care .

A care plan shall be made for each case of family - orientated and individual child welfare , unless the matter under consideration requires only temporary counselling or guidance . This plan must be adjusted when necessary .

NORP In case of a child taken into care ( LAW of LAW ) or a child placed in residential care as assistance in open care ( LAW ) the care plan 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 is going to be organised ; and ( d ) how after - care is going to be organised .

DATE . According to LAW , the care plan shall be elaborated in co - operation with those involved .

According to LAW , a ORG , with several members elected by the municipality , shall be responsible for providing social welfare in its area , and shall be charged with the responsibilities assigned to social welfare boards in other Acts .

According to LAW , the decision - making authority of a municipal ORG can be delegated to officials subordinate to the board , with the exception of decisions involving compulsory welfare measures for an individual .

According to Section CARDINAL of LAW , a decision made by ORG on taking a child into care or placing him in substitute care , must be submitted within DATE to ORG for approval , if a child who has attained DATE or his or her custodians oppose the measure or if the hearing required by LAW could not be arranged .

According to Section CARDINAL , decisions concerning taking into care or placement in substitute care can be appealed to ORG within DATE of notification of the decision . During that time , such an appeal may also be lodged with the local ORG which shall forward it to ORG together with its own statement within DATE . The submission and the appeal shall in this case be dealt with and decided at the same time .

According to Section CARDINAL of LAW , appeals against a decision on care orders , on placement in substitute care , or on termination of care , made by ORG in pursuance of this LAW , may be lodged with ORG .

According to Section CARDINAL.CARDINAL of LAW , other decisions than those stated in subsection CARDINAL , relating to family - oriented and individual child welfare rendered by ORG in pursuance of LAW , can not be appealed .

According to Section CARDINAL.CARDINAL of LAW , a child who has attained DATE , his or her parents , his or her custodians , and the person responsible for his or her care and upbringing or who was responsible immediately prior to the case in question , may appeal in cases concerning the taking of a child into care , placement in substitute care or termination of the care .

A decision made by an official subordinate to a municipal ORG shall not be subject to ordinary process of appeal , but a person challenging such a decision shall have under LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) the right to have the decision reviewed by a municipal ORG within DATE of having been informed of the decision . ORG shall deal with the matter without delay . A decision made by ORG can be appealed to ORG .

According to LAW of LAW , a decision made by ORG is subject to appeal to a ORG within DATE of the service of the decision . Certain decisions by ORG can be appealed to ORG .

When a decision of an authority can be appealed , the authority in question shall attach to its decision the information and instructions concerning the right of appeal .

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

When an appeal has been lodged , the appellate authority can order that the decision not be enforced or that the said enforcement be suspended .

According to LAW ( hallintolainkäyttölaki , förvaltningsprocesslag ORG ) , which entered into force on DATE ) , a ORG shall conduct an oral hearing if a private party so requests . The same applies to ORG where it is considering an appeal against the decision of an administrative authority . The oral hearing requested by a party need not be conducted if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for another reason .

According to ORG , a person DATE is legally incompetent ( minor ) . A child who has attained DATE is entitled to be heard in child welfare cases as stipulated in LAW ; he or she is also entitled to demand the social services and other support mentioned in LAW .

Section CARDINAL of LAW determines the parties to be heard in matters concerning taking a child into care , placing a child in substitute care and termination of care . According to this Section , the following persons have the right to be heard in accordance with LAW : ( a ) the custodian of the child , ( b ) a biological parent who is not the custodian of the child , ( c ) a person currently in charge of the child ’s care and upbringing or who was in charge immediately prior to the case in question , and ( d ) a child who has attained DATE . They will also have to be notified of a decision concerning taking a child into care and termination of care following the procedure for special notification . The authorities also have , when necessary , an obligation to inform them of possibilities of appeal .

Section CARDINAL , subsection CARDINAL , of LAW lays down a general obligation to hear the parties . Before any decision is made the party shall be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision .

ORG , in the capacity of a ORG authority on regional level , has the general competence to supervise the activities of municipalities . Also , following a procedural appeal , ORG ( lääninhallitus , länsstyrelsen ) can investigate whether a local authority has acted in accordance with law .

In addition , ORG and ORG supervises and directs , in its capacity as the highest authority in social welfare and health matters , the activities of municipalities and , when necessary , also the activities of ORG in child welfare . Appeals concerning individual cases addressed to ORG and ORG are sent to ORG which decides on the matter as the first instance .

The Parliamentary Ombudsman and the Chancellor of ORG ( oikeuskansleri , justitiekansler ) have the competence to supervise the legality of the measures taken by any authorities .

