ITEMID: 001-113432
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VIKULOV AND OTHERS  v. LATVIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Kristina Pardalos;Nona Tsotsoria
TEXT: 6. The first applicant, Mr Sergey Vikulov, was born in Hungary in 1955. His wife, the second applicant, Mrs Galina Vikulova, was born in then the Russian Soviet Federative Socialist Republic in 1957. Their son, the third applicant, Mr Anton Vikulov, was born in then the Latvian Soviet Socialistic Republic (Latvian SSR) in 1986. They are now citizens of the Russian Federation and live in Kaliningrad.
7. The first applicant was an officer of the Soviet army. In 1985 he and his wife, the second applicant, entered the territory of Latvian SSR where the first applicant, together with other military personnel, was responsible for the supervision of the Soviet radar station in Skrunda.
8. In August 1991 Latvia regained its independence from the Soviet Union and in December 1991 the latter ceased to exist. In 28 January 1992 the Russian Federation assumed jurisdiction over the former Soviet Union armed forces, including those stationed in the territory of Latvia. Afterwards the applicants acquired the citizenship of the Russian Federation.
9. On 30 April 1994 the Republic of Latvia and the Russian Federation signed the treaty concerning the conditions, deadlines and procedure for the complete withdrawal of the armed forces of the Russian Federation from the Republic of Latvia, as well as their status during the withdrawal. On the same day both States entered into an agreement concerning the legal status and dismantling of the radar station in Skrunda, and the status of the military personnel deployed there. It provided that the radar station was to cease its operations by 31 August 1998 and that it was to be dismantled by 29 February 2000.
10. By an order of 29 September 1998 the first applicant was demobilised from the army with effect from 11 November 1998. The applicants’ service visas were due to expire on 30 November 1998.
11. In October 1998 the second applicant, acting on behalf of the other applicants, asked the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde) to issue them with a residence permit. In support of her request she relied on the fact that her elderly parents and her daughter lived in Latvia, and that the third applicant was a pupil at a State school.
12. On 8 April 1999 the Office of Citizenship and Migration Affairs dismissed the applicants’ request, stating that they had entered the territory of Latvia because of the first applicant’s military service. They were informed that in accordance with the Law on Aliens (Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), there was no legal basis for them to obtain permanent residence permits in the Republic of Latvia, and that by virtue of the agreement concluded between the Republic of Latvia and the Russian Federation, the applicants had to leave the territory of Latvia.
13. The applicants appealed against that decision before the Rīga City Centre District Court, which dismissed their appeal. No further appeal was brought.
14. On 10 March 2000 the first and second applicants asked the Office of Citizenship and Migration Affairs to issue them with temporary residence permits.
15. On 23 May 2000 the Head of the Office of Citizenship and Migration Affairs issued an order for the applicants (the third applicant was mentioned in the order concerning the first applicant) to leave Latvian territory by 12 June 2000 and also imposed a five-year ban on their re-entering Latvia.
16. Appeals by the applicants against the orders were dismissed by the national courts at three levels of jurisdiction. The final decision was adopted by the Senate of the Supreme Court on 19 February 2003.
17. In a letter dated 25 February 2003 the Office of Citizenship and Migration Affairs reminded the first and second applicants of their obligation to leave the country or otherwise they would be deported in pursuance of section 47 of the Law on Aliens.
18. It appears from the material in the case file that on 14 March 2003, during an interview with the Head of the Office of Citizenship and Migration Affairs, the applicants were informed that the period within which they had to leave the territory of Latvia had been extended until 15 June 2003 to allow the third applicant to finish the current school year.
19. On 3 September 2003, in the course of the execution of the aforementioned orders, the applicants were arrested by officers of the State Border Guard Service. The records of their arrest referred to the orders to leave of 23 May 2000 (see paragraph 15 above) and relied on section 51(1)(1), of the Immigration Law (Imigrācijas likums) (see “Relevant domestic law” below). The applicants refused to sign the records of their arrest because they were drawn up in Latvian, a language which they allegedly did not understand.
20. On the same day the applicants were placed in the State Border Guard Service detention unit for illegal immigrants in Rīga (“the State Border Guard Service detention unit”).
21. On 8 September 2003 the Office of Citizenship and Migration Affairs, relying on section 47(1)(1) of the Immigration Law adopted a decision to deport the applicants. Pursuant to section 47(2) of the above law the decision was not subject to appeal. The applicants refused to take cognisance of the decision.
22. On 12 September 2003, by a decision of the Rīga City Zemgale District Court, the applicants’ detention was extended until 19 September 2003. The court established that at the time of their arrest the applicants had not presented any identity documents and that according to their Russian Federation passports, which they had presented only during the hearing, the applicants did not have a lawful basis to reside in Latvia.
23. On the same day the applicants were transferred to the accommodation centre for foreign detainees (Aizturēto ārzemnieku izmitināšanas centrs) in Olaine (“the Olaine accommodation centre”), where they stayed until 15 September 2003, when they were brought back to the State Border Guard Service detention unit. On 17 September 2003 the applicants were deported to the Russian Federation.
24. On 3 September 2003 the applicants were taken to a cell. They first described the conditions in the cell in their initial separate complaints to the Court and later on in their joint application form. The facts as set out in the applicants’ initial separate complaints are referred to below in so far as they supplement the factual information presented in their later submissions.
25. The applicants stated that on 3 September 2003, after they had been searched without witnesses in the State Border Guard Service detention unit, they had each received a dirty and thin flannel blanket and a bed sheet, and had been placed together in a cell which was small (3 m by 3 m) and dirty, with a small window. The cell contained two steel bunk beds which were so hard that the second applicant’s back was constantly aching. There were steel chairs and a table screwed to the floor. The air was foul from the lavatory pan and washbasin in the cell, and as a result the applicants suffered from headaches and their eyes were watering. There was an iron door with a small window used for handing the applicants food and supervising them. The light in the cell was on for twenty-four hours a day and during their fourteen days in the cell the applicants were only twice taken out for a walk, lasting ten to fifteen minutes.
26. According to the initial submissions of the first applicant, the sanitary facilities were separated from the rest of the cell by a low partition. This assertion was maintained in the applicants’ later joint observations.
27. The applicants contended that the food at the State Border Guard Service detention unit was of bad quality, tasteless, insufficiently salty and not always fresh. Owing to the short periods between the meals (breakfast was at 10 a.m., lunch at 12 noon and dinner at 4 p.m.), the applicants were hungry in the evenings. Once they were given mouldy potatoes for dinner.
28. The third applicant added that they had been given metal tableware and that the cell was infested with ants, which were creeping everywhere. This allegation was repeated in the applicants’ joint observations, which stated that in the cells there were large numbers of ants creeping into the food and spoiling it.
29. During the applicants’ stay in the State Border Guard Service detention unit they were only twice authorised to meet their relatives. They were also not authorised to return to their former place of residence to collect their belongings before their deportation. In their later joint observations the applicants added that an officer of the State Border Guard Service had told them that they would have an hour to go home on condition that they signed the records of their arrest and deportation.
30. On 9 September 2003 one of the detainees in the neighbouring cell behaved aggressively and the officers of the detention unit released a certain gas to calm him down. The applicants had to leave their cells and when they returned another woman was put into the applicants’ cell for twenty-four hours. In her initial separate complaint the second applicant noted that the incident took place in the afternoon and that another person stayed in their cell for one day. In their joint observations the applicants stated that the woman stayed in their cell for two days.
