ITEMID: 001-81606
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STANKOV v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1952 and lives in Sofia.
6. On 15 September 1994 the applicant, who had several convictions and had served a number of prison terms, was charged with the theft of construction material from a warehouse. It was alleged that he had been one of the members of a group that had committed thefts.
7. The applicant did not appear when summoned for questioning and on 26 July 1995 he was arrested and remanded in custody, by order of an investigator or a prosecutor. He remained in detention throughout the investigation proceedings and the trial.
8. On 10 March 1997 the Sofia City Court acquitted the applicant. He was released on 17 March 1997.
9. Upon the prosecutor's appeal, the acquittal was upheld by the Supreme Court of Cassation on 11 December 1997. The Supreme Court of Cassation found, inter alia, that at the outset there had been clearly insufficient proof of the applicant's involvement in the thefts. In particular, a police officer had testified that the only reason for suspecting the applicant had been the presence of his name on an internal police list of nicknames as the person behind the nickname “Kolio Transki”.
10. On an unspecified date in 1998 the applicant brought an action against the Chief Public Prosecutor's Office, seeking damages in respect of his pre-trial detention. He relied on section 2 (1) and (2) of the State Responsibility for Damage Act (see paragraphs 22-25 below).
11. The applicant sought non-pecuniary damages for the suffering caused by his pre-trial detention, which had lasted one year, seven months and twenty-one days. In his initial claim he sought 11,000,000 “old” Bulgarian levs (“BGL”). In the course of the proceedings he increased the claim to BGL 47,000,000 (the equivalent of approximately EUR 23,600), including interest, which in his view was to be calculated as from 26 July 1995, the date of his arrest.
12. The Sofia City Court delivered its judgment on 9 February 1999. It held that the State was liable to pay all damage suffered by the applicant as a result of his “unlawful pre-trial detention” and the “unlawful bringing of charges” against him.
13. The court stated, inter alia:
“[The Chief Prosecutor's Office] has not exercised the necessary supervision over the Sofia City prosecutors and the investigation authorities which, during a period of [more than two years], mounted an unjustified criminal prosecution against [the applicant] on charges of theft ...They remanded him in custody, imposing the harshest measure of judicial control, which resulted in [the applicant] spending nineteen months and fifteen [sic] days in detention...[The applicant] has undoubtedly suffered non-pecuniary damage... ”
14. As to the amount, the court considered that the length of the detention should be taken into consideration and rejected as unproven the applicant's contention that his health had deteriorated as a consequence of his detention. Deciding on an equitable basis, the court awarded to the applicant BGL 2,000,000 in non-pecuniary damages (the equivalent of approximately EUR 1,050) plus interest from the date on which the applicant had been acquitted with final effect, 11 December 1997. The court dismissed the remainder of the applicant's claim for damages.
15. The court further applied section 10 § 2 of the State Responsibility for Damage Act (see paragraphs 20 and 21 below) and ordered the applicant to pay BGL 1,800,000 (the equivalent of approximately EUR 940) in court fees. That amount represented 4% of the dismissed part of the applicant's claims.
16. The applicant appealed to the Sofia Appellate Court. He averred, inter alia, that the sum awarded in damages was too low and that it was unlawful to order him to pay court fees in an amount almost equal to the compensation award.
17. On 13 December 1999 the Sofia Appellate Court dismissed the appeal. As regards the court fees, it stated that section 10 § 2 of the State Responsibility for Damage Act was unambiguous and required the payment of court fees proportionately to the dismissed part of the claim. In the applicant's case, he had indicated an excessive amount in his claim and had thus himself brought about the situation complained of.
18. The applicant submitted a cassation appeal to the Supreme Court of Cassation which was dismissed by judgment of 16 August 2000. As regards the costs, the Supreme Court of Cassation reiterated the position taken by the Sofia Appellate Court. It stated that although no initial payment of court fees was required when bringing proceedings under the State Responsibility for Damage Act, in accordance with its section 10 § 2 the plaintiff was liable for fees in an amount proportionate to the dismissed part of the claim. By setting his claims at an excessive level, the applicant himself had caused his liability for a substantial amount in court fees.
19. In civil proceedings in Bulgaria, the general rule is that court fees are payable by the plaintiff in advance, upon the submission of the claim (Article 55 of the Code of Civil Procedure and sections 1-4 of the State Fees Act). A court fee at the flat rate of 4% is payable in respect of pecuniary claims (Fees Schedule 1 to the State Fees Act). Where the plaintiff succeeds fully or partly, the defendant is ordered to pay him his costs, including court fees, proportionately to the successful part of the claim.
20. By section 10 § 2 of the State Responsibility for Damage Act, in proceedings under the Act, no court fees or costs are payable by the plaintiff upon the submission of the claim. However, in circumstances where the claim is eventually wholly or partly dismissed, the court is to order the plaintiff to pay “the court fees and costs due”. The courts have interpreted the above provision as meaning that the plaintiff should pay court fees calculated as a pro rata percentage of the dismissed part of his claims. Article 63 § 1(b) of the Code of Civil Procedure provides for waiver of the fees in cases of indigence but concerns fees due upon the submission of the claim (argument from Supreme Court judgment no. 707 of 30.10.1995 in case no. 549/95).
21. As a result of section 10 § 2, where a court holds that a claim against the State is well-founded but excessive in quantum, it orders the State body concerned to pay damages to the plaintiff and at the same time orders the plaintiff to pay court fees to the State budget. Where the plaintiff indicated too high an amount in the claim form, the court fees may exceed the sum awarded in damages, the overall financial award being in favour of the State despite the finding that the plaintiff suffered damage which called for compensation under the Act (see, for example, the following judgments of the Supreme Court of Cassation: judgment no. 1095 of 25.07.2000 in case no. 139/2000 and judgment no. 805/05 of 1.08.2005 in case no. 56/2004). There is no provision for judicial discretion and considerations of equity play no role in fixing the court fees' amount. The court fees are fixed with reference to the amount indicated in the claim form, even if in the course of the proceedings the plaintiff makes a binding declaration waiving part of the claim (Interpretative Decision no. 3 of 22 April 2005, Supreme Court of Cassation).
22. Section 2 of the State Responsibility for Damage Act of 1988 provides, as relevant:
“The State shall be liable for damage caused ... by the organs of ... the investigation, the prosecution, the courts ... for:
unlawful pre-trial detention ..., if [the detention order] has been set aside for lack of lawful grounds...
unlawful bringing of criminal charges, if the person concerned has been acquitted or the proceedings discontinued on the following grounds:...”
23. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).
24. The following paragraphs – which draw on a summary report prepared by the research division of the Court's registry – describe relevant aspects of the system of court fees and costs in several member States representing different legal traditions, with emphasis on court fees in proceedings for damages against the State in cases where the respective domestic law provides for compensation for pre-trial detention.
25. The general rule with regard to compensation claims lodged with an administrative court (section 56 (11) of the State Fees Act) is that a state fee of 3 % of the amount claimed - but not less than 80 kroons (EUR 5) and no more than in civil court proceedings concerning an equivalent amount – is charged when the claim is brought. In case non-pecuniary damages are claimed but the amount of the compensation is left to the discretion of the court, a simple fee of 1,000 kroons (EUR 64) is due (section 56(12)).
26. The Unjust Deprivation of Liberty (Compensation) Act (Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus), which concerns, inter alia, criminal proceedings that ended in acquittal or were discontinued, provides that the individual concerned can lodge a compensation request with the Ministry of Finance. No fees are involved. The amount of compensation is fixed by the Act: it is 7/30 of the national monthly minimum salary (enacted by the Government) per day of detention. There is a presumption that this compensation covers non-pecuniary damage and loss of profit.
27. Compensation for pecuniary damage is regulated by the State Liability Act. In accordance with section 22 (1)(3) of the State Fees Act (which came into force on 1 January 2007), no fee is payable on a claim lodged with an administrative court for pecuniary damage caused by deprivation of liberty.
28. A claim for damages against the State can be brought under the Tort Liability Act. The court fee is approximately EUR 100-150, depending on the procedural actions undertaken by the court, regardless of the amount claimed.
29. Two avenues of redress are open in such cases: an administrative claim to the State Treasury in accordance with the Act on Compensation out of State Funds to Detainees or Convicts Found to Have Been Innocent (no. 422/1974 as amended) or a civil action for damages under the aforementioned Tort Liability Act. In either case no court fees are due in cases of detainees or acquitted persons.
30. Since 1993 the State has been responsible for paying court costs in respect of criminal proceedings. Article 149 of the Code of Criminal Procedure provides for a right to be compensated for all pecuniary and non-pecuniary damage sustained as a result of pre-trial detention in cases of acquittal or discontinuation of the proceedings. The claim is filed with the President of the Court of Appeal in whose area the criminal case was decided. All fees and costs in these proceedings are borne by the State.