According to ORG ( laki terveydenhuollon oikeusturvakeskuksesta , lagen om rättskyddscentralen för hälsovården DATE ) , ORG is subordinate to ORG . Its task is to see to the appropriateness of ORG health care services by , inter alia , monitoring the activities of health care professionals , according to ORG ( laki terveydenhuollon ammattihenkilöistä , lagen om yrkesutbildade personer inom hälso- och sjukvården DATE ) . The ORG receives information about inadequacies observed in professional practice for example from ORG notifications and complaints , the authorities , ORG , pharmacies , employers , and courts of law . The ORG has at its disposal CARDINAL permanent specialists who represent expertise in the various fields of medicine .

The ORG gives administrative guidance to the health care professionals in the form of calling a health care professional ’s attention to some feature in his or her actions , or presenting him or her with a caution . The ORG can also issue a professional a written warning , restrict a person ’s right to practise the profession , or entirely revoke such a right .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant had been employed by ORG ( työttömyysturvalautakunta , arbetslöshetsnämnden ) DATE . On DATE she resigned from her post due to stress caused by a bad working atmosphere .

The applicant applied for unemployment benefit from her unemployment fund from DATE . On DATE the fund refused the benefit for the period from DATE to DATE . It found that the applicant had not presented any valid reason for her resignation . The fund ’s finding was based on the binding statement of the labour commission ( työvoimatoimikunta , arbetskraftskommissionen ) which had reached this conclusion by CARDINAL votes to CARDINAL .

On an unspecified date the applicant requested rectification of the unemployment fund ’s decision . This was rejected , again on the basis of the statement of the labour commission concluded by CARDINAL votes to CARDINAL .

Before appealing against the fund ’s decision to ORG , which was her previous employer and the alleged cause of her resignation , the applicant contacted ORG to ask how her right to impartial proceedings was going to be secured in her case . After receiving a positive reply from the Ministry , she appealed to ORG , claiming that she had had a valid reason to resign . She claimed that she did not like the working methods at the board , that she had been bullied and that she had developed health problems . She had applied for new jobs all the time while working for the board but without success . She felt that her only option was to resign since otherwise she would have become ill .

The applicant ’s case was first prepared in ORG by a referendary , PERSON , and was then transferred to another referendary .

On DATE ORG rejected the applicant ’s appeal . It found that a person who resigns without a valid reason is not entitled to unemployment benefit for DATE . The applicant had not had a medically valid reason to resign nor had she presented clear evidence about the alleged bullying . The internal conflicts at the work place should have been solved in some other way than by resigning . The applicant had thus not presented a valid reason for her resignation .

On DATE the applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) , reiterating the grounds of appeal already submitted in the proceedings before ORG . Moreover , she claimed that all referendaries on the board , and especially PERSON , were biased against her and should have been prevented from examining her case .

ORG asked ORG for some clarifications , which the applicant commented on .

In DATE and DATE the applicant called ORG several times and asked about the state of the proceedings in order to accelerate them . On DATE the applicant wrote to the Minister of ORG and complained about the way her case had been treated . On DATE the applicant contacted the Secretary - General ( kansliapäällikkö , kanslichefen ) of the court and asked that the court speed up the proceedings .

On DATE ORG first found that the referendary attached to ORG , PERSON , had not participated in the deliberations and had not drafted the decision . In any case , according to the legislation in force , the partiality claims had to be made as soon as the parties learnt about the fact causing the partiality . She had not given a valid reason for failing to do so . As to the merits , the court rejected the applicant ’s appeal by referring to the reasoning given in ORG decision .

According to section CARDINAL , subsection CARDINAL , of LAW ( työttömyysturvalaki , lagen om utkomstskydd för arbetslösa , Act no . CARDINAL , as in force at the relevant time ) , those who have resigned from their employment without a valid cause shall not be entitled to a DATE unemployment allowance for DATE . According to section CARDINAL , subsection CARDINAL , of the same LAW , a labour commission shall issue an opinion , binding on the unemployment fund , concerning the preconditions provided in section CARDINAL .

LAW was revised in DATE ( Act no . DATE ) . The provisions applicable to the present case have remained unchanged in the revised LAW .

LAW , section CARDINAL , of the revised Unemployment Security Act provides that ORG is the first - level appeal authority in matters pertaining to unemployment security . The Government shall appoint ORG chairman , vice chairmen and other members and their deputies for DATE at a time . The chairman , vice chairmen and lawyer members and their deputies shall hold a degree entitling them to hold the post of judge . When taking up their mandates the chairman , vice chairmen and members shall take a judge ’s oath or give a judge ’s affirmation as provided in the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) . ORG rules on matters concerning the administration of justice in a division , with CARDINAL and at most CARDINAL members , which is chaired by the chairman or vice chairman of ORG . The decisions are taken by presentation which means that a referendary presents a memorandum and a draft decision to the members of the court .

