No violation of Art. 8 on account of restrictions on visits by family;Violation of Art. 8 on account of censorship of correspondence;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient

In a judgment delivered by ORG on DATE the applicant was sentenced to DATE imprisonment and to payment of a fine , inter alia for drug trafficking and membership of a ORG - type organisation . On DATE he was extradited from GPE in order to serve his sentence . He was subsequently held in FAC . In a judgment of DATE , deposited with the registry on CARDINAL DATE , ORG acquitted him of CARDINAL charges and reduced his sentence to DATE imprisonment . The applicant lodged an appeal on points of law on DATE . That appeal was dismissed in a judgment of CARDINAL DATE .

On DATE the judge at ORG responsible for preliminary inquiries issued a warrant to have the applicant brought before him immediately on suspicion of the murder of an officer of the ORG legal service ; the applicant was served with that warrant on DATE . The applicant was acquitted by ORG in DATE . The proceedings are apparently still pending .

In further proceedings against the applicant for membership of a ORG - type organisation and other offences linked with drug trafficking , he was acquitted of the first charge by ORG in a judgment of DATE .

On DATE , in another set of proceedings before ORG , the applicant was sentenced to DATE imprisonment , inter alia for conspiracy to engage in international drug trafficking . In a judgment of DATE ORG acquitted the applicant of one charge and reduced the sentence for the other charges to DATE imprisonment . An appeal on points of law by the applicant was dismissed in a judgment of CARDINAL DATE , deposited with the registry on DATE .

NORP The applicant is serving a DATE prison term to which he was sentenced by ORG for false imprisonment , among other offences .

By a decree of CARDINAL DATE the Minister of ORG ordered that the applicant should be subject to the special prison regime for DATE . This decree was grounded on public order and security considerations given the dangerousness of the ORG and of the applicant in so far as he was presumed , according to police reports , to have maintained links with ORG circles . Moreover , this decree , in derogation from LAW , imposed the following restrictions :

– no access to a telephone ;

– no conversation or correspondence with other prisoners ;

– no meetings with third parties ;

– limits on visits by family members , with a maximum of CARDINAL visit for TIME ;

– no sums of money above a fixed amount to be received or sent out ;

– only parcels containing clothing to be sent in from outside prison ;

– no organisation of cultural , recreational or sports activities ;

– no right to vote in elections for prisoners ' representatives or to be elected as a representative ;

– no handicrafts ;

– no food requiring cooking to be purchased ;

– not TIME per day to be spent outdoors .

By the terms of LAW , censorship of correspondence by the governor of a prison required previous authorisation by the court having jurisdiction .

On DATE the governor of PERSON transmitted to ORG an application by the applicant for permission for additional visits and telephone calls , if possible on request . The President of ORG allowed this application on DATE .

On DATE the governor of PERSON asked ORG to authorise censorship of the correspondence of the applicant , who on DATE had been served with the Minister of ORG 's decree placing him under the special regime . On DATE the President of ORG gave his authorisation .

On an unspecified date the applicant challenged the decree of CARDINAL DATE before the PERSON court responsible for the execution of sentences . He objected to being placed under the special regime and complained of its vexatious nature . The court rejected the appeal on an unspecified date in DATE .

The applicant was subsequently transferred several times to prisons in GPE , PERSON , PERSON , GPE , GPE and FAC , often for the sole purpose of allowing him to participate in the hearings of the appeal proceedings taking place in GPE .

On DATE the governor of FAC made an application to ORG and to ORG requesting authorisation to allow the applicant visits by members of his family ( the applicant is married and has CARDINAL daughters ) . The President of ORG granted his authorisation on DATE .

On an unspecified date an application for censorship of the applicant 's correspondence to be authorised was made by the prison to the PERSON court responsible for the execution of sentences . On DATE the ORG court responsible for the execution of sentences allowed that application for DATE .

On DATE the applicant appealed against that decision to the PERSON and PERSON courts responsible for the execution of sentences . The result of those appeals is unknown .

In a decree of CARDINAL DATE the Minister of ORG ordered that the applicant be placed under the special prison regime again , from CARDINAL DATE to CARDINAL DATE , on the ground that the conditions justifying that measure continued to exist . The restrictions were the same as those imposed by the previous decree .

On DATE the applicant appealed against this decree to the PERSON court responsible for the execution of sentences . He complained of being placed under the special regime and , in particular , of the restriction on visits by family members .

NORP In a decision of CARDINAL DATE the PERSON court responsible for the execution of sentences rejected the appeal in part , holding that imposing the special prison regime on the applicant was justified and that the decree complained of was based on adequate grounds . As for the restrictions imposed by that decree , the court found that the list of minimal conditions of detention laid down in section DATE of FAC should apply in relation to visits by family members . Consequently , the court struck down the ban on receiving CARDINAL family visit per month and ruled that the applicant would in future be entitled to CARDINAL .

On DATE the applicant appealed on points of law against that decision . He argued that the conditions of detention to which he was subjected were inhuman and that the special prison regime had been extended by decrees based on inadequate grounds . The public prosecutor also appealed against the decision . In a judgment of DATE , deposited with the registry on DATE , the appeals were declared inadmissible on the ground that the parties no longer had standing , since the decree of CARDINAL DATE had expired on CARDINAL DATE , before ORG delivered its judgment .

In a decree of CARDINAL DATE the Minister of ORG ordered application of the special prison regime to be extended until DATE , on the ground that the conditions justifying the measure continued to exist .