31. Actions for damages for unlawful detention are adjudicated by the civil courts. Proceedings for damages against the State may also be instituted before the administrative tribunals, where the wrongful conduct was imputable to the public administration.
32. Court fees are in fixed amounts, irrespective of the sum claimed. The fees are different for first instance and appellate courts and modest in quantum: none of them exceeds EUR 30, according to the Decree no. 285 of 13 November 2002.
33. Actions for damages for unlawful detention are exempt from court fees (Article 15(g) of the Court Fees Act (no. 146/1997). In proceedings involving compensation claims against the State, the maximum fee is the equivalent of approximately EUR 10 (Article 3(m) of the Act). As to costs and expenses, at the conclusion of the proceedings, the losing party has to reimburse the other party's costs and expenses.
34. Claims for damages for unlawful detention are examined by ordinary courts in civil proceedings. Plaintiffs are exempt from court fees (Article 333.36, Sections 1(10) and 3 of the Tax Code) and the court cannot order the plaintiff to pay such fees at the end of the proceedings, even if the claim was partially or fully dismissed.
35. The successful party is entitled to the reimbursement of its costs. If an action succeeds only partly, the costs are divided proportionately between the parties (Article 98(1) of the Code of Civil Procedure). The defendant is required to pay into the federal budget a fee, from which the plaintiff is exempt, in proportion to the allowed part of the claim (Article 103(1) of the Code of Civil Procedure).
36. There are two possibilities for seeking damages for unlawful detention in Sweden. The first is an administrative quasi-judicial procedure before the Chancellor of Justice, who can award compensation in fixed amounts. There is no fee for the claimant. The second possibility is a civil action for damages before the civil courts, for which a modest fixed court fee is payable regardless of the amount of the claim. Also, the claimant who loses the case must pay the other party's costs
37. An action for damages against the state for unlawful detention is called a “claim for false imprisonment” which is treated as an action in trespass to the person (i.e. a personal injury claim) and is brought in the civil courts. Taking into account the money value of the claim and the complexity of the case, the court will allocate the case to one of three tracks: the “small claims” track, the “fast-track” or the “multi-track.” An action for false imprisonment is likely to be allocated to the multi-track.
38. There are several types of court fees that the claimant has to pay in proceedings for false imprisonment. The first one is the “issue fee”, charged for filing the claim. It depends on the amount of money claimed in accordance with a decreasing table. For example, the issue fee for claims of up to 300 British pounds (GBP) is GBP 30, for claims between GBP 5,000 and 15,000 it is GBP 250 and for claims between GBP 50,000 and 100,000 it is GBP 700. The higher issue fee, charged for claims of GBP 300,000 and higher, is GBP 1,700.
39. When a defence is filed, the court allocates the case to a track and orders the claimant pay an “allocation fee” in the amount of £100 (except for claims not exceeding GBP 1,500 for which no allocation fee is due). Finally, for matters that go to trial, a “trial fee” is payable as follows: in multi-track cases – GBP 500 and in fast-track cases – GBP 275, no fee being due for small claims track cases.
40. In respect of all fees, the court may decide that the claimant does not have to pay a court fee (exemption), or that he/she may pay a smaller fee (remission). That is usually done in cases involving indigent claimants.
41. When deciding on the award to be granted to the claimant, the courts enjoy a wide power to limit the amount that a party may recover with regard to the trial costs. According to the Civil Procedure Rules, the court is “to have regard to all the circumstances” in determining what costs are payable (r.44.5(1)). Those circumstances specifically include those set out in r.44.5(3), namely: (a) the procedural conduct of all the parties, including in particular, the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; (b) the amount involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved and (f) the time spent on the case;.
42. There is a constitutional presumption that unreasonable charges would not be imposed in the court proceedings (Murphy v. the Minister for Justice and others, Supreme Court judgment of 9 March 2001, [2001] IESC 29).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61452
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF VASS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under Art. 6-1 with regard to fair hearing
JUDGES: Gaukur Jörundsson
TEXT: 4. The applicant was born in 1915 and lives in Budapest.
5. On 12 January 1995 the applicant brought an action before the Budapest XVIII/XIX District Court. She requested that the invalidity of a contract, by which her late husband had sold their house, be established. On 25 June 1995 she completed her statement of claim.
6. On 9 December 1995 the applicant requested the District Court to hold a hearing urgently.
7. A hearing was held on 25 March 1996.
8. On 21 October 1996 the District Court dismissed the applicant's action. On 14 October 1997 the Budapest Regional Court dismissed her appeal of 27 December 1996.
9. On 19 December 1997 the applicant pursued a petition for review before the Supreme Court.
10. On 27 May and 18 August 1998 the applicant requested the Supreme Court to give her case priority.
11. On 1 September 1998 the Supreme Court appointed a legal-aid lawyer for the applicant. On 23 September 1998 the lawyer requested to be relieved of his duties. On 27 October 1998 the Supreme Court appointed another legal-aid lawyer to represent the applicant in the review proceedings.
12. The applicant's petition for review was renewed by the lawyer on 27 November 1998.
13. On 11 December 1998 the Supreme Court informed the parties that it intended to deliver its judgment without holding a hearing and requested the parties to submit their opinions on this matter within 8 days. On 15 January 1999 the applicant requested the Supreme Court to schedule a hearing.
14. On 23 June 1999 the Supreme Court quashed the final judgment on account of substantial procedural shortcomings, and remitted the case to the first-instance court.
15. In the resumed proceedings, on 22 December 1999 the Budapest XVIII/XIX District Court requested the applicant to extend her action to include Mr A.T. in the proceedings.
16. The applicant failed to comply with this order within the statutory time-limit. Consequently, the court decided to discontinue the case.
17. On 22 February 2000 the applicant's legal-aid lawyer appealed against the order to discontinue the case. Simultaneously, she complied with the order of 22 December 1999.
18. On 16 March 2000 the applicant renewed the motion to include Mr A.T. in the proceedings. On the same date, the defendant submitted his observations and counter-claims.
19. On 2 June 2000 the District Court accepted the applicant's procedural appeal and reinstated the proceedings.
20. Following the retirement of the applicant's lawyer, on 26 June 2000 the District Court appointed another legal-aid lawyer and scheduled a hearing for 19 September 2000.
21. The applicant failed to appear at the hearing held on 19 September 2000. She submitted that she was being treated in hospital. The District Court decided to enquire with the hospital about the applicant's health. On 24 October 2000 the hospital informed the court that the applicant was no longer a patient.
22. On 25 October 2000 the District Court dismissed the applicant's motion challenging the presiding judge for bias.
23. In her submissions of 22 December 2000, the applicant requested the court to hold a hearing urgently, notwithstanding her potential absence. At the same time, she objected to being represented by a legal aid-lawyer, which was not obligatory before a first-instance court. Consequently, on 17 April 2001 the District Court relieved the lawyer of her duties. On the same date, the court adjourned a hearing scheduled for 4 May 2001 and requested the applicant to complete her claims.
24. In her submission of 1 May 2001, the applicant again requested the District Court to hold a hearing in her absence and to deliver a judgment.
25. On 3 June 2001 the District Court enquired with the applicant as to whether she objected to a hearing being conducted at her home. On 5 August 2001 the applicant replied that she preferred to answer the court's questions in writing.
26. On 28 October 2001 the applicant informed the court that she would not be present at the hearing scheduled for 7 November 2001. She requested the court to hold a hearing in her absence. The court held a hearing on the latter date.
27. On 10 December 2001 the applicant submitted observations on the defendant's preparatory document of 11 November 2001. She requested that the next hearing be held in her absence.
28. The District Court held a hearing on 13 December 2001 and scheduled a hearing for 13 February 2002.
29. On 17 December 2001 the applicant modified her claim. On 30 December 2001 she submitted additional material. She requested the court to order the Land Registry to register the fact that proceedings were pending challenging the validity of the sales contract. On 21 January 2002 the court granted this request.
30. On 30 January 2002 the applicant filed additional submissions.
31. At the hearing on 13 February 2002 the District Court heard the applicant's sister as a witness and scheduled a hearing at the home of the applicant for 22 March 2002. On the latter date, however, the applicant did not allow the visiting judge to enter her house claiming that her bad health prevented her from being heard.
32. On 26 March 2002 the applicant submitted additional observations concerning the hearing of 13 February 2002.
33. On 23 May 2002 the District Court requested information from the Mayor's Office concerning the name of the social worker taking care of the applicant in order to summon her as a witness.
