The applicant is a NORP citizen , born in DATE and currently resident at Muurame . He is represented by Ms. PERSON , a lawyer in GPE . The respondent Government are represented by Mr PERSON , Director ORG , and Mr PERSON , Director , both of ORG .

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

The applicant and P. are the parents and custodians of A. , born in DATE , and J. , born in DATE . In DATE the applicant started serving a prison sentence which was to DATE and DATE and had been imposed for attempted manslaughter , aggravated robbery , CARDINAL thefts and unlawful use of a vehicle ( all committed in DATE ) . From DATE to DATE the children lived with P. while she was serving a prison sentence .

On DATE the children were provisionally placed in public care pursuant to section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag DATE ) . In her decisions ORG Director noted that , on DATE , P. had left the children with another person , who had brought them to ORG mother NORP , since they had not been picked up by P. as promised . NORP had considered herself unable to take care of the children . The Acting Director ordered the children ’s placement in a children ’s home in GPE , where PERSON and NORP would be able visit them in agreement with the staff .

On DATE and DATE respectively , the applicant and PERSON consented to the public care proposals under preparation for ORG ( perusturvalautakunta , grundtrygghetsnämnden ) of PERSON . The applicant ’s consent was limited to the children ’s temporary placement while he was serving his sentence . At a meeting on DATE concerning the terms of the care plan ( which the applicant had not been invited to attend ) P. agreed to visit the children CARDINAL times a week and to seek help in resolving her alcohol and other problems .

On DATE ORG confirmed the care orders and the terms of their implementation . It noted , inter alia , that P. had repeatedly left the children in the care of others and had failed to pick them up as promised . According to the staff of the children ’s home , the children seemed particularly frightened and anguished . The applicant ’s prison sentence would last at least until DATE and PERSON was also expected to serve a prison sentence . PERSON had refused to acknowledge any problems and open - care assistance would in any case have been insufficient in view of the children ’s specific needs .

During DATE the applicant called the children once DATE and they visited him in prison . He also visited them in the children ’s home in DATE and DATE when he had been granted his first leaves .

At a meeting with social welfare officials on DATE staff of the children ’s home considered it to be in the children ’s best interests that they be transferred to a substitute family as soon as possible . The applicant had not been invited to attend the meeting and P. failed to attend it . On DATE , however , the applicant was heard in prison in respect of the social authorities’ intention to transfer the children to a foster family . According to the social welfare official ’s notes , the applicant consented to such a placement provided it would last only up to his release from prison .

By judgment of DATE the applicant ’s sentence was extended to DATE and DATE on account of his conviction on CARDINAL further count of robbery ( committed in DATE ) .

On DATE ORG decided to place the children in a foster family . According to its investigations , P. had remained unable to assume their physical , mental and social development . As from DATE she had no longer visited the children as promised and had failed to respect her obligation under the care plan to seek treatment for her alcohol problem . From DATE to DATE she had had no contact with the children whatsoever and her whereabouts had been unknown . She had continued to face financial problems and had been evicted from her flat . In addition , the applicant would be serving a prison sentence at least until DATE . He had started serving his sentence when PERSON was DATE , whereas J. had been born during his imprisonment . While serving his sentence he had only been able to meet the children in prison . In DATE they had apparently visited him only once . They could no longer stand the constant change of nursing staff in the children ’s home and were in need of stable and secure human relations . The applicant ’s wishes could therefore not be considered when deciding on the further implementation of the public care .

The applicant appealed to ORG ( lääninoikeus , länsrätten ) of PERSON , claiming that ORG had failed to consider the possibility of returning the children to him on his release from prison . He referred to his regular contacts with the children during their placement in the children ’s home . ORG had omitted any reference to those visits . Contrary to the ORG ’s view the children had been developing well in the children ’s home . Starting in DATE the applicant would be granted a DATE leave DATE and he intended to use DATE of those leaves to see his children . In prison he was studying and practising to become a welder , which would enable him to support the children after his expected release on parole in DATE . He was therefore doing all he could to prepare himself to assume the care of the children . The mother ’s problems were also of a temporary character . If need be , the applicant would consider requesting sole custody of the children . At any rate , he would try to ensure the children ’s need of contact with their mother . The applicant furthermore submitted that he had not been notified of all documents which ORG had apparently relied on . He also requested an oral hearing .

In its submissions to ORG stated , inter alia , that it had no proof that the applicant would be capable of assuming the children ’s care and upbringing . His prison sentence was expected to end at the earliest in DATE , whereas children of the age in question could not wait for DATE to have a parent .

In his rejoinder the applicant objected to the social LOC apparent requirement that he should be rejecting PERSON It was not for the applicant to prove his ability to assume the care of his children , but for the authorities to prove the contrary . He further objected to certain case notes of the social welfare officials according to which he had , during a meeting with the children , “ pretended ” to be a tender and loving father . Another note proved that in DATE an official had told the applicant that the children would be placed in a foster family , “ where they could grow up to become adults while maintaining contact with their biological parents ” . The applicant therefore feared that any placement in a foster family would become irrevocable .

P. also appealed against the decision of CARDINAL DATE , arguing that the children ’s transfer to a foster family had been decided without the authorities’ having had appropriate time at their disposal for verifying her inability to assume the care and upbringing of the children and without affording her a reasonable opportunity to solve her problems .

In respect of P. ’s appeal ORG submitted , inter alia , that the family conditions had been monitored from DATE and that her problems were not temporary in nature . P. had failed to respect the terms of the care plan which she had herself accepted . She had last visited the children in DATE and had interrupted her treatment for her alcohol problem .

ORG afforded the applicant an opportunity to comment on ORG appeal as well as on the complete version of the social welfare officials’ case notes , from which CARDINAL page ( concerning the period DATE ) had been missing . In his final observations the applicant agreed with the views put forward by PERSON further objected to not having been invited to attend the meeting on DATE for no good reason . Finally , since the statements made by staff of the children ’s home disclosed their negative attitude towards the applicant , those opinions should not be given any decisive weight .

On DATE ORG rejected the appeals , having found an oral hearing unnecessary . It considered , inter alia , that the manner in which the applicant had been heard in prison on DATE had not been such as to require that the ORG ’s decision be quashed . As for the decision to transfer the children to a foster family , ORG reasoned as follows :

( translation from NORP )

“ When a child has placed in the care of a social welfare board , the board is entitled to pursue the aim of that placement by deciding on the care , upbringing , supervision … and whereabouts of the child . In considering whether to amend the terms of … the public care the best interests of the child shall be the primary consideration . Given [ A. ’s and ORG ] age and their symptoms in the children ’s home , it is at this moment in their best interests that they be provided with [ foster ] care . Neither does [ such care ] prevent contact between the children and their [ biological ] parents . Accordingly , there is no reason to reverse the ORG ’s decision .

In its decision ORG has not – nor could it have – decided on the children ’s permanent placement in [ a foster family ] . Under section CARDINAL of LAW a social welfare board must terminate the public care of a child when the need for [ such care ] as described in section CARDINAL … no longer exists , unless such termination would be manifestly contrary to the child ’s best interests . When considering [ those ] interests regard shall be had to the quality of the relationship between the child and his or her foster parents as well as the contacts between the child and his or her [ biological ] parents . ”

ORG relied on LAW , section CARDINAL ( subsection CARDINAL ) and section CARDINAL ( subsection CARDINAL ) of LAW as well as on LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) .

