Violation of Art. 8 with regard to emergency care order concerning J.;No violation of Art. 8 with regard to emergency care order concerning M.;No violation of Art. 8 with regard to normal care orders;Violation of Art. 8 with regard to failure to take steps to reunite family;No violation of Art. 8 with regard to access restrictions;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

At the beginning of the events relevant to the application , PERSON had a daughter , PERSON , and a son , PERSON , born in DATE and DATE respectively . PERSON ’s father is X and PERSON ’s father is PERSON From DATE to May CARDINAL PERSON was voluntarily hospitalised for DATE , having been diagnosed as suffering from schizophrenia . From DATE and from DATE , she was again hospitalised for periods of DATE on account of this illness . In DATE she was hospitalised for DATE , diagnosed as suffering from an atypical and undefinable psychosis . It appears that social welfare and health authorities have been in contact with the family since DATE .

The applicants initially cohabited from DATE . In DATE both PERSON and PERSON were living with them . From DATE PERSON and X were involved in a custody and access dispute concerning P. In DATE a residence order was made transferring custody of P. to X.

PERSON was again hospitalised from DATE to CARDINAL DATE , from CARDINAL May to DATE , and from DATE , on account of psychoses . She was in compulsory care DATE and DATE . According to a medical report dated CARDINAL DATE , PERSON was paranoid and psychotic .

On DATE , according to the social welfare authorities’ records , a discussion took place between a social worker and PERSON ’s mother . PERSON ’s mother said that her daughter ’s health condition was really bad and that PERSON had destroyed a childhood picture of hers , a wedding photo of the mother , broken a glass and “ pierced the eyes ” of all appearing in the photos . PERSON ’s mother had said that she was tired of the situation , as she did not get any support from the mental health authorities . She added that she was worried and afraid that “ again something must happen before PERSON is admitted to care ” .

On DATE PERSON was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care , having initially been diagnosed as suffering from psychosis . The conditions for compulsory care were not considered to be met but she remained in voluntary care until DATE .

Allegedly , X did not allow PERSON , P. and PERSON to meet . On DATE , when PERSON was again pregnant , her access to PERSON was further limited by an order of ORG of NORP Basing itself on a doctor ’s opinion , the court held that the child ’s mental development would be endangered if the meetings between PERSON and PERSON continued without supervision as had been ordered in DATE .

According to the records of the social welfare authorities , PERSON showed signs of behavioural problems . On DATE a psychologist reported how PERSON had played with CARDINAL dolls saying – in very vulgar terms – that they were performing sexual acts . On DATE PERSON was said to have broken a mirror in the presence of PERSON who had kept repeating : “ mummy broke the mirror ... ”

Notes of the social authorities of CARDINAL and DATE among others state that games which PERSON played and pictures he drew were of a destructive nature . According to the notes taken on DATE , he had lately , while the children were singing together at the DATE - care nursery , shown immense hatred , threatening “ to kill everybody ” . The occasions when PERSON fetched him were described as “ unpleasant scenes ” , PERSON shouting and hitting his mother who did not react . It was noted , however , that he no longer played doll games with sexual connotations .

According to the records of the social welfare authorities , a discussion between PERSON , her mother , ORG and a number of social and mental - health care officials took place on DATE , during which it was mentioned that the authorities might have to intervene in LOC ’s upbringing , from the child - protection point of view , in a more drastic way than had been the case so far . It appeared that in connection with PERSON ’s recent hospitalisation T. had “ forcibly ” taken her from a restaurant , which had made PERSON furious , with the consequence that she had thrown things around ; for example , the microwave oven had ended up on the floor . T. had said that PERSON was unable to control herself .

On DATE the child welfare support group , consisting of various social and health authorities , agreed that the aim should be to place M. in a children ’s home for DATE as an assistance measure of open care under section CARDINAL of the DATE LAW ( lastensuojelulaki , barnskyddslag DATE “ the DATE LAW ) , during which period psychological examinations of the child would be carried out .

On CARDINAL DATE a social welfare official decided on behalf of ORG ( perusturvalautakunta , grundtrygghetsnämnden ) of PERSON to place LOC in a children ’s home for a period of DATE . This was to be regarded as a short - term support measure pursuant to the DATE Act . The applicants had been consulted , together with ORG mother and sister , on DATE , in order to find an open - care measure which would be practicable . According to the records of that meeting , no such practical measure had been proposed by any of the participants . The applicants had then been heard again on DATE and had not objected to the placing of PERSON in a children ’s home .

In an opinion of CARDINAL DATE , requested by ORG , doctors GPE and GPE considered that PERSON was not at that time able to care for PERSON , but that her mental state would not necessarily permanently prevent her from caring for him . Doctors GPE and GPE worked at the hospital of H. , where PERSON had been cared for since DATE during the periods indicated above .

On DATE it was reported by the social welfare authorities that , when PERSON and PERSON had come to the children ’s home where PERSON was staying , the boy had undergone a total change in his behaviour , characterised by anger , hatred , swearing , etc . T. had said that he was really tired of the situation and that in his view PERSON was in need of hospitalisation . When a visit to the health centre had been suggested to her , she had become very angry .

According to a statement of DATE by the children ’s home , PERSON and PERSON had come to the home on DATE . While T. had been playing with PERSON , other children had come to tell the staff that PERSON had asked a DATE girl what her name was . As the girl did not reply , PERSON had raised her voice and shaken the girl , not letting her go until an older girl had given the child ’s name . The other children had been frightened by PERSON ’s behaviour .

On DATE the social welfare official who had decided on DATE to place ORG in a children ’s home informed ORG and the local hospital of S. in writing that she was very worried about the health of PERSON and the baby she was carrying . She requested the hospitals to contact her as soon as PERSON arrived at the hospital and , more particularly , at the time of the baby ’s delivery . She also expressed the wish that health - care professionals should pay special attention to the relationship between the mother and the new - born baby from the very beginning .

On DATE PERSON was taken to a district hospital , where she gave birth to PERSON on DATE . According to the hospital records , the mother stayed calm during the delivery . After the delivery a written decision concerning an emergency care order was served on the hospital . The child was taken to the children ’s ward . The mother ’s behaviour in the ward was later found to be somewhat restless but not completely disorderly . The hospital records indicate that she understood the situation and wanted to leave hospital DATE . Medication to prevent the secretion of milk was prescribed . It seems that PERSON left the hospital on DATE , that is , the following morning , without any post - natal examination . She went to her mother ’s home , where she started pushing an empty pram around the place .

J. was immediately placed in emergency care , pursuant to section CARDINAL of LAW . After the birth of their child , PERSON and T. were informed of this decision by CARDINAL social workers at the hospital of H. The Social Director , who had made the decision on behalf of ORG , noted that PERSON ’s mental state had been unstable during the last stages of her pregnancy . He considered that the baby ’s health would be endangered since PERSON had found out about the plans to place the baby in public care . Lastly , he considered that the baby ’s father , PERSON , could not guarantee its development and safety . In addition the ORG referred to the family ’s long - standing difficulties , namely , PERSON ’s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children , ORG ’s inability to care for both PERSON and PERSON , PERSON ’s reluctance to accept guidance , the impossibility of putting the whole responsibility for ORG development on ORG , and the impossibility of providing open - care support measures to the necessary extent . The applicants were not heard prior to the decision . On DATE the applicants were notified in writing of the decision to take the new - born baby into public care . The notification was also faxed to PERSON

On DATE the ORG also placed PERSON in emergency care , citing principally the same reasons as in his decision of DATE concerning J.

The applicants did not appeal against the emergency care orders .

On DATE ORG took note of the emergency care orders and prohibited all unsupervised access between PERSON on the one hand , and PERSON on the other . The number of supervised visits , however , was not restricted . ORG decided to continue preparations for taking PERSON and J. into care .

A meeting was held by social workers at the family centre on DATE , before the arrival of the baby from the hospital and in the absence of the applicants . It is mentioned in the report that there was a plan to prohibit the mother ’s visits for DATE on the ground that her reactions could not be predicted as she had , for example , broken things at home . After this initial period she would be allowed to visit the baby without restriction , but accompanied by her personal nurse . However , this plan was not implemented . The following entry appears in the register for DATE : “ The mother may come with her personal nurse if she wants . Other visitors not allowed for the time being . ”

PERSON was asked to come with T. to the social welfare office on DATE at TIME in order to be informed of the decision of DATE by the Social Director concerning PERSON On DATE PERSON and PERSON ’s biological father ) were notified in writing of the decision of DATE . The notification was also faxed to PERSON

On DATE PERSON was hospitalised voluntarily at the hospital of H. on account of psychosis , having obtained a referral from a doctor at a health care centre . She was treated there until DATE .

