ITEMID: 001-58576
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF K. AND T. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings
JUDGES: Georg Ress
TEXT: 12. 29/06/199926/10/199417/11/199425702/94K. and T.Finland41At the beginning of the events relevant to the application, K. had a daughter, P., and a son, M., born in 1986 and 1988 respectively. P.’s father is J. and M.’s father is V. From March to May 1989 K. was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. From August to November 1989 and from December 1989 to March 1990, she was again hospitalised for about three months on account of this illness. In 1991 she was hospitalised for less than a week, diagnosed as suffering from an atypical and undefinable psychosis. It appears that social welfare and health authorities have been in contact with the family from 1989.
13. The applicants were initially cohabiting from the summer of 1991 to July 1993. In 1991 both P. and M. were living with them. From 1991 to 1993 K. and V. were involved in a custody and access dispute concerning P. In May 1992 custody of P. was transferred to V. and she was ordered to live with him.
14. K. was again hospitalised from 22 April to 7 May 1992, from 13 May to 10 June 1992, as well as from 11 to 17 January 1993, on account of psychoses. She was in compulsory care between 15 May and 10 June 1992. According to a medical report dated 15 May 1992, K. was paranoid and psychotic.
On 19 March 1993, according to the social welfare authorities’ records, there had been a discussion between a social worker and K.’s mother. K.’s mother had said that her daughter’s health condition was really bad and that K. 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. K.’s mother had said that she was tired with the situation, as she did not get any support from the mental health authorities. She had added that she was worried and afraid that “again something must happen before K. is admitted to care”.
On 24 March 1993 M. 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 5 May 1993.
15. Allegedly, J. did not allow K., P. and M. to meet. In the spring of 1993 K.’s access to P. was further limited by the courts. At the time she was pregnant.
16. According to the records of the social welfare authorities, M. showed signs of behavioural problems. On 30 March 1992, a psychologist reported how M. had played with two dolls saying - in very vulgar words - that they were performing sexual acts. On 17 February 1993 K. was said to have broken a mirror in the presence of M. who had kept repeating: “mother broke the mirror...”.
Notes of the social authorities of, inter alia, 24 and 30 March 1993 state that games which M. played and pictures he drew were of a destructive nature. According to the notes of the last-mentioned day, he had lately, in joint singing exercises of the day-care home, shown enormous hate, threatening “to kill everybody”. The occasions when K. fetched him were described as “an unpleasant show”, M. shouting and hitting his mother who did not react. It was noted, however, that the doll plays with sexual connotations had disappeared.
On 7 June1993 it was reported by the social welfare authorities that when K. and T. had come to the children’s home where M. was staying, the latter had undergone a total change in his behaviour, turning into anger, hate, swearing etc. T. had told in the children’s home that he was really tired with the situation and that in his view K. was in need of hospitalisation. When a visit to the health centre had been suggested to her, she had become very angry.
17. According to the records of the social welfare authorities, there had been a discussion between K., her mother, T. and a number of social and mental health care officials, on 31 March 1993, during which it was mentioned that the authorities might have to intervene, from the child protection point of view, with M.’s upbringing in a more drastic way than had been the case so far. It appeared that in connection with K.’s recent hospitalisation T. had “forcibly” taken her from a restaurant, which had made K. furious, with the consequence that she had thrown things around, for example the micro wave oven had ended up on the floor. T. had said that K. was unable to control herself.
18. On 3 May 1993 a social welfare official decided on behalf of the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of S. to place M. in a children’s home for a period of three months. This was to be regarded as a short-term support measure pursuant to the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983; “the 1983 Act”). The applicants had been consulted, together with K.’s mother and sister, on 8 April 1993, in order to find an open care measure which would be functional. According to the records held of that meeting, no such practical measure had been proposed by any of the participants. The applicants had then been heard again on 21 April 1993 and had not objected to the placing of M. in a children’s home.
19. In an opinion, requested by the Social Welfare Board, doctors M.L. and K.R., on 12 May 1993, considered that K. was not at that time able to care for M., but that her mental state could not be regarded as permanently preventing her from caring for him. Doctors M.L. and K.R. served at the hospital of H., where the applicant had been cared for since 1991 during the periods indicated above.
20. On 11 June 1993, the social welfare official who had decided on 3 May 1993 to place M. in a children’s home informed in writing the University Hospital of T. and the local hospital of S. that she was very worried about the health of K. and her forthcoming baby. She requested the hospitals to contact her immediately at the time of K.’s arrival in hospital and, especially, at the time of her delivery. She also expressed a wish that the health care professionals should pay special attention to the relationship between the mother and the new-born baby from the very beginning.
21. On 18 June 1993 K. was taken into a district hospital, where she gave birth to J. on the same day. According to the hospital records, the mother stayed calm during the delivery. After the delivery a written decision concerning an emergency care order, according to which the child was not to be given to the mother, was served on the hospital. The child was accordingly transmitted to the children’s ward. The mother’s behaviour in the ward was later found to be somewhat restless but not clearly disordered. It was mentioned in the records that she understood the situation and wanted to leave the hospital the following day. Medication to prevent the secretion of milk was prescribed. It seems that K. left the hospital on 19 June 1993, i.e. the following morning, without a post-natal examination. She went to her mother’s place where she started pushing an empty baby carriage around the rooms.
22. J. was immediately placed in provisional public care in pursuance of Section 18 of the 1983 Act. After the birth of their child, K. and T. were informed of the decision by two social workers at the hospital of H. The Social Director, who decided on behalf of the Social Welfare Board, noted that K.’s mental state had been unstable during the end of her pregnancy. He considered that the baby’s health would be endangered since K. had found out about the plans to place the baby in public care. The Social Director finally considered that the baby’s father, T., could not guarantee its development and safety. In addition the Social Director referred to the family’s long-lasting difficulties, i.e. K.’s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children, T.’s inability to care for both J. and K., K.’s inability to receive guidance, the impossibility of placing the whole responsibility for J.’s development on T., and the impossibility of providing open-care support measures to the necessary extent. The applicants were not heard prior to the decision. On 24 June 1993 the applicants were also notified in writing of the decision to take the new-born baby into public care. The notification was also faxed to K.
23. On 21 June 1993 the Social Director also placed M. in provisional public care, citing principally the same reasons as in his decision of 18 June 1993 concerning J.
24. On 21 June 1993 the Social Welfare Board took note of the provisional public care orders and prohibited all unsupervised access between on the one hand, K., and, on the other hand, J. and M. respectively. The number of supervised visits, however, was not restricted. The Board decided to continue the preparation for taking M. and J. into care.
25. At the family centre a meeting was held by social welfare workers, on 21 June 1993, 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 a month 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 without restriction to visit the baby, but have to be accompanied by her personal nurse. However, this plan was not executed. There is a note in the daily report of 24 June, according to which “the mother may come with her personal nurse if she wants. Other visitors not allowed for the time being.”
26. K. was asked to appear with T. at the social welfare office on 22 June 1993 at 11.30 a.m. in order to be informed of the decision of 21 June 1993 on M. by the Social Director. On 24 June 1993, K. and V. (M.’s biological father) were notified in writing of the decision of 21 June 1993. The notification was also faxed to K.
27. On 22 June 1993 K. 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 30 June 1993.
28. On 23 June 1993 J. was placed in the family centre. T. visited her the same day.
29. In the beginning of July 1993, T. moved away from the applicants’ home, having been told by the social welfare officials that he had to break off his relationship with K. “if he wanted to keep” J. The applicants nevertheless continued their relationship.