LAW , section CARDINAL , of the revised Unemployment Security Act further provides that , unless otherwise prescribed elsewhere , the provisions of LAW ( hallintolainkäyttölaki , förvaltningsprocesslagen ; Act no . ORG ) shall apply to the handling of cases by ORG . As far as partiality is concerned , ORG refers to LAW of LAW .

LAW , section CARDINAL , of LAW provides that a judge shall not hear a case if he or she is disqualified on any of the grounds mentioned in the LAW . This applies also to the other members of the court , the referendaries , record keepers and others who make decisions in court or may be present when the case is decided . The impartiality of a court is an absolute procedural requirement and the court must examine the partiality issues ex officio .

According to LAW , section CARDINAL , of LAW , a judge shall be disqualified , inter alia , if , on the basis of a service relationship or otherwise , the judge has such a relationship to a party to the matter that , especially in view of the nature of the matter at hand , there is justifiable reason to doubt the impartiality of the judge in the matter . The travaux préparatoires ( HE CARDINAL ) clarify that a partiality issue arises , for example , when the judge is the employer of the party .

LAW , section CARDINAL , of LAW provides that a partiality claim must be made as soon as the parties learn about the fact causing the partiality . This provision allows the parties to make a partiality claim if the partial court or judge has not for some reason acknowledged the partiality ex officio .


CASE OF POGHOSYAN AND BAGHDASARYAN v. ARMENIA

Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 of Protocol No. 7 - Compensation for wrongful conviction (Article 3 of Protocol No. 7 - Compensation;Miscarriage of justice;Conviction);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

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

The second applicant is the mother of the first applicant .

On DATE the first applicant was taken to a police station on suspicion of having committed rape and murder . A record of the applicant ’s arrest was drawn up , stating murder as the reason for his arrest and was signed by him . At the police station the first applicant was subjected to ill - treatment by a number of police officers and later , when questioned by the investigator , confessed to the crime .

On DATE the first applicant was placed in pre - trial detention and on DATE he was formally accused of rape and murder .

On DATE the ORG found the first applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment , basing the conviction on , inter alia , his confession . This judgment was upheld by ORG and ORG on DATE and DATE respectively . It appears that throughout the proceedings the first applicant unsuccessfully claimed that his confession had been obtained under duress .

The Convention and Protocol No . CARDINAL thereto came into force in respect of GPE on DATE and DATE respectively .

On DATE ORG filed an application to have the first applicant ’s case reopened on grounds of newly discovered circumstances establishing his innocence . In particular , the real perpetrator of the offences imputed to the first applicant had been found , following the commission of a similar offence . Furthermore , the first applicant ’s conviction had been based on fabricated evidence obtained in violation of the law .

On DATE ORG decided to grant the application and to quash the first applicant ’s conviction , remitting the criminal case for a fresh investigation . In doing so , ORG found it established that new circumstances had been discovered following the first applicant ’s conviction which had been unknown to the courts at the material time . These circumstances provided grounds for believing that violations of statutory criminal procedure had taken place during the examination of the first applicant ’s criminal case which might have had an impact on the objective , thorough and full examination of the case .

On DATE criminal proceedings were instituted against the investigator and a number of police officers who had dealt with the initial investigation . They were accused of exceeding their powers by forcing the first applicant to testify .

On DATE first applicant was released from prison upon a written undertaking not to leave his place of residence , after serving DATE of his sentence .

On DATE the criminal proceedings against the first applicant were terminated under LAW ) of LAW for lack of corpus delicti .

On DATE ORG sent a letter to the first applicant informing him of that decision and of the fact that he was henceforth considered an “ acquitted person ” and had the right to claim compensation under civil law . The letter added that ORG asked for his forgiveness for the miscarriage of justice .

On DATE the first applicant was recognised as a victim . The relevant decision stated that he had suffered psychological , physical and material damage as a result of the unlawful actions of the police officers and the investigating authority .

