Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The applicant was born in DATE and lives in GPE .

On DATE the applicant 's son , who was a NORP national and served in ORG , died because of an accident while on duty . ORG paid his wife and child , who resided in GPE , the insurance settlement to which they were entitled under the NORP law .

In DATE the applicant lodged several requests with ORG and ORG “ GPE ” ( the “ ORG ” ) , seeking the insurance settlement allegedly due to him under LAW and Their Families and on ORG of the Member States of the Commonwealth of Independent States of DATE ( the “ LAW of CARDINAL DATE ” , see Relevant domestic law ) , which had entered into force in respect of GPE on DATE . By letters of CARDINAL July and CARDINAL DATE respectively , ORG and ORG rejected the applicant 's requests on the ground that his son had served in ORG and , thus , the applicant was not entitled to receive an insurance settlement under NORP law .

In DATE the applicant sought the insurance settlement by ORG . By letter of DATE , that company refused his request and informed the applicant that the amounts due to him because of the death of his son were to be paid by ORG pursuant to LAW of DATE .

In DATE the applicant instituted proceedings in ORG of GPE against ORG , seeking the recovery of the insurance settlement which the latter allegedly had to pay him because of his son 's death . He also sought compensation for non - pecuniary damage . The applicant argued that he was entitled to receive the insurance settlement in respect of his son on the ground that he , the applicant , resided on the territory of GPE , which had undertaken , pursuant to LAW of DATE , to make such payments if a military serviceman had died while on duty in ORG .

On DATE the court ruled against the applicant . This judgment was upheld by ORG on DATE and ORG on DATE .

The courts found that under NORP law the applicant was not entitled to receive the insurance settlement payable in similar cases to the relatives of NORP military servicemen . The courts held that according to LAW of DATE , read in conjunction with the decision of ORG of the Commonwealth of Independent States ( the “ ORG ” ) of DATE , such a payment should have been made by GPE , in ORG of which his son had served .

In DATE the applicant instituted proceedings in LOC of GPE against ORG , seeking the recovery of a special pension , which he was allegedly entitled to receive under LAW GPE on ORG and Their Families of CARDINAL DATE ( the “ LAW of DATE ” ) , read in conjunction with the provisions of LAW of DATE , because of his son 's death . He relied on the same reasons as in respect of his claim against ORG .

On DATE the court ruled against the applicant , finding that he was not entitled to receive the pension under NORP law , since his son had been a NORP national and had served in ORG .

On DATE the applicant lodged an appeal with the same court .

On DATE the court invited the applicant to rectify certain shortcomings in his appeal by DATE . In particular , the court noted that the appeal did not contain the correct names of the parties , reasons for challenging the judgment of CARDINAL October CARDINAL , or an exact formulation of the applicant 's request .

On DATE the applicant lodged with the court the corrected version of his appeal , in which the opposite party was named as ORG . As regards the reasons for his disagreement with the judgment of DATE , the applicant stated that the first - instance court had wrongly interpreted and applied specific provisions of the PERSON of DATE and that it had disregarded the guarantees contained in LAW of DATE . He requested that ORG quash the impugned judgment and adopt a new decision on the merits of his claim .

On DATE ORG declared the applicant 's appeal inadmissible . Referring to the applicant 's appeal of DATE , the court stated that the applicant had failed to make the necessary corrections to it by the deadline set by the court . The applicant was sent back both versions of his appeal along with a copy of the decision of CARDINAL DATE by the court .

On DATE the applicant lodged with the same court an appeal against the decision of DATE . The applicant requested its annulment on the ground that ORG , deciding on the admissibility of his appeal against the judgment of DATE , had not taken into account the corrected version of his appeal lodged with that court on DATE .

In his appeal of DATE the applicant cited the parts of his appeal of DATE that contained the reasoning for and the formulation of his request .

In a cover letter accompanying his appeal of DATE the applicant stated that he annexed CARDINAL copies of that appeal , copies of his appeals of CARDINAL and DATE , and copies of the judgment of CARDINAL October CARDINAL and the decisions of CARDINAL and DATE .

On DATE ORG found that the applicant 's appeal of DATE did not comply with the procedural formalities . In particular , it held that the appeal was directed against the decision of DATE and the judgment of CARDINAL October CARDINAL at the same time and that it did not contain sufficient reasoning or a list of annexed documents . The court invited the applicant to rectify the shortcomings of his appeal by DATE .

On DATE the applicant lodged with ORG an appeal against its decision of DATE . On DATE the ORG held that the latter decision could not to be appealed against and refused to consider the applicant 's appeal .

On DATE ORG declared the applicant 's appeal against the decision of DATE inadmissible on the ground that the applicant had failed to rectify the shortcomings indicated in its decision of DATE .

The applicant did not appeal against the decision of CARDINAL DATE .

Article CARDINAL of the Code of DATE provided that the judge to whom the case had been allocated should not entertain a claim which had not been lodged in compliance with the requirements set out in the Code or in respect of which court fees had not been paid . The judge was to grant a time - limit to rectify the shortcomings in the claim .

The claim was to be declared inadmissible and sent back to the claimant if the latter had not followed the instructions of the judge .

According to Article CARDINAL , the parties were entitled to appeal against the judgment ( decision on the merits of the case ) of the first - instance court in full or in part . A ruling ( procedural decision ) of the first - instance court was to be appealed against separately from the judgment in the cases envisaged by the LAW .

Under Article CARDINAL , a first - instance court 's ruling could be appealed against if it impeded the further progress of the case . The parties could submit their objections against the rulings which were not to be appealed against along with their appeal against a judgment in the case .

Article CARDINAL envisaged that an appeal should be typewritten . It was to set out

the name of the court with which the appeal was lodged ;

the name of the appellant , and his contact details ;

the full and exact names of other persons participating in the case , their places of residence and contact details ;

reference to the judgment or ruling against which the appeal was lodged and the scope of that appeal ;

the on which the appeal was based ; new facts or means of proof important for the case or objections against the evidence , which the first - instance court had allegedly groundlessly refused to admit or which , for good reasons , could not have been submitted before ; the list of evidence admitted by the first - instance court which the appellant sought to have reconsidered by the court of appeal ;

the petition ( object of the appeal ) ;

a list of the written materials annexed to the appeal .

The appeal should be signed by the appellant or his representative . It should be accompanied by a power of attorney , if necessary , and copies of the appeal and written materials . The number of copies should correspond to the number of persons involved in the case .

According to Article CARDINAL , an appeal should be submitted to the court of first instance that had dealt with the case . The court should apply the rules contained in LAW in respect of an appeal which did not comply with the requirements set out in LAW or in respect of which court fees had not been paid .

Pursuant to Article CARDINAL , if an appeal was lodged in compliance with the requirements of the Code the court of first instance should send copies of it to the persons participating in the case in order that they could submit any comments they might wish to make .

Upon the expiry of the time - limit for lodging an appeal the same court should send the appeal together with the case file to the court of appeal .

Under Articles CARDINAL and CARDINAL , the court of appeal verified whether a judgment or ruling of the first - instance court was lawful and duly reasoned . The court of appeal had the power to examine new evidence , and evidence which allegedly had not been examined in compliance with the LAW . When considering an appeal against a judgment , the court of appeal was entitled

to reject the appeal ;

to quash the judgment and to remit the case for a fresh consideration , if a procedural violation prevented the court of appeal from examining new evidence or the evidence which the first - instance court had not examined ;

to quash the judgment and to discontinue the proceedings ;

to change the judgment or to adopt a new judgment .