31. In their joint observations the applicants furnished a plan of the cells in the State Border Guard Service detention unit, according to which cells nos. 1 and 2 (the applicants were held in the latter cell) were designed for four persons, cell no. 4 for two persons and cell no. 3, which was a isolation cell, for one person, although the latter cell was not used because the window pane was broken. On 9 September 2003, when one of the three detainees in cell no. 1 started to behave aggressively, the other two men were transferred to cell no. 4, and a woman from cell no. 4 was transferred to the applicants’ cell (no. 2). Their protests against the woman’s transfer were ignored.
32. On 16 September 2011, a day before their deportation to the Russian Federation, a man was placed in their cell (cell no. 1). The applicants protested but the guards ignored them. In the evening they were moved to cell no. 4, which was meant for two persons. The first applicant therefore had to sleep on the floor.
33. In the State Border Guard Service detention unit the applicants were only twice allowed to have walks of fifteen minutes in the inner courtyard, which was cemented over and surrounded by high concrete walls protected by barbed wire. On the second occasion, they were taken out of their cell after the incident referred to above (see paragraph 30 above) in order to air the cell after gas had penetrated into it.
34. The applicants contended that the conditions in the Olaine accommodation centre were no better than in Rīga. They were held in a separate cell with three beds, two tables and chairs, and they were given bed clothes. The cell was very dirty with dilapidated walls covered in graffiti. There were grilles on the windows. Outside there was a very high fence with barbed wire, and behind it was a watchtower. The applicants were given a bucket and a draining rack to wash the cell. They were given old dishes and food to last five days, which included approximately 2-3 kg of potatoes, 500 g of pasta, 300 g of rice, three small chicken legs, three small fish, 300 g of vegetable oil, bread and other vegetables. They had to do their own cooking in a kitchen which had a four-ring stove for ten people.
35. In their joint observations the applicants alleged that on the second day of their stay at the centre a man had been put in their cell. It appears from the first applicant’s separate complaint and the later observations that the aforementioned incident took place at the State Border Guard Service detention unit rather than in Olaine (see paragraph 32 above).
36. According to the applicants, on the morning of 17 September 2003, when they were informed of their deportation to the Russian border, the second applicant had a heart attack. For the previous two days she had complained of heart pain and headaches but did not receive any treatment. In support of their allegation that the first and second applicants had already raised health-related complaints at the time of their detention, the applicants furnished copies of records of 3 September 2003 concerning all three applicants and records of 15 September 2003 concerning the second applicant, which stated that, on returning to the State Border Guard Service detention unit, she had complained of heart pain, intercostal neuralgia, low blood pressure and headaches.
37. Immediately after her heart attack on 17 September 2003, the second applicant received some injections and pills from the doctor of the State Border Guard Service detention unit. The applicants were put in a vehicle which was supposed to drive them to the border. It was stuffy, noisy and jolty in the car and the second applicant had another heart attack during the journey. When they stopped at the Olaine accommodation centre the second applicant was examined in the medical unit and received an injection and medication. Without having been given permission, the first applicant called for an ambulance, whose crew examined the second applicant.
38. In her separate complaint the second applicant noted that the ambulance crew had examined her and concluded that she had not had a heart attack.
39. After the medical check the applicants had to continue the five-hour-long trip to Zilupe, where they were kept detained until 9 p.m., and then took a train to Moscow in an ordinary carriage. They were hungry because that day they had received food in the morning only, and they did not have any money or belongings because the authorities had prevented them from taking anything with them or saying goodbye to their relatives.
40. The Government to a large extent contested the applicants’ account of the facts. They relied on a report of 19 June 2004 addressed by the head of the Rīga Department of the State Border Guard Service to the Agent of the Government (for the relevant parts of the report see the admissibility decision in the present case: Vikulov and Others v. Latvia (dec.), no. 16870/03, 31 August 2006, section 4 (a)(ii) of the “Facts” part).
41. In their additional observations the Government furnished technical inventory documents and photos of the cell where the applicants were held. According to the inventory documentation held by the State Border Guard Service detention facilities, there were three cells measuring 17.7 sq. m, 14.6 sq. m and 11.3 sq. m, and an isolation cell measuring 7.1 sq. m. The windows were not narrower than 0.8 m. According to the inventory documents and photos, the sanitary facilities were separated from the rest of the cell by a brick partition. According to the Regulations of 1 March 2002 on the State Border Guard Service short-term detention facilities, the partition was not higher than 1.2 m.
42. As to pest control, the Government submitted a copy of a report according to which inspections for rats and other parasites were carried out once a month. During the inspection on 4 September 2003 no parasites had been detected.
43. Concerning the adequacy of the food, the Government submitted copies of various internal regulations in force at the material time, which set out the type and quantity of dry products distributed to detainees during the weekend (for the relevant parts of these regulations see Vikulov and Others (dec.), cited above). The instruction concerning the daily regime of detainees in the State Border Guard Service detention unit provided as follows: morning routine, followed by an inspection of the cells from 7 to 9 a.m.; breakfast from 9 to 10 a.m.; meetings with officials of the State Border Guard Service from 10 a.m. to 4 p.m., with a lunch break from 12 noon to 1 p.m. Dinner was provided from 4 to 5 p.m., followed by free time from 5 to 10.30 p.m., which included cleaning and inspection of cells. Night hours began at 11 p.m.
44. With regard to outside walks, the Government relied on a report of an official of the State Border Guard Service who confirmed that walks were not regulated and that any time except between 10 p.m. and 6 a.m. could be used for walks in the inner courtyard, on condition that women, men and families were to have walks separately, and that outdoor exercise did not exceed one hour at a time.
45. As to the right to meet relatives, the Government furnished certified copies of the applicants’ requests of 3, 4, 7, 15 and 16 September 2003 for authorisation to meet their relatives and to make phone calls to them. It appears from the copies that all the requests are marked as having been authorised. They also furnished copies of extracts from the register of visitors and parcels in the State Border Guard Service detention unit, according to which on 5, 9 and 11 September 2003 the applicants were visited by family members; on 5, 6, 9 and 11 September 2003 they received parcels; and on 16 September 2003 a representative of the Embassy of the Russian Federation visited them.
46. The Government submitted a report of 11 September 2003 drawn up by an officer of the State Border Guard Service, who reported to a superior officer that on 10 and 11 September 2003 he had visited the applicants in the State Border Guard Service detention unit in order to serve them with the deportation order, but that they had refused to sign it. The report also stated that the officer had offered to drive the applicants to collect their identity documents but they had not responded to this offer.
47. The Government further submitted a report of 16 September 2003 by the same officer, who informed that on the same day the applicants had dismissed his offer to drive them to their former place of residence. The documents also contained a copy of a universal power of attorney dated 16 September 2003 and certified by a notary public in her premises in Rīga, in which the first applicant vested his daughter with broad powers in relation to, inter alia, his and the third applicant’s property.
48. In addition to the factual information provided in their earlier observations (see Vikulov and Others (dec.), cited above, section 4(b)(ii) of the “Facts” part) the Government furnished photocopies of a plan and pictures of the Olaine accommodation centre.
49. The Government furnished copies of the records drawn up during the applicants’ detention as well as medical reports. According to the records of 3 September 2003 concerning the examination of detained aliens, the second applicant complained of a headache, psoriasis and rheumatic heart disease, and the third applicant complained of psoriasis. According to the same records, on 12 September 2003 at 5.50 p.m. the first and second applicants confirmed in writing that they had received their belongings, such as keys, money and mobile phones which, at the time of their arrest, had been deposited with the State Border Guard Service detention unit.