On DATE J. was placed in the family centre . T. visited her DATE .

At DATE T. left the applicants’ home , having been told by the social welfare officials that he had to break off his relationship with PERSON “ if he wanted to keep ” J. The applicants nevertheless continued their relationship .

On DATE ORG gave its decisions taking PERSON into “ normal ” public care , giving reasons similar to those mentioned in the emergency care orders ( see paragraph CARDINAL above ) , and prolonged the access restriction until DATE . PERSON was allowed to see the children only in the company of her personal nurse . ORG essentially considered that PERSON ’s state of health remained unstable ; that she was subject to aggressive and uncontrolled emotional moods ; and that public care proceedings were a severe mental ordeal for a patient . As regards PERSON , the ORG therefore believed that her personal security could be jeopardised if access were to take place without supervision . As regards PERSON , the ORG feared that PERSON ’s visits to the children ’s home “ could no longer be supervised by its staff , which would not be in his interest ” . Before the decisions of DATE the applicants had been heard and had expressed their objection to the care decisions envisaged .

On DATE PERSON visited both her children , accompanied by her personal nurse . The register indicates that it was “ a difficult situation ” .

On DATE T. moved to the family unit of the family centre with J.

On DATE PERSON was again hospitalised in voluntary care at the open ward of the hospital of H. , suffering from psychosis . She left hospital DATE , however . On DATE she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care . On DATE she was committed to compulsory psychiatric care . According to the file , her relatives had earlier been worried about her and had contacted the hospital in order to get her into hospital care . They reported that PERSON had disappeared from her home , where she had behaved in an unsettled and aggressive manner . Her hospitalisation lasted until DATE , that is , DATE .

During the period DATE and DATE CARDINAL PERSON visited her children at their respective children ’s homes . During the visits she was accompanied by her personal nurse from the hospital , who was in contact with the social welfare authorities and arranged the visits having regard to PERSON ’s state of mental health . According to the centre ’s register , she visited J. twice during this period .

According to a statement made by a social worker on DATE , ORG had taken good care of CARDINAL , first at the hospital until DATE and later on at the family centre . It was agreed that J. would stay at the family centre and that T. would visit her every other day . J. would visit her father for the first time from CARDINAL to CARDINAL DATE , during which time T. would organise her christening . The intention was that the baby could move in with her father later on .

After T. ’s paternity had been established on DATE , T. and PERSON were granted joint custody of ORG .

T. ’s travel expenses to the centre were paid for by the social welfare authorities . From the centre ’s records it can be deduced that T. succeeded in creating a relationship with the baby and learned to take good care of her . The home leaves were spent with T. first at his mother ’s house and later in his new home .

On DATE ORG referred both public care orders to ORG ( lääninoikeus , länsrätten ) for confirmation , as the applicants had opposed them . In support of its referrals , the ORG submitted a statement by a social welfare official dated DATE , according to which ORG would not be able to care both for PERSON and the new - born J. alone , since PERSON was living in the same home and had been psychotic for DATE . T. had been in contact with J. at the children ’s home CARDINAL times a week . While staying in a flat attached to a municipal children ’s home , he had cared for J. for DATE and had subsequently cared for DATE in his new home . ORG had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by ORG .

On DATE ORG confirmed the care order concerning J. , considering that PERSON had been mentally ill ; that the applicants had had conflicts “ as a result of which ORG had moved away from their home at DATE ” ; that because of PERSON ’s illness and the family ’s other problems the applicants had been unable to provide J. with adequate care ; that the care support provided to the family had not sufficiently improved the family ’s situation and that the measures could not be expected to satisfy ORG care needs . No hearing was held .

On DATE ORG confirmed the care order concerning PERSON , repeating the reasons put forward in its decision of CARDINAL DATE concerning J. No hearing was held .

In an appeal to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) against the confirmation of the public care order concerning PERSON , the applicants were represented by LAW ( yleinen oikeusavustaja , allmänna rättsbiträdet ) of S. ORG dismissed the appeal on DATE .

On DATE ORG extended the time allowed for an appeal by PERSON against the confirmation of the care order made in respect of J.

On DATE PERSON appealed against the care order in respect of J. as confirmed by ORG on DATE . On DATE ORG granted PERSON cost - free proceedings as from DATE , appointed PERSON as her representative and upheld ORG decision of DATE .

By a decision of CARDINAL DATE ORG placed J. in a foster home in PERSON , a town QUANTITY away from the applicants’ home . PERSON joined her on DATE . The foster parents had no children of their own . Social welfare officials told the applicants and the foster parents that ORG and PERSON ’s placement would last “ for DATE ” . The applicants had proposed that the children ’s public care be implemented in the homes of relatives .

In the meantime , on DATE , J. was christened in the presence of PERSON , GPE

A consultation was held at the children ’s home , on DATE , in the presence of T. According to the records , PERSON ’s mental health was very unstable and her psychiatric treatment was expected to have to be continued for DATE . T. , however , had expressed his hopes that PERSON and he could , together , take care of J. in the future . It was agreed that PERSON would stay at the children ’s home and would visit ORG every week from DATE until DATE , beginning on DATE . T. would visit J. on other days , according to an arrangement to be agreed with the children ’s home .

On DATE ORG prolonged the access restriction until DATE .

The following notes of a social welfare official appear among those in the case records of ORG :

“ DATE :

NORP ... In addition , the importance of future access between J. and T. has now been questioned , since J. ’s placement in [ public foster care ] is under preparation . It will be difficult for T. to give up J. ... ”

“ DATE :

K. ... states that she is considering moving [ back with T. ] when she is discharged from the hospital on DATE . ... [ Her ] wish is for PERSON and J. to be placed in the same [ foster ] family . ... ”

“ DATE :

... T. agrees to J. ’s placement in a [ foster ] family . ... ”

“ DATE :

... T. is slightly opposed to J. ’s placement in a [ foster ] family . ... It is again explained [ to him ] why J. can not live with him as long as [ the applicants ] continue their relationship . ... ”

“ DATE :

... The essential issue from ORG point of view is [ the applicants’ ] relationship ; if [ it ] continues , J. can not stay with T. ... The alternatives are : J. comes back home to ORG or is placed in [ foster care ] . ... [ He ] can provide the basic care and upbringing alone provided he receives some support . ... ”

“ DATE :

... Access between M. and PERSON has been successful now that ORG has been attending [ the visits ] . ... ”

“ DATE :

... The father has been responsible for the care of the institutionalised child . He has been active and acted on his own initiative . He has fed , clothed and bathed the child . He has also taken care of the child ’s outings and of rocking the baby to sleep . The father has treated the child naturally and with consideration ; he has talked a lot to the child and showed her tender emotions . He has enjoyed his time with the child on the child ’s terms . The father has treated the child patiently and with warmth , taking into consideration the needs of the child .

The mother has visited the child CARDINAL times and stayed only for a moment each time .

... J. has had the advantage of regular interrelation with CARDINAL person who takes care of her , namely her father . A safe relationship with the father has given the child a feeling of basic security , which acts as a basis for positive development of her emotional life . J. has the necessary resources to grow up and develop into a healthy and well - balanced child . In the circumstances , the foundation for the family placement is good . ”

On DATE PERSON was discharged from the hospital of H.

On DATE ORG drew up a plan concerning the implementation of the public care . The ORG alternative plan was allegedly ignored . For instance , the children could not meet their maternal grandmother at her home .

After the adoption of the care plan on DATE , the applicants requested a relaxation of the access restriction . For example , T. had been permitted to see PERSON only once a month .

On DATE the applicants requested , inter alia , that ORG should draw up a public care plan aiming at the reunification of the family .

On DATE the social welfare authorities organised a meeting in order to revise the care plan of DATE . The applicants and their representative did not attend the meeting .

On DATE the ORG restricted both ORG access to the children to CARDINAL DATE visit at the foster home , to take place under supervision and TIME . The Social Director considered that the grounds for public care still existed . In his view , although the applicants were dissatisfied with the visits set out in the care plan , affording the children an unlimited right to see their parents would create an obstacle to their successful placement . The applicants appealed .

On DATE ORG held an oral hearing concerning the access restriction imposed on DATE . It took evidence from CARDINAL psychiatrists , who had interviewed PERSON of them , Dr PERSON , did not know PERSON personally but commented on a diagnosis concerning her mental state by indicating that PERSON had a tendency to react in a psychotic manner to conflict situations . PERSON stated that PERSON ’s state of health did not prevent her from caring for her children . Consequently , if her illness had been the reason for the access restriction , that reason no longer existed .