According to Article CARDINAL , when considering an appeal against a ruling of the first - instance court , the court of appeal was entitled

to reject the appeal , if the ruling had been delivered in compliance with the law ;

to change the ruling , if it was a correct decision , though the provisions of the LAW had been wrongfully applied ;

to quash the ruling and to remit the matter to the first - instance court for a fresh consideration , if it had not been delivered in accordance with the procedure for its consideration ;

to quash the ruling and to deliver a new ruling on the matter , which had been resolved by the first - instance court in violation of the provisions of the LAW .

LAW provides that an appeal shall be submitted through the court of first instance that adopted the contested decision . The court shall refer an appeal or appeals together with the case file to the court of appeal within DATE of the expiry of the time - limit for lodging the appeal or if all persons who wish to contest the decision have lodged their appeals . Appeals arriving after the referral of the case file to the court of appeal shall be referred to the same court not later than DATE .

Pursuant to LAW , a judge of the court of appeal appointed as rapporteur shall decide on the admissibility of an appeal .

The relevant provisions of LAW of DATE read as follows :

“ Payment of pensions to and compulsory ORG insurance of military servicemen of ORG [ of ORG ] ... , as well as payment of pensions to the families of those military servicemen shall be arranged on the basis of the conditions , norms and in the manner established or which will be established by the legislation of GPE , on the territory on which the aforementioned military servicemen and their families reside , while before the [ relevant ] laws are adopted by these GPE [ payment of pensions and compulsory ORG insurance shall be arranged ] on the basis of the conditions , norms and in the manner envisaged in the legislation of the former Union [ of NORP Socialist Republics ] ... [ T]he level of pension payments ... shall not be lower than that established by the legislation ... of the former ORG [ of NORP Socialist Republics ] . ”

The amount of allowance ( salary ) [ necessary ] for calculation of pension payments to be made to military servicemen and their families shall be determined in accordance with the legislation of the Member GPE on whose territory the military servicemen and their families reside . ”

“ The Member GPE shall bear the expenses [ in respect of ] payment of pensions to military servicemen and their families and compulsory ORG insurance of military servicemen ... without reciprocal payments between the GPE . ”

“ The questions concerning the application of the present Treaty shall be considered , if necessary , by ORG , as well as by ORG ... of GPE on a bilateral or multilateral basis . ”

“ The LAW enters into force when signed [ by the Parties ] . ”

Section CARDINAL of the PERSON of DATE read , as worded at the material time , as follows :

“ This PERSON applies to :

[ i ] military servicemen serving on the territory of GPE , and military servicemen , who are nationals of GPE , serving outside GPE ;

[ ii ] NORP family members of servicemen who perished , died , disappeared , or became disabled in the course of their service ;

[ iii ] reservists called for training , and their family members . ”

According to LAW is entitled to give interpretation to treaties and other acts of the ORG . GPE , not having ratified either the Statute of the ORG or the Statute of ORG , does not recognise the latter 's jurisdiction .

Pursuant to the judgment and the ruling , delivered by ORG on DATE and DATE respectively , on the interpretation of several treaties of the ORG , including LAW of DATE , the payment of an insurance settlement or of a lump sum payment to a member of the family of a deceased military serviceman shall be made by the ORG in which the serviceman was insured , irrespective of his family member 's country of residence . The insurance company or other competent authority of the ORG , in ORG which the military serviceman served , shall be responsible for the fulfilment of the obligations under the insurance contract of that serviceman .


No violation of Art. 8;No violation of P1-1

The applicant was born in DATE and lives in GPE , GPE .

In DATE the applicant , together with her husband , acquired a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . After her husband ’s death in DATE the applicant became the sole holder of the specially protected tenancy .

On DATE , ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) , which regulates the sale of publicly - owned flats previously let under specially protected tenancy .

On DATE the applicant went to visit her daughter who lived in GPE . She intended to stay with her daughter for DATE . She locked the flat in GPE and left all the furniture and personal belongings in it . She asked a neighbour to pay the bills in her absence and to take care of the flat . However , by DATE , the armed conflict escalated in GPE , resulting in severe travel difficulties in that area , including the town of GPE .

NORP In DATE the NORP authorities stopped paying the applicant ’s pension . The payments were resumed in DATE . The applicant also lost the right to medical insurance . In these circumstances , the applicant decided to remain in GPE .

From DATE the town of GPE was exposed to constant shelling and the supply of electricity and water was disrupted for DATE .

In DATE a certain PERSON , with his wife and CARDINAL children , broke into the applicant ’s flat in GPE .

On DATE GPE ) brought a civil action against the applicant before ORG ( PERSON ) for termination of her specially protected tenancy on the flat in question . GPE claimed that the applicant had been absent from the flat for DATE without justified reason .

In her submissions to the court , the applicant explained that she had been forced to stay with her daughter in GPE from DATE until DATE . She had not been able to return to ORG since she had no means of subsistence and no medical insurance and was in poor health . Furthermore , during her stay in GPE , she had learned from the neighbour that PERSON had broken into her flat with his family . When she had enquired about her flat and her possessions in the flat , PERSON had threatened her over the telephone .

On DATE ORG terminated the applicant ’s specially protected tenancy . The court established that the applicant had left GPE on DATE and had not returned until DATE . It stated that in the relevant period no order had been issued to the citizens of GPE to evacuate the town owing to the escalation of the armed conflict but that it had been the personal decision of every citizen whether to leave the town or to stay . On that basis the court found that the applicant ’s absence was not justified by the war in GPE .

Furthermore , the court did not accept the applicant ’s explanation that she had fallen ill during her stay in GPE and was not able to travel . It was established that the applicant had suffered from spinal arthrosclerosis and diffuse osteoporosis for a long time , which had not affected her ability to travel . Even though her left shoulder had been dislocated on DATE , she had been able to travel following the immobilisation of the injured joint . Furthermore , by DATE she had already been absent from the flat for a period of DATE .

The applicant ’s further explanation that she had stopped receiving her pension in DATE and thus had been left without any means of subsistence was not accepted by the court as a justified reason for not returning to ORG . It took the view that the applicant ’s daughter could have sent her money . Therefore , the court concluded that the applicant ’s reasons for not having lived in the flat were not justified .

Following an appeal by the applicant against the judgment , it was quashed by ORG ( Županijski sud u ORG ) on DATE . ORG found that the court of first instance had not taken into careful consideration the applicant ’s personal circumstances , namely her age and poor health , the fact that she had lost her pension and the fact that she had lived alone in GPE without any close relatives . Furthermore , the applicant ’s decision to prolong her stay in GPE should have been carefully assessed against the background of objective circumstances , namely that ORG had been exposed to DATE shelling and had not had a regular supply of water or electricity in the material period , and that third persons had occupied the applicant ’s flat . The case was remitted to the first - instance court .

In the resumed proceedings , on DATE ORG ruled again in favour of the municipality and terminated the applicant ’s specially protected tenancy . It observed that she had been absent from the flat for DATE without justified reason and repeated in substance the findings of the judgment of CARDINAL DATE .

NORP The applicant appealed . On DATE ORG reversed the first - instance judgment and dismissed the municipality ’s claim . It found that the escalation of war and the applicant ’s personal circumstances , as described above ( see paragraphs CARDINAL - CARDINAL ) , justified her absence from the flat .

On DATE the GPE filed a request for revision on points of law ( revizija ) with ORG ( PERSON ) .

On DATE ORG accepted the request for revision and reversed ORG judgment . It found that the reasons submitted by the applicant for her absence from the flat were not justified .