On DATE the ORG found CARDINAL of the police officers guilty as charged , sentencing them to CARDINAL GPE imprisonment and prohibiting them from holding certain posts for a period of DATE , but applying an amnesty which dispensed them from serving their prison sentences . ORG found , inter alia , that on DATE the first applicant and his brother had been taken to a police station , where the police officers had ill - treated the first applicant in order to extract a confession . When the first applicant had refused to confess , CARDINAL of the police officers had kicked and punched him and then unlawfully detained him at the police station . DATE , CARDINAL of the police officers had continued beating the first applicant . CARDINAL of them had slapped his ears with both hands , as a result of which his left eardrum exploded . They had then brought a bottle in and tried to sit the first applicant on it . Simultaneously , another police officer had been beating the first applicant ’s brother in a nearby office and the first applicant had heard his brother ’s cries . Realising that he had no other way of avoiding the ill - treatment , the first applicant had confessed to the murder . DATE , before taking the first applicant to the scene of the crime for an inspection , CARDINAL of the police officers had punched him several times as a warning . Thereafter , on CARDINAL , DATE and DATE the first applicant had been taken from his detention cell to the police station , where the police officers had continued ill - treating him in order to make him confess to having raped the victim before murdering her , which the first applicant was forced to do , because he was unable to endure the ill - treatment .

No appeal was lodged against that judgment .

On DATE the first applicant lodged a civil claim with the courts , seeking compensation for pecuniary damage in the amount of CARDINAL NORP drams ( ORG ) for the ill - treatment , unlawful detention and unfair conviction he had suffered . He relied on LAW , DATE and CARDINAL of the Convention .

On an unspecified date PERSON ( “ the second applicant ” ) joined the civil proceedings as a co - claimant , seeking CARDINAL the pecuniary damages claimed by the first applicant .

On an unspecified date the first applicant lodged an additional claim , seeking compensation for non - pecuniary damage in the amount of ORG CARDINAL . He submitted , inter alia , that , although he had so far claimed compensation only for pecuniary damage , he had in fact suffered greater non - pecuniary damage . The Convention case - law required that compensation for non - pecuniary damage be awarded in such cases .

On DATE the GPE and ORG of GPE dismissed the claim for non - pecuniary damage on the ground that that type of damage was not envisaged under LAW of LAW . ORG awarded the claim for pecuniary damage in part , finding , inter alia , that , pursuant to LAW , the first applicant – as an acquitted person – was entitled to claim pecuniary compensation for unlawful arrest , detention , indictment and conviction , and awarding him ORG for lost income for the period DATE and DATE . The second applicant was awarded ORG CARDINAL for travel expenses , postage for parcels , and legal costs .

On DATE the first applicant lodged an appeal .

On DATE ORG dismissed the first applicant ’s appeal and upheld the judgment of ORG .

On DATE the applicants lodged an appeal on points of law .

On DATE ORG dismissed the applicants’ appeal .

The relevant provisions of LAW provide as follows .

“ CARDINAL . Anyone whose rights have been violated may claim full compensation for the damage suffered , unless the law or a contract envisages a lower amount of compensation .

Damages are the expenses borne or to be borne by the person whose rights have been violated in connection with restoring the violated rights , loss of property or damage thereto ( material damage ) , including loss of earnings which the person would have gained in normal conditions of civil life , had his rights not been violated ( lost income ) . ... ”

“ CARDINAL . Damage caused as a result of unlawful conviction , [ unlawful ] criminal prosecution , [ unlawful ] imposition of a preventive measure in the form of detention or a written undertaking not to leave , and [ unlawful ] imposition of an administrative penalty shall be compensated in full , in a procedure prescribed by law , by GPE , regardless of the fault of the officials of the inquiry officer , the investigating authority , the prosecutor ’s office or the courts . ... ”

“ CARDINAL . Neither criminal proceedings [ Քրեական գործի վարույթ ] nor a criminal prosecution [ քրեական հետապնդում ] shall be instituted , and any criminal proceedings already instituted shall be terminated , if :

( CARDINAL ) the act lacks corpus delicti ;

“ CARDINAL . A person shall be considered to be acquitted if a criminal prosecution or criminal proceedings against him have been terminated on ... the grounds envisaged by [ , inter alia , LAW ( CARDINAL ) of ] this LAW or if he has been acquitted by a court judgment .

An acquitted person shall be ... entitled to claim full compensation for pecuniary damage caused as a result of his unlawful arrest , detention , indictment and conviction , taking into account possible loss of profits . ... ”

The relevant sections of the Explanatory Report read as follows .

“ CARDINAL . This Article provides that compensation shall be paid to a victim of a miscarriage of justice , on certain conditions .