34. At present, the proceedings are still pending before the District Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57833
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF MELIN v. FRANCE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6
JUDGES: R. Pekkanen
TEXT: 7. Mr Pierre-André Melin, a French national, lives off private means and resides at Courbevoie (Hauts-de-Seine). He formerly practised as a lawyer.
8. On 6 May 1985 the Nanterre Criminal Court convicted him of fraud and sentenced him to a suspended term of sixteen months’ imprisonment, combined with an order (mise à l’épreuve) requiring him, inter alia, to compensate the victim for the damage which he had sustained.
9. The applicant appealed immediately to the Versailles Court of Appeal, which, giving judgment on 15 January 1986 in Mr Melin’s presence, upheld the lower court’s guilty verdict. On the other hand, it deferred pronouncement of sentence until 25 June 1986 as the accused had undertaken to reimburse the victim within six months if the court were to find him guilty. This aspect of the proceedings is not in issue. The typed text of the judgment was filed with the registry on the same day as its delivery.
10. Two days later Mr Melin lodged an appeal on points of law against the Court of Appeal’s judgment with the latter’s registry (Article 576 of the Code of Criminal Procedure). He stated that he reserved the right "to put forward any other relevant ground once he had received the certified copy of the decision in question".
According to the applicant, he requested a copy of the judgment on the same occasion. A registry official allegedly took down his address and the case references, so as to be able to send him one in return for a forty franc fiscal stamp.
The Government maintain that there were two possibilities: either the applicant had not requested a copy and could not therefore be surprised at not receiving one; or he had in fact asked for one, in which case a copy had undoubtedly been sent to him.
11. On 14 February 1986 the appeal file reached the registry of the Court of Cassation. Three and a half months later, on 27 May, the Criminal Division dismissed the appeal because no grounds had been put forward and because the contested judgment did not disclose any procedural defect. This decision was notified to Mr Melin on 18 June and recorded that the party seeking damages had submitted a memorial.
12. In a letter of 23 June to the President of the Criminal Division, the applicant explained that he had been unable to submit a memorial because he had not had available to him the text of the judgment of 15 January 1986; in addition he complained that the judge-rapporteur had failed to communicate to him a time-limit for the submission of a memorial.
On 4 July the Chief Registrar replied to him that, as the judgment of the Court of Cassation was final, he could not appeal against it.
13. Throughout these various proceedings Mr Melin had conducted his own defence, though he had been assisted by a lawyer at first instance.
14. The main provisions of the Code of Criminal Procedure referred to in this case are as follows:
"Every judgment shall include a statement of its reasons and an operative part.
The operative part shall record the offences of which the accused have been found guilty or in respect of which they have been held liable, the sentence pronounced, the laws applied and the orders made with regard to civil claims.
The judgment shall be read out by the president."
Amended by Law no. 85-1407 of 30 December 1985, which came into force on 1 February 1986, this provision is now worded as follows:
"Every judgment shall include a statement of its reasons and an operative part.
The reasons shall constitute the basis of the decision.
The operative part shall record the offences of which the accused have been found guilty or in respect of which they have been held liable, the sentence pronounced, the laws applied and the orders made with regard to civil claims.
The judgment shall be read out by the president or by one of the judges; in so doing the president or judge may confine himself to the operative part ..."
"...
After it has been signed by the president and the registrar, the original copy shall be lodged with the court registry not later than three days after the delivery of the judgment. The fact that it has been so lodged shall be recorded in the register kept in the registry specifically for this purpose.
..."
According to the Court of Cassation’s case-law, failure to comply with the formalities laid down in Article 486 does not entail the nullity of the judgment in issue. Thus the belated lodging of the original copy of a judgment cannot render the judgment void where no prejudice has ensued for the applicant (Criminal Division, 27 November 1984, Bulletin criminel no. 370).
"The rules laid down for the criminal courts shall apply in the courts of appeal, subject to the provisions set out below."
"Service of decisions, where such service is necessary, shall be effected at the request of the prosecuting authority or of the party claiming damages."
"The prosecuting authority and all the parties shall have five clear days in which to appeal to the Court of Cassation after the delivery of the impugned judgment.
..."
"An appellant on points of law may lodge a memorial, bearing his signature and setting out the grounds of his appeal, with the registry of the court from whose judgment he is appealing, either when he gives notice of appeal or within the following ten days. The registrar shall issue him with a receipt."
"After expiry of this time-limit, a convicted appellant may transmit his memorial directly to the Court of Cassation; the other parties may not avail themselves of this provision without the services of a lawyer who is a member of the Court of Cassation Bar.
..."
"Where one or more lawyers have been instructed, the judge- rapporteur shall set down a time-limit for the memorials to be filed with the registrar of the Criminal Division."
"The memorials shall set out the grounds of appeal and cite the legal provisions whose violation is alleged.
A fiscal stamp must be affixed, except where the appellant has been sentenced after conviction of a serious criminal offence (crime).
They must be lodged within the prescribed time-limit. No additional pleading may be joined thereto after the judge- rapporteur has filed his report. If a memorial setting out additional grounds is lodged belatedly, it may be declared inadmissible."
"In cases concerning any category of criminal offence, the Court of Cassation may give judgment on the appeal on points of law immediately after expiry of a period of ten days, which period begins to run on the date on which the Court of Cassation receives the file.
..."
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-70243
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BUTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1951 and lives in the town of Shakhty, the Rostov Region.
5. In 1987 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. In 1996 the applicant underwent medical examinations which established the link between the applicant’s poor health and his involvement in the Chernobyl events. The applicant was awarded compensation, to be paid monthly.
6. On an unspecified date the applicant sued a local pension authority (Управление социальной защиты г. Шахты, “the authority”) for allegedly erroneous calculation of his monthly compensation and demanded arrears and damages.
7. By judgment of 21 May 1999 the Shakhy Town Court of the Rostov Region granted the applicant’s claim and ordered the authority to recalculate his monthly compensation for the period between 14 May 1996 and 31 May 1999, to pay the applicant the arrears of RUR 134,442.46 in this respect and monthly compensation of RUR 4,547.75 with further indexation until any subsequent changes of legislation.
8. The judgment of 21 May 1999 was not appealed against by the parties and came into force ten days later, on 31 May 1999.
9. Some time thereafter the authority applied to the Town Court requesting to re-open the applicant’s case by reference to newly discovered evidence, such as his pay statements for twelve months preceding the disabling incident.
10. On 10 July 2000 the Town Court granted the application and re-opened the proceedings.
11. It appears that the defendant authority and the Town Court failed properly to notify the applicant of the re-opening proceedings and the decision of 10 July 2000.
12. The applicant challenged the decision of 10 July 2000 by way of supervisory review by reference to this failure. His appeal also stated that the piece of evidence referred to by the authority could not be considered as newly discovered since it had been fully available to the Town Court during the first instance proceedings.
13. On 9 November 2000 the Rostov Regional Court acting as a supervisory review instance set aside the decision of 10 July 2000. The court upheld the applicant’s arguments in full and by the same decision dismissed the authority’s arguments as unfounded.
14. On 29 January 2001 the writ of execution in respect of the judgment of 21 May 1999 reached the baillifs and on 31 January 2001 they opened the enforcement proceedings in this connection.
15. According to the Government, the authority complied with the judgment by five bank transfers, dated 29 March, 24 April, 30 May, 27 and 28 June 2002 respectively. As of 1 July 2002 the applicant has been in receipt of the monthly compensation of RUR 7,627.49, with no debts outstanding.
16. According to the applicant, to date the judgment of 21 May 1999 has not been enforced in part relating to indexation of his monthly compensation until any subsequent changes in the legislation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5704
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: J.R. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish citizen, born in 1968 and currently resident at Muurame. He is represented by Ms. Heidi Théman, a lawyer in Joensuu. 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 and P. are the parents and custodians of A., born in February 1991, and J., born in January 1992. In August 1991 the applicant started serving a prison sentence which was to last six years and five months and had been imposed for attempted manslaughter, aggravated robbery, two thefts and unlawful use of a vehicle (all committed in between April and July 1991). From August 1992 to January 1993 the children lived with P. while she was serving a prison sentence.
On 2 June 1993 the children were provisionally placed in public care pursuant to section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). In her decisions the Acting Social Welfare Director noted that, on 1 June 1993, P. had left the children with another person, who had brought them to P.’s mother R., since they had not been picked up by P. as promised. R. had considered herself unable to take care of the children. The Acting Director ordered the children’s placement in a children’s home in Espoo, where P. and R. would be able visit them in agreement with the staff.
On 7 and 8 June 1993 respectively, the applicant and P. consented to the public care proposals under preparation for the Basic Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of Lohja. The applicant’s consent was limited to the children’s temporary placement while he was serving his sentence. At a meeting on 11 June 1993 concerning the terms of the care plan (which the applicant had not been invited to attend) P. agreed to visit the children four times a week and to seek help in resolving her alcohol and other problems.