The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting an oral hearing . He submitted , inter alia , that he was visiting the children during every prison leave and was telephoning them once DATE . In its observations on the appeal ORG stated , inter alia , that CARDINAL of its officials had informed the social worker of the applicant ’s prison that his presence at the meeting on DATE would not be required , since he had already been informed of the ORG ’s intentions and was to be heard on DATE .

On DATE ORG rejected the appeal without an oral hearing and ORG decision was upheld .

Meanwhile , on DATE ORG had implemented its decision of CARDINAL DATE by placing PERSON J. in a substitute family at PERSON near GPE with the assistance of the association GPE lapset r.y . – PERSON r.f ( “ Save The Children ” ) . The applicant was allowed to see the children for TIME every third month . He apparently met them twice in the substitute family , once on office premises in GPE and once in a shelter for women and children in GPE . He continued to call the children once a week .

It appears that DATE and DATE P. served a DATE sentence in GPE inter alia on CARDINAL count of robbery ( committed in DATE ) , CARDINAL counts of theft ( committed in DATE ) , CARDINAL count of fraud , CARDINAL counts of attempted fraud and CARDINAL counts of forgery ( all committed in DATE and DATE ) . She also served a DATE prison sentence in GPE ( inter alia for theft , attempted fraud and forgery committed in DATE ) . In DATE she was convicted of violent resistance against a public official , deprivation of liberty and escape from prison ( all committed in DATE ) . Her DATE prison sentence was commuted into community service ( yhdyskuntapalvelu , samhällstjänst ) .

In DATE the applicant and PERSON married .

In an opinion of DATE Dr PERSON , a child psychiatrist of ORG , concluded that PERSON ’s mental state would be incapable of surmounting any form of uncertainty , particularly as regards changes or losses in his human relations . This should be taken into account when considering meetings between A. and his biological parents as well as the public care as a whole . The opinion was based on interviews with NORP separately as well as together with his substitute parents .

In DATE the applicant was released from prison and P. ’s parole ended . At a meeting on DATE for the purpose of updating the care plan social welfare officials and regional director ( social worker ) A.R. of Save The Children requested the biological parents to limit their telephone calls to the children to CARDINAL every CARDINAL or three weeks and to tell the children in clear terms that they would be able to remain in the foster family . The requests were justified in particular by A. ’s negative reactions after such telephone calls as well as by his perception that he might have to give up his foster parents . The biological parents agreed to the visiting arrangements so far implemented as well as to the further limitation of telephone calls . They had last visited the children in DATE and the next meeting would take place in DATE . A. was expected to receive individual therapy starting in DATE .

In DATE the biological parents moved to the municipality of ORG , where their third child was born in DATE . They requested permission to visit GPE and DATE and to be able to telephone them once DATE . On DATE ORG maintained the restriction on contacts at CARDINAL meeting DATE and CARDINAL telephone call DATE . The biological parents were still allowed to send post cards . The restriction was to be in force until DATE . ORG based itself on Dr PERSON ’s opinion of DATE as well as on notes drawn up by PERSON

The biological parents appealed , stressing that Dr PERSON ’s opinion was DATE and that the authorities had not investigated the reasons for A ’s symptoms . In any case the symptoms could not be deemed to have resulted from his meetings with the biological parents . The symptoms could have been caused by the severe access restriction or the various changes in the foster family ’s circumstances . Moreover , according to an opinion of DATE issued by CARDINAL officials of ORG of the municipality of ORG , no criticism could be expressed against the biological GPE family conditions which were furthermore stable .

Among the evidence apparently adduced by ORG was a further opinion of Dr PERSON dated DATE . In an opinion of DATE Dr R.S. , a paediatrician , noted that the children and their biological parents had met DATE ( most recently in DATE and DATE ) on the premises of Save the Children or at an emergency shelter . The meetings had been supervised . The parents no longer had any prison sentences to serve and had solved their alcohol problem . The original family unit had not been sufficiently supported and meetings to that end had been prevented for no good reason . It had transpired from Dr PERSON ’s discussions with PERSON and Dr PERSON of ORG that the latter had not been in contact with the applicant and PERSON for DATE . The discussions had revealed a clearly negative attitude to the proposals of Dr PERSON for increasing the contacts and assessing A. ’s interaction with his biological parents as well as his need for therapy . Dr PERSON concluded that there were no obstacles to meetings between the children and their biological parents or to the ultimate revocation of the public care .

At an oral hearing on DATE ORG heard the biological parents , the foster parents and a representative of ORG . The court ex officio took witness testimony from Dr PERSON and nursery director PERSON was heard at the Board ’s request , whereas the children ’s maternal grandmother NORP and the CARDINAL social welfare officials from the NORP municipality were heard at the request of the biological parents . Dr PERSON was not opposed to more frequent meetings as long as the children could feel certain that they would remain in the foster home . There was no reason to apply different restrictions to ORG director PERSON stated that A. ’s behaviour had improved significantly after DATE . According to PERSON , the children ’s hospital had been unwilling to commence A. ’s therapeutic treatment until he had rooted himself in the foster family . The foster mother , although maintaining her objection to meetings taking place in the foster home , considered that CARDINAL meeting DATE would “ tie down ” the foster family excessively .

On DATE ORG reversed ORG decision as not being based on sufficient grounds . It ordered that GPE and PERSON be entitled to meet the biological parents once DATE and to speak with them over the telephone once DATE . The meeting LOC were to be defined by ORG . The court found it established that A. had displayed physical and psychological symptoms both before and after meeting with his biological parents which were placing him in a situation of conflict . The court did not , however , find it established or likely that more frequent meetings and other forms of contact would manifestly jeopardise A. ’s development . As it had not been established that his symptoms had been caused by the biological GPE behaviour during meetings , it had not been established either , nor was it likely , that fewer meetings and generally less contact would support his development . The court found PERSON written opinions and oral testimony contradictory . No reason had been shown for restricting meetings between PERSON and her biological parents .

In DATE the applicant ’s parole ended . On DATE the biological parents requested ORG to terminate the public care . According to the request , A. and J. had been able to meet them once DATE up to DATE , on premises assigned by a social welfare official or the foster parents . Normally the meetings had also been attended by the foster parents . In DATE the biological parents had requested that the number of meetings be further increased and that they take place in their home . On DATE they had been informed that the request had been refused and that the access restriction had been prolonged until DATE . It had been agreed , however , that through DATE the DATE meetings would be extended from TIME and would take place in the home of the biological parents . On CARDINAL DATE a social welfare official had informed them that the children ’s opinions in respect of the meetings would be ascertained at the child psychiatric clinic of ORG by hearing the foster and biological parents separately , both with and without the children , DATE . On DATE the dates for the DATE meetings through DATE had also been agreed . In a memorandum of CARDINAL DATE the child psychiatric clinic had stated that meetings between the children and their biological parents were important and should be organised in accordance with the children ’s best interests and capacity to adjust to them . This position had been repeated in an opinion of DATE by PERSON , a child psychiatrist at the clinic .