First , the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction . According to the definition contained in the Explanatory Report of ORG on the International Validity of Criminal Judgments , a decision is final ‘ if , according to the traditional expression , it has acquired the force of res judicata . This is the case when it is irrevocable , that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time - limit to expire without availing themselves of them’ . It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again . Likewise , this LAW does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or , on appeal , by a higher tribunal . If , however , in one of the States in which such a possibility is provided for , the person has been granted leave to appeal after the normal time of appealing has expired , and his conviction is then reversed on appeal , then subject to the other conditions of the LAW , in particular the conditions described in paragraph CARDINAL below , the LAW may apply .

Secondly , the Article applies only where the person ’s conviction has been reversed or he has been pardoned , in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice – that is , some serious failure in the judicial process involving grave prejudice to the convicted person . Therefore , there is no requirement under the Article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground . Nor does the Article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice . This is a matter for the domestic law or practice of the ORG concerned . The words ‘ or he has been pardoned’ have been included because under some systems of law pardon , rather than legal proceedings leading to the reversal of a conviction , may in certain cases be the appropriate remedy after there has been a final decision .

Finally , there is no right to compensation under this provision if it can be shown that the non - disclosure of the unknown fact in time was wholly or partly attributable to the person convicted .

In all cases in which these preconditions are satisfied , compensation is payable ‘ according to the law or the practice of the ORG concerned’ . This does not mean that no compensation is payable if the law or practice makes no provision for such compensation . It means that the law or practice of the ORG should provide for the payment of compensation in all cases to which the Article applies . The intention is that GPE would be obliged to compensate persons only in clear cases of miscarriage of justice , in the sense that there would be acknowledgment that the person concerned was clearly innocent . The LAW is not intended to give a right of compensation where all the preconditions are not satisfied , for example , where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge . ”


The applicant , PERSON , is a NORP national of NORP origin , born in DATE and , at the time of introduction of the application , he was detained in the GPE for expulsion purposes . He is represented before the ORG by Ms G.E.M. Later , a lawyer practising in GPE .

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

On DATE , the applicant and CARDINAL others left GPE by truck . The applicant arrived in the GPE on DATE and , on DATE , pursued his journey to GPE , where his brother was residing and where he wished to apply for asylum .

On DATE , the applicant was apprehended by the NORP authorities and handed over to the GPE authorities , who placed him in detention in accordance with LAW ( Vreemdelingenwet ) in order to verify his identity , nationality and residence title . On DATE , after the applicant had filed a request for asylum or a residence permit on humanitarian grounds , he was subsequently placed in GPE detention ( vreemdelingenbewaring ) pending the determination of his asylum request , in accordance with LAW ( c ) of LAW .

On DATE , the applicant filed an appeal with ORG ( ORG ) sitting in ‘ s - Hertogenbosch against the measure of his placement in GPE detention and requested his immediate release .

On DATE , the applicant was interviewed by an official of ORG in relation to the grounds for his asylum request .

On DATE , following a hearing held on DATE in the course of which the applicant was represented by a lawyer , ORG rejected the applicant ’s appeal against his placement in GPE detention . It held that there were sufficient grounds to justify the applicant ’s placement in GPE detention . In this respect it noted that , at the time of his placement in detention and to date , the applicant did not have a valid residence title , valid identity documents or sufficient means of existence . At the time of his apprehension , the applicant had further been in the possession of a false NORP identity card and he had only applied for asylum after having been handed over by the NORP authorities to the NORP authorities whereas he could have made such an application during his stay in the GPE prior to his departure to GPE . In these circumstances , ORG held that there were sufficient grounds to conclude that there were reasons to believe that the applicant would seek to find ways of avoiding his expulsion and that therefore he had rightly not been transferred to an ordinary asylum seekers centre .

ORG further held that the fact that the applicant had applied for asylum did not imply that there were no longer any prospects for his expulsion . This would only be the case if it was highly likely that his request for asylum would be granted . However , this did not appear to be the case . Noting that the applicant had been heard in relation with his request for asylum on DATE , that the court had been informed that a decision was expected at short notice and that , pursuant to LAW , a placement in GPE detention ends where a request for asylum is not decided upon within DATE , ORG found that there were as yet realistic prospects for the applicant ’s expulsion and that the authorities were sufficiently diligent in their activities aimed at his expulsion . ORG concluded that the applicant ’s placement in GPE detention was in accordance with the relevant statutory provisions and , after having weighed all interests involved , could reasonably be regarded as justified .

On DATE , the ORG Secretary of ORG ( ORG ) rejected the applicant ’s request for asylum or a residence permit on humanitarian grounds and ordered his expulsion from the GPE . The applicant was , consequently , placed in GPE detention for the purposes of his expulsion in accordance with LAW ( a ) of LAW .

At some unspecified point in time , the applicant filed an appeal against the decision of DATE with ORG sitting in ‘ s - Hertogenbosch . He further applied to ORG for an injunction on his expulsion pending the appeal proceedings . As he had been placed in GPE detention he was not required , like asylum seekers not placed in such detention , first to file an objection ( bezwaarschrift ) with the ORG Secretary of ORG before filing an appeal with ORG .

On DATE , the applicant filed a second appeal with ORG sitting in ‘ s - Hertogenbosch against the measure of his placement in GPE detention and he requested that he be released immediately .

On DATE , following a hearing held on DATE in the course of which the applicant was represented by a lawyer , ORG rejected the applicant ’s second appeal against his placement in GPE detention . Noting that the lawfulness of this placement had already been determined in its decision of DATE , it limited its examination to the lawfulness of the applicant ’s continued placement in GPE detention .

It held that the fact that the applicant had applied for an injunction on his expulsion did not , as such , affect the lawfulness of his placement in GPE detention , since DATE pending the determination of this request – it could not be said that there were no prospects for his expulsion . This would only be the case where it was highly likely that an injunction would be granted . This had , however , not appeared to be the case .

Noting that the ORG Secretary had requested ORG on DATE to give priority to the applicant ’s request for an injunction , ORG stated on this point that it assumed that the request for an injunction would be dealt with in the near future . Noting further that the question whether the applicant could be expelled to GPE with a second NORP identity card submitted by him was in the process of being examined , ORG held that there remained realistic prospects for the applicant ’s expulsion and considered that it could not be held that the authorities were insufficiently diligent in their activities aimed at the applicant ’s expulsion . ORG concluded that the applicant ’s placement in GPE detention was in accordance with the relevant statutory provisions and , after having weighed all interests involved , could reasonably be regarded as justified .

On DATE and without providing further details , the applicant informed the ORG that his request for asylum had been unsuccessful and that , on DATE , he had been released from GPE detention on the basis of a temporary suspension of the expulsion of NORP nationals of NORP origin .

LAW , insofar as relevant , provides :

“ CARDINAL . If the interests of public order , public policy or national security so require , the following categories of aliens may be detained :

a. aliens whose expulsion has been ordered ;

b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered ;

c. aliens who are not allowed to reside in the GPE by virtue of any of the provisions contained in ORG CARDINAL - CARDINAL < of LAW > , pending the decision on an application for a residence permit , a permanent residence permit or leave to enter as refugees .

An alien shall not be detained when , and detention shall be terminated as soon as , he intimates that he wishes to leave the GPE and is in fact in a position to do so .

Detention for the reasons set out in the first sentence of paragraph CARDINAL and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than DATE .

An alien whose expulsion has been ordered can , in principle , remain in GPE detention for an unlimited period of time . The lawfulness of a placement in GPE detention can , however , be challenged before ORG . Where ORG finds that there are no prospects for expulsion within a reasonable time , it can order that the measure of placement in GPE detention be terminated .

It has been established in the case - law of ORG ( ORG ) of ORG that the interest of an alien to be released from GPE detention increases with the passage of time . Where a placement in GPE detention exceeds a period of DATE , it is generally held that the alien ’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , this point in time may also be reached before or after DATE have passed . It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control .

Although no appeal lies against a decision by ORG in proceedings concerning requests for release from detention for expulsion purposes , an appeal to ORG ( Gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes . Furthermore , an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected ( cf . ORG , CARDINAL DATE , PERSON , nr . CARDINAL )

There is no time - limit for the filing of an appeal against a decision of placement in GPE detention and in principle a person placed in GPE detention may file as many appeals against this decision as he sees fit . When the lawfulness of a decision of placement in GPE detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in GPE detention as from DATE last judicial decision taken on this point .


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

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

DATE , land consolidation was carried out in the municipality of PERSON . In order to implement this project , the prefect set up a municipal committee for land management ( commission communale d’aménagement foncier – “ the PERSON ” ) . A land consolidation association ( association foncière de remembrement – “ the AFR ” ) was also set up to implement and manage the works to be carried out as part of the land consolidation project ( the ORG and AFR are provided for in Article LAW seq of the new LAW ... )

The land consolidation proceeded in a divisive atmosphere , a section of the municipality ’s residents having repeatedly demonstrated their disagreement regarding the works being undertaken . Intervention by the riot police was necessary to impose compliance with the decisions adopted .

CARDINAL of the farmers in the municipality , PERSON , a member of the PERSON and deputy - chairperson of the ORG , successfully requested that a large water reserve be created , which necessitated the digging , in stony terrain , of several ditches needed for the installation of water pipes .