On DATE the applicant lodged an appeal against the above decree with ORG , to be transmitted , if necessary , to the PERSON court responsible for the execution of sentences . He complained , inter alia , of the lack of real grounds justifying extension of the special regime and argued that the restrictions placed on visits and time outdoors and the prohibition of the purchase of food requiring cooking were not only contrary to section DATE of FAC and incompatible with the aim of rehabilitation , but also vexatious . He asked for application of the special regime to be countermanded and for permission to receive visits from his wife and his daughters without being separated from them by glass partitions and to make telephone calls . The applicant also emphasised that he was being held far from his family and the place where the trial was taking place . The outcome of that appeal is not known .

In a decree of CARDINAL DATE the Minister of ORG ordered , on similar grounds , that application of the special prison regime be extended to CARDINAL DATE . On DATE the applicant challenged the above order in the ORG court responsible for the execution of sentences .

In a decree of CARDINAL DATE application of the special regime was once again extended by DATE . The grounds for that decree and the restrictions imposed were the same as those of the previous decrees . On DATE the applicant challenged the above decree in the ORG court responsible for the execution of sentences .

On DATE the applicant applied to the ORG court responsible for the execution of sentences for a date to be fixed for hearing his appeals of CARDINAL DATE and DATE .

In a decree of CARDINAL DATE the Minister of ORG once again extended application of the special regime by DATE ; that decision was based on grounds similar to those of the previous decrees . On DATE the applicant challenged the decree in the ORG court responsible for the execution of sentences . The court dismissed the applicant 's appeal in a decision of CARDINAL DATE . Basing its decision on ORG judgment no . CARDINAL , the court held that extension of the application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities . However , it struck down some of the restrictions previously placed on the applicant , namely suspension of the rehabilitation programme ; restrictions on visits by family members ; the prohibition of parcels containing anything other than clothing ; the ban on the purchase of food requiring cooking and the restriction of time spent outdoors to TIME per day . The applicant appealed on points of law against the above decision . The hearing in private was set down for DATE . On that date the appeal was declared inadmissible as being devoid of purpose , the decree 's period of validity having in the meantime expired .

On DATE the Minister of ORG ordered that the applicant be permitted to replace the DATE visit by his family with a telephone call , to receive CARDINAL additional parcel per month and CARDINAL special parcels per year , and to use the kitchens .

In a decree of CARDINAL DATE the Minister of ORG once again extended application of the special prison regime by DATE . That decision was based on grounds similar to those of the previous ones . The applicant challenged the above decree in the ORG court responsible for the execution of sentences , which dismissed his appeal in a decision of CARDINAL DATE , ruling that extension of application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities . However , it struck down some restrictions previously imposed , namely suspension of the rehabilitation programme , restrictions on visits by family members , the prohibition of parcels containing anything other than clothing , the ban on the purchase of food requiring cooking , and the restriction of outdoor exercise to TIME per day . The applicant appealed on points of law against the above decision but in a judgment of DATE his appeal was ruled inadmissible as being devoid of purpose , since the decree 's period of validity had expired in the interim .

On DATE the applicant applied to the ORG judge responsible for the execution of sentences , complaining of the regime under which he had been placed . The judge dismissed that appeal in a decision of DATE , deposited with the registry on DATE . He noted that the restrictions the applicant had complained of had been imposed by the prison authorities by means of departmental orders which , without exception , implemented the Minister of ORG 's decrees and were therefore lawful ; he further emphasised that defendants DATE unlike convicted persons DATE were not required to participate in the rehabilitation programme on account of the principles of the presumption of innocence and the freedom to defend oneself .

In a decree of CARDINAL DATE the Minister of ORG extended the special regime for DATE and ordered the governor of the prison to apply to the competent court for authorisation to censor all the applicant 's correspondence . On DATE the governor of ORG applied for authorisation to the GPE judge responsible for the execution of sentences , who informed the judge who had jurisdiction , namely the PERSON judge responsible for the execution of sentences . The latter ordered censorship of the applicant 's correspondence for DATE , starting on DATE .

On DATE the applicant appealed against the decree of CARDINAL DATE to the PERSON court responsible for the execution of sentences , which transmitted his appeal on DATE to ORG . ORG returned it to the PERSON court on DATE as jurisdiction over the matter had changed in the interim ( see paragraph CARDINAL below in fine ) . By a decision of CARDINAL DATE , deposited with the registry on CARDINAL DATE , the PERSON court responsible for the execution of sentences dismissed the appeal .

In a decision of CARDINAL DATE the Minister of ORG revoked the restriction on outdoor exercise .

In a decision of CARDINAL DATE the Minister of ORG ordered that the applicant should cease to be subject to the special regime .

A number of letters and the observations sent by the applicant to the ORG of ORG through his wife arrived with censors ' stamps from the prisons of GPE , GPE , ORG , ORG and ORG Censorship continued until DATE .

Letters sent by the applicant to his wife , in particular those of CARDINAL and DATE were censored ; the applicant was informed of this on CARDINAL and DATE .

The appeals by the applicant to the courts responsible for the execution of sentences were censored by the prison authorities .

Section CARDINAL bis of LAW ( Law no . CARDINAL of CARDINAL DATE ) , as amended by LAW no . CARDINAL of CARDINAL DATE , gives the Minister of ORG the power to suspend application of the ordinary prison regime as laid down in Law no . CARDINAL of DATE in whole or in part , by means of a decision stating grounds which is subject to judicial review , for reasons of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements .

Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in LAW , which includes offences relating to ORG activities .

Under the terms of section CARDINAL of Law no . CARDINAL of DATE , application of the section CARDINAL bis special regime was extended until DATE .