In their request of DATE the biological parents recalled that the meetings had been discontinued during and after the child psychiatric examination in DATE . When they had wondered why ORG decision was no longer being implemented , PERSON had replied that it was no longer valid and that there was no obligation to organise meetings .

The biological parents stated , moreover , that when meetings had taken place in the absence of the foster parents , the children had been behaving naturally and had shown confidence in their biological parents . The foster GPE hostile attitude to the biological parents had been reflected in the children ’s behaviour when the foster parents had attended meetings . When the foster parents had been present , the children had not spoken of their own initiative . Whenever the biological parents had been telephoning the children , they had been given the impression that they were disturbing the foster family . At a meeting on DATE a social welfare official had noted that no meetings had taken place since DATE due to the children ’s refusal to go with the biological parents when they had come to fetch them from the foster home .

According to their submissions of DATE the biological parents had requested , on CARDINAL DATE , that meetings be allowed on TIME from TIME until DATE , following which the meetings should be extended until DATE They had further requested ORG to clarify what measures it had taken as from DATE for the purpose of fulfilling its obligation under LAW , subsection CARDINAL , of LAW . At a meeting on DATE no consensus had been reached as to the future meetings . On DATE the ORG had restricted the meetings from DATE through DATE to CARDINAL meeting DATE lasting TIME . No clarification had been given as to how ORG had met its obligation under section CARDINAL , subsection CARDINAL , of LAW .

In their request of DATE the biological parents concluded that the foster parents had not fulfilled their obligation to secure ORG ’s and ORG right to a positive and close relationship with their biological parents . When the biological parents , in DATE , had requested more frequent contacts with them , the foster parents had referred to A. ’s behavioural disturbance . Since A. had been a client at ORG since DATE but his therapy had commenced only in DATE , the foster parents had also failed to secure his balanced development .

In their request of DATE the biological parents finally submitted that they had recently found out that NORP and PERSON had been seeing their maternal grandmother NORP on a regular basis . As PERSON had not wished to have anything to do with P. , such meetings had not been , in the view of the biological parents , in the children ’s best interests . The social authorities had concealed the meetings from the biological parents and had failed to support the children ’s right to meet their paternal relatives .

On DATE ORG refused to terminate the public care , as such termination would be contrary to the children ’s best interests , given their own wishes , the duration of the foster care and the quality of their relationship with their foster parents . ORG noted the children had expressed a wish to remain in the foster family . In order to support their development it was necessary to assure them that their current home and its permanent human relations would remain stable .

The biological parents appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) of GPE , arguing that the ORG had not found termination of the public care to be “ manifestly ” contrary to the children ’s interests , only that those interests would be secured better through public and foster care . Even if ORG had not criticised the current conditions of the biological parents , they requested ORG to order an investigation into their situation . They also requested an oral hearing . The biological parents had previously appealed against the access restriction issued on DATE .

On DATE ORG dismissed both appeals after an oral hearing of the biological parents , the foster parents and officials of ORG . PERSON , PERSON ’s therapist as from DATE and CARDINAL other witnesses were heard at the request of the biological parents .

ORG noted inter alia that ORG and ORG had been in public care for DATE from DATE and PERSON from DATE . Before their placement in their current foster family the children had been living in insecure conditions , first when cared for by their biological mother while the applicant had been serving his sentence , and subsequently while cared for in a children ’s home . During their stay in the foster family the children had met their biological parents seldom . For DATE there had been no contact whatsoever between the children and the biological mother . From then DATE it had been difficult to organise meetings with the biological parents as the children had opposed such contact and had stated that they did not trust them . Instead the children had become strongly attached to their foster parents . Any cutting of those ties would be harmful to the children . In such circumstances the termination of their public care would be manifestly contrary to their best interests .

ORG did not find it established that the children ’s meetings with their biological parents had jeopardised their development . The meetings nonetheless had to take place in accordance with the opinion expressed by the children . They had repeatedly and clearly been opposed to very frequent meetings . According to PERSON , they had even been categorically opposed to meetings . On the other hand , no problems had occurred during actual meetings and the children had then considered them “ quite all right ” . The children ’s opposition to meetings had evidently been triggered in part by their fear of having to give up their foster family and return to their biological parents . This fear might also have been compounded by the biological GPE wish to see the children returned to them and by the foster GPE fear of losing them . It had not been established , however , that the children ’s opinion had been influenced in an inappropriate manner . In these circumstances the frequency of meetings requested by the biological parents would be manifestly contrary to the best interests of the children . Those interests required that the number of meetings be increased with their consent and gradually . Although finding no reason at this stage to amend the access restriction in force until DATE , ORG recalled that ORG was under an obligation continuously to support meetings and other forms of contact between the children and the biological parents .

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

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

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

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

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

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

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

A county administrative court ’s decision in respect of a public care order , the transfer of a child into foster care or the termination of public care may be appealed further to ORG . Other decisions of a county administrative court relating to child welfare measures can not be so appealed ( section CARDINAL of LAW ) .


No violation of Art. 3;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele

The applicant was born in DATE and lives in GPE .

On an unspecified date , ORG ( ORG , hereinafter ORG ) began to record the telephone conversations of PERSON , a NORP attaché working at the Consulate of GPE in GPE and allegedly a member of ORG ( ORG ) . The authorities noticed suspicious telephone conversations between PERSON and the applicant and initiated an investigation concerning the applicant .

On DATE a military prosecutor and ORG officers searched the applicant ’s shop in GPE . According to the preliminary investigation report , several photographs of military bases , CARDINAL maps ( CARDINAL of which was marked as “ top secret ” ) and telephone and credit cards were found in the shop . PERSON was present when ORG officers carried out a search in the applicant ’s shop and told them that the photos of the military bases did not belong to him but to the applicant . The latter was then taken into custody on suspicion of transmitting official and confidential information to NORP intelligence service members . He was brought before a doctor , ORG , who noted that he was in good health . During his custody period , the applicant was allegedly subjected to illtreatment by the ORG officers .

On DATE the applicant was brought before the ORG . Before this court , he maintained that he had met someone who worked at FAC in GPE and that he had sold this person books and silver accessories . He received money from this person for what he had sold . The applicant further contended that this person asked him to provide military information about GPE . The applicant denied the allegation that he had given confidential information to this person . He stated that the maps and the photographs found in his shop did not belong to him .

On DATE , the court ordered the applicant ’s detention on remand . He was then examined by ORG who once again noted that there was no trace of ill - treatment on the applicant ’s body . The applicant was then remanded in ORG . He filed an objection to the detention order .

On DATE , following his objection to the findings contained in the previous medical reports , the applicant underwent a third medical examination in prison . According to the prison doctor ’s report , the applicant had ecchymoses on both arms , which were possibly DATE .

On DATE the applicant filed a further objection to the detention order . On DATE ORG dismissed his objection .

On DATE the ORG filed a bill of indictment with ORG , charging the applicant under LAW ( D ) of LAW and LAW , DATE , DATE and CARDINAL of LAW , with disloyalty to national defence by way of espionage .