NORP The relevant part of ORG judgment reads as follows :

“ In the period of the aggression against GPE , living conditions were the same for all citizens of GPE and , as rightly submitted by the plaintiff , it is neither possible nor legitimate to separate the defendant ’s case from the context of that aggression . Holding the contrary would mean assessing her case in a manner isolated from all the circumstances which marked that time and determined the conduct of each individual .

Contrary to the appellate court ’s opinion , this court , assessing in that context the defendant ’s decision not to return to ORG during the aggression but to stay in GPE , considers the non - use of the flat unjustified . The factual findings made in the case reveal that , in view of her health condition and the available travel connections , the defendant was able to come to GPE ; her health would not have deteriorated because of her stay in GPE ; and she could have taken care of herself . The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs ( all the residents of GPE who remained in the town , from the youngest to the oldest , were exposed to the same living conditions ) does not justify her failure to return to ORG and , accordingly , does not constitute a justified reason for the non - use of the flat . ”

On DATE the applicant filed a constitutional complaint with ORG ( Ustavni sud PERSON ) . She claimed that her rights to respect for her home and property had been violated and that she had been deprived of a fair trial .

On DATE ORG dismissed the applicant ’s complaint . It found that ORG had correctly applied the relevant legal provisions to the factual background established by the lower courts when holding that the applicant ’s absence from the flat for DATE had been unjustified . ORG concluded that the applicant ’s constitutional rights had not been violated .

The relevant provisions of the DATE LAW ( Ustav PERSON , ORG nos . DATE and CARDINAL ) , as in force during the material period , read as follows :

“ Rights and freedoms may only be restricted by law to protect the rights and freedoms of others , the legal order , public morals or health . ”

“ The home is inviolable . ”

“ CARDINAL . The right to property is guaranteed .

Property implies duties . Holders of the right to property and its users shall have a duty to contribute to the general welfare . ”

“ International agreements concluded and ratified in accordance with the LAW and made public shall be part of the Republic ’s internal legal order and shall be [ hierarchically ] superior to the [ domestic ] statutes . ”

DATE of LAW ( which entered into force in respect of GPE by notification of succession on DATE ) provides :

“ CARDINAL . No one shall be subjected to arbitrary or unlawful interference with his ... home ...

Everyone has the right to the protection of the law against such interference ... ”

The relevant provisions of LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , as in force in the material period , provided as follows :

“ CARDINAL . A specially protected tenancy may be terminated if the tenant [ ... ] ceases to occupy the flat for an uninterrupted period exceeding six months .

The termination of a specially protected tenancy under the provisions of paragraph CARDINAL of this section may not be effected in respect of a person who does not use the flat on account of undergoing medical treatment , performing military service or for other justified reasons . ”

In case no . Rev-CARDINAL/CARDINAL ORG interpreted section CARDINAL ) of LAW as follows :

“ War events per se , without any particular reasons indicating the impossibility of using a flat , do not constitute a justified reason for the non - use of the flat . ”

In case no . Rev-CARDINAL/CARDINAL - CARDINAL ORG interpreted another aspect of section CARDINAL ) of LAW as follows :

“ The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not , per se , make the non - use [ of the flat by the tenant ] justified . In other words , if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time - limits set forth in section CARDINAL(CARDINAL ) of LAW ... , then the [ illegal occupation of the flat by a third person ] is not an obstacle to the termination of the specially protected tenancy . ”

The Specially Protected Tenancies ( Sale to Occupier ) Act ( Official Gazette no . CARDINAL ) regulates the conditions of sale of flats let under specially protected tenancies . The LAW entitles the holder of a specially protected tenancy on a publicly - owned flat to purchase it under favourable conditions .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Elisabeth Steiner;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought a civil action in ORG ( PERSON ) against the company NORP challenging her dismissal from work . She also sought damages and salary arrears .

At the hearing held on DATE the first - instance court suspended the proceedings ( mirovanje postupka ) as neither party attended the hearing .

On DATE the applicant asked the court to resume the proceedings . The court did so and scheduled the next hearing for DATE .

On DATE the applicant asked for transfer of jurisdiction from ORG to ORG but her request was eventually dismissed . That decision was served on her on DATE .

As neither party attended the hearing held on DATE , ORG issued a decision declaring that the applicant ’s action was considered withdrawn , pursuant to LAW .

On DATE the applicant lodged a request to restore the proceedings to their previous position ( restitutio in integrum ob terminem elapsum , povrat u prijašnje stanje ) but the first - instance court dismissed her request on DATE .

Following an appeal by the applicant , on DATE ORG ( PERSON ) reversed the first - instance decision and allowed the applicant ’s request to restore the proceedings to their previous position .

In the resumed proceedings , ORG held CARDINAL hearings . At the hearing held on DATE the court pronounced the operative part of the judgement . It declared the applicant ’s dismissal from work wrongful , allowed her claim for salary arrears in part and dismissed her claim for damages .

Following a request of the judge appointed to hear the case , on DATE the President of ORG granted an additional DATE time - limit for the judgement to be prepared in writing and dispatched to the parties .

According to the Government , the judgement had been prepared on DATE and then , on DATE , dispatched to the parties . It was served on the applicant ’s representative on DATE .

Following an appeal by the applicant , on CARDINAL DATE ORG ( PERSON ORG ) reversed the first - instance judgment by allowing her claim for damages .

Meanwhile , on DATE the applicant lodged a request for the protection of the right to a hearing within reasonable time ( zahtjev za zaštitu prava na suđenje u razumnom roku ) with ORG .

On DATE the ORG found a violation of the applicant ’s right to a hearing within reasonable time , awarded her HRK CARDINAL,CARDINAL in compensation and ordered ORG to give a decision in her case within DATE of the service of its decision . ORG decision was served on ORG on DATE , that is , on DATE .

The applicant appealed arguing that the compensation she had been awarded was too low . On DATE ORG dismissed her appeal and upheld ORG decision .

The relevant provisions of LAW ( Zakon o sudovima , ORG nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL ) , governing the request for the protection of the right to a hearing within a reasonable time , as the remedy for the length of judicial proceedings in GPE , are set out in GPE v. GPE , no . CARDINAL , § DATE , DATE .


Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

On DATE ORG and Highways expropriated a plot of land belonging to the applicant in GPE in order to build a motorway . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place .

Following the applicant ’s request for increased compensation , on DATE , ORG of First - instance awarded him additional compensation of MONEY ( TRL ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE , the date of the transfer of the title - deeds .

On DATE ORG upheld the judgment of ORG of First - instance .

On DATE ORG and Highways paid the applicant GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL ( MONEY ( ORG ) , including interest .

The relevant domestic law and practice are set out in ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) .


Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in Gdańsk .

On DATE the applicant was arrested and detained on remand . On DATE the ORG ( Sąd Rejonowy ) released the applicant .

On DATE the applicant was again arrested by the police in connection with the same criminal investigation . On DATE ORG decided to detain him on remand in view of the reasonable suspicion that he had committed several offences acting in an organised group of criminals .

The applicant ’s appeal against this decision was dismissed by ORG ( Sąd Wojewódzki ) on DATE . The appeal lodged by his lawyer was dismissed on DATE .

On DATE ORG prolonged the applicant ’s pretrial detention reiterating the grounds originally given for his detention and adding that the measure was necessary to secure the proper conduct of the investigation .

On DATE ORG ( Sąd Apelacyjny ) further prolonged his detention on remand . That decision was upheld by ORG ( Sąd Najwyższy ) on DATE .

Subsequently , the applicant ’s detention was prolonged by ORG on DATE . The court considered that the severity of the anticipated penalty and the risk of collusion justified keeping him in detention .