In a written expert opinion , requested by ORG and submitted to ORG , PERSON , a child psychiatrist , expressed the opinion that the children should be permanently cared for by the foster parents and that the applicants’ visits should , for the time being , be discontinued so as to protect the children and the foster parents . According to the applicants , PERSON had not met them or the children , nor had he consulted the other psychiatrists before making his proposal .

On DATE ORG upheld the access restriction issued on DATE . It noted that neither of the witnesses who had been heard orally had been willing to state any opinion as regards the children ’s development . It reasoned , inter alia , as follows :

“ ... [ By allowing ] access to take place once DATE and [ by allowing contact through correspondence ] it will be ensured that the children will retain knowledge about their biological parents . If the grounds for public care later cease to exist , a reunification of the family will thus be possible . ... ”

ORG dismissed the applicants’ request for exemption from costs , since the relevant legislation did not cover disputes concerning access restrictions . At the court ’s hearing , the applicants were nevertheless assisted by PERSON .

On DATE the applicants requested that ORG discontinue the public care of PERSON and J.

On DATE the ORG allegedly told the applicants that any further children born to them would also be placed in public care . According to the Government , the Social Director only told them , when expressly asked , that it was possible that any further children born would be taken into public care .

In an opinion of CARDINAL DATE submitted at ORG request , PERSON , a psychiatrist , commented on the possibility of revoking the public care orders . She concluded that PERSON ’s mental state would not prevent her from having custody of the children . According to PERSON , PERSON ’s efforts to have public care discontinued and access restrictions relaxed showed that she possessed psychological resources . She noted , inter alia , that T. was PERSON ’s closest support in the care and upbringing of the children . In addition , ORG mother , at the time her guardian ad litem , was ready to help in caring for them . PERSON , however , added that she could not , as a psychiatrist for adults , take any stand as regards the interests of the children . PERSON opinion was also based on a report submitted by PERSON . , a psychologist , who had come to the same conclusion as regards PERSON ’s ability to have custody of her children .

The Public Legal Adviser advised against requesting revocation of the care orders .

K. was hospitalised from DATE and from CARDINAL DATE , apparently on account of psychosis .

On DATE ORG rejected the ORG request of CARDINAL DATE that the care order be revoked , stating as follows :

“ At the moment the health of the children ’s mother , PERSON , is better and the family situation has changed in other respects in comparison with the situation in DATE when the decisions to take the children into care were made .

According to PERSON , a psychiatrist , PERSON still has ‘ a lot of GPE in her emotional life as well as fragility , brought about by DATE experiences and the diagnosis of mental illness for which she needs DATE and will need for a long time to come DATE therapeutic support and treatment . A regular medication is also needed in order to guarantee her continued well - being and to make it possible for her to manage in open care and to have custody of her children . PERSON , however , did not give her more precise opinion as to PERSON ’s ability to take care of and bring up her children even though PERSON was explicitly asked to give such an opinion .

ORG can have custody of her children . She can not , however , be responsible for the needs and education of the children – not even with the support of ORG and the open - care support measures . Their ability to act as educators taking care of the children ’s needs is inadequate .

According to the statement given by the children ’s clinic of the municipality of ORG , the ability of PERSON and T. to understand the needs of the children and to respond to them is very limited . Even though ORG is capable of interaction with the children , he finds it difficult to respond to the children ’s emotional needs . PERSON is also incapable of creating an emotional relationship with the children . At an earlier stage , PERSON , a psychologist at the local health care centre , reached the same conclusion in her statement given during the custody proceedings concerning PERSON ’s oldest child . In his expert statement PERSON , a child and youth psychiatrist , reached a similar conclusion . Already in DATE PERSON realised that PERSON ’s problem was related to the fading of the boundaries between her and her children . She stated that PERSON amalgamated herself and her children into a single entity without being able to see the unique and individual nature of the children . According to GPE , PERSON was also unable to take into account the children ’s needs in relation to their age . Dr PERSON finds that the children do not seem to be objects independent of PERSON but that she sees them as ‘ self - objects’ . She finds it difficult to realise that children are individual human beings in need of love and care . Instead , she sees them as if they were meant for her own personal use . ”

DATE . The applicants appealed on CARDINAL DATE , requesting that they be granted exemption from costs and afforded free legal representation . They also requested an oral hearing .

On DATE a further child , NORP , was born to the applicants . Having given birth , PERSON left the hospital for a while on TIME with the new - born baby wrapped in a blanket , walking barefoot in the cold weather until the hospital staff realised what had happened and intervened .

On DATE PERSON was committed to compulsory psychiatric care and treated at the hospital of H. until CARDINAL DATE , while NORP was being cared for by T. According to a psychiatrist ’s observation of DATE , PERSON “ must have been suffering from paranoid schizophrenia for some time ” .

On DATE ORG granted the applicants exemption from costs and appointed PERSON as their ORG representative in the case concerning their appeal against ORG decision of DATE . It decided not to hold a hearing in respect of the ORG request for a revocation of the care orders and provided the parties with an opportunity to supplement their written observations .

On DATE ORG rejected the ORG appeals of DATE without holding an oral hearing . The court noted , inter alia , that according to the medical certificates , PERSON ’s state of health had improved but her emotional life was still unstable . She therefore continued to be in need of psychotherapy and medication . In addition , a further child had been born to the applicants and PERSON had again been treated at the hospital of NORP These CARDINAL factors had caused an additional strain militating against a revocation of the care orders .

On DATE social welfare officials revised the public care plan , proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K. , where the foster parents were living . The applicants objected to this proposal , considering that it would have entailed a further restriction of their access to the children . Instead , they requested CARDINAL meetings DATE , CARDINAL of which was to be at their place of residence . On DATE they asked for a separate written decision concerning their access request , so that they could appeal against it .

In a letter of CARDINAL DATE the ORG informed the applicants that there were no longer any grounds for the access restriction . Meetings between the applicants and the children were nevertheless only authorised for TIME once a month on LOC chosen by ORG . They were also informed that the meetings would be supervised .

In his decision of CARDINAL DATE the ORG confirmed that there were no longer any grounds for the access restriction . On DATE and CARDINAL DATE ORG confirmed the decision of CARDINAL DATE . The applicants appealed .

DATE . As regards the applicants’ appeal against ORG decisions of DATE and CARDINAL DATE , ORG considered , on DATE , that the revised care plan drawn up on DATE had already entailed an access restriction which had later been renewed by further decisions , without the applicants having been properly heard , in respect of their access request . The matter was referred back to ORG for further consideration .

In the light of ORG decision the Acting Social Director , on DATE , formally restricted the ORG access to the children to CARDINAL meeting a DATE up to CARDINAL DATE . The meetings were to take place in the foster home . In addition , the foster parents were to visit the applicants with the children DATE . The Director considered , inter alia , that it was important that the children settle themselves in the foster family environment in which they would grow up . Closer contacts with their parents would mean change and insecurity as well as the creation of a new crisis in their development . The process of settling which had started well would be jeopardised . For the children ’s progress it was therefore necessary that their situation remain stable and secure . The Director ’s decision was confirmed by ORG on DATE . The applicants appealed .

On DATE ORG rejected the ORG appeal against the access restriction confirmed on CARDINAL DATE .

On DATE social welfare officials revised the public care plan , proposing that the children meet the applicants once a month on the premises of a school at the children ’s place of residence . As the applicants were not present when the proposal was made , the care plan was again revised on DATE in so far as the access restriction was concerned . The applicants then proposed that the children meet them without supervision once DATE . The public care plan was , however , revised as proposed by the social welfare officials .

On DATE the ORG restricted both ORG access to the children , until DATE , to CARDINAL DATE visit on the premises of a school at the children ’s place of residence , where access was to take place under supervision for TIME . CARDINAL of the foster parents was also ordered to be present at the time of the access . The Social Director ’s decision was confirmed by ORG on DATE . The ORG appealed against the decision to ORG , requesting an oral hearing . The court obtained a statement from a child psychiatrist , PERSON , who was also recommended by the ORG representative to ORG . PERSON statement included the following observations :

“ The right of access of PERSON and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and their health . This requires an examination of the quality , permanence and durability of their human relationships , because psychological growth and development take place in interaction with human relationships . In my opinion , the human relationships are to be examined from the children ’s point of view . ...

... In conclusion , I note that before PERSON was placed in the children ’s home ... the mother had been in psychiatric hospital for treatment CARDINAL times , making a total of DATE . Thus , PERSON had lived with his mother for DATE , namely , DATE and DATE . The longest that they spent together was DATE and DATE . ... T. has , as ‘ stepfather’ , helped to look after PERSON for at DATE . ... the foster parents have so far looked after PERSON for DATE without interruption . ... In practice , PERSON has not had any kind of relationship with his biological father ...