The applicant maintained before the General Staff Military Court that he had been coerced by ORG officers into signing a statement while in custody . He claimed that he had sold the shop to ORG and that the photographs and maps did not belong to him . He requested that PERSON be heard by the court . He further contended that the search in the shop was illegal and that he had not been informed of the charges against him by the officials who had conducted the search . The applicant reiterated that he had sold books and silver accessories to a NORP official , PERSON and that this person had requested him to provide confidential information . He also contended that he had contacted PERSON and another NORP official , PERSON , whom he knew as “ LOC ” , in order to maintain his business and that the information that he had given was false . The applicant ’s representative stressed that the applicant ’s statements had been taken under torture by ORG officers . She referred in this connection to the medical report dated DATE prepared by the ORG military prison doctor who noted the presence of CARDINAL DATE ecchymoses on the applicant ’s arms . The applicant ’s representative also argued that the telephone conversations of the applicant , which were the sole evidence against him , had been obtained unlawfully by the ORG officers since there was no decision of a judge permitting them to tap his conversations on a public telephone . She therefore claimed that , in the absence of sufficient evidence , the applicant was innocent of the alleged crime .

During the proceedings , ORG issued a summons requiring PERSON to give evidence . However , this person could not be found .

On an unspecified date , a fingerprint expert conducted an analysis on the photographs and maps from the applicant ’s shop . He observed that none of the fingerprints found belonged to the applicant .

On DATE the General Staff Military Court convicted the applicant as charged . The court considered that the information that the applicant had given could not be considered to be confidential . However , it held that , although the applicant had provided non - confidential or imaginary information in order to maintain his business contacts with the NORP officials , he had committed the offence of disloyalty to national defence by accepting their proposal to provide information . The court sentenced the applicant to DATE and QUANTITY months’ imprisonment , which was the minimum penalty prescribed by LAW D ) of LAW and LAW , DATE , DATE and CARDINAL of LAW . While the court dismissed the applicant ’s defence submissions , it did not address directly his allegations that his statements to the ORG officers had been obtained under torture and that his telephone conversations were unlawfully tapped by the ORG officers .

On DATE the applicant appealed . He claimed that he was innocent of the crime since he had given false information to ORG and that he had never intended to betray his country . Relying on LAW , the applicant further argued that the first instance court had convicted him on the basis of unlawfully obtained evidence , in particular the unlawful tapping and recording of his telephone conversations by the ORG . He also complained that the court had not secured the attendance of ORG as a witness . Referring to the medical report dated DATE indicating ecchymoses on his arms , the applicant noted that the security forces had resorted to habitual methods to secure his conviction .

On DATE ORG upheld the judgment of DATE . It approved the reasoning of the first instance court ’s judgment and noted that the latter had already accepted that the maps and photos had not belonged to the applicant and that it had not relied on the statements given by PERSON in the course of the preliminary investigation since he had not attended the trial . Accordingly , there was no deficiency or unlawfulness in the investigation leading to the applicant ’s conviction . The court therefore rejected the applicant ’s appeal .

On DATE ORG decision was served on the applicant .

A full description of the domestic law at the relevant time may be found in GPE and Others v. GPE , nos . PERSON and CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINAL-IV ; and PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , § § DATE , CARDINAL DATE .

Section CARDINAL of the Constitution of Military Courts Act then in force read as follows :

“ Trial of civilians by military courts :

... the offences referred to in GPE ... and CARDINAL of the Military Penal Code [ come within the jurisdiction of the military courts ] . ”

According to LAW , hearings to be held by military courts shall be open to public . However , the military court may decide to close a part or whole of the hearing to the public if public morality or security so requires . Article CARDINAL further provides that the military court may also decide to remove the public when it holds a hearing to consider a request to close the hearings to the public .


Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger

The applicant was born in DATE and lives in GPE .

He was recognised at birth by his father , Mr F.

At the time of the applicant ’s conception , his mother PERSON , née R – was married and CARDINAL children had been born of that marriage : A. , born in DATE , and J. , born in DATE .

By a decree of CARDINAL DATE , the applicant ’s mother and her husband , PERSON , were pronounced judicially separated .

By a deed of DATE , PERSON and PERSON divided their property inter vivos between their CARDINAL legitimate children , PERSON and PERSON the terms of the deed , which was signed before a notary , they retained a life interest by which the legitimate children agreed to let PERSON and PERSON continue to enjoy possession of their property as life tenants for the rest of their lives . The deed also contained a provision for revoking the gift for the purposes of ensuring that the terms and conditions were complied with . Lastly , when the deed was signed PERSON and PERSON declared that the CARDINAL donees were their only offspring .

Mr M. died in DATE .

In a judgment of CARDINAL DATE the GPE tribunal de grande instance declared the applicant to be the illegitimate child of PERSON , after finding that his status of illegitimate child had been fully established .

NORP The DATE deed of inter vivos division ( donation - partage ) was challenged by the applicant on DATE after it had been established in DATE that he was PERSON son . No details have been provided regarding the outcome of that procedure .

The applicant ’s mother died on DATE . The notary administering the estate informed the applicant by letter of CARDINAL DATE that his rights were confined to the reserved portion of his mother ’s estate since she had made a will bequeathing the disposable portion , that is , CARDINAL , to her son J. The notary told him that , as a child born of adultery , he was entitled to CARDINAL the share he would have received if he had been a legitimate child – namely , CARDINAL . He added that the applicant ’s brother and sister , PERSON and ORG , were willing to pay him MONEY ( ORG ) in cash . He pointed out in that regard that in the event of the subsequent birth of a child , only a monetary abatement was possible and in no circumstances an abatement in kind . He asked the applicant to inform him whether A. and ORG proposal was acceptable to him .

No agreement was reached between the CARDINAL children .

By a writ of action dated DATE , the applicant brought proceedings in the LAW tribunal de grande instance against the CARDINAL children born of his mother ’s marriage : PERSON and PERSON on Article CARDINAL of LAW , he sought an abatement of the inter vivos division , claiming a reserved portion of his mother ’s estate equal to the share payable to his joint heirs from the assets of his mother ’s estate , namely , CARDINAL of that estate , which was CARDINAL of PERSON and PERSON joint estate .

After the ORG had found against GPE in the case of ORG v. GPE , on DATE , GPE passed Law no . DATE of DATE , amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children . That new PERSON came into force before the dispute that is the subject of the instant case was decided . It stipulated that its provisions were of immediate application to successions were already open on the date on which it came into force . Section CARDINAL(CARDINAL)(CARDINAL ) of the PERSON specified that , subject to any prior agreement between the parties or final court decision , the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of their conception , bound by marriage to another person were applicable to successions that were already open on the date of publication of the PERSON in ORG of GPE and had not given rise to division prior to that date .

In his recapitulatory pleading of DATE , the applicant relied on the provisions of the PERSON of DATE . In his submission , that PERSON repealed the provisions of LAW DATE stipulating that the rights of heirs entitled as a result of that PERSON to a reserved portion of the estate could not be exercised to the detriment of inter vivos gifts granted prior to the date on which it came into force . He argued that as those provisions of the PERSON of DATE had been repealed , he was entitled to bring an action for abatement under LAW even though the deed of inter vivos division had been signed on DATE .