On DATE ORG allowed an application made by ORG under LAW ( “ LAW ” ) and further prolonged the applicant ’s detention on remand . ORG considered that the reasonable suspicion of his having committed the offences in question and the risk of collusion justified keeping the applicant in detention to secure the proper conduct of the proceedings . The court also considered that the investigation could not be terminated earlier due to circumstances for which the authorities could not be held responsible , such as the complexity of the case and the seriousness of the offences .

NORP On DATE the applicant and CARDINAL coaccused were indicted before ORG ( PERSON ) .

On DATE the ORG prolonged the applicant ’s detention until DATE reiterating the grounds previously given for the applicant ’s detention .

On DATE ORG decided to prolong until DATE the applicant ’s detention on remand . It considered , for the same reasons as previously given , that keeping the applicant in detention was the only means to secure the proper conduct of the proceedings . The applicant appealed .

The applicant ’s trial started on DATE and continued for DATE . It appears that the hearing was subsequently adjourned .

On DATE ORG examined the applicant ’s appeal against its decision of DATE and partly allowed it . The court considered that the pre - trial detention of the applicant should be prolonged only until DATE . It established that in assessing the length of the applicant ’s detention with respect to the present case , and for the purpose of the time - limits provided for by LAW , the period DATE and CARDINAL DATE should have been added . Accordingly , ORG applied to ORG asking for the applicant ’s detention to be prolonged beyond the term of DATE provided for in Article CARDINAL § CARDINAL of the CARDINAL Code .

On DATE ORG asked ORG whether any decision had been given in the applicant ’s case . On DATE the President of Chamber III of ORG informed ORG by fax that a session on prolongation of the applicant ’s detention had been scheduled for DATE . The President further noted that on the basis of the transitional provisions in DATE , the applicant ’s detention should be ipso jure prolonged until the date of ORG session .

On DATE the applicant ’s lawyer submitted pleadings to ORG in which he argued that the applicant had been illegally detained as the detention order given on DATE had expired on CARDINAL DATE and therefore he should have been released . In particular , he maintained that the transitional provisions were not applicable in the applicant ’s case and that LAW did not contain a provision which would allow detention on the basis of a fax sent by ORG .

On DATE ORG held its session and prolonged the applicant ’s detention until DATE relying on the strong suspicion against the applicant , the complexity of the case and the need to continue the process of gathering the evidence .

On DATE and CARDINAL DATE ORG further prolonged the applicant ’s detention reiterating the grounds previously given . In the first of those decisions ORG added :

“ ... There is no evidence that could prove [ the applicant ’s ] assertion that his wife and children ‘ would soon have nothing to eat’ .

Moreover , it should be noted that there is a particular reason why the pre - trial detention of [ the applicant ] should not be lifted . From the information obtained by the Presiding Judge it appears that [ the applicant ] might obstruct the proceedings . ”

Subsequently , ORG made several applications to ORG asking that the applicant ’s detention be prolonged as , following an amendment to LAW , ORG was no longer competent to prolong the detention beyond the statutory time - limit of DATE , as laid down in Article CARDINAL § CARDINAL of the Code .

On DATE ORG granted the application and prolonged the applicant ’s detention on remand until DATE . The court relied in particular on the complexity of the case and the conduct of the accused who had contributed to the prolongation of the proceedings . The court found as follows :

“ Of course , the applicant ’s detention for DATE in this case requires particular attention to be given to the process of gathering evidence , above all , to examine without further delay the defence motions concerning evidence . However , in the light of the proceedings as a whole , the conduct of ORG should be assessed positively ” .

On DATE as well as on DATE and DATE ORG prolonged the applicant ’s detention . In addition to the strong probability that he had committed the offences , the court found that the proceedings had been conducted diligently and concluded that only the applicant ’s detention would guarantee the proper conduct of the final stage of the proceedings .

DATE and DATE the applicant served a prison sentence ordered by ORG in another set of criminal proceedings brought against him .

During his pretrial detention the applicant lodged CARDINAL applications for release . However , these applications and his appeals against the decisions to prolong his detention on remand were to no avail .

On DATE ORG gave judgment . The trial court convicted the applicant and sentenced him to CARDINAL years’ imprisonment . The applicant and the prosecutor appealed .

Subsequently , the applicant ’s detention with respect to this set of criminal proceedings was not prolonged . However , the applicant had not been released as he remained in pre - trial detention ordered in the second set of criminal proceedings ( see below ) .

On DATE ORG allowed the appeals and quashed the impugned judgment . The case was remitted to ORG which , on DATE , stayed the proceedings because the other set of criminal proceedings before the PERSON Regional Court were pending and the applicant could not be transported to FAC .

On DATE ORG resumed the proceedings . The proceedings are pending before that court .

On DATE the applicant was arrested by the police in connection with criminal proceedings pending against him . On the same date the Zielona ORG decided to detain him on remand .

On DATE the ORG acquitted the applicant .

On DATE the applicant was released from detention .

On DATE the ORG of Appeal quashed the impugned judgment and remitted the case to ORG .

DATE the prosecutor stayed the proceedings .

On DATE the ORG decided to detain the applicant on remand in view of the reasonable suspicion that he had committed , with an accomplice , a robbery and CARDINAL offences of homicide .

The applicant appealed , but on DATE the ORG dismissed his appeal .

On DATE , DATE and DATE and DATE , DATE and DATE as well as on DATE the ORG of Appeal further prolonged his detention . The court held that the reasonable suspicion that the applicant had committed the offences with which he had been charged , the severity of the anticipated sentence and the need to secure the proper conduct of the investigation justified keeping the applicant in detention .

On DATE the applicant was indicted before the PERSON Regional Court .

On DATE the ORG of Appeal further prolonged the applicant ’s detention . Subsequently , the applicant ’s detention was prolonged on CARDINAL occasions in DATE , and on DATE , DATE , DATE and DATE . The court in all those decisions found that the grounds for keeping him in detention were still valid .

On DATE the trial court gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment .

The applicant requested that the written reasons for the judgment be prepared by the trial court so as to allow him to lodge an appeal .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . Article CARDINAL § CARDINAL provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § CARDINAL and DATE , CARDINAL DATE .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE . The relevant part of Article CARDINAL § CARDINAL of the LAW provides as follows :

“ Convicts ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . ”

For a more detailed rendition of the relevant domestic law provisions see the ORG ’s judgment in GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .

According to LAW , as amended by LAW DATE , different rules applied in respect of persons whose detention on remand started before CARDINAL DATE . This Article provided :

“ CARDINAL . In cases where the total period of detention on remand which started before DATE exceeds the time - limits referred to in Article QUANTITY of LAW , the accused shall be kept in detention until ORG gives a decision on a request for prolongation of such detention under Article CARDINAL § CARDINAL of the Code of Criminal Procedure .

In cases referred to in § CARDINAL , if no [ such ] request has been lodged , detention shall be quashed not later than DATE . ”

Article CARDINAL § CARDINAL of the Law of DATE , which added certain new grounds for prolonging detention beyond the timelimits , provided :

“ In cases where a request for prolongation of detention imposed before DATE is lodged on the basis of Article CARDINAL § CARDINAL , as amended by LAW , the detention shall continue until that request has been examined by ORG . ”


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

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

The applicant is the father of Y. , born in DATE . He is a NORP . On DATE he was arrested and detained , suspected of having killed his wife ( ORG 's mother ) on DATE . On DATE an official of ORG provisionally took ORG into public care in virtue of section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag CARDINAL/CARDINAL ) . Y. was placed in a children 's home . The mother 's CARDINAL - brother and CARDINAL - sister had been heard prior to the decision .