The measures which may result from application of section CARDINAL bis are the following :

– a ban on participating in the preparation of food and organising prisoners ' recreational activities ;

– a ban on visits by persons other than family members , a cohabitant or a lawyer ;

– a maximum of CARDINAL visits and CARDINAL telephone call per month ;

– censorship of all the prisoner 's correspondence except for that with his lawyer ;

– not TIME per day to be spent outdoors ;

– no extra visits allowed for good conduct ;

– restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison 's internal rules ;

– CARDINAL parcels per month ;

– no sums of money to be received from outside prison or sent out ;

– no handicrafts involving the use of dangerous tools .

Section CARDINAL ter of the Prison Administration Act provides for an appeal ( reclamo ) to the court responsible for the execution of sentences ( tribunale di sorveglianza ) against a decree of the Minister of ORG imposing the special regime within DATE from the date on which the person concerned receives a copy of the decree . Such an appeal does not have suspensive effect . The court must take a decision within DATE . LAW no . CARDINAL of DATE requires an appeal to be lodged with the court responsible for the execution of sentences which has geographical jurisdiction over the prison where an appellant is serving his sentence . An appeal to ORG lies against the decision of the court responsible for the execution of sentences .

ORG , having been asked to rule on whether such a system complied with the principle of non - encroachment on matters reserved for the legislature , held ( in judgments FAC . CARDINAL and CARDINAL of DATE ) that section CARDINAL bis was compatible with the LAW . It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister , an appeal lay against a ministerial decree to the courts responsible for the execution of sentences , which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned , which in any event ought never to entail inhuman treatment .

Nevertheless , ORG held , on the basis of LAW , which provides , inter alia , that restrictions on correspondence may be imposed only by means of a court decision whose grounds are stated , that the power to order censorship of a prisoner 's correspondence belonged to the courts alone . As a result , section CARDINAL bis could not be interpreted to include a power on the Minister of ORG 's part to take measures relating to prisoners ' correspondence .

However , ORG has held that the courts responsible for the execution of sentences should confine themselves to reviewing the lawfulness of a ministerial decree as such , and could not usurp the role of the administrative authorities in the choice of the actual measures to be taken . On the other hand , the courts responsible for the execution of sentences have in practice gone so far as to review whether each specific measure is in accordance with the aim pursued by the administrative authorities . The result of this had been that decisions of the courts responsible for the execution of sentences had often remained unexecuted , and this had given rise to conflicts between those courts and the administrative authorities .

In judgment no . CARDINAL of DATE the ORG established the principle that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementation of a measure , regard being had both to the aim pursued and to the fundamental rights guaranteed by LAW . ORG , moreover , changed the line of its case - law on the question even before ORG judgment , by allowing the court responsible for the execution of sentences to strike down , in whole or in part , the application of unlawful measures ( see judgments nos . DATE of DATE and CARDINAL of DATE ) .

On DATE , applying the principles laid down by ORG in the above - mentioned judgment , ORG of ORG sent a circular letter to the governors of prisons regarding organisation of the wings where prisoners subject to the special regime are held . This circular contained , inter alia , the following instructions : prisoners would from then on be allowed to use the kitchens ; they would have access to rooms equipped for sporting activities and to a library ; visits by family members could be replaced by telephone calls ; the use of glass partitions would continue but , as a result , the searching of visitors need not be so strict .

In judgment no . CARDINAL of PERCENT DATE ORG reaffirmed that section CARDINAL bis was compatible with the LAW , while changing and clarifying the interpretation to be given to it . It held , inter alia , that decrees imposing the special regime had to be based on genuine public - order and security grounds , and that decisions to extend application of the regime also had to be based on sufficient grounds which were independent of those which had justified the imposition of the rules in the first place . ORG held that the special regime should not amount to inhuman treatment or hinder the prisoner 's rehabilitation , which would be contrary to LAW . It nevertheless stated that at no time did LAW cease to apply , under which the treatment to which a prisoner is subjected must respect his personality , and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner 's personality and with his cooperation .

Section CARDINAL of the Act also remained applicable . This provided that cultural , sporting and recreational activities should be promoted and organised in prisons – as should any other activity allowing the expression of the prisoners ' personalities within the rehabilitation programme . These activities had to be organised , of course , in such a way as to prevent any contact between the person concerned and the ORG or criminal environment from which he came . Emphasising that the special regime had to respect the aim of returning the prisoner to normal society , ORG held that the principle of the presumption of innocence was not infringed by the fact that the special regime could be imposed on suspects before a final conviction . In fact , application of the special regime did not stand in the way of early release ( see ORG judgment no . CARDINAL of DATE ) , which presupposed the prisoner 's previous participation in the cultural , sporting and recreational activities provided for in section CARDINAL of LAW .

On DATE , in accordance with the principles laid down by ORG in the above - mentioned judgment , ORG of ORG sent a circular letter to prison governors concerning the organisation of the wings where prisoners subject to the special regime are held . This circular included , inter alia , the following instructions :

– outdoor exercise time was to be increased to TIME per day , but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be associated with the ORG ;

– the outdoor exercise yards in LOC and Pisa Prisons were to be equipped for physical exercise and sport ;

– one or more rooms for social , cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons ;

– on the question of work , the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons , with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be associated with the ORG ;

– visits by children DATE could take place without a glass partition ; if the visit took place in the presence of other persons , partition - free access was to be authorised for the children only and was not to exceed CARDINAL of the total duration of the visit in length ;

– prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking , because they were not to be allowed to use the kitchens except for the purpose of making hot drinks or heating up pre - cooked food .

Section CARDINAL of Law no . CARDINAL of DATE , as amended by LAW no . CARDINAL of DATE , provides that the authority empowered to order the censorship of prisoners ' correspondence is the court before which proceedings are pending ( whether the investigating court or the trial court ) until the delivery of the first - instance judgment , and the court responsible for the execution of sentences during any subsequent proceedings . Section CARDINAL also provides that the court with jurisdiction may order the monitoring of a prisoner 's correspondence in a decision stating reasons , but it does not set out the cases in which such a decision may be made .