In a judgment of DATE , the LAW tribunal de grande instance held that the applicant was entitled to bring an action for abatement of the inter vivos division made by PERSON and PERSON in DATE . It observed , inter alia , that section CARDINAL of the Law of DATE , which had the effect of depriving illegitimate children of their inheritance rights where their parent had made gifts prior to the date on which that PERSON came into force , was contrary to Articles CARDINAL and CARDINAL of the LAW . The court held that that provision was also contrary to LAW , even if the latter had not expressly repealed the aforesaid section CARDINAL of the Law of DATE . The court also found as follows :

“ Section GPE ) of the PERSON of DATE provides that this PERSON is applicable to successions already open on the date on which it comes into force ; subject to any prior agreement between the parties or final court decision , the provisions of this PERSON are applicable to successions already open on the date of publication of the LAW in the NORP Official Gazette where these have not given rise to division prior to that date .

In the present case there has not yet been division of PERSON estate ; accordingly , the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of their conception , bound by marriage to another person will apply .

Consequently , the repeal by the Law of DATE of the provisions of LAW introduced by LAW DATE render the new provisions incompatible with section CARDINAL of the Law of DATE , this latter provision being already contrary to LAW .

Indeed , it can not reasonably be argued that the legislature , in enacting the LAW , intended to maintain a provision contrary to the spirit and aim of the new PERSON .

Mr PERSON must therefore be deemed entitled to bring an action for abatement under LAW even though the deed of inter vivos division was signed on DATE .

... This court must therefore hold , in accordance with LAW , that Mr PERSON has the same inheritance rights as his brother and sister with regard to his mother ’s estate . ... ”

The children born of the applicant ’s mother ’s marriage appealed . In a judgment of DATE , ORG set aside the lower court ’s judgment and declared that the applicant was not entitled to bring an action for abatement of the inter vivos division made on DATE by PERSON and PERSON between their legitimate children . It held that such a ruling was not inconsistent with the general principle of equality of rights regardless of birth , as guaranteed by LAW No . CARDINAL and Articles CARDINAL and CARDINAL of the Convention . It observed that the sole purpose of section CARDINAL of the Law of DATE was to prohibit heirs who had acquired rights to a reserved portion of the estate under that LAW and extended by LAW DATE from exercising them to the detriment of inter vivos gifts granted prior to CARDINAL DATE , without depriving the said heirs of their inheritance rights . It considered , above all , that there was objective and reasonable justification for section CARDINAL of the Law of DATE in the light of the legitimate aim pursued , namely , ensuring peaceful family relations by securing rights acquired in that context – sometimes long - standing ones – without at the same time creating an excessive imbalance between heirs . It pointed out that the provisions of the impugned section CARDINAL were of limited scope both in terms of time and the type of voluntary disposition concerned .

The applicant lodged an appeal on points of law . In his opinion , which was communicated to the parties , the advocate - general at ORG recommended dismissing the appeal . He made the following submissions to the judges of ORG of ORG :

“ ... The difficulty submitted for your examination does indeed arise from the different approach proposed by the transitional provisions of DATE . Whilst neither successions already opened , nor inter vivos gifts granted prior to the coming into force of the Law of DATE , could be challenged under that PERSON , the PERSON of DATE allows illegitimate children whose father or mother was , at the time of conception , bound by marriage to another person to assert inheritance rights in respect of successions already open prior to publication of that PERSON .

That difference justifies a non - restrictive application of the provisions of the Law of DATE . Only where there has been actual division , or an agreement has been reached between the parties or a final court decision delivered can the new inheritance rights of such children be excluded where the succession has already been opened . On account of the action for an abatement , the succession already opened on the date of publication of the Law of DATE can not have “ given rise to division ” on the date of publication of that PERSON .

I therefore find the submission that the LAW DATE is not applicable difficult to sustain . The terms of LAW CARDINAL of the Law of DATE , however , are entirely unambiguous . Heirs who have acquired rights under this PERSON to the reserved portion of the estate can not exercise those rights “ to the detriment of inter vivos gifts granted before the PERSON came into force ” . Should , then , these provisions be deemed to have been tacitly repealed ?

Without having regard to the time factor , the applicant maintains in his supplementary pleadings that it must be concluded from the clear contradiction between the transitional provisions of the CARDINAL Laws that those governing the Law of DATE have been tacitly repealed . Whilst the approach is different between the transitional provisions enacted in DATE and those enacted in DATE , they do not , however , appear to me to conflict .

By excluding any challenge to inter vivos gifts granted prior to the coming into force of the PERSON of DATE , the legislature intended to guarantee the legal security required by such gifts . There is nothing to justify calling that legal security into question in DATE , since the earlier transitional provisions complement those laid down by DATE .

It is on those grounds that I invite you to dismiss the first ground of the appeal : the inter vivos gift made on DATE can not be called into question on account of inheritance rights arising from new rules concerning the determination of filiation . In that connection , whilst it remains debatable whether there had actually been division prior to publication of the LAW , the existence of an inter vivos gift granted prior to the coming into force of the LAW of DATE is not in dispute . ... ”

ORG dismissed the appeal in a judgment of DATE . It found that the effect of section CARDINAL(CARDINAL)(CARDINAL ) of the LAW DATE , in the version applicable to the facts of the present case , was that , subject to any prior agreement between the parties or a final court decision , the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of conception , bound by marriage to another person were applicable only to successions that were already open on DATE and had not given rise to division before that date . It found that as there had been division on PERSON death DATE that is , prior to DATE – the above - mentioned provisions were not applicable .

An inter vivos division ( donation - partage ) is a deed by which a person divides his or her property during his lifetime among all his presumptive heirs ( including , since the PERSON of DATE , children born of adultery ) . The deed must be drawn up before a notary and an inter vivos division can concern only present , not future , property . All the heirs must participate in the inter vivos division . The property being divided is valued on the date of the gift , and can not subsequently be revalued .

When making an inter vivos division , the donor determines the share of property to be distributed to his or her heirs . He or she can either divide the property into equal shares or give a larger share to CARDINAL of his or her children , provided that this does not reduce the portion statutorily reserved to the heirs .

Each child is entitled to a minimum share ( the “ reserved portion ” ) in his or her GPE estate and can bring an “ action for abatement ” ( Article CARDINAL - CARDINAL of LAW ) if the division of the estate at the time of death infringes that right .

The relevant provisions of LAW read as follows :

“ Anyone shall be entitled to divide and distribute his assets and his rights among his presumptive heirs .

This voluntary disposition may be made in the form of an inter vivos division or a will . It is subject to the formalities , conditions and rules prescribed for inter vivos gifts in the former case and those prescribed for wills in the latter case . ”

“ If not all the assets or rights left by the donor or testator on DATE of his death have been included in the division , those assets or rights not included shall be assigned or distributed in accordance with the law . ”

“ An inter vivos division shall concern only present property .

The gift and the division can be done by separate deeds provided that the donor signs both deeds . ”

Law no . CARDINAL of DATE introduced ORG seq . of ORG , instituting the possibility of an action for abatement , and came into force on DATE .