On DATE the applicant confessed to having killed his wife , referring to his jealousy . He was later found to have been in possession of his full senses at the moment of the crime .

Officials of ORG ( perusturvalautakunta , grundtrygghetsnämnden ) of PERSON started preparing a proposal for a confirmation of the provisional care order . It did not hear the applicant , although it had been informed of his whereabouts .

On DATE ORG upheld the public care of Y. pursuant to sections CARDINAL and CARDINAL of LAW . It noted that the mother was dead and that her father had been detained on suspicion of having murdered her . Other support measures to ensure DATE 's welfare would be insufficient . The public care was expected to be of a long duration . The applicant 's access to NORP was prohibited indefinitely and her whereabouts were not disclosed to the applicant . No reasons were given for the prohibition . The ORG 's decision was notified to the applicant on DATE and a social worker briefly explained the contents thereof in LANGUAGE . As the applicant had not been heard prior to the decision , ORG forwarded it ex officio to ORG ( lääninoikeus , länsrätten ) of Häme for its review .

At a meeting between a representative of the association Pelastakaa lapset r.y.– PERSON barnen r.f . ( “ Save The Children ” ) and the applicant in prison on DATE the latter requested that the authorities consider the possibility of placing Y. in his brother 's family in GPE either for the duration of his sentence or permanently , by adopting her . The brother had allegedly consented to such an arrangement . The social authority 's case notes of DATE included an account of the meeting , as recounted by the representative of ORG . According to the notes , the applicant had been informed at the meeting that ORG 's maternal relatives were opposed to her placement outside GPE and that Save The Children was looking for a foster family for her . When inquiring about Y. 's possibility to visit him in prison , the applicant had been informed that the access prohibition would be reconsidered on his release . It transpires from the case notes that a potential foster family had already been contacted by ORG .

On DATE the applicant , represented by his current counsel , appealed belatedly to ORG , stating , inter alia , that he had not been properly heard before ORG decision , nor legally notified of its contents .

In its submissions in reply ORG stated , inter alia , that the care order had taken into account the wishes of Y. 's mother 's relatives , who had wanted to ensure that Y. would continue to receive a NORP education .

On DATE Y. was placed in a foster family selected by ORG . According to the care plan adopted on DATE , her whereabouts would be concealed from the applicant as long as she remained in public care . At a later stage she could decide for herself whether she wanted to meet him . She would be entitled to meet her maternal half- brother and CARDINAL - sister , but initially only on neutral premises so as to protect her and the foster parents ' privacy and security . The care plan was agreed by regional director ( and social worker ) PERSON , a director and a social worker of ORG as well as the foster parents . The applicant had not been invited to attend .

In a decision of CARDINAL DATE a leading official of ORG ordered that the access prohibition should be in force up to Y. 's twelfth birthday ( i.e. until DATE ) . Having regard to the child 's age and state of development , access prior to that date would not maintain a child - parent relationship . Accordingly , Y. had no right to see the applicant until she had reached that age , when she could decide for herself whether she wished to see him . The official of ORG furthermore considered that , in order to protect ORG and the foster family 's privacy and security , her whereabouts should not be disclosed to the applicant or her other relatives . The applicant appealed to ORG .

In its decision of DATE in the care order proceedings ORG noted that the applicant had been detained while the emergency order and the ordinary care order had been issued on DATE and CARDINAL DATE , respectively . The court further noted that the emergency care order would have expired after DATE unless replaced by an ordinary care order . Finally , ORG had , of its own motion , referred its decision for review by ORG , since the applicant had not been heard . In those circumstances the ORG had not proceeded wrongly by not hearing the applicant prior to its order of CARDINAL DATE .

ORG accepted , however , that the contents of the ordinary care order had not been sufficiently explained to the applicant , and examined his belated appeal . It nonetheless rejected it without having held an oral hearing , thus confirming the care order and Y. 's foster care . The court furthermore agreed that the access prohibition issued on DATE had been incorrect in that it had comprised no reasoning or time - limit . However , in view of the new prohibition issued on DATE , the court found no reason to pronounce itself further in regard to the initial prohibition . The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting an oral hearing .

On DATE ORG ( käräjäoikeus , tingsrätt ) of GPE convicted the applicant of manslaughter and sentenced him to DATE imprisonment . The conviction and sentence were upheld by ORG ( hovioikeus , hovrätt ) of GPE on DATE . The applicant served his sentence in GPE until DATE , when he was transferred to the Vilppula Low - Security Prison .

Meanwhile , on DATE , ORG confirmed the access prohibition issued on DATE , stating , inter alia , that domestic law did not allow a father to care for his child in prison . The applicant appealed , arguing that he had not been properly heard prior to the decision . In addition , he stated that it had been made without knowledge of current domestic law which did allow a father to care for his child in prison .

ORG explained to ORG , inter alia , that it had considered it unnecessary to hear the applicant , since at the time he had been undergoing an examination of his mental state in a mental hospital .

On DATE ORG quashed ORG decision and referred the matter back for renewed consideration . The applicant 's stay in a mental hospital at the relevant time had not been a valid reason for not hearing him in accordance with section CARDINAL of LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . The court nonetheless rejected his request that the ORG should be ordered to pay his legal costs .

In a subsequent written submission to ORG the social welfare worker in the applicant 's prison testified to his exemplary conduct and strong attachment to his daughter . Meetings DATE would therefore not be contrary to her best interests . Supporting such meetings had been the practice in many similar cases involving a male prisoner and a child without a mother . The applicant 's ethnic background should not be allowed to influence the decisions concerning the access question .

On DATE The Children interviewed the applicant in prison in regard to the access question . The applicant was assisted by an interpreter . According to the report which ORG forwarded to ORG , the applicant had requested to see Y. in prison in the area designated for visits by family members . The applicant had accepted Y. 's public care , her foster parents and the fact that she would be accompanied by them during her visits . The applicant had indicated that he would be able to speak some NORP with her . He had denied certain allegations made by PERSON 's mother 's relatives but did not object to meeting them , if they so wished . At the end of the meeting PERSON had informed the applicant that he would receive copies of the relevant documents through his counsel . In her written cover letter to the ORG dated DATE The Children urged it to maintain the access prohibition until meetings became a natural matter of consideration in the course of ORG 's development .

Meanwhile , on DATE , the applicant had submitted his written views directly to ORG without the assistance of his counsel .

On DATE ORG upheld the access prohibition issued on DATE . The applicant appealed again , requesting that the prohibition either be quashed or that it be amended so as to end around the time when he was expected to be released on parole , i.e. in DATE .

In its decision of CARDINAL DATE ORG refused the applicant 's request for an oral hearing in the care order proceedings . It found that he had not been heard prior to ORG order of CARDINAL DATE . As ORG had referred its order to ORG for its review and the applicant had been able to appeal against the order and comment on the ORG 's submissions to that court , and in light of the evidence on file , there was no reason to quash ORG or the lower court 's decision due to the error in the hearing of the applicant . In its submissions ORG had maintained that domestic law did not allow a father to care for his child in prison .

On DATE ORG quashed ORG decision of CARDINAL DATE and referred the matter back for renewed consideration . It did not object to the access prohibition as such , considering that contacts between ORG and the applicant would obviously endanger Y. 's development . It had therefore also been necessary to conceal Y. 's whereabouts from the applicant . The court considered , however , that sufficient reasons had not been shown to justify that the prohibition should last until Y. would reach the age of twelve . It declined to pronounce itself in the first instance on the appropriate duration of the access prohibition and the secrecy order regarding ORG 's whereabouts . The applicant 's request that the ORG be ordered to pay his legal costs was rejected .