30. On 15 July 1993 the Social Welfare Board upheld the provisional care orders concerning J. and M., invoking reasons similar to those mentioned in the emergency care orders (see § 22 above), and prolonged the access restriction until 15 September 1993. K. was allowed to see the children only in the company of her personal nurse. The Board essentially considered that K.’s state of health remained unstable; that she was suffering from aggressive and uncontrolled emotional moods; and that the public care proceedings were a mentally strenuous ordeal for a patient. As regards J., the Board therefore believed that her personal security could be jeopardised if access were to take place without supervision. As regards M., the Board feared that K.’s visits to the children’s home “could no longer be controlled by its staff, which would not be in his interest”. Before the decisions of 15 July 1993 the applicants had been heard and expressed their objection to the care decisions envisaged.
31. On 15 July 1993, K. visited both her children, accompanied by her personal nurse. The diary notes mentioned that it was “a difficult situation”.
32. On 19 July 1993, T. moved to the family unit of the family centre with J.
33. From 20 to 21 July 1993 K. was again hospitalised in voluntary care at the open ward of the hospital of H. on account of a psychosis. She, however, left the hospital the following day. On 26 July 1993 she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care. On 30 July 1993 she was committed to compulsory psychiatric care. According to the patient’s documents her relatives had earlier been worried about her and contacted the hospital in order to get her into hospital care. They reported that K. had disappeared from her home, where she had behaved in an unsettled and aggressive manner. Her hospitalisation lasted until 27 October 1993, i.e. three months.
34. During the period of 18 June to 31 August 1993 K. 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 according to K.’s state of mental health. On the basis of the centre’s diary, she had visited J. twice during this period.
35. According to a statement made by a social welfare worker on 4 August 1993, T. had taken good care of J., first at the hospital until 23 June 1993 and later on at a 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 13 to 15 August 1993, during which time T. would organise her christening. The intention was that the baby could move in with her father in the future.
36. 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.
37. On 12 August 1993, the Social Welfare Board referred both public care orders to the County Administrative Court (lääninoikeus, länsrätten) of Turku and Pori for confirmation, as the applicants had opposed them. In support of its referrals the Board submitted a statement by a social welfare official dated 25 August 1993. According to the statement, T. would not be able to care both for M. and the new-born J. alone, since K. was at the same home and had been psychotic for the last four years. T. had been in contact with J. at the children’s home three to four times a week. While staying in a flat attached to a municipal children’s home, he had cared for J. for two whole weeks and had subsequently cared for her three days out of the week in his new home. The Board 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 the Board.
38. On 15 August 1993, J. was christened in the presence of K., T. and M.
39. A consultation was held at the children’s home, on 18 August 1993, in the presence of T. According to the statement, K.’s mental health was very unstable and her psychiatric treatment was expected to have to be continued for four to five years. T., however, had expressed his hopes that K. and he could, together, take care of J. in the future. It was agreed that J. would stay at the children’s home and would visit T. from Thursdays until Saturdays, beginning from 28 August 1993. T. would visit J. on other days according to an agreement to be made with the children’s home in this respect.
40. In the course of the custody and access dispute concerning P., a social worker had, on 8 May 1992, testified before the District Court (kihlakunnanoikeus, häradsrätten) of S. that she had noticed nothing alarming in the applicants’ family situation, nor that the family conditions would have differed from those of “normal families” in any significant way. The social worker therefore considered K. suitable to bring up children, regardless of the fact that she had received treatment for mental illness. The social worker stated that K. had always kept her children “clean and healthy”. At least with the help of her mother and with some support measures it would be possible for K. to act as her children’s custodian.
According to P.’s father, who also testified before the District Court, K. had shown paranoid features in her behaviour, alleging that “unknown people visited her home during her absence”. He also said that K. had dyed her hair as she had thought that her “double” had been seen in the neighbourhood and she wanted to be distinguishable from her double. Several witnesses testified that K. had recently been voluntarily placed at a mental hospital and was receiving medication for her mental illness. It was also said that P. was de facto living with her grandmother, who had the daily responsibility for her care.
41. On 9 September 1993, the County Administrative Court confirmed the care order concerning J., considering that K. had been mentally ill; that the applicants had had conflicts “as a result of which T. had moved away from their home in the beginning of July 1993”; that because of K.’s illness and the family’s other problems the applicants had been unable to provide adequate care to J.; 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 J.’s care needs. No hearing was held. K. appealed against the decision.
42. On 14 September 1993, the Social Welfare Board prolonged the access restriction until 15 December 1993.
43. The following notes of a social welfare official appear among those in the case records of the Social Welfare Board:
(translation from Finnish)
“14 September 1993:
2 ... 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 J. up, ...
13 October 1993:
K. ... states that she is considering moving [back] together [with T.] when she is discharged from the hospital on 29 October. ...[Her] wish is that M. and J. would be placed in the same [foster] family. ...
18 October 1993:
... T. agrees to J.’s placement in a [foster] family. ...
25 October 1993:
... T. is slightly opposed to J.’s placement in a [foster] family. ... It is again explained [to him] why J. cannot live with him as long as [the applicants] continue their relationship. ...
26 October 1993:
... The essential issue from J.’s point of view is [the applicants’] internal relationship; if [it] continues, J. cannot stay at home with T. ... The alternatives are: J. comes back home to T. or is placed in [foster care]. ... [He] can provide the basic care and upbringing alone provided he receives certain support. ...
27 October 1993:
... The access between M. and K. have been successful now that T. has been attending [the visits]. ...”
29 October 1993
... 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 the 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 and within the terms of the child. The father has treated the child patiently and with warmth, taking into consideration the needs of the child.
The mother has visited the child five times and stayed only for a moment each time.
... J. has had a possibility to a regular interrelation with one person taking care of her, i.e., with her father. A safe relationship with the father has created to the child a feeling of basic safety, which acts as basis for positive development of her emotional life. J. has the necessary resources to grow up and to develop in order to be a healthy and well-balanced child. Taking into consideration the circumstances, the foundation for the family placement is good.”
44. On 27 October 1993, K. was discharged from the hospital of H.
45. On 11 November 1993, the County Administrative Court confirmed the care order concerning M., repeating the reasons put forward in its decision of 9 September concerning J. No hearing was held.
46. In their appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the confirmation of the public care order concerning M., the applicants were represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of S.
47. By decision of 21 January 1994 the Social Welfare Board placed J. in a foster home at the City of K., some 120 kilometres away from the applicants’ home. M. joined her on 7 February 1994. The foster parents had no children of their own. Social welfare officials told both the applicants and the foster parents that J.’s and M.’s placement would last “for years”. The applicants had proposed that the children’s public care be implemented in the homes of relatives.
48. On 2 February 1994, the Social Welfare Board drew up a care plan concerning the implementation of the public care. The applicants’ alternative care plan was allegedly ignored. For instance, the children could not meet their maternal grandmother in her home.
49. After the adoption of the care plan on 2 February 1994 the applicants requested that the access restriction be alleviated. For instance, T. had been permitted to see J. only once a month.
50. On 21 March 1994, the applicants requested, inter alia, that the Social Welfare Board should draw up a public care plan aiming at the reunification of the family.
51. On 3 May 1994, the social welfare authorities organised a meeting in order to revise the care plan of 2 February 1994. The applicants and their representative did not attend the meeting.
52. On 17 May 1994, the Social Director restricted both applicants’ access to the children to one monthly visit at the foster home, where access was to take place under supervision during three hours. The Director considered that the grounds for public care still existed. He considered that, 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.