NORP In practice , the censorship concerned means interception of all the correspondence of the prisoner subject to the order , which is then read by the judicial authority which ordered it , by the governor of the prison or by prison staff designated by the governor . The letters are then marked with the censor 's stamp , which serves as proof that they have been read ( see also LAW no . CARDINAL of DATE , implementing the above - mentioned PERSON no . CARDINAL ) . This supervisory measure can not lead to the erasing of words or sentences , but the judicial authority may order that CARDINAL or more letters should not be delivered . In such cases , the prisoner must be immediately informed of this . Such an order may also be made provisionally by the governor of the prison , who must , however , inform the judicial authority .

Lastly , with regard to the remedies available against censorship of correspondence , ORG has stated in several decisions that it constitutes an administrative act . Moreover , ORG has affirmed in its settled case - law that NORP law does not provide remedies in this respect ; nor can censorship form the subject of an appeal on points of law since it does not concern the prisoner 's personal liberty ( ORG judgments nos . CARDINAL of DATE of DATE ) .

Section CARDINAL of the Prison Administration Act provides that prisoners may make sealed applications or complaints to the following authorities :

– the governor of the prison , prison inspectors , the Director - General of Prisons and the Minister of ORG ;

– the judge responsible for the execution of sentences ;

– the judicial and health authorities which inspect the prison ;

– the President of ORG ; and

– the President of the Republic .


The applicant is a NORP citizen born in DATE and currently detained in FAC , GPE . Before the ORG , he is represented by Mr. PERSON Row , a solicitor practising in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant was arrested and , together with his brother , charged with burglary and conspiracy to commit burglary . After being charged , the applicant and his brother were released on conditional bail .

Committal papers were served on the defence on DATE , following the completion of the police investigation . The applicant ’s representatives requested an “ old style ” committal hearing , which would have involved hearing oral evidence from CARDINAL prosecution witnesses DATE . It was not possible for ORG to schedule a DATE hearing before DATE . On that date the defence decided to proceed on the basis of written statements under the shortened committal procedure ( provided for by section CARDINAL(CARDINAL ) of FAC DATE ) . The case was then committed for trial to ORG .

On DATE there was a pre - trial hearing to ascertain the pleas of the accused and to give directions for trial . The applicant and his brother pleaded not guilty and were released on bail .

In a letter received on DATE , the applicant ’s solicitors wrote to the court asking for the case not to be listed for DATE to enable them to obtain the report of a forensics expert . In a letter received on DATE , they asked for a further delay of DATE . Finally , in a letter received on DATE they asked that the trial not be listed until DATE or DATE to enable them to obtain medical evidence .

The trial , which was estimated to require DATE and involve hearing evidence from CARDINAL witnesses , was listed for DATE . However , the applicant failed to appear at the trial . In his application he explained that “ because of threats which [ he ] was receiving from the persons actually responsible for the offences for which [ he ] stood charged , [ he ] failed to attend court . [ He ] ... stayed at home to protect [ his ] family from known criminals who would have caused harm to [ his ] family ” .

The applicant was arrested on DATE and remanded in custody . The trial was next scheduled for DATE . On DATE , the applicant ’s co - accused brother failed to appear and the case was again adjourned .

On DATE there was a further pre - trial directions hearing . CARDINAL possible trial dates were proposed : CARDINAL DATE , DATE and DATE . However , the applicant ’s counsel , who had acted for him from the outset and whom the applicant wished to represent him at trial , was not available on DATE , and it was not possible for the trial to take place on DATE because of the unavailability of a number of witnesses . The trial was , therefore , fixed for DATE . The applicant was remanded in custody until then .

At the trial , both the applicant and his brother pleaded guilty to charges of conspiracy to burgle . The applicant was sentenced to CARDINAL years’ imprisonment .


The applicants are a married couple , born in DATE and DATE , respectively , and their daughter , C , born on DATE . They live in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

The applicant parents suffer from arrested development . Intellectually they have been placed in the category of severely mentally retarded pesons and their disorders have been assessed to be congenital . Since their childhood they have been in close contact with the social and health authorities . The applicant parents have cohabited since DATE .

On DATE the applicant GPE first child , M , was born . On the social authorities’ initiative , DATE after the birth the applicant parents and M moved into a family observation institution ( ORG ) , with staff consisting of social workers , psychologists and social education workers , which was to support the applicant parents and assess the extent to which they possessed potential in the parenting role . The institution submitted its report on DATE .

As to the applicant mother , the report stated , inter alia , that her attention could only be maintained for short intervals and with massive support . She was generally preoccupied with talking about her physical ailments to the extent that it took most of her energy . When faced with demands , for example if M started to cry or became restless , the mother became anxious and could seem panicstricken . She was not able to recognise her own problems and need for support and she had great difficulty in establishing contact with M.

As regards the applicant father , notably during the beginning of his stay at the institution , he often made verbal threats against the staff and the other families at the institution . He had violent nightmares during which he would cry out loudly and pull out his tongue . Moreover , his night sleep was broken by long hot showers for TIME , during which he would talk or shout to himself . Consequently , he would often be exhausted during the day and sleep most of the time . He had no structure to his day and showed no signs of being able to handle DATE routines . He had no understanding or recognition of his need for help and support in the parental role . He had trouble realising the consequences of his actions , and was not capable of protecting their baby M from physical harm ( for example , he left M alone on the changing table although the danger of doing so had been explained to him frequently ) .