In an opinion of CARDINAL DATE PERSON , a senior physician specialising in child psychiatry , considered Y. 's best interests to warrant an access prohibition lasting at least until her twelfth birthday . PERSON , who gave his opinion in his capacity as Save The Children 's consulting child psychiatrist , stated in extenso as follows :

( translation from NORP )

“ I have studied Save The Children 's case file . On that basis , without having met the child or others involved in the matter , but having discussed it with the employee of ORG , I consider that the biological father 's request [ for meetings to take place ] is founded on various misunderstandings . He is of the view that the ORG 's way of proceeding violates both parties ' right to respect for their family life , and that the starting point in the decision - making should have been to re - establish [ that ] family on [ his ] release from prison . This , however , would be contrary to both law and morality . The morality of child welfare is based on the same principle as LAW , i.e. on the intention to ensure that the best interests of the child are respected , as opposed to the interests of the parents when [ the CARDINAL sets of interests ] are conflicting . It is clearly in the best interests of [ Y. ] that she can establish a normal and happy family [ life ] in [ her ] current foster family and that she may grow up to be a healthy adult . Meetings with her biological father are possible only in so far as they are not contrary to [ her ] best interests . When the law speaks of the child 's right to meet his or her parents , this refers precisely to a right belonging to the child , and not to a right of a parent to meet his or her child irrespective of the damage or danger which such meetings produce to the child .

ORG has proposed to fix at DATE the age when [ Y. ] and the applicant might begin to meet . ORG appears to base itself on the principle that a DATE child must be heard before a decision in a matter concerning him or her is taken . From the point of view of child psychiatry I consider that [ this ] age - limit should not be applied categorically . [ The age - limit ] does not signify that from then onwards the child will decide on his or her own in matters of this kind , but that the decisions are made after hearing the child . This means that the foster parents or ORG responsible for the child may arrive at a decision which is contrary to the opinion of the child , if they consider that this is in the child 's best interests . This is a very sensible approach , since a DATE can not be presumed to make absolutely sensible decisions . Ideally , [ Y. 's ] foster parents , who have the most evident and strongest emotional tie to [ her ] , should make all decisions concerning her , since they are best equipped to understand what [ she ] really wishes to do and what is in her best interests . [ Y. ] should be allowed to make decisions completely on her own only when has reached the age of majority , i.e. at DATE . This is also sensible from a psychological point of view : it is only when [ she ] will have reached DATE that her development will not be jeopardised by non - preferable relationships . I would also like to stress that the worst damage done to children nowadays stems from removing them from families to whom they have become attached and whose psychological members they are , with a view to arbitrarily placing them back for instance with their biological parents or parent , with whom the child has no relationship .

In my view [ the authorities ] should urgently proceed to having [ Y. ] adopted by the foster parents , if they consent to this . The fact that the child is not legally a member of the family to whom [ she ] belongs emotionally is damaging to the child .

From the point of view of child psychiatry it is therefore justified that meetings between [ Y. ] and the applicant are not organised until she turns CARDINAL and thereafter only if she clearly expresses a wish to meet him and provided that the adults who love her consider such meetings useful to her . The father should understand that a child is not an object which he can own , but a living human being , who is entitled to live his or her own life according to his or her own emotions . ”

PERSON opinion was not served on the applicant prior to the decision of ORG of PERSON of DATE , whereby the access prohibition was again maintained until DATE . The applicant appealed and requested an oral hearing . He objected , inter alia , to not having been heard in respect of Dr PERSON 's opinion and not knowing what precise material it had been based on . The applicant stated his wish to examine Dr PERSON as witness and stated that he might also call a witness of his own choosing .

On DATE ORG held an oral hearing at which PERSON was heard as witness . The applicant had not called any further witness .

In his further submissions of DATE to ORG the applicant stressed that he could not afford calling expert witnesses to counter PERSON views . He therefore adduced copies of documents from a case in which neither ORG nor the experts consulted had even suggested an access prohibition in respect of a child , whose NORP father had killed the mother . That child had not been placed in public care , being cared for by her maternal grandmother .

In its decision of CARDINAL DATE ORG rejected the applicant 's appeal . The court now found that the duration of the access prohibition , as maintained by ORG , was justified . The applicant received the decision on DATE . No further appeal lay open .

In DATE the Police of the Valkeakoski District proposed that the applicant be expelled to GPE on his release on parole , and banned from returning to GPE . The applicant opposed the proposals on the grounds that such a decision would sever his family ties to Y. , in violation of LAW .

On DATE ORG ( ulkomaalaisvirasto , utlänningsverket ) refused the applicant 's request for a further residence permit . On DATE it ordered his expulsion to GPE and banned him from re - entering GPE . The ORG noted that his only family tie to GPE consisted of Y. , whom he had been banned from meeting . Given the specific features of their family relationship , the heinous crime which the applicant had committed , thereby displaying his danger to others , the interference with his right to respect for his family life was justified under LAW . The re - entry ban could be reconsidered if , for instance , he later obtained a right to see LAW Under a NORP treaty this ban extends to the other LOC countries .

At a meeting between PERSON , the applicant and the foster parents on DATE the applicant was told that various experts had advised against enabling him to meet Y. even once before leaving GPE . Even observing her without her knowledge would have been contrary to her best interests . It transpired from the meeting that the foster parents would continue to forward to NORP the applicant 's letters and gifts as well as to keep him informed of her development .

In DATE the applicant was released on parole and left GPE . On DATE ORG upheld the expulsion order .

According to various opinions of DATE issued by the prison governor , prison psychologist and other staff , the applicant 's conduct in prison had been exemplary .

ORG ( oikeusauputoimisto , rättshjälpsbyrån ) of PERSON awarded the applicant legal aid both for the purposes of the domestic court proceedings and for bringing his application under the Convention . This award covered counsel 's fees but not the costs incurred .

B. Relevant domestic law

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 . 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 .

If an ordinary care order has been issued pursuant to section CARDINAL of LAW without the prior hearing of a party , the social welfare board shall forward it to ORG within DATE , unless the party in question could not be located with reasonable means or the child has no contact with that party , in which case a hearing would not be justified ( section DATE , subsection CARDINAL ) .

If a party appeals against an order issued under LAW , ORG shall also review it ( section DATE ) .

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 .

Further provisions governing child welfare measures are outlined in the ORG 's judgment of DATE in the case of PERSON GPE ( no . CARDINAL , CARDINAL , § § DATE ) .

According to the LAW on the Enforcement of Punishments ( rangaistusten täytäntöönpanosta annettu laki , lag om verkställighet av fängelsestraff CARDINAL ) , a prisoner may be allowed to care for his or her young child in prison , provided such care would be in the best interests of the child and the prisoner wishes to assume the care ( section CARDINAL , subsection CARDINAL , as added by Act no . CARDINAL ) . This provision replaced the former section CARDINAL which had only referred to mothers . Up to CARDINAL DATE section CARDINAL , subsection CARDINAL , of the Act on Pre - Trial Detention ( tutkintavankeudesta annettu laki , lag om rannsaknings - fängelse CARDINAL/CARDINAL ) , likewise applied only to mothers in detention , whereas the new subsection CARDINAL applies equally to detainees of both genders .