“ A descendant who has not participated in the inter vivos division of the estate , or has received a lower share than his or her reserved portion , may bring an action for abatement if , when the succession is opened , there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion , regard being had to any voluntary dispositions from which he may have benefited . ”

“ Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount , calculation of the reserved portion and reductions .

An action for abatement can not be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue . Such an action shall become time - barred DATE after the death .

A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion . ”

Section CARDINAL of the Law of DATE provided :

“ The provisions of this PERSON shall be directly applicable , irrespective of the date of the voluntary disposition in question , to successions opened after it comes into force . They shall also apply , subject to any contrary agreement , to estates that have not yet been liquidated , where no request for division of the estate has been lodged before DATE . ... ”

NORP The relevant provisions of LAW , introduced by LAW no . CARDINAL of DATE on filiation , provide :

“ Children or their issue shall inherit from their father and mother , grandfathers , grandmothers or other ancestors , irrespective of sex or primogeniture , and even if they are born of different marriages .

The estate shall devolve upon them in equal portions and per capita if they are all first - degree issue and heirs in their own right ; they shall inherit per stirpes if all or some of them inherit through their ascendants . ”

“ Children born out of wedlock shall , in general , inherit from their father and mother or other ancestors , as well as from their brothers and sisters or other collateral relatives , on the same terms as legitimate children . ”

“ Children born out of wedlock whose father or mother was , at the time of their conception , bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children ; however , they shall each receive CARDINAL of the share to which they would have been entitled if all the children of the deceased , including themselves , had been legitimate .

The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child ’s share of the estate is thus reduced ; it shall be divided between them in proportion to their share in the estate . ”

“ The inheritance rights instituted by the present PERSON or resulting from the new rules regarding determination of filiation shall not be exercised in respect of successions that have been opened before it came into force .

The rights statutorily reserved to heirs that are instituted by the present PERSON or result from the new rules regarding determination of filiation shall not be exercised to the detriment of inter vivos gifts made before it came into force . ... ”

On DATE Law no . CARDINAL of DATE “ on the rights of the surviving spouse and children born of adultery and modernising various provisions of the law of succession ” was published in ORG . It abolished any difference in treatment of illegitimate children whose father or mother was , at the time of their conception , bound by marriage to another person . LAW is worded as follows :

“ II . - The present PERSON shall apply to successions that are already open as of the date provided for in I , subject to the following exceptions :

... CARDINAL Subject to any prior agreement between the parties or final court decision , the following shall apply to successions already open on the date of publication of the present PERSON in ORG of GPE and not having given rise to division prior to that date :

the provisions relating to the new inheritance rights of illegitimate children whose father or mother was , at the time of conception , bound by marriage to another person ; ... ”

According to the case - law of ORG , an inter vivos division is a division of property in advance by which the donor ’s property is divided between the joint donees and becomes a division of an inheritance on the donor ’s death ( PERSON . PERSON . I , DATE , ORG . DATE , I , no . CARDINAL ) . ORG of ORG held that where an agreed division of property was challenged before a notary the inheritance was disputed and the estate could not therefore be regarded as having been liquidated ( PERSON . PERSON . I , DATE , ORG . DATE , I , no . CARDINAL , appeal no . CARDINAL - CARDINAL.CARDINAL ) .

In a judgment of CARDINAL DATE , delivered after the judgment that is the subject of this case , ORG held that the provisions of the Law of DATE relating to the new inheritance rights of children born of adultery were applicable to a succession opened before CARDINAL DATE where this had not given rise to a division prior to CARDINAL December CARDINAL . In that case , which concerned GPE , the succession had opened in DATE ( PERSON . PERSON . I , DATE , ORG . DATE , I , no . CARDINAL , appeal no . CARDINAL - CARDINAL.CARDINAL ) . The court gave the following reasons for its judgment :

“ PERSON ... died on DATE leaving provision in his will for Mr PERSON ... , his son adopted under NORP law , as universal legatee , with a condition that he care for the CARDINAL children conceived whilst he was bound by marriage to a person other than their mother : Mr PERSON ... and PERSON ... , the latter deceased on DATE , and whom he had recognised after the death of his wife . During the proceedings brought by Mr F ... for recognition of his ownership of a plot of land known as “ Atioro ” , situated in PERSON , which he claimed belonged to PERSON ... and for division of that land into CARDINAL shares , Mr NORP ... sought an abatement of the legacy on grounds of an infringement of the rights of the heirs entitled to a reserved portion of the estate .

In dismissing PERSON claim , ORG noted that the children born of adultery prior to the date on which the Law of DATE came into force had no inheritance rights in respect of their parent ’s estate , so had no legal basis for disputing the legacy left by PERSON ... to Mr PERSON ....

In ruling thus , whereas the provisions relating to the new rights of children born of adultery were applicable to PERSON estate ... as the division had not been made before DATE , ORG , which added a condition to the PERSON not contained therein , infringed the above - mentioned provisions . ” ...


No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (estoppel);Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants are former members of ORG who were elected at the general election of DATE . At that time they were members of ORG ( Halkın Emeği Partisi ) , which was founded in DATE but proscribed and dissolved by ORG on DATE on account of what were held to be separatist activities . By that date the applicants had joined ORG ( PERSON ) , which had been set up in the meantime .

On DATE ORG lifted their parliamentary immunity on an application , first lodged in DATE and subsequently resubmitted on several occasions , by the public prosecutor attached to ORG ( PERSON savcısı DATE “ the public prosecutor ” ) . He accused them of committing the offences defined in LAW of LAW ( see paragraph CARDINAL below ) , which were classified as terrorist crimes in LAW ( Law no . CARDINAL – see paragraph CARDINAL below ) and thus came within the jurisdiction of the national security courts ( see paragraph CARDINAL below ) .

On DATE , as they were leaving the parliament building , Mr Dicle and Mr Doğan were arrested on the public prosecutor ’s orders and taken into police custody at the headquarters of the anti - terrorist section of the GPE security police . On DATE their lawyers asked for their clients to be brought promptly before a judge and asked the public prosecutor for permission to speak to them . The written authorisation issued by the public prosecutor for that purpose specified that the interview – to be conducted DATE was to concern preparation of the appeal the applicants were intending to lodge against the lifting of their parliamentary immunity .

The other CARDINAL applicants had refused to leave the parliament precinct , but on DATE they suffered the same fate as their CARDINAL colleagues .

On DATE the public prosecutor extended the CARDINAL applicants’ detention in police custody until DATE on the ground that further investigations were needed ; his decision was based on section CARDINAL of Law no . CARDINAL governing procedure before the national security courts ( see paragraph CARDINAL below ) . While in police custody the applicants refused to make any statement .

On DATE the lawyer acting for Mr Dicle and Mr Doğan , referring to his request of DATE that they be brought promptly before a judge ( see paragraph CARDINAL above ) , made another application to the same effect , relying on Articles CARDINAL and CARDINAL of the LAW , inter alia .

On DATE ORG dismissed appeals lodged by the applicants against the lifting of their parliamentary immunity .

NORP In the meantime , on DATE , a single judge of ORG had issued an order for the MPs’ detention pending trial , giving as the reasons the “ character and nature ” of the offence concerned and the “ evidence obtained ” .