With regard to the GPE care skills , the report stated that both parents had extreme difficulty in establishing contact with M , and they often asked the staff to take over when they became impatient with her . None of the parents handled M particularly gently and their movements sometimes seemed uncoordinated . Mostly , they forgot to hold the baby ’s head . They would not let M sleep and were in general not capable of recognising and understanding her needs . The report also stated that due to the GPE inability to concentrate , M ’s attempts to make contact with the parents were usually rejected or not answered . Thus , M eventually gave up contact and looked away from the parents when being with them .

The conclusion read as follows :

“ The parents appear as a very emotional damaged couple who , because of their own disadvantaged upbringing , find it extremely difficult to master the task of parenting . The staff have no doubt that both parents have done their best in a spirit of love for their child , but their personality structure and their non - existing inner picture of the parent role prevent them from developing sufficient parenting functions . Moreover , their lack of mental resources is a further hindrance to the task of their developing parenting potential .

Despite intervention at various levels , the basic symbiotic mother - child dyad has not developed .

For the mother ’s parental skills , this lack of bonding means that she is unable to see and understand the child ’s signals , nor is she able to adapt to the child ’s needs , which is crucial for the child ’s attachment ability and emotional development .

We have examined whether the father has the resources to take over this process , but the examination showed that he does not master this either .

Their lack of timing and the resulting unintended abuse create unpredictability and chaos in the child ’s world and will be a risk factor in her development ,

Moreover , both parents lack the fundamental ability to structure their everyday lives , for the child as well as for themselves . In particular , their serious problems managing their finances permeate their entire everyday lives .

Their - as we see it - very resource - poor network means that the father , mother and child can not expect adequate support . Mother and father tell us themselves that they have no friends who can give them special support . Our observations have also shown that their ability to create relations is virtually non - existent . ”

On DATE M was taken into public care without the GPE consent . Since DATE she has lived with a foster family . A relief foster family was also provided for her , to take over during holidays etc . The applicant parents were granted regular access , which was to take place under surveillance . Since DATE access has taken place in the presence of the foster family .

The applicant GPE second child , C , was born on DATE .

Beforehand , at a meeting held on DATE , the applicant parents were informed by a social worker at the Municipality ( ORG ) that the latter would not recommend that the family be placed in a family institution when the child was born . The decision was based on the report of CARDINAL DATE and reports on the applicant GPE access to NORP In addition , the decision was based on CARDINAL statements of DATE by a neuropsychologist , who in DATE had examined each of the applicant parents at the request of the social and health authorities in connection with the granting of social benefits ( førtidspension ) . With regard to the applicant father the statement concluded :

“ The findings of the neuropsychological examination show a DATE man , whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level , thus presently placing him in the severely mentally retarded category . On review of the individual neuropsychological functions as well as the intellectual and memory functions , a number of heavy disorders appear , manifested in a more diffuse affection of cortical brain areas , most pronounced in the frontoparietal brain areas of the left hemisphere . The disorders are assessed to be congenital . As regards an assessment of future job possibilities , I believe the chances of his being placed in the labour market under normal conditions to be non - existent , and that he has no real capacity for working in any kind of occupation , not even in sheltered surroundings . ”

With regard to the applicant mother the statement concluded :

“ The findings of the neuropsychological examination show a DATE woman whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level , thus presently placing her in the severely mentally retarded category . On review of the individual neuropsychological functions as well as the intellectual and memory functions , a number of disorders appear , manifested in a more diffuse affection of cortical brain areas , most pronounced in the frontoparietal brain areas of the right hemisphere . The disorders are assessed to be congenital . ”

On DATE the Municipality received written information from an acquaintance of the applicant parents that the latter planned to run away from the hospital with the baby when it had been born .

On DATE , a family care consultant also informed the GPE that the applicant father had told her that with the help of others he had planned to run away with the baby within TIME after its birth .

By decision of CARDINAL DATE the GPE refused the applicant GPE request that they and their newborn pursuant to LAW ) of ORG ( ORG ) be placed at a family institution observation home or that mother and child be placed together with a foster family . At the same time the applicant parents were also informed that the LOC intended to take the newborn into public care . The applicant appealed against the decision to ORG ( PERSON ) .

On DATE C was born and DATE the Chairman of ORG ( Børne- og Ungeudvalget ) under the Municipality decided provisionally , pursuant to section CARDINAL ( CARDINAL ) of GPE , to take C into public care without the consent of the applicant parents . The decision gave the police the authority to prevent the applicant parents from leaving the hospital with C , but the parents had unlimited access to their baby during the stay at the hospital .

According to section CARDINAL ( CARDINAL ) of GPE , the preliminary decision was approved by the entire Children and Young Persons Committee at a meeting on DATE , during which the applicant GPE lawyer was present . The decision was based on the report of DATE , the CARDINAL statements of DATE and the information submitted about the ORG intention to run away with the newborn baby .

The decision was implemented DATE in connection with the applicant mother ’s discharge from the hospital . At the wish of the applicant parents , C was placed with M ’s relief foster family , which allowed the children to see each other on a regular basis .

During a meeting on DATE , at which the applicant parents , represented by their lawyer , were heard together with their CARDINAL advisers ( bisiddere ) , the Children- and ORG made its final care order pursuant to section DATE ( CARDINAL ) of GPE .

The applicant parents had access to C one hour twice a week in the foster GPE home .

On appeal , by decision of DATE , ORG upheld ORG decisions of DATE and DATE . Before the ORG , the applicant parents , represented by their lawyer , and an adviser were heard . In addition , various documents were submitted , including the report of DATE , the CARDINAL statements of DATE concerning the neuropsychological examinations of the applicants and the LOC ’s case file . ORG found that due to the applicant GPE diminished intellectual functioning and limited personal resources , there was an evident risk that C ’s health and development would suffer serious damage if she was to remain with them . For the same reasons , it considered that the problems could not be solved in the applicant GPE home , even if they were granted measures of support . The care order was to be reconsidered by ORG DATE from the ORG ’s decision or , if the decision was brought before ORG , DATE from ORG judgment .