53. On 26 May 1994, the applicants requested that the Social Welfare Board proceed to the revocation of the public care of M. and J.
54. On 18 September 1994, the Social Director 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 had only told them, when expressly asked, that it was possible that any further children born would be taken into public care.
55. In an opinion of 22 September 1994 submitted at the Social Welfare Board’s request Dr K.P., a specialist in psychiatry, commented on the possibility of revoking the public care orders. She concluded that K.’s mental state would not prevent her from acting as the children’s custodian. According to Dr K.P., the struggle introduced by K. to have the care terminated and access restrictions loosened gave evidence of psychological resources. She noted, inter alia, that T. was K.’s closest support in the care and upbringing of the children. Also K.’s mother, at the time her guardian ad litem, was ready to help in caring for them. Dr K.P., however, added that she could not, as an adult psychiatrist, take any stand as regards the interests of the children. Dr K.P.’s opinion was also based on a report submitted by Dr K.Po., a psychologist, who had come to the same conclusion as regarded K.’s ability to act as her children’s custodian.
56. On 23 September 1994, the Supreme Administrative Court extended the time for K.’s appeal against the confirmation of the care order made in respect of J. On the same day the Court rejected the appeal against the confirmation of the care order of 11 November 1993 concerning M.
57. The Public Legal Adviser advised against lodging a request with a view to having the care orders revoked.
58. On 28 September 1994, the County Administrative Court held an oral hearing concerning the access restriction imposed on 17 May 1994. It took evidence from two psychiatrists, who had interviewed K. One of them, Dr T.I.-E., did not know K. personally but commented on a diagnosis concerning her mental state by indicating that K. had a tendency to react in a psychotic manner to conflict situations. Dr K.P. stated that K.’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.
59. In a written expert opinion, requested by the Social Welfare Board and submitted to the County Administrative Court, Dr E.V., a child psychiatrist, was of the opinion that the children should be permanently cared for by the foster home and that the applicants’ visits should, for the time being, be prohibited so as to protect the children and the foster home. According to the applicants, Dr E.V. had not met any of the applicants or children, nor had he consulted with the other psychiatrists before making his proposal.
60. On 11 October 1994, the County Administrative Court upheld the access restriction issued on 17 May 1994. It noted that neither of the witnesses who had been heard orally had been willing to state any opinion in regard to the children’s development. It reasoned, inter alia, as follows:
(translation from Finnish)
“... [By allowing] access to take place once a month and [by allowing contact by virtue of correspondence] it will be ensured that the children will retain knowledge about their biological parents. If the grounds for the public care later cease to exist, a reunification of the family will thus be possible. ...”
61. The County Administrative Court dismissed the applicants’ request for cost-free proceedings, since the relevant legislation did not cover disputes concerning access restrictions. At the Court’s hearing, the applicants were nevertheless assisted by Ms Suomela.
62. On 18 October 1994, K. appealed against the care order in respect of J. as confirmed by the County Administrative Court on 9 September 1993.
63. On 17 November 1994 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 thereto, considering that this would have entailed a further restriction of their access to the children. Instead they requested two meetings a month, one of which was to be at their place of residence. On 22 December 1994, they demanded a separate written decision concerning their access request in order to enable them to appeal the same.
64. In a letter of 22 December 1994 the Social Director 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 three hours once a month on premises chosen by the Social Welfare Board. The meetings would also be supervised.
65. In his decision of 11 January 1995 the Social Director confirmed that there were no longer grounds for the access restriction. On 31 January and 28 February 1995 the Social Welfare Board confirmed the decision of 11 January 1995. The applicants appealed.
66. K. was hospitalised from 15 to 24 February and from 11 April to 29 May 1995, apparently on account of psychosis.
67. On 14 March 1995 the Social Welfare Board rejected the applicants’ request of 26 May 1994 that the care order be revoked, stating as follows:
(translation from Finnish)
“At the moment the health situation of the children’s mother, K., is better and the family situation has changed also in other respects in comparison with the situation in 1993 when the decisions to take the children into care were made.
...
According to Dr K.P., a specialist in psychiatry, K. still has “a lot of instability in her emotional life as well as fragility, brought by the last five years’ experiences and the diagnosis of mental illness for which she needs - still for a long time - therapeutic support and treatment. A regular medication is also needed in order to guarantee the continuation of her well-being and to make it possible for her to manage in open care and to act as a custodian of her children. Dr K.P., however, did not give her more precise opinion as to K.’s ability to take care of and bring up her children even though Dr K.P. was explicitly asked to give such an opinion.
K. can act as the custodian of her children. She cannot, however, be responsible for the needs and education of the children - not even with the support of T. 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 K., the ability of K. and T. to understand the needs of the children and to respond to them is very limited. Even though T. is capable of interaction with the children, also he finds it difficult to respond to the needs of the children’s emotional life. K. is also incapable of creating an emotional relationship with the children. At an earlier stage, Dr J.H., a psychologist at the local health care centre, has reached the same conclusion in her statement given during the custody proceedings concerning K.’s oldest child. In his expert statement Dr E.V., a child and youth psychiatrist, reached a similar conclusion. Already in the spring of 1992 Dr J.H. realised that K.’s problem is related to the diminishment of the boundaries between her and her children. She stated that K. melts herself and her children into one entirety without being able to see the single and individual nature of the children. According to J.H., K. is also unable to take into account the children’s needs in accordance with their age. Dr E.V. finds that the children do not seem to be independent objects to K. but that she sees them as so-called “self-objects”. She finds it difficult to realise that children are love- and care-needing individual human beings. Instead, she sees as if they were meant for her own use only.”
The applicants appealed on 5 April 1995, also requesting that they be granted cost-free proceedings and afforded free legal representation. They also requested an oral hearing.
68. On 7 April 1995, a further child, R., was born to the applicants. Having given birth, K. was, on 13 April 1995, committed to compulsory psychiatric care and treated at the hospital of H. until 29 May 1995, while R. was being cared for by T. According to the observation of a specialist in psychiatry, dated 10 April 1995, K. “must have been suffering from paranoid schizophrenia for a longer time”.
69. On 15 June 1995, the County Administrative Court granted the applicants cost-free proceedings and appointed Ms Suomela as their representative in the case concerning their appeal against the Social Welfare Board’s decision of 14 March 1995. It decided not to hold a hearing in respect of the applicants’ request for a revocation of the care orders. It provided the parties with an opportunity to supplement their written observations.
70. As regards the applicants’ appeal against the Social Welfare Board’s decisions of 31 January 1995 and 28 February 1995, the County Administrative Court considered, on 15 June 1995, that the revised care plan drawn up on 17 November 1994 had already entailed an access restriction which had been renewed by new decisions later, without the applicants having been properly heard, in respect of their access request. The matter was referred back to the Social Welfare Board for new consideration.
71. In the light of the County Administrative Court’s decision the Acting Social Director, on 28 June 1995, formally restricted the applicants’ access to the children to one meeting a month up to 31 May 1996. The meetings were to take place in the foster home. In addition, the foster parents were to visit the applicants with the children every six months. The Director considered, inter alia, that it was important that the children settle themselves in their growth environment in the foster family. 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 the Social Welfare Board on 22 August 1995. The applicants appealed.
72. With regard to the justification of the care order concerning J. the Supreme Administrative Court, on 21 August 1995, granted K. cost-free proceedings as from 1 March 1994 and appointed Ms Suomela as her representative. It upheld the County Administrative Court’s decision of 9 September 1993.