According to LAW ( lääninoikeuslaki , lag om länsrätterna DATE ) , as in force at the relevant time , the costs and economic losses incurred by an expert or other witness shall be reimbursed by the ORG , provided he or she was summoned by the court itself ( section DATE , as in force up to the entry into force of Act no . PERSON ) . According to the LAW on Cost - Free Proceedings ( laki maksuttomasta oikeudenkäynnistä , lag om DATE rättegång CARDINAL ) , the costs and losses incurred to a witness called by a party who has been granted cost - free proceedings shall be covered by the ORG ( section CARDINAL) . The said LAW excludes from its scope proceedings concerning , for instance , an access prohibition issued on the basis of LAW .


CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 3)

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant company is a limited liability company based in GPE .

The applicant company is the owner of the DATE newspaper ORG . In its issue of DATE , in the economics section , the applicant company published an article dealing with the investigation into losses incurred by ORG . The article reads as follows :

“ PERSON ’s Hypo now also facing criminal investigation

After ORG , the prosecution service is now also looking into allegations of embezzlement against ORG . PERSON has accused the judicial authorities of being overzealous and politically motivated .

GPE – Following the discovery of massive speculative losses from swap deals , the floodgates are threatening to open at LOC . On DATE the GPE public prosecutor ’s office initiated an investigation in respect of Hypo senior managers . Chief public prosecutor PERSON said that the investigation , concerning suspected embezzlement , had been launched by the prosecution service of its own motion and that it would take the findings of ORG audit into account .

Regional governor PERSON criticised the “ judicial authorities’ overzealousness ” and spoke of a “ politically motivated ploy to deflect attention away from the PERSON scandal ” . His deputy PERSON described the MONEY lost as a result of the speculation as a “ molehill that should not be made into a mountain ” .

PERSON , of ORG executive board , and PERSON , who represents Hypo ’s shareholders and also ( through ORG ) performs a supervisory function at the bank , had previously blamed the speculative losses of MONEY on an individual member of the bank ’s treasury department , PERSON , the son of a former ORG regional government member with responsibility for finance . In DATE PERSON was not dismissed but merely demoted and transferred , being relieved of his duties only after the incident of the losses had become known .

PERSON had been in charge of the treasury department , together with PERSON , in DATE . The department was , however , under PERSON ’s personal authority as chairman of the executive board . To relieve PERSON of his responsibilities as regards the treasury department , PERSON was brought in to join PERSON and PERSON on the Hypo board in DATE . At the same time , the PERCENT managing shareholder of ORG , PERSON , was promoted to become chairman of the Hypo supervisory board . PERSON ’s GPE subsidiary , ORG , audited Hypo ’s accounts . The DATE financial statements , in which the massive speculative losses were intended to be adjusted , were signed by the PERSON auditors PERSON and PERSON , the former of whom frequently crops up in circles close to PERSON . As the swap losses were evidently too large - scale for PERSON ’s GPE subsidiary to handle , the audit firm ORG was consulted and promptly informed ORG .

Meanwhile , Hypo ’s flotation , which surprisingly had recently been brought forward to DATE , is very much up in the air . How matters are to proceed will now probably be on the agenda of Hypo ’s shareholder meeting on DATE .

Against this background , PERSON interest in ORG also appears in a new light . In DATE Hypo submitted the last and the best bid , but suddenly withdrew its offer . Buying PERSON would have made sense because at the time it had MONEY in losses carried forward in its accounts , which would have allowed Hypo to save on capital - gains tax . It is possible that the acquisition failed to materialise because of the substantial losses from the botched swap transaction . ”

On DATE Mr Rauscher brought proceedings against the applicant company for disclosure of his identity in breach of section FAC of LAW ( Mediengesetz ) . He submitted that he was not a public figure and that his position in the bank had not been such as to justify the disclosure of his name . He asserted that when authorising the transactions at issue he had acted in accordance with his instructions and under the supervision of his superior ’s and the bank ’s risk management . The publication of his name had had negative repercussions on his professional advancement and had not been justified by any public interest .

In its submissions in reply , the applicant company contended that the article had not depicted the claimant as the person responsible for the losses but rather as the “ scapegoat ” . The public interest in the disclosure of his name outweighed his private interests since he had held a leading position in the bank and there was also a connection with the political sphere on account of his father ’s position as a former regional government member responsible for finance ( NORP ) . Moreover , the article had reported on the issue in a neutral manner .

By judgment of DATE ORG ( PERSON für PERSON ) dismissed Mr PERSON ’s action .

It noted that the claimant had been head of ORG treasury department which had incurred losses of FAC to MONEY ( ORG ) in DATE . It also noted that the article , which reported on the investigation into embezzlement by the public prosecutor ’s office and mentioned the claimant ’s full name as the person who was being blamed for these losses , contained the information that the claimant was suspected of a criminal offence .

ORG observed that section CARDINALa(CARDINAL ) of LAW required a weighing of the claimant ’s interest in the protection of his identity and the public interest in its disclosure .

It noted that the claimant , who had lost his job at ORG , was unemployed . The mentioning of his name in the context of the speculation scandal as being suspected of the criminal offence of embezzlement was certainly detrimental to his professional advancement within the meaning of section CARDINAL(CARDINAL)(CARDINAL ) of LAW . However , it had to be assumed that the claimant ’s former position and activity at LOC was known in banking and business circles even without the publication of his name in PERSON .

It remained to be examined whether there was an overriding public interest in the disclosure of the claimant ’s name . The court noted that it had heard the claimant as a witness and had DATE on the basis of his submissions – found that the following facts were established . MONEY of ORG was owned by ORG . DATE the bank had incurred losses of FAC to MONEY as a result of foreign currency speculations . The claimant had been the head of the bank ’s treasury department from DATE until DATE , when he had terminated his employment on his own initiative . In his capacity as head of the treasury he had had to authorise or refuse foreign currency transactions . The losses had thus been incurred under his responsibility . He had only been answerable to the bank ’s executive board , which consisted of CARDINAL members . The claimant ’s father had been a regional government member responsible for finance until DATE . While the claimant was head of the bank ’s treasury , his father had been on the bank ’s supervisory board .

ORG accepted that the claimant , although having been a senior employee of the bank , was not a public figure . Thus , he did not have “ a position in society ” within the meaning of section CARDINALa(CARDINAL ) of LAW , which would justify the publication of his name . Nor did the fact that his father had held such a position justify the disclosure of the claimant ’s name .

Nevertheless , ORG held that there was a connection between the claimant ’s professional activity and public life for the purposes of this provision : as the ORG owned PERCENT of the bank , the Land and consequently the taxpayer had to carry a considerable share of the losses . The claimant had been in a leading position , being responsible for the very department which had caused the losses . The public , or in other words , the taxpayer thus had an overriding interest in receiving information about the identity of those who were responsible for the enormous losses . Consequently , PERSON had been entitled to mention the claimant ’s name .

On DATE ORG ( Oberlandesgericht ) granted the claimant ’s appeal and ordered the applicant company to pay MONEY ( ORG ) in compensation to the claimant and to reimburse his procedural costs .

The Court of Appeal agreed with ORG that the claimant had been presented as someone suspected of embezzling a large sum of money . However , it found that ORG had wrongly weighed the conflicting interests at issue :

“ ORG finding that the public interest in the publication of the claimant ’s name outweighed his interest in the protection of his identity can not , however , be endorsed . The former must be assessed against an objective standard and , in particular , with reference to the identity of the person concerned ; for that reason the mere public interest in the reporting of a crime does not by itself suffice . In accordance with settled case - law , when assessing whether the identity of persons listed in section CARDINAL ) of LAW may be revealed , a strict standard must be applied , especially as the general public has , in principle , no legal right to know the identity of the persons concerned . ...