50. According to the medical records of 12 September 2003, on arrival at the Olaine accommodation centre none of the applicants complained of any health problems.
51. According to the copies of the applicants’ medical records, it was on 15 September 2003, at 11.20 a.m., that the second applicant complained of a headache. After having her blood pressure checked, the second applicant received one unit of spasmalgon, one unit of tempalgin and three units of panangin. On 16 September 2003 at 1.05 p.m. the second applicant repeatedly complained of a headache and intercostal neuralgia. She received an injection of diclofenac, one unit of tempalgin, corvalol and three units of panangin.
52. Lastly, at 12.15 p.m. on 17 September 2003, the day of the applicants’ deportation, the second applicant complained of a headache. According to the medical report, she also showed signs of tachycardia and psycho-emotional reaction. Her blood pressure was measured twice, with a thirty-minute interval. She received an injection of spasmalgon, one unit of nitrong, panangin and valocordin drops. She also received at least seven units of three types of medication to take with her “to the border”.
53. Following a request by the Government Agent for information as to the existing remedies at the material time in respect of complaints concerning conditions of detention in centres for illegal immigrants, the Prosecutor’s Office stated that pursuant to section 56 of the Immigration Law, it could receive complaints regarding any issue. It also noted that the domestic law did not explicitly provide for a right to complain about conditions of detention; nevertheless, applicants could avail themselves of the right to submit a complaint by virtue of the Law on Enquiries (“Par iesniegumu, sūdzību un priekšlikumu izskatīšanas kārtību valsts un pašvaldību institūcijās”). In response to a similar request the Office of Citizenship and Migration Affairs replied that questions concerning the arrest and detention of persons did not fall within its sphere of competence.
54. Section 51(1) of the law provides that an official of the State Border Guard Service has the right to detain an alien:
(1) if he or she has illegally crossed the State border of the Republic of Latvia or otherwise violated the procedures prescribed by regulatory enactments for the entry into and residence of aliens in the Republic of Latvia;
(2) if the alien poses a threat to State security and public order;
(3) in order to implement an order regarding removal of an alien from the Republic of Latvia.
As a result of the amendments of 21 June 2007, which became effective as from 19 July 2007, section 51 was subjected to merely textual changes.
55. By section 54(1), an official of the State Border Guard Service has the right to detain an alien for a period not exceeding ten days in the cases referred to in section 51 of the law.
56. Section 56 provides that in defence of their legitimate interests, foreign detainees have the right to appeal to the Prosecutor’s Office, to contact a consular institution of their own country and to receive legal assistance. Aliens must be informed of these rights at the time of their detention.
57. Other provisions of domestic law that are relevant to the issues raised in the present case, such as the Immigration Law, Law of the Office of the Prosecutor and Law on Enquiries, can be found in Slivenko v. Latvia [GC], no. 48321/99, §§ 49-63, ECHR 2003X, and Vikulov and Others (dec.), cited above, part B.
58. The relevant parts of the report of 10 May 2005 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 25 September to 4 October 2002 can be found in Vikulov and Others (dec.), cited above, part C.
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-97557
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SAVENKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1958 and lives in Tambov.
7. The applicant's father and Mrs K. co-owned a cottage in Tambov. The applicant's father decided to sell his share of the cottage and authorised the applicant to organise the sale.
8. On 4 July 2001 Mrs K. was murdered. On the same date Mr Z., who had carried out certain repair works for the applicant, was arrested by the police and confessed to the murder. He told the police that the applicant had instigated the crime and promised him remuneration for the murder. On the same day the police conducted a search of the applicant's flat.
9. The date and time of the applicant's arrest are disputed between the parties. According to the applicant, she was arrested at 6 p.m. on 4 July 2001. According to the Government, she was arrested at 2.40 a.m. on 5 July 2001, the time indicated in the arrest report drawn up by the investigator and signed by the applicant.
On 6 July 2001 the Prosecutor of the Oktyabrskiy District of Tambov authorised the applicant's pre-trial detention. The order stated as follows:
“[Taking into account] the gravity of the crime committed by [Mrs] Savenkova, and also the fact that at the present time there are insufficient grounds for bringing charges against her, the fact that she may abscond from the investigation and fail to appear at court, commit another crime or interfere with the establishment of the truth in the criminal case, [the investigator] has decided to choose with regard to [Mrs] Savenkova Tatyana Rafailovna ... detention in the Tambov SIZO-1 as a measure of restraint ...”
10. On 13 July 2001 the applicant was charged with incitement to murder.
11. On 6 August 2001 the applicant changed her legal counsel.
12. On 9 August 2001 the applicant made an application for the measure of restraint to be changed to an undertaking not to leave her place of residence. She submitted that her second son, having been injured in an accident, was in hospital, and her younger daughter of three needed to be taken care of.
13. On 22 August 2001 the Oktyabrskiy District Court of Tambov dismissed the application as follows:
“On 6 July 2001 a measure of restraint was chosen by the Prosecutor of the Oktyabrskiy District in respect of [Mrs] Savenkova.
[Mrs] Savenkova requests that the measure of restraint be changed as she is not guilty, has three children, and her son has been injured in an accident.
The measure of restraint was chosen lawfully and reasonably, and took into consideration the gravity of the charges.
Pursuant to Article 220-2 of the [RSFSR] Code of Criminal Procedure, [the court] has decided to dismiss the complaint.
This decision may be appealed against to the Tambov Regional Court within seven days.”
14. The applicant did not appeal against the decision.
15. On 29 August 2001 the acting Prosecutor of the Oktyabrskiy District of Tambov extended the applicant's pre-trial detention to 5 October 2001, referring to the gravity of charges as grounds.
16. On 2 October 2001 the acting Deputy Prosecutor of the Tambov Region extended the applicant's pre-trial detention to 4 November 2001, referring to the gravity of charges and the risk of fleeing justice and obstructing the investigation.
17. On 29 October 2001 the acting Deputy Prosecutor of the Tambov Region extended the applicant's pre-trial detention to 4 December 2001, referring to the gravity of the charges and the risk of fleeing justice and obstructing the investigation.
18. On 4 December 2001 the criminal case file was submitted to the Tambov Regional Court for examination on the merits.
19. On 10 December 2001 the applicant's counsel sent a telegram to the Tambov Regional Court requesting it to terminate the applicant's prosecution and release her from custody.
20. On 19 December 2001 the Tambov Regional Court scheduled the first trial hearing to take place on 4 January 2004 and held that the preventive measure applied to the applicant, the detention in the Tambov SIZO-1, “should remain unchanged”.
21. On 14 March 2002 the Tambov Regional Court found the applicant guilty of incitement to murder and sentenced her to eight years' imprisonment. Z. was found guilty of murder and sentenced to twelve years' imprisonment.
22. On 14 June 2002 the Supreme Court of the Russian Federation examined and dismissed an appeal by the applicant. The applicant and Z. were transferred to correctional facilities to serve their sentences.
23. On 30 August 2002 the Deputy Prosecutor General, at the applicant's request, lodged an application for supervisory review of the judgment.
24. On 23 October 2002 the Presidium of the Supreme Court of the Russian Federation granted the request for supervisory review, quashed the judgment on the grounds of inadequate legal assistance to Z., and remitted the case to the first-instance court for fresh examination. The Supreme Court ordered the applicant and Z. to remain in custody.
25. On 13 November 2002 the case file was transferred to the Tambov Regional Court. On an unspecified date the applicant and Z. were transferred to the Tambov SIZO-1 and remained there awaiting the second trial.
26. On 20 November 2002 the Tambov Regional Court conducted a hearing of the criminal case where the applicant allegedly challenged the detention order and requested to be released. She provided a copy of the application, signed by her counsel Kh., but claims that the court did not examine it.
27. According to the applicant, on 9 December 2002 her lay representative, R., lodged another application with the Tambov Regional Court for the measure of restraint to be changed to an obligation not to leave her place of residence. According to the Government, this application was lodged on 20 January 2003.
28. On 20 January 2003, before the hearing of her case by the Tambov Regional Court, the applicant's counsel Kh. made an application to the court challenging the applicant's continued pre-trial detention and requesting that the measure of restraint be changed to an undertaking not to leave her place of residence. The application was examined and dismissed by the Tambov Regional Court with reference to the gravity of the charges.
29. On 9 April 2003 the Tambov Regional Court acquitted the applicant and Z. of all charges because of lack of evidence. They were released in the court room. The prosecutor appealed against the acquittal.
30. On 9 June 2003 the Supreme Court of the Russian Federation granted the prosecutor's appeal, reversed the judgment of 9 April 2003 and remitted the case for a fresh first-instance examination.
31. On 19 February 2004 the Tambov Regional Court found the applicant guilty as charged and sentenced her to eight years' imprisonment. Z. was sentenced to twelve years' imprisonment. They were taken into custody from the court room.
32. On appeal, on 16 April 2004 the Supreme Court of the Russian Federation upheld the judgment of 19 February 2004 in substance, but reduced the applicant's sentence to five years' imprisonment and Z.'s sentence to nine years' imprisonment.
33. On 14 January 2005 the Supreme Court of the Russian Federation granted the applicant's request for the suspension of her imprisonment and she was released.
34. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
35. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP).
36. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or have his or her detention extended (Article 22).
37. Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).
38. The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1 and 3-6).
39. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).
40. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously absconded or had no permanent residence in Russia, or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
41. The Codes distinguished between two types of detention: detention “pending the investigation”, that is, while a competent agency – the police or a prosecutor's office – investigated the case, and detention “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
42. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
43. The period of detention “pending the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).
44. Access to the case file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, at the request of a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.
45. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant's detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97).
46. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”).
47. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not normally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence.
48. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court receives the file to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
49. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review had to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee had to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1).
50. An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine).
51. Under the new CCrP, an appeal may be lodged with a higher court within three days of a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10).
52. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application is refused, a fresh application can be made once the trial has commenced (Article 223 of the old CCrP).
53. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and be signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
54. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP).
55. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
56. The duration of the trial is not limited.
57. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases, or in proceedings before the Supreme Court, this time-limit could be extended by up to two months (Article 333). No further extensions were possible.
58. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-91529
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BAYBASIN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Nizamettin Baybasin, is a Turkish national who was born in 1963 and lives in Aachen. He was represented before the Court by Mr E. Altun, a lawyer practising in Braunschweig.
On 20 March 1998 the applicant was arrested in Germany on the suspicion of drug trafficking in substantial quantities.
On 6 May 1998 several persons involved in the drug trafficking, one of whom was witness C., were caught with 85 kg of heroin in Turkey and subsequently detained. During C.’s interview by Turkish police officers on 10 May 1998 he incriminated inter alia the applicant giving detailed information about the applicant’s participation in their drug-dealing activities. During a further interview on 13 May 1998 C. submitted that he “would not accept the statements” of his previous interview, that he “had been under pressure” and that “he had not made those statements”.
On 4 November 1999 the Bonn Regional Court decided to open the trial against the applicant.
In early June and December 2000, following a request of the Bonn Regional Court, a judge of the Istanbul State Security Court interviewed (kommissarische Vernehmung) inter alia C., the police officers who had arrested the applicant and three of the four police officers who had conducted C.’s interview on 10 May 1998. The interviews of C. and the police officers were held in the presence of the judges of the Bonn Regional Court sitting in the applicant’s case, the Bonn Public Prosecutor and the applicant’s defence who had the possibility to ask questions of the witnesses. During his interview C. alleged that the police officers had tortured him to extract the statements given by him on 10 May 1998. Furthermore he specified some symptoms which had been the result of his alleged ill-treatment. Subsequently, the judge of the State Security Court decided to reject all further questions concerning the alleged torture as they would not have any influence on the judgment.
In the meantime, C. had instituted criminal proceedings against the police officers on the grounds of his alleged ill-treatment. On 26 October 2001 the Istanbul Criminal Court acquitted the police officers of the charges against them as there had been no credible evidence on the basis of which they could have been convicted.
Between 27 March 2000 and 10 May 2002 the Bonn Regional Court held 103 hearings in which the applicant was represented by several lawyers. Between 1 March 2001 and 9 April 2001 the Regional Court repeatedly and unsuccessfully tried to summon C. to the hearings and offered to examine him via video conference, but C. rejected that offer. Therefore the Regional Court read out parts of the written records of C.’s statements made during the trial against the police officers before the Istanbul State Security Court. Furthermore it read out the written records of C.’s interview by the police officers in May 1998 and of the interview of the police officers by the Istanbul State Security Court in June and December 2000.
On 10 May 2002 the Bonn Regional Court convicted the applicant of eight counts of importing and trafficking a substantial amount of drugs (between 80 and 90 kg of heroin each time) and passed a cumulative sentence of 15 years’ imprisonment. Furthermore it ordered the applicant’s preventive detention after the sentence had expired.
The court found that the applicant had planned and organised the first five deliveries of heroin and conducted the heroin business himself as of the sixth delivery. The court set out the reasons for his conviction on 240 pages, thereby relying inter alia on the records of C.’s interview of 10 May 1998 and on the oral and written submissions of the police officers who had interviewed C. It found that C.’s submissions given during his first interview had been credible. The very general revocation of his first statement however as well as the fact that the other persons who had been arrested together with C. likewise revoked their submissions – on some occasions even with the same wording – and that their submissions converged more and more during the proceedings strongly suggested that they had colluded in relation to their testimonies as to the alleged ill-treatment. C.’s submissions and the statements of his accomplices were highly contradictory as to his alleged torture and the symptoms he had alluded to. Furthermore, it could not be proved from the judgment of the Istanbul Criminal Court, from the statements of C., the police officers before that court or the various medical reports that C. had in fact been ill-treated. Contrary to the applicant’s submissions and according to reports of Amnesty International and of the German Ministry of Foreign Affairs there is also no general assumption that Turkish police officers usually administer torture during their investigations. The Regional Court added that, “in this specific case, the police officers had not had a reason to ill-treat C. as they had already been granted a bonus for having seized the drugs. They thus would not have received any other financial advantage for obtaining further information from C. or his accomplices”.
The court, being aware that a large part of the evidence was in fact indirect evidence, further found that the statements of C. and the police officers who had conducted his investigation had been confirmed inter alia by the submissions of witnesses whom the applicant had been able to examine, the content of the applicant’s and other witnesses’ telephone conversations, the flow of money which had resulted from the drug activities and which the applicant had carried out and, finally, by his own submissions which he had modified during trial and adapted according to the respective findings of the court.
On 27 February 2004 the Federal Court of Justice reduced the conviction to five counts but upheld the sentence. It found that there had been no violation of the applicant’s right to question the witness as guaranteed by Article 6 §§ 1 and 3 (d) of the Convention. Thus, the applicant’s lawyers had been able to question C. during his interview in June 2000 where the latter had submitted that he had been subject to torture alluding to several symptoms in this regard. Further relevant new findings in this respect – a matter which the applicant did not contest – would not have been a realistic possibility. Moreover, the Regional Court had read out C.’s submissions made during the trial against the police officers, the judgment of the Istanbul Criminal Court and the findings concerning C.’s forensic examination. Furthermore, the Regional Court had intensively but unsuccessfully tried to interview C. during one of its oral hearings, but C. had declined the Regional Court’s offer to hear him via a video conference or to appear personally at the hearing. Finally, the Regional Court had based its findings not only on C.’s submissions, but on the testimony of numerous other witnesses and other means of evidence.
On 5 April 2005 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint arguing that the courts had based their findings on different corroborating evidence. In so far as one item of evidence alone was insufficient to establish that the applicant had committed the crime, the trial court had drawn its conclusions in a comprehensive and consistent manner from the entirety of the evidence at its disposal. Furthermore, the trial court had elaborated extensively on the question as to whether C.’s testimony could be used as evidence and had examined the credibility of C.’s submissions concerning his alleged torture. Finally, the defence had had the possibility to question C. during his interview before the Istanbul State Security Court. The fact that single questions had not been admitted was not open to objection as it was the procedural law of the state where the interview had taken place which decided on how to conduct the latter.
On 26 April 2006 the Bonn Public Prosecutor’s Office rejected the motion of the applicant’s lawyer to be granted access to the case files relating to proceedings concerning the forfeiture (Einziehung) of the applicant’s assets.
Section 69 § 3 of the Code of Criminal Procedure read in conjunction with section 136a of the Code of Criminal Procedure prohibits methods of examination which impair the witness’s freedom to determine and to exercise his or her will, such as ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception, hypnosis or coercion and the threat of such measures. Statements obtained in violation of this prohibition may not be used, even if the witness has given his or her consent.
Pursuant to the provisions of the Code of Criminal Procedure, a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person’s observation. In principle, the witness’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement (Section 250 of the said Code). According to the constant case-law of the Federal Court of Justice, Section 250 permits the hearing of witnesses giving hearsay evidence.
As an exception to the above-mentioned principle, the examination of a witness or co-accused may be replaced by reading out the written record of his previous examination by a judge. This is permitted if there are insurmountable impediments preventing the witness or co-accused from attending the main hearing for a long or indefinite period of time (Section 251 no. 2 of the said Code).
The public prosecutor, the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing (Section 168c § 2 of the Code of Criminal Procedure). A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody (Section 168c § 4 of the said Code).


ITEMID: 001-107888
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF X v. LATVIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 5. The applicant is a Latvian national who was born in 1974 and resides in Australia. In 2007 the applicant obtained Australian citizenship.
6. In early 2004 she met T. and they developed a relationship. The applicant moved into T.’s apartment at the end of 2004 when she was in a late stage of her pregnancy.
7. In February 2005 the applicant gave birth to a daughter. The birth certificate of the child does not state the name of her father and no paternity test had been carried out at the time the application was lodged with the Court. Since the birth of the child the applicant has been entitled to benefits under a single-parent support scheme.
8. It appears that the applicant’s relationship with T. deteriorated and they decided to separate. The applicant continued to share the apartment with T. as a tenant.
9. On 17 July 2008 the applicant left Australia with the child and went back to Latvia.
10. On 19 August 2008, after the applicant arrived in Latvia, T. submitted an application to the Family Court of Australia to establish his parental rights in respect of the child. To support the claim T. testified in an affidavit before the Australian Family Court that he had been in a relationship with the applicant since 2004 and that the latter had always told him that he was the father of the child, even if he was not legally recognised as such. T. also stated that the mutual rent agreement was false and that he had submitted false declarations to the social security services in order to allow the applicant to receive a single-parent benefit. He asserted that the applicant had fled Australia with the child without his consent, thereby violating Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). T. alleged that the location of the applicant in Latvia was unknown to him. In support of his claims T. attached to his application e-mail correspondence between the applicant and his family members.
11. On 6 November 2008 the Australian Family Court, in the absence of the applicant, decided (1) that both T. and the applicant had had joint parental responsibility for their child since the day of her birth, and (2) that the case would be reviewed after the return of the applicant and the child to Australia.
12. It appears that the applicant was invited to attend the hearing or follow it by telephone via an e-mail and a text message. The decision of 6 November 2008 was not appealed against by the applicant.
13. On 22 September 2008 the Ministry of Children and Family Affairs of the Republic of Latvia, which was the Central Authority responsible for implementing the Hague Convention, received from the Australian Central Authority a request from T. concerning the return of the child to Australia under the Hague Convention.
14. On 19 November 2008 the Rīga City Zemgale District Court examined the request in the presence of both the applicant and T. In the hearing the applicant contested the applicability of the Hague Convention alleging that she did not know who the father of her daughter was. She assumed that T. had initiated the proceedings so that they would serve as a mitigating element in criminal proceedings allegedly pending against him in Australia.
15. A representative of the Orphans’ Court (Bāriņtiesa) argued that the claim should be dismissed because at the time of the child’s removal from Australia the applicant had been a single mother, and that the child had developed ties with Latvia.
16. The lower court granted T.’s request, stating that pursuant to Articles 1 and 14 of the Hague Convention the decision by which the Australian Central Authorities had established T.’s parental responsibility for the child was not subject to review by the Latvian courts, as they could decide only whether there had been a wrongful removal and whether the child should be returned. When applying Article 13 of the Hague Convention the court relied on photos and transcripts of e-mails between the applicant and T.’s relatives. It concluded that even if the applicant and T. had communication and financial problems, the latter had taken care of the child prior to her removal to Latvia. The court dismissed as ill-founded the applicant’s arguments that the return of the child to Australia might lead to her psychological detriment, stating that these were only assumptions.
17. As a result, the applicant was ordered to return the child to Australia immediately and in any event not later than six weeks from adoption of the decision. The decision also stated that if the applicant failed to respect the time-limit set by the court, then T. was authorised to return the child himself.
18. The applicant submitted an ancillary complaint in which she argued that she had been the sole guardian in law and in practice of the child at the time they had left Australia.
19. She also indicated that returning the child would expose her to psychological harm. She relied on the conclusions of a psychologist who examined the child on 16 December 2008:
“[...] Although the results of the examination show that the child has developed an adequate level of knowledge and language, the girl cannot, due to her minor age, define her opinion about her place of residence [...]. Having regard to the child’s age and close emotional ties with her mother, which is normal at this age, the emotional well-being of the child primarily depends on and is closely linked with the psychological balance of [the applicant]. [...] the child needs the daily presence of the mother and a permanent place of residence with [the applicant]. Having regard to the age of the child – three years and ten months – immediate termination of contact between the mother and the child should be ruled out, otherwise psychological trauma might be caused to the child in that the child’s sense of security and personal confidence could be impaired”.
20. The applicant also brought the appellate court’s attention to the fact that Latvian was the native language of the child; that she attended pre-school activities in Latvia and that T. had ill-treated the applicant and the child. In addition, the applicant complained that the lower court had refused to request from the Australian authorities information of T.’s previous convictions and the criminal charges of corruption brought against him. She also contended that in Australia she would be unemployed and would not have resources to ensure the legal protection of herself and the child, and that the lower court had not assessed the child’s social guarantees and safety if returned to Australia.
21. On 26 January 2009 the Rīga Regional Court (Rīgas Apgabaltiesa) upheld the decision of the lower court. It also dismissed the argument of possible psychological harm to the child:
“[The court] dismisses ... the allegation that [T.] ill-treated [the applicant] and the child, as well as [the allegation] that he was facing a prison sentence concerning [criminal charges brought against him] as no evidence has been submitted which could, at least by implication, support the allegations.
Neither can the conclusion of the [psychological assessment] of 16 December 2008 serve as evidence against the return of the child to the requesting state. Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out, the issue raised before this court does not concern custody rights... . Pursuant to Article 19 of the Hague Convention, a decision under this convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue.
[The court] considers that...[the child]...has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to Australia.
22. During the hearing the representative of the Orphans’ Court, inter alia, noted that there was no information as to the child’s situation if she was returned to Australia. The appellate court noted in this respect:
[The court] considers that there are no grounds to undermine the social protection and security of the child in Australia as, according to the [affidavit], Australian legislation provides, inter alia, for the security of children and [their] protection against ill-treatment within the family”.
23. On 5 February 2009 a bailiff requested the applicant to comply with the return order by 19 February 2009, which she failed to do.
24. On 24 February 2009, in response to a request by the applicant, the prosecutor’s office refused to reverse the decision adopted by the Rīga Regional Court.
25. On an unspecified date a bailiff lodged an application with the Rīga City Zemgale District Court for enforcement of the order to return the child. At the same time the applicant filed an application asking for suspension of the return order for a period of six to twelve months. The court scheduled a hearing of both applications on 16 April 2009.
26. On 6 March 2009 at T.’s request the Central Authority asked the Orphans’ Court to verify the child’s living conditions and inform the applicant of T.’s request to see the child.
27. On 14 March 2009 T. met the applicant and the child by chance near a shopping centre, from where T. took the child and drove to Tallinn, Estonia, in order to commence a trip back to Australia. Following a request from the Central Authority of Estonia concerning T.’s right to return the child to Australia, on 16 March 2009 the Central Authority of Latvia supplied the requested information.
28. On 15 March 2009, at the applicant’s request, the State Police instituted criminal proceedings for abduction of the child, without bringing charges against any particular suspect. The Central Authority was informed thereof.
29. On 6 April 2009, referring to the problems of execution of the court order in the applicant’s case, the Ministry of Justice set up a working group with the aim of proposing the necessary amendments to the laws concerning execution of court orders in similar cases.
30. In this connection the Ombudsman noted that in the absence of specific legal regulation concerning the execution of return orders, the execution should not take place in an arbitrary and violent manner, or in the absence of representatives of the Orphans’ Court.
31. On 20 April 2009 Rīga City Zemgale District Court dismissed the applications of the bailiff and the applicant concerning the delay in the execution of the return order.
32. On 30 April 2009 following a request submitted by the applicant’s representative, the Prime Minister of the Republic of Latvia ordered a disciplinary investigation into the legality of the actions of the Central Authority of Latvia.
33. On 27 May 2009 the investigation reached the conclusion that the Central Authority of Latvia had acted within its competence. However, it noted that in Latvia there was not sufficient regulation in order to be able to avoid the violent and traumatic execution of court orders in similar cases. The investigation therefore proposed that a number of related issues be examined by the Ministry of Justice.
34. In September 2009 the Family Court of Australia discharged all prior orders relating to the parents’ rights and, inter alia, ruled that T. was the person with sole parental responsibility for the child, and that the applicant was restrained from discussing publicly any information referring to the child or T. It also ruled that the applicant could visit the child under supervision of a social worker, and that until the child reached the age of eleven the applicant was restrained from attending or communicating by any means with any child-care facility, pre-school or school attended by the child or with a parent of any other child attending the same institution. She was also prohibited from speaking to the child in Latvian.
35. Section 644.19 regulates matters regarding the unlawful movement of children across borders to Latvia. It provides the following procedural safeguards for abduction proceedings.
36. A court shall adjudicate an application in a court hearing in which the parties shall participate. The court shall invite a representative of the Orphans’ Court, as well as ascertain the point of view of the child if he or she can formulate it.
37. In adjudicating the application, the court shall request evidence of its own motion. The court shall use the most appropriate procedural means, as well as the quickest ways of acquiring evidence, in order for a decision to be taken within a period of six weeks after the submission of the application.
38. If the court determines that the child has been unlawfully moved to Latvia or detained in Latvia, it shall take a decision regarding the return of the child to the State which is his or her place of residence, if one of the following cases applies:
41. By virtue of section 17, the Orphans’ Court defends the personal and property interests and rights of children and other persons lacking capacity to act.
42. The Hague Convention on the Civil Aspects of International Child Abduction:
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
43. Section 61B defines parental responsibility as “all the duties, power, responsibilities and authority which, by law, parents have in relation to children”.
44. Section 61C provides that each of the parents of a child who is not 18 has parental responsibility for the child. It has effect subject to court orders.
45. Section 111B incorporates the provision of the Hague Convention and provides that for the purposes of the Convention:
(a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and
(b) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to live under a parenting order; or
(ii) who has parental responsibility for a child under a parenting order;
should be regarded as having rights of custody in respect of the child; and
(c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and
(d) subject to any order of a court for the time being in force, a person:
(i) with whom a child is to spend time under a parenting order; or
(ii) with whom a child is to communicate under a parenting order;
should be regarded as giving a right of access to the child.
VIOLATED_ARTICLES: 8


ITEMID: 001-5702
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: M.C. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Pakistani national, born in 1961. He is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the father of Y., born in 1992. He is a Muslim. On 10 November 1993 he was arrested and detained, suspected of having killed his wife (Y.'s mother) on the same day. On 11 November 1993 an official of the Turku Social Welfare Authority provisionally took Y. into public care in virtue of section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). Y. was placed in a children's home. The mother's half-brother and half-sister had been heard prior to the decision.
On 13 November 1993 the applicant confessed to having killed his wife, referring to his jealousy. He was later found to have been in possession of his full senses at the moment of the crime.
Officials of the Basic Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of Valkeakoski started preparing a proposal for a confirmation of the provisional care order. It did not hear the applicant, although it had been informed of his whereabouts.
On 17 November 1993 the Basic Welfare Board upheld the public care of Y. pursuant to sections 16 and 17 of the Child Welfare Act. It noted that the mother was dead and that her father had been detained on suspicion of having murdered her. Other support measures to ensure Y.'s welfare would be insufficient. The public care was expected to be of a long duration. The applicant's access to Y. was prohibited indefinitely and her whereabouts were not disclosed to the applicant. No reasons were given for the prohibition. The Board's decision was notified to the applicant on 24 November 1993 and a social worker briefly explained the contents thereof in English. As the applicant had not been heard prior to the decision, the Board forwarded it ex officio to the County Administrative Court (lääninoikeus, länsrätten) of Häme for its review.
At a meeting between a representative of the association Pelastakaa lapset r.y.– Rädda barnen r.f. (“Save The Children”) and the applicant in prison on 20 January 1994 the latter requested that the authorities consider the possibility of placing Y. in his brother's family in Belgium either for the duration of his sentence or permanently, by adopting her. The brother had allegedly consented to such an arrangement. The social authority's case notes of 24 January 1994 included an account of the meeting, as recounted by the representative of Save The Children. According to the notes, the applicant had been informed at the meeting that Y.'s maternal relatives were opposed to her placement outside Finland and that Save The Children was looking for a foster family for her. When inquiring about Y.'s possibility to visit him in prison, the applicant had been informed that the access prohibition would be reconsidered on his release. It transpires from the case notes that a potential foster family had already been contacted by Save The Children.
On 18 February 1994 the applicant, represented by his current counsel, appealed belatedly to the County Administrative Court, stating, inter alia, that he had not been properly heard before the Basic Welfare Board's decision, nor legally notified of its contents.
In its submissions in reply the Basic Welfare Board stated, inter alia, that the care order had taken into account the wishes of Y.'s mother's relatives, who had wanted to ensure that Y. would continue to receive a Christian education.
On 21 February 1994 Y. was placed in a foster family selected by Save The Children. According to the care plan adopted on 22 February 1994, her whereabouts would be concealed from the applicant as long as she remained in public care. At a later stage she could decide for herself whether she wanted to meet him. She would be entitled to meet her maternal half- brother and half-sister, but initially only on neutral premises so as to protect her and the foster parents' privacy and security. The care plan was agreed by regional director (and social worker) A.R. of Save The Children, a director and a social worker of the Basic Welfare Authority as well as the foster parents. The applicant had not been invited to attend.
In a decision of 28 February 1994 a leading official of the Basic Welfare Board ordered that the access prohibition should be in force up to Y.'s twelfth birthday (i.e. until 16 April 2004). Having regard to the child's age and state of development, access prior to that date would not maintain a child-parent relationship. Accordingly, Y. had no right to see the applicant until she had reached that age, when she could decide for herself whether she wished to see him. The official of the Board furthermore considered that, in order to protect Y. and the foster family's privacy and security, her whereabouts should not be disclosed to the applicant or her other relatives. The applicant appealed to the Basic Welfare Board.
In its decision of 15 April 1994 in the care order proceedings the County Administrative Court noted that the applicant had been detained while the emergency order and the ordinary care order had been issued on 11 November 1993 and 17 November 1993, respectively. The court further noted that the emergency care order would have expired after fourteen days unless replaced by an ordinary care order. Finally, the Board had, of its own motion, referred its decision for review by the County Administrative Court, since the applicant had not been heard. In those circumstances the Board had not proceeded wrongly by not hearing the applicant prior to its order of 17 November 1993.
The County Administrative Court accepted, however, that the contents of the ordinary care order had not been sufficiently explained to the applicant, and examined his belated appeal. It nonetheless rejected it without having held an oral hearing, thus confirming the care order and Y.'s foster care. The court furthermore agreed that the access prohibition issued on 17 November 1993 had been incorrect in that it had comprised no reasoning or time-limit. However, in view of the new prohibition issued on 28 February 1994, the court found no reason to pronounce itself further in regard to the initial prohibition. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing.
On 27 April 1994 the District Court (käräjäoikeus, tingsrätt) of Turku convicted the applicant of manslaughter and sentenced him to nine years' imprisonment. The conviction and sentence were upheld by the Court of Appeal (hovioikeus, hovrätt) of Turku on 16 September 1994. The applicant served his sentence in the Turku County Prison until October 1996, when he was transferred to the Vilppula Low-Security Prison.
Meanwhile, on 18 May 1994, the Basic Welfare Board confirmed the access prohibition issued on 28 February 1994, stating, inter alia, that domestic law did not allow a father to care for his child in prison. The applicant appealed, arguing that he had not been properly heard prior to the decision. In addition, he stated that it had been made without knowledge of current domestic law which did allow a father to care for his child in prison.
The Basic Welfare Board explained to the County Administrative Court, inter alia, that it had considered it unnecessary to hear the applicant, since at the time he had been undergoing an examination of his mental state in a mental hospital.
On 21 November 1994 the County Administrative Court quashed the Basic Welfare Board's decision and referred the matter back for renewed consideration. The applicant's stay in a mental hospital at the relevant time had not been a valid reason for not hearing him in accordance with section 15 of the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). The court nonetheless rejected his request that the Board should be ordered to pay his legal costs.
In a subsequent written submission to the Basic Welfare Board the social welfare worker in the applicant's prison testified to his exemplary conduct and strong attachment to his daughter. Meetings between two would therefore not be contrary to her best interests. Supporting such meetings had been the practice in many similar cases involving a male prisoner and a child without a mother. The applicant's ethnic background should not be allowed to influence the decisions concerning the access question.
On 9 February 1995 A.R. of Save The Children interviewed the applicant in prison in regard to the access question. The applicant was assisted by an interpreter. According to the report which A.R. forwarded to the Basic Welfare Board, the applicant had requested to see Y. in prison in the area designated for visits by family members. The applicant had accepted Y.'s public care, her foster parents and the fact that she would be accompanied by them during her visits. The applicant had indicated that he would be able to speak some Finnish with her. He had denied certain allegations made by Y.'s mother's relatives but did not object to meeting them, if they so wished. At the end of the meeting A.R. had informed the applicant that he would receive copies of the relevant documents through his counsel. In her written cover letter to the Board dated 21 February 1995 A.R. of Save The Children urged it to maintain the access prohibition until meetings became a natural matter of consideration in the course of Y.'s development.
Meanwhile, on 16 February 1995, the applicant had submitted his written views directly to the Board without the assistance of his counsel.
On 22 February 1995 the Basic Welfare Board upheld the access prohibition issued on 28 February 1994. The applicant appealed again, requesting that the prohibition either be quashed or that it be amended so as to end around the time when he was expected to be released on parole, i.e. in 1998.
In its decision of 3 March 1995 the Supreme Administrative Court refused the applicant's request for an oral hearing in the care order proceedings. It found that he had not been heard prior to the Basic Welfare Board's order of 17 November 1993. As the Board had referred its order to the County Administrative Court for its review and the applicant had been able to appeal against the order and comment on the Board's submissions to that court, and in light of the evidence on file, there was no reason to quash the Board's or the lower court's decision due to the error in the hearing of the applicant. In its submissions the Basic Welfare Board had maintained that domestic law did not allow a father to care for his child in prison.
On 22 June 1995 the County Administrative Court quashed the Basic Welfare Board's decision of 22 February 1995 and referred the matter back for renewed consideration. It did not object to the access prohibition as such, considering that contacts between Y. and the applicant would obviously endanger Y.'s development. It had therefore also been necessary to conceal Y.'s whereabouts from the applicant. The court considered, however, that sufficient reasons had not been shown to justify that the prohibition should last until Y. would reach the age of twelve. It declined to pronounce itself in the first instance on the appropriate duration of the access prohibition and the secrecy order regarding Y.'s whereabouts. The applicant's request that the Board be ordered to pay his legal costs was rejected.
In an opinion of 8 August 1995 Dr E.V., a senior physician specialising in child psychiatry, considered Y.'s best interests to warrant an access prohibition lasting at least until her twelfth birthday. Dr E.V., who gave his opinion in his capacity as Save The Children's consulting child psychiatrist, stated in extenso as follows:
(translation from Finnish)
“I have studied Save The Children's case file. On that basis, without having met the child or others involved in the matter, but having discussed it with the employee of Save The Children, I consider that the biological father's request [for meetings to take place] is founded on various misunderstandings. He is of the view that the Board's way of proceeding violates both parties' right to respect for their family life, and that the starting point in the decision-making should have been to re-establish [that] family on [his] release from prison. This, however, would be contrary to both law and morality. The morality of child welfare is based on the same principle as the Child Welfare Act, i.e. on the intention to ensure that the best interests of the child are respected, as opposed to the interests of the parents when [the two sets of interests] are conflicting. It is clearly in the best interests of [Y.] that she can establish a normal and happy family [life] in [her] current foster family and that she may grow up to be a healthy adult. Meetings with her biological father are possible only in so far as they are not contrary to [her] best interests. When the law speaks of the child's right to meet his or her parents, this refers precisely to a right belonging to the child, and not to a right of a parent to meet his or her child irrespective of the damage or danger which such meetings produce to the child.
The Board has proposed to fix at twelve years the age when [Y.] and the applicant might begin to meet. The Board appears to base itself on the principle that a twelve-year old child must be heard before a decision in a matter concerning him or her is taken. From the point of view of child psychiatry I consider that [this] age-limit should not be applied categorically. [The age-limit] does not signify that from then onwards the child will decide on his or her own in matters of this kind, but that the decisions are made after hearing the child. This means that the foster parents or the Social Welfare Board responsible for the child may arrive at a decision which is contrary to the opinion of the child, if they consider that this is in the child's best interests. This is a very sensible approach, since a twelve-year old cannot be presumed to make absolutely sensible decisions. Ideally, [Y.'s] foster parents, who have the most evident and strongest emotional tie to [her], should make all decisions concerning her, since they are best equipped to understand what [she] really wishes to do and what is in her best interests. [Y.] should be allowed to make decisions completely on her own only when has reached the age of majority, i.e. at the age of 18. This is also sensible from a psychological point of view: it is only when [she] will have reached the age of early adulthood that her development will not be jeopardised by non-preferable relationships. I would also like to stress that the worst damage done to children nowadays stems from removing them from families to whom they have become attached and whose psychological members they are, with a view to arbitrarily placing them back for instance with their biological parents or parent, with whom the child has no relationship.
In my view [the authorities] should urgently proceed to having [Y.] adopted by the foster parents, if they consent to this. The fact that the child is not legally a member of the family to whom [she] belongs emotionally is damaging to the child.
From the point of view of child psychiatry it is therefore justified that meetings between [Y.] and the applicant are not organised until she turns twelve and thereafter only if she clearly expresses a wish to meet him and provided that the adults who love her consider such meetings useful to her. The father should understand that a child is not an object which he can own, but a living human being, who is entitled to live his or her own life according to his or her own emotions.”
Dr E.V.'s opinion was not served on the applicant prior to the decision of the Basic Welfare Board of Valkeakoski of 27 September 1995, whereby the access prohibition was again maintained until 2004. The applicant appealed and requested an oral hearing. He objected, inter alia, to not having been heard in respect of Dr E.V.'s opinion and not knowing what precise material it had been based on. The applicant stated his wish to examine Dr E.V. as witness and stated that he might also call a witness of his own choosing.
On 15 April 1996 the County Administrative Court held an oral hearing at which Dr E.V. was heard as witness. The applicant had not called any further witness.
In his further submissions of 25 April 1996 to the County Administrative Court the applicant stressed that he could not afford calling expert witnesses to counter Dr E.V.'s views. He therefore adduced copies of documents from a case in which neither the Helsinki Social Authority nor the experts consulted had even suggested an access prohibition in respect of a child, whose Finnish father had killed the mother. That child had not been placed in public care, being cared for by her maternal grandmother.
In its decision of 13 May 1996 the County Administrative Court rejected the applicant's appeal. The court now found that the duration of the access prohibition, as maintained by the Basic Welfare Board, was justified. The applicant received the decision on 6 May 1996. No further appeal lay open.
In February 1998 the Police of the Valkeakoski District proposed that the applicant be expelled to Pakistan on his release on parole, and banned from returning to Finland. The applicant opposed the proposals on the grounds that such a decision would sever his family ties to Y., in violation of Article 8 of the Convention.
On 27 April 1998 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) refused the applicant's request for a further residence permit. On 28 April 1998 it ordered his expulsion to Pakistan and banned him from re-entering Finland. The Directorate noted that his only family tie to Finland consisted of Y., whom he had been banned from meeting. Given the specific features of their family relationship, the heinous crime which the applicant had committed, thereby displaying his danger to others, the interference with his right to respect for his family life was justified under Article 8 § 2 of the Convention. The re-entry ban could be reconsidered if, for instance, he later obtained a right to see Y. Under a Nordic treaty this ban extends to the other Nordic countries.
At a meeting between A.R., the applicant and the foster parents on 29 April 1998 the applicant was told that various experts had advised against enabling him to meet Y. even once before leaving Finland. Even observing her without her knowledge would have been contrary to her best interests. It transpired from the meeting that the foster parents would continue to forward to Y. the applicant's letters and gifts as well as to keep him informed of her development.
In May 1998 the applicant was released on parole and left Finland. On 10 September 1999 the Supreme Administrative Court upheld the expulsion order.
According to various opinions of January 1998 issued by the prison governor, prison psychologist and other staff, the applicant's conduct in prison had been exemplary.
The Legal Aid Office (oikeusauputoimisto, rättshjälpsbyrån) of Valkeakoski awarded the applicant legal aid both for the purposes of the domestic court proceedings and for bringing his application under the Convention. This award covered counsel's fees but not the costs incurred.
B. Relevant domestic law
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) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2).
If a child is in imminent danger or otherwise in need of an immediate care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts.
The child's custodians, biological parents and de facto carers shall be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home. They shall further be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act. Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
If an ordinary care order has been issued pursuant to section 17 of the Child Welfare Act without the prior hearing of a party, the social welfare board shall forward it to the County Administrative Court within thirty days, unless the party in question could not be located with reasonable means or the child has no contact with that party, in which case a hearing would not be justified (section 17, subsection 2).
If a party appeals against an order issued under section 17, the County Administrative Court shall also review it (section 36).
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child's contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), the Social Welfare Board or the director of a children's home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children's home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child's care and upbringing and for the child's parents; (c) how the child's right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
Further provisions governing child welfare measures are outlined in the Court's judgment of 27 April 2000 in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97).
According to the Act on the Enforcement of Punishments (rangaistusten täytäntöönpanosta annettu laki, lag om verkställighet av fängelsestraff 39/1889), a prisoner may be allowed to care for his or her young child in prison, provided such care would be in the best interests of the child and the prisoner wishes to assume the care (section 1b, subsection 4, as added by Act no. 555/1990). This provision replaced the former section 1c which had only referred to mothers. Up to 1 May 1995 section 4, subsection 4, of the Act on Pre-Trial Detention (tutkintavankeudesta annettu laki, lag om rannsaknings-fängelse 615/1974), likewise applied only to mothers in detention, whereas the new subsection 2 applies equally to detainees of both genders.
According to the Act on County Administrative Courts (lääninoikeuslaki, lag om länsrätterna 1021/1974), as in force at the relevant time, the costs and economic losses incurred by an expert or other witness shall be reimbursed by the State, provided he or she was summoned by the court itself (section 19, as in force up to the entry into force of Act no. 588/1996). According to the Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973), the costs and losses incurred to a witness called by a party who has been granted cost-free proceedings shall be covered by the State (section 8). The said Act excludes from its scope proceedings concerning, for instance, an access prohibition issued on the basis of the Child Welfare Act.