On DATE the applicants appealed against the decision to ORG ) , claiming the GPE ’s care order to be revoked as regards C. They also appealed against a decision of DATE in which ORG had continued the taking into public care of M.

The applicant parents were heard by ORG . In addition to the written material already submitted before ORG , the court also obtained CARDINAL statements of DATE in which the foster families described the positive health and development of M and C respectively . They stated that the applicant GPE access to the children was well implemented .

By judgment of DATE , ORG found against the applicants . It stated that for the reasons set out by ORG the conditions under section CARDINAL of GPE were fulfilled for taking the applicant GPE children , M and C , into public care .

The applicants’ request to be granted leave to appeal to ORG ( Højesteret ) was refused on DATE .

In DATE , in connection with the review of the public care order , the GPE decided to make an assessment of the ORG parenting skills by a psychologist . The assessment was submitted on DATE and contained a recommendation to maintain C in public care since the applicants parental skills were found too limited .

In a statement of DATE the foster family described their view on ORG development and on how access with the parents was working out . The parents had been good at keeping the appointments , and although the father had only little contact with C , the mother was very preoccupied with proving that she could perform the role as a mother . Both applicant parents , however , were unable to interpret the child ’s signals and impervious to advise . Consequently , the contact confused the child .

On DATE having heard the applicant parents and CARDINAL of their advisers , ORG decided to continue the public care for DATE . On appeal , on DATE , ORG confirmed the decision .

The applicant did not bring this decision before the courts . On the contrary , on DATE the applicant parents gave their consent to the taking of C into public care .

In the meantime , in DATE , the applicant parent ’s access to C was increased and now took place once a week for TIME in the presence of the support person appointed to the parents . In DATE , however , on the applicant GPE request , access was reduced to take place once DATE for TIME .

B. Relevant domestic law and practice

The relevant provisions of LAW ( ORG ) at the time read as follows :

Section CARDINAL

GPE takes a decision as to measures to be taken under subsection CARDINAL , when this is deemed to be of significant importance with regard to a child ’s or young person ’s special need for support . From the measures listed in subsection CARDINAL , CARDINAL or more of the least restrictive measures among those suitable shall be chosen . Any such decision shall be subject to the consent of the custodial parent , or other person having custody ... Any decision taken under subsection CARDINAL ( xi ) shall be subject also to the consent of the young person , who has reached DATE .

The LOC may decide :

( i ) to offer consultation assistance relating to the child or young person ’s conditions , including the admission of the child or young person to a daytime facility , a youth club , training or education establishment , etc . ;

( ii ) to offer practical , pedagogical or other support in the home ;

( iii ) to offer family therapy or similar support ;

( iv ) to offer the custodial parent , or other person having custody , the child or young person and other family members the possibility of staying on a full - time basis ... , in an institution , with a foster family , at another approved facility , in a municipal full - time facility or in an accommodation facility approved by the county authority subject to the rules provided under section ORG below ;

( v ) to offer a relief arrangement ... at a full - time institution , with a foster family , in a municipal full - time facility or at an approved facility ;

( vi ) to appoint a welfare officer for the child or young person ;

( vii ) to appoint a permanent contact person for the child or young person or for the whole family ;

( viii ) to grant financial support in respect of expenses incidental to the measures listed under ( i)-(v ) where the custodial parent or other person having custody can not afford such expenses ;

( ix ) to grant financial support in respect of expenses incurred for the purpose of preventing a child or young person being taken into care , for the purpose of expediting the return of a child or young person to his / her home or of contributing towards creating and maintaining stable contact between parents and children while one or more children are in care ;

( x ) to grant financial support for attendance at a boarding school or continuation school where the custodial parent , or other person having custody , can not afford such costs ;

( xi ) to take the child or young person into care at a full - time institution , with a foster family , in a municipal full - time facility or at an approved facility deemed suitable for the special needs of the child or young person ....

Section CARDINALa

In connection with a child or a young person being taken into public care ... , the GPE proposes that a support person be appointed to the custodial parent or other person having custody of the child .

Section CARDINAL

If there is an obvious risk that the health or development of the child or young person will suffer major damage due to

( i ) inadequate care or treatment of the child or young person ;

( ii ) violence or other serious ill - treatment ;

( iii ) substance abuse or criminal conduct or other serious social difficulties on the part of the child or young person ; or

( iv ) any other behavioural or adjustment problems in the child or young person ,

the Children and Young Persons Committee may decide that the child or the young person be taken into care according to section CARDINAL ( CARDINAL ) ( xi ) without the consent of the custodial parent or other person having custody , or of the young person having reached DATE . [ Such a decision ] may be made only when there is a reasonable assumption that the problems can not be resolved during the child ’s or young person ’s continued stay in the home .

If it is in the child ’s or young person ’s best interest , ORG may decide that the child or young person be taken into care pursuant to subsection CARDINAL , notwithstanding that the custodial parent , or other person having custody , and the young person consent to an arrangement under section CARDINAL ( CARDINAL ) ( xi ) .

Any decision taken under subsections CARDINAL may be made on a provisional basis subject to the rules provided under LAW below provided the requirements are met .

Section CARDINAL

Decisions under sections ... CARDINAL , ... ORG ) , ... which , because of the immediate needs of the child or young person , can not be deferred pending consideration by ORG , may be made on a provisional basis by the Chairman of the ORG or in his absence by the Deputy Chairman .