On 16 June 1993 the Basic Welfare Board confirmed the care orders and the terms of their implementation. It noted, inter alia, that P. had repeatedly left the children in the care of others and had failed to pick them up as promised. According to the staff of the children’s home, the children seemed particularly frightened and anguished. The applicant’s prison sentence would last at least until 1996 and P. was also expected to serve a prison sentence. P. had refused to acknowledge any problems and open-care assistance would in any case have been insufficient in view of the children’s specific needs.
During the summer of 1993 the applicant called the children once a week and they visited him in prison. He also visited them in the children’s home in July and October 1993 when he had been granted his first leaves.
At a meeting with social welfare officials on 13 September 1993 staff of the children’s home considered it to be in the children’s best interests that they be transferred to a substitute family as soon as possible. The applicant had not been invited to attend the meeting and P. failed to attend it. On 21 September 1993, however, the applicant was heard in prison in respect of the social authorities’ intention to transfer the children to a foster family. According to the social welfare official’s notes, the applicant consented to such a placement provided it would last only up to his release from prison.
By judgment of 23 September 1993 the applicant’s sentence was extended to six years and seven months on account of his conviction on one further count of robbery (committed in April 1991).
On 29 September 1993 the Basic Welfare Board decided to place the children in a foster family. According to its investigations, P. had remained unable to assume their physical, mental and social development. As from midsummer 1993 she had no longer visited the children as promised and had failed to respect her obligation under the care plan to seek treatment for her alcohol problem. From 11 August to 6 September 1993 she had had no contact with the children whatsoever and her whereabouts had been unknown. She had continued to face financial problems and had been evicted from her flat. In addition, the applicant would be serving a prison sentence at least until 1996. He had started serving his sentence when A. was six months old, whereas J. had been born during his imprisonment. While serving his sentence he had only been able to meet the children in prison. In the spring of 1993 they had apparently visited him only once. They could no longer stand the constant change of nursing staff in the children’s home and were in need of stable and secure human relations. The applicant’s wishes could therefore not be considered when deciding on the further implementation of the public care.
The applicant appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa, claiming that the Basic Welfare Board had failed to consider the possibility of returning the children to him on his release from prison. He referred to his regular contacts with the children during their placement in the children’s home. The Board had omitted any reference to those visits. Contrary to the Board’s view the children had been developing well in the children’s home. Starting in October 1993 the applicant would be granted a six-day leave every four months and he intended to use every day of those leaves to see his children. In prison he was studying and practising to become a welder, which would enable him to support the children after his expected release on parole in the beginning of 1996. He was therefore doing all he could to prepare himself to assume the care of the children. The mother’s problems were also of a temporary character. If need be, the applicant would consider requesting sole custody of the children. At any rate, he would try to ensure the children’s need of contact with their mother. The applicant furthermore submitted that he had not been notified of all documents which the Board had apparently relied on. He also requested an oral hearing.
In its submissions to the County Administrative Court the Basic Welfare Board stated, inter alia, that it had no proof that the applicant would be capable of assuming the children’s care and upbringing. His prison sentence was expected to end at the earliest in February 1996, whereas children of the age in question could not wait for two years to have a parent.
In his rejoinder the applicant objected to the social authorities’ apparent requirement that he should be rejecting P. It was not for the applicant to prove his ability to assume the care of his children, but for the authorities to prove the contrary. He further objected to certain case notes of the social welfare officials according to which he had, during a meeting with the children, “pretended” to be a tender and loving father. Another note proved that in July 1993 an official had told the applicant that the children would be placed in a foster family, “where they could grow up to become adults while maintaining contact with their biological parents”. The applicant therefore feared that any placement in a foster family would become irrevocable.
P. also appealed against the decision of 29 September 1993, arguing that the children’s transfer to a foster family had been decided without the authorities’ having had appropriate time at their disposal for verifying her inability to assume the care and upbringing of the children and without affording her a reasonable opportunity to solve her problems.
In respect of P.’s appeal the Basic Welfare Board submitted, inter alia, that the family conditions had been monitored from January 1993 onwards and that her problems were not temporary in nature. P. had failed to respect the terms of the care plan which she had herself accepted. She had last visited the children in November 1993 and had interrupted her treatment for her alcohol problem.
The County Administrative Court afforded the applicant an opportunity to comment on P.’s appeal as well as on the complete version of the social welfare officials’ case notes, from which one page (concerning the period 31 August – 13 September 1993) had been missing. In his final observations the applicant agreed with the views put forward by P. He further objected to not having been invited to attend the meeting on 13 September 1993 for no good reason. Finally, since the statements made by staff of the children’s home disclosed their negative attitude towards the applicant, those opinions should not be given any decisive weight.
On 17 February 1994 the County Administrative Court rejected the appeals, having found an oral hearing unnecessary. It considered, inter alia, that the manner in which the applicant had been heard in prison on 21 September 1993 had not been such as to require that the Board’s decision be quashed. As for the decision to transfer the children to a foster family, the County Administrative Court reasoned as follows:
(translation from Finnish)
“When a child has placed in the care of a social welfare board, the board is entitled to pursue the aim of that placement by deciding on the care, upbringing, supervision … and whereabouts of the child. In considering whether to amend the terms of … the public care the best interests of the child shall be the primary consideration. Given [A.’s and J.’s ] age and their symptoms in the children’s home, it is at this moment in their best interests that they be provided with [foster] care. Neither does [such care] prevent contact between the children and their [biological] parents. Accordingly, there is no reason to reverse the Board’s decision.
In its decision the Basic Welfare Board has not – nor could it have – decided on the children’s permanent placement in [a foster family]. Under section 20 of the Child Welfare Act a social welfare board must terminate the public care of a child when the need for [such care] as described in section 16 … no longer exists, unless such termination would be manifestly contrary to the child’s best interests. When considering [those] interests regard shall be had to the quality of the relationship between the child and his or her foster parents as well as the contacts between the child and his or her [biological] parents.”
The County Administrative Court relied on section 17 (subsection 1), section 19 (subsection 1) and section 38 (subsection 2) of the Child Welfare Act as well as on section 15 of the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982).
The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing. He submitted, inter alia, that he was visiting the children during every prison leave and was telephoning them once a week. In its observations on the appeal the Basic Welfare Board stated, inter alia, that one of its officials had informed the social worker of the applicant’s prison that his presence at the meeting on 13 September 1993 would not be required, since he had already been informed of the Board’s intentions and was to be heard on 21 September 1993.
On 6 October 1994 the Supreme Administrative Court rejected the appeal without an oral hearing and the County Administrative Court’s decision was upheld.
Meanwhile, on 1 August 1994 the Basic Welfare Board had implemented its decision of 29 September 1993 by placing A. and J. in a substitute family at Ylöjärvi near Tampere with the assistance of the association Pelastakaa lapset r.y. – Rädda Barnen r.f (“Save The Children”). The applicant was allowed to see the children for two hours every third month. He apparently met them twice in the substitute family, once on office premises in Tampere and once in a shelter for women and children in Tampere. He continued to call the children once a week.
It appears that between August 1994 and November 1995 P. served a seven-month sentence in Finland inter alia on one count of robbery (committed in April 1991), two counts of theft (committed in November 1993), one count of fraud, two counts of attempted fraud and two counts of forgery (all committed in January and February 1994). She also served a two-month prison sentence in Sweden (inter alia for theft, attempted fraud and forgery committed in January 1995). In August 1995 she was convicted of violent resistance against a public official, deprivation of liberty and escape from prison (all committed in May 1995). Her six-month prison sentence was commuted into community service (yhdyskuntapalvelu, samhällstjänst).
In August 1995 the applicant and P. married.
In an opinion of 24 January 1996 Dr I.S., a child psychiatrist of the Ylöjärvi Family Advice Centre, concluded that A.’s mental state would be incapable of surmounting any form of uncertainty, particularly as regards changes or losses in his human relations. This should be taken into account when considering meetings between A. and his biological parents as well as the public care as a whole. The opinion was based on interviews with A. separately as well as together with his substitute parents.
In March 1996 the applicant was released from prison and P.’s parole ended. At a meeting on 16 April 1996 for the purpose of updating the care plan social welfare officials and regional director (social worker) A.R. of Save The Children requested the biological parents to limit their telephone calls to the children to one every two or three weeks and to tell the children in clear terms that they would be able to remain in the foster family. The requests were justified in particular by A.’s negative reactions after such telephone calls as well as by his perception that he might have to give up his foster parents. The biological parents agreed to the visiting arrangements so far implemented as well as to the further limitation of telephone calls. They had last visited the children in March 1996 and the next meeting would take place in June 1996. A. was expected to receive individual therapy starting in the autumn of 1996.