In the light of the above , I note that the human relationships in PERSON ’s early childhood have , owing to the circumstances , been non - continuous , short - term and changing . The most stable and continuous relationships have been with his foster parents ... Therefore , these relationships are the most relevant and important ones for PERSON ’s psychological growth and development .

... J. was born in DATE . She was taken into public care immediately after she was born . At first , she stayed in the district hospital for a short time , and later at a reception home for small children . T. , as the biological father of PERSON , looked after her for DATE in DATE and DATE . J. was placed in the foster family ... in DATE , when she was DATE . So far , PERSON has stayed with her foster family for DATE without interruption . J. is now DATE and DATE .

In the light of the above , I note that , due to the circumstances , J. has not had any significant and important relationships other than those with her foster parents . J. ’s relationship with her foster parents is of primary importance for her psychological growth and development . ...

... From the children ’s point of view , especially , but naturally also from that of the foster parents , the foster family is a family to which the principles concerning family life enshrined in LAW on the Rights of the Child and in LAW can be applied in the same way as to biological families . This point of view is especially important when , due to the circumstances , the biological family has not lived together .

In the light of the above , I note that the arrangements for helping and supporting the foster parents of PERSON and J. are in the best interests of the children . The arrangement will , in the first place , ensure the important , continuous and safe human relationships of PERSON and J. with their foster parents ...

It is also important for PERSON and J. ’s psychological growth and development that , in the safe and stable conditions provided by the foster family , they are able to form and maintain a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances .

In my opinion , this can be done by complying with the decision of ORG of S. of DATE concerning the right of access . At present , an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interests of the children , because PERSON and T. are not capable of meeting the emotional needs of PERSON and J. ... Such arrangements concerning the right of access would clearly endanger the health and development of PERSON and J. In my opinion , the question of an unrestricted right of access should be evaluated when the children have attained the age of CARDINAL . ”

In a statement of DATE PERSON stated that in her opinion PERSON ’s psychiatric state did not preclude PERSON ’s having custody of her daughter NORP

On DATE the care plan was again revised by the social welfare authorities . The applicants had been informed of the time of the meeting concerning the revision of this care plan on home visits on DATE and DATE . Their representative had also been informed of the meeting by a letter sent on DATE . The applicants did not attend the meeting , and neither did their representative . The applicants were thus not explicitly heard in this connection but , as they had expressed their opinion on other occasions , the authorities recorded their point of view in the plan .

On DATE ORG rejected the ORG appeal against ORG decision of DATE to restrict the ORG access right ( see paragraph CARDINAL above ) . It refused the applicants’ request for an oral hearing .

Although the applicants had stated only in their reply that the appeal was also made on NORP ’s behalf , ORG found in its decision that it was in part made in her name . The court stated that a person to whom a decision was directed , or upon whose right , duty or interest it had a direct effect , had the right of appeal . The court considered that the ORG ’s decision , which concerned NORP ’s GPE and GPE right of access , was not such a decision .

On DATE the Social Director restricted the applicants’ , and consequently their youngest child NORP ’s , access to PERSON to CARDINAL DATE visit of TIME on the premises of a school at the children ’s place of residence until DATE . The applicants did not appeal .

The care plan was again revised on DATE .

According to a statement made on DATE by PERSON ( formerly PERSON ) , PERSON had not been hospitalised since DATE and her health had been stable since DATE . There had been no problems concerning the care of NORP ( who had lived with her parents all the time and had not been taken into care ) . It was recommended by PERSON that the social welfare authorities should reduce or discontinue control visits to the applicants’ home in order to give PERSON the possibility of settling down to normal life without constant supervision by the authorities .

The restriction orders were extended by the Social Director on DATE , until DATE . The visits were to take place under supervision on the premises of a school at the children ’s place of residence . However , CARDINAL of the visits was to take place at the applicants’ home in the presence of the foster parents . The Social Director considered , inter alia , that the reunification of the family was not in sight as the foster family was now the children ’s de facto home ; that the ORG access to the children DATE and through correspondence was enough to maintain the children ’s awareness of their biological parents ; and that closer contacts with the applicants would endanger the children ’s development , bring change and insecurity and create a new crisis in their development . The applicants appealed against this decision to ORG which , on DATE , rejected the appeal and upheld the ORG decisions . In its reasoning , the ORG quoted both ORG and PERSON

According to the reports drawn up by the supervisor who attended the meetings of the children and the applicants during the period from CARDINAL DATE to DATE , the adults got on quite well together during the meetings . J. often played games with PERSON When NORP was smaller , J. played by herself , but later it seemed that the girls , PERSON and NORP , spent more time together . On the other hand , it seemed that the first applicant made very little contact with PERSON According to the supervisor ’s description , especially in the earlier reports , the first applicant seemed to have concentrated on NORP

M. visited PERSON and PERSON at their home for DATE of CARDINAL to DATE without supervision .

The applicants appealed against ORG decision of DATE , concerning the right of access , to ORG ( formerly ORG ) . An oral hearing , at which PERSON was also heard , was held on DATE . In its decision of CARDINAL DATE the administrative court upheld ORG decision .

NORP The social authorities reviewed the care plan on DATE , having consulted the applicants , among others . It was decided that the children would remain in the foster home . According to the care plan , PERSON and J. are allowed to meet PERSON and T and others close to them , as from DATE until DATE , without supervision once a DATE alternately at the applicants’ home and the foster GPE home . The meetings at the ORG home will take place from DATE TIME until TIME , and the meetings at the foster GPE home on DATE , from TIME until TIME The children are also allowed to meet their other relatives freely during those meetings . In addition to the above , the children will also spend a day and a night with the applicants each DATE , and DATE each summer during their school holidays .

J. and PERSON ’s foster mother died in DATE .

Section CARDINAL of ORG and Right of Access Act ( laki lapsen huollosta ja tapaamisoikeudesta , lag ang . vårdnad om barn och umgängesrätt CARDINAL/CARDINAL ) defines what is meant by child custody and what is required from the person having custody .

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

According to LAW ( lastensuojelulaki , barnskyddslag DATE “ the DATE LAW , as amended by PERSON no . GPE ) , a child who has attained DATE is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal against them .

In situations where the child does not live with its parents or where they are separated because of the need for protection or some other relevant reason , the child has in principle the right to maintain personal relations and contacts with its parents . However , this right may be limited on specific grounds and by certain procedures prescribed by law , for example , where there is a danger or threat caused by contacts or on the basis of the best interests of the child ( section CARDINAL of ORG and Right of Access Act ; sections CARDINAL(CARDINAL ) , CARDINAL and DATE of the DATE Act ; Articles CARDINAL and CARDINAL § QUANTITY of the Convention on the Rights of the Child ) .

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

Where the parents or those who have custody of the child are not able to provide the child with sufficiently secure conditions for its growth and development , the social welfare board and its officials must take the necessary measures in accordance with LAW . These measures include the assistance in open care referred to in sections CARDINAL to CARDINAL and the duty to take a child into care and provide substitute care referred to in section CARDINAL .

According to section CARDINAL(CARDINAL ) of the CARDINAL Act ( as amended by PERSON no . GPE ) , where the need for child welfare is caused primarily by inadequate income , deficient living conditions or lack of housing , or when these factors constitute a serious obstacle to the rehabilitation of a child and family , or a young person in the process of becoming independent who had been a recipient of social welfare assistance before attaining DATE , local authorities must provide adequate financial support without delay and correct deficiencies in housing conditions or provide housing according to need .

Assistance in open care , referred to in DATE ) of LAW , includes general assistance in accordance with LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) . In addition to general assistance , special forms of assistance are mentioned . These include voluntary help or help from a supporting family ; appropriate therapy ; holiday and recreational activities ; and assisting a child in his or her education and training , in job and home finding , and in his or her leisure activities and other personal needs , by providing financial and other support . The assistance must be provided in cooperation with the child or young person and the parents or other persons caring for him or her .

According to section CARDINAL of LAW , the social welfare board must take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by alcohol or drug abuse , 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 .

If a child is in imminent danger for a reason stated in section CARDINAL or is otherwise in need of an urgent care order and substitute care , the social welfare board may take him or her into care without submitting the decision to the county administrative court for approval ( section CARDINAL of LAW ) .

ORG . According to section CARDINAL(CARDINAL ) of the DATE Act , substitute care must be provided without delay where it is needed and is in the best interests of the child .

An emergency care order expires within DATE of the decision unless a normal section CARDINAL care order is applied for during that period . Such a care order must be made within DATE or , on special grounds , within DATE of the emergency order . A decision on emergency care can be appealed against in the normal way .

Taking into care differs from adoption in that the parents are able to keep limited rights and responsibilities regarding custody and guardianship .