The custodial parent or other person having custody , ... shall within TIME of the implementation of a provisional decision be given written notice of the decision and the reasons for the decision . Such notice shall also give particulars of the right of access to case records provided for by ORG , the right to be heard and to receive free legal assistance .

A provisional decision made under subsection CARDINAL shall be submitted to ORG for their approval as soon as possible and within a maximum period of DATE from the implementation of the decision , whether or not the measure has been discontinued .

Section CARDINAL

Measures under sections CARDINAL , ... DATE , ... shall be discontinued when their object has been achieved , when they no longer serve their purpose taking into account the special needs of the child or young person , or when the young person attains the age of CARDINAL ...

Section CARDINAL

ORG ... shall in a meeting decide on the following ... ( ii ) to take a child or young person into care under section DATE ; ... ( vi ) approval of a provisional decision under section CARDINAL ) ;

Before a decision is made , the custodial parent , or other person having custody , the child or young person , the legal adviser and any other adviser to the custodial parent or other person having custody shall be given an opportunity to be heard by ORG . An opportunity provided under the first sentence to the child or young person may be dispensed with if the child has not attained the age of DATE or where it is deemed to be harmful to the child or young person .

Section CARDINAL

Decisions by ORG accordingly to section DATE , may be brought before ORG ...

Section CARDINAL

Decisions by ORG under sections CARDINAL ( CARDINAL ) and CARDINAL may be brought before ORG , within DATE of the date on which the party appealing has been given notice of the decision .

Section CARDINAL

Decisions by ORG can not be appealed against to ORG . However , the Leave - to - Appeal Board may grant leave to appeal to ORG against decisions or judgments by ORG when they are found of general principle . Such a request must be made within respectively DATE from the decision or the judgment .

The relevant provisions of ORG ( Lov om retsikkerhed og administration på det sociale område ) at the time read as follows :

Section CARDINAL

ORG consists of :

( i ) CARDINAL members elected by the municipal council from among its members ;

( ii ) the ORG Judge in the district . If there are several judges in the judicial district the ORG shall appoint CARDINAL of them ; and

( iii ) an educational / psychology expert to be appointed by the county council for the municipal term of office .

Section CARDINAL

ORG shall elect its own chairman and deputy chairman from among the members elected by the municipal council .

The judge shall chair the meetings of the committee and shall ensure that the necessary investigations have been undertaken , decide whether to obtain more information and may require a judicial examination to be conducted under section CARDINAL of ORG . Also , the judge shall provide guidance as to the interpretation and application of the rules and consider and evaluate the information available .


The applicant was born in DATE and lives in GPE .

In DATE the applicant instituted civil proceedings against his former employers , the ORG - owned mines “ PERSON ” and “ PERSON ” , seeking compensation for damage to his health .

On DATE ORG ( PERSON міський суд ) ordered the mine “ PERSON ” to pay the applicant a lump sum of PERSON hryvnyas ( ORG ) . On DATE ORG ( the “ ORG ” ; ORG обласний суд ) amended this judgment , having additionally awarded the applicant arrears in DATE allowances for DATE .

On DATE ORG ordered the mine “ PERSON ” to pay the applicant the total ORG CARDINAL,CARDINAL.CARDINAL in DATE allowance arrears .

After the above decisions had become final and the enforcement proceedings had been instituted in their respect , the applicant unsuccessfully requested the judicial authorities to re - open the proceedings , seeking higher compensation .

According to the ORG , the judgments debts were fully paid to the applicant in several instalments , last payments having been made in DATE . To this end , the Government presented copies of the decisions to terminate the enforcement proceedings taken on CARDINAL and DATE by the Bailiffs ( ORG виконавчої служби NORP міського управління юстиції ) in respect of the mines “ PERSON ” and “ PERSON ” respectively .

The applicant maintained that he had received only a part of the judgments debt due to him . He did not , however , specify the outstanding amount and provided no information on whether he had challenged the Bailiffs ' decision to terminate the enforcement proceedings .

After the case had been communicated to the Government , the applicant additionally submitted a number of documents concerning his other disputes and proceedings against various parties , however , he neither described the relevant facts , nor articulated any separate complaints in their respect .

A description of the relevant domestic law can be found in ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is an NORP citizen , residing in GPE . At the relevant time she was a member of ORG ( PERSON ) , which also acts as ORG ( Landtag ) .

On DATE , in the course of a session of ORG , the applicant , in her function as member of ORG , gave a speech . The debate related to the granting of subsidies by the municipality to an association which assists parents whose children had become involved in sects . In this context the applicant made the following statement :

“ Like everyone else , I know that DATE a sect no longer means a small group that breaks away from a big church ... , but a psycho - sect .

These psycho - sects also exist in GPE . They have common features . CARDINAL aspect they have in common is their totalitarian character . Moreover , in their ideology , they show fascist tendencies and often have hierarchical structures . In general , a person who gets involved with such a sect loses his identity and submits to the group ... ”

After having commented on the activities of an association she considered a sect , the applicant continued as follows :

“ ... the sect ORG [ ORG der PERSON – Institute for a Better Understanding of Human Psychology ] , which has not long been in existence in GPE but which has existed for DATE in GPE , where it is called the FAC [ Verein zur Förderung der PERSON for a Better Understanding of Human Psychology ] has had a certain influence on the drugs policy of ORG . ”

The applicant then stated that ORG had issued a publication on drugs policy in cooperation with the ORG , and had organised information activities involving public discussions together with the ORG . The applicant then requested a resolution by ORG that , before granting subsidies to an association , the question whether that association was a sect should be examined .

The debate in ORG then turned to the drugs policy and the applicant , in a further speech , criticised the cooperation between ORG and the ORG , and made further statements on the nature and activities of the ORG .