The cost of this work was met through a loan . Reimbursement of this loan was charged to the members of the AFR , including the applicants , through property taxes .

The applicants disputed the payment of these taxes , since they considered that they should not be obliged to pay for pipes which had not been laid on their properties or which had no proven positive impact on them .

They commenced proceedings before the administrative courts , requesting exemption from the taxes assigned in respect of DATE . They were granted exemption in respect of the taxes for which they had been liable in DATE , DATE and DATE ( decision delivered on DATE by ORG , upheld by a judgment delivered on DATE by ORG ) , and also in DATE , DATE and DATE ( decision delivered on DATE by ORG ) .

In its judgment , ORG found , inter alia :

“ ... Under the last sub - paragraph of LAW , applicable in this case , ‘ The decree by the PERSON d’Etat ... shall establish the criteria ... for determining the formula for apportioning costs among the landowners , on the basis of the area assigned in the land consolidation , except in respect of costs appertaining to water - management works , which shall be divided in proportion to their expected benefit ... ’ . It follows from this provision , firstly , that the payment of the cost of water - management works carried out by a land consolidation association may be charged to a member of the association only where properties belonging to the latter and included in the land consolidation will benefit from these works , and that , in addition , the amount charged must be proportionate to the benefit of these works .

It follows from the inquiry into the facts that the taxes for the works related to the GPE land consolidation project which were charged [ to the applicants ] ... include , to a substantial degree , participation in the cost of the water - management works ; the allocation of costs was calculated on the basis of the GPE area alone and not , as concerns the water - management works , on the basis of the actual benefit for each of the properties concerned . Such a method of assigning costs could only have been legally applied if it had been established that the said works were of benefit , in fact and proportionally to their area , to all the properties forming part of the land consolidation scheme . It has been established that this is not the case ; it therefore follows ... that [ the applicants are ] justified in requesting exemption from the taxes which they dispute ... ”

Taking account of several similar judicial decisions which had exempted farmers from taxes imposed on them , the bureau of the AFR re - examined on DATE the formula for assigning the costs arising from the water - management works . It adopted a new , detailed proposal for assigning costs , in such a way that each member of the AFR would benefit to an equal degree from completion of the water - management works and was consequently obliged to finance them . This proposal was then submitted to the landowners concerned for observations and to a public inquiry .

At its meeting on DATE the bureau of the AFR , having inspected the complaints submitted , adopted a new decision containing the final version of the formula for assigning costs for the water - management works . This decision was signed by ORG and approved by the ORG sub - prefect on DATE . However , it was not signed by the members of the bureau and entered in the register of decisions until DATE , when it contained a typed addition making it several pages longer than the document initially approved .

The applicants appealed to the administrative courts . They contested the validity of the procedures which had established the formula for assigning taxes at the AFR bureau ’s meetings on DATE , CARDINAL DATE and DATE , and requested that they be set aside . The applicants asked , in consequence , to be exempted from property taxes in respect of DATE and DATE , which , they claimed , had been decided under invalid procedures .

In a judgment adopted on DATE ORG confirmed the exemption from the property taxes due in respect of DATE , but rejected the applications concerning the taxes due in respect of DATE . The applicants appealed to ORG .

In addition , they lodged a criminal complaint , with an application to join the proceedings as civil parties , alleging forgery in connection with the decision of CARDINAL DATE and asked the administrative court to defer its decision until the conclusion of the criminal proceedings .

In a judgment of DATE ORG confirmed ORG judgment in which it had refused to grant exemption for the taxes due in respect of DATE .

In its judgment ORG held , firstly , that the procedure to establish the formula for assigning the costs arising from the water - management works had been lawful , since “ the fact that [ the ] decision ... was not signed by the members of the bureau and entered into the register of decisions contemporaneously is , in itself , without significance for its existence or validity ” .

It went on to say :

“ The water - management works conducted in the context of projects related to the PERSON land consolidation entailed , as part of a general land improvement programme implemented homogeneously throughout the re - parcelled area , the clean - up of watercourses and the introduction of a network of primary ditches or culverts in the public - works strips reserved for the land association and of secondary ditches leading to the individual plots , so as to provide for the evacuation of excess water from all the re - parcelled plots .... the ORG allegation that the works in dispute were , in reality , carried out for the benefit of a single landowner is not corroborated by any evidence in the file . ”

It concluded :

“ Accordingly , the bureau of the PERSON land consolidation association was entitled to consider , without infringing the provisions ... of LAW R.CARDINAL - CARDINAL of LAW , that these works would be of actual benefit to all the properties concerned by the land consolidation , in proportion to their area , and to decide , as it did by its decision of DATE , to divide the costs among the landowners concerned ... it follows from the foregoing that the [ applicants’ ] submissions , requesting exemption from the taxes imposed on them ... in respect of DATE , must be rejected ” .

