Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

On DATE a person was stopped for questioning in connection with an offence against the General PERSON ( PERSON ) of GPE . He had no proof of his identity on his person .

NORP The police officer identified the person as the applicant from a police photograph . The applicant was fined MONEY ( ORG ) for not being able to show proof of identity . The fine was not paid , and the applicant was summoned to appear before ORG judge ( kantonrechter ) of GPE to answer a charge of failing to present an official identity document ( see paragraph CARDINAL below ) .

On DATE the applicant appeared before ORG judge . He claimed to be innocent , suggesting that the culprit might have been his brother . He stated that he had been acquitted of similar charges several times before . ORG judge then adjourned the hearing in order to enable the reporting police officer and the applicant to check an identity photograph together . The applicant gave a mobile telephone number so that an appointment could be made .

On DATE instructions were sent on the public prosecutor 's behalf to the police for the applicant to be shown the police identity photograph , a new official record to be made and a photograph of the applicant and if possible his brother also to be attached thereto .

On DATE a police officer drew up an official record of his various attempts to contact the applicant by telephone ; he had been met with a recording of the voice of a man asking callers not to leave any messages because he had insufficient prepaid credit to listen to them and call back . The Government state that the police officer who had first identified the applicant ( paragraph CARDINAL above ) wished to persist in his statement that he had recognised the accused as the applicant from the photograph in the possession of the police . Clear police photographs of the applicant and his brother , which the Government state show that there was little resemblance between them , were dispatched in addition .

The hearing was resumed on DATE at TIME . The applicant had been summoned in writing but failed to turn up in time to take part . ORG judge then tried him in absentia , convicted him and sentenced him to a fine of ORG DATE one day 's detention in lieu . Judgment was given orally . The official record of delivery reads as follows :

“ OFFICIAL RECORD OF DELIVERY OF ORAL JUDGMENT ( AANTEKENING MONDELING VONNIS )

Judgment given by ORG judge C. on DATE in the case against the accused

Name : PERSON

First names : PERSON

Born on : CARDINAL DATE in GPE ( GPE )

Address : [ etc . ]

Place of residence : Delft

Defended case , [ accused ] failed to turn up after adjournment

QUALIFICATION :

Minor offence defined in LAW ) , section CARDINAL of LAW ( Wet op de identificatieplicht )

COMMITTED :

on DATE

DECISION :

Fine of EUR DATE or DATE detention in lieu

The judge states that for lodging an appeal this case is subject to a special procedure , the so - called leave - to - appeal system .

( signed ) ORG judge ”

NORP The applicant lodged an appeal the same day by filling in a form at the registry . He stated his reasons for wishing to appeal as follows :

“ I did not attend the hearing because :

I was mistaken about the time . I thought it was at TIME ...

I would have wished to put forward the following :

I am not the person who committed the offences . I have been acquitted CARDINAL or CARDINAL times already because someone else is misusing my identity . ”

On DATE a single - judge chamber of ORG ( gerechtshof ) of GPE sitting as President gave a decision refusing the applicant leave to appeal . It contains the following reasoning :

“ In view of the case file , which includes an extract from the criminal register ( justitiële documentatie ) , the President does not consider plausible the applicant 's statement that his identity details are systematically misused by someone else and that he has been acquitted by the courts several times already because of that .

The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal . ”

The judgment of ORG judge thus became final .

The extract from the criminal register as contained in the case file of the single - judge chamber of ORG shows that the applicant has been convicted of crimes from his early adulthood until recently . He has also submitted authentic copies of official records of oral delivery of recent summary judgments of ORG . These are dated DATE , DATE , DATE , CARDINAL DATE and DATE . They give no details of the cases other than that they ended in acquittals .

In its relevant part , Article PERSON of LAW provides as follows :

“ CARDINAL . If an appeal is possible and has been lodged against a judgment concerning CARDINAL or more minor offences ( overtredingen ) or indictable offences ( misdrijven ) which , according to the statutory description , carry a sentence of imprisonment not exceeding DATE , and no other sentence or measure has been imposed than a fine not exceeding DATE or , if CARDINAL or more fines have been imposed in a single judgment , not exceeding a combined maximum DATE of ORG CARDINAL , the appeal lodged shall only be heard and considered if , in the considered opinion of the President , such is required in the interests of the proper administration of justice . ... ”

This provision entered into force on DATE .

Section CARDINAL of LAW ( Wet op de identificatieplicht ) requires every person aged DATE or over to present an official identity document to a police officer upon first demand . LAW ) makes failure to do so a minor offence punishable by a second - category fine ( i.e. not exceeding , at the relevant time , ORG CARDINAL,CARDINAL ) .

Section CARDINAL of ORG ) Ordinance provides as follows :

“ In relation to minor offences , the following shall be information for the record :

a. the information mentioned in sections CARDINAL and GPE ) of cases in which the public prosecution service has taken a decision to settle the case , with the exception of a decision to hand out a penal order ( strafbeschikking ) in which only a fine is imposed to an amount of less than ORG CARDINAL and a decision not to pursue the prosecution , unless the latter decision is made subject to conditions ;

b. the information mentioned in sections CARDINAL and GPE ) of cases in which a court has given a decision , whether final or not , in so far as a penal community service order ( taakstraf ) or a custodial sentence other than in lieu of a sentence of another kind ( vrijheidsstraf anders PERSON vervangende ) has been imposed , or a fine of at least EUR CARDINAL , and in those cases in which an additional penal measure ( bijkomende straf ) has been imposed . ”

Section CARDINAL of the ordinance sets out the information identifying the convicted person that is to be recorded ; section CARDINAL(CARDINAL ) sets out the information required to record the criminal act concerned , the decision of the public prosecution service or the court as the case may be and the execution of the sentence or other penal measure .

Article CARDINAL of LAW , in its relevant part , provides as follows :

“ CARDINAL . Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law . ”

On DATE ORG of ORG adopted Views under LAW of LAW to LAW . CARDINAL/CARDINAL ( PERSON Henricus Mennen v. The GPE ) . These Views included the following ( footnote references omitted ) :

“ Consideration of the merits

CARDINAL ORG has considered the present communication in the light of all the information made available to it , as provided under article CARDINAL , paragraph CARDINAL , of the Optional Protocol .

CARDINAL NORP As to the author 's claim that he has not been able to exercise his right to appeal under article CARDINAL , paragraph CARDINAL , in an effective and meaningful way , since he did not have access to a duly reasoned , written judgment of the trial court and to other documents such as trial transcripts , the ORG notes that the ORG party confirmed that in the present case no such document had been produced . The ORG notes ORG submission that the author 's counsel was provided with a number of official police reports on the case prior to his application for leave to appeal , without specifying their content and relevance to the verdict . ORG , however , observes that these reports could not have provided guidance as to the motivation of the first instance court in convicting the author of a criminal offence , nor indication on what particular evidence the court had relied . The ORG recalls its established practice that in appellate proceedings guarantees of a fair trial are to be observed , including the right to have adequate facilities for the preparation of his defence . In the circumstances of the instant case , the ORG does not consider that the reports provided , in the absence of a motivated judgment , a trial transcript or even a list of the evidence used , constituted adequate facilities for the preparation of the author 's defence .

CARDINAL The ORG further notes that , according to ORG , the President of ORG denied leave to appeal with the motivation that a hearing of the appeal was not in the interests of the proper administration of justice and that counsel 's contentions were not supported in law . ORG considers this motivation inadequate and insufficient in order to satisfy the conditions of article CARDINAL , paragraph CARDINAL , of the LAW , which require a review by a higher tribunal of the conviction and the sentence . Such review , in the frame of a decision regarding a leave to appeal , must be examined on its merits , taking into consideration on the one hand the evidence presented before the first instance judge , and on the other hand the conduct of the trial on the basis of the legal provisions applicable to the case in question .

CARDINAL Accordingly , in these specific circumstances , the ORG finds that the right to appeal of the author under article CARDINAL , paragraph CARDINAL , of the LAW has been violated , due to failure of ORG to provide adequate facilities for the preparation of his defence and conditions for a genuine review of his case by a higher tribunal .

ORG , acting under article CARDINAL , paragraph CARDINAL , of LAW to LAW , is of the view that the facts before it reveal violation of article DATE , paragraph CARDINAL , of the LAW . ”


Violation of Art. 6-2;Costs and expenses partial award - Convention Proceedings

On DATE the NORP police were informed via ORG that on DATE in PERSON ( GPE , GPE ) E.P. , a NORP citizen , and GPE , an NORP citizen , had been killed and that the applicant , who at that time lived in GPE , was suspected of having killed and robbed them . A warrant of arrest was issued against the applicant in GPE .

On DATE the applicant , who in the meantime had returned to GPE , was arrested and on DATE was remanded in custody . The applicant remained on remand until DATE . This period was interrupted from CARDINAL May to DATE and from DATE to CARDINAL DATE whilst the applicant served prison sentences imposed in respect of previous convictions .

Meanwhile the trial against the applicant took place before the PERSON of the Innsbruck ORG sitting with a jury . On DATE the jury acquitted the applicant , but the bench of ORG set aside the jury ’s verdict as erroneous . A new trial against the applicant and CARDINAL co - accused was held before ORG of ORG .

On DATE ORG again acquitted the applicant . The jury answered the question as to murder and the question as to aggravated robbery with CARDINAL votes of “ no ” and CARDINAL votes of “ yes ” . According to the record of the jury ’s deliberations , the majority of its members found the applicant not guilty as there had been discrepancies between the statements of the witnesses ( “ Widersprüche in den LOC ) .

On DATE the ORG sitting with a single judge heard the applicant in private on his claim for compensation in respect of his detention on remand . The applicant , assisted by counsel , argued that the proceedings under LAW ( Strafrechtliches Entschädigungsgesetz ) infringed the presumption of innocence guaranteed by LAW . He referred to the GPE v. GPE judgment of ORG DATE , Series A no.CARDINAL-A ) . The applicant also presented fresh evidence which , in his opinion , could entirely dissipate the suspicion still subsisting against him .

On DATE a chamber of ORG , composed of CARDINAL judges , dismissed the applicant ’s compensation claim . ORG found that a right to compensation in the applicant ’s case would require that the suspicion against him had been entirely dissipated . According to the records of the jury ’s deliberations , a majority of the members had found the applicant not guilty on the grounds that there had been discrepancies between the statements of witnesses . The applicant was not acquitted because his innocence had been proven , but because he had been given the benefit of the doubt . Thus , the suspicion against the applicant had not been dissipated . As regards the applicant ’s request for the taking of evidence , ORG found that it was prevented from examining further evidence . It referred in this respect to ORG case - law following the PERSON judgement , according to which a fresh examination of the question of guilt in compensation proceedings following a final acquittal would be in breach of LAW .

On DATE the applicant appealed against this decision . He submitted , inter alia , that ORG had re - examined ORG acquittal . However , it was no longer acceptable to rely on suspicions once an acquittal had become final .

On DATE ORG , sitting in camera , dismissed the applicant ’s appeal . It found that a suspicion of having committed a criminal offence is only dissipated if either the claimant ’s innocence has been proven , or if all arguments supporting the suspicion against him have been refuted . The right to compensation demands that innocence be established . However , this requirement was not met in the applicant ’s case . Referring to ORG decision , ORG found that the records of the jury ’s deliberations clearly expressed the opinion of the members of the jury . In their mind various circumstances spoke against the applicant , but it had not been possible to convict him because of discrepancies between the statements of witnesses .

ORG concluded that , according to the PERSON judgment of ORG , a fresh examination of the question of guilt in the compensation proceedings following a final acquittal would have been in breach of LAW , but not the refusal of compensation itself . ORG had not re - examined the question of the applicant ’s guilt , rather it had referred to the reasons for which the majority of the jury had voted “ not guilty ” , and had concluded that the suspicion against the applicant had not been dissipated .

The relevant provisions of LAW ( Strafrechtliches Entschädigungsgesetz ) read as follows :

“ ( CARDINAL ) A right to compensation arises : ...

( b ) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in GPE ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ; ... ”

“ ... ( CARDINAL ) A court which acquits a person or otherwise frees him from prosecution ... ( section CARDINAL ( CARDINAL ) ( b ) or ( c ) ) must decide either of its own motion or at the request of the individual in question or the public prosecutor ’s office whether the conditions of compensation under section CARDINAL ( CARDINAL ) ( b ) or ( c ) , ( CARDINAL ) and ( CARDINAL ) have been satisfied or whether there is a ground for refusal under section CARDINAL ... If the investigating judge decides to discontinue the proceedings , ORG concerned shall rule .

( CARDINAL ) NORP Before ruling , the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ...

( CARDINAL ) Once the judgment rendered in the criminal proceedings has become final , the decision , which need not be made public , must , as part of the proceedings provided for in paragraph CARDINAL , be served on the detained or convicted person personally and on the public prosecutor ...

( CARDINAL ) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within DATE .

( CARDINAL ) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision . If the court which has to rule is the court of first instance , the investigations shall be carried out by the investigating judge .

( CARDINAL ) Once the decision has become final , it is binding on the courts in subsequent proceedings . ”

As a general rule , there is no public hearing in ORG . ORG rules after sitting in private .

NORP In its judgment of DATE ( VfSlg CARDINAL ) ORG dismissed the application filed by ORG to have LAW b ) of LAW annulled as being unconstitutional . It found that section CARDINAL ( CARDINAL ) ( b ) as such did not violate LAW which , under NORP law , has the force of constitutional law . In the light of the GPE v. GPE case ( judgment of DATE , Series A no . CARDINAL-A ) , it held that it was not the refusal of a claim for compensation which was contrary to the Convention , but the re - examination of the question of guilt after a final acquittal . In ORG view only the separate re - assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence . Nevertheless , ORG observed that it would be desirable to amend LAW ( b ) of the DATE Act in order to clarify the law .


Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in DATE and lives in GPE .

On DATE the applicant met with PERSON . , who tried to bribe him . When the applicant refused to take the bribe , PERSON . threw a package of money into his car and retreated . Following this , strangers in plain clothes ( who later turned out to be police officers ) got into the applicant ’s car and without any introduction started wrenching his arms behind his back . CARDINAL of the officers sat behind the applicant and started strangling him . CARDINAL others punched the applicant in the lower back . Then the applicant was handcuffed . CARDINAL of the officers stretched the applicant out , hooked his finger in the applicant ’s mouth and started pulling on his cheek . In acute pain , the applicant bit the officer ’s finger . The officer concerned punched the applicant CARDINAL times in the head , while another officer punched the applicant in the jaw . Then they pulled the applicant out of his car , threw him to the ground and started kicking him in the kidney area . This scene was witnessed by the applicant ’s wife .

NORP The police officers placed the applicant in the car with his cuffed hands between his legs and his head on the seat of the car . The officer who had been bitten by the applicant covered the applicant ’s head with the hood of his jacket and sat on it . The applicant started suffocating and lost consciousness .

The applicant was then taken to ORG , where the investigator explained to him that he had been arrested for taking a bribe . The investigator suggested to the applicant that they might “ come to an agreement ” and ignored his complaints of violence on the part of the police officers . The applicant also complained of an acute headache and dizziness during the questioning , which lasted for TIME . Then the applicant was taken to the prosecutor ’s office , where the prosecutors questioned him about the events of DATE . Following this , the applicant was released under a written undertaking not to abscond .

On DATE the applicant was apprehended by the police in the street and taken to ORG for questioning on suspicion of swindling and instigation to bribery . The same day the applicant gave a written obligation not to abscond .

At TIME on DATE the applicant complained to ORG of having been ill - treated by police officers during his arrest . He received a hospital referral for a medical examination . The police also questioned CARDINAL eyewitnesses and CARDINAL testifying witness , who had been present at the time of the applicant ’s arrest .

On DATE the applicant underwent a medical examination . According to the certificate of ORG No . CARDINAL of DATE , the applicant ’s injuries included the following : closed head trauma , bruises , brain injury , and soft tissue injuries to the chest and lower back . These injuries were classified as being of “ medium severity ” .

On DATE criminal proceedings were instituted against the applicant for swindling and instigation to bribery . These proceedings were terminated on DATE for lack of proof .

On DATE the applicant lodged a complaint with ORG against the police officers who had ill - treated him .

DATE the applicant underwent in - patient treatment and DATE he also received out - patient treatment for his injuries .

On DATE ORG received the applicant ’s above - mentioned complaint .

On DATE ORG received the complaint .

On DATE ORG refused to institute criminal proceedings for lack of corpus delicti in the actions of the police officers . The decision mentioned that CARDINAL police officers , who had arrested the applicant , had been questioned and had testified that during the arrest the applicant had behaved violently , shouted at them and then fallen on the ground where he had started hitting himself against the ground in an attempt to cause himself bodily injuries . It further indicated that there were testimonies of other witnesses to the incident . It lastly mentioned that the applicant was in hospital , but that this could be considered an attempt to avoid liability for the crime he had committed .

On DATE ORG for ORG drew up an expert opinion on the applicant ’s injuries . The opinion noted that the injuries had been caused by hard objects and could have been caused in the circumstances described by the applicant .

On DATE , upon a complaint by the applicant , ORG quashed the decision of DATE on the ground that the applicant ’s allegations had not been verified in full . It referred the case to ORG for further inquiries .

On DATE ORG received the applicant ’s criminal complaint , together with a copy of the expert opinion of DATE .

On DATE ORG refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions . The reasoning of the decision was similar to that of DATE .

On DATE ORG instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant .

On DATE the criminal proceedings were transferred to PERSON , which had territorial jurisdiction . The police investigator questioned the applicant , his wife and son and the police officers who had arrested the applicant . According to the Government , the investigator held confrontations between the applicant and the police officers . According to the applicant , the confrontations were ordered but not conducted .

On DATE ORG for ORG drew up an expert opinion classifying the applicant ’s injuries as being of medium severity .

According to the Government , on DATE the investigator conducted an on - site reconstruction of events with the applicant ’s participation . According to the applicant , he did not participate in the reconstruction .

On DATE the criminal proceedings were suspended due to the failure to establish a perpetrator .

On DATE , upon a complaint by the applicant , ORG quashed the decision of CARDINAL DATE and remitted the case to ORG for further investigation .

On DATE the criminal proceedings were resumed . The investigator conducted an on - site reconstruction of events with all those involved in the incident . The investigator also seized all the medical documentation concerning the applicant ’s treatment after the accident .

On DATE the investigator ordered a comprehensive medical report to be drawn up by ORG for ORG .

On DATE the case was referred to ORG , as ORG could not provide comprehensive answers to the investigator ’s questions and the applicant had expressed a lack of confidence in the specialists of ORG .

On DATE , at the applicant ’s request , the case was transferred to ORG , as the waiting time for an expert examination in ORG exceeded DATE .

On DATE ORG issued its opinion , in which it concluded that the applicant had only sustained some of the injuries indicated in the previous report and that those injuries should be classified as minor bodily injuries , which could have been inflicted under the circumstances described by the applicant or by himself . As to the other injuries , the experts questioned them as having been diagnosed on the basis of subjective factors not confirmed by objective information .

On DATE the investigator terminated the criminal proceedings for lack of proof of a crime . The decision mentioned for the first time the testimonies of the applicant ’s wife and son , who had confirmed his version of events . The investigator further mentioned that , in the light of the forensic expert opinion of DATE , the applicant ’s injuries should be classified as minor and therefore the criminal proceedings concerning infliction of injuries of medium severity on the applicant should be terminated .

The applicant challenged that decision before the prosecutor and the court .

On DATE the Kharkiv ORG quashed the decision of CARDINAL DATE on the ground that it had been premature and the investigator had not taken all the actions necessary for a gave a number of instructions to the police investigator .

On DATE ORG decided to change the jurisdiction in the case and transfer it for further investigation from the police to the prosecution service . The case was accordingly handed over to ORG . The proceedings are pending .

By letter of DATE , PERSON informed the applicant that the examination of his appeal against the investigator ’s decision of CARDINAL DATE was scheduled for DATE .

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


Violation of Art. 8;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the S. Welfare Centre ( NORP za socijalni rad S. , “ FAC ) instituted proceedings before ORG ( PERSON ) with a view to divesting the applicant of her capacity to act ( to perform acts with legal effect ; poslovna sposobnost ) . On DATE the ORG temporarily appointed the applicant ’s mother as her guardian so that she could represent her daughter in the above proceedings . The ORG based its request on the notice from ORG of DATE in which it was stated that the applicant was suffering from schizophrenia . The relevant part of the notice read as follows :

“ [ The applicant ] has been recurrently treated at ORG , on the last occasion from DATE , and diagnosed [ as suffering from ] schizophrenia ( depressive disorder ) , after a suicide attempt .

During the last few treatments [ at the hospital ] the patient had left the hospital of her own will . While being in a phase of exacerbation she returned [ to the hospital ] on several occasions , after swallowing a large quantity of pills . We are aware that the patient has had problems with her mother and also that she is occasionally inclined to take drugs . As regards the main disease ( sch[izophrenia ] ) , we have not observed productive psychotic symptoms for DATE , but her behaviour and functioning has lately been compromised with so called deficiency symptoms which impede a more structured therapeutic process to a significant degree . We consider that the above indicates the need to deprive the patient of her capacity to act ... ”

On DATE the applicant was heard by ORG judge for the first time . The transcript of her statement reads as follows :

“ The [ applicant ] says that her problems started when she went to GPE where she felt lost and begun to consume pot [ meaning marijuana ] . Since then she ’s been suffering from hallucinations which at that time seemed tolerable to her . After DATE , in DATE , she returned to GPE where she started her treatment . She is presently receiving therapy . Her latest hospitalisation was in DATE . She is presently receiving ORG and GPE . She sells environmentally - friendly carrier bags . She neither wishes to be placed under guardianship nor does she wish to have her mother as her guardian , for private reasons . She is presently DATE pregnant and ever since she learned of this she has not taken any drugs . Most lately she has been taking pot but no heavy drugs . She is planning to terminate the pregnancy . She does not feel good on GPE , she feels depressed and in particular it bothers her at work . She has finished elementary school but has never been employed . She went to GPE when she was DATE with a group of people . She now lives in a flat owned by her mother . She lives alone since her mother lives with her new husband . However , her mother is paying the bills and the rest she earns herself . It is true that she attempted suicide by [ swallowing ] pills , most recently in DATE . She is aware that she has been diagnosed with paranoid schizophrenia . ”

In view of the opinion given by the medical expert and the fact that the applicant was undergoing psychiatric treatment , the court stayed the proceedings .

On DATE the applicant gave birth to a daughter , A.

NORP In his letter to ORG , a psychiatrist of ORG stated as follows :

“ ... we consider it necessary that the proceedings for divesting the patient of her capacity to act be resumed because her behavioural disorder has become exacerbated lately owing to her uncontrolled intake of psychoactive substances by which she has endangered her own safety and in particular the safety of her child . ”

On an unspecified date in DATE the court resumed the proceedings and on DATE paid a visit to the applicant ’s home , in the presence of the applicant and her mother as her guardian , a judge conducting the proceedings and her secretary , a representative of the ORG and a psychiatrist . The relevant parts of the report of the visit read as follows :

“ The [ applicant ] in the company of her mother and child is met at the LOC . The representative of the LOC states that a decision to place the child in foster care was issued and that the [ applicant ] ’s mother was appointed as carer . The [ applicant ] states that she agrees to that as well as to being placed under guardianship in the best interests of her child since she is aware that she is unable to care for the child or for herself . However , she asks whether she can apply to have her capacity to act restored if her condition improves . In the meantime she has twice been admitted to hospital but does not see any results and does not know what to do with herself . From time to time she says that she might go back to GPE to earn some money . It is true that she has been taking drugs , though rarely and only pot and also larger quantities of GPE together with the prescribed therapy . In fact , she is not working , she is mostly at home caring for the child . Only after being asked by her mother and the representative of the ORG does she admit that she is still receiving company at home and that she gave some kitchen cupboards to ORG because she did not like them ( the mother says that she sold them ) . The father of the child , living in the same building , occasionally visits her and the child , but she has no committed relationship although DATE she terminated another pregnancy . Although she expresses a wish to do any job , she admits that so far she has taken no steps to that end . ”

The court also ordered a psychiatric assessment of the applicant ’s mental condition . The assessment was carried out by the psychiatrist present at the visit to the applicant ’s home . The conclusion of the report drawn up on DATE read as follows :

“ ... The patient suffers from a chronic mental illness with progressive tendency .

Addiction to opiates has also been fixed and motivation for abstention is weak . Prognosis quoad sanationem is exceptionally unfavourable .

The patient is unable to protect herself or her rights and interest and might endanger the rights and interests of others .

I propose that she be entirely divested of the capacity to act . ”

On DATE ORG divested the applicant of the capacity to act . The operative part of this decision reads as follows :

“ X ... is entirely divested of her capacity to act . ”

In its reasoning ORG summarised the findings of the applicant ’s psychiatric assessment and concluded as follows :

“ ... this court has established without doubt that the [ applicant ] , owing to her mental illness and addiction to opiates , is not able to care for her personal needs , rights and interest , and therefore also endangers the rights and interests of others . Accordingly , she has to be entirely divested of her capacity to act under section CARDINAL of LAW . ”

The applicant did not appeal against that decision , and it became final on DATE . An ex lege consequence was that the applicant was also deprived of her parental rights although the decision to divest the applicant of her capacity to act did not state it expressly . The court appointed her mother as her guardian . Following a request made by the applicant ’s mother , on DATE the applicant was placed under the guardianship of GPE , an employee at the LOC .

On DATE the applicant applied to ORG in order to have her capacity to act restored . On DATE the court asked ORG to make an assessment of the applicant ’s mental condition . The relevant parts of the report drawn up by a different psychiatrist on DATE read as follows :

“ ... Psychiatric expertise in this case commenced in DATE when the patient answered the ORG ’s invitation . However , during the first interview she showed transparent psychosis with delusional elements and disjointed breathless speech , and when an attempt was made to carry out a urine test for psychoactive substances the patient did not appear at the interview scheduled for DATE . ...

The second interview was held on DATE at the time of her hospitalisation in ORG , unrelated to these proceedings , and being the result of the evident exacerbation and bad condition of the main illness . The patient was hospitalised on DATE . During the present interview , despite the therapy administered , just the same as during the interview held in DATE , she manifests florid psychosis with all elements of schizophrenic psychosis . Paranoid manic ideas , relational delusions as well as delusions of persecution and bizarre manic ideas are dominant . Her interpretation of reality , of herself and others is completely distorted . [ The patient ] represents a typical phenomenon of derealisation and depersonalisation . Her emotions are engaged only with regard to her manic perception ; otherwise she is emotionally cold and aloof . Emotional resonance is lacking during the interview . Her overall behaviour has a manic quality . There is no doubt that her everyday functioning is also determined by the above - described psychopathological perception . ...

In my opinion the problems associated with the intake of addictive substances , those being cannabis , are at the time being of secondary importance . She took other psychoactive substances only experimentally and occasionally and her psychotic picture , clinically manifested for a long time , can not be associated with it . However , it is clear that her previous intake of cannabis had a role in forming her behaviour , possibly even in inducing her psychotic behaviour and her overall clinical picture .

In comparison to the previous psychiatric assessments , her psychopathology , that is to say her clinical picture of schizophrenic psychosis became more pronounced , delusions are now barely susceptible to any corrections , dislocation of the thought process is noticeable , emotional coldness and aloofness , loss of the reality test , utmost lack of critical insight towards herself . Owing to her psychopathological drives she is aggressive , hostile and paranoid towards others .

In these circumstances I consider that the conditions for restoring the capacity to act to X do not exist . On the contrary , the psychopathological reasons which led to her being divested of the capacity to act are now even more conspicuous and more numerous . Owing to her mental disturbances ( schizophrenia ) the patient is still not able to look after her personal needs , rights and interests and moreover she is endangering the rights and interests of others . Therefore , I propose that the court maintain [ its decision ] that she be entirely divested of the capacity to act and placed under guardianship .

At the hearing on DATE , the applicant objected to the above assessment and requested a new one . The second psychiatric assessment carried out by ORG of ORG supported the first one . The relevant parts of the report drawn up by a psychiatrist , PERSON , on DATE read as follows :

Mental status : conscious , uncertain about time , well oriented in space , auto and allopsychic orientation preserved . Contact is easily established , she answers questions without latency . Psychomotorically tense , worried about the outcome of the proceedings . Affected behaviour . Basic disposition slightly uneasy . Emotionally distant . Thought flow regular in its form , in content [ includes ] description of previous manic experiences and sensory delusions , currently without florid psychopathological deviations . [ She ] denies delusions and none are perceived . Her intellectual and mnestic capacities are devoid of strong deviations . Her will - instinct dynamism is preserved . She is neither aggressive nor suicidal .

Opinion

The patient ... has been suffering for DATE from chronic mental illness , schizophrenic psychosis . In addition , as is commonly found with such an illness , she is also an addict , she has been consuming various opiates and even DATE her abstinence can not be established with certainty . She has been hospitalised on CARDINAL occasions . The [ medical ] documentation and the information obtained from the patient both show that there was no single period of systematic clinical monitoring after her release from hospital or a sustained period of social functioning . Therefore , we can fully agree with the above assessment of our colleagues who gave their opinion of the patient ’s mental health and agree that it is good for her not to have her capacity to act restored .

There has been no improvement of her clinical picture or her social functioning in relation to the opinion expressed at the latest assessment , which is understandable given the nature of her disorder , i.e. chronic mental illness .

Conclusion

[ The applicant ] is suffering form schizophrenic psychosis of paranoid disposition and in addition is still consuming opiates , which altogether indicates that the disorder , which is in any case chronic , has also been progressing and renders X incapable of taking care of her interests , rights and responsibilities , so that there is no ground for restoring her capacity to act , of which she has been divested since DATE . ”

On DATE the court , relying on the above psychiatric assessment , refused the applicant ’s request to restore her capacity to act . The applicant did not appeal against that decision .

In a decision of CARDINAL DATE the ORG placed the applicant ’s child in foster care , relying on section CARDINAL(CARDINAL ) of the DATE LAW , and also appointed the applicant ’s mother as a carer . The relevant operative parts of the decision read as follows :

“ CARDINAL . A. ( personal data of the child ) has the right to foster care outside her own family – placement in the foster family of [ maternal grandmother ] ... , beginning from DATE .

Contacts between the child A. with her mother X shall be arranged in consultation with the foster carer and with her father NORP every DATE and DATE from TIME and every DATE from CARDINAL . p.m. to CARDINAL . p.m.

The relevant part of the reasoning reads as follows :

“ ... The following has been established in these proceedings :

The child A. is registered with this ORG as having parents of asocial behaviour . She was born out of wedlock . Her mother X , born on DATE is chronically ill , under treatment for mental problems and addiction . In DATE proceedings with a view to divesting her of the capacity to act were instituted and her mother , [ the child ’s maternal grandmother ] , was appointed her temporary guardian . The proceedings are still pending .

The father ( his personal data ) is a minor who has left school and is unemployed and a drug addict ...

The quality of the GPE relationship has significantly deteriorated lately , including frequent verbal and physical conflicts requiring police intervention . The parents have neglected the child .

On DATE the expert panel of this ORG decided to allow placement of the child A. in the foster family of ... , maternal grandmother , who has helped [ the parents ] both by providing care for the child and financially .

Contacts [ between the child and her parents ] are [ to be ] arranged according to the agreement between the parents and the foster carer . ”

In a decision of CARDINAL DATE the ORG deprived the applicant of the right to live with her daughter , ordering that she be placed in ORG , in the care of CARDINAL of their employees , ORG The contacts between the child and her parents were to be arranged with the custodian and according to ORG the above institution . The relevant part of the decision reads as follows :

“ The proceedings have been instituted by ORG its own motion .

The interviews with the child ’s mother , X , and maternal grandmother , ... , as well as an on - the - spot inspection and the relevant documents show the following facts :

The S. Welfare Centre ’s decision ... of DATE ordered placement of the child A. under the foster care of her maternal grandmother ... since the child ’s parents had been assessed as persons who , owing to their asocial behaviour and consumption of opiates , were not capable of caring for the child . In respect of the child ’s mother , X , proceedings with a view to divesting her of the capacity to act were instituted owing to her mental problems and problems with addiction . She was divested of her capacity to act in a final judgment ( no . ... ) of DATE on the ground that , owing to her disturbed mental state ( schizophrenia ) and addiction to opiates , she had been incapable of caring for her personal needs , rights and interests and was endangering the rights and interests of others ...

Supervision of the child ’s family circumstances , however , revealed that the child , although placed in her grandmother ’s foster care , had continued to live in the same household with her mother , who had interfered with her upbringing and taken part in caring for the child , which the foster carer could not prevent ...

The child ’s mother had not allowed the foster carer to care for the child . She was often under the influence of opiates which made her behave in an aggressive and unpredictable manner .

The child ’s mother X admitted to consumption of opiates but considered that the child had not been at risk since , when feeling that she could not care for the child , she had been in the habit of taking the child to her paternal great - grandmother who then cared for the child since she , the mother , did not trust her own mother . She was aware of the overall situation and that the child ’s surroundings were not beneficial for her but she blamed her mother and was looking for a solution ( statement given on DATE ) .

The child ’s father is currently doing his military service and is therefore not in a position to care for the child .

Bearing in mind the overall family circumstances , the expert panel for family protection considered that the current living conditions endangered the child and that her placement under the foster care of ORG was urgent ( the expert panel ’s conclusion of DATE ) .

The decision on [ the child ’s ] contacts with [ her ] parents has been adopted in view of the mother ’s opposition to the taking of the child and her placement in an institution as well as the child ’s need for regular contacts with her parents , which contacts , having regard to the GPE state of health , shall take place under expert supervision . ”

According to the applicant , she continued to visit her daughter on a regular basis . According to the Government , the applicant visited her daughter once in DATE .

On DATE the ORG placed the applicant ’s child , A. , under the guardianship of PERSON The relevant part of this decision reads as follows :

“ These proceedings have been instituted by ORG its own motion .

The following has been established in the proceedings :

- that A is a child without parental care since her father NORP died on DATE and her mother PERSON was entirely divested of her capacity to act in ORG decision ... of DATE ;

- that a social worker , PERSON , an employee of this Centre is currently a guardian of X ... ;

- that the child A. has been placed in Institution L. ;

- that [ the ORG ’s employees ] paid a visit to L ;

-that a social worker , PERSON , an employee of L , was heard and agreed to be appointed as a guardian of A. ;

- that the prescribed conditions for her guardianship have been fulfilled . ”

The above decision was not served on the applicant . In DATE the ORG instituted proceedings for the adoption of A. of its own motion , without the applicant ’s knowledge . On DATE M.B. , as A. ’s guardian , gave her consent to the adoption . The Government submitted that on DATE the applicant ’s mother and the child ’s paternal grandmother had been informed about the ongoing adoption proceedings . They also submitted that the applicant had been informed thereof during a telephone conversation on DATE .

On DATE the ORG issued a decision authorising the adoption of A. That decision became final on DATE .

NORP Under the domestic legislation in force , the applicant , being a person divested of the capacity to act , was not a party to the adoption proceedings , nor was she informed that they had taken place . Only later did the applicant find out that her daughter had been given up for adoption .

LAW ( Obiteljski zakon , Official Gazette no . DATE ) , in so far as relevant , read as follows :

“ ( CARDINAL ) Parental rights encompass protection of a child ’s personal and economic interests and parental responsibility for his or her wellbeing .

( CARDINAL ) Parental rights may be restricted or divested only by a decision of a competent body for the reasons and in the procedure prescribed under LAW . ”

“ ( CARDINAL ) Where parents do not live together a ORG shall designate the parent with whom the child shall live and arrange contacts between the child and the other parent except where this LAW has placed such decisions within the jurisdiction of the courts .

( CARDINAL ) In the case mentioned in paragraph ( CARDINAL ) , where both parents are incapable of caring for their child or are otherwise unable to do so or are putting the child ’s wellbeing at risk by their acts a ORG shall place the child [ under the care of ] another person or an institution .

( CARDINAL ) Where a ORG makes a decision under paragraph ( CARDINAL ) it shall establish the duties and rights of each parent in respect of their care for the child . ”

“ ( CARDINAL ) Where parents incapable of caring for their child , owing to their absence or health or other grounds , have not placed the child under the care of a person fulfilling the conditions for a guardian , a ORG is empowered to place the child under the care of another person or an institution without the GPE consent .

( CARDINAL ) Placement or care of the child under paragraph ( CARDINAL ) shall not exceed DATE in duration . ”

“ ( CARDINAL ) A ORG shall deprive of the right to live with his or her child a parent who seriously neglects or puts at risk the upbringing and education of the child and shall place the child under the care of another person or an institution .

( CARDINAL ) Deprivation of rights under paragraph ( CARDINAL ) ... does not terminate other duties and rights of a parent in respect of his or her child . ”

“ ( CARDINAL ) Measures under [ section CARDINAL ] ... shall not exceed DATE in duration .

“ ( CARDINAL ) A parent who abuses or gravely neglects parental duties and rights shall be divested of these rights by a decision of a court adopted in non - contentious proceedings .

“ ( CARDINAL ) An adult who , owing to mental damage or illness , addiction to opiates , senility ( dementia ) or on other grounds , is incapable of taking care of his or her personal needs , rights and interests or is endangering the rights and interests of others shall be partly or entirely divested of the capacity to act .

LAW ( Obiteljski zakon , Official Gazette no . CARDINAL of DATE ) , in so far as relevant , reads as follows :

“ ( CARDINAL ) Once adoption has been established parental custody [ of the adopted child ] shall cease .

“ ( CARDINAL ) Adoption may be established if it is in the interest of the child .

“ ( CARDINAL ) Adoption shall require the consent of both parents , except where otherwise provided .

“ Adoption shall not require consent of a parent who is ...

Divested of the capacity to act ... ”

“ ( CARDINAL ) Adoption proceedings shall be carried out of its own motion by the competent welfare centre ... ”

“ ( CARDINAL ) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings . ”

“ If necessary , the competent welfare centre shall hear the child ’s other relatives about the circumstances relevant to the adoption decision . ”

“ ( CARDINAL ) Once adoption has taken place , all rights and obligations between the child and his blood relatives shall cease .

The UN Convention on the Rights of the Child of DATE , which entered into force in respect of GPE on CARDINAL DATE ( ORG ) , in so far as relevant reads as follows :

LAW of DATE , in so far as relevant , reads as follows :

“ ... an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :

a. the consent of the mother and , where the child is legitimate , the father ; or if there is neither father nor mother to consent , the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect ;

b. the consent of the spouse of the adopter .

The competent authority shall not :

a. dispense with the consent of any person mentioned in paragraph CARDINAL of this article , or

b. overrule the refusal to consent of any person or body mentioned in the said paragraph CARDINAL ,

save on exceptional grounds determined by law .

If the father or mother is deprived of his or her parental rights in respect of the child , or at least of the right to consent to an adoption , the law may provide that it shall not be necessary to obtain his or her consent . ”

On DATE ORG adopted “ Principles concerning the legal protection of incapable adults ” , Recommendation No . R ( CARDINAL ) CARDINAL . The relevant provisions of these Principles read as follows :

“ Principle CARDINAL — Flexibility in legal response

The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient , in scope or flexibility , to enable suitable legal response to be made to different degrees of incapacity and various situations . [ ... ]

The range of measures of protection should include , in appropriate cases , those which do not restrict the legal capacity of the person concerned .

Principle CARDINAL — Maximum reservation of capacity

NORP The legislative framework should , so far as possible , recognise that different degrees of incapacity may exist and that incapacity may vary from time to time . Accordingly , a measure of protection should not result automatically in a complete removal of legal capacity . However , a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned .

NORP In particular , a measure of protection should not automatically deprive the person concerned of the right to vote , or to make a will , or to consent or refuse consent to any intervention in the health field , or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so . [ ... ]

Principle CARDINAL — Proportionality

Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned .

NORP The measure of protection should interfere with the legal capacity , rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention . [ ... ]

Principle CARDINAL — Right to be heard in person

The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity .

Principle CARDINAL — Duration review and appeal

Measures of protection should , whenever possible and appropriate , be of limited duration . Consideration should be given to the institution of periodical reviews . [ ... ]

There should be adequate rights of appeal . ”