At the time the article was published , the investigation into the “ Hypo Alpe - Adria affair ” was still in the early stages . According to the claimant , no proceedings had yet been brought against him , and the subject matter of the article in question was only the rumours of accusations against him by CARDINAL senior bank officials . However , at this time there was no independent value in the disclosure of the claimant ’s name that would have outweighed the legitimate interest in protecting his anonymity . The claimant ’s name was clearly disclosed in order to make a connection with his father , the former regional government member responsible for finance , and by doing so create a “ story ” which would satisfy the public ’s curiosity and appetite for the sensational to a high degree . In practice , the disclosure of the claimant ’s name had no informative value whatsoever and so the weighing of interests must operate in favour of the claimant . ...

ORG is right in stating that the public has a very substantial interest in finding out who is responsible for these enormous losses . However , this does not justify the disclosure of the claimant ’s identity in a situation where the suspicions are so vague and uncertain . ...

Since the first - instance court found that the publication of the claimant ’s name had had considerable negative consequences for him , and taking into account the gravity of the accusation and the wide circulation of PERSON , compensation in the amount of ORG CARDINAL,CARDINAL seems to be appropriate . ... ”

Section CARDINAL of LAW , so far as material , provides as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts or

NORP is suspected of having committed , or has been convicted of , a punishable offence , and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . .... ”

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim ’s advancement .

On DATE ORG Recommendation Rec(CARDINAL)CARDINAL on the provision of information through the media in relation to criminal proceedings . The Appendix to that Recommendation contains the following principles :

“ Principle CARDINAL - Information of the public via the media

The public must be able to receive information about the activities of judicial authorities and police services through the media . Therefore , journalists must be able to freely report and comment on the functioning of the criminal justice system , subject only to the limitations provided for under the following principles .

Principle CARDINAL - Presumption of innocence

Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial . Accordingly , opinions and information relating to on - going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused .

Principle CARDINAL - Protection of privacy in the context of on - going criminal proceedings

The provision of information about suspects , accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with LAW . Particular protection should be given to parties who are minors or other vulnerable persons , as well as to victims , to witnesses and to the families of suspects , accused and convicted . In all cases , particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this LAW . ”


The applicant is a NORP national , born in DATE and living in PERSON .

A.

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

The applicant 's wife , born in DATE , had high blood pressure and suffered from a heart condition . On DATE her physician referred her to a hospital . Apparently on the same date , doctors PERSON hospital examined her , gave her drugs against high blood pressure and refused admission . Allegedly , CARDINAL of the physicians suggested that she should become his private patient .

On DATE she felt unwell and CARDINAL times called an ambulance from the ORG - run emergency service . In the TIME , during the first visit , she was given a prescription for certain drugs to reduce her high blood pressure . At TIME , during a second visit of the ambulance , a physician gave her an injection of the drug “ Dexaven ” . The applicant alleges that as a result of this injection her general condition worsened abruptly . The Government refute this allegation . The applicant insisted that she should be taken to a hospital , in particular in view of the referral of DATE , but this was refused . She was taken to the hospital in TIME DATE , where at TIME , TIME after her admission , she died of myocardial infarction .

The applicant requested that criminal proceedings be instituted concerning his wife 's death . On DATE the ORG requested the ORG to prepare an expert report concerning the causes of her death . The report was submitted on DATE .

On DATE the ORG discontinued the proceedings , finding that no criminal offence had been committed . The Prosecutor had regard to the expert report , prepared by CARDINAL experts : CARDINAL cardiologists and forensic medicine specialist .

The applicant appealed against this decision . He stated that the decision was ill - founded and that , in view of her serious condition , his wife should have been taken to hospital much earlier . He complained that the investigations had lasted unreasonably long . Lastly , he submitted that it was impossible that his wife could have become mortally ill in a very short period without there being medical negligence in the handling of her case .

On DATE ORG upheld the decision under appeal . He considered that the contested decision was lawful and that the lower prosecutor had duly taken into consideration the experts ' conclusions . In view of the fact that the applicant had alleged that experts from ORG would have lacked impartiality , ORG had requested that , in order to dispel any doubts as to the experts impartiality , the expert report be prepared by physicians from ORG . It was true that the report had been submitted to the Prosecutor only on DATE , but , having regard to the heavy case - load of forensic medicine experts throughout GPE , this delay could not be considered abnormal . The report had been prepared by CARDINAL experts - CARDINAL cardiologists and CARDINAL specialist in forensic medicine . The prosecutor stressed that there were no indications that there had been any personal relationship between the experts and the physicians who had given the medical treatment to the applicant 's wife .

The Prosecutor further had regard to the conclusions of the experts . They had established in their report that during the second visit of the emergency services , doctor PERSON had administered to the applicant ’s wife an injection of " PERSON " , but they had not found a causal link between this fact and a subsequent rapid deterioration of her general condition . They had emphasised that the applicant 's wife had received adequate medical care . She had died of myocardial infarction , which must have occurred after the second visit of the ambulance . It had been only during the third visit that she had symptoms of a dyspnoea ( difficulty in breathing ) , typical in cases of cardiac insufficiency , and the physician had taken the correct decision to take her to a hospital on that account . Given the sudden nature of myocardial infarction , it could have developed so quickly as to cause her death within a short time , without there being any medical negligence to contribute to it . The experts concluded that it could not be assessed with absolute certainty whether the applicant 's wife could have survived had she been taken to the hospital at the second visit of the ambulance .

Regard being had to the fact that the experts had found no indications of negligence in the handling of the applicant 's wife case , which involved a rapid myocardial infarction , the prosecutor decided that the lower prosecutor 's office had been correct in finding that the persons who had given the treatment to her had no case to answer .

B. Relevant domestic law and practice

The Chambers of Physicians’ Act of CARDINAL DATE established ORG as a professional organisation of physicians . Membership of the ORG is mandatory . Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the ORG , i.e. agents for disciplinary matters and disciplinary courts . Agents and members of the courts for each region are elected by members of a local chamber . The Chief Agent for ORG and ORG are elected by ORG , composed of delegates of local chambers .

Pursuant to LAW , the following penalties may be imposed in disciplinary proceedings : a warning , a reprimand , suspension of the right to practise medicine for a period from DATE and striking off the register of physicians .

The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on DATE .

Under this Order , the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed . While investigating such a complaint , the agent may question a physician charged with professional misconduct , may appoint experts and question witnesses , and take such other evidence as he or she sees fit . A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant .

If information existing at the time when investigations are instituted , or gathered in the course of an investigation , is sufficient to charge a physician with professional misconduct , an agent shall draw up a motion to the court for a disciplinary penalty to be imposed , containing a detailed description of an alleged offence and written grounds .

Pursuant to LAW , the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed .

A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters . A further refusal of the Chief Agent may be appealed against to ORG .

Under LAW , if the court , having received a motion for a penalty to be imposed , decides that the case is ready for examination at a hearing , it orders that a hearing be held . A physician is summoned to a hearing , whereas his defence counsel and the agent are informed of its date .

Under LAW , in disciplinary proceedings the complainant is entitled to : submit a request for evidence to be taken , lodge with the disciplinary court an appeal against the agent 's decision to discontinue the proceedings , and lodge an appeal against a decision of a first - instance court on the merits , but only on the question of responsibility . The complainant is entitled to have access to the case - file , but the agent can limit this access to documents , which are not covered by medical secrecy .

Pursuant to LAW , the proceedings before the court are public for members of ORG .

Under LAW of LAW Civil Code , the ORG is liable for damage caused by its agents in the exercise of their functions . There is established case - law of the NORP courts to the effect that this liability of the ORG includes also liability for damage caused by medical treatment in a public system of medical care , run either by the ORG or by the municipalities .