The applicants lodged an appeal on points of law . On DATE the ORG d’Etat dismissed this appeal in a judgment reasoned as follows :

“ Under LAW of DATE reforming administrative proceedings : ‘ An appeal on points of law before the ORG d’Etat shall be subject to a preliminary admissibility procedure . Admissibility shall be refused by judicial decision if the appeal is inadmissible or is not based on any reasonable arguments ... ’ .

In requesting the setting aside of the contested judgment , PERSON and PERSON allege that the Court was in breach of LAW in refusing to exempt them from the property taxes imposed on them in respect of DATE , even though these taxes , which were intended to cover the cost of the water - management works , had allegedly been calculated in proportion to the area of re - parcelled land belonging to them rather than the actual benefit that they would derive from these works . To ensure that its judgment would not be vitiated by insufficient reasoning , the ORG ought , at the very least , to have identified this benefit in specific terms with reference to the facts of the case . The ORG had also failed to justify its refusal to defer decision until after the conclusion of the criminal proceedings introduced following a complaint of forgery in connection with the decision of CARDINAL DATE , which had decided the amount of the aforementioned taxes . ORG could not , without misdirecting itself , refuse to exempt them from the taxes in respect of DATE , given that the decision of CARDINAL DATE by the bureau of the land consolidation association was flawed by retroactiveness , in that it fixed the dates on which payments were to fall due for DATE as a whole . Finally , the ORG is alleged to have misdirected itself in declaring inadmissible the submissions requesting the setting aside of the decision of CARDINAL DATE , on the ground that members of a land consolidation association may not directly contest a decision by the association ’s bureau fixing the amount and method of allocation of property taxes ;

None of the above grounds is such as to render the appeal admissible . ”


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . In DATE he joined ORG . At the relevant time he held a senior non - commissioned rank and was an experienced administrator . On DATE he was informed that he was under investigation on suspicion of travel fraud . Since he was to be interviewed by the naval police , he was offered the opportunity to speak to a naval barrister . He accepted this offer , was given legal advice and confirmed that he understood the advice given .

He then attended CARDINAL interviews with the naval police . At the beginning of both interviews he was cautioned ( section CARDINAL of ORG . He declined the opportunity accorded to him to obtain legal advice and to have a legal adviser present at those interviews . He made certain admissions at his first interview and gave the investigators access to his bank accounts . On DATE he was interviewed for a second time and then charged .

The charge sheet , as approved by the convening authority listed CARDINAL charges ( pursuant to section CARDINAL of LAW DATE ) of obtaining property and a service by deception contrary to sections CARDINAL and CARDINAL of the Theft Act DATE . All charges related to the making of false representations about travel allowances .

By notice dated DATE the convening authority ordered the convening of a court - martial to try the applicant on the charges . He appointed the members of the court - martial by name . All were subordinate to the convening authority but none served within his chain of command . The Judge Advocate was appointed by the Chief Naval Judge Advocate . While the Judge Advocate was subordinate in rank to the President and both served under the Second Sea Lord , there was no command or other substantive institutional link between them .

The court - martial took place on DATE . Once the applicant ’s preliminary objections were rejected ( he contested the admission of evidence from his interviews and he alleges that he challenged the composition of the court - martial ) , he pleaded guilty as charged . On DATE he was sentenced to CARDINAL months’ imprisonment .

NORP By letter dated DATE , his legal representative was informed of the decision taken by ORG to reject his petition against conviction and sentence . It was considered that his admissions in interview were not the result of oppression and that , given the seriousness of the offences , his sentence was neither manifestly excessive nor wrong in principle .

The law and procedures of naval courts - martial were contained in LAW DATE ( “ the DATE LAW ) and in certain statutory instruments made under LAW including ORG ) DATE ( “ the DATE Orders ” ) . These are outlined in the PERSON v. the GPE judgment ( no . CARDINAL , § § DATE ) , delivered on even date herewith .

Following the Commission ’s report in the case of GPE v. GPE , certain provisions of LAW were amended by LAW ( “ the LAW ” ) which LAW came into force on DATE ( PERSON v. GPE , no . CARDINAL/CARDINAL , Commission ’s report of DATE and , see also , judgment in that case of CARDINAL DATE , Reports of ORG ) . The new naval court - martial system for which LAW provides is described in the ORG ’s judgment in the case of ORG v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINALXII ) .