In the spring of 1996 the biological parents moved to the municipality of Jyväskylä, where their third child was born in October 1996. They requested permission to visit A. and J. once a month and to be able to telephone them once a week. On 23 October 1996 the Basic Welfare Board of Lohja maintained the restriction on contacts at one meeting every third month and one telephone call every other week. The biological parents were still allowed to send post cards. The restriction was to be in force until 31 October 1997. The Board based itself on Dr I.S.’s opinion of 24 January 1996 as well as on notes drawn up by A.R.
The biological parents appealed, stressing that Dr I.S.’s opinion was almost one year old and that the authorities had not investigated the reasons for A’s symptoms. In any case the symptoms could not be deemed to have resulted from his meetings with the biological parents. The symptoms could have been caused by the severe access restriction or the various changes in the foster family’s circumstances. Moreover, according to an opinion of 30 January 1997 issued by two officials of the Social Welfare Board of the municipality of Jyväskylä, no criticism could be expressed against the biological parents’ family conditions which were furthermore stable.
Among the evidence apparently adduced by the Basic Welfare Board was a further opinion of Dr I.S. dated 14 February 1997. In an opinion of 10 March 1997 Dr R.S., a paediatrician, noted that the children and their biological parents had met only every third month (most recently in October 1996 and January 1997) on the premises of Save the Children or at an emergency shelter. The meetings had been supervised. The parents no longer had any prison sentences to serve and had solved their alcohol problem. The original family unit had not been sufficiently supported and meetings to that end had been prevented for no good reason. It had transpired from Dr R.S.’s discussions with A.R. of Save The Children and Dr I.S. of the Ylöjärvi Family Advice Centre that the latter had not been in contact with the applicant and P. for two years. The discussions had revealed a clearly negative attitude to the proposals of Dr R.S. for increasing the contacts and assessing A.’s interaction with his biological parents as well as his need for therapy. Dr R.S. concluded that there were no obstacles to meetings between the children and their biological parents or to the ultimate revocation of the public care.
At an oral hearing on 17 April 1997 the County Administrative Court heard the biological parents, the foster parents and a representative of the Basic Welfare Board. The court ex officio took witness testimony from Dr I.S. and nursery director J.H. A.R. was heard at the Board’s request, whereas the children’s maternal grandmother R. and the two social welfare officials from the Jyväskylä municipality were heard at the request of the biological parents. Dr I.S. was not opposed to more frequent meetings as long as the children could feel certain that they would remain in the foster home. There was no reason to apply different restrictions to J. Nursery director J.H. stated that A.’s behaviour had improved significantly after the autumn of 1996. According to A.R., the children’s hospital had been unwilling to commence A.’s therapeutic treatment until he had rooted himself in the foster family. The foster mother, although maintaining her objection to meetings taking place in the foster home, considered that one meeting a month would “tie down” the foster family excessively.
On 6 May 1997 the County Administrative Court reversed the Basic Welfare Board’s decision as not being based on sufficient grounds. It ordered that A. and J. be entitled to meet the biological parents once a month and to speak with them over the telephone once a week. The meeting premises were to be defined by the Board. The court found it established that A. had displayed physical and psychological symptoms both before and after meeting with his biological parents which were placing him in a situation of conflict. The court did not, however, find it established or likely that more frequent meetings and other forms of contact would manifestly jeopardise A.’s development. As it had not been established that his symptoms had been caused by the biological parents’ behaviour during meetings, it had not been established either, nor was it likely, that fewer meetings and generally less contact would support his development. The court found Dr I.S.’s written opinions and oral testimony contradictory. No reason had been shown for restricting meetings between J. and her biological parents.
In March 1999 the applicant’s parole ended. On 12 April 2000 the biological parents requested the Basic Welfare Board to terminate the public care. According to the request, A. and J. had been able to meet them once a month up to the end of 1998, on premises assigned by a social welfare official or the foster parents. Normally the meetings had also been attended by the foster parents. In November 1998 the biological parents had requested that the number of meetings be further increased and that they take place in their home. On 27 January 1999 they had been informed that the request had been refused and that the access restriction had been prolonged until 31 January 1999. It had been agreed, however, that through May 1999 the monthly meetings would be extended from four to seven hours and would take place in the home of the biological parents. On 31 May 1999 a social welfare official had informed them that the children’s opinions in respect of the meetings would be ascertained at the child psychiatric clinic of the Tampere University Hospital by hearing the foster and biological parents separately, both with and without the children, between 10 and 23 June 1999. On 31 May 1999 the dates for the monthly meetings through August 1999 had also been agreed. In a memorandum of 17 August 1999 the child psychiatric clinic had stated that meetings between the children and their biological parents were important and should be organised in accordance with the children’s best interests and capacity to adjust to them. This position had been repeated in an opinion of 8 October 1999 by Dr H.H., a child psychiatrist at the clinic.
In their request of 12 April 2000 the biological parents recalled that the meetings had been discontinued during and after the child psychiatric examination in June 1999. When they had wondered why the County Administrative Court’s decision was no longer being implemented, Dr H.H. had replied that it was no longer valid and that there was no obligation to organise meetings.
The biological parents stated, moreover, that when meetings had taken place in the absence of the foster parents, the children had been behaving naturally and had shown confidence in their biological parents. The foster parents’ hostile attitude to the biological parents had been reflected in the children’s behaviour when the foster parents had attended meetings. When the foster parents had been present, the children had not spoken of their own initiative. Whenever the biological parents had been telephoning the children, they had been given the impression that they were disturbing the foster family. At a meeting on 18 October 1999 a social welfare official had noted that no meetings had taken place since August 1999 due to the children’s refusal to go with the biological parents when they had come to fetch them from the foster home.
According to their submissions of 12 April 2000 the biological parents had requested, on 21 February 2000, that meetings be allowed on the second Saturday of each month from 10 a.m. to 7 p.m. until the end of May 2000, following which the meetings should be extended until Sunday 7 p.m. They had further requested the Basic Welfare Board to clarify what measures it had taken as from 1 August 1999 for the purpose of fulfilling its obligation under section 24, subsection 2, of the Child Welfare Act. At a meeting on 2 March 2000 no consensus had been reached as to the future meetings. On 15 March 2000 the Board had restricted the meetings from April 2000 through February 2001 to one meeting every other month lasting 4-6 hours. No clarification had been given as to how the Board had met its obligation under section 24, subsection 2, of the Child Welfare Act.
In their request of 12 April 2000 the biological parents concluded that the foster parents had not fulfilled their obligation to secure A.’s and J.’s right to a positive and close relationship with their biological parents. When the biological parents, in 1997, had requested more frequent contacts with them, the foster parents had referred to A.’s behavioural disturbance. Since A. had been a client at the Ylöjärvi Family Advice Centre since February 1995 but his therapy had commenced only in June 1997, the foster parents had also failed to secure his balanced development.
In their request of 12 April 2000 the biological parents finally submitted that they had recently found out that A. and J. had been seeing their maternal grandmother R. on a regular basis. As R. had not wished to have anything to do with P., such meetings had not been, in the view of the biological parents, in the children’s best interests. The social authorities had concealed the meetings from the biological parents and had failed to support the children’s right to meet their paternal relatives.
On 22 June 1999 the Basic Welfare Board refused to terminate the public care, as such termination would be contrary to the children’s best interests, given their own wishes, the duration of the foster care and the quality of their relationship with their foster parents. The Board noted the children had expressed a wish to remain in the foster family. In order to support their development it was necessary to assure them that their current home and its permanent human relations would remain stable.
The biological parents appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Helsinki, arguing that the Board had not found termination of the public care to be “manifestly” contrary to the children’s interests, only that those interests would be secured better through public and foster care. Even if the Board had not criticised the current conditions of the biological parents, they requested the Administrative Court to order an investigation into their situation. They also requested an oral hearing. The biological parents had previously appealed against the access restriction issued on 15 March 2000.
On 21 November 2000 the Administrative Court dismissed both appeals after an oral hearing of the biological parents, the foster parents and officials of the Basic Welfare Board. Dr H.H., A.’s therapist as from January 2000 and three other witnesses were heard at the request of the biological parents.
The Administrative Court noted inter alia that A. and J. had been in public care for over six years, A. from the age of three and J. from the age of two. Before their placement in their current foster family the children had been living in insecure conditions, first when cared for by their biological mother while the applicant had been serving his sentence, and subsequently while cared for in a children’s home. During their stay in the foster family the children had met their biological parents seldom. For a year and a half during 1994-95 there had been no contact whatsoever between the children and the biological mother. From then onwards it had been difficult to organise meetings with the biological parents as the children had opposed such contact and had stated that they did not trust them. Instead the children had become strongly attached to their foster parents. Any cutting of those ties would be harmful to the children. In such circumstances the termination of their public care would be manifestly contrary to their best interests.
The Administrative Court did not find it established that the children’s meetings with their biological parents had jeopardised their development. The meetings nonetheless had to take place in accordance with the opinion expressed by the children. They had repeatedly and clearly been opposed to very frequent meetings. According to Dr H.H., they had even been categorically opposed to meetings. On the other hand, no problems had occurred during actual meetings and the children had then considered them “quite all right”. The children’s opposition to meetings had evidently been triggered in part by their fear of having to give up their foster family and return to their biological parents. This fear might also have been compounded by the biological parents’ wish to see the children returned to them and by the foster parents’ fear of losing them. It had not been established, however, that the children’s opinion had been influenced in an inappropriate manner. In these circumstances the frequency of meetings requested by the biological parents would be manifestly contrary to the best interests of the children. Those interests required that the number of meetings be increased with their consent and gradually. Although finding no reason at this stage to amend the access restriction in force until February 2001, the Administrative Court recalled that the Basic Welfare Board was under an obligation continuously to support meetings and other forms of contact between the children and the biological parents.
The relevant legislation is 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). Those provisions of particular relevance to the present case are described below.
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 (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). 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.
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.
A county administrative court’s decision in respect of a public care order, the transfer of a child into foster care or the termination of public care may be appealed further to the Supreme Administrative Court. Other decisions of a county administrative court relating to child welfare measures cannot be so appealed (section 37 of the Child Welfare Act).


ITEMID: 001-70869
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF LESHCHENKO AND TOLYUPA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 8. The applicants are Ukrainian nationals, who were born in 1957 and 1977, respectively. They reside in the Nyzhnia Krynka village, Ukraine. Ms Leshchenko was the second applicant’s guardian until he reached the age of majority.
9. On 18 January 1993 a bus belonging to the Khartsyzk Transportation Company No. 11414 (the “TCK”), in which the second applicant travelled to work, had an accident. As a result of the accident he received multiple injuries which left him with a permanent disability, as established by a medical commission.
10. On 1 November 1993 the Sovetskiy District Court of Makeyevka sentenced Y.F.P. (the bus driver responsible for the accident) to eight years’ imprisonment following his conviction for an infringement of road traffic regulations which had had grave consequences. The court did not consider the applicants’ claims for pecuniary damage lodged in the course of the criminal proceedings, and advised them to appeal to the civil courts in separate proceedings.
11. In May 1994 the first applicant, the mother and legal representative of the second applicant, lodged complaints on his behalf with the Sovetskiy District Court of Makeyevka against the TCK, seeking compensation for injuries suffered by the second applicant as a result of the accident.
12. On 7 June 1994 the court allowed the applicants’ claims and ordered the TCK to pay him 29,325,933 Ukrainian Karbovantsi (українські карбованці) in compensation. Later, the Donetsk Regional Court quashed this judgment and remitted the case for reconsideration.
13. In November 1996 the second applicant, after reaching the age of majority (набуття повнолітнього віку), lodged his own complaints with the Sovetskiy District Court of Makeyevka against the TCK, seeking compensation for the damage caused by the accident. On 26 December 1996 the court allowed his claims and ordered the TCK to pay him UAH 36,232 in compensation for non-pecuniary damage. Moreover, it fixed a monthly pension of UAH 254 to be paid to him for the period from 1 December 1996 until 1 September 1997. This judgment was not appealed in cassation and became final.
14. On 26 February 1997 the applicants lodged complaints with the Prosecutor of the Donetsk Region, seeking to institute a supervisory review of the judgment of 26 December 1996.
15. In April 1997 the Deputy Prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court, seeking to quash the judgment of 26 December 1996. On 9 April 1997 the Presidium quashed this judgment and remitted the case to the Sovetskiy District Court of Makeyevka.
16. On 27 August 1997 the second applicant was declared to be in the “first group” of disabled persons (перша група інвалідності).
17. On 19 September 1997 the Sovetskiy District Court of Makeyevka allowed the applicants’ petition for a forensic medical examination, suspending the proceedings in the meantime.
18. On 7 October 1997 the forensic medical examination fixed the second applicant’s loss of work capacity at 100% (з повною втратою працездатності).
19. In October 1997 the Sovetskiy District Court of Makeyevka re-examined the second applicant’s petition on the basis of the first applicant’s claims regarding the recalculation of the amount of compensation. On 29 October 1997 the court partially allowed the second applicant’s petition and ordered the TCK to pay him UAH 2,965.26 in additional compensation. The court also ordered the TCK to pay the second applicant UAH 148 as a monthly pension for the period from 6 October 1997 to 1 September 1999. The decision was not appealed in cassation and became final. The claims of the first applicant for pecuniary and non-pecuniary damages were rejected as being unsubstantiated.
20. On 4 December 1998 the applicants’ lawyer lodged a request with the Sovetskiy District Court of Makeyevka, seeking an extension of the deadline for an appeal in cassation against the judgment of 29 October 1997. On 18 December 1998 the court dismissed this request. The applicants appealed further to the Donetsk Regional Court, which, on 19 January 1999, refused to consider the matter due to the applicants’ failure to comply with appeal formalities. The applicants were allowed time until 1 February 1999 to rectify their mistakes, which they failed to do, according to the Sovetskiy District Court of Donetsk decision of 8 February 1999, confirmed by the Donetsk Regional Court on 18 March 1999.
21. On 17 July 1999 the applicants lodged a complaint with the Prosecutor of the Donetsk Region, seeking a supervisory review of the case. In September 1999 the Deputy Prosecutor of the Donetsk Region lodged a protest with the Presidium of the Donetsk Regional Court, seeking to quash the judgment of 29 October 1997. By a resolution of 22 September 1999, the Presidium quashed the judgment of 29 October 1997 and remitted the case for fresh consideration.
22. On 25 April 2000 the Sovetskiy District Court of Makeyevka allowed the second applicant’s claims and ordered the TCK to pay him UAH 23,130.06 in compensation for non-pecuniary damage. The court also ordered the TCK to pay him a monthly pension of UAH 249.96 for the period from 6 October 1997 until 1 September 1999. It rejected the first applicant’s claims for pecuniary and non-pecuniary damages. The applicants complained in cassation to the Donetsk Regional Court.
23. On 4 May 2000 the Sovetskiy District Court of Makeyevka extended the deadline for lodging the cassation appeal with the Donetsk Regional Court as the verbatim records of the hearing of 25 April 2000 were not available to the parties.
24. On 15 May 2000 the applicants lodged a cassation appeal with the Donetsk Regional Court. On 8 June 2000 the Donetsk Regional Court rejected the cassation appeal as it failed to correspond to the appeal formalities, laid down in Article 292 of the Code of Civil Procedure. The applicants rectified the mistakes and the Donetsk Regional Court considered the cassation appeal on its merits. On 10 August 2000 it quashed the judgment of the Sovetskiy District Court of Makeyevka of 25 April 2000 and remitted the case for fresh consideration. The court also gave a separate ruling regarding the unreasonable length of the proceedings, which they held had been caused by the remittal of the case for fresh consideration on two occasions. It also acknowledged the inactivity of the judges dealing with the case.
25. On 12 September 2000 the Donetsk Regional Court decided to assume jurisdiction over the case as a first instance court. In particular, it took into account the numerous remittals and the lengthiness of the proceedings. The parties were invited to a pre-trial meeting on 15 September 2000.
26. On 16 September 2000 the Donetsk Regional Court decided to hold a hearing on 26 September 2000.
27. In the course of the hearing, the applicants lodged pleas challenging the judge hearing their case as they considered him biased. These pleas were rejected by the President of the Donetsk Regional Court on 21 September and 7 June 2001 as being unsubstantiated.
28. On 12 December 2000 the Donetsk Regional Court ordered a forensic medical examination concerning the second applicant’s state of health.
29. On 25 May 2001 the applicants’ lawyer asked for an adjournment of the hearing in the applicants’ case because he had other business commitments. He also complained that the dates were inconvenient for him and, therefore, he could not attend the hearings between 23 April and 22 May 2001. As to his absence from the hearing on 16 January 2001, the lawyer maintained that he was not duly informed about it.
30. On 25 June 2001 the Donetsk Regional Court of Appeal rejected the applicants’ motion for an additional forensic medical examination concerning the second applicant’s state of health as being unsubstantiated.
31. On 9 July 2001 the Donetsk Regional Court of Appeal allowed the applicants’ claims in part and ordered the TCK and the State company Makiyivvantazhtrans (the “SCM”), jointly, to pay the second applicant UAH 1,967.91 in compensation. It also ordered them to pay him UAH 60 per month (for the period from 10 July 2000 until 1 September 2001), a monthly pension of UAH 25. for external assistance, UAH 14,320 for the acquisition of a “Tavriya” car (a special vehicle for the disabled), UAH 996 for specialised medical treatment (санаторно-курортне лікування) and UAH 1,275 for the purchase of a wheelchair and crutches (інвалідна коляска та милиці). It also rejected the first applicant’s claims for pecuniary and non-pecuniary damages.
32. On 7 August 2001 the applicants’ lawyer lodged an appeal with the Supreme Court.
33. On 8 August 2001 one of the respondents, SCM, lodged an appeal in cassation (касаційна скарга) with the Supreme Court, seeking to have quashed the ruling of the Donetsk Regional Court of Appeal which had awarded compensation for non-pecuniary damage to the second applicant and which, in its view, infringed Articles 440 and 450 of the Civil Code.
34. On 1 October 2001 the Supreme Court decided to allocate the applicants’ cassation appeal to a Chamber composed of 15 judges. On 5 December 2001 the Supreme Court rejected the applicants’ petition challenging the composition of this chamber. It also refused to consider the applicants’ appeal on points of fact (апеляційна скарга) as it only had jurisdiction to consider appeals in cassation (касаційна скарга) on points of law. The case file was remitted to the Donetsk Regional Court of Appeal to determine the admissibility of the applicants’ appeal on points of fact.
35. On 21 January 2002 the Donetsk Regional Court of Appeal issued writs of execution for the judgment of 9 July 2001.
36. On 21 January 2002 the Donetsk Regional Court of Appeal allowed the applicants until 11 February 2002 to rectify the mistakes in their appeal. On 25 February 2002 the Donetsk Regional Court of Appeal returned the applicants’ appeal lodged with the Supreme Court, without consideration, as the applicants had failed to rectify the mistakes.
37. On 24 April 2002 the Girnytsky District Execution Service initiated the enforcement of the judgment of 9 July 2001.
38. On 11 May 2002 the SCM lodged complaints with the Girnytsky District Court of Makeyevka, seeking suspension of the enforcement proceedings pending the hearing of the case by the Supreme Court.
39. On 24 May 2002 the Girnytsky District Court of Makeyevka granted the suspension, in accordance with Article 35 § 5 of the Law on enforcement proceedings. On 17 July 2002 the court rejected the SCM’s complaints as being unsubstantiated.
40. On 23 and 26 September, 4 October 2002 and 21 July 2003 the Girnytsky District Bailiffs’ Service terminated the enforcement of the judgment 9 July 2002 in view of its full enforcement.
41. On 17 June 2002, following the rectification of mistakes in the cassation appeal, the Donetsk Regional Court of Appeal transferred the applicants’ cassation appeal on points of law against its ruling of 25 February 2002 to the Supreme Court for consideration on the merits. In their appeal the applicants challenged the lawfulness of the return of their appeals in cassation by the Donetsk Regional Court of Appeal.
42. On 30 October 2003 the civil chamber of the Supreme Court rejected the applicants’ cassation appeal against the ruling of 25 February 2002 as the applicants had failed to comply with the ruling of the Donetsk Regional Court of Appeal of 21 January 2002, allowing them time to rectify the shortcomings in their appeal in cassation.
43. On 4 December 2003 the civil chamber of the Supreme Court, composed of eighteen judges, rejected the SCM’s cassation appeal lodged against the judgment of 9 July 2001 as unsubstantiated. The ruling of the Supreme Court was final and not subject to appeal.
44. The relevant provisions of the Constitution of Ukraine provide as follows:
“...The main principles of judicial proceedings are:
1) legality; ...
8) ensuring complaints against court decisions by way of appeal and cassation, except in cases finalised by law;
9) the mandatory nature of court decisions.
The law may also determine other principles of judicial procedure in courts of specific jurisdiction.”
45. The relevant provisions of the Law of 21 June 2001 read as follows:
Chapter II
Transitional provisions
“1. This Law shall enter into force on 29 June 2001...
3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local court judgments.
4. Protests against judgments lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the cassation procedure.
5. Judgments that have been delivered and which have become enforceable before 29 June 2001 can be appealed against, within three months, in accordance with the cassation procedure [to the Supreme Court of Ukraine].”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76114
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PANTELEYENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violations of Art. 8;Violation of Art. 6-2;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1960 and lives in the city of Chernigiv.
5. On 3 May 1999 the Chernigiv City Prosecutor’ Office (hereinafter the Prosecutor’ Office) instituted criminal proceedings against the applicant for abuse of power and forgery of official documents. The prosecution’s case was that the applicant, while acting in his capacity as a private notary, had fraudulently certified a title and real-estate transactions using invalid registration forms.
6. On 21 May 1999 the Chernygiv City Prosecutor issued a search warrant in respect of the applicant’s office. The search was carried out the same day. According to the record drawn up on this occasion, the authorities seized at the office notary stamps and documents, a number of accounting records and a metal strong-box. The latter was opened on 2 July 1999 at the premises of the Prosecutor’s Office. The relevant record stated that there had been found, inter alia, personal items belonging to the applicant.
7. On 28 July 1999 an investigator from the Prosecutor’s Office closed the applicant’s case given the lack of any corpus delicti.
8. On 20 September 2000 the acting Chernigiv City Prosecutor overruled the investigator’s decision, as it had been proved that the applicant had committed the imputed offence, but ordered the discontinuation of proceedings due to the insignificance of the offence. The applicant challenged this finding, claiming that he had not committed any offence. On 21 December 2000 the Desniansky District Court of Chernigiv (hereafter “the Desniansky Court”) rejected the applicant’s complaint.
9. On 26 February 2001 the Presidium of the Chernigiv Regional Court, in the course of supervisory proceedings, quashed the decision of the Desniansky Court and remitted the case.
10. On 4 April 2001 the Desniansky Court quashed the City Prosecutor’s ruling of 20 September 2000 and ordered a further pre-trial investigation.
11. On 26 May 2001 an investigator terminated the criminal proceedings on substantially the same grounds as in the September 2000 ruling. On 4 July 2001 the Chernigiv City Prosecutor quashed this decision and ordered further inquiries in the case.
12. On 4 August 2001 the criminal case was closed due to the insignificance of the offence which had been committed. The applicant’s complaint against this ruling was rejected on 6 November 2001 by the Desniansky Court as being unsubstantiated. In particular, the court indicated that the applicant’s guilt had been proved by the evidence collected in the course of the investigation.
13. On 24 January 2002 the Chernigiv Regional Court of Appeal (hereafter “the Court of Appeal”) quashed the decision of 6 November 2001 as the local court had failed to specify the evidence in support of its opinion as to the applicant’s guilt. The case was remitted for a fresh consideration.
14. On 26 June 2002 the Desniansky Court rejected the applicant’s complaint against the ruling of 4 August 2001. The court indicated that the investigation case file contained sufficient evidence to establish that the applicant had forged a certain notary document and wittingly carried out an invalid notarial action. However, having regard to the insignificance of the offence, further criminal prosecution was impractical. As regards the applicant’s submissions concerning the inadmissibility of the evidence obtained by the search of his office, the court found that such complaints could be raised during the trial on the merits and considered itself incompetent to examine them in the course of the proceedings before it.
On 9 September 2002 the Court of Appeal upheld this decision. On 13 December 2002 the Supreme Court rejected the applicant’s request for leave to appeal under the cassation procedure.
15. In January 2000 the applicant instituted proceedings against the Prosecutor’s Office, seeking monetary compensation for the material and moral damage suffered as a result of the allegedly unlawful search of his office (i.e. loss of or damage to personal items and the seizure of documents essential for his professional activity).
16. On 28 August 2000 the Novozavodsky District Court of Chernigiv (hereafter “the Novozavodsky Court”) granted this claim. The court declared the search of the applicant’s office “to have been conducted unlawfully” (визнати проведення обшуку незаконним). In particular, it established that in breach of Article 183 of the Code of Criminal Procedure (hereafter “the CCP”) the investigator, being well aware of the applicant’s whereabouts (at that time he was undergoing hospital treatment), had failed to serve the search warrant on him. Moreover, contrary to Article 186 of the CCP, the authorities, instead of collecting the evidence relating to the criminal case, had seized all the official documents and certain personal items in the applicant’s office. This had effectively denied the applicant the possibility of performing his professional duties until 6 August 1999, when the relevant documents and items were returned to him. The court awarded the applicant UAH 14,140 in material and UAH 1,000 in moral damages.
17. On 16 January 2001 the Chernygiv Regional Court, on an appeal by the Prosecutor’s Office, quashed the decision of 28 August 2000 and remitted the case for fresh consideration because the legal basis for the decision (namely the termination of the criminal proceedings on “exonerative” grounds) had ceased to exist.
18. On 26 December 2001 the Novozavodsky Court examined the applicant’s claim and rejected it as being unsubstantiated. The court, referring to the Prosecutor’s Office’s ruling of 4 August 2001, found that the applicant’s case had been closed on non-exonerative grounds, within the meaning of Article 2 of the Law of Ukraine “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” 1994, and therefore the applicant had no standing to claim compensation for any acts or omissions allegedly committed by the authorities in the course of the investigation.
19. On 23 May 2002 the Court of Appeal stayed the appeal proceedings until the determination of the applicant’s complaint against the ruling of the Prosecutor’s Office of 4 August 2001 (i.e. the grounds for the termination of his criminal case). On 3 January 2003 the appeal proceedings were renewed and the applicant’s appeal against the judgment of 26 December 2001 was rejected.
20. In December 2001 the applicant instituted proceedings in the Novozavodsky Court against the Chernigiv Law College and its Principal for defamation. The applicant alleged that, during the Attestation Commission’s hearing on 14 May 2001, the Principal had made three statements about him which were libellous and abusive, including one rudely questioning his mental health. The applicant demanded apologies and compensation for moral damage.
21. During the trial, one of the applicant’s main arguments was that he had never suffered any mental health problems. He adduced to this effect a certificate supposedly issued by a psychiatric hospital, attesting that the applicant had never been treated there.
22. The case of the defence was that the Principal had never uttered the obscenities attributed to him by the applicant. However, they challenged the authenticity of the above certificate and asked the court to verify the applicant’s assertions. On 21 March 2002 this application was granted and the Chernigiv Regional Psycho-Neurological Hospital was requested to provide information as to whether the applicant had undergone any psychiatric treatment. On 3 April 2002 the hospital submitted to the court a certificate to the effect that for several years the applicant had been registered as suffering from a certain mental illness and underwent in-patient treatment in different psychiatric establishments. However, several years earlier his psychiatric registration had been cancelled due to long-term remission (a temporary lessening of the severity) of the disease. This information was read out by a judge at one of the subsequent hearings; however, no reference to this evidence was made in the final judgment.
23. On 3 June 2002 the Novozavodsky Court rejected the applicant’s claim as unsubstantiated. The court found, inter alia, that the applicant had failed to prove that the defendant had made any remarks about his sanity.
24. The applicant appealed, challenging, inter alia, the lawfulness of the court’s request for information about his mental state.
25. On 1 October 2002 the Court of Appeal upheld the judgment in substance. On the same day the court issued a separate ruling to the effect that the first instance court’s request for information concerning the applicant’s mental health from the public hospital was contrary to Article 32 of the Constitution, Articles 23 and 31 of the Data Act 1992 and Article 6 of the Psychiatric Medical Assistance Act 2000. In particular, it was indicated that information about a person’s mental health was confidential, and its collection, retention, use and dissemination fell under a special regime. Moreover, the court held that the requested evidence had no relevance to the case.
Summing up the above considerations, the Court of Appeal found that the judges of the lower courts lacked training in the field of confidential data protection and notified the Regional Centre for Judicial Studies about the need to remedy this lacuna in their training programme.
26. On 24 June 2003 the Supreme Court rejected the applicant’s request for leave to appeal under the cassation procedure.
27. The relevant provisions of the Constitution read as follows:
Article 30
“Everyone is guaranteed the inviolability of his or her home.
Entry into a home or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a reasoned court decision.
In urgent cases related to the preservation of human life and property or to the direct pursuit of persons suspected of committing a crime, another procedure established by law is possible for entry into a home or other possessions of a person, and for the examination and search thereof.
Article 32
No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine.
The collection, retention, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights...”
28. Article 6 of the Code enumerates the reasons for the termination of criminal proceedings, including the absence of any corpus delicti. Article 7 of the Code provides that the case can be closed on the ground of the insignificance of an offence which had been committed.
Article 327 § 4 of the Code provides that the trial court acquits the defendant in the following cases:
if the event of the crime has not been established;
if the defendant’s actions do not constitute any corpus delicti;
if there is a lack of evidence that the defendant was involved in the offence.
The same grounds, called the “exonerating circumstances” (реабілітуючи обставини) constitute a basis for compensation for unlawful prosecution (see paragraph 35 below). The remainder of the grounds for the termination of criminal proceedings, set out in Articles 6, 7 and 7-1 of the Code (including the insignificance of an offence) are called “non-exonerating circumstances” (нереабілітуючи обставини) and do not give rise to a right for compensation for any alleged wrongs committed by the authorities during the investigation.
29. Article 212 of the Code provides that, on completion of the investigation, the investigator either draws up an indictment or terminates the case.
According to Article 213 of the Code the case can be closed by the investigator on both exonerating and non-exonerating grounds.
30. Article 227 § 2 of the Code empowers the prosecutor to quash any investigator’s decision and to give binding instructions to the investigating authorities if he/she finds that the proceedings were conducted contrary to the procedural or sustentative law. However, the prosecutor does not have power to award any damages to a defendant for the established wrongdoing on the part of the investigating authorities.
31. The relevant provisions of the Code provide as follows:
Article 177
“The search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept in certain premises.
Article 183
At the beginning of a search the investigator shall provide the [search] warrant to persons who occupy the premises ...and shall propose to them to produce the items or documents specified in the warrant ... If they refuse to do so, the investigator shall carry out the compulsory search.
...When conducting the search the investigator shall have the right to open locked premises if the occupier refuses to open them. The investigator, however, shall avoid inflicting unnecessary damage to doors, locks and other property...
Article 186
During the search ... there shall be seized only those documents and items which are important for the case, as well as property of the accused or defendant in order to secure civil claim or possible confiscation. Items and documents, removed by law from circulation, shall be seized irrespective of their relation to the case.
Article 236-6
The complaint in respect of the decision [ruling] of the body of inquiry, investigator or the prosecutor to terminate the criminal case is examined by the judge within 5 ...days.
The judge requests the case file, studies it and, if necessary, hears the person who lodged the complaint.
... Having examined the complaint, the judge, depending on whether Articles 213 and 214 of this Code have been complied with, takes one of the following decisions:
1) dismisses the complaint;
2) quashes the ruling ... and remits the case for further investigation .”
32. Article 10 of the Code provides:
Hearings in all courts shall be public except when this conflicts with interests of the protection of the State or another secret protected by law.
The in camera consideration of the case can also be ordered by the reasoned decision of the court with a view to preventing the dissemination of data relating to the intimate details of the life of the persons who participate in the hearing.
In the in camera hearing participate the parties and their representatives ...and, if necessary, witnesses, experts and translators.
The in camera hearing is conducted in accordance with all procedural rules. The judgments in all cases are pronounced publicly.
33. The relevant provisions of the Act provide:
Article 23
“Personal information is a complex of documented or publicly acclaimed data about a person.
The main personal data are ...state of health
The sources of the documented personal information are the documents issued on the person’s request, signed by him or her, as well as data about a person collected by the State and municipal authorities, acting within their competence.
The collection of data about a person without his or her permission is prohibited except in accordance with law.
Article 31
The State authorities and organisations, municipal and local authorities whose information system, retain data about citizens are obliged to ensure that they have an unrestricted access to this information, except in accordance with law, as well as to undertake to secure it from the unauthorised access.
The access of unauthorised persons to information about another person, collected in accordance with law by the State authorities, organisations and officials is prohibited.
... The necessary amount of data about citizens that can be lawfully received should be strictly limited and can be used only for lawful ends.
Article 37
The following official documents are exempt from the general rule of obligatory provision on the information requests:
... confidential information;
... information that concerns private life of citizens.”
34. Article 6 of the Act insofar as relevant provides as follows:
“Members of medical staff ... who in connection with their work or studies became aware about a person’s mental disorder, his or her request for psychiatric aid or treatment in psychiatric establishments ... as well as other information concerning the mental state of a person, his or her private life, cannot disclose this information except in accordance with ... this Article.
...Disclosure of information concerning the state of a person’s mental health and provision to him or her of psychiatric aid can take place without the person’s consent if:
...2) it is important for an inquiry, pre-trial investigation or trial, on a written request from ... a judge.
The documents that comprise information concerning the state of a person’s mental health and provision to him or her of psychiatric aid must be stored in compliance with requirements which secure the confidentiality of this information. The provision of the originals of these documents and the making of copies can be carried out only in accordance with law.”
35. The relevant extract of the Law provides:
Article 2
“The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of:
- acquittal by a court;
- termination of a criminal case on grounds of an absence of event of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime.”
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-2