73. On 28 September 1995, the County Administrative Court rejected the applicants’ appeals of 5 April 1995 without holding an oral hearing. The Court noted, inter alia, that according to medical certificates, K.’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 K. had again been treated at the hospital of H. These two factors had caused an additional strain militating against a revocation of the care orders.
74. On 3 November 1995, the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed on 22 August 1995.
75. On 25 May 1996, social welfare officials revised the public care plan, proposing that the children meet the applicants once a month in 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 9 October 1996 insofar as the access restriction was concerned. The applicants then proposed that the children meet the applicants without supervision once a month. The public care plan was, however, revised as proposed by social welfare officials.
76. On 17 June 1996, the Social Director restricted both applicants’ access to the children, until 30 November 1997, to one monthly visit in the premises of a school at the children’s place of residence, where access was to take place under supervision during three hours. One of the foster parents was also ordered to be present at the time of the access. The Director’s decision was confirmed by the Social Welfare Board on 20 August 1996. The applicants appealed against the decision to the County Administrative Court, requesting an oral hearing. The court obtained a statement from a child psychiatrist, Dr J.P., who was also recommended by the applicants’ representative to the Social Welfare Board. Dr J.P. states, inter alia, as follows:
(translation from Finnish)
“The right of access of M. and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and health. This point of view requires the examination of quality, permanency and continuance of their human relationships, because the 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 M. was placed in the children’s home ... the mother had been in psychiatric hospital treatment 8 times, in total some 13 months. Thus M. had lived with his mother for 45 months, i.e. 3 years 9 months. The longest that they spent together was 2 years 1 month. ... T. has, as “stepfather”, helped to look after M. for at most 10 months. ... foster parents have so far looked after M. for 3 years 3 months without interruption. ... In practice M. has not had any kind of relationship with his biological father ... .
In the light of the facts above, I note that the human relationships in the early childhood of M. have, due to the circumstances, been non-continuous, short-term and changing. The most stable and continuous relationships have been with the foster parents ... . Therefore, these relationships are the most relevant and important ones for the psychological growth and development of M.
... J. was born in June 1993. 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 J. looked after her for two weeks in June and August 1993. J. was placed in the foster family, ..., in January 1994, when she was some 7 months old. So far J. has stayed with her foster family for some 3 years 3 months without interruption. J. is now a little over 3 years 10 months old.
In the light of this, I note that, due to the circumstances, J. has not had any other significant and important relationships than those with her foster parents. The relationship of J. with the foster parents is of primary importance for her psychological growth and development. ...
...Especially from the point of view of the children but naturally also from the point of view of the foster parents, the foster family is a family to which the principles concerning family enshrined in the United Nations Convention on the Rights of the Child and in the European Convention for the Protection of Human Rights and Fundamental Freedoms 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 facts given above, I note that the arrangements helping and supporting the foster parents of M. and J. are in the best interest of the children. The arrangement shall, in the first place, ensure the important, continuous and safe human relationships of M. and J. with the foster parents... .
It is also important for the psychological growth and development of M. and J. that, in the safe and stable conditions offered by the foster family, they are able to maintain and create 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 20 August 1996 of the Social Welfare Board of S., 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 interest of the children, because the capability of K. and T. to fulfil the emotional needs of M. and J. is deficient, ... Such arrangements concerning the right of access clearly endanger the health and development of M. and J. In my opinion the question of an unrestricted right of access should be evaluated when the children have attained the age of twelve.”
77. In a statement of 10 September 1996 Dr K.P. stated that in her opinion K.’s psychiatric state could not be regarded as an obstacle for K.’s acting as the custodian of her daughter R.
78. On 2 April 1997, 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 the care plan on home visits on 15 January and 10 March 1997. Their representative had also been informed of the meeting by a letter sent on 10 February 1997. The applicants did not attend the meeting, and neither did their representative. The applicants were thus not explicitly heard in this respect but, as they had expressed their opinion on other occasions, the authorities recorded their point of view in the plan.
79. On 12 June 1997, the County Administrative Court rejected the applicants’ appeal against the Social Welfare Board’s decision of 20 August 1996 to restrict the applicants’ access right. The County Administrative Court refused the applicants’ request for oral hearing.
80. Although the applicants had stated only in their rejoinder that the appeal was also made on behalf of R., the County Administrative Court found in its decision that it was in part made in her name. The court stated that a person to whom the decision is directed, or a person upon whose right, duty or interest the decision has a direct effect, has the right of appeal. The court considered that the Board’s decision, which concerned R.’s siblings’ and parents’ right of access, was not such a decision.
81. On 28 November 1997, the Social Director restricted the applicants’, and consequently their youngest child R.’s, access to J. and M. to one monthly visit of three hours in the premises of a school at the children’s place of residence until the end of 1998. The applicants did not appeal.
82. The care plan was revised on 1 December 1998.
83. According to a statement made on 3 July 1998 by Dr K.M. (formerly Dr K.P.), K. has not been hospitalised since May 1995 and her health has been stable since the beginning of 1995. There have been no problems concerning the care of R. (who has lived with her parents all the time and has not been taken into care). It is recommended by Dr K.M. that the social welfare authorities should reduce or finish control visits to the applicants’ home in order to give K. a possibility to settle down to normal life without constant supervision from the authorities.
84. The restriction orders were prolonged by the Social Director, on 11 December 1998, to last until the end of 2000. The visits are to take place under supervision in the premises of a school at the children’s place of residence. However, one of the visits is 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 factual home; that the applicants’ access to the children once a month 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 and bring change and insecurity as well as create a new crisis in their development. The applicants appealed against this decision to the Social Welfare Board which, on 2 February 1999, rejected the appeal and upheld the Social Director’s decisions. In the reasoning of the decisions, the Board quotes both the County Administrative Court and Dr J.P.
85. The applicants’ appeal against the Social Welfare Board’s decision of 2 February 1999 concerning the right of access is currently pending before the Administrative Court (formerly County Administrative Court).
86. According to the reports, written by the supervisor who attended the meetings of the children and the applicants during the period from 25 May 1996 to 10 January 1999, the adults got on quite well together during the meetings. J. often plays games with M. When R. was smaller, J. played by herself, but later it seems that the girls, J. and R., spend more time together. On the other hand, it seems that the first applicant makes very little contact with J. and M. According to the supervisor’s description, especially in the earlier reports, the first applicant seems to have concentrated on R.
87. Section 1 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta,lag ang. vårdnad om barn och umgängesrätt 361/1983) defines what is meant by child custody and what is required from the custodian. According to its first paragraph, the objectives of custody are to ensure the well-being and the balanced development of a child according to its individual needs and wishes, and to ensure for a child close and affectionate relationships in particular with its parents.
88. The Child Custody and Right of Access Act requires both the parents and authorities to ascertain the wishes and views of the child when making and executing a decision concerning the child, if this is possible in view of the age and stage of development of the child (Sections 4.2, 8, 9.4, 11, 34.1 point 3; and Sections 34.2, 39.1 and 2, 46.2). Court decisions concerning the custody and access of a child cannot be executed against the will of a child who has attained the age of 12.
89. Also according to the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 as amended by Act 139/1990), a child who has attained the age of 12 is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal therefrom.
90. In situations where the child does not live with its parents or where they are separated because of need of protection or other corresponding reason, the child has in principle the right to keep up personal relations and contacts with its parents. However, this right can be limited on specific grounds and by certain procedures prescribed by law, for example, because of a danger and threat caused by contacts or on the basis of the best interests of the child (Section 2 of the Child Custody and Right of Access Act; Sections 19.2, 24 and 25 of the Child Welfare Act; Articles 9 and 10.2 of the Convention on the Rights of the Child).
91. According to Section 1 of the Child Welfare Act, a child is entitled to a secure and stimulating growing environment and to a harmonious and well-balanced development, and has a special right to protection. The objective of the Child Welfare Act is that a child will in all circumstances get such care and upbringing as is required by the Child Custody and Right of Access Act.
92. In case the parents or custodians of the child are not able to provide the child with sufficiently secure conditions for its growth and development, the Social Welfare Board and holders of its offices shall take the necessary measures in accordance with the Child Welfare Act. These measures include the assistance in open care referred to in Sections 12 to 14 and the duty to take a child into care and provide substitute care referred to in Section 16.
93. According to Section 13.1 of the Child Welfare Act (as amended by Act 139/1990), when the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, or a young person in the process of becoming independent who had been a social welfare client before attaining the age of 18, local authorities must provide adequate financial support without delay, and correct deficiencies in housing conditions or provide housing according to need.
94. Assistance in open care referred to in Section 13.2 of the Child Welfare Act includes general assistance in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982). In addition to general assistance, special forms of assistance are mentioned: lay helper or supporting family; adequate 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 shall be provided in co-operation with the child or young person and its parents or other persons caring for them.
95. According to Section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child.
96. According to Section 9.2 of the Child Welfare Act, substitute care shall be provided without delay where it is needed and is in the best interests of the child.
97. If a child is in imminent danger or otherwise in need of an immediate 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 (Child Welfare Act, Section 18).
98. An emergency care order shall expire within 14 days of the decision unless it is taken up as a normal care order referred to in Section 17 during the said period. Such a care order must be made within 30 days, or on special grounds within 60 days of the emergency order. A decision on emergency care can be appealed in the normal way.
99. Care in accordance with Section 16 of the Child Welfare Act terminates when the child attains the age of 18 or concludes marriage. Public care shall be terminated earlier where the preconditions for the termination of care exist.
100. According to Section 20 of the Child Welfare Act, the Social Welfare Board shall discharge a child from care, when the need for care or substitute placement referred to in Section 16 no longer applies, unless such discharge is clearly contrary to the best interests of the child.
101. Taking into care differs from adoption in so far as the parents are able to keep limited custodial rights and guardianship responsibilities. Taking a child into care also maintains contact between the child and the parents as well as relationships under family law such as statutory succession, including the right to a family name and to inheritance.
102. On the custody of a child in care Section 19.1 of the Child Welfare Act stipulates as follows:
“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 co-operate with the parents or other custodians of the child.”
103. Through a decision to take a child into care, the Social Welfare Board automatically takes over the competence to decide on the contacts between the child and its parents and other persons close to the child (Section 19.2 of the Child Welfare Act).
104. According to Section 24 of the Child Welfare Act a child who is in substitute care shall be ensured 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 shall support and facilitate the child’s access to his or her parents and to other persons close to him or her.
105. According to Section 25 of the Child Welfare Act, 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, as stipulated in detail in Decree, if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the 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.
106. According to Section 25 of the Child Welfare Act and Section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), a decision concerning the restriction of the right of access shall be valid for a specified time, and it shall mention the persons whose rights are restricted. In addition, the decision shall mention what kind of contacts are restricted by the decision and to what extent the restriction is in force.
107. A decision to restrict the right of access restricts the child’s right to meet its parents and other persons close to the child. Such close persons to the child are the child’s custodian or other legal representative, members of family and those persons who have in reality kept in touch with the child before and when the child has been in care.
108. A care plan shall be made for each case of family-orientated and individual child welfare, unless the matter under consideration requires only temporary counselling or guidance. This plan must be adjusted when necessary.
109. In a case of a child taken into care (Section 16 of the Child Welfare Act) or a child placed in residential care as assistance in open care (Section 14 of the Child Welfare Act) the care plan shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child is going to be organised; and (d) how after-care is going to be organised.
110. According to Section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
111. According to Section 4 of the Social Welfare Act, a Social Welfare Board, with several members elected by the municipality, shall be responsible for providing social welfare in its area, and shall be charged with the responsibilities assigned to social welfare boards in other Acts.
112. According to Section 12 of the Social Welfare Act, the decision-making authority of a municipal Social Welfare Board can be delegated to officials subordinate to such board, with the exception of decisions involving compulsory welfare for an individual.
113. According to Section 17.2 of the Child Welfare Act, a decision made by the Social Welfare Board on taking a child into care or placing him in substitute care, must be submitted within thirty days to the County Administrative Court for approval, if a child who has attained the age of 12 or his or her custodians oppose the measure or if the hearing required by Section 17.1 of the Act could not be arranged.
114. According to Section 36, decisions concerning taking into care or placement in substitute care can be appealed to the County Administrative Court within thirty days of notification of the decision. During that time, such an appeal may also be lodged with the local Social Welfare Board which shall forward it to the County Administrative Court together with its own statement within fourteen days. The submission and the appeal shall in this case be dealt with and decided at the same time.
115. According to Section 37.1 of the Child Welfare Act, appeals against a decision on care orders, on placement in substitute care, on termination of care, or on a matter concerning housing, as stated in Section 13.1 of the Act, made by the County Administrative Court in pursuance of this Act, may be lodged with the Supreme Administrative Court.
116. According to Section 37.2 of the Child Welfare Act, other decisions than those stated in subsection 1, relating to family-oriented and individual child welfare rendered by the County Administrative Court in pursuance of the Child Welfare Act, cannot be appealed.
117. According to Section 35.2 of the Child Welfare Act, a child who has attained the age of 12, his or her parents, his or her custodians, and 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.
118. A person challenging a decision made by an official subordinate to a municipal Social Welfare Board shall have, under the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982), the right to have the decision reviewed by a municipal Social Welfare Board within fourteen days of having been informed of the decision. A decision made by the Social Welfare Board can be appealed to the County Administrative Court.
119. According to Section 46 of the Social Welfare Act, a decision made by the Social Welfare Board is subject to appeal to a County Administrative Court within thirty days of the service of the decision. Certain decisions by the County Administrative Court can be appealed to the Supreme Administrative Court.
120. When a decision of an authority can be appealed, the authority in question shall attach to its decision the information and instructions concerning the right of appeal.
121. According to Section 47 of the Social Welfare Act, a decision made by a municipal Social Welfare Board is enforceable regardless of appeal if (a) the decision requires immediate implementation; or (b) for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; and (c) when the Social Welfare Board has ordered the decision to be enforced at once.
122. When an appeal has been lodged, the appellate authority can stay the enforcement of the decision, or order that the said enforcement be suspended.
123. Section 38.1. of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996) which entered into force on 1 December 1996) contains rules on the right for an oral hearing before administrative courts.
124. According to the Child Custody and Right of Access Act, a person under 18 years of age is legally incompetent (minor). A child who has attained the age of 12 is entitled to be heard in child welfare cases as stipulated in Section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support mentioned in Section 13.
125. Section 17.1 of the Child Welfare Act determines 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 Section 15 of the Administrative Procedure Act: (a) the custodian of the child, (b) a biological parent who is not the custodian 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 the age of 12. They will also have to be notified of a decision concerning taking a child into care and termination of care following the procedure for special notification. The authorities also have, when necessary, an obligation to inform them of possibilities of appeal.
126. Section 15, subsection 1, of the Administrative Procedure Act lays down a general obligation to hear the parties. Before any decision is made the party shall be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision.
127. The County Administrative Board, in the capacity of a State authority on regional level, has the general competence to supervise the activities of municipalities. Also, following a procedural appeal, the County Administrative Board (lääninhallitus, länsstyrelsen) can investigate whether a local authority has acted in accordance with the law.
128. In addition, the Ministry of Social Affairs and Health 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 the Ministry of Social Affairs and Health are sent to the County Administrative Board which decides on the matter as the first instance.
129. The Parliamentary Ombudsman and the Chancellor of Justice (oikeuskansleri, justitiekansler) have the competence to supervise the legality of the measures taken by any authorities.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-57683
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF BRANDSTETTER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1+6-3-d;No violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 9. Mr Karl Brandstetter is an Austrian wine merchant residing at Hadres (Lower Austria).
10. On 16 May 1983 a Federal Inspector of Cellars (Bundeskellereiinspektor) visited the applicant’s undertaking to carry out an inspection under section 27 of the 1961 Wine Act, as amended (Weingesetz no. 187/1961, "the Wine Act"). He took three types of samples from two tanks of 1982 white wine. The tanks were sealed and officially seized (section 28, see paragraph 35 below).
After having left the two counter-samples (Gegenproben) with the applicant, he sent the two official samples (Anzeigeproben) to the Federal Agricultural Chemical Research Institute (Landwirtschaftlich-chemische Bundesversuchsanstalt, "the Agricultural Institute") to be examined (section 30 of the Wine Act). Each sample consisted of two bottles. In addition, he drew from each of the tanks a reserve sample (Reserveprobe), for use should a further analysis prove necessary.
11. On 9 June 1983 the Agricultural Institute drew up a report containing the results of a chemical analysis of the samples, which revealed an abnormally low level of natural extracts and mineral substances. It also set out the conclusions reached by an official wine quality control panel (amtliche Weinkostkommission, see paragraph 35 below). This panel had found on 25 May 1983 that the wine in the samples had been diluted with water.
As the levels were below those required by the Wine Ordinance (Weinverordnung), the Agricultural Institute suspected Mr Brandstetter of contravening section 45(1) (a) and (b) of the Wine Act in conjunction with section 44(1) (f) and section 43(3) (relating, inter alia, to the offering for sale to the public of "imitation wine" and adulterated wine).
12. On 8 June 1983 the Agricultural Institute had informed the Haugsdorf District Court (Bezirksgericht) of its suspicions in accordance with section 30(9) of the Wine Act (see paragraph 35 below), whereupon the District Prosecutor (Bezirksanwalt) instituted proceedings against Mr Brandstetter under section 45 of the Wine Act.
13. In order to prepare his defence, the applicant had the counter-samples analysed in Vienna by Mr Niessner of the Federal Food Control and Research Institute (Bundesanstalt für Lebensmitteluntersuchung und -forschung, "the Food Institute"). On 9 August 1983 Mr Niessner reported that the level of natural extracts and mineral substances was not below the required minimum. However, the tasting of the samples by a quality control panel on 14 July 1983 had confirmed that water had been added to at least one of them (by six votes out of seven), but had been unable to establish with certainty whether this was so for the other (five votes out of seven).
14. At a first hearing on 4 October 1983 Mr Brandstetter pleaded not guilty and requested the District Court to take expert evidence with a view to establishing that his wine was not "imitation wine" and had not been adulterated.
Accordingly, the District Court instructed Mr Bandion of the Agricultural Institute to carry out an expert examination. Mr Bandion had not been involved in the first analysis of the official samples by the Agricultural Institute, or in the drawing up of its report.
15. On 22 November 1983, at the second hearing, the court took evidence from Mr Bandion. According to him, the difference between the results of that examination and the results obtained by Mr Niessner showed that in at least one of the analyses a grave error had been committed; he recommended that the reserve samples should be analysed in order to clarify the position. The court directed him to draw up a report on this matter.
Mr Brandstetter maintained that the difference in the findings could also be explained by a circumstance to which he had already drawn the attention of the police on 22 July 1983. This was that the Inspector of Cellars had used a dirty bucket to draw the samples and had poured them into bottles in which there had been a residue of water. The Inspector had emptied the remaining bottles only after the applicant had protested. The applicant’s wife and two sons, who were called as witnesses, confirmed his statements.
The Inspector and his assistant, who were also heard as witnesses, claimed on the other hand that the bucket had been clean and that the liquid which remained in the bottles had been wine used to rinse them. The Inspector had explained this to Mr Brandstetter when the latter had complained and, moreover, he had subsequently emptied the bottles in question.
16. The analysis of the reserve samples was carried out at the Agricultural Institute on 21 December 1983 under the supervision of Mr Bandion. It resulted in similar conclusions to those concerning the first samples, but there was no tasting by a quality control panel.
In his report of 17 January 1984 Mr Bandion stated that the new analysis had corroborated the first examination carried out by the Agricultural Institute and therefore raised serious doubts with regard to the examination effected by Mr Niessner, of the Food Institute. The scientific findings corresponded to the conclusions of the quality control panels which had identified the addition of water in all the samples except one. As with the results of the tasting, they revealed the prohibited addition of water and sugar, and a level of natural extracts and substances below that required by the Wine Ordinance. The applicant’s products could not, however, be classified as "imitation wine". Various statements by Mr Brandstetter and members of his family during the hearing (see paragraph 15 above) must have been wrong in view of the results of the chemical analysis, in particular statements concerning the use of a dirty bucket by the Inspector of Cellars. Furthermore it was impossible to determine from the outside whether the liquid residue in the green bottles was wine or water.
17. A new hearing was held on 14 February 1984. The applicant’s lawyer criticised Mr Bandion’s opinion because the latter’s close links with the Agricultural Institute deprived him of the necessary objectivity in relation to the first analysis and could have led him to defend the results of that examination against those reported by Mr Niessner. In addition, the expert had exceeded his duties by expressing a view on questions of fact and of law instead of merely carrying out a chemical analysis. Consequently, the defence requested further investigative measures, namely the drawing of new samples from the two tanks which had been seized, the taking of evidence from several other experts, including Mr Niessner, and the consultation of the minutes of the quality control panel. The defence also alleged that the rules laid down for a tasting had not been complied with. Again, the court-appointed expert had not explained the differences between the conclusions of the two institutes. He had merely expressed his view that those of the Food Institute were erroneous and that those of his own Institute were correct.
18. On the same day the District Court convicted Mr Brandstetter of adulterating wine (section 45(1) (a) of the Wine Act) and fined him 5,600 schillings. It also ordered the forfeiture of the wine contained in the two tanks seized - a total of 27,000 litres - (section 46(1)) and the publication of the judgment (section 45(3)).
Its judgment was based for the main part on Mr Bandion’s opinion. It cited long passages from that opinion which were in its view conclusive because they revealed a convincing, detailed, precise and exhaustive examination of the differences in analysis of the two institutes. However, the court refused to take into account certain of the expert’s statements which improperly dealt with questions of law and the assessment of evidence.
In determining sentence, the court regarded the fact that Mr Brandstetter had made false allegations as to the manner in which the Inspector had carried out his duties as an aggravating circumstance.
19. In addition, the District Court rejected the application for further investigative measures. The court did not consider it to be relevant in so far as it concerned the tasting procedure, because the results of this procedure did not constitute conclusive evidence. The drawing of new samples would in its view be superfluous, in particular as it could not be ruled out that the wine, which in the meantime had remained in the sealed tanks, had undergone an alteration with regard to its composition. The same was true of the request to hear new experts, because no doubts existed as to the reliability of the Agricultural Institute’s conclusions, which had in part been confirmed by those of the Food Institute, or as to Mr Bandion’s objectivity.
20. Mr Brandstetter appealed. He repeated his request for further investigative measures and argued that by dismissing it the District Court had disregarded the rights of the defence.
21. On 7 May 1984 the Korneuburg Regional Court (Kreisgericht) upheld the contested decision.
It noted that the applicant had not raised objections to the expert when he had first been appointed, but only on seeing his report. Mr Bandion’s objectivity was not in doubt. He was especially experienced and conscientious and had in no way been involved in the analysis of the first samples, had criticised the conclusions not only of the Food Institute but also, in certain respects, those of his own Institute, and had explained in detail the differences between the two reports. The citation of extracts from the expert’s opinion in the judgment could not be criticised. As it was a conclusive opinion, it was not necessary to seek new evidence (see paragraphs 17 and 19 above). Nor was it necessary to inspect the minutes of the quality control panel’s meeting since the Food Institute’s report contained a summary of the tasting procedure, which moreover could provide only indicative evidence of a subsidiary nature in relation to the evidence resulting from the chemical analysis.
22. On his conviction becoming final, Mr Brandstetter had intended to bring an action for damages against the Republic of Austria alleging its liability for the unacceptable procedural errors (Verfahrensfehler) which had been made by the courts in the proceedings concerning the quality of the wine.
In order to ensure that the evidence was preserved (Beweissicherungsantrag, Article 384 of the Code of Civil Procedure), he requested that additional samples be taken from the sealed tanks. His request was dismissed by the Haugsdorf District Court on 22 May 1984, but on his appeal the Korneuburg Regional Court reversed this decision on 12 June.
23. The District Court appointed as expert Mr Flack, who was a member of the staff of the Agricultural Institute’s branch in Burgenland and who had not been involved in the proceedings concerning the quality of the wine. It instructed him to supervise, on 16 August 1984, the drawing of new samples from the tanks, and then to analyse them.
In his report of 27 September, Mr Flack found differences between the results of his analysis of these new samples and the results of the analyses by the Agricultural Institute of the official samples and the reserve samples obtained on 16 May 1983 (see paragraph 10 above). These differences could, in his opinion, not be explained by alterations in the composition of the wine with the passing of time, or by the effects of measures to preserve the wine authorised by the court. They were in his view due to the addition of substances capable of increasing the natural extract content (alcohol, glycerine, minerals).
24. On 25 September 1984, two days before officially submitting his report, Mr Flack had informed the District Court of his conclusions. The court, of its own motion, instituted criminal proceedings against Mr Brandstetter on a charge of tampering with evidence (Article 293 of the Criminal Code).
Mr Flack was appointed as expert by the court and submitted his report on 23 October 1984. He confirmed the earlier findings and noted that the composition of the new samples was similar to that of the counter-samples drawn on 16 May 1983 and analysed by the Food Institute (see paragraph 13 above).
25. On the basis of this expert opinion, the public prosecutor’s office sought Mr Brandstetter’s conviction for tampering with evidence under Article 293 of the Criminal Code.
26. Hearings were held before the Korneuburg Regional Court on 4 July and 12 September 1985.
The accused contended that it had been physically impossible for him to interfere with the counter-samples taken on 16 May 1983, because he had been absent from his business premises before they had been sent to the Food Institute. He stated that all the measures taken to preserve the wine in question had been carried out in the presence of and had been monitored by the Inspector of Cellars who had drawn the first samples.
Mr Brandstetter affirmed that some of the bottles containing the counter-samples, which he had sent to the Regional Agricultural Chemical Research Institute (Landwirtschaftlich-chemische Landesversuchs-und Untersuchungsanstalt) at Graz, had been broken during transport, but the bottleneck, which had remained intact, of one of them showed clearly that the seals had not been disturbed.
He maintained that Mr Niessner, the expert who had analysed the counter-samples (see paragraph 13 above), could attest to this. He asked that Mr Niessner be called as a witness in order to prove that the seals fixed by the Federal Inspector of Cellars on the counter-samples had been undisturbed when these samples had been given to the Food Institute and that the wine examined by Mr Niessner was identical to the wine examined by the Agricultural Institute. The latter’s first findings were therefore not correct and the quality of the wine at the time when the first samples were drawn in May 1983 had been identical to that of the wine analysed by Mr Flack in the course of the proceedings for securing evidence. The defence further requested that Mr Niessner be appointed as a second expert in order to report on the quality of the wine he had analysed.
The court granted the first request, but refused the second. Accordingly, at the second hearing, Mr Niessner was called as a witness. He confirmed that the seals had been intact in so far as he had been able to judge at the time, but stated that the possibility of interference could not be completely ruled out because it was not the usual practice to carry out a detailed forensic examination. However, no question was put to the witness either by the prosecution or by the defence concerning the quality of the applicant’s wine, or in respect of another possible explanation for the above-mentioned differences.
27. On 12 September 1985 the Regional Court found the applicant guilty and sentenced him to three months’ imprisonment.
The court accepted Mr Flack’s opinion that only the subsequent addition of substances could explain the significant differences in the analyses. It considered the latter’s opinion to be logical and convincing, in particular because it was consistent with Mr Bandion’s conclusions in the proceedings conducted under the Wine Act (see paragraphs 15 and 16 above). As regards the physical impossibility alleged by the applicant, the court referred to "notorious methods" (gerichtsbekannte Methoden) which consisted of replacing the contents of a sealed bottle by heating the container and carefully removing the seal and the cork or by injecting substances with a syringe through the cork. The fact that one of the bottles had been broken might indeed have been due to the failure of such attempted interference.
The court ruled that there was no need to appoint Mr Niessner as a second expert, because he had already submitted a report on the quality of the wine, which he had analysed as a private expert, and because the results of his analysis had already been thoroughly discussed in Mr Bandion’s report.
28. On 24 September 1986 the Vienna Court of Appeal (Oberlandesgericht) dismissed Mr Brandstetter’s appeal (Berufung) against that judgment.
In its view, the Regional Court had not disregarded the evidence submitted by the applicant, namely the broken bottle neck of one of the counter-samples, whose seal was intact; moreover the sample in question could not be used as evidence because it had not been analysed. The results of the examination of the counter-samples by the Food Institute were contradicted by those of the analysis of the official samples by the Agricultural Institute and, according to the convincing opinion of Mr Flack, this discrepancy could be explained only by the fact that substances had been added to the counter-samples.
The Regional Court had also taken into account the identical conclusions which Mr Bandion had reached in the earlier proceedings, and the testimony of the witness Mr Niessner on the possibility of interfering with a sealed bottle. It had also described the notorious methods for carrying out such operations. It had therefore based its conclusion on sufficient reasons.
Consequently, the Court of Appeal did not consider it necessary to consult a new expert as the accused had requested, since the conditions laid down in Article 126 of the Code of Criminal Procedure were not satisfied (see paragraph 36 below).
29. Mr Brandstetter served 31 days of his sentence. The remaining term was suspended following a pardon granted by the President of the Republic.
30. On 20 August 1984 criminal proceedings had been instituted at the request of the public prosecutor against Mr Brandstetter for defamation. According to the public prosecutor’s office he had wrongly accused the Inspector of Cellars of irregularities in taking the first samples on 16 May 1983 (see paragraph 15 above). In so doing he had exposed the latter to the risk of disciplinary sanctions.
31. On 29 October 1984 the Korneuburg Regional Court sentenced the applicant to a suspended term of three months imprisonment for defamation on account of the following statement made by him to the police on 22 July 1983 (see paragraph 15 above) and taken down at his express request:
"[The Inspector of Cellars] also used for this purpose [for drawing the wine samples] a bucket which was rather dirty. When the bottles were being filled up, I noticed that they contained water, which presumably had been left over after rinsing. However, he told me that this was of no importance."
These assertions, which were false and which he knew to be false, could have led to the opening of disciplinary proceedings against the Inspector, because they gave the impression that he had not emptied the bottles when the applicant had asked him to do so; in fact the contrary had been established.
The court based its findings on the evidence adduced in the proceedings concerning the quality of the wine and in particular on the expert opinion and testimony of Mr Bandion, the statements of the Inspector and his assistant, the statements of the applicant and the members of his family and the judgment of 14 February 1984 (see paragraphs 15 and 18 above).
32. On 23 April 1985 the Vienna Court of Appeal dismissed the applicant’s appeal and upheld the Regional Court’s judgment in its entirety.
In so far as Mr Brandstetter had claimed that the impugned statement (see paragraph 31 above) was justified in the exercise of the rights of the defence (Articles 199 and 202 of the Code of Criminal Procedure) and could not therefore constitute criminal defamation, the court referred to well-established case-law and academic opinion, according to which such rights could not extend to conduct which did not merely serve an accused’s defence, but also adversely affected the rights of another person through allegations of such a nature as to amount to a new criminal offence. As the applicant had consciously aroused false suspicions in respect of the Inspector, Article 297 of the Criminal Code was applicable.
The court also took the view that the public prosecutor’s office had not tacitly waived its right to institute proceedings, even though it had not acted immediately. Finally, it found no procedural defect in the way in which the Regional Court had assessed the evidence. The latter court had examined the findings of the proceedings in detail, in a logical and coherent manner in relation to the evidence, and had drawn plausible conclusions concerning the subjective element. The appeal court regarded it as decisive that the bottles, irrespective of whether they had been rinsed with water or wine, could not contain a significant quantity of liquid once they had been emptied in the way described in a credible and convincing manner by the Inspector of Cellars.
33. On an application by Mr Brandstetter, the Attorney-General (Generalprokurator) lodged a plea for a declaration of nullity in the interests of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) directed against the composition of the Court of Appeal. The Supreme Court (Oberster Gerichtshof) allowed the appeal on 28 January 1987 and remitted the case to the Court of Appeal.
At the hearing on 24 March 1987 the defence alleged that one of the judges present had already participated in the first appeal proceedings and should therefore withdraw. The court adjourned the hearing until 28 April 1987 when it sat in a composition that was in conformity with the law; it confirmed the judgment of 23 April 1985 in its entirety (see paragraph 32 above).
34. The applicant subsequently asked the Attorney-General to lodge a further application for a declaration of nullity in the interests of the law, but unsuccessfully.
At this time he discovered that the judgments of 23 April 1985 and 28 April 1987 reproduced almost word for word the observations (the "croquis") of the Vienna Senior Public Prosecutor (Oberstaatsanwalt) filed with the Court of Appeal on 29 March 1985, which had not been served on him and of which he himself had had no knowledge at the time.
35. According to the Wine Act, a Federal Inspector of Cellars may draw samples from wine tanks of the firm inspected and send them for analysis to the Agricultural Institute. A sealed counter-sample must be left with the firm in question. Furthermore, a reserve sample must be drawn, for use should a further analysis be necessary. The tanks may subsequently be sealed (sections 27 and 28).
The Agricultural Institute analyses the official samples and draws up a report setting out its findings, as well as the results of a tasting by the official wine quality control panel (section 30(3)). The panel is composed of a Chairman (the Director of the Agricultural Institute) and at least five expert tasters appointed by the Federal Ministry of Agriculture and Forestry. It decides, by a qualified majority (five out of five or six, six out of seven, etc), whether the quality of the wine corresponds to its designation. The tasting, the conditions of which are laid down in internal rules, is not conducted in public. The identity of its members - who are under a duty of confidentiality - is not disclosed (section 30(4) to (8)).
If the results of the analysis provide grounds for suspecting that a criminal offence has been committed, the Agricultural Institute must report this to the competent public prosecutor or court (section 30(9)).
36. As regards expert evidence in court, section 30(10) stated at the time:
"If the court has doubts concerning the findings or the opinion of the Agricultural Institute, or if it considers that the findings or the opinion require elaboration, or if reasonable objections are raised against them, it must take expert evidence from an official of the Institute who has been involved in the preparation of the analysis or the opinion in question so that he may explain or discuss in greater detail the conclusions or opinion of that Institute".
In all other aspects the provisions of the Code of Criminal Procedure are applicable. In particular if any doubts persist or if the findings of an expert "are unclear, vague, contradictory", etc. (Articles 125 and 126 of the Code of Criminal Procedure), the court may call another expert.
Under the terms of Article 149 of the same Code, only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts. Nevertheless, the court may authorise experts to examine witnesses and the accused. Witnesses, on the contrary, do not have this possibility.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c
6-3-d


ITEMID: 001-67235
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DOJS v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1936 and lives in Bydgoszcz.
9. In February 1986 the applicant and her husband divorced.
10. In June 1987 she filed with the Bydgoszcz District Court (Sąd Rejonowy) a petition in which she sought the division of the spouses' property.
11. In 1988 and 1989 the court ordered expert opinions.
12. On 3 June 1992 it refused a request that the shares in the property be unequal.
13. On 28 May 1993 the court declined the applicant's challenge to the participation in the proceedings of one of the judges. Her appeal against that decision was subsequently rejected.
14. On 9 June 1993, in reply to the applicant's complaint, the President of the Bydgoszcz Regional Court (Sąd Wojewódzki) informed her that due to the excessive length of the proceedings they had been taken under his administrative supervision.
15. On 16 July 1993 the Bydgoszcz Regional Court rejected the applicant's appeal against the decision of 28 May 1993.
16. On 4 and 20 October 1993, as well as on 13 April and 25 May 1994, the Bydgoszcz District Court held hearings. In October 1993 the parties to the proceedings requested that certain further expert opinions be ordered.
17. On 18 April 1994 the applicant changed her claim.
18. On 10 January 1994 an expert appointed by the court submitted his opinion concerning the value of real property.
19. In a letter of 1 July 1994 the President of the Bydgoszcz Regional Court agreed with the applicant's further complaint about the excessive length of the proceedings.
20. On 8 June 1994 the court gave judgment in respect of part of the claims.
21. On 31 August 1994 the applicant requested the court to appoint an expert to assess the value of movables.
22. On 16 September 1994 the applicant's former husband lodged an appeal against the judgment of 8 June 1994.
23. On 1 December 1994 the Bydgoszcz Regional Court quashed that judgment and remitted the case for re-examination.
24. From April to 4 December 1994 the applicant lodged several complaints with the judicial authorities about the lack of progress in the proceedings, to no avail.
25. The Bydgoszcz District Court held hearings on 5 April, 25 October and 6 December 1995, 14 February, 24 April, 24 May, 3 July and 8 November 1996, as well as 5 February, 18 June, 9 July and 9 September 1997. It ordered four expert opinions.
26. On 21 May 1996 the applicant changed her claim.
27. On 23 September 1997 the court gave judgment. In the reasoning it pointed out that the applicant on several occasions had changed her claims. She appealed against that judgment.
28. The Bydgoszcz Regional Court held hearings on 25 February, 25 June and 9 July 1998.
29. On 9 July 1998 the parties reached a friendly settlement in respect of a part of the Bydgoszcz District Court's judgment. The applicant was to receive 26,150 Polish zlotys from her former husband as payment for transferring her share in the disputed property to him. She withdrew her appeal in respect of the remainder of the District Court's judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1