On appeal by the applicants , a bench of CARDINAL judges of the same court upheld the above order on DATE , holding that it was necessary “ on account of the classification and nature of the offences [ concerned ] , the charges already preferred , the length of [ the applicants’ ] detention and the fact that the case [ was ] still at the investigation stage ” .

On DATE the applicants lodged a further application for release , which was dismissed by ORG on CARDINAL May on the ground that the case was “ still at the investigation stage ” and that to date there had been “ no change in the detained MPs’ favour ” .

On DATE the public prosecutor filed submissions accusing the applicants of separatism and undermining the integrity of the ORG , which are capital offences under LAW of LAW ( see paragraphs CARDINAL below ) .

On DATE ORG delivered its judgment . Applying section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG – see paragraph CARDINAL below ) , it sentenced Mr PERSON and PERSON PERSON to DATE and CARDINAL months’ imprisonment for separatist propaganda and Mr NORP , Mr Dicle , PERSON PERSON and PERSON to DATE imprisonment for membership of an armed gang ( LAW of LAW see paragraph CARDINAL below ) .

On appeal by the applicants and the public prosecutor , ORG quashed PERSON Türk ’s conviction on DATE and ordered his release , on the ground that he had contravened section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) but not LAW of LAW . It upheld the other applicants’ convictions .

Article CARDINAL of the LAW provides :

“ Everyone has the right to liberty and security of person .

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :

The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE … These time - limits may be extended during a state of emergency …

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG for damage sustained by persons who have been victims of treatment contrary to the above provisions , as the law shall provide . ”

Article CARDINAL of the LAW provides : “ International treaties lawfully brought into force shall have the force of law ... ”

The relevant provisions of LAW read as follows :

Article CARDINAL

“ It shall be an offence , punishable by the death penalty , to commit any act aimed at subjecting the ORG or any part of the ORG to domination by a foreign ORG , diminishing the ORG ’s independence or removing part of the national territory from the ORG ’s control . ”

Article CARDINAL

“ Any person who , with the intention of committing the offences defined in LAW ... , forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment .

The other members of the gang or organisation shall be sentenced to not CARDINAL and not more than fifteen years’ imprisonment . ”

Section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) classifies the offences defined in ORG CARDINAL and CARDINAL of LAW as terrorist crimes .

Before being amended on DATE , section CARDINAL ( CARDINAL ) of the LAW provided :

“ Written and oral propaganda , meetings , assemblies , and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of its people are forbidden , regardless of the methods or intentions behind such activities . Those conducting such activities shall be punished with a sentence of CARDINAL years’ imprisonment and a fine of MONEY ... ”

Under LAW no . CARDINAL on procedure in the national security courts , only these courts can try cases involving the offences defined in Articles CARDINAL and CARDINAL of LAW .

At the material time section CARDINAL of Law no . CARDINAL of DATE , amending the legislation on criminal procedure , provided that , with regard to offences within the jurisdiction of the national security courts ( see paragraph CARDINAL above ) , any arrested person had to be brought before a judge within TIME at the latest , or , in the case of offences committed by CARDINAL person , within DATE . In provinces where a state of emergency had been declared , these time - limits could be extended to DATE and DATE respectively .

Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons unlawfully arrested or detained provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial … , or are acquitted or discharged after standing trial ; or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only . ”

On DATE the Permanent Representative of GPE to ORG sent the Secretary General of ORG the following notice of derogation :

“ CARDINAL . GPE is exposed to threats to its national security in LOC which have steadily grown in scope and intensity over DATE so as to [ amount ] to a threat to the life of the nation in the meaning of Article CARDINAL of the Convention .

During DATE , CARDINAL civilians and CARDINAL members of the security forces have been killed by acts of terrorists , acting partly out of foreign bases . Since DATE only , the numbers are CARDINAL civilians and CARDINAL members of the security forces .

The threat to national security is predominantly [ occurring ] in provinces of LOC and partly also in adjacent provinces .

Because of the intensity and variety of terrorist actions and in order to cope with such actions , the ORG has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public , partly emerging from other parts of GPE or even from abroad and with abuses of trade - union rights .

To this end , the Government of GPE , acting in conformity with LAW of LAW , has promulgated on DATE the decrees with force of law [ nos . ] CARDINAL and CARDINAL . These decrees may in part result in derogating from rights enshrined in the following provisions of LAW [ on ] Human Rights and Fundamental Freedoms : Articles CARDINAL , CARDINAL , DATE , DATE , DATE and DATE . A descriptive summary of the new measures is attached hereto ... ”

The descriptive summary of the content of Legislative Decrees nos . CARDINAL and CARDINAL reads as follows :

“ A. By virtue of the decrees having force of law [ nos . ] CARDINAL and CARDINAL on the state of emergency region , the state of emergency region governorship has been empowered with the following additional powers .

ORG , upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication ( regardless of the location of the printing press ) , which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities . This also includes , if necessary , the power to order the closure of the printing press concerned .

The Governor of the state of emergency region can order persons who continuously violate the general security and public order , to settle at a place to be specified by ORG outside the state of emergency region for a period which shall not exceed the duration of the state of emergency . At their request , the persons concerned may receive financial aid from ORG . The particulars for this assistance shall be determined by ORG .

The Governor of the state of emergency region ( or the delegated provincial Governor ) can suspend ( DATE ) or require prior permission for certain labor disputes related activities like strike and lockout .

The Governor can also ban , or take preventive measures against certain activities like destruction , looting , boycotting , slowing down of work , restricting the freedom of work and closing down of business .

The Governor of the state of emergency region can order the temporary or permanent evacuation , change of place , regrouping of villages , grazing fields and residential areas for reasons of public security .

The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order , the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him .

B. No legal claims of criminal , pecuniary or legal nature can be brought against , nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of ORG , the Governor of the emergency region and other governors , when exercising the power under the decree no . CARDINAL having force of law .

C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s ) performed when exercising the power given by the law of emergency no . CARDINAL to the Minister of Interior , the Governor of the state of emergency region and the provincial governors .

D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law no . CARDINAL . ”

According to a note in the notice of derogation , “ the threat to national security [ was ] predominantly occurring ” in the provinces of ORG , ORG , GPE , GPE , GPE , PERSON , ORG , Batman and PERSON ( see paragraph CARDINAL below ) .

In a letter of CARDINAL DATE ORG of GPE informed the Secretary General that Legislative Decree no . CARDINAL had been replaced by Legislative Decree no . CARDINAL , promulgated on DATE . An appendix to the above letter , containing a descriptive summary of the decree , reads as follows :

“ CARDINAL . The powers of the Governor of the state of emergency under ORG no . CARDINAL have been limited to the region where a state of emergency is in force . Thus , the adjacent provinces have been excluded from the competence of the Governor .

NORP The special powers given to the Governor of the state of emergency by virtue of Decree with Force of Law no . CARDINAL have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms .

The powers of the Minister of ORG [ to ] ban any publication or order the closure of the printing press ( regardless of the location ) is restricted . According to the new provision , the Minister of ORG has at first to issue a warning to the owner or the publisher of the publication . If the owner or the publisher continues to print or distribute the controversial issue , then the Minister concerned may temporarily or permanently ban the publication and , if necessary , may also order the closure of the printing press for a maximum period of DATE , which may , however , be extended to DATE in case of repetition . No maximum period for closure of the printing press has been stipulated by the ( abrogated ) Decree no . CARDINAL ( Compare § A ( CARDINAL ) of the Descriptive Summary attached to LAW .

NORP The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree . The persons who are expelled from the state of emergency region are not obliged to settle in a specified place . Hence , they will be free to choose their residence out of the region except when they request financial aid . In this case they have to settle at a specified place ( See § A ( CARDINAL ) of previous Descriptive Summary ) .

Referring to the paragraphs A ( CARDINAL , DATE , DATE and DATE ) of the Descriptive Summary of DATE ( which are related to strikes , lockout and some other activities of labor unions , evacuation and regrouping of villages , transfer of public officials to other posts or positions ) , it should be noted that the adjacent provinces have been excluded by virtue of the new decree .

As to paragraph CARDINAL of the previous Descriptive Summary , a new clause has been included in the new Decree safeguarding the right to file an action against the administration ( ORG ) for loss or damages arising out of the performance of the acts taken under the emergency measures . ”

On DATE the Permanent Representative of GPE wrote to the Secretary General in the following terms :

“ As most of the measures described in the decrees which have the force of law ORG . CARDINAL and CARDINAL that might result in derogating from rights guaranteed by ORG CARDINAL , CARDINAL , DATE , DATE , DATE and DATE of the LAW , are no longer being implemented , I hereby inform you that GPE limits henceforward the scope of its LAW with respect to LAW only . The derogation with respect to Articles DATE , DATE , DATE , DATE and DATE of the LAW is no longer in effect ; consequently , the corresponding reference to these Articles is hereby deleted from the said LAW . ”

On DATE the Permanent Representative of GPE informed the Secretary General that by legislative decrees of DATE , which had entered into force on DATE , the state of emergency had been lifted in the province of ORG and proclaimed in the province of ORG .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

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

Since DATE the applicant , a doctor , had been employed as an expert by the medical service of the NORP health insurance which provides medical expert reports to health insurance companies ( GPE ORG in ORG ) .

On DATE the applicant ’s employer ordered him to conduct a medical examination of an apprentice with a view to her being employed by a client health insurance company . On CARDINAL and DATE the applicant contested this instruction as he feared a “ possible bias ” which could lead to difficulties if he had to work with the apprentice in the future . He did not specify exactly what those difficulties might be .

Following this refusal and CARDINAL warnings ( Abmahnungen ) concerning the applicant ’s failure to follow other instructions from his employer , he was dismissed on DATE .

Subsequently , he lodged an action with ORG to have his dismissal annulled . He argued that a “ moral dilemma ” had prevented him from carrying out the requested examination .

On DATE ORG found for the applicant . It argued that , although he had not provided an objective or clear reasoning , the applicant had proved that he had experienced a subjective moral dilemma which could justify his refusal to carry out the examination .

On DATE ORG quashed that decision and dismissed the applicant ’s action , arguing that the applicant could not rely on his freedom of conscience for the following reasons : Firstly , when he had refused to carry out the examination on DATE , the applicant had not mentioned a moral dilemma , but referred only to a fear of “ bias ” . Moreover , the applicant could not rely on a moral dilemma , as he had at CARDINAL point – even if only for DATE been prepared to carry out the requested examination , which proved that he had not felt bound by an unconditional , compelling decision of conscience ( unbedingt verpflichtende GPE ) . Secondly , even assuming that his decision had been based on conscience , it had been impossible for the applicant ’s employer , on the basis of the applicant ’s reasoning , to appreciate that he had been experiencing a moral dilemma . In particular , the applicant had overlooked the fact that no conflict of interest would have arisen regardless of whether the applicant had recommended the apprentice for employment or not : he would only have had to work with the apprentice if he had recommended her . If he had decided in her favour , no question of conflict would have arisen . If the applicant had not recommended her , any future conflict would have been excluded because he would not have had to work with her .

On DATE ORG refused the applicant leave to appeal on points of law as ORG decision had not diverged from the case - law of ORG .

On DATE ORG refused to admit the applicant ’s constitutional complaint , and confirmed that ORG reasoning had not violated his freedom of conscience .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings , instituted against the applicant on suspicion of tax evasion , were discontinued on exonerative grounds .

In DATE the applicant instituted proceedings in GPE ( “ ORG , ” PERSON районний суд м. ORG ) , seeking compensation from the ORG budget for moral damage inflicted by the allegedly unlawful actions of the investigating authorities .

On DATE ORG rejected the applicant 's claims as unsubstantiated . On DATE ORG ( “ ORG , ” Дніпропетровський обласний суд ) quashed this judgment and remitted the case for a fresh consideration .

On DATE ORG awarded the applicant CARDINAL hryvnyas ( ORG ) in moral damage without specifying the debtor . This judgment was upheld by ORG on DATE and became final . The applicant unsuccessfully attempted to obtain a supervisory review of the CARDINAL rulings , seeking a higher amount of compensation .

On DATE the Dnipropetrovsk Regional Treasury ( Управління державного казначейства у GPE області ) transferred the judgment of DATE to ORG ( Державне казначейство GPE ) for enforcement . ORG did not pay the debt and requested ORG to lodge a supervisory review request ( a protest ) against the court rulings of CARDINAL and CARDINAL DATE . On DATE the Deputy Regional Prosecutor ( GPE прокурора ORG області ) lodged a protest with ORG alleging that no compensation should have been awarded .

On DATE the ORG of ORG dismissed the protest and upheld the previous CARDINAL rulings . The Deputy Prosecutor General lodged a protest with ORG against all CARDINAL court rulings .

In its final decision of CARDINAL DATE , ORG upheld the rulings at issue and amended the judgment of DATE to specify that the debt was to be paid by the ORG GPE ( “ ORG , ” PERSON казначейства у PERSON GPE ) . The applicant unsuccessfully attempted to lodge a cassation appeal against this final decision , seeking a higher amount of compensation .

On DATE ORG ( “ the Bailiffs , ” PERSON виконавчої служби NORP районного управління юстиції QUANTITY м. Дніпропетровську ) initiated the enforcement proceedings in respect of the amended judgment of DATE .

On DATE the Bailiffs imposed a fine on Ms G. , the Head of the Zhovtnevy Treasury , for her failure to ensure the enforcement of the judgment in due time . Ms PERSON appealed to ORG ( “ ORG , ” Жовтневий районний суд PERSON GPE ) .

On DATE ORG allowed PERSON appeal , having found that the judgment had not been enforced on account of a failure in the statutory mechanism and the lack of budgetary allocations . The applicant 's appeal against this judgment was returned as “ not lodged ” in view of his failure to rectify its procedural shortcomings .

On DATE the Bailiffs discontinued the enforcement proceedings on the ground that the collection of the debt was not possible . The applicant unsuccessfully attempted to institute criminal investigation into the non - enforcement .

The judgment of DATE remains unenforced to the present day .

The relevant domestic law is summarised in the judgment of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .