Violation of Art. 8;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE Mr PERSON , store manager , was shot dead in the manager 's office of a ORG supermarket in GPE .

On DATE the applicant and another man , by the name of PERSON , were arrested on suspicion of having committed a robbery at the Late Saver shop , PERSON . At the time , they were in possession of an CARDINAL-mm Beretta replica handgun . Charged in connection with this offence , Mr Grant admitted to the offence and several other TIME shop robberies . The applicant denied involvement in any of the offences . On or CARDINAL DATE an anonymous informant told the police that the applicant had been involved in the murder of PERSON .

On DATE the applicant and PERSON appeared in custody at ORG and were further remanded in custody to reappear on DATE . On DATE Detective Chief Inspector PERSON requested permission for the cell and the visiting areas used by the applicant and PERSON to be bugged with audio and video technology , alleging that all regular methods of investigation to identify PERSON murderer had failed . The Chief Constable of ORG granted authority on DATE for an unlimited period for both the police stations at GPE and PERSON . On DATE similar authority was sought and obtained for the installation of a listening device with video system to be placed in the visiting area of GPE police station , where the applicant was then held .

On DATE the applicant was arrested for the murder and questioned . In the interviews with the police which followed , the police told the applicant that he was not obliged to say anything . He availed himself of that right .

During this time visits to the applicant by his female friend , ORG , were recorded on audio and videotape in the prison visiting area DATE . The applicant and PERSON were held for long periods in the same cell and recordings of their conversations were made from DATE .

On DATE was brought to NORP police station . PERSON was a long - standing police informant with a criminal record who had been arrested on DATE for unrelated offences . He was placed in the applicant 's cell for the purpose of eliciting information from the applicant . As asserted by the applicant , PERSON had every incentive to inform on him . Telephone conversations between PERSON and the police included comments by the police instructing PERSON to “ push him for what you can ” and disclosed evidence of concerted police coaching . After DATE he associated regularly with the applicant who was remanded at FAC .

On DATE the applicant was taken away from the prison to be interviewed by the police concerning ORG robbery . He was attended and advised by his solicitor . During the course of the interview , the applicant was invited to comment on the recordings made in DATE and DATE . He made no comment to any question . According to the applicant , he was interrogated at length by the police in an attempt to “ rattle ” or unsettle him , such that he would be more talkative and vulnerable to PERSON upon his return to the prison . H. had been fitted with recording devices . The recording thereby obtained was adduced in evidence at the applicant 's trial .

The applicant was interviewed again in the presence of his solicitor on DATE and DATE and remained silent when faced with the allegations .

On DATE made a CARDINAL- to CARDINAL-page witness statement detailing his conversations with the applicant and was released on bail on DATE . His sentence was postponed until after he had given evidence at the applicant 's trial . The high point of ORG 's evidence was the assertion that the applicant had admitted his presence at the murder scene . This asserted admission was not part of the recorded interview and was disputed . The thrust of the applicant 's case was that he was discussing robberies and did not accede to ORG 's efforts to channel their conversation into a discussion of the murder . The audio- and video - recordings ( or transcripts thereof ) were utilised in the trial of the applicant . No evidence , other than the alleged admissions , connected the applicant with the killing of PERSON .

In DATE the applicant 's trial on CARDINAL count of murder and a count of conspiracy to PERSON began before a jury . He was represented by leading counsel .

During his trial , the applicant 's counsel challenged the admissibility of extracts from covert audio- and video - recordings of conversations of the applicant with PERSON and ORG , under sections DATE and CARDINAL of ORG PACE ) . The judge concluded that there was evidence on the tapes from which the jury could infer that the applicant was involved in the events of DATE , and it was not so unreliable that it could not be left to the jury to assess for themselves . The judge also rejected the applicant 's counsel 's arguments under sections DATE and CARDINAL of PACE that the evidence from ORG was obtained by oppression or by such impropriety as to render it inadmissible . He considered that the use of an informant to talk and listen to the accused over a substantial period of time did not result in any unfairness to the accused . The fact that H. might be considered as having much to gain in giving evidence was also a matter to be left to the jury in their assessment of the reliability of his evidence . The evidence was accordingly admitted before the jury . The judge 's ruling on the admissibility of the evidence was given on DATE , after a voir dire ( submissions on a point of law in the absence of a jury ) and consisted of a judgment of CARDINAL pages .

In his summing - up to the jury on CARDINAL and QUANTITY DATE , the trial judge gave directions on the way in which the jury should assess the reliability of the disputed evidence . He told them that they were to judge whether the police had deliberately wound up the applicant during the interview on DATE and how to approach the evidence put forward by H. :

“ So at DATE with regard to H. you have his evidence about the conversations that he had with [ the applicant ] and what [ the applicant ] said . You have the tape recordings of the conversations on DATE when PERSON had been wired up , between [ the applicant ] and PERSON , and you have the transcripts of the conversations between PERSON and the police . I suggest ... that you approach the evidence of PERSON with the very greatest caution and care . He is a professional criminal . He behaved , and has behaved as he acknowledged , dishonestly and criminally for DATE . He saw the likelihood of advantage to himself , both in terms of bail and in the sentence that he was likely to receive . You have heard that he has not yet been sentenced on matters for which he was in custody in DATE . The defence say if you consider the whole picture you simply can not rely upon ORG ; quite unsafe to do so . The prosecution say the contents of the tapes of DATE can be relied on and are consistent with what PERSON says [ the applicant ] had said to him previously , before he , PERSON , was wired up . Of course tapes of ... conversations can not possibly constitute any independent confirmation of what PERSON says about what [ the applicant ] had said to him previously , because , and you will understand the logic of that , the information is all coming from CARDINAL source , namely PERSON and the witness can not strengthen his own evidence essentially by repetition .

So , ladies and gentlemen , at DATE how do you regard H. ? Was he or may he have been lying , or are you sure that he was telling the truth ? If you are sure , for example , in relation to things said on the tapes of DATE or other aspects of ORG 's evidence that his evidence is true , that [ the applicant ] did say a number of things , what do those things mean ? Do they point to his guilt , to his presence at ORG on DATE , or are they capable of meaning something else ? ... ”

The judge also directed the jury concerning the possible drawing of inferences from the applicant 's silence in police interview on CARDINAL and DATE and DATE , pursuant to section CARDINAL of ORG LAW DATE . He reminded the jury that the defence had contended that the applicant 's silence had been adopted on legal advice because of the view that oppressive interrogation techniques were being used .

On DATE , after the jury had deliberated for a total of CARDINAL and a half hours , the applicant was convicted of murder before ORG at GPE by a majority of CARDINAL and sentenced to life imprisonment . The applicant thereafter lodged a notice of appeal , asserting , inter alia , that the judge ought to have excluded evidence of the audio- and video - recordings of his conversations with PERSON and J.N.S. and the evidence put forward by PERSON also argued that the judge had erred in his directions as to the circumstances in which the jury could draw inferences from the applicant 's failure to respond to police questions in interviews of CARDINAL and DATE , when the police strategy was to “ spook ” the applicant into a state of garrulousness when he returned to prison , where he had a conversation with H.

On DATE he was refused leave to appeal against his conviction by a single judge . His renewed application was refused by ORG ) on DATE

Guidelines on the use of equipment in police surveillance operations ( ORG of DATE ) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices . The Guidelines are available in the library of ORG and are disclosed by ORG on application . They provide , inter alia :

“ CARDINAL . In each case , the authorising officer should satisfy himself that the following criteria are met :

the investigation concerns serious crime ;

normal methods of investigation must have been tried and failed , or must from the nature of things , be unlikely to succeed if tried ;

there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction , or where appropriate , to the prevention of acts of terrorism ;

use of equipment must be operationally feasible .

In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique , authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence . ”

The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings .

The CARDINAL Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy . The relevant sections relating to the authorisation of surveillance operations , including the procedures to be adopted in the authorisation process , came into force on CARDINAL DATE .

Since DATE these controls have been augmented by Part II of ORG ( RIPA ) . In particular , covert surveillance in a police cell is now governed by sections CARDINAL ) and CARDINAL ) of RIPA . ORG also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police .

Section DATE provides :

“ ( CARDINAL ) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section .

( CARDINAL ) NORP If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person , it is represented to the court that the confession was or may have been obtained –

( a ) by oppression of the person who made it ; or

( b ) in consequence of anything said or done which was likely , in the circumstances existing at the time , to render unreliable any confession that might be made by him in consequence thereof ,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession , notwithstanding that it might be true , was not obtained as aforesaid . ”

Section CARDINAL(CARDINAL ) provides :

“ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that , having regard to all the circumstances , including the circumstances in which the evidence was obtained , the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it . ”

The parties have referred to cases concerning the use of informers to obtain incriminating statements from persons in police custody .

In NORP v. PERSON ( [ DATE ] CARDINAL ORG Reports CARDINAL ) , the accused had relied on his right to silence when questioned by the police . He had then been placed in a cell with an undercover police officer to whom he made statements implicating himself in a robbery . ORG held that the statements of the undercover officer should have been excluded at trial . PERSON said , inter alia :

“ The common - law rules related to the right to silence suggest that the scope of the right in the pre - trial period must be based on the fundamental concept of the suspect 's right to choose whether to speak to the authorities or remain silent ...

When the police use subterfuge to interrogate an accused after he had advised them that he does not wish to speak to them , they are improperly eliciting information that they were unable to obtain by respecting the suspect 's constitutional right to silence : the suspect 's rights are breached because he has been deprived of his choice . However , in the absence of eliciting behaviour on the part of the police , there is no violation of the accused 's right to choose whether or not to speak to the police . If the suspect speaks , it is by his or her own choice , and he or she must be taken to have accepted the risk that the recipient may inform the police . ”

In NORP v. PERSON ( [ DATE ] CARDINAL ORG Reports CARDINAL ) , PERSON was arrested and held for questioning in respect of a suspicious death . He had spoken to a lawyer who had advised him to remain silent . The police arranged for a friend to visit B. in custody while carrying a body - pack recording device . The friend questioned PERSON about his involvement in the murder and in the words of ORG “ sought to exploit the [ accused 's ] trust in him as a friend to undermine the [ accused 's ] confidence in his lawyer 's advice to remain silent and to create a mental state in which the [ accused ] was more likely to talk ” . ORG held that it was wrong to admit the evidence obtained by the friend that the accused knew the time of the deceased 's death . According to the headnote of the reported case :

“ The right to silence is triggered when the accused is subjected to the coercive powers of the ORG through his or her detention . The right protects against the use of ORG power to subvert the right of an accused to choose whether or not to speak to the authorities . Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a ORG agent , the analysis must focus on both the relationship between the informer and the ORG and the relationship between the informer and the accused . The right to silence will only be infringed where the informer was acting as an agent of the ORG at the time the accused made the statement and where it was the informer who caused the accused to make the statement . Accordingly CARDINAL distinct inquiries are required . First ... was the evidence obtained by an agent of the ORG ? Second , was the evidence elicited ? The right to silence ... will be violated only if both questions are answered in the affirmative .

Applying the above principles to the facts of this case , it is clear that the informer was an agent of the ORG for the purposes of the right to silence in section CARDINAL [ of LAW ] . The conversation here would not have occurred or would have been materially different but for the authorities ' intervention . Furthermore , the impugned statement was elicited . Parts of the conversation were functionally the equivalent of an interrogation and the appellant 's trust in the informer as a friend was used to undermine the appellant 's confidence in his lawyer 's advice to remain silent and to create a mental state in which the appellant was more likely to talk . ”

In NORP v. PERSON ( [ DATE ] CARDINAL ORG Reports CARDINAL ) , the accused was arrested in connection with a cocaine deal and the police also pretended to arrest the undercover officer who negotiated the transaction . They were placed together in an interview room where the accused initiated a conversation referring to the arrest . The undercover officer asked the accused : “ What happened ? ” , and stated : “ Yeah . They got my fingerprints on the dope . ” The accused replied : “ PERSON and me too . ” ORG found nothing to suggest that the exchange was the functional equivalent of an interrogation . It was of no consequence that the police officer was engaged in a subterfuge , permitted himself to be misidentified or lied , so long as the responses were not actively elicited or the result of interrogation . In this case the conversation had been initiated by the accused and the police officer picked up the flow and content of the conversation without directing or redirecting it in a sensitive area . Nor was there any relationship of trust between the accused and the officer or any appearance that the accused was obligated or vulnerable to the officer .

In NORP v. PERSON and PERSON ( [ DATE ] ORG of Australia CARDINAL ) , the accused PERSON was CARDINAL of the targets of an undercover operation aimed at identifying drug suppliers and also suspected of arson . An undercover officer held a conversation with the accused pretending that his own brother - in - law was suspected of arson and the accused made admissions of his own involvement in a fire . ORG of GPE found that the admissions should not have been admitted at trial as they had been elicited by a police officer in clear breach of the accused 's right to choose whether or not to speak . The accused PERSON had been questioned by the police about a disappeared person and remained silent . After his release from custody , PERSON made incriminatory statements to a friend called PERSON , who had been fitted with a listening device by the police . ORG found that there was no impropriety involved and the admissions were reliable and should be admitted . C. had not been a police officer or a person in authority over PERSON . The fact that C. was regarded as trustworthy by PERSON was an indicator of the reliability of the admissions ; a serious crime had been committed and there was no public interest to be served by rejecting the admissions . PERSON stated :

“ Subterfuge , ruses and tricks may be lawfully employed by the police , acting in the public interest . ... The critical question is not whether the accused has been tricked and secretly recorded . It is not even whether the trick has resulted in self - incrimination , electronically preserved to do great damage to the accused at trial . It is whether the trick may be thought to involve such unfairness to the accused or otherwise to be so contrary to public policy that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value . In the case of covertly obtained confessions , the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police ( or by a person acting as an agent of the police ) in unfair derogation of the suspect 's right to exercise a free choice to speak or to be silent . ”


No violation of Art. 14+P1-1;No violation of Art. 4

Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE . He has spent TIME of his life in prison . During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery . As a working prisoner the applicant was not affiliated to the old - age pension system under ORG . However , from DATE he was affiliated to the unemployment insurance scheme in respect of periods worked in prison .

On DATE the applicant filed an application for an early retirement pension with ORG ( Pensionsversicherungsanstalt der DATE “ the ORG ” ) .

By a decision of CARDINAL DATE , ORG dismissed the application on the ground that the applicant had failed to accumulate CARDINAL insurance months , the required minimum for an early retirement pension . A list of the applicant ’s insurance periods , running from DATE , was appended to the decision . According to the list , the applicant had accumulated CARDINAL insurance months . The list shows lengthy periods during which no contributions were made , in particular from DATE to DATE , from DATE , from DATE to DATE , from DATE , from DATE to DATE and from DATE to DATE . DATE and DATE , during which the applicant received unemployment benefits or emergency relief payments under LAW , were counted as substitute periods .

Subsequently , the applicant brought an action against ORG before ORG ( Arbeits- und ORG ) . He submitted that he had been working for DATE in prison and that DATE worked during that time should be counted DATE for the purpose of assessing his pension rights .

On DATE ORG dismissed the applicant ’s claim . It confirmed that the applicant had not completed the required minimum number of insurance DATE . Referring to section CARDINAL(CARDINAL ) of ORG , the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme . According to ORG established case - law ( judgment no . CARDINAL ObS CARDINAL of CARDINAL DATE and judgment no . CARDINAL ObS CARDINAL of DATE ) , their work , corresponding to a legal obligation , differed from work performed by employees on the basis of an employment contract . The difference in treatment under social security law did not disclose any appearance of discrimination .

The applicant , now assisted by counsel , appealed . He argued in particular that the wording of section CARDINAL(CARDINAL ) of ORG did not distinguish between work on the basis of a legal obligation and work based on a contract . Moreover , he argued that the distinction was not objectively justified . Since DATE , prisoners who worked had been affiliated to the unemployment insurance scheme . In the applicant ’s view , there was no reason not to affiliate them to the old - age pension system .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal . It held that ORG had correctly applied the law . According to ORG established case - law , prisoners performing obligatory work were not to be treated as employees within the meaning of section CARDINAL(CARDINAL ) of ORG and were therefore not affiliated to the compulsory social insurance scheme . The fact that , since the DATE amendment to LAW , prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old - age pension system . In essence , the applicant raised a question of legal or social policy . However , it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners . In that connection , ORG noted that it did not share the applicant ’s doubts regarding the possible unconstitutionality of working ORG non - affiliation to the old - age pension scheme .

On DATE ORG ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant . Its judgment was served on the applicant on DATE .

On DATE the applicant completed his last prison term . Subsequently , he received unemployment benefits until DATE and , upon their expiry , emergency relief payments ( Notstandshilfe ) . According to his counsel ’s submissions at the hearing , the applicant currently receives QUANTITY ( ORG ) per month ( composed of ORG CARDINAL per day plus ORG DATE in emergency relief payments and ORG CARDINAL as an allowance towards his rent expenses ) .

The basis of the NORP social security system is laid down in CARDINAL laws : ORG ( Allgemeines Sozialversicherungsgesetz ) and LAW ( GPE ) . NORP social security law is based on the contributory principle .

The General Social Security Act encompasses health and accident insurance and old - age pension .

Section CARDINAL of the General Social Security Act regulates compulsory affiliation to the social security system . Pursuant to section CARDINAL(CARDINAL)(CARDINAL ) , employees are affiliated to the health and accident insurance scheme and to the old - age pension scheme . Section CARDINAL(CARDINAL ) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency . A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold ( PERSON - grenze ) . At current levels , this amount is set at ORG DATE ( section CARDINAL(CARDINAL ) ) .

For an employee affiliated to the social security system , compulsory contributions have to be paid in part by the employer and in part by the employee .

Section CARDINAL(CARDINAL ) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions ( freiwillige GPE ) if they have accumulated CARDINAL insurance months out of DATE within the system or CARDINAL insurance months during each of DATE . Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction .

Entitlement to an old - age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance DATE , namely a minimum of DATE or , in the case of an early retirement pension , DATE . When calculating the number of insurance DATE , certain periods during which no gainful activity has been pursued , and thus no contributions were made , are nevertheless taken into account as substitute periods ( PERSON ) , for instance periods of child - rearing , military service or unemployment .

The amount of an old - age pension depends mainly on the number of insurance DATE and the level of contributions paid . If the pension thus calculated does not reach a certain minimum level , which at current rates is ORG DATE for a single person and DATE for a couple , a supplementary payment ( Ausgleichszulage ) is added in order to reach the minimum level .

During a prison term exceeding DATE , entitlements to health , accident and pension insurance are suspended ( section CARDINAL of ORG ) . The livelihood of prisoners is to be provided by the prison authorities . Likewise , their health care and care in case of an accident have to be provided for by the ORG in accordance with LAW ( see paragraphs CARDINAL and CARDINAL below ) .

As a matter of principle , working prisoners are not affiliated to the general social insurance system . According to ORG case - law , prisoners performing work are not treated as employees within the meaning of section CARDINAL(CARDINAL ) of ORG .

In a judgment of CARDINAL DATE ( no . CARDINAL ObS CARDINAL ) , ORG examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance DATE . ORG ruled as follows :

“ According to the unanimous legal opinion of the competent ORG in ORG , SVSlg CARDINAL ) , ORG ( DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , ORG SVSlg CARDINAL ) and ORG ( SVSlg CARDINAL.CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) , this work , which is performed on the basis of a statutory rather than a voluntarily accepted duty to work , does not fall within the scope of the compulsory insurance scheme . Legal commentators also favour the interpretation that social insurance law , like labour law , requires that employment contracts be established voluntarily . Services rendered compulsorily under public law are not based on any service contract . Accordingly , work performed in the context of execution of a sentence can not be subsumed within section CARDINAL(CARDINAL ) of ORG ( see Krejci - Marhold in PERSON , SV - System CARDINAL . ORG CARDINAL ; MGA ASVG CARDINAL , ORG CARDINAL ; PERSON in PERSON , ABGB § CARDINAL Rz CARDINAL ) . In its judgment of CARDINAL DATE ( B CARDINAL/CARDINAL , PERSON = SVSlg CARDINAL.CARDINAL ) , ORG held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment .

The medical care due to prisoners in accordance with sections CARDINAL et seq . of LAW and the benefits due to them , in accordance with sections CARDINAL et seq . of that LAW , after work - related accidents or illnesses within the meaning of section CARDINAL(CARDINAL - CARDINAL ) of that LAW , provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context .

The fact that prisoners also , in the context of their duty to work – other than , for example , in the context of an employer - employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above - mentioned substantive differences in relationship and accordingly – as held by ORG in its judgment – does not infringe the principle of equal treatment .

Periods spent in pre - trial detention or serving a prison sentence or in preventive detention will , in accordance with ORG , only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent ( section CARDINAL and section CARDINAL(CARDINAL ) ) or if an NORP court ( in accordance with ORG ) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction ( section CARDINALa ) . Such periods of time , regarded as valid compulsory contributory periods , are to be regarded in the first - mentioned case as not requiring the payment of contributions ( section CARDINAL(CARDINAL ) , third sentence ) ; in the second - mentioned case , the ORG shall pay the corresponding contributions to the relevant insurance institution ( section CARDINALa , second sentence ) . The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct . An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment . Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment , for similar reasons . ... Prisoners to whom the above - mentioned exceptions under section CARDINAL(CARDINAL ) and section CARDINALa do not apply shall not thereby accumulate , in the context of their duty to work , either contributory periods under the compulsory insurance scheme or substitute periods . They are not , however , prevented by the execution of the sentence from continuing to make contributions to the old - age pension insurance scheme under LAW and accumulating contributory periods through the payment of voluntary contributions , whereby continued insurance , at the request of the contributor , as far as this appears justified on the basis of his or her economic situation , shall be permitted , in accordance with section CARDINALa(CARDINAL ) , at a lower contribution level than the one provided for in subsections ( CARDINAL ) of that provision . In accordance with section CARDINAL(CARDINAL ) of LAW , prisoners are to be informed of the possibilities and advantages of , inter alia , optional continued insurance , and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence . By virtue of the very flexible continued insurance ( see section CARDINAL(CARDINAL - CARDINAL ) ) DATE particularly in respect of the beginning , end and determination of DATE a prisoner can also accumulate further contributory DATE in order to make up the qualifying period and/or obtain a higher pensions increment . In this connection , the fact should not be overlooked that if CARDINAL were to proceed on the basis that a prisoner is covered under the invalidity and old - age pension insurance scheme in respect of work done during the execution of the sentence , contributions would accordingly have to be made for the relevant periods . Other than under section CARDINALa , according to which ORG has to pay the contributions corresponding to these contributory periods ( as part of the criminal compensation scheme ) to the relevant insurance institution , a ORG contribution would not be reasonable here . ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements ; prisoners would have to make such contributions , so the position would not be essentially different from optional insurance . Accordingly , if the legislature has decided that work done in the context of a prisoner ’s duty to work can not fundamentally give rise to compulsory contributory periods or substitute periods and , in the light of that , has made provision only for the above - mentioned exceptions , that decision is based on objective considerations .

Accordingly , ORG has no doubts regarding the constitutionality of the statutory provisions applicable to the present case . ”

In a judgment of CARDINAL DATE ( no . CARDINAL ObS CARDINAL ) ORG confirmed its previous judgment .

For the purpose of calculating entitlement to an old - age pension , periods spent in prison are only taken into consideration in specific circumstances defined in ORG . For instance , periods spent in prison for which compensation has been granted under LAW ( Strafrechtliches Entschädigungsgesetz ) are counted as substitute periods .

Employees are also affiliated to the unemployment insurance scheme . Compulsory contributions have to be paid in part by the employer and in part by the employee .

Since the DATE amendment to LAW , prisoners who perform work in accordance with section CARDINAL(CARDINAL ) of LAW are affiliated to the unemployment insurance scheme pursuant to section CARDINALa of LAW . The employee ’s part of the contributions is to be paid from the prisoner ’s remuneration , if the remuneration exceeds the marginal earnings threshold , while the employer ’s part is to be paid by the ORG , through ORG . The amendment came into force on DATE .

As regards the amendment to the law , which formed part of a broader reform of the system of execution of sentences , ORG ( PERSON ) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system . ORG underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism ( see p. CARDINAL of the annex to the minutes of ORG ( Beilagen zu den PERSON , XVIII.GP ) .

Entitlements under LAW include access to training courses , job - search facilities , and payment of unemployment benefits ( which , to a certain extent , are related to previous salary ) for a certain period . Upon the expiry of unemployment benefits , the insured person is entitled to payment of emergency relief , which is designed to provide a minimum amount of subsistence . Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted .

At the hearing , the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release .

( a ) In DATE , CARDINAL persons were detained , of whom CARDINAL ( PERCENT ) were working and thus covered by unemployment insurance . CARDINAL of these working prisoners actually paid contributions as they earned more than the required minimum level , and the others did not have to pay contributions .

( b ) DATE and DATE , CARDINAL persons were detained , of whom CARDINAL ( PERCENT ) were working and thus covered by unemployment insurance . CARDINAL of these working prisoners actually paid contributions as they earned more than the required minimum level per month , and the others did not have to pay contributions .

( c ) DATE and DATE , CARDINAL persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term ; CARDINAL of them applied for unemployment benefits upon their release , receiving an average benefit of ORG CARDINAL per day ( the general average being ORG DATE ) .

Social security is complemented by means - tested social assistance . The latter is designed to provide persons who do not have the necessary means ( personal means or entitlements from old - age pension insurance or unemployment insurance ) with a minimum income in order to meet their basic needs .

On DATE a new system , namely the means - tested minimum income scheme ( bedarfsorientierte PERSON ) , came into force , replacing social assistance . It guarantees a minimum income to all persons who are willing and able to work or who are DATE and do not have other means of subsistence . The amount is aligned with the minimum pension .

Pursuant to section CARDINAL(CARDINAL ) of LAW ( Strafvollzugsgesetz ) , any prisoners who are fit to work are obliged to perform work assigned to them .

Section CARDINAL(CARDINAL ) of the LAW obliges the prison authorities to provide each prisoner with useful work . Section CARDINAL(CARDINAL ) specifies the different kinds of work which may be assigned to prisoners . They include , inter alia , tasks to be carried out within the prison , work for public authorities , work for charities , and work for private employers .

Under LAW ) , the prison authorities may conclude contracts with private enterprises as regards ORG work .

Pursuant to section DATE , ORG ( der Bund ) receives the proceeds of ORG work .

Prisoners who perform their work satisfactorily have a right to remuneration . The amounts of remuneration – per hour and type of work – are fixed in section CARDINAL(CARDINAL ) . At current rates , they are as follows :

( a ) for light unskilled work EUR DATE

( b ) for heavy unskilled work EUR CARDINAL.CARDINAL

( c ) for manual work EUR CARDINAL.CARDINAL

( d ) for skilled work EUR CARDINAL.CARDINAL

( e ) for work performed by a skilled worker EUR CARDINAL.CARDINAL

The prison authorities have to provide for the livelihood of prisoners ( section DATE ) .

Pursuant to section CARDINAL of the Act , all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions . If the prisoner works , the contribution amounts to PERCENT of his or her remuneration . It is deducted automatically from the remuneration .

NORP Moreover , the employee ’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner ’s remuneration . The remainder of the prisoner ’s remuneration is used as follows : CARDINAL of it is given to the prisoner as “ pocket money ” and CARDINAL is kept as savings which the prisoner receives upon release ( section DATE ) .

Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections CARDINAL et seq . and CARDINAL et seq . of LAW . In essence , the entitlement to health and accident care corresponds to the entitlement under LAW .

If prisoners refuse the work assigned to them , this constitutes an offence under section CARDINAL ) of LAW . The penalties set out in section CARDINAL range from a reprimand , or a reduction or withdrawal of certain rights ( for instance , the right to use “ pocket money ” , to watch television , to send and receive correspondence or telephone calls ) , to a fine or house arrest ( solitary confinement ) .

According to the information provided by the ORG , PERCENT of prisoners in GPE are currently working . Owing to the requirements of prison routine , the average working day is TIME . However , time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of TIME .

The Forced Labour Convention ( No . CARDINAL ) ( “ ORG No . CARDINAL ” ) was adopted on DATE by ORG ( ILO ) and came into force on DATE . The relevant parts of LAW provide as follows :

“ CARDINAL . For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily .

Nevertheless , for the purposes of this Convention , the term forced or compulsory labour shall not include :

( c ) any work or service exacted from any person as a consequence of a conviction in a court of law , provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals , companies or associations ;

ORG ( the DATE meeting of member GPE of the ORG ) at its CARDINAL session in DATE , carried out a general survey concerning ORG . CARDINAL based on a report of ORG ( “ the Committee ” ) .

The report dealt , inter alia , with the question of prison work for private enterprises . Noting that prison work for private employers was prohibited by LAW ( c ) of ORG , the ORG found that there might be conditions in which , notwithstanding their captive circumstances , prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer . In this connection , apart from the formal written consent of the prisoner , conditions approximating a free labour relationship ( in terms of wage levels , social security and occupational safety and health ) were regarded to be the most reliable indicator of the voluntariness of labour . If such conditions were met , prison work for private enterprises was considered not to come under the definition of forced labour provided in LAW and , consequently , was considered to fall outside the scope of ORG CARDINAL ( paragraphs CARDINAL and CARDINAL - CARDINAL of the ORG ’s report ) .

The International Covenant on Civil and Political Rights was adopted on DATE by ORG CARDINALA ( ORG ) and came into force on DATE . The relevant parts of LAW as follows :

“ CARDINAL . ( a ) No one shall be required to perform forced or compulsory labour ;

( b ) Paragraph CARDINAL ( a ) shall not be held to preclude , in countries where imprisonment with hard labour may be imposed as a punishment for a crime , the performance of hard labour in pursuance of a sentence to such punishment by a competent court ;

( c ) For the purpose of this paragraph the term ‘ forced or compulsory labour’ shall not include :

( i ) Any work or service , not referred to in subparagraph ( b ) , normally required of a person who is under detention in consequence of a lawful order of a court , or of a person during conditional release from such detention ;

ORG are recommendations of ORG to member ORG as to the minimum standards to be applied in prisons . States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates .

The DATE ORG ( Recommendation No . R ( CARDINAL ) DATE “ the DATE Rules ” ) were adopted by ORG CARDINAL DATE .

In Part I , the DATE Rules contained a number of basic principles , including the following :

“ CARDINAL . The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules .

The purposes of the treatment of persons in custody shall be such as to sustain their health and self - respect and , so far as the length of sentence permits , to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law - abiding and self - supporting lives after their release .

In Part IV , under the heading “ Treatment objectives and regimes ” , they contained the following rules :

“ CARDINAL . Imprisonment is by the deprivation of liberty a punishment in itself . The conditions of imprisonment and the prison regimes shall not , therefore , except as incidental to justifiable segregation or the maintenance of discipline , aggravate the suffering inherent in this .

Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as :

( a ) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community ;

( b ) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self - respect or sense of personal responsibility of prisoners ;

Also in Part IV , under the heading “ Work ” , they contained the following rules :

“ CARDINAL.CARDINAL . Prison work should be seen as a positive element in treatment , training and institutional management .

Prisoners under sentence may be required to work , subject to their physical and mental fitness as determined by the medical officer .

Sufficient work of a useful nature , or if appropriate other purposeful activities , shall be provided to keep prisoners actively employed for a normal DATE .

So far as possible the work provided shall be such as will maintain or increase the prisoner ’s ability to earn a normal living after release .

CARDINAL LOC organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life . ...

Safety and health precautions for prisoners shall be similar to those that apply to workers outside .

Provision shall be made to indemnify prisoners against industrial injury , including occupational disease , on terms not less favourable than those extended by law to workers outside .

There shall be a system of equitable remuneration of the work of prisoners . ”

On DATE ORG adopted a new version of ORG , Recommendation Rec(CARDINAL)CARDINAL ( “ the CARDINAL Rules ” ) . It noted that the DATE Rules “ needed to be substantively revised and updated in order to reflect the developments which ha[d ] occurred in penal policy , sentencing practice and the overall management of prisons in LOC ” .

Part I of the CARDINAL Rules contains the following basic principles , inter alia :

“ CARDINAL . Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

Life in prison shall approximate as closely as possible the positive aspects of life in the community .

All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty . ”

The commentary on the CARDINAL Rules ( prepared by ORG ) notes that Rule CARDINAL emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political , civil , social , economic and cultural rights , so that restrictions should be as few as possible . The commentary observes that Rule CARDINAL underlines the positive aspects of normalisation , recognising that , while life in prison can never be the same as life in a free society , active steps should be taken to make conditions in prison as close to normal life as possible . The commentary further states that Rule CARDINAL “ recognises that prisoners , both untried and sentenced , will eventually return to the community and that prison life has to be organised with this in mind ” .

In Part II ( “ Conditions of imprisonment ” ) , Rule CARDINAL of the CARDINAL Rules deals with the various aspects of prison work . The relevant parts thereof read as follows :

“ TIME work shall be approached as a positive element of the prison regime and shall never be used as a punishment .

CARDINAL ORG authorities shall strive to provide sufficient work of a useful nature .

CARDINAL As far as possible , the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release .

CARDINAL The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life .

CARDINAL ORG for prisoners shall be provided by the prison authorities , either on their own or in cooperation with private contractors , inside or outside prison .

CARDINAL In all instances there shall be equitable remuneration of the work of prisoners .

CARDINAL ORG and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside .

CARDINAL Provision shall be made to indemnify prisoners against industrial injury , including occupational disease , on terms not less favourable than those extended by national law to workers outside .

CARDINAL As far as possible , prisoners who work shall be included in national social security systems . ”

The commentary on Rule CARDINAL underlines the principle of normalisation of prison work in that provisions for health , safety , TIME and “ even involvement in national social security systems ” should reflect those for workers on the outside . In contrast , the DATE Rules , although they contain the notion of normalisation of prison work , are silent on the question of ORG inclusion in national social security systems .

Part VIII of the CARDINAL Rules , entitled “ Sentenced prisoners ” , contains further rules regarding the objective of the regime for sentenced prisoners :

“ CARDINAL.CARDINAL NORP In addition to the rules that apply to all prisoners , the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime - free life .

CARDINAL Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment . ”

It also deals with work as CARDINAL aspect of the regime for sentenced prisoners . The relevant parts of Rule CARDINAL provide as follows :

“ CARDINAL LOC prisoners who have not reached the normal retirement age may be required to work , subject to their physical and mental fitness as determined by the medical practitioner .

CARDINAL NORP If sentenced prisoners are required to work , the conditions of such work shall conform to the standards and controls which apply in the outside community . ”

LAW , a ORG treaty which was adopted in DATE and revised in DATE , is also of some relevance in the present context . Article CARDINAL , dealing with the right to work , provides :

“ With a view to ensuring the effective exercise of the right to work , the Parties undertake :

NORP to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible , with a view to the attainment of full employment ;

NORP to protect effectively the right of the worker to earn his living in an occupation freely entered upon ;

ORG , the body responsible for monitoring GPE Parties’ compliance with LAW , has interpreted LAW to mean that prison work must be strictly regulated , in terms of pay , TIME and social security , particularly if prisoners are working for private firms . Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship ( see Digest of the Case Law of ORG , DATE , p. CARDINAL ) .

From the information available to the ORG , including a survey on comparative law taking into account the national laws of CARDINAL out of the CARDINAL member ORG , it would appear that

( a ) in CARDINAL member GPE , prisoners are , at least in some circumstances , required to work , namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ;

( b ) CARDINAL member GPE give prisoners access to the old - age pension system , namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE and GPE . In some of these GPE , prisoners are not automatically covered by the insurance scheme ( by way of compulsory contributions or tax deduction ) but only have the possibility of paying voluntary contributions ;

( c ) in CARDINAL member GPE , prisoners are not covered by an old - age pension scheme , namely GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ;

( d ) in a third group of member GPE , affiliation to the social security system ( including old - age pension ) depends on the type of work performed , mainly on whether it is work for outside employers / remunerated work or not . This is the case in GPE , GPE , GPE , GPE and GPE . In GPE , entitlement to an old - age pension is not related to work and payment of contributions . All persons of pensionable age are entitled to receive a basic pension ; and

( e ) thirty - seven member GPE , that is , an absolute majority , provide prisoners , or at least certain categories of prisoners , with some access to social security protection , either by affiliating them to the general social security system or parts of it , or by providing them with a specific type of insurance or other protection .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

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

On DATE the Staromisky District Court of Vinnytsya awarded the applicant CARDINAL NORP hryvnyas ( ORG ) in salary arrears and other payments against the company , ORG AK Sater in which the ORG had had no share since DATE .

The judgment in the applicant ’s favour was not appealed against , became final and GPE ( “ the Bailiffs ” ) instituted enforcement proceedings .

In DATE the applicant instituted civil proceedings in the GPE ORG challenging the GPE inactivity and claiming compensation .

On DATE the court ordered the Bailiffs to enforce the judgment . By the same judgment the court dismissed the applicant ’s claim for compensation .

On DATE ORG dismissed his appeal against that judgment .

The applicant did not appeal in cassation before ORG .

The judgment of DATE remains unenforced .


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

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

On DATE and on DATE the applicant received CARDINAL written warnings from his superiors on account of his failure to attend the religious festival gathering ( GPE ) with his wife .

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a lieutenant , was a member of ORG . He neglected his military obligations by way of praying during his guard duties . He was attached to NORP way of life and expressed that he would not change this life style . He had an anti - social character and his wife carried an NORP scarf . He avoided social gatherings and refused to live in the military LOC .

The applicant received a severe reprimand for lack of discipline , warnings for negligence and for failure to attend the religious festival gathering . The applicant was sentenced to CARDINAL days’ confinement for neglecting his guard duties . ORG

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


No violation of Art. 8 with regard to taking into care;No violation of Art. 8 with regard to involvement in decision-making process;Violation of Art. 8 with regard to failure to promote reunification;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant and his wife PERSON have CARDINAL children , PERSON , born in DATE , A. , born in DATE , and J. , born in DATE . S. suffers from mental problems and is on early retirement . On DATE ORG of the relevant city was contacted by a private individual raising a suspicion that the children were being sexually abused by their parents . The matter was considered by the child welfare support group of the local ORG ( sosiaalilautakunta , socialnämnden ) on DATE . The group included PERSON and GPE of ORG located in the same city , the school welfare officer , a nurse of the child welfare clinic , the leading psychologist of the family advice centre and the director of ORG nursery . Since no proof of incest was found , no further action was taken .

From DATE ORG development was monitored in the children ’s ward of ORG . The examination revealed no signs of sexual abuse . On DATE his nursery notified the social welfare authorities that he had shown a strong regression after having remained at home with his mother for DATE following his hospital stay , and that similar regression had appeared whenever he had been spending longer periods at home .

DATE the social welfare authorities were contacted on CARDINAL further occasions with regard to the family . The information received again raised a suspicion that the mother was sexually abusing the children . It was alleged that the children were watching pornographic films , that the mother was walking around at home nearly naked and that she was using sexually explicit language when talking with and about the children . The parents were allegedly also consuming large quantities of beer on a DATE basis .

The child welfare support group again considered the matter on CARDINAL DATE , discussing for the first time the possible need to place the children in public care , and on DATE . On DATE social officials , the school welfare officer and the school nurse interviewed ORG together with their parents . According to the social welfare officer ’s entry in the ORG ’s records , the daughters had confirmed the suspicions of sexual abuse , whereas the parents denied it . According to the applicant , the parents did not attend this interview . Moreover , A. had denied having been sexually abused by her parents , whereas PERSON , when prompted to discuss her breasts , had stated that the mother had touched them in the sauna .

NORP The parents consented to having the children undergo an examination in the child psychiatric department of ORG . The children were admitted to ORG on DATE and their examination took place DATE . Social welfare officials were in contact with the parents on CARDINAL and DATE , raising the possibility of taking the children into public care . The parents objected to any such measure .

By emergency orders of CARDINAL DATE the children were placed in public care in pursuance of LAW CARDINAL of LAW ( lastensuojelulaki , barnskyddslagen DATE ) with a view to ensuring that the incest investigation could be completed . ORG has not been provided with copies of these orders which were apparently issued by the Chairman of ORG on its behalf . In the care orders of DATE the ORG referred to its decision of CARDINAL DATE , at paragraph TIME , to issue such orders . The social welfare office ’s case reports contain no entry of that date recording the emergency care . According to the Government , the orders of DATE were grounded on the need “ to ensure the investigations concerning incest following the closing of department B CARDINAL of ORG and in order to place the children in the children ’s home of [ P. ] ” . The Government explained that as the child psychiatric examination had not been finished by DATE the day when the children ’s ward was closing due to DATE of the staff – it was necessary to issue emergency care orders allowing for the examination to be completed and for a final assessment of the possible need for further measures .

On DATE the parents were interviewed at the child psychiatric department by PERSON The interview was followed through a CARDINAL - way mirror by the CARDINAL psychologists in charge of examining the children , a doctor and a nurse from the children ’s ward , the children ’s nurse at the children ’s home , a social worker and a nurse from the child psychiatric clinic as well as the social welfare official in charge of the case . The interview was not recorded . The parents were informed that clear evidence had been found of the sexual abuse of the girls , the GPE heavy drinking and domestic violence also directed against the children . The parents denied the sexual abuse and did not , in the opinion of the working group , realise the gravity of the situation .

NORP In letters of CARDINAL and DATE PERSON and PERSON informed ORG of their readiness to serve as lay helpers to the family , whom they had known for a long time . PERSON , a foster parent herself , stated that the parents and , in particular , the applicant had been taking good care of the children . PERSON , whose daughter had been looked after by PERSON occasionally , stated that the family was leading a settled and normal life . The applicant ’s employer attested to his steady employment and the fact that he had not been unnecessarily absent during DATE .

On DATE ORG upheld the emergency orders after having heard the parents in person . The parents had also submitted written observations in which they , inter alia , rejected the allegations of sexual abuse contained in the documents to which they had had access . They also assured the ORG that they had given up consuming beer . In addition to the GPE written observations and the submissions indicated in the preceding paragraph , ORG had before it a report by the school nurse and school welfare officer dated CARDINAL DATE in which they recounted their interview with A. and PERSON on DATE . It had also received an opinion by the director of ORG care centre .

ORG reasoned as follows :

“ CARDINAL . In addition to the previously appearing difficulties relating to [ the GPE ] mental health and financial situation , incest has been found to have been directed against the children in the family , which seriously endangers their development and health . In addition , the parents have been consuming alcohol on an everyday basis over a long period of time . In these circumstances the children are not able to receive such care and support from their parents as their age would warrant .

The family has been receiving assistance for domestic chores on a regular basis , in an attempt to support their survival as a family in spite of their problems . In order to support the children ’s development they have been provided with day care . Subsistence allowance has been granted whenever necessary , in spite of [ the GPE ] income . As the incest is linked to other serious problems it is not possible to ensure the children ’s development and health in their home by affording open - care assistance .

NORP The public care and the children ’s placement out of their home ( sijaishuolto , vård utom hemmet ) will enable them to grow up in secure , stable and stimulating conditions , where they can reach , as best as possible , the stage of development typical for children of their age . ”

The ORG ordered that the public care was to be implemented as follows :

“ The children ’s contact with their parents and other persons important to the children will be supported by organising meetings in the children ’s home , as need be . The [ children ’s ] need for out - of - home care is of long - term nature . Their first placement will be in the children ’s home and the possibility of providing foster care will be explored at a later stage . The children are in need of special support in the form of therapy , which can be afforded on the premises of the children ’s home . The overall situation of the family will be taken care of in co - operation with the child psychiatric clinic and the mental health office . ”

The Board decided to reconsider the care orders under LAW of LAW within DATE from DATE of the emergency care orders , in pursuance of section CARDINAL , subsection CARDINAL , of the said LAW .

In an opinion of DATE PERSON drew the following conclusions :

“ The investigations have shown that [ K. and A. ] have been sexually abused by their mother apparently for DATE . The father has not been able to protect his daughters , even though aware of the abuse . The family conditions seriously endanger the psychological and physical development of all of the children ( the serving of alcohol , violence ) . The children have to use an unreasonable part of their psychological energy on being concerned about themselves , their siblings , their parents and the family situation in general . This renders the children insecure , distressed , frightened and depressed . In my opinion the parents , even if supported by open - care assistance , are not able to secure the children ’s situation sufficiently and cater to their physical and psychological needs . The burden caused by the family ’s situation can already be seen in the disturbed psychological development of the children . In my opinion their physical and psychological development will be seriously endangered if they are returned to their biological parents . In this situation the biological parents ... also need psychiatric help and support . To this end they have been recommended to continue making appointments at ORG . The practical arrangements for providing psychotherapy to the children will be considered in the autumn . For now , priority must be given to taking child welfare measures . ”

On DATE the parents , heard by social workers , maintained their opposition to the public care of their children . The invitation to that meeting stated that the case - file would be available to them for consultation . On DATE ORG heard the parents , who denied the allegations concerning abuse and neglect of the children . They handed in written observations as well as a copy of ORG ’s patient records at the local ORG , arguing that they had regularly used its services in matters relating to the children ’s health and that nothing in the records suggested that PERSON had been subjected to physical violence . The parents requested that the ORG hear their daughter ’s teachers , domestic helpers and others familiar with conditions in the family . They further requested that lay helpers or support families be appointed for the family . They objected to a categorical statement made by CARDINAL social welfare official to the effect that they would not get their children back .

On DATE the ORG maintained the public care on the grounds relied on in its decision of DATE . The parents appealed to the competent ORG ( lääninoikeus , länsrätten ) without the assistance of legal counsel . In a statement to the court PERSON also questioned the care orders . On DATE ORG , without having held an oral hearing , rejected the appeal and confirmed the public care orders with the following reasoning :

“ According to the evidence transpiring from the documentation on file , the shortcomings in the children ’s care and the other conditions in their home seriously jeopardise the children ’s health and development . The open - care assistance has proved to be insufficient and care outside the home has been deemed to be in the children ’s best interests . ORG has therefore been under an obligation to place [ the children ] in the care of [ the ORG ] . ”

The parents appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting an oral hearing .

The care plan was reviewed at a meeting on DATE attended by the parents . The parents and the children would continue to meet CARDINAL times a week and psychotherapy was to be provided to the children starting DATE . The parents objected to foster care for the children and preferred to await the outcome of the appeal proceedings . According to the Government , meetings took place CARDINAL times a week from DATE to CARDINAL DATE .

The care plan was again reviewed on DATE at a meeting attended by the applicant . The children and the parents had continued to meet CARDINAL times a week and the children had been on DATE leaves to visit relatives . The possibility of placing the children in foster care was again raised but the applicant remained opposed to such care , preferring to await the outcome of the appeal . He was told that ORG would not necessarily reverse previous decisions and that the foster care needed to be planned at a sufficiently early stage . Moreover , on DATE the children themselves had been consulted about their possible foster care .

On DATE ORG rejected the GPE appeal without holding an oral hearing and without adducing further reasons .

The care plan was again reviewed on DATE in the presence of the parents . They were told a decision now had to be made as to whether the children should remain in the children ’s home or be placed in a foster family . When consulted by a social welfare official the children had preferred to be placed in a foster family , “ if they could not return home ” . The applicant stated he would pursue his attempts to have them returned home . Meanwhile , they should stay in the children ’s home . The applicant was told that even if the children were placed in a foster family , they would continue to see their biological parents , “ although naturally not as frequently ” . The meeting was adjourned at the applicant ’s request until CARDINAL DATE . At that meeting the parents were informed that a foster family had already been found and that the children had repeated their willingness to move there , “ since their return to their [ original ] home was not possible ” . The parents were informed that ORG would receive a proposal for transferring the children into the foster family , since such care was in many respects a better alternative than care in an institution , considering that the public care was going to continue and given the children ’s best interests .

At a further meeting on CARDINAL DATE the parents were informed that DATE , when the children would be transferred to the foster family , and DATE they would not be able to meet with the children . Subsequently , CARDINAL meetings DATE would be organised . According to the care plan of DATE , the temporary absence of meetings was aimed at ensuring a peaceful implementation of their transfer and adaptation to their new family , school and nursery . The care plan was to be reviewed at DATE or earlier , if necessary .

On DATE ORG decided to transfer the children into foster care and adopted the updated care plan . It noted that the family conditions had been deemed seriously to endanger the children ’s development and , as the matter concerned incest , their future health and development could only be secured by long - term foster care . Placing them in a foster family was thus in their best interests . ORG had regard to a written statement by the director of the children ’s home and a joint statement by the leading social welfare official , the aforesaid director and the children ’s individual nurses .

The applicant appealed , seeking to have the public care revoked or , in the alternative , to have meetings organised more frequently and to have the care plan reviewed at the latest in DATE . On DATE ORG declined to examine the merits of the appeal , as it was not competent to examine , in the first instance , the request for termination of the care . The adoption of the care plan had not comprised any binding decision on the applicant ’s right to see his children . Any access restriction had to be ordered separately by ORG pursuant to section CARDINAL of LAW . The expected time - limit for reviewing the care plan had the character of a guideline , since under the law such a plan was to be reviewed whenever necessary . ORG relied on sections CARDINAL , DATE , DATE and DATE of LAW and on section CARDINAL of LAW . The applicant did not appeal further to ORG in respect of the decision to transfer the children into foster care .

On DATE the applicant requested that the public care be terminated . On DATE ORG refused the request . It found that continued public care was in the best interests of the children , considering “ the difficulties relating to the mental health and the use of alcohol as well as the incest directed against the children ” , which had formed the background to their placement in public care . In a meeting with the leading social welfare official on DATE and in their written statements of the same day K. and A. had stated their wish to remain in the foster family . J. had not been heard due to his young age . ORG also had regard to PERSON opinion of DATE . Moreover , in a written statement of CARDINAL DATE CARDINAL teachers of J. ’s nursery had attested to his gain of self - confidence . The foster parents noted that the children were adapting to the foster family . It was therefore in the children ’s best interests to remain there . ORG also had regard to a CARDINAL - page background summary by leading social worker GPE

In his appeal the applicant stated , inter alia , that he would move away from his wife and request sole custody of the children . In its opinion to ORG maintained its view that the biological GPE living situation had not changed significantly . Terminating the public care would therefore not be in accordance with the children ’s best interests .

In an entry into the case - notes on DATE social worker PERSON wrote that the divorce proposed by the applicant would change nothing , as the children had been placed in long - term care , “ up to their adulthood , in my opinion ” .

On DATE ORG rejected the appeal with the following reasoning :

“ According to the evidence transpiring from the documentation on file , ORG considers that the need for public care outside the [ children ’s original ] home still exists . ORG has therefore been under an obligation to maintain the public care of the children . ”

On DATE ORG rejected the applicant ’s further appeal without adducing further reasons .

According to the care plan adopted on DATE the biological parents had not , at a meeting on DATE , expressed any wish to meet the children more frequently . On DATE the leading social welfare official invited the parents to clarify their wishes in respect of meetings with the children . The parents , now represented by counsel , requested that unsupervised meetings with their children be allowed in their home DATE during DATE . They stressed that the access restrictions should be based on the circumstances at that time and not on the events and allegations described in PERSON opinion of DATE . PERSON and PERSON wished to have CARDINAL meetings year , whereas J. and the foster parents objected to any increase .

On DATE the local ORG ( perusturvalautakunta , grundtrygghetsnämnden ; previously ORG ) maintained the access restriction but allowed CARDINAL supervised visits a year . The restriction was to remain in force until the respective children had turned DATE , i.e. until DATE , CARDINAL DATE and DATE . ORG recalled the incest as established in PERSON opinion of DATE and also had regard to the children ’s own opinions .

The GPE appeal was rejected by ORG on DATE , except with regard to the access restriction applicable to J. , which was ordered to remain in force only until DATE . The parents were refused cost - free proceedings , as domestic law did not provide for such an award in respect of access restrictions .

On DATE PERSON reached the age of majority and her public care ceased pursuant to section CARDINAL of LAW .

According to the care plan adopted on DATE , A. and PERSON and the biological parents would be allowed to meet CARDINAL times up to DATE .

According to the care plan adopted on DATE , J. and his biological parents would be allowed to meet twice a month up to DATE . As from DATE the meetings would no longer be supervised .

On DATE reached the age of majority and her public care ceased .

According to the care plan adopted on DATE , J. and his biological parents would be meeting once DATE . The plan was preceded by several consultations with the biological and foster parents . The applicant had requested that meetings be allowed with the same frequency and that every other meeting take place over DATE in the home of the biological parents , whereas J. had favoured CARDINAL meeting DATE involving no overnight stay .

On DATE the biological parents again requested ORG to terminate PERSON ’s public care . On DATE S. informed a social welfare official that she was no longer in therapy . According to a case entry , she was told that J. now needed to undergo a child psychiatric examination . The request for a termination of ORG care was apparently refused at DATE .

No police investigation was conducted into the suspected incest or sexual abuse of the applicant ’s children , and no request to that end was made by the social welfare authority .

In support of their observations to ORG have adduced extracts from ORG patient records concerning the applicant and his wife . The extracts contain social welfare official P .- N.J. ’s summaries of their statements during some thirty visits which they paid to the ORG , either together or separately , DATE and DATE . CARDINAL summary is written by ORG , a specialised medical doctor . The summaries also contain an evaluation of certain statements as well as of the GPE conditions both prior to and after the taking into care of their children .

The material submitted by the ORG also feature extracts from A. ’s patient records at ORG , dated in DATE and DATE and containing statements by her therapist PERSON

The Government have also relied on notes drawn up in DATE by a nurse of the children ’s home after she had supervised a meeting between the children and their biological parents .

The Government have furthermore produced a report by PERSON on DATE according to which the out - of - home placement of the children had been successful and they were no longer in need of therapy . The circumstances were nevertheless not such as to support a termination of the public care .

In a further report dated DATE Dr PERSON , a specialist in child psychiatry at ORG , concludes however , inter alia , that J. ’s foster parents are able to see his need for therapy .

Finally , the Government have also adduced information obtained from the municipal legal aid office and relating to the applicant ’s contacts with that office in DATE .

The relevant legislation is outlined in the ORG ’s judgment in PERSON and GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ORG CARDINAL-VII ) . Those and further provisions of particular relevance to the present case are described below .

When the need for child welfare is caused primarily by inadequate income , deficient living conditions or lack of housing , or when these factors constitute a serious obstacle to the rehabilitation of a child and family , local authorities must provide adequate financial support without delay , and improve the family ’s housing conditions . Open - care assistance includes both general support measures in accordance with LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) and specific assistance , inter alia by appointing a lay helper or a support family , by providing adequate therapy and by assisting the child in his or her personal needs through financial and other support . The assistance shall be provided in co - operation with the child and its parents or other carers ( section CARDINAL of LAW ) .

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

If a child is in imminent danger for a reason stated in section CARDINAL of LAW or is otherwise in need of an urgent 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 Social Welfare Board shall terminate the public care when there is no longer any need for such care and an out - of - home placement , provided such termination is clearly not contrary to the best interests of the child ( section CARDINAL ) .

In accordance with LAW of LAW the social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work , without prejudice to the obligation to respect confidentiality .

NORP If , in the course of his or her activities , an employee or elected official in health care , social welfare , education , the police or a parish finds out that a child is in evident need of family - oriented or individual child welfare , he or she shall notify ORG without delay . Any other person may also contact ORG to this end ( section CARDINAL of LAW ) .

The municipality may appoint a support group to assist ORG in child welfare matters . The group shall consist of representatives of the social authorities , experts on children ’s growth and development as well as other specialists ( section CARDINAL of LAW ) .

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

A child who has attained DATE is entitled to state his or her opinion in child welfare matters . A child who has attained DATE is entitled to be heard as stipulated in CARDINAL of LAW ; he or she is also entitled to demand the social services and other support measures ( section CARDINAL , subsection CARDINAL , of LAW ) .

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 .

Any decision concerning public care , the transfer of a child into foster or other care outside his or her home , access restrictions and isolation of the child shall be drawn up on a form approved by ORG ( section CARDINAL of LAW , as amended by Decree CARDINAL/CARDINAL which entered into force on DATE ) .

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 cooperation with those involved .

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

DATE . According to the Act on Cost - Free Proceedings ( laki maksuttomasta oikeudenkäynnistä , lagen om DATE rättegång CARDINAL ) , as in force at the relevant time , a physical person who was a party inter alia to a case before an administrative court involving the taking into public care of a child , the child ’s out - of - home placement or the termination of such care , could be granted cost - free proceedings in full or in part if he or she could not without difficulty meet all costs and expenses . No grant was to be made , however , if the case was of minor importance to the party ( sections CARDINAL - CARDINAL ) .

The grant of cost - free proceedings covered , inter alia , the fees of the legal counsel whom the competent court had appointed or approved under LAW . If a party who had been granted cost - free proceedings was unable to defend his or her rights and interests in an appropriate manner without the assistance of counsel , the court was under an obligation to appoint CARDINAL ( sections CARDINAL and CARDINAL ) .

The Act on Cost - Free Proceedings excluded from its scope proceedings concerning , for example , an access prohibition issued on the basis of LAW .

Under the DATE LAW ( laki yleisestä oikeusavusta , lagen om allmän rättshjälp CARDINAL/CARDINAL ) , as in force at the relevant time , a person who , given his or her financial situation , could not without difficulty afford to seek legal assistance , was entitled to request free assistance from the municipal legal aid office , provided the matter was not of minor significance or abusive in nature ( sections CARDINAL and CARDINAL ) . If the person qualified for such assistance in full or in part but the local legal aid office in question was unable to provide it in exceptional cases , for example due to the particular nature of the matter or due to a lack of confidence between the applicant and the local legal aid counsel , the applicant was to be directed to a private practitioner or to a legal aid office in another municipality . The fees and costs incurred on account of such a grant were to be covered in part or in full by the municipality in which the applicant was resident ( sections CARDINAL - CARDINAL and DATE ) .

The municipal legal aid board ’s decisions could be appealed against in accordance with the rules in the DATE and DATE Municipalities Acts ( kunnallislaki , kommunallag CARDINAL/CARDINAL and CARDINAL ) on the procedure for challenging decisions of municipal organs ( section CARDINAL a of LAW , as in force up to DATE ) .

The Public Legal Aid Act did not exclude the provision of legal aid in the proceedings before a social welfare board relating to the public care of a child or related access restrictions .