On DATE the ORG , an association established under NORP law , and the VPM , an association established under NORP law , filed a civil - law action under LAW against the applicant with ORG ( PERSON für PERSON ) . The associations requested the court to issue an injunction against the applicant prohibiting her from repeating the statement that the ORG was a sect , ordering her to retract this statement and directing the publication of the applicant ’s retraction in several NORP newspapers .

On DATE the applicant commented on the action . She submitted that the term “ sect ” used by her was a value judgment and not a statement of fact . It had been used in the context of a political debate . If the court , however , was of the opinion that the term “ sect ” was a statement of fact , she was willing to prove that this statement was true , and proposed documentary evidence and the hearing of witnesses to confirm that the plaintiffs were sects . As documentary evidence , the applicant proposed a decision by a NORP court and CARDINAL articles from newspapers and periodicals on the internal structure and activities of the plaintiffs . She proposed that CARDINAL witnesses be heard . She also requested that the court obtain an expert report .

On DATE the ORG and the VPM altered their injunction claim to include the following statement made by the applicant on DATE :

“ CARDINAL aspect they have in common is their totalitarian character . Moreover , in their ideology , they show fascist tendencies and often have hierarchical structures . In general , a person who gets involved with such a sect loses his identity and submits to the group ... ”

On DATE the applicant confirmed that she had received the plaintiffs’ amended claim . She submitted a transcript of the session of ORG of DATE , and argued that the modification of the action merely referred to a general explanation of the term “ psycho - sect ” and had no direct relation to the plaintiffs . She further referred to her previous statements and the evidence proposed therein .

On DATE a hearing took place before ORG . The court accepted several documents submitted by the parties , closed the taking of evidence and rejected all requests for the taking of other evidence as irrelevant because the documents submitted had clarified the issues sufficiently .

On DATE ORG granted the injunction . It ordered the applicant not to repeat her statements that the ORG and the FAC were sects of a totalitarian character . Furthermore , the court ordered the applicant to retract these statements , the retraction to be published in several newspapers . ORG found that , contrary to the applicant ’s opinion , her statements were not value judgments , but statements of fact . Having regard to the statutes of the associations and other evidence before it , ORG considered that the applicant ’s statements had proved to be untrue . The applicant had disseminated unfounded assumptions as proven fact and had therefore acted negligently . As the damage to the plaintiff associations’ earnings and livelihood was manifest , the ORG granted the requested injunction under LAW .

On DATE the applicant appealed . She submitted that ORG had failed to take the evidence requested by her . She contended in particular that the real activities of the plaintiffs and their ( totalitarian ) methods could not be seen from their statutes . In particular , the internal organisational structure ( hierarchical structure ) , their conduct against critics ( exhibiting a totalitarian character and an ideology with fascist features ) and the effect on the personality of the persons concerned ( loss of identity and submission to the group ) should have been examined . Only a report by an expert using sociological and psychological methods , or interviews with the persons affected , could have clarified these issues . In any event , the applicant ’s statements were value judgments made in the context of a political debate and not statements of fact . The injunction therefore violated her right to freedom of expression under LAW .

On DATE ORG ( Oberlandesgericht ) upheld ORG decision in so far as it concerned the prohibition on repetition , but quashed the order for a retraction and its publication .

It confirmed ORG view that the applicant ’s allegations were statements of fact . Contrary to the opinion of ORG , ORG considered that the applicant ’s allegations amounted to an insult and fell not only within the scope of the second but also within the scope of the first paragraph of LAW . In that case , the applicant had to prove the truth of her allegations .

With regard to the applicant ’s complaint that ORG had refused to take the evidence she had proposed in order to prove that the plaintiffs were sects , ORG found that such evidence was irrelevant to the proceedings . According to ORG legal point of view , the applicant ’s statements had to be seen as a whole . Thus , the use of the term “ sect ” was not decisive , but the allegation of fascist tendencies was of primary importance . This latter statement amounted to an insult going beyond justified criticism . Since the applicant had not offered any evidence with regard to this definition of a psycho - sect , but only with regard to the question whether the plaintiffs were sects , she had failed to prove its truth , as required by LAW . ORG also found that the request for a retraction of the statement and its publication in several newspapers had to be dismissed because the plaintiffs had failed to specify the addressees of the retraction , even though the applicant ’s statements had been reported in the newspapers .

On DATE ORG ( Oberster Gerichtshof ) rejected as inadmissible the applicant ’s further appeal on points of law ( Revision ) . It confirmed , however , that the statements such as “ fascist tendencies ” or “ totalitarian character ” were statements of fact which the applicant had failed to prove . Referring to its previous case - law , it stated that disparagement by means of untrue statements , even though it was made in the course of a political debate , went beyond acceptable political criticism and could not be justified by a weighing of interests or by the right to freedom of expression .

Article CARDINAL of LAW ( Allgemeines Bürgerliches Gesetzbuch ) provides as follows :

“ ( CARDINAL ) Everyone who has suffered material damage or loss of profit because of an insult may claim compensation .

( CARDINAL ) The same applies if anyone disseminates statements of fact which jeopardise another person ’s credit , income or livelihood and if the untruth of the statement was known or must have been known to him . In such a case the public retraction of the statement may also be requested ... ”

Members of ORG enjoy a limited parliamentary immunity . They are exempt from legal proceedings for anything said by them in the course of debates in ORG in so far as ORG sits as ORG CARDINAL , DATE and CARDINAL of LAW ) . However , this privilege does not extend to sessions of ORG sitting as the local council . The reason is that GPE , under LAW , has a dual function , being at the same time a Land and a local council ( LAW ) .