Care in accordance with section CARDINAL of LAW terminates when the child attains DATE or marries . Public care may be terminated earlier where the conditions for the termination of care exist .

According to section CARDINAL of the CARDINAL Act , the social welfare board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section CARDINAL , unless such discharge is clearly contrary to the best interests of the child .

On the custody of a child in care , section CARDINAL(CARDINAL ) of the DATE Act stipulates :

“ When the social welfare board takes a child into care , it shall be empowered to decide on the child ’s care , upbringing , supervision , other welfare and residence . The board shall , however , make every effort to cooperate with the parents or other persons having custody of the child . ”

Through a decision to take a child into care the social welfare board automatically takes over the power to decide on contacts between the child and its parents and other persons close to the child ( section CARDINAL(CARDINAL ) of the DATE Act ) .

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

According to section CARDINAL of LAW , the social welfare board or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child , or ( b ) such a restriction is necessary for the safety or security of the parents , the children or the staff in the residential home . On the above - mentioned grounds , the social welfare board may decide that a child ’s whereabouts shall not be disclosed to its parents or custodians while the child is in care .

According to section CARDINAL of the DATE LAW CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordning DATE ) , a decision concerning restriction of the right of access is valid for a specified time , and it must name the persons whose rights are restricted . In addition , the decision must specify what kind of contacts are restricted and the scope of the restriction .

A decision to restrict the right of access restricts the child ’s right to meet its parents and other persons close to it . Such persons close to the child are the child ’s guardian or other legal representative , relatives and those persons who have kept in touch with the child before and after he or she was taken into care .

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

NORP In the case of a child taken into care ( section CARDINAL of LAW ) or a child placed in residential care as a form of assistance in open care ( section CARDINAL of the DATE Act ) the care plan must specify ( 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 access to its parents and other persons close to the child will be organised ; and ( d ) how after - care will be organised .

According to section CARDINAL of LAW , the care plan must be drawn up in cooperation with those involved .

According to section CARDINAL of LAW , a social welfare board , with several members elected by the municipality , is responsible for providing social welfare in its area , and is charged with the responsibilities assigned to social welfare boards in other Acts .

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

According to section PERSON ) of LAW , a decision made by the social welfare board on taking a child into care or placing him in substitute care , must be submitted within DATE to the county administrative court for approval if a child who has attained the age of DATE or the persons having custody of him or her oppose the measure or if the hearing required by section CARDINAL(CARDINAL ) of the Act could not be arranged .

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

According to section CARDINAL(CARDINAL ) of the DATE Act , appeals against a decision on care orders , on placement in substitute care , on termination of care or on a matter concerning housing , as specified in section CARDINAL(CARDINAL ) of the LAW , made by the county administrative court in pursuance of this LAW , may be lodged with ORG .

According to section CARDINAL(CARDINAL ) of the DATE Act , decisions other than those contemplated in subsection ( CARDINAL ) , relating to family - oriented and individual child welfare rendered by the county administrative court in pursuance of LAW , can not be appealed against .

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

A person challenging a decision made by an official subordinate to a municipal social welfare board has the right , under LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) , to have the decision reviewed by a municipal social welfare board within DATE of being informed of the decision . The social welfare board ’s decision can be appealed against in the county administrative court .

According to section CARDINAL of LAW , a decision made by the social welfare board is subject to appeal to a county administrative court within DATE of service of the decision . Certain decisions by the county administrative court can be appealed against in ORG .

When the decision of an authority can be appealed against , the authority in question must attach to its decision information about the appeal procedure .

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

When an appeal has been lodged , the appellate authority can stay enforcement of the decision or order that enforcement be suspended .

Section CARDINAL(CARDINAL ) of ORG ( hallintolainkäyttölaki , förvaltningsprocesslag ORG ) , which entered into force on DATE , contains rules on the right to an oral hearing before administrative courts .

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

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

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

NORP The county administrative board ( lääninhallitus , länsstyrelsen ) , in the capacity of a regional ORG authority , has general powers to supervise the activities of municipalities . Following a procedural appeal , the county administrative board can also investigate whether a local authority has acted in accordance with the law .

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

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


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought civil proceedings against the joint stock company “ DATE ” ( акционерное общество “ NORP ” ) , subsequently known as the collective farm “ DATE ” ( сельскохозяйственная артель “ NORP ” ) , seeking recovery of QUANTITY of sunflower seeds under a supply agreement .

On DATE the ORG granted the applicant ’s claim . The defendant was absent from the hearing .

On DATE the writ of execution was returned to ORG as it had not been possible to enforce it .

On DATE , following a request by the defendant , the ORG quashed the judgment of DATE and resumed the proceedings .

On DATE the applicant modified her claims and asked the court to order the defendant to pay her MONEY .

On DATE the ORG granted the applicant ’s claim . The judgment was not appealed against and became final .

The judgment could not be enforced because the defendant had insufficient funds .

On an unspecified date in DATE the applicant lodged a claim against ORG seeking compensation for damages incurred through the inappropriate administration of justice , notably the excessive length of proceedings in respect of her claims against the company . She argued that the courts had failed to observe the time - limits prescribed by LAW , which had undermined the possibility of enforcement of the final judgment in her favour .

On DATE the ORG of GPE dismissed the applicant ’s claim without consideration on the merits . Referring to Ruling no . ORG , adopted by ORG on DATE ( see paragraph CARDINAL below ) , ORG noted that current laws did not determine the grounds or procedure for adjudicating a claim for damages on account of failure by the courts to comply with statutory time - limits . In particular , the court noted as follows :

“ According to LAW , the rules of civil procedure in federal courts of general jurisdiction are determined by LAW , LAW , LAW and other federal laws .

The law has not determined the territorial and subject - matter jurisdiction over civil claims for compensation for damage incurred in civil proceedings in cases where a dispute has not been heard on the merits as a consequence of unlawful acts ( or failure to act ) of a court ( a judge ) , including breach of a reasonable - time guarantee .

Pursuant to LAW , the judge shall dismiss a statement of claim if the claim is subject to examination not in civil proceedings but in another judicial procedure . ”

On DATE ORG upheld the decision of CARDINAL DATE on appeal , finding as follows :

“ In dismissing the claim with reference to Ruling no . CARDINAL of DATE of ORG of GPE , the court came to the correct conclusion that its examination by a district court of general jurisdiction would only be possible if a federal law determined that the district court of general jurisdiction had territorial and subject - matter jurisdiction over such claims .

At the present time , however , neither the Code of Civil Procedure of GPE nor any other federal law ... determines the territorial and subject - matter jurisdiction over claims concerning compensation for damage caused by judicial acts not touching upon the merits of the case . ”

Article CARDINAL of the Civil Code contains general provisions on liability for the infliction of damage . It establishes that damage inflicted on the person or property of an individual must be reimbursed in full by the person who inflicted the damage ( Article CARDINAL § CARDINAL ) .

Article CARDINAL of the Civil Code determines liability for damage caused by the unlawful actions of law - enforcement authorities or courts . In particular , it establishes that the federal or regional treasury shall be liable for damage sustained by an individual in the framework of the administration of justice provided that the judge ’s guilt has been established by a final criminal conviction ( Article CARDINAL § CARDINAL ) .

By Ruling no . CARDINAL of DATE , ORG found that Article CARDINAL § CARDINAL of LAW was compatible with LAW in so far as it provided for special conditions in respect of State liability for damage caused in the framework of the administration of justice . It clarified , nevertheless , that the term “ administration of justice ” did not cover judicial proceedings in their entirety , but only extended to judicial acts touching upon the merits of a case . Other judicial acts – mainly of a procedural nature DATE fell outside the scope of the notion “ administration of justice ” . State liability for damage caused by such procedural acts or failures to act , such as a breach of the “ reasonable length ” requirement of court proceedings , could arise even in the absence of a final criminal conviction of a judge if the fault of the judge had been established in civil proceedings . ORG emphasised , moreover , that the constitutional right to compensation by the ORG for damage should not be tied in with the personal fault of a judge . An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of LAW . ORG held that ORG should legislate on the grounds and procedure for compensation by the ORG for damage caused by the unlawful acts or failure to act of a court or judge and determine territorial and subject - matter jurisdiction over such claims .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW provides that a civil claim must be dismissed by a judge , in particular , if it is amenable to examination not in civil proceedings but in another judicial procedure .


No violation of Art. 6-1;No violation of Art. 3;No violation of Art. 8;No violation of Art. 12

Mr. PERSON was born in DATE and lives in GPE . From DATE he worked for the dry - cleaning firm of PERSON ; he was mainly employed as a driver until DATE and thereafter as , in particular , controller of branch establishments . On DATE , he was given notice that he was dismissed with effect from DATE of DATE as a result of rationalisation measures .

He took proceedings before the appropriate courts contesting the lawfulness of this notice ; in his submission , those courts did not determine his case within " a reasonable time " as required by LAW . CARDINAL ( article CARDINAL ) of the Convention .

On DATE , the applicant commenced an action before ORG claiming that his dismissal was " socially unjustified " ( " sozial ungerechtfertigt " ) within the meaning of section CARDINAL of LAW ( GPE ) . The other party ( " the defendants " ) served a defence on DATE , DATE before the expiry of the time - limit granted for this purpose by ORG .

At the first hearing on DATE , Mr. PERSON ’s lawyer submitted new written pleadings . ORG thereupon allowed an application by the defendants for time to reply and adjourned the case until DATE .

In their written reply of CARDINAL DATE , the defendants , as requested by ORG , gave a detailed account of the reasons for the contested dismissal ; they also described the economic situation of the firm and explained the rationalisation measures taken .

The applicant ’s lawyer appended to his counter - reply of DATE a note written to him by his client . This note contained the charge that the managers of the PERSON firm had " negligently squandered the CARDINAL ( business and private assets ) properly earned by PERSON " but had " personally secured to themselves such a safe position that these people are no longer interested in whether or not the PERSON firm gets even deeper into the red " .

These accusations prompted the defendants on DATE to send the applicant CARDINAL further notices of dismissal , an extraordinary notice ( ausserordentliche PERSON ) effective forthwith and , as an alternative or precautionary ( vorsorglich ) measure , an ordinary notice ( ordentliche PERSON ) with effect from DATE . The extraordinary notice was based on LAW ( ORG ) which requires a " serious reason " for a dismissal of this kind and the giving of notice within DATE from the moment when the employers had knowledge of the facts judged by them to constitute such a reason .

On DATE , Mr. PERSON ’s lawyer filed CARDINAL further sets of written submissions dated CARDINAL and DATE respectively ; appended to the former was a copy of the defendant ’s letter of DATE ; the latter extended the plaintiff ’s action to cover the CARDINAL dismissal notices of DATE .

At a hearing on DATE , ORG adjourned the proceedings until DATE as the GPE lawyer had only received the applicant ’s latest written pleadings at that hearing .

On DATE , the applicant ’s lawyer submitted another memorandum .

At the adjourned sitting on DATE , ORG , acting in accordance with the applicable legislation , proposed a friendly settlement , but the proposal was not accepted .

ORG delivered judgment on DATE immediately after hearing the final submissions of the parties . It held that neither the notice of CARDINAL DATE nor the extraordinary notice of DATE had terminated the applicant ’s contract , since the former was " socially unjustified " within the meaning of QUANTITY CARDINAL of LAW and the latter was invalid for lack of a " serious reason " as required by LAW . ORG also rejected an alternative request by the defendants for discharge ( Auflösungsantrag ) of the contract of employment in pursuance of section CARDINAL of LAW . It ordered the defendants to pay Mr. PERSON CARDINAL arrears of wages but dismissed the claim for future salary .

The judgment was notified in writing to the parties on DATE .

The defendants appealed to ORG on CARDINAL DATE . In their submission , the accusations made by Mr. PERSON constituted a " serious reason " warranting the extraordinary notice of DATE ; the CARDINAL ordinary notices of DATE and DATE were likewise valid , the former being " socially justified " for pressing reasons connected with the running of the business . They called on the ORG to overrule the judgment appealed from and to dismiss the plaintiff ’s action or , in the alternative , to discharge the contract of employment existing between the CARDINAL parties .

The applicant in turn lodged a cross - appeal ( ORG ) on DATE , seeking payment of arrears of wages for DATE .

The parties then filed written pleadings dated DATE and CARDINAL DATE ( the defendants ) and DATE ( Mr. PERSON ) . The applicant maintained his accusations against the managers of the firm and asked ORG to call for an expert ’s opinion in order to corroborate the allegations made .

In the course of this written procedure both the applicant and the defendants had requested ORG not to hold sittings during certain periods , namely from DATE to DATE for the applicant and from DATE to DATE and from DATE for the defendants .

Taking due note of this , ORG on CARDINAL DATE set the case down for hearing on DATE . On DATE , the ORG examined , amongst other matters , the exact circumstances surrounding the tendering in evidence of the applicant ’s accusations which had been appended to his lawyer ’s written pleading of DATE ( see paragraph CARDINAL above ) . When questioned whether he had intended use to be made of these accusations in the lawsuit , he stated that he had relied on the judgment of his lawyer . The ORG also raised the possibility of employing Mr. PERSON in some other capacity ; it directed the defendants to submit within DATE a chart setting out the firm ’s commercial staff structure , indicating for each post whether it was suitable for the applicant and , if not , the reason why .

The applicant was given DATE to reply .

The defendants filed the chart , with accompanying explanations , on DATE ; then , on DATE , they replied to a written pleading from Mr. PERSON which , though presented on DATE , had been communicated to them after the hearing of DATE .

On DATE , the applicant put forward a proposal for a friendly settlement , but this was rejected by the defendants on DATE . By letter of DATE , Mr. PERSON ’s lawyer filed a memorandum , dated DATE , containing comments by his client and asked the ORG to set the case down for an early hearing , thereby renewing a request he had already made on DATE , DATE before the defendants had refused the offer of friendly settlement . He stated , amongst other things , that " the disproportionately long state of suspense [ had ] become physically and psychologically unbearable " for Mr. PERSON .

On DATE , ORG decided to hold a hearing on DATE and transmitted to the defendants the above mentioned written pleadings of DATE .

On DATE , the applicant ’s lawyer addressed to the ORG ( ORG ) of the PERSON and GPE of GPE a petition seeking measures to expedite proceedings before the labour courts .

Early in DATE , as an apparent sequel to this petition and following an increase in the number of judicial posts ( see paragraph DATE below ) , ORG was able to establish a Sixth ORG . MONEY of the cases pending before ORG were referred to the new ORG , although the former continued to deal with the PERSON action .

The ORG advised the applicant in reply on CARDINAL DATE that the authorities had immediately taken the necessary steps to ease the workload of the labour courts .

The legal and factual questions to be decided were debated by the CARDINAL parties at the hearing held on DATE . At the close of the sitting , ORG made an order setting out the various points in issue and their possible implications as seen by the ORG ; it then proposed a settlement whereby the contract of employment would be considered as having terminated on DATE and the defendants would pay the applicant a lump sum of DM CARDINAL .

The ORG called on the parties to state their views by DATE .

By memorandum of DATE , the defendants refused the settlement proposal ; they referred to the " undisputed " fact that the QUANTITY notices of DATE had been served on the applicant on DATE .

For his part , Mr. PERSON ’s lawyer , in a written statement of DATE in which he paid tribute to ORG for its " thorough and prudent examination of the case " , declined to accept the suggested settlement ; he specified that he could only agree to such a solution if the contract were regarded as terminated on DATE .

In addition , on DATE he filed a brief reply to the above - mentioned memorandum of DATE . He contested the defendants’ affirmations " insofar as they deviate[d ] from the explanations " given by his client , but he did not however specifically deal with the matter of the date of receipt of the QUANTITY notices of DATE . He added that he would be absent from CARDINAL May to DATE and requested ORG to fix a hearing in DATE

On DATE , ORG directed that the hearings should resume on DATE and so advised the parties on DATE .

At the hearing on DATE , Mr. PERSON denied that he had actually received the CARDINAL notices of DATE on DATE and asked the ORG to question on his wife on this point , which was material for the purposes of LAW ( see paragraph CARDINAL above ) . The Court acceded to this request . Mrs. PERSON , who was present in the court - room , confirmed the statements of her husband ; she asserted that the notices had been served DATE .

The defendants contested this testimony and asked for the counter - evidence of CARDINAL witnesses to be heard . The applicant objected to such a move on the ground that it would tend to protract the proceedings . The ORG nevertheless decided that Mr. PERSON , as well as the chief executive of the PERSON firm and the CARDINAL witnesses nominated by the defendants , should be heard on DATE . At the same time it invited the applicant , who had applied for free legal aid in the appeal proceedings , to supply the necessary certificate for that purpose .

The certificate was submitted under cover of a letter of CARDINAL DATE from Mr. PERSON ’s lawyer . Consequently , on DATE the ORG granted free legal aid for the applicant ’s defence against the main appeal ; it reserved its decision as regards his cross - appeal ( see paragraph CARDINAL below ) .

Earlier , on DATE , the applicant had challenged the above - mentioned decision of CARDINAL DATE before ORG . Complaining of the duration of the litigation and relying on LAW , DATE , DATE and DATE of LAW as well as LAW , he had sought from ORG an order requiring ORG to bring its consideration of the matter to an immediate close .

The case - file was sent to ORG which , sitting as a panel of CARDINAL judges ( section CARDINAL ( a ) of ORG , Bundesverfassungsgerichtsgesetz ) , gave judgment on DATE . The ORG refused leave for the constitutional application to proceed : even supposing the application to be admissible , it did not offer sufficient prospects of success since there was nothing in the evidence to show that ORG had protracted the proceedings ; having regard to the extreme complexity of the facts of the case , the length of the lawsuit had been caused primarily by the applicant who had continuously supplemented his submissions and called for the taking of further evidence .

The presiding judge of ORG , which was dealing with the applicant ’s case , retired on DATE .

On DATE , ORG heard CARDINAL witnesses in connection with the date of receipt of the dismissal notices . It reserved until DATE its decision whether , despite the objections of Mr. PERSON ’s lawyer , it should hear evidence from an additional witness nominated by the defendants and from Mr. PERSON , the chief executive of the PERSON firm .

On DATE , ORG granted the applicant free legal aid for his cross - appeal ( see paragraph CARDINAL above ) and directed that Mr. PERSON be called to give evidence on DATE .

By letter of DATE , the GPE lawyer , pleading a prior commitment , asked for adjournment of the hearing of Mr. PERSON ; he further specified that both he and Mr. PERSON would be on leave from DATE until DATE ORG granted this request on DATE and postponed the hearing until DATE

The applicant wrote on DATE to the Secretary to the Commission - his petition to the Commission having been lodged on DATE - to complain of this decision , but according to the Government there is no trace in the record of the case of his having entered any such objection before ORG .

On DATE , the representatives of both parties declared that the CARDINAL disputed dismissal notices had indeed been received by Mr. PERSON on DATE .

On DATE , ORG ordered that an expert opinion should be obtained on the question whether or not the applicant ’s accusations against the managers of the PERSON firm were justified ( see paragraph CARDINAL above ) . ORG , on being so requested , nominated an expert on DATE ; after hearing the parties , the ORG appointed the expert on DATE .

The expert ’s report was filed on DATE ; the ORG communicated it to the applicant and the defendants for comment by DATE .

The last hearing was held on DATE . The parties made their final submissions , following which ORG delivered its judgment . It allowed the GPE appeal and dismissed the applicant ’s cross - appeal , awarding the costs of the proceedings against him .

ORG held that the extraordinary notice of CARDINAL DATE was valid for the following reasons . The charges made by the applicant constituted a serious reason for dismissal within the meaning of paragraph CARDINAL of LAW and the dismissal notice had been served within DATE laid down by paragraph CARDINAL of that Article . The thorough and convincing explanations furnished by the expert made it clear that Mr. PERSON ’s accusations were without foundation ( haltlos ) : apart from being extremely defamatory , they were inappropriate and quite unnecessary for his cause of action contesting the ordinary notice of CARDINAL DATE ( see paragraph CARDINAL above ) .

With a view to bringing a petition for a review on a point of law ( Revision ) , Mr. PERSON applied on DATE to ORG for free legal aid ; his application was granted on DATE .

On DATE , he asked ORG for leave to petition notwithstanding expiry of the legal time - limit ; the ORG gave leave on DATE .

The petition which had been filed earlier on DATE , was transmitted to the defendants who replied in writing on DATE .

On DATE , ORG , after hearing the parties , proposed a settlement whereby the contract of employment would be considered as having terminated on DATE and the defendants would pay the applicant a lump sum of DM CARDINAL in addition to the ORG CARDINAL already paid as arrears of wages in compliance with ORG judgment .

The proposal was rejected by the defendants ; by judgment of DATE , ORG dismissed the petition for review as unfounded .

On DATE , Mr. PERSON challenged this decision before ORG alleging violation of several basic rights . He complained of the length of the proceedings before the various labour courts , citing this factor as the cause of the contested decision . He further criticised ORG for having terminated a lawsuit " which in normal circumstances should not have been terminated yet " ; in view of his application to the Commission , so he contended , ORG had " clearly not wished to make the breach of the LAW more evident by continuing the proceedings " . In addition , the applicant claimed that the judgment being challenged was unsustainable as far as its reasoning was concerned ( sachlich unhaltbar ) and constituted an unacceptable domestic sanction intended to punish him for having taken his case to the Commission .

On DATE , ORG refused leave for the constitutional application to proceed on the ground that it was inadmissible . The applicant had not , it was stated , identified with sufficient clarity any possible violation of his basic rights . In particular , his complaint regarding the length of the proceedings did not warrant a finding that the outcome of the action was incompatible with any of his basic rights ; this was likewise true of his submission that the reasoning of the judgment being challenged did not bear examination .

As in DATE ( see paragraph CARDINAL above ) , the Court had sat in judgment as a panel of CARDINAL judges .

For DATE after his dismissal , Mr. PERSON was paid DATE unemployment benefits ( PERSON ) under LAW ( ORG ) , that is to say , DM CARDINAL from DATE to DATE , DM CARDINAL from DATE to CARDINAL DATE and DM CARDINAL.CARDINAL until DATE . ORG ) refused , on DATE , to grant him unemployment welfare assistance ( PERSON ) thereafter on account of his wife ’s earnings . Since DATE , the applicant has been in receipt of a social security retirement pension ( NORP ) , the amount of which – originally ORG CARDINAL per month - has been periodically adjusted .

According to the Government , from DATE ORG endeavoured in vain to find the applicant some other employment , even offering financial help to potential employers .

As the result of an economic recession in GPE , the labour courts of appeal experienced a significant increase in their workload DATE . According to the statistics supplied by the Government at the request of ORG , the incidence of appeals from labour court judgments rose , as compared with DATE , by MONEY in DATE , by MONEY in DATE and by MONEY in DATE . In order to cope with this state of affairs , the relevant authorities increased the number of judicial posts by MONEY in DATE , by MONEY in DATE and by MONEY in DATE . There were MONEY more cases dealt with in DATE , MONEY in DATE and CARDINAL per cent in DATE .

As regards ORG in particular , CARDINAL appeals were entered in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE ; CARDINAL appeals were decided in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . The average length of proceedings progressed from DATE in DATE to DATE in DATE , but then fell to DATE in DATE , DATE in DATE and DATE . In this respect , ORG was more favoured than the labour courts of appeal of the other ORG where , nevertheless , a downward trend was also registered . Examination of the CARDINAL cases decided in DATE and DATE by ORG , which dealt with the PERSON appeal , showed , according to the Government , that CARDINAL cases were disposed of after CARDINAL hearing , CARDINAL cases after CARDINAL hearings , CARDINAL cases after CARDINAL hearings and QUANTITY cases after CARDINAL hearings .

Faced with the backlog of labour court business in the DATE ’s , the ORG tabled in the legislative assemblies in DATE a PERSON designed , amongst other things , to expedite proceedings before the labour courts . The resultant Act entered into force on DATE .


Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

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

, may be summarised as follows .

On DATE the Juvenile Judge ( kinderrechter ) for criminal cases of ORG ( rechtbank ) found the applicant guilty of causing bodily harm ( mishandeling ) . The applicant was sentenced to a suspended term of juvenile detention ( voorwaardelijke jeugddetentie ) , a community service order ( werkstraf ) of TIME and a training order ( leerstraf ) of TIME .

In view of the applicant ’s conviction , and pursuant to LAW paragraph CARDINAL of the DNA Testing ( Convicted Persons ) Act ( Wet DNA - onderzoek bij veroordeelden ; “ the LAW ” ) , the public prosecutor , on DATE , ordered that cellular material be taken from the applicant in order for his DNA profile to be determined . A mouth swab was taken from the applicant on DATE .

On DATE the applicant , pursuant to LAW , lodged an objection ( bezwaarschrift ) against the decision to have his DNA profile determined and processed , i.e. entered into a national DNA database . He submitted that , in accordance with LAW , the personal interests of a minor should be balanced against the general interests of society when it was being considered whether to apply the LAW to that minor , and within that balancing exercise the interests of the minor should be the primary consideration pursuant to LAW . The applicant submitted that regard should be had to the age of the convicted person at the time of the commission of the crime , the seriousness of the offence , the circumstances under which the offence had been committed , the risk of the convicted person reoffending and other personal circumstances of the convicted person .

The applicant further argued that the public prosecutor had failed to strike a proper balance of the interests involved . In particular , the public prosecutor had failed to take into account that the applicant had only been DATE when he committed the offence , that the offence had consisted of the administration of CARDINAL blow with his fist , that the applicant was performing well at school and that he showed no risk at all of reoffending . The applicant also claimed that the storage of his DNA profile would not be beneficial for the possible detection , prevention or conviction of future crimes committed by him and that the exception contained in article CARDINAL paragraph CARDINAL sub b of the LAW ( see below ) should therefore apply .

On DATE ORG , having heard the public prosecutor and counsel for the applicant in camera , dismissed the applicant ’s objection . It considered that , if all requirements stipulated in the LAW had been met , the public prosecutor was obliged to collect a DNA sample from the applicant regardless of the fact that he was a minor . As regards the applicant ’s claim of a violation of LAW , ORG referred to the parliamentary discussions ( parlementaire behandeling ) on the adoption of the LAW , which had concluded that the LAW did not breach fundamental rights enshrined in the LAW and international treaties . ORG adopted these conclusions and LAW CARDINAL argument was accordingly dismissed .

ORG further noted that ORG had not featured in the parliamentary discussions . Being of the view that the determination and processing of the DNA profile of a minor could adversely affect that minor ’s interests , ORG considered that it ought to interpret the provisions of the LAW in the light of the text and aim of the Convention on the Rights of the LAW . With reference to LAW , it found that where the determination and processing of a minor ’s DNA profile were concerned , the interests of the minor and the general interests of the ORG in the prevention and detection of crime should be weighed against each other . ORG went on to observe that it appeared from the file that the applicant had severely injured his victim , that he had already performed TIME of community service to avoid criminal prosecution relating to an earlier charge of causing bodily harm , and that at the hearing the public prosecutor had disclosed that the applicant had in the meantime been apprehended on suspicion of attempted manslaughter . ORG held that in these circumstances the interests of the ORG outweighed those of the applicant . It further considered that the determination and processing of the applicant ’s DNA profile would not result in any adverse effects for the applicant relating to his young age since the DNA database was not public and stringent criteria on access to it were in place .

No appeal lay against the decision of ORG .

The statutory maximum prison sentence for the offence of assault causing bodily harm is DATE ( article CARDINAL paragraph CARDINAL of LAW , GPE ) . In the event that grievous bodily harm is caused , the statutory maximum prison sentence is DATE ( article CARDINAL paragraph QUANTITY of LAW ) .

The DNA Testing ( Convicted Persons ) Act entered into force on DATE .

LAW requires the public prosecutor at ORG that has given judgment at first instance to order that a sample of cellular material be taken from , inter alia , a person who has been convicted of CARDINAL of the offences listed in CARDINAL paragraph CARDINAL sub b of LAW ( PERSON ) . Assault causing bodily harm is one of those offences .

According to the explanatory memorandum to LAW ( Memorie van Toelichting ; ORG , no . CARDINAL , DATE session , no . CARDINAL ) , the seriousness of the offence(s ) involved justifies determining and processing a DNA profile of the convicted person in order to contribute to the detection , prosecution and trial of criminal offences committed by him or her and , if possible , to prevent him or her from again committing criminal offences .

Paragraph CARDINAL sub b of LAW sets out CARDINAL exceptions . No order for sample collection will be made if , in view of the nature of the offence or the special circumstances under which it was committed , it may reasonably be assumed that the determination and processing of the DNA profile will not be of significance for the prevention , detection , prosecution and trial of criminal offences committed by the person in question . It appears from the explanatory memorandum to this provision that the first exception of paragraph CARDINAL sub b , relating to the nature of the offence , may apply when a person has been convicted of a crime for the solution of which DNA investigations can play no meaningful role – perjury or forgery , for instance . The second exception , relating to the special circumstances under which the offence was committed , may apply to a convicted person who is most unlikely previously to have committed an offence in respect of which DNA investigation might be of use and who will not be able to do so in the future , for example due to serious physical injury or in the case of a woman who has never had any dealings with the law and who , after having been ill - treated by her husband for DATE , finally inflicts grievous bodily harm on him or kills him .

LAW paragraph CARDINAL of the Act stipulates that DNA profiles are only to be processed for the purpose of the prevention , detection , prosecution and trial of criminal offences . It further states that rules as to the processing of DNA profiles and cellular material are to be laid down by ORG ( algemene maatregel van bestuur ) , after ORG ( College Bescherming Persoonsgegevens ) has been heard . The rules in question have been set out in the DNA ( Criminal Cases ) Tests Decree ( Besluit DNA - onderzoek in strafzaken ) . It regulates how and by whom samples are to be taken ; how they are to be kept , sealed and identified ; how and by whom the DNA profile is to be drawn up ; and which authorities are allowed to make use of the data stored in the DNA database . The Decree further lays down rules on the duration of the retention of a DNA profile and cellular material . This depends on the offence of which the individual concerned has been convicted . The data of persons convicted of an offence carrying a statutory maximum sentence of DATE or more is retained for DATE . For less serious offences carrying sentences of DATE , cellular material and DNA profiles may be retained for a maximum period of DATE .

The individual concerned may lodge an objection against the determination and processing of his or her DNA profile with ORG within DATE after the sample has been taken or after he or she has been served with the notification , required by article CARDINAL paragraph QUANTITY , that sufficient cellular material has been collected for a DNA profile to be determined and processed ( article CARDINAL paragraph CARDINAL ) .

The documents relating to the enactment of the LAW contain no references to LAW . However , in a parliamentary discussion which took place on DATE the Minister of ORG said that he saw no reason to exempt juveniles from the application of the LAW or to establish a different regulation for them , since the chance of a convicted person reoffending was no less in the case of a minor than in that of an adult ( Handelingen Tweede Kamer – Records of ORG DATE , p. CARDINAL - CARDINAL - CARDINAL ) .

The compatibility of the LAW with the Convention on the Rights of the LAW was discussed in ORG when , in DATE , a number of amendments – not relevant to the present case DATE to the LAW were proposed . On that occasion the Minister of ORG replied to written questions of Members of ORG that the Convention on the Rights of the ORG intended for juvenile criminal law to provide an educational perspective in which the reaction to the commission of criminal offences by juveniles ought to be based on rehabilitation , the offering of a second chance and correction of , or compensation for , a failed upbringing . According to the Minister , the taking of cellular material for the purpose of DNA investigation was not contrary to those principles . On the contrary , he considered that the processing of their DNA profile in the national database could contribute to their social rehabilitation . He therefore saw no need to amend the LAW in this context ( GPE ( Parliamentary Documents ) , DATE , CARDINAL , nr . CARDINAL , p. CARDINAL ) .

After the entry into force of the LAW , different ORG reached different decisions on objections lodged by minors against the determination and processing of their DNA profiles . Whereas ORG considered that the full application of the LAW to persons who had been underage when convicted sat ill with the Convention on the Rights of the LAW in view of its stigmatising effect , others found that DNA testing following a conviction was not detrimental to a child ’s feelings of dignity and self - worth and did not stand in the way of the child ’s reintegration into society . CARDINAL ORG subscribing to this latter view considered that application of the LAW to a minor did not entail adverse consequences since information relating to the determination and processing of a DNA profile was not public and would only be used in a specific criminal case ; the DNA profile was stored in the DNA database anonymously and coded ; and the minor would subsequently not be confronted with his DNA profile unless it appeared – as a result of a comparison of his or her DNA profile with DNA profiles of traces found in unsolved criminal cases – that he or she had previously committed one or more offences or committed another offence in the future . It was concluded that no stigmatising affect attached to the processing of DNA profiles and cellular material of juveniles . Moreover , to the extent that the LAW aimed at dissuading convicted persons from reoffending , the processing of their DNA profile in the DNA database might have a preventive effect on the behaviour of minors ( ORG , DATE , GPE National Case - law ( database ) number , “ LJN ” – AUCARDINAL ) .

In view of the differing decisions taken by different ORG , the Procurator General at ORG ( PERSON ) lodged an appeal in cassation with that court in the interest of the law ( cassatie in het belang der wet ) in CARDINAL cases ( not including the present one ) . In its judgment of CARDINAL DATE ( PERSON ) , in which it had regard to the explanatory memorandum to the LAW and the parliamentary discussions on the adoption of the LAW , ORG considered that the basic premise of the text , goal as well as the tenor of the LAW was that cellular material be taken from every convicted person within the meaning of LAW paragraph CARDINAL of the LAW . The LAW did not differentiate between underage and adult convicts and the system of the LAW did not allow for any further balancing of interests . The public prosecutor was obliged to issue an order for cellular material to be taken unless one of the exceptions set out in paragraph CARDINAL of article CARDINAL applied . ORG concluded that the system , as intended by the legislator , of a wide opportunity for the taking of cellular material with CARDINAL exceptions that were to be narrowly interpreted , did not provide room for a generic exception for minors . Moreover , such a generic exception could also not be derived from ORG .